analysis of the action of the Commission and
of the views expressed by the circuit court
of appeals, that whilst the facts were con-
sidered in so far as was necessary to deter-
mine that the competition was due only to
certain particular causes, the result of the
competition was not examined in order to
ascertain the substantial materiality of its
operation on traffic and rates. And this, be-
cause both the Commission and the circuit
court of appeals determined that competi-
tion of the particular character which they
found that relied on to be, as a matter of

of competition could be considered and not to bring about dissimilarity of circumstances
another kind, but that all competition, pro-and conditions. But this suggestion is with-
vided it possessed the attributes of produc- out merit. We have shown, in our previous
ing a substantial and material effect upon
traffic and rate making, was proper under
the statute to be taken into consideration.
Indeed, if the distinction contended for were
sound it would follow that the greater and
more material competition would be with-
out weight in determining whether a dissim-
ilarity of circumstances and conditions ex-
isted, whilst the lesser competition would
be potential for such purpose. Not only
this, but if the distinction be applicable,
only that competition which might deflect
at the point of crigin the traffic from one
carrier to another would be within the pur-law, however weighty in its operation on
view of that portion of the 4th section now
under consideration, and competition which
was so great as to absolutely prevent the
movement of the traffic, unless the lesser
rate was exacted, would be outside of its
operation. This would lead to the construc-
tion that the statute, in empowering a car-
rier, under certain competitive conditions,
of his own volition, to exact a lesser rate for
the longer haul, contemplated only the in-
terest of some particular carrier, and not at
all the public interest. Whilst the unsound-
ness of the proposition is thus shown, from
the contradiction which inheres in it, the
erroneous conception upon which it rests is
fully demonstrated in the following excerpt
from the opinion in Texas & P. R. Co. V.
Interstate Commerce Commission, 162 U. S.
211, 40 L. ed. 945, 5 Inters. Com. Rep. 417,
16 Sup. Ct. Rep. 672:

"So, too, it could not be readily supposed
that Congress intended, when regulating
such commerce, to interfere with and inter-

rupt, much less destroy, sources of trade and
commerce already existing, nor to overlook
the property rights of those who had in-
vested money in the railroads of the coun-
try, nor to disregard the interests of the
consumers, to furnish whom with merchan-
dise is one of the principal objects of all
systems of transportation."

Indeed, in the cases by which the contro[672]versy here before us is controlled, attention was pointedly called to the fact that in considering the power of the carrier, of his own motion, to charge a lesser sum for the longer haul, not only was the interest of the carrier to be taken into account, but also the interest of the public,-especially at the place from which the traffic moved and the place to which it was to be delivered, and to these principles we shall before concluding again advert.

The argument upon which it is claimed that even if the legal principles here involved are not to be distinguished from those established by the decisions of this court, nevertheless the decree of the circuit court of appeals should be affirmed, is as follows:

The Commission and the circuit court of appeals, it is asserted, although they may have expressed erroneous opinions as to the construction of the statute, yet, ultimately, in substance, decided, as a matter of fact, that the competition was not of sufficient weight

rates, was not legally entitled to be consid-
ered in reviewing the action of the carrier.

This failure to consider the evidence

points to the distinction between this cause
and that of Cincinnati, N. O. & T. P. R. Co.
v. Interstate Commerce Commission, 162 U.
S. 184, 40 L. ed. 935, 5 Inters. Com. Rep. 391,
16 Sup. Ct. Rep. 700, upon which reliance is
placed. In that case the court, from an ex-
amination of the whole record, considered
that the result of the action of the Commis-
sion and the circuit court of appeals had
been substantially to decide, not that the
character of competition relied on could not
be taken into view, but that, fully weighing[673]
result to show that it was so substantial
and considering it, sufficient proof did not
and so material as to justify deciding that

conditions. The judgment below was, be-
firmed. The court said (p. 194, L. ed. p.
cause of this view as to such question, af-
938, Inters. Com. Rep. p. 401, Sup. Ct. Rep.
P. 704): "But the question was one of fact
mission whose conclusions have been accept-
peculiarly within the province of the Com-
ed and approved by the circuit court of ap-
peals, and we find nothing in the record to
make it our duty to draw a different con-
clusion." If it be again, arguendo, conced-
ed the state of the record in that case was
such that an analysis of the action taken be-
low might have well led the court to a dif-
ferent opinion; in other words, might have
justified it in holding that both the Commis-
sion and the circuit court of appeals had
rested their conclusions, not on the want of
proof as to the claimed competition, but sole-
ly on the absence of legal power to assert
competition of the character relied on, such
concession could have no influence upon the
decision of this cause. This follows because
the only deduction possible from the propo-
sition would be that the particular case had
been decided on a question of fact, when it
should have been controlled by a question of
law, which would afford no reason for the
failure to apply sound principles of law to
the facts of this record. It involves a com-
plete non sequitur to assert that because le-
gal principles may not have been applied to
a given case, on the assumption that the facts
did not render their application necessary,
therefore, in future cases, where it was found
that the facts brought the controversy with-
in the principles, they should not be applied

there were dissimilar circumstances and

It remains only to examine the last ques- the question of traffic and rate making, the tion that is, whether this court, as a mat-right in every event to be only enjoyed with ter of first impression, should weigh the evi- a due regard to the interest of the public, dence for the purpose of ascertaining wheth-after giving full weight to the benefits to be er it established such substantial and mate-conferred on the place from whence the rial competition as justified the carrier in traffic moved as well as those to be derived concluding that dissimilarity of circum- by the locality to which it is to be delivered. stance and condition was brought about. If If, then, we were to undertake the duty of it were true, as asserted in the argument weighing the evidence in this record, we for the appellee, that where the inherent would be called upon, as a matter of original character of the competition was of a nature action, to investigate all these serious conto be taken into consideration, any compe-siderations which were shut out from view 674]tition, however remote *and unsubstantial its by the Commission, and were not weighed influence on rates and traffic, would be sufli-by the circuit court of appeals, because both cient to bring about dissimilarity of circum- the Commission and the court erroneously But the law attribstances and conditions, the question would construed the statute. be easy of solution, for then to weigh the utes prima facie effect to the findings of fact testimony would involve no serious duty. made by the Commission, and that body, But this suggestion rests on an entire mis- from the nature of its organization and the conception of the adjudications of this court. duties imposed upon it by the statute, is peIn considering the right of a carrier to act culiarly competent to pass upon questions of on competitive conditions, deemed by him to fact of the character here arising. In Texas produce dissimilarity of circumstances and & P. R. Co. v. Interstate Commerce Commisconditions, the court, in Interstate Com- sion, 162 U. S. 197, 40 L. ed. 940, 5 Inters. merce Commission v. Alabama Midland R. Com. Rep. 405, 16 Sup. Ct. Rep. 666, the Co. 168 U. S. 173, 42 L. ed. 425, 18 Sup. Ct. court found the fact to be that the CommisRep. 51), said: sion had failed to consider and give weight "But it does not mean that the action of to the proof in the record, affecting the questhe carriers, in fixing and adjusting the tion before it, on a mistaken view taken by rates, in such instances, is not subject to re-it of the law, and that on review of the acvision by the Commission and the courts, tion of the Commission the circuit court of when it is charged that such action has re-appeals, whilst considering that the legal Bulted in rates unjust or unreasonable, or in unjust discriminations and preferences." Again (p. 167, L. ed. p. 423, Sup. Ct. Rep. p. 49), it was said:

conclusion of the Commission was wrong,
nevertheless proceeded as a matter of origi-
nal investigation to weigh the testimony and
determine the facts flowing from it. The
court said (p. 238, L. ed. p. 954, Inters.
Com. Rep. p. 441, Sup. Ct. Rep. p. 682).

"If the circuit court of appeals was of
opinion that the Commission in making its
order had misconceived the extent of its
powers, and if the circuit court had erred
in affirming the validity of an order made un-
der such misconception, the duty of the cir

"In order further to guard against any misapprehension of the scope of our decision it may be well to observe that we do not hold that the mere fact of competition, no matter what its character or extent, necessarily relieves the carrier from the 1estraints of the 3d and 4th sections, but only that these sections are not so stringent and imperative as to exclude in all cases the mat-cuit court of appeals was to reverse the deter of competition from consideration in determining the questions of 'undue or unreasonable preference or advantage,' or what are 'substantially similar circumstances and conditions.' The competition may in some cases be such as, having due regard to the interests of the public and of the carrier, ought justly to have effect upon the rates, and in such cases there is no absolute rule which prevents the Commission or the courts from taking that matter into consideration."

cree, set aside the order, and remand the
cause to the Commission, in order that it
might, if it saw fit, proceed therein accord-
ing to law. The defendant was entitled to
have its defense considered, in the first in-[676]
stance at least, by the Commission, upon a
full consideration of all the circumstances
and conditions upon which a legitimate or
der could be founded. The questions
whether certain charges were reasonable or
otherwise, whether certain discriminations
were due or undue, were questions of fact
to be passed upon by the Commission in the
light of all facts duly alleged and support
ed by competent evidence, and it did not
comport with the true scheme of the stat-
ute that the circuit court of appeals should
undertake, of its own motion, to find and
pass upon such questions of fact, in a case
in the position in which the present one
was."

It follows that whilst the carrier may take into consideration the existence of competition as the producing cause of dissimilar circumstances and conditions, his right to do so is governed by the following principles: First. The absolute command of the statute that all rates shall be just and reasonable, and that no undue discrimination be brought about, though, in the nature of things, this [675]latter consideration may *in many cases be involved in the determination of whether We think these views should be applied in competition was such as created a substan- the case now under review. In this case, howtial dissimilarity of condition. Second. ever, the proceeding to enforce the order of That the competition relied upon be, not the Commission was initiated by a private inartificial or merely conjectural, but mate- dividual on behalf of himself and other inrial and substantial, thereby operating on terested parties not named, and the peti

[77]

set

7.

and give effect to a rule of international law
exempting fishing vessels from capture as
prize, when there is no treaty or other pub
lic act of their own government in relation
to the matter.

A vessel of 35 tons burden, with a crew of six men, engaged in coast fishing, and on which the fish caught by the crew from the sea, amounting to about 10,000 pounds, are kept alive on board, two thirds of which belong to the crew and the other third go to the owner of the vessel as compensation for her use, is to be regarded as engaged in coast fishery, and not in a commercial adventure, within the rule of international law exempting coast fishing vessels from capture as prize.

tioner in the circuit court has died since the
argument and submission of the cause in this
court. We are of opinion, therefore, that
the decree of the Circuit Court of Appeals
should be reversed with costs, that the case
be remanded to the Circuit Court with in-
structions to modify its decree adjudging that
the order of the Commission be
aside with costs, by providing that the dismis-
sal be without prejudice to the right of a
party in interest to apply to the Commission
to be substituted in the original proceeding
before the Commission in the stead of the
deceased petitioner, and that upon such sub-
stitution the Commission should proceed up-
on the evidence already introduced before it
or upon such evidence and any additional evi-
dence which it might allow to be introduced,
to hear and determine the matter of contro- Argued November 7, 8, 1899. Decided Janu-
versy in conformity to law. A decree will
be entered accordingly, such entry to be made
nunc pro tunc as of the date of the sub-
mission of the cause in this court.

*THE PAQUETE HABANA.

THE LOLA.

2. Jurisdiction of appeals from all final sentences and decrees in prize cases may be taken by the Supreme Court of the United States, without regard to the amount in dispute and without any certificate of the district judge as to the importance of the par

3.

5.

ticular case.

[Nos. 395, 396.]

ary 8, 1900.

APPEALS from decrees of the District

Court of the United States for the Southern District of Florida condemning vessels as prize of war. Reversed.

The facts are stated in the opinion.

Mr. J. Parker Kirlin argued the cause, and Messrs. Convers & Kirlin filed a brief, for appellant.

Assistant Attorney General Hoyt argued
the cause and filed a brief for the United
States.

Messrs. Joseph K. McCammon and James
H. Hayden filed a brief for the captors, and
Messrs. George A. King and William B. King
filed a brief for certain captors.

Contentions of counsel sufficiently appear
in the opinion.

*Mr. Justice Gray delivered the opinion[678] of the court:

These are two appeals from decrees of the district court of the United States for the southern district of Florida condemning tw fishing vessels and their cargoes as prize of

war.

in and out of Havana, and regularly engaged
Each vessel was a fishing smack, running
in fishing on the coast of Cuba; sailed under
the Spanish flag; was owned by a Spanish
subject of Cuban birth, living in the city of
The records of the Navy Department may
Havana; was commanded by a subject of
be consulted by the Supreme Court of the Spain, also residing in Havana; and her
United States upon the question of the recog-master and crew had no interest in the ves-
nition of the exemption of coast fishing boats sel, but were entitled to shares, amounting
from capture.
in all to two thirds, of her catch, the other
third belonging to her owner.
Her cargo
consisted of fresh fish, caught by her crew
from the sea, put on board as they were
caught, and kept and sold alive. Until
stopped by the blockading squadron she had
no knowledge of the existence of the war or
of any blockade. She had no arms or am-
munition on board, and made no attempt to
run the blockade after she knew of its exis-
tence, nor any resistance at the time of the
capture.

The works of jurists and commentators on the subject of international law are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

Coast fishing vessels, with their implements, supplies, cargoes, and crews, when unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, and not employed for a warlike purpose or in such a way as to give aid or information to the enemy, are exempt from capture as prize of war by the general consent of the civilized nations of the world, and independently of any express treaty or other public act.

Prize courts administering the law of na tions are bound to take judicial notice of

The Paquete Habana was a sloop, 43 feet long on the keel, *and of 25 tons burden, and[679] had a crew of three Cubans, including the master, who had a fishing license from the Spanish government, and no other commission or license. She left Havana March 25,

1898; sailed along the coast of Cuba to Cape of this court from the circuit courts of the San Antonio, at the western end of the is- United States was for a long time fixed at land, and there fished for twenty-five days, $2,000. Acts of September 24, 1789, chap. lying between the reefs off the cape, within 20, § 22; 1 Stat. at L. 84; March 3, 1803, the territorial waters of Spain; and then chap. 40; 2 Stat. at L. 244; Gordon v. Og. started back for Havana, with a cargo of den, 3 Pet. 33, 7 L. ed. 592; Rev. Stat. §§ about 40 quintals of live fish. On April 25, 691, 692. In 1875 it was raised to $5,000. 1898, about 2 miles off Mariel, and 11 miles Act of February 16, 1875, chap. 77, § 3; 18 from Havana, she was captured by the Stat. at L. 316. And in 1889 this was modiUnited States gunboat Castine. fied by providing that, where the judgment or decree did not exceed the sum of $5,000, this court should have appellate jurisdiction upon the question of the jurisdiction of the circuit court, and upon that question only. Act of February 25, 1889, chap. 236, § 1; 25 Stat. at L. 693; Parker v. Ormsby, 141 U. 8. 81, 35 L. ed. 654, 11 Sup. Ct. Rep. 912.

The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six Cubans, including the master, and no commission or license. She left Havana April 11, 1898, and proceeded to Campeachy sound, off Yucatan, fished there eight days, and started back for Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by the United States steamship Cincinnati, and was warned not to go into Havana, but was told that she would be allowed to land at Bahia Honda. She then changed her course, and put for Bahia Honda, but on the next morning, when near that port, was captured by the United States steamship Dolphin.

As to cases of admiralty and maritime jurisdiction, including prize causes, the judi ciary act of 1789, in § 9, vested the original jurisdiction in the district courts, without regard to the sum or value in controversy; and in § 21 permitted an appeal from them to the circuit courts where the matter in dispute exceeded the sum or value of $300. 1 Stat. at L. 77, 83, chap. 20; The Betsey, 3 Dall. 6, 16, sub nom. Glass v. The Betsey, 1 Both the fishing vessels were brought by L. ed. 485, 489; The Amiable Nancy, 3 Wheat. their captors into Key West. A libel for 546, 4 L. ed. 456; Stratton v. Jarvis, 8 Pet. the condemnation of each vessel and her car-4, 11, 8 L. ed. 846, 849. By the act of March go as prize of war was there filed on April 27, 1898; a claim was interposed by her master on behalf of himself and the other members of the crew, and of her owner; evidence was taken, showing the facts above stated; and on May 30, 1898, a final decree of condemnation and sale was entered, "the court not being satisfied that, as a matter of law, with out any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from seizure."

Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490; and the Lola for the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo.

It has been suggested, in behalf of the (680] United States, that this court has no jurisdiction to hear and determine these appeals, because the matter in dispute in either case does not exceed the sum or value of $2,000, and the district judge has not certified that the adjudication involves a question of general importance.

The suggestion is founded on § 695 of the Revised Statutes, which provides that "an appeal shall be allowed to the Supreme Court from all final decrees of any district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars; and shall be allowed, without reference to the value of the matter in dispute, on the certificate of the district judge that the adjudication involves a question of general importance."

The judiciary acts of the United States, for a century after the organization of the government under the Constitution, did impose pecuniary limits upon appellate jurisdiction.

In actions at law and suits in equity the pecuniary limit of the appellate jurisdiction 175 U. S. U. S., BOOK 44.

21

3, 1803, chap. 40, appeals to the circuit court
were permitted from all final decrees of a
district court where the matter in dispute ex-[681]
ceeded the sum or value of $50; and from the
circuit courts to this court in all cases "of ad-
miralty and maritime jurisdiction, and of
prize or no prize" in which the matter in dis-
pute exceeded the sum or value of $2,000. 2
Stat. at I. 244; Jenks v. Lewis, 3 Mason, 503,
Fed. Cas. No.7,279; Stratton v. Jarvis, above
cited; The Admiral, 3 Wall. 603, 612, sub
nom. The Admiral v. United States, 18 L.
ed. 58, 59. The acts of March 3, 1863, chap.
86, 87, and June 30, 1864, chap. 174, § 13, pro-
vided that appeals from the district courts in
prize causes should lie directly to this court,
where the amount in controversy exceeded
$2,000, or "on the certificate of the district
judge that the adjudication involves a ques-
tion of difficulty and general importance."
12 Stat. at L. 760; 13 Stat. at L. 310. The
provision of the act of 1803, omitting the
words "and of prize or no prize," was re-en-
acted in § 692 of the Revised Statutes; and
the provision of the act of 1864, concerning
prize causes, was substantially re-enacted in

695 of the Revised Statutes, already
quoted.

But all this has been changed by the act of March 3, 1891, chap. 517, establishing the circuit courts of appeals, and creating a new and complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount involved. 26 Stat. at L. 826.

By that act, as this court has declared, the entire appellate jurisdiction from the circuit and district courts of the United States was distributed, "according to the scheme of the act," between this court and the circuit courts of appeals thereby established, "by designating the classes of cases"

321

of which each of these courts was to have final jurisdiction. McLish v. Roff, 141 U. S. 661, 666, 35 L. ed. 893, 894, 12 Sup. Ct. Rep. 118; American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U. S. 372, 382, 37 L. ed. 486, 490, 13 Sup. Ct. Rep. 758; Carey v. Houston & T. C. R. Co. 150 U. S. 170, 179, 37 L. ed. 1041, 1043, 14 Sup. Ct. Rep. 63.

The intention of Congress, by the act of 1891, to make the nature of the case, and not the amount in dispute, the test of the appellate jurisdiction of this court from the district and circuit courts, clearly appears upon examination of the leading provisions of the act.

Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter [682]be taken from a district court *to a circuit court; but that all appeals, by writ of error or otherwise, from the district courts, "shall only be subject to review" in this court or in the circuit court of appeals "as is hereinafter provided,” and “the review by appeal, by writ of error, or otherwise" from the circuit courts, "shall be had only" in this court or in the circuit court of appeals, "according to the provisions of this act regulating the

same."

made under its authority, is drawn in ques-
tion."

*Sixth. "In any case in which the Consti-[683) tution or law of a state is claimed to be in contravention of the Constitution of the United States."

Each of these last three clauses, again, includes "any case" of the class mentioned. They all relate to what are commonly called Federal questions, and cannot reasonably be construed to have intended that the appellate jurisdiction of this court over such ques tions should be restricted by any pecuniary limit, especially in their connection with the succeeding sentence of the same section: "Nothing in this act shall affect the jurisdic tion of the Supreme Court in cases appealed from the highest court of a state, nor the construction of the statute providing for review of such cases." Writs of error from this court to review the judgments of the highest court of a state upon such questions have never been subject to any pecuniary limit. Act of September 24, 1789, chap. 20, § 25; 1 Stat. at L. 85; Buel v. Van Ness, 8 Wheat. 312, 5 L. ed. 624; Act of February 5, 1867, chap. 28, § 2; 14 Stat. at L. 386; Rev. Stat. $709.

By § 6 of the act of 1891 this court is reSection 5 provides that "appeals or writs lieved of much of the appellate jurisdiction of error may be taken from the district that it had before; the appellate jurisdiction courts, or from the existing circuit courts, from the district and circuit courts "in all direct to the Supreme Court, in the follow-cases other than those provided for in the ing cases:"

First. "In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." This clause includes "any case," without regard to amount, in when the jurisdiction of the court below is in issue; and differs in this respect from the act of 1889, above cited.

Second. "From the final sentences and decrees in prize causes." This clause includes the whole class of "the final sentences and decrees in prize causes," and omits all provisions of former acts regarding amount in controversy, or certificate of a district judge.

preceding section of this act, unless other.
wise provided by law," is vested in the cir
cuit court of appeals; and its decisions in
admiralty cases, as well as in cases arising
under the criminal laws, and in certain other
classes of cases, are made final, except that
that court may certify to this court ques-
tions of law, and that this court may order
up the whole case by writ of certiorari. It
is settled that the words "unless otherwise
provided by law," in this section, refer only
to provisions of the same act, or of contem-
poraneous or subsequent acts, and do not in-
clude provisions of earlier statutes. Lau Ow
Bew v. United States, 144 U. S. 47, 57, 36 L.
ed. 340, 343, 12 Sup. Ct. Rep. 517; Hubbard
v. Soby, 146 U. S. 56, 36 L. ed. 886, 13 Sup.
Ct. Rep. 13; American Constr. Co. v. Jack-
sonville, T. & K. W. R. Co. 148 U. S. 372,
383, 37 L. ed. 486, 491, 13 Sup. Ct. Rep. 758.

Third. "In cases of conviction of a capital or otherwise infamous crime." This clause looks to the nature of the crime, and not to the extent of the punishment actually imposed. A crime which might have been pun- The act of 1891 nowhere imposes a pecunished by imprisonment in a penitentiary is iary limit upon the appellate jurisdiction, an infamous crime, even if the sentence actu- either of this court or of the circuit court ally pronounced is of a small fine only. Ex of appeals, from a district or circuit court parte Wilson, 114 U. S. 417, 426, 29 L. ed. of the United States. The only pecuniary 89, 92, 5 Sup. Ct. Rep. 935. Consequently, limit imposed is one of $1.000 *upon the ap-[684] such a sentence for such a crime was subject peal to this court of a case which has been to the appellate jurisdiction of this court, once decided on appeal in the circuit court under this clause, until this jurisdiction, so of appeals, and in which the judgment of far as regards crimes, not capital, was trans- that court is not made final by § 6 of the act. ferred to the circuit court of appeals by the Section 14 of the act of 1891, after specitiact of January 20, 1897, chap. 68. 29 Stat.cally repealing § 691 of the Revised Statutes at L. 492.

Fourth. "In any case that involves the construction or application of the Constitution of the United States."

Fifth. "In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty

and § 3 of the act of February 16, 1875,
further provides that "all acts and parts of
acts relating to appeals or writs of error, in-
consistent with the provisions for review by
appeals or writs of error in the preceding
§§ 5 and 6 of this act, are hereby repealed.*
26 Stat. at L. 829, 830. The object of the