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specific repeal, as this court has declared, was to get rid of the pecuniary limit in the acts referred to. McLish v. Roff, 141 U. S. 661, 667, 35 L. ed. 893, 895, 12 Sup. Ct. Rep. 118. And, although neither § 692 nor § 695 of the Revised Statutes is repealed by name, yet, taking into consideration the general repealing clause, together with the affirmative provisions of the act, the case comes within the reason of the decision in an analogous case, in which this court said: "The provisions relating to the subject-matter under consideration are, however, so comprehensive, as well as so variant from those of former acts, that we think the intention to substitute the one for the other is necessarily to be inferred, and must prevail." Fisk v. Henarie, 142 Ú. S. 459, 468, 35 L. ed. 1079, 1083, 12 Sup. Ct. Rep. 207.

The decision in this court in the recent case of United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983, affords an important, if not controlling, precedent. From the beginning of this century until the passage of the act of 1891, both in civil and in criminal cases, questions of law upon which two judges of the circuit court were divided in opinion might be certified by them to this court for decision. Acts of April 29, 1802, chap. 31, § 6; 2 Stat. at L. 159; June 1, 1872, chap. 255, § 1; 17 Stat. at L. 196; Rev. Stat. §§ 650-652, 693, 697; New England M. Ins. Co. v. Dunham, 11 Wall. 1, 21, 20 L. ed. 90, 96; United States v. Sanges, 144 U. S. 310, 320, 36 L. ed. 445, 449, 12 Sup. Ct. Rep. 609. But in United States v. Rider it was adjudged by this court that the act of 1891 had superseded and repealed the earlier acts authorizing questions of law to be cer

tified from the circuit court to this court;

and the grounds of that adjudication suffi (685)ciently appear by the statement of the effect of the act of 1891 in two passages of the opinion: "Appellate jurisdiction was given in all criminal cases by writ of error either from this court or from the circuit courts of appeals, and in all civil cases by appeal or error, without regard to the amount in controversy, except as to appeals or writs of error to or from the circuit courts of appeals in cases not made final as specified in 3 6." "It is true that repeals by implication are not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the act of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate." 163 U. S. 138-140, 41 L. ed. 104, 16 Sup. Ct. Rep.

986.

That judgment was thus rested upon two successive propositions: First, that the act of 1891 gives appellate jurisdiction, either to this court or to the circuit court of appeals, in all criminal cases, and in all civil cases "without regard to the amount in controversy; "second, that the act, by its terms, its scope, and its obvious purpose, "furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate."

As was long ago said by Chief Justice Marshall, "the spirit as well as the letter of a statute must be respected, and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent." Durousseau v. United States, 6 Cranch, 307, 314, 3 L. ed. 232, 234. And it is a well-settled rule in the construction of statutes, often affirmed and applied by this court, that, "even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act." United States v. Tynen, 11 Wall. 88, 92, 20 L. ed. 153, 154; King v. Cornell, 106 U. S. 395, 396, 27 L. ed. 60, 1 Sup. Ct. Rep. 312; Tracy v. Tuffly, 134 U. S. 206, 223, 33 L. ed. 879, 884, 10 Sup. Ct. Rep. 527; Fisk v. Henarie, 142 U. S. 459, 468, 35 L. ed. 1079, 1083, 12 Sup. Ct. Rep. 207; District of Columbia v. Hutton, 143 U. S. 18, 27, 36 L. ed. 60, 62, 12 Sup. Ct. Rep. 369; United States v. Healey, 160 U. S. 136, 147, 40 L. ed. 369, 373, 16 Sup. Ct. Rep. 247.

We are of opinion that the act of 1891, upon its face, read in the light of settled[686] rules of statutory construction and of the decisions of this court, clearly manifests the intention of Congress to cover the whole subject of the appellate jurisdiction from the district and circuit courts of the United States, so far as regards in what cases, as well as to what courts, appeals may be tak tent, all the provisions of earlier acts of Con. en, and to supersede and repeal, to this exgress, including those that imposed pecunlary limits upon such jurisdiction, and, as part of the new scheme, to confer upon this court jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without any certificate of the district judge as to the importance of the particular case.

We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks of the United States during the recent war were subject to capture by the armed vessels with Spain.

By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.

This doctrine, however, has been earnestly contested at the bar; and no complete collection of the instances illustrating it is to be found, so far as we are aware, in a single published work, although many are referred to and discussed by the writers on international law, notable in 2 Ortolan, Règles Internationales et Diplomatie de la Mer (4th ed.) lib. 3, chap. 2, pp. 51-56; in 4 Calvo, Droit International (5th ed.) §§ 2367-2373; in De Boeck, Propriété Privée Ennemie sous Pavillon Ennemi, §§ 191-196; and in Hali,

International Law (4th ed.) § 148. It is provideatur. And it was therefore agreed
therefore worth the while to trace the his-that the subjects of each sovereign, fishing
tory of the rule, from the earliest accessible in the sea, or exercising the calling of fish-
sources, through the increasing recognition
of it, with occasional setbacks, to what we
may now justly consider as its final estab-
lishment in our own country and generally
throughout the civilized world.

ermen, could and might, until the end of the
next January, without incurring any attack,
depredation, molestation, trouble, or hin
drance soever, safely and freely, everywhere
in the sea, take herrings and every other
kind of fish, the existing war by land and
sea notwithstanding; and, further, that dur-

The earliest acts of any government on the (687]subject, mentioned in the books, either emanated from, or were approved by, a Kinging the time aforesaid no subject of either of England.

sovereign should commit, or attempt or presume to commit, any depredation, force, violence, molestation, or vexation to or upon such fishermen or their vessels, supplies, equipments, nets, and fish, or other goods soever truly appertaining to fishing. The treaty was made at Calais, then an English possession. It recites that the ambassadors of the two sovereigns met there at the earnest request of Henry VIII. and with his countenance, and in the presence of Cardinal Wolsey, his chancellor and representative. And towards the end of the treaty it is agreed that the said King and his said representative, "by whose means the treaty stands concluded, shall be conservators of the agree ments therein, as if thereto by both parties elected and chosen." 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.

In 1403 and 1406 Henry IV. issued orders to his admirals and other officers, entitled "Concerning Safety for Fishermen-De Securitate pro Piscatoribus." By an order of October 26, 1403, reciting that it was made pursuant to a treaty between himself and the King of France; and for the greater safety of the fishermen of either country, and so that they could be, and carry on their industry, the more safely on the sea, and deal with each other in peace; and that the French King had consented that English fishermen should be treated likewise, it was ordained that French fishermen might, during the then pending season for the herring fishery, safely fish for herrings and all other fish, from the harbor of Gravelines and the island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an orThe herring fishery was permitted, in time der of October 5, 1406, he took into his safe of war, by French and Dutch edicts in 1536. conduct and under his special protection, Bynkershoek, Quæstiones Juris Publica, lib. guardianship, and defense, all and singular 1, chap. 3; 1 Emerigon des Assurances, chap. the fishermen of France, Flanders, and Brit-4, § 9; chap. 12, § 19, § 8. tany, with their fishing vessels and boats, France, from remote times, set the exameverywhere on the sea, through and within his dominions, jurisdictions, and territories, ple of alleviating the evils of war in favor of all coast fishermen. In the compilation in regard to their fishery, while sailing, coming, and going, and, at their pleasure, freely entitled "Us et Coutumes de la Mer," puband lawfully fishing, delaying, or proceeding, lished by Cleirac in 1661, and in the third and returning homeward with their catch of part thereof, containing "Maritime or Adfish, without any molestation or hindrance miralty Jurisdiction,-la Jurisdiction de la whatever; and also their fish, nets, and other Marine ou d' Admirauté-as well in time of[688] property and goods soever; and it was there- peace, as in time of war," article 80 is as folfore ordered that such fishermen should not lows: "The admiral may in time of war be interfered with, provided they should com- accord fishing truces-tresves pescheresses port themselves well and properly, and should not, by color of these presents, do or attempt, or presume to do or attempt, anything that could prejudice the King, or his Kingdom of England, or his subjects. 8 Rymer's Foedera, 336, 451.

to the enemy and to his subjects; provided that the enemy will likewise accord them to Frenchmen.' Cleirac, 544. Under this ar ticle, reference is made to articles 49 and 79 respectively of the French ordinances concerning the admiralty in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes, 319; 2 Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart's Chronicles: "Fishermen on the sea, whatever war there were in France and England, never did harm to one another; so they are friends, and help one another at need,-Pescheurs sur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mal l'un à l'autre; aincois sont amis, et s'aydent l'un à l'autre au besoin."

The treaty made October 2, 1521, between the Emperor Charles V. and Francis I. of France, through their ambassadors, recited that a great and fierce war had arisen between them, because of which there had been, both by land and by sea, frequent depredations and incursions on either side, to the grave detriment and intolerable injury of [688]the innocent subjects of each; and that a suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy, the fishermen did not dare to go out, whereby the subject of their indus- The same custom would seem to have pretry. bestowed by heaven to allay the hungervailed in France until towards the end of the of the poor, whould wholly fail for the year, seventeenth century. For example, in 1675, unless it were otherwise provided,-Quo fit, Louis XIV. and the States General of Holut piscaturæ commoditas, ad pauperum lev-land by mutual agreement granted to Dutch andam famen a cœlesti numine concessa, ces-1 and French fishermen the liberty, undissare hoc anno omnino debeat, nisi aliter turbed by their vessels of war, of fishing

along the coats of France, Holland, and Eng-| war should arise between the contracting land. D'Hauterive et De Cussy, Traites de parties, "all women and children, scholars Commerce, pt. 1, vol. 2, p. 278. But by the of every faculty, cultivators of the earth, ordinances of 1681 and 1692 the practice artisans, manufacturers, and fishermen, *un-[691] was discontinued, because, Valin says, of armed and inhabiting unfortified towns, vilthe faithless conduct of the enemies of lages, or places, and in general all others France, who, abusing the good faith with whose occupations are for the common subwhich she had always observed the treaties, sistence and benefit of mankind, shall be alhabitually carried off her fishermen, while lowed to continue their respective employ their own fished in safety. 2 Valin sur l'Or-ments, and shall not be molested in their donnance de la Marine (1776) 689, 690; 2 persons, nor shall their houses or goods be Ortolan, 52; De Boeck, § 192. burnt or otherwise destroyed, nor their The doctrine which exempts coast fisher-fields wasted by the armed force of the enmen, with their vessels and cargoes, from capture as prize of war, has been familiar to the United States from the time of the War of Independence.

Here

emy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be On June 5, 1779, Louis XVI., our ally in paid for at a reasonable price." 8 Stat. at that war, addressed a letter to his admiral, L. 96; 1 Kent, Com. 91, note; Wheaton, Hisinforming him that the wish he had always tory of the Law of Nations, 306, 308. had of alleviating, as far as he could, the was the clearest exemption from hostile mohardships of war, had directed his atten- lestation or seizure of the persons, occupa[600]tion to that class of his subjects which de- tions, houses, and goods of unarmed fishervoted itself to the trade of fishing, and had men inhabiting unfortified places. The artino other means of livelihood; that he had cle was repeated in the later treaties bethought that the example which he should tween the United States and Prussia of 1799 give to his enemies, and which could have and 1828. 8 Stat. at L. 174, 384. And no other source than the sentiments of hu- Dana, in a note to his edition of Wheaton's manity which inspired him, would determine International Laws, says: "In many treathem to allow to fishermen the same facilities and decrees, fishermen catching fish as ties which he should consent to grant; and an article of food are added to the class of that he had therefore given orders to the persons whose ocupation is not to be discommanders of all his ships not to disturb turbed in war." Wheaton, International English fishermen, nor to arrest their ves-Law (8th ed.) § 345, note 168. sels laden with fresh fish, even if not caught Since the United States became a nation, by those vessels; provided they had no offen- the only serious interruptions, so far as we sive arms, and were not proved to have made are informed, of the general recognition of any signals creating a suspicion of intelli- the exemption of coast fishing vessels from gence with the enemy; and the admiral was hostile capture, arose out of the mutual susdirected to communicate the King's inten-picions and recriminations of England and tions to all officers under his control. By a France during the wars of the French Revoroyal order in council of November 6, 1780, lution. the former orders were confirmed; and the capture and ransom, by a French cruiser, of The John and Sarah, an English vessel, coming from Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.

In the first years of those wars, England having authorized the capture of French fishermen, a decree of the French National Convention of October 2, 1793, directed the executive power "to protest against this conduct, theretofore without example; to reclaim the fishing boats seized; and, in case of refusal, to resort to reprisals." But in July, 1796, the Committee of Public Safety ordered the release of English fishermen seized under the former decree, "not consid ering them as prisoners of war." La Nostra Segnora de la Piedad (1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1 Massé, Droit Commercial (2d ed.) 266, 267.

Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by which it was "ordered that all causes of prize of fishing boats or vessels taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under 50 tons burthen, and not more than 6 in number." Marriott's Formulary, 4. But by the statements of his *On January 24, 1798, the English govern [692] successor, and of both French and English ment by express order instructed the comwriters, it apears that England, as well as manders of its ships to seize French and France, during the American Revolutionary Dutch fishermen with their boats. 6 MarWar, abstained from interfering with the tens, Recueil des Traités (2d ed.) 505; 6 coast fisheries. The Young Jacob and Jo-Schoell, Histoire des Traités, 119; 2 Ortolan, hanna, 1 C. Rob. 20; 2 Ortolan, 53; Hall, §| 53. After the promulgation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty of England condemned small Dutch fishing vessels as prize of war. In one case the capture was in April, 1798, and the decree was made November 13, 1798. The Young Jacob and Johanna, 1 C. Rob. 20. In another case the decree

148.

In the treaty of 1785 between the United States and Prussia, article 23 (which was proposed by the American Commission ers, John Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have been drawn up by Franklin), provided that, if

was made August 23, 1799. The Noydt Ged-|of these small fishing vessels; but this rule
acht, 2 C. Rob. 137, note.

For the year 1800 the orders of the Eng-
lish and French governments and the corre-
spondence between them may be found in
books already referred to. 6 Martens, 503-
512; 6 Schoell, 118-120; 2 Ortolan, 53, 54.
The doings for that year may be summed up
as follows: On March 27, 1800, the French
government, unwilling to resort to reprisals,
re-enacted the orders given by Louis XVI. in
1780, above mentioned, prohibiting any
seizure by the French ships of English fish-
ermen, unless armed or proved to have made
signals to the enemy. On May 30, 1800, the
English government, having received notice
of that action of the French government, re-
voked its order of January 24, 1798. But
soon afterward the English government com-
plained that French fishing boats had been
made into fireboats at Flushing, as well as
that the French government had impressed
and had sent to Brest, to serve in its flotilla,
French fishermen and their boats, even those
whom the English had released on condition
of their not serving; and on January 21,
1801, summarily revoked its last order, and
again put in force its order of January 24,
1798. On February 16, 1801, Napoleon Bo-
naparte, then First Consul, directed the
French commissioner at London to return at
once to France, first declaring to the English
government that its conduct, "contrary to all
the usages of civilized nations, and to the
common law which governs them, even in
time of war, gave to the existing war a char-
acter of rage and bitterness which destroyed
even the relations usual in a loyal war,'
[698]and "tended *only to exasperate the two na-
tions, and to put off the term of peace;" and
that the French government, having always
made it "a maxim to alleviate as much as
possible the evils of war, could not think, on
its part, of rendering wretched fishermen vic-
tims of a prolongation of hostilities, and
would abstain from all reprisals."

On March 16, 1801, the Addington Ministry, having come into power in England, revoked the orders of its predecessors against the French fishermen; maintaining, however, that "the freedom of fishing was nowise founded upon an agreement, but upon a simple concession;" that "this concession would be always subordinate to the convenience of the moment," and that "it was never extended to the great fishery, or to commerce in oysters or in fish." And the freedom of the coast fisheries was again allowed on both sides. 6 Martens, 514; 6 Schoell, 121; 2 Ortolan, 54; Manning, Law of Nations (Amos's ed.) 206.

Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20, above cited, was much relied on by the counsel for the United States, and deserves careful consid

eration.

The vessel there condemned is described in the report as "a small Dutch fishing vessel taken April, 1798, on her return from the Dogger bank to Holland;" and Lord Stowell, in delivering judgment, said: "In former wars it has not been usual to make captures

was a rule of comity only, and not of legal
decision; it has prevailed from views of mu-
tual accommodation between neighboring
countries, and from tenderness to a poor and
industrious order of people. In the present
war there has, I presume, been sufficient rea-
son for changing this mode of treatment;
and as they are brought before me for my
judgment they must be referred to the gen-
eral principles of this court; they fall under
the character and description of the last
class of cases; that is, of ships constantly
and exclusively employed in the enemy's
trade." And he added: "It is a further
satisfaction to me, in giving this judgment,
to observe that the facts also bear strong
marks of a false and fraudulent transaction."

*Both the capture and the condemnation[694]
were within a year after the order of the
English government of January 24, 1798, in-
structing the commanders of its ships to
seize French and Dutch fishing vessels, and
before any revocation of that order. Lord
Stowell's judgment shows that his decision
was based upon the order of 1793, as well as
upon strong evidence of fraud. Nothing
more was adjudged in the case.

But some expressions in his opinion have been given so much weight by English writers that it may be well to examine them particularly. The opinion begins by admitting the known custom in former wars not to capture such vessels; adding, however, "but this was a rule of comity only, and not of legal decision." Assuming the phrase "legal decision" to have been there used, in the sense in which courts are accustomed to use it, as equivalent to "judicial decision," it is true that, so far as appears, there had been no such decision on the point in England. The word "comity" was apparently used by Lord Stowell as synonymous with courtesy or goodwill. But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law. As well said by Sir James Mackintosh: "In the present century a slow and silent, but very substantial, mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time it is raised from the rank of mere usage, and becomes part of the law of nations." Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360.

The French prize tribunals, both before and after Lord Stowell's decision, took a wholly different view of the general question. In 1780, as already mentioned, an order in council of Louis XVI. had declared illegal the capture by a French cruiser of The John and Sarah, an English vessel coming from Holland, laden with fresh fish. And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of fish, having no more crew than was needed for her management and for serving the nets, on a trip of several days, had been captured *in April, 1801, by a[695]

French cruiser, 3 leagues off the coast of Portugal, the Council of Prizes held that the capture was contrary to "the principles of humanity and the maxims of international law," and decreed that the vessel, with the fish on board, or the net proceeds of any that had been sold, should be restored to her master. La Nostra Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime, § 3, arts. 1, 3; S. C. 1 Pistoye et Duverdy, Prises Maritimes, 331; 2 De Cussy, Droit Maritime, 166.

The English government, soon afterwards, more than once unqualifiedly prohibited the molestation of fishing vessels employed in catching and bringing to market fresh fish. On May 23, 1806, it was "ordered in council that all fishing vessels under Prussian and other colors, and engaged for the purpose of catching fish and conveying them fresh to market, with their crews, cargoes, and stores, shall not be molested on their fishing voyages and bringing the same to market; and that no fishing vessels of this description shall hereafter be molested. And the Right Honorable the Lords Commissioners of His Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Judge of the High Court of Admiralty, are to give the necessary directions herein as to them may respectively appertain." 5 C. Rob. US. Again, in the order in council of May 2, 1810, which directed that "all vessels which shall have cleared out from any port so far under the control of France or her allies as that British vessels may not freely trade thereat, and which are employed in the whale fishery, or other fishery of any description, save as hereinafter excepted, and are returning, or destined to return either to the port from whence they cleared, or to any other port or place at which the British flag may not freely trade, shall be captured and condemned, together with their stores and cargoes, as prize to the captors," there were excepted "vessels employed in catching and conveying fish fresh to market, such vessels not being fitted or provided for the curing of fish." Edw. Adm. appx. L.

Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, [698] wrote: "It has been usual *in maritime wars to exempt from capture fishing boats and their cargoes, both from views of mutual accommodation between neighboring countries, and from tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of civilized nations, has fallen into disuse; and it is remarkable that both France and England mutually reproach each other with that breach of good faith which has finally abolished it." Wheaton, Captures, chap. 2, § 18.

This statement clearly exhibits Wheaton's opinion that the custom had been a general one, as well as that it ought to remain so. His assumption that it had been abolished by the differences between France and England at the close of the last century was hardly justified by the state of things when he wrote, and has not since been borne out.

During the wars of the French Empire, as

both French and English writers agree, the coast fisheries were left in peace. 2 Ortolan, 54; De Boeck, § 193; Hall, § 148. De Boeck quaintly and truly adds, "and the incidents of 1800 and of 1801 had no morrow,n'eurent pas de lendemain."

In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing boats from capture. În proof of this, counsel have referred to records of the Navy Department, which this court is clearly authorized to consult upon such a question. Jones v. United States, 137 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80; Underhill v. Hernandez, 168 U. S. 250, 253, 42 L. ed. 456, 457, 18 Sup. Ct. Rep. 83. By those records it appears that Commodore Conner, commanding the Home Squadron blockading the east coast of Mexico, on May 14, 1846, wrote a letter from the ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr. Bancroft, the Secretary of the Navy, inclosing a copy of the commodore's "instructions to the commanders of the vessels of the Home Squadron, showing the principles to be observed in the blockade of the Mexican ports," one of which was that "Mexican boats engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested;" and that on June 10, 1846, those instructions were approved by the Navy Department, of which Mr. Bancroft was still the head, and continued to be until he was appointed Minister to England in September following.[697] Although Commodore Conner's instructions and the Department's approval thereof do not appear in any contemporary publication of the government, they evidently became generally known at the time, or soon after; for it is stated in several treatises on international law (beginning with Ortolan's second edition, published in 1853) that the United States in the Mexican war permitted the coast fishermen of the enemy to continue the free exercise of their industry. 2 Ortolan (2d ed.) 49, note; (4th ed.) 55; 4 Calvo (5th ed.) § 2372; De Boeck, § 194; Hall (4th ed.) § 148.

As qualifying the effect of those statements, the counsel for the United States relied on a proclamation of Commodore Stockton, commanding the Pacific Squadron, dated August 20, 1846, directing officers under his command to proceed immediately to blockade the ports of Mazatlan and San Blas, on the west coast of Mexico, and saying to them, "All neutral vessels that you may find there you will allow twenty days to depart; and you will make the blockade absolute against all vessels, except armed vessels of neutral nations. You will capture all vessels under the Mexican flag that you may be able to take." Navy Reports of 1846, pp. 673, 674. But there is nothing to show that Commodore Stockton intended, or that the government approved, the capture of coast fishing vessels.

On the contrary, General Halleck, in the preface to his work on International Law, or Rules Regulating the Intercourse of States in Peace and War, published in 1861,

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