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which are exempt by the general consent of civilized nations from capture, and which no act of Congress or order of the President has expressly authorized to be taken and confiscated, must be condemned by a prize court, for want of a distinct exemption in a treaty or other public act of the government.

being desirable that such war should be con-
ducted upon principles in harmony with the
present views of nations and sanctioned by
their recent practice." This recital was fol-
lowed by specific declarations of certain rules
for the conduct of the war by sea, making
no mention of fishing vessels. 30 Stat. at L.
1770. But the proclamation clearly mani-
fests the general policy of the government to
conduct the war in accordance with the prin-
ciples of international law sanctioned by the
recent practice of nations.

be

To this subject in more than one aspect are singularly applicable the words uttered by Mr. Justice Strong, speaking for this court: "Undoubtedly no single nation can change the law of the sea. The law is of universal obligation and no statute of one or On April 28, 1898 (after the capture of the two nations can create obligations for the two fishing vessels now in question), Admiral world. Like all the laws of nations, it rests Sampson telegraphed to the Secretary of the upon the common consent of civilized com- Navy as follows: "I find that a large nummunities. It is of force, not because it was ber of fishing schooners are attempting to prescribed by any superior power, but be- get into Havana from their fishing_grounds cause it has been generally accepted as a rule near the Florida reefs and coasts. They are of conduct. Whatever may have been its generally manned by excellent seamen, origin, whether in the usages of navigation, longing to the maritime inscription of Spain,[713] or in the ordinances of maritime states, or in who have already served in the Spanish both, it has become the law of the sea only navy, and who are liable to further service. are naval reserves, by the concurrent sanction of those nations As these trained men who may be said to constitute the commer- most valuable to the Spaniards as artillery. cial world. Many of the usages which pre-men, either afloat or ashore, I recommend vail, and which have the force of law, doubt that they should be detained prisoners of less originated in the positive prescriptions war, and that I should be authorized to deof some single state, which were at first of liver them to the commanding officer of the limited effect, but which, when generally ac- army at Key West." To that communicacepted, became of universal obligation." tion the Secretary of the Navy, on April 30, "This is not giving to the statutes of any na- 1898, guardedly answered: "Spanish fishtion extraterritorial effect. It is not treat- ing vessels attempting to violate blockade ing them as general maritime laws; but it is are subject, with crew, to capture, and any recognition of the historical fact that by such vessel or crew considered likely to aid common consent of mankind these rules have enemy may be detained." Bureau of Navibeen acquiesced in as of general obligation.gation Report of 1898, appx. 178. The admiOf that fact, we think, we may take judicial ral's despatch assumed that he was not au[712]notice. Foreign municipal laws must in-thorized, without express order, to arrest deed be proved as facts, but it is not so with the law of nations." The Scotia, 14 Wall. 170, 187, 188, sub nom. Sears v. The Scotia, 20 L. ed. 822, 825, 826.

coast fishermen peaceably pursuing their
calling; and the necessary implication and
evident intent of the response of the Navy
Department were that Spanish coast fishing
vessels and their crews should not be inter-
fered with, so long as they neither attempted
to violate the blockade, nor were considered

The position taken by the United States
during the recent war with Spain was quite
in accord with the rule of international law,
now generally recognized by civilized na-likely to aid the enemy.
tions, in regard to coast fishing vessels.

The Paquete Habana, as the record shows,
On April 21, 1898, the Secretary of the was a fishing sloop of 25 tons burden, sail-
Navy gave instructions to Admiral Samp-ing under the Spanish flag, running in and
son, commanding the North Atlantic Squad-out of Havana, and regularly engaged in fish-
ron, to "immediately institute a blockade of ing on the coast of Cuba. Her crew con-
the north coast of Cuba, extending from sisted of but three men, including the mas-
Cardenas on the east to Bahia Honda on the ter, and, according to a common usage in
west." Bureau of Navigation Report of coast fisheries, had no interest in the vessel,
1898, appx. 175. The blockade was immedi-but were entitled to two thirds of her catch,
ately instituted accordingly. On April 22
the President issued a proclamation declar-
ing that the United States had instituted
and would maintain that blockade, "in pur-
suance of the laws of the United States, and
the law of nations applicable to such cases."
30 Stat. at L. 1769. And by the act of Con-
gress of April 25, 1898, chap. 189, it was de-
clared that the war between the United
States and Spain existed on that day, and
had existed since and including April 21.
30 Stat. at L. 364.

On April 26, 1898, the President issued another proclamation which, after reciting the existence of the war as declared by Congress, contained this further recital: "It

the other third belonging to her Spanish owner, who, as well as the crew, resided in Havana. On her last voyage, she sailed from Havana along the coast of Cuba, about 200 miles, and fished for twenty-five days off the cape at the west end of the island, within the territorial waters of Spain, and was going back to Havana, with her cargo of live fish, when she was captured by one of the blockading squadron, on April 25, 1898. She had no arms or ammunition on board; she had no knowledge of the blockade, or even of the war, until she was stopped by a blockading vessel; she made no attempt to run the blockade, and no resistance at the time of the capture; nor was there any evi

333

[714]dence *whatever of likelihood that she or her ordinary exercise of discretion in the conduct crew would aid the enemy.

In the case of the Lola, the only differences in the facts were that she was a schooner of 35 tons burden, and had a crew of six men, including the master; that after leaving Havana, and proceeding some 200 miles along the coast of Cuba, she went on, about 100 miles farther, to the coast of Yucatan, and there fished for eight days; and that, on her return, when near Bahia Honda, on the coast of Cuba, she was captured, with her cargo of live fish, on April 27, 1898. These differences afford no ground for distinguishing the two cases.

of war.

It cannot be maintained "that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power."__That position was disallowed in Brown v. United States, 8 Cranch, 110, 128, 3 L. ed. 510, and Chief Justice Marshall said: "This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. The rule is in its nature flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary."

Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return for their toil and enterprise, two thirds of her catch, the other third going to her owner by way of compensation for her use. Each vessel went out from Havana to her fishing ground, and was captured when returning along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea, and kept alive on board. Although one of the vessels extended her fishing trip across the Yucatan channel and fished on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the rule of inter-property of our enemy will be applied by him

national law.

The two vessels and their cargoes were condemned by the district court as prize of war; the vessels were sold under its decrees; and it does not appear what became of the fresh fish of which their cargoes consisted.

Upon the facts proved in either case, it is the duty of this court, sitting as the highest prize court of the United States, and administering the law of nations, to declare and adjudge that the capture was unlawful and without probable cause; and it is therefore, in each case,

Ordered, that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the elaimant, with damages and costs.

(715) *Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting:

The question in that case related to the
confiscation of the property of the enemy on
land within our own territory, and it was
held that property so situated could not be
confiscated without an act of Congress. The
Chief Justice continued: "Commercial na-
tions in the situation of the United States
have always a considerable quantity of prop-
erty in the possession of their neighbors.
When war breaks out, the question, What
shall be done with enemy property in our
country?—is a *question rather of policy than[716]
of law. The rule which we apply to the

other questions of policy, it is proper for the
to the property of our citizens. Like all
consideration of a department which can
modify it at will; not for the consideration
of a department which can pursue only the
sideration of the legislature, not of the exec-
law as it is written. It is proper for the con-
utive or judiciary."

This case involves the capture of enemy's
property on the sea, and executive action,
and if the position that the alleged rule pro-
prio vigore limits the sovereign power in
war be rejected, then I understand the con-
tertion to be that, by reason of the existence
of the rule, the proclamation of April 26
must be read as if it contained the exemp
tion in terms, or the exemption must be al-
lowed because the capture of fishing vessels
of this class was not specifically authorized.

The preamble to the proclamation stated, it is true, that it was desirable that the war "should be conducted upon principles in harThe district court held these vessels mony with the present views of nations and and their cargoes liable because not "satis-sanctioned by their recent practice," but the fied that as a matter of law, without any or- reference was to the intention of the governdinance, treaty, or proclamation, fishing ves-ment "not to resort to privateering, but to sels of this class are exempt from seizure." adhere to the rules of the Declaration of This court holds otherwise, not because Paris;" and the proclamation spoke for itsuch exemption is to be found in any treaty, self. The language of the preamble did not legislation, proclamation, or instruction carry the exemption in terms, and the real granting it, but on the ground that the ves-question is whether it must be allowed besels were exempt by reason of an established rule of international law applicable to them, which it is the duty of the court to enforce. I am unable to conclude that there is any such established international rule, or that this court can properly revise action which must be treated as having been taken in the 334

cause not affirmatively withheld, or, in other
words, because such captures were not in
terms directed.

These records show that the Spanish sloop
Paquete Habana "was captured as a prize of
war by the U S. S. Castine" on April 25, and
"was delivered" by the Castine's commander

"to Rear Admiral Wm. T. Sampson (com- ! At the same time it is admitted that the manding the North Atlantic Squadron)," and thereupon "turned over" to a prize master with instructions to proceed to key West. And that the Spanish schooner Lola "was captured as a prize of war by the U. S. S. Dolphin." April 27, and "was delivered" by the Dolphin's commander "to Rear Admiral Wm. T. Sampson (commanding the North Atlantic Squadron)," and thereupon "turned over" to a prize master with instructions to proceed to Key West.

[717] *That the vessels were accordingly taken to Key West and there libeled, and that the decrees of condemnation were entered against them May 30.

alleged exemption does not apply "to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way;" and, further, that the exemption has not "been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce."

It will be perceived that the exceptions reduce the supposed rule to very narrow lim

It is impossible to concede that the Ad-its, requiring a careful examination of the miral ratified these captures in disregard of established international law and the proclamation, or that the President, if he had been of opinion that there was any infraction of law or proclamation, would not have intervened prior to condemnation.

The correspondence of April 28, 30, between the Admiral and the Secretary of the Navy, quoted from in the principal opinion, was entirely consistent with the validity of the captures.

The question put by the Admiral related to the detention as prisoners of war of the persons manning the fishing schooners "attempting to get into Havana." Noncombatants are not so detained except for special reasons. Sailors on board enemy's trading vessels are made prisoners because of their fitness for immediate use on ships of war. Therefore the Admiral pointed out the value of these fishing seamen to the enemy, and advised their detention. The Secretary replied that if the vessels referred to were "attempting to violate blockade" they were subject "with crew" to capture, and also that they might be detained if "considered likely to aid enemy." The point was whether these crews should be made prisoners of war. Of course they would be liable to be if involved in the guilt of blockade running, and the Secretary agreed that they might be on the other ground in the Admiral's discretion. All this was in accordance with the rules and usages of international law, with which, whether in peace or war, the naval service has always been necessarily familiar.

I come then to examine the proposition "that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with 18]their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in of fresh fish, are exempt from capture as prize of war."

This, it is said, is a rule "which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of treaty or other public act of their own government."

facts in order to ascertain its applicability; and the decision appears to me to go altogether too far in respect of dealing with captures directed or ratified by the officer in command.

But were these two vessels within the alleged exemption? They were of 25 and 35 tons burden respectively. They carried large tanks, in which the fish taken were kept alive. They were owned by citizens of Havana, and the owners and the masters and crew were to be compensated by shares of the catch. One of them had been 200 miles from Havana, off Cape San Antonio, for twentyfive days, and the other for eight days off the coast of Yucatan. They belonged, in short. to the class of fishing or coasting vessels of from 5 to 20 tons burden, and from 20 tons upwards, which, when licensed or enrolled as prescribed by the Revised Statutes, are declared to be vessels of the United States, and the shares of whose men, when the vessels are employed in fishing, are regulated by statute. They were engaged in what were substantially commercial ventures, and the mere fact that the fish were kept alive by contrivances *for that purpose-a practice[719 of considerable antiquity-did not render them any the less an article of trade than if they had been brought in cured.

I do not think that, under the circumstances, the considerations which have operated to mitigate the evils of war in respect of individual harvesters of the soil can properly be invoked on behalf of these hired vessels, as being the implements of like harvesters of the sea. Not only so as to the owners, but as to the masters and crews. The principle which exempts the husbandman and his instruments of labor exempts the industry in which he is engaged, and is not applicable in protection of the continuance of transactions of such character and extent as these.

In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right, and it is extended or denied as the exigency is believed to demand.

It is, said Sir William Scott, "a rule of comity only, and not of legal decision."

The modern view is thus expressed by Mr. Hall: "England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any state has accorded them immunity under circumstances of inconvenience to it

self. It is likely that all nations would now refrain from molesting them as a general rule, and would capture them so soon as any danger arose that they or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant them a more distinct exemption."

In the Crimean war, 1854-55, none of the orders in council, in terms, either exempted or included fishing vessels, yet the allied squadrons swept the Sea of Azof of all craft capable of furnishing the means of transportation, and the English admiral in the Gulf of Finland directed the destruction of all Russian coasting vessels not of sufficient value to be detained as prizes, except "boats or small craft which may be found empty at anchor, and not trafficking."

It is difficult to conceive of a law of the sea of universal obligation to which Great [720] Britain has not acceded. And I am not aware of adequate foundation for imputing to this country the adoption of any other than the English rule.

In his Lectures on International Law at the Naval Law College the late Dr. Freeman Snow laid it down that the exemption could not be asserted as a rule of international law. These lectures were edited by Commodore Stockton and published under the direction of the Secretary of the Navy in 1895, and, by that department, in a second edition, in 1898, so that in addition to the well-known merits of their author they possess the weight to be attributed to the official imprimatur. Neither our treaties nor settled practice are opposed to that conclusion.

In view of the circumstances surrounding the breaking out of the Mexican war, Commodore Conner, commanding the Home Squadron, on May 14, 1846, directed his officers, in respect of blockade, not to molest "Mexican boats engaged exclusively in fishing on any part of the coast," presumably small boats in proximity to the shore; while on the Pacific coast Commodore Stockton in the succeeding August ordered the capture of "all vessels under the Mexican flag." 336

The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with Mexico, in exempting fishermen, "unarmed and inhabiting unfortified towns, villages, or places," did not exempt fishing vessels from seizure as prize; and these captures evidence the convictions entertained and acted on in the late war with Spain.

It is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations may be persuasive, but not authoritative.

In my judgment, the rule is that exemp tion from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.

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MEMORANDA

OF

CASES DISPOSED OF WITHOUT OPINIONS.

(723)* MISSOURI, KANSAS & TEXAS RAILWAY COMPANY OF TEXAS, Plaintiff in Error, v. J. M. EVANS. [No. 78.]

In Error to the United States Circuit Court of Appeals for the Fifth Circuit.

Messrs. James Hagerman and J. M. Bryson for plaintiff in error. Messrs. Rush Taggart and H. Chilton for defendant in er

ror.

November 6, 1899. Dismissed with costs, on the authority of Mason v. United States,

ARTHUR S. LELAND et al., Petitioners, v."[724.
NATIONAL CASH REGISTER COMPANY. [No.
326.]

Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the First Circuit.

Mr. Frederick P. Fish for petitioners. Mr.
Lysander Hill for respondent.
October 16, 1899. Denied.

PERRY. [No. 386.]

136 U. S. 581, 34 L. ed. 545, 10 Sup. Ct. Rep. M. BOLLES & Co.. Petitioners, v. County of 1062; Hardee v. Wilson, 146 U. S. 179, 36 L. ed. 933, 13 Sup. Ct. Rep. 39; and Sipperley v. Smith, 155 U. S. 86, 39 L. ed. 79, 15 Sup. Ct. Rep. 15.

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EDWARD CLIFFORD, Appellant, v. CARL H.
RUEMPLER, Sheriff of Hudson County, N.
J. [No. 351.]

Appeal from the Circuit Court of the United States for the District of New Jersey.

Mr. John P. Stockton for appellant. Mr. James S. Erwin for appellee.

December 22, 1899. Order affirmed with

costs, on the authority of Brown v. New Jersey, 175 U. S. 172, ante, 119, 20 Sup. Ct. Rep. 77; and Clifford v. Heller, 172 U. S. 641, 43 L. ed. 1181, 19 Sup. Ct. Rep. 874.

W. J. FLIPPIN, Petitioner, v. F. J. KIMBALL
et al., Receivers, etc. [No. 287.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fourth Circuit.

Messrs. Edgar Allen, Robert Stiles, and
A. L. Holladay for petitioner. Messrs. R.
M. Hughes and J. 1. Doran for respondents.
October 16, 1899. Denied.
175 U. S. U. B., Book 44.

United States Circuit Court of Appeals for

Petition for a Writ of Certiorari to the

the Seventh Circuit.

Mr. George A. Sanders for petitioners.
Mr. S. P. Wheeler for respondent.
October 16, 1899. Denied.

L. BUCKI & SON LUMBER CO., Petitioner,
ATLANTIC LUMBER COMPANY. [No. 415.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.

Messrs. H. Bisbee and J. E. Padgett for petitioner. Mr. R. H. Liggett for respond. ent.

October 16, 1899. Denied.

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