The Paquete Habana - 175 U.S.

677 (1900)

At the !resent day, by the general consent of the ci)ili#ed nations of the $orld and inde!endently of any e(!ress treaty or other !ublic act, it is an established rule of international la$ that coast fishing )essels, $ith their i"!le"ents and su!!lies, cargoes and cre$s, unar"ed and honestly !ursuing their !eaceful calling of catching and bringing in fresh fish, are e(e"!t fro"

Syllabus Case

ca!ture as !ri#e of $ar. And this rule is one $hich !ri#e courts, ad"inistering the la$ of nations, are bound to ta*e udicial notice of, and to gi)e effect to, in the absence of any treaty or other !ublic act of their o$n go)ern"ent in relation to the "atter.

U.S. Supreme Court The Paquete Habana, 175 U.S. 677 (1900) The Paquete Habana Nos. 895-896 Ar ue! No"e#ber 7-8, 1899 $e%&!e! 'anuar( 8, 1900 175 U.S. 677 (1900) Syllabus Under the Act of Congress of March 3, 1891, c. 517, this Court has urisdiction of a!!eals fro" all final sentences and decrees in !ri#e causes, $ithout regard to the a"ount in dis!ute and $ithout any certificate of the district udge as to the i"!ortance of the !articular case. %nternational la$ is !art of our la$, and "ust be ascertained and ad"inistered by the courts of ustice of a!!ro!riate

At the brea*ing out of the recent $ar $ith S!ain, t$o fishing s"ac*s ++ the one a sloo!, ,3 feet long on the *eel and of -5 tons burden, and $ith a cre$ of three "en, and the other a schooner, 51 feet long on the *eel and of 35 tons burden, and $ith a cre$ of si( "en ++ $ere regularly engaged in fishing on the coast of Cuba, sailing under the S!anish flag, and each o$ned by a S!anish sub ect, residing in .a)ana/ her cre$, $ho also resided there, had no interest in the )essel, but $ere entitled to shares, a"ounting in all to t$o thirds, of her catch, the other third belonging to her o$ner, and her cargo consisted of fresh fish, caught by her cre$ fro" the sea, !ut on board as they $ere caught, and *e!t and sold ali)e. 0ach )essel left .a)ana on a coast fishing )oyage, and sailed along the coast of Cuba about t$o hundred "iles to the $est end of the island/ the sloo! there fished for t$enty+fi)e days in the territorial $aters of S!ain, and the schooner e(tended her fishing tri! a hundred 1age 175 U. S. 278 "iles farther across the 3ucatan Channel, and fished for eight days on the coast of 3ucatan. 4n her return, $ith her cargo of li)e fish, along the coast of Cuba, and $hen near .a)ana, each $as ca!tured by one of the United States bloc*ading s&uadron. 5either fishing )essel had any ar"s or a""unition on board, had any *no$ledge of the bloc*ade, or e)en of the $ar, until she $as sto!!ed by a bloc*ading )essel, "ade any atte"!t to run the bloc*ade, or any resistance at the ti"e of her ca!ture, nor $as there any e)idence that she, or her cre$, $as li*ely to aid the ene"y. Held that both ca!tures $ere unla$ful, and $ithout !robable cause.

urisdiction as often as &uestions of right de!ending u!on it are duly !resented for their deter"ination. 'or this !ur!ose, $here there is no treaty and no controlling e(ecuti)e or legislati)e act or udicial decision, resort "ust be had to the custo"s and usages of ci)ili#ed nations, and, as e)idence of these, to the $or*s of urists and co""entators, not for the s!eculations of their authors concerning $hat the la$ ought to be, but for trust$orthy e)idence of $hat the la$ really is. 6he cases are stated in the o!inion of the Court.

4fficial Su!re"e Court casela$ is only found in the !rint )ersion of the United States 7e!orts. 8ustia casela$ is !ro)ided for general infor"ational !ur!oses only, and "ay not reflect current legal de)elo!"ents, )erdicts or settle"ents. 9e "a*e no $arranties or guarantees about the accuracy, co"!leteness, or ade&uacy of the infor"ation contained on this site or infor"ation lin*ed to fro" this site. 1lease chec* official sources.

usages of ci)ili#ed nations, and, as e)idence of these, to the $or*s of urists and co""entators, not for the s!eculations of their authors concerning $hat the la$ ought to be, but for trust$orthy e)idence of $hat the la$ really is. At the !resent day, by the general consent of the ci)ili#ed nations of the $orld and inde!endently of any e(!ress treaty or other !ublic act, it is an established rule of international la$ that coast fishing )essels, $ith their i"!le"ents and su!!lies, cargoes and cre$s, unar"ed and honestly !ursuing their !eaceful calling of catching and bringing in fresh fish, are e(e"!t fro"

U.S. Supreme Court The Paquete Habana, 175 U.S. 677 (1900) The Paquete Habana

ca!ture as !ri#e of $ar. And this rule is one $hich !ri#e courts, ad"inistering the la$ of nations, are bound to ta*e udicial notice of, and to gi)e effect to, in the absence of any treaty or other !ublic act of their o$n go)ern"ent in relation to the "atter. At the brea*ing out of the recent $ar $ith S!ain, t$o fishing s"ac*s ++ the one a sloo!, ,3 feet long on the *eel and of -5 tons

Nos. 895-896 burden, and $ith a cre$ of three "en, and the other a schooner, 51 feet long on the *eel and of 35 tons burden, and $ith a cre$ Ar ue! No"e#ber 7-8, 1899 $e%&!e! 'anuar( 8, 1900 175 U.S. 677 (1900) APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA 1age 175 U. S. 278 Syllabus "iles farther across the 3ucatan Channel, and fished for eight days on the coast of 3ucatan. 4n her return, $ith her cargo of Under the Act of Congress of March 3, 1891, c. 517, this Court has urisdiction of a!!eals fro" all final sentences and decrees in !ri#e causes, $ithout regard to the a"ount in dis!ute and $ithout any certificate of the district udge as to the i"!ortance of the !articular case. %nternational la$ is !art of our la$, and "ust be ascertained and ad"inistered by the courts of ustice of a!!ro!riate urisdiction as often as &uestions of right de!ending u!on it are duly !resented for their deter"ination. 'or this !ur!ose, $here there is no treaty and no controlling e(ecuti)e or legislati)e act or udicial decision, resort "ust be had to the custo"s and li)e fish, along the coast of Cuba, and $hen near .a)ana, each $as ca!tured by one of the United States bloc*ading s&uadron. 5either fishing )essel had any ar"s or a""unition on board, had any *no$ledge of the bloc*ade, or e)en of the $ar, until she $as sto!!ed by a bloc*ading )essel, "ade any atte"!t to run the bloc*ade, or any resistance at the ti"e of her ca!ture, nor $as there any e)idence that she, or her cre$, $as li*ely to aid the ene"y. Held that both ca!tures $ere unla$ful, and $ithout !robable cause. 6he cases are stated in the o!inion of the Court. of si( "en ++ $ere regularly engaged in fishing on the coast of Cuba, sailing under the S!anish flag, and each o$ned by a S!anish sub ect, residing in .a)ana/ her cre$, $ho also resided there, had no interest in the )essel, but $ere entitled to shares, a"ounting in all to t$o thirds, of her catch, the other third belonging to her o$ner, and her cargo consisted of fresh fish, caught by her cre$ fro" the sea, !ut on board as they $ere caught, and *e!t and sold ali)e. 0ach )essel left .a)ana on a coast fishing )oyage, and sailed along the coast of Cuba about t$o hundred "iles to the $est end of the island/ the sloo! there fished for t$enty+fi)e days in the territorial $aters of S!ain, and the schooner e(tended her fishing tri! a hundred

M7. 8US6%C0 :7A3 deli)ered the o!inion of the Court. 6hese are t$o a!!eals fro" decrees of the ;istrict Court of the United States for the Southern ;istrict of 'lorida conde"ning t$o fishing )essels and their cargoes as !ri#e of $ar. 0ach )essel $as a fishing s"ac*, running in and out of .a)ana, and regularly engaged in fishing on the coast of Cuba/ sailed under the S!anish flag/ $as o$ned by a S!anish sub ect of Cuban birth, li)ing in the City of .a)ana/ $as co""anded by a sub ect of S!ain, also residing in .a)ana, and her "aster and cre$ had no interest in the )essel, but $ere entitled to shares, a"ounting in all to t$o+thirds, of her catch, the other third belonging to her o$ner. .er cargo consisted of fresh fish, caught by her cre$ fro" the sea, !ut on board as they $ere caught, and *e!t and sold ali)e. Until sto!!ed by the bloc*ading s&uadron, she had no *no$ledge of the e(istence of the $ar or of any bloc*ade. She had no ar"s or a""unition on board, and "ade no atte"!t to run the bloc*ade after she *ne$ of its e(istence, nor any resistance at the ti"e of the ca!ture.

=oth the fishing )essels $ere brought by their ca!tors into >ey 9est. A libel for the conde"nation of each )essel and her cargo as !ri#e of $ar $as there filed on A!ril -7, 1898/ a clai" $as inter!osed by her "aster on behalf of hi"self and the other "e"bers of the cre$, and of her o$ner/ e)idence $as ta*en, sho$ing the facts abo)e stated, and on May 3<, 1898, a final decree of conde"nation and sale $as entered, ?the court not being satisfied that as a "atter of la$, $ithout any ordinance, treaty, or !rocla"ation, fishing )essels of this class are e(e"!t fro" sei#ure.? 0ach )essel $as thereu!on sold by auction/ the Paquete Habana for the su" of @,9< and the L la for the su" of @8<<. 6here $as no other e)idence in the record of the )alue of either )essel or of her cargo. %t has been suggested in behalf of the United States that 1age 175 U. S. 28<

The Paquete Habana $as a sloo!, ,3 feet long on the *eel, this Court has no urisdiction to hear and deter"ine these a!!eals because the "atter in dis!ute in either case does not e(ceed 1age 175 U. S. 279 and of -5 tons burden, and had a cre$ of three Cubans, including the "aster, $ho had a fishing license fro" the S!anish go)ern"ent, and no other co""ission or license. She left .a)ana March -5, 1898, sailed along the coast of Cuba to Ca!e San Antonio at the $estern end of the island, and there fished for t$enty+fi)e days, lying bet$een the reefs off the ca!e, $ithin the territorial $aters of S!ain, and then started bac* for .a)ana, $ith a cargo of about ,< &uintals of li)e fish. 4n A!ril -5, 1898, about t$o "iles off Mariel, and ele)en "iles fro" .a)ana, she $as ca!tured by the United States gunboat Castine. The L la $as a schooner, 51 feet long on the *eel, and of 35 tons burden, and had a cre$ of si( Cubans, including the "aster, and no co""ission or license. She left .a)ana A!ril 11, 1898, and !roceeded to Ca"!eachy Sound, off 3ucatan, fished there eight days, and started bac* for .a)ana $ith a cargo of about 1<,<<< !ounds of li)e fish. 4n A!ril -2, 1898, near .a)ana, she $as sto!!ed by the United States stea"shi! Cin!innati" and $as $arned not to go into .a)ana, but $as told that she $ould be allo$ed to land at =ahia .onda. She then changed her course, and !ut for =ahia .onda, but on the ne(t "orning, $hen near that !ort, $as ca!tured by the United States stea"shi! D l#hin. 6he 8udiciary Acts of the United States, for a century after the organi#ation of the go)ern"ent under the Constitution, did i"!ose !ecuniary li"its u!on a!!ellate urisdiction. %n actions at la$ and suits in e&uity the !ecuniary li"it of the a!!ellate urisdiction of this Court fro" the circuit courts of the United States $as for a long ti"e fi(ed at @-<<<. Acts of Se!te"ber -,, 1789, c. -<, A --/ 1 Stat. 8,/ March 3, 18<3, c. ,</ ?an a!!eal shall be allo$ed to the Su!re"e Court fro" all final decrees of any district court in !ri#e causes, $here the "atter in dis!ute, e(clusi)e of costs, e(ceeds the su" or )alue of t$o thousand dollars, and shall be allo$ed, $ithout reference to the )alue of the "atter in dis!ute, on the certificate of the district udge that the ad udication in)ol)es a &uestion of general i"!ortance.? the su" or )alue of @-,<<<, and the district udge has not certified that the ad udication in)ol)es a &uestion of general i"!ortance. 6he suggestion is founded on A 295 of the 7e)ised Statutes, $hich !ro)ides that

Stat. -,,/ $ %d n &. O'den" 3 1et. 33/ 7e).Stat. AA 291, 29-. %n 1875, it $as raised to @5,<<<. Act of 'ebruary 12, 1875, c. 77, A 3/ 18 Stat. 312. And in 1889 this $as "odified by !ro)iding that, $here the udg"ent or decree did not e(ceed the su" of @5,<<<, this Court should ha)e a!!ellate urisdiction u!on the &uestion of the urisdiction of the circuit court, and u!on that &uestion only. Act of 'ebruary -5, 1889, c. -32, A 1/ -5 Stat. 293/ Pa%(e% &. O%)sby" 1,1 U. S. 81. As to cases of ad"iralty and "ariti"e urisdiction, including !ri#e causes, the 8udiciary Act of 1789, in A 9, )ested the original urisdiction in the district courts, $ithout regard to the su" or )alue in contro)ersy, and in A -1 !er"itted an a!!eal fro" the" to the circuit courts $here the "atter in dis!ute e(ceeded the su" or )alue of @3<<. 1 Stat. 77, 83, c. -</ The *etsey" 3 ;all. 2, 3 U. S. 12/ The A)iable Nan!y" 3 9heat. 5,2/St%att n &. +a%&is" 8 1et. ,, 33 U. S. 11. =y the Act of March 3, 18<3, c. ,<, a!!eals to the circuit court $ere !er"itted fro" all final decrees of a district court $here 1age 175 U. S. 281 the "atter in dis!ute e(ceeded the su" or )alue of @5<, and fro" the circuit courts to this Court in all cases ?of ad"iralty and "ariti"e urisdiction, and of !ri#e or no !ri#e? in $hich the "atter in dis!ute e(ceeded the su" or )alue of @-,<<<. - Stat. -,,/ +en(s &. Le,is" 3 Mason 5<3/ St%att n &. +a%&is" abo)e cited/ The Ad)i%al" 3 9all. 2<3, 7< U. S. 21-. 6he acts of March 3, 1823, c. 82, A 7, and 8une 3<, 182,, c. 17,, A 13, !ro)ided that a!!eals fro" the district courts in !ri#e causes should lie directly to this Court, $here the a"ount in contro)ersy e(ceeded @-,<<<, or ?on the certificate of the district udge that the ad udication in)ol)es a &uestion of difficulty and general i"!ortance.? 1- Stat. 72</ 13 Stat. 31<. 6he !ro)ision of the act of 18<3, o"itting the $ords ?and of !ri#e or no !ri#e,? $as reenacted in A 29- of the 7e)ised Statutes, and the !ro)ision of the act of 182,, concerning !ri#e causes, $as substantially reenacted in A 295 of the 7e)ised Statutes, already &uoted. =ut all this has been changed by the Act of March 3, 1891, c. 517, establishing the circuit courts of a!!eals and creating a ne$ and co"!lete sche"e of a!!ellate urisdiction, de!ending u!on the nature of the different cases, rather than u!on the !ecuniary a"ount in)ol)ed. -2 Stat. 8-2. =y that act, as this Court has declared, the entire a!!ellate urisdiction fro" the circuit and district courts of the United States $as distributed, ?according to the sche"e of the act,? bet$een this Court and the circuit courts of a!!eals thereby established, ?by designating the classes of cases? of $hich each of these courts $as to ha)e final urisdiction. M!Lish &. R --" 1,1 U. S.

221, 1,1 U. S. 222/ A)e%i!an C nst%u!ti n C . &. +a!(s n&ille Rail,ay" 1,8 U. S. 37-, 1,8 U. S. 38-/ Ca%ey &. H ust n . Te/as Rail,ay" 15< U. S. 17<, 15< U. S. 179. 6he intention of Congress, by the act of 1891, to "a*e the nature of the case, and not the a"ount in dis!ute, the test of the a!!ellate urisdiction of this Court fro" the district and circuit courts clearly a!!ears u!on e(a"ination of the leading !ro)isions of the act. Section , !ro)ides that no a!!eal, $hether by $rit of error or other$ise, shall hereafter be ta*en fro" a district court 1age 175 U. S. 28to a circuit court, but that all a!!eals, by $rit of error or other$ise, fro" the district courts ?shall only be sub ect to re)ie$? in this Court or in the circuit court of a!!eal ?as is hereinafter !ro)ided,? and ?the re)ie$ by a!!eal, by $rit of error, or other$ise? fro" the circuit courts, ?shall be had only? in this Court or in the circuit court of a!!eals, ?according to the !ro)isions of this act regulating the sa"e.? Section 5 !ro)ides that ?a!!eals or $rits of error "ay be ta*en fro" the district courts, or fro" the e(isting circuit courts, direct to the Su!re"e Court, in the follo$ing casesB? 'irst. ?%n any case in $hich the urisdiction of the court is in issue/ in such cases, the &uestion of urisdiction alone shall be certified to the Su!re"e Court fro" the court belo$ for decision.? 6his clause includes ?any case,? $ithout regard to a"ount, in $hich the urisdiction of the court belo$ is in issue, and differs in this res!ect fro" the act of 1889, abo)e cited. Second. ?'ro" the final sentences and decrees in !ri#e causes.? 6his clause includes the $hole class of ?the final sentences and decrees in !ri#e causes,? and o"its all !ro)isions of for"er acts regarding a"ount in contro)ersy, or certificate of a district udge.

6hird. ?%n cases of con)iction of a ca!ital or other$ise infa"ous cri"e.? 6his clause loo*s to the nature of the cri"e, and not to the e(tent of the !unish"ent actually i"!osed. A cri"e $hich "ight ha)e been !unished by i"!rison"ent in a !enitentiary is an infa"ous cri"e, e)en if the sentence actually !ronounced is of a s"all fine only. E/ Pa%te 0ils n"11, U. S. ,17, 11, U. S. ,-2. Conse&uently, such a sentence for such a cri"e $as sub ect to the a!!ellate urisdiction of this Court, under this clause, until this urisdiction, so far as regards infa"ous cri"es, $as transferred to the circuit court of a!!eals by the Act of 8anuary -<, 1897, c. 28. -9 Stat. ,9-. 'ourth. ?%n any case, that in)ol)es the construction or a!!lication of the Constitution of the United States.? 'ifth.

=y section 2 of the act of 1891, this Court is relie)ed of "uch of the a!!ellate urisdiction that it had before/ the a!!ellate urisdiction fro" the district and circuit courts ?in all cases other than those !ro)ided for in the !receding section of this act, unless other$ise !ro)ided by la$,? is )ested in the circuit court of a!!eals, and its decisions in ad"iralty cases, as $ell as in cases arising under the cri"inal la$s, and in certain other classes of cases, are "ade final, e(ce!t that that court "ay certify to this Court &uestions of la$, and that this Court "ay order u! the $hole case by $rit of certiorari. %t is settled that the $ords ?unless other$ise !ro)ided by la$,? in this section, refer only to !ro)isions of the sa"e act, or of conte"!oraneous or subse&uent acts, and do not include !ro)isions of earlier statutes. Lau O, *e, &. United States" 1,, U. S. ,7, 1,, U. S. 57/ Hubba%d &. S by" 1,2 U. S. 52/ A)e%i!an C nst%u!ti n C . &. +a!(s n&ille Rail,ay" 1,8 U. S. 37-, 1,8 U. S. 383. 6he act of 1891 no$here i"!oses a !ecuniary li"it u!on the a!!ellate urisdiction, either of this Court or of the circuit court of

?%n any case in $hich the constitutionality of any la$ of the United States, or the )alidity or construction of any treaty "ade under its authority, is dra$n in &uestion. ?

a!!eals, fro" a district or circuit court of the United States. 6he only !ecuniary li"it i"!osed is one of 1age 175 U. S. 28,

1age 175 U. S. 283 @1,<<< u!on the a!!eal to this Court of a case $hich has been once decided on a!!eal in the circuit court of a!!eals, and in Si(th. ?%n any case in $hich the Constitution or la$ of a state is clai"ed to be in contra)ention of the Constitution of the United States.? Section 1, of the act of 1891, after s!ecifically re!ealing section 291 of the 7e)ised Statutes and section 3 of the act of 0ach of these last three clauses, again, includes ?any case? of the class "entioned. 6hey all relate to $hat are co""only called federal &uestions, and cannot reasonably be construed to ha)e intended that the a!!ellate urisdiction of this Court o)er such &uestions should be restricted by any !ecuniary li"it ++ es!ecially in their connection $ith the succeeding sentence of the sa"e sectionB ?5othing in this act shall affect the urisdiction of the Su!re"e Court in cases a!!ealed fro" the highest court of a state, nor the construction of the statute !ro)iding for re)ie$ of such cases.? 9rits of error fro" this Court to re)ie$ the udg"ents of the highest court of a state u!on such &uestions ha)e ne)er been sub ect to any !ecuniary li"it. Act of Se!te"ber -,, 1789, c. -<, A -5/ 1 Stat. 85/ *uel &. 1an Ness" 8 9heat. 31-/ Act of 'ebruary 5, 1827, c. -8, A -/ 1, Stat. 382/ 7e).Stat. A 7<9. ?all acts and !arts of acts relating to a!!eals or $rits of error, inconsistent $ith the !ro)isions for re)ie$ by a!!eals or $rits of error in the !receding sections 5 and 2 of this act, are hereby re!ealed.? -2 Stat. 8-9, 83<. 6he ob ect of the s!ecific re!eal, as this Court has declared, $as to get rid of the !ecuniary li"it in the acts referred to. M!Lish &. R --" 1,1 U. S. 221, 1,1 U. S. 227. And, although neither section 29- nor section 295 of the 7e)ised Statutes is re!ealed by na"e, yet, ta*ing into consideration the general re!ealing clause, together $ith the affir"ati)e !ro)isions of the act, the case co"es $ithin the reason of the decision in an analogous case, in $hich this Court saidB 'ebruary 12, 1875, further !ro)ides that $hich the udg"ent of that court is not "ade final by section 2 of the act.

?6he !ro)isions relating to the sub ect "atter under consideration are, ho$e)er, so co"!rehensi)e, as $ell as so )ariant fro" those of for"er acts, that $e thin* the intention to substitute the one for the other is necessarily to be inferred, and "ust !re)ail.? Fis( &. Hena%ie" 1,- U. S. ,59, 1,- U. S. ,28. 6he decision in this Court in the recent case of United States &. Ride%" 123 U. S. 13-, affords an i"!ortant, if not controlling, !recedent. 'ro" the beginning of this century until the !assage of the act of 1891, both in ci)il and in cri"inal cases, &uestions of la$ u!on $hich t$o udges of the circuit court $ere di)ided in o!inion "ight be certified by the" to this Court for decision. Act of A!ril -9, 18<-, c. 31, A 2/ - Stat. 159/ 8une 1, 187-, c. -55, A 1/ 17 Stat.192/ 7e).Stat. AA 25<+25-, 293, 297/ Insu%an!e C . &. Dunha)" 11 9all. 1, 78 U. S. -1/ United States &. San'es" 1,, U. S. 31<, 1,, U. S. 3-<. =ut in United States &. Ride%" it $as ad udged by this Court that the act of 1891 had su!erseded and re!ealed the earlier acts authori#ing &uestions of la$ to be certified fro" the circuit court to this Court, and the grounds of that ad udication sufficiently a!!ear by 1age 175 U. S. 285 the state"ent of the effect of the act of 1891 in t$o !assages of that o!inionB

contro)ersy/? second, that the act, by its ter"s, its sco!e, and its ob)ious !ur!ose, ?furnishes the e(clusi)e rule in res!ect of a!!ellate urisdiction on a!!eal, $rit of error, or certificate.? As $as long ago said by Chief 8ustice Marshall, ?the s!irit as $ell as the letter of a statute "ust be res!ected, and $here the $hole conte(t of the la$ de"onstrates a !articular intent in the legislature to effect a certain ob ect, so"e degree of i"!lication "ay be called in to aid that intent.? Du% usseau &. United States" 2 Cranch 3<7, 1< U. S. 31,. And it is a $ell settled rule in the construction of statutes, often affir"ed and a!!lied by this Court, that, ?e)en $here t$o acts are not in e(!ress ter"s re!ugnant, yet if the latter act co)ers the $hole sub ect of the first, and e"braces ne$ !ro)isions, !lainly sho$ing that it $as intended as a substitute for the first act, it $ill o!erate as a re!eal of that act.? United States &. Tynen" 11 9all. 88, 78 U. S. 9-/ 2in' &. C %nell" 1<2 U. S. 395, 1<2 U. S. 392/ T%a!y &. Tu--ly" 13, U. S. -<2, 13, U. S. --3/ Fis( &. Hena%ie" 1,- U. S. ,59,1,- U. S. ,28/ Dist%i!t - C lu)bia &. Hutt n" 1,3 U. S. 18, 1,3 U. S. -7/ United States &. Healey" 12< U. S. 132, 12< U. S. 1,7. 9e are of o!inion that the act of 1891, u!on its face, read

?A!!ellate urisdiction $as gi)en in all cri"inal cases by $rit of error either fro" this Court or fro" the circuit courts of a!!eals, and in all ci)il cases by a!!eal or error, $ithout regard to the a"ount in contro)ersy, e(ce!t as to a!!eals or $rits of error to or fro" the circuit courts of a!!eals in cases not "ade final as s!ecified in A 2. . . . %t is true that re!eals by i"!lication are not fa)ored, but $e cannot esca!e the conclusion that, tested by its sco!e, its ob)ious !ur!ose, and its ter"s, the Act of March 3, 1891, co)ers the $hole sub ect "atter under consideration, and furnishes the e(clusi)e rule in res!ect of a!!ellate urisdiction on a!!eal, $rit of error, or certificate.? 123 U. S. 123 U.S. 138, 123 U. S. 1,<. 6hat udg"ent $as thus rested u!on t$o successi)e !ro!ositionsB first, that the act of 1891 gi)es a!!ellate urisdiction, either to this Court or to the circuit court of a!!eals, in all cri"inal cases, and in all ci)il cases ?$ithout regard to the a"ount in 9e are then brought to the consideration of the &uestion $hether, u!on the facts a!!earing in these records, the fishing s"ac*s $ere sub ect to ca!ture by the ar"ed )essels of the United States during the recent $ar $ith S!ain. 1age 175 U. S. 282 in the light of settled rules of statutory construction and of the decisions of this Court, clearly "anifests the intention of Congress to co)er the $hole sub ect of the a!!ellate urisdiction fro" the district and circuit courts of the United States, so far as regards in $hat cases, as $ell as to $hat courts, a!!eals "ay be ta*en, and to su!ersede and re!eal, to this e(tent, all the !ro)isions of earlier acts of Congress, including those that i"!osed !ecuniary li"its u!on such urisdiction, and, as !art of the ne$ sche"e, to confer u!on this Court urisdiction of a!!eals fro" all final sentences and decrees in !ri#e causes, $ithout regard to the a"ount in dis!ute, and $ithout any certificate of the district udge as to the i"!ortance of the !articular case.

=y an ancient usage a"ong ci)ili#ed nations, beginning centuries ago and gradually ri!ening into a rule of international la$, coast fishing )essels !ursuing their )ocation of catching and bringing in fresh fish ha)e been recogni#ed as e(e"!t, $ith their cargoes and cre$s, fro" ca!ture as !ri#e of $ar. 6his doctrine, ho$e)er, has been earnestly contested at the bar, and no co"!lete collection of the instances illustrating it is to be found, so far as $e are a$are, in a single !ublished $or*, although "any are referred to and discussed by the $riters on international la$, notable in - 4rtolan, 7egles %nternationales et ;i!lo"atie de la Mer C,th ed.D lib. 3, c. -, !!. 51+52/ in , Cal)o, ;roit %nternational C5th ed.D AA -327+-373/ in ;e =oec*, 1ro!riete 1ri)ee 0nne"ie sous 1a)illon 0nne"i, AA 191+192, and in .all, %nternational Ea$ C,th ed.D A 1,8. %t is therefore $orth the $hile to trace the history of the rule fro" the earliest accessible sources through the increasing recognition of it, $ith occasional setbac*s, to $hat $e "ay no$ ustly consider as its final establish"ent in our o$n country and generally throughout the ci)ili#ed $orld. 6he earliest acts of any go)ern"ent on the sub ect "entioned 1age 175 U. S. 287 in the boo*s either e"anated fro", or $ere a!!ro)ed by, a >ing of 0ngland. %n 1,<3 and 1,<2, .enry %F issued orders to his ad"irals and other officers, entitled ?Concerning Safety for 'isher"en ++ De Se!u%itate #% Pis!at %ibus.? =y an order of 4ctober -2, 1,<3, reciting that it $as "ade !ursuant to a treaty bet$een hi"self and the >ing of 'rance, and for the greater safety of the fisher"en of either country, and so that they could be, and carry on their industry, the "ore safely on the sea, and deal $ith each other in !eace, and that the 'rench >ing had consented that 0nglish fisher"en should be treated li*e$ise, it $as ordained that 'rench fisher"en "ight, during the then !ending season for the herring fishery, safely fish for herrings and all other fish fro" the harbor of :ra)elines and the %sland of 6hanet to the "outh of the Seine and the harbor of .autoune. And by an order of 4ctober 5, 1,<2, he too* into his safe conduct and under his s!ecial !rotection, guardianshi!, and defense all and singular the fisher"en of 'rance, 'landers, and =rittany, $ith their fishing )essels and boats, e)ery$here on the sea, through and $ithin his do"inions, urisdictions, and territories, in regard to their fishery, $hile sailing, co"ing, and going, and at their !leasure, freely and la$fully fishing, delaying, or !roceeding, and returning ho"e$ard $ith their catch of fish, $ithout any "olestation or hindrance $hate)er, and also their fish, nets, and other

!ro!erty and goods soe)er, and it $as therefore ordered that such fisher"en should not be interfered $ith, !ro)ided they should co"!ort the"sel)es $ell and !ro!erly, and should not, by color of these !resents, do or atte"!t, or !resu"e to do or atte"!t, anything that could !re udice the >ing, or his >ingdo" of 0ngland, or his sub ects. 8 7y"erGs 'oedera 332, ,51. 6he treaty "ade 4ctober -, 15-1, bet$een the 0"!eror Charles F and 'rancis % of 'rance, through their a"bassadors, recited that a great and fierce $ar had arisen bet$een the", because of $hich there had been, both by land and by sea, fre&uent de!redations and incursions on either side, to the gra)e detri"ent and intolerable in ury of the innocent 1age 175 U. S. 288 sub ects of each, and that a suitable ti"e for the herring fishery $as at hand, and, by reason of the sea being beset by the ene"y, the fisher"en did not dare to go out, $hereby the sub ect of their industry, besto$ed by hea)en to allay the hunger of the !oor, $ould $holly fail for the year unless it $ere other$ise !ro)ided ++ qu -it" ut #is!atu%ae ! )) ditas" ad #au#e%u) le&anda) -a)en a ! elesti nu)ine ! n!essa" !essa%e h ! ann )nin debeat" nisi alite% #% &ideatu%. And it $as therefore

agreed that the sub ects of each so)ereign, fishing in the sea or e(ercising the calling of fisher"en, could and "ight, until the end of the ne(t 8anuary, $ithout incurring any attac*, de!redation, "olestation, trouble, or hindrance soe)er, safely and freely, e)ery$here in the sea, ta*e herrings and e)ery other *ind of fish, the e(isting $ar by land and sea not$ithstanding/ and, further, that, during the ti"e aforesaid, no sub ect of either so)ereign should co""it, or atte"!t or !resu"e to co""it, any de!redation, force, )iolence, "olestation, or )e(ation to or u!on such fisher"en or their )essels, su!!lies, e&ui!"ents, nets, and fish, or other goods soe)er truly a!!ertaining to fishing. 6he treaty $as "ade at Calais, then an 0nglish !ossession. %t recites that the a"bassadors of the t$o so)ereigns "et there at the earnest re&uest of .enry F%%% and $ith his countenance and in the !resence of Cardinal 9olsey, his chancellor and re!resentati)e. And to$ards the end of the treaty, it is agreed that the said >ing and his said re!resentati)e, ?by $hose "eans the treaty stands concluded, shall be conser)ators of the agree"ents therein, as if thereto by both !arties elected and chosen.? , ;u"ont, Cor!s ;i!lo"ati&ue, !t. 1, !!. 35-, 353. 6he herring fishery $as !er"itted, in ti"e of $ar, by 'rench and ;utch edicts in 1532. =yn*ershoe*, Huaestiones 8uris 1ublicae, lib. 1, c. 3/ 1 0"erigon des Assurances, c. ,, section 9/ c. 1-, section 19, section 8.

'rance, fro" re"ote ti"es, set the e(a"!le of alle)iating the e)ils of $ar in fa)or of all coast fisher"en. %n the co"!ilation entitled ?Us et C utu)es de la Me%"? !ublished by Cleirac in 1221, and in the third !art thereof, containing ?Mariti"e or Ad"iralty 8urisdiction 33 la +u%isdi!ti n de la 1age 175 U. S. 289 Ma%ine u d4Ad)i%aute ++ as $ell in ti"e of !eace as in ti"e of $ar,? article 8< is as follo$sB ?6he ad"iral "ay in ti"e of $ar accord fishing truces ++ t%es&es #es!he%esses ++ to the ene"y and to his sub ects, !ro)ided that the ene"y $ill li*e$ise accord the" to 'rench"en.? Cleirac 5,,. Under this article, reference is "ade to articles ,9 and 79, res!ecti)ely, of the 'rench ordinances concerning the ad"iralty in 15,3 and 158,, of $hich it is but a re!roduction. , 1ardessus, Collection de Eois Mariti"es 319/ - 4rtolan, 51. And Cleirac adds, in a note, this &uotation fro" 'roissartGs ChroniclesB ?'isher"en on the sea, $hate)er $ar there $ere in 'rance and 0ngland, ne)er did har" to one another/ so they are friends, and hel! one another at need ++ Pes!heu%s su% )e%" quelque 'ue%%e qui s it en F%an!e et An'lete%%e" 5a)ais ne se -i%ent )al l4un a l4aut%e6 ain! is s nt a)is" et s4aydent l4un a l4aut%e au bes in.? 6he sa"e custo" $ould see" to ha)e !re)ailed in 'rance until to$ards the end of the se)enteenth century. 'or e(a"!le, in 1275, Eouis I%F and the States :eneral of .olland, by "utual agree"ent, granted to ;utch and 'rench fisher"en the liberty, undisturbed by their )essels of $ar, of fishing along the coasts of 'rance, .olland, and 0ngland. ;G.auteri)e et ;e Cussy, 6raites de Co""erce, !t. 1, )ol. -, !. -78. =ut by the ordinances of 1281 and 129-, the !ractice $as discontinued, because, Falin says, of the faithless conduct of the ene"ies of 'rance, $ho, abusing the good faith $ith $hich she had al$ays obser)ed the treaties, habitually carried off her fisher"en, $hile their o$n fished in safety. - Falin sur lG4rdonnance de la Marine C1772D 289, 29</ - 4rtolan 5-/ ;e =oec*, A 19-. 6he doctrine $hich e(e"!ts coast fisher"en, $ith their )essels and cargoes, fro" ca!ture as !ri#e of $ar, has been fa"iliar to the United States fro" the ti"e of the 9ar of %nde!endence.

4n 8une 5, 1779, Eouis IF%., our ally in that $ar, addressed a letter to his ad"iral, infor"ing hi" that the $ish he had al$ays had of alle)iating, as far as he could, the hardshi!s of $ar, had directed his attention to that class of his sub ects 1age 175 U. S. 29< $hich de)oted itself to the trade of fishing, and had no other "eans of li)elihood/ that he had thought that the e(a"!le $hich he should gi)e to his ene"ies, and $hich could ha)e no other source than the senti"ents of hu"anity $hich ins!ired hi", $ould deter"ine the" to allo$ to fisher"en the sa"e facilities $hich he should consent to grant, and that he had therefore gi)en orders to the co""anders of all his shi!s not to disturb 0nglish fisher"en, nor to arrest their )essels laden $ith fresh fish, e)en if not caught by those )essels/ !ro)ided they had no offensi)e ar"s, and $ere not !ro)ed to ha)e "ade any signals creating a sus!icion of intelligence $ith the ene"y, and the ad"iral $as directed to co""unicate the >ingGs intentions to all officers under his control. =y a royal order in council of 5o)e"ber 2, 178<, the for"er orders $ere confir"ed, and the ca!ture and ranso", by a 'rench cruiser, of The + hn and Sa%ah" an 0nglish )essel, co"ing fro" .olland, laden $ith fresh fish, $ere !ronounced to be illegal. - Code des 1rises Ced. 178,D 7-1, 9<1, 9<3. A"ong the standing orders "ade by Sir 8a"es Marriott, 8udge of the 0nglish .igh Court of Ad"iralty, $as one of A!ril 11, 178<, by $hich it $as ?ordered that all causes of !ri#e of fishing boats or )essels ta*en fro" the ene"y "ay be consolidated in one "onition, and one sentence or interlocutory, if under fifty tons burthen, and not "ore than si( in nu"ber.? MarriottGs 'or"ulary ,. =ut by the state"ents of his successor, and of both 'rench and 0nglish $riters, it a!!ears that 0ngland, as $ell as 'rance, during the A"erican 7e)olutionary 9ar, abstained fro" interfering $ith the coast fisheries. The 7 un' +a! b and + hanna" 1 C. 7ob. -</ - 4rtolan 53/ .all, A 1,8. %n the treaty of 1785 bet$een the United States and 1russia, article -3 C$hich $as !ro!osed by the A"erican Co""issioners, 8ohn Ada"s, =en a"in 'ran*lin, and 6ho"as 8efferson, and is said to ha)e been dra$n u! by 'ran*linD, !ro)ided that if $ar should arise bet$een the contracting !arties, ?all $o"en and children, scholars of e)ery faculty, culti)ators of the earth, artisans, "anufacturers, and fisher"en,

1age 175 U. S. 291 unar"ed and inhabiting unfortified to$ns, )illages, or !laces, and in general all others $hose occu!ations are for the co""on subsistence and benefit of "an*ind, shall be allo$ed to continue their res!ecti)e e"!loy"ents, and shall not be "olested in their !ersons, nor shall their houses or goods be burnt or other$ise destroyed, nor their fields $asted by the ar"ed force of the ene"y, into $hose !o$er, by the e)ents of $ar, they "ay ha!!en to fall/ but if anything is necessary to be ta*en fro" the" for the use of such ar"ed force, the sa"e shall be !aid for at a reasonable !rice.? 8 Stat. 92/ 1 >ent Co". 91, note/ 9heaton, .istory of the Ea$ of 5ations, 3<2, 3<8. .ere $as the clearest e(e"!tion fro" hostile "olestation or sei#ure of the !ersons, occu!ations, houses, and goods of unar"ed fisher"en inhabiting unfortified !laces. 6he article $as re!eated in the later treaties bet$een the United States and 1russia of 1799 and 18-8. 8 Stat. 17,, 38,. And ;ana, in a note to his edition of 9heatonGs %nternational Ea$s, saysB ?%n "any treaties and decrees, fisher"en catching fish as an article of food are added to the class of !ersons $hose occu!ation is not to be disturbed in $ar.? 9heaton, %nternational Ea$ C8th ed.D A 3,5, note 128. Since the United States beca"e a nation, the only serious interru!tions, so far as $e are infor"ed, of the general recognition of the e(e"!tion of coast fishing )essels fro" hostile ca!ture, arose out of the "utual sus!icions and recri"inations of 0ngland and 'rance during the $ars of the 'rench 7e)olution.

4n 8anuary -,, 1798, the 0nglish go)ern"ent by e(!ress order instructed the co""anders of its shi!s to sei#e 'rench and ;utch fisher"en $ith their boats. 2 Martens, 7ecueil des 6raites C-d ed.D 5<5/ 2 Schoell, .istoire des 6raites, 119/ - 4rtolan, 53. After the !ro"ulgation of that order, Eord Sto$ell Cthen Sir 9illia" ScottD in the .igh Court of Ad"iralty of 0ngland conde"ned s"all ;utch fishing )essels as !ri#e of $ar. %n one case, the ca!ture $as in A!ril, 1798, and the decree $as "ade 5o)e"ber 13, 1798. The 7 un' +a! b and + hanna" 1 C. 7ob. -<. %n another case, the decree $as "ade August -3, 1799. The N ydt $eda!ht" - C. 7ob. 137, note. 'or the year 18<<, the orders of the 0nglish and 'rench go)ern"ents and the corres!ondence bet$een the" "ay be found in boo*s already referred to. 2 Martens 5<3+51-/ 2 Schoell, 118+1-</ - 4rtolan 53, 5,. 6he doings for that year "ay be su""ed u! as follo$sB on March -7, 18<<, the 'rench go)ern"ent, un$illing to resort to re!risals, reenacted the orders gi)en by Eouis IF% in 178<, abo)e "entioned, !rohibiting any sei#ure by the 'rench shi!s of 0nglish fisher"en, unless ar"ed or !ro)ed to ha)e "ade signals to the ene"y. 4n May 3<, 18<<, the 0nglish go)ern"ent, ha)ing recei)ed notice of that action of the 'rench go)ern"ent, re)o*ed its order of 8anuary -,, 1798. =ut soon after$ard, the 0nglish go)ern"ent co"!lained that 'rench fishing boats had been "ade into fireboats at 'lushing, as $ell as that the 'rench go)ern"ent had i"!ressed and had sent to =rest, to ser)e in its flotilla, 'rench fisher"en and their boats, e)en those $ho" the 0nglish had released on condition of their not ser)ing, and on 8anuary -1, 18<1, su""arily re)o*ed its last order, and again !ut in force its order of 8anuary -,, 1798. 4n 'ebruary 12, 18<1, 5a!oleon =ona!arte, then 'irst Consul, directed the 'rench co""issioner at Eondon to return at once to 'rance, first declaring to the 0nglish go)ern"ent that its conduct, ?contrary to all the usages of ci)ili#ed nations, and to the co""on la$ $hich go)erns the", e)en in ti"e of $ar, ga)e to the

%n the first years of those $ars, 0ngland ha)ing authori#ed the ca!ture of 'rench fisher"en, a decree of the 'rench 5ational Con)ention of 4ctober -, 1793, directed the e(ecuti)e !o$er ?to !rotest against this conduct, theretofore $ithout e(a"!le/ to reclai" the fishing boats sei#ed/ and, in case of refusal, to resort to re!risals.? =ut in 8uly, 1792, the Co""ittee of 1ublic Safety ordered the release of 0nglish fisher"en sei#ed under the for"er decree, ?not considering the" as !risoners of $ar.? La N st%a Se'n %a de la Piedad C18<1D cited belo$/ - ;e Cussy, ;roit Mariti"e, 12,, 125/ 1 Masse, ;roit Co""ercial C-d ed.D -22, -27.

e(isting $ar a character of rage and bitterness $hich destroyed e)en the relations usual in a loyal $ar, ? 1age 175 U. S. 293 and ?tended only to e(as!erate the t$o nations, and to !ut off the ter" of !eace,? and that the 'rench go)ern"ent, ha)ing al$ays "ade it ?a "a(i" to alle)iate as "uch as !ossible the e)ils of $ar, could not thin*, on its !art, of rendering $retched fisher"en )icti"s

1age 175 U. S. 29-

of a !rolongation of hostilities, and $ould abstain fro" all re!risals.?

4n March 12, 18<1, the Addington Ministry, ha)ing co"e into !o$er in 0ngland, re)o*ed the orders of its !redecessors against the 'rench fisher"en, "aintaining, ho$e)er, that ?the freedo" of fishing $as no$ise founded u!on an agree"ent, but u!on a si"!le concession,? that ?this concession $ould be al$ays subordinate to the con)enience of the "o"ent,? and that ?it $as ne)er e(tended to the great fishery, or to co""erce in oysters or in fish.? And the freedo" of the coast fisheries $as again allo$ed on both sides. 2 Martens 51,/ 2 Schoell 1-1/ - 4rtolan, 5,/ Manning, Ea$ of 5ations CA"osG ed.D -<2. Eord Sto$ellGs udg"ent in The 7 un' +a! b and + hanna" 1 C. 7ob. -<, abo)e cited, $as "uch relied on by the counsel for the United States, and deser)es careful consideration. 6he )essel there conde"ned is described in the re!ort as ?a s"all ;utch fishing )essel ta*en A!ril, 1798, on her return fro" the ;ogger ban* to .olland,? and Eord Sto$ell, in deli)ering udg"ent, saidB ?%n for"er $ars, it has not been usual to "a*e ca!tures of these s"all fishing )essels/ but this rule $as a rule of co"ity only, and not of legal decision/ it has !re)ailed fro" )ie$s of "utual acco""odation bet$een neighboring countries, and fro" tenderness to a !oor and industrious order of !eo!le. %n the !resent $ar, there has, % !resu"e, been sufficient reason for changing this "ode of treat"ent, and as they are brought before "e for "y udg"ent, they "ust be referred to the general !rinci!les of this Court/ they fall under the character and descri!tion of the last class of cases ++ that is, of shi!s constantly and e(clusi)ely e"!loyed in the ene"yGs trade.? And he addedB ?%t is a further satisfaction to "e in gi)ing this udg"ent to obser)e that the facts also bear strong "ar*s of a false and fraudulent transaction.? 1age 175 U. S. 29, =oth the ca!ture and the conde"nation $ere $ithin a year after the order of the 0nglish go)ern"ent of 8anuary -,, 1798, instructing the co""anders of its shi!s to sei#e 'rench and ;utch fishing )essels, and before any re)ocation of that order. Eord Sto$ellGs udg"ent sho$s that his decision $as based u!on the order of 1798, as $ell as u!on strong e)idence of fraud. 5othing "ore $as ad udged in the case.

=ut so"e e(!ressions in his o!inion ha)e been gi)en so "uch $eight by 0nglish $riters that it "ay be $ell to e(a"ine the" !articularly. 6he o!inion begins by ad"itting the *no$n custo" in for"er $ars not to ca!ture such )essels, adding, ho$e)er, ?but this $as a rule of co"ity only, and not of legal decision.? Assu"ing the !hrase ?legal decision? to ha)e been there used, in the sense in $hich courts are accusto"ed to use it, as e&ui)alent to ? udicial decision,? it is true that, so far as a!!ears, there had been no such decision on the !oint in 0ngland. 6he $ord ?co"ity? $as a!!arently used by Eord Sto$ell as synony"ous $ith courtesy or good$ill. =ut the !eriod of a hundred years $hich has since ela!sed is a"!ly sufficient to ha)e enabled $hat originally "ay ha)e rested in custo" or co"ity, courtesy or concession, to gro$, by the general assent of ci)ili#ed nations, into a settled rule of international la$. As $ell said by Sir 8a"es Mac*intoshB ?%n the !resent century, a slo$ and silent, but )ery substantial, "itigation has ta*en !lace in the !ractice of $ar, and in !ro!ortion as that "itigated !ractice has recei)ed the sanction of ti"e, it is raised fro" the ran* of "ere usage and beco"es !art of the la$ of nations.? ;iscourse on the Ea$ of 5ations 38/ 1 Miscellaneous 9or*s, 32<. 6he 'rench !ri#e tribunals, both before and after Eord Sto$ellGs decision, too* a $holly different )ie$ of the general &uestion. %n 178<, as already "entioned, an order in council of Eouis IF% had declared illegal the ca!ture by a 'rench cruiser of The + hn and Sa%ah" an 0nglish )essel co"ing fro" .olland, laden $ith fresh fish. And on May 17, 18<1, $here a 1ortuguese fishing )essel, $ith her cargo of fish, ha)ing no "ore cre$ than $as needed for her "anage"ent and for ser)ing the nets, on a tri! of se)eral days, had been ca!tured 1age 175 U. S. 295 in A!ril, 18<1, by a 'rench cruiser, three leagues off the coast of 1ortugal, the Council of 1ri#es held that the ca!ture $as contrary to ?the !rinci!les of hu"anity and the "a(i"s of international la$,? and decreed that the )essel, $ith the fish on board, or the net !roceeds of any that had been sold, should be restored to her "aster. La N st%a Se'n %a de la Piedad" -5 Merlin, 8uris!rudence, 1rise Mariti"e, A 3, arts. 1, 3/ S.C. 1 1istoye et ;u)erdy, 1rises Mariti"es 331/ - ;e Cussy, ;roit Mariti"e 122.

10

6he 0nglish go)ern"ent, soon after$ards, "ore than once un&ualifiedly !rohibited the "olestation of fishing )essels e"!loyed in catching and bringing to "ar*et fresh fish. 4n May -3, 18<2, it $as ?ordered in council that all fishing )essels under 1russian and other colors, and engaged for the !ur!ose of catching fish and con)eying the" fresh to "ar*et, $ith their cre$s, cargoes, and stores, shall not be "olested on their fishing )oyages and bringing the sa"e to "ar*et, and that no fishing )essels of this descri!tion shall hereafter be "olested. And the 7ight .onorable the Eords Co""issioners of .is Ma estyGs 6reasury, the Eords Co""issioners of the Ad"iralty, and the 8udge of the .igh Court of Ad"iralty, are to gi)e the necessary directions herein as to the" "ay res!ecti)ely a!!ertain.? 5 C. 7ob. ,<8. Again, in the order in council of May -, 181<, $hich directed that ?all )essels $hich shall ha)e cleared out fro" any !ort so far under the control of 'rance or her allies as that =ritish )essels "ay not freely trade thereat, and $hich are e"!loyed in the $hale fishery, or other fishery of any descri!tion, sa)e as hereinafter e(ce!ted, and are returning, or destined to return either to the !ort fro" $hence they cleared, or to any other !ort or !lace at $hich the =ritish flag "ay not freely trade, shall be ca!tured and conde"ned together $ith their stores and cargoes, as !ri#e to the ca!tors,? there $ere e(ce!ted ?)essels e"!loyed in catching and con)eying fish fresh to "ar*et, such )essels not being fitted or !ro)ided for the curing of fish.? 0d$.Ad". a!!(. E. 9heaton, in his ;igest of the Ea$ of Mariti"e Ca!tures and 1ri#es, !ublished in 1815, $roteB ?%t has been usual

9heaton, Ca!tures, c. -, A 18. 6his state"ent clearly e(hibits 9heatonGs o!inion that the custo" had been a general one, as $ell as that it ought to re"ain so. .is assu"!tion that it had been abolished by the differences bet$een 'rance and 0ngland at the close of the last century $as hardly ustified by the state of things $hen he $rote, and has not since been borne out. ;uring the $ars of the 'rench 0"!ire, as both 'rench and 0nglish $riters agree, the coast fisheries $ere left in !eace. 4rtolan 5,/ ;e =oec* A 193/ .all A 1,8. ;e =oec* &uaintly and truly adds, ?and the incidents of 18<< and of 18<1 had no "orro$ ++n4eu%ent #as de lende)ain.? %n the $ar $ith Me(ico, in 18,2, the United States recogni#ed the e(e"!tion of coast fishing boats fro" ca!ture. %n !roof of this, counsel ha)e referred to records of the 5a)y ;e!art"ent, $hich this Court is clearly authori#ed to consult u!on such a &uestion. + nes &. United States" 137 U. S. -<-/ Unde%hill &. He%nande8" 128 U. S. -5<,128 U. S. -53. =y those records, it a!!ears that Co""odore Conner, co""anding the .o"e S&uadron bloc*ading the east coast of Me(ico, on May 1,, 18,2, $rote a letter fro" the shi! Cu)be%land" off =ra#os Santiago, near the southern !oint of 6e(as, to Mr. =ancroft, the Secretary of the 5a)y, enclosing a co!y of the co""odoreGs ?instructions to the co""anders of the )essels of the .o"e S&uadron, sho$ing the !rinci!les to be obser)ed in the bloc*ade of the Me(ican !orts,? one of $hich $as that ?Me(ican boats engaged in fishing on any !art of the coast $ill be allo$ed to !ursue their labors un"olested,? and that, on 8une 1<, 18,2, those instructions $ere a!!ro)ed by the 5a)y ;e!art"ent, of $hich Mr. =ancroft $as still the head, and continued to be until he $as a!!ointed Minister to 1age 175 U. S. 297

1age 175 U. S. 292 0ngland in Se!te"ber follo$ing. Although Co""odore ConnerGs instructions and the ;e!art"entGs a!!ro)al thereof do not in "ariti"e $ars to e(e"!t fro" ca!ture fishing boats and their cargoes, both fro" )ie$s of "utual acco""odation bet$een neighboring countries, and fro" tenderness to a !oor and industrious order of !eo!le. 6his custo", so honorable to the hu"anity of ci)ili#ed nations, has fallen into disuse, and it is re"ar*able that both 'rance and 0ngland "utually re!roach each other $ith that breach of good faith $hich has finally abolished it.? a!!ear in any conte"!orary !ublication of the go)ern"ent, they e)idently beca"e generally *no$n at the ti"e, or soon after, for it is stated in se)eral treatises on international la$ Cbeginning $ith 4rtolanGs second edition, !ublished in 1853D that the United States in the Me(ican $ar !er"itted the coast fisher"en of the ene"y to continue the free e(ercise of their industry. 4rtolan C-d ed.D ,9, note/ C,th ed.D 55/ , Cal)o C5th ed.D A -37-/ ;e =oec* A 19,/ .all C,th ed.D A 1,8.

11

As &ualifying the effect of those state"ents, the counsel for the United States relied on a !rocla"ation of Co""odore Stoc*ton, co""anding the 1acific S&uadron, dated August -<, 18,2, directing officers under his co""and to !roceed i""ediately to bloc*ade the !orts of Ma#atlan and San =las, on the $est coast of Me(ico, and saying to the", ?All neutral )essels that you "ay find there you $ill allo$ t$enty days to de!art, and you $ill "a*e the bloc*ade absolute against all )essels, e(ce!t ar"ed )essels of neutral nations. 3ou $ill ca!ture all )essels under the Me(ican flag that you "ay be able to ta*e.? 5a)y 7e!orts of 18,2, !!. 273, 27,. =ut there is nothing to sho$ that Co""odore Stoc*ton intended, or that the go)ern"ent a!!ro)ed, the ca!ture of coast fishing )essels. 4n the contrary, :eneral .allec*, in the !reface to his $or* on %nternational Ea$, or 7ules 7egulating the %ntercourse of states in 1eace and 9ar, !ublished in 1821, says that he began that $or* during the $ar bet$een the United States and Me(ico ?$hile ser)ing on the staff of the co""ander of the 1acific S&uadron,? and ?often re&uired to gi)e o!inions on &uestions of international la$ gro$ing out of the o!erations of the $ar.? .ad the !ractice of the bloc*ading s&uadron on the $est coast of Me(ico during that $ar, in regard to fishing )essels, differed fro" that a!!ro)ed by the 5a)y ;e!art"ent on the east coast, :eneral .allec* could hardly ha)e failed to "ention it $hen stating the !re)ailing doctrine u!on the sub ect as follo$sB 1age 175 U. S. 298 ?'ishing boats ha)e also, as a general rule, been e(e"!ted fro" the effects of hostilities. As early as 15-1, $hile $ar $as raging bet$een Charles F and 'rancis, a"bassadors fro" these t$o so)ereigns "et at Calais, then 0nglish, and agreed that, $hereas the herring fishery $as about to co""ence, the sub ects of both belligerents engaged in this !ursuit should be safe and un"olested by the other !arty, and should ha)e lea)e to fish as in ti"e of !eace. %n the $ar of 18<<, the =ritish and 'rench go)ern"ents issued for"al instructions e(e"!ting the fishing boats of each otherGs sub ects fro" sei#ure. 6his order $as subse&uently rescinded by the =ritish go)ern"ent on the alleged ground that so"e 'rench fishing boats $ere e&ui!!ed as gunboats, and that so"e 'rench fisher"en $ho had been !risoners in 0ngland had )iolated their !arole not to ser)e, and had gone to oin the 'rench fleet at =rest. Such e(cuses $ere e)idently "ere !rete(ts, and after so"e angry discussions had ta*en !lace on the sub ect, the =ritish restriction $as $ithdra$n and the freedo" of fishing $as again allo$ed on both sides. 'rench

$riters consider this e(e"!tion as an established !rinci!le of the "odern la$ of $ar, and it has been so recogni#ed in the 'rench courts, $hich ha)e restored such )essels $hen ca!tured by 'rench cruisers.? .allec* C1st ed.D c. -<, A -3. 6hat edition $as the only one sent out under the authorGs o$n aus!ices e(ce!t an abridg"ent, entitled ?0le"ents of %nternational Ea$ and the Ea$ of 9ar,? $hich he !ublished in 1822, as he said in the !reface, to su!!ly a suitable te(tboo* for instruction u!on the sub ect, ?not only in our colleges, but also in our t$o great national schools ++ the Military and 5a)al Acade"ies.? %n that abridg"ent, the state"ent as to fishing boats $as condensed as follo$sB ?'ishing boats ha)e also, as a general rule, been e(e"!ted fro" the effects of hostilities. 'rench $riters consider this e(e"!tion as an established !rinci!le of the "odern la$ of $ar, and it has been so recogni#ed in the 'rench courts, $hich ha)e restored such )essels $hen ca!tured by 'rench cruisers.? .allec*Gs 0le"ents, c. -<, A -1. %n the treaty of !eace bet$een the United States and Me(ico, 1age 175 U. S. 299 in 18,8, $ere inserted the )ery $ords of the earlier treaties $ith 1russia, already &uoted, forbidding the hostile "olestation or sei#ure in ti"e of $ar of the !ersons, occu!ations, houses, or goods of fisher"en. 9 Stat. 939, 9,<. 9hartonGs ;igest of the %nternational Ea$ of the United States, !ublished by authority of Congress in 1882 and 1887, e"bodies :eneral .allec*Gs fuller state"ent, abo)e &uoted, and contains nothing else u!on the sub ect. 3 9hart. %nt.Ea$ ;ig. A 3,5, !. 315/ - .allec* C0ng. eds. 1873 and 1878D !. 151. 'rance in the Cri"ean $ar in 185,, and in her $ars $ith %taly in 1859 and $ith :er"any in 187<, by general orders, forbade her cruisers to trouble the coast fisheries or to sei#e any )essel or boat engaged therein unless na)al or "ilitary o!erations should "a*e it necessary. Cal)o, A -37-/ .all, A 1,8/ - 4rtolan C,th ed.D ,,9/ 1< 7e)ue de ;roit %nternationale C1878D 399. Cal)o says that, in the Cri"ean 9ar,

12

?not$ithstanding her alliance $ith 'rance and %taly, 0ngland did not follo$ the sa"e line of conduct, and her cruisers in the Sea of A#of destroyed the fisheries, nets, fishing i"!le"ents, !ro)isions, boats, and e)en the cabins of the inhabitants of the coast.? Cal)o A -37-. And a 7ussian $riter on !ri#e la$ re"ar*s that those de!redations, ?ha)ing brought ruin on !oor fisher"en and inoffensi)e traders, could not but lea)e a !ainful i"!ression on the "inds of the !o!ulation, $ithout i"!airing in the least the resources of the 7ussian go)ern"ent.? >atcheno)s*y C1rattGs ed.D 1,8. =ut the conte"!oraneous re!orts of the 0nglish na)al officers !ut a different face on the "atter by stating that the destruction in &uestion $as !art of a "ilitary "easure, conducted $ith the coo!eration of the 'rench shi!s, and !ursuant to instructions of the 0nglish ad"iral ?to clear the seaboard of all fish stores, all fisheries and "ills, on a scale beyond the $ants of the neighboring !o!ulation, and indeed of all things destined to contribute to the "aintenance of the ene"yGs ar"y in the Cri"ea,? and that the !ro!erty destroyed consisted of large fishing establish"ents and storehouses of the 7ussian go)ern"ent, nu"bers of hea)y launches, and enor"ous &uantities of nets and gear, salted fish, corn, 1age 175 U. S. 7<< and other !ro)isions intended for the su!!ly of the 7ussian ar"y. United Ser)ice 8ournal of 1855, !t. 3, !!. 1<8+11-. Since the 0nglish orders in council of 18<2 and 181<, before &uoted, in fa)or of fishing )essels e"!loyed in catching and bringing to "ar*et fresh fish, no instance has been found in $hich the e(e"!tion fro" ca!ture of !ri)ate coast fishing )essels honestly !ursuing their !eaceful industry has been denied by 0ngland or by any other nation. And the 0"!ire of 8a!an Cthe last state ad"itted into the ran* of ci)ili#ed nationsD, by an ordinance !ro"ulgated at the beginning of its $ar $ith China in August, 189,, established !ri#e courts and ordained that ?the follo$ing ene"yGs )essels are e(e"!t fro" detention,? including in the e(e"!tion ?boats engaged in coast fisheries,? as $ell as ?shi!s engaged e(clusi)ely on a )oyage of scientific disco)ery, !hilanthro!hy, or religious "ission.? 6a*ahashi, %nternational Ea$ 11, 178.

%nternational la$ is !art of our la$, and "ust be ascertained and ad"inistered by the courts of ustice of a!!ro!riate urisdiction as often as &uestions of right de!ending u!on it are duly !resented for their deter"ination. 'or this !ur!ose, $here there is no treaty and no controlling e(ecuti)e or legislati)e act or udicial decision, resort "ust be had to the custo"s and usages of ci)ili#ed nations, and, as e)idence of these, to the $or*s of urists and co""entators $ho by years of labor, research, and e(!erience ha)e "ade the"sel)es !eculiarly $ell ac&uainted $ith the sub ects of $hich they treat. Such $or*s are resorted to by udicial tribunals not for the s!eculations of their authors concerning $hat the la$ ought to be, but for trust$orthy e)idence of $hat the la$ really is. Hilt n &. $uy t" 159 U. S. 113, 159 U. S. 123+12,, 159 U. S. -1,+-15. 9heaton !laces a"ong the !rinci!al sources international la$ ?te(t $riters of authority, sho$ing $hat is the a!!ro)ed usage of nations, or the general o!inion res!ecting their "utual conduct, $ith the definitions and "odifications introduced by general consent.? As to these, he forcibly obser)esB ?9ithout $ishing to e(aggerate the i"!ortance of these $riters or to substitute, in any case, their authority for the !rinci!les of reason, it "ay be affir"ed that they are generally 1age 175 U. S. 7<1 i"!artial in their udg"ent. 6hey are $itnesses of the senti"ents and usages of ci)ili#ed nations, and the $eight of their testi"ony increases e)ery ti"e that their authority is in)o*ed by states"en, and e)ery year that !asses $ithout the rules laid do$n in their $or*s being i"!ugned by the a)o$al of contrary !rinci!les.? 9heaton, %nternational Ea$ C8th ed.D, A 15. Chancellor >ent saysB ?%n the absence of higher and "ore authoritati)e sanctions, the ordinances of foreign states, the o!inions of e"inent states"en, and the $ritings of distinguished urists are regarded as of great consideration on &uestions not settled by con)entional la$. %n cases $here the !rinci!al urists agree, the !resu"!tion $ill be )ery great in fa)or of the solidity of their "a(i"s, and no

13

ci)ili#ed nation that does not arrogantly set all ordinary la$ and ustice at defiance $ill )enture to disregard the unifor" sense of the established $riters on international la$.? 1 >ent, Co". 18. %t $ill be con)enient, in the first !lace, to refer to so"e leading 'rench treatises on international la$, $hich deal $ith the &uestion no$ before us, not as one of the la$ of 'rance only, but as one deter"ined by the general consent of ci)ili#ed nations.

?%f one consulted only !ositi)e international la$ ++ 9e d% it des 'ens # siti- ++ Jby $hich is e)idently "eant international la$ e(!ressed in treaties, decrees, or other !ublic acts, as distinguished fro" $hat "ay be i"!lied fro" custo" or usageK, fishing boats $ould be sub ect, li*e all other trading )essels, to the la$ of !ri#e/ a sort of tacit agree"ent a"ong all 0uro!ean nations frees the" fro" it, and se)eral official declarations ha)e confir"ed this !ri)ilege in fa)or of Ga class of "en $hose hard and ill re$arded labor, co""only !erfor"ed by feeble and aged hands, is so foreign to the o!erations of $ar.G? - ;e Cussy 12,, 125.

?0ne"y shi!s,? say 1istoye and ;u)erdy, in their 6reatise on Mariti"e 1ri#es, !ublished in 1855, 4rtolan, in the fourth edition of his Re'les Inte%nati nales et Di#l )atie de la Me%" !ublished in 182,, after stating the general ?are good !ri#e. 5ot all, ho$e)er, for it results fro" the unani"ous accord of the "ariti"e !o$ers that an e(ce!tion should be "ade in fa)or of coast fisher"en. Such fisher"en are res!ected by the ene"y so long as they de)ote the"sel)es e(clusi)ely to fishing.? 1 1istoye et ;u)erdy, 6it. 2, c. 1, !. 31,. ;e Cussy, in his $or* on the 1hases and Eeading cases of the Mariti"e Ea$ of 5ations ++ Phases et Causes Celeb%es du D% it Ma%iti)e des Nati ns ++ !ublished in 1852, affir"s in the clearest language the e(e"!tion fro" ca!ture of fishing boats, saying, in lib. 1, 6it. 3, A 32, that ?in ti"e of $ar, the freedo" of fishing is res!ected by belligerents/ fishing boats are considered as neutral/ in la$, as in !rinci!le, they are not sub ect either to ca!ture or to confiscation,? and that in lib. -, c. -<, he $ill state ?se)eral facts and se)eral decisions 1age 175 U. S. 7<$hich !ro)e that the !erfect freedo" and neutrality of fishing boats are not illusory.? 1 ;e Cussy, !. -91. And in the cha!ter so referred to, entitled De la Libe%te et de la Neut%alite Pa%-aite de la Pe!he" besides references to the edicts and decisions in 'rance during the 'rench 7e)olution, is this general state"entB land, in regard to !easants and husband"en, to $ho" coast fisher"en "ay be li*ened, that it $ill doubtless continue to be follo$ed in "ariti"e $ars to co"e.? ?5e)ertheless, custo" ad"its an e(ce!tion in fa)or of boats engaged in the coast fishery/ these boats, as $ell as their cre$s, are free fro" ca!ture and e(e"!t fro" all hostilities. 6he coast+fishing industry is, in truth, $holly !acific, and of "uch less i"!ortance in regard to the national $ealth that it "ay !roduce than "ariti"e co""erce or the great fisheries. 1eaceful and $holly inoffensi)e, those $ho carry it on, a"ong $ho" $o"en are often seen, "ay be called the har)esters of the territorial seas, since they confine the"sel)es to gathering in the !roducts thereof/ they are for the "ost !art !oor fa"ilies $ho see* in this calling hardly "ore than the "eans of gaining their li)elihood.? - 4rtolan 51. Again, after obser)ing that there are )ery fe$ sole"n !ublic treaties $hich "a*e "ention of the i""unity of fishing boats in ti"e of $ar, he saysB ?'ro" another !oint of )ie$, the custo" $hich sanctions this i""unity is not so general that it can be considered as "a*ing an absolute international rule/ but it has been so often !ut in !ractice, and, besides, it accords so $ell $ith the rule in use in $ars on 1age 175 U. S. 7<3 rule that the )essels and cargoes of sub ects of the ene"y are la$ful !ri#e, saysB

14

- 4rtolan 55. 5o international urist of the !resent day has a $ider or "ore deser)ed re!utation than Cal)o, $ho, though $riting in 'rench, is a citi#en of the Argentine 7e!ublic e"!loyed in its di!lo"atic ser)ice abroad. %n the fifth edition of his great $or* on international la$, !ublished in 1892, he obser)es, in A -322, that the international authority of decisions in !articular cases by the !ri#e courts of 'rance, of 0ngland, and of the United States is lessened by the fact that the !rinci!les on $hich they are based are largely deri)ed fro" the internal legislation of each country, and yet the !eculiar character of "ariti"e $ars, $ith other considerations, gi)es to !ri#e uris!rudence a force and i"!ortance reaching beyond the li"its of the country in $hich it has !re)ailed. .e therefore !ro!oses here to grou! together a nu"ber of !articular cases !ro!er to ser)e as !recedents for the solution of gra)e &uestions of "ariti"e la$ in regard to the ca!ture of !ri)ate !ro!erty as !ri#e of $ar. %""ediately, in A -327, he goes on to sayB ?5ot$ithstanding the hardshi!s to $hich "ariti"e $ars sub ect !ri)ate !ro!erty, not$ithstanding the e(tent of the recogni#ed rights of belligerents, there are generally e(e"!ted, fro" sei#ure and ca!ture, fishing )essels.? %n the ne(t section, he addsB ?6his e(ce!tion is !erfectly usticiable ++ Cette e/!e#ti n est #a%-aite)ent 5usti!iable ? ++ that is to say, belonging to udicial urisdiction or cogni#ance. Eittre, ;ist. & !. 8usticiable/ Hans &. L uisiana" 13, U. S. 1, 13, U. S. 15. Cal)o then &uotes 4rtolanGs descri!tion, abo)e cited, of the nature of the coast+fishing industry, and !roceeds to refer in detail to so"e of the 'rench !recedents, to the acts of the 'rench and 0nglish go)ern"ents in the ti"es of Eouis IF% and of the 'rench 7e)olution, to the !osition of the United States in the $ar $ith Me(ico, and of 'rance in later $ars, and to the action of =ritish cruisers in the Cri"ean $ar. And he concludes his discussion of the sub ect, in A -373, by affir"ing the e(e"!tion of the coast fishery and !ointing out the distinction in this regard bet$een the coast fishery and

the $hale or the s!er" $hale, or for the seal or sea calf. 6hese shi!s are, in effect, considered as de)oted to o!erations $hich are at once co""ercial and industrial ++ Ces na&i%es s nt en e--e!t ! nside%es ! ))e ad nnes a des #e%ati ns a la - is ! ))e%!iales et indust%ielles.? 6he distinction is generally recogni#ed. - 4rtolan 5,/ ;e =oec* A 192/ .all, A 1,8. See als The Susa" - C. 7ob. -51/ The + han" 0d$.Ad". -75, and a!!(. E. 6he "odern :er"an boo*s on international la$, cited by the counsel for the a!!ellants, treat the custo" by $hich the )essels and i"!le"ents of coast fisher"en are e(e"!t fro" sei#ure and ca!ture as $ell established by the !ractice of nations. .effter A 137/ - >alterborn A -37, !. ,8</ =luntschli A 227/ 1erels A 37, !. -17. ;e =oec*, in his $or* on 0ne"y 1ri)ate 1ro!erty under 0ne"yGs 'lag ++ De la P% #%iete P%i&ee Enne)ie s us Pa&ill n Enne)i ++ !ublished in 188-, and the only continental treatise cited by the counsel for the United States, says in A 191B ?A usage )ery ancient, if not uni)ersal, $ithdra$s fro" the right of ca!ture ene"y )essels engaged in the coast fishery. 6he reason of this e(ce!tion is e)ident/ it $ould ha)e been too hard to snatch fro" !oor fisher"en the "eans of earning their bread. . . . 6he e(e"!tion includes the boats, the fishing i"!le"ents, and the cargo of fish.? Again, in A 195B ?%t is to be obser)ed that )ery fe$ treatises sanction in due for" this i""unity of the coast fishery. . . . 6here is, then, only a custo". =ut $hat is its characterL %s it so fi(ed and general that it can be raised to the ran* of a !ositi)e and for"al rule of international la$L? After discussing the state"ents of other $riters, he a!!ro)es the o!inion of 4rtolan Cas e(!ressed in the last sentence abo)e

1age 175 U. S. 7<, $hat he calls the great fishery, for cod, $hales, or seals, as follo$sB ?6he !ri)ilege of e(e"!tion fro" ca!ture, $hich is generally ac&uired by fishing )essels !lying their industry near the coasts, is not e(tended in any country to shi!s e"!loyed on the high sea in $hat is called the great fishery, such as that for the cod, for

&uoted fro" his $or*D and says that, at botto", it differs by a shade only fro" that for"ulated by Cal)o and by so"e of the :er"an urists, and that ?it is "ore e(act, 1age 175 U. S. 7<5

15

$ithout ignoring the i"!erati)e character of the hu"ane rule in &uestion ++ elle est #lus e/a!te" sans )e! nnait%e le !a%a!te%e i)#e%ati- de la %e'le d4hu)anite d nt il s4a'it.? And in A 192 he defines the li"its of the rule as follo$sB ?=ut the i""unity of the coast fishery "ust be li"ited by the reasons $hich ustify it. 6he reasons of hu"anity and of har"lessness ++ les %ais ns d4hu)anite et d4inn !uite ++ $hich "ilitate in its fa)or do not e(ist in the great fishery, such as the cod fishery/ shi!s engaged in that fishery de)ote the"sel)es to truly co""ercial o!erations, $hich e"!loy a large nu"ber of sea"en. And these sa"e reasons cease to be a!!licable to fishing )essels e"!loyed for a $arli*e !ur!ose, to those $hich conceal ar"s, or $hich e(change signals of intelligence $ith shi!s of $ar/ but only those ta*en in the fact can be rigorously treated/ to allo$ sei#ure by $ay of !re)enti)e $ould o!en the door to e)ery abuse, and $ould be e&ui)alent to a su!!ression of the i""unity.? 6$o recent 0nglish te(t $riters cited at the bar Cinfluenced by $hat Eord Sto$ell said a century sinceD hesitate to recogni#e that the e(e"!tion of coast fishing )essels fro" ca!ture has no$ beco"e a settled rule of international la$. 3et they both ad"it that there is little real difference in the )ie$s, or in the !ractice, of 0ngland and of other "ariti"e nations, and that no ci)ili#ed nation at the !resent day $ould "olest coast fishing )essels so long as they $ere !eaceably !ursuing their calling and there $as no danger that they or their cre$s "ight be of "ilitary use to the ene"y. .all, in A 1,8 of the fourth edition of his 6reatise on %nternational Ea$, after briefly s*etching the history of the !ositions occu!ied by 'rance and 0ngland at different !eriods, and by the United States in the Me(ican $ar, goes on to sayB ?%n the foregoing facts there is nothing to sho$ that "uch real difference has e(isted in the !ractice of the "ariti"e countries. 0ngland does not see" to ha)e been un$illing to s!are fishing )essels so long as they are har"less, and it does not a!!ear that any state has accorded the" i""unity under circu"stances of incon)enience to itself. %t is li*ely that all nations $ould no$ refrain fro" "olesting the" as a general rule, and $ould ca!ture 1age 175 U. S. 7<2

the" so soon as any danger arose that they or their cre$s "ight be of "ilitary use to the ene"y, and it is also li*ely that it is i"!ossible to grant the" a "ore distinct e(e"!tion.? So, 6. 8.Ea$rence, in A -<2 of his 1rinci!les of %nternational Ea$, saysB ?6he difference bet$een the 0nglish and the 'rench )ie$ is "ore a!!arent than real, for no ci)ili#ed belligerent $ould no$ ca!ture the boats of fisher"en !lying their a)ocation !eaceably in the territorial $aters of their o$n state, and no urist $ould seriously argue that their i""unity "ust be res!ected if they $ere used for $arli*e !ur!oses, as $ere the s"ac*s belonging to the northern !orts of 'rance $hen :reat =ritain ga)e the order to ca!ture the" in 18<<.? =ut there are $riters of )arious "ariti"e countries not yet cited too i"!ortant to be !assed by $ithout notice. 8an .elenus 'erguson, 5etherlands Minister to China, and !re)iously in the na)al and in the colonial ser)ice of his country, in his Manual of %nternational Ea$ for the Use of 5a)ies, Colonies, and Consulates, !ublished in 188-, $ritesB ?An e(ce!tion to the usage of ca!turing ene"yGs !ri)ate )essels at sea is the coast fishery. . . . 6his !rinci!le of i""unity fro" ca!ture of fishing boats is generally ado!ted by all "ariti"e !o$ers, and in actual $arfare they are uni)ersally s!ared so long as they re"ain har"less.? - 'erguson A -1-. 'erdinand Attl"ayr, ca!tain in the Austrian 5a)y, in his Manual for 5a)al 4fficers, !ublished at Fienna in 187- under the aus!ices of Ad"iral 6egetthoff, saysB ?7egarding the ca!ture of ene"y !ro!erty, an e(ce!tion "ust be "entioned, $hich is a uni)ersal custo". 'ishing )essels $hich belong to the ad acent coast, and $hose business yields only a necessary li)elihood, are, fro" considerations of hu"anity, uni)ersally e(cluded fro" ca!ture.? 1 Attl"ayr 21.

16

%gnacio de Megrin, 'irst 4fficial of the S!anish =oard of Ad"iralty, in his 0le"entary 6reatise on Mariti"e %nternational Ea$, ado!ted by royal order as a te(tboo* in the na)al schools of S!ain and !ublished at Madrid in 1873, concludes his cha!ter ?4f the la$fulness of !ri#es? $ith these $ordsB ?%t re"ains to be added that the custo" of all ci)ili#ed !eo!les e(cludes fro" ca!ture and fro" all *ind of hostility the 1age 175 U. S. 7<7 fishing )essels of the ene"yGs coasts, considering this industry as absolutely inoffensi)e, and deser)ing, fro" its hardshi!s and usefulness, of this fa)orable e(ce!tion. %t has been thus e(!ressed in )ery "any international con)entions, so that it can be dee"ed an incontestable !rinci!le of la$ at least a"ong enlightened nations.? 5egrin, 6it. 3, c. 1, A 31<. Carlos 6esta, ca!tain in the 1ortuguese 5a)y and !rofessor in the na)al school at Eisbon, in his $or* on 1ublic %nternational Ea$, !ublished in 'rench at 1aris in 1882, $hen discussing the general right of ca!turing ene"y shi!s, saysB ?5e)ertheless, in this, custo"ary la$ establishes an e(ce!tion of i""unity in fa)or of coast fishing )essels. 'ishing is so !eaceful an industry, and is generally carried on by so !oor and so hard$or*ing a class of "en, that it is li*ened, in the territorial $aters of the ene"yGs country, to the class of husband"en $ho gather the fruits of the earth for their li)elihood. 6he e(a"!les and !ractice generally follo$ed establish this hu"ane and beneficent e(ce!tion as an international rule, and this rule "ay be considered as ado!ted by custo"ary la$ and by all ci)ili#ed nations.? 6esta, !t. 3, c. -, in 18 =ibliothe&ue %nternational et ;i!lo"ati&ue, !!. 15-, 153. 5o less clearly and decisi)ely s!ea*s the distinguished %talian urist, 1as&uale 'iore, in the enlarged edition of his e(hausti)e $or* on 1ublic %nternational Ea$, !ublished at 1aris in 1885+1882, sayingB ?6he )essels of fisher"en ha)e been generally declared e(e"!t fro" confiscation because of the e"inently !eaceful ob ect of their hu"ble industry and of the !rinci!les of e&uity and hu"anity. 6he e(e"!tion includes the )essel, the i"!le"ents of fishing, and the cargo resulting fro" the fishery. 6his usage, e"inently hu"ane, goes bac* to )ery ancient ti"es, and although

the i""unity of the fishery along the coasts "ay not ha)e been sanctioned by treaties, yet it is considered today as so definitely established that the in)iolability of )essels de)oted to that fishery is !roclai"ed by the !ublicists as a !ositi)e rule of international la$, and is generally res!ected by the nations. Conse&uently $e shall lay do$n the follo$ing ruleB CaD )essels belonging to citi#ens of the ene"y state, and de)oted to fishing 1age 175 U. S. 7<8 along the coasts, cannot be sub ect to ca!ture/ CbD such )essels, ho$e)er, $ill lose all right of e(e"!tion $hen e"!loyed for a $arli*e !ur!ose/ CcD there "ay ne)ertheless be sub ected to ca!ture )essels de)oted to the great fishery in the ocean, such as those e"!loyed in the $hale fishery, or in that for seals or sea cal)es.? 3 'iore A 1,-1. 6his re)ie$ of the !recedents and authorities on the sub ect a!!ears to us abundantly to de"onstrate that, at the !resent day, by the general consent of the ci)ili#ed nations of the $orld, and inde!endently of any e(!ress treaty or other !ublic act, it is an established rule of international la$, founded on considerations of hu"anity to a !oor and industrious order of "en, and of the "utual con)enience of belligerent states, that coast fishing )essels, $ith their i"!le"ents and su!!lies, cargoes and cre$s, unar"ed and honestly !ursuing their !eaceful calling of catching and bringing in fresh fish, are e(e"!t fro" ca!ture as !ri#e of $ar. 6he e(e"!tion, of course, does not a!!ly to coast fisher"en or their )essels if e"!loyed for a $arli*e !ur!ose, or in such a $ay as to gi)e aid or infor"ation to the ene"y, nor $hen "ilitary or na)al o!erations create a necessity to $hich all !ri)ate interests "ust gi)e $ay. 5or has the e(e"!tion been e(tended to shi!s or )essels e"!loyed on the high sea in ta*ing $hales or seals or cod or other fish $hich are not brought fresh to "ar*et, but are salted or other$ise cured and "ade a regular article of co""erce. 6his rule of international la$ is one $hich !ri#e courts ad"inistering the la$ of nations are bound to ta*e udicial notice of, and to gi)e effect to, in the absence of any treaty or other !ublic act of their o$n go)ern"ent in relation to the "atter.

17

Cal)o, in a !assage already &uoted, distinctly affir"s that the e(e"!tion of coast fishing )essels fro" ca!ture is !erfectly usticiable, or, in other $ords, of udicial urisdiction or cogni#ance. Cal)o A -328. 5or are udicial !recedents $anting in su!!ort of the )ie$ that this e(e"!tion, or a so"e$hat analogous one, should be recogni#ed and declared by a !ri#e court. 1age 175 U. S. 7<9 =y the !ractice of all ci)ili#ed nations, )essels e"!loyed only for the !ur!oses of disco)ery or science are considered as e(e"!t fro" the contingencies of $ar, and therefore not sub ect to ca!ture. %t has been usual for the go)ern"ent sending out such an e(!edition to gi)e notice to other !o$ers, but it is not essential. 1 >ent, Co". 91, note/ .allec*, c. -<, A --/ Cal)o A -372/ .all A 138. %n 1813, $hile the United States $ere at $ar $ith 0ngland, an A"erican )essel on her )oyage fro" %taly to the United States $as ca!tured by an 0nglish shi!, and brought into .alifa(, in 5o)a Scotia, and, $ith her cargo, conde"ned as la$ful !ri#e by the court of )ice ad"iralty there. =ut a !etition for the restitution of a case of !aintings and engra)ings $hich had been !resented to and $ere o$ned by the Acade"y of Arts in 1hiladel!hia $as granted by ;r. Cro*e, the udge of that court, $ho saidB ?6he sa"e la$ of nations $hich !rescribes that all !ro!erty belonging to the ene"y shall be liable to confiscation has li*e$ise its "odifications and rela(ations of that rule. 6he arts and sciences are ad"itted a"ongst all ci)ili#ed nations as for"ing an e(ce!tion to the se)ere rights of $arfare, and as entitled to fa)or and !rotection. 6hey are considered not as the !eculiu" of this or of that nation, but as the !ro!erty of "an*ind at large, and as belonging to the co""on interests of the $hole s!ecies.? And he added that there had been ?innu"erable cases of the "utual e(ercise of this courtesy bet$een nations in for"er $ars.? The Ma%quis de S )e%ueles" Ste$art Ad". C5o)a ScotiaD ,,5, ,8-. %n 1821, during the $ar of the 7ebellion, a si"ilar decision $as "ade in the ;istrict Court of the United States for the 0astern ;istrict of 1ennsyl)ania in regard to t$o cases of boo*s belonging and consigned to a uni)ersity in 5orth Carolina. 8udge Cad$alader, in ordering these boo*s to be liberated fro" the custody of the "arshal and restored to the agent of the uni)ersity, saidB

?6hough this clai"ant, as the resident of a hostile district, $ould not be entitled to restitution of the sub ect of a co""ercial ad)enture in boo*s, the !ur!ose of the shi!"ent in &uestion gi)es to it a different 1age 175 U. S. 71< character. 6he United States, in !rosecuting hostilities for the restoration of their constitutional authority, are co"!elled incidentally to confiscate !ro!erty ca!tured at sea, of $hich the !roceeds $ould other$ise increase the $ealth of that district. =ut the United States are not at $ar $ith literature in that !art of their territory.? .e then referred to the decision in 5o)a Scotia, and to the 'rench decisions u!on cases of fishing )essels, as !recedents for the decree $hich he $as about to !ronounce, and he added that, $ithout any such !recedents, he should ha)e had no difficulty in liberating these boo*s. The A)elia" , 1hiladel!hia ,17. %n *% ,n &. United States" 8 Cranch 11<, there are e(!ressions of Chief 8ustice Marshall $hich, ta*en by the"sel)es, "ight see" inconsistent $ith the !osition abo)e "aintained, of the duty of a !ri#e court to ta*e udicial notice of a rule of international la$, established by the general usage of ci)ili#ed nations, as to the *ind of !ro!erty sub ect to ca!ture. =ut the actual decision in that case, and the leading reasons on $hich it $as based, a!!ear to us rather to confir" our !osition. 6he !rinci!al &uestion there $as $hether !ersonal !ro!erty of a =ritish sub ect, found on land in the United States at the beginning of the last $ar $ith :reat =ritain, could la$fully be conde"ned as ene"yGs !ro!erty on a libel filed by the attorney of the United States, $ithout a !ositi)e act of Congress. 6he conclusion of the Court $as ?that the !o$er of confiscating ene"y !ro!erty is in the legislature, and that the legislature has not yet declared its $ill to confiscate !ro!erty $hich $as $ithin our territory at the declaration of $ar.? 8 Cranch 1- U. S. 1-9. %n sho$ing that the declaration of $ar did not, of itself, )est the 0(ecuti)e $ith authority to order such !ro!erty to be confiscated, the Chief 8ustice relied on the "odern usages of nations, sayingB ?6he uni)ersal !ractice of forbearing to sei#e and confiscate debts and credits, the !rinci!le uni)ersally recei)ed that the right to the" re)i)es on the restoration of !eace, $ould see" to !ro)e that $ar is not an absolute confiscation of this !ro!erty, but si"!ly confers the right of confiscation,?

18

and againB ?6he "odern rule, then, $ould see" to be that tangible !ro!erty 1age 175 U. S. 711

?6his is not gi)ing to the statutes of any nation e(traterritorial effect. %t is not treating the" as general "ariti"e la$s, but it is recognition of the historical fact that, by co""on consent of "an*ind these rules ha)e been ac&uiesced in as of general obligation. 4f that fact $e thin* $e "ay ta*e udicial notice. 'oreign "unici!al la$s 1age 175 U. S. 71-

belonging to an ene"y, and found in the country at the co""ence"ent of $ar, ought not to be i""ediately confiscated, and in al"ost e)ery co""ercial treaty, an article is inserted sti!ulating for the right to $ithdra$ such !ro!erty.? 8 Cranch 1- U. S. 1-3+1-5. 6he decision that ene"y !ro!erty on land, $hich by the "odern usage of nations is not sub ect to ca!ture as !ri#e of $ar, cannot be conde"ned by a !ri#e court, e)en by direction of the 0(ecuti)e, $ithout e(!ress authority fro" Congress a!!ears to us to re!el any inference that coast fishing )essels, $hich are e(e"!t by the general consent of ci)ili#ed nations fro" ca!ture and $hich no act of Congress or order of the 1resident has e(!ressly authori#ed to be ta*en and confiscated, "ust be conde"ned by a !ri#e court for $ant of a distinct e(e"!tion in a treaty or other !ublic act of the go)ern"ent. 6o this sub ect in "ore than one as!ect are singularly a!!licable the $ords uttered by Mr. 8ustice Strong, s!ea*ing for this CourtB ?Undoubtedly no single nation can change the la$ of the sea. 6he la$ is of uni)ersal obligation, and no statute of one or t$o nations can create obligations for the $orld. Ei*e all the la$s of nations, it rests u!on the co""on consent of ci)ili#ed co""unities. %t is of force not because it $as !rescribed by any su!erior !o$er, but because it has been generally acce!ted as a rule of conduct. 9hate)er "ay ha)e been its origin, $hether in the usages of na)igation, or in the ordinances of "ariti"e states, or in both, it has beco"e the la$ of the sea only by the concurrent sanction of those nations $ho "ay be said to constitute the co""ercial $orld. Many of the usages $hich !re)ail, and $hich ha)e the force of la$, doubtless originated in the !ositi)e !rescri!tions of so"e single state, $hich $ere at first of li"ited effect, but $hich, $hen generally acce!ted, beca"e of uni)ersal obligation.? 6his recital $as follo$ed by s!ecific declarations of certain rules for the conduct of the $ar by sea, "a*ing no "ention of fishing )essels. 3< Stat. 177<. =ut the !rocla"ation clearly "anifests the general !olicy of the go)ern"ent to conduct the $ar in accordance $ith the !rinci!les of international la$ sanctioned by the recent !ractice of nations. "ust indeed be !ro)ed as facts, but it is not so $ith the la$ of nations.? The S! tia" 1, 9all. 17<, 81 U. S. 187+188. 6he !osition ta*en by the United States during the recent $ar $ith S!ain $as &uite in accord $ith the rule of international la$, no$ generally recogni#ed by ci)ili#ed nations, in regard to coast fishing )essels. 4n A!ril -1, 1898, the Secretary of the 5a)y ga)e instructions to Ad"iral Sa"!son, co""anding the 5orth Atlantic S&uadron, to ?i""ediately institute a bloc*ade of the north coast of Cuba, e(tending fro" Cardenas on the east to =ahia .onda on the $est.? =ureau of 5a)igation 7e!ort of 1898, a!!(. 175. 6he bloc*ade $as i""ediately instituted accordingly. 4n A!ril --, the 1resident issued a !rocla"ation declaring that the United States had instituted and $ould "aintain that bloc*ade ?in !ursuance of the la$s of the United States, and the la$ of nations a!!licable to such cases.? 3< Stat. 1729. And by the act of Congress of A!ril -5, 1898, c. 189, it $as declared that the $ar bet$een the United States and S!ain e(isted on that day, and had e(isted since and including A!ril -1, 3< Stat. 32,. 4n A!ril -2, 1898, the 1resident issued another !rocla"ation $hich, after reciting the e(istence of the $ar as declared by Congress, contained this further recitalB ?%t being desirable that such $ar should be conducted u!on !rinci!les in har"ony $ith the !resent )ie$s of nations and sanctioned by their recent !ractice.?

19

4n A!ril -8, 1898 Cafter the ca!ture of the t$o fishing )essels no$ in &uestionD, Ad"iral Sa"!son telegra!hed to the Secretary of the 5a)y as follo$sB ?% find that a large nu"ber of fishing schooners are atte"!ting to get into .a)ana fro" their fishing grounds near the 'lorida reefs and coasts. 6hey are generally "anned by e(cellent sea"en, belonging 1age 175 U. S. 713 to the "ariti"e inscri!tion of S!ain, $ho ha)e already ser)ed in the S!anish na)y, and $ho are liable to further ser)ice. As these trained "en are na)al reser)es, "ost )aluable to the S!aniards as artillery"en, either afloat or ashore, % reco""end that they should be detained !risoners of $ar, and that % should be authori#ed to deli)er the" to the co""anding officer of the ar"y at >ey 9est.? 6o that co""unication the Secretary of the 5a)y, on A!ril 3<, 1898, guardedly ans$eredB ?S!anish fishing )essels atte"!ting to )iolate bloc*ade are sub ect, $ith cre$, to ca!ture, and any such )essel or cre$ considered li*ely to aid ene"y "ay be detained.? =ureau of 5a)igation 7e!ort of 1898, a!!(. 178. 6he ad"iralGs dis!atch assu"ed that he $as not authori#ed, $ithout e(!ress order, to arrest coast fisher"en !eaceably !ursuing their calling, and the necessary i"!lication and e)ident intent of the res!onse of the 5a)y ;e!art"ent $ere that S!anish coast fishing )essels and their cre$s should not be interfered $ith so long as they neither atte"!ted to )iolate the bloc*ade nor $ere considered li*ely to aid the ene"y.

*no$ledge of the bloc*ade, or e)en of the $ar, until she $as sto!!ed by a bloc*ading )essel/ she "ade no atte"!t to run the bloc*ade, and no resistance at the ti"e of the ca!ture/ nor $as there any e)idence 1age 175 U. S. 71, $hate)er of li*elihood that she or her cre$ $ould aid the ene"y. %n the case of the L la" the only differences in the facts $ere that she $as a schooner of 35 tons burden, and had a cre$ of si( "en, including the "aster/ that, after lea)ing .a)ana and !roceeding so"e t$o hundred "iles along the coast of Cuba, she $ent on, about one hundred "iles farther, to the coast of 3ucatan, and there fished for eight days, and that, on her return, $hen near =ahia .onda on the coast of Cuba, she $as ca!tured, $ith her cargo of li)e fish, on A!ril -7, 1898. 6hese differences afford no ground for distinguishing the t$o cases. 0ach )essel $as of a "oderate si#e, such as is not unusual in coast fishing s"ac*s, and $as regularly engaged in fishing on the coast of Cuba. 6he cre$ of each $ere fe$ in nu"ber, had no interest in the )essel, and recei)ed, in return for their toil and enter!rise, t$o+thirds of her catch, the other third going to her o$ner by $ay of co"!ensation for her use. 0ach )essel $ent out fro" .a)ana to her fishing ground and $as ca!tured $hen returning along the coast of Cuba. 6he cargo of each consisted of fresh fish, caught by her cre$ fro" the sea and *e!t ali)e on board. Although one of the )essels e(tended her fishing tri! across the 3ucatan channel and fished on the coast of 3ucatan, $e cannot doubt that each $as engaged in the coast fishery, and not in a co""ercial ad)enture, $ithin the rule of international la$. 6he t$o )essels and their cargoes $ere conde"ned by the district court as !ri#e of $ar/ the )essels $ere sold under its decrees,

The Paquete Habana" as the record sho$s, $as a fishing sloo! of -5 tons burden, sailing under the S!anish flag, running in and out of .a)ana, and regularly engaged in fishing on the coast of Cuba. .er cre$ consisted of but three "en, including the "aster, and, according to a co""on usage in coast fisheries, had no interest in the )essel, but $ere entitled to t$o+thirds of her catch, the other third belonging to her S!anish o$ner, $ho, as $ell as the cre$, resided in .a)ana. 4n her last )oyage, she sailed fro" .a)ana along the coast of Cuba, about t$o hundred "iles, and fished for t$enty+fi)e days off the ca!e at the $est end of the island, $ithin the territorial $aters of S!ain, and $as going bac* to .a)ana $ith her cargo of li)e fish $hen she $as ca!tured by one of the bloc*ading s&uadron on A!ril -5, 1898. She had no ar"s or a""unition on board/ she had no

and it does not a!!ear $hat beca"e of the fresh fish of $hich their cargoes consisted. U!on the facts !ro)ed in either case, it is the duty of this Court, sitting as the highest !ri#e court of the United States and ad"inistering the la$ of nations, to declare and ad udge that the ca!ture $as unla$ful and $ithout !robable cause, and it is therefore, in each case O%de%ed" that the decree of the district court be re)ersed, and the !roceeds of the sale of the )essel, together $ith the !roceeds of any sale of her cargo, be restored to the clai"ant, $ith da"ages and costs.

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1age 175 U. S. 715 M7. C.%0' 8US6%C0 'UEE07, $ith $ho" concurred M7. 8US6%C0 .A7EA5 and M7. 8US6%C0 Mc>055A, dissentingB 6he district court held these )essels and their cargoes liable because not ?satisfied that, as a "atter of la$, $ithout any ordinance, treaty, or !rocla"ation, fishing )essels of this class are e(e"!t fro" sei#ure.?

&uestion rather of !olicy than of la$. 6he rule $hich $e a!!ly to the !ro!erty of our ene"y $ill be a!!lied by hi" to the !ro!erty of our citi#ens. Ei*e all other &uestions of !olicy, it is !ro!er for the consideration of a de!art"ent $hich can "odify it at $ill, not for the consideration of a de!art"ent $hich can !ursue only the la$ as it is $ritten. %t is !ro!er for the consideration of the legislature, not of the e(ecuti)e or udiciary.? 6his case in)ol)es the ca!ture of ene"yGs !ro!erty on the sea, and e(ecuti)e action, and if the !osition that the alleged rule e/

6his Court holds other$ise not because such e(e"!tion is to be found in any treaty, legislation, !rocla"ation, or instruction granting it, but on the ground that the )essels $ere e(e"!t by reason of an established rule of international la$ a!!licable to the" $hich it is the duty of the court to enforce. % a" unable to conclude that there is any such established international rule, or that this Court can !ro!erly re)ise action $hich "ust be treated as ha)ing been ta*en in the ordinary e(ercise of discretion in the conduct of $ar. %n cannot be "aintained ?that "odern usage constitutes a rule $hich acts directly u!on the thing itself by its o$n force, and not through the so)ereign !o$er.? 6hat !osition $as disallo$ed in *% ,n &. United States" 8 Cranch 11<, 1- U. S. 1-8, and Chief 8ustice Marshall saidB ?6his usage is a guide $hich the so)ereign follo$s or abandons at his $ill. 6he rule, li*e other !rece!ts of "orality, of hu"anity, and e)en of $isdo", is addressed to the udg"ent of the so)ereign, and although it cannot be disregarded by hi" $ithout oblo&uy, yet it "ay be disregarded. 6he rule is in its nature fle(ible. %t is sub ect to infinite "odification. %t is not an i""utable rule of la$, but de!ends on !olitical considerations $hich "ay continually )ary.? 6he &uestion in that case related to the confiscation of the !ro!erty of the ene"y on land $ithin our o$n territory, and it $as held that !ro!erty so situated could not be confiscated $ithout an act of Congress. 6he Chief 8ustice continuedB ?Co""ercial nations in the situation of the United States ha)e al$ays a considerable &uantity of !ro!erty in the !ossession of their neighbors. 9hen $ar brea*s out, the &uestion $hat shall be done $ith ene"y !ro!erty in our country is a 1age 175 U. S. 712

#% #%i &i' %e li"its the so)ereign !o$er in $ar be re ected, then % understand the contention to be that by reason of the e(istence of the rule, the !rocla"ation of A!ril -2 "ust be read as if it contained the e(e"!tion in ter"s, or the e(e"!tion "ust be allo$ed because the ca!ture of fishing )essels of this class $as not s!ecifically authori#ed. 6he !rea"ble to the !rocla"ation stated, it is true, that it $as desirable that the $ar ?should be conducted u!on !rinci!les in har"ony $ith the !resent )ie$s of nations and sanctioned by their recent !ractice,? but the reference $as to the intention of the go)ern"ent ?not to resort to !ri)ateering, but to adhere to the rules of the ;eclaration of 1aris,? and the !rocla"ation s!o*e for itself. 6he language of the !rea"ble did not carry the e(e"!tion in ter"s, and the real &uestion is $hether it "ust be allo$ed because not affir"ati)ely $ithheld ++ or, in other $ords, because such ca!tures $ere not in ter"s directed. 6hese records sho$ that the S!anish sloo! Paquete Habana ?$as ca!tured as a !ri#e of $ar by the U.S.S. Castine? on A!ril -5, and ?$as deli)ered? by the Castine4s co""ander ?to 7ear Ad"iral 9". 6. Sa"!son Cco""anding the 5orth Atlantic S&uadronD,? and thereu!on ?turned o)er? to a !ri#e "aster $ith instructions to !roceed to >ey 9est. And that the S!anish schooner L la ?$as ca!tured as a !ri#e of $ar by the U.S.S. D l#hin"? A!ril -7, and ?$as deli)ered? by the D l#hin4s co""ander ?to 7ear Ad"iral 9". 6. Sa"!son Cco""anding the 5orth Atlantic S&uadronD,? and thereu!on ?turned o)er? to a !ri#e "aster $ith instructions to !roceed to >ey 9est. 1age 175 U. S. 717 6hat the )essels $ere accordingly ta*en to >ey 9est and there libeled, and that the decrees of conde"nation $ere entered against the" May 3<.

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%t is i"!ossible to concede that the Ad"iral ratified these ca!tures in disregard of established international la$ and the !rocla"ation, or that the 1resident, if he had been of o!inion that there $as any infraction of la$ or !rocla"ation, $ould not ha)e inter)ened !rior to conde"nation. 6he corres!ondence of A!ril -8, 3<, bet$een the Ad"iral and the Secretary of the 5a)y, &uoted fro" in the !rinci!al o!inion, $as entirely consistent $ith the )alidity of the ca!tures.

6his, it is said, is a rule ?$hich !ri#e courts, ad"inistering the la$ of nations, are bound to ta*e udicial notice of, and to gi)e effect to, in the absence of treaty or other !ublic act of their o$n go)ern"ent.? At the sa"e ti"e, it is ad"itted that the alleged e(e"!tion does not a!!ly ?to coast fisher"en or their )essels if e"!loyed for a $arli*e !ur!ose or in such a $ay as to gi)e aid or infor"ation to the

6he &uestion !ut by the Ad"iral related to the detention as !risoners of $ar of the !ersons "anning the fishing schooners ?atte"!ting to get into .a)ana.? 5onco"batants are not so detained e(ce!t for s!ecial reasons. Sailors on board ene"yGs trading )essels are "ade !risoners because of their fitness for i""ediate use on shi!s of $ar. 6herefore the Ad"iral !ointed out the )alue of these fishing sea"en to the ene"y, and ad)ised their detention. 6he Secretary re!lied that if the )essels referred to $ere ?atte"!ting to )iolate bloc*ade,? they $ere sub ect ?$ith cre$? to ca!ture, and also that they "ight be detained if ?considered li*ely to aid ene"y.? 6he !oint $as $hether these cre$s should be "ade !risoners of $ar. 4f course, they $ould be liable to be if in)ol)ed in the guilt of bloc*ade running, and the Secretary agreed that they "ight be on the other ground in the Ad"iralGs discretion. All this $as in accordance $ith the rules and usages of international la$, $ith $hich, $hether in !eace or $ar, the na)al ser)ice has al$ays been necessarily fa"iliar. % co"e then to e(a"ine the !ro!osition ?that at the !resent day, by the general consent of the ci)ili#ed nations of the $orld and inde!endently of any e(!ress treaty or other !ublic act, it is an established rule of international la$, founded on considerations of hu"anity to a !oor and industrious order of "en, and of the "utual con)enience of belligerent states, that coast fishing )essels, $ith their i"!le"ents and su!!lies, 1age 175 U. S. 718

ene"y, nor $hen "ilitary or na)al o!erations create a necessity to $hich all !ri)ate interests "ust gi)e $ay,? and further that the e(e"!tion has not ?been e(tended to shi!s or )essels e"!loyed on the high sea in ta*ing $hales or seals, or cod or other fish $hich are not brought fresh to "ar*et, but are salted or other$ise cured and "ade a regular article of co""erce.? %t $ill be !ercei)ed that the e(ce!tions reduce the su!!osed rule to )ery narro$ li"its, re&uiring a careful e(a"ination of the facts in order to ascertain its a!!licability, and the decision a!!ears to "e to go altogether too far in res!ect of dealing $ith ca!tures directed or ratified by the officer in co""and. =ut $ere these t$o )essels $ithin the alleged e(e"!tionL 6hey $ere of t$enty+fi)e and thirty+fi)e tons burden, res!ecti)ely. 6hey carried large tan*s in $hich the fish ta*en $ere *e!t ali)e. 6hey $ere o$ned by citi#ens of .a)ana, and the o$ners and the "asters and cre$ $ere to be co"!ensated by shares of the catch. 4ne of the" had been t$o hundred "iles fro" .a)ana, off Ca!e San Antonio, for t$enty+fi)e days, and the other for eight days off the coast of 3ucatan. 6hey belonged, in short, to the class of fishing or coasting )essels of fro" fi)e to t$enty tons burden, and fro" t$enty tons u!$ards, $hich, $hen licensed or enrolled as !rescribed by the 7e)ised Statutes, are declared to be )essels of the United States, and the shares of $hose "en, $hen the )essels are e"!loyed in fishing, are regulated by statute. 6hey $ere engaged in $hat $ere substantially co""ercial )entures, and the "ere fact that the fish $ere *e!t ali)e by contri)ances 1age 175 U. S. 719

cargoes, and cre$s, unar"ed, and honestly !ursuing their !eaceful calling of catching and bringing in of fresh fish, are e(e"!t fro" ca!ture as !ri#e of $ar.?

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for that !ur!ose ++ a !ractice of considerable anti&uity ++ did not render the" any the less an article of trade than if they had been brought in cured. % do not thin* that, under the circu"stances, the considerations $hich ha)e o!erated to "itigate the e)ils of $ar in res!ect of indi)idual har)esters of the soil can !ro!erly be in)o*ed on behalf of these hired )essels as being the i"!le"ents of li*e har)esters of the sea. 5ot only so as to the o$ners, but as to the "asters and cre$s. 6he !rinci!le $hich e(e"!ts the husband"an and his instru"ents of labor e(e"!ts the industry in $hich he is engaged, and is not a!!licable in !rotection of the continuance of transactions of such character and e(tent as these. %n truth, the e(e"!tion of fishing craft is essentially an act of grace, and not a "atter of right, and it is e(tended or denied as the e(igency is belie)ed to de"and. %t is, said Sir 9illia" Scott, ?a rule of co"ity only, and not of legal decision.? 6he "odern )ie$ is thus e(!ressed by Mr. .allB ?0ngland does not see" to ha)e been un$illing to s!are fishing )essels so long as they are har"less, and it does not a!!ear that any state has accorded the" i""unity under circu"stances of incon)enience to itself. %t is li*ely that all nations $ould no$ refrain fro" "olesting the" as a general rule, and $ould ca!ture the" so soon as any danger arose that they or their cre$s "ight be of "ilitary use to the ene"y, and it is also li*ely that it is i"!ossible to grant the" a "ore distinct e(e"!tion.?

%n his lectures on %nternational Ea$ at the 5a)al Ea$ College, the late ;r. 'ree"an Sno$ laid it do$n that the e(e"!tion could not be asserted as a rule of international la$. 6hese lectures $ere edited by Co""odore Stoc*ton and !ublished under the direction of the Secretary of the 5a)y in 1895, and, by that de!art"ent, in a second edition, in 1898, so that in addition to the $ell *no$n "erits of their author, they !ossess the $eight to be attributed to the official i"!ri"atur. 5either our treaties nor settled !ractice are o!!osed to that conclusion. %n )ie$ of the circu"stances surrounding the brea*ing out of the Me(ican $ar, Co""odore Conner, co""anding the .o"e S&uadron, on May 1,, 18,2, directed his officers, in res!ect of bloc*ade, not to "olest ?Me(ican boats engaged e(clusi)ely in fishing on any !art of the coast,? !resu"ably s"all boats in !ro(i"ity to the shore, $hile on the 1acific coast, Co""odore Stoc*ton, in the succeeding August, ordered the ca!ture of ?all )essels under the Me(ican flag.? 6he treaties $ith 1russia of 1785, 1799, and 18-8, and of 18,8 $ith Me(ico, in e(e"!ting fisher"en, ?unar"ed and inhabiting unfortified to$ns, )illages, or !laces,? did not e(e"!t fishing )essels fro" sei#ure as !ri#e, and these ca!tures e)idence the con)ictions entertained and acted on in the late $ar $ith S!ain. %n is needless to re)ie$ the s!eculations and re!etitions of the $riters on international la$. 4rtolan, ;e =oec*, and others ad"it that the custo" relied on as consecrating the i""unity is not so general as to create an absolute international rule/ .effter, Cal)o, and others are to the contrary. 6heir lucubrations "ay be !ersuasi)e, but not authoritati)e. %n "y udg"ent, the rule is that e(e"!tion fro" the rigors of $ar is in the control of the 0(ecuti)e. .e is bound by no

%n the Cri"ean $ar, 185,+55, none of the orders in council, in ter"s, either e(e"!ted or included fishing )essels, yet the allied s&uadrons s$e!t the Sea of A#of of all craft ca!able of furnishing the "eans of trans!ortation, and the 0nglish ad"iral in the :ulf of 'inland directed the destruction of all 7ussian coasting )essels not of sufficient )alue to be detained as !ri#es e(ce!t ?boats or s"all craft $hich "ay be found e"!ty at anchor, and not traffic*ing.? %t is difficult to concei)e of a la$ of the sea of uni)ersal obligation to $hich :reat =ritain has not acceded. And % 1age 175 U. S. 7-< a" not a$are of ade&uate foundation for i"!uting to this country the ado!tion of any other than the 0nglish rule.

i""utable rule on the sub ect. %t is for hi" to a!!ly, or to "odify, or to deny altogether such i""unity as "ay ha)e been usually e(tended. 1age 175 U. S. 7-1 0(e"!tions "ay be designated in ad)ance or granted according to circu"stances, but carrying on $ar in)ol)es the infliction of the hardshi!s of $ar, at least to the e(tent that the sei#ure or destruction of ene"yGs !ro!erty on sea need not be s!ecifically authori#ed in order to be acco"!lished.

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=eing of o!inion that these )essels $ere not e(e"!t as "atter of la$, % a" constrained to dissent fro" the o!inion and udg"ent of the Court, and "y brothers .A7EA5 and Mc>055A concur in this dissent. 33333 4n 8anuary -9, 19<<, the Court in each case, on "otion of the Solicitor :eneral in behalf of the United States, and after argu"ent of counsel thereon, and to secure the carrying out of the o!inion and decree of this Court according to their true "eaning and intent, ordered that the decree be so "odified as to direct that the da"ages to be allo$ed shall be co"!ensatory only, and not !uniti)e.

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