The Paquete Habana, 175 U.S.

677 (1900)
The Paquete Habana
Nos. 895-896
Arue! No"e#ber 7-8, 1899
$e%&!e! 'anuar( 8, 1900
175 U.S. 677 (1900)
S())abus
Under the Act of Congress of March 3, 1891, c. 517, this Court has
jurisdiction of appeals from all final sentences and decrees in prie causes,
!ithout regard to the amount in dispute and !ithout an" certificate of the
district judge as to the importance of the particular case.
#nternational la! is part of our la!, and must $e ascertained and
administered $" the courts of justice of appropriate jurisdiction as often as
%uestions of right depending upon it are dul" presented for their
determination. &or this purpose, !here there is no treat" and no controlling
e'ecuti(e or legislati(e act or judicial decision, resort must $e had to the
customs and usages of ci(ilied nations, and, as e(idence of these, to the
!or)s of jurists and commentators, not for the speculations of their authors
concerning !hat the la! ought to $e, $ut for trust!orth" e(idence of !hat
the la! reall" is.
At the present da", $" the general consent of the ci(ilied nations of the
!orld and independentl" of an" e'press treat" or other pu$lic act, it is an
esta$lished rule of international la! that coast fishing (essels, !ith their
implements and supplies, cargoes and cre!s, unarmed and honestl"
pursuing their peaceful calling of catching and $ringing in fresh fish, are
e'empt from capture as prie of !ar. And this rule is one !hich prie courts,
administering the la! of nations, are $ound to ta)e judicial notice of, and to
gi(e effect to, in the a$sence of an" treat" or other pu$lic act of their o!n
go(ernment in relation to the matter.
At the $rea)ing out of the recent !ar !ith *pain, t!o fishing smac)s ++ the
one a sloop, ,3 feet long on the )eel and of -5 tons $urden, and !ith a cre!
of three men, and the other a schooner, 51 feet long on the )eel and of 35
tons $urden, and !ith a cre! of si' men ++ !ere regularl" engaged in fishing
on the coast of Cu$a, sailing under the *panish flag, and each o!ned $" a
*panish su$ject, residing in .a(ana/ her cre!, !ho also resided there, had
no interest in the (essel, $ut !ere entitled to shares, amounting in all to t!o
thirds, of her catch, the other third $elonging to her o!ner, and her cargo
consisted of fresh fish, caught $" her cre! from the sea, put on $oard as
the" !ere caught, and )ept and sold ali(e. 0ach (essel left .a(ana on a
coast fishing (o"age, and sailed along the coast of Cu$a a$out t!o hundred
miles to the !est end of the island/ the sloop there fished for t!ent"+fi(e
da"s in the territorial !aters of *pain, and the schooner e'tended her
fishing trip a hundred miles farther across the 1ucatan Channel, and fished
for eight da"s on the coast of 1ucatan. 2n her return, !ith her cargo of li(e
fish, along the coast of Cu$a, and !hen near .a(ana, each !as captured $"
one of the United *tates $loc)ading s%uadron. 3either fishing (essel had
an" arms or ammunition on $oard, had an" )no!ledge of the $loc)ade, or
e(en of the !ar, until she !as stopped $" a $loc)ading (essel, made an"
attempt to run the $loc)ade, or an" resistance at the time of her capture,
nor !as there an" e(idence that she, or her cre!, !as li)el" to aid the
enem". He)! that $oth captures !ere unla!ful, and !ithout pro$a$le cause.
4he cases are stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
4hese are t!o appeals from decrees of the 5istrict Court of the United
*tates for the *outhern 5istrict of &lorida condemning t!o fishing (essels
and their cargoes as prie of !ar.
0ach (essel !as a fishing smac), running in and out of .a(ana, and
regularl" engaged in fishing on the coast of Cu$a/ sailed under the *panish
flag/ !as o!ned $" a *panish su$ject of Cu$an $irth, li(ing in the Cit" of
.a(ana/ !as commanded $" a su$ject of *pain, also residing in .a(ana,
and her master and cre! had no interest in the (essel, $ut !ere entitled to
shares, amounting in all to t!o+thirds, of her catch, the other third
$elonging to her o!ner. .er cargo consisted of fresh fish, caught $" her
cre! from the sea, put on $oard as the" !ere caught, and )ept and sold
ali(e. Until stopped $" the $loc)ading s%uadron, she had no )no!ledge of
the e'istence of the !ar or of an" $loc)ade. *he had no arms or
ammunition on $oard, and made no attempt to run the $loc)ade after she
)ne! of its e'istence, nor an" resistance at the time of the capture.
4he 6a%uete .a$ana !as a sloop, ,3 feet long on the )eel, and of -5 tons
$urden, and had a cre! of three Cu$ans, including the master, !ho had a
fishing license from the *panish go(ernment, and no other commission or
license. *he left .a(ana March -5, 1898, sailed along the coast of Cu$a to
Cape *an Antonio at the !estern end of the island, and there fished for
t!ent"+fi(e da"s, l"ing $et!een the reefs off the cape, !ithin the territorial
!aters of *pain, and then started $ac) for .a(ana, !ith a cargo of a$out ,7
%uintals of li(e fish. 2n April -5, 1898, a$out t!o miles off Mariel, and
ele(en miles from .a(ana, she !as captured $" the United *tates gun$oat
Castine.
4he 8ola !as a schooner, 51 feet long on the )eel, and of 35 tons $urden,
and had a cre! of si' Cu$ans, including the master, and no commission or
license. *he left .a(ana April 11, 1898, and proceeded to Campeach"
*ound, off 1ucatan, fished there eight da"s, and started $ac) for .a(ana
!ith a cargo of a$out 17,777 pounds of li(e fish. 2n April -9, 1898, near
.a(ana, she !as stopped $" the United *tates steamship Cincinnati, and
!as !arned not to go into .a(ana, $ut !as told that she !ould $e allo!ed
to land at :ahia .onda. *he then changed her course, and put for :ahia
.onda, $ut on the ne't morning, !hen near that port, !as captured $" the
United *tates steamship5olphin.
:oth the fishing (essels !ere $rought $" their captors into ;e" <est. A li$el
for the condemnation of each (essel and her cargo as prie of !ar !as there
filed on April -7, 1898/ a claim !as interposed $" her master on $ehalf of
himself and the other mem$ers of the cre!, and of her o!ner/ e(idence !as
ta)en, sho!ing the facts a$o(e stated, and on Ma" 37, 1898, a final decree
of condemnation and sale !as entered, =the court not $eing satisfied that as
a matter of la!, !ithout an" ordinance, treat", or proclamation, fishing
(essels of this class are e'empt from seiure.=
0ach (essel !as thereupon sold $" auction/ the 6a%uete .a$ana for the sum
of >,97 and the 8ola for the sum of >877. 4here !as no other e(idence in
the record of the (alue of either (essel or of her cargo.
#t has $een suggested in $ehalf of the United *tates that this Court has no
jurisdiction to hear and determine these appeals $ecause the matter in
dispute in either case does not e'ceed the sum or (alue of >-,777, and the
district judge has not certified that the adjudication in(ol(es a %uestion of
general importance.
4he suggestion is founded on ? 995 of the @e(ised *tatutes, !hich pro(ides
that
=an appeal shall $e allo!ed to the *upreme Court from all final decrees
of an" district court in prie causes, !here the matter in dispute,
e'clusi(e of costs, e'ceeds the sum or (alue of t!o thousand dollars,
and shall $e allo!ed, !ithout reference to the (alue of the matter in
dispute, on the certificate of the district judge that the adjudication
in(ol(es a %uestion of general importance.=
4he Audiciar" Acts of the United *tates, for a centur" after the organiation
of the go(ernment under the Constitution, did impose pecuniar" limits upon
appellate jurisdiction.
#n actions at la! and suits in e%uit" the pecuniar" limit of the appellate
jurisdiction of this Court from the circuit courts of the United *tates !as for
a long time fi'ed at >-777. Acts of *eptem$er -,, 1789, c. -7, ? --/ 1
*tat. 8,/ March 3, 1873, c. ,7/ - *tat. -,,/ Bordon (. 2gden, 3 6et. 33/
@e(.*tat. ?? 991, 99-. #n 1875, it !as raised to >5,777. Act of &e$ruar" 19,
1875, c. 77, ? 3/ 18 *tat. 319. And in 1889 this !as modified $" pro(iding
that, !here the judgment or decree did not e'ceed the sum of >5,777, this
Court should ha(e appellate jurisdiction upon the %uestion of the
jurisdiction of the circuit court, and upon that %uestion onl". Act of &e$ruar"
-5, 1889, c. -39, ? 1/ -5 *tat. 993/ 6ar)er (. 2rms$",1,1 U. *. 81.
As to cases of admiralt" and maritime jurisdiction, including prie causes,
the Audiciar" Act of 1789, in ? 9, (ested the original jurisdiction in the
district courts, !ithout regard to the sum or (alue in contro(ers", and in ?
-1 permitted an appeal from them to the circuit courts !here the matter in
dispute e'ceeded the sum or (alue of >377. 1 *tat. 77, 83, c. -7/4he
:etse", 3 5all. 9, 3 U. *. 19/4he Amia$le 3anc", 3 <heat. 5,9/ *tratton (.
Aar(is, 8 6et. ,,33 U. *. 11. :" the Act of March 3, 1873, c. ,7, appeals to
the circuit court !ere permitted from all final decrees of a district court
!here the matter in dispute e'ceeded the sum or (alue of >57, and from
the circuit courts to this Court in all cases =of admiralt" and maritime
jurisdiction, and of prie or no prie= in !hich the matter in dispute
e'ceeded the sum or (alue of >-,777. - *tat. -,,/ Aen)s (. 8e!is, 3 Mason
573/ *tratton (. Aar(is,a$o(e cited/ 4he Admiral, 3 <all. 973, 77 U. *. 91-.
4he acts of March 3, 1893, c. 89, ? 7, and Aune 37, 189,, c. 17,, ? 13,
pro(ided that appeals from the district courts in prie causes should lie
directl" to this Court, !here the amount in contro(ers" e'ceeded >-,777, or
=on the certificate of the district judge that the adjudication in(ol(es a
%uestion of difficult" and general importance.= 1- *tat. 797/ 13 *tat. 317.
4he pro(ision of the act of 1873, omitting the !ords =and of prie or no
prie,= !as reenacted in ? 99- of the @e(ised *tatutes, and the pro(ision of
the act of 189,, concerning prie causes, !as su$stantiall" reenacted in ?
995 of the @e(ised *tatutes, alread" %uoted.
:ut all this has $een changed $" the Act of March 3, 1891, c. 517,
esta$lishing the circuit courts of appeals and creating a ne! and complete
scheme of appellate jurisdiction, depending upon the nature of the different
cases, rather than upon the pecuniar" amount in(ol(ed. -9 *tat. 8-9.
:" that act, as this Court has declared, the entire appellate jurisdiction from
the circuit and district courts of the United *tates !as distri$uted,
=according to the scheme of the act,= $et!een this Court and the circuit
courts of appeals there$" esta$lished, =$" designating the classes of cases=
of !hich each of these courts !as to ha(e final jurisdiction. Mc8ish (.
@off,1,1 U. *. 991, 1,1 U. *. 999/American Construction Co. (. Aac)son(ille
@ail!a",1,8 U. *. 37-, 1,8 U. *. 38-/ Care" (. .ouston C 4e'as
@ail!a",157 U. *. 177, 157 U. *. 179.
4he intention of Congress, $" the act of 1891, to ma)e the nature of the
case, and not the amount in dispute, the test of the appellate jurisdiction of
this Court from the district and circuit courts clearl" appears upon
e'amination of the leading pro(isions of the act.
*ection , pro(ides that no appeal, !hether $" !rit of error or other!ise,
shall hereafter $e ta)en from a district court to a circuit court, $ut that all
appeals, $" !rit of error or other!ise, from the district courts =shall onl" $e
su$ject to re(ie!= in this Court or in the circuit court of appeal =as is
hereinafter pro(ided,= and =the re(ie! $" appeal, $" !rit of error, or
other!ise= from the circuit courts, =shall $e had onl"= in this Court or in the
circuit court of appeals, =according to the pro(isions of this act regulating
the same.=
*ection 5 pro(ides that =appeals or !rits of error ma" $e ta)en from the
district courts, or from the e'isting circuit courts, direct to the *upreme
Court, in the follo!ing casesD=
*&rst. =#n an" case in !hich the jurisdiction of the court is in issue/ in such
cases, the %uestion of jurisdiction alone shall $e certified to the *upreme
Court from the court $elo! for decision.=
4his clause includes =an" case,= !ithout regard to amount, in !hich the
jurisdiction of the court $elo! is in issue, and differs in this respect from the
act of 1889, a$o(e cited.
Se%on!. =&rom the final sentences and decrees in prie causes.= 4his clause
includes the !hole class of =the final sentences and decrees in prie causes,=
and omits all pro(isions of former acts regarding amount in contro(ers", or
certificate of a district judge.
Th&r!. =#n cases of con(iction of a capital or other!ise infamous crime.=
4his clause loo)s to the nature of the crime, and not to the e'tent of the
punishment actuall" imposed. A crime !hich might ha(e $een punished $"
imprisonment in a penitentiar" is an infamous crime, e(en if the sentence
actuall" pronounced is of a small fine onl". 0' 6arte <ilson,11, U. *.
,17,11, U. *. ,-9. Conse%uentl", such a sentence for such a crime !as
su$ject to the appellate jurisdiction of this Court, under this clause, until this
jurisdiction, so far as regards infamous crimes, !as transferred to the circuit
court of appeals $" the Act of Aanuar" -7, 1897, c. 98. -9 *tat. ,9-.
*ourth. =#n an" case, that in(ol(es the construction or application of the
Constitution of the United *tates.=
*&+th. =#n an" case in !hich the constitutionalit" of an" la! of the United
*tates, or the (alidit" or construction of an" treat" made under its authorit",
is dra!n in %uestion. =
S&,th. =#n an" case in !hich the Constitution or la! of a state is claimed to
$e in contra(ention of the Constitution of the United *tates.=
0ach of these last three clauses, again, includes =an" case= of the class
mentioned. 4he" all relate to !hat are commonl" called federal %uestions,
and cannot reasona$l" $e construed to ha(e intended that the appellate
jurisdiction of this Court o(er such %uestions should $e restricted $" an"
pecuniar" limit ++ especiall" in their connection !ith the succeeding
sentence of the same sectionD
=3othing in this act shall affect the jurisdiction of the *upreme Court in
cases appealed from the highest court of a state, nor the construction of the
statute pro(iding for re(ie! of such cases.=
<rits of error from this Court to re(ie! the judgments of the highest court
of a state upon such %uestions ha(e ne(er $een su$ject to an" pecuniar"
limit. Act of *eptem$er -,, 1789, c. -7, ? -5/ 1 *tat. 85/ :uel (. Ean 3ess,
8 <heat. 31-/ Act of &e$ruar" 5, 1897, c. -8, ? -/ 1, *tat. 389/ @e(.*tat. ?
779.
:" section 9 of the act of 1891, this Court is relie(ed of much of the
appellate jurisdiction that it had $efore/ the appellate jurisdiction from the
district and circuit courts =in all cases other than those pro(ided for in the
preceding section of this act, unless other!ise pro(ided $" la!,= is (ested in
the circuit court of appeals, and its decisions in admiralt" cases, as !ell as
in cases arising under the criminal la!s, and in certain other classes of
cases, are made final, e'cept that that court ma" certif" to this Court
%uestions of la!, and that this Court ma" order up the !hole case $" !rit of
certiorari. #t is settled that the !ords =unless other!ise pro(ided $" la!,= in
this section, refer onl" to pro(isions of the same act, or of
contemporaneous or su$se%uent acts, and do not include pro(isions of
earlier statutes. 8au 2! :e! (. United *tates,1,, U. *. ,7, 1,, U. *. 57/
.u$$ard (. *o$",1,9 U. *. 59/American Construction Co. (. Aac)son(ille
@ail!a",1,8 U. *. 37-, 1,8 U. *. 383.
4he act of 1891 no!here imposes a pecuniar" limit upon the appellate
jurisdiction, either of this Court or of the circuit court of appeals, from a
district or circuit court of the United *tates. 4he onl" pecuniar" limit
imposed is one of >1,777 upon the appeal to this Court of a case !hich has
$een once decided on appeal in the circuit court of appeals, and in !hich the
judgment of that court is not made final $" section 9 of the act.
*ection 1, of the act of 1891, after specificall" repealing section 991 of the
@e(ised *tatutes and section 3 of the act of &e$ruar" 19, 1875, further
pro(ides that
=all acts and parts of acts relating to appeals or !rits of error,
inconsistent !ith the pro(isions for re(ie! $" appeals or !rits of error
in the preceding sections 5 and 9 of this act, are here$" repealed.=
-9 *tat. 8-9, 837. 4he o$ject of the specific repeal, as this Court has
declared, !as to get rid of the pecuniar" limit in the acts referred to. Mc8ish
(. @off,1,1 U. *. 991, 1,1 U. *. 997. And, although neither section 99- nor
section 995 of the @e(ised *tatutes is repealed $" name, "et, ta)ing into
consideration the general repealing clause, together !ith the affirmati(e
pro(isions of the act, the case comes !ithin the reason of the decision in an
analogous case, in !hich this Court saidD
=4he pro(isions relating to the su$ject matter under consideration are,
ho!e(er, so comprehensi(e, as !ell as so (ariant from those of former
acts, that !e thin) the intention to su$stitute the one for the other is
necessaril" to $e inferred, and must pre(ail.= &is) (. .enarie,1,- U. *.
,59, 1,- U. *. ,98.
4he decision in this Court in the recent case of United *tates (. @ider,193 U.
*. 13-, affords an important, if not controlling, precedent. &rom the
$eginning of this centur" until the passage of the act of 1891, $oth in ci(il
and in criminal cases, %uestions of la! upon !hich t!o judges of the circuit
court !ere di(ided in opinion might $e certified $" them to this Court for
decision. Act of April -9, 187-, c. 31, ? 9/ - *tat. 159/ Aune 1, 187-, c.
-55, ? 1/ 17 *tat.199/ @e(.*tat. ?? 957+95-, 993, 997/ #nsurance Co. (.
5unham, 11 <all. 1, 78 U. *. -1/ United *tates (. *anges,1,, U. *.
317,1,, U. *. 3-7. :ut in United *tates (. @ider, it !as adjudged $" this
Court that the act of 1891 had superseded and repealed the earlier acts
authoriing %uestions of la! to $e certified from the circuit court to this
Court, and the grounds of that adjudication sufficientl" appear $" the
statement of the effect of the act of 1891 in t!o passages of that opinionD
=Appellate jurisdiction !as gi(en in all criminal cases $" !rit of error
either from this Court or from the circuit courts of appeals, and in all
ci(il cases $" appeal or error, !ithout regard to the amount in
contro(ers", e'cept as to appeals or !rits of error to or from the circuit
courts of appeals in cases not made final as specified in ? 9. . . . #t is
true that repeals $" implication are not fa(ored, $ut !e cannot escape
the conclusion that, tested $" its scope, its o$(ious purpose, and its
terms, the Act of March 3, 1891, co(ers the !hole su$ject matter
under consideration, and furnishes the e'clusi(e rule in respect of
appellate jurisdiction on appeal, !rit of error, or certificate.=
4hat judgment !as thus rested upon t!o successi(e propositionsD first, that
the act of 1891 gi(es appellate jurisdiction, either to this Court or to the
circuit court of appeals, in all criminal cases, and in all ci(il cases =!ithout
regard to the amount in contro(ers"/= second, that the act, $" its terms, its
scope, and its o$(ious purpose, =furnishes the e'clusi(e rule in respect of
appellate jurisdiction on appeal, !rit of error, or certificate.=
As !as long ago said $" Chief Austice Marshall,
=the spirit as !ell as the letter of a statute must $e respected, and
!here the !hole conte't of the la! demonstrates a particular intent in
the legislature to effect a certain o$ject, some degree of implication
ma" $e called in to aid that intent.=
5urousseau (. United *tates, 9 Cranch 377, 17 U. *. 31,. And it is a !ell
settled rule in the construction of statutes, often affirmed and applied $"
this Court, that,
=e(en !here t!o acts are not in e'press terms repugnant, "et if the
latter act co(ers the !hole su$ject of the first, and em$races ne!
pro(isions, plainl" sho!ing that it !as intended as a su$stitute for the
first act, it !ill operate as a repeal of that act.=
<e are of opinion that the act of 1891, upon its face, read in the light of
settled rules of statutor" construction and of the decisions of this Court,
clearl" manifests the intention of Congress to co(er the !hole su$ject of the
appellate jurisdiction from the district and circuit courts of the United *tates,
so far as regards in !hat cases, as !ell as to !hat courts, appeals ma" $e
ta)en, and to supersede and repeal, to this e'tent, all the pro(isions of
earlier acts of Congress, including those that imposed pecuniar" limits upon
such jurisdiction, and, as part of the ne! scheme, to confer upon this Court
jurisdiction of appeals from all final sentences and decrees in prie causes,
!ithout regard to the amount in dispute, and !ithout an" certificate of the
district judge as to the importance of the particular case.
<e are then $rought to the consideration of the %uestion !hether, upon the
facts appearing in these records, the fishing smac)s !ere su$ject to capture
$" the armed (essels of the United *tates during the recent !ar !ith *pain.
:" an ancient usage among ci(ilied nations, $eginning centuries ago and
graduall" ripening into a rule of international la!, coast fishing (essels
pursuing their (ocation of catching and $ringing in fresh fish ha(e $een
recognied as e'empt, !ith their cargoes and cre!s, from capture as prie
of !ar.
4his doctrine, ho!e(er, has $een earnestl" contested at the $ar, and no
complete collection of the instances illustrating it is to $e found, so far as !e
are a!are, in a single pu$lished !or), although man" are referred to and
discussed $" the !riters on international la!, nota$le in - 2rtolan, @egles
#nternationales et 5iplomatie de la Mer F,th ed.G li$. 3, c. -, pp. 51+59/ in ,
Cal(o, 5roit #nternational F5th ed.G ?? -397+-373/ in 5e :oec), 6ropriete
6ri(ee 0nnemie sous 6a(illon 0nnemi, ?? 191+199, and in .all, #nternational
8a! F,th ed.G ? 1,8. #t is therefore !orth the !hile to trace the histor" of
the rule from the earliest accessi$le sources through the increasing
recognition of it, !ith occasional set$ac)s, to !hat !e ma" no! justl"
consider as its final esta$lishment in our o!n countr" and generall"
throughout the ci(ilied !orld.
4he earliest acts of an" go(ernment on the su$ject mentioned in the $oo)s
either emanated from, or !ere appro(ed $", a ;ing of 0ngland.
#n 1,73 and 1,79, .enr" #E issued orders to his admirals and other officers,
entitled =Concerning *afet" for &ishermen H 5e *ecuritate pro 6iscatori$us.=
:" an order of 2cto$er -9, 1,73, reciting that it !as made pursuant to a
treat" $et!een himself and the ;ing of &rance, and for the greater safet" of
the fishermen of either countr", and so that the" could $e, and carr" on
their industr", the more safel" on the sea, and deal !ith each other in
peace, and that the &rench ;ing had consented that 0nglish fishermen
should $e treated li)e!ise, it !as ordained that &rench fishermen might,
during the then pending season for the herring fisher", safel" fish for
herrings and all other fish from the har$or of Bra(elines and the #sland of
4hanet to the mouth of the *eine and the har$or of .autoune. And $" an
order of 2cto$er 5, 1,79, he too) into his safe conduct and under his
special protection, guardianship, and defense all and singular the fishermen
of &rance, &landers, and :rittan", !ith their fishing (essels and $oats,
e(er"!here on the sea, through and !ithin his dominions, jurisdictions, and
territories, in regard to their fisher", !hile sailing, coming, and going, and at
their pleasure, freel" and la!full" fishing, dela"ing, or proceeding, and
returning home!ard !ith their catch of fish, !ithout an" molestation or
hindrance !hate(er, and also their fish, nets, and other propert" and goods
soe(er, and it !as therefore ordered that such fishermen should not $e
interfered !ith, pro(ided the" should comport themsel(es !ell and properl",
and should not, $" color of these presents, do or attempt, or presume to do
or attempt, an"thing that could prejudice the ;ing, or his ;ingdom of
0ngland, or his su$jects. 8 @"merIs &oedera 339, ,51.
4he treat" made 2cto$er -, 15-1, $et!een the 0mperor Charles E and
&rancis # of &rance, through their am$assadors, recited that a great and
fierce !ar had arisen $et!een them, $ecause of !hich there had $een, $oth
$" land and $" sea, fre%uent depredations and incursions on either side, to
the gra(e detriment and intolera$le injur" of the innocent su$jects of each,
and that a suita$le time for the herring fisher" !as at hand, and, $" reason
of the sea $eing $eset $" the enem", the fishermen did not dare to go out,
!here$" the su$ject of their industr", $esto!ed $" hea(en to alla" the
hunger of the poor, !ould !holl" fail for the "ear unless it !ere other!ise
pro(ided H %uo fit, ut piscaturae commoditas, ad pauperum le(andam famen
a coelesti numine concessa, cessare hoc anno omnino de$eat, nisi aliter
pro(ideatur. And it !as therefore agreed that the su$jects of each
so(ereign, fishing in the sea or e'ercising the calling of fishermen, could and
might, until the end of the ne't Aanuar", !ithout incurring an" attac),
depredation, molestation, trou$le, or hindrance soe(er, safel" and freel",
e(er"!here in the sea, ta)e herrings and e(er" other )ind of fish, the
e'isting !ar $" land and sea not!ithstanding/ and, further, that, during the
time aforesaid, no su$ject of either so(ereign should commit, or attempt or
presume to commit, an" depredation, force, (iolence, molestation, or
(e'ation to or upon such fishermen or their (essels, supplies, e%uipments,
nets, and fish, or other goods soe(er trul" appertaining to fishing. 4he
treat" !as made at Calais, then an 0nglish possession. #t recites that the
am$assadors of the t!o so(ereigns met there at the earnest re%uest of
.enr" E### and !ith his countenance and in the presence of Cardinal <olse",
his chancellor and representati(e. And to!ards the end of the treat", it is
agreed that the said ;ing and his said representati(e, =$" !hose means the
treat" stands concluded, shall $e conser(ators of the agreements therein, as
if thereto $" $oth parties elected and chosen.= , 5umont, Corps
5iplomati%ue, pt. 1, pp. 35-, 353.
4he herring fisher" !as permitted, in time of !ar, $" &rench and 5utch
edicts in 1539. :"n)ershoe), Juaestiones Auris 6u$licae, li$. 1, c. 3/ 1
0merigon des Assurances, c. ,, section 9/ c. 1-, section 19, section 8.
&rance, from remote times, set the e'ample of alle(iating the e(ils of !ar in
fa(or of all coast fishermen. #n the compilation entitled =Us et Coutumes de
la Mer,= pu$lished $" Cleirac in 1991, and in the third part thereof,
containing =Maritime or Admiralt" Aurisdiction ++ la Aurisdiction de la Marine
ou dIAdmiraute++ as !ell in time of peace as in time of !ar,= article 87 is as
follo!sD
=4he admiral ma" in time of !ar accord fishing truces ++tres(es
pescheresses++ to the enem" and to his su$jects, pro(ided that the
enem" !ill li)e!ise accord them to &renchmen.=
Cleirac 5,,. Under this article, reference is made to articles ,9 and 79,
respecti(el", of the &rench ordinances concerning the admiralt" in 15,3 and
158,, of !hich it is $ut a reproduction. , 6ardessus, Collection de 8ois
Maritimes 319/ - 2rtolan, 51. And Cleirac adds, in a note, this %uotation
from &roissartIs ChroniclesD
=&ishermen on the sea, !hate(er !ar there !ere in &rance and
0ngland, ne(er did harm to one another/ so the" are friends, and help
one another at need ++6escheurs sur mer, %uel%ue guerre %ui soit en
&rance et Angleterre, jamais ne se firent mal lIun a lIautre/ aincois sont
amis, et sIa"dent lIun a lIautre au $esoin.=
4he same custom !ould seem to ha(e pre(ailed in &rance until to!ards the
end of the se(enteenth centur". &or e'ample, in 1975, 8ouis K#E and the
*tates Beneral of .olland, $" mutual agreement, granted to 5utch and
&rench fishermen the li$ert", undistur$ed $" their (essels of !ar, of fishing
along the coasts of &rance, .olland, and 0ngland. 5I.auteri(e et 5e Cuss",
4raites de Commerce, pt. 1, (ol. -, p. -78. :ut $" the ordinances of 1981
and 199-, the practice !as discontinued, $ecause, Ealin sa"s, of the
faithless conduct of the enemies of &rance, !ho, a$using the good faith !ith
!hich she had al!a"s o$ser(ed the treaties, ha$ituall" carried off her
fishermen, !hile their o!n fished in safet". - Ealin sur lI2rdonnance de la
Marine F1779G 989, 997/ - 2rtolan 5-/ 5e :oec), ? 19-.
4he doctrine !hich e'empts coast fishermen, !ith their (essels and
cargoes, from capture as prie of !ar, has $een familiar to the United *tates
from the time of the <ar of #ndependence.
2n Aune 5, 1779, 8ouis KE#., our all" in that !ar, addressed a letter to his
admiral, informing him that the !ish he had al!a"s had of alle(iating, as far
as he could, the hardships of !ar, had directed his attention to that class of
his su$jects !hich de(oted itself to the trade of fishing, and had no other
means of li(elihood/ that he had thought that the e'ample !hich he should
gi(e to his enemies, and !hich could ha(e no other source than the
sentiments of humanit" !hich inspired him, !ould determine them to allo!
to fishermen the same facilities !hich he should consent to grant, and that
he had therefore gi(en orders to the commanders of all his ships not to
distur$ 0nglish fishermen, nor to arrest their (essels laden !ith fresh fish,
e(en if not caught $" those (essels/ pro(ided the" had no offensi(e arms,
and !ere not pro(ed to ha(e made an" signals creating a suspicion of
intelligence !ith the enem", and the admiral !as directed to communicate
the ;ingIs intentions to all officers under his control. :" a ro"al order in
council of 3o(em$er 9, 1787, the former orders !ere confirmed, and the
capture and ransom, $" a &rench cruiser, of 4he Aohn and *arah, an 0nglish
(essel, coming from .olland, laden !ith fresh fish, !ere pronounced to $e
illegal. - Code des 6rises Fed. 178,G 7-1, 971, 973.
Among the standing orders made $" *ir Aames Marriott, Audge of the
0nglish .igh Court of Admiralt", !as one of April 11, 1787, $" !hich it !as
=ordered that all causes of prie of fishing $oats or (essels ta)en from
the enem" ma" $e consolidated in one monition, and one sentence or
interlocutor", if under fift" tons $urthen, and not more than si' in
num$er.=
MarriottIs &ormular" ,. :ut $" the statements of his successor, and of $oth
&rench and 0nglish !riters, it appears that 0ngland, as !ell as &rance,
during the American @e(olutionar" <ar, a$stained from interfering !ith the
coast fisheries. 4he 1oung Aaco$ and Aohanna, 1 C. @o$. -7/ - 2rtolan 53/
.all, ? 1,8.
#n the treat" of 1785 $et!een the United *tates and 6russia, article -3
F!hich !as proposed $" the American Commissioners, Aohn Adams,
:enjamin &ran)lin, and 4homas Aefferson, and is said to ha(e $een dra!n
up $" &ran)linG, pro(ided that if !ar should arise $et!een the contracting
parties,
=all !omen and children, scholars of e(er" facult", culti(ators of the
earth, artisans, manufacturers, and fishermen, unarmed and inha$iting
unfortified to!ns, (illages, or places, and in general all others !hose
occupations are for the common su$sistence and $enefit of man)ind,
shall $e allo!ed to continue their respecti(e emplo"ments, and shall
not $e molested in their persons, nor shall their houses or goods $e
$urnt or other!ise destro"ed, nor their fields !asted $" the armed
force of the enem", into !hose po!er, $" the e(ents of !ar, the" ma"
happen to fall/ $ut if an"thing is necessar" to $e ta)en from them for
the use of such armed force, the same shall $e paid for at a
reasona$le price.= 8 *tat. 99/ 1 ;ent Com. 91, note/ <heaton, .istor"
of the 8a! of 3ations, 379, 378.
.ere !as the clearest e'emption from hostile molestation or seiure of the
persons, occupations, houses, and goods of unarmed fishermen inha$iting
unfortified places. 4he article !as repeated in the later treaties $et!een the
United *tates and 6russia of 1799 and 18-8. 8 *tat. 17,, 38,. And 5ana, in
a note to his edition of <heatonIs #nternational 8a!s, sa"sD
=#n man" treaties and decrees, fishermen catching fish as an article of
food are added to the class of persons !hose occupation is not to $e
distur$ed in !ar.= <heaton, #nternational 8a! F8th ed.G ? 3,5, note
198.
*ince the United *tates $ecame a nation, the onl" serious interruptions, so
far as !e are informed, of the general recognition of the e'emption of coast
fishing (essels from hostile capture, arose out of the mutual suspicions and
recriminations of 0ngland and &rance during the !ars of the &rench
@e(olution.
#n the first "ears of those !ars, 0ngland ha(ing authoried the capture of
&rench fishermen, a decree of the &rench 3ational Con(ention of 2cto$er -,
1793, directed the e'ecuti(e po!er =to protest against this conduct,
theretofore !ithout e'ample/ to reclaim the fishing $oats seied/ and, in
case of refusal, to resort to reprisals.= :ut in Aul", 1799, the Committee of
6u$lic *afet" ordered the release of 0nglish fishermen seied under the
former decree, =not considering them as prisoners of !ar.= 8a 3ostra
*egnora de la 6iedad F1871G cited $elo!/ - 5e Cuss", 5roit Maritime, 19,,
195/ 1 Masse, 5roit Commercial F-d ed.G -99, -97.
2n Aanuar" -,, 1798, the 0nglish go(ernment $" e'press order instructed
the commanders of its ships to seie &rench and 5utch fishermen !ith their
$oats. 9 Martens, @ecueil des 4raites F-d ed.G 575/ 9 *choell, .istoire des
4raites, 119/ - 2rtolan, 53. After the promulgation of that order, 8ord
*to!ell Fthen *ir <illiam *cottG in the .igh Court of Admiralt" of 0ngland
condemned small 5utch fishing (essels as prie of !ar. #n one case, the
capture !as in April, 1798, and the decree !as made 3o(em$er 13,
1798. 4he 1oung Aaco$ and Aohanna, 1 C. @o$. -7. #n another case, the
decree !as made August -3, 1799. 4he 3o"dt Bedacht, - C. @o$. 137,
note.
&or the "ear 1877, the orders of the 0nglish and &rench go(ernments and
the correspondence $et!een them ma" $e found in $oo)s alread" referred
to. 9 Martens 573+51-/ 9 *choell, 118+1-7/ - 2rtolan 53, 5,. 4he doings for
that "ear ma" $e summed up as follo!sD on March -7, 1877, the &rench
go(ernment, un!illing to resort to reprisals, reenacted the orders gi(en $"
8ouis KE# in 1787, a$o(e mentioned, prohi$iting an" seiure $" the &rench
ships of 0nglish fishermen, unless armed or pro(ed to ha(e made signals to
the enem". 2n Ma" 37, 1877, the 0nglish go(ernment, ha(ing recei(ed
notice of that action of the &rench go(ernment, re(o)ed its order of Aanuar"
-,, 1798. :ut soon after!ard, the 0nglish go(ernment complained that
&rench fishing $oats had $een made into fire$oats at &lushing, as !ell as
that the &rench go(ernment had impressed and had sent to :rest, to ser(e
in its flotilla, &rench fishermen and their $oats, e(en those !hom the
0nglish had released on condition of their not ser(ing, and on Aanuar" -1,
1871, summaril" re(o)ed its last order, and again put in force its order of
Aanuar" -,, 1798. 2n &e$ruar" 19, 1871, 3apoleon :onaparte, then &irst
Consul, directed the &rench commissioner at 8ondon to return at once to
&rance, first declaring to the 0nglish go(ernment that its conduct,
=contrar" to all the usages of ci(ilied nations, and to the common la! !hich
go(erns them, e(en in time of !ar, ga(e to the e'isting !ar a character of
rage and $itterness !hich destro"ed e(en the relations usual in a lo"al !ar,
= and =tended onl" to e'asperate the t!o nations, and to put off the term of
peace,= and that the &rench go(ernment, ha(ing al!a"s made it
=a ma'im to alle(iate as much as possi$le the e(ils of !ar, could not thin),
on its part, of rendering !retched fishermen (ictims of a prolongation of
hostilities, and !ould a$stain from all reprisals.=
2n March 19, 1871, the Addington Ministr", ha(ing come into po!er in
0ngland, re(o)ed the orders of its predecessors against the &rench
fishermen, maintaining, ho!e(er, that =the freedom of fishing !as no!ise
founded upon an agreement, $ut upon a simple concession,= that =this
concession !ould $e al!a"s su$ordinate to the con(enience of the
moment,= and that =it !as ne(er e'tended to the great fisher", or to
commerce in o"sters or in fish.= And the freedom of the coast fisheries !as
again allo!ed on $oth sides. 9 Martens 51,/ 9 *choell 1-1/ - 2rtolan, 5,/
Manning, 8a! of 3ations FAmosI ed.G -79.
8ord *to!ellIs judgment in 4he 1oung Aaco$ and Aohanna, 1 C. @o$. -7,
a$o(e cited, !as much relied on $" the counsel for the United *tates, and
deser(es careful consideration.
4he (essel there condemned is descri$ed in the report as =a small 5utch
fishing (essel ta)en April, 1798, on her return from the 5ogger $an) to
.olland,= and 8ord *to!ell, in deli(ering judgment, saidD
=#n former !ars, it has not $een usual to ma)e captures of these small
fishing (essels/ $ut this rule !as a rule of comit" onl", and not of legal
decision/ it has pre(ailed from (ie!s of mutual accommodation $et!een
neigh$oring countries, and from tenderness to a poor and industrious order
of people. #n the present !ar, there has, # presume, $een sufficient reason
for changing this mode of treatment, and as the" are $rought $efore me for
m" judgment, the" must $e referred to the general principles of this Court/
the" fall under the character and description of the last class of cases ++ that
is, of ships constantl" and e'clusi(el" emplo"ed in the enem"Is trade.=
And he addedD =#t is a further satisfaction to me in gi(ing this judgment to
o$ser(e that the facts also $ear strong mar)s of a false and fraudulent
transaction.=
:oth the capture and the condemnation !ere !ithin a "ear after the order
of the 0nglish go(ernment of Aanuar" -,, 1798, instructing the commanders
of its ships to seie &rench and 5utch fishing (essels, and $efore an"
re(ocation of that order. 8ord *to!ellIs judgment sho!s that his decision
!as $ased upon the order of 1798, as !ell as upon strong e(idence of fraud.
3othing more !as adjudged in the case.
:ut some e'pressions in his opinion ha(e $een gi(en so much !eight $"
0nglish !riters that it ma" $e !ell to e'amine them particularl". 4he opinion
$egins $" admitting the )no!n custom in former !ars not to capture such
(essels, adding, ho!e(er, =$ut this !as a rule of comit" onl", and not of
legal decision.= Assuming the phrase =legal decision= to ha(e $een there
used, in the sense in !hich courts are accustomed to use it, as e%ui(alent to
=judicial decision,= it is true that, so far as appears, there had $een no such
decision on the point in 0ngland. 4he !ord =comit"= !as apparentl" used $"
8ord *to!ell as s"non"mous !ith courtes" or good!ill. :ut the period of a
hundred "ears !hich has since elapsed is ampl" sufficient to ha(e ena$led
!hat originall" ma" ha(e rested in custom or comit", courtes" or
concession, to gro!, $" the general assent of ci(ilied nations, into a settled
rule of international la!. As !ell said $" *ir Aames Mac)intoshD
=#n the present centur", a slo! and silent, $ut (er" su$stantial, mitigation
has ta)en place in the practice of !ar, and in proportion as that mitigated
practice has recei(ed the sanction of time, it is raised from the ran) of mere
usage and $ecomes part of the la! of nations.=
5iscourse on the 8a! of 3ations 38/ 1 Miscellaneous <or)s, 397.
4he &rench prie tri$unals, $oth $efore and after 8ord *to!ellIs decision,
too) a !holl" different (ie! of the general %uestion. #n 1787, as alread"
mentioned, an order in council of 8ouis KE# had declared illegal the capture
$" a &rench cruiser of4he Aohn and *arah, an 0nglish (essel coming from
.olland, laden !ith fresh fish. And on Ma" 17, 1871, !here a 6ortuguese
fishing (essel, !ith her cargo of fish, ha(ing no more cre! than !as needed
for her management and for ser(ing the nets, on a trip of se(eral da"s, had
$een captured in April, 1871, $" a &rench cruiser, three leagues off the coast
of 6ortugal, the Council of 6ries held that the capture !as contrar" to =the
principles of humanit" and the ma'ims of international la!,= and decreed
that the (essel, !ith the fish on $oard, or the net proceeds of an" that had
$een sold, should $e restored to her master. 8a 3ostra *egnora de la
6iedad, -5 Merlin, Aurisprudence, 6rise Maritime, ? 3, arts. 1, 3/ *.C. 1
6isto"e et 5u(erd", 6rises Maritimes 331/ - 5e Cuss", 5roit Maritime 199.
4he 0nglish go(ernment, soon after!ards, more than once un%ualifiedl"
prohi$ited the molestation of fishing (essels emplo"ed in catching and
$ringing to mar)et fresh fish. 2n Ma" -3, 1879, it !as
=ordered in council that all fishing (essels under 6russian and other
colors, and engaged for the purpose of catching fish and con(e"ing
them fresh to mar)et, !ith their cre!s, cargoes, and stores, shall not
$e molested on their fishing (o"ages and $ringing the same to mar)et,
and that no fishing (essels of this description shall hereafter $e
molested. And the @ight .onora$le the 8ords Commissioners of .is
Majest"Is 4reasur", the 8ords Commissioners of the Admiralt", and the
Audge of the .igh Court of Admiralt", are to gi(e the necessar"
directions herein as to them ma" respecti(el" appertain.= 5 C. @o$.
,78.
Again, in the order in council of Ma" -, 1817, !hich directed that
=all (essels !hich shall ha(e cleared out from an" port so far under the
control of &rance or her allies as that :ritish (essels ma" not freel"
trade thereat, and !hich are emplo"ed in the !hale fisher", or other
fisher" of an" description, sa(e as hereinafter e'cepted, and are
returning, or destined to return either to the port from !hence the"
cleared, or to an" other port or place at !hich the :ritish flag ma" not
freel" trade, shall $e captured and condemned together !ith their
stores and cargoes, as prie to the captors,=
there !ere e'cepted =(essels emplo"ed in catching and con(e"ing fish fresh
to mar)et, such (essels not $eing fitted or pro(ided for the curing of fish.=
0d!.Adm. app'. 8.
<heaton, in his 5igest of the 8a! of Maritime Captures and 6ries,
pu$lished in 1815, !roteD
=#t has $een usual in maritime !ars to e'empt from capture fishing
$oats and their cargoes, $oth from (ie!s of mutual accommodation
$et!een neigh$oring countries, and from tenderness to a poor and
industrious order of people. 4his custom, so honora$le to the humanit"
of ci(ilied nations, has fallen into disuse, and it is remar)a$le that
$oth &rance and 0ngland mutuall" reproach each other !ith that
$reach of good faith !hich has finall" a$olished it.= <heaton,
Captures, c. -, ? 18.
4his statement clearl" e'hi$its <heatonIs opinion that the custom had $een
a general one, as !ell as that it ought to remain so. .is assumption that it
had $een a$olished $" the differences $et!een &rance and 0ngland at the
close of the last centur" !as hardl" justified $" the state of things !hen he
!rote, and has not since $een $orne out.
5uring the !ars of the &rench 0mpire, as $oth &rench and 0nglish !riters
agree, the coast fisheries !ere left in peace. - 2rtolan 5,/ 5e :oec) ? 193/
.all ? 1,8. 5e :oec) %uaintl" and trul" adds, =and the incidents of 1877
and of 1871 had no morro! ++ nIeurent pas de lendemain.=
#n the !ar !ith Me'ico, in 18,9, the United *tates recognied the
e'emption of coast fishing $oats from capture. #n proof of this, counsel
ha(e referred to records of the 3a(" 5epartment, !hich this Court is clearl"
authoried to consult upon such a %uestion. Aones (. United *tates,137 U.
*. -7-/Underhill (. .ernande,198 U. *. -57, 198 U. *. -53.
:" those records, it appears that Commodore Conner, commanding the
.ome *%uadron $loc)ading the east coast of Me'ico, on Ma" 1,, 18,9,
!rote a letter from the ship Cum$erland, off :raos *antiago, near the
southern point of 4e'as, to Mr. :ancroft, the *ecretar" of the 3a(",
enclosing a cop" of the commodoreIs =instructions to the commanders of the
(essels of the .ome *%uadron, sho!ing the principles to $e o$ser(ed in the
$loc)ade of the Me'ican ports,= one of !hich !as that =Me'ican $oats
engaged in fishing on an" part of the coast !ill $e allo!ed to pursue their
la$ors unmolested,= and that, on Aune 17, 18,9, those instructions !ere
appro(ed $" the 3a(" 5epartment, of !hich Mr. :ancroft !as still the head,
and continued to $e until he !as appointed Minister to 0ngland in
*eptem$er follo!ing. Although Commodore ConnerIs instructions and the
5epartmentIs appro(al thereof do not appear in an" contemporar"
pu$lication of the go(ernment, the" e(identl" $ecame generall" )no!n at
the time, or soon after, for it is stated in se(eral treatises on international
la! F$eginning !ith 2rtolanIs second edition, pu$lished in 1853G that the
United *tates in the Me'ican !ar permitted the coast fishermen of the
enem" to continue the free e'ercise of their industr". - 2rtolan F-d ed.G ,9,
note/ F,th ed.G 55/ , Cal(o F5th ed.G ? -37-/ 5e :oec) ? 19,/ .all F,th
ed.G ? 1,8.
As %ualif"ing the effect of those statements, the counsel for the United
*tates relied on a proclamation of Commodore *toc)ton, commanding the
6acific *%uadron, dated August -7, 18,9, directing officers under his
command to proceed immediatel" to $loc)ade the ports of Maatlan and
*an :las, on the !est coast of Me'ico, and sa"ing to them,
=All neutral (essels that "ou ma" find there "ou !ill allo! t!ent" da"s
to depart, and "ou !ill ma)e the $loc)ade a$solute against all (essels,
e'cept armed (essels of neutral nations. 1ou !ill capture all (essels
under the Me'ican flag that "ou ma" $e a$le to ta)e.=
3a(" @eports of 18,9, pp. 973, 97,. :ut there is nothing to sho! that
Commodore *toc)ton intended, or that the go(ernment appro(ed, the
capture of coast fishing (essels.
2n the contrar", Beneral .allec), in the preface to his !or) on #nternational
8a!, or @ules @egulating the #ntercourse of states in 6eace and <ar,
pu$lished in 1891, sa"s that he $egan that !or) during the !ar $et!een the
United *tates and Me'ico =!hile ser(ing on the staff of the commander of
the 6acific *%uadron,= and =often re%uired to gi(e opinions on %uestions of
international la! gro!ing out of the operations of the !ar.= .ad the practice
of the $loc)ading s%uadron on the !est coast of Me'ico during that !ar, in
regard to fishing (essels, differed from that appro(ed $" the 3a("
5epartment on the east coast, Beneral .allec) could hardl" ha(e failed to
mention it !hen stating the pre(ailing doctrine upon the su$ject as follo!sD
=&ishing $oats ha(e also, as a general rule, $een e'empted from the
effects of hostilities. As earl" as 15-1, !hile !ar !as raging $et!een
Charles E and &rancis, am$assadors from these t!o so(ereigns met at
Calais, then 0nglish, and agreed that, !hereas the herring fisher" !as
a$out to commence, the su$jects of $oth $elligerents engaged in this
pursuit should $e safe and unmolested $" the other part", and should
ha(e lea(e to fish as in time of peace. #n the !ar of 1877, the :ritish
and &rench go(ernments issued formal instructions e'empting the
fishing $oats of each otherIs su$jects from seiure. 4his order !as
su$se%uentl" rescinded $" the :ritish go(ernment on the alleged
ground that some &rench fishing $oats !ere e%uipped as gun$oats,
and that some &rench fishermen !ho had $een prisoners in 0ngland
had (iolated their parole not to ser(e, and had gone to join the &rench
fleet at :rest. *uch e'cuses !ere e(identl" mere prete'ts, and after
some angr" discussions had ta)en place on the su$ject, the :ritish
restriction !as !ithdra!n and the freedom of fishing !as again
allo!ed on $oth sides. &rench !riters consider this e'emption as an
esta$lished principle of the modern la! of !ar, and it has $een so
recognied in the &rench courts, !hich ha(e restored such (essels
!hen captured $" &rench cruisers.= .allec) F1st ed.G c. -7, ? -3.
4hat edition !as the onl" one sent out under the authorIs o!n auspices
e'cept an a$ridgment, entitled =0lements of #nternational 8a! and the 8a!
of <ar,= !hich he pu$lished in 1899, as he said in the preface, to suppl" a
suita$le te't$oo) for instruction upon the su$ject, =not onl" in our colleges,
$ut also in our t!o great national schools ++ the Militar" and 3a(al
Academies.= #n that a$ridgment, the statement as to fishing $oats !as
condensed as follo!sD
=&ishing $oats ha(e also, as a general rule, $een e'empted from the
effects of hostilities. &rench !riters consider this e'emption as an
esta$lished principle of the modern la! of !ar, and it has $een so
recognied in the &rench courts, !hich ha(e restored such (essels
!hen captured $" &rench cruisers.= .allec)Is 0lements, c. -7, ? -1.
#n the treat" of peace $et!een the United *tates and Me'ico, in 18,8, !ere
inserted the (er" !ords of the earlier treaties !ith 6russia, alread" %uoted,
for$idding the hostile molestation or seiure in time of !ar of the persons,
occupations, houses, or goods of fishermen. 9 *tat. 939, 9,7.
<hartonIs 5igest of the #nternational 8a! of the United *tates, pu$lished $"
authorit" of Congress in 1889 and 1887, em$odies Beneral .allec)Is fuller
statement, a$o(e %uoted, and contains nothing else upon the su$ject. 3
<hart. #nt.8a! 5ig. ? 3,5, p. 315/ - .allec) F0ng. eds. 1873 and 1878G p.
151.
&rance in the Crimean !ar in 185,, and in her !ars !ith #tal" in 1859 and
!ith Berman" in 1877, $" general orders, for$ade her cruisers to trou$le
the coast fisheries or to seie an" (essel or $oat engaged therein unless
na(al or militar" operations should ma)e it necessar". Cal(o, ? -37-/ .all, ?
1,8/ - 2rtolan F,th ed.G ,,9/ 17 @e(ue de 5roit #nternationale F1878G 399.
Cal(o sa"s that, in the Crimean <ar, =not!ithstanding her alliance !ith
&rance and #tal", 0ngland did not follo! the same line of conduct, and her
cruisers in the *ea of Aof destro"ed the fisheries, nets, fishing implements,
pro(isions, $oats, and e(en the ca$ins of the inha$itants of the coast.=
Cal(o ? -37-.
And a @ussian !riter on prie la! remar)s that those depredations, =ha(ing
$rought ruin on poor fishermen and inoffensi(e traders, could not $ut lea(e
a painful impression on the minds of the population, !ithout impairing in the
least the resources of the @ussian go(ernment.= ;atcheno(s)" F6rattIs ed.G
1,8.
:ut the contemporaneous reports of the 0nglish na(al officers put a different
face on the matter $" stating that the destruction in %uestion !as part of a
militar" measure, conducted !ith the cooperation of the &rench ships, and
pursuant to instructions of the 0nglish admiral
=to clear the sea$oard of all fish stores, all fisheries and mills, on a
scale $e"ond the !ants of the neigh$oring population, and indeed of
all things destined to contri$ute to the maintenance of the enem"Is
arm" in the Crimea,=
and that the propert" destro"ed consisted of large fishing esta$lishments
and storehouses of the @ussian go(ernment, num$ers of hea(" launches,
and enormous %uantities of nets and gear, salted fish, corn, and other
pro(isions intended for the suppl" of the @ussian arm". United *er(ice
Aournal of 1855, pt. 3, pp. 178+11-.
*ince the 0nglish orders in council of 1879 and 1817, $efore %uoted, in
fa(or of fishing (essels emplo"ed in catching and $ringing to mar)et fresh
fish, no instance has $een found in !hich the e'emption from capture of
pri(ate coast fishing (essels honestl" pursuing their peaceful industr" has
$een denied $" 0ngland or $" an" other nation. And the 0mpire of Aapan
Fthe last state admitted into the ran) of ci(ilied nationsG, $" an ordinance
promulgated at the $eginning of its !ar !ith China in August, 189,,
esta$lished prie courts and ordained that =the follo!ing enem"Is (essels
are e'empt from detention,= including in the e'emption =$oats engaged in
coast fisheries,= as !ell as =ships engaged e'clusi(el" on a (o"age of
scientific disco(er", philanthroph", or religious mission.= 4a)ahashi,
#nternational 8a! 11, 178.
#nternational la! is part of our la!, and must $e ascertained and
administered $" the courts of justice of appropriate jurisdiction as often as
%uestions of right depending upon it are dul" presented for their
determination. &or this purpose, !here there is no treat" and no controlling
e'ecuti(e or legislati(e act or judicial decision, resort must $e had to the
customs and usages of ci(ilied nations, and, as e(idence of these, to the
!or)s of jurists and commentators !ho $" "ears of la$or, research, and
e'perience ha(e made themsel(es peculiarl" !ell ac%uainted !ith the
su$jects of !hich the" treat. *uch !or)s are resorted to $" judicial
tri$unals not for the speculations of their authors concerning !hat the la!
ought to $e, $ut for trust!orth" e(idence of !hat the la! reall" is. .ilton (.
Bu"ot,159 U. *. 113, 159 U. *. 193+19,, 159 U. *. -1,+-15.
<heaton places among the principal sources international la!
=te't !riters of authorit", sho!ing !hat is the appro(ed usage of
nations, or the general opinion respecting their mutual conduct, !ith
the definitions and modifications introduced $" general consent.=
As to these, he forci$l" o$ser(esD
=<ithout !ishing to e'aggerate the importance of these !riters or to
su$stitute, in an" case, their authorit" for the principles of reason, it
ma" $e affirmed that the" are generall" impartial in their judgment.
4he" are !itnesses of the sentiments and usages of ci(ilied nations,
and the !eight of their testimon" increases e(er" time that their
authorit" is in(o)ed $" statesmen, and e(er" "ear that passes !ithout
the rules laid do!n in their !or)s $eing impugned $" the a(o!al of
contrar" principles.= <heaton, #nternational 8a! F8th ed.G, ? 15.
Chancellor ;ent sa"sD
=#n the a$sence of higher and more authoritati(e sanctions, the
ordinances of foreign states, the opinions of eminent statesmen, and
the !ritings of distinguished jurists are regarded as of great
consideration on %uestions not settled $" con(entional la!. #n cases
!here the principal jurists agree, the presumption !ill $e (er" great in
fa(or of the solidit" of their ma'ims, and no ci(ilied nation that does
not arrogantl" set all ordinar" la! and justice at defiance !ill (enture
to disregard the uniform sense of the esta$lished !riters on
international la!.= 1 ;ent, Com. 18.
#t !ill $e con(enient, in the first place, to refer to some leading &rench
treatises on international la!, !hich deal !ith the %uestion no! $efore us,
not as one of the la! of &rance onl", $ut as one determined $" the general
consent of ci(ilied nations.
=0nem" ships,= sa" 6isto"e and 5u(erd", in their 4reatise on Maritime
6ries, pu$lished in 1855, =are good prie. 3ot all, ho!e(er, for it results
from the unanimous accord of the maritime po!ers that an e'ception should
$e made in fa(or of coast fishermen. *uch fishermen are respected $" the
enem" so long as the" de(ote themsel(es e'clusi(el" to fishing.= 1 6isto"e
et 5u(erd", 4it. 9, c. 1, p. 31,.
5e Cuss", in his !or) on the 6hases and 8eading cases of the Maritime 8a!
of 3ations ++ 6hases et Causes Cele$res du 5roit Maritime des 3ations ++
pu$lished in 1859, affirms in the clearest language the e'emption from
capture of fishing $oats, sa"ing, in li$. 1, 4it. 3, ? 39, that
=in time of !ar, the freedom of fishing is respected $" $elligerents/
fishing $oats are considered as neutral/ in la!, as in principle, the" are
not su$ject either to capture or to confiscation,=
and that in li$. -, c. -7, he !ill state
=se(eral facts and se(eral decisions !hich pro(e that the perfect
freedom and neutralit" of fishing $oats are not illusor".= 1 5e Cuss", p.
-91.
And in the chapter so referred to, entitled 5e la 8i$erte et de la 3eutralite
6arfaite de la 6eche, $esides references to the edicts and decisions in &rance
during the &rench @e(olution, is this general statementD
=#f one consulted onl" positi(e international la! H 1e droit des gens
positif ++ L$" !hich is e(identl" meant international la! e'pressed in
treaties, decrees, or other pu$lic acts, as distinguished from !hat ma"
$e implied from custom or usageM, fishing $oats !ould $e su$ject, li)e
all other trading (essels, to the la! of prie/ a sort of tacit agreement
among all 0uropean nations frees them from it, and se(eral official
declarations ha(e confirmed this pri(ilege in fa(or of Ia class of men
!hose hard and ill re!arded la$or, commonl" performed $" fee$le and
aged hands, is so foreign to the operations of !ar.I= - 5e Cuss" 19,,
195.
2rtolan, in the fourth edition of his @egles #nternationales et 5iplomatie de
la Mer, pu$lished in 189,, after stating the general rule that the (essels and
cargoes of su$jects of the enem" are la!ful prie, sa"sD
=3e(ertheless, custom admits an e'ception in fa(or of $oats engaged
in the coast fisher"/ these $oats, as !ell as their cre!s, are free from
capture and e'empt from all hostilities. 4he coast+fishing industr" is, in
truth, !holl" pacific, and of much less importance in regard to the
national !ealth that it ma" produce than maritime commerce or the
great fisheries. 6eaceful and !holl" inoffensi(e, those !ho carr" it on,
among !hom !omen are often seen, ma" $e called the har(esters of
the territorial seas, since the" confine themsel(es to gathering in the
products thereof/ the" are for the most part poor families !ho see) in
this calling hardl" more than the means of gaining their li(elihood.= -
2rtolan 51.
Again, after o$ser(ing that there are (er" fe! solemn pu$lic treaties !hich
ma)e mention of the immunit" of fishing $oats in time of !ar, he sa"sD
=&rom another point of (ie!, the custom !hich sanctions this immunit"
is not so general that it can $e considered as ma)ing an a$solute
international rule/ $ut it has $een so often put in practice, and,
$esides, it accords so !ell !ith the rule in use in !ars on land, in
regard to peasants and hus$andmen, to !hom coast fishermen ma" $e
li)ened, that it !ill dou$tless continue to $e follo!ed in maritime !ars
to come.= - 2rtolan 55.
3o international jurist of the present da" has a !ider or more deser(ed
reputation than Cal(o, !ho, though !riting in &rench, is a citien of the
Argentine @epu$lic emplo"ed in its diplomatic ser(ice a$road. #n the fifth
edition of his great !or) on international la!, pu$lished in 1899, he
o$ser(es, in ? -399, that the international authorit" of decisions in
particular cases $" the prie courts of &rance, of 0ngland, and of the United
*tates is lessened $" the fact that the principles on !hich the" are $ased
are largel" deri(ed from the internal legislation of each countr", and "et the
peculiar character of maritime !ars, !ith other considerations, gi(es to prie
jurisprudence a force and importance reaching $e"ond the limits of the
countr" in !hich it has pre(ailed. .e therefore proposes here to group
together a num$er of particular cases proper to ser(e as precedents for the
solution of gra(e %uestions of maritime la! in regard to the capture of
pri(ate propert" as prie of !ar. #mmediatel", in ? -397, he goes on to sa"D
=3ot!ithstanding the hardships to !hich maritime !ars su$ject pri(ate
propert", not!ithstanding the e'tent of the recognied rights of
$elligerents, there are generall" e'empted, from seiure and capture,
fishing (essels.=
#n the ne't section, he addsD =4his e'ception is perfectl" justicia$le ++ Cette
e'ception est parfaitement justicia$le= ++ that is to sa", $elonging to judicial
jurisdiction or cogniance. 8ittre, 5ist.(oc. Austicia$le/ .ans (.
8ouisiana,13, U. *. 1, 13, U. *. 15. Cal(o then %uotes 2rtolanIs
description, a$o(e cited, of the nature of the coast+fishing industr", and
proceeds to refer in detail to some of the &rench precedents, to the acts of
the &rench and 0nglish go(ernments in the times of 8ouis KE# and of the
&rench @e(olution, to the position of the United *tates in the !ar !ith
Me'ico, and of &rance in later !ars, and to the action of :ritish cruisers in
the Crimean !ar. And he concludes his discussion of the su$ject, in ? -373,
$" affirming the e'emption of the coast fisher" and pointing out the
distinction in this regard $et!een the coast fisher" and !hat he calls the
great fisher", for cod, !hales, or seals, as follo!sD
=4he pri(ilege of e'emption from capture, !hich is generall" ac%uired
$" fishing (essels pl"ing their industr" near the coasts, is not e'tended
in an" countr" to ships emplo"ed on the high sea in !hat is called the
great fisher", such as that for the cod, for the !hale or the sperm
!hale, or for the seal or sea calf. 4hese ships are, in effect, considered
as de(oted to operations !hich are at once commercial and industrial
++ Ces na(ires sont en effect consideres comme adonnes a des
operations a la fois commerciales et industrielles.=
4he distinction is generall" recognied. - 2rtolan 5,/ 5e :oec) ? 199/ .all,
? 1,8. *ee also 4he *usa, - C. @o$. -51/ 4he Aohan, 0d!.Adm. -75, and
app'. 8.
4he modern Berman $oo)s on international la!, cited $" the counsel for the
appellants, treat the custom $" !hich the (essels and implements of coast
fishermen are e'empt from seiure and capture as !ell esta$lished $" the
practice of nations. .effter ? 137/ - ;alter$orn ? -37, p. ,87/ :luntschli ?
997/ 6erels ? 37, p. -17.
5e :oec), in his !or) on 0nem" 6ri(ate 6ropert" under 0nem"Is &lag ++ 5e
la 6ropriete 6ri(ee 0nnemie sous 6a(illon 0nnemi ++ pu$lished in 188-, and
the onl" continental treatise cited $" the counsel for the United *tates, sa"s
in ? 191D
=A usage (er" ancient, if not uni(ersal, !ithdra!s from the right of
capture enem" (essels engaged in the coast fisher". 4he reason of this
e'ception is e(ident/ it !ould ha(e $een too hard to snatch from poor
fishermen the means of earning their $read. . . . 4he e'emption
includes the $oats, the fishing implements, and the cargo of fish.=
Again, in ? 195D
=#t is to $e o$ser(ed that (er" fe! treatises sanction in due form this
immunit" of the coast fisher". . . . 4here is, then, onl" a custom. :ut
!hat is its characterN #s it so fi'ed and general that it can $e raised to
the ran) of a positi(e and formal rule of international la!N=
After discussing the statements of other !riters, he appro(es the opinion of
2rtolan Fas e'pressed in the last sentence a$o(e %uoted from his !or)G and
sa"s that, at $ottom, it differs $" a shade onl" from that formulated $"
Cal(o and $" some of the Berman jurists, and that
=it is more e'act, !ithout ignoring the imperati(e character of the humane
rule in %uestion ++ elle est plus e'acte, sans meconnaitre le caractere
imperatif de la regle dIhumanite dont il sIagit.=
And in ? 199 he defines the limits of the rule as follo!sD
=:ut the immunit" of the coast fisher" must $e limited $" the reasons
!hich justif" it. 4he reasons of humanit" and of harmlessness ++ les
raisons dIhumanite et dIinnocuite ++ !hich militate in its fa(or do not
e'ist in the great fisher", such as the cod fisher"/ ships engaged in
that fisher" de(ote themsel(es to trul" commercial operations, !hich
emplo" a large num$er of seamen. And these same reasons cease to
$e applica$le to fishing (essels emplo"ed for a !arli)e purpose, to
those !hich conceal arms, or !hich e'change signals of intelligence
!ith ships of !ar/ $ut onl" those ta)en in the fact can $e rigorousl"
treated/ to allo! seiure $" !a" of pre(enti(e !ould open the door to
e(er" a$use, and !ould $e e%ui(alent to a suppression of the
immunit".=
4!o recent 0nglish te't !riters cited at the $ar Finfluenced $" !hat 8ord
*to!ell said a centur" sinceG hesitate to recognie that the e'emption of
coast fishing (essels from capture has no! $ecome a settled rule of
international la!. 1et the" $oth admit that there is little real difference in
the (ie!s, or in the practice, of 0ngland and of other maritime nations, and
that no ci(ilied nation at the present da" !ould molest coast fishing (essels
so long as the" !ere peacea$l" pursuing their calling and there !as no
danger that the" or their cre!s might $e of militar" use to the enem". .all,
in ? 1,8 of the fourth edition of his 4reatise on #nternational 8a!, after
$riefl" s)etching the histor" of the positions occupied $" &rance and 0ngland
at different periods, and $" the United *tates in the Me'ican !ar, goes on to
sa"D
=#n the foregoing facts there is nothing to sho! that much real
difference has e'isted in the practice of the maritime countries.
0ngland does not seem to ha(e $een un!illing to spare fishing (essels
so long as the" are harmless, and it does not appear that an" state
has accorded them immunit" under circumstances of incon(enience to
itself. #t is li)el" that all nations !ould no! refrain from molesting
them as a general rule, and !ould capture them so soon as an" danger
arose that the" or their cre!s might $e of militar" use to the enem",
and it is also li)el" that it is impossi$le to grant them a more distinct
e'emption.=
*o, 4. A.8a!rence, in ? -79 of his 6rinciples of #nternational 8a!, sa"sD
=4he difference $et!een the 0nglish and the &rench (ie! is more
apparent than real, for no ci(ilied $elligerent !ould no! capture the
$oats of fishermen pl"ing their a(ocation peacea$l" in the territorial
!aters of their o!n state, and no jurist !ould seriousl" argue that
their immunit" must $e respected if the" !ere used for !arli)e
purposes, as !ere the smac)s $elonging to the northern ports of
&rance !hen Breat :ritain ga(e the order to capture them in 1877.=
:ut there are !riters of (arious maritime countries not "et cited too
important to $e passed $" !ithout notice.
Aan .elenus &erguson, 3etherlands Minister to China, and pre(iousl" in the
na(al and in the colonial ser(ice of his countr", in his Manual of #nternational
8a! for the Use of 3a(ies, Colonies, and Consulates, pu$lished in 188-,
!ritesD
=An e'ception to the usage of capturing enem"Is pri(ate (essels at sea
is the coast fisher". . . . 4his principle of immunit" from capture of
fishing $oats is generall" adopted $" all maritime po!ers, and in actual
!arfare the" are uni(ersall" spared so long as the" remain harmless.=
- &erguson ? -1-.
&erdinand Attlma"r, captain in the Austrian 3a(", in his Manual for 3a(al
2fficers, pu$lished at Eienna in 187- under the auspices of Admiral
4egetthoff, sa"sD
=@egarding the capture of enem" propert", an e'ception must $e
mentioned, !hich is a uni(ersal custom. &ishing (essels !hich $elong
to the adjacent coast, and !hose $usiness "ields onl" a necessar"
li(elihood, are, from considerations of humanit", uni(ersall" e'cluded
from capture.= 1 Attlma"r 91.
#gnacio de Megrin, &irst 2fficial of the *panish :oard of Admiralt", in his
0lementar" 4reatise on Maritime #nternational 8a!, adopted $" ro"al order
as a te't$oo) in the na(al schools of *pain and pu$lished at Madrid in 1873,
concludes his chapter =2f the la!fulness of pries= !ith these !ordsD
=#t remains to $e added that the custom of all ci(ilied peoples
e'cludes from capture and from all )ind of hostilit" the fishing (essels
of the enem"Is coasts, considering this industr" as a$solutel"
inoffensi(e, and deser(ing, from its hardships and usefulness, of this
fa(ora$le e'ception. #t has $een thus e'pressed in (er" man"
international con(entions, so that it can $e deemed an incontesta$le
principle of la! at least among enlightened nations.= 3egrin, 4it. 3, c.
1, ? 317.
Carlos 4esta, captain in the 6ortuguese 3a(" and professor in the na(al
school at 8is$on, in his !or) on 6u$lic #nternational 8a!, pu$lished in
&rench at 6aris in 1889, !hen discussing the general right of capturing
enem" ships, sa"sD
=3e(ertheless, in this, customar" la! esta$lishes an e'ception of
immunit" in fa(or of coast fishing (essels. &ishing is so peaceful an
industr", and is generall" carried on $" so poor and so hard!or)ing a
class of men, that it is li)ened, in the territorial !aters of the enem"Is
countr", to the class of hus$andmen !ho gather the fruits of the earth
for their li(elihood. 4he e'amples and practice generall" follo!ed
esta$lish this humane and $eneficent e'ception as an international
rule, and this rule ma" $e considered as adopted $" customar" la!
and $" all ci(ilied nations.=
4esta, pt. 3, c. -, in 18 :i$liothe%ue #nternational et 5iplomati%ue, pp. 15-,
153.
3o less clearl" and decisi(el" spea)s the distinguished #talian jurist,
6as%uale &iore, in the enlarged edition of his e'hausti(e !or) on 6u$lic
#nternational 8a!, pu$lished at 6aris in 1885+1889, sa"ingD
=4he (essels of fishermen ha(e $een generall" declared e'empt from
confiscation $ecause of the eminentl" peaceful o$ject of their hum$le
industr" and of the principles of e%uit" and humanit". 4he e'emption
includes the (essel, the implements of fishing, and the cargo resulting
from the fisher". 4his usage, eminentl" humane, goes $ac) to (er"
ancient times, and although the immunit" of the fisher" along the
coasts ma" not ha(e $een sanctioned $" treaties, "et it is considered
toda" as so definitel" esta$lished that the in(iola$ilit" of (essels
de(oted to that fisher" is proclaimed $" the pu$licists as a positi(e rule
of international la!, and is generall" respected $" the nations.
Conse%uentl" !e shall la" do!n the follo!ing ruleD FaG (essels
$elonging to citiens of the enem" state, and de(oted to fishing along
the coasts, cannot $e su$ject to capture/ F$G such (essels, ho!e(er,
!ill lose all right of e'emption !hen emplo"ed for a !arli)e purpose/
FcG there ma" ne(ertheless $e su$jected to capture (essels de(oted to
the great fisher" in the ocean, such as those emplo"ed in the !hale
fisher", or in that for seals or sea cal(es.= 3 &iore ? 1,-1.
4his re(ie! of the precedents and authorities on the su$ject appears to us
a$undantl" to demonstrate that, at the present da", $" the general consent
of the ci(ilied nations of the !orld, and independentl" of an" e'press treat"
or other pu$lic act, it is an esta$lished rule of international la!, founded on
considerations of humanit" to a poor and industrious order of men, and of
the mutual con(enience of $elligerent states, that coast fishing (essels, !ith
their implements and supplies, cargoes and cre!s, unarmed and honestl"
pursuing their peaceful calling of catching and $ringing in fresh fish, are
e'empt from capture as prie of !ar.
4he e'emption, of course, does not appl" to coast fishermen or their (essels
if emplo"ed for a !arli)e purpose, or in such a !a" as to gi(e aid or
information to the enem", nor !hen militar" or na(al operations create a
necessit" to !hich all pri(ate interests must gi(e !a".
3or has the e'emption $een e'tended to ships or (essels emplo"ed on the
high sea in ta)ing !hales or seals or cod or other fish !hich are not $rought
fresh to mar)et, $ut are salted or other!ise cured and made a regular
article of commerce.
4his rule of international la! is one !hich prie courts administering the la!
of nations are $ound to ta)e judicial notice of, and to gi(e effect to, in the
a$sence of an" treat" or other pu$lic act of their o!n go(ernment in relation
to the matter.
Cal(o, in a passage alread" %uoted, distinctl" affirms that the e'emption of
coast fishing (essels from capture is perfectl" justicia$le, or, in other !ords,
of judicial jurisdiction or cogniance. Cal(o ? -398. 3or are judicial
precedents !anting in support of the (ie! that this e'emption, or a
some!hat analogous one, should $e recognied and declared $" a prie
court.
:" the practice of all ci(ilied nations, (essels emplo"ed onl" for the
purposes of disco(er" or science are considered as e'empt from the
contingencies of !ar, and therefore not su$ject to capture. #t has $een usual
for the go(ernment sending out such an e'pedition to gi(e notice to other
po!ers, $ut it is not essential. 1 ;ent, Com. 91, note/ .allec), c. -7, ? --/
Cal(o ? -379/ .all ? 138.
#n 1813, !hile the United *tates !ere at !ar !ith 0ngland, an American
(essel on her (o"age from #tal" to the United *tates !as captured $" an
0nglish ship, and $rought into .alifa', in 3o(a *cotia, and, !ith her cargo,
condemned as la!ful prie $" the court of (ice admiralt" there. :ut a
petition for the restitution of a case of paintings and engra(ings !hich had
$een presented to and !ere o!ned $" the Academ" of Arts in 6hiladelphia
!as granted $" 5r. Cro)e, the judge of that court, !ho saidD
=4he same la! of nations !hich prescri$es that all propert" $elonging
to the enem" shall $e lia$le to confiscation has li)e!ise its
modifications and rela'ations of that rule. 4he arts and sciences are
admitted amongst all ci(ilied nations as forming an e'ception to the
se(ere rights of !arfare, and as entitled to fa(or and protection. 4he"
are considered not as the peculium of this or of that nation, $ut as the
propert" of man)ind at large, and as $elonging to the common
interests of the !hole species.=
And he added that there had $een =innumera$le cases of the mutual
e'ercise of this courtes" $et!een nations in former !ars.= 4he Mar%uis de
*omerueles, *te!art Adm. F3o(a *cotiaG ,,5, ,8-.
#n 1891, during the !ar of the @e$ellion, a similar decision !as made in the
5istrict Court of the United *tates for the 0astern 5istrict of 6enns"l(ania in
regard to t!o cases of $oo)s $elonging and consigned to a uni(ersit" in
3orth Carolina. Audge Cad!alader, in ordering these $oo)s to $e li$erated
from the custod" of the marshal and restored to the agent of the uni(ersit",
saidD
=4hough this claimant, as the resident of a hostile district, !ould not
$e entitled to restitution of the su$ject of a commercial ad(enture in
$oo)s, the purpose of the shipment in %uestion gi(es to it a different
character. 4he United *tates, in prosecuting hostilities for the
restoration of their constitutional authorit", are compelled incidentall"
to confiscate propert" captured at sea, of !hich the proceeds !ould
other!ise increase the !ealth of that district. :ut the United *tates are
not at !ar !ith literature in that part of their territor".=
.e then referred to the decision in 3o(a *cotia, and to the &rench decisions
upon cases of fishing (essels, as precedents for the decree !hich he !as
a$out to pronounce, and he added that, !ithout an" such precedents, he
should ha(e had no difficult" in li$erating these $oo)s. 4he Amelia, ,
6hiladelphia ,17.
#n :ro!n (. United *tates, 8 Cranch 117, there are e'pressions of Chief
Austice Marshall !hich, ta)en $" themsel(es, might seem inconsistent !ith
the position a$o(e maintained, of the dut" of a prie court to ta)e judicial
notice of a rule of international la!, esta$lished $" the general usage of
ci(ilied nations, as to the )ind of propert" su$ject to capture. :ut the
actual decision in that case, and the leading reasons on !hich it !as $ased,
appear to us rather to confirm our position. 4he principal %uestion there !as
!hether personal propert" of a :ritish su$ject, found on land in the United
*tates at the $eginning of the last !ar !ith Breat :ritain, could la!full" $e
condemned as enem"Is propert" on a li$el filed $" the attorne" of the
United *tates, !ithout a positi(e act of Congress. 4he conclusion of the
Court !as
=that the po!er of confiscating enem" propert" is in the legislature,
and that the legislature has not "et declared its !ill to confiscate
propert" !hich !as !ithin our territor" at the declaration of !ar.= 8
Cranch 1- U. *. 1-9.
#n sho!ing that the declaration of !ar did not, of itself, (est the 0'ecuti(e
!ith authorit" to order such propert" to $e confiscated, the Chief Austice
relied on the modern usages of nations, sa"ingD
=4he uni(ersal practice of for$earing to seie and confiscate de$ts and
credits, the principle uni(ersall" recei(ed that the right to them re(i(es
on the restoration of peace, !ould seem to pro(e that !ar is not an
a$solute confiscation of this propert", $ut simpl" confers the right of
confiscation,=
and againD
=4he modern rule, then, !ould seem to $e that tangi$le propert"
$elonging to an enem", and found in the countr" at the
commencement of !ar, ought not to $e immediatel" confiscated, and
in almost e(er" commercial treat", an article is inserted stipulating for
the right to !ithdra! such propert".= 8 Cranch 1- U. *. 1-3+1-5.
4he decision that enem" propert" on land, !hich $" the modern usage of
nations is not su$ject to capture as prie of !ar, cannot $e condemned $" a
prie court, e(en $" direction of the 0'ecuti(e, !ithout e'press authorit"
from Congress appears to us to repel an" inference that coast fishing
(essels, !hich are e'empt $" the general consent of ci(ilied nations from
capture and !hich no act of Congress or order of the 6resident has
e'pressl" authoried to $e ta)en and confiscated, must $e condemned $" a
prie court for !ant of a distinct e'emption in a treat" or other pu$lic act of
the go(ernment.
4o this su$ject in more than one aspect are singularl" applica$le the !ords
uttered $" Mr. Austice *trong, spea)ing for this CourtD
=Undou$tedl" no single nation can change the la! of the sea. 4he la!
is of uni(ersal o$ligation, and no statute of one or t!o nations can
create o$ligations for the !orld. 8i)e all the la!s of nations, it rests
upon the common consent of ci(ilied communities. #t is of force not
$ecause it !as prescri$ed $" an" superior po!er, $ut $ecause it has
$een generall" accepted as a rule of conduct. <hate(er ma" ha(e
$een its origin, !hether in the usages of na(igation, or in the
ordinances of maritime states, or in $oth, it has $ecome the la! of the
sea onl" $" the concurrent sanction of those nations !ho ma" $e said
to constitute the commercial !orld. Man" of the usages !hich pre(ail,
and !hich ha(e the force of la!, dou$tless originated in the positi(e
prescriptions of some single state, !hich !ere at first of limited effect,
$ut !hich, !hen generall" accepted, $ecame of uni(ersal o$ligation.=
=4his is not gi(ing to the statutes of an" nation e'traterritorial effect. #t
is not treating them as general maritime la!s, $ut it is recognition of
the historical fact that, $" common consent of man)ind these rules
ha(e $een ac%uiesced in as of general o$ligation. 2f that fact !e thin)
!e ma" ta)e judicial notice. &oreign municipal la!s must indeed $e
pro(ed as facts, $ut it is not so !ith the la! of nations.= 4he *cotia, 1,
<all. 177, 81 U. *. 187+188.
4he position ta)en $" the United *tates during the recent !ar !ith *pain
!as %uite in accord !ith the rule of international la!, no! generall"
recognied $" ci(ilied nations, in regard to coast fishing (essels.
2n April -1, 1898, the *ecretar" of the 3a(" ga(e instructions to Admiral
*ampson, commanding the 3orth Atlantic *%uadron, to =immediatel"
institute a $loc)ade of the north coast of Cu$a, e'tending from Cardenas on
the east to :ahia .onda on the !est.= :ureau of 3a(igation @eport of 1898,
app'. 175. 4he $loc)ade !as immediatel" instituted accordingl". 2n April
--, the 6resident issued a proclamation declaring that the United *tates had
instituted and !ould maintain that $loc)ade =in pursuance of the la!s of the
United *tates, and the la! of nations applica$le to such cases.= 37 *tat.
1799. And $" the act of Congress of April -5, 1898, c. 189, it !as declared
that the !ar $et!een the United *tates and *pain e'isted on that da", and
had e'isted since and including April -1, 37 *tat. 39,.
2n April -9, 1898, the 6resident issued another proclamation !hich, after
reciting the e'istence of the !ar as declared $" Congress, contained this
further recitalD
=#t $eing desira$le that such !ar should $e conducted upon principles
in harmon" !ith the present (ie!s of nations and sanctioned $" their
recent practice.=
4his recital !as follo!ed $" specific declarations of certain rules for the
conduct of the !ar $" sea, ma)ing no mention of fishing (essels. 37 *tat.
1777. :ut the proclamation clearl" manifests the general polic" of the
go(ernment to conduct the !ar in accordance !ith the principles of
international la! sanctioned $" the recent practice of nations.
2n April -8, 1898 Fafter the capture of the t!o fishing (essels no! in
%uestionG, Admiral *ampson telegraphed to the *ecretar" of the 3a(" as
follo!sD
=# find that a large num$er of fishing schooners are attempting to get
into .a(ana from their fishing grounds near the &lorida reefs and
coasts. 4he" are generall" manned $" e'cellent seamen, $elonging to
the maritime inscription of *pain, !ho ha(e alread" ser(ed in the
*panish na(", and !ho are lia$le to further ser(ice. As these trained
men are na(al reser(es, most (alua$le to the *paniards as
artiller"men, either afloat or ashore, # recommend that the" should $e
detained prisoners of !ar, and that # should $e authoried to deli(er
them to the commanding officer of the arm" at ;e" <est.=
4o that communication the *ecretar" of the 3a(", on April 37, 1898,
guardedl" ans!eredD
=*panish fishing (essels attempting to (iolate $loc)ade are su$ject,
!ith cre!, to capture, and an" such (essel or cre! considered li)el" to
aid enem" ma" $e detained.=
:ureau of 3a(igation @eport of 1898, app'. 178. 4he admiralIs dispatch
assumed that he !as not authoried, !ithout e'press order, to arrest coast
fishermen peacea$l" pursuing their calling, and the necessar" implication
and e(ident intent of the response of the 3a(" 5epartment !ere that
*panish coast fishing (essels and their cre!s should not $e interfered !ith
so long as the" neither attempted to (iolate the $loc)ade nor !ere
considered li)el" to aid the enem".
4he 6a%uete .a$ana, as the record sho!s, !as a fishing sloop of -5 tons
$urden, sailing under the *panish flag, running in and out of .a(ana, and
regularl" engaged in fishing on the coast of Cu$a. .er cre! consisted of $ut
three men, including the master, and, according to a common usage in coast
fisheries, had no interest in the (essel, $ut !ere entitled to t!o+thirds of her
catch, the other third $elonging to her *panish o!ner, !ho, as !ell as the
cre!, resided in .a(ana. 2n her last (o"age, she sailed from .a(ana along
the coast of Cu$a, a$out t!o hundred miles, and fished for t!ent"+fi(e da"s
off the cape at the !est end of the island, !ithin the territorial !aters of
*pain, and !as going $ac) to .a(ana !ith her cargo of li(e fish !hen she
!as captured $" one of the $loc)ading s%uadron on April -5, 1898. *he had
no arms or ammunition on $oard/ she had no )no!ledge of the $loc)ade, or
e(en of the !ar, until she !as stopped $" a $loc)ading (essel/ she made no
attempt to run the $loc)ade, and no resistance at the time of the capture/
nor !as there an" e(idence !hate(er of li)elihood that she or her cre!
!ould aid the enem".
#n the case of the 8ola, the onl" differences in the facts !ere that she !as a
schooner of 35 tons $urden, and had a cre! of si' men, including the
master/ that, after lea(ing .a(ana and proceeding some t!o hundred miles
along the coast of Cu$a, she !ent on, a$out one hundred miles farther, to
the coast of 1ucatan, and there fished for eight da"s, and that, on her
return, !hen near :ahia .onda on the coast of Cu$a, she !as captured,
!ith her cargo of li(e fish, on April -7, 1898. 4hese differences afford no
ground for distinguishing the t!o cases.
0ach (essel !as of a moderate sie, such as is not unusual in coast fishing
smac)s, and !as regularl" engaged in fishing on the coast of Cu$a. 4he
cre! of each !ere fe! in num$er, had no interest in the (essel, and
recei(ed, in return for their toil and enterprise, t!o+thirds of her catch, the
other third going to her o!ner $" !a" of compensation for her use. 0ach
(essel !ent out from .a(ana to her fishing ground and !as captured !hen
returning along the coast of Cu$a. 4he cargo of each consisted of fresh fish,
caught $" her cre! from the sea and )ept ali(e on $oard. Although one of
the (essels e'tended her fishing trip across the 1ucatan channel and fished
on the coast of 1ucatan, !e cannot dou$t that each !as engaged in the
coast fisher", and not in a commercial ad(enture, !ithin the rule of
international la!.
4he t!o (essels and their cargoes !ere condemned $" the district court as
prie of !ar/ the (essels !ere sold under its decrees, and it does not appear
!hat $ecame of the fresh fish of !hich their cargoes consisted.
Upon the facts pro(ed in either case, it is the dut" of this Court, sitting as
the highest prie court of the United *tates and administering the la! of
nations, to declare and adjudge that the capture !as unla!ful and !ithout
pro$a$le cause, and it is therefore, in each case
2rdered, that the decree of the district court $e re(ersed, and the proceeds
of the sale of the (essel, together !ith the proceeds of an" sale of her
cargo, $e restored to the claimant, !ith damages and costs.
-.. /H01* 'UST0/1 *U221., 3&th 3ho# %on%urre! -.. 'UST0/1
HA.2AN an! -.. 'UST0/1 -%41NNA, !&ssent&n5
4he district court held these (essels and their cargoes lia$le $ecause not
=satisfied that, as a matter of la!, !ithout an" ordinance, treat", or
proclamation, fishing (essels of this class are e'empt from seiure.=
4his Court holds other!ise not $ecause such e'emption is to $e found in
an" treat", legislation, proclamation, or instruction granting it, $ut on the
ground that the (essels !ere e'empt $" reason of an esta$lished rule of
international la! applica$le to them !hich it is the dut" of the court to
enforce.
# am una$le to conclude that there is an" such esta$lished international
rule, or that this Court can properl" re(ise action !hich must $e treated as
ha(ing $een ta)en in the ordinar" e'ercise of discretion in the conduct of
!ar.
#n cannot $e maintained =that modern usage constitutes a rule !hich acts
directl" upon the thing itself $" its o!n force, and not through the so(ereign
po!er.= 4hat position !as disallo!ed in :ro!n (. United *tates, 8 Cranch
117, 1- U. *. 1-8, and Chief Austice Marshall saidD
=4his usage is a guide !hich the so(ereign follo!s or a$andons at his
!ill. 4he rule, li)e other precepts of moralit", of humanit", and e(en of
!isdom, is addressed to the judgment of the so(ereign, and although
it cannot $e disregarded $" him !ithout o$lo%u", "et it ma" $e
disregarded. 4he rule is in its nature fle'i$le. #t is su$ject to infinite
modification. #t is not an immuta$le rule of la!, $ut depends on
political considerations !hich ma" continuall" (ar".=
4he %uestion in that case related to the confiscation of the propert" of the
enem" on land !ithin our o!n territor", and it !as held that propert" so
situated could not $e confiscated !ithout an act of Congress. 4he Chief
Austice continuedD
=Commercial nations in the situation of the United *tates ha(e al!a"s
a considera$le %uantit" of propert" in the possession of their
neigh$ors. <hen !ar $rea)s out, the %uestion !hat shall $e done !ith
enem" propert" in our countr" is a %uestion rather of polic" than of
la!. 4he rule !hich !e appl" to the propert" of our enem" !ill $e
applied $" him to the propert" of our citiens. 8i)e all other %uestions
of polic", it is proper for the consideration of a department !hich can
modif" it at !ill, not for the consideration of a department !hich can
pursue onl" the la! as it is !ritten. #t is proper for the consideration of
the legislature, not of the e'ecuti(e or judiciar".=
4his case in(ol(es the capture of enem"Is propert" on the sea, and
e'ecuti(e action, and if the position that the alleged rule e' proprio
(igore limits the so(ereign po!er in !ar $e rejected, then # understand the
contention to $e that $" reason of the e'istence of the rule, the
proclamation of April -9 must $e read as if it contained the e'emption in
terms, or the e'emption must $e allo!ed $ecause the capture of fishing
(essels of this class !as not specificall" authoried.
4he pream$le to the proclamation stated, it is true, that it !as desira$le
that the !ar =should $e conducted upon principles in harmon" !ith the
present (ie!s of nations and sanctioned $" their recent practice,= $ut the
reference !as to the intention of the go(ernment =not to resort to
pri(ateering, $ut to adhere to the rules of the 5eclaration of 6aris,= and the
proclamation spo)e for itself. 4he language of the pream$le did not carr"
the e'emption in terms, and the real %uestion is !hether it must $e allo!ed
$ecause not affirmati(el" !ithheld ++ or, in other !ords, $ecause such
captures !ere not in terms directed.
4hese records sho! that the *panish sloop 6a%uete .a$ana =!as captured
as a prie of !ar $" the U.*.*. Castine= on April -5, and =!as deli(ered= $"
the CastineIs commander =to @ear Admiral <m. 4. *ampson Fcommanding
the 3orth Atlantic *%uadronG,= and thereupon =turned o(er= to a prie
master !ith instructions to proceed to ;e" <est.
And that the *panish schooner 8ola =!as captured as a prie of !ar $" the
U.*.*. 5olphin,= April -7, and =!as deli(ered= $" the 5olphinIs commander
=to @ear Admiral <m. 4. *ampson Fcommanding the 3orth Atlantic
*%uadronG,= and thereupon =turned o(er= to a prie master !ith instructions
to proceed to ;e" <est.
4hat the (essels !ere accordingl" ta)en to ;e" <est and there li$eled, and
that the decrees of condemnation !ere entered against them Ma" 37.
#t is impossi$le to concede that the Admiral ratified these captures in
disregard of esta$lished international la! and the proclamation, or that the
6resident, if he had $een of opinion that there !as an" infraction of la! or
proclamation, !ould not ha(e inter(ened prior to condemnation.
4he correspondence of April -8, 37, $et!een the Admiral and the *ecretar"
of the 3a(", %uoted from in the principal opinion, !as entirel" consistent
!ith the (alidit" of the captures.
4he %uestion put $" the Admiral related to the detention as prisoners of !ar
of the persons manning the fishing schooners =attempting to get into
.a(ana.= 3oncom$atants are not so detained e'cept for special reasons.
*ailors on $oard enem"Is trading (essels are made prisoners $ecause of
their fitness for immediate use on ships of !ar. 4herefore the Admiral
pointed out the (alue of these fishing seamen to the enem", and ad(ised
their detention. 4he *ecretar" replied that if the (essels referred to !ere
=attempting to (iolate $loc)ade,= the" !ere su$ject =!ith cre!= to capture,
and also that the" might $e detained if =considered li)el" to aid enem".= 4he
point !as !hether these cre!s should $e made prisoners of !ar. 2f course,
the" !ould $e lia$le to $e if in(ol(ed in the guilt of $loc)ade running, and
the *ecretar" agreed that the" might $e on the other ground in the
AdmiralIs discretion.
All this !as in accordance !ith the rules and usages of international la!,
!ith !hich, !hether in peace or !ar, the na(al ser(ice has al!a"s $een
necessaril" familiar.
# come then to e'amine the proposition
=that at the present da", $" the general consent of the ci(ilied nations
of the !orld and independentl" of an" e'press treat" or other pu$lic
act, it is an esta$lished rule of international la!, founded on
considerations of humanit" to a poor and industrious order of men,
and of the mutual con(enience of $elligerent states, that coast fishing
(essels, !ith their implements and supplies, cargoes, and cre!s,
unarmed, and honestl" pursuing their peaceful calling of catching and
$ringing in of fresh fish, are e'empt from capture as prie of !ar.=
4his, it is said, is a rule
=!hich prie courts, administering the la! of nations, are $ound to
ta)e judicial notice of, and to gi(e effect to, in the a$sence of treat" or
other pu$lic act of their o!n go(ernment.=
At the same time, it is admitted that the alleged e'emption does not appl"
=to coast fishermen or their (essels if emplo"ed for a !arli)e purpose
or in such a !a" as to gi(e aid or information to the enem", nor !hen
militar" or na(al operations create a necessit" to !hich all pri(ate
interests must gi(e !a",=
and further that the e'emption has not
=$een e'tended to ships or (essels emplo"ed on the high sea in ta)ing
!hales or seals, or cod or other fish !hich are not $rought fresh to
mar)et, $ut are salted or other!ise cured and made a regular article of
commerce.=
#t !ill $e percei(ed that the e'ceptions reduce the supposed rule to (er"
narro! limits, re%uiring a careful e'amination of the facts in order to
ascertain its applica$ilit", and the decision appears to me to go altogether
too far in respect of dealing !ith captures directed or ratified $" the officer
in command.
:ut !ere these t!o (essels !ithin the alleged e'emptionN 4he" !ere of
t!ent"+fi(e and thirt"+fi(e tons $urden, respecti(el". 4he" carried large
tan)s in !hich the fish ta)en !ere )ept ali(e. 4he" !ere o!ned $" citiens
of .a(ana, and the o!ners and the masters and cre! !ere to $e
compensated $" shares of the catch. 2ne of them had $een t!o hundred
miles from .a(ana, off Cape *an Antonio, for t!ent"+fi(e da"s, and the
other for eight da"s off the coast of 1ucatan. 4he" $elonged, in short, to the
class of fishing or coasting (essels of from fi(e to t!ent" tons $urden, and
from t!ent" tons up!ards, !hich, !hen licensed or enrolled as prescri$ed
$" the @e(ised *tatutes, are declared to $e (essels of the United *tates,
and the shares of !hose men, !hen the (essels are emplo"ed in fishing, are
regulated $" statute. 4he" !ere engaged in !hat !ere su$stantiall"
commercial (entures, and the mere fact that the fish !ere )ept ali(e $"
contri(ances for that purpose ++ a practice of considera$le anti%uit" ++ did
not render them an" the less an article of trade than if the" had $een
$rought in cured.
# do not thin) that, under the circumstances, the considerations !hich ha(e
operated to mitigate the e(ils of !ar in respect of indi(idual har(esters of
the soil can properl" $e in(o)ed on $ehalf of these hired (essels as $eing
the implements of li)e har(esters of the sea. 3ot onl" so as to the o!ners,
$ut as to the masters and cre!s. 4he principle !hich e'empts the
hus$andman and his instruments of la$or e'empts the industr" in !hich he
is engaged, and is not applica$le in protection of the continuance of
transactions of such character and e'tent as these.
#n truth, the e'emption of fishing craft is essentiall" an act of grace, and not
a matter of right, and it is e'tended or denied as the e'igenc" is $elie(ed to
demand.
#t is, said *ir <illiam *cott, =a rule of comit" onl", and not of legal decision.=
4he modern (ie! is thus e'pressed $" Mr. .allD
=0ngland does not seem to ha(e $een un!illing to spare fishing (essels
so long as the" are harmless, and it does not appear that an" state
has accorded them immunit" under circumstances of incon(enience to
itself. #t is li)el" that all nations !ould no! refrain from molesting
them as a general rule, and !ould capture them so soon as an" danger
arose that the" or their cre!s might $e of militar" use to the enem",
and it is also li)el" that it is impossi$le to grant them a more distinct
e'emption.=
#n the Crimean !ar, 185,+55, none of the orders in council, in terms, either
e'empted or included fishing (essels, "et the allied s%uadrons s!ept the
*ea of Aof of all craft capa$le of furnishing the means of transportation,
and the 0nglish admiral in the Bulf of &inland directed the destruction of all
@ussian coasting (essels not of sufficient (alue to $e detained as pries
e'cept =$oats or small craft !hich ma" $e found empt" at anchor, and not
traffic)ing.=
#t is difficult to concei(e of a la! of the sea of uni(ersal o$ligation to !hich
Breat :ritain has not acceded. And # am not a!are of ade%uate foundation
for imputing to this countr" the adoption of an" other than the 0nglish rule.
#n his lectures on #nternational 8a! at the 3a(al 8a! College, the late 5r.
&reeman *no! laid it do!n that the e'emption could not $e asserted as a
rule of international la!. 4hese lectures !ere edited $" Commodore
*toc)ton and pu$lished under the direction of the *ecretar" of the 3a(" in
1895, and, $" that department, in a second edition, in 1898, so that in
addition to the !ell )no!n merits of their author, the" possess the !eight to
$e attri$uted to the official imprimatur. 3either our treaties nor settled
practice are opposed to that conclusion.
#n (ie! of the circumstances surrounding the $rea)ing out of the Me'ican
!ar, Commodore Conner, commanding the .ome *%uadron, on Ma" 1,,
18,9, directed his officers, in respect of $loc)ade, not to molest =Me'ican
$oats engaged e'clusi(el" in fishing on an" part of the coast,= presuma$l"
small $oats in pro'imit" to the shore, !hile on the 6acific coast, Commodore
*toc)ton, in the succeeding August, ordered the capture of =all (essels
under the Me'ican flag.=
4he treaties !ith 6russia of 1785, 1799, and 18-8, and of 18,8 !ith Me'ico,
in e'empting fishermen, =unarmed and inha$iting unfortified to!ns, (illages,
or places,= did not e'empt fishing (essels from seiure as prie, and these
captures e(idence the con(ictions entertained and acted on in the late !ar
!ith *pain.
#n is needless to re(ie! the speculations and repetitions of the !riters on
international la!. 2rtolan, 5e :oec), and others admit that the custom
relied on as consecrating the immunit" is not so general as to create an
a$solute international rule/ .effter, Cal(o, and others are to the contrar".
4heir lucu$rations ma" $e persuasi(e, $ut not authoritati(e.
#n m" judgment, the rule is that e'emption from the rigors of !ar is in the
control of the 0'ecuti(e. .e is $ound $" no immuta$le rule on the su$ject.
#t is for him to appl", or to modif", or to den" altogether such immunit" as
ma" ha(e $een usuall" e'tended.
0'emptions ma" $e designated in ad(ance or granted according to
circumstances, $ut carr"ing on !ar in(ol(es the infliction of the hardships of
!ar, at least to the e'tent that the seiure or destruction of enem"Is
propert" on sea need not $e specificall" authoried in order to $e
accomplished.
:eing of opinion that these (essels !ere not e'empt as matter of la!, # am
constrained to dissent from the opinion and judgment of the Court, and m"
$rothers .A@8A3 and Mc;033A concur in this dissent.