Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO
TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS,
MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the Chief of Staff of the Armed forces of
the Philippines with having unlawfully disregarded and failed "to discharge his duties as such command,
permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" — comes before
this Court seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines:
to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating in the
prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare
and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence
petitioner argues — "That in view off the fact that this commission has been empanelled by virtue of an
unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of
our personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being
a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution
provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and offenses consequential
and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68
the President of the Philippines has acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in
chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off.
Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An
importance incident to a conduct of war is the adoption of measure by the military command
not only to repel and defeat the enemies but to seize and subject to disciplinary measure those
enemies who in their attempt to thwart or impede our military effort have violated the law of
war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of waging war. And in the
language of a writer a military commission has jurisdiction so long as a technical state of war
continues. This includes the period of an armistice or military occupation up to the effective of a
treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by
Military Tribunals, America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of
Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines is
not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them for our Constitution has been deliberately general and extensive in its
scope and is not confined to the recognition of rule and principle of international law as continued inn
treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
under the sovereignty of United States and thus we were equally bound together with the United States
and with Japan to the right and obligation contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption of full sovereignty. If at all our
emergency as a free state entitles us to enforce the right on our own of trying and punishing those who
committed crimes against crimes against our people. In this connection it is well to remember what we
have said in the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then Commonwealth
because it is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert
Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in
Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors
is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law
and not by the Rules of court which govern ordinary civil court. It has already been shown that Executive
Order No. 68 which provides for the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which requires that counsel appearing before
said commission must be attorneys qualified to practice law in the Philippines in accordance with the
Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually military
personnel who are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is
only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment of
her enemies. The least that we could do in the spirit of comity is to allow them representation in said
trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality
of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its
people have been equally if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for our Republic that a leader
nation should submit the vindication of the honor of its citizens and its government to a military tribunal
of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its
custody, this Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for
Violation of the laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to
practice law were appointed prosecutor representing the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order No. 68 of the President of the
Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also
challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the
commission.

The charges against petitioner has been filed since June 26, 1948 in the name of the people of the
Philippines as accusers.

We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It
appearing that they are aliens and have not been authorized by the Supreme Court to practice law there
could not be any question that said person cannot appear as prosecutors in petitioner case as with such
appearance they would be practicing law against the law.

Said violation vanishes however into insignificance at the side of the momentous question involved in
the challenge against the validity of Executive Order No. 68. Said order is challenged on several
constitutional ground. To get a clear idea of the question raised it is necessary to read the whole context
of said order which is reproduced as follows:

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND

REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the
Constitution and laws of the Philippines do hereby establish a National War Crimes Office
charged with the responsibility of accomplishing the speedy trial of all Japanese accused of war
crimes committed in the Philippines and prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate General of
the Army of the Philippines and shall function under the direction supervision and control of the
Judge Advocate General. It shall proceed to collect from all available sources evidence of war
crimes committed in the Philippines from the commencement of hostilities by Japan in
December 1941, maintain a record thereof and bring about the prompt trial maintain a record
thereof and bring about the prompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the Legal Section General
Headquarters, Supreme Commander for the Allied power and shall exchange with the said
Office information and evidence of war crimes.

The following rules and regulation shall govern the trial off person accused as war criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by military commission to be
convened by or under the authority of the Philippines.

II. JURISDICTION

(a) Over Person. — Thee military commission appointed hereunder shall have jurisdiction over
all persons charged with war crimes who are in the custody of the convening authority at the
time of the trial.

(b) Over Offenses. — The military commission established hereunder shall have jurisdiction over
all offenses including but not limited to the following:

(1) The planning preparation initiation or waging of a war of aggression or a war in violation of
international treaties agreement or assurance or participation in a common plan or conspiracy
for the accomplishment of any of the foregoing.

(2) Violation of the laws or customs of war. Such violation shall include but not be limited to
murder ill-treatment or deportation to slave labor or for other purpose of civilian population of
or in occupied territory; murder or ill-treatment of prisoners of war or internees or person on
the seas or elsewhere; improper treatment of hostage; plunder of public or private property
wanton destruction of cities towns or village; or devastation not justified by military necessity.

(3) Murder extermination enslavement deportation and other inhuman acts committed against
civilian population before or during the war or persecution on political racial or religion ground
in executive of or in connection with any crime defined herein whether or not in violation of the
local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. — The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be appointed
by the convening authority. Such shall attend all session of the commission, and in case of illness
or other incapacity of any principal member, an alternate shall take the place of that member.
Any vacancy among the members or alternates, occurring after a trial has begun, may be filled
by the convening authority but the substance of all proceeding had evidence taken in that case
shall be made known to the said new member or alternate. This facts shall be announced by the
president of the commission in open court.

(b) Number of Members. — Each commission shall consist of not less than three (3) members.

(c) Qualifications. — The convening authority shall appoint to the commission persons whom he
determines to be competent to perform the duties involved and not disqualified by personal
interest or prejudice, provided that no person shall be appointed to hear a case in which he
personally investigated or wherein his presence as a witness is required. One specially qualified
member whose ruling is final in so far as concerns the commission on an objection to the
admissibility of evidence offered during the trial.

(d) Voting. — Except as to the admissibility of evidence all rulings and finding of the Commission
shall be by majority vote except that conviction and sentence shall be by the affirmative vote of
not less than conviction and sentence shall be by the affirmative vote of not less than two-thirds
(2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority does not name one of the
member as the presiding member, the senior officer among the member of the Commission
present shall preside.

IV. PROSECUTORS

(a) Appointment. — The convening authority shall designate one or more person to conduct the
prosecution before each commission.

(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a commission.

(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases
referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. — A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges,
excluding irrelevant issues or evidence and preventing any unnecessary delay or interference.

(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment
therefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or as may be directed by the
convening authority.

(b) Rights of the Accused. — The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as
to apprise the accused of each offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by the convening authority
or counsel of his own choice, or to conduct his own defense.

(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in
support of his defense, and cross-examine each adverse witness who personally appears before
the commission.

(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.

(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony; to administer oaths or
affirmations to witnesses and other persons and to question witnesses.

(2) To require the production of documents and other evidentiary material.

(3) To delegate the Prosecutors appointed by the convening authority the powers and duties set
forth in (1) and (2) above.

(4) To have evidence taken by a special commissioner appointed by the commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving
or disproving the charge, or such as in the commission's opinion would have probative value in
the mind of a reasonable man. The commission shall apply the rules of evidence and pleading
set forth herein with the greatest liberality to achieve expeditious procedure. In particular, and
without limiting in any way the scope of the foregoing general rules, the following evidence may
be admitted:

(a) Any document, irrespective of its classification, which appears to the commission to have
been signed or issued by any officer, department, agency or member of the armed forces of any
Government without proof of the signature or of the issuance of the document.

(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any investigator or
intelligence officer, or by any other person whom commission considers as possessing
knowledge of the matters contained in the report.
(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.

(e) A copy of any document or other secondary evidence of the contents, if the original is not
immediately available.

(2) The commission shall take judicial notice of facts of common knowledge, official government
documents of any nation, and the proceedings, records and findings of military or other
agencies of any of the United Nation.

(3) A commission may require the prosecution and the defense to make a preliminary offer of
proof whereupon the commission may rule in advance on the admissibility of such evidence.

(4) The official position of the accused shall not absolve him from responsibility nor be
considered in mitigation of punishment. Further action pursuant to an order of the accused's
superior, or of his Government, shall not constitute a defense, but may be considered in
mitigation of punishment if the commission determines that justice so requires.

(5) All purposed confessions or statements of the accused shall bee admissible in evidence
without any showing that they were voluntarily made. If it is shown that such confession or
statement was procured by mean which the commission believe to have been of such a
character that may have caused the accused to make a false statement the commission may
strike out or disregard any such portion thereof as was so procured.

(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as follows
unless modified by the commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."

(3) The prosecution shall make its opening statement."(4) The presiding member may at this or
any other time require the prosecutor to state what evidence he proposes to submit to the
commission and the commission thereupon may rule upon the admissibility of such evidence.

(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the
close of the case for the prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether he evidence before the commission may defer
action on any such motion and permit or require the prosecution to reopen its case and produce
any further available evidence.

(5) The defense may make an opening statement prior to presenting its case. The presiding
member may, at this any other time require the defense to state what evidence it proposes to
submit to the commission where upon the commission may rule upon the admissibility of such
evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter,
the prosecution and defense may introduce such evidence in rebuttal as the commission may
rule as being admissible.

(7) The defense and thereafter the prosecution shall address the commission.

(8) The commission thereafter shall consider the case in closed session and unless otherwise
directed by the convening authority, announce in open court its judgment and sentence if any.
The commission may state the reason on which judgment is based.

( f ) Record of Proceedings. — Each commission shall make a separate record of its proceeding in
the trial of each case brought before it. The record shall be prepared by the prosecutor under
the direction of the commission and submitted to the defense counsel. The commission shall be
responsible for its accuracy. Such record, certified by the presiding member of the commission
or his successor, shall be delivered to the convening authority as soon as possible after the trial.

(g) Sentence. — The commission may sentence an accused, upon conviction to death by hanging
or shooting, imprisonment for life or for any less term, fine or such other punishment as the
commission shall determine to be proper.

(h) Approval of Sentence. — No. sentence of a military commission shall be carried into effect
until approved by the chief off Staff: Provided, That no sentence of death or life imprisonment
shall be carried into execution until confirmed by the President of the Philippines. For the
purpose of his review the Chief of Staff shall create a Board of Review to be composed of not
more than three officers none of whom shall be on duty with or assigned to the Judge Advocate
General's Office. The Chief of Staff shall have authority to approve, mitigate remit in whole or in
part, commute, suspend, reduce or otherwise alter the sentence imposed, or (without prejudice
to the accused) remand the case for rehearing before a new military commission; but he shall
not have authority to increase the severity of the sentence. Except as herein otherwise provided
the judgment and sentence of a commission shall final and not subject to review by any other
tribunal.

VI. RULE-MAKING POWER

Supplementary Rule and Forms. — Each commission shall adopt rules and forms to govern its
procedure, not inconsistent with the provision of this Order, or such rules and forms as may be
prescribed by the convening authority]or by the President of the Philippines.

VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the
appropriations for the Army of the Philippines for use by the National War Crimes Office in the
accomplishment of its mission as hereinabove set forth, and shall be expended in accordance
with the recommendation of the Judge Advocate General as approved by the President. The
buildings, fixtures, installations, messing, and billeting equipment and other property herefore
used by then Legal Section, Manila Branch, of the General Headquarters, Supreme Commander
for the Allied Power, which will be turned over by the United States Army to the Philippines
Government through the Foreign Liquidation Commission and the Surplus Property Commission
are hereby specification reserved for use off the National War Crimes Office.
 Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and
forty-seven, and of the Independence of the Philippines, the second.

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional
enactment.

The first question that is trust at our face spearheading a group of other no less important question, is
whether or not the President of the Philippines may exercise the legislative power expressly vested in
Congress by the Constitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a
Senate and House of Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative power
by agencies other than Congress, a reading of the whole context of the Constitution would dispel any
doubt as to the constitutional intent that the legislative power is to be exercised exclusively by Congress,
subject only to the veto power of the President of the President of the Philippines, to the specific
provision which allow the president of the Philippines to suspend the privileges of the writ of habeas
corpus and to place any part of the Philippines under martial law, and to the rule-making power
expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional Convention were believers in the
tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu
and accepted and practiced by modern democracies, especially the United State of America, whose
Constitution, after which ours has been patterned, has allocated the three power of government —
legislative, executive, judicial — to distinct and separate department of government.

Because the power vested by our Constitution to the several department of the government are in the
nature of grants, not recognition of pre-existing power, no department of government may exercise any
power or authority not expressly granted by the Constitution or by law by virtue express authority of the
Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish government
office is essentially legislative.

The order provides that person accused as war criminals shall be tried by military commissions. Whether
such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charge with war crimes. The power to define and allocate
jurisdiction for the prosecution of person accused of any crime is exclusively vested by the Constitution
in Congress. .

It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme Court, he
cannot, with more reason, delegate that power to military commission.

It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by
the said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to
vote appropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines
usurped power expressly vested by the Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the President issued Executive
Order No. 68, respondent could not give any definite answer. They attempted, however, to suggest that
the President of the Philippines issued Executive Order No. 68 under the emergency power granted to
him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth
Act No. 671, both of which are transcribed below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO

PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has created a national emergency
which makes it necessary to invest the President of the Philippines with extraordinary power in
order to safeguard the integrity of the Philippines and to insure the tranquility of its inhabitants,
by suppressing espionage, lawlessness, and all subversive to the people adequate shelter and
clothing and sufficient food supply, and by providing means for the speedy evacuation of the
civilian population the establishment of an air protective service and the organization of
volunteer guard units, and to adopt such other measures as he may deem necessary for the
interest of the public. To carry out this policy the President is authorized to promulgate rules
and regulations which shall have the force and effect off law until the date of adjournment of
the next regulation which shall have the force and effect of law until the date of adjournment of
the next regular session of the First Congress of the Philippines, unless sooner amended or
repealed by the Congress of Philippines. Such rules and regulation may embrace the following
objects: (1) to suppress espionage and other subversive activities; (2) to require all able-bodied
citizens (a) when not engaged in any lawful occupation, to engage in farming or other
productive activities or (b) to perform such services as may bee necessary in the public interest;
(3) to take over farm lands in order to prevent or shortage of crops and hunger and destitution;
(4) to take over industrial establishment in order to insure adequate production, controlling
wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent
the unwarranted suspension of work in productive enterprises or in the interest of national
security; (6) to regulate the normal hours of work for wage-earning and salaried employees in
industrial or business undertakings of all kinds; (7) to insure an even distribution of labor among
the productive enterprises; (8) to commandership and other means of transportation in order to
maintain, as much as possible, adequate and continued transportation facilities; (9) to
requisition and take over any public service or enterprise for use or operation by the
Government;(10) to regulate rents and the prices of articles or commodities of prime necessity,
both imported and locally produced or manufactured; and (11) to prevent, locally or generally,
scarcity, monopolization, hoarding injurious speculations, and private control affecting the
supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical, building,
material, implements, machinery, and equipment required in agriculture and industry, with
power to requisition these commodities subject to the payment of just compensation. (As
amended by Com. Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its objective, the President
may designate any officer, without additional compensation, or any department, bureau, office,
or instrumentality of the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act
or of this Act or any of the rules or regulations promulgated by the President under the
authority of section one of this Act shall be punished by imprisonment of not more than ten
years or by a fine of not more than ten thousand pesos, or by both. If such violation is
committed by a firm or corporation, the manager, managing director, or person charge with the
management of the business of such firm, or corporation shall be criminally responsible
therefor.

SEC. 4. The President shall report to the national Assembly within the first ten days from the
date of the opening of its next regular session whatever action has been taken by him under the
authority herein granted.

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts
as may be necessary from the sum appropriated under section five Commonwealth Act
Numbered four hundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be
unconstitutional and void, such declaration shall not invalidate the remainder of this Act.

SEC. 7. This Act shall take upon its approval.

 Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING

THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND
REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is
hereby authorized, during the existence of the emergency, to promulgate such rules and
regulation as he may deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and
appropriation which would lapse or otherwise became inoperative, and to modify or suspend
the operation or application of those of an administrative character; (e) to imposed new taxes or
to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g) to
authorize the National, provincial, city or municipal governments to incur in overdrafts for
purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other power as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and enforce its authority.

SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated
by him under the power herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated
hereunder shall be in force and effect until the Congress of the Philippines shall otherwise
provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts
had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when the
surrender of Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct part
in their consideration and passage, not only as one of the members of said legislative body as chairman
of the Committee on Third Reading population Known as the "Little Senate." We are, therefore in a
position to state that said measures were enacted by the second national Assembly for the purpose of
facing the emergency of impending war and of the Pacific War that finally broke out with the attack of
Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by which under the
exceptional circumstances then prevailing legislative power were delegated to the President of the
Philippines, by virtue of the following provisions of the Constitution:

In time of war or other national emergency, the Congress may by law authorize the President,
for a limited period and subject to such restrictions as it may prescribe to promulgate rules and
regulations to carry out declared national policy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the delegation beyond the emergency
created by the war as to extend it farther would be violative of the express provision of the Constitution.
We are of the opinion that there is no doubt on this question.; but if there could still be any the same
should be resolved in favor of the presumption that the National Assembly did not intend to violate the
fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the surrender of
Japan can not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or
since the middle of 1945, the Congress started to function normally. In the hypothesis that the
contention can prevail, then, since 1945, that is, four years ago, even after the Commonwealth was
already replaced by the Republic of the Philippines with the proclamation of our Independence, two
district, separate and independence legislative organs, — Congress and the President of the Philippines
— would have been and would continue enacting laws, the former to enact laws of every nature
including those of emergency character, and the latter to enact laws, in the form of executive orders,
under the so-called emergency powers. The situation would be pregnant with dangers to peace and
order to the rights and liberties of the people and to Philippines democracy.

Should there be any disagreement between Congress and the President of the Philippines, a possibility
that no one can dispute the President of the Philippines may take advantage of he long recess of
Congress (two-thirds of every year ) to repeal and overrule legislative enactments of Congress, and may
set up a veritable system of dictatorship, absolutely repugnant to the letter and spirit of the
Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental
guarantees of the due process and equal protection of the law. It is especially so, because it permit the
admission of many kinds evidence by which no innocent person can afford to get acquittal and by which
it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing
the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United
State Armed Forces in Western Pacific, for the purpose of trying among other, General Yamashita and
Homma. What we said in our concurring and dissenting opinion to the decision promulgated on
December 19, 1945, in the Yamashita case, L-129, and in our concurring and dissenting opinion to the
resolution of January 23, 1946 in disposing the Homma case, L-244, are perfectly applicable to the
offensive rules of evidence in Executive Order No. 68. Said rules of evidence are repugnant to
conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to
declare Executive Order No. 68 null and void and to grant petition.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-129 December 19, 1945

TOMOYUKI YAMASHITA, petitioner,

vs.
WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific, respondent.

Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.
Maj. Robert M. Kerr for respondent.
Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

MORAN, C.J.:

Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese Imperial
Army in the Philippines, and now charged before an American Military Commission with the most
monstrous crimes ever committed against the American and Filipino peoples, comes to this Court with a
petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer, Commanding General of
the United States Army Forces, Western Pacific. It is alleged therein that petitioner after his surrender
became a prisoner of war of the United States of America but was later removed from such status and
placed in confinement as an accused war criminal charged before an American Military Commission
constituted by respondent Lieutenant General Styer; and he now asks that he be reinstated to his
former status as prisoner of war, and that the Military Commission be prohibited from further trying
him, upon the following grounds:

(1) That the Military Commission was not duly constituted, and, therefore, it is without jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military Commission
cannot exercise jurisdiction therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing trial
against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1892, and therefore,
the Military Commission has no jurisdiction to try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to be acting
denied the petitioner a fair trial.
We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge of
petitioner from confinement but merely his restoration to his former status as a prisoner of war, to be
interned, not confined. The relative difference as to the degree of confinement in such cases is a matter
of military measure, disciplinary in character, beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military
Commission is not made party respondent in this case, and although it may be acting, as alleged,
without jurisdiction, no order may be issued in these case proceedings requiring it to refrain from trying
the petitioner.

Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be joined as
respondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt of our civil courts
to exercise jurisdiction over the United States Army before such period (state of war) expires, would be
considered as a violation of this country's faith, which this Court should not be the last to keep and
uphold." (Emphasis supplied) We have said this in a case where Filipino citizens were under
confinement, and we can say no less in a case where the person confined is an enemy charged with the
most heinous atrocities committed against the American and Filipino peoples.

True that the rule was made applicable in time of war, and there is a conflict of opinion as to whether
war has already terminated. War is not ended simply because hostilities have ceased. After cessation of
armed hostilities, incident of war may remain pending which should be disposed of as in time of war.
"An important incident to a conduct of a war is the adoption of measure by the military command not
only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies
who in their attempt to thwart or impede our military effort to have violated the law of the war." (Ex
parte Quirin, 317 US., 1; 63 Sup. Ct., 2.) Indeed, the power to create a Military Commission for the trial
and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a Military
Commission "has jurisdiction so long as a technical state of war continues. This includes the period of an
armistice, or military occupation, up to the effective date of a treaty agreement." (Cowles, Trial of War
Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)

Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), — and this applicable in time
of war as well as the time of peace — that this Court has no power to review upon habeas corpus the
proceedings of a military or naval tribunal, an that, in such case, "the single inquiry, the test, is
jurisdiction. That being established, the habeas corpus must be denied and the petitioner discharged."
(In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.) Following this rule in the instant case, we
find that the Military Commission has been validly constituted and it has jurisdiction both over the
person of the petitioner and over the offenses with which he is charged.

The Commission has been validly constituted by Lieutenant General Styer duly issued by General
Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in accordance in authority
vested in him and with radio communication from the Joint Chiefs of Staff, as shown by Exhibits C, E, G,
and H, attached by petition. Under paragraph 356 of the Rules of the Land Welfare a Military
Commission for the trial and punishment of the war criminals must be designated by the belligerent.
And the belligerent's representative in the present case is none other than the Commander in Chief of
the United States Army in the Pacific. According to the Regulations Governing the Trial of the War
Criminals in the Pacific, attached as Exhibit F to the petition, the "trial of persons, units and
organizations accused as a war criminals will be the Military Commissions to be convened by or under
the authority of the Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12
and 15 recognized the "Military Commission" appointed by military command as an appropriate tribunal
for the trial and punishment of offenses against the law of the war not ordinarily tried by court martial.
(Ex parte Quirin, supra.) And this has always been the United States military practice at since the
Mexican War of 1847 when General Winfield Scott took the position that, under the laws of war, a
military commander has an implied power to appoint and convene a Military Commission. This is upon
the theory that since the power to create a Military Commission is an aspect of waging war, Military
Commanders have that power unless expressly withdrawn from them.

The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner
and over the offenses with which he is charged. It has jurisdiction over the person of the petitioner by
reason of his having fallen into the hands of the United States Army Forces. Under paragraph 347 of the
Rules of the Land Warfare, "the commanders ordering the commission of such acts, or under whose
authority they are committed by their troops, may be punished by the belligerent into whose hands
they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the United
States said:

From the very beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of war, the status
rights and duties and of enemy nations as well as of enemy individuals. By the Articles of War,
and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so,
that military tribunals shall have jurisdiction to try offenders or offenses against the law of war
in appropriate cases. Congress, in addition to making rules for the government of our Armed
Forces, has thus exercised its authority to define and punish offenses against the law of nations
by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try
persons and offenses which, according to the rules and precepts of the law of nations, and more
particularly the law of war, are cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28;
63 Sup. Ct., 2.)

Petitioner is charged before the Military Commission sitting at Manila with having permitted members
of his command "to commit brutal atrocities and other high crimes against the people of the United
States and of its allies and dependencies, particularly the Philippines," crimes and atrocities which in the
bills of particulars, are described as massacre and extermination of thousand and thousands of unarmed
noncombatant civilians by cruel and brutal means, including bayoneting of children and raping of young
girls, as well as devastation and destruction of public, or private, and religious property for no other
motive than pillage and hatred. These are offenses against the laws of the war as described in paragraph
347 of the Rules of Land Warfare.

It is maintained, however, that, according to the Regulations Governing the Trial of War Criminals in the
Pacific. "the Military Commission . . . shall have jurisdiction over all of Japan and other areas occupied by
the armed forces commanded by the Commander in Chief, United States Army Forces, Pacific"
(emphasis supplied), and the Philippines is not an occupied territory. The American Forces have
occupied the Philippines for the purpose of liberating the Filipino people from the shackles of Japanese
tyranny, and the creation of a Military Commission for the trial and punishment of Japanese war
criminals is an incident of such war of liberation.
It is maintained that Spain, the "protecting power" of Japan, has not been given notice before trial was
begun against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1929. But
there is nothing in that Convention showing that notice is a prerequisite to the jurisdiction of Military
Commissions appointed by victorious belligerent. Upon the other hand, the unconditional surrender of
Japan and her acceptance of the terms of the Potsdam Ultimatum are a clear waiver of such a notice. It
may be stated, furthermore, that Spain has severed her diplomatic relation of Japan because of
atrocities committed by the Japanese troops against Spaniards in the Philippines. Apparently, therefore,
Spain has ceased to be the protecting power of Japan.

And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military
Commission in the admission of allegedly immaterial or hearsay evidence, cannot divest the commission
of its jurisdiction and cannot be reviewed in a petition for the habeas corpus. (25 Am. Jur., 218;
Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326).

For all foregoing, petition is hereby dismissed without costs.lawphi1.net

Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, JJ., concur.
Paras, J., concurs in the result.

Separate Opinions

OZAETA, J., concurring and dissenting:

I concur in the dismissal of the petition for habeas corpus and prohibition on the ground that the
Military Commission trying the petitioner has been legally constituted, and that such tribunal has
jurisdiction to try and punish the petitioner for offenses against the law of war. (Ex parte Quirin, 317 U.S.
1; 63 Sup. Ct., 2.)

I dissent, however, from the portion of the opinion of the Court which cities and applies herein its
decision in the case Raquiza vs. Bradford (pp. 50, 61, ante ), to the effect that an attempt of our civil
court to exercise jurisdiction over the United States Army would considered as a violation of this
country's faith. The decision of Raquiza case, from which I dissented, was based mainly of the case of
Coleman vs. Tennessee (97 U. S., 509), in which was mentioned merely by way of argument the rule of
international law to effect that a foreign army, permitted to march through a friendly country to be
stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal
jurisdiction of the place. After reviewing the facts and the ruling of the court in the Coleman case, I said
in my dissenting opinion in the Raquiza case the following:
 . . . Thus it is clear that the rule of international law above mentioned formed no part of the
holding of the court in the said case.

Neither can such rule of international law of itself be applicable to the relation between the
Philippines and the United States, for the reason that the former is still under the sovereign of
the latter. The United States Army is not foreign to the Philippines. It is here not by permission
or invitation of the Philippine Government but by right of sovereignty of the United States over
the Philippines. It has the same right to be here as it has to be in Hawaii or California. The United
States has the same obligation to defend and protect the Philippines, as it has to defend and
protect Hawaii or California, from foreign invasion. The citizens of the Philippines owe the same
allegiance to the United States of the America as the citizens of any territory or States of the
Union.

That the case of Coleman vs. Tennessee was erroneously invoked and applied by this Court in the case
of Raquiza vs. Bradford, was admitted by Mr. Wolfson, the attorney for Lieutenant Colonel Bradford,
who, notwithstanding the judgment in favor of his client, moved this Court to modify the majority
opinion "by eliminating all reference to the case of Coleman vs. Tennessee (97 U.S. 509). because, as
well pointed out in both dissenting opinions, said case has no application whatever to the case at bar." .

The rule of international law mentioned in the Coleman case and erroneously applied by analogy in the
Raquiza case, has likewise no application whatever to the case at bar. A mistake when repeated only
becomes a blunder.

PERFECTO, J., concurring and dissenting:

1. FACTS IN THIS CASE

Petitioner prays that a writ of habeas corpus be issued directed to respondent Lt. Gen. Wilhelm D. Styer,
Commanding General, United Army Forces, Western Pacific, commanding him to produce the body of
the petitioner before this Court and that "he be ordered returned to the status of an internee as a
prisoner of war in conformity with the provision of article 9 of the Geneva Convention of July 27, 1929,
relative to the treatment of prisoners of war and of paragraph 82 of the Rules of Land Warfare, F. M. 27-
10, United States War Department, and that a writ of prohibition be issued by this Court prohibiting the
respondent from proceeding with the trial, and that the petitioner be discharged from the offenses and
confinement aforesaid."

Prior to September 3, 1945, petitioner was the commanding general of the 14th Army Group of the
Imperial Japanese Army in the Philippines. On said date, he surrendered to the United States and was
interned in New Bilibid Prison, in Muntinlupa, in conformity with the provision of article 9 of the Geneva
Convention of July 27, 1929, relative to the treatment of prisoners of war, and of paragraph 82 of the
Rules of Land Warfare of the United States War Department.

On October 2, 1945, respondent caused to be served on petitioner a charge for violation of the laws of
war, signed by Colonel Alva C. Carpenter, wherein it is alleged that between 9 October, 1944, and 2
September, 1945, petitioner "while commander of the armed forces of Japan at war with the United
States and its allies, unlawfully disregarded and failed it discharge his duty as commander to control the
operations of the members of his command, permitting them to commit brutal atrocities and other high
crimes against the people of the United States and its allies and dependencies, particularly the
Philippines." Thereafter petitioner was removed from the status of the prisoner of war and was placed
in confinement as an accused war criminal and is presently confined in the custody of respondent at the
residence of the United States High Commissioner of the Philippines in Manila.

On October 1, 1945, by command of respondent and pursuant to authority contained in a letter from
the General Headquarters, United States Army Force, Western Pacific, dated September 24, 1945, a
Military Commission was appointed to try petitioner. At the same time several officers were designated
to conduct the prosecution and several others to act as defense counsel.

The commission was instructed to follow the provisions of the letter of September 24, 1945, and was
empowered to "make such rules for the conduct of the proceedings as it shall deem necessary for a full
and fair trial of the person before it. Such evidence shall be admitted as would, in the opinion of the
president of the commission, have probative value to a reasonable man and is relevant and material to
the charges before the commission. The concurrence of at least two-thirds of the members of the
commission present shall be necessary for a conviction or sentence."

Said letter (Exhibit G) addressed to respondent by Brigadier General B. M. Fitch, "by command of
General MacArthur," empowers respondent "to appoint Military Commissions for the trial of such
persons accused of war crimes as may hereafter be designated by this Headquarters," with the
instructions that "all the records of trial including judgment or sentence and the action of the appointing
authority will be forwarded to this Headquarters. Unless otherwise directed, the execution of judgment
or sentence in all cases will be withheld pending the action of the Commander in Chief.

On the same date "by Command of General MacArthur" (Exhibit H), respondent was instructed to
proceed immediately with the trial of General Tomoyuki Yamashita for the charge served on petitioner
on October 2, 1945 (Exhibit B).

Upon arraignment on October 8, 1945, by the above mentioned Military Commission, petitioner entered
a plea of not guilty. On the same date the prosecution filed a bill of particulars (Exhibit 1) with 64 items
of crimes, and on October 29, 1945, a supplemental bill of particulars (Exhibit J) with many other
additional items, adding up to 123, of the specified crimes imputed to petitioner.

On October 19, 1945, petitioner's defense filed a motion to dismiss the case before the Military
Commission for the reasons that the charge, as supplemented by the bills of particulars, "fails to state a
violation of the laws of war by the accused, and that the commission has no jurisdiction to try this
cause." The motion was denied on October 29.

On said day, which was the first day of trial, the prosecution offered in evidence an affidavit of Naukata
Utsunomia (Exhibit M) executed on October 1, 1945, and subscribed and sworn to before Captain
Jerome Richard on October 22, 1945. The affidavit was made in Japanese through interpreter Tadashi
Yabi. The defense objected to the admission of said affidavit, invoking to said effect article 25 of the
Articles of War prohibiting the introduction of depositions by the prosecution in a capital case in
proceedings before a court martial or a Military Commission. (Exhibit L and N.)

Again on the same first day of trial, hearsay evidence was offered, defense counsel objected, but the
objection was again overruled. (Exhibits O and P.) The defense counsel alleged then that the admission
of hearsay evidence was violative of Article of War 38, the manual for the court-martial, and the rules of
evidence in criminal cases in the district courts of the United States. It is alleged by petitioner that
violations of legal rules of evidence have continued and are continuing during the trial.

At the opening of the trial, "the prosecution stated that no notice of impending trial had been given the
protecting power of the Japan by the United States," such notice being required by article 60 of the
Geneva Convention of July 27, 1929, and of paragraph 133 of the Rules of Land Warfare, United States
War Department.

2. REMEDIES PRAYED FOR

After alleging the above-mentioned facts, petitioner maintains that his confinement and trial as a war
criminal are illegal and in violation of articles 1 and 3 of the Constitution of the United States and the
Fifth Amendment thereto, and a certain other portions of said Constitution, and laws of the United
States, and article 3 of the Constitution of the Philippines and certain other portions of said Constitution
and laws of the Philippines Islands, and of certain provisions of the Geneva Convention of July 27, 1929,
in that:

(a) There being no martial law, no Military Government of occupied territory and no active hostilities in
the Philippines at the time of the appoint the same, the commission is without jurisdiction.

(b) There being no charge of an offense against the laws of war by the petitioner, the commission is
without jurisdiction.

(c) The rules of procedure and evidence under which the Military Commission purports to be acting
deny the petitioner the fair trial guaranteed by the Constitution of the United States and the
Constitution of the Philippines, and are in violation of Articles of War 25 and 38 and of other provisions
of the laws of the United States and of the Philippines.

(d) The respondent was granted to authority by the Commander in Chief, United States Army Forces,
Western Pacific, to appoint a military commission and /or to try the petitioner in the Philippine Islands,
and the Commission is, therefore, without jurisdiction to try this case.

(e) The United, States, not having given notice of the impending trial to the protecting power of Japan as
made mandatory by the Geneva Convention of July 27, 1929, relative to the treatment of prisoners of
war, cannot properly and illegally try the petitioner on the charge.

3. RULES OF INTERNATIONAL LAW

In the Rules of Land Warfare, paragraph 133 (Exhibit Q), it is provided that "at the opening of a judicial
proceeding directed against a prisoner of war the detaining power shall advise the representative of the
protecting power thereof as soon as possible, and always before the date set for the opening of the
trial," and "at all events, at least three weeks before the opening of the trial."

Article VIII of the Convention respecting the laws and customs of war on land, agreed in The Hague on
July 29, 1899, provides: "Prisoners of war shall be subject to the laws, regulations, and orders in force in
the army of the State into whose hands they have fallen.
Section 59 of General Orders No. 100, dated April 24, 1863, containing instructions for the government
of armies of the United States in the field provides: "A prisoner of war remains answerable for his crimes
committed against captor's army or people, committed before he was captured, and for which he has
not been punished by his own authorities."

Secretary of State Daniel Webster, in a communication addressed to Mr. Thompson, Minister to Mexico,
on April 5, 1842, said: "The law of the war forbids the wounding, killing, impressment into the troops of
the country or the enslaving or otherwise maltreating of prisoners of war, unless they have been guilty
of some grave crime; and from the obligation of this law no civilized state can discharged itself."

4. IN ANCIENT GREECE AND ROME

Many of the basic ideas which prevail today in the customs and usages of nations and became part of
the international law emerged from the human mind centuries before the Christian Era. Such is the idea
that prisoners of war are entitled to humane treatment, that treasons of war should be
discountenanced, and that belligerents must abstain from causing harm to non-combatants.

On his return to Peloponnesus in 427 B. C., Alcibiades touched at Mayonnesus and there slew most of
the captives taken on his voyage. According to Thucydides, the Samian exiles remonstrated with him for
putting to the death prisoners who have not been in open hostilities against him.

The same historian narrates that the year before, the Mytileneans of Lesbos revolted from Athens, but
they were obliged to capitulate in the following year to Paches, who dispatched to Athens over a
thousand prisoners. Their disposal provoked discussion in the Athenian assembly. At the instigation of
Cleon, the demagogue and the former opponent of Pericles, an order was issued to slaughter not only
the men who arrived in Athens, but the entire made population of Mytilene that was of military age, and
to enslave the women and children. The execution of the order was delayed, and another assembly was
called. There an amendment of Theodotus was carried, and the previous order countermanded.

The roman treatment of prisoners was less rigorous than the Greek. As stated by Virgilius, "the Roman
policy from the first was, on the one hand, debellare super bos, to subdue the proud and arrogant
peoples and, on the other,parcellare subiectes, to spare those who have submitted."

"Dionisius states that a rule existed in Rome as early as the time of Romulus, which prohibited the
putting to death or enslaving on men captured in the conquered cities, and also the devastation of their
territories; it provided, on the contrary, for the sending of inhabitants, either to take possession by lot of
the some part of the country, for making the conquered cities Roman colonies, and even for conceding
to them some of the privileges Roman citizenship." (Philipps on the International Law and Custom of
Ancient Greece and Rome, Vol. II, p. 254.)

In 407 B.C. the Spartan commander Callicraditas took the town of Methymna by storm. In spite of the
persuasion of his allies, according to Xenophon, he refused to the sell the Athenian garrison and
Methymnaean citizens as slaves, declaring that so long as he exercises the command no Greek should
ever be reduced to slavery. Grote in his History of Greece could not refrain from praising this gesture of
the Macedonian admiral by saying: "No one who has familiarized himself with the details of Greecian
warfare can feel the full grandeur and sublimity of this proceeding . . . It is not merely that the prisoners
were spared and set free . . . It is that this particular act of generosity was performed in the name and
for the recommendation of Pan-Hellenic brotherhood and Pan-Hellenic independence for the foreigner .
. . It is, lastly, that the step was taken in resistance to the formal requisition on the part of his allies."
(History of Greece, Vol. VI p. 387.)

Philip, the Macedonian King, liberated Athenian prisoners without ransom after the taking of Olynthus
in 348 B.C. and ten years later after the Battle of Chaeronee, he dismissed the prisoners with all their
baggage.

Xenophon quotes Agesileus reminding his soldiers that "prisoners were meant to be kept, and not
criminals to be punished." And Pausanias narrates that when Epaminondas, the greatest Theban
general, had gathered together, he nominally assigned to each of the men he captured there a different
nationality, and set them all free, and there are cases where captives were dismissed on parole to have
chance of finding ransomers.

Among the Greeks much was done to humanize warfare, and to remove from it the atrocities which
prevailed amongst the most of the nations antiquity. The Oracle of Delfi refused to listen to the
Milesians as they had not duly expiated the excesses committed in their civil wars, though it responded
to all, others, even to barbarians, who consulted it. "C'etait comme l'excommunication du paganisme",
comments Leurent (Vol. II, p. 135).

Poets, philosophers, artist, and men of intellectual distinction in general, even though they became
invested with enemy character on the outbreak of war, were honored and respected. In 335 B.C.
Alexander the Great destroyed Thebes, but he left Pindar's house uninjured and honored the poet's
descendants. In ancient Hellas was already known the practice of neutralizing cities and protecting them
from the ravages of war. Temples, priest, and embassies were considered inviolable. The right sanctuary
was universally recognized. Mercy was shown to suppliant and helpless captives. Safe-conducts were
granted and respected. Burial of dead was permitted, and graves were unmolested. It was considered
wrong to cut off or poison the enemy's water supply, or to make use of poisonous weapons.
Treacherous strategems of whatever description were condemned as being contrary to civilized warfare.
Poets and philosophers, orators and historians proclaimed humane doctrines. Plato constructed his ideal
republic on the basis of what he conceived to be perfect justice. Aristotle condemned the principle of
retaliation as being antagonistic to true justice. Euripides speaks of excesses in war not only as acts of
intrinsic wickedness and transgression against universal law, but, indeed, as a suicidal folly on the part of
the offender. In one of his dramas he makes Poseidon declare: "But foolish is the mortal who lays waste
cities, temple, and tombs, the sanctuaries of the dead; for having consigned them to solitude, he is the
one himself to perish afterwards."

The mild and clement nature shown by Caesar to many belligerent peoples was recognized even by his
political enemy Cicero to whom he wrote: You are not mistaken about me . . . . Nothing is far from my
nature than cruelty . . . . I am told that some prisoners I set free seize the first opportunity to take up
arms against me; nevertheless, I shall not renounce my policy."

The Roman conduct Roman conduct far transcended in its civilized and humane character that of the
German leader Arminius, who is reported by Tacitus to have burned to death and otherwise barbarously
slain the centurions and tribunes of the Varian legions, and nailed the skulls to trees. The sanction of
Roman jurisprudence and the submission to the fundamental principles of justice proved effective.
Livy narrates that in 393 B.C. a certain school master of Falerii, who was in charge of the sons of the
principal citizens of the town, took the opportunity to lead them to the Roman camp and threw them
into the power of the enemy. The roman general Camillus, indignant at this treason, ordered the boys to
drive their master back to the town, and flog him all the way. There were, he pointed, laws of war as
well as of peace, and the Romans had learn to put them into practice not less justly than bravely —
"sunt et belli, sicut pacis, iura; iusteque, ea, non, minus, quam fortiter, didicimus gerere."

When Adgantestrius made an offer to the Romans Senate to poison Arminius, according to Tacitus, he
was at once informed that it was not by secret treachery but openly by arms that the Romans
proceeded against their enemies. The same historian mentioned the fact that the Romans generals
rejected the scheme, suggested by the King's physician, of poisoning Pyrrhus (280 B.C.) and even
delivered up the traitor, Pyrrhus, in return for the Roman generosity, allowed his prisoners to go to
Rome on parole in order to celebrate the Saturnalia; after which, they, faithfully returned.

5. UNQUENCHABLE THIRSTINESS OF PERFECTION. — PETITIONER ENTITLED TO LEGAL GUARANTEES

Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge for
improvement, by the unquechable thirstiness of perfection in all orders of life, humanity has been
struggling during the last two dozen centuries to develop an international law which could answer more
and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated
at first in the rudimentary juristic sense of peoples of antiquity, by the inherent power of their universal
appeal to human conscience, at last, were accepted, recognized, and consecrated by all the civilized
nations of the world.

Under these principles, petitioner General Tomoyuki Yamashita is entitled to be accorded all the
guarantees, protections, and defenses that all prisoners should have according to the customs and
usages, convention and treaties, judicial decisions and executive pronouncements, and generally
accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of
international law. The seriousness or unfathomable gravity of a charges against him, the unthinkable
magnitude of the wholesale murders, rapes, and destructions for which he is called to answer, the
beastly massacres and horrors by which he was thrown from the pedestal of military glory as the "Tiger
of Malaya" into the bottom of perversity of a human monster, must not be taken into consideration,
must all be forgotten, in order that true justice may be administered in this case.

6. WAR CRIMINALS

P ALIGN="JUSTIFY">"There is very little limitation on what a victorious nation can do with a vanquished
State at the close of a war. One shudders to think what Germany and Japan would do if they were the
victors! But the common law of nations probably requires a fair trial of offenders against war law as a
prerequisite to punishment for alleged offenses; and that Geneva Convention so prescribed in the case
of prisoners of war. But in the final analysis a decent respect for the opinion of mankind and the
judgment of history is, in effect, a victorious belligerent's main limitation on its treatment of the
surrendered at the close of a war; and this is self-imposed. The United Nations are solemnly committed
to the vindication and the rule of law which has been ruthlessly destroyed by the Nazis and Japanese."
(Sheldon Glueck, War Criminals, p. 77.).
"Formalized vengeance can bring only ephemeral satisfaction, with every probability of ultimate regret;
but vindication of law through legal process may contribute substantially to the re-establishment of
order and decency in international relations." (Report of the Subcommittee on the Trial and Punishment
of War Crimes, 37 Am. J. Int. L. [1943], 663, 666.)

"Centuries of civilization stretched between the summary slaying of the defeated in a war, and the
employment of familiar process and protections of justice according to law to air the extent and nature
of individual guilt . . . and in the civilized administration of justice, even the most loathsome criminal
caught redhanded must be given his day in court and an opportunity to interpose such defenses as he
may have." (Sheldon Glueck, Id., p. 78.)

7. ALLIED PRONOUNCEMENTS

According to a number of official pronouncements by United Nations' statesmen, the vast majority of
offenders will be tried in the domestic criminal or military tribunals of the injured nations. Thus on
August 21, 1942, President Roosevelt, in condemning the crimes committed against the civil population
in occupied lands, solemnly announced that "the time will come when the criminals will have stand in
courts of law in the very countries which they are now oppressing, and to answer for their acts."

On September 8, 1942, Mr. Churchill promised that "those who are guilty of the Nazi crimes will have to
stand up before tribunals in every land where the atrocities have been committed."

The Moscow Declaration of November 1, 1943, sternly warned that: "at the time of granting of any
armistice to any government which may set up in Germany, those German officers or men and members
of the Nazi party, who have been responsible for or have taken a part (in the various) atrocities,
massacres and executions will be sent back to the countries in which their abominable deeds according
to the laws of these liberated countries and of the free governments which will be erected therein," and
that "the Allied Powers will pursue them to the utmost ends of the earth and will deliver them to the
accusers in order that justice may be done."

The American members of commission on responsibilities appointed at the close of World War I, had
strenuously opposed the trial of German war criminals in an international high tribunal on the grounds
that it was unprecedented and that there existed no international statute or convention making
violations of the laws and customs of warfare international statute or convention making violations of
the laws and customs of warfare international crimes defining such offenses more specifically than the
definitions to be found in the prohibitions of the unwritten or written law of nations affixing a specific
punishment to each crime, and giving jurisdiction to a world court.

But Doctor Glueck is of opinion that "If the Germans were to try an American soldier for violating
German statutes implementing the laws and custom of warfare in a newly established type of military
tribunal, the accused would not be heard to complain that he had been set up Provided the
international tribunal affords as adequate a trial as the accused would have had in the court of any
injured belligerent he has no valid ground for complaint."(P. 116.).

"One of the arguments — he continues — advanced by the American participants on the commission on
responsibility at the close of World War I, against the establishment of an international criminal tribunal
was that it was unprecedented. The atrocities committed by Axis powers led by Germany, even by
comparison with their behavior in World War I, are unprecedented. Can history show a better age than
our own to initiate a series of much-needed precedents? Few symbols of this new era which heralds the
neighborly cooperation of civilized people in the vindication of the laws of civilized nation would be
more impressive than an international criminal court, in which the plaintiff would be the world
community. . . . The international criminal court would be a more vivid symbol of the reign of justice of
an international plane than even the permanent court at The Hague has been. In domestic polity, the
administration of criminal justice of the strongest pillar of government. The doing of an international
plane under international auspices is even more important. It is indispensable to the survival, in the
intercourse of nations, of the very traditions of law and justice. The besmirching of the prestige of
international law is not the least of the evils perpetrated by the Axis power led by Nazi Germany. The
peerless and efficient administration of justice in the case of Axis war criminals is today indispensable as
a token to the peoples of the world, a sign that crimes committed by one country's subject against the
people of another member of the family of nations will be relentlessly punished even though they run
into huge numbers, were committed by men in uniform, and are instigated by a Fuehrer endowed by
himself and his intoxicated followers with the attributes of a demigod." (Page 178.)

"Adequate law for use by an international court now exist; and its enforcement by such a tribunal would
violate no fundamental tenets of civilized nations. The law for an international tribunal can be drawn
from the rich reserviors of common and conventional law of nations and the principles, doctrines and
standards of criminal law that constitute the common denominator of all civilized penal codes.

"The punishment to be applied by domestic military and civil courts depend upon local law and practice.
Those to be imposed by the international tribunal could be based either upon the punishments
permitted by the laws and customs or warfare or upon those provided for crimes of similar nature and
gravity by the law of the accusing State, taking into account, also, where necessary individual instances,
the law of the defendants States." (Page 181.)

8. NO SURPRISES TO PETITIONER

Petitioner in this case cannot allege ignorance of the fact that the criminal acts alleged in the specified
charges against him are punishable by law, not only in all civilized nations, but in his own country.

Since January 1, 1882, the Japanese Government had been enforcing a Criminal Code based on the Code
of Napoleon of 1811, prepared by the French jurist M. Boissonade, said criminal code having been
superseded by a new one on October 1, 1908.

Under the last, arson may be punished with death (article 108); rape is heavily punished (articles 176,
177 and 178); and murder or homicide may be punished with death or penal servitude for life (article
109). These offenses and many others, punished by our Penal Code, are known to the Japanese as
crimes, which in Japanese is tsumi.

From the Lauterpacht edition (1944) of Oppenheim's International Law, Vol. II, pp. 450-458, we quote:

SEC. 251. In contradistinction to hostile acts of soldiers by which the latter do not lose their
privilege of being treated as lawful members of armed forces, war crimes are such hostile or
other acts of soldiers or other individuals as may be punished by the enemy on capture of the
offenders. They include acts contrary to International Law perpetrated in violation of the law of
the criminal's own State, such as killing or plunder for satisfying private lust and gain, as well as
criminal acts contrary to the laws of war committed by order and on behalf of the enemy State.
To that extent the notion of war crimes is based on the view that States and their organs are
subject to criminal responsibility under International Law.

SEC. 253. The fact that a rule of warfare has been violated in pursuance of an order of the
belligerent Government or of an individual belligerent commander does not deprive the act in
question of its character as a war crime; neither does it, in principle, confer upon the
perpetrator immunity from punishment by the injured belligerent. A different view has
occasionally been adopted in military manuals and by writers, but it is difficult to regard it as
expressing a sound legal principle. Undoubtedly, a Court confronted with the plea of superior
orders adduced in justification of a war crime is bound to take into consideration the fact that
obedience to military orders, not obviously unlawful, is the duty of every member of the armed
forces and that the latter cannot, in conditions of war discipline, be expected to weigh
scrupulously the legal merits of the order received; that rules of warfare are often controversial;
and that an act otherwise amounting to a war crime may have been executed in obedience to
orders conceived as a measure of reprisals. Such circumstances are probably in themselves
sufficient to divest the act of the stigma of a crime. Also, the political authorities of the
belligerent will frequently incline to take into consideration the danger of reprisals against their
own nation which are likely to follow as a measure of retaliation for punishment of war
crime durante bello. However, subject to these qualifications, the question is governed by the
major principles that members of the armed forces are bound to obey lawful orders only and
that they cannot therefore escape liability if, in obedience to a command, they commit acts both
violate unchallenged rules of warfare and outrage the general sentiment of humanity. To limit
liability to the person responsible for the order may frequently amount, in practice, to
concentrating responsibility on the head of the State whose accountability, from the point of
view of both international and constitutional law, is controversial.

SEC. 257. All war crimes may be punished with death, but belligerents may, of course, inflict a
more lenient punishment, or commute a sentence of death into a more lenient penalty. If this
be done and imprisonment take the place of capital punishment, the question arises whether
persons so imprisoned must be released at the end of the war, although their term of
imprisonment has not yet expired. Some answer this question in the affirmative, maintaining
that it could never be lawful to inflict a penalty extending beyond the duration of war. But is
believed that the question has to be answered in the negative. If a belligerent has a right to
pronounce a sentence of a capital punishment, it is obvious that he may select more lenient
penalty and carry it out even beyond the duration of the war. It would in no wise be in interest
of humanity to deny this right, for otherwise belligerents would be tempted always to
pronounce and carry out a sentence of capital punishment in the interest of self-preservation.

SEC. 257a. The right of belligerent to punish, during the war, such war criminals are fall into his
hands is a well-recognized principle of International Law. It is a right of which he may effectively
avail himself after he has occupied all or part of enemy territory, and is thus in the position to
seize war criminals who happen to be there. He may, as a condition of the armistice, impose
upon the authorities of the defeated State the duty to hand over persons charged with having
committed war crimes, regardless of whether such persons are present in the territory actually
occupied by him or in the territory which, at the successful end of hostilities, he is the position
to occupy. For in both cases the accused are, in effect, in his power. And although normally the
 Treaty of Peace brings to an end the right to prosecute war criminals, no rule of International
Law prevents the victorious belligerent from imposing upon the defeated State the duly, as one
of the provisions of the armistice or the Peace Treaty, to surrender for trial persons accused of
war crimes. In this, as in other matters, the will of the victor is the law of the Treaty. It is not to
be expected that he will concede to the defeated State the corresponding right to punish any
war criminals of the victorious belligerent. The resulting inequality is the unavoidable
concomitant of the existing imperfections of international organization and of the institution of
war itself. But the victorious belligerent may achieve a substantial approximation to justice by
making full provision for a fair trial of the surrender enemy nationals, and by offering to try
before his tribunals such members of his own armed forces are accused of war crimes. Such
conduct may go a long way towards reducing substantially the inequality of treatment as
between the victor and the vanquished.

The permissible acts of warfare are, by the authority of long and common usage, strictly limited. The
treaties entered into between members of the family of nation are but specific definitions and
reinforcements of the general common law nations, the "unwritten" rules of warfare, which for
centuries have limited the method and manner of conducting wars. The common law of nations, by
which all states are and must be bound, dictates that warfare shall be carried on only in accordance with
basic considerations of humanity and chivalry.

These matters are of course well known to the German and Japanese warlords and statement, as well as
to their henchmen. They will also believe the brutal pronouncements of German military philosophy in
such cynical handbooks for the guidance of officers as the Kriegsbrauch im Lambkrege in which,
although Germany had to observe the provisions of the Hague Convention regulating warfare, their
human tenets of international law are referred to as expressed generally "sentimentalism and flabby
emotionalism " and are declared to be "in fundamental contradiction with the nature of war and its
objects"; and in which the German officer is sternly warned to "guard himself against exaggerated
humanitarian ideas."

From Doctor Glueck's book we quote:

If there was a domain to which Mr. Justice Holmes' illuminating dictum about a page of history
being worth a volume of logic is applicable, it is that concern the war criminal's problem (P. 12.)
The law of nations has a long way to go before it can claim to be coherent and fixed system. Its
relevant tenets were develop under the presupposition the members of the community of
nations are governed by self-imposed restraints in accordance with international law; but the
emergence of states with a national policy of deliberate lawlessness and with their invasion of
'total war in the service of a program of world enslavement, compels a realistic modification of
inadequate doctrines and principles of the law (P.13). Nobody who has made a thorough study
of the status of the branch of law of nations involved can adhere to the view that it is anywhere
near as well developed or subject to the same techniques of "rigorous legal logic" as the more
sophisticated branches of private law. (P14). On September 18, 1942, Churchill assured the
House of Commons that "those who are guilty of the nazi crimes will have to stand up before
tribunals in very land where their atrocities have been committed, in order that an indelible
warning men given to future ages and that successive generations of men may say, "so perish all
who do the like again."
On January 25, 1919, the preliminary peace conference of World War No. I set upon a commission of
fifteen to inquire into and report upon violations of international law chargeable to Germany and her
allies. This commission recommended the setting up of a high tribunals which was to apply "the
principles of the law of nation as the result from the usages established among civilized peoples, from
the laws of humanity and from the dictates of public conscience." Upon a finding of guilty, the court
could sentence to such punishment as could be imposed foe the offense in question "by any court in any
country represented on the tribunal or in the country of the convicted persons." The recommendation
was not adopted. They were opposed by American and Japanese members. The Japanese members
raised the basic question, among others, "whether international law recognizes a penal law as applicable
to those who are guilty." And it seemed to them "important to consider the consequences which would
be created in the history of international law the prosecution for breaches of the or customs of war
enemy states before a tribunal constituted by the opposite party," an argument rejected at the treaty.

In the Treaty of Versailles there were inserted the punitive articles 228, 229 and 230. By the article 288
the German Government recognized "the right of the allied and associated powers to bring before the
military tribunals persons accused of having committed acts in violation of the laws to "punishments laid
down by law." Article 299 provided for the trial of accused in military tribunals of the power against
whose the nationals the alleged crimes were committed and the specified that "in every case the
accused will be entitled to name his own counsel."

9. SOME CONCLUSIONS

From all the foregoing, with regards to the petition for a writ of habeas corpus, we conclude:

(1) That petitioner Yamashita, if he is responsible for the acts imputed to him in the charges filed before
the Military Commission can properly and justly be prosecuted and punished for them.

(2) That the fact that he has the Commander in Chief of a belligerent army does not exempt him from
criminal liability either for violations of international law or for the commission of crimes defined and
punishable under the laws of the country where committed.

(3) That his rights and privileges as a prisoners of war, under the Geneva Convention, are not
incompatible with nor are violated by his prosecution for the international and domestic crimes
committed by him.

(4) That under the principles of natural law, all persons guilty of such crimes are amenable to be
arraigned before a court of the justice and, after a fair trial, if found guilty, should bear the full weight of
the law.

(5) That petitioner Yamashita can be prosecuted before the Philippine civil courts in the like manner as a
common criminal and the punished under the provisions of the Philippine Penal Code.

(6) That the military Commission set up to try him possesses a jurisdiction which is concurrent with that
of the Philippine civil courts, and the choice of the competent tribunal where he should be tried, which a
mere procedural technically, is left to the wise discretion of the officials in charge of the prosecution.
(7) That in violation of the law of nations, the offended party is the people of the whole world, and the
case against petitioner could be properly entitled as Humanity versus Tomoyuki Yamashita," and no
person in position to prosecute the violators can honesty shirk the responsibility of relentlessly
prosecuting them, lest he be branded with the stigma of complicity.

(8) That the absence of a codified International Penal Code or of a criminal law adopted by the comity of
nations with specific penalties for specific and well-defined international crimes, is not a bar to the
prosecution of war criminals, as all civilized nations have provided in their laws the necessary
punishment for war crimes which, for their very nature, cease to be lawful acts of war, and become
ordinary crimes with the extraordinary character of having been committed in connection with war,
which should be considered as an aggravating circumstance.

10. THE SUPREME COURT'S JURISDICTION

Whether this Court has jurisdiction or not to take cognizance of this case is the first question raised
herein.

We believe that no doubt should be entertained that it has.

The petition pertains to a judicial case, to a case wherein justice is to be administered. It is a criminal
case initiated for the prosecution and punishment of Tomoyuki Yamashita, Commander Chief of the
Japanese Army in the Philippines, alleged as the greatest war criminal in the Pacific and in the Whole
eastern hemisphere.

The case calls for the exercise of the judicial power, one of the three government powers, firstly defined
by Aristotle and upon which Montesquieu elaborated later in his "Spirit of the Laws."

The judicial power shall be vested in one Supreme Court and in such inferior courts as may be
established by law. (Art. VIII, sec. 1, Constitution of the Philippines.)

By this provision, the judicial power is primarily vested in the Supreme Court, which exclusively exercise
the whole power. But it also authorizes the enactment of laws sharing the power to inferior courts,
which include all other courts and tribunals of all description, whether ordinary or extraordinary,
whether civil or criminal, whether industrial or military, whether designated as "courts" or simply as
"commissions."

The Congress shall the power to define, prescribe, and apportion the jurisdiction of the various
courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, nor of its jurisdiction to review, revise,
reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the law of the rules
of court may provide, final judgments and decrees of inferior courts in —

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive
order or regulation is in question.

(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed
in relation thereto.
 (3) All cases in which the jurisdiction in which of any trial court is in issue.

(4) All criminal cases in which the penalty imposed is death or life imprisonment.

(5) All cases in which an error or question of law in involved.

(Art. VIII, sec. 2, Constitution of the Philippines.)

From the foregoing it is evident that this Supreme Court has jurisdiction, which Congress is powerless to
abolish, to review, revise, reverse, modify, or affirm any and all actuations of judicial nature of the party
respondent and the Military Commission before whom petitioner Yamashita tried is for his life. In facts,
this Supreme Court's jurisdiction extends, not only to courts and judicial institutions, but to all persons,
and agencies which form part of the whole machinery of the administration of the justice, in so far as is
necessary to the administration of the justice.

We have jurisdiction over the person of respondent Lt. Gen. Wilhelm D. Styer, not as to the discharge of
his military functions and duties, but in regards to his official acts in connection with the administration
of justice in the criminal case against Tomoyuki Yamashita, and that jurisdiction became effective since
November 13, 1945, his refusal to sign receipt for the summons and the refusal of the subordinate
officers in his officers in his office to accept said and the summoning of said military commission.

No one questions our jurisdiction over the person of petitioner, he having voluntarily submitted himself
to it by his petition.

With respect to the military commission trying him, under the questions raised in the petition, it is a
proper party respondent and the petitioner should have included it as among the party respondents.
But petitioner's omission is just a technical error of no vital consequence, because under the judicial
rules, we can order the inclusion and the summoning of said military commission.

The amici curiae want to us to be cautious and slow in exercising jurisdiction in this case, in view of the
possibility that our orders might be disregarded by the military officers concerned. The fear entertained
by the amici curiaemight find some ground in the attitude of respondent General Styer, when the latter
refused to sign receipt for the summons or to receive the papers thereof.

The same warning has been made in a case decided by this Supreme Court several weeks ago. In answer
to the warning, we can do no better than to repeat what we said therein.

It has been argued with energy by those who oppose our issuing the order for the release of the
petitioners, that if we decide to issue it, the United States Army might refuse to set them at
liberty, with the result that the order of release will become a mere scrap of paper and the
Supreme Court of the Philippines will be placed in the unenviable position of utter ridicule. We
have to answer in the most definite way that we can not agree with such a narrow point of view.

But suppose the most unexpected should happen, that there might be members of the United
States Armed Forces who will be blind enough to ignore the order of this Supreme Court, to
make a mockery of the administration of justice, shall that unthinkable hypothesis deter us from
doing our duty? Our answer is a simple. No. No one and nothing in the whole world, neither the
 all-powerful army which humbled Germany and forced the surrender of the "invincible"
Japanese Army, nor weapons more dreadful than the atomic bomb, the menace of an imminent
catastrophe, shall be powerful enough to make us flinch from complying with our plain duty as
Justices of the Supreme Court. We must do our duty as our conscience dictates, without fear nor
favor. It is our duty to make reason and right supreme regardless of consequences. Law and
justice might suffer setbacks, endure eclipses, but at the end they shall reign with all the
splendors of the real majesty. (Raquiza vs. Bradford, G.R. No. L-44, pp. 76, 88, ante, dissenting.)

We recognized no one to be above the law. Mere military might cannot change and nullify the course of
justice. In the long run, everybody must have to bow and prostrate himself before the supreme majesty
of the law.

11. HABEAS CORPUS

In praying for a writ of habeas corpus, petitioner wants us to order that he be returned from the status
of an accused war criminal to that of a prisoner of war.

He is not seeking release from confinement.

We are of opinion that the petition for a a writ of habeas corpus must be denied. The purpose of said
writ is to restore liberty to a person who is being deprived of it without due process of law. Such is not
the case of petitioner. He does not complain of any illegal detention or deprivation of personal freedom.

He is deprived of his liberty because he is, according to his own allegation, a prisoners of war. Whether
or not he should be accused as a war criminal, is not a proper question to be raised in habeas
corpus proceeding.

The fact that petitioner is an accused war criminal does not change his status as a war prisoner. He
remains to be so, whether he is prosecuted as a war prisoner because he was placed and regarded as
war criminal or not.

Not having lost his status as a war prisoners because he was placed and regarded as a war criminal,
there is no reason for ordering his reversion to a status which he did not cease to retain since his
surrender or capture on September 2, 1945.

For these reasons we voted for the denial of the writ of habeas corpus.

12. JURISDICTION OF THE MILITARY COMMISSION

We are opinion that the Military Commission conducting the trial of petitioner has jurisdiction to try him
for the crimes alleged in the 123 items in the specified charges filed against him.

From the very allegations and exhibits of petitioner it appears that said Military Commission was created
and organized by orders of General Douglas MacArthur, Commandeer in Chief of the United States Army
Forces in Western Pacific.

We are of opinion that said Commander in Chief has authority to convene said Military Commission.
Petitioner contends that "there being no marital law, active hostilities in the Philippine Islands at the
time of the appointment of the commission, there was no authority to appoint the commission, and the
commission in without jurisdiction.

We do not agree with the contention. Neither martial law, nor the existence of Military Government,
nor the waging of active hostilities is a prerequisite for exercising the power of appointing a Military
Commission.

In the absence of pre-established tribunals clothed with authority to try war criminals, Military
Commission may be established for said purpose, and unless organized by the Chief Executive himself
they may be organized by the military Commander in Chief, representing said Chief Executive.

The American Representatives (Lansing and Scott) in the Allied commission of 15 organized after the
first World War, although opposed, with the Japanese Representatives, the creation of an international
criminal court, which became abortive, were of opinion that war criminals may be tried by Military
Commission of the offended countries.

13. COLLECTIVE RESPONSIBILITY

Although we maintain that the Military Commission here in question has jurisdiction to try the case for
war crimes against petitioner Yamashita, in the regulations governing the trial of war criminals, Exhibit F,
there are several features which should not be left unchallenged. Section 4-b, under the title of
"Jurisdiction" of Exhibit F, provides: "Any military or naval unit or any official or unofficial group or
organization whether or not still in existence, may be charged with criminal acts or complicity therein
and tried by a Military Commission."

This provision, undoubtedly, advances the principle of collective responsibility in contradistinction to the
principle of individual criminal responsibility.

Under the principle of individualized criminal responsibility, no person may be convicted of any offense
without due process of law and without proving in said process in which he should also enjoy the
guarantee of equal protection of the laws, that the he is personally guilty of the offense.

Under the principle of collective criminal responsibility, any member of any social group or organization
may be convicted without any hearing if, in a process where he did not have his day in court, the social
group or any other member thereof is found guilty of an offense.

During the Japanese regime, when a member of a family was found by the military police, with or
without ground, as responsible for an alleged offense or being a member of a guerrilla unit, the
remaining members of his family were also made to suffer.

When a town or barrio was suspected of harboring guerrilleros, the Japanese would punish the whole
town or barrio by mowing down all the inhabitants, or burning all the houses, or, at least, subjecting all
the male inhabitants thereof to brutal zonings. The ruins of Manila are graphic illustrations of how the
principle worked.
It is unnecessary to elaborate more to show the grave iniquities to which the principle of collective
criminal responsibility leads.

We are of opinion that said principle violates the constitutional guarantee of due process of law and
therefore, we should have issued a writ of prohibition enjoining the Military Commission from exercising
the unconstitutional jurisdiction granted in section 4-b of Exhibit F.

14. EVIDENCE

Section 16 (1), under the title of "Evidence," provides what may be admitted as evidence as follows:
"Any document which appears to the commission to have been signed or issued officially by any officer,
department, agency, or member of the armed forces of any government, without proof of the signature
or of the issuance of the document."

The following may also be admitted as evidence according to section 16 (3): "Affidavits depositions, or
other statements taken by an officer detailed for that purpose by military authority."

We are of opinion that the admission of documents as evidence, "without proof of the signature or of
the issuance of the document," is a denial of the due process of law constitutionally guaranteed to all
persons before he could be deprived of his life, liberty, or property. The authenticity or genuiness of a
document is an essential element in order that it may acquire the nature of an evidence. Proof of
signature of the issuance of the document is essential to show its genuiness.

The admission of affidavits "or other statements taken by an officer detailed for that purpose by military
authority" is clear violation of the constitutional guarantee that in all criminal prosecution that accused
shall enjoy the right" to meet the witness face to face." (Art. III, sec. 1 [17], Constitution of the
Philippines.) The Military Commission accepted as evidence against accused Yamashita the affidavits of
Naokata Utsunomiya (Exhibits L and M), denying said Yamashita the constitutional right "to meet face to
face affiant Naokata Utsunomiya.

According to section 16 (4) of the regulations (Exhibit F); "Any diary, letter or other document appearing
to the to the commission to contain information relating to the charge," may also be admitted as
evidence. This provision denies also to the accused the constitutional guarantee of meeting a witness
face and, therefore, of cross-examining him.

We are of opinion that the admission of evidence above-mentioned must be prohibited, and that a writ
of prohibition issued by the Court is a proper remedy.

15. HEARSAY

The regulations (Exhibit F) authorizes also the admission of hearsay as evidence.

Section 16-d of said regulation provides: "If the accused is charged with an offense involving concerted
criminal action upon the part of a military of naval unit, or any group or organization, evidence which
has been given previously at a trial of any member of that unit, group or organization, relative to that
concerted offense, may be received as prima facie evidence that the accused likewise is guilty of that
offense."
In section 16-e, the objectionable feature of a hearsay evidence is aggravated by the adherence to the
principles of collective criminal responsibility. It provides: "The findings and judgment of a commission in
any trial of sa unit, group or organization with respect to the criminal character, purpose or activities
thereof shall given full faith and credit in any subsequent trial by that or any other commission of an
individual person charged with criminal responsibility through membership in such unit, group or
organization convicted by the commission, the burden of the proof shall shift to the accused to establish
any mitigating circumstances relating to his membership or participation therein."

We are opinion, too, that the Military Commission should be prohibited to follow the unjust procedures
delineated in the above-quoted provisions, the objectionable character of which was explicitly admitted
even by the amicus curiae who appeared to argue in this case in opposition to the granting of remedies
sought by petitioner.

16. FUNDAMENTAL RIGHTS GUARANTEED TO EVERYBODY

No matter who the petitioner is, we are of opinion that he is entitled to all the safeguard of a fair trial.

The fundamental rights freedoms guaranteed in the Charter of the United Nations are guaranteed to all
human beings, without exception.

In his annual proclamation setting November 22, 1945, as Thanksgiving Day, President Truman, among
other things, said: "Liberty knows no race, creed or class in our country or in the world. In unity we
found our first weapon, for without it, both here and abroad, we were doomed. None have known this
better than our very gallant dead, none better than their comrade Franklin Delano Roosevelt. Our
Thanksgiving has the humility of our deep mourning for them, our vast gratitude for them.

"Triumph over the enemy has not dispelled very difficulty. Many vital and far-reaching decisions await
us as we strive for a just and enduring peace. We will not fail if we preserve, in our own land and
throughout the world, the same devotion to the essential freedoms and rights of mankind which
sustained us throughout the war and brought us final victory."

And Prime Minister Attlee, in the face of the potential destructiveness of the atom bomb, said before
the English Parliament: "It is well that we should make up our minds that in a war on the scale to that
which we have just emerged every weapon will be used. We may confidently expect the fullest
destruction of great cities, death of millions and the setting back of civilization to an unimaginable
extent.

"No system of safeguards which could be devised will of itself — I emphasized of itself — provide an
effective guarantee against production of automatic weapons by a nation or nations bent on aggression.

"With the terrible march of the science of destruction, every nation will realize more urgently the
overwhelming need to maintain the rule of the law among nations and to banish the scourage of war
from the earth.

"We have in prospect the meeting of United Nations Organization and there is an instrument which, if
all are resolved to use it, could establish the rule of the law and prevent war — I resolved."
In the eternal struggle between the principles of right and wrong, there no choice if humanity must
survive. Lincoln said: "That is the real issue that will continue in this country when these poor tongues of
Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles, right
and wrong, throughout the world. They are the two principles that have stood face to face from the
beginning of time."

When we voted for the granting of the writ of prohibition, we did it out of consistency, as the vibrant
words of Jefferson must no cease ringing ours in ours ears when he said: "What a stupendous, what an
incomprehensible machine is man! who can endure toil, famine, stripes, imprisonment, and death itself,
in vindication of his own liberty, and, the next moment be deaf to all those motives whose power
supported him through his trial, and inflict on his fellowmen a bandage, one our of which is fraught with
more misery than ages of that which he rose in rebellion to oppose."

17. NEEDED SERVICE TO THE MORAL AND CULTURAL PURPOSES OF HUMANITY

If petitioner is tried and convicted under a process in which some of the recognized essential guarantees
for a fair trial are violated, it would produce a result opposite that expected by those who are following
up the trials of all war criminals; the arousing of a deep-rooted universal conviction that law must be
supreme and that justice should be equally administered to each and very member of humanity.

The peoples of all nations who are keenly watching the prosecution of Yamashita should be convicted,
by conclusive evidence, that said prosecution is not a mere parody of the administration of justice,
devised to disguise the primitive impulses of vengeance and retaliation, the instinctive urge to crush at
all costs, no matter what the means, hated fallen enemy.

The prosecution, trial, and conviction of Yamashita must impress all the peoples of the world that the
principle of law is paramount, and supersedes and wipes out all other considerations in dealing with war
or common criminals. Otherwise, their faith in the supremacy of law as the invulnerable bulwark of all
fundamental human rights will be shaken, and the moral position of the victorious United Nations, the
ethical value of the grandiose pronouncements of their leaders, and the profound significance of the
lofty ideals for which millions of their soldiers have fought and died, will be weakened and diminished to
such an extent as to make barren all the tremendous sacrifices made by so many countries and so many
peoples in the last global hecatomb.

It was Ihering who, in his " LAW AS A MEANS TO AN END ," said that: "There is no human life which exist
merely for itself, every one is at the same time for the same of the world: every man in his place,
however limited it may be, is a collaborator in the cultural purposes of humanity . . . . I cannot imagine a
human life so poor, so devoid of content, so narrow, so miserable, that it is not of some good to some
other life; even such a life has not seldom borne the world the richest fruit." (Page 60.)

So even the shameful exploits in the Philippines with which Yamashita ingloriously crowned his military
career, at its peak when he conquered Malaya and Singapore, and descended from the pedestal of the
greatest Nippon military hero in all her history to the moral abyss of that abominable monstrous figure,
the greatest war criminal in Asia and in the Pacific, cannot put render some service to the cultural
purposes of humanity if, by his due trial in accordance with the elemental rules in the criminal
procedure, the sense of law and justice is further developed in the conscience of the present and future
generations.
 18. OUR VOTE

From all foregoing, when the resolution to dispose of this case was put to a vote, we concurred in the
denial of the petition for a writ of habeas corpus, and we voted for the granting of the writ of
prohibition in order that the objectionable features in the trial before the Military Commission may be
eliminated, so that petitioner Yamashita may be given the full justice due to all human beings.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1812 August 27, 1948

EREMES KOOKOORITCHKIN, petitioner,

vs.
THE SOLICITOR GENERAL, oppositor.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor for appellant.
L. D. Lockwood and Manuel O. Chan for appellee.

PERFECTO, J.:

In August, 1941, appellee filed with the lower court a petition for naturalization, accompanied with
supporting affidavits of two citizens, copy of a declaration of intention sworn in July, 1940, and proper
notice of the hearing. The petition was finally set for hearing on December 18, 1941, but it was held on
that date because the province was invaded by the Japanese forces on December 14, and the case
remained pending until the records were destroyed during the military operations for liberation in
March, 1945. The case was declared reconstituted on May 10, 1947, and the evidence was presented on
August 28 and September 30, 1947. On the same day resolution was issued granting the petition.

Although appellant was represented at the hearing and cross-examined the witnesses for the petitioner,
he did not file an opposition or presented any evidence.

The lower court made the findings of fact in the following paragraphs of its resolution:

Eremes Kookooritchkin applies for Philippine citizenship naturalization under the provisions of
Commonwealth Act 473, as amended by Act 535.

The records shows that in August, 1941, he filed his petition for naturalization supported by the
affidavits of ex-Judge Jaime M. Reyes and Dr. Salvador Mariano, both residents of Camarines
Sur. In the preceding year, in July, 1940 to be precise, he filed his declaration of intention to
become a citizen of this country. Notice of the hearing was published as required by law.

It was established at the hearing that the petitioner is a native-born Russian, having first seen
the light of day on November 4, 1897 in the old City of St. Petersburg, Russia. He grew up as a
citizen of the defunct Imperial Russian Government under the Czars. World War I found him in
the military service of this Government. In 1915 he volunteered for the Imperial Russian navy
and was sent to the Navy Aviation School. He fought with the Allies in the Baltic Sea, was later
transferred to the eastern front in Poland, and much later was sent as a navy flier to Asia Minor.
In the latter part of the war, but before the Russian capitulation, he was transferred to the
British Air Force under which he served for fourteen months. When the revolution broke out in
Russia in 1917, he joined the White Russian Army at Vladivostok and fought against the
 Bolsheviks until 1922 when the White Russian Army was overwhelmed by the Bolsheviks. As he
refused to join the Bolshevik regime, he fled by sea from Vladivostok to Shanghai and from this
Chinese port he found his way to Manila, arriving at this port as a member of a group of White
Russians under Admiral Stark in March, 1923. He stayed in Manila for about seven months, then
moved to Olongapo, Zambales, where he resided for about a year, and from this place he went
to Iriga, Camarines Sur, where he established his permanent residence since May, 1925. He has
remained a resident of this municipality, except for a brief period from 1942 to July, 1945, when
by reason of his underground activities he roamed mountains of Caramoan as a guerrilla officer.
After liberation he returned to Iriga where again he resides up to the present time.

The applicant is married to a Filipino by the name of Concepcion Segovia, with whom he has one
son named Ronald Kookooritchkin. He is at present studying in Saint Agnes Academy, at Legaspi,
Albay, a school duly recognized by the Government.

The applicant is shop superintendent of A. L. Ammen Transportation Company, with about

eighty Filipino employees working under him. He receives an annual salary of P13,200 with free
quarters and house allowance. He also owns stocks and bonds of this and other companies.

The applicant speaks and writes English and the Bicol dialect. Socially he intermingles with the
Filipinos, attending parties, dances and other social functions with his wife. He has a good moral
character and believes in the principles underlying the Philippine Constitution. He has never
been accused of any crime. On the other hand, he has always conducted himself in a proper and
irreproachable manner during his entire period of residence in Camarines Sur, in his relations
with the constituted authorities as well as with the community.

Although he could have lived in ease by maintaining good relations with the enemy by reason of
his being Russian-born during the years preceding the declaration of war by Russia against
Japan, the applicant of his own volition chose to cast his lot with the guerrilla movement and
fought the enemy in several encounters in the Province of Camarines Sur. He belonged to the
guerrilla outfit of Colonel Padua with rank of major. Upon the arrival of the forces of liberation
he was attached to the American Army from April to June, 1945.

Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the
present Communist Government of Russia. He is, therefore, a stateless refugee in this country,
belonging to no State, much less to the present Government of the land of his birth to which he
is uncompromisingly opposed. He is not against organized government or affiliated with any
association which upholds and teaches doctrine opposing all organized governments. He does
not believe in the necessity or propriety of violence, personal assault or assassination for the
success or predominance of his ideas. Neither is he a polygamist or a believer in the practice of
polygamy. He is not suffering from any mental alienation or incurable contagious disease.

Appellant assigns four errors in the appealed resolution. We will consider them separately.

Appellant claims that the lower court erred in not finding that the declaration of intention to become a
Filipino citizen filed by appellee is invalid and insufficient as a basis for the petition of naturalization. The
question calls for the application of the following provision of section 5 of the Revised Naturalization
Law:

No declaration shall be valid until entry for permanent residence has been established and a
certificate showing the date, place and manner of his arrival has been issued.

Appellant alleges that no documentary or testimonial evidence was introduced to establish the fact that
appellee had lawfully been admitted into the Philippines for permanent residence.

In the reconstituted declaration (page 11, record on appeal) the following can be read:

I arrived at the Port of Manila on or about the first day of March, 1923, as shown by the
attached certificate of arrival or landing certificate of residence.

The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen
were filed, had been lost or destroyed during the battle for the liberation of Manila, and the certificate
alluded to has not been reconstituted.

Appellant's contention that attachment of the certificate of arrival is essential to the validity of a
declaration finds no support in the wordings of the law, as the above-quoted section 5 of
Commonwealth Act no. 473 uses the words "has been issued.

Appellee suggests that we would not consider the question here raised by appellant, the latter having
failed to raise it in lower court and points out that there is testimonial evidence showing appellee's
arrival March, 1923, and that he was lawfully admitted for permanent residence, and the testimony of
petitioner has not been refuted. Appellee's alleges that the office of the President has certified that it is
a matter of record that petitioner was one of the Russian refugees who entered the Philippines under
the command of Admiral Stark, the facts regarding arrival of the latter fleet being a matter of common
knowledge, widely publicized in the newspapers at the time, of which this Court may properly take
judicial notice under section 5 of Rule 123. When the fleet entered the Philippine waters, it was met by a
Governor General Wood who, later, took the matter up with the authorities in Washington in lengthy
correspondence, and the 1,200 persons manning the fleet were allowed to land and to remain in the
Philippines or proceed to other countries, except about 800 who were allowed to go to the United
States and given free transportation on the naval transport "Merritt." The ships of the fleet were sold in
the Philippines.

The undisputed fact that the petitioner has been continuously residing in the Philippines for about 25
years, without having been molested by the authorities, who are presumed to have been regularly
performing their duties and would have arrested petitioner if his residence is illegal, as rightly
contended by appellee, can be taken as evidence that he is enjoying permanent residence legally. That a
certificate of arrival has been issued is a fact that should be accepted upon the petitioner's undisputed
statement in his declaration of July, 1940, that the certificate cannot be supposed that the receiving
official would have accepted the declaration without the certificate mentioned therein as attached
thereto.
We conclude that petitioner's declaration is valid under section 5 of the Naturalization Law, failure to
reconstitute the certificate of arrival notwithstanding. What an unreconstituted document intended to
prove may be shown by other competent evidence.

II

The second assignment of error touches upon two questions, that the lower court erred (1) in not
finding that appellee has not established a legal residence in the Philippines, and (2) in not finding that
he cannot speak and write any of the principal Philippine languages.

The first question has already been disposed of in the above discussion. Perusal of the testimonies on
record leads to the conclusion that petitioner has shown legal residence in the Philippines for a
continuous period of not less than ten years as required by section 2 of Commonwealth Act No. 473.

As to the next question, appellant alleges that in the oral test at the hearing, it was demonstrated that
petitioner has only a smattering of Bicol, the Filipino language that petitioner alleges to know, and he
cannot speak it as he was not able to translate from English to Bicol questions asked by the court and
the provincial fiscal, although, in the continuation of the hearing on September 30, 1947, "surprisingly
enough, he succeeded answering correctly in Bicol the questions propounded by his counsel, however,
he fumbled and failed to give the translation of such a common word as 'love' which the fiscal asked of
him.

The lower court made the finding of fact that applicant speaks and writes English and Bicol and there
seems to be no question about the competency of the judge who made the pronouncement, because he
has shown by the appealed resolution and by his questions propounded to appellee, that he has
command of both English and Bicol.

The law has not set a specific standard of the principal Philippine languages. A great number of
standards can be set. There are experts in English who say that Shakespeare has used in his works
15,000 different English words, and the King's Bible about 10,000, while about 5,000 are used by the
better educated persons and about 3,000 by the average individual. While there may be persons
ambitious enough to have a command of the about 600,000 words recorded in the Webster's
International Dictionary, there are authorities who would reduce basic English to a few hundred words.
Perhaps less than one hundred well selected words will be enough for the ordinary purposes of daily
life.

There is a reason to believe that the lower court's pronouncement is well taken considering the fact
that, after he was liberated in 1942 from the Japanese in the Naga prison, petitioner joined the guerrilla
in the Bicol region, took part in encounters and skirmishes against the Japanese, and remained with the
guerrilla until the Americans liberated the Bicol provinces. If appellee with his smattering of Bicol was
able to get along with his Bicol comrades in the hazardous life of the resistance movement, we believe
that his knowledge of the language satisfies the requirement of the law.

But appellant contends that there is no piece of positive evidence to support petitioner's allegation that
he can write too in the Bicol language. There, is, however, on record circumstantial evidence from which
it can be concluded that petitioner ought to know also how to write Bicol. We know that Bicol, as all the
important Philippine languages, uses the same alphabet used in English, and it is much easier to write
Bicol than English, because it is phonetic. Vowels and consonants have in them single and not
interchangeable phonetic values, while English words deviate very often from the basic sounds of the
alphabet. The ability to write cannot be denied to a person like petitioner, who has undergone the
exacting technical training to be able to render services as flier in the Russian Naval Squadron in the
Baltic Sea and in the British Air Forces during the first World War. The difference between the Cyrillic
alphabet, as now used by Russians, and our Roman alphabet, cannot weigh much to deny petitioner the
ability to use the latter. A person who has shown the command of English which can be seen in his
testimony on record can easily make use of an alphabet of twenty or more letters universally used in
this country where he has been residing continuously for 25 years.

III

Appellant contends that the lower court erred in finding appellee stateless and not a Russian citizen and
in not finding that he has failed to establish that he is not disqualified for Philippine citizenship under
section 4 (h) of the Revised Naturalization Law.

It is contended that petitioner failed to show that under the laws of Russia, appellee has lost his Russian
citizenship and failed to show that Russia grants to Filipinos the right to become a naturalized citizens or
subjects thereof. The controversy centers on the question as to whether petitioner is a Russian citizen or
is stateless.

Petitioner testified categorically that he is not a Russian citizen and that he has no citizenship. His
testimony supports the lower court's pronouncement that petitioner is a stateless refugee in this
country.

Appellant points out that petitioner stated in his petition for naturalization that he is citizen or subject of
the Empire of Russia, but the Empire of Russia has ceased to exist since the Czars were overthrown in
1917 by the Bolshevists, and the petitioner disclaims allegiance or connection with the Soviet
Government established after the overthrow of the Czarist Government.

We do not believe that the lower court erred in pronouncing appellee stateless. Appellee's testimony,
besides being uncontradicted, is supported by the well-known fact that the ruthlessness of modern
dictatorship has scattered throughout the world a large number of stateless refugees or displaced
persons, without country and without flag. The tyrannical intolerance of said dictatorships toward all
opposition induced them to resort to beastly oppression, concentration camps and blood purges, and it
is only natural that the not-so-fortunate ones who were able to escape to foreign countries should feel
the loss of all bonds of attachment to the hells which were formerly their fatherland's. Petitioner
belongs to that group of stateless refugees.

Knowing, as all cultured persons all over the world ought to know, the history, nature and character of
the Soviet dictatorship, presently the greatest menace to humanity and civilization, it would be
technically fastidious to require further evidence of petitioner's claim that he is stateless than his
testimony that he owes no allegiance to the Russian Communist Government and, is because he has
been at war with it, he fled from Russia to permanently reside in the Philippines. After finding in this
country economic security in a remunerative job, establishing a family by marrying a Filipina with whom
he has a son, and enjoying for 25 years the freedoms and blessings of our democratic way of life, and
after showing his resolution to retain the happiness he found in our political system to the extent of
refusing to claim Russian citizenship even to secure his release from the Japanese and of casting his lot
with that of our people by joining the fortunes and misfortunes of our guerrillas, it would be beyond
comprehension to support that the petitioner could feel any bond of attachment to the Soviet
dictatorship.

IV

The fourth and last assignment of error need not be discussed, it being only a sequel of the other
assignments and has necessarily been disposed of in their discussion.

The appealed resolution is affirmed.

Paras, Feria, Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
 United States Supreme Court
THE PAQUETE HABANA, (1900)
No. 395
Argued: Decided: January 8, 1900
[175 U.S. 677, 678] Mr J. Parker Kirlin for appellants.

Assistant Attorney General Hoyt, Solicitor General Richards, and Messrs. Joseph K. McCammon, James
H. Hayden, George A. King, and William B. King for appellees.

Mr. Justice Gray delivered the opinion of the court:

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

Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the
coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth, living in the
city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew
had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of her catch,
the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the
sea, put on board as they were caught, and kept and sold alive. Until stopped by the blockading
squadron she had no knowledge of the existence of the war or of any blockade. She had no arms or
ammunition on board, and made on attempt to run the blockade after she knew of its existence, nor any
resistance at the time of the capture.

The Paquete Habana was a sloop, 43 feet long on the keel, [175 U.S. 677, 679] and of 25 tons burden,
and had a crew of three Cubans, including the master, who had a fishing license from the Spanish
government, and no other commission or license. She left Havana March 25, 1898; sailed along the
coast of Cuba to Cape San Antonio, at the western end of the island, and there fished for twenty-five
days, lying between the reefs off the cape, within the territorial waters of Spain; and then started back
for Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about 2 miles off Mariel, and
11 miles from Havana, she was captured by the United States gunboat Castine.

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

Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of
each vessel and her cargo as prize of war was there filed on April 27, 1898; a claim was interposed by
her master on behalf of himself and the other members of the crew, and of her owner; evidence was
taken, showing the facts above stated; and on May 30, 1898, a final decree of condemnation and sale
was entered, 'the court not being satisfied that as a matter of law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are exempt from seizure.'
Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490; and the Lola for
the sum of $800. There was no other evidence in the record of the value of either vessel or of her cargo.

It has been suggested, in behalf of the United States, that [175 U.S. 677, 680] this court has no
jurisdiction to hear and determine these appeals, because the matter in dispute in either case does not
exceed the sum or value of $2,000, and the district judge has not certified that the adjudication involves
a question of general importance.

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

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

In actions at law and suits in equity the pecuniary limit of the appellate jurisdiction of this court from the
circuit courts of the United States was for a long time fixed at $2000. Acts of September 24, 1789, chap.
20, 22; 1 Stat. at L. 84; March 3, 1803, chap. 40; 2 Stat. at L. 244; Gordon v. Ogden, 3 Pet. 33, 7 L. ed.
592; Rev. Stat. 691, 692. In 1875 it was raised to $5,000. Act of February 16, 1875, chap. 77, 3; 18 Stat. at
L. 316. And in 1889 this was modified by providing that, where the judgment or decree did not exceed
the sum of $5,000, this court should have appellate jurisdiction upon the question of the jurisdiction of
the circuit court, and upon that question only. Act of February 25, 1889, chap. 236, 1; 25 Stat. at L. 693;
Parker v. Ormsby, 141 U.S. 81 , 35 L. ed. 654, 11 Sup. Ct. Rep. 912.

As to cases of admiralty and maritime jurisdiction, including prize causes, the judiciary act of 1789, in 9,
vested the original jurisdiction in the district courts, without regard to the sum or value in controversy;
and in 21 permitted an appeal from them to the circuit courts where the matter in dispute exceeded the
sum or value of $300. 1 Stat. at L. 77, 83, chap. 20; The Betsey, 3 Dall. 6, 16, sub nom. Glass v. The
Betsey, 1 L. ed. 485, 489; The Amiable Nancy, 3 Wheat. 546, 4 L. ed. 456; Stratton v. Jarvis, 8 Pet. 44, 11,
8 L. ed. 846, 849. By the act of March 3, 1803, chap. 40, appeals to the circuit court were permitted from
all final decrees of a district court where [175 U.S. 677, 681] the matter in dispute exceeded the sum or
value of $50; and from the circuit courts to this court in all cases 'of admiralty and maritime jurisdiction,
and of prize or no prize' in which the matter in dispute exceeded the sum or value of $2,000. 2 Stat. at L.
244; Jenks v. Lewis, 3 Mason, 503, Fed. Cas. No. 7,279; Stratton v. Jarvis, above cited; The Admiral, 3
Wall. 603, 612, sub nom. The Admiral v. United States, 18 L. ed. 58, 59. The acts of March 3, 1863, chap.
86, 7, and June 30, 1864, chap. 174, 13, provided that appeals from the district courts in prize causes
should lie directly to this court, where the amount in controversy exceeded $2,000, or 'on the certificate
of the district judge that the adjudication involves a question of difficulty and general importance.' 12
Stat. at L. 760; 13 Stat. at L. 310. The provision of the act of 1803, omitting the words 'and of prize or no
prize,' was re-enacted in 692 of the Revised Statutes; and the provision of the act of 1864, concerning
prize causes, was substantially re-enacted in 695 of the Revised Statutes, already quoted.

But all this has been changed by the act of March 3, 1891, chap. 517, establishing the circuit courts of
appeals, and creating a new and complete scheme of appellate jurisdiction, depending upon the nature
of the different cases, rater than upon the pecuniary amount involved. 26 Stat. at L. 826.
By that act, as this court has declared, the entire appellate jurisdiction from the circuit and district
courts of the United States was distributed, 'according to the scheme of the act,' between this court and
the circuit courts of appeals thereby established, 'by designating the classes of cases' of which each of
these courts was to have final jurisdiction. McLish v. Roff, 141 U.S. 661, 666 , 35 S. L. ed. 893, 894, 12
Sup. Ct. Rep. 118; American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U.S. 372, 382 , 37 S. L. ed.
486, 490, 13 Sup. Ct. Rep. 758; Carey v. Houston & T. C. R. Co. 150 U.S. 170, 179 , 37 S. L. ed. 1041, 1043,
14 Sup. Ct. Rep. 63.

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

Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter be taken from a
district court [175 U.S. 677, 682] to a circuit court; but that all appeals, by writ of error or otherwise,
from the district courts, 'shall only be subject to review' in this court or in the circuit court of appeal 'as
is hereinafter provided,' and 'the review by appeal, by writ of error, or otherwise' from the circuit courts,
'shall be had only' in this court or in the circuit court of appeals, 'according to the provisions of this act
regulating the same.'

Section 5 provides that 'appeals or writs of error may be taken from the district courts, or from the
existing circuit courts, direct to the Supreme Court, in the following cases:'

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

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

Third. 'In cases of conviction of a capital or otherwise infamous crime.' This clause looks to the nature of
the crime, and not to the extent of the punishment actually imposed. A crime which might have been
punished by imprisonment in a penitentiary is an infamous crime, even if the sentence actually
pronounced is of a small fine only. Ex parte Wilson, 114 U.S. 417, 426 , 29 S. L. ed. 89, 92, 5 Sup. Ct. Rep.
935. Consequently, such a sentence for such a crime was subject to the appellate jurisdiction of this
court, under this clause, until this jurisdiction, so far as regards infamous crimes, was transferred to the
circuit court of appeals by the act of January 20, 1897, chap. 68. 29 Stat. at L. 492.

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

Fifth. 'In any case in which the constitutionality of any law of the United States, or the validity or
construction of any treaty made under its authority, is drawn in question.' [175 U.S. 677, 683] Sixth. 'In
any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution
of the United States.'

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

By 6 of the act of 1891 this court is relieved of much of the appellate jurisdiction that it had before; the
appellate jurisdiction from the district and circuit courts 'in all cases other than those provided for in the
preceding section of this act, unless otherwise provided by law,' is vested in the circuit court of appeals;
and its decisions in admiralty cases, as well as in cases arising under the cirminal laws, and in certain
other classes of cases, are made final, except that that court may certify to this court questions of law,
and that this court may order up the whole case by writ of certiorari. It is settled that the words 'unless
otherwise provided by law,' in this section, refer only to provisions of the same act, or of
contemporaneous or subsequent acts, and do not include provisions of earlier statutes. Lau Ow Bew v.
United States, 144 U.S. 47, 57 , 36 S. L. ed. 340, 343, 12 Sup. Ct. Rep. 517; Hubbard v. Soby, 146 U.S. 56 ,
36 L. ed. 886, 13 Sup. Ct. Rep. 13; American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U.S. 372,
383 , 37 S. L. ed. 486, 491, 13 Sup. Ct. Rep. 758.

The act of 1891 nowhere imposes a pecuniary 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 States. The only pecuniary
limit imposed is one of [175 U.S. 677, 684] $1,000 upon the appeal to this court of a case which has
been once decided on appeal in the circuit court of appeals, and in which the judgment of that court is
not made final by 6 of the act.

Section 14 of the act of 1891, after specifically repealing 691 of the Revised Statutes and 3 of the act of
February 16, 1875, further provides that 'all acts and parts of acts relating to appeals or writs of error,
inconsistent with the provisions for review by appeals or writs of error in the preceding 5 and 6 of this
act, are hereby repealed.' 26 Stat. at L. 829, 830. The object of the specific repeal, as this court has
declared, was to get rid of the pecuniary limit in the acts referred to. McLish v. Roff, 141 U.S. 661, 667 ,
35 S. L. ed. 893, 895, 12 Sup. Ct. Rep. 118. And, although neither 692 nor 695, of the Revised Statutes is
repealed by name, yet, taking into consideration the general repealing clause, together with the
affirmative provisions of the act, the case comes within the reason of the decision in an analogous case,
in which this court said: 'The provisions relating to the subject-matter under consideration are, however,
so comprehensive, as well as so variant from those of former acts, that we think the intention to
substitute the one for the other is necessarily to be inferred, and must prevail.' Fisk v. Henarie, 142 U.S.
459, 468 , 35 S. L. ed. 1079, 1083, 12 Sup. Ct. Rep. 207.

The decision in this court in the recent case of United States v. Rider, 163 U.S. 132 , 41 L. ed. 101, 16
Sup. Ct. Rep. 983, affords an important, if not controlling, precedent. From the beginning of this century
until the passage of the act of 1891, both in civil and in criminal cases, questions of law upon which two
judges of the circuit court were divided in opinion might be certified by them to this court for decision.
Act of April 29, 1802, chap. 31, 6; 2 Stat. at L. 159; June 1, 1872, chap. 255, 1; 17 Stat. at L. 196; Rev.
Stat. 650-652, 693, 697; New England M. Ins. Co. v. Dunham, 11 Wall. 1, 21, 20 L. ed. 90, 96; United
States v. Sanges, 144 U.S. 310, 320 , 36 S. L. ed. 445, 449, 12 Sup. Ct. Rep. 609. But in United States v.
Rider it was adjudged by this court that the act of 1891 had superseded and repealed the earlier acts
authorizing questions of law to be certified from the circuit court to this court; and the grounds of that
adjudication sufficiently appear by [175 U.S. 677, 685] the statement of the effect of the act of 1891 in
two passages of that opinion: 'Appellate jurisdiction was given in all criminal cases by writ of error either
from this court or from the circuit courts of appeals, and in all civil cases by appeal or error, without
regard to the amount in controversy, except as to appeals or writs of error to or from the circuit courts
of appeals in cases not made final as specified in 6.' 'It is true that repeals by implication are not favored,
but we cannot escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the act
of March 3, 1891, covers the whole subject-matter under consideration, and furnishes the exclusive rule
in respect of appellate jurisdiction on appeal, writ of error, or certificate.' 163 U.S. 138 -140, 41 L. ed.
104, 16 Sup. Ct. Rep. 986.

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

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

We are of opinion that the act of 1891, upon its face, read [175 U.S. 677, 686] in the light of settled
rules of statutory construction and of the decisions of this court, clearly manifests the intention of
Congress to cover the whole subject of the appellate jurisdiction from the district and circuit courts of
the United States, so far as regards in what cases, as well as to what courts, appeals may be taken, and
to supersede and repeal, to this extent, all the provisions of earlier acts of Congress, including those that
imposed pecuniary limits upon such jurisdiction, and, as part of the new scheme, to confer upon this
court jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the
amount in dispute, and without any certificate of the district judge as to the importance of the particular
case.

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

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

This doctrine, however, has been earnestly contested at the bar; and no complete collection of the
instances illustrating it is to be found, so far as we are aware, in a single published work although many
are referred to and discussed by the writers on international law, notable in 2 Ortolan, Regles
Internationales et Diplomatie de la Mer (4th ed.) lib. 3, chap. 2, pp. 51-56; in 4 Calvo, Droit International
(5th ed.) 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, 191-196; and in Hall,
International Law (4th ed.) 148. It is therefore worth the while to trace the history of the rule, from the
earliest accessible sources, through the increasing recognition of it, with occasional setbacks, to what
we may now justly consider as its final establishment in our own country and generally throughout the
civilized world.

The earliest acts of any government on the subject, men- [175 U.S. 677, 687] tioned in the books,
either emanated from, or were approved by, a King of England.

In 1403 and 1406 Henry IV. issued orders to his admirals and other officers, entitled 'Concerning Safety
for Fishermen-De Securitate pro Piscatoribus.' By an order of October 26, 1403, reciting that it was made
pursuant to a treaty between himself and the King of France; and for the greater safety of the fishermen
of either country, and so that they could be, and carry on their industry, the more safely on the sea, and
deal with each other in peace; and that the French King had consented that English fishermen should be
treated likewise,-it was ordained that French fishermen might, during the then pending season for the
herring fishery, safely fish for herrings and all other fish, from the harbor of Gravelines and the island of
Thanet to the mouth of the Seine and the harbor of Hautoune. And by an order of October 5, 1406, he
took into his safe conduct and under his special protection, guardianship, and defense, all and singular
the fishermen of France, Flanders, and Brittany, with their fishing vessels and boats, everywhere on the
sea, through and within his dominions, jurisdictions, and territories, in regard to their fishery, while
sailing, coming, and going, and, at their pleasure, freely and lawfully fishing, delaying, or proceeding, and
returning homeward with their catch of fish, without any molestation or hindrance whatever; and also
their fish, nets, and other property and goods soever; and it was therefore ordered that such fishermen
should not be interfered with, provided they should comport themselves well and properly, and should
not, by color of these presents, do or attempt, or presume to do or attempt, anything that could
prejudice the King, or his Kingdom of England, or his subjects. 8 Rymer's Foedera, 336, 451.

The treaty made October 2, 1521, between the Emperor Charles V. and Francis I. of France, through
their ambassadors, recited that a great and fierce war had arisen between them, because of which there
had been, both by land and by sea, frequent depredations and incursions on either side, to the grave
detriment and intolerable injury of the innocent [175 U.S. 677, 688] subjects of each; and that a
suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy,
the fishermen did not dare to go out, whereby the subject of their industry, bestowed by heaven to allay
the hunger of the poor, whould wholly fail for the year, unless it were otherwise provided,-Quo fit, ut
piscaturoe commoditas, ad pauperum levandam famen a coelesti numine concessa, cessare hoc anno
cmnino debeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each sovereign,
fishing in the sea, or exercising the calling of fishermen, could and might, until the end of the next
January, without incurring any attack, depredation, molestation, trouble, or hindrance soever, safely
and freely, everywhere in the sea, take herrings and every other kind of fish, the existing war by land
and sea notwithstanding; and, further, that during the time aforesaid no subject of either sovereign
should commit, or attempt or presume to commit, any depredation, force, violence, molestation, or
vexation to or upon such fishermen or their vessels, supplies, equipments, nets, and fish, or other goods
soever truly appeartaining to fishing. The treaty was made at Calais, then an English possession. It
recites that the ambassadors of the two sovereigns met there at the earnest request of Henry VIII. and
with his countenance, and in the presence of Cardinal Wolsey, his chancellor and representative. And
towards the end of the treaty it is agreed that the said King and his said representative, 'by whose
means the treaty stands concluded, shall be conservators of the agreements therein, as if thereto by
both parties elected and chosen.' 4 Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.

The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. Bynkershoek,
Quaestiones Juris Publicae, lib. 1, chap. 3; 1 Emerigon des Assurances, chap. 4, 9; chap. 12, 19, 8.

France, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen.
In the compilation entitled 'Us et Coutumes de la Mer,' published by Cleirac in 1661, and in the third
part thereof, containing 'Maritime or Admiralty Jurisdiction,-la Jurisdiction de la [175 U.S. 677,
689] Marine ou d' Admiraute-as well in time of peace, as in time of war,' article 80 is as follows: 'The
admiral may in time of war accord fishing truces-tresves pescheresses-to the enemy and to his subjects;
provided that the enemy will likewise accord them to Frenchmen.' Cleirac, 544. Under this article,
reference is made to articles 49 and 79 respectively of the French ordinances concerning the admiralty
in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes, 319; 2
Ortolan, 51. And Cleirac adds, in a note, this quotation from Froissart's Chronicles: 'Fishermen on the
sea, whatever war there were in France and England, never did harm to one another; so they are
friends, and help one another at need,-Pescheurs sur mer, quelque guerre qui soit en France et
Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont amis, et s'aydent l'un a l'autre au besoin.'

The same custom would seem to have prevailed in France until towards the end of the seventeenth
century. For example, in 1675, Louis XIV. and the States General of Holland by mutual agreement
granted to Dutch and French fishermen the liberty, undisturbed by their vessels of war, of fishing along
the coats of France, Holland, and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1, vol. 2, p.
278. But by the ordinances of 1681 and 1692 the practice was discontinued, because, Valin says, of the
faithless conduct of the enemies of France, who, abusing the good faith with which she had always
observed the treaties, habitually carried off her fishermen, while their own fished in safety. 2 Valin sur
l'Ordonnance de la Marine (1776) 689, 690; 2 Ortolan, 52; De Boeck, 192.

The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of
war, has been familiar to the United States from the time of the War of Independence.

On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing him that the
wish he had always had of alleviating, as far as he could, the hardships of war, had directed his attention
to that class of his subjects [175 U.S. 677, 690] which devoted itself to the trade of fishing, and had no
other means of livelihood; that he had thought that the example which he should give to his enemies,
and which could have no other source than the sentiments of humanity which inspired him, would
determine them to allow to fishermen the same facilities which he should consent to grant; and that he
had therefore given orders to the commanders of all his ships not to disturb English fishermen, nor to
arrest their vessels laden with fresh fish, even if not caught by those vessels; provided they had no
offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with
the enemy; and the admiral was directed to communicate the King's intentions to all officers under his
control. By a royal order in council of November 6, 1780, the former orders were confirmed; and the
capture and ransom, by a French cruiser, of The John and Sarah, an English vessel, coming from Holland,
laden with fresh fish, were pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.

Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty,
was one of April 11, 1780, by which it was 'ordered that all causes of prize of fishing boats or vessels
taken from the enemy may be consolidated in one monition, and one sentence or interlocutory, if under
50 tons burthen, and not more than 6 in number.' Marriott's Formulary, 4. But by the statements of his
successor, and of both French and English writers, it apears that England, as well as France, during the
American Revolutionary War, abstained from interfering with the coast fisheries. The Young Jacob and
Johanna, 1 C. Rob. 20; 2 Ortolan, 53; Hall, 148.

In the treaty of 1785 between the United States and Prussia, article 23 (which was proposed by the
American Commissioners, John Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have
been drawn up by Franklin), provided that, if war should arise between the contracting parties, 'all
women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and
fishermen, [175 U.S. 677, 691] unarmed and inhabiting unfortified towns, villages, or places, and in
general all others whose occupations are for the common subsistence and benefit of mankind, shall be
allowed to continue their respective employments, and shall not be molested in their persons, nor shall
their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the
enemy, into whose power, by the events of war, they may happen to fall; but if anything is necessary to
be taken from them for the use of such armed force, the same shall be paid for at a reasonable price.' 8
Stat. at L. 96; 1 Kent, Com. 91, note; Wheaton, History of the Law of Nations, 306, 308. Here was the
clearest exemption from hostile molestation or seizure of the persons, occupations, houses, and goods
of unarmed fishermen inhabiting unfortified places. The article was repeated in the later treaties
between the United States and Prussia of 1799 and 1828. 8 Stat. at L. 174, 384. And Dana, in a note to
his edition of Wheaton's International Laws, says: 'In many treaties and decrees, fishermen catching fish
as an article of food are added to the class of persons whose ocupation is not to be disturbed in war.'
Wheaton, International Law (8th ed.) 345, note 168.

Since the United States became a nation, the only serious interruptions, so far as we are informed, of
the general recognition of the exemption of coast fishing vessels from hostile capture, arose out of the
mutual suspicions and recriminations of England and France during the wars of the French Revolution.

In the first years of those wars, England having authorized the capture of French fishermen, a decree of
the French National Convention of October 2, 1793, directed the executive power 'to protest against this
conduct, theretofore without example; to reclaim the fishing boats seized; and, in case of refusal, to
resort to reprisals.' But in July, 1796, the Committee of Public Safety ordered the release of English
fishermen seized under the former decree, 'not considering them as prisoners of war.' La Nostra
Segnora de la Piedad (1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit
Commercial (2d ed.) 266, 267. [175 U.S. 677, 692] On January 24, 1798, the English government by
express order instructed the commanders of its ships to seize French and Dutch fishermen with their
boats. 6 Martens, Recueil des Traites (2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53.
After the promulgation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty
of England condemned small Dutch fishing vessels as prize of war. In one case the capture was in April,
1798, and the decree was made November 13, 1798. The Young Jacob and Johanna, 1 C. Rob. 20. In
another case the decree was made August 23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.

For the year 1800 the orders of the English and French governments and the correspondence between
them may be found in books already referred to. 6 Martens, 503-512; 6 Schoell, 118-120; 2 Ortolan, 53,
54. The doings for that year may be summed up as follows: On March 27, 1800, the French government,
unwilling to resort to reprisals, re-enacted the orders given by Louis XVI. in 1780, above mentioned,
prohibiting any seizure by the French ships of English fishermen, unless armed or proved to have made
signals to the enemy. On May 30, 1800, the English government, having received notice of that action of
the French government, revoked its order of January 24, 1798. But soon afterward the English
government complained that French fishing boats had been made into fireboats at Flushing, as well as
that the French government had impressed and had sent to Brest, to serve in its flotilla, French
fishermen and their boats, even those whom the English had released on condition of their not serving;
and on January 21, 1801, summarily revoked its last order, and again put in force its order of January 24,
1798. On February 16, 1801, Napoleon Bonaparte, then First Consul, directed the French commissioner
at London to return at once to France, first declaring to the English government that its conduct,
'contrary to all the usages of civilized nations, and to the common law which governs them, even in time
of war, gave to the existing war a character of rage and bitterness which destroyed even the relations
usual in a loyal war,' [175 U.S. 677, 693] AND 'TENDED ONLY TO EXASPERATE THE TWO nations, and to
put off the term of peace;' and that the French government, having always made it 'a maxim to alleviate
as much as possible the evils of war, could not think, on its part, of rendering wretched fishermen
victims of a prolongation of hostilities, and would abstain from all reprisals.'

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

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

The vessel there condemned is described in the report as 'a small Dutch fishing vessel taken April, 1798,
on her return from the Dogger bank to Holland;' and Lord Stowell, in delivering judgment, said: 'In
former wars it has not been usual to make captures of these small fishing vessels; but this rule was a
rule of comity only, and not of legal decision; it has prevailed from views of mutual accommodation
between neighboring countries, and from tenderness to a poor and industrious order of people. In the
present war there has, I presume, been sufficient reason for changing this mode of treatment; and as
they are brought before me for my judgment they must be referred to the general principles of this
court; they fall under the character and description of the last class of cases; that is, of ships constantly
and exclusively employed in the enemy's trade.' And he added: 'It is a further satisfaction to me, in
giving this judgment, to observe that the facts also bear strong marks of a false and fraudulent
transaction.' [175 U.S. 677, 694] Both the capture and the condemnation were within a year after the
order of the English government of January 24, 1798, instructing the commanders of its ships to seize
French and Dutch fishing vessels, and before any revocation of that order. Lord Stowell's judgment
shows that his decision was based upon the order of 1798, as well as upon strong evidence of fraud.
Nothing more was adjudged in the case.

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

The French prize tribunals, both before and after Lord Stowell's decision, took a wholly different view of
the general question. In 1780, as already mentioned, an order in council of Louis XVI. had declared illegal
the capture by a French cruiser of The John and Sarah, an English vessel coming from Holland, laden
with fresh fish. And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of fish, having
no more crew than was needed for her management and for serving the nets, on a trip of several days,
had been capt- [175 U.S. 677, 695] ured in April, 1801, by a French cruiser, 3 leagues off the coast of
Portugal, the Council of Prizes held that the capture was contrary to 'the principles of humanity and the
maxims of international law,' and decreed that the vessel, with the fish on board, or the net proceeds of
any that had been sold, should be restored to her master. La Nostra Segnora de la Piedad, 25 Merlin,
Jurisprudence, Prise Maritime, 3, arts. 1, 3; S. C. 1 Pistoye et Duverdy, Prises Maritimes, 331; 2 De Cussy,
Droit Maritime, 166.

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

Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote: 'It has
been usual[175 U.S. 677, 696] in maritime wars to exempt from capture fishing boats and their
cargoes, both from views of mutual accommodation between neighboring countries, and from
tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of
civilized nations, has fallen into disuse; and it is remarkable that both France and England mutually
reproach each other with that breach of good faith which has finally abolished it.' Wheaton, Captures,
chap. 2, 18.

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

During the wars of the French Empire, as both French and English writers agree, the coast fisheries were
left in peace. 2 Ortolan, 54; De Boeck, 193; Hall, 148. De Boeck quaintly and truly adds, 'and the
incidents of 1800 and of 1801 had no morrow,-n'eurent pas de lendemain.'
In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing boats from
capture. In proof of this, counsel have referred to records of the Navy Department, which this court is
clearly authorized to consult upon such a question. Jones v. United States, 137 U.S. 202 , 34 L. ed. 691,
11 Sup. Ct. Rep. 80; Underhill v. Hernandez, 168 U.S. 250, 253 , 42 S. L. ed. 456, 457, 18 Sup. Ct. Rep. 83.

By those records it appears that Commodore Conner, commanding the Home Squadron blockading the
east coast of Mexico, on May 14, 1846, wrote a letter from the ship Cumberland, off Brazos Santiago,
near the southern point of Texas, to Mr. Bancroft, the Secretary of the Navy, inclosing a copy of the
commodore's 'instructions to the commanders of the vessels of the Home Squadron, showing the
principles to be observed in the blockade of the Mexican ports,' one of which was that 'Mexican boats
engaged in fishing on any part of the coast will be allowed to pursue their labors unmolested;' and that
on June 10, 1846, those instructions were approved by the Navy Department, of which Mr. Bancroft was
still the head, and continued to be until he was appointed Minister to [175 U.S. 677, 697] England in
September following. Although Commodore Conner's instructions and the Department's approval
thereof do not appear in any contemporary publication of the government, they evidently became
generally known at the time, or soon after; for it is stated in several treatises on international law
(beginning with Ortolan's second edition, published in 1853) that the United States in the Mexican war
permitted the coast fishermen of the enemy to continue the free exercise of their industry. 2 Ortolan
(2d ed.) 49, note; (4th ed.) 55; 4 Calvo (5th ed.) 2372; De Boeck, 194; Hall (4th ed.) 148.

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

On the contrary, General Halleck, in the preface to his work on International Law, or Rules Regulating
the Intercourse of States in Peace and War, published in 1861, says that he began that work, during the
war between the United States and Mexico, 'while serving on the staff of the commander of the Pacific
Squadron' and 'often required to give opinions on questions of international law growing out of the
operations of the war.' Had the practice of the blockading squadron on the west coast of Mexico during
that war, in regard to fishing vessels, differed from that approved by the Navy Department on the east
coast, General Halleck could hardly have failed to mention it, when stating the prevailing doctrine upon
the subject as follows: [175 U.S. 677, 698] 'Fishing boats have also, as a general rule, been exempted
from the effects of hostilities. As early as 1521, while war was raging between Charles V. and Francis,
ambassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the
herring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should
be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war
of 1800, the British and French governments issued formal instructions exempting the fishing boats of
each other's subjects from seizure. This order was subsequently rescinded by the British government, on
the alleged ground that some French fishing boats were equipped as gunboats, and that some French
fishermen who had been prisoners in England had violated their parole not to serve, and had gone to
join the French fleet at Brest. Such excuses were evidently mere pretexts; and after some angry
discussions had taken place on the subject the British restriction was withdrawn, and the freedom of
fishing was again allowed on both sides. French writers consider this exemption as an established
principle of the modern law of war, and it has been so recognized in the French courts, which have
restored such vessels when captured by French cruisers.' Halleck (1st ed.) chap. 20, 23.

That edition was the only one sent out under the author's own auspices, except an abridgment, entitled
'Elements of International Law and the Law of War,' which he published in 1866, as he said in the
preface, to supply a suitable text-book for instruction upon the subject, 'not only in our colleges, but
also in our two great national schools,-the Military and Naval Academies.' In that abridgment the
statement as to fishing boats was condensed as follows: 'Fishing boats have also, as a general rule, been
exempted from the effects of hostilities. French writers consider this exemption as an established
principle of the modern law of war, and it has been so recognized in the French courts, which have
restored such vessels when captured by French cruisers.' Halleck's Elements, chap. 20, 21.

In the treaty of peace between the United States and Mex- [175 U.S. 677, 699] ico, in 1848, were
inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hostile
molestation or seizure in time of war of the persons, occupations, houses, or goods of fishermen. 9 Stat.
at L. 939, 940.

Wharton's Digest of the International Law of the United States, published by authority of Congress in
1886 and 1887, embodies General Halleck's fuller statement, above quoted, and contains nothing else
upon the subject. 3 Whart. Int. Law Dig. 345, p. 315; 2 Halleck (Eng. eds. 1873 and 1878) p. 151.

France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in 1870, by
general orders, forbade her cruisers to trouble the coast fisheries, or to seize any vessel or boat engaged
therein, unless naval or military operations should make it necessary. Calvo, 2372; Hall, 148; 2 Ortolan
(4th ed.) 449; 10 Revue de Droit Interantional (1878) 399. Revne de Droit International (1878) 399. her
alliance with France and Italy, England did not follow the same line of conduct; and that her cruisers in
the Sea of Azof destroyed the fisheries, nets, fishing implements, provisions, boats, and even the cabins
of inhabitants of the coast. Calvo, 2372. And a Russian writer on prize law remarks that those
depredations, 'having brought ruin on poor fishermen and inoffensive traders, could not but leave a
painful impression on the minds of the population, without impairing in the least the resources of the
Russian government.' Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of the English
naval officers put a different face on the matter, by stating that the destruction in question was part of a
military measure, conducted with the co-operation of the French ships, and pursuant to instructions of
the English admiral 'to clear the seaboard of all fish stores, all fisheries and mills, on a scale beyond the
wants of the neighboring population, and indeed of all things destined to contribute to the maintenance
of the enemy's army in the Crimea;' and that the property destroyed consisted of large fishing
establishments and storehouses of the Russian government, numbers of heavy launches, and enormous
quantities of nets and gear, salted fish, corn, [175 U.S. 677, 700] and other provisions intended for the
supply of the Russian army. United Service Journal of 1855, pt. 3, pp. 108-112.

Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed
in catching and bringing to market fresh fish, no instance has been found in which the exemption from
capture of private coast fishing vessels honestly pursuing their peaceful industry has been denied by
England or by any other nation. And the Empire of Japan ( the last state admitted into the rank of
civilized nations), by an ordinance promulgated at the beginning of its war with China in August, 1894,
established prize courts, and ordained that 'the following enemy's vessels are exempt from detention,'
including in the exemption 'boats engaged in coast fisheries,' as well as 'ships engaged exclusively on a
voyage of scientific discovery, philanthrophy, or religious mission.' Takahashi, International Law, 11, 178.
International law is part of our law, and must be ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of eivilized nations, and, as evidence
of these, to the works of jurists and commentators who by years of labor, research, and experience have
made themselves peculiarly well acquainted with the subjects of which they treat. Such works are
resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought
to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U.S. 113, 163 , 164 S.,
214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.

Wheaton places among the principal sourees international law 'text- writers of authority, showing what
is the approved usage of nations, or the general opinion respecting their mutual conduct, with the
definitions and modifications introduced by general consent.' As to these he forcibly observes: 'Without
wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for
the principles of reason, it may be affirmed that they are gen- [175 U.S. 677, 701] erally impartial in
their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of
their testimony increases every time that their authority is invoked by statesmen, and every year that
passes without the rules laid down in their works being impugned by the avowal of contrary principles.'
Wheaton, International Law ( 8th ed.), 15.

Chancellor Kent says: 'In the absence of higher and more authoritative sanctions, the ordinances of
foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded
as of great consideration on questions not settled by conventional law. In cases where the principal
jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized
nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the
uniform sense of the established writers on international law.' 1 Kent, Com. 18.

It will be convenient, in the first place, to refer to some leading French treatises on international law,
which deal with the question now before us, not as one of the law of France only, but as one
determined by the general consent of civilized nations.

'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855, 'are
good prize. Not all, however; for it results from the unanimous accord of the maritime powers that an
exception should be made in favor of coast fishermen. Such fishermen are respected by the enemy so
long as they devote themselves exclusively to fishing.' 1 Pistoye et Duverdy, tit. 6, chap. 1, p. 314.
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations,-Phases et Causes
Celebres du Droit Maritime des Nations,- published in 1856, affirms in the clearest language the
exemption from capture of fishing boats, saying, in lib. 1, tit. 3, 36, that 'in time of war the freedom of
fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle, they
are not subject either to capture or to confiscation;' and that in lib. 2, chap. 20, he will state 'several
facts and several decisions [175 U.S. 677, 702] which prove that the perfect freedom and neutrality of
fishing boats are not illusory.' 1 De Cussy, p. 291. And in the chapter so referred to, entitled De la Liberte
et de la Neutralite Parfaite de la Peche, besides references to the edicts and decisions in France during
the French Revolution, is this general statement: 'If one consulted only positive international law,'-le
droit des gens positif,-(by which is evidently meant international law expressed in treaties, decrees, or
other public acts, as distinguished from what may be implied from custom or usage) 'fishing boats would
be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among all
European nations frees them from it, and several official declarations have confirmed this privilege in
favor of 'a class of men whose hard and ill-rewarded labor, commonly performed by feeble and aged
hands, is so foreign to the operations of war.' 2 De Cussy, 164, 165.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, published in 1864,
after stating the general rule that the vessels and cargoes of subjects of the enemy are lawful prize, says:
'Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these boats, as
well as their crews, are free from capture and exempt from all hostilities. The coast-fishing industry is, in
truth, wholly pacific, and of much less importance in regard to the national wealth that it may produce
than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who carry it on,
among whom women are often seen, may be called the harvesters of the territorial seas, since they
confine themselves to gathering in the products thereof; they are for the most part poor families who
seek in this calling hardly more than the means of gaining their livelihood.' 2 Ortolan, 51. Again, after
observing that there are very few solemn public treaties which make mention of the immunity of fishing
boats in time of war, he says: 'From another point of view the custom which sanctions this immunity is
not so general that it can be considered as making an absolute international rule; but it has been so
often put in practice, and, besides, it accords so well with the rule in use in wars on [175 U.S. 677,
703] land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it will
doubtless continue to be followed in maritime wars to come.' 2 Ortolan, 55.

No international jurist of the present day has a wider or more deserved reputation than Calvo, who,
though writing in French, is a citizen of the Argentine Republic, employed in its diplomatic service
abroad. In the fifth edition of his great work on international law, published in 1896, he observes, in
2366, that the international authority of decisions in particular cases by the prize courts of France, of
England, and of the United States is lessened by the fact that the principles on which they are based are
largely derived from the internal legislation of each country; and yet the peculiar character of maritime
wars, with other considerations, gives to prize jurisprudence a force and importance reaching beyond
the limits of the country in which it has prevailed. He therefore proposes here to group together a
number of particular cases proper to serve as precedents for the solution of grave questions of maritime
law in regard to the capture of private property as prize of war. Immediately, in 2367, he goes on to say:
'Notwithstanding the hardships to which maritime wars subject private property, notwithstanding the
extent of the recognized rights of belligerents, there are generally exempted, from seizure and capture,
fishing vessels.' In the next section he adds: 'This exception is perfectly justiciable,-Cette exception est
parfaitement justiciable,'-that is to say, belonging to judicial jurisdiction or cognizance. Littre, Dist. voc.
Justiciable; Hans v. Louisiana, 134 U.S. 1, 15 , 33 S. L. ed. 842, 847, 10 Sup. Ct. Rep. 504. Calvo then
quotes Ortolan's description, above cited, of the nature of the coast-fishing industry; and proceeds to
refer, in detail, to some of the French precedents, to the acts of the French and English governments in
the times of Louis XVI. and of the French Revolution, to the position of the United States in the war with
Mexico, and of France in later wars, and to the action of British cruisers in the Crimean war. And he
concludes his discussion of the subject, in 2373, by affirming the exemption of the coast fishery, and
pointing out the distinction in this regard between the coast fishery and [175 U.S. 677, 704] what he
calls the great fishery, for cod, whales, or seals, as follows: 'The privilege of exemption from capture,
which is generally acquired by fishing vessels plying their industry near the coasts, is not extended in any
country to ships employed on the high sea in what is called the great fishery, such as that for the cod,
for the whale or the sperm whale, or for the seal or sea calf. These ships are, in effect, considered as
devoted to operations which are at once commercial and industrial,-Ces navires sont en effect
consideres comme adonnes a des operations a la fois commerciales et industrielles.' The distinction is
generally recognized. 2 Ortolan, 54; De Boeck, 196; Hall, 148. See also The Susa, 2 C. Rob. 251; The
Johan, Edw. Adm. 275, and appx. L.
The modern German books on international law, cited by the counsel for the appellants, treat the
custom by which the vessels and implements of coast fishermen are exempt from seizure and capture as
well established by the practice of nations. Heffter, 137; 2 Kalterborn, 237, p. 480; Bluntschli, 667;
Perels, 37, p. 217.

De Boeck, in his work on Enemy Private Property under Enemy's Flag,- De la Propriete Privee Ennemie
sous Pavillon Ennemi,-published in 1882, and the only continental treatise cited by the counsel for the
United States, says in 191: 'A usage very ancient, if not universal, withdraws from the right of capture
enemy vessels engaged in the coast fishery. The reason of this exception is evident; it would have been
too hard to snatch from poor fishermen the means of earning their bread. . . . The exemption includes
the boats, the fishing implements, and the cargo of fish.' Again, in 195: 'It is to be observed that very few
treatises sanction in due form this immunity of the coast fishery. . . . There is, then, only a custom. But
what is its character? Is it so fixed and general that it can be raised to the rank of a positive and formal
rule of international law?' After discussing the statements of other writers, he approves the opinion of
Ortolan (as expressed in the last sentence above quoted from his work), and says that, at bottom, it
differs by a shade only from that formulated by Calvo and by some of the German jurists, and that 'it is
more exact, [175 U.S. 677, 705] without ignoring the imperative character of the humane rule in
question,- elle est plus exacte, sans meconnaitre le caractere imperatif de la regle d'humanite dont il
s'agit.' And in 196 he defines the limits of the rule as follows: 'But the immunity of the coast fishery must
be limited by the reasons which justify it. The reasons of humanity and of harmlessness-les raisons
d'humanite et d'innocuite-which militate in its favor do not exist in the great fishery, such as the cod
fishery; ships engaged in that fishery devote themselves to truly commercial operations, which employ a
large number of seamen. And these same reasons cease to be applicable to fishing vessels employed for
a warlike purpose, to those which conceal arms, or which exchange signals of intelligence with ships of
war; but only those taken in the fact can be rigorously treated; to allow seizure by way of preventive
would open the door to every abuse, and would be equivalent to a suppression of the immunity.'

Two recent English text-writers cited at the bar (influenced by what Lord Stowell said a cantury since)
hesitate to recognize that the exemption of coast fishing vessels from capture has now become a settled
rule of international law. Yet they both admit that there is little real difference in the views, or in the
practice, of England and of other maritime nations; and that no civilized nation at the present day would
molest coast fishing vessels so long as they were peaceably pursuing their calling and there was no
danger that they or their crews might be of military use to the enemy. Hall, in 148 of the fourth edition
of his Treatise on International Law, after briefly sketching the history of the positions occupied by
France and England at different periods, and by the United States in the Mexican war, goes on to say: 'In
the foregoing facts there is nothing to show that much real difference has existed in the practice of the
maritime countries. England does not seem to have been unwilling to spare fishing vessels so long as
they are harmless, and it does not appear that any state has accorded them immunity under
circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting
them as a general rule, and would cap- [175 U.S. 677, 706] ture them so soon as any danger arose that
they or their crews might be of military use to the enemy; and it is also likely that it is impossible to
grant them a more distinct exemption.' So, T. J. Lawrence, in 206 of his Principles of International Law,
says: 'The difference between the English and the French view is more apparent than real; for no
civilized belligerent would now capture the boats of fishermen plying their avocation peaceably in the
territorial waters of their own state; and no jurist would seriously argue that their immunity must be
respected if they were used for warlike purposes, as were the smacks belonging to the northern ports of
France when Great Britain gave the order to capture them in 1800.'
But there are writers of various maritime countries, not yet cited, too important to be passed by without
notice.

Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval and in the colonial
service of his country, in his Manual of International Law for the Use of Navies, Colonies, and
Consulates, published in 1882, writes: 'An exception to the usage of capturing enemy's private vessels at
sea is the coast fishery. . . . This principle of immunity from capture of fishing boats is generally adopted
by all maritime powers, and in actual warfare they are universally spared so long as they remain
harmless.' 2 Ferguson, 212.

Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for Naval Officers, published at Vienna
in 1872 under the auspices of Admiral Tegetthoff, says: 'Regarding the capture of enemy property, an
exception must be mentioned, which is a universal custom. Fishing vessels which belong to the adjacent
coast, and whose business yields only a necessary livelihood, are, from considerations of humanity,
universally excluded from capture.' 1 Attlmayr, 61.

Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in his Elementary Treatise on
Maritime International Law, adopted by royal order as a text-book in the naval schools of Spain, and
published at Madrid in 1873, concludes his chapter 'Of the lawfulness of prizes' with these words: 'It
remains to be added that the custom of all civilized peoples excludes from capture and from all kind of
hostility the [175 U.S. 677, 707] fishing vessels of the enemy's coasts, considering this industry as
absolutely inoffensive, and deserving, from its hardships and usefulness, of this favorable exception. It
has been thus expressed in very many international conventions, so that it can be deemed an
incontestable principle of law, at least among enlightened nations.' Negrin, tit. 3, chap. 1, 310.

Carlos Testa, captain in the Portugese Navy and professor in the naval school at Lisbon, in his work on
Public International Law, published in French at Paris in 1886, when discussing the general right of
capturing enemy ships, says: 'Nevertheless, in this, customary law establishes an exception of immunity
in favor of coast fishing vessels. Fishing is so peaceful an industry, and is generally carried on by so poor
and so hardworking a class of men, that it is likened, in the territorial waters of the enemy's country, to
the class of husbandmen who gather the fruits of the earth for their livelihood. The examples and
practice generally followed establish this humane and beneficent exception as an international rule, and
this rule may be considered as adopted by customary law and by all civilized nations.' Testa, pt. 3, chap.
2, in 18 Bibliotheque International et Diplomatique, pp. 152, 153.

No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore, in the enlarged
edition of his exhaustive work on Public International Law, published at Paris in 1885-6, saying: 'The
vessels of fishermen have been generally declared exempt from confiscation, because of the eminently
peaceful object of their humble industry, and of the principles of equity and humanity. The exemption
includes the vessel, the implements of fishing, and the cargo resulting from the fishery. This usage,
eminently humane, goes back to very ancient times; and although the immunity of the fishery along the
coasts may not have been sanctioned by treaties, yet it is considered to-day as so defintely established
that the inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule of
international law, and is generally respected by the nations. Consequently we shall lay down the
following rule: (a) Vessels belonging to citizens of the enemy state, and devoted to fish- [175 U.S. 677,
708] ing along the coasts, cannot be subject to capture; (b) Such vessels, however, will lose all right of
exemption, when employed for a warlike purpose; (c) there may, nevertheless, be subjected to capture
vessels devoted to the great fishery in the ocean, such as those employed in the whale fishery, or in that
for seals or sea calves.' 3 Fiore, 1421
This review of the precedents and authorities on the subject appears to us abundantly to demonstrate
that at the present day, by the general consent of the civilized nations of the world, and independently
of any express treaty or other public act, it is an established rule of international law, founded on
considerations of humanity to a poor and industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt
from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike
purpose, or in such a way as to give aid or information to the enemy; nor when military or naval
operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or
seals or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and
made a regular article of commerce.

This rule of international law is one which prize courts administering the law of nations are bound to
take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own
government in relation to the matter.

Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from
capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Calvo, 2368. Nor
are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous
one, should be recognized and declared by a prize court. [175 U.S. 677, 709] By the practice of all
civilized nations, vessels employed only for the purposes of discovery or science are considered as
exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the
government sending out such an expedition to give notice to other powers; but it is not essential. 1
Kent, Com. 91, note; Halleck, chap. 20, 22; Calvo, 2376; Hall, 138.

In 1813, while the United States were at war with England, an American vessel on her voyage from Italy
to the United States was captured by an English ship, and brought into Halifax, in Nova Scotia, and, with
her cargo, condemned as lawful prize by the court of vice admiralty there. But a petition for the
restitution of a case of paintings and engravings which had been presented to and were owned by the
Academy of Arts in Philadelphia was granted by Dr. Croke, the judge of that court, who said: 'The same
law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation,
has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst
all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and
protection. They are considered, not as the peculium of this or of that nation, but as the property of
mankind at large, and as belonging to the common interests of the whole species.' And he added that
there had been 'innumerable cases of the mutual exercise of this courtesy between nations in former
wars.' The Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.

In 1861, during the war of the Rebellion, a similar decision was made in the district court of the United
States for the eastern district of Pennsylvania, in regard to two cases of books belonging and consigned
to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the
custody of the marshal and restored to the agent of the university, said: 'Though this claimant, as the
resident of a hostile district, would not be entitled to restitution of the subject of a commercial
adventure in books, the purpose of the shipment in question gives to it a different [175 U.S. 677,
710] character. The United States, in prosecuting hostilities for the restoration of their constitutional
authority, are compelled incidentally to confiscate property captured at sea, of which the proceeds
would otherwise increase the wealth of that district. But the United States are not at war with literature
in that part of their territory.' He then referred to the decision in Nova Scotia, and to the French
decisions upon cases of fishing vessels, as precedents for the decree which he was about to pronounce;
and he added that, without any such precedents, he should have had no difficulty in liberating these
books. The Amelia,1 4 Phila. 417.

In Brown v. United States, 8 Cranch, 110, 3 L. ed. 504, there are expressions of Chief Justice Marshall
which, taken by themselves, might seem inconsistent with the position above maintained, of the duty of
a prize court to take judicial notice of a rule of international law, established by the general usage of
civilized nations, as to the kind of property subject to capture. But the actual decision in that case, and
the leading reasons on which it was based, appear to us rather to confirm our position. The principal
question there was whether personal property of a British subject, found on land in the United States at
the beginning of the last war with Great Britain, could lawfully be condemned as enemy's property, on a
libel filed by the attorney of the United States, without a positive act of Congress. The conclusion of the
court was 'that the power of confiscating enemy property is in the legislature, and that the legislature
has not yet declared its will to confiscate property which was within our territory at the declaration of
war.' 8 Cranch, 129, 3 L. ed. 510, 511. In showing that the declaration of war did not, of itself, vest the
Executive with authority to order such property to be confiscated, the Chief Justice relied on the modern
usages of nations, saying: 'The universal practice of forbearing to seize and confiscate debts and credits,
the principle universally received that the right to them revives on the restoration of peace, would seem
to prove that war is not an absolute confiscation of this property, but simply confers the right of
confiscation,' and again: 'The modern rule, then, would seem to be that tangible property[175 U.S. 677,
711] belonging to an enemy, and found in the country at the commencement of war, ought not to be
immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the
right to withdraw such property.' 8 Cranch, 123, 125, 3 L. ed. 509. The decision that enemy property on
land, which by the modern usage of nations is not subject to capture as prize of war, cannot be
condemned by a prize court, even by direction of the Executive, without express authority from
Congress, appears to us to repel any inference that coast fishing vessels, which are exempt by the
general consent of civilized nations from capture, and which no act of Congress or order of the President
has expressly authorized to be taken and confiscated, must be condemned by a prize court, for want of
a distinct exemption in a treaty or other public act of the government.

To this subject in more than one aspect are singularly applicable the words uttered by Mr. Justice
Strong, speaking for this court: 'Undoubtedly no single nation can change the law of the sea. The law is
of universal obligation and no statute of one or two nations can create obligations for the world. Like all
the laws of nations, it rests upon the common consent of civilized communities. It is of force, not
because it was prescribed by any superior power, but because it has been generally accepted as a rule of
conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinances
of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those
nations who may be said to constitute the commercial world. Many of the usages which prevail, and
which have the force of law, doubtless originated in the positive prescriptions of some single state,
which were at first of limited effect, but which, when generally accepted, became of universal
obligation.' 'This is not giving to the statutes of any nation extraterritorial effect. It is not treating them
as general maritime laws; but it is recognition of the historical fact that by common consent of mankind
these rules have been acquiesced in as of general obligation. Of that fact, we think, we may take judicial
notice. Foreign municipal laws [175 U.S. 677, 712] must indeed be proved as facts, but it is not so with
the law of nations.' The Scotia, 14 Wall. 170, 187, 188, sub nom. Sears v. The Scotia, 20 L. ed. 822, 825,
826.

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

On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson, commanding the
North Atlantic Squadron, to 'immediately institute a blockade of the north coast of Cuba, extending from
Cardenas on the east to Bahia Honda on the west.' Bureau of Navigation Report of 1898, appx. 175. The
blockade was immediately instituted accordingly. On April 22 the President issued a proclamation
declaring that the United States had instituted and would maintain that blockade, 'in pursuance of the
laws of the United States, and the law of nations applicable to such cases.' 30 Stat. at L. 1769. And by the
act of Congress of April 25, 1898, chap. 189, it was declared that the war between the United States and
Spain existed on that day, and had existed since and including April 21, 30 Stat. at L. 364.

On April 26, 1898, the President issued another proclamation which, after reciting the existence of the
war as declared by Congress, contained this further recital: 'It being desirable that such war should be
conducted upon principles in harmony with the present views of nations and sanctioned by their recent
practice.' This recital was followed by specific declarations of certain rules for the conduct of the war by
sea, making no mention of fishing vessels. 30 Stat. at L. 1770. But the proclamation clearly manifests the
general policy of the government to conduct the war in accordance with the principles of international
law sanctioned by the recent practice of nations.

On April 28, 1898 (after the capture of the two fishing vessels now in question), Admiral Sampson
telegraphed to the Secretary of the Navy as follows: 'I find that a large number of fishing schooners are
attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. They are
generally manned by excellent seamen, belonging [175 U.S. 677, 713] to the maritime inscription of
Spain, who have already served in the Spanish navy, and who are liable to further service. As these
trained men are naval reserves, most valuable to the Spaniards as artillerymen, either afloat or ashore, I
recommend that they should be detained prisoners of war, and that I should be authorized to deliver
them to the commanding officer of the army at Key West.' To that communication the Secretary of the
Navy, on April 30, 1898, guardedly answered: 'Spanish fishing vessels attempting to violate blockade are
subject, with crew, to capture, and any such vessel or crew considered likely to aid enemy may be
detained.' Bureau of Navigation Report of 1898, appx. 178. The admiral's despatch assumed that he was
not authorized, without express order, to arrest coast fishermen peaceably pursuing their calling; and
the necessary implication and evident intent of the response of the Navy Department were that Spanish
coast fishing vessels and their crews should not be interfered with, so long as they neither attempted to
violate the blockade, nor were considered likely to aid the enemy.

The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden, sailing under the
Spanish flag, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba. Her
crew consisted of but three men, including the master, and, according to a common usage in coast
fisheries, had no interest in the vessel, but were entitled to two thirds of her catch, the other third
belonging to her Spanish owner, who, as well as the crew, resided in Havana. On her last voyage, she
sailed from Havana along the coast of Cuba, about 200 miles, and fished for twenty-five days off the
cape at the west end of the island, within the territorial waters of Spain, and was going back to Havana,
with her cargo of live fish, when she was captured by one of the blockading squadron, on April 25, 1898.
She had no arms or ammunition on board; she had no knowledge of the blockade, or even of the war,
until she was stopped by a blockading vessel; she made no attempt to run the blockade, and no
resistance at the time of the capture; nor was there any ev- [175 U.S. 677, 714] idence whatever of
likelihood that she or her crew would aid the enemy.

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

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

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

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

Ordered, that the decree of the District Court be reversed, and the proceeds of the sale of the vessel,
together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and
costs. [175 U.S. 677, 715]

Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice McKenna, dissenting:

The district court held these vessels and their cargoes liable because not 'satisfied that as a matter of
law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from
seizure.'

This court holds otherwise, not because such exemption is to be found in any treaty, legislation,
proclamation, or instruction granting it, but on the ground that the vessels were exempt by reason of an
established rule of international law applicable to them, which it is the duty of the court to enforce.

I am unable to conclude that there is any such established international rule, or that this court can
properly revise action which must be treated as having been taken in the ordinary exercise of discretion
in the conduct of war.

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

The question in that case related to the confiscation of the property of the enemy on land within our
own territory, and it was held that property so situated could not be confiscated without an act of
Congress. The Chief Justice continued: 'Commercial nations in the situation of the United States have
always a considerable quantity of property in the possession of their neighbors. When war breaks out,
the question, What shall be done with enemy property in our country?-is a [175 U.S. 677, 716] question
rather of policy than of law. The rule which we apply to the property of our enemy will be applied by
him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of
a department which can modify it at will; not for the consideration of a department which can pursue
only the law as it is written. It is proper for the consideration of the legislature, not of the executive or
judiciary.'

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

The preamble to the proclamation stated, it is true, that it was desirable that the war 'should be
conducted upon principles in harmony with the present views of nations and sanctioned by their recent
pratice,' but the reference was to the intention of the government 'not to resort to privateering, but to
adhere to the rules of the Declaration of Paris;' and the proclamation spoke for itself. The language of
the preamble did not carry the exemption in terms, and the real question is whether it must be allowed
because not affirmatively withheld, or, in other words, because such captures were not in terms
directed.

These records show that the Spanish sloop Paquete Habana 'was captured as a prize of war by the U. S.
S. Castine' on April 25, and 'was delivered' by the Castine's commander 'to Rear Admiral Wm. T.
Sampson ( commanding the North Atlantic Squardron),' and therequpon 'turned over' to a prize master
with instructions to proceed to Key West.

And that the Spanish schooner Lola 'was captured as a prize of war by the U. S. S. Dolphin,' April 27, and
'was delivered' by the Dolphin's commander 'to Rear Admiral Wm. T. Sampson (commanding the North
Atlantic Squardron),' and thereupon 'turned over' to a prize master with instructions to proceed to Key
West. [175 U.S. 677, 717] That the vessels were accordingly taken to Key West and there libeled, and
that the decrees of condemnation were entered against them May 30.

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

The correspondence of April 28, 30, between the Admiral and the Secretary of the Navy, quoted from in
the principal opinion, was entirely consistent with the validity of the captures.
The question put by the Admiral related to the detention as prisoners of war of the persons manning the
fishing schooners 'attempting to get into Havana.' Noncombatants are not so detained except for special
reasons. Sailors on board enemy's trading vessels are made prisoners because of their fitness for
immediate use on ships of war. Therefore the Admiral pointed out the value of these fishing seamen to
the enemy, and advised their detention. They Secretary replied that if the vessels referred to were
'attempting to violate blockade' they were subject 'with crew' to capture, and also that they might be
detained if 'considered likely to aid enemy.' The point was whether these crews should be made
prisoners of war. Of course they would be liable to be if involved in the guilt of blockade running, and
the Secretary agreed that they might be on the other ground in the Admiral's discretion.

All this was in accordance with the rules and usages of international law, with which, whether in peace
or war, the naval service has always been necessarily familiar.

I come then to examine the proposition 'that at the present day, by the general consent of the civilized
nations of the world, and independently of any express treaty or other public act, it is an established
rule of international law, founded on considerations of humanity to a poor and industrious order of
men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their
implements and supplies [175 U.S. 677, 718] cargoes and crews, undarmed, and honestly pursuing
their peaceful calling of catching and bringing in of fresh fish, are exempt from capture as prize of war.'

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

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

It will be perceived that the exceptions reduce the supposed rule to very narrow limits, requiring a
careful examination of the facts in order to ascertain its applicability; and the decision appears to me to
go altogether too far in respect of dealing with captures directed or ratified by the officer in command.

But were these two vessels within the alleged exemption? They were of 25 and 35 tons burden
respectively. They carried large tanks, in which the fish taken were kept alive. They were owned by
citizens of Havana, and tha owners and the masters and crew were to be compensated by shares of the
catch. One of them had been 200 miles from Havana, off Cape San Antonio, for twenty-five days, and
the other for eight days off the coast of Yucatan. They belonged, in short, to the class of fishing or
coasting vessels of from 5 to 20 tons burden, and from 20 tons upwards, which, when licensed or
enrolled as prescribed by the Revised Statutes. are declared to be vessels of the United States, and the
shares of whose men, when the vessels are employed in fishing, are regulated by statute. They were
engaged in what were substantially commercial ventures, and the mere fact that the fish were kept alive
by contrivances [175 U.S. 677, 719] for that purpose-a practice of considerable antiquity-did not render
them any the less an article of trade than if they had been brought in cured.

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

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

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

The modern view is thus expressed by Mr. Hall: 'England does not seem to have been unwilling to spare
fishing vessels so long as they are harmless, and it does not appear that any state has accorded them
immumty under circumstances of inconvenience to itself. It is likely that all nations would now refrain
from molesting them as a general rule, and would capture them so soon as any danger arose that they
or their crews might be of military use to the enemy; and it is also likely that it is impossible to grant
them a more distinct exemption.'

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

It is difficult to conceive of a law of the sea of universal obligation to which Great Britain has not
acceded. And I [175 U.S. 677, 720] am not aware of adequate foundation for imputing to this country
the adoption of any other than the English rule.

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

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

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

In is needless to review the speculations and repetitions of the writers on international law. Ortolan, De
Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to
create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations
may be persuasive, but not authoritative.
In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is
bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether
such immunity as may have been usually extended. [175 U.S. 677, 721] Exemptions may be designated
in advance, or granted according to circumstances, but carrying on was involves the inflication of the
hardships of war, at least to the extent that the seizure or destruction of enemy's property on sea need
not be specifically authorized in order to be accomplished.

Being of opinion that these vessels were not exempt as matter of law, I am constrained to dissent from
the opinion and judgment of the court; and my brothers Harlan and McKenna concur in this dissent.

(January 29, 1900.)

The court, in each case, on motion of the Solicitor General in behalf of the United States, and after
argument of counsel thereon, and to secure the carrying out of the opinion and decree of this court
according to their true meaning and intent, ordered that the decree be so modified as to direct that the
damages to be allowed shall be compensatory only, and not punitive.