‘THE PAQUETE HABANA. ‘THE Lota. ode the acto Congres of March U0, «1, the nut Be oie. ton af pa fom a assent a deren Ta ee case, ite {stent fe at be mcrae to aie ‘Stee by tin courts of Jeo appropiate foreton, an ote at ei i pag ae ay pra fo a ie of ie a ot oc at a {ote wor of fn ad comment, not fore spcuton {hee ators concern nthe Dito et or tesewoety ihe penn ayy te goer coset ofthe liad antons of te ‘revs neputty of ny expan tray o cher pte a ‘owed ae of Interonoot nw tat un folag ve wih ‘Sat aplmentandeappa argon anderen, tarmed tad hoy blog she pace aig of catching ted Wiggin fr r'cumpt trom copa se pce of war And ar eo wih ‘cura ialatrng the aw of bts ae bound to eke ea sees dec ec sy eo gage ening onthe oat of Gob tly der te San a, {neck owned by Sparih sof ruig a ran er ere, ‘are ousing nl toto ty of berth he ert ‘elgg ers an hur cgo connate rh A a by Ir ro fom the se, pot om bard a hey mere ang tod ep toidate Buch ene Herma oa oa foing forage, sa eed ‘Song the eat Cate oat to Suniel ee f te meat std of {beds the slop thre ted for ent Aveda late era ‘rece of Sp a the ahuotexaded or og Dadeon OCTOBER ‘TERY, 1900, sce Yon haa fl ah ag "Tus eases are stated in the opinion of the cour, Mr. J. Parker Rivlin for appllant, Mr, Aswidant Atorney General Hoyt for Une Waid States. Mo. doueph K. MoCummon and Mr. Somes H. Hayden Bled ‘bret for the captors. Mr. George A. King and Mr. Wal. fam B. King Hla a bref *for certain captors” Ma Josrice Gua daiverad the opinion of the court ‘These are wo appeal from dre of th Distet Coat of the Vaiod Stier forthe Sothera Discs of Fort, com Alemting two fihing veal argos ta pie of wa Tach veel wan sfahng sch rong hand ou of Uavang, and roglar}y engagl 0 Gahing. onthe cast of Cat lel unr tho Syn fg was ove by a Spach tubjs of Cuan birt tng te iy of Havana asco tiamet by ast of Shay lo veting i Hara aad irimste at ce ba no ite nth vest, bt wero Cott to shure, amounting nal oto thin of her ath, the ctr tin baomging t ber ae.” He argo oneal of fe sh aught by hrc from te et, pa on Board te they wore enngt and keptand sold alia” Unt) topped ty th blocking squadron, she tal 0 knowledge of the thtence of the wat or of any Mack She bal eo rm or auamusilion on toa, abd made 20 aif to fun the Ulead aller she Knot of fe enstanc, nor any rane athe tne of the exper The Paquet as sloop, 48 fst long on the Keel, ‘THE PAQUETE HABANA, ero pisos of te Cot. nd of 95 tons barden, and ad screw of threo Cubans, inca ing the master, who tnd a Babing Tigenso from the Spanish Government, and no other commission or license. She left lavana Mayol 85, 1998; tiled along tho const of Cuba to ‘Capo Sen Antonio atthe western end of the island, and there fishod for twenty-Bre da’ Iying botween the reefs off ‘ape, within th territorial waters of Spain and then started Ick for Havana, with a cargo of about 40 quital of Ii fish. On Apri 25, 1508, about two miles off Mariel, and leven miles from Havans, sho was eaptared by the United ‘States gunboat Castine "The Lola was a seooner, 51 fect long on the Keel, and of 25 tons burden, and had a ors of six Cubans including the taser, and no commission or licens, She let Havana Apeit Tt, 1998, and_ prooesied to Campeachy Sound off Yucatan, fshod thero eight days, and startod back for Havana with a fargo of about 10,000 pounds of live fab. On April 38,1898, near Havana, she wae etoppe by tho United State stesmship Cincinnati, and wae warve not to go into Havana, but was toli that she would be allowed to land at Babia Honda. She ‘then chang her ours and pat for Bain Honda, but on the next morning, when neat that port, was eaptarad by the United ‘Stateestesinhip Dolphin. ‘Both the fisbing vessels were brought by their eaptors into ‘Key West A libel forthe condemnation of each vessel and her cargo as prize of war wat there Blal on April 27, 1898; ‘a damn was interposed by er mastor, on bebalf of himselt tnd the other members of the ero, atl of hee owner; eri lence was taken, shovring the facts abore stated; and on May 36, 1805, a final_deoree of condomnation and sale was cntored, “the court not being satisfied that as a matter of Tavr, without say ondinanos, teeaty oF proclamation, fishing evel of this clase aro exempt from seizure” “Bach vessel was thereupon sold by action; the Paquete atmos for the sum of $490; and the Lola for the sum of $800. There was n0 othor evidence in the record of the valve of either vessel oF of her cargo Tebas been saggested, in bebalf of tho United States, that630 OCTOBER TERM, 1800 pin of he Cont. this oourt has no jurniton to hear and determine these tnyaty bors tho matter dapat in ether sve doesnot {xttod ihe sum or tale ot $200, andthe Dc Sag bat Sot verted thatthe ajaioation fvaves a qtion of ge. cra mportanen “The taggestion is found on ection 699 of the Revise States which provides that “an apped dalle allowed to the Suprems Coat from ll Rol destes of any Distt Court tn rns camee wor the atari apts, excl of cox, fxn th sm or vloe two thoorand delay; and sal Teallowoty without reference to tho ate in pute, on the ceriffnte ofthe Dit Jue thet the ajoicatoniaolee. Squetion of general importer” {Tae Jy Ato of tho United States for a cnty ator the organization ofthe Government unr te Cosiation, dd impowe pecuniary ite spon spelt retin, Tr actons at lw anda neq, the pecuniary Hit of the appelite jrabiton ofthis enart from the Great Couea tthe United Staten wes for long tine fel at 2000, Aes ft Soptomber 24 178.9, § 85 1 Sik £4; Marc 9,136 shanty Sint ail; Gondor. Opn, 3 Pot 83; Ror, Stat $2001, oon In 1840 tea tied to 85000 Ask of Foro see t0,18t5,e°7%,8 85 38 Sta 10, And in 1660 this was ‘motidal by proving iat, whore the fadgment or dere dd ot excel Ue sm of 000 ths ctr shoul are apptiata Jarstction upon the question ofthe Joatin of the Crit Esra! una ston oy. Act of Fobroney 25,188 000, 813 38 Stat th; Parkers Ormby, ALU 8 8, Bets oof mina and msn pit nc ing: pre sey the Jalcnry et of 180, In 8 Oy {26 origina ortistion in he Distt Coan, witbo regan to the'sum or tle tn conrorsy 3 and inf, porta Sanam tem to the Cleats Gore whee tbe mat term iapate exe the sin oF value of $200. 1 Slt 304 The. Bays ® Dalby 10). The Amible Nancy, Swan 640; Shation vsavvy,§ Pot Th By he ah Sr March 31304, apea to the Cit Court were fermted fom ail fal decree of 9 District Court were THE PAQUETE HABANA. os pion of he Cont the matter in dispute exceale! the sum or value of 8503 and from the Cireuit Courts to this court in all cases “of ‘admiralty and mavtime jaridition, an of prize or mo prize,” in which the maticr in dispate excoeded the sum or value fof $2000. 2 Stat. 244; Jenks v. Ze 3 Mason, 02; Stat fon v. Jarvis, boro cited; The Admiral, Wall. 69,612 ‘The acts of March 3, 1862, e. 86, § 7, and Jno 80, 1804, 174, § 18, provided that appeals feom the District Coarts fn prize causes should lio directly to this cour, here the mount in controversy excear 2000, oF on the certifeate fof the Dintret Jadge that the njoication involves «question of general importance” 19 Stat, 700; 13 Stat $10. The, provision of the act of 1805, omitting the wonls, “and. of rao oF no prin,” wan reinacled in seotion G82 of the Re sud Statates and the provision of the act of 18%, concern Ing prio noses, was substantally enacted in ection 695 of the Revisal Statutes, slready quote, ‘Bu allthis as been chang hy the ast of March 2, 1891, HT, establishing the Circuit Courts of Appeals and ee ting & new and complete scheme of appellate jurilicton ‘eponing upon the nature of the ilferen cases, rather than upon the pecuniary amount involve. 26 Stat $2 Dy that ac, as this cout has declared, the entire appellate juvistiction from the Circuitand District Courts of the United ‘tates war distributed, “aoonding to the scheme ofthe act betieen this court and the Circuit Courts of Appeals tlenshy “by designating the class of cases” uf shih ‘exch ofthese eourts was to have final jorsicton. eis ‘of, ALU. 8. 6B1, O08; Amerionn Constretion Co. Jack sonvitle Railway, 148 V. 8. 81%, 388; Canty v. Hotton eb Texas Raiteoy, 150 U. 8.170, 1 ‘The intention of Congress, by the act of 1801, to make the nature of the eas, and not the amount in dispe, the test of the appeliate jurstietion of this court fom the District and Circuit Courts clearly appears upon examination of the lea Ing provisions of the act Section 4 prosdes that no appl, whether by writ of ere or otherwise, shall hereafter nv taen from a District Courtos OcTonER TRRDK, 190. toa Cirout Court; but that all appeals by weit of error or “otherwise, from the District Cours, shall only be subject to feview "inthis earl, or i the Cieat Court of Appeals as is hereinafter provi” and “the rovier, by appeal by writ ‘of error, or tervis,” from the Circuit Court, “shall bo had only” inthis cow, or in the Circuit Court of Appeal ““aesording to Ue provisions of this act reglating the sume: Section & provides that “appeals oF verits of error may be taken from tie District Courts, or from tbe existing Circuit ‘Courts, direct to the Supreme Cour, inthe following cases” "First, In any cae in which the jorialieton of tho court. in suey in sich cases the question of javadietion alone shall, ty eortfed to the Supneme Court from the cout below for Aieision.”” This clans inclades “any eas.” without regant to amount, in which the jriietion ofthe court below isin fase and difles in thin respect from tho act of 1889, above site. ‘Second. “From the final sentenoes and. dosrees in prise causes.” ‘This clans inelides the whole class of “the foal fentemces and. decrees in prize use” and omits all prov ons of former acts gang amount in controversy, ot eet tifcate of « District Suge. ‘Third, In cases of conviction of a eaptal or otherwise in famous criti.” This las looks to the natar ofthe erime, fant not to the extent of the punishinent actually pos. ‘Korie which might hare beet punished by imprisonment in 4 penitentiary isan infamnoas erie, even ifthe sentence act- tally pronounoal is of a small fine only. Ke part Tiion, M4 U.S. 417, 420. Consequently, such sentence for steh rime ‘vas sthject to the appellate jaralietion of this court, Tider this clans, anil cit jriition, so far as regards frimes not expital, was traneferred to the Circuit Cart of ‘Appenis by the act of Fanoary 20, 1897, 68, 29 Stat. 492. Fourth. “In any etse that involves the eonstraction or appliontion of the Constittion of the Unital States” Tifth, "In any cave in which the constitationalty of any law of the United States, or the validity or comstruction of any trenty le ander is aothorty, ie drawn in question.” ‘THE PAQUETE HABANA, oa Opin f he Cane Sixth, “Tn any case in which the constitation of lw of a State is claimed to bein contravention of the Constitation of the United Staten” "Ench of theao lat three clauses again, inlades “any ease” of tho class mentioned. They all rlate to wha ae commonly callod Felral questions, and cannot reasonably bo constrecd to luvo intended that the appellate juvisdition of this court ‘rer such questions should be restricted by any pecsmiary limit—especally in their connection with’ the sheoteing sentenco of the sume section: * Nothing in thi act sball, alec the juristition ofthe Supreme Court in ses appealed trom the highest court of Stat, nor the construction of the statute providing for rovow of such easex” Writs of error from this court to review the jodgments of the highest court of Stato upon such questions hare never been subject to ‘any pecuniay lint. Act of September St, 1780, « 0,8 25 TStat. 85; Buel v. Von New, 8 Wheat. 319; act of eb vuary 5, 1807, 25, § 2; 14 Stat, 3863 Rew. Stat. § 700. 'y section 6 of the act of 1801, this court ie relieved of much of the appellate jarisiction that ft had before; the sppellste jadition frm the Distict and Cireit Coorts ‘in all eases other than those prorided for in the preceding ‘section of this at, unleeotherwie provide by I,” vested in the Cirealt Court of Appeals; and ite decisions in admiralty ‘nae a8 well nin ens arising under the criminal las, and in evtan other classes of eases, ane male final, except that that court may eortify to this court questions of law, ad tat this court may order up the whole caso by writ of eetiorat ele settled that the won “less otherwio provided by law” inthis tion, refer only to proisions of the eame act, forof contemporaneous or subequent acts, and donot nelle provisions of earlier satis, Le Ow Bee. Dnited Sats, MA U.8.41, 81; Huthord v. Sly, 180 U. 8.86, Americas Construction Cov Jackwonilte ilony, 148 U. 8.993, 383 ‘The act of 1801 nowhere imposes = pecuniary Limit upon tho appeliatejuristiction, either of this cout or of the Cir ait Court of Appeals, from a Distiet or Civewt Court of the United States, ‘The only pecaninry limit imposed is one ofose OCrOMER TERRE, 1590 Option of he Cone £1000 upon the appeal to this court of aenso which as been ‘nes decided on appeal in Uhe Creat Court of Appeals, and fn waiet the judgmont of that court is not made final by ametion of the ack Seotion I of the act of 1801, after specifically ropsling section 01 of the Ravised Statates and section 3 of the act of Febeaary 16, 187, further proves that “all ats and parts fof acts relating to appeals oF wets of error, inconsistent with the provisions for review by appeals o writs of error in the preci ng sections fire and sx of this et, re roby repealed.” estat £90, 20. The object of the specific repeal, as this court bis declared, was to get rd of the pocaniary limit in the aote refered to. MeLich ¥. Baf, 1 U. 8, 061, 67. ‘Ang, although neither section 692 nor section 695 of the ‘Revised Statotr is repealed by name, yet, taking into con tideration tho general repealing claaee, together with the ‘afirmative provisions of the act, the ease comes within the reason of the decision in an anslogour ease, in which this Court said: “"The provisions relating to the subject-matter ‘lee consideration are, however, 3 compeehonsie, as well fe eo variant from thos of former act that we think the intention to eubsttate the one for the other is necessarily to Uo infor! and must prevail” Fisk v, Tenor, 42 U. 8. 459, 408 "Th deision of this court in the secant case of United States +, Bier, 468 U.S. 18% affols an important, if not controling prvcwlent. From the beginning of this century until the pas fageof the act of 180, both in civil and in erimnal cass, ques- tions of law, pon which tivo judges ofthe Circuit Court were Aivided in opinion, might be oortifled by them to this eourt for decision, Acts of: April 20, 1802,c 31, § 85 2 Sat. 15 Tune 1, 1873, e, 255,815 17 Sta. 1965 Rev. Stat. 8080-052, 128, 6977; Fneurance Ce. v- Dunham, 1 Wall. 1, 915 United ‘Sats v. Sango, 144. 8, S10, 890." But in Unit State ‘Rider, it was adjulgel by this court thatthe act of 1891 had ‘uporsedel and repeated the earier acts authorizing questions of law to be certified from the Civait Court to this courts fand the grounds of that ajlication rofliently appear by THE PAQUETE HABANA. eas pinion of te Cour, th statement of the effect of the act of 1891 ia two passages fof the opinion: “Appellate juraliotion wag given in all Criminal case by wri of ero, ether from this cour oF from the Cirouit Conrts of Appeals, and in all evil eas by appeal ‘orerror, without regard to the amount in controversy, except ‘2 to appeals or writs of error to or from the Cirenit Cours ‘of Appeals in ses not mad fnal, as specified in § 6." Tt is tr that repels by impliontion are not farord, but we ean ‘not eaape the conelison that, tested by its seop, its obvious ‘porpesn and ite terms, the act of March 2, 1891, covers the Inhole subjestimaiter under consideration, and furaishes tho fxclasive rue in respect of appelite jralition on appeal, wnt of error or certicate:” 185 U. 8 138-140, "That jadgnient was thos rested upon to suecusivo propos! tions: Fir thatthe act of 1891 gives appellate jristition, cither to this court. or to the Circuit Court of Appeals in all Criminal eae, and in all cil cases * without regard to the ftmouot in controvers.” Second, that te act, by its terms, its scope and ts obvious parpeso, “furnishes the exclusive rule in eect of appellate juradiction on appesl, Hit of enor oF corifient” “hs was long ago said by Chief Justice Marshall, the spiit ‘as well a the letter of & atuto must be respected, and where the whole context of the lar demonstrates « particle intent in the logilatore to eflect certain object, some degree of implication may be called in to aid that intent.” -Dusotrascen ¥ United Sit 6 Cranch, 807,314, And it ia a wall sted Tule inthe construction of statutes, often armed and applied by this cour, that een where tivo acts are not in express terms repugnant, yet if the latter act covers the whole subject ‘ofthe stand embraces new provisions, plaaly shoving that in was intended nea substitute for the Sst act, it will operate tsa repeat of that ack” United Stats. Tynen, 1 Wall $8, 185 Hing v. Cornel 106 U. 8,805,896; Tracy v. Tuy, 13h U8. 206, 223; Fak x, Hovera, 49 U.'S, 469, 408; District, of Columbia ¥, Hutton, 198 U8. 18, 37; United State v Heatey, 160 U. 8.198, 1. ‘Worare of opinion that the act of 1891, wpon its fase read66 OCTOBER TERM, 1808 in the Hight of sett rte of statatory construction and of the decisions of this cur ely manifest th intention of Congress to corer the wie sbject ofthe apple rae tion from the Ditet and Cire Cousot the United Staton so far as rogaria In ha carn, 8 wel as to what cout, fppas may be taken, sito opera and repeal, to this tent al the provions of ear ace of Congres inelding tows that imposed presley Lint upon ste rity, An a5 part of the new seme, to oer po ths our jwsietion of apeat fom al final sentence tn decree tn cai, Wet ep the ath spy and Without oy certifeate of the Distt Sligo a8 tothe por ‘tance of the particular case. ° mr “We are thea brovght tothe consideration of the question whetor pon the fata spating inthe recone th fa fog smacha were sje to eapie bythe trol esl of the United States during the rsene war With Spal By an anciot ngs among civilized ation, begining centuries ago, aod grualy ripening into'a rae of interme final a, cms Bang vents, putsning their vocation of catching ad bringing in fvth sly have been recognized ar empty with theres al cro om pre an Ps This dootig,howerer, tas been easly contested at the bars an no complete cnet oth intanea Mastin ibis be found, wo far an weave aary, ina single publi work, although many are relrret to aad dicate enter on international la, nealy Ia 2. Oran, Teles Internationales et Diplomate de Ia Mer, th el) hi 3, % pp. s1-50; in 4 Cleo, Dr International, (Sh el) & 2307, 3510; in De Does, Proprits Privée Enemies Pavillon Ene, 8 191-196; an in aly Totormational Tavs th cit) 148. Te therfore worth tho wile to tae the hi tory ofthe rl, from the elit accent sony, through tho ineresing recognition oft, with ocasonal ebachy to ‘hat ve may now jy conten ts fal ables In ur own county anit gonrlythrongont the evn word ‘he enlist Als of any goverment on the abject, mon ‘THY PAQUETE HAMANA, pinion of he Cour. tioned inthe books, cither emanated from, oF were approced by, King of England. ‘in 1403 and 1406, Henry IV iswod orders to his admirals and other ofits, entitled * Concerning Safety for Fishermen “De Swuritats pro Pisatoribwe” By an onder of Octo- ‘er 26, 1408, reciting that it as made pursuant to a treaty ‘between himself and tho King of France’ and for the greater safety of the Bsbermen of either country, and so that they ‘oold be, and carry on theie industry, the more safely on tho fea, ad al with each other in peices and thet tho French ‘King bad consented that English fishermen shouldbe treated Iikewise; it was onlained that Fronch fishermen might, ‘sing the then pening senon for the herring fishery, saely Hish for herrings and all other fish, from the harbor of Graselines and the isn of Thanet to the mouth of the Seine and the barbor of Hautoune. And by an onler of (October 5, 1408, he took into his safe conduct, and under his special protection, guardianship and defence, all and singular the fstermen of France Flanders and Drittans, with their fishing ves and boats, everyihere on the se, through and withis bis dominions, jarislictions an tevitovies, in regard to thee fishery, wile sailing, coming and going, and, at their Pleasure freely and lawfully shing,detaging or proceeding, fin! returning homerard with their eate of fish, withoat any tmolestation oF hindrance whatever; and also their sh nets, ‘and other property and goods soever; and it was therefore ‘ondered tht such Bahermen sould not bo interfered with provided they should comport themselves well and properly, fn should not, by color of these presents do or attempt, oF rresune to dor atompty angthing that could prejudice the ig, ot be kingdom of England, or his subjects. 8 ymmer's Poder, 834, 401, ‘The treaty male October 2 1621, between the Emperor Charles Vand Francis T of France, through their ambas- ‘aor, recited that a great and fern tear lad arisen between them, because of which there nd been, Both by land and by ea, frequent deprodations and incursions on ether site, to the grave detriment and intolerable injury of the innocent388 OCTOBER TERM, 1899, subjects ofeach and hat table time forthe Besng Tbery wan at han and by Tasso ofthe ona bing bn by the enon, the ibormen dito dar to go oa, wersby te stbjet of thle aduty, basowed by Eten. olay the hunger ofthe poor would belly fl fr the eae une ‘were athrvin provide et uf patie cme, ail penperm leva fon ear nominees, tert hoc aaa omnine da it air provdeater ak ‘es erfre sre tht the saet ofeach nvr, Bl ing in the bor exerchng tb sain of tsberaes, cold tod ight, wnt the ea of the nest dabsay,wtbet incr Ting a stack, dapreitio, oasatio,teleo lindrace sooreratly an fel, everywhere inthe wt eringa fn erery oor kindof Shy to existing wat by land ad to noting: and fre tty ding he Une afore Sd no met of ier sovereign seal nin or slant or presuine to comity depreaton, fre, lene, mole {tio or ean, toot spon suc fiom or tel wel ‘opie eelmets nett Bah or ober nds never ly ‘necting to fnbg Th teiy vat ma at Ca hea Engl fomusion” Teste thatthe anbasador ofthe {ho sovesgneiet hare athe earns reo Hea TIT, tl with hi eotenanoy an the precnoy of Cll oles his lancelor soi rprsetatire, Ad towards the end of the wat agro tat the sd King and is Fepresenlatie, "by whee noun the aly stad condeed, shall be onstrate of the agreement teri, teil three by both paren slot ad eens” & Dumcet, Cope DE ‘omstgte, pp. 259,88 ‘he bering fishery was permite, in tino of was, by Frc a uth ti 180d, Qos Sore Palin i, ye 31 Energon des Aan ‘sect, 0 5 . 12, sect. 19, § 8. = ss ets Trane to enol tines, atthe example of leit ‘ho cells of wa aftr of cot fahren, Ta the ane ition ented ‘Us st Contac tela Me pulsed by Ciao in 106, ada the tin pst thee contling "Martie oF Adminity Jrilison” le Jurtstion dee ‘THe PAQUETE HABANA eso ‘Onto ofthe coe Marine ow @?Admirauti—as well in tie of peace as ja time of war” article 80 is a8 follows: “The adel may in time of war actont Bshing traces —treover paschrester— to the enemy and to his subjects; provided thai the enemy will, likewise accord them to Frenchmen.” Cleiras, S44. Under ‘this aril, references ma to ntiles 49 and 79 respectively ‘of the French ordinances concerning the Admiralty in 1848 and 1584, of which it is but a reproduction. 4 Pardosus, Collection de Lois Maritimes, 810; 2 Ortolan, 1. And Cleivac ‘adds in a note, this quotation from Froisar’s Chroniler: “"Pishermen on Ue se, whatorer war there were in Franoe ‘nd England, never did harm to ono another; a0 they are friends, nd help one another at need — Pesckeure sur mer, quelque guerre qui soit on France et Angleterre, jamais ne se ‘front mal Pun fi Pawtre; ingots tnt aon ot Paydent Pam Panera om besoin” ‘The same custom would seem to have provailed in France ‘nti towards the end of the seventeonth contury. Far exam: ie, in 1675, Louis XIV and the States General of Holland, Iby mutual agreement, granted to Datch and French fisher amen the liberty, undisturbed by their vessels of wan, of fishing along: the coasts of France, Holland and England. Dillanterive et De Cosy, Traits de Commeres, pt. 1, ra. 3, p. 278. But by the onliances of 1681 and 1092 the prac. tice was discontinued, bocause, Valin says, of the fithess conduct of the enemies of France, who, abusing the good faith ‘with which sho bal alays obsorved the treaties, habit ally carried off her fishermen, while their own fished in safety. 2 Valin sur FOndonnance dela Marine, (1770) 689, 600; 2 Orilan, 52; De Boos, § 199 ‘The docttine which ‘exempts coast fishermen with their oneal and cargoes from capture a8 prize of war has been familiar to the United States from the time of the War of dependence. ‘On June 5, 1772, Louis XV, our ally in that war, addresed 1 lettr to bis admiral informing him that the wish he had flvays had of alleviating, a fr as bo could, the baniships of ‘war, had directed his attention to that class of his exbjoct0 OCTOBER TERM, 1890 hich devoted itt tothe true of fishing, and bad no other Ineans of livelibood; that he had choaght that the example Imhich hhe should give to bis enemies, and which could have ro other source than the sentiments of liumanity. which pied! itty won determine them to allow to fishermen ste faite which le sou consent to grants and that Ihe ad therefore given onfers to the commanders of all bis ips not to dstorh English ferme, nor to arrest their vests laden swith frosh fib, eran if not canght by those vessels; provided they had no offonsive arms, and were not proved’ to hare made any sigaals creating w suspicion of Inteligance with the enemy; and the admiral was dicated tocommunicat the King’s intentions to all officers under bis conttal. By a royal onder in connel of November 6, 1780, the former orders were confirm; and the capture and ran tom, by a Prone eraser of The Jolm and Sara, an English ‘ewe, coming from Holla, laden with fresh Ob, were pro rowneod to be llega, 2 Code des Prise, (ed. 1784) 72, 901, 908. ‘Among the standing onlers made by Sie James Marriott Saige of the English Iigh Court of Admiralty, was one of ‘Apnt 11,1780, by which it was “ordered, that all causes of Dros of fishing bouts or vessels taken from the enemy may bo ‘oneoiclatal in one mosition and one sentence or intrloe. tory, if onder Aly tons burton, and not moro than six in nomber.” Marriott's Formulary, 4 But by tho statements fof hie succesor, and of both Froneh an English writer, it fppears that England, as wall ax France, during the American {evolutionary War, abstained from interfering with the cout fisheries The Young Jaosb and Johanna, 1 0. Rob. 30; 3 Ortlan, 835 Hall, § 148 In the treaty of 1785 between the United States and rasa, article 98, (which was proposed by the American Commissioners, ohm Adams Benji Franklin and Thomas Jelferon, anda said to have boon drawn up by Franklin) provided’ hat, if war should arise between the contracting pertes, “all women and children scholur of every fault, faltrators ofthe earth artisan, manufacturers and fishermen, ae a= a a ‘THE PAQUETE HABANA, oo Opn of the Caer. ‘armed and inhabiting unfortifed towns, villages oF place, snd in general all other whoop oocupations are for the con yon sitsistence and benefit of mankind, shall bo allowed to contings their reyective employment, and shall not be ‘molested i their persons; nor shall their houses or goo be Turn or otherwite destroyed, nor their felis wasted, by the farmed forco of the eneniy, into hose porcer, by the events fof war, they may lppen to fall; bat if anything is nocessry to be taken from them for the uso of such armed force te same shall be paid for at a reasonable price” 8 Stat; 1 Kent Com, {1 note; Whenton' Tlstory of the Lave of ‘Nations, 308, 908," Hlere sear the clearest exemption from Ioatile molestation or seizure of the persons, occupations, hhonsos and goods of wnarnel fishermen inabiting unfortfied place. The artile was repeatl inthe later treaties betiveon the United States and Prussia of 1799 and 1825. § Sat. 174, B84, "And Dan, in note to hie edition of Wheaton’s Inter national Law, says: “Tn many treatin and decrees, fermen tatching fish ‘as an article of food ate slded to te class of persons whose cocupation is nok to be disturbed in wan” Wheaton's Taternational Law, (Sth ol) § $45, note 168 Since the Unite States became 4 natin, the only serious Interruptions, go far at we are inform, of to genera reo nition of the exemption of coast fishing vesels from hostile faptare, arose out of the mata! suspicions and recriminatons ‘of Bngland and France daring the wars of the French Revo. Tetion Tn the ft years of thoes wars, England having anthorzed the eaptae of Fron fishermen, a decro of the Prench Na- tional Convention of October 2, 1798, directed. the executive power to protest against this condact, Uheretofore withoat {xample; to reclaim the Behing bonts sca; and, in ease of fofusal, to resort to reprisals” But In July, 1706, the Com- nites of Publie Safety ordered the release af English fs ren soled under the former deeres, “not considering them ts prisoner of wan” Za Wontra Sepove dela Piedad, (1801) Sted below; 2 De Cassy, Droit Martine, 164, 1655 1 Masse, Droit Gommercal, (2d i.) 260, 26%wo OCTOMER TERM, 1690, (On January 24,1798, the English Government, by express onler, instructed the commanders ofits shipe to sei French and. Dutoh fishermen swith their boots. 6 Martens, Recueil ls Traits (2 et) 508 ; 6 Scholl, Histoire dee Tek, 1195 2 Ortolan, 83. “After the promulgation of that order, Lord Stowell (then Sir Wiliam Seott) in the High Court of ‘Adm rally of Knglend condemned small Dutsh fishing vesels a8 prize of war. Tn one easy, tho eapture was ja April, 1708, fand the deoree was made November 13, 1708. The Young ocob and ohana, 1 0, Tob, 20. Tn nnother ease, the decree twas matle August 28,1792. The Noydt Gedaat, 90, Rab, 131, ate For tho year 1800, the ones of the English and French gorernmonis and the correspondence butween ther may bo found in books already refered to. 6 Martens, 505~519; 8 Scholl, 115-120; 2 Ortolan, 89, 84 The doings for that year may’ be summed up ax follows: On March 27,1800, the French goveroment, unwilling to resort to reprisals rnacted the orders given by Louis XVI in 1750, above mentioned, pro- hiiting any seizae by the French ships of English fishermen, unloss armed, or proved to have made signals to the enemy: ‘On May 30, 1800, the English government, baving receive notieo of that action of the French government revoked is nlor of January 21,1798, Bul, soon aftervants, the English orermment complainel that French fishing boats hed been tnade into feeboats at Flushing, ae wll az that tho French {government a impresed, and had sent to Brat, to serve in ite flail, French fishermen and their boats, even those ‘whom the English had released on condition ‘of their not serving; and on January 31, 1501, summarily revoled it ast ‘len, and agin pat in force ite onler of January 24 1708, ‘On Febriary 1 1801, Napoleon Bonaparte, then Fitst Cons, directed the French commissioner at London to rtarn at once to France, fst declaring to tho English government that it fonduct, “contrary Uo all the usages of civilized nations, and tw the common law which governs them, even in time of wa {gsvo to the existing War a character of rage and biternest ‘which destroyed even the relations usual in & loyal wary” and THE PAQUETE HABANA, os “tended only to exasperate the tivo nations and to pat off tho term of peaco;” and. that the French government, having always made it “a maxim to alleviate ne much a8 posible the evils of war, could not think, on ie par, of renering wretched fishermen vitins of a prolongation of hostilities, and would abstain from all repr, ‘On March 16, 180, the Adlington Ministry, having come into power in England, revoked the onlers of te predevesors against the French Gehermen; maintaining, however, that ‘tho freolom of fishing as nowise founded upon an agree. ment, bat upon a simple concession” that “this concesion would bo always subonlinate tothe convenience af the moment," and Uiat “it was never extended to the great fishery, orto commeree in ogsters or in fish.” And the free dom of the coast fisheries wae again slowed on both sides. © Martens, 514; 6 Seboell, 121} 2 Ortolan, 84; Manning, Law of Nations, (Amoe ed!) 200. ‘Lord Stovell’jadgment in The Young sorb and Jokennn, 1.€-Rob. 26, above cite, was much relied on by the counsel for the Unita State, an eserves careful conseration. ‘The vessel there condemned is derribe in the report as “a amall Dateh fishing ves taken Api, 1798, on er return from the Dogger bank to Holland;” ant ant Stowel, in dalvering jadgment, anid: Un former wars it has not been tual to make eaptoter ofthese small fshingesselo; bat th role was a rale of comity only, a not of legal decison; it has prevailed from views of tata aceommnation between neighboring countries, nnd from tenderness to a. poor and industrious order of people. Inthe present war there hag ‘resume, boen saffcient reason for changing this me of treatment, and, ab they are Droaght before me for my july ‘ment, they must be referred to the general principles of this court; they fall under the charactor aml deseription of the last cas of cases; that is of shipe constantly and exclusively ‘emploged in the enemy's trade.” And ho alded: “Tt is & farther satistacton to me in giving this judgment to obseree thatthe facts lao bear strong marks of false and fraudulent tranection.”oot OCTOBER TERM, 1898 th the capture and condnnation were within exe atte the oot of the Engah goernmentof Janey 2 ‘fog jtrctng te commas of mips to ee Fre Eittbutch ting esl a before ny rorecation of Bat Sntee “Tart Stoel igen shor that his decilon wat ‘eed up te ofr of 788 well as upon tong evince Staal, "Nothing more wa ajgel in the ee Bat some expresions in bis option have bon given #9 ante woh) Engh writers thst ry” bo wall ex Ine thom parca "the opinion bogies by editing the own celts former ant not to epire soc els — Siig, however but thie was nl of comity on an ot Seng nison’™ Assuming the pas legal decison” 0 aveben there ap the see Im which usar aces {Sur we as elalont to jt devon?” eve {tear as appears tore a bn no sac deson onthe Cae Ta Engl "The word comity” wan apprently nse Wana Sevel as synonymove wi courte” oF ood wil. Bac pion ota tntted yen wish hs since eyed ic Tahir sector to have nae what originally may bare fein esto roi tay cin ee TPs genoa assent of ela non, now seid re o Resraflona laws Ay well sid y Sit Jems Macktot athe pezent canary mao an sn bo very sub alain an pl in pron of mar a porter an tat mitigated practne nario the sneion Ufo ira rom hn rank of mere ung and becomes st of ela ofaaions” Dicours onthe La of Nation 11 Minealaneos Work, 80 hy rench prize tribunals, both before and after Lord uals decor took wholly diferent view ofthe genera Chuetion In 180,48 aleady mentioned, an oner in coon ‘Ri fouls XV bud delaed egal the eapare by «French See re on and Sirah sn Engin ved coming fom Han en vhf And on Mag i, 180 {Fyre a orteguese fishing vee, wit ber arg of hy ba. NYS nore ro than as peel for her wamagement and (RE Socng tue men on tp of wveral day hal be ep a 4 - ‘THE PAQUET HABANA 0s tore in Apri, 1801, by a French cruiser, three leagues off the coast of Portugal, the Council of Pris hold tht the enptane ‘was contrary to “tbe principles of humanity, and the maxims of intrnational law,” and decreed that tha esse, with the fish on board, or the net proceeds of any that lal been sold should be restored to her master. Li Nostre Segnora de fo Pindad, 35 Merlin, Tuispradence, Prise Maritime, § 2, art. 1, 35 8 G.1 Pistoye et Ducerdy, Prises Maritimes, 331; 2 De Cassy, Droit Maritine, 168, ‘The English government, soon aftervanis, mote than once ‘unqualiidly prohibited the molestation of fishing vessels em. ployed in catching and bringing to market freth feb. On ‘May 35,1807 it was "ordered in coun, that all fishing vee tele undor Prussian and other color, and engage fr the pu pose of catching foh and conveying them fresh to market, ‘ith their ore, eargoes and store, shall not be molested on thelr fishing voyages and bringing the sme to market and ‘at no fishing vessels of this description sball hereafter be ‘molest. And the Right Honorable the Lands Commissioners of His Majesty's Treseary, the Lotte Commissioners of the ‘Admiralty and the Judge of the High Coart of Aditalty are ny itetions herein a¢ to thom may respec ‘5G. Tob. 408. Again, in the onler in council of May 9, 1810, which directed tha “all ese whic shall have cleared out from any port $0 far under the contol ‘of France or her alles as thit British tessle may not frely trade thereat, and whieh are employed in the whale fisher ‘or other fishery of any description, save as hereinafter excepted), and aro returning or destined to relarn either to the port from wheace they cleared, oF to any other port or place at ‘hich the Britis flag may not froely trade, shall be capture, andcondemaet together with their stores and cargoes as prize to. the captors” thera sere excepted vessels employe in eatehing abl convaying fish fresh to market, such vesels not being died oF provided forthe caring of fish.” Faw. Adm apps. ‘Wheaton, i his Digest of the Law of Maritime Captures and Prizes, published in 1915, wrote: “Tt hus been ‘usta608 OCTOBER TERM, 1899. pion of te Cone ‘in maritime ware to exompt from eaptaro fishing boats and their cargoes both from vies of mutual sceommodation bo- ‘sreen neighboring counties, and from tenderness tos poorand indastriows order of people. This eastom, s honorable to the Iamanity of civilized nations, bs fallen into disuse; and itis remarkable tat both France snd England reatuallyreproech fech other with that breach of goo faith which bas finally abolished it” Wheaton on Captures, 2 § 18, "This statement cleney exhibit Wheaton’ opinion that the custom had been a general one, af rll as that i ought to main so. His assohption tht it bad been abolished by the Alifereties between France and England at the clase of the last ontury was han justified by tho stato of things when the wrote, and has not sin been borne out. "During the wars of tho Frencls Empire, as both French and aglish writers agree, the coast Haberes woro l(t in peace 2 Ortolan, $4; De Boeck, 8199; Hall, §148, De Boeck ‘qoaintly and traly adds, “and tho incidents of 1800 and of $801 had no morrow —weuront par de londeman.” Tn the war with Mexico in 186, the United Stats recog risa the exemption of cost Gsbing boats from eaptare. Ta proot of this, counsel have referred to records of ths Navy Department, which this court is clearly enthoried to const ‘upon ach a question. Jones x. Unitad State, 197 U. 8. 025, Tnderhill¥. Hermans, 188 U. 8 350, 253. By those records it appears that Commodore Conner, com: rmanding the Home Squadron blockading tho cast coast of ‘Mexico, on May 14, 1845, wrote a letter from tho ship Oum- Detland,off Brazos Santiagy, near the southorn pont of Texas, to Me. Bancroft, the Secretary of the Navy, enclosing a copy fof the commodore's “instructions to the commanders of the ‘essls of the Home Squadron, showing the principles to be obearved in tho blockade of the Mexican ports.” one of which tras that “"Mexian boats enguged in Seng on any part of the coast wil be allowed to parse their labors unmolested ;”, fand that on June 10, 1846, thoes iastructions wre approved by the Nary Department, of which Mr- Bancroft was ill the bead, and continted to be until he was appointed Minister to 2 —_ - HE PAQUETE HABANA oor Bngland in September following, Although Commodore Con. ‘ers instructins and the Departient® approval thereof do not appear in any contemportry publication of the Govern mont, they evidently became generally known atthe time, oF Seon after; for iti stated in serra treatises on international law (beginning with Ortolas second sition, publish in 1868) thatthe United State in the Mexican War permite the ‘const fishermen of the enemy’ to continue the free exercise of their indostry. 2 Ortolan, (2 ea) 40 note; (Ath el) 885 & Calvo, th ei) § 2872; De Boeck, § 104; Hall ith el) sus. ‘As qualifing tho effect of those statements the counsel for the United States relied on proclamation of Commedore Stockton, commanding the Paoie Sqoadron, dated August 30, 1846, dweting officers uer his command to prooeed ime. diately to blokade the ports of Mazatlan snd Sm Bias on the west coast of Mexico, and saying to thom, ©All neatal ‘essels that you may find there You will allow twenty days todoparts and you will mak the blockade abeolata against all vessels, exeopt armed vesels of neutral nations. You will, aptare all rstels under the Mexican fag that you may bo fable to take.” Navy Report of 1846, pp. 67 67h, Dat there i nothing to show that Commodore Stockton intendel, or that the Government approved, the eaptre of coat fishing ese ‘On the contrary, Goneral Hallack, in the preface to his work, ‘on International Law or ales Regulating the Tnterenarse of States in Peace and War, published in 1801, gaye that ho began. that work, during the war botwoon the United States nd Mexioo, while serving on the staff of the commander of the Pacific Squadron” and “often required to give opin fons on questions of internationsl law growing ont of fe operations of the war” Had the practioe of the bockating squadron on the west cast of Mexico suring that wan, in rum to fising veel difered from that approved by the [Navy Department on the east const, Generl Halleck cont hanily have failed to mention i when stating the prevaling doctrine upon the sabject as followsoe octosEE EEN, 1500 plies oft Cone “Pghing boats havo also, asa general rule, been exempted frowa the effets of hostilities, As early as 1521, while war tras raging botween Charles V and Francis arnbamsors from ‘hese tivo eovereigns met at Casi then English, and agrecd tat, wheres the herring fishery was tot to commence, the subjects of both bellgerens, cogaged in this pursuit, shou toe arfo and snmolested by the other party, and should havo Joao to fish ar in time af peace. In the war of 1800, tho Tritish and French gocerauints issued formal instructions exempting the faking boats of each other's subjects from Seizure. This onlr was snbanquently rescinded bythe British joverniwent, on the allege ground that some French Bshing Tate were equipped as gunbrats, and that some French fier men, who had been prisoners in England bad volute their Ivole not to serve, ant had gone to join Ube Freuch feet at Dest, Such excuses wore evidently sere pretext, and, after some angey dieuarions ld taken placo om tho subjet, the Pritiah restrletion was withdrawn, and the freedom of fish ing wasugain allowed on both sides, "French writers consider this exemption ag sn established prineiple of the modern law of war, and it Ina been x0 recognized ia the Freuch cous, Ivulet have restored such vessels when eaptured by French cruisors.” Talleck, (ste) c. 20, § 28. ‘That eition vas the only ono sent out under the author's own auspices except an abridgment, entitled Elements of Intormational Law and the Lave of War, which be poblibed fn 1805, a8 he anil in the preface, to supply a sultable taxt- ‘oole for instruction upon’ the subject, “act only in our callage, bot also in our two great national schools — the Military and Naval Academies!” In that abridgment, the statement as to fishing bouts was condense, ar follows “Fishing bots have also, a5 a general rule, been exempted from the effects of hostilities Preneh writers oopider this ‘exemption as an establshed princpla ofthe modern la of trary and i lina been 20 recognize in the Fresoh court, ‘hick hace restored such vessels when captured by French cenvisors?” Hallecl’s Elements . 20, § 3 Tn the teaty of pence botvcen the United States and Mex. THE PAQUETE HABANA, oo fo in 1818 were insrtad the rery words of the calor treaties ‘vith Prussia, alrendy quota, forbidding the hostile. moles {ation of seizure in time of war of the perons, oceupations, Towses or goo of fishermen, 9 Stat. 990, 40 ‘Wharton's Digest of the Tnteraational Law of the United ‘States publshe hy authority of Congress in 1586 and 188%, ‘embodies Gers! Hallet’ aller statement, abore quoted, and ‘contains nothing else upon the subject. 3 Whar. Int. Lave Dig. $945, p15; 9 Halleck, (Eng es, 1879 and 1878) p. 181 rane, inthe Crimean War in 1854, and in her Wars with -Acstria in 1859 ond with Germany in i810, by general orders, forbade er erisers to trouble the coast fsheries, or to seize ‘any ves or boat engaged therein, unlss naval or military ‘operations should make i noses. Calvo, § 2972; Hal, $1148; 2 Ortolan, (4th ed) 440; 10 Revue le Droit Inter ‘ational, (1ST) 399. ‘Calvo eays that in the Crimean War, “notwithstanding her allianee with France and Italy, England did not follow tho ‘sume Ine of conduct and her crises inthe Sea of Azot de "raped the Gsheres not fishing implements provisions, boats, fnd eren the eabine of the iabitants of the coast." Calvo, § 2072 Ania Rasian writer on Drie Law remarks that {heen depredations “having brogght ruin on poor fishermen And inoffensive tras, con not bat leave « pafal inpres: jon on the minis of the population, without impairing i the Teast the reeoaroes of the Tusian gorerament.” —Ktche- norsky, (Pratt's ol) 148. But the contemporaneous reports ofthe Bnglih naval oMoers put a diferent fae on the mater, by stating that the destraction in question wat part of a mail. tary measure, condasted with the cobperation of the French ships and pursuant to Snetroctions ofthe English slnieal to ‘lear the staboard ofall ish store, all faeries and mil, om ‘scale yond the vvants of the neighboring population, and indeed of all things destined to contribateto the maintenance of the enemy's army in the Crimea ;” and that the property Mlestrayed consisted of large lishing establishments and store- ‘houses ofthe Rssinn government, numbors of heacy launches, land enormous quantities of mets and gear salted fish, com.mo OCTOBER TERM, 1890 Option of he Conte. ‘and other provision, intended for the eopply of the Rasian ‘ary. United Service Jouenal of 1855, pt pp. 108-119. Sinco the English order in council of 1808 and 1810 before ‘quoted, in favor of fishing vessels employed in eatehing and bringing to market feel fish, no instance has been found in hich the exomption from expture of private coast Hshing vessels, honestly pursuing their pencefl Sndastr, bas been Aenied by England, or by any other nation. And the Empire fof Jape, (the last’ State admitted into the rank of eid nations) by an ordinance promulgated nt the beginning of ie ‘war with China in August, 1894, established prite cours, and onlaine thatthe following enemy's veasel are exempt fom ‘tention ” —inclading in tho exemption “boats engaged in ‘coast isheriea,” ae wll as “shipa engaged exclusively ot a voyage of scientific disoovery, philanthropy or religious mi sion” ‘Takahashi, International La, 11,178 Tntermationl law i part of our lave, and must be nacertained and administred by ihe courts of fistice of appropriate jar diction, as often as questions of right deponding upon (tare aly presented for their determination. For thie porpase, Where there ie no treaty, and mo controlling execitive of legislative actor Judicial decision, resort must bo had to the castoms and usages of civilized nations; and, ns evidenco of thes, to the works of jurists and commentators, who by years of labor, researc and experience, have mail thenselees pocul larly well neqaainted with the eabjects of which they trea, Soch works are resorted to by julivial tribunal, not for the spocalations of thelr authors concerning ‘what the lair onght 1 be, but for trastworthy evidenon of what the lw rally i Mitton. Guyot, 159 U.8. 11, 163, 164, 914,31, Wheaton places, among the principal sourees of interns onal law“ Textwriters of authority, showing. what i the approved sage of mations, or tho general opinion respecting {oir rautual condo, with the definitions and modifestions fntradaced by general consent” Ar to thesa be foreibly observes: Without wishing to exaggerate the importanen of ‘these writers or to substitae, in any easy, their authority for ‘the prncipls of reason, it may be aimed that they are gen ‘TH PAQUETE HABANA, m Open of the Cone ‘rally impartial ia their jdgmont. Thay are withosss of the sentiments and usages of criized nations, and the weight of ‘het testimony increase every time that thelr authority ie invoked by statesmen, and every year that pasus without the rules lid oven in their works being innpagned by tho avowal of eontrty principles” Wheston’s Interuational Lam, (Sth al) $18. Chancellor Kent saya: ‘Tn the absence of higher and more authoritative sanctions, the ordinances of foreign States, the opinions of eminent statesmen, and tho writings of distin: guished jurists, are regarded as of great consideration on ‘questions nt setled by conventional ln. In case wharo the Principal jorists agree, the presumption will bo rary goat in favor of the solidity of thei masts; and no eiviiad nation, at doce not arrogantly set all ondiaary In and jestice at defiance, will venture to diregant the aniform sense of the ‘etablihed waiters on international law” 1 Kent Com. 18 Twill bo convenient, in the fist place, to refer to some loading Preach treatises on international lar which deal with, the question now before ns, not as one of the law of France only, but as one determined by the general consent of evilized "“Bnemy ships” say Pistoye and Davordy, in Wie Treatio on Maritime Pres, published in 1888, ‘are good prize. Not All, howover fori results from the maninons acer of the maritime powers that an exeoption shouldbe mad in favor af oust fishermen. Sach Bsermen ate respected by the ener, to long a2 they devote themselves exclusively to fishing” 1 Pintoyo et Davenly, tt. fe. yp. Uh Da Coney, in hie work onthe Phises aml Leating Cases of the Maritime Lave of Nations — Phaser et Cava Cébre ‘du Droit Maritime des Nations — published in 1858, ahs Inthe clearest language the exemption fom eaptarof Bing ‘oats saying, in ib. 1, tit. 8, § 90, that in time of war the {recom of fishing is respected by belligerents; fishing boats ‘are considered as neutral; in lave 98 in princi they see not fubjet either to capture or to confiscation; and that in ih 8, € 20, he will state “soreral facts and several decisions02 OCTOBER TERM, 1899 Optaon of he Court Which prove that the perfeot from and neutrality of fish ing boats are not illnory.”” 1 De Casey, p. 201. And in the chapter referred to, entitled De fa Lilerté et de to Newtralite ‘Parfait dela Picks, besies reference tothe ots and deci iona in France daring the French Revoltion, is this general Statement: If one consltad only positive international law” ae droit des gens postif —(b9 "hich is eviently meant interoational la” expresso in treaties, doorees or other public feta a8 distinguished from what may bo implied from custom for usage) fishing boats would bo subject like all other Uradingtesels to the law of prizay a sor of tet agreement among. all Enropean nations frees them from it, and soveral ‘lead declarations have confirmed this privilege in favor of ‘helase of men whose hard and il rewarded labor, commonly performed by feeble and aged hands, is so foreign to the perations of war?” 2 De Cosy, 164, 105. ‘Griolan, in the fourth edition of his eilea Internationales 4 Diplomatic de la Mer, publied in 1864, after stating tho {Boveral rule that the rests and enrgoes of subjects of the ‘Sromy are lawful prize, ays: “ Noverteles, custom admits fan exception in favor of bonts engaged in the coe Asher 5 these beats, 0s well as their ere are free from captare and taempt from all hotties. ‘The coast fishing Indust iy in trata, svbolly pacified of mush les importance, in regard tothe ational-weaith that i aay prodaes, than maritime feommeree oF the grett faberis, Peaceful and wholly ino eosivey how who cary ikon, among whom women are often Seen, ray bo called the harvesters of the toritoral ses, since thes eonfine thomssves to gethering in the products thereof thes are for the most pare poor families ho sek inthis ell Jing barly more than the means of galing their livelihood.” 1 Ontelan, ft. Again after observing tat tere are very for folonm publis treaties which make sention of the immunity ot ain boats in time of war, he aya: From another point Ut tiew, the eostom which sanctions this immunity is not so [geseral that it ean be considered ax making an absolute inter ational rules but it bas boon a0 often pat in pratien and, Twas, it accords o sell with the rule in use, in wars on THE PAQUETE HABANA. 08 Option of te cone, Sd omg fo pa nnn, whom cnt smerny bs Hoe asi Senco {slowed atime ras tome 3 Once on eration ue he ose wr o nor dred spon can Galt, egh ig Fronch, isa einen of the Argentine Republic employed In tepmatcome sti “pete tet ret wok on nero avy pbb in 18, sar ei {50h rata torte ats sey ihe pi cour of rnc’ of gn a {eh ato sed byte fc at te Fee ese ‘th thy a tcl re gly del fete ol Tolan fh ney 0 fsbo lor Se ‘Seine wan wh ae condone pa ee fred ov and inporee rachng ayad tes te oun nebieh ine preva tert pe prune 1 grap nga € mbt of prc os Fre to mrt feces forte sc a Goer marine fore rope te apa as popaty tp ofr" Inincatl 8 Oe Sere iy! cNiwiinaring te mnie Wears wan abet piie poergncrtiog he eat eagle of eget tae ga ‘exempted, from seizure and capture, fishing vessels.” In the Stott ea: wg cen aay ane we apn at pefetonel joel ee taylors shane ice Be Senahlable Inn. ono 08 Chiro ‘nn quiver recat darn Shere a of ‘tr often ing ney an peed to lene ‘a wn tthe Fh pent he seo French and Engin goeranrs th tines of Lous XL {nt the Fret Hevlton tthe pstn o ated Stn i hear Msi an tse sag tnd the elon of Bru eee a he Oa Te oi he ale bs dicunon af tn bj S08 by fring the exemption of the const fishery, and pointing out ited nt roger avers coat ery sat08 OCTOBER TERM, 180, Opinion of te Cour what he calls the great Sshery, for eod, whales or seal, as follows: “The pritlege of exemption from eaptare, which i ‘generally acquire by Osbing vssels plying their industry near coast, isnot extended in any country to ships employed ‘on the high oes in wbat is ealled tho great fishery, such as that for the on, for the whale or the sperm whale, of fo Uh seal for eoa calf. Those ships are, in effec, considered as devoted to operstions which are at once commercial and industrial — Ge mavines sont an eft considérde comme adonnés d dea aprations ta foia onmercielea et industrial.” The dle Unetion i generally recoguizal. 2 Ortolan, $4; De Bosc, $1065 Hall § 148. Seo also Tho Sues, 3 O. Rob. 2515 The oan, Bil. Adm. 975, and apps. Le "The modern Geran’ books on international law, cited by tho counsel for the appellants teat Ube custom, by which the ‘osels and implements of coast fabermen are exompt from feizare and capture, ae well established by tho practice of nations. -effer,§ 157; 2 Kaltonbors,§ 281, p. 480; lant sl, § 607; Pores § 37, p. 217 ‘De Boeck, in his work on Enemy Private Property under Enesny Flag — is la Proprigé Pvieée Ennemie sows Pavillon Enneini— published in 1882, and the only continental tree- tis cited by the connsel for Ube Uaited States, says in § 191: “A usage very ancient, i€ not universal, withdraws from the right of eaptare enemy tenes engaged in Use cost fishery. ‘The reason of this exception is evident; it would have been too bent to snatch from poor Sshermen the menoa of earning their bread.” The exemption ineludes the boats, the fishing Implements and the eango of Bah” Again, in§ 196: “It is to be olerved that very fow treaties sanotion in due form this Smtunity ofthe coast flsbery.” "Theres, then, ony a custom. But whatisitscharuoter? Toi eofxed and general that ian to also to the rake of postive aml formal re of interne tional aw 1” After discusing the statements of other writer, bbe approves the opinion of Ortaan (as expresed inthe Tas sentence above quotol from bia work) and says that at bot- tom, i iflers by a shade only from Unt formated by Calvo land by some of the German jurists, and that it is more exact, ‘THE PAQUETE HABANA, ‘05 Oplnon of the Conn withoo ignoring the imperative character of the humane mule in question alot pl ena saa mesnnatre te cerate intra deta ripe Phumanith don eagtes Ann 18, he detines tho tats ofthe male a olloe: Tat th en nity of the cont Bsery must be nied Hythe reasons tat jimiy i" The eons of humanity and of harmlesmes-—or rine dhenanit@inontt~ hich miata aoe ot exit inthe grea ber, sacl the cot cry shi ‘gaged in Unt sory devote themselves otal comer operatic enpy «ge aero sexe And ths sae reasons cee to be applicable to Ashing va ‘nny fru wari aro, tine wich emote fr which exchange sgn of itligene with ahi o a ‘but only those taken in the fact can be rigorously treated; to allow ssire by way of retention wodltopen th door to ery abuse, and woul be equivalent tos ceppresion of the inmonty. ‘oo reent English extn cite tthe bar, taco by what Lord Stovall sds crniry since) hette fo res. no that the exompton of ont faking cel rom epg has now becomes ate ale of internation lew. Yet they oth admit that thr iti rea erence in the vow oF ithe pti of agate of eter mane mates tnd that no vied nation atthe present day wold mks cous faking ress longs they were pecrtly pring thee cling, ant there was no danger Unt they or trons tight be of miltary te fo the enemy. Hall § 18 of Ue fourth edition of hi Tree on. International Lam, afer Iiety sketching the Story of the postions occupa by Franco an England at iferent peri and by the United ‘States inthe Mexican War, goes oto my:"In tho foregoing facts thee i nothing to show tnt teh ra diferent xs nth pct of tn maine ses" glnd oes not som ohare been sling to sare Mobing vessel solong as thy are arate, and it dow 90 epee that any Sato has accorded them immunity ander ccmtances, of Inconvenient ital. I ey that all nations Would now retrain fom motting them ata general rl, and woald cay‘06 OCTORER TERS, 1899. Option 0 he Coane tre them so soon a any danger aroe that they or their crows ‘might be of military ute to tho enemy; and it i also likely that i ie impeeible to grant thom a mor dstnet exemption.” So'T. J. Lawrence, in § 806 of is Principles of International Law, siys: "The difference between the Eaglh and. tho Freuch view is more apparent than real; for no civilized bel- ligerent woold now capture the boats of sbermon plying thoit vocation poaconbly In the torsitorial waters of thelr own State; and no jurist Would soriously argue that their imma nity must be respected if they ere sed for warlike parposs, ‘is were the emake belonging tothe northern ports of Franco ‘who Great Dritain gave the order to capture them in 1800" Bat there are writers of rarious maritime countries, not yet ciied, too important to be passed by without notice. ‘an Helens Fergoson, Netherlands Minister to China, and previously in the naval and in the colonial servioo of his conn tty, in his Manoa of International Law forthe Uso of Navies, Colonies and. Conlates, published in 1882, writes: “An texooption to the usage of eapturing enemy's private vessels at fea is tho coast hers.” "This principle of Immunity from fapture of fishing boats ie generally adopted by all mevitimo potrers, and in actual warfare they are universally spared 60 long as they remain hares.” 2 Ferguson, § 213 ‘Fendinand Auliays, Captain in the Austrian Navy, ia his ‘Manual for Naval OBces, published at Vienna in 1879 undor the auspioes of Admiral Togetthom, says: * ogarding tho tapture of enemy property, en exception must bo mentioned, ‘abich isa universal custom. Fishing vesls which belong to the adjacent const and whovs busines yields only a neessary livelihood, are, from considerations of humanity, universally excluded from eaplare.” I Attlnasr, 6 Tgnacio de Negra, Fist Oficial of the Spanish Board of ‘Adtniralty, in bie Elementary Treatiso on Maritime Tnterns- tional Lav, adopted by royal order asa textbook in the Naval Schools of Spain, and published at Madrid in 1878, concludes bis chapter “OF the lawfulnes of prizes” with these words “Te remains tobe added that tho custom of all civilized poo ‘les excludes from eaptuee and from all kind of hostility, the THE PAQUETE HABANA 0 niin of 2 Conr, fishing vestels of the enemy's cost, considering thie indoe tay an nbeoately inoffensive, and deserving, from ts Iarshipe ‘and soles, ofthis favorable exoeptin. Tt has been thus fxpromed in very many international conentons 30 that it fan be deemel an incontestable principe of lav, at leat among ealightoned nations” Negrin, tt 2, . 1, § 310. (Carlos Teta, Captain inthe Portaguese Navy and Profesor Jn the Naval School at Lisbon, in is work on Public Tater rational Lave, published in French at Paris in 1886, when, discussing the general right of eaptaing enemy ships, re “Nevertheless, in this, customary lay establishes an excop- tion of immunity i favor of cont Ging rote. Fishing i ‘0 peaceful sn indastry, and is generally ersied on by 80 pot and so hardworking a lass of nen, that it ie Uikened, in the ‘erritoral rates of the enemys contr, to the class of he bnndmen who gather the fruits of the earth for their live hood. The examples and practice generally followed establish this humane and beneficent exception as an intarntional rale ‘nd this ale may be considered ae adopted by exstomsry lam tani by all civilized tions” Testa, pt. 3, ¢.9, in 18 Tiblion thague International et Diplonatiqn, pp. 159,153 ‘No los clearly and decisively apes the distinguished Te fan jurist, Pasquale Fire, in tho enlargd edition of his exhaustive work on Publis International Law, pabised at ‘Paris in 1886-6, saying: «Tho vessels of fishermen have ‘been generally declared exempt from confiscation, boca of the eminently postal 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 resvlting from the fishery, This aaag, eminently humane, goes bork to very ancient times; ant although the imma nity of fishery along the eoosts may rot have ben sinetioned by trates, yet itis considered today as so definitely estab lished, thatthe inviolablity of vesls lero to that fishery a prosaimel by the publicte as posiiro ralo of interna HHonal Taw, and is generally respected by the nations. Con ‘sequently, we shall lay doen the following rato: (0) Vessels belonging to citizen ofthe enomy State, and devoted to fb08 OCTOBER TERM, 1500, ing along the coasts, cannot be subjet to capture. 2) Such ‘easels, owerer, will lone all right of exemption, when em- ployed for a warlike purpose. () There may, noverteles, bo eubjectd to capture reels devoted tothe great fshery in the ccean, sac as those employed in the whale shery, oF in that for seals or en calves” 8 Flore, § 1431. ‘This review of the precedents snd authoritie on the sub- {oot appenes tous aburdanty to demonstrate that at the pres- ‘ont day, hy the general consent of the eid nations of tho ‘world, al independently of any express treaty or other pub Tio act tan established rule of international Iv, founded ‘on ogusderations of humanity to poor and industrious onder ‘of men, and of the mataal convenionoe of belligerent State, ‘hat const dishing vessel, with thee implements and ruppliog, cargoos and crews, unarmed, and honestly porsuing_ their ppencefl calling of oitehing and bringing in frash fish, aro xornpt from eaplare as prize of war ‘The exemption, of course, does not apply to coast fi men of thie vesals, if employed for w warlike purpose, oF in such a way as to give sil or information to the enemy; nor ‘when military oF naval operations create a nocesity to which all private interests must give way. ‘Nor has the exemption been extended to ships or vee ‘employed on the high on in taking whales or sal, oF ood oF ‘ther fish which are not brought fresh to market, but are salted or otherwise curd and made a regular artile of com. ‘This vale of international law is one sthich prin courts ‘administering the law of nations are bound to take jadi notice of, and to give effect ta fn the sbsanoe of anj treaty ‘or other pablo act of thelr own government in relation to the mater. ‘Calvo, in passage already quoted, distinctly aflems that the exemption of coast fling vesss from capture is perfectly jaticiable, or, in other wor, of judicial jeriaiction or cogn ance. Calvo, § 2868. Nor are juticial precedents wanting in support of the view that this exemption, or a somewhat analo- {008 one, should be recognized and declared by a prize court. THE PAQUETE HABANA 00 pls of Com By the practice of all civilized nations, vessels employe only for the purposes of discovery or aience are considered as texompt from the contingencies of war, and therefore not subs jet eaplare. Ita boon nena for the gorernment send ing oat such an expedition to give notice to ether powrerr; but its nt essential. 1 Kent Com. 1, nota; Halleck, 20, § 32; Calvo, § 2876; Hall, § 138, ‘In 1813, while the United Staten were at war with England, an American vessel, on het voyage from Italy to the United States, was captured by an English ship, nd bronght into Fialifax in Nova Seotis, and, with her cargo, condemned a= Tawfal prize by the Court of Vice Admiralty there, Bat = petition forthe rstitation of «ease of paintings and engrae. ‘Ings, which had been presented to and were ornad by the Acatemy of Arts in Philadelphia, ras granted by Dr. Croke, ‘the judo ofthat court who anid "The sane la of nations, ‘hich preseribs that all property Uelonging to the enemy shall be liable to confiscation, hat likewise ite moslientons and relaxations of that vale.” The art and sciences aro nl: titted, amongst ll civilized nations, 26 forming an exception to tho sovoro rights of warfare, and entitled to favor and protection. "They are considered not as the pecaliam of this ‘or of that nation, but as the property of mankind at Inege and sa belonging to the common intarests of the whole speci” ‘And he added that thre bad boen “innumerable ease of the ‘matoal exorcise of this contery between mations in former vars” The Marguis de Someone, Stewart Adm, (Nova Sooti) 445,482 ‘In 1861, during the War ofthe Ratullion, a soir decision ‘was made in the District Court of the Unival Bates for tho Eastern District of Pennsylvania, in reganl to tivo cases of books belonging and consigned to's university in North Caro Tina. Judge Cadwalader, in ordering these books to be liber ated from tho eustody of Use marshal, and restored to the agent of the univorsity, said: “Thoagh this claimant, as the ‘resident of a hostile diate, woul not be entitled to retit tion of the subject of a commercial adventure in books, the Drpose of the shipment in question gives to it a diferent0 OCTORER TERM, 1590 Opinio oft Coa character, The United States, in prosecuting hostilities for the restoration of thelr constitutional authority, are compelled fncidentally to conscate property captured at sen of which the prooesls would othorwiso inerease the wealth of that di trict: Dat the United States are not at war with Iitratare i tat part of tie territory.” Hl then referred to the deci sion in Nove Seota, and to tho French decisions upon cas ‘of fishing reels = procedents for tho decree which he was ‘bout to pronounce; and he added that, without any such precedents, ho. should hare bad no difiulty in berating {esq books, The Amelia, 4 Philadelphia 417. ‘in Brown v. Cnitad States, 8 Crunch, 110, there are expres sions of Chief Justion Marshall whic, tken by themselves ‘might seem inconsistent with the postion above maintained ‘of the daty of priae court to tako juieal notice of a rule of international lw, established by the general usage of eiiiod tations, as fo the kind of property subject to capture. But the actual decision in that‘cae, and the leading reasons on. ‘whieh it as based, appear fos rather to confirm our post ‘lon. ‘The principal question there was whether personal property of British subject, found on land in the United Etator at the beginning of the last war with Great Britain, oul lafally be condemned as enemy's property, on a libel filed by the attorney of the United States without & posi tot of Congress, ‘Te conclasion of the court was “thatthe power of confiscating enemy property isin the legislature, nd thatthe lgilature bas not yet declared its wil £0 con ‘Seeate property which was within ou territory atthe declara- tion of wars” 8Cranch, 199, Tnshowing that the declaration bf ar did not, of ielf, rest the executive with authority to fanler such property to be confiscated, the Chief Justice reed fon the motlern usages of nation, saying: “The universal pructie of forbearing to seize and. confiscate debts and fret, the principle niverally received that tho right to thom revives on the restoration of peace, would sem to prove that war isnot an absolate coafscation of this property, but imply confers the right of confiseation;” and again: “The Tmodera rule then would seem to bo that tangible property THE PAQUETE HABANA. m Optton of he Court ge lo te nye eee eae ae ee ae Se eae car ee eaten pace sats tan eet ee ees tn ith te moter eng oni 2 ht series ramet enema on Peace cane rerems an fe nr amen meena et ot sei aeees tae cneeeh ene pacer arene hn ee eos RAINS ae neta Seo Ra a ata seaesae eet ee apt ee are by Me Sen Sng akg el cea aby sg main ine to stele of ooo or Ero muions can crc chiaton’s ree ca an ao ost ee eee en caer egee (a yeeles Seen hela Sepa i a Pere enm agi ruascaseens ta eee eae ese ‘thas beoome the law of the sea only by the concurrent sane. Pry eed p ren rey proper er es oh, eo tl he ca soe een tee See ee rt net ce shebiens co ee sere oy mses itn hn aera ee Perera ae eras cae caena OCTOBER TERM, 1890 tut indeed be proved as facts but i fe not xo with the law of nations” The Scotia, 14 Wall. 170, 18,188. ‘The positon taken by the United States during the recent war svith Spain was quite in acoord with the rale of Inter. national law, now generally recognized by civilized nation, in regard to coast fishing vole (On April 31,1898, the Secrtary ofthe Navy gave instruc tions to Admiral Sampson, commanding the North Atlantic Soaclron to “immediatly institute a blockade of the north coast of Cube, extending from Canlenason the east to Babin Honda on the wert” Bureau of Navigation Report of 1808, ‘appx. 415. "The blockade was immediately instituted accond- ingly. On April 23, the Prosident isqued proclamation, dleolaring that the United Staten had instituted and. would ‘maintain that blockade, ‘in pursuance of the laws of the United States and th law of nations applicablo to sch ens 80 Stat. 1169. And by the act of Congress of April 25, 1898, 150 it was declared thatthe war between the United States fand Spain existed on that day, and bad existed since and Including April 21. 80 Stat 384 ‘On April 6, 1808, the President issued another proclama- tion, which, aftr reiting the existonco of the war, s declared bby Congres, contained this further recital: Tt being devia ble that such war should be condacted upon prineples in bar ‘mony with the present views of nations and sanctioned by their recent practice.” Thie recital was followed by speci Aecltrations of certain rales for the eondact of the war by tea, making no mention of fishing veetls. $0 Stat. 1770 But the prosamation clearly manifests the general poliy of ‘the Government to condact the war in accondanoe with the prineples of interational law sanctioned by the recent prac: ties of nations. ‘On April 2, 188, (efter the capture of the two fishing vee tele now in question) Admiral Sampson telegraphed to the Seoretary of the Navy as follows: "I find that lange bor of fishing schooners are attempting to get into Havana from their fishing grounds near the Flora reets and costs ‘They are generally manned by excelent seamen, belonging ‘THE PAQUETE HABANA ms pion of the Cone to tho maritime inscription of Spain, who have already served in tho Spanish navy, and who are Table to farther service ‘As thesn trained mon are naval reserves, have a semi-military ‘charactor, end would bo most saloable to the Spaniards ther afloat oF ashore, I recommend that thoy ained prisoners of war, and that T should be Authorized to deliver them to the commanding ofteer of the frmg at Key Wost” To that communication the Secretary of the Naxy, on April 20, 1888, gaaredly answered: * Spa. Ish Bahing tees attempting to violate blockade are subject ith ere, to capture and any sich restel or erew considered oly to aid enemy may be detained.” urea of Navigation Report of 1895, appx. 178. The Admiral’ derpateh assumed that he wae not authoriaod, without expres omer to arrest ‘eust fishermen peaceably parsuing their cllingy and the ‘mpication and evident intent of the response of Dopartment were that Spanish coast fishing vesels and thet roms shoald not be interfered With, ao long as they ‘either attempted to violate the blockade, nor were cons ed likely to ald the enemy. "The Paguete Habana, as the record shows, was a fishing sloop of 26 tons burden, sailing under the Spanish fag, ron ning i and ont of Harare, and regulary engagol in sing ‘on the cost of Cuba. Her ere consisted of but three men, Including the master; and, according to a common usage in const fiheries had no interest in the veel, bat were entitled to two thirds of her catch, the other thinl belonging to her Spanish owner, who, aswell asthe crow, resided in Havana. n her last voyage, she sailed from Havana along the coat of Ouba, about two handred miles, and shod for twent.tve days off the capa at the wt end of the island within the territorial waters of Spain; and was going back to Havana, tvith her eango of lira fish, when she was eaptared by one of the blockading squadron, on April 25, 1898. Sho hal no arms ‘or ammunition on board she bad ne knowledge of the block ‘ul, or even of tho wa, until sho was stopped by a block ing veel; she mu no attempt to run the blockade, ad no resistance at the time of the capture; nor was there any e¥.nm OCTOBER ‘TERA, 1809 Option of te oar, lence whatever of likelihood that she or her erew would aid ‘the enemy. Tn the eave ofthe Lol, the only difeenees in th facts were that she was a schoooer of 35 tons burden, and nds oro of six mon, including the master; that after leaving Havana, and procooding some two hundred miles along the cots of Cubs, he ‘vent on, about a bundred miles farther, tothe coast of Vacs. tas, and there fished fr eight dye; and that, on her reluen, ‘when noar Bahia Honda, on the const of Cuba, sho was cap. tured, with her eargo of lve fi on April 27, 1898. ‘These diferonots afford no grout for distinguishing tho to cases. Bach vesel was of « moderate size such as isnot unuscal in coast fishing smacks, and was regularly engaged in fishing ‘on tho coast of Cuba. ‘The eree of each were few in number, Ina no interest in the reel, and received, in retan for thelr toil and entorprse, to thirds of her eatch, the other third going to her owner by way of compensation for her uae. ech vessel went ont from Havana to ber Sshing ground, and vas captated when retoming along the coast of Cube. ‘The cargo of each consist of frsh fish, eangit by her erew from the sen and kept alive on board, Although one of the ves- sels extended her fishing trip ncroes the Fuestan Chantel and fished on the coast af Yucitan, we cannot doubt that each ‘was engaged in tho coast fishery, and not in commercial audyenture, within the rulo of intorationa la ‘The two vests and their cargoes were condemned by the Distriot Court as prizo of wars the reels were sold ander it crocs; and it does not-appene what beetme of the fresh ish ‘of which their cargoes consisted ‘Upon the facta proved in either eat, it i the daty of thie court, siting as the highest pre court of the United States, and edministering tho law of nation, to declare and adjadge that tho captore was unlawful, and without probable caus; ‘and itis therefor, in each cae, Ordered, thatthe deoree of the District Court be reversed, ‘and the process of the ale of the weal, ogether with the proves of any sale of her eargo, be raored tothe elaine ‘ant, with damages and cout a . THE PAQUETE HABANA, ns Dinetting plo: Peer, C3, Maras Mees, 2. Ma Caer Joencr Feusem, vith whom conewrred Mi Somce Haman and Me. Jonce MoKewes, disenting ‘he Distro Court Hel thew voles their argon Yao bceus ot atid hat ase tation of ay, wihont ty ovnane treaty or proamation, ling ven of thie {ik te exept rom sie” “This core is there ot tens sch exemption f to be found in any tty logan, rolmaton fata tie granting Hy bat the roan thatthe veh ere fnompt by raso of an eablited mle of nteraton! la pple to thom, which fe the duty of the court to ‘lor. Tov unble to eonsade that tere san ssh ean intra rlor tnt bcm cn propery revi aston hich mnt be teat a baiog boon tl inthe ordinary ovis f diction inthe conlat of wa TT canot be maintain tht modern amge conttaten a rule which acts crt pon he thing tl yo foe, {nd not thagh th sovereign pre’ That postion wae Bowed in toon we The United Sts, 8 Cray 10,12, tnd Chit Jostce Neal sis “This gels guide which io sovereig flows ov abandon at his wil. rl ike ‘thar precept of moray, of bamanity anderen of wom. {Saatowed tothe dgment ofthe sovreges snd alhonsh itcamat be dsmgardad by him wittost ology, Sot ie mat Tealrogaied. “he rule ine ator xb Te sb lt toate moietion. Ti nt an immutable ree ot itt depend on polit considerations whieh may con tinaly a” “The question in tha ct elated to the coniation of the iret the exemy on and within ovr ov foory, and it ld that property itute cod nt bo onda tritoat an act of Congr The Chit Sontis conta "Commer nations, th station of the United State, have alvaye a conaorable goat of property vhs pos tenon of their ighore- When war bert th question, hat ll be done with enemy property in ou cout, isisetng Opion: Fale, 3, Hala, MeReoun, 3 ‘question rather of polly than of law, ‘The rule which we apply to the property of our enemy, wil be applied by hin to tho property of ou citizens Like all other questions of poliey, it ‘i proper for the consideration of a department which can ‘modify it at will; not for the consideration of w department, ‘hich ean pursue only tho law as itis wittn, Its proper {for tho consideration of the legislature, not of the exceutivs or judiciary.” ‘This case involves tho capture of enemy's property on the ‘see, and executive action, and if the position thatthe alleged alo proprio vigore limits the sovereign power in war bo rmjected, then I understand the contention to bo that, by son of the existence of the rule, the proclamation of ‘April 26 must be read as if it containod the exemption in terms, oF the exemption most be allowed beeaane the captar of aking ‘eatels of this class was not specially anthoriad, ‘The preamble to the proclamation stated, i i tre, that it ‘was desirable that the war “should be conducted upon prim: ciples in tarmony with the present views of nations and sanctioned hy thelr roont practiog,” but the reference as to tho intention of the Government“ not to resort to private, ‘ng, but to aero tothe rules of the Declaration of Paras” and the proclamation spoke for itself. ‘The langage of the ‘preamble di not eary tho exemption in terms, snd the rel ‘question is whether it mast be allowed because not affirm. Lively withheld, or, in other words, because such captures were notin torms directed. ‘These records show that the Spanish sloop Paqueto Ha bana as eaptared asa prize of war bythe U8. 8. Castine” fon April 95, and “was delivred” by the Castine's commander “to Rear Admiral Wr. T, Sampson, (commanding the North Atlantic Squadron," and thereapon * surmad over ton pas ‘master with instructions to proeed to Key West ‘And that tho Spanish schooner Lola was captured as & prize of war by the U. 8.8, Dolphin.” Apri 2 and was Aelivered ” by the Doiphin's commander “to Rear Admit Wm, T. Sampson, (commanding the North Atlantic Squad ‘un? and thereupon “turned orer” to a prize master with structions to proeed to Key West. THE PAQUETE HATANA. ar Dissenting Open: Pu, C,H, McKeon, ‘That the resels were accordingly taken to Key West ant there beled, and. that the decrees of condemnation wero ‘entered against them May 20. tis imposible to concede that the Admiral ratified these captures in disregurd of established international aw and the proclamation, or tht the President, i he had been of pinion that there was any infraction of la or proclamation, would not havo interened prior to eotlemnation, ‘The correspondence of April 28, 30, between the Admiral fd the Secretary of the Navy, quoted from in the prine pal opinion, was entirely consistent with the validity of the eaptares ‘The question put by the Admiral related to the detention ‘5 prisoners of war of the persons manning the fishing sehoon ers“ attempting to get into Havana” "Non combatants are not oo detained! except for spocial reaons, Sailors on, board y's trading vessels aro made prisoners because of thelt fitness for immediate we on ships of war. —Theretare the Adina point ont the valve ofthese Shing seamen to the enemy, and advised their detention, The Secretary replied that if the vessla refered to were “attempting to vielave blockate” they were subject “with erem” to captor, and aloo that they ight bo dotained if “considered likely to aid enemy.” The point was whether thes crews should be mado Diisoers of war. Of course they would be liable to be itn ‘olved in tho guilt of blockade running, and the Secretary ‘agred that they might be on th other ground inthe Admirals “seretion All this was in accordance with the rules and wages of international law, with whieh, whether in poe or war, the naval service has always been necessarily familar TTeome then to examine the proposition “that tthe pres: ent day, by the general consent of the civilized nations of the ‘world, nd independently of any expres treaty or other pas Towel, it san established role of International law, footed ‘on considerations of humanity toa poor and industrious oer ‘of men, and of the mutual convenience of balligerent States, that coast fishing veses, with thei implements ==ne OCTOBER TERM, 1800 iaventag Opnon: Fae, Caren, MeKones, 3. cargoes and crews, anarme) and honestly pursuing thei peace fulealing of eatching and bringing in of freah fb, are exempt from capture as prize of war” ‘This it sade rule which priza courts, administoring the law of nations, are bound to take jodicial notico of and torgive effect ta in the sbsonce of treaty or other pablo act of their own government.” ‘At the same time iti admitted that the alleged exemption oes not apply to coast fisermen or their vesiely, if employed {or warlike purpose or in sich a why a8 to give aid oF infor: tation tothe’ enemy; nor when military oF naval operations freata ay neoasity to which all private intorests wost give ‘ways? and forther that the exemption bas not been ox tented to spe oF vesels employed on the bigh sex in taking shales or seals oF ood oF other fish which are not brooght fresh to market, bat are salted or otherwise cured and made a regular artiola of commeros.” Tell be peroived that the exceptions reduce the sappesed rule to very narrow limits, requiring & caeefal examization of the facts in order to ascertain ita applicability; and the deci ton appears to me to go altogether too far in respect of deal Ing with captures dread or ratified hy the oficern command “But were these tro vessels within the allege exemption ‘They were af twenty-five and thirty-five tons banlen reepeo- tively. They cari large tanks, n which the fh taken were Ieept alive, ‘They were owned by etizens of Haran, and the ‘ormners and tho masters and erow were to be compensated by shares of the cateb. One of them bad been tro hundred tniles from Havana, off Cape San Antonio for twenty-five Aiays, and the other for eight days of tho coast of Yucatan, ‘They belonged, in short, to the class of fishing oF coating ‘ese of from ve to twenty tons busden, and from twenty tone apwaris, which, wen lionsed or enrlled as preseribed by the Revised States, te declared to be ventels of tho United States, and the shares of whove men, when tho vesols are employed in fishing, are regulated by statute. ‘They wero fengagod in what were aubstantlly commercial vonture, and the mere fact that the fsh wore kopt alive by contrivances THE PAQUETE HABANA no Dieting Opin: Fug CMe, Mos, for that purposo—a practice of considerable antiquity —did not render thom any the less an aetilo of trado than If they had been Drongist in cared do ot think that, under the circumstances, the considers tions which hare operated to mitigate the erile of war in spect of individual harvestars of the soll can properly be fnvoked on bobalf of those hired vessel, a8 being the imple: monte of liko harvesters of the sea. Not only so as to the ‘owners but as to the mastrs and erows. The principle which terompis the hosbandman and hie struments of labor exempts the industry in which ho is engaged, and is not applicable in protetion of the continuance of transactions of such char. Aoter and extent as these, In trath, tho oremption of fishing craft is essntilly an act of grace, and not a matior of right, and itis extended ‘or denied asthe exigency is beloved to demand It is said Sir Wiliam Scot, “a rule of comity ony, and not of legal decision.” ‘Tho modoen view is thus expressed by Me. Hall: « Ragland oes not soem to hare been unvilling to spare Ashing vexels ‘Tong as they aro harmless, and it loos not appear that any State has accorded them immonty under circumstances of inconvenience to itself. Tt is likely thet ll nations wold ‘now rofrain from molesting them asa general rale and wold capture thom 0 soon as any danger arose that they or their ‘roms might bo of military uso to the enemy anit is also likely that it is impossible to grant thom a more distnet exemption.” In the Crimean War, 1854-5, one of the orders in council, in terms ether exempted or included fishing vessels, yet the allied squadrons evrept the Sea of Azof of all craft capable of furnishing the means of transportation, and tho English sudmiral in the Gulf of Finland dirsted the destrction ofall Russian coating resol, not of suicient value to be detained 5 prizes, excopt "boats or small craft which may be found empty at anchor, and not taficking” Tie difficult to conesive of a law of the sea of universal obligation to which Grent Britain has not acceded. And0 OCTOBER TERM, 1800. fam not aware of adequate foundation for imputing to th cenuntry the edoption of any otber than the English rule. Tn hie Lecter on Taternational Lave at tho Naval Law College the late Dr. Freeman Snow lid it down that the exemption coil not be anterted as a rule of international Iw. ‘Thos lctures wer edited by Commodore Stockton and pub- lished under the direction of the Seoretary of te Navy in 1505, and, by that department, ia a socom edition, in 1898, ‘0 that in addition to the wellinown merits of thir author thoy posses the weight to be attibated to the offi impr rmatur. Neither our treaties nor settled practice are opposed to tha concasion ‘In view of the circumstances surrounding the breaking out of tho 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 fexclosvely in Bshing on any part of the coast.” presumably ‘tnall boats in proximity to the shore; while on the Pact coast Commodore Stockton in the siooeding August ordered tho captare of all ress under the Mexican Ag” "Tho treaties with Prosia of 1785, 1700 and 1698, and of 1848 ‘with Maxi, in exempting fishermen, ‘unarmed. and inhabiting unforfied towns, villages or places” did. not ‘exempt fthing vewels from seitare as pre; and these eap- tures evidence the convitions entertained and acted of in the Inte ar with Spain Tes neodles to review the speculations and repetitions of the writers on international ay, Ortolan, De Hoecke and ‘others admit that the cistom relied on ae consscrating the immunity ie not 2 general ae to orente an abeolate inter rational rule; Helfer, Calvo and others are to the contrary. ‘Their Iucubrations may be persuasive, but are not author: tative, Tn my judgment, tho rule is that exemption from the rigors of war is in th cotrol of the Executive. He is bound by no {immutable role oa the subject. It is for him to apply, or to modify, of to deny altogether such immunity aa may havo ‘eon sual extended THE PAQUETE HABANA, ma Exemptions may be dagantad ia adanes, o grant scrrling to chamatanny et aring ot mae eld the alton of th bard of ar ata tbe ee ht te er drt fe’ opr os Pend ot be spol eather i oo te be sly ater ert sng of onion that hen ene wary ot exam a suerte dnt hom tb ai 40 idgment of tho cour; snd ay thon Hog ek ‘McKenna concur in this dissent. ¥ bothers Has end On Janney 2 80, he conn exch canon motion o tn Bltor General nit of th United Stay a ne ‘gumeat of coal ther, and fo sce the ering set of the opinion and dere scolng to thot tous megan 4 ntti ondored ht the dere boo mil se toed thatthe damages to be allowed shall be com {hath dag to be allowel shall be eompentry ely,