Public International Law - Cases For Midterms

CASE 1
Republic of the Philippines SUPREME COURT Manila August 15, 1961 IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without taking the examination. ARTURO EFREN GARCIA, petitioner. RESOLUTION BARRERA, J.: Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to the required bar examinations. In his verified petition, he avers, among others, that he is a Filipino citizen born in Bacolor City, Province of Negros Occidental, of Filipino parentage; that he had taken and finished in Spain, the course of "Bachillerato Superior"; that he was approved, selected and qualified by the "Instituto de Cervantes" for admission to the Central University of Madrid where he studied and finished the law course graduating there as "Licenciado En Derecho"; that thereafter he was allowed to practice the law profession in Spain; and that under the provision of the Treaty of Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the law profession in the Philippines without submitting to the required bar examinations. After due consideration, the Court resolved to deny the petition on the following grounds: (1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish State can not be invoked by applicant. Under Article 11 thereof; The Nationals of each of the two countries who shall have obtained recognition of the validity of their academic degrees by virtue of the stipulations of this Treaty, can practice their professions within the territory of the Other, . . .. (Emphasis supplied). from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring to practice their profession in Spain, and the citizens of Spain desiring to practice their professions in the Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines. (2) Article I of the Treaty, in its pertinent part, provides . The nationals of both countries who shall have obtained degree or diplomas to practice the liberal professions in either of the Contracting States, issued by competent national authorities, shall be deemed competent to exercise said professions in the territory of the Other, subject to the laws and regulations of the latter. . . .. It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly subject to the laws and regulations of the contracting State in whose territory it is desired to exercise the legal profession; and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have the force of law, require that before anyone can practice the legal profession in the Philippine he must first successfully pass the required bar examinations; and (3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for the reason that the Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines,
Public International Law Volume I (For Midterms) Bachelor of Laws 2-A 1
the lower to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines. (See Sec. 13, Art VIII, Phil. Constitution).
CASE 2
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.
Public International Law Volume I (For Midterms)
Bachelor of Laws 2-A
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.
CASE 3
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 91332 July 16, 1993 PHILIP MORRIS, INC., BENSON & HEDGES (CANADA), INC., AND FABRIQUES OF TABAC REUNIES, S.A.,petitioners vs. THE COURT OF APPEALS AND FORTUNE TOBACCO CORPORATION, respondents. Quasha, Asperilla, Ancheta, Pea & Nolasco Law Office for petitioners. Teresita Gandionco-Oledan for private respondent.
MELO, J.: In the petition before us, petitioners Philip Morris, Inc., Benson and Hedges (Canada), Inc., and Fabriques of Tabac Reunies, S.A., are ascribing whimsical exercise of the faculty conferred upon magistrates by Section 6, Rule 58 of the Revised Rules of Court when respondent Court of Appeals lifted the writ of preliminary injunction it earlier had issued against Fortune Tobacco Corporation, herein private respondent, from manufacturing and selling "MARK" cigarettes in the local market. Banking on the thesis that petitioners' respective symbols "MARK VII", "MARK TEN", and "LARK", also for cigarettes, must be protected against unauthorized appropriation, petitioners twice solicited the ancillary writ in the course the main suit for infringement but the court of origin was unpersuaded. Before we proceed to the generative facts of the case at bar, it must be emphasized that resolution of the issue on the propriety of lifting the writ of preliminary injunction should not be construed as a prejudgment of the suit below. Aware of the fact that the discussion we are about to enter into involves a mere interlocutory order, a discourse on the aspect infringement must thus be avoided. With these caveat, we shall now shift our attention to the events which spawned the controversy. As averred in the initial pleading, Philip Morris, Incorporated is a corporation organized under the laws of the State of Virginia, United States of America, and does business at 100 Park Avenue, New York, New York, United States of America. The two other plaintiff foreign corporations, which are wholly-owned subsidiaries of Philip Morris, Inc., are similarly not doing business in the Philippines but are suing on an isolated transaction. As registered owners "MARK VII", "MARK TEN", and "LARK" per certificates of registration issued by the
Philippine Patent Office on April 26, 1973, May 28, 1964, and March 25, 1964, plaintiffs-petitioners asserted that defendant Fortune Tobacco Corporation has no right to manufacture and sell cigarettes bearing the allegedly identical or confusingly similar trademark "MARK" in contravention of Section 22 of the Trademark Law, and should, therefore, be precluded during the pendency of the case from performing the acts complained of via a preliminary injunction (p. 75, Court of Appeals Rollo in AC-G.R. SP No. 13132). For its part, Fortune Tobacco Corporation admitted petitioners' certificates of registration with the Philippine Patent Office subject to the affirmative and special defense on misjoinder of party plaintiffs. Private respondent alleged further that it has been authorized by the Bureau of Internal Revenue to manufacture and sell cigarettes bearing the trademark "MARK", and that "MARK" is a common word which cannot be exclusively appropriated (p.158, Court of Appeals Rollo in A.C.-G.R. SP No. 13132). On March 28, 1983, petitioners' prayer for preliminary injunction was denied by the Presiding Judge of Branch 166 of the Regional Trial Court of the National Capital Judicial Region stationed at Pasig, premised upon the following propositions: Plaintiffs admit in paragraph 2 of the complaint that ". . . they are not doing business in the Philippines and are suing on an isolated transaction . . .". This simply means that they are not engaged in the sale, manufacture, importation, expor[t]ation and advertisement of their cigarette products in the Philippines. With this admission, defendant asks: ". . . how could defendant's "MARK" cigarettes cause the former "irreparable damage" within the territorial limits of the Philippines?" Plaintiffs maintain that since their trademarks are entitled to protection by treaty obligation under Article 2 of the Paris Convention of which the Philippines is a member and ratified by Resolution No. 69 of the Senate of the Philippines and as such, have the force and effect of law under Section 12, Article XVII of our Constitution and since this is an action for a violation or infringement of a trademark or trade name by defendant, such mere allegation is sufficient even in the absence of proof to support it. To the mind of the Court, precisely, this is the issue in the main case to determine whether or not there has been an invasion of plaintiffs' right of property to such trademark or trade name. This claim of plaintiffs is disputed by defendant in paragraphs 6 and 7 of the Answer; hence, this cannot be made a basis for the issuance of a writ of preliminary injunction. There is no dispute that the First Plaintiff is the registered owner of trademar[k] "MARK VII" with Certificate of Registration No. 18723, dated April 26,1973 while the Second Plaintiff is likewise the registered owner of trademark "MARK TEN" under Certificate of Registration No. 11147, dated May 28, 1963 and the Third Plaintiff is a registrant of trademark "LARK" as shown by Certificate of Registration No. 10953 dated March 23, 1964, in addition to a pending application for registration of trademark "MARK VII" filed on November 21, 1980 under Application Serial No. 43243, all in the Philippine Patent Office. In same the manner, defendant has a pending application for registration of the trademark "LARK" cigarettes with the Philippine Patent Office under Application Serial No. 44008. Defendant contends that since plaintiffs are "not doing business in the Philippines" coupled the fact that the Director of Patents has not denied their pending application for registration of its trademark "MARK", the grant of a writ of preliminary injunction is premature. Plaintiffs contend that this act(s) of defendant is but a subterfuge to give semblance of good faith intended to deceive the public and patronizers into buying the products and create the impression that defendant's goods are identical with or come from the same source as plaintiffs' products or that the defendant is a licensee of plaintiffs when in truth and in fact the former is not. But the fact remains that with its pending application, defendant has embarked in the manufacturing, selling, distributing and advertising of "MARK" cigarettes. The question of good faith or bad faith on the part of defendant are matters which are evidentiary in character which have to be proven during the hearing on the merits; hence, until and unless the Director of Patents has denied defendant's application, the Court is of the opinion and so holds that issuance a writ of preliminary injunction would not lie. There is no question that defendant has been authorized by the Bureau of Internal Revenue to manufacture cigarettes bearing the trademark "MARK" (Letter of Ruben B. Ancheta, Acting Commissioner addressed to Fortune Tobacco Corporation dated April 3, 1981, marked as Annex "A", defendant's "OPPOSITION, etc." dated September 24, 1982). However, this authority is qualified . . . that the said brands have been accepted and registered by the
Patent Office not later than six (6) months after you have been manufacturing the cigarettes and placed the same in the market." However, this grant ". . . does not give you protection against any person or entity whose rights may be prejudiced by infringement or unfair competition in relation to your indicated trademarks/brands". As aforestated, the registration of defendant's application is still pending in the Philippine Patent Office. It has been repeatedly held in this jurisdiction as well as in the United States that the right or title of the applicant for injunction remedy must be clear and free from doubt. Because of the disastrous and painful effects of an injunction, Courts should be extremely careful, cautious and conscionable in the exercise of its discretion consistent with justice, equity and fair play. There is no power the exercise of which is more delicate which requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. (Bonaparte v. Camden, etc. N. Co., 3 F. Cas. No. 1, 617, Baldw. 205, 217.) Courts of equity constantly decline to lay down any rule which injunction shall be granted or withheld. There is wisdom in this course, for it is impossible to foresee all exigencies of society which may require their aid to protect rights and restrain wrongs. (Merced M. Go v. Freemont, 7 Gal. 317, 321; 68 Am. Dec. 262.) It is the strong arm of the court; and to render its operation begin and useful, it must be exercised with great discretion, and when necessary requires it. (Attorney-General v. Utica Inc. Co., P. John Ch. (N.Y.) 371.) Having taken a panoramic view of the position[s] of both parties as viewed from their pleadings, the picture reduced to its minimum size would be this: At the crossroads are the two (2) contending parties, plaintiffs vigorously asserting the rights granted by law, treaty and jurisprudence to restrain defendant in its activities of manufacturing, selling, distributing and advertising its "MARK" cigarettes and now comes defendant who countered and refused to be restrained claiming that it has been authorized temporarily by the Bureau of Internal Revenue under certain conditions to do so as aforestated coupled by its pending application for registration of trademark "MARK" in the Philippine Patent Office. This circumstance in itself has created a dispute between the parties which to the mind of the Court does not warrant the issuance of a writ of preliminary injunction. It is well-settled principle that courts of equity will refuse an application for the injunctive remedy where the principle of law on which the right to preliminary injunction rests is disputed and will admit of doubt, without a decision of the court of law establishing such principle although satisfied as to what is a correct conclusion of law upon the facts. The fact, however, that there is no such dispute or conflict does not in itself constitute a justifiable ground for the court to refuse an application for the injunctive relief. (Hackensack Impr. Commn. v. New Jersey Midland P. Co., 22 N.J. Eg. 94.) Hence, the status quo existing between the parties prior to the filing of this case should be maintained. For after all, an injunction, without reference to the parties, should be violent, vicious nor even vindictive. (pp. 338-341, Rollo in G.R. No. 91332.) In the process of denying petitioners' subsequent motion for reconsideration of the order denying issuance of the requested writ, the court of origin took cognizance of the certification executed on January 30, 1984 by the Philippine Patent Office attesting to the fact that private respondent's application for registration is still pending appropriate action. Apart from this communication, what prompted the trial court judge to entertain
the idea of prematurity and untimeliness of petitioners' application for a writ of preliminary injunction was the letter from the Bureau of Internal Revenue date February 2, 1984 which reads: MRS. TERESITA Legal Fortune Tobacco Corporation Madam: In connection with your letter dated January 25, 1984, reiterating your query as to whether your label approval automatically expires or becomes null and void after six (6) months if the brand is not accepted and by the patent office, please be informed that no provision in the Tax Code or revenue regulation that requires an applicant to comply with the aforementioned condition order that his label approved will remain valid and existing. Based on the document you presented, it shows that registration of this particular label still pending resolution by the Patent Office. These being so , you may therefore continue with the production said brand of cigarette until this Office is officially notified that the question of ownership of "MARK" brand is finally resolved. Very yours, truly GANDIONGCO OLEDAN Counsel
TEODORO D. PAREO Chief, Manufactured Tobacco Tax Division TAN-P6531-D2830-A-6 It appears from the testimony of Atty. Enrique Madarang, Chief of the Trademark Division of the then Philippine Patent Office that Fortune's application for its trademark is still pending before said office (p. 311, Rollo). Petitioners thereafter cited supervening events which supposedly transpired since March 28, 1983, when the trial court first declined issuing a writ of preliminary injunction, that could alter the results of the case in that Fortune's application had been rejected, nay, barred by the Philippine Patent Office, and that the application had been forfeited by abandonment, but the trial court nonetheless denied the second motion for issuance of the injunctive writ on April 22, 1987, thus: For all the prolixity of their pleadings and testimonial evidence, the plaintiffs-movants have fallen far short of the legal requisites that would justify the grant of the writ of preliminary injunction prayed for. For one, they did not even bother to establish by competent evidence that the products supposedly affected adversely by defendant's trademark now subject of an application for registration with the Philippine Patents Office, are in actual use in the Philippines. For another, they concentrated their fire on the alleged abandonment and forfeiture by defendant of said application for registration. The Court cannot help but take note of the fact that in their complaint plaintiffs included a prayer for issuance preliminary injunction. The petition was duly heard, and thereafter matter was assiduously discussed lengthily and resolved against plaintiffs in a 15-page Order issued by the undersigned's predecessor on March 28, 1983. Plaintiffs' motion for reconsideration was denied in another well-argued 8 page Order issued on April 5, 1984,, and the matter was made to rest. However, on the strength of supposed changes in the material facts of this case, plaintiffs came up with the present motion citing therein the said changes which are: that defendant's
application had been rejected and barred by the Philippine Patents Office, and that said application has been deemed abandoned and forfeited. But defendant has refiled the same. Plaintiffs' arguments in support of the present motion appear to be a mere rehash of their stand in the first above-mentioned petition which has already been ruled upon adversely against them. Granting that the alleged changes in the material facts are sufficient grounds for a motion seeking a favorable grant of what has already been denied, this motion just the same cannot prosper. In the first place there is no proof whatsoever that any of plaintiffs' products which they seek to protect from any adverse effect of the trademark applied for by defendant, is in actual use and available for commercial purposes anywhere in the Philippines. Secondly as shown by plaintiffs' own evidence furnished by no less than the chief of Trademarks Division of the Philippine Patent Office, Atty. Enrique Madarang, the abandonment of an application is of no moment, for the same can always be refiled. He said there is no specific provision in the rules prohibiting such refiling (TSN, November 21, 1986, pp. 60 & 64, Raviera). In fact, according to Madarang, the refiled application of defendant is now pending before the Patents Office. Hence, it appears that the motion has no leg to stand on. (pp. 350-351, Rollo in G. R. No. 91332.) Confronted with this rebuff, petitioners filed a previous petition for certiorari before the Court, docketed as G.R. No. 78141, but the petition was referred to the Court of Appeals. The Court of Appeals initially issued a resolution which set aside the court of origin's order dated April 22, 1987, and granted the issuance of a writ of preliminary injunction enjoining Fortune, its agents, employees, and representatives, from manufacturing, selling, and advertising "MARK" cigarettes. The late Justice Cacdac, speaking for the First Division of the Court of Appeals in CA-G.R. SP No. 13132, remarked: There is no dispute that petitioners are the registered owners of the trademarks for cigarettes "MARK VII", "MARK TEN", and "LARK".(Annexes B, C and D, petition). As found and reiterated by the Philippine Patent Office in two (2) official communications dated April 6, 1983 and January 24, 1984, the trademark "MARK" is "confusingly similar" to the trademarks of petitioners, hence registration was barred under Sec. 4 (d) of Rep. Act. No. 166, as amended (pp. 106, 139, SCA rollo). In a third official communication dated April 8, 1986, the trademark application of private respondent for the "MARK" under Serial No. 44008 filed on February 13, 1981 which was declared abandoned as of February 16, 1986, is now deemed forfeited, there being no revival made pursuant to Rule 98 of the Revised Rules of Practitioners in Trademark Cases." (p. 107, CA rollo). The foregoing documents or communications mentioned by petitioners as "the changes in material facts which occurred after March 28, 1983", are not also questioned by respondents. Pitted against the petitioners' documentary evidence, respondents pointed to (1) the letter dated January 30, 1979 (p. 137, CA rollo) of Conrado P. Diaz, then Acting Commissioner of Internal Revenue, temporarily granting the request of private respondent for a permit to manufacture two (2) new brands of cigarettes one of which is brand "MARK" filter-type blend, and (2) the certification dated September 26, 1986 of Cesar G. Sandico, Director of Patents (p. 138, CA rollo) issued upon the written request of private respondents' counsel dated September 17, 1986 attesting that the records of his office would show that the "trademark MARK" for cigarettes is now the subject of a pending application under Serial No. 59872 filed on September 16, 1986. Private respondent's documentary evidence provides the reasons neutralizing or weakening their probative values. The penultimate paragraph of Commissioner Diaz' letter of authority reads: Please be informed further that the authority herein granted does not give you protection against any person or entity whose rights may be prejudiced by
infringement or unfair brands/trademark.
competition
in
relation
to
your
above-named
while Director Sandico's certification contained similar conditions as follows: This Certification, however, does not give protection as against any person or entity whose right may be prejudiced by infringement or unfair competition in relation to the aforesaid trademark nor the right to register if contrary to the provisions of the Trademark Law, Rep. Act No. 166 as amended and the Revised Rules of Practice in Trademark Cases. The temporary permit to manufacture under the trademark "MARK" for cigarettes and the acceptance of the second application filed by private respondent in the height of their dispute in the main case were evidently made subject to the outcome of the said main case or Civil Case No. 47374 of the respondent Court. Thus, the Court has not missed to note the absence of a mention in the Sandico letter of September 26, 1986 of any reference to the pendency of the instant action filed on August 18, 1982. We believe and hold that petitioners have shown a prima facie case for the issuance of the writ of prohibitory injunction for the purposes stated in their complaint and subsequent motions for the issuance of the prohibitory writ. (Buayan Cattle Co. vs. Quintillan, 125 SCRA 276) The requisites for the granting of preliminary injunction are the existence of the right protected and the facts against which the injunction is to be directed as violative of said right. (Buayan Cattle Co. vs. Quintillan, supra; Ortigas & Co. vs. Ruiz, 148 SCRA 326). It is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to justice and restraining an act it deems contrary to equity and good conscience (Rosauro vs. Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445). Generally, its grant or denial rests upon the sound discretion of the Court except on a clear case of abuse (Belish Investment & Finance Co. vs. State House, 151 SCRA 636). Petitioners' right of exclusivity to their registered trademarks being clear and beyond question, the respondent court's denial of the prohibitive writ constituted excess of jurisdiction and grave abuse discretion. If the lower court does not grant preliminary injunction, the appellate court may grant the same. (Service Specialists, Inc. vs. Sheriff of Manila, 145 SCRA 139). (pp. 165-167, Rollo in G.R. No. 91332.) After private respondent Fortune's motion for reconsideration was rejected, a motion to dissolve the disputed writ of preliminary injunction with offer to post a counterbond was submitted which was favorably acted upon by the Court of Appeals, premised on the filing of a sufficient counterbond to answer for whatever perjuicio petitioners may suffer as a result thereof, to wit: The private respondent seeks to dissolve the preliminary injunction previously granted by this Court with an offer to file a counterbond. It was pointed out in its supplemental motion that lots of workers employed will be laid off as a consequence of the injunction and that the government will stand to lose the amount of specific taxes being paid by the private respondent. The specific taxes being paid is the sum total of P120,120, 295.98 from January to July 1989. The petitioners argued in their comment that the damages caused by the infringement of their trademark as well as the goodwill it generates are incapable of pecuniary estimation and monetary evaluation and not even the counterbond could adequately compensate for the damages it will incur as a result of the dissolution of the bond. In addition, the petitioner further argued that doing business in the Philippines is not relevant as the injunction pertains to an infringement of a trademark right. After a thorough re-examination of the issues involved and the arguments advanced by both parties in the offer to file a counterbond and the opposition thereto, WE believe that there are
sound and cogent reasons for US to grant the dissolution of the writ of preliminary injunction by the offer of the private respondent to put up a counterbond to answer for whatever damages the petitioner may suffer as a consequence of the dissolution of the preliminary injunction. The petitioner will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the filing of the counterbond will amply answer for such damages. While the rule is that an offer of a counterbond does not operate to dissolve an injunction previously granted, nevertheless, it is equally true that an injunction could be dissolved only upon good and valid grounds subject to the sound discretion of the court. As WE have maintained the view that there are sound and good reasons to lift the preliminary injunction, the motion to file a counterbond is granted. (pp. 53-54, Rollo in G.R. No. 91332.) Petitioners, in turn, filed their own motion for re-examination geared towards reimposition of the writ of preliminary injunction but to no avail (p. 55, Rollo in G.R. No. 91332). Hence, the instant petition casting three aspersions that respondent court gravely abused its discretion tantamount to excess of jurisdiction when: I. . . . it required, contrary to law and jurisprudence, that in order that petitioners may suffer irreparable injury due to the lifting of the injunction, petitioners should be using actually their registered trademarks in commerce in the Philippines; II. . . . it lifted the injunction in violation of section 6 of Rule 58 of the Rules of Court; and III. . . . after having found that the trial court had committed grave abuse of discretion and exceeded its jurisdiction for having refused to issue the writ of injunction to restrain private respondent's acts that are contrary to equity and good conscience, it made a complete about face for legally insufficient grounds and authorized the private respondent to continue performing the very same acts that it had considered contrary to equity and good conscience, thereby ignoring not only the mandates of the Trademark Law, the international commitments of the Philippines, the judicial admission of private respondent that it will have no more right to use the trademark "MARK" after the Director of Patents shall have rejected the application to register it, and the admonitions of the Supreme Court. (pp. 24-25, Petition; pp. 2526, Rollo.) To sustain a successful prosecution of their suit for infringement, petitioners, as foreign corporations not engaged in local commerce, rely on section 21-A of the Trademark Law reading as follows: Sec. 21-A. Any foreign corporation or juristic person to which a mark or trade-name has been registered or assigned under this act may bring an action hereunder for infringement, for unfair competition, or false designation of origin and false description, whether or not it has been licensed to do business in the Philippines under Act Numbered Fourteen hundred and fifty-nine, as amended, otherwise known as the Corporation Law, at the time it brings complaint: Provided, That the country of which the said foreign corporation or juristic person is a citizen or in which it is domiciled, by treaty, convention or law, grants a similar privilege to corporate or juristic persons of the Philippines. (As inserted by Sec. 7 of Republic Act No. 638.) to drive home the point that they are not precluded from initiating a cause of action in the Philippines on account of the principal perception that another entity is pirating their symbol without any lawful authority to do so. Judging from a perusal of the aforequoted Section 21-A, the conclusion reached by petitioners is certainly correct for the proposition in support thereof is embedded in the Philippine legal jurisprudence.
11
Indeed, it was stressed in General Garments Corporation vs. Director of Patents (41 SCRA 50 [1971]) by then Justice (later Chief Justice) Makalintal that: Parenthetically, it may be stated that the ruling in the Mentholatum case was subsequently derogated when Congress, purposely to "counteract the effects" of said case, enacted Republic Act No. 638, inserting Section 21-A in the Trademark Law, which allows a foreign corporation or juristic person to bring an action in Philippine courts for infringement of a mark or tradename, for unfair competition, or false designation of origin and false description, "whether or not it has been licensed to do business in the Philippines under Act Numbered Fourteen hundred and fifty-nine, as amended, otherwise known as the Corporation Law, at the time it brings complaint." Petitioner argues that Section 21-A militates against respondent's capacity to maintain a suit for cancellation, since it requires, before a foreign corporation may bring an action, that its trademark or tradename has been registered under the Trademark Law. The argument misses the essential point in the said provision, which is that the foreign corporation is allowed thereunder to sue "whether or not it has been licensed to do business in the Philippines" pursuant to the Corporation Law (precisely to counteract the effects of the decision in the Mentholatum case). (at p. 57.) However, on May, 21, 1984, Section 21-A, the provision under consideration, was qualified by this Court in La Chemise Lacoste S.A. vs. Fernandez (129 SCRA 373 [1984]), to the effect that a foreign corporation not doing business in the Philippines may have the right to sue before Philippine Courts, but existing adjective axioms require that qualifying circumstances necessary for the assertion of such right should first be affirmatively pleaded (2 Agbayani Commercial Laws of the Philippines, 1991 Ed., p. 598; 4 Martin, Philippine Commercial Laws, Rev. Ed., 1986, p. 381). Indeed, it is not sufficient for a foreign corporation suing under Section 21-A to simply allege its alien origin. Rather, it must additionally allege its personality to sue. Relative to this condition precedent, it may be observed that petitioners were not remiss in averring their personality to lodge a complaint for infringement (p. 75,Rollo in AC-G.R. SP No. 13132) especially so when they asserted that the main action for infringement is anchored on an isolated transaction (p. 75, Rollo in AC-G.R. SP No. 13132; Atlantic Mutual Ins. Co. vs. Cebu Stevedoring Co., Inc., 17 SCRA 1037 (1966), 1 Regalado, Remedial Law Compendium, Fifth Rev. Ed., 1988, p. 103). Another point which petitioners considered to be of significant interest, and which they desire to impress upon us is the protection they enjoy under the Paris Convention of 1965 to which the Philippines is a signatory. Yet, insofar as this discourse is concerned, there is no necessity to treat the matter with an extensive response because adherence of the Philippines to the 1965 international covenant due to pact sunt servanda had been acknowledged in La Chemise (supra at page 390). Given these confluence of existing laws amidst the cases involving trademarks, there can be no disagreement to the guiding principle in commercial law that foreign corporations not engaged in business in the Philippines may maintain a cause of action for infringement primarily because of Section 21-A of the Trademark Law when the legal standing to sue is alleged, which petitioners have done in the case at hand. In assailing the justification arrived at by respondent court when it recalled the writ of preliminary injunction, petitioners are of the impression that actual use of their trademarks in Philippine commercial dealings is not an indispensable element under Article 2 of the Paris Convention in that: (2) . . . . no condition as to the possession of a domicile or establishment in the country where protection is claimed may be required of persons entitled to the benefits of the Union for the enjoyment of any industrial property of any industrial property rights. (p. 28, Petition; p. 29, Rollo in G.R. No. 91332.) Yet petitioners' perception along this line is nonetheless resolved by Sections 2 and 2-A of the Trademark Law which speak loudly, about necessity of actual commercial use of the trademark in the local forum: Sec. 2. What are registrable. Trademarks, tradenames and service marks owned by persons, corporations, partnerships or associations domiciled in the Philippines and by
persons, corporations, partnerships or associations domiciled in any foreign country may be registered in accordance with the provisions of this Act; Provided, That said trademarks, tradenames, or service marks are actually in use in commerce and services not less than two months in the Philippines before the time the applications for registration are filed; And provided, further, That the country of which the applicant for registration is a citizen grants by law substantially similar privileges to citizens of the Philippines, and such fact is officially certified, with a certified true copy of the foreign law translated into the English language, by the government of the foreign country to the Government of the Republic of the Philippines. (As amended by R.A. No. 865). Sec. 2-A. Ownership of trademarks, tradenames and service marks; how acquired. Anyone who lawfully produces or deals in merchandise of any kind or who engages in any lawful business, or who renders any lawful service in commerce, by actual use thereof in manufacture or trade, in business,and in the service rendered, may appropriate to his exclusive use a trademark, a tradename, or a service mark not so appropriated by another, to distinguish his merchandise, business or service from the merchandise, business or service of others. The ownership or possession of a trademark, tradename, service mark, heretofore or hereafter appropriated, as in this section provided, shall be recognized and protected in the same manner and to the same extent as are other property rights known to the law. (As amended by R.A. No. 638). (Kabushi Kaisha Isetan vs. Intermediate Appellate Court, 203 SCRA 583 [1991], at pp. 589-590; emphasis supplied.) Following universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in the Philippines must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal (Mortensen vs. Peters, Great Britain, High Court of Judiciary of Scotland, 1906, 8 Sessions 93; Paras, International Law and World Organization, 1971 Ed., p. 20). Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislative enactments (Salonga and Yap, Public International Law, Fourth ed., 1974, p. 16). The aforequoted basic provisions of our Trademark Law, according to Justice Gutierrez, Jr., in Kabushi Kaisha Isetan vs. Intermediate Appellate Court (203 SCRA 583 [1991]), have been construed in this manner: A fundamental principle of Philippine Trademark Law is that actual use in commerce in the Philippines is a pre-requisite to the acquisition of ownership over a trademark or a tradename. xxx xxx xxx These provisions have been interpreted in Sterling Products International, Inc. v. Farbenfabriken Bayer Actiengesellschaft (27 SCRA 1214 [1969]) in this way: A rule widely accepted and firmly entrenched because it has come down through the years is that actual use in commerce or business is a prerequisite to the acquisition of the right of ownership over a trademark. xxx xxx xxx . . . Adoption alone of a trademark would not give exclusive right thereto. Such right grows out of their actual use. Adoption is not use. One may make advertisements, issue circulars, give out price lists on certain goods; but these alone would not give exclusive right of use. For trademark is a creation of use. The underlying reason for all these is that purchasers have come to understand the mark as indicating the origin of the wares. Flowing from this is the trader's right to protection in the trade he has built up and the goodwill he has accumulated from use of the trademark. . . . In fact, a prior registrant cannot claim exclusive use of the trademark unless it uses it in commerce.
13
We rule[d] in Pagasa Industrial Corporation v. Court of Appeals (118 SCRA 526 [1982]): 3. The Trademark law is very clear. It requires actual commercial use of the mark prior to its registration. There is no dispute that respondent corporation was the first registrant, yet it failed to fully substantiate its claim that it used in trade or business in the Philippines the subject mark; it did not present proof to invest it with exclusive, continuous adoption of the trademark which should consist among others, of considerable sales since its first use. The invoices (Exhibits 7, 7-a, and 8-b) submitted by respondent which were dated way back in 1957 show that the zippers sent to the Philippines were to be used as "samples" and "of no commercial value". The evidence for respondent must be clear, definite and free from inconsistencies. (Sy Ching v. Gaw Lui, 44 SCRA 148-149) "Samples" are not for sale and therefore, the fact of exporting them to the Philippines cannot be considered to be equivalent to the "use" contemplated by the law. Respondent did not expect income from such "samples". There were no receipts to establish sale, and no proof were presented to show that they were subsequently sold in the Philippines. (Pagasa Industrial Corp. v. Court of Appeals, 118 SCRA 526 [1982]; Emphasis Supplied) The records show that the petitioner has never conducted any business in the Philippines. It has never promoted its tradename or trademark in the Philippines. It is unknown to Filipino except the very few who may have noticed it while travelling abroad. It has never paid a single centavo of tax to the Philippine government. Under the law, it has no right to the remedy it seeks. (at pp. 589-591.) In other words, petitioners may have the capacity to sue for infringement irrespective of lack of business activity in the Philippines on account of Section 21-A of the Trademark Law but the question whether they have an exclusive right over their symbol as to justify issuance of the controversial writ will depend on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A of the same law. It is thus incongruous for petitioners to claim that when a foreign corporation not licensed to do business in Philippines files a complaint for infringement, the entity need not be actually using its trademark in commerce in the Philippines. Such a foreign corporation may have the personality to file a suit for infringement but it may not necessarily be entitled to protection due to absence of actual use of the emblem in the local market. Going back to the first assigned error, we can not help but notice the manner the ascription was framed which carries with it the implied but unwarranted assumption of the existence of petitioners' right to relief. It must be emphasized that this aspect of exclusive dominion to the trademarks, together with the corollary allegation of irreparable injury, has yet to be established by petitioners by the requisite quantum of evidence in civil cases. It cannot be denied that our reluctance to issue a writ of preliminary injunction is due to judicial deference to the lower courts, involved as there is mere interlocutory order (Villarosa vs. Teodoro, Sr., 100 Phil. 25 [1956]). In point of adjective law, the petition has its roots on a remedial measure which is but ancillary to the main action for infringement still pending factual determination before the court of origin. It is virtually needless to stress the obvious reality that critical facts in an infringement case are not before us more so when even Justice Feliciano's opinion observes that "the evidence is scanty" and that petitioners "have yet to submit copies or photographs of their registered marks as used in cigarettes" while private respondent has not, for its part, "submitted the actual labels or packaging materials used in selling its "Mark" cigarettes." Petitioners therefore, may not be permitted to presume a given state of facts on their so called right to the trademarks which could be subjected to irreparable injury and in the process, suggest the fact of infringement. Such a ploy would practically place the cart ahead of the horse. To our mind, what appears to be the insurmountable barrier to petitioners' portrayal of whimsical exercise of discretion by the Court of Appeals is the well-taken remark of said court that: The petitioner[s] will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the filing of the counterbond will amply answer for such damages. (p. 54. Rollo in G.R. No. 91332.) More telling are the allegations of petitioners in their complaint (p. 319, Rollo G.R. No. 91332) as well as in the very petition filed with this Court (p. 2, Rollo in G.R. No. 91332) indicating that they are not doing business in the Philippines, for these frank representations are inconsistent and incongruent with any pretense of a right which can breached (Article 1431, New Civil Code; Section 4, Rule 129; Section 3, Rule 58, Revised Rules of Court). Indeed, to be entitled to an injunctive writ, petitioner must show that there
exists a right to be protected and that the facts against which injunction is directed are violative of said right (Searth Commodities Corporation vs. Court of Appeals, 207 SCRA 622 [1992]). It may be added in this connection that albeit petitioners are holders of certificate of registration in the Philippines of their symbols as admitted by private respondent, the fact of exclusive ownership cannot be made to rest solely on these documents since dominion over trademarks is not acquired by the mere fact of registration alone and does not perfect a trademark right (Unno Commercial Enterprises, Inc. vs. General Milling Corporation, 120 SCRA 804 [1983]). Even if we disregard the candid statements of petitioners anent the absence of business activity here and rely on the remaining statements of the complaint below, still, when these averments are juxtaposed with the denials and propositions of the answer submitted by private respondent, the supposed right of petitioners to the symbol have thereby been controverted. This is not to say, however, that the manner the complaint was traversed by the answer is sufficient to tilt the scales of justice in favor of private respondent. Far from it. What we are simply conveying is another basic tenet in remedial law that before injunctive relief may properly issue, complainant's right or title must be undisputed and demonstrated on the strength of one's own title to such a degree as to unquestionably exclude dark clouds of doubt, rather than on the weakness of the adversary's evidence, inasmuch as the possibility of irreparable damage, without prior proof of transgression of an actual existing right, is no ground for injunction being mere damnum absque injuria (Talisay-Silay Milling Co., Inc. vs. CFI of Negros Occidental, 42 SCRA 577 [1971]; Francisco, Rules of Court, Second ed., 1985, p. 225; 3 Martin, Rules of Court, 1986 ed., p. 82). On the economic repercussion of this case, we are extremely bothered by the thought of having to participate in throwing into the streets Filipino workers engaged in the manufacture and sale of private respondent's "MARK" cigarettes who might be retrenched and forced to join the ranks of the many unemployed and unproductive as a result of the issuance of a simple writ of preliminary injunction and this, during the pendency of the case before the trial court, not to mention the diminution of tax revenues represented to be close to a quarter million pesos annually. On the other hand, if the status quo is maintained, there will be no damage that would be suffered by petitioners inasmuch as they are not doing business in the Philippines. With reference to the second and third issues raised by petitioners on the lifting of the writ of preliminary injunction, it cannot be gainsaid that respondent court acted well within its prerogatives under Section 6, Rule 58 of the Revised Rules of Court: Sec. 6. Grounds for objection to, or for motion of dissolution of injunction. The injunction may be refused or, if granted ex parte, may be dissolved, upon the insufficiency of the complaint as shown by the complaint itself, with or without notice to the adverse party. It may also be refused or dissolved on other grounds upon affidavits on the part of the defendants which may be opposed by the plaintiff also by affidavits. It may further be refused or, if granted, may be dissolved, if it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof, as the case may be, would cause great damage to the defendant while the plaintiff can be fully compensated for such damages as he may suffer, and the defendant files a bond in an amount fixed by the judge conditioned that he will pay all damages which the plaintiff may suffer by the refusal or the dissolution of the injunction. If it appears that the extent of the preliminary injunction granted is too great, it must be modified. Under the foregoing rule, injunction may be refused, or, if granted, may be dissolved, on the following instances: (1) If there is insufficiency of the complaint as shown by the allegations therein. Refusal or dissolution may be granted in this case with or without notice to the adverse party. (2) If it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof would cause great damage to the defendant, while the plaintiff can be fully compensated for such damages as he may suffer. The defendant, in this case, must file a bond in an amount fixed by the judge conditioned that he will pay all damages which plaintiff may suffer by the refusal or the dissolution of the injunction.
(3) On the other grounds upon affidavits on the part of the defendant which may be opposed by the plaintiff also affidavits. Modification of the injunction may also be ordered by the court if it appears that the extent of the preliminary injunction granted is too great. (3 Martin, Rules of Court, 1986 ed., p. 99; Francisco,supra, at p. 268.) In view of the explicit representation of petitioners in the complaint that they are not engaged in business in the Philippines, it inevitably follows that no conceivable damage can be suffered by them not to mention the foremost consideration heretofore discussed on the absence of their "right" to be protected. At any rate, and assuming in gratia argumenti that respondent court erroneously lifted the writ it previously issued, the same may be cured by appeal and not in the form of a petition for certiorari (Clark vs. Philippine Ready Mix Concrete Co., 88 Phil. 460 [1951]). Verily, and mindful of the rule that a writ of preliminary injunction is an interlocutory order which is always under the control of the court before final judgment, petitioners' criticism must fall flat on the ground, so to speak, more so when extinction of the previously issued writ can even be made without previous notice to the adverse party and without a hearing (Caluya vs. Ramos, 79 Phil. 640 [1974]; 3 Moran, Rules of Court, 1970 ed., p. 81). WHEREFORE, the petition is hereby DISMISSED and the Resolutions of the Court of Appeals dated September 14, 1989 and November 29, 1989 are hereby AFFIRMED. SO ORDERED.
CASE 4
U.S. Supreme Court THE PAQUETE HABANA, 175 U.S. 677 (1900) 175 U.S. 677 THE PAQUETE HABANA. THE LOLA. Nos. 395, 396. Argued November 7, 8, 1899. 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 illrewarded 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 coastfishing 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 vessels, yet the allied squadrons swept the Sea transportation, and the English admiral in the Gulf vessels, not of sufficient value to be detained as empty at anchor, and not trafficking.' in council, in terms, either exempted or included fishing of Azof of all craft capable of furnishing the means of of Finland directed the destruction of all Russian coasting prizes, except 'boats or small craft which may be found
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.
35
CASE 5
U.S. Supreme Court The Scotia, 81 U.S. 14 Wall. 170 170 (1871) The Scotia 81 U.S. 170 APPEAL FROM THE CIRCUIT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus 1. Although it is the clear duty of an ocean steamer sailing at night to keep out of the way of a sailing vessel, yet if the course of the sailing vessel, when first seen, is such that, compared with her own, no collision is probable, the steamer is not bound to change, her course. She need but watch and see that the courses of the two vessels are preserved. It is only when the sailing vessel does change her course, so its to render a collision possible, that the steamer must change hers also, and if she then makes the proper maneuvers to take herself from the sailing vessel, and when collision becomes more probable slows, stops, and backs, all as the best judgment that can be formed in the emergency suggests, she is not liable for the collision. 2. The statutes of the United States and the orders in council of Great Britain having each prescribed the sort of lights which, on the one hand, their steamers are to carry at night, and the different sort which, on the other, their sailing vessels are to carry, and both nations adopting in this form the same distinction in the sorts of lights for the two sorts of vessels respectively, the Court declares that where a British steamer and an American sailing vessel are navigating at night in the known path of vessels navigating between the United States and Great Britain, so that there is a reasonable probability that vessels in that path would be either American or British, a steamer may, in the absence of knowledge, act upon the probability that a vessel whose light she sees while she cannot distinguish at all the vessel herself, is such a vessel as her light indicates, and apply the rule of navigation common to the two countries accordingly. 3. Under the existing statutory regulations of the United States and Great Britain (stated more fully infra, pp. 81 U. S. 171-172), both of which on the one hand require sailing vessels to carry colored lights and not to carry a white one, and both of which, on another, require steamers to carry a white light at their mastheads -- when an American sailing vessel carries in mid-ocean at night a white light hung at her bow, fastened low Page 81 U. S. 171 down, and carries no colored lights anywhere, a British steamer, not able to discover what she really is, may be excused for mistaking her for a steamer, and a steamer at a distance instead of near at hand.
4. Semble that the navigation laws of the United States requiring different sorts of vessels to carry different sorts of lights, bind American vessels on the high seas as well as in American waters, and that the people of other nations navigating the high seas may properly sue our citizens in our courts for injuries occurring through the disregard of them. 5. The rules of navigation established in the British orders in council, of January 9, 1863 (prescribing the sorts of lights to be used on British vessels), and in our act of Congress of 1861, having, before the close of the year 1864, been accepted as obligatory by more than thirty of the principal commercial states of the world, including almost till which have any shipping on the Atlantic Ocean, were in April, 1867, to be regarded, so far as relates to the vessels of these states, as laws of the sea. And of the historical fact that by common consent of mankind, they have been acquiesced in as of general obligation, courts may take judicial notice. 6. Those rules having prescribed that sailing vessels should not carry a white light, and that steamers should carry one at their masthead, a sailing vessel which carried a white light low down, so that she, looked like a steamer yet at a distance, was held to be without remedy where she had collided with a steamer which mistook her for another steamer and maneuvered accordingly. Appeal from the circuit court for the Southern District of New York in a case of collision between the American ship Berkshire and the British steamer Scotia, by which the ship was sunk and totally lost. On the 9th of January, 1863, a British order in council, authorized by virtue of the Merchant Shipping Amendment Act of July 29, 1862, 25 and 26 Victoria, made a body of "Regulations for preventing collisions at sea." Among these were "Rules concerning lights," and "Steering and sailing rules." In the first class were these: "LIGHTS FOR STEAMSHIPS" "ART. 3. Sea-going steamships when under way shall carry --" "(a) At the foremast head, a bright white light . . . of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles." "(b) On the starboard side, a green light &c., visible on a dark Page 81 U. S. 172 night, with a clear atmosphere, at a distance of at least two miles." "(c) On the port side, a red light &c., visible on a dark night, with a clear atmosphere, at a distance of at least two miles." "(d) The said green and red side lights shall be fitted with inboard screens, projecting at least three feet forward from the light so as to prevent these lights being seen across the bow." "LIGHTS FOR SAILING SHIPS" "ART. 6. Sailing vessels under way . . . shall carry the same lights as steamships under way, with the exception of the white masthead lights, which they shall never carry." In the steering and sailing rules was this one: "SAILING SHIP AND SHIP UNDER STEAM" "If two ships, one of which is a sailing ship and the other a steamship are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship." All these regulations, as originally promulgated by Great Britain, were made applicable to all ships, whatever their nationality, within the limits of British jurisdiction, and to British and French ships whether within British jurisdiction or not. The Merchant Shipping Amendment Act, in virtue of which these regulations were passed, provided also that whenever it should be made to appear to the British government that the government of any foreign country was willing that these regulations should apply to the ships of such country, when beyond the limits of British jurisdiction, Her Britannic Majesty might, by order in council, direct that such regulations should apply to the ships of such foreign country whether within British jurisdiction or not.
37
On the 29th April, 1864, [Footnote 1] the Congress of the United States passed its "act fixing certain rules and regulations for preventing collisions on the water," and these rules as respects seagoing vessels being, to all intents, identical with those above quoted from the British act, the British government Page 81 U. S. 173 regarded the act of Congress as an expression by our government, that it was willing that the British regulations should apply to our ships when beyond the limits of British jurisdiction. The British government accordingly, by order in council, directed that the regulations should apply to all seagoing vessels of the United States, whether within British jurisdiction or not. The governments of various other countries soon also manifested their willingness that the British regulations should apply to their ships respectively when beyond the limits of British jurisdiction, and orders in council accordingly directed that such regulations should apply to the ships of such countries respectively, whether within British jurisdiction or not. The countries referred to were Austria, the Argentine Republic, Belgium, Brazil, Bremen, Chili, Denmark proper, the Republic of the Equator, France, Greece, Hamburg, Hanover, the Hawaiian Islands, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco, the Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, the Roman States, Russia, Schleswig, Spain, Sweden, Turkey, Uruguay. These orders in council were published at various dates, from January 13, 1863, to February 6, 1866. All countries named except Denmark, Greece, the Hawaiian Islands, Schleswig, and the United States adopted the regulations in 1863. With these various statutes and orders in existence, the Scotia, a British steamer of the Cunard line, steering west by north one-half north, was sailing about midnight on the 8th of April, 1867, near mid-ocean, from Liverpool towards New York. Her lookouts were properly set, and her lights rightly stationed -- that is to say, a white light was at her masthead, a green light on her starboard or right side, and a red light on her port or left side, all burning brightly. Sailing at the same hour, equally about mid-ocean, the Berkshire, a sailing ship belonging to the American marine, was on her voyage from New Orleans to Havre, and with a wind free, blowing from about southsouthwest, was pursuing a course southeast by east one-half east, as indicated by the Page 81 U. S. 174 following diagram. The courses of the two vessels thus intersected at an angle of exactly one point. image:a The Berkshire had no colored lights anywhere, nor any light but a white light, and this was at her bow, fastened to her anchor stock and raised about four feet above her deck. Of course, if the Scotia should mistake this light for a light fastened on themasthead of the Berkshire, she would infer from its apparent proximity to the water that the Berkshire was far off. The Scotia was first seen from the Berkshire bearing one point or so off the ship's port bow, at a distance apparently of five or six miles. Then the steamer's white masthead light only was seen. Immediately on her sighting the steamer, which was at most from fifteen to twenty minutes before the collision, her mate gave an order to luff, and she did luff, so as to head more into the wind. The effect of this was to make her go further to the south and thus diverge farther from the course of the steamer. She continued in this new direction ten or fifteen minutes, when, moving at the rate at which it was proved that the vessels were moving, she could not have been more than one or two miles from theScotia. Her helm was then suddenly put to starboard, then steadied for a brief period, then put hard a-starboard and kept there, thus pointing her directly across the bow of the approaching vessel. By keeping her helm hard a-starboard, she was made to Page 81 U. S. 175 change her course constantly. The diagram on the preceding page may perhaps assist the reader's comprehension. The dotted lines represent the Berkshire's movements. Before she bore away, the red light of the steamer was seen by her wheelsman, and probably by her lookout, if not indeed by her master. The Scotia saw the white light on the Berkshire in due time, and first saw it off her port bow, from one to two points. Seeing a white light, the deck officer of the Scotia took the vessel for a steamer, and from the
proximity of the light to the water inferred that she was far off, coming in fact just above the horizon, and accounting for the nonappearance of the usual colored lights because he supposed that they had not come up to view. [Footnote 2] He thus not only supposed the Berkshire to be a steamer, but judged that the supposed steamer was at a much greater distance than it was in fact. As already signified, the location of the light warranted the supposition, and its color gave no indication that it was on a sailing vessel. After its discovery, the ship's light opened on the steamer's port bow; how much it opened was a matter somewhat agitated by the witnesses and the counsel, though this Court considered that matter immaterial, because if it receded at all it indicated that there was then no danger of collision without some change of course, and consequently no necessity to take measures to avoid one. The weight of the evidence was that the ship had not then turned her course northward, but if she had, it was still proved that her light opened on the Scotia's port side, after it was first seen, and before the steamer's course was changed. Soon after, and because of the ship's change of course, her light began to close in on the steamer's bow, and then for the first time was there any apparent danger of collision. Then the Scotia's helm was immediately ported, then hard ported, and observing that the ship's light still closed in, orders were given, in quick succession, to halfspeed, slow, reverse, and back, but notwithstanding these orders, which were all promptly obeyed, the vessels came together in the position indicated on the diagram, and the Berkshire with her cargo went right down in mid-ocean. The owners of the Berkshire, one Sears and others, now for themselves and the owners of the cargo, filed their libel in the district court at New York to recover the loss sustained by the collision. The libel charged, of course, that the collision occurred through the fault of the Scotia. The district court decreed for the respondents. The view of that court was that courts of admiralty were now required to take judicial notice of the existence of the British orders in council, and of the fact that so numerous maritime states had accepted them; that so general and adoption by such states of one rule had made a rule and usage of the sea; that by this rule and usage -- in other words, by the law of the sea as it existed at the time of the collision -the Berkshirewas bound to exhibit colored lights, and colored lights alone; and that as she had not done so, she had no remedy. The decree therefore was, that the libel be dismissed, and the circuit court affirming this decree, the case was now here for review. MR. JUSTICE STRONG delivered the opinion of the Court. It is plain that had the ship continued on her course after she first saw the steamer's bright light, there could have been no collision. And still more, had she not afterwards and when near the steamer put her helm to starboard, she would have been out of all danger. Even when she first sighted the Scotia, she had passed the point at which her course and that of the steamer intersected. This is a necessary sequence from the facts that the angle between the courses of the two vessels was exactly one point, and that the light of the steamer, when first seen, bore from a point to a point and a half off her port bow. Besides, when the Page 81 U. S. 181 ship was first seen from the steamer, her bearing, it is clearly proved, was from a point to two points off the steamer's port bow. Such a bearing was impossible unless the ship had already crossed the line of the Scotia's course, and passed the point at which the vessels could have come together unless one or the other had taken a new direction. They must have passed with a wide berth between had the ship made no change of her helm, or had she kept her luff in obedience to the mate's order. But by putting her helm hard a-starboard, she was made to change her course constantly till the collision occurred. Even before she bore away, the red light of the steamer was seen by her wheelsman, and probably by her lookout, if not indeed by her master, doubtless in time even then to escape harm. Had it not been then for the unfortunate order of the master to starboard her helm, and bear away before the wind, this case could not have arisen. It must, however, be conceded that this of itself is not sufficient to excuse the Scotia if she failed to adopt such precautions as were in her power and were necessary to avoid a collision. Meeting a sailing vessel proceeding in such a direction as to involve risk, it was her duty to keep out of the way, and nothing but inevitable accident or the conduct and movements of the ship can repel the presumption that she was negligent arising from the fact of collision. But this duty of the steamer implies a correlative obligation of the ship to keep her course and to do nothing to mislead. Nor is a steamer called to act except when she is approaching a vessel in such a direction as to involve risk of collision. She is required to take no precautions when there is no apparent danger. Was, then, the Scotia in fault? If she was, the fault must have been either that she did not change her helm sooner, or that she ported, or that she was unjustifiably late in slackening her speed and reversing her
engines. No other fault is imputed to her. We have already said that she was not bound to take any steps to avoid a collision until danger of collision should have been apprehended, and we think Page 81 U. S. 182 there was no reason for apprehension until the ship's light was seen closing in upon her. Assuming for the present that she had no right to conclude that the light was on a steamer and to maneuver accordingly, and therefore that it was her duty to keep out of the way, it is still true that all her duty at first was to watch the light in order to discover certainly what it was, and to observe its course and notice whether it crossed her own course. It is not the law that a steamer must change her course, or must slacken her speed the instant she comes in sight of another vessel's light, no matter in what direction it may be. With such a rule, navigation cannot be conducted. Nor is such a rule necessary to safety. It is therefore no fault that, seeing the ship's light off her port bow, apparently at a distance of several miles, the Scotia continued on her course without slackening her speed until that light began to close in upon her. Then she ported her helm, the obvious effect of which was to take her farther away from the approaching vessel. Then she slowed her engines, stopped and backed, until, at the time when the collision took place, she had almost, if not entirely, ceased to move through the water. Had she starboarded instead of porting, the movement would have turned her toward the Berkshire, and apparently would have rendered collision more probable. Of the propriety of her slowing her engines, stopping, and backing there can be no doubt. If now it be considered that she had been misled by the nature and location of the light on the Berkshire, which indicated that the ship was at a much greater distance than she was in fact; that consequently the peril came upon her suddenly, leaving short time for deliberation, and if it be considered that she had been brought into this extremity first by the ill-judged and causeless change of the ship's course, and second by the persistent effort of the ship's master to cross her bow after he had seen her red light and discovered certainly that she was a steamer, it would be unjust to impute to her as a fault that she did what she ought to have done had the approaching vessel been in fact a steamer, and that which at all events seemed Page 81 U. S. 183 most likely to avoid a collision. Certainly it was not her fault that she did not know theBerkshire to be a sailing vessel. And in all human probability the measures taken by her to avoid a collision would have been successful if they had not been counteracted by the constant veering of the Berkshire, with her helm kept hard a-starboard. Independently, therefore, of any statutory regulations, and looking to the facts with reference to the old maritime law alone, as it was before any modern legislation, we think the Scotia was not chargeable with fault. But we think the Scotia had a right to conclude that the Berkshire was a steamer rather than a sailing vessel, and that, when first seen, she was at the distance of four or five miles, instead of being near at hand. Such was the information given her by the ship's white light, fastened as it was to the anchor stock on deck, and no watchfulness could have enabled her to detect the misrepresentation until it was too late. Both vessels were moving under similar regulations. The Berkshire was an American ship, belonging to the mercantile marine, and she was required by the Act of Congress of April 29, 1864, to carry green and red lights, which she did not carry, and she was forbidden to carry the white light, which she did carry. By exhibiting a white light, she therefore held herself forth as a steamer, and by exhibiting it from her deck, instead of from her masthead, she misrepresented her distance from approaching vessels. It is clear theScotia would have been justified in taking her for a steamer had she been known to be an American ship. But it is insisted on behalf of the appellants that inasmuch as the act of Congress is a mere municipal regulation, obligatory as a statute only upon American vessels, the Scotia, a British steamer, cannot avail herself of it to fault an American ship, or to justify her own conduct. Waiving for the moment consideration of the question whether this position is well taken, it is yet true that the Berkshire was under the statute, though on the high seas, and that the Scotia was subject to and sailing under similar regulations (the British orders in council of January 9, 1863); that the collision Page 81 U. S. 184 happened in the known path of vessels navigating between the United States and Great Britain, and that there was a reasonable probability that vessels in that path would be either American or British, and would therefore carry the lights prescribed by the laws of those countries. The steamer might well, therefore, in the absence of knowledge, act upon that probability, and in the emergency into which she had been brought, might, without fault, apply the rule of navigation common to the ships of both countries.
But, to return to the question, we think that independently of the act of Congress, considered as a mere municipal regulation, the Berkshire was bound to show a green light on her starboard, and a red light on her port side, without exhibiting any white light, and that the Scotia may set up in defense her failure to carry such green and red lights, as also the fact that she did improperly show a white light. And we think that her breach of duty in these respects misled the officers of the steamer and caused them to act on the assumption that she was a steamer, and therefore under obligation to pass on the port side. If so, the collision was solely due to the fault of the ship. We rest this conclusion not solely or mainly upon the ground that the navigation laws of the United States control the conduct of foreign vessels, or that they have, as such, any extraterritorial authority, except over American shipping. Doubtless they are municipal regulations, yet binding upon American vessels, either in American waters or on the high seas. Nor can the British orders in council control our vessels, though they may their own. We concede also that whether an act is tortious or not must generally be determined by the laws of the place where the act was committed. But every American vessel outside of the jurisdiction of a foreign power is, for some purposes at least, a part of the American territory, and our laws are the rules for its guidance. Equally true is it that a British vessel is controlled by British rules of navigation. If it were that the rules of the two nations conflicted, which would the British vessel and which would the American be bound to obey? Undoubtedly the rule Page 81 U. S. 185 prescribed by the government to which it belonged. And if, in consequence, collision should ensue between an American and a British vessel, shall the latter be condemned in an American court of admiralty? If so, then our law is given an extraterritorial effect, and is held obligatory upon British ships not within our jurisdiction. Or might an American vessel be faulted in a British court of admiralty for having done what our statute required? Then Britain is truly not only mistress of the seas, but of all who traverse the great waters. It is difficult to see how a ship can be condemned for doing that which by the laws of its origin or ownership it was required to do, or how, on the other hand, it can secure an advantage by violation of those laws unless it is beyond their domain when upon the high seas. But our navigation laws were intended to secure the safety of life and property, as well as the convenience of commerce. They are not in terms confined to the regulation of shipping in our own waters. They attempt to govern a business that is conducted on every sea. If they do not reach the conduct of mariners in its relation to the ships and people of other nations, they are at least designed for the security of the lives and property of our own people. For that purpose they are as useful and as necessary on the ocean as they are upon inland waters. How, then, can our courts ignore them in any case? Why should it ever be held that what is a wrong when done to an American citizen is right if the injured party be an Englishman? But we need not affirm that the Berkshire was under obligation to show colored lights or to refrain from showing a white light merely because of an act of Congress, nor need we affirm that the Scotia can protect herself by setting up the ship's violation of that act. Nor is it necessary to our conclusions that the British rules in regard to lights are the same as ours, though that is an important consideration. We are not unmindful that the English courts of admiralty have ruled that a foreigner cannot set up against a British vessel with which his ship has collided that the British vessel violated the British mercantile marine act on the Page 81 U. S. 186 high seas, for the reason, as given, that the foreigner was not bound by it, inasmuch as it is beyond the power of Parliament to make rules applicable to foreign vessels outside of British waters. This decision was made in 1856, in the case of The Zollverein.[Footnote 3] A similar rule was asserted also in The Dumfries, [Footnote 4] decided the same year; in The Saxonia, [Footnote 5] decided in the High Court of Admiralty in 1858, and by the Privy Council in 1862. The same doctrine was laid down in 1858 in the case of Cope v. Doherty, [Footnote 6] and in The Chancellor, [Footnote 7] decided in 1861. All these decisions were made before the passage of the Merchant Shipping Amendment Act, which took effect on the 1st day of June, 1863. By that act, the same rules in regard to lights and movements of steamers and sailing vessels on the high seas were adopted as those which were prescribed by the act of Congress of 1864, and by the same act it was provided that the government of any foreign state might assent to the regulations, and consent to their application to the ships of such state, and that thereupon the Queen, by order in council, might direct that such regulations should apply to ships of such foreign state when within or without British jurisdiction. The act further provided that whenever an order in council should be issued applying any regulation made under it to the ships of any foreign country, such ships should in all cases arising in British courts be deemed to be subject to such regulations, and for the purpose thereof be treated as British ships. Historically we know that before the close of the year 1864, nearly all the commercial nations of the world had adopted the
same regulations respecting lights, and that they were recognized as having adopted them. These nations were the following: Austria, the Argentine Republic, Belgium, Brazil, Bremen, Chili, Denmark, Ecuador, France, Great Britain, Greece, Hamburg, Hanover, Hawaii, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco, Page 81 U. S. 187 Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, Roman States, Russia, Schleswig, Spain, Sweden, Turkey, United States, and Uruguay -- almost every commercial nation in existence. [Footnote 8] Had this libel then been filed in a British court, the Berkshire must have been found solely in fault, because her white light and her neglect to exhibit colored lights signaled to the Scotia that she was a steamer, and directed the Scotia to do exactly what she did. It must be conceded, however, that the rights and merits of a case may be governed by a different law from that which controls a court in which a remedy may be sought. The question still remains what was the law of the place where the collision occurred and at the time when it occurred. Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial nations of the world adopted the regulations of 1863 and 1864, or the law changed after those regulations were adopted? Undoubtedly no single nation can change the law of the sea. That 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. The Rhodian law is supposed to have been the earliest system of marine rules. Page 81 U. S. 188 It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan table, of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, express or understood, of maritime nations? When, therefore, we find such rules of navigation as are mentioned in the British orders in council of January 9, 1863, and in our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them as in part at least, and so far as relates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libellants complain took place. 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 must indeed by proved as facts, but it is not so with the law of nations. The consequences of this ruling are decisive of the case before us. The violation of maritime law by the Berkshire in carrying a white light (to say nothing of her neglect to carry colored lights) and her carrying it on deck instead of at her masthead were false representations to the Scotia. They proclaimed that the Berkshire was a steamer, and Page 81 U. S. 189 such she was manifestly taken to be. The movements of the Scotia were therefore entirely proper, and she was without fault. Decree affirmed with costs.
CASE 6: Great Britain Eastern Extension et. al vs USA (see separate PDF File)
CASE 7
U.S. Supreme Court Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) Banco Nacional de Cuba v. Sabbatino No. 16 Argued October 22-23, 1963 Decided March 23, 1964 376 U.S. 398 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Respondent American commodity broker contracted with a Cuban corporation largely owned by United States residents to buy Cuban sugar. Thereafter, subsequent to the United States Government's reduction of the Cuban sugar quota, the Cuban Government expropriated the corporation's property and rights. To secure consent for shipment of the sugar, the broker, by a new contract, agreed to make payment for the sugar to a Cuban instrumentality which thereafter assigned the bills of lading to petitioner, another Cuban instrumentality, and petitioner instructed its agent in New York to deliver to the broker the bills of lading and sight draft in return for payment. The broker accepted the documents, received payment for the sugar from its customer, but refused to deliver the proceeds to petitioner's agent. Petitioner brought this action for conversion of the bills of lading to recover payment from the broker and to enjoin from exercising dominion over the proceeds a receiver who had been appointed by a state court to protect the New York assets of the corporation. The District Court concluded that the corporation's property interest in the sugar was subject to Cuba's territorial jurisdiction, and acknowledged the "act of state" doctrine, which precludes judicial inquiry in this country respecting the public acts of a recognized foreign sovereign power committed within its own territory. The court nevertheless rendered summary judgment against the petitioner, ruling that the act of state doctrine was inapplicable when the questioned act violated international law, which the District Court found had been the case here. The Court of Appeals affirmed, additionally relying upon two State Department letters which it took as evidencing willingness by the Executive Branch to a judicial testing of the validity of the expropriation. Held: 1. The privilege of resorting to United States courts being available to a recognized sovereign power not at war with the United States, and not being dependent upon reciprocity of treatment, petitioner has access to the federal courts. Pp. 376 U. S. 408408-412. Page 376 U. S. 399 2. The propriety of the taking was not governed by New York law, since the sugar itself was expropriated. P. 376 U. S. 413. 3. This suit is not uncognizable in American courts as being one to enforce the "public" acts of a foreign state, since the expropriation law here involved had been fully executed within Cuba. Pp. 376 U. S. 413-415. 4. The Government's uncontested assertion that the two State Department letters expressed only the then wish of the Department to avoid commenting on the litigation, obviates the need for this Court to pass upon the "Bernstein exception" to the act of state doctrine, under which a court may respond to a representation by the Executive Branch that, in particular circumstances, it does not oppose judicial consideration of the foreign state's act. Pp. 376 U. S. 418-420.
5. The scope of the act of state doctrine must be determined according to federal law. Pp. 376 U. S. 421-427. 6. The act of state doctrine applies and is desirable with regard to a foreign expropriation even though the expropriation allegedly violates customary international law. Pp. 376 U. S. 427-437. (a) Disagreement exists as to relevant standards of international law concerning a State's responsibility toward aliens. P. 376 U. S. 430. (b) The political branch can more effectively deal with expropriation than can the Judicial Branch. Pp. 376 U. S. 431-432. (c) Conflicts between the Judicial and Executive Branches could hardly be avoided were the judiciary to adjudicate with respect to the validity of expropriations. Even if the combination alleged in this case of retaliation, discrimination, and inadequate compensation made the expropriation here violative of international law, a judicial determination to that effect would still be unwise as involving potential conflict with or embarrassment to the Executive Branch in later litigation. Pp. 376 U. S. 432-433. 7. A foreign country's status as a plaintiff does not make the act of state doctrine inapplicable. Pp. 376 U. S. 437-438. 307 F. 2d 845 reversed and remanded. Page 376 U. S. 400 MR. JUSTICE HARLAN delivered the opinion of the Court. The question which brought this case here, and is now found to be the dispositive issue, is whether the socalled act of state doctrine serves to sustain petitioner's claims in this litigation. Such claims are ultimately founded on a decree of the Government of Cuba expropriating certain Page 376 U. S. 401 property, the right to the proceeds of which is here in controversy. The act of state doctrine in its traditional formulation precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory. I In February and July of 1960, respondent Farr, Whitlock & Co., an American commodity broker, contracted to purchase Cuban sugar, free alongside the steamer, from a wholly owned subsidiary of Compania Azucarera Vertientes-Camaguey de Cuba (C.A.V.), a corporation organized under Cuban law whose capital stock was owned principally by United States residents. Farr, Whitlock agreed to pay for the sugar in New York upon presentation of the shipping documents and a sight draft. On July 6, 1960, the Congress of the United States amended the Sugar Act of 1948 to permit a presidentially directed reduction of the sugar quota for Cuba. [Footnote 1] On the same day, President Eisenhower exercised the granted power. [Footnote 2] The day of the congressional enactment, the Cuban Council of Ministers adopted "Law No. 851," which characterized this reduction in the Cuban sugar quota as an act of "aggression, for political purposes" on the part of the United States, justifying the taking of countermeasures by Cuba. The law gave the Cuban President and Prime Minister discretionary power to nationalize by forced expropriation property or enterprises in which American nationals had an interest. [Footnote 3] Although Page 376 U. S. 402 a system of compensation was formally provided, the possibility of payment under it may well be deemed illusory. [Footnote 4] Our State Department has described the Cuban law as "manifestly in violation of those principles Page 376 U. S. 403 of international law which have long been accepted by the free countries of the West. It is in its essence discriminatory, arbitrary and confiscatory. [Footnote 5]" Between August 6 and August 9, 1960, the sugar covered by the contract between Farr, Whitlock and C.A.V. [Footnote 6] was loaded, destined for Morocco, onto the S.S.Hornfels, which was standing offshore at the Cuban port of Jucaro (Santa Maria). On the day loading commenced, the Cuban President and Prime Minister,
acting pursuant to Law No. 851, issued Executive Power Resolution No. 1. It provided for the compulsory expropriation of all property and enterprises, and of rights and interests arising therefrom, of certain listed companies, including C.A.V., wholly or principally owned by American nationals. The preamble reiterated the alleged injustice of the American reduction of the Cuban sugar quota and emphasized the importance of Cuba's serving as an example for other countries to follow "in their struggle to free themselves from the brutal claws of Imperialism." [Footnote 7] In consequence Page 376 U. S. 404 of the resolution, the consent of the Cuban Government was necessary before a ship carrying sugar of a named company could leave Cuban waters. In order to obtain this consent, Farr, Whitlock, on August 11, entered into contracts, identical to those it had made with C.A.V., Page 376 U. S. 405 with the Banco Para el Comercio Exterior de Cuba, an instrumentality of the Cuban Government. The S.S. Hornfels sailed for Morocco on August 12. Banco Exterior assigned the bills of lading to petitioner, also an instrumentality of the Cuban Government, which instructed its agent in New York, Societe Generale, to deliver the bills and a sight draft in the sum of $175,250.69 to Farr, Whitlock in return for payment. Societe Generale's initial tender of the documents was refused by Farr, Whitlock, which on the same day was notified of C.A.V.'s claim that, as rightful owner of the sugar, it was entitled to the proceeds. In return for a promise not to turn the funds over to petitioner or its agent, C.A.V. agreed to indemnify Farr, Whitlock for any loss. [Footnote 8] Farr, Whitlock subsequently accepted the shipping documents, negotiated the bills of lading to its customer, and Page 376 U. S. 406 received payment for the sugar. It refused, however, to hand over the proceeds to Societe Generale. Shortly thereafter, Farr, Whitlock was served with an order of the New York Supreme Court, which had appointed Sabbatino as Temporary Receiver of C.A.V.'s New York assets, enjoining it from taking any action in regard to the money claimed by C.A.V. that might result in its removal from the State. Following this, Farr, Whitlock, pursuant to court order, transferred the funds to Sabbatino, to abide the event of a judicial determination as to their ownership. Petitioner then instituted this action in the Federal District Court for the Southern District of New York. Alleging conversion of the bills of lading it sought to recover the proceeds thereof from Farr, Whitlock and to enjoin the receiver from exercising any dominion over such proceeds. Upon motions to dismiss and for summary judgment, the District Court, 193 F.Supp. 375, sustained federal in personam jurisdiction despite state control of the funds. It found that the sugar was located within Cuban territory at the time of expropriation, and determined that, under merchant law common to civilized countries, Farr, Whitlock could not have asserted ownership of the sugar against C.A.V. before making payment. It concluded that C.A.V. had a property interest in the sugar subject to the territorial jurisdiction of Cuba. The court then dealt with the question of Cuba's title to the sugar, on which rested petitioner's claim of conversion. While acknowledging the continuing vitality of the act of state doctrine, the court believed it inapplicable when the questioned foreign act is in violation of international law. Proceeding on the basis that a taking invalid under international law does not convey good title, the District Court found the Cuban expropriation decree to violate such law in three Page 376 U. S. 407 separate respects: it was motivated by a retaliatory, and not a public, purpose; it discriminated against American nationals; and it failed to provide adequate compensation. Summary judgment against petitioner was accordingly granted. The Court of Appeals, 307 F.2d 845, affirming the decision on similar grounds, relied on two letters (not before the District Court) written by State Department officers which it took as evidence that the Executive Branch had no objection to a judicial testing of the Cuban decree's validity. The court was unwilling to declare that any one of the infirmities found by the District Court rendered the taking invalid under international law, but was satisfied that, in combination, they had that effect. We granted certiorari because the issues involved bear importantly on the conduct of the country's foreign relations and, more particularly, on the proper role of the Judicial Branch in this sensitive area. 372 U.S. 905. For reasons to follow, we decide that the judgment below must be reversed.
Subsequent to the decision of the Court of Appeals, the C.A.V. receivership was terminated by the State Supreme Court; the funds in question were placed in escrow, pending the outcome of this suit. C.A.V. has moved in this Court to be substituted as a party in the place of Sabbatino. Although it is true that Sabbatino's defensive interest in this litigation has largely, if not entirely, reflected that of C.A.V., this is true also of Farr, Whitlock's position. There is no indication that Farr, Whitlock has not adequately represented C.A.V.'s interest or that it will not continue to do so. Moreover, insofar as disposition of the case here is concerned, C.A.V. has been permitted as amicus to brief and argue its position before this Court. In these circumstances, we are not persuaded that the admission of C.A.V. as a party is Page 376 U. S. 408 necessary at this stage to safeguard any claim either that it has already presented or that it may present in the future course of this litigation. Accordingly, we are constrained to deny C.A.V.'s motion to be admitted as a party, [Footnote 9] without prejudice however to the renewal of such a motion in the lower courts if it appears that C.A.V.'s interests are not adequately represented by Farr, Whitlock, and that the granting of such a motion will not disturb federal jurisdiction. Cf. 7 U. S. Curtiss, 3 Cranch 267; City of Indianapolis v. Chase Nat'l Bank, 314 U. S. 63, at 314 U. S. 69; Ex parte Edelstein, 30 F.2d 636, at 638. Before considering the holding below with respect to the act of state doctrine, we must deal with narrower grounds urged for dismissal of the action or for a judgment on the merits in favor of respondents. II It is first contended that this petitioner, an instrumentality of the Cuban Government, should be denied access to American courts because Cuba is an unfriendly power, and does not permit nationals of this country to obtain relief in its courts. Even though the respondents did not raise this point in the lower courts, we think it should be considered here. If the courts of this country should be closed to the government of a foreign state, the underlying reason is one of national policy transcending the interests of the parties to the action, and this Court should give effect to that policy sua sponte,even at this stage of the litigation. Under principles of comity governing this country's relations with other nations, sovereign states and allowed Page 376 U. S. 409 to sue in the courts of the United States, The Sapphire, 11 Wall. 164, 78 U. S. 167;Guaranty Trust Co. v. United States, 304 U. S. 126, 304 U. S. 134. This Court has called "comity" in the legal sense "neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other." Hilton v. Guyot, 159 U. S. 113, 159 U. S. 163-164. Although comity is often associated with the existence of friendly relations between states, e.g., 38 U. S. Earle, 13 Pet. 519, 38 U. S. 589;Russian Republic v. Cibrario, 235 N.Y. 255, 258, 139 N.E. 259, 260, prior to some recent lower court cases which have questioned the right of instrumentalities of the Cuban Government to sue in our courts, [Footnote 10] the privilege of suit has been denied only to governments at war with the United States, Ex parte Don Ascanio Colonna, 314 U. S. 510; see 7 of the Trading with the Enemy Act, 40 Stat. 416, 417, 50 U.S.C.App. 7; cf. 73 U. S. Abbott, 6 Wall. 532; Caperton v. Bowyer, 14 Wall. 216,81 U. S. 236, or to those not recognized by this country, The Penza, 277 F. 91;Russian Republic v. Cibrario, supra. [Footnote 11] Page 376 U. S. 410 Respondents, pointing to the severance of diplomatic relations, commercial embargo, and freezing of Cuban assets in this country, contend that relations between the United States and Cuba manifest such animosity that unfriendliness is clear, and that the courts should be closed to the Cuban Government. We do not agree. This Court would hardly be competent to undertake assessments of varying degrees of friendliness or its absence, and, lacking some definite touchstone for determination, we are constrained to consider any relationship, short of war, with a recognized sovereign power as embracing the privilege of resorting to United States courts. Although the severance of diplomatic relations is an overt act with objective significance in the dealings of sovereign states, we are unwilling to say that it should inevitably result in the withdrawal of the privilege of bringing suit. Severance may take place for any number of political reasons, its duration is unpredictable, and whatever expression of animosity it may imply does not approach that implicit in a declaration of war. It is perhaps true that nonrecognition of a government in certain circumstances may reflect no greater unfriendliness than the severance of diplomatic relations with a recognized government, but the refusal to recognize has a unique legal aspect. It signifies this country's unwillingness to acknowledge that the government in question speaks as the sovereign authority for the territory it purports to control, see Russian
Republic v. Cibrario, supra, 235 N.Y. at 260-263, 139 N.E. at 261-263. Political recognition is exclusively a function of the Executive. The possible incongruity of judicial "recognition," by permitting suit, of a government not recognized by the Executive is completely Page 376 U. S. 411 absent when merely diplomatic relations are broken. [Footnote 12] The view that the existing situation between the United States and Cuba should not lead to a denial of status to sue is buttressed by the circumstance that none of the acts of our Government has been aimed at closing the courts of this country to Cuba, and more particularly by the fact that the Government has come to the support of Cuba's "act of state" claim in this very litigation. Respondents further urge that reciprocity of treatment is an essential ingredient of comity generally, and, therefore, of the privilege of foreign states to bring suit here. Although Hilton v. Guyot, 159 U. S. 113, contains some broad language about the relationship of reciprocity to comity, the case in fact imposed a requirement of reciprocity only in regard to conclusiveness of judgments, and even then only in limited circumstances. Id. at 159 U. S. 170-171. In Direction der Disconto-Gesellschaft v. United States Steel Corp., 300 F. 741, 747 (D.C.S.D.N.Y.), Judge Learned Hand pointed out that the doctrine of reciprocity has apparently been confined to foreign judgments. Page 376 U. S. 412 There are good reasons for declining to extend the principle to the question of standing of sovereign states to sue. Whether a foreign sovereign will be permitted to sue involves a problem more sensitive politically than whether the judgments of its courts may be reexamined, and the possibility of embarrassment to the Executive Branch in handling foreign relations is substantially more acute. Reexamination of judgments, in principle, reduces, rather than enhances, the possibility of injustice's being done in a particular case; refusal to allow suit makes it impossible for a court to see that a particular dispute is fairly resolved. The freezing of Cuban assets exemplifies the capacity of the political branches to assure, through a variety of techniques (see infra,pp. 376 U. S. 431, 376 U. S. 435-436), that the national interest is protected against a country which is thought to be improperly denying the rights of United States citizens. Furthermore, the question whether a country gives res judicata effect to United States judgments presents a relatively simple inquiry. The precise status of the United States Government and its nationals before foreign courts is much more difficult to determine. To make such an investigation significant, a court would have to discover not only what is provided by the formal structure of the foreign judicial system, but also what the practical possibilities of fair treatment are. The courts, whose powers to further the national interest in foreign affairs are necessarily circumscribed as compared with those of the political branches, can best serve the rule of law by not excluding otherwise proper suitors because of deficiencies in their legal systems. We hold that this petitioner is not barred from access to the federal courts. [Footnote 13] Page 376 U. S. 413 III Respondents claimed in the lower courts that Cuba had expropriated merely contractual rights the situs of which was in New York, and that the propriety of the taking was, therefore, governed by New York law. The District Court rejected this contention on the basis of the right of ownership possessed by C.A.V. against Farr, Whitlock prior to payment for the sugar. That the sugar itself was expropriated, rather than a contractual claim, is further supported by Cuba's refusal to let the S.S. Hornfels sail until a new contract had been signed. Had the Cuban decree represented only an attempt to expropriate a contractual right of C.A.V., the forced delay of shipment and Farr, Whitlock's subsequent contract with petitioner's assignor would have been meaningless. [Footnote 14] Neither the District Court's finding concerning the location of the S.S. Hornfels nor its conclusion that Cuba had territorial jurisdiction to expropriate the sugar, acquiesced in by the Court of Appeals, is seriously challenged here. Respondents' limited view of the expropriation must be rejected. Respondents further contend that, if the expropriation was of the sugar itself, this suit then becomes one to enforce the public law of a foreign state, and, as such, is not cognizable in the courts of this country. They rely on the principle enunciated in federal and state cases that a Page 376 U. S. 414
court need not give effect to the penal or revenue laws of foreign countries or sister states. See, e.g., 23 U. S. 10 Wheat. 66, 23 U. S. 123; Wisconsin v. Pelican Ins. Co.,127 U. S. 265; Huntington v. Attrill, 146 U. S. 657 (all relating to penal laws); [Footnote 15] Moore v. Mitchell, 30 F.2d 600, aff'd on other grounds, 281 U. S. 281U.S. 18; City of Detroit v. Proctor, 44 Del. 193, 61 A.2d 412; City of Philadelphia v. Cohen, 11 N.Y.2d 401, 230 N.Y.S.2d 188, 184 N.E.2d 167 (all relating to revenue laws). The extent to which this doctrine may apply to other kinds of public laws, though perhaps still an open question, [Footnote 16] need not be decided in this case. For we have been referred to no authority which suggests that the doctrine reaches a public law which, as here, has been fully executed within the foreign state. Cuba's restraint of the S.S. Hornfels must be regarded for these purposes to have constituted an effective taking of the sugar, vesting in Cuba C.A.V.'s property right in it. Farr, Whitlock's Page 376 U. S. 415 contract with the Cuban bank, however compelled to sign Farr, Whitlock may have felt, represented indeed a recognition of Cuba's dominion over the property. In these circumstances the question whether the rights acquired by Cuba are enforceable in our courts depends not upon the doctrine here invoked, but upon the act of state doctrine discussed in the succeeding sections of this opinion. [Footnote 17] Page 376 U. S. 416 IV The classic American statement of the act of state doctrine, which appears to have taken root in England as early as 1674, Blad v. Bamfield, 3 Swans. 604, 36 Eng.Rep. 992, and began to emerge in the jurisprudence of this country in the late eighteenth and early nineteenth centuries, see e.g., 3 U. S. Hylton, 3 Dall. 199, 3 U. S. 230;Hudson v. Guestier, 4 Cranch 293, 8 U. S. 294; The Schooner Exchange v. M'Faddon, 7 Cranch 116, 11 U. S. 135-136; L'Invincible, 1 Wheat. 238, 14 U. S. 253; The Santissima Trinidad, 7 Wheat. 283, 20 U. S. 336, is found in Underhill v. Hernandez,168 U. S. 250, where Chief Justice Fuller said for a unanimous Court (p. 168 U. S. 252): "Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves." Following this precept, the Court in that case refused to inquire into acts of Hernandez, a revolutionary Venezuelan military commander whose government had been later recognized by the United States, which were made the basis of a damage action in this country by Underhill, an American citizen, who claimed that he had had unlawfully assaulted, coerced, and detained in Venezuela by Hernandez. None of this Court's subsequent cases in which the act of state doctrine was directly or peripherally involved manifest any retreat from Underhill. See American Banana Co. v. United Fruit Co., 213 U. S. 347; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304; Shapleigh v. Mier, 299 U.S. Page 376 U. S. 417 468; United States v. Belmont, 301 U. S. 324; United States v. Pink, 315 U. S. 203. On the contrary, in two of these cases, Oetjen and Ricaud, the doctrine as announced inUnderhill was reaffirmed in unequivocal terms. Oetjen involved a seizure of hides from a Mexican citizen as a military levy by General Villa, acting for the forces of General Carranza, whose government was recognized by this country subsequent to the trial but prior to decision by this Court. The hides were sold to a Texas corporation which shipped them to the United States and assigned them to defendant. As assignee of the original owner, plaintiff replevied the hides, claiming that they had been seized in violation of the Hague Conventions. In affirming a judgment for defendant, the Court suggested that the rules of the Conventions did not apply to civil war, and that, even if they did, the relevant seizure was not in violation of them. 246 U.S. at 246 U. S. 301-302. Nevertheless, it chose to rest its decision on other grounds. It described the designation of the sovereign as a political question to be determined by the Legislative and Executive Departments, rather than the Judicial Department, invoked the established rule that such recognition operates retroactively to validate past acts, and found the basic tenet of Underhill to be applicable to the case before it.
"The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for its rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by Page 376 U. S. 418 the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.'" Id. at 246 U. S. 303-304. In Ricaud, the facts were similar -- another general of the Carranza forces seized lead bullion as a military levy -- except that the property taken belonged to an American citizen. The Court found Underhill, American Banana, and Oetjen controlling. Commenting on the nature of the principle established by those cases, the opinion stated that the rule "does not deprive the courts of jurisdiction once acquired over a case. It requires only that when it is made to appear that the foreign government has acted in a given way on the subject matter of the litigation, the details of such action or the merit of the result cannot be questioned, but must be accepted by our courts as a rule for their decision. To accept a ruling authority and to decide accordingly is not a surrender or abandonment of jurisdiction, but is an exercise of it. It results that the title to the property in this case must be determined by the result of the action taken by the military authorities of Mexico. . . ." 246 U.S. at 246 U. S. 309. To the same effect is the language of Mr. Justice Cardozo in the Shapleigh case, supra, where, in commenting on the validity of a Mexican land expropriation, he said (299 U.S. at 299 U. S. 471): "The question is not here whether the proceeding was so conducted as to be a wrong to our nationals under the doctrines of international law, though valid under the law of the situs of the land. For wrongs of that order, the remedy to be followed is along the channels of diplomacy." In deciding the present case, the Court of Appeals relied in part upon an exception to the unqualified teachings Page 376 U. S. 419 of Underhill, Oetjen, and Ricaud which that court had earlier indicated. In Bernstein v. Van Heyghen Freres Societe Anonyme, 163 F.2d 246, suit was brought to recover from an assignee property allegedly taken, in effect, by the Nazi Government because plaintiff was Jewish. Recognizing the odious nature of this act of state, the court, through Judge Learned Hand, nonetheless refused to consider it invalid on that ground. Rather, it looked to see if the Executive had acted in any manner that would indicate that United States Courts should refuse to give effect to such a foreign decree. Finding no such evidence, the court sustained dismissal of the complaint. In a later case involving similar facts, the same court again assumed examination of the German acts improper,Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71, but, quite evidently following the implications of Judge Hand's opinion in the earlier case, amended its mandate to permit evidence of alleged invalidity, 210 F.2d 375, subsequent to receipt by plaintiff's attorney of a letter from the Acting Legal Adviser to the State Department written for the purpose of relieving the court from any constraint upon the exercise of its jurisdiction to pass on that question. [Footnote 18] Page 376 U. S. 420 This Court has never had occasion to pass upon the so-called Bernstein exception, nor need it do so now. For whatever ambiguity may be thought to exist in the two letters from State Department officials on which the Court of Appeals relied, [Footnote 19] 307 F.2d at 858, is now removed by the position which the Executive has taken in this Court on the act of state claim; respondents do not, indeed, contest the view that these letters were intended to reflect no more than the Department's then wish not to make any statement bearing on this litigation. The outcome of this case, therefore, turns upon whether any of the contentions urged by respondents against the application of the act of state doctrine in the premises is acceptable: (1) that the doctrine does
not apply to acts of state which violate international law, as is claimed to be the case here; (2) that the doctrine is inapplicable unless the Executive specifically interposes it in a particular case; and (3) that, in any event, the doctrine may not be invoked by a foreign government plaintiff in our courts. Page 376 U. S. 421 V Preliminarily, we discuss the foundations on which we deem the act of state doctrine to rest, and more particularly the question of whether state or federal law governs its application in a federal diversity case. [Footnote 20] We do not believe that this doctrine is compelled either by the inherent nature of sovereign authority, as some of the earlier decision seem to imply, see Underhill, supra; American Banana, supra; Oetjen, supra, 246 U.S. at 246 U. S. 303, or by some principle of international law. If a transaction takes place in one jurisdiction and the forum is in another, the forum does not, by dismissing an action or by applying its own law, purport to divest the first jurisdiction of its territorial sovereignty; it merely declines to adjudicate, or makes applicable its own law to parties or property before it. The refusal of one country to enforce the penal laws of another (supra, pp. 376 U. S. 413-414) is a typical example of an instance when a court will not entertain a cause of action arising in another jurisdiction. While historic notions of sovereign authority do bear upon the wisdom or employing the act of state doctrine, they do not dictate its existence. That international law does not require application of the doctrine is evidenced by the practice of nations. Most of the countries rendering decisions on the subject to follow the rule rigidly. [Footnote 21] No international arbitral Page 376 U. S. 422 or judicial decision discovered suggests that international law prescribes recognition of sovereign acts of foreign governments, see 1 Oppenheim's International Law, 115aa (Lauterpacht, 8th ed. 1955), and apparently no claim has ever been raised before an international tribunal that failure to apply the act of state doctrine constitutes a breach of international obligation. If international law does not prescribe use of the doctrine, neither does it forbid application of the rule even if it is claimed that the act of state in question violated international law. The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar "nation to nation" character, the usual method for an individual Page 376 U. S. 423 to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. See United States v. Diekelman, 92 U. S. 520, 92 U. S. 524. Although it is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances, Ware v. Hylton, 3 Dall. 199, 3 U. S. 281; The Nereide, 9 Cranch 388, 13 U. S. 423; The Paquete Habana, 175 U. S. 677, 175 U. S. 700, the public law of nations can hardly dictate to a country which is, in theory, wronged how to treat that wrong within its domestic borders. Despite the broad statement in Oetjen that "The conduct of the foreign relations of our government is committed by the Constitution to the Executive and Legislative . . . departments," 246 U.S. at 246 U. S. 302, it cannot, of course, be thought that "every case or controversy which touches foreign relations lies beyond judicial cognizance." Baker v. Carr, 369 U. S. 186, 369 U. S. 211. The text of the Constitution does not require the act of state doctrine; it does not irrevocably remove from the judiciary the capacity to review the validity of foreign acts of state. The act of state doctrine does, however, have "constitutional" underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine, as formulated in past decisions, expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder, rather than further, this country's pursuit of goals both for itself and for the community of nations as a whole in the international sphere. Many
Page 376 U. S. 424 commentators disagree with this view; [Footnote 22] they have striven, by means of distinguishing and limiting past decisions and by advancing various considerations of policy, to stimulate a narrowing of the apparent scope of the rule. Whatever considerations are thought to predominate, it is plain that the problems involved are uniquely federal in nature. If federal authority, in this instance, this Court, orders the field of judicial competence in this area for the federal courts, and the state courts are left free to formulate their own rules, the purposes behind the doctrine could be as effectively undermined as if there had been no federal pronouncement on the subject. We could, perhaps, in this diversity action, avoid the question of deciding whether federal or state law is applicable to this aspect of the litigation. New York has enunciated the act of state doctrine in terms that echo those of federal decisions decided during the reign of Swift v. Tyson, 16 Pet. 1. In Hatch v. Baez, 7 Hun 596, 599 (N.Y.Sup.Ct.),Underhill was foreshadowed by the words, "the courts of one country are bound to abstain from sitting in judgment on the acts of another government done within its own territory." More recently, the Court of Appeals, in Salimoff & Co. v. Standard Oil Co., 262 N.Y. 220, 224, 186 N.E. 679, 681, has declared, "The courts of one independent government will not sit in judgment upon the validity of the acts of another done Page 376 U. S. 425 within its own territory, even when such government seizes and sells the property of an American citizen within its boundaries." Cf. Dougherty v. Equitable Life Assurance Society, 266 N.Y. 71, 193 N.E. 897; Holzer v. Deutsche Reichsbahn-Gesellschaft, 277 N.Y. 474, 14 N.E.2d 798. But cf. Frenkel & Co. v. L'Urbaine Fire Ins. Co., 251 N.Y. 243, 167 N.E. 430. Thus, our conclusions might well be the same whether we dealt with this problem as one of state law, see Erie R. Co. v. Tompkins, 304 U. S. 64; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487; Griffin v. McCoach, 313 U. S. 498, or federal law. However, we are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law. [Footnote 23] It seems fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R. Co. v. Tompkins. Soon thereafter, Professor Philip C. Jessup, now a judge of the International Court of Justice, recognized the potential dangers were Erie extended to legal problems affecting international relations. [Footnote 24] He cautioned that rules of international law should not be left to divergent and perhaps parochial state interpretations. His basic rationale is equally applicable to the act of state doctrine. Page 376 U. S. 426 The Court, in the pre-Erie act of state cases, although not burdened by the problem of the source of applicable law, used language sufficiently strong and broad-sweeping to suggest that state courts were not left free to develop their own doctrines (as they would have been had this Court merely been interpreting common law under Swift v. Tyson, supra). The Court of Appeals, in the first Bernstein case, supra, a diversity suit, plainly considered the decisions of this Court, despite the intervention of Erie, to be controlling in regard to the act of state question, at the same time indicating that New York law governed other aspects of the case. We are not without other precedent for a determination that federal law governs; there are enclaves of federal judge-made law which bind the States. A national body of federal-court-built law has been held to have been contemplated by 301 of the Labor Management Relations Act, Textile Workers v. Lincoln Mills, 353 U. S. 448. Principles formulated by federal judicial law have been thought by this Court to be necessary to protect uniquely federal interests, D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447; Clearfield Trust Co. v. United States, 318 U. S. 363. Of course, the federal interest guarded in all these cases is one the ultimate statement of which is derived from a federal statute. Perhaps more directly in point are the bodies of law applied between States over boundaries and in regard to the apportionment of interstate waters.
In Hinderlider v. La Plata River Co., 304 U. S. 92, 304 U. S. 110, in an opinion handed down the same day as Erie and by the same author, Mr. Justice Brandeis, the Court declared, "For whether the water of an interstate stream must be apportioned between the two States is a question of 'federal common law' upon which neither the statutes nor the decisions of either State can be conclusive." Although the suit was between two private litigants, and Page 376 U. S. 427 the relevant States could not be made parties, the Court considered itself free to determine the effect of an interstate compact regulating water apportionment. The decision implies that no State can undermine the federal interest in equitably apportioned interstate waters, even if it deals with private parties. This would not mean that, absent a compact, the apportionment scheme could not be changed judicially, or by Congress, but only that apportionment is a matter of federal law. Cf. Arizona v. California, 373 U. S. 546, 373 U. S. 597-598. The problems surrounding the act of state doctrine are, albeit for different reasons, as intrinsically federal as are those involved in water apportionment or boundary disputes. The considerations supporting exclusion of state authority here are much like those which led the Court, in United States v. California, 332 U. S. 19, to hold that the Federal Government possessed paramount rights in submerged lands though within the three-mile limit of coastal States. We conclude that the scope of the act of state doctrine must be determined according to federal law. [Footnote 25] VI If the act of state doctrine is a principle of decision binding on federal and state courts alike, but compelled by neither international law nor the Constitution, its continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and Page 376 U. S. 428 political branches of the Government on matters bearing upon foreign affairs. It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact, rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice. It is also evident that some aspects of international law touch much more sharply on national nerves than do others; the less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches. The balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence, as in the Bernsteincase, for the political interest of this country may, as a result, be measurably altered. Therefore, rather than laying down or reaffirming an inflexible and all-encompassing rule in this case, we decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law. There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state's power to expropriate the property of aliens. [Footnote 26] Page 376 U. S. 429 There is, of course, authority, in international judicial [Footnote 27] and arbitral [Footnote 28] decisions, in the expressions of national governments, [Footnote 29] and among commentators [Footnote 30] for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation. However, Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. [Footnote 31] Certain representatives of the newly independent and underdeveloped countries Page 376 U. S. 430 have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them, [Footnote 32] and it is argued that the traditionally articulated standards governing expropriation of
property reflect "imperialist" interests, and are inappropriate to the circumstances of emergent states. [Footnote 33] The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations, and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations. [Footnote 34] When we consider the prospect of the courts' characterizing foreign expropriations, however justifiably, as invalid under international law and ineffective to pass title, the wisdom of the precedents is confirmed. While each of the leading cases in this Court may be argued to be distinguishable in its facts from this one -- Underhill because sovereign immunity provided an independent ground, and Oetjen, Ricaud, andShapleigh because there Page 376 U. S. 431 was actually no violation of international law -- the plain implication of all these opinions, and the import of express statements in Oetjen, 246 U.S. at 246 U. S. 304, andShapleigh, 299 U.S. at 299 U. S. 471, is that the act of state doctrine is applicable even if international law has been violated. In Ricaud, the one case of the three most plausibly involving an international law violation, the possibility of an exception to the act of state doctrine was not discussed. Some commentators have concluded that it was not brought to the Court's attention, [Footnote 35] but Justice Clarke delivered both the Oetjen and Ricaud opinions on the same day, so we can assume that principles stated in the former were applicable to the latter case. The possible adverse consequences of a conclusion to the contrary of that implicit in these cases in highlighted by contrasting the practices of the political branch with the limitations of the judicial process in matters of this kind. Following an expropriation of any significance, the Executive engages in diplomacy aimed to assure that United States citizens who are harmed are compensated fairly. Representing all claimants of this country, it will often be able, either by bilateral or multilateral talks, by submission to the United Nations, or by the employment of economic and political sanctions, to achieve some degree of general redress. Judicial determinations of invalidity of title can, on the other hand, have only an occasional impact, since they depend on the fortuitous circumstance of the property in question being brought into this country. [Footnote 36] Such decisions would, if the acts involved Page 376 U. S. 432 were declared invalid, often be likely to give offense to the expropriating country; since the concept of territorial sovereignty is so deep-seated, any state may resent the refusal of the courts of another sovereign to accord validity to acts within its territorial borders. Piecemeal dispositions of this sort involving the probability of affront to another state could seriously interfere with negotiations being carried on by the Executive Branch, and might prevent or render less favorable the terms of an agreement that could otherwise be reached. Relations with third countries which have engaged in similar expropriations would not be immune from effect. The dangers of such adjudication are present regardless of whether the State Department has, as it did in this case, asserted that the relevant act violated international law. If the Executive Branch has undertaken negotiations with an expropriating country, but has refrained from claims of violation of the law of nations, a determination to that effect by a court might be regarded as a serious insult, while a finding of compliance with international law would greatly strengthen the bargaining hand of the other state with consequent detriment to American interests. Even if the State Department has proclaimed the impropriety of the expropriation, the stamp of approval of its view by a judicial tribunal, however, impartial, might increase any affront, and the judicial decision might occur at a time, almost always well after the taking, when such an impact would be contrary to our national interest. Considerably more serious and far-reaching consequences would flow from a judicial finding that international law standards had been met if that determination flew in the face of a State Department proclamation to the contrary. When articulating principles of international law in its relations with other states, the Executive Branch speaks not only as an interpreter of generally accepted and traditional Page 376 U. S. 433
rules, as would the courts, but also as an advocate of standards it believes desirable for the community of nations and protective of national concerns. In short, whatever way the matter is cut, the possibility of conflict between the Judicial and Executive Branches could hardly be avoided. Respondents contend that, even if there is not agreement regarding general standards for determining the validity of expropriations, the alleged combination of retaliation, discrimination, and inadequate compensation makes it patently clear that this particular expropriation was in violation of international law. [Footnote 37] If this view is accurate, it would still be unwise for the courts so to determine. Such a decision now would require the drawing of more difficult lines in subsequent cases, and these would involve the possibility of conflict with the Executive view. Even if the courts avoided this course, either by presuming the validity of an act of state whenever the international law standard was thought unclear or by following the State Department declaration in such a situation, the very expression of judicial uncertainty might provide embarrassment to the Executive Branch. Another serious consequence of the exception pressed by respondents would be to render uncertain titles in foreign commerce, with the possible consequence of altering the flow of international trade. [Footnote 38] If the attitude of the Page 376 U. S. 434 United States courts were unclear, one buying expropriated goods would not know if he could safely import them into this country. Even were takings known to be invalid, one would have difficulty determining, after goods had changed hands several times, whether the particular articles in question were the product of an ineffective state act. [Footnote 39] Against the force of such considerations, we find respondents' countervailing arguments quite unpersuasive. Their basic contention is that United States courts could make a significant contribution to the growth of international law, a contribution whose importance, it is said, would be magnified by the relative paucity of decisional law by international bodies. But, given the fluidity of present world conditions, the effectiveness of such a patchwork approach toward the formulation of an acceptable body of law concerning state responsibility for expropriations is, to say the least, highly conjectural. Moreover, it rests upon the sanguine presupposition that the decisions of the courts of the world's major capital exporting country and principal exponent of the free Page 376 U. S. 435 enterprise system would be accepted as disinterested expressions of sound legal principle by those adhering to widely different ideologies. It is contended that, regardless of the fortuitous circumstances necessary for United States jurisdiction over a case involving a foreign act of state and the resultant isolated application to any expropriation program taken as a whole, it is the function of the courts to justly decide individual disputes before them. Perhaps the most typical act of state case involves the original owner or his assignee suing one not in association with the expropriating state who has had "title" transferred to him. But it is difficult to regard the claim of the original owner, who otherwise may be recompensed through diplomatic channels, as more demanding of judicial cognizance than the claim of title by the innocent third party purchaser, who, if the property is taken from him, is without any remedy. Respondents claim that the economic pressure resulting from the proposed exception to the act of state doctrine will materially add to the protection of United States investors. We are not convinced, even assuming the relevance of this contention. Expropriations take place for a variety of reasons, political and ideological, as well as economic. When one considers the variety of means possessed by this country to make secure foreign investment, the persuasive or coercive effect of judicial invalidation of acts of expropriation dwindles in comparison. The newly independent states are in need of continuing foreign investment; the creation of a climate unfavorable to such investment by wholesale confiscations may well work to their long-run economic disadvantage. Foreign aid given to many of these countries provides a powerful lever in the hands of the political branches to ensure fair treatment of United States nationals. Ultimately, the sanctions of economic embargo and the freezing of assets in this country may be Page 376 U. S. 436 employed. Any country willing to brave any or all of these consequences is unlikely to be deterred by sporadic judicial decisions directly affecting only property brought to our shores. If the political branches are
unwilling to exercise their ample powers to effect compensation, this reflects a judgment of the national interest which the judiciary would be ill advised to undermine indirectly. It is suggested that, if the act of state doctrine is applicable to violations of international law, it should only be so when the Executive Branch expressly stipulates that it does not wish the courts to pass on the question of validity. See Association of the Bar of the City of New York, Committee on International Law, A Reconsideration of the Act of State Doctrine in United States Courts (1959). We should be slow to reject the representations of the Government that such a reversal of the Bernstein principle would work serious inroads on the maximum effectiveness of United States diplomacy. Often, the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically. Adverse domestic consequences might flow from an official stand which could be assuaged, if at all, only by revealing matters best kept secret. Of course, a relevant consideration for the State Department would be the position contemplated in the court to hear the case. It is highly questionable whether the examination of validity by the judiciary should depend on an educated guess by the Executive as to probable result, and, at any rate, should a prediction be wrong, the Executive might be embarrassed in its dealings with other countries. We do not now pass on the Bernstein exception, but, even if it were deemed valid, its suggested extension is unwarranted. However offensive to the public policy of this country and its constituent States an expropriation of this kind Page 376 U. S. 437 may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application. VII Finally, we must determine whether Cuba's status as a plaintiff in this case dictates a result at variance with the conclusions reached above. If the Court were to distinguish between suits brought by sovereign states and those of assignees, the rule would have little effect unless a careful examination were made in each case to determine if the private party suing had taken property in good faith. Such an inquiry would be exceptionally difficult, since the relevant transaction would almost invariably have occurred outside our borders. If such an investigation were deemed irrelevant, a state could always assign its claim. It is true that the problem of security of title is not directly presented in the instance of a sovereign plaintiff, although, were such a plaintiff denied relief, it would ship its goods elsewhere, thereby creating an alteration in the flow of trade. The sensitivity in regard to foreign relations and the possibility of embarrassment of the Executive are, of course, heightened by the presence of a sovereign plaintiff. The rebuke to a recognized power would be more pointed were it a suitor in our courts. In discussing the rule against enforcement of foreign penal and revenue laws, the Eire High Court of Justice, inPeter Buchanan Ltd. v. McVey, [1955] A.C. 516, 529-530, aff'd, id. at 530, emphasized that its justification was in large degree the desire to avoid embarrassing another state by scrutinizing its penal and revenue laws. Although that rule presumes invalidity in the forum whereas the act of state principle presumes the contrary, the doctrines have a common rationale, a rationale that negates Page 376 U. S. 438 the wisdom of discarding the act of state rule when the plaintiff is a state which is not seeking enforcement of a public act. Certainly the distinction proposed would sanction self-help remedies, something hardly conducive to a peaceful international order. Had Farr, Whitlock not converted the bills of lading, or alternatively breached its contract, Cuba could have relied on the act of state doctrine in defense of a claim brought by C.A.V. for the proceeds. It would be anomalous to preclude reliance on the act of state doctrine because of Farr, Whitlock's unilateral action, however justified such action may have been under the circumstances. Respondents offer another theory for treating the case differently because of Cuba's participation. It is claimed that the forum should simply apply its own law to all the relevant transactions. An analogy is drawn to the area of sovereign immunity, National City Bank v. Republic of China, 348 U. S. 356, in which, if a foreign country seeks redress in our courts, counterclaims are permissible. But immunity relates to the prerogative right not to have sovereign property subject to suit; fairness has been thought to require that, when the sovereign seeks recovery, it be subject to legitimate counterclaims against it. The act of state doctrine, however, although it shares with the immunity doctrine a respect for sovereign states, concerns the
limits for determining the validity of an otherwise applicable rule of law. It is plain that, if a recognized government sued on a contract with a United States citizen, concededly legitimate by the locus of its making, performance, and most significant contacts, the forum would not apply its own substantive law of contracts. Since the act of state doctrine reflects the desirability of presuming the relevant transaction valid, the same result follows; the forum may not apply its local law regarding foreign expropriations. Page 376 U. S. 439 Since the act of state doctrine proscribes a challenge to the validity of the Cuban expropriation decree in this case, any counterclaim based on asserted invalidity must fail. Whether a theory of conversion or breach of contract is the proper cause of action under New York law, the presumed validity of the expropriation is unaffected. Although we discern no remaining litigable issues of fact in this case, the District Court may hear and decide them if they develop. The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for proceedings consistent with this opinion. It is so ordered.
CASE 8
235 N.Y. 255, 139 N.E. 259 Court of Appeals of New York. RUSSIAN SOCIALIST FEDERATED SOVIET REPUBLIC v. CIBRARIO et al. March 6, 1923. The Russian Soviet Republic, which the United States refuses to recognize, cannot sue in our courts, even if comity did not depend on recognition, in view of the reasons given by the State Department for refusing to recognize it. [**259] [*256] Appeal from Supreme Court, Appellate Division, First Department. [**260] COUNSEL: Osmond K. Fraenkel and Charles Recht, both of New York City, for appellant. Daniel P. Hays, of New York City, for respondents. [*257] OPINION BY: ANDREWS, J.
In Wulfsohn v. Russian Federated Soviet Republic, 234 N. Y. 372, 138 N. E. 24, we held that our courts would not entertain jurisdiction of an action brought without its consent against an existing foreign government, in control of the political and military power within its own territory, whether or not such government had been recognized by the United States. We have now to determine whether such a government may itself become a plaintiff here. If recognized, undoubtedly it may. Republic of Honduras v. Soto, 112 N. Y. 310, 19 N. E. 845, 2 L. R. A. 642, 8 Am. St. Rep. 744; United States of America v. Wagner, L. R. 2 Ch. App. 582; King of Spain v. Machado, 4 Russ. 560; King of Prussia v. Kueppers Admr, 22 Mo. 550, 66 Am. Dec. 639. Conceivably this right may depend on treaty. But if no treaty to that effect exists the privilege rests upon the theory of international comity. This is so with regard to all foreign corporations. Hollis v. Drew Theological Seminary, 95 N. Y. 166; Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274; [*258] National Telephone Mfg. Co. v. DuBois, 165 Mass. 117, 42 N. E. 510, 30 L. R. A. 628, 52 Am. St. Rep 503. Their power to sue may be regulated as is done by section 15 of our General Corporation Law (Consol. Laws, c. 23). Paul v. Virginia, 75 U. S. (8 Wall.) 168. And except as limited by constitutional provisions the same thing is true of those not citizens of our state. Much more true is it that the right of a foreign government to sue is likewise based upon the same consideration. Neither a natural person nor a corporation, ordinarily we would not recognize it as a proper party plaintiff. Western & A. R. Co. v. Dalton Marble Works, 122 Ga. 774, 50 S. E. 978. It represents, however,
the general interests of the nation over which it has authority. We permit it to appear and protect those interests as a body analogous to one possessing corporate rights, but solely because of comity. Republic of Honduras v. Soto, 112 N. Y. 310, 19 N. E. 845, 2 L. R. A. 642, 8 Am. St. Rep. 744; Hullet & Co. v. King of Spain, 1 Dow & Clark, 169, 175; Duke of Brunswick v. King of Hanover, 6 Beav. 1, 37; The Sapphire, 78 U. S. (11 Wall.) 164, 20 L. Ed. 127. Comity may be defined as that reciprocal courtesy which one member of the family of nations owes to the others. It presupposes friendship. It assumes the prevalence of equity and justice. Experience points to the expediency of recognizing the legislative, executive, and judicial acts of other powers. We do justice that justice may be done in return. What is termed the comity of nations is the formal expression and ultimate result of that mutual respect accorded throughout the civilized world by the representatives of each sovereign power to those of every other, in considering the effects of their official acts. Its source is a sentiment of reciprocal regard, founded on identity of position and similarity of institutions.Fisher, Brown & Co. v. Fielding, 67 Conn. 91, 108, 34 Atl. 714, 716 (32 L. R. A. 236, 52 Am. St. Rep. 270). As defined by Webster, comity is in general terms that there are between nations at peace with one another rights both national and individual resulting from the comity or courtesy due from one friendly nation to another. Among these is the right [*259] to sue in their courts respectively. 6 Webster Works, 117. It may, however, not be demanded as a right. It is yielded as a favor. Not an arbitrary favor; nor is it the favor of the courts. It is not the comity of the courts, but the comity of the nation which is administered. Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274. Rules of comity are a portion of the law that they enforce. Precedents mark the line that they should follow. Both in England and in the United States so universally and for such a length of time have actions by alien corporations and individuals been allowed that the right to bring them in a proper case has become fixed. Unless restrained by legislative fiat no court may now deny it. Hollis v. Drew Theological Seminary, 95 N. Y. 166, 175; Stone v. Penn Yan, K. P. & B. Ry. Co., 197 N. Y. 279, 90 N. E. 843, 134 Am. St. Rep. 879; Christian Union v. Yount,101 U. S. 352, 25 L. Ed. 888. So long as the plaintiff does not reside in a country at war with the United States we inquire no further. The original basis of the right has fallen into the background. If trade is permitted between him and ourselves we do not ask whether he comes from Mexico or from France. But no like current of authority controls us in the case before us. Undisturbed the rule of comity is our only guide. This rule is always subject, however, to one consideration. There may be no yielding, if to yield is inconsistent with our public policy. We might give effect to the French decree in [**261] Gould v. Gould, 235 N. Y. 14, 138 N. E. 490, only because it was consonant with our theories of marriage and divorce. Such public policy may be interpreted by the courts. It is fixed by general usage and morality or by executive or legislative declaration. Especially is the definition of our relations to foreign nations confided not to the courts, but to another branch of the government. That branch determines our policy toward them. It only remains for the courts to enforce it. The use of the word comity as expressing the basis [*260] of jurisdiction has been criticized. It is, however, a mere question of definition. The principles lying behind the word are recognized. Whether or not we sum them up by one expression or another, the truth remains that jurisdiction depends upon the law of the forum, and this law in turn depends upon the public policy disclosed by the acts and declarations of the political departments of the government. Does any rule of comity, then, require us to permit a suit by an unrecognized power? In view of the attitude of our government, should we permit an action to be brought by the Soviet government? To both queries we must give a negative answer. We may state at the outset that we find no precedent that a power not recognized by the United States may seek relief in our courts. Such intimations as exist are to the contrary. Statements are that a recognized government may be a plaintiff. Republic of Honduras v. Soto, 112 N. Y. 310, 19 N. E. 845, 2 L. R. A. 642, 8 Am. St. Rep. 744; United States v. Wagner, L. R. 2 Ch. App. 582, 589. In King of Spain v. Oliver, Fed. Cas. No. 7,814, 14 Fed. 577, the Circuit Court noted the question, but refused to decide it. In City of Berne v. Bank of England, 9 Ves. Jr. 347, Lord Eldon expressed great doubt. So in Dolder v. Lord Huntingfield, 11 Ves. Jr. 283. In The Penza (D. C.) 277 Fed. 91, the present plaintiff was refused relief.
What, then, is the meaning and effect of recognition in its relation to comity? It is difficult to find a clear discussion of this question, either in reports or in text-books. Where a new government has seized power, no official intercourse is possible between the powers refusing recognition and the state concerned. Through recognition the other states declare that they are ready to negotiate with such individual (a new ruler) as the highest organ of his state. Oppenheim, International Law (3d Ed.) vol. 1, 77, 342. Speaking of the recognition of a new state, Wheaton (International Law [*261] [2d Ed.] p. 39) says: so long, indeed, as the new state confines its action to its own citizens and to the limits of its own territory, it may well dispense with such recognition. But if it desires to enter into the great society of nations, all the members of which recognize rights to which they are mutually entitled, and duties which they may be called upon reciprocally to fulfil, such recognition becomes essentially necessary to the complete participation of the new state in all the advantages of this society. * * * The new state becomes entitled to the exercise of its external sovereignty as to those states only by whom that sovereignty has been recognized. In Hydes International Law, vol. 1, 37, is the statement that The mode of recognition is not material, provided there be an unequivocal act indicating clearly that the new state is dealt with as such and is deemed to be entitled to exercise the privileges of statehood in the society of nations. More assistance may be found in the reasons underlying various decisions of the courts as to the effect to be given to the acts of foreign governments. This effect depends upon our acknowledgment of the comity of nations. The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. Oetjen v. Central Leather Co., 246 U. S. 297, 303, 38 Sup. Ct. 309, 311 (62 L. Ed. 726); Mighell v. Sultan of Johore, 1 Q. B. 1894, 149; The Parlement Belge, 5 Pro. Div. 1880, 197. Therefore where comity exists between two nations, and no question of public policy arises, this rule is invariable. Yet in specific cases the question of recognition is thought controllingrecognition existing at the time the alleged [*262] wrongful act was done, or recognition later, which relates back to that time. Oetjen v. Central Leather Co., supra; Underhill v. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456; Ricaud v. American Metal Co., 246 U. S. 304, 38 Sup. Ct. 312, 62 L. Ed. 733; The Gagara, L. R. Pro. Div. 1919, 95; The Annette, L. R. Pro. Div. 1919, 105. A most interesting case is Luther v. Sagor [1921] 3 K. B. 532. The Soviet Republic seized personal property belonging to the plaintiff. Then sold to the defendant, it was imported into England. There the plaintiff brought an action to recover it. The plaintiff succeeded in the lower court, there being no proof of the recognition of the Russian government. Later such recognition [**262] occurred, and the judgment because of that fact was reversed on appeal. In the course of his opinion Scrutton, L. J., says the title to the goods coming into the hands of a purchaser from the Russian government cannot be questioned. This immunity follows from recognition as a sovereign state. Should there be any government which appropriates other peoples property without compensation, the remedy appears to be to refuse to recognize it as a sovereign state. Then the courts could investigate the title without infringing the comity of nations. Why? Obviously because in the absence of recognition no comity exists. We reach the conclusion, therefore, that a foreign power brings an action in our courts not as a matter of right. Its power to do so is the creature of comity. Until such government is recognized by the United States no such comity exists. The plaintiff concededly has not been so recognized. There is, therefore, no proper party before us. We may add that recognition, and, consequently, the existence of comity, is purely a matter for the determination of the legislative or executive departments of the government. Who is the sovereign of a territory is a political question. In any case where that question is in dispute the courts are bound by the decision reached by those departments. [*263] Jons v. U. S., 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Luther v. Sagor, 3 K. B. 1921, 532, 556. It is not for the courts to say whether the present governments of Russia or Mexico or Great Britain should or should not be recognized. They are or they are not. That is as far as we may inquire. Nor is anything here decided inconsistent with Wulfsohn v. Soviet Republic, supra. Upon the facts in that case, if the defendant was not an existing government it might not be sued. There was no party before the court. If it were, as was alleged and admitted, the same result followed, not because of comity, but because an independent government is not answerable for its acts to our courts. We are the more ready to reach this conclusion because to hold otherwise might tend to nullify the rule that public policy must always prevail over comity. More than once during the last 70 years our relations with one
or another existing but unrecognized government have been of so critical a character that to permit it to recover in our courts funds which might strengthen it or which might even be used against our interests would be unwise. We should do nothing to thwart the policy which the United States has adopted. Yet, unless recognition is the test of the right to sue, we do not see why Maximilian, as emperor of Mexico, might not have maintined an action here. With regard to the present Russian government the case is still stronger, even did comity not depend on recognition. We not only refuse to recognize it. Our State Department gives the reasons. Secretary Colby has stated them in an offical note, dated August 10, 1920. He begins by saying that our government will not participate in any plan for the expansion of the armistice negotiations between Russia and Poland into a general European conference, which would in all probability involve two results, from both of which this country strongly recoils, viz.: The recognition of the Bolshevist regime, and a settlement of the Russian problem [*264] almost inevitably upon the basis of a dismemberment of Russia. He continues: We are unwilling that, while it is helpless in the grip of a nonrepresentative government whose only sanction is brutal force, Russia shall be weakened still further by a policy of dismemberment, conceived in other than Russian interests. * * * The Bolsheviki, although in number an inconsiderable minority of the people, by force and cunning seized the powers and machinery of government, and have continued to use them with savage oppression to maintain themselves in power. * * * It is not possible for the government of the United States to recognize the present rulers of Russia as a government with which the relations common to friendly governments can be maintained. * * * The existing reginme in Russia is based upon the negation of every principle of honor and good faith, and every usage and convention, underlying the whole structure of international law, the negation, in short, of every principle upon which it is possible to base harmonious and trustful relations, whether of nations or of individuals. The responsible leaders of the regime have frequently and openly boasted that they are willing to sign agreements and undertakings with foreign powers while not having the slightest intention of observing such undertakings or carrying out such agreements. * * * They have made it quite plain that they intend to use every means * * * to promote revolutionary movements in other countries. * * * In the view of this government, there cannot be any common ground upon which it can stand with a power whose conceptions of international relations are so entirely alien to its own, so utterly repugnant to its moral sense. There can be no mutual confidence or trust, no respect even, if pledges are to be given and agreements made with a cynical repudiation of their obligations already in the mind of one of the parties. We cannot recognize, hold official relations with, or give friendly reception to the agents [*265] of a government which is determined and bound to conspire against our institutions, whose diplomats will be the agitators of dangerous revolt, whose spokesmen say that they sign agreements with no intention of keeping them. [**263] Our government has not receded from this position. Secretary Hughes, in rejecting trade proposals of the Soviet, said on March 25, 1921: It is only in the productivity of Russia that there is any hope for the Russian people, and it is idle to expect resumption of trade until the economic bases of production are securely established. Production is conditioned upon the safety of life, the recognition by firm guaranties of private property, the sanctity of contract and the rights of free labor. And he postpones any consideration of trade relations until such time as our government has convincing evidence of fundamental changes that will fulfill these conditions. In the fact of these declarations it is impossible to hold that to-day any such relations exist between the United States and Russia as call upon our courts to enforce rules in favor of the latter depending on the comity of nations. The judgment appealed from should be affirmed, with costs. HISCOCK, C. J., and HOGAN, CARDOZO, POUND, McLAUGHLIN, and CRANE, JJ., concur. Judgment affirmed, etc.
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CASE 9: Mighell vs. Sultan of Johore (see separate PDF File)
CASE 10
THE THREE FRIENDS, 166 U.S. 1 (1897) 166 U.S. 1 THE THREE FRIENDS. UNITED v. THE No. 701. STATES THREE FRIENDS et al.
March 1, 1897. [166 U.S. 1, 2] The steamer Three Friends was seized November 7, 1896, by the collector of customs for the district of St. Johns, Fla., as forfeited to the United States under section 5283 of the Revised Statutes, and thereupon, November 12th, was libele 1 on behalf of the United States in the district court for the Southern district of Florida. The first two paragraphs of the libel alleged the seizure and detention of the vessel, and the libel then continued:
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'Third. That the said steamboat or steam vessel, the Three Friends, was on, to wit, on the 23d day of May, A. D. 1896, furnished, fitted out, and armed, with intent that she should be employed in the service of a certain people, to wit, certain people then engaged in armed resistance to the government of the king of Spain, in the Island of Cuba, to cruise,[166 U.S. 1, 3] and commit hostilities against the subjects, citizens, and property of the king of Spain, in the Island of Cuba, with whom the United States are and were at that date at peace. 'Fourth. That the said steamboat or steam vessel, Three Friends, on, to wit, on the 23d day of May, A. D. 1896, whereof one Napoleon B. Broward was then and there master, and within the said Southern district of Florida, was then and there fitted out, furnished, and armed, with intent that said vessel, the said Three Friends, should be employed in the service of a certain people, to wit, the insurgents in the Island of Cuba, otherwise called the 'Cuban revolutionists,' to cruise and commit hostilities against the subjects, proeprty, and people of the king of Spain, in the said Island of Cuba, with whom the United States are and were then at peace. 'Fifth. That the said steamboat or steam vessel, Three Friends, on, to wit, on the 23d day of May, A. D. 1896, and whereof one N. B. Broward was then and there master, within the navigable waters of the United States, and within the Southern district of Florida and the jurisdiction of this court, was then and there, by certain persons to the attorneys of the said United States unknown, furnished, fitted out, and armed, being loaded with supplies and arms and munitions of war, and it, the said steam vessel, Three Friends, being then and there furnished, fitted out, and armed with one certain gun or guns, the exact number to the said attorneys of the United States unknown, and with munitions of war thereof, with the intent then and there to be employed in the service of a certain people, to wit, certain people then engaged in armed resistance to the government of the king of Spain in the Island of Cuba, and with the intent to cruise and commit hostilities against the subjects, citizens, and property of the king of Spain in the said Island of Cuba, and who, on the said date and day last aforesaid, and being so furnished, fitted out, and armed as aforesaid, then and there aforesaid, from the navigable waters of the United States, to wit, from the St. Johns river, within the Southern district of Florida, and within the jurisdiction of this court aforesaid, proceeded upon a voyage to the Island of Cuba aforesaid, with the in- [166 U.S. 1, 4] tent aforesaid, contrary to the form of the statute in such case made and provided. And that, by force and virtue of the acts of congress in such case made and provided, the said steamboat or steam vessel, her tackle, engines, machinery, apparel, and furniture, became and are forfeited to the use of the said United States. 'Sixth. And the said attorneys say that by reason of all and singular the premises aforesaid, and that by force of the statute in such case made and provided, the aforesaid and described steamboat or steam vessel, Three Friends, her tackle, machinery, apparel, and furniture, became and are forfeited to the use of the said United States.' And concluded with a prayer for process and monition and the condemnation of the vessel as forfeited. Attachment and monition having issued as prayed, Napoleon B. Broward and Montcalm Broward, master and owners, intervened as claimants, applied for an appraisement of the vessel and her release on stipulation, and filed the following exceptions to the libel: '(1) Section 5283, for an alleged violation of which the said vessel is sought to be forfeited, makes such forfeiture dependent upon the conviction of a person for doing the act or acts denounced in the first sentence of said section, and as a consequence of conviction of such person; whereas the allegations in said libel do not show what persons had been guilty of the acts therein denounced as unlawful. '(2) The said libel does not show the Three Friends was fitted out and armed, attempted to be fitted out and armed, or procured to be fitted out and armed, in violation of said section. '(3) The said libel does not show the said vessel was so fitted out and armed, or so attempted to be fitted out and armed, or so procured to be fitted out and armed or furnished, with the intent that said vessel should be employed in the service of a foreign[166 U.S. 1, 5] prince or state or of a colony, district, or people with whom the United States are at peace. '(4) The said libel does not show by whom said vessel was so fitted out. '(5) Said libel does not show in the service of what foreign prince or state or colony or district or body politic the said vessel was so fitted out. '(6) The said libel does not show that said vessel was so armed or fitted out or furnished with the intent that such vessel should be employed in the service of any body politic recognized by or known to the United States as a body politic.'
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The vessel was appraised at $4,000, and a bond on stipulation given for $10,000, upon which she was directed to be released. The cause came on to be heard upon the exceptions to the libel, and on January 18th the following decree was entered (78 Fed. 175): 'This cause coming on to be heard upon exceptions to the libel, and having been fully heard and considered, it is ordered that said second, third, fifth, and sixth exceptions be sustained, and that the libelant have permission to amend said libel; and, in event said libel is not so amended within ten days, the same stand dismissed, and the bond herein filed be canceled.' From this decree the United States, on January 23d, prayed an appeal to the United States circuit court of appeals for the Fifth circuit, which was allowed and duly prosecuted. The following errors were assigned: 'First. For that the court, over the objection of the libelants, allowed the said steam vessel, Three Friends, to be released from custody upon the giving of bond. 'Second. For that the court erred in sustaining the 2d, 3d, 5th, and 6th exceptions of the claimants to the libel of information of the libelants. 'Third. For that the court erred in entering a decree dismissing the libel of information herein.' On February 1st application was made to this court for a writ of certiorari to bring up the cause from said circuit court of appeals, and, having been granted and sent down, the record was returned accordingly. Atty. Gen. Harmon and Asst. Atty. Gen. Whitney, for the United states. [166 U.S. 1, 12] W. Hallett Phillips and [166 U.S. 1, 40] [166 U.S. 1, 49] Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the oponion of the court. It is objected that the decree was not final, but, inasmuch as the libel was ordered to stand dismissed if not amended within 10 days, the prosecution of the appeal, within that time, was an election to waive the right to amend, and the decree of dismissal took effect immediately. In admiralty cases, among others enumerated, the decree of the circuit court of appeals is made final in that court by the terms of section 6 of the judiciary act of March 3, 1891; but this court may require any such case, by certiorari or otherwise, to be certified 'for its review and determination with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court,'- that is, as if it had been brought directly from the district or the circuit court. 26 Stat. 826, c. 517, 6. Accordingly, the writ of certiorari may be issued in such cases to the circuit court of appeals, pending action by that court; and, although this is a power not ordinarily to be exercised (American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U.S. 372, 385 , 13 S. Sup. Ct. 758), we were of opinion that the circumstances justified the allowance of the writ in this instance, and the case is properly before us. We agree with the district judge that the contention that forfeiture under section 5283 depends upon the conviction of a person or persons for doing the acts denounced is untenable. The suit is a civil suit in rem for the condemnation of the vessel only, and is not a criminal prosecution. The two proceedings are wholly independent, and pursued in different [166 U.S. 1, 50] courts, and the result in each might be different. Indeed, forfeiture might be decreed if the proof showed the prohibited acts were committed, though lacking as to the identity of the particular person by whom they were committed. The Palmyra, 12 Wheat. 1; The Ambrose Light, 25 Fed. 408; The Meteor, 17 Fed. Cas. 178. The Palmyra was a case of a libel of information against the vessel to forfeit her for a piratical aggression, under certain acts of congress which made no provision for the personal punishment
A. W. Cockrell, for respondents.
of the offenders; but it was held that, even if such provision had been made, conviction would not have been necessary to the enforcement of forfeiture. And Mr. Justice Story, delivering the opinion, said: 'It is well known that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem, but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission on the offense, but the right attached only by the conviction of the offender. The necessary result was that, in every case where the crown sought to recover such goods and chattels, it was indispensable to establish its right by producing the record of the judgment of conviction. In the contemplation of the common law, the offender's right was not devested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing; and this whether the offense be malum prohibitum or malum in se. The same principle applies to proceedings in rem on seizures in the admiralty. Many cases exist where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, [166 U.S. 1, 51] and so this court understands the law to be, that the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personam.' And see The Malek Adhel, 2 How. 210; U. S. v. The Little Charles, 1 Brock. 347, Fed. Cas. No. 15,612. The libel alleged that the vessel was 'furnished, fitted out, and armed with intent that she should be employed in the service of a certain people, to wit, certain people then engaged gaged in armed resistance to the government of the king of Spain, in the Island of Cuba, to cruise and commit hostilities against the subjects, citizens, and property of the king of Spain in the Island of Cuba, with whom the United States are and were at that date at peace.' The learned district judge held that this was insufficient under section 5283, because it was not alleged 'that said vessel had been fitted out with intent that she be employed in the service of a foreign prince or state, or of any colony, district, or people recognized as such by the political power of the United States.' In Wiborg v. U. S., 163 U.S. 632 , 16 Sup. Ct. 1127, 1197, which was an indictment under section 5286, we referred to the 11 sections, from 5281 to 5291, inclusive, which constitute title 67 of the Revised Statutes, and said: 'The statute was undoubtedly designed in general to secure neutrality in wars between two other nations, or between contending parties recognized as belligerents, but its operation is not necessarily dependent on the existence of such state of belligerency;' and the consideration of the present case, arising under section 5283, confirms us in the view thus expressed. It is true that, in giving a r esum e of the sections, we referred to section 5283 as dealing 'with fitting out and arming vessels in this country in favor of one foreign power as against another foreign power with which we are at peace'; but that was matter of general description, and the entire scope of the section was not required to be indicated. The title is headed 'Neutrality,' and usually called, by way of convenience, the 'Neutrality Act,' as the term 'Foreign Enlistment Act' is applied to the analogous British statute, but this does not operate as a restriction. [166 U.S. 1, 52] Neutrality, strictly speaking, consists in abstinence from any participation in a public, private, or civil war, and in impartiality of conduct towards both parties; but the maintenance unbroken of peaceful relations between two powers when the domestic peace of one of them is disturbed is not neutrality in the sense in which the word is used when the disturbance has acquired such head as to have demanded the recognition of belligerency. And, as mere matter of municipal administration, no nation can permit unauthorized acts of war within its territory in infraction of its sovereignty, while good faith towards friendly nations requires their prevention. Hence, as Mr. Attorney General Hoar pointed out (13 Op. Attys. Gen. U. S. 178), though the principal object of the act was 'to secure the performance of the duty of the United States,
under the law of nations, as a neutral nation in respect of foreign powers,' the act is, nevertheless, an act 'to punish certain offenses against the United States by fines, imprisonment, and forfeitures, and the act itself defines the precise nature of those offenses.' These sections were brought forward from the act of April 20, 1818 (3 Stat. 447, c. 88), entitled 'An act in addition to the 'Act for the punishment of certain crimes against the United States,' and to repeal the acts therein mentioned,' which was derived from the act of June 5, 1794 (1 Stat. 381, c. 50), entitled 'An act in addition to the 'Act for the punishment of certain crimes against the United States," and the act of March 3, 1817 (3 Stat. 370, c. 58), entitled 'An act more effectually to preserve the neutral relations of the United States.' The piracy act of March 3, 1819 (3 Stat. 510, c. 77; Rev. St. 4293- 4296, 5368), supplemented the acts of 1817 and 1818 The act of 1794, which has been generally recognized as the first instance of municipal legislation in support of the obligations of neutrality, and a remarkable advance in the development of international law, was recommended to congress by President Washington in his annual address on December 3, 1793, was drawn by Hamilton, and passed the senate by the [166 U.S. 1, 53] casting vote of Vice President Adams. Ann. 3d Cong. 11, 67. Its enactment grew out of the proceedings of the then French minister, which called forth President Washington's proclamation of neutrality in the spring of 1793. And though the law of nations had been declared by Chief Justice Jay, in his charge to the grand jury at Richmond, May 22, 1793 (Whart. St. Tr. 46, 56, Fed. Cas. No. 6,360), and by Mr. Justice Wilson, Mr. Justice Iredell, and Judge Peters, on the trial of Henfield in July of that year ( Id. 66, 84), to be capable of being enforced in the courts of the United States criminally, as well as civilly, without further legislation, yet it was deemed advisable to pass the act in view of controversy over that position, and, moreover, in order to provide a comprehensive code in prevention of acts by individuals within our jurisdiction inconsistent with our own authority, as well as hostile to friendly powers. Section 5283 of the Revised Statutes is as follows: 'Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out, or arming, of any vessel with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any freign prince or state, or of any colony, district, or people, with whom the United States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited; one-half to the use of the informer, and the other half to the use of the United States.' By referring to section 3 of the act of June 5, 1794, section 1 of the act of 1817, and section 3 of the act of [166 U.S. 1, 54] 1818, which are given in the margin,1 it will be seen that the words 'or of any colony, district, or people' were inserted in the original law by the act of 1817, carried forward by the act of 1818, and so into section 5283. The immediate occasion of the passage of the act of March 3, 1817, appears to have been a communication, under date of December 20, 1816, from the Portuguese minister to Mr. Monroe, then secretary of state, informing him of the fitting out of privateers at Baltimore to act against Portugal, in case it should turn out that that government was at war with the 'self-styled government of Buenos Ayres,' and soliciting 'the proposition to congress of such provisions of law as will prevent such attempts for the future.' On December 26, 1816, President Madison sent a special message to congress, in which he referred to the inefficacy of existing laws 'to pre- [166 U.S. 1, 55] vent violations of the obligations of the United States as a nation at peace towards belligerent parties and other unlawful acts on the high seas by armed vessels equipped within the waters of the United States,' and, 'with a view to maintain more effectually the respect due to the laws, to the character, and to the neutral and pacific relations of the United States,' recommended further legislative provisions. This message was transmitted to the minister December 27th, and he was promptly officially informed of the passage of the act in the succeeding month of March. Geneva Arbitration Case, United States, 138. In Mr. Dana's elaborate note to section 439 of his edition of Wheaton's International Law, it is said that the words 'colony, district, or people' were inserted on the suggestion of the Spanish minister
that the South American provinces in revolt, and not recognized as independent, might not be included in [166 U.S. 1, 56] the word 'state.' Under the circumstances, this act was entitled as 'to preserve the neutral relations of the United States,' while the title of the act of 1794 described it as 'in addition' to the crimes act of April 30, 1790 (1 Stat. 112, c. 9), and the act of 1818 was entitled in the same way. But there is nothing in all this to indicate that the words 'colony, district, or people' had reference solely to communities whose belligerency had been recognized, and the history of the times (an interesting review of which has been furnished us by the industry of counsel) does not sustain the view that insurgent districts or bodies, unrecognized as belligerents, were not intended to be embraced. On the contrary, the reasonable conclusion is that the insertion of the words 'district or people' should be attributed to the intention to include such bodies, as, for instance, the so-called 'Oriental Republic of Artigas,' and the governments of Petion and Christophe, whose attitude had been passed on by the courts of New York more than a year before, in Gelston v. Hoyt, 13 Johns. 141, 561, which was then pending in this court on writ of error. There was no reason why they should not have been included, and it is to the extended enumeration as covering revolutionary bodies laying claim to rights of sovereignty, whether recognized or unrecognized, that Chief Justice Marshall manifestly referred in saying, in The Gran Para, 7 Wheat. 471, 489, that the act of 1817 'adapts the previous laws to the actual situation of the world.' At all events, congress imposed no limitation on the words 'colony, district, or people,' by requiring political rec ognition. Of course, a political community whose independence has been recognized is a 'state' under the act; and, if a body embarked in a revolutionary political movement, whose independence has not been, but whose belligerency has been, recognized, is also embraced by that term, then the words 'colony, district, or people,' instead of being limited to a political community which has been recognized as a belligerent, must necessarily be held applicable to a body of insurgents associated together in a common political enterprise, and carrying on hostilities against the parent country, in the effort to achieve [166 U.S. 1, 57] independence, although recognition of belligerency has not been accorded. And as, agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not conferring all the rights of an independent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an independent state in matters relating to the war being waged, no adequate ground is perceived for holding that acts in aid of such a government are not in aid of a state, in the sense of the statute. Contemporaneous decisions are not to the contrary, though they throw no special light upon the precise question. Gelston v. Hoyt, 3 Wheat. 246, decided at February term, 1818 (and below, January and February, 1816), was an action of trespass against the collector and surveyor of the port of New York for seizing the ship American Eagle, her tackle, apparel, etc. The seizure was made July 10, 1810, by order of President Madison under section 3 of the act of 1794, corresponding to section 5283. The ship was intended for the service of Petion against Christophe, who had divided the Island of Hayti between them, and were engaged in a bloody contest, but whose belligerency had not been recognized. It was held that the service of 'any foreign prince or state' imported a prince or state which had been recognized by the government, and, as there was no recognition in any manner, the question whether the recognition of the belligerency of a de facto sovereignty would bring it within those words did not arise. The case of The Estrella, 4 Wheat. 298, involved the capture of the Venezuelan privateer on April 24, 1817. There was a recapture by an American vessel, ane the prize thus came before the court at New Orleans for adjudication. The privateer was found to have a regular commission from Bolivar, issued as early as 1816, but it had violated section 2 of the act of 1794, which is the same as section 2 of the act of 1818, omitting the words 'colony, district, or people' (and is now section 5282 of the Revised Statutes), by enlisting men at New Orleans, provided Venezuela was [166 U.S. 1, 58] a state within the meaning of that act. The decision proceeded on the ground that Venezuela was to be so regarded on the theory that recognition of belligerency made the belligerent to that intent a state. In The Nueva Anna and Liebre, 6 Wheat. 193, the record of a prize court at 'Galveztown,' constituted under the authority of the 'Mexican republic,' was offered in proof, and this court refused to recognize the belligerent right claimed, because our government had not acknowledged 'the existence of any Mexican republic or state at war with Spain'; and in The Gran Para, 7 Wheat. 471, Chief Justice Marshall referred to Buenos Ayres as a state, within the meaning of the act of 1794.
Even if the word 'state,' as previously employed, admitted of a less liberal signification, why should the meaning of the words 'colony, district, or people' be confined only to parties recognized as belligerent? Neither of these words is used as equivalent to the word 'state,' for they were added to enlarge the scope of a statute which already contained that word. The statute does not say 'foreign colony, district, or people,' nor was it necessary, for the reference is to that which is part of the dominion of a foreign prince or state, though acting in hostility to such prince or state. Nor are the words apt if confined to a belligerent. As argued by counsel for the government, an insurgent colony under the act is the same before as after the recognition of belligerency, as shown by the instance of the colonies of Buenos Ayres and Paraguay, the belligerency of one having been recognized, but not of the other, while the statute was plainly applicable to both. Nor is 'district' an appropriate designation of a recognized power de facto, since such a power would represent, not the territory actually held, but the territory covered by the claim of sovereignty. And the word 'people,' when not used as the equivalent of 'state' or 'nation,' must apply to a body of persons less than a state or nation; and this meaning would be satisfied by considering it as applicable to any consolidated political body. In U. S. v. Quincy, 6 Pet. 445, 467, an indictment under the third section of the act of 1818, the court disposed [166 U.S. 1, 59] of the following, among other, points, thus: 'The last instruction or opinion asked on the part of the defendant was that, according to the evidence in the cause, the United Provinces of Rio de la Plata is, and was at the time of the offense alleged in the indictment, a government, acknowledged by the United States, and thus was a 'state,' and not a 'people,' within the meaning of the act of congress under which the defendant is indicted, the word 'people' in that act being intended to describe communities under an existing government not recognized by the United States; and that the indictment, therefore, cannot be supported on this evidence. 'The indictment charges that the defendant was concerned in fitting out the Bolivar, with intent that she should be employed in the service of a foreign people; that is to say, in the service of the United Provinces of Rio de la Plata. It was in evidence that the United Provinces of Rio de ia Plata had been regularly acknowledged as an independent nation by the executive department of the government of the United States, before the year 1827; and therefore it is argued that the word 'people' is not properly applicable to that nation or power. 'The objection is one purely technical, and we think not well founded. The word 'people,' as here used, is merely descriptive of the power in whose service the vessel was intended to be employed; and it is one of the denominations applied by the act of congress to a foreign power. The words are 'in the service of any foreign prince or state, or of any colony, district, or people.' The application of the word 'people' is rendered sufficiently certain by what follows under the videlicet, 'that is to say, the United Provinces of Rio de la Plata.' This particularizes that which by the word 'people' is left too general. The descriptions are no way repugnant or inconsistent with each other, and may well stand together. That which comes under the videlicet only serves to explain what is doubtful and obscure in the word 'people." All that was decided was that any obscurity in the word 'people,' as applied to a recognized government, was cured by the videlicet. [166 U.S. 1, 60] Nesbitt v. Lushington, 4 Term R. 783, was an action on a policy of insurance in the usual form, and among the perils insured against were 'pirates, rovers, thieves,' and 'arrests, restraints, and detainments of all kings, princes, and people, of what nation, condition, or quality soever.' The vessel with a cargo of corn was driven into a port, and was seized by a mob, who assumed the government of her, and forced the captain to sell the corn at a low price. It was ruled that this was a loss by pirates, and the maxim, 'Noscitur a sociis,' was applied by Lord Kenyon and Mr. Justice Buller. Mr. Justice Buller said: "People' means 'the supreme power'; 'the power of the country,' whatever it may be. This appears clear from another part of the policy; for, where the underwriters insure against the wrongful acts of individuals, they describe them by the names of 'pirates, rogues, thieves.' Then, having stated all the individual persons against whose acts they engage, they mention other risks,-those occasioned by the acts of 'kings, princes, and people of what nation, condition, or quality soever.' Those words, therefore, must apply to 'nations' in their collective capacity.' As remarked in the brief of Messrs. Richard H. Dana, Jr., and Horace Gray, Jr., filed by Mr. Cushing in Mauran v. Insurance Co., 6 Wall. 1, the words were 'doubtless originally inserted with the view of enumerating all possible forms of government, monarchical, aristocratical, and democratic.' The British foreign enlistment act (59 Geo. III. c. 69) was bottomed on the act of 1818, and the seventh section, the opening portion of which is given below,2 corresponded to the [166 U.S. 1, 61] third section of that act. Its terms were, however, considerably broader and left less to construction. But we think the words 'colony, district, or people' must be treated as equally comprehensive in their bearing here.
In the case of The Salvador, L. R. 3 P. C. 218, the Salvador had been seized under warrant of the governor of the Bahama Islands, and proceeded against in the vice admiralty court there for breach of that section, and was, upon the hearing of the cause, ordered to be restored; the court not being satisfied that the vessel was engaged, within the meaning of the section, in aiding parties in insurrection against a foreign government, as such parties did not assume to exercise the powers of government over any portion of the territory of such government. This decision was overruled on appeal by the judicial committee of the privy council, and Lord Cairns, delivering the opinion, said: 'It is to be observed that this part of the section is in the alternative. The ship may be employed in the service of a foreign prince, state, or potentate, or foreign state, colony, province, or part of any province or people; that is to say, if you find any consolidated body in the foreign state, whether it be the potentate, who has the absolute dominion, or the government, or a part of the province or of the people, or the whole of the province or the people acting for themselves, that is sufficient. But, by way of alternative, it is suggested that there may be a case where, although you cannot say that the province, or the people, or a part of the province or people, are employing the ship, there yet may be some person or persons who may [166 U.S. 1, 62] be exercising, or assuming to exercise, powers of government in the foreign colony or state, drawing the whole of the material aid for the hostile proceedings from abroad; and therefore, by way of alternative, it is stated to be sufficient if you find the ship prepared or acting in the service of 'any person or persons exercising, or assuming to exercise, any powers of government in or over any foreign state, colony, province, or part of any province or people'; but that alternative need not be resorted to if you find the ship is fitted out and armed for the purpose of being 'employed in the service of any foreign state or people, or part of any province or people.' ... 'It may be (it is not necessary to decide whether it is or not) that you could not state who were the person or persons, or that there were any person or persons, exercising, or assuming to exercise, powers of government in Cuba, in opposition to the Spanish authorities. That may be so. Their lordships express no opinion upon that subject, but they will assume that there might be a difficulty in bringing the case within that second alternative of the section; but their lordships are clearly of opinion that there is no difficulty in bringing the case under the first alternative of the section, because their lordships find these propositions established beyond all doubt: There was an insurrection in the island of Cuba; there were insurgents who had formed themselves into a body of people acting together, undertaking and conducting hostilities; these insurgents, beyond all doubt, formed part of the province or people of Cuba; and, beyond all doubt, the ship in question was to be employed, and was employed, in connection with and in the service of this body of insurgents.' We regard these observations as entirely apposite, and while the word 'people' may mean the entire body of the inhabitants of a state, or the state or nation collectively in its political capacity, or the ruling power of the country, its meaning in this branch of the section, taken in connection with the words 'colony' and 'district,' covers, in our judgment, any insurgent or insurrectionary 'body of people acting together, undertaking and conducting hostilities,' although [166 U.S. 1, 63] its belligerency has not been recognized. Nor is this view otherwise than confirmed by the use made of the same words in the succeeding part of the sentence, for they are there employed in another connection; that is, in relation to the cruising or the commission of hostilities 'against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace,' and, as thus used, are affected by obviously different considerations. If the necessity of recognition in respect of the objects of hostilities, by sea or land, were conceded, that would not involve the concession of such necessity in respect of those for whose service the vessel isfitted out. Any other conclusion rests on the unreasonable assumption that the act is to remain ineffectual unless the government incurs the restraints and liabilities incident to an acknowledgment of belligerency. On the one hand, pecuniary demands, reprisals, or even war may be the consequence of failure in the performance of obligations towards a friendly power, while on the other the recognition of belligerency involves the rights of blockade, visitation, search, and seizure of contraband articles on the high seas, and abandonment of claims for reparation on account of damages suffered by our citizens from the prevalence of warfare. No intention to circumscribe the means of avoiding the one by imposing as a condition the acceptance of the contingencies of the other can be imputed. Belligerency is recognized when a political struggle has attained a certain magnitude, and affects the interests of the recognizing power; and, in the instance of maritime operations, recognition may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates. The Ambrose Light, 25 Fed. 408; 3 Whart. Int. Law, 381, and authorities cited.
But it belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted according to the terms and intention expressed. The distinction between recognition of belligerency and recognition of a condition of political revolt-between recog- [166 U.S. 1, 64] nition of the existence of war in a material sense and of war in a legal sense-is sharply illustrated by the case before us; for here the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time, and since this forfeiture is alleged to have been incurred. On June 12, 1895, a formal proclamation was issued by the president, and countersigned by the secretary of state, informing the people of the United States that the Island of Cuba was 'the seat of serious civil disturbances, accompanied by armed resistance to the authority of the established government of Spain, a power with which the United States are and desire to remain on terms of peace and amity'; declaring that 'the laws of the United States prohibit their citizens, as well as all others being within and subject to their jurisdiction, from taking part in such disturbances adversely to such established government, by accepting or exercising commissions for warlike service against it, by enlistment or procuring others to enlist for such service, by fitting out or arming, or procuring to be fitted out and armed, ships of war for such service, by augmenting the force of any ship of war engaged in such service and arriving in a port of the United States, and by setting on foot or providing or preparing the means for military enterprises to be carried on from the United States against the territory of such government'; and admonishing all such citizens and other persons to abstain from any violation of these laws. In his annual message of December 2, 1895, the president said: 'Cuba is again gravely disturbed. An insurrection, in some respects more active than the last preceding revolt, which continued from 1868 to 1878, now exists in a large part of the eastern interior of the island, menacing even some populations on the coast. Besides deranging the commercial exchanges of the island, of which our country takes the predominant share, this flagrant condition of hostilities, by arousing sentimental sympathy and inciting adventurous support among our people, has entailed earnest effort on the part of this [166 U.S. 1, 65] government to enforce obedience to our neutrality laws, and to prevent the territory of the United States from being abused as a vantage ground from which to aid those in arms against Spanish sovereignty. 'Whatever may be the traditional sympathy of our countrymen as individuals with a people who seem to be struggling for larger autonomy and greater freedom, deepened as such sympathy naturally must be in behalf of our neighbors, yet the plain duty of their government is to observe in good faith the recognized obligations of international relationship. The performance of this duty should not be made more difficult by a disregard on the part of our citizens of the obligations growing out of their allegiance to their country, which should restrain them from violating as individuals the neutrality which the nation of which they are members is bound to observe in its relations to friendly sovereign states. Though neither the warmth of our people's sympathy with the Cuban insurgents, nor our loss and material damage consequent upon the futile endeavors thus far made to restore peace and order, nor any shock our humane sensibilities may have received from the cruelties which appear to especially characterize this sanguinary and fiercely conducted war, have in the least shaken the determination of the government to honestly fulfill every international obligation, yet it is to be earnestly hoped, on every ground, that the devastation of armed conflict may speedily be stayed, and order and quiet restored to the distracted island, bringing in their train the activity and thrift of peaceful pursuits.' July 27, 1896, a further proclamation was promulgated, and in the annual message of December 7, 1896, the president called attention to the fact that 'the insurrection in Cuba still continues with all its perplexities,' and gave an extended review of the situation. We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgment of the insurgents as belligerents by the political department has not taken [166 U.S. 1, 66] place; and it cannot be doubted that, this being so, the act in question is applicable. We see no justification for importing into section 5283 words which it does not contain, and which would make its operation depend upon the recognition of belligerency; and, while the libel might have been drawn with somewhat greater precision, we are of opinion that it should not have been dismissed.
68
This conclusion brings us to consider whether the vessel ought to have been released on bond and stipulation. It is provided by section 938 of the Revised Statutes that: 'Upon the prayer of any claimant to the court, that any vessel, goods, wares, or merchandise, seized and prosecuted under any law respecting the revenue from imports or tonnage, or the registering and recording, or the enrolling and licensing of vessels, or any part thereof, should be delivered to him, the court shall appoint three proper persons to appraise such property, who shall be sworn in open court, or before a commissioner appointed,' etc. 'If, on the return of the appraisement, the claimant, with one or more sureties, to be approved by the court, shall execute a bond to the United States,' etc., 'the court shall, by rule, order such vessel, goods, wares, or merchandise to be delivered to such claimant. ... ' Section 939 provides for the sale of vessels 'condemned by virtue of any law respecting the revenue from imports or tonnage, or the registering and recording, or the enrolling and licensing of vessels, and for which bond shall not have been given by the claimant. ...' Section 940 authorizes the judges to do in vacation everything that they could do in term time in regard to bonding and sales, and to 'exercise every other incidental power necessary to the complete execution of the authority herein granted.' Section 941 provides: 'When a warrant of arrest or other process in rem is issued in any cause of admiralty jurisdiction, except the cases of seizure for forfeiture under any law of the United States, the marshal shall stay the execution of such process, or discharge the property arrested if the process has been levied, on re-[166 U.S. 1, 67] ceiving from the claimant of the property a bond or stipulation in double the amount claimed by the libellant, with sufficient surety, to be approved by the judge,' etc. By section 917 this court may prescribe rules of practice in admiralty 'in any manner not inconsistent with any law of the United States.' Rule 10, as thus prescribed, provides for the sale of perishable articles or their delivery upon security to 'abide by and pay the money awarded by the final decree.' Rule 11 is as follows: 'In like manner, where any ship shall be arrested, the same may, upon the application of the claimant, be delivered to him upon a due appraisement, to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, as aforesaid; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court or otherwise disposed of, as it may deem most for the benefit of all concerned.' In The Mary N. Hogan, 17 Fed. 813, Judge Brown, of the Southern district of New York, refused to deliver the vessel on stipulation, and, referring to rule 11, said that it was not in form imperative in all cases, but left to the court a discretion which might be rightly exercised under peculiar circumstances; and that the rule clearly should not be applied where the object of the suit was 'not the enforcement of any money demand, nor to secure any payment of damages, but to take possession of and forfeit the vessel herself in order to prevent her departure upon an unlawful expedition in violation of the neutrality laws of the United States.' And he added: 'It is clearly not the intention of section 5283, in imposing a forfeiture, to accept the value of the vessel as the price of a hostile expedition against a friendly power, which might entail a hundredfold greater liabilities on the part of the government. No unnecessary interpretation of the rules should be adopted which would permit that result; and yet [166 U.S. 1, 68] such might be the result, and even the expected result, of a release of the vessel on bond. The plain intent of section 5283 is effectually to prevent any such expedition altogether, through the seizure and forfeiture of the vessel herself. The government is therefore entitled to retain her in custody, and rule 11 cannot be properly applied to such a case.' In The Alligator (decided in 1812) 1 Gall. 145, Fed. Cas. No. 248, Mr. Justice Story referred to an invariable practice, in all proper cases of seizure, to take bonds for the property whenever application was made by the claimant for the purpose, but that was a case where the claimant had been allowed to give bond without objection, and was attempting to avoid payment by alleging its irregularity; and in The Struggle (1813) 1 Gall. 476, Fed. Cas. No. 13,550, the same eminent judge, in making a similar ruling, said: 'That, where the
claimant voluntarily accepts a delivery on bail, it is an estoppel of his right to contest the validity of the security.' But in section 941 of the Revised Statutes the exception was introduced of 'cases of seizure for forfeiture under any law of the United States'; and it seems obvious that the release on bond of a vessel charged with liability to forfeiture under section 5283, before answer or hearing, and against the objection of the United States, could not have been contemplated. However, as this application was not based upon absolute right, but addressed to the sound discretion of the court, it is enough to hold that, under the circumstances of this case, the vessel should not have been released as it was, and should be recalled on the ground that the order of release was improvidently made. U. S. v. Ames, 99 U.S. 39, 41 , 43 S.. If the vessel is held without probable cause, her owners can recover demurrage; and, moreover, vessels so situated are frequently allowed to pursue their ordinary avocations whild in custody pending suit, under proper supervision, and in order to prevent hardship. The decree must be reversed, and the cause remanded to the district court, with directions to resume custody of the vessel, and proceed with the case in conformity with this opinion. Ordered accordingly. [166 U.S. 1, 69] Mr. Justice HARLAN, dissenting. I am unable to concur in the views expressed by the court in the opinion just delivered. In my judgment, a very strained construction has been put on the statute3 under which this case arises,-one not justified by its words, or by any facts disclosed by the record, or by any facts of a public character of which we may take judicial cognizance. It seems to me that the better construction is that given by the learned judge of the district court. I concur in the general views expressed in his able and satisfactory opinion, which is given below. That opinion so clearly and forcibly states the reasons in support of the conclusion reached by me that I am relieved of the labor of preparing one, which I would be glad to do if the pressure in respect of other business in the court did not render that course impracticable. The present case has been made to depend largely upon the language of public documents issued by the executive branch of the government. If the defects in the libel can be supplied in that way, reference should be made to the last annual message and accompanying documents sent by President Cleveland to the congress of the United States. In that message the president said that the so-called 'Cuban Government' had given up all attempt to exercise its functions, and that it was 'confessedly (what there is the best reason for [166 U.S. 1, 70] supposing it always to have been in fact) a government merely on paper.' And in his report to the president, under date of December 7, 1896, the secretary of state said: 'So far as our information shows, there is not only no effective local government by the insurgents in the territories they overrun, but there is not even a tangible pretense to established administration anywhere. Their organization, confined to the shifting exigencies of the military operations of the hour, is nomadic, without definite centers, and lacking the most elementary features of municipal government. There nowhere appears the nucleus of statehood. The machinery for exercising the legitimate rights and powers of sovereignty, and responding to the obligations which de facto sovereignty entails in the face of equal rights of other states, is conspicuously lacking. It is not possible to discern a homogeneous political entity, possessing and exercising the functions of administration, and capable, if left to itself, of maintaining orderly government in its own territory, and sustaining normal relations with the external family of governments.' It does not seem to me that the persons thus described as having no government except one on paper, with no power of administration, and entirely nomadic, constitute a colony, district, or 'people,' within the meaning of the statute. In my opinion, the words 'of any colony, district, or people' should be interpreted as applying only to a colony, district, or people that have 'subjects, citizens, or property.' I cannot agree that the persons described by the president and secretary of state can be properly regarded as constituting a colony, district, or people, having subjects, citizens, or property. It cannot be that the words 'any colony, district, or people,' where they first appear in section 5283, have any different meaning from the same words in a subsequent clause, 'the subjects, citizens, or property ... of any colony, district, or people with whom the United States are at peace.' The United States cannot properly be said to be 'at peace,' or not 'at peace,' with insurgents who have no government except 'on paper,' no power of administration, and are merely nomads. [166 U.S. 1, 71] DOCKE, District Judge.
This vessel has been libeled for forfeiture under the provisions of section 5283 of the Revised Statutes of the United States. The libel alleges that said steam vessel was on the 23d day of May, A. D. 1896, furnished, fitted, and armed 'with intent that she should be employed by certain insurgents or persons in the Island of Cuba to cruise or commit hostilities against the subjects, citizens, or property of the said Island of Cuba, and against the king of Spain, and the subjects, citizens, and property of the said king of Spain in the Island of Cuba, with whom the United States are and were at that date at peace.' To this there have been exceptions filed upon two grounds: (1) That forfeiture under this section depends upon the conviction of a person or persons for doing the acts denounced; and (2) That the libel does not show that the vessel was armed or fitted out with the intention that she should be employed in the service of a foreign prince or state, or of any colony, district, or people, recognized or known to the United States as a body politic. The first objection raised by these exceptions is easily disposed of by the language of the supreme court in the case of The Palmyra, 12 Wheat. 1, where, after elaborate argument, it is said: 'Many cases exist when the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam; many cases exist where there is both a forfeiture in rem and a personal penalty; but in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this court understands the law to be, that the proceeding in rem stands independent and wholly unaffected by any criminal proceeding in personam. ... In the judgment of this court, no personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature.' [166 U.S. 1, 72] The other question raised by the exceptions is more difficult, and requires a construction of the clause of the section 5283, 'with intent that such vessel should be employed in the service of any foreign prince or state, or of any colony, district, or people,' and more particularly the significance of the words 'colony, district, or people,' and a determination whether the requirements of the law are satisfied by the allegations of the libel that the vessel was intended to be employed 'in the service of certain insurgents or persons in the Island of Cuba,' and whether the statute admits a construction which would make a vessel liable to forfeiture when fitted out for the intended employment of any one or more persons not recognized as a political power by the executive of our nation. The section under which this libel has been filed was originally the third section of the act of June 5, 1794 (1 Stat. p. 281, c. 50), and the language at that time only contained the provision that the vessel should be fitted out with intent that said vessel should be employed in the service of any foreign prince or state to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state with whom the United States might be at peace. While that was the language of the act, the question came before the supreme court in the case of Gelston v. Hoyt, 3 Wheat. 328, and, in speaking of a plea considered necessary for a defense to a suit for damages for a seizure under this statute, it was held that such plea was bad, 'because it does not aver the governments of Petion and Christophe are foreign states which have been duly recognized as such by the government of the United States.' In this case there was no distinction made between the party in whose service the vessel was to be employed and the one against whom hostilities were intended, and the language of the court would fully justify the conclusion they should both have been recognized, either as princes or states. Subsequently, as is stated by Mr. Wharton in his work on International Law, upon the outbreak of war between the South American colonies and Spain, upon a special message [166 U.S. 1, 73] of the president to congress upon the subject, the words 'or of any colony, district, or people' were added to the description of both parties contemplated,-both that one into whose employment the vessel was to enter, and that one against whom the hostilities were contemplated. Has the addition of these words changed the character of the party intending to employ such vessel from that of a political power duly recognized as such, as is declared by the court in Gelston v. Hoyt, to that of a collection of individuals without any recognized political position? This question has been before the courts
frequently, and several times been examined and commented upon; but in no case which I have been able to find has it been so presented, unconnected with questions of fact, that there has been a ruling upon it so that it can be considered as final and conclusive. Beyond question the courts are bound by the actions of the political branch of the government in the recognition of the political character and relations of foreign nations, and of the conditions of peace or war. The act of 1794, as well as its modification, that act of 1818, used the same language in describing the power or party in whose behalf or into whose service the vessel was intended to enter as was used in describing the political power against which it is intended that hostilities should be committed; and, as far as the language itself goes, it is impossible to say that, in using the words in one clause of the sentence, the political character and power was intended, while in another clause of the same sentence words used in exactly the same connection, and with apparently the same force and meaning, were intended to represent, not the political power, but the individuals of a certain colony, district, or people. It is contended that although the original act of 1794 required the construction given it in Gelston v. Hoyt, that each party should be one duly recognized by the United States, yet the modification of 1818 so changed it that it should be held to apply to any persons, regardless of their political character, for whose service a vessel might be intended. It is understood that this modification was brought about [166 U.S. 1, 74] by the special message of President Madison of December 26, 1816. The question presented by this message is clearly set forth in the language used. He says: 'It is found that the existing laws have not the efficacy necessary to prevent violations of the United States as a nation at peace towards belligerent parties, and other unlawful acts on the high seas by armed vessels equipped within the waters of the United States.' In further explanation of the condition of affairs which called for this modification of this statute may be considered the letter of Mr. Monroe, secretary of state, to Mr. Forsythe, January 10, 1817, in which he speaks of vessels going out as merchant vessels, and hoisting the flag of some of the belligerents, and cruising under it; of other vessels, armed and equipped in our ports, hoisting such flags after getting out to sea; and of vessels having taken on board citizens of the United States, who, upon the arrival at neutral points, have assumed the character of officers and soldiers in the service of some of the parties in the contest then prevailing. All of this correspondence shows that the effort at that time was to enforce neutrality between recognized and belligerent parties. That the parties then in contest were recognized as belligerents, and a neutrality was sought to be preserved, is clearly shown by the first annual message of President Monroe, in 1817. He says: 'Through every stage of the conflict, the United States have maintained an impartial neutrality, giving aid to neither of the parties in men, money, ships, or munitions of war. They have regarded the contest, not in the light of an ordinary insurrection or rebellion, but as a civil war between parties nearly equal, having, as to neutral powers, equal rights. Our ports have been opened to both, and any article ... that either was permitted to take has been equally free to the other.' It is considered that this shows what was in contemplation at the time of the enactment of the law of 1818, and that what was intended was to prevent the fitting out of vessels to be employed in the service of a colony, district, or people which had been recognized as belligerents, but which had not been recognized as an independent state, or which was not represented in the political world by a prince.[166 U.S. 1, 75] There appears to be nothing in the remedy demanded at that time, or in the language used, to show that the words so added were intended to represent or be construed as referring to the individual people of any colony, district, or people, or any number of them, however designated, except as in their collective representative political capacity, any more than there is to show that the term 'state' in the original was intended to refer to the individual people of the state. The language of the foreign enlistment act of Great Britain (59 Geo. III. c. 69, 7) leaves no question as to the intention of parliament in that legislation, as it added to the words of our statute the words 'or part of any province or people or of any person exercising or assuming to exercise any powers of government in or over any foreign state, colony, province or parts of any province or people.' In order to give the statute under which this libel is brought the force contended for by the libelant, it is necessary to eliminate from the provision that makes it necessary to declare how the vessel is to be employed the entire clause 'in the service of any foreign prince or state, or of any colony, district, or people,' or to read into it the language found in the act of Great Britain or its equivalent. That it was the general
understanding at the time of the passage of the original act that it was considered to apply only to duly recognized nations is shown by the fact that in the case of U. S. v. Guinet, 2 Dall. 321, Fed. Cas. No. 15, 270, under this same section (the first case brought under it) the indictment alleged fully in terms that both the state of the republic of France, in whose service the vessel was to be employed, and the king of Great Britain, were a state and a prince with whom the United States was at peace. In the case of U. S. v. Quincy, 6 Pet. 445, the supreme court says that the word 'people' was used in this statute as simply descriptive of the power in whose service the vessel was intended to be employed, and is one of the denominations applied by the acts of congress to a foreign power. In the case of The Meteor, Fed. Cas. No. 9,498, where the original libel alleged that the vessel was fitted[166 U.S. 1, 76] out with the intent that she should be employed in the service of certain persons to commit hostilities against the government of Spain, it was considered necessary to amend it by alleging that she was intended to be employed by the government of Chili; and in that case there was presented a certificate of the secretary of state, under seal, of the fact of the war existing between Spain and Chili, and that they were both nations with whom the United States were at peace. In addition to the declaration of the supreme court in the cases of Gelston v. Hoyt and U. S. v. Quincy, this question has been incidentally under examination in several cases in the lower courts. In the case of The Carondelet, 37 Fed. 800, Judge Brown says: 'Section 5283 is designed in general to secure our neutrality between foreign belligerent powers. But there can be no obligation of neutrality except towards some recognized state or power, de jure or de facto. Neutrality presupposes two belligerents, at least; and, as respects any recognition of belligerency,- i. e., of belligerent rights,-the judiciary must follow the executive. To fall within the statute, the vessel must be intended to be employed in the service of one foreign prince, state, colony, district, or people to cruise or commit hostilities against the subjects, citizens, or property of another with which the United States are at peace. The United States can hardly be said to be at peace, in the sense of the statute, with a faction which they are unwilling to recognize as a government; nor could the cruising or committing of hostilities against such a mere faction well be said to be committing hostilities against the subjects, citizens, or property of a district or people, within the meaning of the statute. So, on the other hand, a vessel, in entering the service of the opposite faction of Hippolyte, could hardly be said to enter the service of a foreign prince or state, or of a colony, district, or people, unless our government had recognized Hippolyte's faction, as at least constituting a belligerent, which it does not appear to have done.' In the case of The Conserva, 38 Fed. 481, a case in which it was alleged the vessel was to be used in a contest between Legitime and Hippolyte, Judge Benedict says: 'The [166 U.S. 1, 77] libel in this case charges certain facts to have been done in connection with the vessel with the intention that the vessel be employed in the service of certain rebels in a state of insurrection against the organized and recognized government of Hayti, to cruise and commit hostilities against the subjects, citizens, or property of the republic of Hayti, with whom the United States are at peace. A violation of the neutrality which the United States is obliged to maintain between the rebels mentioned and the government of the republic of Hayti is the gravamen of the charge. But the evidence fails to show a state of facts from which the court concluded that the United States was ever under any obligation of neutrality to the rebels mentioned, or is now under any obligation of neutrality to the government of the republic of Hayti.' In the case of U. S. v. Trumbull, 48 Fed. 99, Judge Ross carefully reviews the different authorities, examines the question, and clearly indicates how he would have decided the question had it been necessary for the purposes of deciding the case before. He says: 'Does section 5283 of the Revised Statutes apply to any people whom it is optional with the United States to treat as pirates? That section is found in the chapter headed 'Neutrality,' and it was carried into the Revised Statutes, and was originally enacted in furtherance of the obligations of the nation as a neutral. The very idea of neutrality imports that the neutral will treat each contending party alike; and it will accord no right or privilege to one that it withholds from the other, and will withhold none from one that it accords to the other.' In speaking of the case of U. S. v. Quincy, in which it was said that the word 'people' 'was one of the denominations applied by the act of congress to a foreign power,' he says: 'This can hardly mean and association of people in no was recognized by the United States or by the government against which they are rebelling, whose rebellion has not attained the dignity of war, and who may, at the option of the United States, be treated by them as pirates.'
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In the case of U. S. v. The Itata, 5 C. C. A. 608, 56 Fed. 505, on appeal before the circuit court of appeals, the ques- [166 U.S. 1, 78] tion was fully and carefully considered in an elaborate opinion, and although not found necessary to decide the question in this case, as the case was disposed of upon other grounds, it is considered to be apparent how the question would have been decided had it been necessary. The force of the word 'people,' as used in this statute, is carefully examined, as well as all other questions, and it is considered that the force of the conclusion which must necessarily result from such investigations cannot be avoided. In the case of U. S. v. Hart, 74 Fed. 724, Judge Brown expresses his view of this section by saying: 'Section 5283 deals with armed cruisers, designed to commit hostilities in favor of one foreign power as against another foreign power with whom we are at peace.' The same language is used by the court in the case of Wiborg v. U. S., 163 U.S. 632 , 16 Sup. Ct. 1127, 1197, but it is contended in behalf of the libelant that this language was modified by the subsequent declaration, made in the same case, that the operation of this statute is not necessarily dependent on the existence of such state of billigerency. In using the latter language, it would seem that the court had the entire statute under contemplation, and more particularly section 5286, Rev. St. ( the sixth section of the original act), which plainly does not depend upon a state of belligerency or neutrality. This was the section then under consideration, as the immediate context and following sentence show, and was the section upon which the suit was based; and it cannot be considered that this language was intended to apply to another section, the consideration of which was in no way called in question. With this understanding of the language in this case, in that case, every judicial decision, remark, or ruling, where the question has been under consideration or examination, appears to be in favor of the position taken by the claimants in the exceptions. In the case of The Mary N. Hogan, 18 Fed. 529, and in the cases of the intended charge of that vessel, boxes of arms and ammunition (20 Fed. 50), it does not appear that this question was raised by the claimant or considered by [166 U.S. 1, 79] the learned judge; and his language in the subsequent case of The Carondelet, where it was raised and discussed, may be accepted as presumptive proof of what his decision would have been, had it been so considered. The same is true of the case of The City of Mexico, 28 Fed. 148, decided by me in this court. In that case the defense was upon entirely different grounds, and the force of the portion of the statute contended for, the necessity that there should be an intent not only that the vessel should intend to commit hostilities, but that for such purposes she should be employed in the service of some political power, was entirely lost sight of and eliminated from the consideration of the case. The only expression authoritatively given which I have been able to find opposed to the view of the claimant in his exceptions is that of a portion of the letter of the honorable attorney general to the secretary of state, of December 16, 1869 (13 Op. Attys. Gen. U. S. 177), and cited in the case of Wiborg v. U. S. I do not consider that I should be doing myself justice to pass that by unnoticed, as it has raised more questions in my mind, and called for and compelled more thought and consideration, than anything else connected with the case; but I feel compelled to reach a different conclusion than is there expressed. The general purpose and intent of that letter was to declare that the insurrection in Cuba was not a fitting opportunity to enforce the provisions of this law, inasmuch as we owed no duty to such insurgents to protect them from hostilities, or, rather, that any contest between Spain and such insurgents could not be considered as hostilities, but incidentally it was stated that a condition of belligerency was not necessary for the operation of this statute. It could not be considered that we owed such insurgents no such duty because we were not at peace with them, but because we had never recognized them as a colony, district, or people. The force and effect of the letter was that the Cuban insurgents had not been recognized as a colony, district, or [166 U.S. 1, 80] people, and therefore this section did not apply. If they had not been then so recognized, or were not entitled to be so recognized, how can they now be so recognized or described as to come within terms of the statute in question?
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It is considered that the argument used in such letter to show that the statute should be held applicable to cases where there was no condition of belligerency, and but one political power recognized, would have been fully as applicable under the old law, when the case of Gelston v. Hoyt decided to the contrary. The fact that a vessel was fitted out to be employed in the service of a prince would not necessarily imply that such prince was a political power recognized by the United States, any more than would the terms a 'colony, district, or people,' under the act of 1818. But the supreme court clearly held in that case that it must be alleged that such prince or state has been recognized as such by the United States. The same argument used therein would call for the application of this statute for the forfeiture of any vessel fitted out to be employed by any person, individual, corporation, or firm for the purpose of committing hostilities against a state at peace, which would plainly not come within the provisions of the statute, however, much it might be considered international policy or proper national conduct. It is impossible, in my view of the construction required by the language used, to properly apply the term 'a people,' used in the connection in which it is found, to any persons, few in number, and occupying a small territory, with no recognized political organization, although they might procure the fitting out and ariming of a vessel. I fail to find any ground for giving this statute-a criminal one, as it is- any but its ordinary application. The question presented is clear and distinct: Are 'certain insurgents or persons in the Island of Cuba' properly described by either of the terms 'a colony,' 'a district,' or 'a people,' and, if so, which? The inconveniences which might arise from the political branch of our government recognizing such insurgents as a colony, district, or people having political existence, and as belligerents, cannot be considered in determining whether they are entitled to such description.[166 U.S. 1, 81] This statute is a criminal and penal one, and is not to be enlarged beyond what the language clearly expresses as being intended. It is not the privilege of courts to construe such statutes according to the emergency of the occasion, or according to temporary questions of policy, but according to the principles considered to have been established by a line of judicial decisions. It is contended that, if the principles embodied in the exceptions are declared to be the law, there can be no law for the prevention of the fitting out of armed and hostile vessels to stir up insurrections and commit hostilities against nations with which we are at peace, and that such conclusion would make the parties engaged in any such expedition liable to prosecution as pirates. To the first of these points, it is considered that section 5286 is, as has been constantly held, intended to prevent any such expeditions, regardless of the character of the parties in whose behalf they were organized, the only distinction being that in that case it is necessary to bring a criminal suit, and prove overt acts; while under this portion of this section the intent is the gravamen of the charge and the prosecution is against the vessel, regardless of the persons engaged in the fitting out or the ignorance or innocence of the owners. This is not a case that can be or should be determined upon questions of public policy, and whether any parties subject themselves to prosecution for piracy or not should have no weight in its consideration. If they should be so subject, they would have the benefit of the necessity of proving piratical acts, rather than intentions. It is certainly considered to be true that any such parties would be considered as pirates by Spain, and would be treated as such if found in any acts of hostility, regardless of any recognition this nation might give them by considering them as having any political character as a people. Without attempting further argument, but regretting that the pressing duties of a very busy term of jury trials have prevented a fuller and more complete expression of my views, it is my conclusion that the line of judicial decisions demands [166 U.S. 1, 82] that a construction should be put upon the section in question which would hold that it was the intention of congress in such enactment to prevent recognized political powers from having vessels prepared for their service in the United States, but that it was not the intention to extend such prohibition to vessels fitted out to be employed by individuals or private parties, however they might be designated, for piratical or other hostilities, where no protection could be obtained by a commission from a recognized government. In such case they would be held liable under the section which provides for the fitting out of a military expedition, or, if they were guilty of any piratical acts upon the high seas, they would become liable under the laws for the punishment of such acts. It is considered that at the time of the amendment of 1818 this construction had been declared, and the language of the amendment was in no way intended to change such construction, but was only intended to apply to the new designation
of political powers, the existence of which had been recognized as belligerents, if not as independents, and who were entitled to the rights of neutrals; that the libel herein does not state such a case as is contemplated by the statute, in that it does not allege that said vessel had been fitted out with intent that she be employed in the service of any foreign prince or state, or of any colony, district, or people recognized as such by the political power of the United States, and, unless it can be so amended, should be dismissed; and it is so ordered. Since writing the foregoing, the libel herein has been amended by inserting, in place of 'by certain insurgents or persons in the Island of Cuba,' the words 'in the service of a certain people, to wit, certain people then engaged in armed resistance to the government of the king of Spain in the Island of Cuba'; but it is considered that the objection to the libel in sustaining the exceptions has not been overcome, but that, although the language has been somewhat changed, the substance has not been amended in the material part, inasmuch as it appears clearly that the word 'people' is used in an individual and personal sense, and not as an organized and [166 U.S. 1, 83] recognized political power in any way corresponding to a state, prince, colony, or district, and can in no way change my conclusion heretofore expressed; and the libel must be dismissed. Footnotes [ Footnote 1 ] Act June 5, 1794: 'Sec. 3. That if any person shall within any of the ports, harbors, bays, rivers or other waters of the United States, fit out and arm or attempt to fit out and arm or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state to cruise or commit hostilities upon the subjects, citizens or property of another foreign prince or state with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid, every such person so offending shall upon conviction be adjudged guilty of a high misdemeanor, and shall be fined and imprisoned at the discretion of the court in which the conviction shall be had, so as the fine to be imposed shall in no case be more than five thousand dollars and the term of imprisonment shall not exceed three years, and every such ship or vessel with her tackle, apparel and furniture together with all materials, arms, ammunition and stores which may have been procured for the building and equipment thereof shall be forfeited, one-half to the use of any person who shall give information of the offense, and the other half to the use of the United States.' Act March 3, 1817: 'Section 1. That if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arming, of any such ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, district or people to cruise or commit hostilities, or to aid or co-operate in any warlike measure whatever, against the subjects, citizens, or property, of any prince or state, or of any colony, district or people with whom the United States are at peace, every such person so offending shall, upon conviction, be adjudged guilty of a high misdemeanor, and shall be fined and imprisoned at the discretion of the court in which the conviction shall be had, so as the fine to be imposed shall in no case be more than ten thousand dollars, and the term of imprisonment shall not exceed ten years; and every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited, one-half to the use of any person who shall give information, and the other half to the use of the United States.' Act April 20, 1818: 'Sec. 3. That if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming, of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States, for any ship or vessel, to the intent that she may be employed as aforesaid, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years; and every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may
have been procured for the building and equipment thereof, shall be forfeited; one-half to the use of the informer, and the other haif to the use of the United States.' [ Footnote 2 ] That if any person, within any part of the United Kingdon, or in any part of his majesty's dominions beyond the seas, shall, without the leave and license of his majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out or arm, or attempt or endeavor to equip, furnish, fit out or arm, or procure to be equipped, furnished, fitted out or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out or arming of any ship or vessel with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state or potentate, or of any foreign colony, province or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province or part of any province or people, as a transport or storeship, or with intent to cruise or commit hostilities against any prince, state or potentate, or against the subjects or citizens of any prince, state or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province or part of any province or country, or against the inhabitants of any foreign colony, province or part of any province or country, with whom his majesty shall not then be at war; or shall, within the United Kingdom, or any of his majesty's dominions, or in any settlement, colony, territory, island or place belonging or subject to his majesty, issue or deliver any commission for any ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid, etc. [ Footnote 3 ] 'Sec. 5283. Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting out or arming, of any vessel with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district or people, to cruise or commit hostilities against the subjects, citizens or property of any foreign prince or state, or of any colony, district or people, with whom the United States are at peace, or who issues or delivers a commission within the territory or jurisdiction of the United States for any vessel, to the intent that she may be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years. And every such vessel, her tackle, apparel and furniture, together with all materials, arms, ammunition and stores, which may have been procured for the building and equipment thereof, shall be forfeited; one- half to the use of the informer and the other half to the use of the United States.
77

Public International Law - Cases For Midterms

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CASE 1

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

infringement or unfair brands/trademark.

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

CASE 9: Mighell vs. Sultan of Johore (see separate PDF File)

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

A. W. Cockrell, for respondents.

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

Public International Law Volume I (For Midterms)

Bachelor of Laws 2-A

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