Horace Gray

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 capture them so soon as any danger arose that they or their crews might be of military use to the enemy ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 fishing vessels of the enemy's coasts, considering this industry as absolutely inoffensive, and deserving, from its hardships and usefulness, of this favorable exception. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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 fishing along the coasts, cannot be subject to capture ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ The Paquete Habana was a sloop, 43 feet long on the keel, 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. ”

“ 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.) ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”