UNIVERSITY of CALIFORNIA
AT
LOS ANGELES LIBRARY
\
INTERNATIONAL LAW.
RECENT SUPREME COURT DECISIONS
AND
OTHER OPINIONS AND PRECEDENTS.
PREPARED UNDER THE DIRECTION OF THE
UNITED STATES NAVAL WAR COLLEGE.
WASHINGTON:
GOVERNMENT PRINTING OFFICE. 1904.
115583
NOTE.
These decisions and other precedents, including1 those arising1 during the Spanish-American war, were originally compiled by Captain C. H. Stockton, U. S. Navy, under the direction of the United States Naval War College. With some additions they have been arranged and pre- pared for publication by the college staff.
MARCH, 1904.
TABLE OF CONTENTS.
SUPREME COURT DECISIONS.
Page.
UNITED STATES r. RODGERS 5
THREE FRIENDS 20
UNDERBILL v. HERNANDEZ 37
OLINDE RODRIGUES 40
PEDRO 58
BUENA VENTURA 70
PAQUETE HABANA, AND LOLA 80
ADULA 105
PANAMA 123
BENITO ESTENGER 136
CARLOS F. ROSES 146
OTHER OPINIONS AND PRECEDENTS.
INTERNATIONAL BOUNDARY QUESTIONS:
Title by prescription defined 165
JURISDICTION OK THE UNITED STATES OVER BERING SEA:
Fur seal arbitration 166
RIGHTS OF UNITED STATES CITIZENS IN FOREIGN COUNTRIES:
Damages due for illegal imprisonment 173
EXTRATERRITORIAL RIGHTS IN CHINA:
As to municipality of Shanghai 174
COOPERATION OF CIVILIZED POWERS IN NON-CHRISTIAN AND SEMICIVILIZED COUNTRIES:
Extracts from British Admiralty station orders for China 177
INJURIES TO FOREIGNERS BY MOB VIOLENCE:
Case of Italian subjects in New Orleans 183
Case of Antonio Abbagnato 190
ARREST OF DESERTERS UNDER FOREIGN FLAG IN HOME JURISDICTION:
Procedure recommended 192
AMERICAN CITIZENS EXILED FROM FOREIGN COUNTRIES FOR CAUSE:
As to- their right to reenter without permission 193
SUBMARINE CABLES IN ENEMY COUNTRY:
Subject to damage as incident of war 194
CONTINUOUS VOYAGES:
Case of the Bundesrath in the South African war 195
STATUS OF AUXILIARY CRUISERS IN TIME OF WAR:
Case of the Yale 200
MILITARY OCCUPATION:
War Department General Orders, No. 101, publishing Executive Order for the government of United States forces during the military occupation
of Santiago de Cuba 202
RIGHT OF MILITARY AUTHORITIES TO IMPOSE TARIFF UPON IMPORTS DURING
MILITARY OCCUPATION '_. 205
ASSUMPTION OF CONSULAR FUNCTIONS BY NAVAL OFFICERS IN TERRITORY HELD
BY MILITARY OCCUPATION 205
INSURGENT BLOCKADE:
Certain conclusions of the Department of State 206
3
INTERNATIONAL LAW: RECENT SUPREME COURT DECISIONS AND OTHER OPINIONS AND PRECEDENTS,
CASE OF UNITED STATES v. RODGERS.
CERTIFICATE OF DIVISION IN OPINION FROM THE EASTERN DIS- TRICT OF MICHIGAN.
(Vol. 150, United States Reports, p. 249. Decided November 20, 1893. MR. JUSTICE FIELD delivered the opinion of the court.)
In Februarv, 1888, the defendant, Robert S. Rodgers statement of
the case
and others, were indicted in the District Court of the United States for the Eastern District of Michigan for assaulting, in August, 1887, with a dangerous weapon, one James Downs, on board of the steamer Alaska, a vessel belonging to citizens of the United States, and then being within the admirality jurisdiction of the United States, and not within the jurisdiction of any particular state of the United States, viz. within the territorial limits of the Dominion of Canada.
The indictment contained six counts, charging the offence to have been committed in different ways, or with different intent, and was remitted to the Circuit Court for the Sixth Circuit of the Eastern District of Michigan. There the defendant tiled a plea to the jurisdiction of the court, alleging that it had no jurisdiction of the matters charged, as appeared on the face of the indictment, and to the plea a demurrer was tiled. Upon this demurrer the judges of the Circuit Court were divided in opinion, and they transmitted to this court the following certificate of division:
' ' Certtfwt* of Division of Opin ion .
ion.
"United States of America. The Circuit Court of the United States for the Sixth Circuit and Eastern District of Michigan.
"THE UNITED STATES]
w. ROBERT S. RODGERS. J
"The defendant in this cause was indicted on the twenty-fourth day of February, in the 3*ear of our Lord
5
6
one thousand eight hundred and eighty-eight, in the Dis- trict Court of the United States for the Eastern District of Michigan, together with John Gustave Beyers and others, charged, under section 5346 of the Revised Stat- utes of the United States, with, having made an assault with dangerous weapons upon one James Downs, the assault having taken place on the steamer Alaska, a ves- sel owned by citizens of the United States, while such vessel was in the Detroit River, out of the jurisdiction of any particular State of the United States and within the territorial limits of the Dominion of Canada, and the said Robert S. Rodgers, and the others indicted with him, hav- ing first, after the assault, come to the United States in the Eastern District of Michigan.
"On the twentieth day of September, in the year of our Lord one thousand eight hundred and eighty-nine, the defendant Rodgers was arrested, and on the same day the indictment was, on motion of the United States attorney for the Eastern District of Michigan, and by order of the District Court for such district, remitted to the Circuit Court for such district, and, with all proceedings thereto- fore taken, certified to such Circuit Court.
"On the twenty-third day of September, in the year of our Lord one thousand eight hundred and eighty-nine, the defendant, on being called upon to plead in the Circuit Court of the United States for the Eastern District of Michigan, by permission of the court pleaded in abatement to the jurisdiction of the court, claiming that under sec- tion 5346 of the Revised Statutes of the United States the courts of the United States have no jurisdiction of offences committed in the Detroit River on a vessel of the United States within the territorial limits of the Dominion of Canada.
"The United States, by C. P. Black, United States attorney, and Charles T. Wilkins, assistant United States attorney for the Eastern District of Michigan, demurred to such plea, and the defendant joined on demurrer.
"The matter of the plea of the jurisdiction coming on
to be heard in the Circuit Court of the United States for
the Eastern District of Michigan, on the third day of
October, in the jrear of our Lord eighteen hundred and
eighty-nine, before the circuit and district judges, and
the defendant being present in court, the said circuit and
district judges were divided in opinion on the question:
Question upon ' Whether the courts of the United States have jurisdiction,
arose. under section 534-6 of the Revised Statutes of the United
States, to try a person for an assault, with a dangerous weapon, committed on a vessel belonging to a citizen of the United States, when such vessel is in the Detroit J^iver, out of the j urisdiction of any particular State and within the territorial limits of the Dominion of Canada.^
"And so, at the request of the defendant and of the United States attorney for this district, the circuit and district judges do hereby at the same term state this point upon which they disagree, and hereby direct the same to be certified under the seal of the Circuit Court of the United States for the Eastern District of Michigan to the Supreme Court of the United States at its next session, for its opinion thereon.
"HOWELL E. JACKSON,
" Circuit Judge. "HENRY B BROWN,
" District Judge"
Section 5346 of the Revised Statutes, upon which the indictment was found, is as follows:
"SEC. 5346. Every person who, upon the high seas, or R|vfSedstat mis' in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admirality jurisdiction of the United States, and out of the jurisdiction of an}^ particular State, on board any vessel belonging in whole or part to the United States, or an}- citizen thereof, with a dangerous weapon, or with intent to perpetrate any felony, commits an assault on another shall be punished by a fine of not more than three thousand dollars and by imprisonment at hard labor not more than three years."
The statute relating to the place of trial in this case is contained in section 730 of the Revised Statutes, which is as follows:
"Sfic. 730. The trial of all offences committed upon the high seas or elsewhere, out of the jurisdiction of any particular State or district, shall be in the district, where the offender is found or into which he is first brought."
MR. JUSTICE FIELD delivered the opinion of the court: Several questions of interest arise upon the construe- opinion, tion of section 5346 of the Revised Statues, upon which the indictment in this case was found. The principal one is whether the term "high seas", as there used, is appli-mj^nfng>ofwrm> cable to the open, unenclosed waters of the Great Lakes, "hi«h seas-" between which the Detroit River is a connecting stream. The term was formerly used, particularly by writers on ^Former meau. public law, and generally in official communications
8
between different governments, to designate the open, unenclosed waters of the ocean, or of the British seas, outside of their ports or Havens. At one time it was claimed that the ocean, or portions of it, were .subject to the exclusive use of particular nations. The Spaniards, claims in leth m tne \gth century, asserted the right to exclude all
and 17th centu- » ' »
ries- others from the Pacific Ocean. The Portuguese claimed,
with the Spaniards, under the grant of Pope Alexander VI., the exclusive use of the Atlantic Ocean west and south of a designated line. And the English, in the 17th century, claimed the exclusive right to navigate the seas surrounding Great Britain. Woolsey on International Law, §55.
In the discussion which took place in support of and against these extravagant pretensions the term "high seas" was applied, in the sense stated. It was also used in that sense by English courts and law writers. There was no discussion with them as to the waters of other seas. The public discussions were generally limited to the con- sideration of the question whether the high seas, that is, the open, unenclosed seas, as above defined, or any portion thereof, could be the property or under the exclusive juris- diction of any nation, or whether they were open and free to the navigation of all nations. The inquiry in the Eng- lish courts was generally limited to the question whether the jurisdiction of the admiralty extended to the waters of bays and harbors, such extension depending upon the fact whether they constituted a part of the high seas. Haie'sdefini- Jn his treatise on the rights of the sea, Sir Matthew
tion. to .
Hale says: "The sea is either that which lies within the body of a county, or without. That arm or branch of the sea which lies within the fauces terrse, where a man may reasonably discern between shore and shore, is, or at least may be, within the bod}7 of a county, and, therefore, within the jurisdiction of the sheriff or coroner. That part of the sea which lies not within the body of a county is called the main sea or ocean." De Jure Maris, c. iv. By the "main sea" Hale here means the same thing expressed 03^ the term " high sea" — " mare altum" or " le haut meer." defiSuions.°ourt In Waring v. Clarke, 5 How. 440, 453, this court said that it had been frequently adjudicated in the English common law courts since the restraining statutes of Rich- ard II. and Henry IV., "that high seas mean that portion of the sea which washes the open coast." In United States v. Grush^ 5 Mason, 290, it was held by Mr. Justice Story,
9
in the United States Circuit Court, that the term " high seas," in its usual sense, expresses the unenclosed ocean or that portion of the sea which is without the fauces /< /vvf on the sea coast, in contradistinction to that which is surrounded or enclosed between narrow headlands or promontories. It was the open, unenclosed waters of the ocean, or the open, unenclosed waters of the sea, which constituted the "high seas" in his judgment. There was no distinction made by him between the ocean and the sea, and there was no occasion for any such distinction. The question in issue was whether the alleged offences were committed within a county of Massachusetts on the sea coast, or without it, for in the latter case the}7 were com- mitted upon the high seas and within the statute. It was held that they were committed in the county of Suffolk, and thus were not covered by the statute.
If there were no seas other than the ocean, the term "high seas" would be limited to the open, unenclosed waters of the ocean. But as there are other seas besides the ocean, there must be high^eas other than those of the ocean. A large commerce is conducted on seas other than the ocean and the English seas, and it is equally necessary to distinguish between their open waters and their ports and havens, and to provide for offences on vessels navigat- ing those waters and for collisions between them. The incites dSistfnc- term "high seas" does not, in either case, indicate any ope" waters and separate and distinct body of water; but only the open and%heawatere waters of the sea or ocean, as distinguished from ports twee^6 narrow and havens and waters within narrow headlands on the headlands- coast. This distinction was observed by Latin writers between the ports and havens of the Mediterranean and its open waters — the latter being termed the high seas.1 In that sense the term may also be properly used in refer- ence to the open waters of the Baltic and the Black Sea, both of which are inland seas, finding their way to the ocean by a narrow and distant channel. Indeed, wherever there are seas in fact, free to the navigation of all nations and people on their borders, their open waters outside of the portion " surrounded or enclosed between narrow headlands or promontories," on the coast, as stated by Mr. Justice Ston-, or "without the body of a county,"
1 " Insula portion.
Effirit objertu lateruin, quibtis omnis ab alto Frangitnr, inque sinus sriinlit si'se unda reductos."
. — The ^Eneid, Lib. 1, v. 159-1H1.
10
«,s declared by Sir Matthew Hale, are properly character- ized as high seas, by whatever name the bodies of water of which the}* are a part may be designated. Their names xlo not determine their character. There are, as said above, high seas on the Mediterranean, (meaning outside •of the enclosed waters along its coast,) upon which the principal commerce of the ancient world was conducted and its great naval battles fought. To hold that on such seas there are no high seas, within the true meaning of that term, that is, no open, unenclosed waters, free to the navigation of all nations and people on their borders, would be to place upon that term a narrow and contracted supremecourt's meaning. We prefer to use it in its true sense, as appli-
Interpretation of
the term "high cable to the open, unenclosed waters of all seas, than to adhere to the common meaning of the term two centuries ago, when it was generally limited to the open waters of the ocean and of seas surrounding Great Britain, the free- dom of which was then the principal subject of discussion. If it be conceded, as we think it must be, that the open, unenclosed waters of the Mediterranean are high seas, that concession is a sufficient answer to the claim that the high seas always denote the open waters of the ocean.
Whether the term is applied to the open waters of the ocean or of a particular sea, in any case, will depend upon the context or circumstances attending its use, which in all cases affect, more or less, the meaning of language. It may be conceded that if a statement is made that a vessel is on the high seas, without any qualification by language or circumstance, it will be generally understood as mean- ing that the vessel is upon the open waters of one of the oceans of the world. It is true, also, that the ocean is often spoken of by writers on public law as the sea, and characteristics are then ascribed to the sea generally which are properly applicable to the ocean alone; as, for instance, that its open waters are the highway of all nations. Still the fact remains that there are other seas than the ocean whose open waters constitute a free highway for naviga- tion to the nations and people residing on their borders, and are not a free highway to other nations and people, •except there be free access to those seas by open waters or by conventional arrangements.
As thus defined, the term would be as applicable to the open waters of the great Northern lakes as it is to the open waters of those bodies usually designated as seas.
11
The Great Lakes possess every essential characteristic of Great Lakes are
, •11-1111 essentially seas:
seas. They are or large extent in length and breadth; their being tide-
.,1111 f ... ,. . lessand fresh is
they are navigable the whole distance in either direction nonessemiai. by the largest vessels known to commerce; objects are not distinguishable from the opposite shores; they separate, in many instances, States, and in some instances constitute the boundary between independent nations; and their waters, after passing long distances, debouch into the ocean. The fact that their waters are fresh and not sub- ject to the tides, does not affect their essential character as seas. Many seas are tideless, and the waters of some are saline only in a very slight degree.
The waters of Lake Superior, the most northern of these lakes, after traversing nearly 400 miles, with an average breadth of over 100 miles, and those of Lake Michigan, which extend over 350 miles, with an average breadth of 65 miles, join Lake Huron, and, after flowing about 250 miles, with an average breadth of 70 miles, pass into the river St. Clair; thence through the small lake of St. Clair into the Detroit River; thence into Lake Erie and, by the Niagara River, into Lake Ontario; whence they pass, by the river St. Lawrence, to the ocean, mak- ing a total distance of over 2,000 miles. Encj*. Britan- nica, vol. 21, p. 178. The area of the Great Lakes, in round numbers, is 100,000 square miles. Ibid. vol. 14, p. 217. They are of larger dimensions than man}' inland seas which are at an equal or greater distance from the ocean. The waters of the Black Sea travel a like distance before they come into contact with the ocean. Their first outlet is through the Bosphorus, which is about 20 miles long and for the greater part of its way less than a mile in width, into the sea of Marmora, and through that to the Dardanelles, which is about 40 miles in length and less than four miles in width, and then they find their way through the islands of the Greek Archipelago, up the Mediterranean Sea. past the Straits of Gibraltar to the ocean, a distance, also, of over 2,000 miles.
In the Genesee Chief case. 12 How. 443, this court, in Previous su-
' preme Court pro-
considering whether the admiralty jurisdiction of the nouncements iu United States extended to the Great Lakes, and speaking, through Chief Justice Taney, of the general character of those lakes, said: k*These lakes are, in truth, inland seas. Different Static border on them on one side, and a foreign nation on the other. A great and growing commerce is
12
carried on upon them between different States and a for- eign nation, which is subject to all the incidents and haz- ards that attend commerce on the ocean. Hostile fleets have encountered on them, and prizes been made; and every reason which existed for the grant of admiralty jurisdiction to the general government on the Atlantic seas applies with equal force to the lakes. There is an equal necessitj^ for the instance and for the prize power of the admiralty court to administer international law, and if the one cannot be established, neither can the other. " (p. 453.)
After using this language, the Chief Justice commented upon the inequalit3T which would exist, in the administra- tion of justice, between the citizens of the States on the lakes, if, on account of the absence of tide water in those lakes, they were not entitled to the remedies afforded by the grant of admiralty jurisdiction of the Constitution, and the citizens of the States bordering on the ocean or upon navigable waters affected by the tides. The court, per- ceiving that the reason for the exercise of the jurisdiction did not in fact depend upon the tidal character of the waters, but upon their practical navigabilit\T for the pur- poses of commerce, disregarded the test of tide waters pre- vailing in England as inapplicable to our country with its vast extent of inland waters. Acting upon like considera- tions in the application of the term "high seas" to the waters of the Great Lakes, which are equally navigable, for the purposes of commerce, in all respects, with the bodies of water usually designated as seas, and are in no respect affected by the tidal or saline character of their waters, we disregard the distinctions made between salt and fresh water seas, which are not essential, and hold
intenatsofntfhe'statd tnat ^6 reason °f the statute, in providing for protection against violent assaults on vessels in tidal waters, is no greater but identical with the reason for providing against similar assaults on vessels in navigable waters that are neither tidal nor saline. The statute was intended to ex- tend protection to persons on vessels belonging to citizens of the United States, not only upon the high seas, but in all navigable waters of every kind out of the jurisdiction of any particular State, whether moved by the tides or free from their influence.
Fron£ca8e.Lake The character of these lakes as seas was recognized by this court in the recent Chicago Ldke Front casc\ where we said: ""These lakes possess all the general characteris-
13
tics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide." "In other respects," we added, "they are inland seas, and there is no reason or principle for the assertion of domin- ion and sovereignty over and ownership by the State of lands covered by tide waters that is not equally appli- cable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these lakes." Illinois Central Railroad v. Illinois, 146, U. S. 387,435.
It is to be observed also that the term "high" in one of t.One, 4lignifica;
& f tion of the word
its significations is used to denote that which is common, "high" and its
" application.
open, and public. Thus eveiy road or way or navigable river which is used freely by the public is a "high" way. So a large body of navigable water other than a river, which is of an extent be^vond the measurement of one's unaided vision, and is open and unconfined, and not under the exclusive control of anjT one nation or people, but is the free highway of adjoining nations or people, must fall under the definition of "high seas" within the meaning of the statute. We may as appropriately designate the open, unenclosed waters of the lakes as the high seas of the lakes, us to designate similar waters of the ocean as the high seas of the ocean, or similar waters of the Mediterranean as the high seas of the Mediterranean.
The language of section 5346, immediately following the context of s-ec.
,,,. , ,, , , . ,,' ,, £ . , ,, 5346 lends force to
term "high seas, declaring the penalty lor violent assaults the above con- when committed on board of a vessel in any arm of the seas ' or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State, equally as when com- mitted on board of a vessel on the high seas, lends force to the construction given to that term. The language used must be read in conjunction with that term, and as refer- ring to navigable waters out of the jurisdiction of any par- ticular State, but connecting with the high seas mentioned. The Detroit River, upon which was the steamer Alaska at the time the assault was committed, connects the waters of Lake Huron (with which, as stated above, the waters of Lake Superior and Lake Michigan join) with the waters of Lake Erie, and separates the Dominion of Canada from the United States, constituting the boundary between them, the dividing line running nearly midway between its banks, as established by commissioners, pursuant to the treaty between the two countries. 8 Stat. 274, 276. The river is about 22 miles in length and from one to three miles in
14
width, and is navigable at all seasons of the year by vessels- of the largest size. The number of vessels passing through it each 3rear is immense. Between the years 1880 and 1892, inclusive, they averaged from thirty-one to forty thousand a year, having a tonnage varying from sixteen to twenty- four millions.1 In traversing the river they are constant!}' passing from the territorial jurisdiction of the one nation to that of the other. All of them, however, so far as trans- actions had on board are concerned, are deemed to be within the country of their owners. Constructively they con- stitute a part of the territory of the nation to which the owners belong. Whilst they are on the navigable waters Admiralty of the river they are within the admiralty jurisdiction of
jurisdiction over . * ...... . , * , ,
vessels in the DC- that country. Inis lurisdiction is not changed by the fact
troit River. J • ui • 4.- •
that each of the neigh boring nations may in some cases assert its own authority over persons on such vessels in relation to acts committed by them within its territorial limits. In what cases jurisdiction by each country will be thus asserted and to what extent, it is not necessary to inquire, for no question on that point is presented for our General rule, consideration. The general rule is that the country to which the vessel belongs will exercise jurisdiction over all matters affecting the vessel or those belonging to her, with- out interference of the local government, unless they involve its peace, dignity, or tranquility, in which case it may assert its authorit}T. Wildenhus's case, 120, U. S., lr 12; Halleck on International Law, c. vii, § 26, p. 17i. The admiralty jurisdiction of the country of the owners of the steamer upon which the offence charged was committed is not denied. They being citizens of the United States, and the steamer being upon navigable waters, it is deemed
1 The following statement, furnished by Colonel O. M. Poe, of the Engineer Corps, shows the traffic through Detroit River for the years indicated:
|
Year. |
Number of vessels. |
Registered tonnage. |
Year. |
Number of vessels. |
Registered tonnage. |
|
1880 |
40, 521 |
20,235,249 |
1887 . . . |
38,125 |
18,864,250 |
|
1881 |
35 888 |
17 572,240 |
1888 |
31,404 |
19,099,060 |
|
1882 |
35,199 |
17, 872, 182 |
1889 |
32, 415 |
19,646,000 |
|
1883 |
40,385 |
17,695,174 |
1890 |
35, 640 |
21,684,000 |
|
1884 |
38 742 |
18,045,949 |
1891 |
34, 251 |
22, 160, 000 |
|
1885 |
34, 921 |
16,777,828 |
1892 |
... 33,860 |
24, 785, 000 |
|
1886 |
38 261 |
18, 968, 065 |
|||
Colonel Poe adds: "This statement does not include Canadian ves- sels, a large number of which use this channel, nor does it include any vessels not clearing from the various custom houses. Were these included, a considerably greater showing could be made. They are not included because the statistics can not be obtained.
15
to be within the admiralty jurisdiction of the United States. It way, therefore, perfectly competent for Congress to enact that parties on board committing- an assault with a dangerous weapon should be punished when brought within the jurisdiction of the District Court of the United States. But it will hardly be claimed that Congress by the legis- lation in question intended that violent assaults committed upon persons on vessels owned b}' citizens of the United States in the Detroit River, without the jurisdiction of any particular State, should be punished, and that similar offences upon persons on vessels of like owners upon the adjoining lakes should be unprovided for. If the law can, be deemed applicable to offences committed on vessels in any navigable river, haven, creek, basin, or bay, connect- ing with the lakes, out of the jurisdiction of any particular State, it would not be reasonable to suppose that Congress intended that no remedy should be afforded for similar offences committed on vessels upon the lakes, to which the vessels on the river, in almost all instances, are directed, and upon whose waters they are to be chiefly engaged. The more reasonable inference is that Congress intended Reason a bi'e-
i j .1 IT ,.,11. i construction of
to include the open, unenclosed waters of the lakes under term "high.seas."- the designation of high seas. The term, in the eye of reason, is applicable to the open, unenclosed portion of all large bodies of navigable waters, whose extent can not be measured by one's vision, and the navigation of which is free to all nations and people on their borders, by what- ever names those bodies may be locally designated. la some countries small lakes are called seasr as in the case of the Sea of Galilee, in Palestine. In other countries large bodies of waters, greater than many bodies denom- inated seas, are called lakes, gulfs, or basins. The nomen- clature, however, does not change the real character of either, nor should it affect our construction of terms prop- erl}' applicable to the waters of either. By giving to the term "high seas" the construction, indicated, there is con- sistenc}7 and sense in the whole statute, but there is neither if it be disregarded. If the term applies to the open, unen- closed waters of the lakes, the application of the legisla- tion to the case under indictment cannot be questioned, for the Detroit River is a water connecting such high seas, and all that portion which is north of the boundary line between the United States and Canada is without the juris- diction of any State of the Union. But if they be con- sidered as not thus apply ing. it is difficult to give any force to the rest of the statute without supposing that Congresa
16
intended to provide against violence on board of vessels in navigable rivers, havens, creeks, basins, and bays, with- out the jurisdiction of any particular State, and inten- tionall}' omitted the much more important provision for like violence and disturbances on vessels upon the Great Lakes. All vessels in any navigable river, haven, creek, basin, or bay of the lakes, whether within or without the jurisdiction of any particular State, would some time find their way upon the waters of the lakes; and it is not a reasonable inference that Congress intended that the law should apply to offences only on a limited portion of the route over which the vessels were expected to pass, and that no provision should be made for such offences over a much greater distance on the lakes.
Congress in thus designating the open, unenclosed por- tion of large bodies of water, extending beyond one's vision, naturally used the same term to indicate it as was used with reference to similar portions of the ocean or of bodies which had been designated as seas. When Con- gress, in 1790, first used that term the existence of the Great Lakes was known; they had been visited by great numbers of persons in trading with the neighboring Indians, and their immense extent and character were gen- erally understood. Much more accurate was this knowl- edge when the act of March 3, 1825, was passed, 4 Stat. 115, c. 65, and when the provisions of section 5346 were ree'n- acted in the Revised Statutes in 1874. In all these cases, when Congress provided for the punishment of violence on board of vessels, it must have intended that the provision should extend to vessels on those waters the same as to vessels on seas, technically so called. There were no bodies of water in the United States to any portion of which the term "high seas" was applicable if not to the open, unenclosed waters of the Great Lakes. It does not seem reasonable to suppose that Congress intended to confine its legislation to the high seas of the ocean, and to its navigable rivers, havens, creeks, basins, and bays, without the jurisdiction of any State, and to make no pro- vision for offences on those vast bodies of inland waters of the United States. There are vessels of every descrip- tion on those inland seas now carrying on a commerce greater than the commerce on any other inland seas of the world. And we cannot believe that the Congress of the United States purpose!}7 left for a century those who
17
navigated and those who were conveyed in vessels upon those seas .without any protection.
The statute under consideration provides that every person who, upon the high seas or in any river connected with them, as we construe its language, within the admi- ralty jurisdiction of the United States, and out of the juris- diction of any particular State, commits, on board of any vessel belonging in whole or in part to the United States, or any citizen thereof, an assault on another with a dangerous weapon or with intent to perpetrate a felony, shall be punished, etc. The Detroit River, from shore to shore, is within the admiralty jurisdiction of the United States, risdictu>n ov'e'r and connects with the open waters of the lakes — high seas, defined, as we hold them to be, within the meaning of the statute. From the boundary line, near its center, to the Canadian shore it is out of the jurisdiction of the State of Michigan. The case presented is therefore directly within its provi- sions. The act of Congress of September 4, 1890, 26 Stat. 424, c. 874, (1 Sup. to the Rev. Stat. chap. 874, p. 799,) providing for the punishment of crimes subsequently com- mitted on the Great Lakes, does not, of course, affect the the construction of the law previously existing.
We are not unmindful of the fact that it was held by the Supreme Court of Michigan in People v. Tyler, 7 Mich- igan, 161, that the criminal jurisdiction of the Federal courts did not extend to offences committed upon vessels on the lakes. The judges who rendered that decision were able and distinguished; but that fact, whilst it justly calls for a careful consideration of their reasoning, does not render their conclusion binding or authoritative upon this court. Their opinions show that they did not accept the doctrine extending the admiralty jurisdiction to cases on the lakes and navigable rivers, which is now generally, we might say almost universally, received as sound by the judicial tribunals of the country. It is true, as there stated, that, as a general principle, the criminal laws of a nation do not operate beyond its territorial limits, and that to give any government, or its judicial tribunals, the right to punish any act or transaction as a crime, it must have occurred within those limits. We accept this doctrine as a general rule, but there are exceptions to it as f ully recog- nized as the doctrine itself. One of those exceptions is that offences committed upon vessels belonging to citizens of the United States, within the admiralt}T jurisdiction. 2056—04 2
18
(that is, within navigable waters,) though out of the terri- torial limits of the United States, may be judicially con- sidered when the vessel and parties are brought within their territorial jurisdiction. As we have before stated, a vessel is deemed part of the territory of the country to which she belongs. Upon that subject we quote the language of Mr. Webster, while Secretary of State, in his letter to Lord Ashburton of August, 1842. Speaking for the government of the United States, he stated with great clearness and force the doctrine which Mr Webster on is nOw recognized by all countries, fie said: "It is
jurisdiction over . £
vessels. natural to consider the vessels of a nation as parts of
its territory, though at sea, as the State retains its juris- diction over them; and, according to the commonly received custom, this jurisdiction is preserved over the vessels even in parts of the sea subject to a foreign dominion. This is the doctrine of the law of nations, clearly laid down by writers of received authority, and 'entirely conformable, as it is supposed, with the practice of modern nations. If a murder be committed on board of an American vessel by one of the crew upon another or upon a passenger, while such vessel is lying in a port within the jurisdiction of a foreign State or sovereignty, the offence is cognizable and punishable by the proper court of the United States in the same manner as if such offence had been committed on board the vessel on the high seas. The law of England is supposed to be the same. It is true that the jurisdiction of a nation over a vessel belonging to it, while lying in the port of another, is not necessarily wholly exclusive. We do not so consider or so assert it. For any unlawful acts done by her while thus tying in port, and for all con- tracts entered into while there, b}^ her master or owners, she and they must, doubtless, be answerable to the laws of the place. Nor, if her master or crew, while on board in such port, break the peace of the community by the commission of crimes, can exemption be claimed for them. But, nevertheless, the law of nations, as 1 have stated it, and the statutes of governments founded on that law, as I have referred to them, show that enlightened nations, in modern times, do clearly hold that the jurisdiction and laws of a nation accompany her ships not only over the high seas, but into ports and harbors, or wheresoever else they may be water-borne, for the general purpose of governing and regulating the rights, duties, and obligations of those on board thereof, and that, to the extent of the exercise of
19
this jurisdiction, the}' are considerered as parts of the ter- ritory of the nation herself. " 6 Webster's Works, 306, 307. We do not accept the doctrine that, because by the treaty u. s.
iTT-io i /", V» • • i " i tion unaffected
between the United States and Great Britain the boundary by fact of bound-
. *' ary line running
line between the two countries is run through the centre through centerof
lakes
of the lakes, their character as seas is changed, or that the jurisdiction of the United States to regulate vessels belong ing to their citizens navigating those waters and to punish offenses committed upon such vessels, is in any respect impaired. Whatever effect may be given to the boundary line between the two countries, the jurisdiction of the United States over the vessels of their citizens navigating those waters and the persons on board remains unaffected. The limitation to the jurisdiction by the qualification that the offenses punishable are committed on vessels in any arm of the sea, or in any river, haven, creek, basin, or bay ''without the jurisdiction of any particular State," which means without the jurisdiction of any State of the Union, does not apply to vessels on the "high seas" of the lakes, but only to vessels on the waters designated as connecting with them. So far as vessels on those seas are concerned, there is no limitation named to the authority of the United States. It is true that lakes, properly so GreatLakesare called, that is, bodies of water whose dimensions are capa- ever designated. ble of measurement by the unaided vision, within the limits of a State, are part of its territory and subject to its jurisdiction, but bodies of water of an extent which cannot be measured by the unaided vision, and which are navigable at all times in all directions, and border on dif- ferent nations or States or people, and find their outlet in the ocean as in the present case, are seas in fact, however they may be designated. And seas in fact do not cease to be such, and become lakes, because by local custom they may be so called.
In our judgment the District Court of the Eastern Dis- trict of Michigan had jurisdiction to try the defendant upon the indictment found, and it having been transferred to the Circuit Court, that court had jurisdiction to proceed with the trial, and the demurrer to its jurisdiction should have been overruled. Our opinion, in answer to the certificate, is that
The courts of the United States have jurisdiction, a i,< I, f x,:c1i<>n ~>.) 'JfB of the Revised Statutes, to try a person f<>r tin assault, with a dangerous weapon, cam- in itti-d 1 1 n n r, ,V.SY_>/ belonging to a citizen of the United
20
States, when such vessel is in the Detroit River, out of the jurisdiction of any particular State, and within the territorial limits of the Dominion of Canada; and it will he returned to the Circuit Court of the United States for the Sixth Circuit and Eastern District of Michigan, and it is so ordered. MR. JUSTICE GRAY and MR. JUSTICE BROWN dissenting.
CASE OF THE THREE FRIENDS.
(Vol. 166, United States Reports, p. i. Decided March 1, 1897. MR. CHIEF JUSTICE FULLER delivered the opinion of the court.)
The steamer Three Friends was seized November 7. 1896, by the collector of customs for the district of St. John's, Florida, as forfeited to the United States under section 5283 of the Revised Statutes, and, thereupon, November 12, was libelled 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: °f "Third. That the said steamboat or steam vessel, the ' Three Friqnds,' was on, to wit, on the twenty-third day of May, A. r>. 1896, furnished, fitted out and armed, with intent that she should be employed in the service of a cer- tain 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 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, the twenty-third 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 hos- tilities against the subjects, property 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, 4 Three Friends,' on, to wit, on the twenty-third day of May, A, D. 1896, and whereof one N. B. Broward was
21
then and there master, within the navigable waters of the statement of 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 St. John's 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 intent aforesaid, con- trary 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 steam- boat or steam vessel, her tackle, engines, machinery, ap- parel and furniture became and are forfeited to the use of the said United States.
u 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 afore- said 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. Attach- ment and monition having issued as prayed, Napoleon B. Broward and Montcalm Broward, masters and owners, intervened as claimants; applied for an appraisement of the vessel and her release on stipulation ; and filed the fol- lowing exceptions to the libel:
" 1. Sec. 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
22
statement of 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 fur- nished, with the intent that said vessel should be employed in the service of a foreign 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 for- eign 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."
The vessel was appraised at $4000 and a bond on stipu- lation 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 18 the following decree was entered:
"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 libellant 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 23, 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 libellants allowed the said steam vessel 'Three Friends' to be released from custody upon the giving of bond.
23
44 Second. For that the court erred in sustaining the 2d, statement of 3d, 5th and 6th exceptions of the claimants to the libel of information of the libellants.
"Third. For that the court erred in entering- a decree dismissing the libel of information herein."
On February 1 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.
MR. CHIEF JUSTICE FULLER, after stating the case, de- livered the opinion of the court:
*******
The libel alleged that the vessel was "furnished, fitted opinion. 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 and commit hostilities against the subjects, citizens and prop- erty 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 insuffi- cient under section 5283, because it was not alleged "that said vessel had been fitted out with intent that she be em- ployed in the service of a foreign prince or State, or of any colony, district or people recognized as such by the politi- cal power of the United States."
In Wlborg v. United States, 163 U. S. 632, which was Title LXVII.
Re vised Statutes;
an indictment under section 5286, we referred to the eleven as to its opera- sections from 5281 to 5291, inclusive, which constitute Title LXVII of the Revised Statutes, and said: "The statute was undoubtedly designed in general to secure neu- tralit}7 in wars between two other nations, or between con- tending parties recognized as belligerents, but its opera- tion 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 resume 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.
24 usually called The title is headed "Neutrality," and usually called by
Neutrality Act. . ~ 7 "
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.
Distinction be- Neutrality, strictly speaking, consists in abstinence from
tween neutrality . . . ... . . ., , .
and duty toward any participation in a public, private or civil war, and in
impartiality of conduct toward both parties, but the main-
disturbed
tenance 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 demand the recognition of belligerency. And, as mere matter of municipal administration, no nation can permit unauthor- ized 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 Opinions, 177, 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 offences against the United States by fines, imprisonment and forfeitures, and the act itself defines the precise nature of those offences."
These sections were brought forward from the act of April 20, 1818, 3 Stat. 447, c. 88, entitled "An act in addi- tion 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. Stat. §§ 4293, 4294, 4295, 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 casting vote of Vice President Adams. Ann. 3d Cong. 11, 67. Its enactment grew out of the
25
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 (Wharton's State Trials, 49, 56), and by Mr. Justice Wilson, Mr. Justice Iredell and Judge Peters, on the trial of Hentield in July of that year (Id. 66, 84), to be capable of being enforced in the courts of the United States criminal h', 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 compre- hensive code in prevention of acts by individuals within our jurisdiction inconsistent with our own authorit}7 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,' section 5283 of
~, the Neutrality
States, fits out and arms, or attempts to fit out and arm, Act- 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 col- ony, 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 territoiy or jurisdiction of the United States, for any vessel, to the intent that she ma}7 be so employed, shall be deemed guilty of a high mis- demeanor, 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, to- gether with all materials, arms, ammunition and stores, which may have been procured for the building and equip- ment 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 three of the act of June 5, 1794, section one of the act of 1817, and section three of the act of 1818, which are given in the margin,1 it will be seen
1 Act of June 5, 1794: "SEC. 3. That if any person shall, within the Act of 1794. 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
26
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. paswg?°of°Vhe ^ne 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, inform- ing him of the fitting out of privateers at Baltimore to act against Portugal, in case it should turn out that that Gov- ernment was at war with the "self-styled Government of Buenos Ayres," and soliciting "the proposition to Con- gress of such provisions of law as will prevent such attempts for the future." On December 26, 1816, President Mad- ison sent a special message to Congress, in which he referred to the inefficacy of existing laws "to prevent violations of the obligations of the United States as a nation at peace towards belligerent parties and other unlaw- ful 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 pro-
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 build- ing and equipment thereof shall be forfeited, one half to the use of any person who shall give information of the offence and the other half to the use of the United States."
Act of 1817. Act of March 3, 1817, c. 58, 3 Stat. 370: "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 know- ingly 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 cooperate in any warlike measure whatever, against the subjects, citi- zens 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 mis- demeanor, and shall be fined and imprisoned at the discretion of the
27
visions. This message was transmitted to the minister December 27, and he was promptly officially informed of the passage of the act in the succeeding month of March. Geneva Arbitration, Case of the United States, 138. In Mr. Dana's elaborate note to § 439 of his edition of Whea- ton, 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 recog- or people." nized as independent might not be included in 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 addi tion " 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 com- munities 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 sus- tain the view that insurgent districts or bodies, unrecog- nized as belligerents, were not intended to be embraced. On the contrary, the reasonable conclusion is that the inser-
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 pro- cured 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 of April 20, 1818, 3 Stat. 447: "SEC. 3. That if any person shall, Act of 1818 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 know- ingly 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 half to the use of the United States."
28
tion 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 Govern- ments of Petion and Christophe, whose attitude had been passed on by the courts of New York more than a year before in Gelston v. ffoyt, 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 rec- ognized or unrecognized, that Chief Justice Marshall man- ifestly 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 recognition.
thtPwOTdsi°Ico(i- 0^ course a political community whose independence °eo'' ieV*trict orhas 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 poli- tical enterprise and carrying on hostilities against the parent country, in the effort to achieve 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 bellige- renc}7, 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 ade- quate 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.
Geistonv. Hoyt. 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,
29
by order of President Madison, under section three of the :u-t 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 Tl»<> E*trvll<t* 4 Wheat. 298, involved the capture of a Venezuelan privateer on April 24, 1817. There was a recapture by an American vessel, and the prize thus came before the court at New Orleans for adju- dication. The privateer was found to have a regular com- mission from Bolivar, issued as early as 1816, but it had violated section two of the act of 1794, which is the same us section two of the act of 1818, omitting the words " colon y, district or people" (and is now section 5282 of the Revised Statutes), by enlisting men at New Orleans, provided Venezuela was 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 recog- nition of belligerency made the belligerent to that intent a state.
In The. Nuew Anna <nnl /./V,,v, 0 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 acknowl- edged "the existence of anv Mexican Republic or state at war with Spain;" and in Th<- finm l*<ir<i* 7 Wheat. 471, Chief Justice Marshall referred to Buenos Ay res as a state within the meaning of the act of 1794.
Kven if the word "state" as previously employed ad- mitted of a less liberal signification, why should the mean- ing of the words "colonv, district or people" be con fined "Coionv, district
r r or people.
only to parties recognized as belligerent? Neither of these words is used 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 f<>r<-'njn colony, district or people, nor was it necessary, for the reference is to that which is part of the dominion of a
30
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 in- stance of the colonies of Buenos Ay res 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 applicable to any consolidated political body.
In United States v. Quincy, 6 Pet. 445, 467, an indict- ment under the third section of the act of 1818, the court disposed of the following, among other points, thus: "The last instruction or opinion asked on the part of the defend- ant 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 offence 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 Con- gress under which the defendant is indicted; the word 'people' in that act being intended to describe communi- ties under an existing government not recognized by the United States; and that the indictment therefore can not be supported on this evidence
"The indictment charges that the defendant was con- cerned 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 la 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 ves- sel was intended to be employed; and it is one of the de- nominations applied by the act of Congress to a foreign power. The words are, ' in the service of any foreign
31
prince or state, or of any colony, district or people/ The application of the word ' people ' is rendered suffi- ciently 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 in- consistent with each other, and may well stand together. That which comes under the videlicet only serves to ex- plain 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.
NeMtt v. Lushington, 4 T. R. 783, was an action on a €njg*f v> Lush' 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 Duller said : " ' People ' means the supreme power; 'the power of the countr}7,' 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 name 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 capacky."
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 pos- sible forms of government, monarchical, aristocratical, and democratic."
The British Foreign Enlistment Act, 69, Geo. Ill, c. 69, was bottomed on the act of 1818, and the seventh section, the opening portion of which is given below,1 corre-
1 "That if any person, within any part of the United Kingdom, 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
32
sponded to the third section of that act. Its terms were, however, considerably broader and left less to construc- tion. But we think the words "colon}', district or peo- ple" must be treated as equally comprehensive in their bearing here.
The Salvador. In the cage of Tfo 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 Com- mittee 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 Govern- ment, 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 sug- gested that there may be a case where, although you can
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 con- cerned 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 store ship, or with intent to cruise or commit hostilities against any Prince, State or Potentiate, 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, Terri- tory, 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.
33
not 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 ma}' be exercising, or assuming to exercise, powers of Government in the Foreign Colony or State, drawing the whole of the mate- rial 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 Gov- ernment 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 alterna- tive 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 jn^e Neutrality the inhabitants of a state; or the state or nation collect- ively 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 con- ducting hostilities," although its belligerency has not been recogni/ed. Nor is this view otherwise than confirmed 2056—04 3
34
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 com- mission of hostilities, "against the subjects, citizens or property of any foreign prince or state, or of any colon}-, district or people, with whom the United States are at peace;" and, as thus used, are affected by obviously dif- ferent 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 is fitted out. Recognition of Any other conclusion rests on the unreasonable assump-
belligerency in- J
curs certain re- tion that the act is to remain ineffectual unless the Gov-
straints and lia- bilities, ernment incurs the restraints and liabilities incident to an
acknowledgment of belligerency. On the one hand, pecun- iary demands, reprisals or even war, may be the conse- quence of failure in the performance of obligations toward a friendly power, while on the other, the recognition of belligerenc\7 involves the rights of blockade, visitation, search and seizure of contraband articles on the high seas and abandoment 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 con- tingencies of the other can be imputed.
emfheis breecoer- Belligerency is recognized when a political struggle has nized- attained a certain magnitude and affects the interest 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 pur- sued as pirates. The Ambrose Liyht, 25 Fed. Rep. 408; 3 Whart. Dig. Int. Law, § 381; and authorities cited.
But it belongs to the political department to determine
when belligerenc}7 shall be recognized, and its action must
be accepted according to the terms and intention expressed.
Distinction be- The distinction between recognition of belligerency and
tween recogni- .. . • t« • i i_
tion of beiiiger- recognition of a condition of political revolt, between
ency and of con- ", . . ... . i
dition of revolt, recognition 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
35
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 Proclamation the President and countersigned by the Secretary of State, fn junePi895den informing the people of the United States that the island of Cuba was *' the seat of serious civil disturbances accom- panied by armed resistance to the authority of the estab- lished 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 aug- menting 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'11; 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 Presi- President's
message, Decem-
dent said: "Cuba is again gravely disturbed. An insur- ber, 1895. rection. in some respects more active than the last preceding revolt, which continued from 1868 to 18T8, 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 fla- grant condition of hostilities, by arousing sentimental sym- pathy and inciting adventurous support among our people, has entailed earnest effort on the part of this 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 ma}- 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 natural!}* must be in behalf of
36
our neighbors, yet the plain duty of their Government is to observe in good faith the recognized obligations of interna- tional relationship. The performance of this dut}7 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 countr}7, 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 ma}' have received from the cruelties which appear to especialh' characterize this sanguinary and tiercel}7 conducted war, have in the least shaken the determination of the Government to honestly fulfill every international obligation, yet it is to be earn- estly 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 Presi- dent called attention to the fact that "the insurrection in Cuba still continues with all its perplexities," and gave an extended review of the situation. Neutrality Act \\re are thus judicially informed of the existence of an
applies without ...
recognition of actual conflict of arms in resistance of the authority of a
belligerency.
government with which the United States are on terms of peace and amity, although acknowledgment of the insur- gents as belligerents by the political department has not taken place, and it can not 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.
*******
Mr. JUSTICE HARLAX dissenting.
•» * *****
37
CASE OF UNDERBILL v. HERNANDEZ.
(Vol. 168, United States Reports, p. 250. Decided Nov. 29, 1897. MR. CHIEF JUSTICE FULLER delivered the opinion of the court.)
Statement by MR. CHIEF JUSTICE FULLER:
In the early part of 1892 a revolution was initiated in statement of Venezuela against the administration thereof, which the revolutionists claimed had ceased to be the legitimate gov- ernment. The principal parties to this conflict were those who recognized Palacio as their head and those who fol- lowed the leadership of Crespo. General Hernandez belonged to the anti-administration party, and commanded its forces in the vicinity of Ciudad Bolivar. On the 8th of August, 1892, an engagement took place between the armies of the two parties at Buena Vista, some 7 miles from Bolivar, in which the troops under Hernandez pre- vailed, and on the 13th of August, Hernandez entered Bolivar and assumed command of the city. All of the local officials had in the meantime left, and the vacant positions were filled by General Hernandez, who from that date and during the period of the transactions com- plained of was the civil and military chief of the city and district. In October the party in revolt had achieved success generally, taking possession of the capital of Ven- ezuela October 6, and on October 23, 1892, the Crespo government, so called, was formally recognized as the legitimate government of Venezuela by the United States.
George F. Underbill was a citizen of the United States, who hud constructed a waterworks system for the cit\' of Bolivar under a contract with the government, and was engaged in supplying the place with water, and he also carried on a machinery repair business. Some time after the entry of General Hernandez, Underbill applied to him as the officer in command for a passport to leave the city. Hernandez refused .this request, and requests made by others in Underbill's behalf, until October 18, when a passport was given and Underbill left the country.
This action was brought to recover damages for the detention caused by reason of the refusal to grant the passport; for the alleged confinement of Underbill to his own house; and for certain alleged assaults and affronts by the soldiers of Hernandez's army.
The cause was tried in the circuit court of the United States for the eastern district of New York, and on the
38
statement ofconclusion of plaintiff's case, the circuit court ruled upon the facts plaintiff was not entitled to recover, and directed a verdict for defendant on the ground that '* because the acts of the defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefor." Judgment having been rendered for defendant, the case was taken to the circuit court of appeals, and by that court affirmed upon the ground "'that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government.'- 26 U. S. App. 573. Thereupon the cause was brought to this court on certiorari.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court:
sitC^nr%digment Every sovereign state is bound to respect the independ- mentkiga<- tY of ence °^ every other sovereign state, and the courts of one wuhin^heir^wn countlT w^ no^ s^ m judgment on the acts of the govern- ment 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. Principle not \,TOr can the principle be confined to lawful or recog-
conflned to rec- . ®
ognized govern- nized governments, or to cases where redress can mani-
ments.
festl}' be had through public channels. The immunity of individuals from suits brought in foreign tribunals for acts d«one within their own states, in the exercise of gov- ernmental authority, whether as civil officers or as mili- tary commanders, must necessarily extend to the agents of governments ruling by paramount force as matter of Application of fact. Where a civil war prevails, that is, where the peo-
principle in civil ,..,,. .,
wars. pie ot a country are divided into two hostile parties, who
take up arms and oppose one another by military force, generally speaking foreign nations do not assume to judge . the merits of the quarrel. If the party seeking to dis-
lodge the existing government succeeds, and the inde- pendence of the government it has set up is recognized, then the acts of such government from the commence- ment of its existence are regarded are those of an inde- pendent nation. If the political revolt fails of success, still if actual war has been waged, acts of legitimate Avar- fare cannot be made the basis of individual liability. United States v. Rice, IT U. S. 4 Wheat. 246; Fleming v. Page, 50 U. S. 9 How. 603: Thorington v. Smith, 75
39
U. S. 8 Wall 1; TJ '////<////* v. lim/u, 96 U. S. 176;
v. Suryet 97 U. S. 594; Dmv v. JoJtnxon, 100 LI. S. 158,
and other cases.
Revolutions or insurrections may inconvenience other nations, but by accommodation to the facts the applica- tion of settled rules is 'readily reached. And where the fact of the existence of war is in issue in the instance of complaint of acts committed within foreign territory, it is not an absolute prerequisite that that fact should be made out b}7 an acknowledgment of belligerency, as other offi- cial recognition of its existence may be sufficient proof thereof. The Three Friends, 166 U. S. 1. .
In this case, the archives of the state department show conditions in
. tnis case.
that civil war was flagrant in Venezuela from the spring of 1892; that the revolutionary government was recog- nized by the United States as the government of the coun- try. it being, to use the language of the Secretary of State in a communication to our minister to Venezuela, 4 'accepted by the people, in the possession of the power of the nation and full}" established."
That these were facts of which the court is bound to take judicial notice, and for information as to which it may consult the Department of State, there can be no doubt. Jones v. United States, 137 U. S. 202; Mighell v. Sultan ofJohor^ 1 Q. B. 149.
It is idle to argue that the proceedings of those who thus triumphed should be treated as the acts of banditti or mere mobs.
We entertain no doubt upon the evidence that Hernan- dez was carrying on military operations in support of the revolutionary party. It ma\- be that adherents of that side of the controversy in the particular locality where Hernandez was the leader of the movement entertained a preference for him as the future executive head of the nation, but that is beside the question. The acts com- Defendants plained of were the acts of a military commander repre- military com
. , , . . , . . mander of suc-
.sentmg the authoritv or the revolutionary partv as acessfui party.
... % , , , , afterwards rec-
government, which afterward succeeded and was recog- ognized by umt- nized by the United States. We think the circuit court of appeals was justified in concluding kt that the acts of the defendant were the acts of the government of Venezuela, and as such are not proper!}' the subject of adjudication in the courts of another government."
The decisions cited on plaintiff's behalf are not in point. Cases respecting arrests by military authority in the
40
absence of the prevalence of war, or the validity^ of con- tracts between individuals entered into in aid of insurrec- tion, or the right of revolutionary bodies to vex the com- merce of the world on its common highway without incur- ring the penalties denounced on piracy, and the like — do not involve the questions presented here.
We agree with the circuit court of appeals, that ''the evidence upon the trial indicated that the purpose of the defendant in' his treatment of the plaintiff was to coerce the plaintiff to operate his waterworks and his repair works for the benefit of the communit}1 and the revolu- tionary forces,." and that "it was not sufficient to have warranted a finding by the jury that the defendant was actuated by malice or any personal or private motive;" and we concur in its disposition of the rulings below. Tlie decree of the Circuit Court is affirmed.
CASE OF THE OLINDE RODRIGUES.
(Vol. 174, United States Reports. Decided May 15, 1899. MR. CHIEF JUSTICE Fn.r.ER delivered the opinion of the court.)
statement of This was a libel tiled by the United States against the steamship Olinde Rodrigues and cargo in the District Court for South Carolina, in a prize cause, for violation of the blockade of San Juan, Porto Rico. The steamship was owned and claimed by La Compagnie Generale Transat lantique, a French corporation.
The Olinde Rodrigues left Havre June 16, 1898, upon a regular voyage on a West Indian itinerary prescribed by the terms of her postal subvention from the French Govern rnent. Her regular course, after touching at Paulliac. France, was St. Thomas, San Juan, Port au Platte or Puerto Plata, Cape Haitien, St. Marque, Port au Prince, Gonaives, and to return by the same ports, the voyage terminating at Havre. The proclamation of the President declaring San Juan in a state of blockade was issued June 27, 1898. The Olinde Rodrigues left Paulliac June 19, and arrived at St. Thomas July 3, 1898, and on July 4, in the morning, went into San Juan, Porto Rico. She was seen by the United States auxiliary cruiser Yosemite, then blockading the port of San Juan.
On the fifth of July, 1898, the Olinde Rodrigues came out of the port of San Juan, was signaled by the Yosemite, and on communicating with the latter asserted that she
41 had no knowledge of the blockade of San Juan. There- statement of
t* as /• i -\r • 1-11 the case.
upon a boarding; officer ot the losemite entered in the log of the Olinde Rodrigues an official warning of the block ade, and she went on her way to Puerto Plata and other ports of San Domingo and Haiti. She left Puerto Plata on her return from these ports, July 16, 1898, and on the morning of July 17 was captured by the United States armored cruiser New Orleans, then blockading the port of San Juan, as attempting to enter that port. A prize crew was put on board and the vessel was taken to Charleston, South Carolina, where she was libelled, as before stated, July 22, 1898. Depositions of officers, crew and persons on board the steamship were taken by the prize commis- sioners inpreparatorio, in answer to certain standing inter- rogatories, and the papers and documents found on board were put in evidence. Depositions of officers and men from the cruiser New Orleans were also taken de bene esse, but were not considered on the preliminary hearing except on a motion by the District Attorne}" for leave to take further proofs.
The cause having been heard on the evidence in prepara- ttit'io, the District Judge ruled, August 13, for reasons given, that the Olinde Rodrigues could not, under the evi- dence as it stood, be condemned for her entry into the blockaded port of San Juan on July 4, and her departure therefrom July 5, 1898; nor for attempting to enter the same port on July IT; but that the depositions debenc justified an order allowing further proofs, and stated also that an order might be entered, " discharging the vessel upon stipulation for her value, should the claimant so elect. n 89 Fed. Rep. 1<>5. An order was accordingly entered that the captors have ninety days to supply further proof "as to the entry of the 'Olinde Rodrigues' into the port of San Juan, Porto Rico, on Jul\T4, 1898, and as to the courses and movements of said vessel on July 17, ISDN; " and "that the claimants may thereafter have such time to otter testi- mony in reply us may seem proper to the court."
The cargo was released without bond, and on Septem- ber 16 the court entered an order releasing the vessel on " elaimants giving bond by the Compagnie ( Jenerale Trans - atlantique, its owners, without sureties, in the sum of $125,000 conditioned for the payment of $125,000 upon the order of the court in the event that the vessel should be condemned." The bond was not given, and the vessel remained in custody.
42
statement of Evidence was taken on behalf of the United States, and
the case, ... -111.
the cause came on for hearing on a motion by the claimants for the discharge and restitution of the steamship on the grounds: (1) That the blockade of San Juan at the time of the capture of the Olinde Rodrigues was not an effective blockade; (2) that the Olinde Rodrigues was not violating the blockade when seized.
The District Court rendered an opinion December 13, 1898, holding that the blockade of San Juan was not an effective blockade, and entered a decree ordering the resti- tution of the ship to the claimants. 91 Fed. Rep. 274. From this decree the United States appealed to this court and assigned errors to the effect: (1) That the court erred in holding that there was no effective blockade of the port of San Juan on Juhr 17, 1898; (2) that the court erred in not finding that the Olinde Rodrigues was captured while she was violating the blockade of San Juan, Juhr 17, 1898, and in not decreeing her condemnation as lawful prize.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court:
opinion We are unable to concur with the learned District Judge
in the conclusion that the blockade of .the port of San Juan at the time this steamship was captured was not an effective blockade.
biocildeenot do6 To be binding, the blockade must be known, and the fhepresence'oVa blockading force must be present; but is there any rule particular force. of jaw determining that the presence of a particular force is essential in order to render a blockade effective? We do not think so, but on the contrary, that the test is whether the blockade is practicall}' effective, and that that is a question, though a mixed one, more of fact than of law. The fourth maxim of the Declaration of Paris, (April 16, 1856,) was: "Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy." Manifestly this broad definition was not intended to be literally applied. The object was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were put under blockade by proclamation, without the presence of any force, or an inadequate force; and the question of what might be sufficient force was necessarily left to be determined according to the particu- lar circumstances.
43
This was put by Lord Russell in his note to Mr. Mason . various opm- of February 10, 1861, thus: "The Declaration of Paris was , in truth directed against what were once termed ' paper blockades;' that is, blockades not sustained by any actual force, or sustained by a notoriously inadequate naval force, such as an occasional appearance of a man-of-war in the offing or the like. . . . The interpretation, therefore, placed by Her Majesty's government on the Declaration was, that a blockade, in order to be respected by neutrals, must be practically effective. ... It is proper to add, that the same view of the meaning and effect of the arti- cles of the Declaration of Paris, on the subject of block- ades, which is above explained, was taken by the repre- sentative of the United States at the Court of St. James (Mr. Dallas) during the communications which passed between the two governments some years before the pres- ent war, with a view to the accession of the United States to that Declaration." Hall's Int. Law, § 260, p. 730, note.
The quotations from the Parliamentary debates, of May, 1861, given by Mr. Dana in note 233 to the eighth edition of Wheaton on International Law, afford interest- ing illustrations of what was considered the measure of effectiveness; and an extract is also there given from a note of the Department of Foreign Affairs of France of September, 1861, in which that is defined: "Forces suffi- cient to prevent the ports being approached without expo- sure to a certain danger."
In The Mercurim. 1 C. Rob. 80, 84, Sir William Scott The xercurius. .stated: " It is said, this passage to the Zuyder Zee was not in a state of blockade; but the ship was seized immediately on entering it; and I know not what else is necessary to constitute blockade. The powers who formed the armed neutrality in the last war, understood blockade in this sense; and Russia, who was the principal party in that confederacy, described a place to be in a state of blockade, when it is dangerous to attempt to enter into it."
And in The Frederick Molke, 1 C. Rob. 86, the same Tiie Frederick great jurist said: "For that a legal blockade did exist, results necessarily from these facts, as nothing farther is necessary to constitute blockade, than that there should be a force stationed to prevent communication, and a due notice, or prohibition given to the party."
Such is the settled doctrine of the English and Ameri- can courts and publicists, and it is embodied in the second
of the instructions issued by the Secretary of the Maw, June 20, 1898, General Order No. 492: "A blockade to be effective and binding must be maintained by a force suffi- cient to render ingress to or egress from the port dangerous."
Clearly, however, it is not practicable to define what degree of danger shall constitute a test of the efficiency and validity of a blockade. It is enough if the danger is real and apparent.
The Frandska. In The Franciskci, 2 Spinks, 128, Dr. Lushington, in passing on the question whether the blockade imposed on the port of Riga was an effective blockade, said: " What, then, is an efficient blockade, and how has it been denned, if, indeed, the term definition can be applied to such a subject? The one definition mentioned is that egress or entrance shall be attended with evident danger; another, that of Chancellor Kent, 1 Kent's Com. 140, is, that it shall be apparently dangerous. All these definitions are and must be, from the nature of blockades, loose and uncertain; the maintenance of a blockade must always be a question of degree, — of the degree of danger attending ships going into or leaving a blockaded port. Nothing is further from my intention, nor, indeed, more opposed to nry notions of the Law of Nations, than any relaxation of the rule that a blockade must be efficiently maintained; but it is perfectly obvious that no force could bar the entrance to absolute certainty; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence; that it is most difficult to judge from numbers alone.""
Quotation from "It is impossible," say s Mr. Hall, (S 260,) "to fix with any accuracy the amount of danger in entry which is neccessary to preserve the validity of a blockade. It is for the prize courts of the belligerent to decide whether in a given instance a vessel captured for its breach had reason to suppose it to be non-existent; or for the neutral government to examine, on the particular facts, whether it is proper to withhold or to withdraw recognition." j. In The Hoffnung, 6 C. Rob. 112, 117, Sir Walter Scott said: "When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected than any blockade
45
would continue many months, without being liable to such temporary interruptions. But when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions, in favor of the ordinary freedom of commercial speculations. In such a case the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed." And undoubtedly a blockade may be so inadequate, or the negligence of the belligerent in maintaining it ma}' be of such a character, as to excuse neutral vessels from the penalties for its violation. Thus in the case of an alleged breach of the blockade of the island of Martinique, which had been carried on by a number of vessels on the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the island, it was held that their withdrawal was a neglect which " neces- sarily led neutral vessels to believe these ports might be entered without incurring any risk.'' The Nancy, 1 Acton, 57, 59.
But it can not be that a vessel actually captured in at- tempting to enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, could dispute the efficiency of the force to which she was subjected.
As we hold than an effective blockade is a blockade so Effectiveness of
. .... , blockades.
effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the question of effectiveness is not controlled by the number of the blockading force. In other words, the position can not be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law.
Even as long ago as 1809, in The Nancy, 1 Acton, 63. °.ne, vessel can
» maintain effect-
where the station of the vessel was sometimes off the port ive blockade.
of Trinity and, at others, off another port more than seven miles distant, it was ruled that: "Under particular cir- cumstances a single vessel ma}' be adequate to maintain the blockade of one port and co-operate with other vessels at the same time in the blockade of another neighboring port;" although there Sir William Grant relied on the opinion of the commander on that station that the force was completely adequate to the service required to be performed.
46
Ruling of Dr. The ruling of Dr. Lushington in The Fra.ncixka. above
Lushington. . ' °
cited, was to that enect, and the text-books refer to other instances.
The learned District Judge, in his opinion; refers to the treaty between France and Denmark of 1742, which provided that the entrance to a blockaded port should be closed by at least two vessels or a battery on shore; to the treaty of 1760 between Holland and the Two Sicilies pre- scribing that at least six ships of war should be ranged at a distance slightly greater than gunshot from the entrance; and to the treaty between Prussia and Denmark of 1818, which stipulated that two vessels should be stationed before every blockaded port; but we do not think these particular agreements of special importance here, and. indeed, Ortolan, by whom they are cited, says that such stipulations cannot create a positive rule in all cases even between the parties, "since the number of vessels heces- san' to a complete investment depends evidently on the nature of the place blockaded." 2 Ortolan. (4th ed.) 330, and note 2.
Nor do we regard Sir William Scott's judgment in The Arthur (1814), 1 Dodson, 423, 425, as of weight in favor of claimants. In effect the ruling sustained the validity of the maintenance of blockade by a single ship, and the case was thus stated : * ' This is a claim made by one of His Majesty's 'ships to share as joint-captor in a prize taken in the river Ems by another ship belonging to His Majesty, for a breach of the blockade imposed by the order in council of the 26th of April, 1809. This order was, among others, issued in the way of retaliation for the measures which had been previously adopted by the French government against the commerce of this country. The blockade imposed by it is applicable to a very great extent of coast, and was never intended to be maintained according to the usual and regular mode of enforcing- blockades, by stationing a number of ships, and forming- as it were an arch of circumvallation around the mouth of the prohibited port. There, if the arch fails in any one part, the blockade itself fails altogether; but this species of blockade, which has arisen out of the violent and unjust conduct of the enemy, was maintained by a ship stationed anywhere in the neighborhood of the coast, or, as in this case, in the river itself, observing and preventing every vessel that might endeavor to effect a passage up or down the river/'
47 Blockades are maritime blockades, or blockades by sea Different kinds
. . . of blockade.
and land; and the}' may be either military or commercial, or may partake of the nature of both. The question of effectiveness must necessarily depend on the circum- stances. We agreee that the fact of a single capture is not decisive of the effectiveness of a blockade, but the case made on this record does not rest on that ground.
We are of opinion that if a single modern cruiser block- , Blockade ef- fective if one.
ading a port renders it in fact dangerous for other craft «™is(>r renders
& -l entrance dan-
to enter the port, that is sufficient, since thereby the serous, blockade is made practically effective.
What then were the facts as to the effectiveness of the blockade in the case before us?
In the proclamation of June 27, 1898, occurs this para- graph: "The United States of America has instituted and will maintain an effective blockade of all ports on the south coast of Cuba, from Cape Frances to Cape Cruz, inclusive, and also of the port of San Juan, in the island of Porto Rico." (Proclamation No. 11, 30 Stat. 34.) The blockade thus announced was not of the coast of Porto Rico, but of the port of San Juan, a town of less than 25,000 inhabitants, on the northern coast of Porto Ricor with a single entrance. From June 27 to July 14, 1898, the Yosemite, a merchant ship converted into an auxiliary cruiser, blockaded the port. Her maximum speed was fifteen and one-half knots; and her armament te,h 5-inch rapid firing guns, six 6-pounders, two 1-pounders, with greatest rano-e of three and one-half miles. While the conditions off
* San Juan.
losemite was blockading the port she ran the armed transport Antonio Lopez aground six miles from San Juan; gave a number of neutral vessels official notice of the blockade; warned off many from the port; and on the 5th of July, 1898, wrote into the, log of the Olinde Rod- rigues, off San Juan, the official warning of the blockade of San Juan. On July 14 and thereafter the port was blockaded b}' the armored cruiser New Orleans, whose maximum speed was twent3T-two knots, and her armament six 6-inch breech-loading rifles, four 4.7-inch breech- loading rifles, ten 6-pounders, four 1.5-inch guns, cor- responding to 3-pounders; four 3-pounders in the tops; four 37-millimeter automatic guns, corresponding to 1-pounders. The range of her guns was live and one-half sea miles or six and a quarter statute miles. If stationary T she could command a circle of thirteen miles in diameter; if moving, at maximum speed, she could cover in five
48
minutes any point on a circle of seventeen miles diameter-, and in ten minutes any point on a circle of nineteen miles diameter; her electric search lights could sweep the sea by night for ten miles distance; her motive power made her independent of winds and currents; in these respects and in her armament and increased range of guns she so far surpassed in effectiveness the old-time war ships that it would be inadmissable to hold that even if a century ago more than one ship was believed to be required for an effective blockade, therefore this cruiser was not sufficient to blockade this port.
Assuming that the Olinde Rodrigues attempted to enter dangerous. gan Juan5 July 17, there can be no question that it was dangerous for her to do so, 'as the result itself demon- strated. She had had actual warning twelve days before; no reason existed for the supposition that the blockade had been pretermitted or relaxed; her commander had no right to experiment as to the practical effectiveness of the blockade, and, if he did so, he took the risk; he was believed to be making the attempt, and was immediately captured. In these circumstances the vessel can not be permitted to plead that the blockade was not legalty effective.
After the argument on the motion to discharge the ves- sel, application was made by counsel for the claimant to the District Judge, by letter, that the Navy Department be requested to furnish the court with all letters or dis- patches of the commanders of vessels blockading the port of San Juan in respect to the sufficiency of the force. And a motion was made in this court "for an order author- izing the introduction into the record of the dispatches of Captain Sigsbee and Commander Davis," dated June 27, 1898, and July 26, 1898, and published by the Navy Department in the "Appendix to the Report of the Chief of the Bureau of Navigation, 1898," pp. 224, 225, 642.
To this, the United States objected on the grounds that isolated statements transmitting official information to superior officers, and consisting largely of opinion and hearsay, were not competent evidence; that the claimants had been afforded the opportunity to offer additional proof, and had not availed themselves thereof; that if the court desired to have these papers before it, then the Gov- ernment should be permitted to define their meaning by counter proofs; and certain explanatory affidavits were,
49
at the same time, tendered for consideration, if the motion were granted.
We need not specifically rule on the motion, or as to the adnrissibility of either the dispatches or affidavits, as we are satisfied that the dispatches have no legitimate tendency to establish that the blockade was not effective so far as the exclusion of trade from th is port of the bel- ligerent, whether in neutral or enemy's trading ships, was concerned. This country has always recognized the essen- Difference be- tial difference between a military and a commercial block- and commercial ade. The one deals with the exclusion of trade, and the other involves the consideration of armed conflict with the belligerent. The necessity of a greater blockading force in the latter case than in the former is obvious. The dif- ference is in kind, and in degree.
Our Government was originally of opinion that com- mercial blockades in respect of neutral powers ought to be done away with; but that view was not accepted, and during the period of the Civil War the largest commercial blockade ever known was established. Dana's Wheat. Int. Law (8th ed.) p. 671, note 232; 3 Whart. Int. Dig'. §361.
The letters of Captain Sigsbee, of the St. Paul, and of Commander Davis, of the Dixie, must be read in the light of this recognized distinction; and it is to be further remarked that after the letter of Captain Sigsbee of June 27 the New Orleans was sent by Admiral Sampson offi- cially to blockade the port of San Juan, thereby enor- mously increasing its efficiency.
In his report of June 28, Appendix, Rep. Bur. Nav. 220, 222, Captain Sigsbee describes an attack on the St. Paul off the port of San Juan, June 22, by the Spanish cruiser Isabella II and by the torpedoboat destroyer Ter- ror, in which engagement the St. Paul severely injured the Terror, and drove the attacking force back into San Juan, and in his letter of June 27 he wrote: "It is advis- able to constantly keep the Terror in mind as a possible active force; but, leaving her out of consideration, the services to be performed by the Yosemite, of blockading a well fortified port containing a force of enemy's vessels whose aggregate force is greater than her own, is an espe- cially difficult one. If she permits herself to be driven away from the port, even temporarily, the claim may be set up that the blockade is broken." O-J 4
50
It is true that in closing his letter of June 27 Captain Sigsbee said: "I venture to suggest that, in order to make the blockade of San Juan positive^ effective, a consider- able force of vessels is needed off that port, enough to detach some to occasionally cruise about the island. West of San Juan the coast, although bold,* has outlying dan- gers, making it easy at present for blockade runners having local pilots to work in close to the port under the land during the night."
international- But we are considering the blockade of the port of San met by biockadl Juan and not of the coast, and while additional vessels to i£gressg efange°r- cruise about the island might be desirable in order that the blockade should be positively effective, we think it a sufficient compliance with the obligations of international law if the blockade made egress or ingress dangerous in fact, and that the suggestions of a zealous American naval commander, in anticipation of a conflict of armed forces before San Juan, that the blockade should be brought to the highest efficiency in a military as well as a commercial aspect, can not be allowed to have the effect of showing that the blockade which did exist was as to this vessel ineffective in point of law.
And the letter of Commander Davis of the Dixie, of July 26, 1898, appears to us to have been written wholty from the standpoint of the efficiency of the blockade as a military blockade. He says: "Captain Folger kept me through the night of the 24th, as he had information which led him to believe that an attack would be made on his ship during the night. There are in San Juan, Porto Rico, the Terror, torpedo gunboat; the Isabella II, cruiser; a torpedo boat, and a gunboat. There is also a German steamer, which is only waiting an opportunity to slip out." And further: " It is Captain Folger's opinion that the enemy will attempt to raise the blockade of San Juan, and it is my opinion that he should be reinforced there with the least possible delay."
The blockade In our judgment these naval officers did not doubt the
effective.uai as effectiveness of the commercial blockade, and had simply
in mind the desirability of rendering the blockade, as a
*The coast thus referred to is described in a work entitled "Navi- gation of the Gulf of Mexico and the Caribbean Sea," issued by the Navy Department, vol. I, 342, thus: "The shore appears to be skirted by a reef, inclosing numerous small cays and islets, over which the sea breaks violently, and it should not be approached within a distance of four miles."
51
military blockade, impregnable, b\ the possession of a force sufficient to successfully repel any hostile attack of the enemy's fleet. The blockade was practically effective; had remained so; and was legal and binding, if not raised b^y an actual driving awa}' of the blockading force by the enemy; until the happening of which result the neutral trader had no right to ask whether the blockade, as against the possible superiority of the enemy's fleet, was or was not effective in a military sense.
But was this ship attempting to enter the port of San Juan, on the morning of July 17, when she was captured? *******
On the proofs before us the case is this: The Olinde. AS to proofs of
intent to enter
Rodrigues was a merchant vessel of 1675 tons, belonging San Juan- to the Compagnie Generale Transatlantic] ue, engaged in the West India trade and receiving a subsidy from the French government for carrying its mails on an itinerary prescribed by the postal authorities. Her regular course was from Havre to St. Thomas, San Juan, Puerto Plata and some other ports, returning by the same ports to ' Havre. She sailed from Havre, June 16 and arrived at St. Thomas, July 3, and at San Juan the morning of July 4. The proclamation of the blockade of San Juan was issued June 27, while she was on the sea. The United States cruiser Yosemite was on duty in those waters, block- ading the port of San Juan, and when her commander sighted the Olinde Rodrigues coming from the eastward toward the port he made chase, but before reaching her she had turned in and was under the protection of the shore batteries. He lay outside until the next morning — the morning of July 5 — when he intercepted the steamship us she was coming out, and sent an officer aboard, who made this entry in her log: "Warned off San Juan, July 5th, 1898, by U. S. S. Yosemite. Commander Emory. John Burns, Ensign, U. S. Navy." The master of the Olinde Rodrigues, whose testimony was taken inpreporo- tofi». testified that when he entered San Juan, July 4, he had no knowledge that the port was blockaded, and that he first heard of it from the Yosemite on July 5, when he was leaving San Juan. After the notification he continued his voyage on the specified itinerary, arriving at Gonaives, the last port outward, on Juh' 1:2. On his return voyage he stopped ;it the same ports, taking on freight, passen- gers and mail for Havre. At Cape Haytien, on July 14, he received a telegram from the agent of his company at
52
San Juan, telling him to hasten his arrival there by one day in order to take on fifty first class passengers, and he replied that the ship would not touch at San Juan, but would be at St. Thomas on the 17th. The purser testi- fied that on the receipt of the cable from the consignee at San Juan, he told the captain '"that since we were advised of the blockade of Porto Rico by the war ship, it was abso- lutely necessary not to stop;" and that ''before me, the agent in Cape Haytien, sent a cablegram, saying 'Daim [the vessel] will not stop at San Juan, the blockade being notified.'"
The ship's master further testified that on the outward voyage at each port he had warned the agent of the com- pany and the postal department that he would not touch at Porto Rico, that he would not take passengers for that point, and that the letters would be returned to St. Thomas, and that having received his clearance papers at Puerto Plata at half-past five o'clock on the evening of July 15, he did not leave until six o'clock in the morning of July 16, as he did not wTish to find himself at night along the cost of Porto Rico.
The ship was a large and valuable one, belonging to a great steamship company of world-wide reputation; she was on her return voyage laden with tobacco, sugar, coffee and other products of that region; she had no cargo, pas- sengers or mail for San Juan; she had arrived off that port in broad daylight, intentionally according to the captain; her regular itinerary on her return to France would have taken her from Port au Platte to San Juan, and from San Juan to St. Thomas, and thence to Havre, but as San Juan was blockaded and she had been warned off, and could not lawful!}7 stop there, her route was from Port au Platte to St. Thomas, which led her directly by and not many miles from the port of San Juan.
The only possible motive which could be or is assigned for her to attempt to break the blockade is that the con- signee at San Juan cabled the captain at Cape Haytien that he must stop at San Juan and take fifty first class passen- gers. At this time the fleet of Admiral Cervera had been destroyed; Santiago had fallen; and the long reign of Spain in the Antilles was drawing to an end. Doubtless the transportation of fifty first class passengers would prove remunerative, especially us some of them might be Spanish officials, and Spanish archives and records, and Spanish treasure, might accompany them if they escaped on the
53 ship. It is forcibly argued that these are reasonable Existence of
' . . motive insuf-
mferences, and afforded a sufficient motive for the com- ficient without
11.- • evidence of in-
rnission of the offense. But as, where the guilty intent is tent. established, the lack of motive cannot in itself overthrow it, so the presence of motive is not in itself sufficient to supply the lack of evidence of intent. Now, in this case, the captain not only testified that he answered the cable to the effect that he should not stop at San Juan, but the purser explicitly stated that the agent at Cape Haytien sent the telegram for the captain, specifically notifying the agent at San Juan that the ship would not stop there, the blockade having been notified. It is true that the cablegram was not produced, but this was not to be expected in taking the depositions in preparatories and particularly as it was not the captain's own cablegram, but that of the agent at Cape Haytien. There is nothing in the evidence to the contrary, and under the liberalit}^ of the rules of evidence in the administration of the civil law, we must take this as we find it, and, as it stands, the argu- ment that a temptation was held out is answered by the evidence that it was resisted.
Such being the situation, and the evidence of the ship's officers being explicit that the vessel was on her way to St. Thomas and had no intention of running into San Juan, the decree in her favor must be affirmed on the merits, unless the record elsewhere furnishes evidence sufficient to overcome the conclusion reasonably deducible from the facts above stated.
Among the papers delivered to the prize master were certain bills of health, five of them by consuls of France, namely, July 9. from St. Marc, Haiti, giving the ship's destination as Havre, with intermediate ports; July 11, from Gonaives, Haiti, giving no destination; July 13, from Port au Prince, July 14, from Cape Haytien, July 15, from Puerto Plata, all naming Havre as the destina- tion; and three by consuls of Denmark, July 13 from ' Port au Prince, July 14 from Cape Haytien, and July 15 from Puerto Plata, all naming St. Thomas as the destina- tion. When the captain testified August 2, in answer to the standing interrogatories, he said nothing about any Spanish bills of health. The deposition was reread to captain, August 3 and on the next day, August 4, wrote to the prize commissioners desiring to correct it, saying 'M fear I have badly interpreted several questions. I was asked if 1 had destroyed any papers on board or
er*;
54
passports. I replied, no. The papers — documents — on board for our voyage had been delivered up proper and legal to the prize master. This is absolutely the truth, not including in the documents two Spanish bills of health, one from Port an Prince and one from Cap? Haytien, which we found in opening our papers, although they had not been demanded. Not having an}- value for us, I said to the steward to destroy them on our arrival at Charles- ton, as we often do with papers that are useless to us. The regular expedition only counts from the last port, which was Puerto Plata, and I refused to take it from our agent for Porto Rico. I swear that at ni}' examination 1 did not think of this, and it is only on my return from signing that the steward recalled it to me. I never sought to disguise the truth, since I wish to advise you. of it as soon as possible.'"
theeiurser0n °f ^n tne ^h. of August the purser answered the inter- rogatories, and testified that papers were given him b}^ the consignees of the steamer at Port au Prince in a box at the time of sailing, and he found in the* box one manifest of freight in ballast, and it was the same thing at Cape Ilay- tien. At Puerto Plata the agent of the company came on board on their arrival there, and "the captain told him that there was no Spanish clearance; there was no need of it, and it was not taken." The captain said to the agent "it was not necessary, because we are not going to San Juan, being notified of the blockade." "When we arrive in a port we put up a placard of the date of departure and the time of sailing and the destination, and it was put up by my personal order from the captain that we sailed for St. Thomas directly, and it was fixed up in the night of the 15th of July. . . . We were to start on the morn- ing of the 16th, at 6 o'clock in the morning, the captain saying he did not want to fall into the hands of the Amer- ican cruisers during the night. The night before our arrival in Charleston, the doctor says to me, 'I have a bill of health, Spanish account, from Cape Haytien and Port au Prince,' and I told him I would speak to the captain and ask him what to do with these papers that I had found in assorting my papers — these papers in the pigeon holes. I told the captain that morning, and he told me that we had better destroy them, because we don't want them; that it is not our expedition, and that a true expo- sition is valuable only for the last port to the Spanish port."
55 On the 5th the captain was permitted to testify, in Testimony of
. . * . . the captain as to
explanation, saving, among other things: Ine reason missing papers.
that we did not give up the two bills of health is because
the}' did not form a part of the clearance of our ship for
our itinerary, and they were left in the pigeon holes
where they were. It was at the time of our arrival at
the quarantine at Charleston that the purser spoke to me
of them, and I told him that they were good for nothing
and to tear them up. The captain wishes to add that he
did not remember the instance the other day about the
destruction of the papers, that he has just told us about,
and that he never had any intention to disguise anything
or to deceive."
Counsel for the Government insist that the intention of the Olinde to run the blockade is necessarily to be inferred from the possession of these bills of health and their alleged concealment and destruction. Doubtless the spo- liation of papers, and. though to a less degree, their con- cealment, is theoretical!}' a serious offense, and authorizes the presumption of an intention to suppress incriminating , evidence though this is not an irrebutable presumption.
In The Pizarro, 2 Wheat. 227, 2-41, the rule is thus stated by Mr. Justice Story: "Concealment, or even spoliation of papers is not of itself a sufficient ground for condemna- tion in a prize court. It is, undoubtedly, a very awaken- ment of papers ing circumstance, calculated to excite the vigilance, and to justify the suspicions of the court. But it is a circum- stance open to explanation, for it may have arisen from accident, necessity or superior force; and if the party in the first instance fairly and frankly explains it to the sat- isfaction of the court, it deprives him of no Tight to which 'he is otherwise entitled. If, on the other hand, the spolia- tion be unexplained, or the explanation appear weak and futile; if the cause labor under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevari- cation, it is made the ground of a denial of farther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply. "
It should be remembered that the first deposition of the captain was given in answer to standing interrogatories, and not under an oral examination; that the statute (R. S. §4622) forbade the witness "to see the interrogatories, documents, or papers, or to consult counsel, or with an}' persons interested, without special authority from the court;'' that he was born and had always lived in France.
56
and was apparent!}' not conversant with our language; indeed, he protested, as "neither understanding nor speak- ing English," "against all interpretation or translation contrary to my thought;" that the deposition having been reread to him the day after it was taken, he detected its want of fullness, and immediately wrote the prize commis- sioners on the subject with a view to correction; and that it was after this, and not before, that the purser testified. Transactions of this sort constitute in themselves no con damnation' ground for condemnation, but are evidence, more or less the existence of convincing, of the existence of such ground; yet, taking the evidence in this case together, we are not prepared to hold that the explanation as to how these bills came to.be received on board, neglected when the papers were sur- rendered, and finalh' torn up, was not sufficient to obviate any decisive inference of objectionable intention.
The Government further insisted that the Olinde Rod- rigues refused to obey the signal from the New Orleans to heave to and stop instantly, and turned only after she had fired, and that this conclusively established an inten- tion to A'iolate the blockade. The theory of the Govern- ment is that the French ship purposely held on so as to get under the protection of the batteries of San Juan. *******
It is impossible to deny that the testimony of Captain Folger, the commander of the New Orleans, and of his officers, was extremely strong and persuasive to establish that the Olinde Rodrigues when brought to, was inten- tionally heading for San Juan, and pursuing her course in such a manner as to draw the blockading cruiser in range of the enemies' batteries, and yet we must consider it in view of the evidence on behalf of the captured ship, and of the undisputed facts tending to render it improbable that any design of attempting to violate the blockade was entertained. The Olinde Rodrigues had neither passen- gers nor cargo for San Juan; in committing the offense, she would take the risk of capture or of being shut up in that port; she was a merchantman engaged in her regular business and carrying the mails; she was owned by a widely- known and reputable company; her regular course, though interrupted by the blockade of that port, led directh7 by it, and not far from it; and the testimony of her captain and officers denied amr intention to commit a breach.
The evidence of evil intent must be clear and convinc- ing before a merchant ship belonging to citizens of a
57
friendly nation will be condemned. And on a careful review of the entire evidence, we think we are not com- pelled to proceed to that extremity.
But, on the other hand, we are bound to say that, taking- all the circumstances together and giving due weight to the evidence on behalf of the captors, probable cause for making the capture undoubtedly existed; and the case dis- closed does not commend this vessel to the favorable con sideration of the court.
Probable cause exists where there are circumstances f sufficient to warrant suspicion though it may turn out^nec"s that the facts are not sufficient to warrant condemnation. SU8Plclon- And whether they are or not cannot be determined unless the customary proceedings of prize are instituted and enforced. . . .
*******
. . . This vessel had gone into San Juan on July 4, Rt5sumt5- although the captain had heard of the blockade at St. Thomas, but he says he had not been officially notified of it; he telegraphed to the consul at San Juan to know, and was answered that the}' had received no official notice from Washington that the port was blockaded; he also heard while in San Juan that "it would be blockaded some future time, but that was not official!}7." The vessel was boarded and warned lay the Yosemite on July 5, and the warning entered on her log. This imposed upon her the duty to avoid approaching San Juan, on her return, so nearly as to give just cause of suspicion, yet she so shaped her course as inevitably to invite it.
When the New Orleans succeeded the Yosemite her commander was informed of the facts by his predecessor, and knew that whatever the right of the Olinde Rodrigues to be in those waters, she could not lawfully place herself so near the interdicted port as to be able to break the blockade with impunity. But when he sighted her the ship was on a course to all«appearance directly into that port, and steadily pursuing it. And when he signaled, the Olinde Rodrigues apparently did not obe}T, but seem- ingly persisted on her course, and that course would in a few moments have placed her within the range of the guns of Morro and of the shore batteries. In fact, when the shot was fired she was within the range of the Morro's guns. The evidence is overwhelming that she did not change her course until after the shot was tired, even though she may have stopped as soon as she saw the signal.
exists
58
The turning point into the Culebra or Virgin Passage was perhaps forty miles to the eastward, and while she could have passed the port of San Juan on the course she was on, it would have been within a very short distance. The disregard of her duty to shun the port and not ap- proach it was so flagrant that the intention to break the blockade was to be presumed though we do not hold that that was a presumption de jure.
The ship's log was not produced until three hours after she was boarded, and it now appears that the papers fur- nished the boarding officer, "said to be all the ship's papers," did not include two Spanish bills of health in which San Juan was entered as the vessel's destination. These were destroyed after the ship reached Charleston, and were, therefore, in the ship's possession when the other papers were delivered. Had they been shown, as they should have been, can it be denied that they would have furnished strong corroboration of criminal intent? Or that their destruction tended to make a case of " strong and vehement suspicion ? "
judgment. The entire record considered, we are of the opinion that
restitution of the Olinde Rodrigues should be awarded, without damages, and that payment of the costs and expenses incident to her custody and preservation, and of all costs in the cause except the fees of counsel, should be imposed upon the ship.
The decree of the District Court will be so modified, and
As modified affirmed.
MR. JUSTICE McKENNA dissented on the ground that the evidence justified condemnation.
CASE OF THE PEDRO.
[Vol. 175, United States Reports, p. 354. Decided December 11, 1899. Mr. CHIEF JUSTICK FULLER delivered the opinion of the court.]
statement of This was an appeal from a decree of the District Court of the United States for the Southern District of Florida condemning the steamer Pedro as lawful prize of war on a libel filed April 23, 1898.
April 20, 1898, the President approved the following
April' 2oapi898ved 0"^ resolution:
"First. That the people of the Island of Cuba are, and of right ought to be, free and independent
59
"Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the Island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters.
"Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the active service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect.
"Fourth. That the United States hereby disclaims an}- disposition or intention to exercise sovereignty, jurisdic- tion or control over said Island except for the pacification thereof, and asserts its determination, when that is accom- plished, to leave the government and control of the Island to its people." 30 Stat. 738.
On the same day, the Minister of Spain to the United States requested and obtained his passports; the text of Comm°u Seated the resolution was cabled to the Minister of the United10 States at Madrid; and the Secretary of State by separate dispatch directed him to communicate the resolution to the Government of Spain with the formal demand of the United States therein made, and the notification that,. in the absence of a response by April 23, the President would proceed without further notice to use the power and authority enjoined and conferred upon him.
April 21, the Minister of the United States at Madrid acknowledged the receipt of the Secretary's dispatch that morning, but saying that before he had communicated it he had been notified b}- the Minister of Foreign Affairs of Spain that diplomatic relations were broken off between b>' sPain- the two countries, and that he had accordingly asked for his passports. The letter from the Minister of Foreign Affairs of Spain referred to was as follows:
"In compliance with a painful duty I have the honor to inform Your Excellency that the President having approved a resolution of both Chambers of the United States, which in denying the legitimate sovereignty of Spain and threatening an immediate armed intervention in Cuba, is equivalent to an evident declaration of war, the Government of His Majesty has ordered its Minister in Washington to withdraw without loss of time from the
60
North American territory, with all the personnel of the Legation. By this act the diplomatic relations which pre- viously existed between the two countries an- broken off, all official communications between their respective repre- sentatives ceasing, and I hasten to communicate this to Your Excellency in order that on your part you may make such dispositions as seern suitable. I beg Your Excellency to acknowledge the receipt of this note at such time as }7ou deem proper, and I avail myself of this oppor- tunity to reiterate to you the assurances of my distin- guished consideration."
nOTth "coast6 of ^he Secretary of the Navy at once gave instructions to Cuba ordered, fae commander in chief of 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; also, if in your opinion your force warrants, the port of Cienfuegos, on the south side of the island. ... It is believed that this blockade will cut off Havana almost entirely from receiving supplies from the outside. . . . The Department does not wish the defences of Havana to be bombarded or attacked by your squadron." Blockade insti- April 22, Admiral Sampson, in command, instituted the
tuted and pro- l . .
claimed April 22. blockade and on that day the President issued the follow- ing proclamation:
'.'Whereas, by a joint resolution passed by the Congress and approved April 20, 1898, and communicated to the Government of Spain, it was demanded that said Govern- ment at once relinquish its authority and government in the Island of Cuba, and withdraw its land and naval forces from Cuba and Cuban waters; and the President of the United States was directed and empowered to use the entire land and naval forces of the United States, and to call into the active service of the United States the militia of the several States to such extent as might be necessary to carry said resolution into effect; and
"Whereas, in carrying into effect said resolution, the President of the United States deems it necessary to set on foot and maintain a blockade of the North coast of Cuba, including all ports on said coast between Cardenas and Bahia Honda and the port of Cienfuegos on the South coast of Cuba:
"Now, therefore, I, William McKinley, President of the United States, in order to enforce the said resolution, do hereby declare and proclaim that the United States of America have instituted, and will maintain a blockade of
61
the North coast of Cuba, including ports on said coast between Cardenas and Bahia Honda and the port of Cien- fuegos on the South coast of Cuba, aforesaid, in pursu- ance of the laws of the United States and the law of nations applicable to Mich cases. An efficient force will be posted so as to prevent the entrance and exit of vessels from the ports aforesaid. Any neutral vessel approaching any of said ports, Or attempting to leave the same, without notice or knowledge of the establishment of such blockade, will be duly warned by the Commander of the blockading forces, who will indorse on her register the fact, and the date, of such warning, where such indorsement was made; and if the same vessel shall again attempt to enter any blockaded port, she will be captured and sent to the nearest convenient port for such proceedings against her and her cargo as prize, as may be deemed advisable.
; ' Neutral vessels lying in an}^ of said ports at the time of the establishment of such blockade will be allowed thirty days to issue therefrom." 30 Stat. 1769.
April 23 the Queen Regent of Spain issued a decree, in which, among other things, it was stated:
"Article 1. The state of war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the protocol of the 12th January, 1877, and all other agreements, compacts and conventions that have been in force up to the present between the two countries.
"Article II. A term of five days from the date of the publication of the present royal decree in the Madrid Gazette is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart."
April 25, in response to a message from the President, Congress passed the following act, which was thereupon duly and at once approved:
"First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April. Anno Domini eighteen hundred and riinety- eight, including said day, between the United States of America and the kingdom of Spain.
"Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this act into effect." 3<> Stat, ;5r>4.
62 President's April 26 the President issued a further proclamation,
proclamation of
April 26, 181*, as TO 1 1OWS:
prescribing rules ,/-,,r, -p, ,. ^ -, . ., ,,^
for conduct of •' Whereas, B}T an act of Congress, approved April 2o, ] 898, it is declared that war exists, and that war has existed since the 21st day of April, A. D. 1898, including said day, between the United States of America and the Kingdom of Spain; and
"Whereas, 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, it has already been announced that the policy of this Government will be not to resort to privateering, but to adhere to the rules of the declaration of Paris:
"Now, therefore, 1, William McKinley, President of the United States of America, by virtue of the power vested in me by the Constitution and the laws, do hereby declare and proclaim:
" 1. The neutral flag covers the enemy's goods, with the exception of contraband of war.
"2. Neutral goods, not contraband of war, are not lia- ble to confiscation under the enemy's flag.
"3. Blockades in order to be binding must be eft'ective.
"4. Spanish merchant vessels, in an\r ports or places within the United States, shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea, by any United States ship, shall be permitted to continue their voyage, if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; Pro- vided, that nothing herein contained shall apply to Span- ish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for the vo3Tage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government.
"5. Any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any foreign port bound for any port or place in the United States, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation; and any such vessel, if met at sea by any United States ship, shall be permitted to continue her voyage to any port not blockaded.
63
"6. The right of search is to be exercised with strict regard for the rights of neutrals, and the voyages of mail steamers are not to be interfered with except on the clear- est grounds of suspicion of a violation of law in respect of contraband or blockade." 30 Stat. 1770.
The steamship Pedro was built at Newcastle, England, . statement of
'the case con-
in 1883, and, until 1887, sailed under British registry and the name of Lilburn Tower. Pn the latter }rear her name was changed to The Pedro, and she was transferred to La Compania La Flecha, a Spanish corporation of Bilboa, Spain, and registered at that port in its name, and on October 4, 1887, obtained a royal patent from the Crown of Spain, which was issued to her as the property of the company. Thereafter she sailed under the Spanish flag and was officered and manned by Spaniards, though she was engaged in the transportation of cargo for hire as a merchant vessel under the management of G. H. Fletcher and Company of Liverpool. Her voyages began in Europe where she took cargo for Cuban ports, from which ports on discharge she proceeded to ports of the United Statesy where she took cargo for a port of discharge in Europe, the round trip occup3"ing about three months. Between March 20 and March 25, 1898, she took on board at Ant- werp, Belgium, some 2000 tons of cargo for Havana, Santiago de Cuba, and Cienfuegos, Cuba, of which 1700 tons was rice and the rest, hardware, empty bottles,, paper, cement and general cargo.
On March 18, 1898, she was chartered to the firm of Keyser and Compan3T, being described in the charter party as " now loading in Antwerp for Cuba," to proceed to Pensacola, Florida, or Ship Island, Mississippi, "with all convenient speed," to load a cargo of lumber for Rotter- dam or Antwerp. The charter party provided that "should the vessel not be in all respects ready for cargo at her loading place on or before the 18th of May, 1898, charterers or their agents have the option of cancelling this charter. If required by charterers, lay days are not to commence at loading port before the 5th of Ma}', 1898.'T Among the ship's papers was a bill of health issued by the consul of the United States at Antwerp, March 24, which described her as "engaged in Atlantic trade, and plies be- tween Antwerp, Cuba and the United States." The bill of health concluded as follows: "I certify that the vessel has complied with the rules and regulations made under
64
°fthe act °* February 15, 1893, and that the vessel leaves this port bound for Pensacola, in the United States of America, via Havana, Santiago & Cienfuegos." The steamer's freight list on the vo}rage to Cuban ports was valued at about $7000, stated to be barely sufficient to cover the expenses of receiving, transporting and deliver- ing that cargo, and the charter hire on the contemplated voyage from Pensacola or Ship Island to Rotterdam would have been about $25,000.
The steamer arrived at Havana on April IT, and re- mained there for five days, discharging about sixteen hun- dred tons of her cargo, and taking on some twenty tons of general merchandise for Santiago. On April 22, at about half after three o'clock in the afternoon, she left Havana for Santiago, and at six o'clock, when about fifteen miles east of the Morro, at the entrance of Havana harbor, and five miles north of the Cuban coast, was captured by the •cruiser New York, one of the blockading fleet, and sent to Key West in charge of a prize crew. There she was libelled on April 23.
In due course, proofs in pi*eparatorio, which embraced the ship's papers and the depositions of her master and first officer, were taken. The master appeared in behalf of the owners and made claim to the vessel, and moved the court for leave to take further proofs, presenting with the motion his test affidavit. In the affidavit it was alleged that, although a majority of the stock of La Compania La Flecha was registered in the names of Spanish subjects and onljr a minorit}7 in the names of British subjects, (mem- bers of the firm of G. H. Fletcher & Company,) one of the latter had possession of all the certificates of stock, which under the charter of the company established the •ownership thereof, whereby he was the " sole beneficial owner of the said steamer Pedro." And further that the steamer was transferred from the British to the Spanish registry solely for commercial reasons, " there being dis- criminations in favor of vessels carrying the Spanish flag in respect of commerce with the colonies of Spain, in con- sideration of dues paid by such steamers to the govern- ment of Spain," but that it was the intention of the British stockholders to withdraw her from the Spanish registry and from under the Spanish flag, and restore her to the British registry and the flag of Great Britain whenever the trade might be disturbed. It was' also alleged that the steamer w:is insured '• against all perils and adventures,
65
including- the risks of war, for her full value by under- $£%$%?*** of writers of Lloyds, London, and by insurance companies organized and existing under and pursuant to the laws of Great Britain, and that if the said vessel should be con- demned as prize b}' this court the loss will rest upon and be borne by the said English underwriters."
The motion was denied, the cause heard on the plead- ings and the proofs taken in preparatorio, and a decree of condemnation entered. . . . From the decree of condem- nation an appeal was prosecuted to this court.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
When, on the twent}~-second day of April, this Spanish Opinion, steamer sailed from Havana, the United States and Spain were at war. Congress had adopted a resolution, April 20, demanding "that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters," and directing and empowering the President "to use the entire land and naval forces of the United States, and to call into the actual service of the I'nited States the militia of the several States, to such extent as may be necessary to cany these resolutions into effect." Time was given by the Executive until April 23 for Spain to signify compliance with the demand, but the Spanish Government at once, on April 21, recognized the ^t^oui^V*!8* resolution as "an evident declaration of war," and dip-™ation, anf be-
1 fore hostilities
lomatic relations were broken off. Blockade had beenbe&in- proclaimed April 22, and put into effective operation at Havana, and, immediately thereupon, elsewhere, under the proclamation. And by the act of Congress of April 25, it was declared that war had existed since the twenty- first day of April.
Being an enemy's vessel, the Pedro was liable to cap- ture as lawful prize unless exempted therefrom by the terms of the proclamation of April 26. If that document in its bearing on this case could be regarded as ambigu- ous, a liberal construction might be indulged in, and it is urged that such liberality should in any event be accorded in view of the traditional polky of this Government in respect of the exemption of private property at sea during
In The 7Vm ///./•, 1 Spinks Ecc-1. & Adm. Kep. 306, 310; nePhomix. Spinks' Prize Cases. 1. 6. Dr. Lushington said in refer- 2056—04 5
66
ence to the relaxation of belligerent rights by official action: "If the words of the document are capable of two constructions, then I am clearly of opinion that the one mosUfavorable to the belligerent party, in whose favor the document is issued, ought to be adopted; but the court must bear in mind that its province is not jus dare, but ju^ dicere; and I must again refer to the principle which I have often enunciated in this court, verbis plane expressis omnino standum est"
As applicable here, the meaning of the language used unjustf aPPears to us plain, and the proclamation not open to
dfpiomaTkS°a\tf inten?retation, since none is needed; nor are we justified in expanding executive action by construction because of diplomatic attitude of this Government in respect of the exemption of all property, not contraband, of citizens and subjects of nations at war with each other, an exemption which has not as yet been adopted into the law of nations.
iaw°asritis.pply It may be 'that the hardships incident to • the contrary view will finally be found so destitute of corresponding advantage as to lead to the general acceptance of the doc- trine so long unsuccessfully advocated by our statesmen and publicists, in diminution of the evils of war, but wo must apply the law as it is, and not the law as they con- tended it should be.
The Pedro did not come within the fourth article of the proclamation, for she was in Havana, a port of the enemy, on April 21, and not "in any port or place within the United States." She sailed from Havana for Santiago, another port of the enemy, on April 22, was captured that day, and reached Key West on April 23 as a prize of war. The suggestion that she was thus brought within the ex- emption requires no remark.
Nor did the fifth article of the proclamation exempt the Pedro. That article provided that "any Spanish mer- chant vessel which, prior to April 21, 1898, shall have sailed from any Spanish port bound for any port or place in the United States, shall be permitted to enter such port or place and to discharge her cargo, and afterward forth- with to depart without molestation." imminence of The Pedro remained in the harbor of Havana from the
forePedroVsaiiect 17th until the 22d of April. We think it must be assumed that she was advised of the strained relations between the United States and Spain, and the imminence of hostilities. At all events, she did not leave Havana until the day after
67
that designated by Congress and the President as the day on which war actually began, and which was also so regarded by the Government of Spain. She had no cargo to be dis- charged at any port or place in the United States, but had cargo for Santiago and Cienf uegos, Cuban ports held by the Spanish forces, and she cleared, not for Pensacola, but for Santiago. She was not within the letter of the proc- lamation, nor within the reasons usually assigned for the exemption as pointed out in the opinion of the District Judge, 87 Fed. Rep. 927. She had not left a foreign port in ignorance of the perilous condition of affairs, and inno- cently taking a course which would subject her to our power by entering one of our ports. Neither was she bringing cargo to this country for the increase of our resources, or the convenience of our citizens. trary, she was sailing from one port to another port of the enemy, and all the cargo she had on board was destined for the enemy's ports. Not only this, but she took on cargo at Havana for Santiago, and was captured while thus actually trading from one enemy port to another enemy port, being herself an enemy vessel. In these circum- stances the fact that the Pedro was under contract to ulti- mately proceed, after concluding her visits to the Spanish ports, to a port of the United States, to there1 load for Europe, did not bring her within the exemption of the proclamation.
The doctrine as to continuity of voyage as laid down by this court in the cases cited by appellant has no application.
In The Circassian, 2 Wall. 135, it was ruled that the intent to violate a blockade, found as a fact, was not dis- proved by evidence of a purpose to call at a neutral port, not reached at time of capture, with ulterior destination to the blockaded port. In The Bermuda, 3 Wall. 514, the actual destination to a belligerent port, whether ulte- rior or direct, was held to determine the character of the transaction as a whole; that transhipment could not change the effect of the pursuit of a common object by a common plan; and that if the cargo was contraband its condemnation was justified, whether the voyage was to ports blockaded or to ports not blockaded; and so as to the vessel in the former case. And in 77//- Wall. 1. it was held that an intention to tranship cargo at a neutral port did not save it when destined for a block- aded port; that as to cargo, both in law and intent, the
On thp prm Pedro an ene- J" my ship, trading
The Circassian.
The Bermuda.
•"> TI* springbok.
68
Voyage from London to the blockaded port was one voy- age, and that the liability attached from the time of sail- ing if captured during any part of that voyage. The solu- tion of the question under consideration is not particularly aided by these and like decisions relating to blockade run- ning and the transportation of contraband.
The Joseph. jn T}ie Joseph, 8 Oanch, 451, the American brig Joseph sailed from Boston with a cargo of freight April 6, 1812, on a voyage to Liverpool, and the north of Europe, and thence directly or indirectly to the United States. She discharged her cargo at Liverpool; then, under British license, she took a cargo from Hull to St. Petersburg, and there received news of the war between the United States and Great Britain. She afterwards sailed from St. Petersburg to London with a cargo consigned to merchants at that port, having delivered which, she sailed for the United States in ballast, and was captured not far from Boston Light, and sent into port for adjudica- tion. Her trading with the enemy rendered her liable to condemnation as prize; but it was contended that the offensive voyage terminated at London, and that she was not taken in delicto. The court held, however, that whether her voyage were considered an entire one from the United States to England, thence to St. Petersburg, and thence to the United States, or as two distinct voyages, the homeward voyage being from St. Petersburg to the United States, with a deviation to London, she was cap- tured during the same voyage in which the offence was committed, though after it was committed, and was still in delicto.
. ffie Argo, 1 Spinks, 375; Spinks' Prize Cases, 52, so
much relied on by counsel, was an entirely different case from that presented by this record. The Argo was a ves- sel belonging to a Russian owner, sailing under Russian colors, and bound on a voyage from Havana to Cork. Her charter party bore date February 7 at Havana, but it was therein stipulated that she should load at Havana or Matanzas, demurrage not to be paid for f orty-two running days. She took on sufficient ballast at Havana to keep her safe, and left there in February for Matanzas, where her cargo was begun to be put on 'board February 28 and was completed on March 30, and she cleared from that port April 2. March 29, 1854, the British Order in Coun-
69
cil printed in the margin1 was issued. Dr. Lushington, adhering to the views he had expressed in The Pliwnix, XKJ >i'a, held that the order did not contemplate that the vessel should be laden at the date of sailing and that the voyage was commenced at Havana to end in Great Britain, notwithstanding she took cargo at Matanzas.
It was argued that the Pedro was not liable to capture sh^eu^al °^! and condemnation because British subjects were the legal wlfhlbitCnorex8 owners of some and the equitable owners of the rest of the ^^re1 f rom stock of La Compania La Flecha, and because the vessel was insured against risks of war by British underwriters. But the Pedro was owned by a corporation incorporated under the laws of Spain; had a Spanish registry; wassail- ing under a Spanish flag and a Spanish license; and was officered and manned by Spaniards. Nothing is better settled than that she must, under such circumstances, be deemed to be a Spanish ship and to be dealt with accord- ingly. Story on Prize Courts (Pratt's Ed.) 60, 66, and cases cited. The Friendschaft, 4 Wheat. 105 ; The Ariadne, 2 Wheat. 143; The Cheshire, 3 Wall. 231; Hall Int. Law, §169.
These stockholders were in no position to deny that when they elected to take the benefit of Spanish naviga-
1 "Her Majesty, being compelled to declare war against His Impe- in'counciHn'cri- rial Majesty the Emperor of all the Russias, and being desirous to rcean War, lessen as much as possible the evils thereof is pleased by and with the advice of her Privy Council, to order, and it is hereby ordered, that Russian merchant vessels, in any ports or places within her Majesty's dominions shall be allowed until the tenth day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places; and that such Russian merchant vessels, if met at sea by any of her Majesty's ships, shall be permitted to continue their voyage, if on examination of their papers it shall appear that their cargoes were taken on before the expiration of the above term: Provided, that nothing herein contained shall extend to or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any despatch of or to the Russian Government.
"And it is hereby further ordered by her Majesty, by and with the advice of her Privy Council as aforesaid, that any Russian merchant vessel which, prior to the date of this order, shall have sailed from any foreign port bound for any port or place in her Majesty's domin- ions, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation; and that any such vessel, if met at sea by any of her Majesty's ships shall be permitted to continue her voyage to any port not blockaded
Conclusion.
70
tion laws and the commercial profits to be derived through discriminations thereunder against ships of other nations, they also elected to rely on the protection furnished by the Spanish flag. Nor can the alleged intention to restore the Pedro to British registry, if war rendered the change desirable, be regarded. That had not been done when the Pedro was captured.
In conclusion, we are of opinion that the court below did not err in refusing to allow further proofs to be taken. The Spanish ownership was made out, and the facts that the stock of the corporation belonged legally or equitably to British subjects or that the loss of the vessel would be eventually borne \>y British underwriters were immaterial. Nor was there any doubt as to the movements of the Pedro and the trading in which she was actually engaged. The conclusion reached by the District Court could not have been affected by the further proofs desired to be taken.
Decree affirmed.
MR. JUSTICE WHITE, with whom concurred MR. JUSTICE BREWER, MR. JUSTICE SHIRAS and MR. JUSTICE PECKHAM, dissenting.
CASE OF THE BUENA VENTURA.
(Vol. 175, United States Reports, p. 384. Decided Dec. 11, 1899. MR. JUSTICE PECK- HAM delivered the opinion of the court.)
statement of During the late war between the United States and Spain, and on May 27, 1898, the District Court of the United States for the Southern District of Florida con- demned the steamship Buena Ventura as lawful prize of war, on the ground "that the said steamship Buena Ven- tura was enenry's propert}7, and was upon the high seas and not in any port or place of the United States upon the outbreak of the war, and was liable to condemnation and seizure." It was thereupon ordered that the vessel "be condemned and forfeited to the United States as lawful prize of war; but it appearing that the cargo of the said steamer was the propert}' of neutrals and not contraband and subject to condemnation and forfeiture, it is ordered that said cargo be released and restored to the claimant or the true and lawful owners thereof."
The vessel was captured on April 22, 1898, eight or nine miles from Sand Key light, on the Florida coast, by
71
the United States ship of war Nashville, under the com- thl*^1116111 of mand of a line officer of the United States Navy, was brought into the port of Key West for adjudication, and was condemned upon the answers, given by the master and mate of the steamship, to standing interrogatories in preparatorio, and upon the documents seized on board the ship by the captors. This evidence showed that the steam- ship was a Spanish vessel engaged exclusively in the car- rying of cargoes, and that at the time of her capture she was making a voyage under a charter party which had been concluded in Liverpool on March 23, 1898, between the agents of the owners and the agents of the charterers. By this charter party the steamship was described as " now ready to leave Cuba;" and it was agreed upon therein that the vessel should with all convenient speed proceed to Ship Island, Mississippi, and there take on a cargo of lumber, and proceed therewith, as customary, to Rotter- dam. The vessel was to be at her loading place and ready for cargo on or before the 10th of April, and if she were not, the charterers had the option of cancelling the charter. Pursuant to this charter part}r the ship left Cuba and ar- rived at Ship Island about the 31st of March, and between that time and the 19th of April she had taken on her cargo, and on the latter day had sailed from Ship Island bound for Norfolk, Virginia, to take in bunker coal, the charter party giving the vessel the liberty to stop at any port on the voyage for coal, then to proceed to Rotterdam. After leaving port at Ship Island she proceeded on her voyage to Norfolk, and about half -past seven o'clock on the morn- ing of April 22, while proceeding close to the Florida reefs, was captured as stated. She made no resistance at the time of her capture, there were no military or naval officers on board of her, and she carried no arms or muni- tions of war. The evidence is undisputed that the vessel, when captured, was proceeding on her voyage to Norfolk. Previous to sailing from Ship Island she was furnished with a bill of health, in which it was stated that she was now "ready to depart from the port of Pascagoula, Mis- sissippi, [which is the customs port of Ship Island,] for Norfolk. Virginia, and other places beyond the sea." Her manifest showed that she was bound for Norfolk. It is headed "Coast Manifest," and after a description of the cargo it continues: "Permission is hereby granted to said vessel to proceed from this port to Norfolk, in the district of Norfolk and State of Virginia, to lade bunker coal;"
72
o£and & was signed and sealed by the deputy collector of Pascagoula, district of Pearl River, Mississippi, on April 14, 1898, and the fees therefor paid.
The ship's clearance was for Norfolk, and contained the same permission to proceed there, to lade bunker coal.
There was no evidence which tended to throw any sus- picion as to the destination of the vessel.
After obtaining all her papers in the regular way, and having cleared at the custom house on April 14, 1898, she was detained at Ship Island by low water until between eight and nine o'clock A. M. of April 19, 1898, when she sailed over the bar and proceeded on her voyage.
In the test affidavit of the master he swore that at all times before the ship's seizure he and all of his officers were ignorant that war existed between Spain and the United States, and the vessel at the time of her capture was following the ordinary course of her voyage.
The various proceedings of Congress, proclamations of the President, letters of the Secretary of State, and other public documents connected with occurrences leading up to the breaking out of hostilities between this country and Spain are contained in this record, but are also set forth at sufficient length in the statement of facts contained in the report of the case of The Pedro, ante 355 [see p. 58, preceding], and it is unnecessary, therefore, to repeat them.
After a hearing the District Court on the 27th of May, 1898, condemned the vessel, 87 Fed. Rep. 927, which was sold under the final decree of the court, and her proceeds deposited to abide the event of an appeal, which was then taken on the part of the claimant.
MR. JUSTICE PECKHAM, after stating the facts as above, delivered the opinion of the court.
The Buena Ventura was a Spanish merchant vessel in the peaceful prosecution of her voyage to Norfolk, Vir- ginia, from Ship Island, in the State of Mississippi, when, on the morning of April 22, 1898, she was captured as lawful prize of war, of the existence of which, up to the moment of capture, all her officers were ignorant. She was not violating any blockade, carried neither contra- band of war nor any officer in the military or naval serv- ice of the enemy, nor any dispatch of or to the Spanish Government, and attempted no resistance when captured.
Historic atti- ,. L. . i i i •- 1 • ,1
tude of the The facts regarding this vessel place her within that
United States in . . & f .
favor of mitigat- class which this Government has alwavs desired to treat
ing the horrors . " . . . . . .
of war as to aii with great liberality. It is, as we think, historically
non-combatants. »
73
accurate to say that this Government has always been, in its views, among the most advanced of the Governments of the world in favor of mitigating, as to all non-combat- ants, the hardships and horrors of war. To accomplish that object it has always advocated those rules which would in most cases do away with the right to capture the prop- erty of an enemy on the high seas. 3 Wharton's Interna- tional Law Digest, § 342. The refusal of this Government to agree to the Declaration of Paris was founded in part upon the refusal of the other Governments to agree to the proposition exempting private property, not contraband, from capture upon the sea.
It being plain that merchant vessels of the enemy car- rying on innocent commercial enterprises at the time or just prior to the time when hostilities between the two countries broke out, would, in accordance with the later practice of civilized nations, be the subject of liberal treatment by the Executive, it is necessary when hisproc lamation has been issued, which lays down rules for treat- ment of merchant vessels, to put upon the words used therein the most liberal and extensive interpretation of Liberal imer-
, . , , 1 . i , , , , pretation of Ex-
which they are capable; and where there are two or moreecutive procia- interpretations which possibly might be put upon the Ian- n guage, the one that will be most favorable to the belligerent party, in whose favor the proclamation is issued, ought to be adopted.
This is the doctrine of the English courts, as exempli- fied in The Phoenix, Spink's Prize Cases, 1, 5, and The Argo, Id. p. 52. It is the doctrine which this court believes to be proper and correct.
To ascertain the intention of the Executive we must look to the words which he uses. If the language is plain and clear, and the meaning not open to discussion, there is an end of the matter. If, however, such is not the case, and interpretation or construction must be resorted to for the purpose of ascertaining the precise meaning of the text, it is our duty with reference to this public instrument to make it as broad in its exemptions as is reasonably possible.
If inferences must be drawn therefrom in order to ren- der certain the limitations intended, those inferences should be, so far as is possible, in favor of the claimant in behalf of the owners of the vessel.
The language to justify an exemption of the vessel must, it is true, be found in the proclamation; yet if such lan- guage fail to state with entire clearness the full extent and
74
scope of such exemption, thereby making it necessary that some interpretation thereof should be given, it is proper
tiveri0view^xeeCvi ^° re^er *° the Pri°r views of the Executive Department dence of policy. of the Government as evidence of its policy regarding the subject. This is not for the purpose of enlarging the nat- ural and ordinary meaning of the words used in the proc- lamation, but for the purpose of thereby throwing some light upon the intention of the Executive in issuing the instrument and also to aid in the interpretation of the language employed therein, where the extent or scope of that language is not otherwise entirely plain and clear. A reference to the views that have heretofore been an- nounced by the Executive Department is made in 3 Whar- ton, supra, and it will be found that they are in entire accord with the most liberal spirit for the treatment of non-combatant vessels of the enemy. construction to \\re COme now to the construction of the instrument.
be placed on the
t's proc- It will be seen that Congress on the 25th of April, 1898, declared war against Spain, and in the declaration it is stated that war had existed since the 21st of April preceding. The President on the 26th* of April issued his proclamation regarding the principles to be followed in the prosecution of the war. It is dated the da}T it was issued. The fourth clause thereof may for convenience be here reproduced, as follows:
"4. Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21st, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by &ny United States ship, shall be permitted to continue their voyage, if, upon examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy; or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government."
Meaningofcer- What is included by the words " Spanish merchant ves- instrument. sels in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places " ? At what time must these Spanish vessels be "in any ports or places within the United States". in order to be exempt
75
from capture? The time is not stated in the proclama- tion, and therefore the intention of the Executive as to the time must be inferred. It is a case for construction or interpretation of the language employed.
The language is open to several possible constructions. It might be said that in describing Spanish merchant ves- sels in any ports, etc., it was meant to include only those which were in such ports on the day when the proclama- tion was issued, April 26. Or it might be held (in accord- ance with the decision of the District Court) to include those that were in such ports on the 21st of April, the day that war commenced, as Congress declared. Or it might be construed so as to include not alone those vessels that were in port on that day, but also those that had sailed there- from on any day up to and including the 21st of May, the last day of exemption, and were, when captured, continu- ing their voyage, without regard to the particular date of their departure from port, whether immediately before or subsequently to the commencement of the war or the issuing of the proclamation.
The District Judge, before whom several cases were tried together, held that the date of the commencement of the war (April 21) was the date intended by the Execu- tive; that as the proclamation of the 22d of April gave thirty days to neutral vessels found in blockaded ports, it was but reasonable to consider that the same number of da}Ts, commencing at the outbreak of the war, should be allowed so as to bring it to the 21st of Ma}', the day named; that although a retrospective effect is not usually given to statutes, yet the question always is, what was the intention of the legislature?
He also said that "the intention of the Executive was to fully recognize the recent practice of civilized nations, and not to sanction or permit the seizure of the vessels of the enenw within the harbors of the United States at the time of the commencement of the war, or to permit them to escape from ports to be seized immediately upon enter- ing upon the high seas." (See preamble to proclamation.)
In the Buena Ventura, the case at bar, the District Judge held that her case "clearly does not come within the language of the proclamation.''
It is true the proclamation did not in so many words provide that vessels which had loaded in a port of the United States and sailed therefrom before the commence- ment of the war should be entitled to continue their voyage.
76
but we think that those vessels are clearly within the intention of the proclamation under the liberal construc- tion we are bound to give to. that document.
iamat£n0was°to ^n intention to include vessels of this class in the exemp- thariuid VsaTied ^oa ^ rom capture seems to us a necessary consequence of k|n°re war be'the language used in the proclamation when interpreted according to the known views of this Government on the subject and which it is to be presumed were the views of the Executive. The vessel when captured had violated no law, she had sailed from Ship Island after having obtained written permission, in accordance with the laws of the United States, to proceed to Norfolk in Virginia, and the permission had been signed by the deputy collector of the port and the fees therefor paid by the ship. She had a cargo of lumber, loaded but a short time before the com- mencement of the war, and she left the port but forty eight hours prior to that event. The language of the proclamation certainly does not preclude the exemption of this vessel, and it is not an unnatural or forced con- struction of the fourth clause to say that it includes this case.
The omission of any date in this clause, upon which the vessel must be in a port of the United States, and prior to which the exemption would not be allowed, is certainly very strong evidence that such a date was not material, so long as the loading and departure from our ports were accomplished before the expiration of May 21. It is also evident from the language used that the material concern was to fix a time in the future, prior to the expiration of which vessels of the character named might sail from our Particuiardate ports and be exempt from capture. The particular time
of sailing unim- , . , , . ,. ,, j •!• e
portant if prior at which the loading of cargoes and sailing from our proclamation. m ports should be accomplished was obviously unimportant, provided it was prior to the time specified. Whether it was before or after the commencement of the war, would be entirely immaterial. This seems to us to be the intention of the Executive, derived from reading the fourth clause with reference to the general rules of interpretation already spoken of, and we think there is no language in the proc- lamation which precludes the giving effect to such intention. Its purpose was to protect innocent merchantmen of the enemy who had been trading in our ports from capture, provided they sailed from such ports before a certain named time in the future, and that purpose would be
77
wholly unaffected by the fact of a .sailing1 prior to the war. That fact was immaterial to the scheme of the proclama- tion, gathered from all its language.
We do not assert that the clause would apply to a vessel which had left a port of the United States prior to the commencement of the war and had arrived at a foreign port and there discharged her cargo, and had then left for another foreign port prior to May 21. The instructions pli|f o to United States ships, contained in the fourth clause, ^ to permit the vessels "to continue their voyage" would s. port limit the operation of the clause to those vessels that were still on their original voyage from the United States, and had taken on board their cargo (if any they had) at a port of the United States before the expiration of the term mentioned. The exemption would probably not apply to such a case as The Phoenix, (Spink's Prize Cases, 1). That case arose out of the English Order in Council, made at the commencement of the Crimean war. The vessel had sailed from an English port in the middle of February, 1854, with a cargo, bound for Copenhagen, and having reached that port and discharged her cargo b}T the middle of March, she had sailed therefrom on the 10th of April, bound to a foreign port, and was captured on the 12th of April while proceeding on such voyage. The Order in Council was dated the 29th of March, 1854, and provided that "Russian merchant vessels', in amr ports or places within her Majesty's dominions, shall be allowed until the tenth day of May next, six weeks from the date hereof, for loading their cargoes and departing from such ports or places," etc. The claim of exemption was made on the ground that the vessel had been in an English port, and although she sailed therefrom in the middle of February to Copenhagen and had there discharged her cargo, before the Order in Council was promulgated, yet it was still urged that she was entitled to exemption from capture. The court held the claim was not well founded, and that it could not by any latitude of construction hold a vessel to have been in an English port on the 29th of March, which on that day was lying in the port of Copenhagen, having at that time discharged the cargo which she had taken from the English port. It is true the court took the view that the vessel must at all events have been in an English port on the -2!»th of March in order to obtain exemption, and if not there on that day, the vessel did not come within the
78
terms of the order and was not exempt from capture. From the language of the opinion in that case it would seem not only that a vessel departing the day before the 29th of March would not come within the exemption, but that a vessel arriving the day after the 29th, and departing before the 10th of May following, would also fail to do so; that the vessel must have been in an English port on the very day named, and if it departed the day before or arrived the day after, it was not covered by the order.
meaenwirinCri" ^he French Government also, on the outbreak of the Crimean war, decreed a delay of six weeks, beginning on the date of the decree, to Russian merchant vessels in which to leave French ports. Russia issued the same kind of a decree, and other nations have at times made the same provisions. It is claimed that they confine the exemption to vessels that are actually within the ports of the nation at the date of issuing the decree or order.
We are not inclined to put so narrow a construction upon the language used in this proclamation. The inter- pretation which we have given to it, while it may be more liberal than the other, is still one which may properlv be indulged in. vessels sailing jf this vessel, instead of sailing on the 19th, had not
shortly before
and shortly after sailed until the 21st of April, the court below says she
war began are m J
same case. would have been exempt from capture. In truth, she was from her character and* her actual employment just as much the subject of liberal treatment, and was as equita- bly entitled to an exemption when sailing on the 19th, as she would have been had she waited until the 21st. No fact had occurred since her sailing which altered her case in principle from the case of a vessel which had been in port on, though sailing after, the 21st. To attribute an intention on the part of the Executive to exempt a vessel if she sailed on or after the 21st of April, and before the 21st of May, and to refuse such exemption to a vessel in precisely the same situation, only sailing before the 2 1st, would, as we think, be without reasonable justification. It may safely be affirmed that he never had any such dis- tinction in mind and never intended it to exist. There is nothing in the nature of the two cases calling for a differ- ence in their treatment. They both alike called for pre- cisely the same rule, and if there be language in the clause or proclamation for which an inference can be drawn favorable to the exemption, and none which precludes it,
79
we are bound to hold that the exemption is given. We think the language of the proclamation does permit the inference and that there is none which precludes it.
We are aware of no adjudications of our own court as to the meaning to be given to words similar to those con- construction contained in the proclamation, and it may be that a step in advance is now taken upon this subject. Where, how- ever, the words are reasonably capable of an interpreta- tion which shall include a vessel of this description in the exemption from capture, we are not averse to adopting it, even though this court may be the first to do so. If the Executive should hereafter be inclined to take the other view, the language of his proclamation could be so altered as to leave no doubt of that intention, and it would be the duty of this court to be guided and con- trolled by it.
Deciding as we do in regard to the fourth clause, it be- comes unnecessary to examine the other grounds for a reversal discussed at the bar.
The question of costs then arises. We had occasion in .
ngues.
The Olinde Rodrigues, 174, U. S. 510, to examine that question in relation to the existence of probable cause for making the capture. In that case it was held that such probable cause did exist, and although the facts therein proved did not commend the vessel to the favorable con- sideration of the court, yet upon a careful review of the entire evidence we held that we were not compelled to proceed to the extremity of condemning the vessel. Resti- tution was, therefore, awarded, but without damages. Payment of the costs and expenses incident to her custody and preservation, and of all costs in the case except the fees of counsel, were imposed upon the ship.
In this case, but for the proclamation of April 26, the ship would have been liable to seizure and condemnation as enemy's property. At the time of seizure, however, (April 22.) that proclamation had not been issued, and hence there was probable cause for her seizure, although the vessel was herself entirely without fault. The subse- quent issuing of the proclamation covering the case of a vessel situated as was this one took away the right to con- demn which otherwise would have existed. Thus, at the time of seizure, both parties, the capturing and the cap- tured ship, were without fault, and while we reverse the judgment of condemnation and award restitution, we think
80
it should be without damages or costs in favor of the ves- sel captured.
judgment. The ship having been sold, the moneys arising from
the sale must Repaid to the claimant without the deduc- tion of any costs arising in the proceeding, hut after deducting the expenses properly incident to her custody and preservation up to the time of her sale, and it is so ordered.
THE CHIEF JUSTICE and MR. JUSTICE GRAY and MR. JUSTICE McKENNA dissented.
Statement the case.
CASES OF THE PAQUETE HABANA AND THE LOLA.
(Vol. 175, United States Reports, p. 677. Decided January 8, 1900. MR. JUSTICE GRAY delivered the opinion of the court.)
The cases are stated in the opinion of the court.
MR. JUSTICE GRAY delivered the opinion of the court.
of 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 prizes
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 re- siding 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 no 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 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
81
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 two miles off Mariel, and eleven miles from Havana, she was captured b}~ 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 put for 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 condemna- tion 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 b}' auction; thePaquete 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.
*******
We are then brought to the consideration of the ques- tion 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 inter- national law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recog- nized as exempt, with their cargoes and crews, from cap- ture as prize of war. 2056—04 6
82
ru?e°Ixempting This doctrine, however, has been earnestly contested at coast fishing ves- ^ne kar. an(j no complete collection of the instances illus- trating it is to be found, so far as we are aware, in a single published work, although many are referred to and dis- cussed by the writers on international law, notably in 2 Ortolan, Regies Internationales et Diplomatic de la Mer, (4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit Inter- national, (5th ed.) §§ 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavilion Ennemi, §§ 191-196; and in Hall, International Law, (4th ed.) § 148. It is there- fore worth the while to trace the history of the rule, from the earliest accessible sources, through the increasing rec- ognition of it, with occasional setbacks, to what we ma}" now justly consider as its final establishment in our own countiy and generally throughout the civilized world, emanated from The earliest acts of any government on the subject, mentioned in the books, either emanated from, or were approved by, a King of England.
. °f H°3 I" 1403 and 1406, Henry IV issued orders to his admirals and other officers, entitled "Concerning Safety for Fish- ermen— De Securitate pro Piscatwibus" 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 industrv, the more safely on the sea, and deal with each other in peace; and that the French King had consented that English fish- ermen 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 defence, 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 lawf ulty fishing, delaying or proceed- ing, and returning homeward with their catch of fish, with- out 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
83
well and properly, and should not, by color of these pres- ents, do or attempt, or presume to do or attempt, any- thing 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 bj^eeae^ ^a^ Charles V and Francis I of France, through their ambas- v and Francis i. sadors, recited that a great and fierce war had arisen be- tween 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 injur}r of the innocent 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, would wholly fail for the year, unless it were otherwise provided — quo fit, ut piscaturse commoditas, ad pauperwn levandam famein a cvdesti numine concessa, cessare hoc anno omnino debeat, nisi aliter promdeatur. 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 freel}*, everywhere in the sea, take her- rings and ever}- 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, an}r depreda- tion, force, violence, molestation or vexation, to or upon such fishermen, or their vessels, supplies, equipments, nets and fish, or other goods soever truly appertaining to fish- ing. The treat}' was made at Calais, then an English pos- session. It recites that the ambassadors of the two sov- ereigns 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 said 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. Qua>- stioncs .Juris Publkw. lib. 1. c. 3; I Kmerigon des Assur- ances, c. 4, sect. !»: c. ]•_>, sect. li». $ 8.
84
re- France, f rom remote times, set the example of alleviat- mote times. ing the evils of war in favor of all coast fishermen. In the compilation entitled Us et Continues de la Mer, pub- lished by Cleirac in 1661, and in the third part thereof, containing "Maritime or Admiralty Jurisdiction — la Jurisdiction de la Marine ou dAdmiraute — "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 pescJieresses — 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 Marl- times, 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 Eng- land, 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 sefirent mal Tun a Tautre; ainpois sont amis, et s'aydent Tun a T mitre an besoin." French prao- The same custom would seem to have prevailed in
tice till end of L
nth century. k ranee until towards the end or 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 coasts of France, Holland and England. D'Hauterive et De Cussy, Traites de Com- Discontinu-merce, pt. 1, vol. 2, p. 278. But by the ordinances of
ance of early ' * ,. .
practice in 1681 1681 and 1692 the practice was discontinued, because,
aud 1692. r
Valin sa}7s, 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 1'Ordonnance de la Marine, (1776) 689, 690; 2 Ortolan, 52; De Boeck § 192. Doctrine famii- The doctrine which exempts coast fishermen with their
iar to the United ,, • /• i
states since the vessels and cargoes from capture as a prize or war has pendence. e-been familiar to the United States from the time of the
War of Independence. French orders On June 5, 1779, Louis XVI, our allv in that war, ad-
in 1779 and 1780. ,
dressed 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
85
class of his subjects 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 ene- mies, and which could have no other source than the sen- timents 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 pro- nounced to be illegal. 2 Code des Prises, (ed. 1784) 721, 901, 903.
Among the standing orders made by Sir James Mar- riott, 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 fift}T tons burden, and not more than six in number." Marriott's Formulary, 4. But by the statements of his successor, and of both Practice dur-
^ . ing Revolution-
French and English writers, it appears that England, asarywar.
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, S US.
In the treat v of 1785 between the United States and Rule recog-
_«• . . * / i . i 1,1 . nized in treaties
Prussia, article 23, (which was proposed bv the American of united states
n • • T I -r% • • " T- i !• , and Prussia in
Commissioners, John Adams, Benjamin iranklm andi'85, 1799, and
1828
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, manufac- turers and fishermen, 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;
86
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. 96; 1 Kent Com. 91 note; Wheaton's 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 unfor- tified places. The article was repeated in the later treat- ies between the United States and Prussia of 1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his edi- tion of Wheaton's International Law, says: "In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupa- tion is not to be disturbed in war." Wheaton's Interna- tional Law, (8th ed.) § 345, note 168. Recognition of Since the United States became a nation, the only serious
rule interrupted • , ,. /> •/. j .e j.i "
during French 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 author- ized the capture of French fishermen, a decree of the
1-93. 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."
17%. 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 JVostra Segnora de la Piedad, (1801) cited below; 2 De Cuss}^, Droit Maritime, 164, 165; 1 Masse, Droit Commer- cial, (2d ed.) 266, 267.
1798. 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, His- toire des Traites, 119; 2 Ortolan, 53. After the promul- gation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty of England con- demned small Dutch fishing vessels as prize of war. In one case, the capture was in April, 1798, and the decree
87
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 in isooand isoi. be found in books alread^v referred to. 6 Martens, 503- 512; 6 Schoell, 118-120; 2 Ortolan, 53, 54. The doings for that year mav be summed upas follows: On March 27, 1800, the French government, unwilling to resort to re- prisals, ree'nacted 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 afterwards, the English government complained that French fishing boats had been made into fire boats at Flushing, as well as that the French govern- ment 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 Con- sul, directed the French commissioner at London to return at once to France, first declaring to the English govern- ment that its conduct, "contrary to all the usages of civil- ized 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," 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 Freedom of come into power in England, revoked the orders of itsaglin allowed! predecessors against the French fishermen; maintaining, however, that " the freedom of fishing was nowise founded upon an agreement, but upon a simple concession: " that "thi.- concession would be always subordinate to the con- venience of the moment. "and thai " it was never extended
88
to the great fisheiy, 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 ed.) 206.
The Young Jo- Lord Stowell's judgment in The Young Jacob and Jo- ia' hanna, 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 Stow- ell, in delivering judgment, said: "In former wars, it has not been usual to make captures of these small fishing ves- sels; 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 rea- son 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 ene- my'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.
Grounds for the Both the capture and condemnation were within a year after the order of the English government of January ~2±, 1798, instructing the commanders of its ships to seize French and Dutch fishing vessels, and before any revoca- tion 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.
Examinationof But some expressions in his opinion have been given so fn E^stoweiS much weight by English writers, that it may be well to examine them particularly. The opinion begins by admit- ting 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
89
synonymous with courtesy or good will. But the period of a hundred years which has since elapsed is amply suffi- cient 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 sub- stantial 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 gen- 0"estt^j1 »eneral eral 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 ves- sel, 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 captured in April, 1801, by a French cruiser, three 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 inter- national 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 In n<(l<id, 25 Merlin, Jurisprudence, Prise Maritime, § 3, art. 1, 3; S. C. 1 Pistoye et Duverdy, Prises Mari- times, 331; 2 De Cussy, Droit Maritime, 166.
The English Government, soon afterwards, more than Exemption
,. . ., . , again established
once unqualifiedly prohibited the molestation of nshinerb>'Britishorders
-. J . & in council, 1806
vessels employed in catching and bringing to market fresh andisio. 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 bring- ing 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
90
appertain." 5 C. Rob. 408. Again, in the order in coun- cil of May 2, 1810, which directed that "all vessels which shall have cleared out from any port so far under tne con- trol of France or her allies as that British vessel:, may not freely trade thereat, and which are emplo}Ted 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 ma}^ 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'sview Wheaton, in his Digest of the Law of Maritime Cap- tures and Prizes, published in 1815, wrote: "It has been usual in maritime wars to exempt from capture fishing- boats and their cargoes, both from views of mutual accom- modation between neighboring countries, and from ten- derness 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 France and England mutually reproach each other with that breach of good faith which has finally abolished it." Wheaton on Captures, C. 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.
Exemption in During the wars of the French Empire, as both French
the wars of the r '
French Empire ancj English writers agree, the coast fisheries were left in
and in the Mex-
icanwar. 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 lendema'i n." In the war with Mexico in 1846, the1 United States rec- ognized 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; Underbill v. Hernandez, 168 U. S. 250, 253.
By those records it appears that Commodore Conner,
91
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, enclosing a copy of the commodore's "instructions to the commanders of the vessels of the Home Squadron, show- ing 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 De- partment, of which Mr. Bancroft was still the head, and continued to be until he was appointed minister to Eng- land 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.) sec. 148.
As qualif ving the effect of those statements, the counsel commodore
n ./ o Stockton's proc-
f or the United States relied on a proclamation of Commo- lamation appar-
1 n ^ ently not favor-
dore Stockton, commanding the Pacific Squadron, dated ing exemption. August 20, 1846, directing officers under his command to proceed immediately to blockade the ports of Mazatlan and San Bias on the west coast of Mexico, and saying to them, "All neutral vessels that you may find there }7ou will allow twenty daj7s 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 Report 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 contrarv, General Halleck, in the preface to his,, Haiieck was
• ' Stockton's ad-
Work on International Law or Rules Regulating the Inter-
course 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
92
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, dif- fered 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:
temationai Law " Fishing boats have also, as a general rule, been on the subject, exempted from the effects of hostilities. As earty as 1521, while war was raging between Charles V and Fran- cis, 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 leavre 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 govern- ment, 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 vio- lated 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 with- drawn, 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.) c. 20, § 23.
That edition was the onl}T one sent out under the author's own auspices, except an abridgment, entitled Elements of International Law and the Law of War, which he pub- lished in 1866, as he said in the preface, to supply a suit- able text-book for instruction upon the subject, " not Only in our colleges, but also in our two great national schools — the Militar}7 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
93
courts, which have restored such vessels when captured by French cruisers." Halleck's Elements, c. 20, § 21.
In the treaty of peace between the United States and Treatyofi&is. Mexico in 1848 were inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hos- tile molestation or seizure in time of war of the persons, occupations, houses or goods of fishermen. 9 Stat. 939, 940.
Wharton's Digest of the International Law of the United wharton's DI-
43 gest.
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 Act ion of
' France, 1854 ,1859,
with Austria in 1859 and with Germany in 1870, b}- gen- and mo. eral 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 neces- sary. Calvo, § 2372; Hall, § 148; 2 Ortolan, (4th ed.) 449; 10 Revue de Droit International, (1878) 399.
Calvo says that in the Crimean War, "notwithstanding .England's ac-
J & tion in the Cri-
her alliance with France and Italy, England did not follow mean war. the same line of conduct, and her cruisers in the Sea of Azof destroyed the fisheries, nets, fishing implements, pro- visions, boats, and even the cabins, of the 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." Katchenovsk}7, (Pratt's ed.) 148. But the contemporaneous reports of the Eng- lish naval officers put a different face on the matter, by stating that the destruction in question was part of a mili- tary measure, conducted with the cooperation 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 Govern- ment, numbers of heavy launches, and enormous quantities of nets and gear, salted fish, corn and other provisions,
94
intended for the supply of the Russian army. United Service Journal of 1855, pt. 3, pp. 108-112. NO denial of Since the English orders in council of 1806 and 1810,
exemption since j ° » j-^ci- i i •
1806. 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
japan's action nation. And the Empire of Japan, (the last State admitted into the rank of civilized nations,) by an ordinance pro- mulgated 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 fish- eries," as well as "ships engaged exclusively on a voyage of scientific discover}", philanthropy or religious mission." Takahashi, International Law, 11, 178.
international International law is part of our law, and must be ascer-
unued States tained and administered by the courts of justice of appro- law; how ascer- •-••!•-• £. .• £ • •>. j j-
tamed and ad- priate lurisdiction, as often as questions or right depending
ministered. ' . L , . ° ± 6
upon it are duly presented for their determination, lor 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 civilized nations; and, as evidence to these, to the works of jurists and commen- tators, 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, 214, 215.
wheaton. Wheaton places, among the principal sources of inter-
national 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 ma\T be affirmed that they are generally impartial in their judg- ment. 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 }*ear that passes without the rules
95
laid down in their works being impugned by the avowal of contrary principles." Wheaton's International Law, (8th ed.) § 15.
Chancellor Kent says: "In the absence of higher and Kent more authoritative sanctions, the ordinances of foreign States, the opinions of eminent statesmen, and the writ- ings of distinguished jurists, are regarded as of great con- sideration 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 dis- regard 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 con- sent of civilized nations.
"Enemy ships," say Pistoye and Duverdy, in their D^!esr^°/e and 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 excep- tion 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, c. 1, p. 314.
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of Nations — Phases et Causes Cele- bres du Droit Maritime des Nations — published in 1856, affirms in the clearest language the exemption from cap- ture 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, c. 20, he will state "several facts and several decisions which prove that the perfect freedom and neutrality of fishing boats are not illusory." 1 De Cussy, p. 291. And in the chapter referred to, entitled De la Liberte et de la Neutralite Par- fn!f< <l< hi /Vr/,,. besides references to the edicts and decisions in France during the French Revolution, is thU general statement: "If one consulted only positive inter- national law"— Jf <//•<></ 'Ax <j> UN j>n*!tif- -(by which is evi- dently meant international law expressed in treaties,
96
decrees or other public acts, as distinguished from what maybe implied from custom or usage,) "fishing boats would be subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among all European nations frees them from it, and several official declarations have confirmed this privilege in favor of ' a class of men whose hard and ill rewarded labor, commonly performed by feeble and aged hands, is so foreign to the operations of war.' " 2 De Cussy, 164, 165.
Ortolan. Ortolan, in the fourth edition of his Regies Internation-
ales et Diplomatic 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: "Neverthe- less, custom admits an exception in favor of boats engaged in the coast fisher}-; 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, ma}T be called the harvesters of the territorial seas, since they con- fine themselves to gathering in the products thereof; they are for the most part poor families who seek in this call- ing hardly more than the means of gaining their liveli- hood." 2 Ortolan, 51. Again, after observing that there are veiy 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 land, in regard to peasants and husbandmen, to whom coast fishermen may be lik- ened, that it will doubtless continue to be followed in maritime wars to come." 2 Ortolan, 55.
Caivo. 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
9.7
derived from the internal legislation of each chantry; arid yet the peculiar character of maritime wars, with other considerations, gives to prize jurisprudence a force and importance reaching bej^ond 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. Immediatel}T, in £ 2367, he goes on to siy: ''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 parfaiteinent justiciable" - that is to say, belonging to judicial jurisdiction or cogni- zance. Littre, Diet. roc. Justiciable; Hans v. Louisiana, 134 V. S. 1, 15. Calvo then quotes Ortolan's description, above cited, of the nature of the coast fishing industry; and proceeds to refer, in detail, to some of the French precedents, to the acts of the French and English govern- ments in the times of Louis XVI and of the French Revo.- lution, 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 dis- tinction 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 indus- try 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, con- sidered as devoted to operations which are at once com- mercial and industrial — ('/.•< /m ><//•>•>< xont m <ft',f consider^ coininc <i<loiui<:x a des operations a la fo<x commercial** <t inline r'x'lles" The distinction is generally recognized. -2 ( >rtolan, 54; De Boeck, S 196; Hall, S 148. See also The Sux<i, 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. l>\ which the vessels and implements of coast fishermen are
98
exempt from seizure and capture, as well established by the practice of nations. Heffter, § 137; 2 Kaltenborn, § 237, p. 480; Bluntschli, § 667; Perel, § 37, p. 217. DeBoeck. De Boeck, in his work on Enemy Private Property
under Enemy Flag — de la Propriete Privee Ennemie sous Pavilion Ennemi— published in 1882, and the only conti- nental 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 evi- dent; 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 treaties 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 Ger- man jurists, and that " it is more exact, without ignoring the imperative character of the humane rule in question— elle est plus exacte, sans meconnattre le caractere imperatif d# la regie cPhumanite dont il Jagit" And in § 196, he defines the limits of the rule as follows: " But the immu- nity of the coast fishery must be limited by the reasons that justify it. The reasons of humanity and of harmless- ness — les raisons d* kumanite 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 them- selves 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 seiz- ure by way of prevention 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, (influ- enced by what Lord Stowell said a century since,) hesitate to recognize that the exemption of coast fishing vessels
99
from capture has now become a settled rule of interna- tional law. Yet they both admit there is little real differ- ence 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 Hail, his Treatise on International Law, after briefly sketching the history of the positions occupied by France and Eng- land 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. Eng- land 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 circum- stances of inconvenience to itself. It is likely that all nations would now refrain from molesting them as a gen- eral 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." So T. J. Law- Lawrence, rence, 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. Ferguson, and previously in the naval and in the colonial service of his country, in his Manual of International Law for the I'se 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 princi- ple 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 hann- lc--." -J Ferguson, S '21*2.
100
Attlmayr 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: " Regard- ing1 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 bushios }Tields only a necessary livelihood, are, from considera- tions of humanity, universally excluded from capture." 1 Attlmayr, 61.
<u- xegriii. Ignacio de Negrin, 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 people excludes from capture, and from all kind of hostilit}', 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. It has been thus expressed in veiT many international conventions, so that it can be deemed an incontestable principle of law, at least among enlight- ened nations." Negrin, tit. 3, c. 1, >j 310.
Testa. Carlos Testa, Captain in the Portuguese Navy and Pro-
fessor in the Naval School at Lisbon, in his work on Pub- lic International Law, published in French at Parisin 1886, when discussing the general right of capturing enemy ships, uays: "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 car- ried on by so poor and so hardworking a class of men, that it is likened, in the territorial waters of the enemy's coun- try, to the class of husbandmen who gather the fruits of the earth for their livelihood. The examples and practice1 generally followed establish this humane and beneficent exception as an international rule, and this rule may be con- sidered as adopted by customary law and by all civilized nations." Testa, pt. 3, c. 2, in 18 Bibliotheque Interna- tional et Diplomatique, pp. 152, 153.
Fi(>r>- No less clearly and decisively speaks the distinguished
Italian jurist, Pasquale Fiore, in the enlarged edition of his exhaustive work on Public International Law, pub- lished at Paris in 1885-6, saying: "The vessels of iisher men have been generally declared exempt from confisca- tion, because of the eminently peaceful object of their
101
humble industry, and of the principles of equity and humanity. The exemption includes the vessel, the imple- ments of fishing, and the cargo resulting from the fisheiy. This usage, eminently humane, goes back to very ancient times; and although the immunit}' of fishery along the coasts may not have been sanctioned by treaties, yet it is considered to-dajT as so definitely established, that the in- violability 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 belong- ing to the citizens of the enemy State, and devoted to fishing along the coasts, cannot be subject to capture. (7>) 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 Exemption c f
coast lishing ves-
sumect appears to us abundantlv to demonstrate that at**^ now an e<-
J - ,..,., tablished rule.
the present day. by the general consent or the civilized nations of the world, and independently of &ny express treaty or other public act, it is an established rule of inter- national law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual con- venience 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 cap- ture as prize of war.
The exemption, of course, does not applv to coast fish- RUR- voided by
,, i • i? i j f IM v.-arlike employ -
ermen or their vessels, it employed for a warlike purpose, im-m; does not
, ". i . ,, , . ,, apply to great
or in such a way as to give aid or information to toe fisheries, enemy; nor when military or naval operations create a necessity to which all private interests must give away.
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 arc suited 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 an}' treaty
102
or other public act of their own government in relation to the matter.
Calvo, in a passage already quoted, distinct!}' affirms that the exemption of coast fishing vessels from capture is perfectly justiciable, or. in other words, of judicial juris- diction or cognizance. Calvo, § 2368. Nor are judicial precedents wanting in support of the view that this exemp- tion, or a somewhat analogous one, should be recognized and declared by a prize court.
*******
Attitude of the The position taken by the United States during the
United States m ... i • i
Spanish war. recent war with Spain was quite in accord with the rule of international law, now generally recognized hy civilized nations, in regard to coast fishing vessels.
On April 21, 1898, the Secretar}T of the Navy gave in- structions 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 immedi- ately instituted accordingly. On April 22, the President issued a proclamation, declaring that the United States had instituted and would maintain that blockade, "in pur- suance of the laws of the United States, and the law of nations applicable to such cases." 30 Stat. 1769. And by the act of Congress of April 25, 1898, c. 189, it was declared that the war between the United States and Spain existed on that day, and had existed since and in- cluding April 21. 30 Stat. 364.
On April 26, 1898, the President issued another procla- mation, 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. 1770. But the proclamation clearly manifests the general policy of the Government to conduct the war in accordance with the principles of inter- national law sanctioned .by the recent practice of nations. Sampson's dis- On April 28, 1898, (after the capture of the two fishing
patch concern- , , j» \ » j £__i o j. i i
ing Cuban fisher- vessels now in question,) Admiral hampson telegraphed . to the Secretary of the Nav}T as follows: "I find that a
103
large number of fishing schooners are attempting to get into Havana from their fishing grounds near the Florida reefs and coasts. The}T are generally manned by excellent . seamen, belonging to the maritime inscription of Spain, who have already served in the Spanish navy, and who are lia- ble to further service. As these trained men are naval reserves, have a semi-military character, and would be most valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that the}r should be detained as prisoners of war, and that I should be authorized to de- liver them to the commanding officer of the army at Key West." To that communication the Secretary of the Navy, Answer of the on April 30, 1898, guardedly answered: "Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and an}' such vessel or crew considered likely to aid enemy may be detained.'1 Bureau of Navi- gation Report of 1898, appx. 178. The Admiral's dis- patch 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 Span- ish coast fishing vessels and their crews should not be in- terfered 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 com- mon 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 two hundred 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 evidence what- ever of likelihood that she or her crew would aid the enemy.
104
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 two hundred miles along the coast of Cuba, she went on, about a hundred 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 fish- ing on the coast of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in re- turn for their toil and enterprise, two thirds of her catch, the other third going to her owner b}T wajr 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 iish, 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 can not doubt that each was engaged in the coast fishery, and not in a commercial adventure, wnthin 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.
judgment. 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 vcx*>-/, together with the proceeds of any sale of her cargo* In* restored to the claimant, with damages and costs.
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE McKENNA, dis- senting.
105 CASE OP THE ADULA.
(Vol. 176, United States Reports, p. 361. Decided February ->f>. 1900.)
This was a libel in prize against the British steamship th|^™ent of Adula, then under charter to a Spanish subject, which was seized June 29, 1898, by the United States cruiser Mar- blehead, for attempting to run the blockade established at Guantanamo Bay in the island of Cuba, and was subse- quently sent into the port of Savannah for adjudication.
The Adula, a vessel of 372 tons, was built at Belfast in 1889, for her owner, the Atlas Steamship Compan}r, Lim- ited, a British corporation, and was registered In the name of its managing director, Sir William Bowers Forwood. Prior to the American-Spanish war she was engaged in general trade between Kingston and other ports on the coast of Jamaica, and from time to time had made voy- ages to Cuban ports. After the breaking out of the war the steamer was chartered by various persons in the inter- vals of its regular work, for voyages to Cuba.
In the meantime, however, under the command of Rear Admiral Sampson, a blockade was established at Santiago, where the Spanish fleet \&y under the command of Admiral Cervera. Upon June 8, a blockade of Guantanamo Ba}* was also established by order of Admiral Sampson, the blockading squadron being under the conimand of Com- mander McCalla. Both of these blockades were main- tained during the war. On April 22, a blockade of the north coast of Cuba between Cardenas and Bahia Honda and of Cienfuegos on the south coast was declared by the President. On June 27, the President by proclamation gave notice that the Cuban blockade had been extended to include all the ports on the southern coast between Cape Francis and Capo Cruz. This included the port of Man- zanillo. On the 28th, this proclamation was made known to the vessels off Guantanamo.*
On June ^7, the Adula, then at Kingston, was engaged in taking on a cargo for shipment. On the 28th she dis- charged this cargo, and the agent of the Atlas Company entered into a charter party with one Solis, a Spanish sub- ject formerly resident in Manzanillo, of the material parts of which the following is a copy:
The Adula was put at the disposal of the charterer ''for the conveyance of passengers from Cuban ports herein- after to bo named, to Kingston. The ports that the vessel is to <ro to aro Manxanillo, Santiago and Guantanamo: but
106 statement of it is distinctly understood and agreed by the parties afore-
the case.
said that it shall not be deemed a breach of this agreement should the steamer be prevented from entering- any of those ports from causes beyond the control of tne corn- pan}", but that should she be able to enter one or all of them, she shall embark the passengers that the charterer shall engage for her and proceed on her voyage. If- she is not permitted to enter either Man/an illo, Santiago or Guantanamo, the vessel is to return to Kingston, and the voyage shall be considered completed, and the charter money hereinafter referred to earned without any deduc- tions. . . . The charterer is to provide a good and effi- cient government pilot to conduct the ship safeh' into the ports which have been named. Should she be permitted to enter them the charterer guarantees that the proper and efficient clearances shall be obtained for each port, so that the ship shall not be subjected to any fines for breach of regulations. . . . The company will give the option to the charterer for another voyage similar to this on simi- lar terms, providing the charterer gives the company twenty-four hours' notice after the arrival of the steamer at Kingston.
Accompanying this charter were certain instructions, printed in the margin,1 from the agent of the compan}7 to
1 ATLAS STEAMSHIP COMPANY,
JAMAICA AGENCY, June 28, 1898. 'Captain Yeates, S. S. Adula.
DEAR SIR: I inclose herein a copy of the agreement under which your vessel is proceeding on, and on board the ship will be the char- terer, to whom I now introduce you, Mr. Jose R. Solis, and I ask you to show him every attention on the voyage.
You will see by a perusal of the agreement that you are on a voyage wholly and solely for the conveyance of refugees from the ports named to Kingston.
On your arrival at Guantanamo, to which port you will proceed •direct, you will find, no doubt. American warships off the port. You will, when signalled to, stop immediately and communicate to the •commanding officer the voyage that you are on, and, in fact, you can .show him these sailing orders, and I do not think that the command- ing officer will make any trouble whatever to your continuing the voyage into the port.
You must be careful 011 your arrival there not to interfere or in any way make any observation or sketches of anything that you may see or hear of, but adhere strictly to the duties of your ship.
At Guantanamo it is likely there may be some difficulty in obtain- ing a pilot, and if the commanding officer gives you permission to proceed it is just possible that he may be able to tell you where you can obtain the services of a- pilot to go in.
From Guantanamo you will proceed to off Santiago. Here you will
107 . Captain Yeatea. the commander of the Adula. These were snitt-im-nt «>f
tilt* <*MSC.
taken from the ship when she was captured. The Adula left Kingston late in the afternoon of June 28. Before .sailing, Solis asked from the United States consul at Kingston a permit to enter the ports of Guantanamo, San- tiago and Manzanillo. This the consul refused to give without special instructions from Washington. Just be- fore sailing to Santiago, Solis cabled for a licensed pilot to meet the Adula. On leaving Kingston she took her course around Morant Point at the easterly epd of the island, first toward Santiago, and then to Guantanamo, and about 4: r. M. of the following da}' was met before reaching the harbor and brought to by the steamship Vixen; was directed to proceed, entered the harbor of Guantanamo, and was seized by the Marblehead, which, with other vessels of the fleet, was lying inside the bay, and was sent to Savannah, where a libel in prize was filed against her on July 21, 1898. The depositions in prepa- j-aturto were taken July 21, and her owner, the Atlas Steamship Company, appeared as claimant and filed its answer. The case was heard upon the proofs in prepara- }<>!'!<>, and a decree of condemnation entered July 28. (89 Fed. Rep. 351.) Before the decree, claimant moved for leave to take further proofs. The court set the motion down for August 9, giving claimant leave to serve such affidavits and other papers as it might desire to read upon
meet the other fleet, and carry the same instructions out with them as I have mentioned to you in reference to Guantanamo. The char- terer is telegraphing at once to Santiago for a pilot to come off to meet the ship, if permission is granted, to pilot your ship into the port.
From Santiago you will proceed to Manzanillo, and from thence back to Kingston. The charterer, Mr. Solis, may order you direct from Guantanamo to Kingston or from Santiago to Kingston, and in such a case you will follow out his orders, which he will give you in writing. He has the option of going to the three ports, but it may be convenient for him to go to only one or even two. The boat's crew that is mentioned in the appendix of this agreement you will provide, but it will be necessary for you to have the ensign in the stern, so as to show your nationality.
You will not allow any provisions of any sort to leave your ship at any of the ports or to do anything that is contrary to the laws of the country or that may be interpreted as a breach of faith in being allowed to pass the blockade and enter the ports, and I must ask you not to permit any of your crew to land at any of the ports, and only yourself, if necessary, to visit the British consul. Wishing you a pleasant voyage, I am, sir, Yours faithfully,
(S'g'd) W. PEPLOE F<>inv<»<>n, <len. Ag't, Jca.
108 statement of the motion, and directed the entry of the decree to be
the case. . . .
without prejudice to such motion. The motion was finally denied, and the vessel released upon a stipulation for her value.
From the decree of condemnation her owner and claim- ant appealed to this court.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
opinion. The rectitude of the decree by the District Court con-
demning .the Adula as prize of war depends upon the existence of a lawful and effective blockade at Guantanamo, the knowledge of such blockade by those in charge of the vessel, and their intent in making the voyage from Kingston.
1. No blockade of Guantanamo was ever proclaimed by the President. A proclamation had been issued June 27, establishing a blockade of all ports on the southern coast of Cuba between Cape Frances on the west and Cape Cruz on the east, but as both Guantanamo and Santiago are to the eastward of Cape Cruz, they were not included. It appears, however, that blockades of Santiago and Guan- tanamo were established in the early part of Juno by order of Admiral Sampson, commander of the naval forces then investing the ports on the southern coast of Cuba, and were maintained as actual and effective blockades until after the capture of the Adula.
Actual as dis- The legality 'of a simple or actual blockade as distin- pubiic blockade, guished from a public or Presidential blockade is noticed by writers upon international law, and is said by Halleck to be "constituted merely by the fact of an investment, and without any necessity of a public notification. As it arises solely from facts it ceases when they terminate; its existence must, therefore, in all cases, be established by clear and decisive evidence." (Halleck Int. L., chap. 23, sec. 10.) A de facto blockade was also recognized as legal by this court in the case of The Circassian, 2 Wall. 135, 150, in which the question arose as to the blockade of New Orleans during the civil war. In delivering the opinion of the court, the Chief Justice observed: "There is a dis- tinction between simple and public blockades which sup- Naval officers ports this conclusion. A simple blockade may be estab-
raay establish,. ,-.,.. i re j.« i • j" -•
actual block- hshed by a naval officer, acting upon his own discretion or under direction of superiors, without governmental noti- fication; while a public blockade is not only established in fact, but is notified, by the government directing it, to
109
other governments. In the ease of a simple blockade, the captors are bound to prove its existence at the time of capture; while in the case of a public blockade, the claim- ants are held to proof of discontinuance in order to pro- tect themselves from the penalties of attempted violation." A like ruling was made by Sir William Scott in the case sir wniiam
,• >m 7-1 77 n n. r> i r,/i i • i J.L j; Scott on right of
ot 1/ie Jiolta, 6 C. Kob. 364, which was the case ot annavai officers to American ship and cargo, proceeded against for the breach iZckades*0 of a blockade at Montevideo, imposed by the British com- mander. It was argued, apparently upon the authority of The Henrick and Maria, 1 C. Rob. 123, that the power of imposing a blockade is altogether an act of sovereignty which cannot be assumed or exercised by a commander without special authority. But says the learned judge: "The court then expressed its opinion that this was a position not, maintainable to that extent; because a com- mander going out to a distant station may reasonably be supposed to cany with him such a portion of sovereign authority, delegated to him, as may be necessary to pro- vide for the exigencies of the service upon which he is employed. On stations in Europe, where government is almost at hand to superintend and direct the course of operations, under which it may be expedient that particu- lar hostilities should be carried on, it may be different. But in distant ports of the world it can not be disputed, I conceive, that a commander must be held to carry with him sufficient authority to act, as well against the com- merce of the enemy, as against the enemy himself, for the immediate purpose of reduction. See also The Johanna Maria, Deane on Blockades, 86.
In view of the operations then being carried on for the Blockade of
r Guantanamo
purpose of destroying or capturing the Spanish fleet and competently es- reducing Santiago, we think it was competent for Admiral Sampson to establish a blockade there and at Guantanamo as an adjunct to such operations. Jndeed, it would seem to have been a necessity that restrictions should be placed upon the powrer of neutrals to carry supplies and intelli- gence to the enemy, as they wpuld be quite sure to do, if their ships were given free ingress and egress from these harbors. While there could be no objections to vessels carrying provisions to the starving insurgents, if their destination could be made certain, the probabilities were that such provisions carried to a beleaguered port, would be immediately sei/ed by the enemy and used for the sus- tenance of its soldiers. The exigency was one which ren-
110
dered it entirely prudent for the commander of the fleet to act, without awaiting instructions from Washington. contention But it is contended that at the time of the capture, the
that blockade
was ended by port of Guantanamo was completely in the possession and
i >'isscssion
control of the United States, and therefore that the block- ade had been terminated. It appears, however, that Guan- tanamo is eighteen miles from the mouth of Guantanamo Bay. Access to it is obtained either by a small river emptying into the upper bay, or by rail from Caimanera, a town on the west side of the upper bay. It seems that the Marblehead and the Yankee were sent to Guantanamo on June 7; entered the harbor and took possession of the lower bay for the use of American vessels; that the Pan- ther and Yosemite were sent there on the 10th, and on the 12th the torpedo boat Porter arrived from Guantanamo with news of a land battle, and from that time the harbor was occupied by naval vessels, and by a party of marines who held the crest of a hill on the west side of the harbor near its entrance, and the side of the hill facing the har- bor. But the town of Guantanamo, near the head of the bay, was still held by the Spanish forces, as were several other positions in the neighborhood. The campaign ia the vicinit}^ was in active progress, and encounters between the United States and Spanish troops were of frequent occurrence.
Town beyond In view of these facts we are of opinion that, as the city was held by enc- of Guantanamo was still held by the Spaniards, and as our
my and blockade ... ,, ,-.,11 .,11111
was operative, troops occupied only the mouth ot the bay, the blockade was still operative as against vessels bound for the city of Guantanamo. Here again the case of TJie Circassian, 2 The Circassian. Wall., 135, is decisive. The Circassian was captured May 4, 1862, for an attempted violation of the blockade of New Orleans. The city, including the ports below it on the Mississippi, was captured during the last days of April, and military possession of the city taken on May first. It was held that neither the capture of the forts nor the military occupation of the city terminated the blockade, upon the ground that it applied, not to the city alone, but controlled the port, which included the whole parish of New Orleans, and lay on both sides of the Mississippi, and all the ports on that river and on the lakes east of the city. The following language of the Chief Justice is equally pertinent to this case: "Now, it may be well enough conceded that a continuous and complete pos- session of the city and the port, and of the approaches
Ill
from the Gulf, would make a blockade unnecessary, and would supersede it. But, at the time of the capture of the Circassian, there had been no such possession. Only the city was occupied, not the port, much less the district of country commercially dependent upon it, and block- aded by its blockade. Even the city had been occupied only three days. It was }ret hostile; the rebel arnvy was in the neighborhood; the occupation, limited and recent, was subject to all the vicissitudes of war. Such an occu- pation could not at once, of itself, supersede or suspend the blockade. It might ripen into a possession which would have that effect, and it did; but at the time of the capture it operated only in aid and completion of the naval invest- ment." The occupation of a city terminates a Blockade jj^1 because, and only because, it supersedes it, and if a vessel b:'"'kade- be bound to a port or place be}rond, which is still occu- pied by the enemy, the occupation of the mouth of the harbor does not necessarily terminate the blockade as to such places.
Granting the existence of a lawful and sufficient blockade Legal effect of
suthcieut bloc-k-
at Guantanamo, its legal effect was a closing of the port. »<ie. and an Interdiction of the entrance of all vessels of what- ever nationality or business. It is well described by Sir William Scott in The Vroitw Judith, \ C. Rob. 126, 128, "as a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is intended to suspend the entire commerce of that place, and a neu- tral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed to a neutral vessel is, that having already taken on board a cargo before the blockade begins, she may be at liberty to retire with it. But it must be considered as a rule which this court means to apply, that a neutral ship de- parting can only take awajr a cargo Jxmajide purchased and delivered, before the commencement of the blockade. If she afterwards takes on board a cargo it is a fraudulent act and a violation of the blockade." It is also, said by Phillimore, 3 Int. Law, 383, that "the object of :i blockade is to prevent exports as well as imports, and to cut off all communication of commerce with the blockaded place." intent is an The sailing of a vessel with a premeditated intent to vio- iton. late a blockade is ip*<> facto a violation of the blockade, and renders the vessel subject to capture from the mo- ment she leaves the port of departure. Yeatou v. Fry
Cranch, 335; The Circassian, 2 Wall. 135; The Frederick Molke, 1 C. Rob. 72; The Columbia, 1 C. Rob. 130; The Neptunus, 2 C. Rob. 110; Wheaton on Captures, 196. If a master have actual notice of a blockade, he is not at liberty Blockaded even to approach the blockaded port for the purpose of
ports may not be . . ,, , , , , , , . .
knowingly ap-making' inquiries or the blockading- vessels, since such
preached. ,
liberty could not tail to lead to attempts to violate the blockade under pretext of approaching- the port for the purpose of making such inquiries. The Admiral, 3 Wall. 603; The Prize Cases, 2 Black, 635, 677; Duer on ins. 661; The Cheshire, 3 Wall. 231; The James Cook, Edwards, 261; The Josephine, 3 Wall. 83; The Spes, 5 C. Rob. 76; The Betsy, 1 C. Rob. 280; The Neptnnus, 2 C. Rob. 110; The Little William, 1 Acton, 141, 161; Sperry v. Delaware Ins. Co., 2 Wash., C. C. 243. If there be any distinction in this particular between a proclaimed blockade and an actual blockade by a naval commander, it does not aid the Adula in view of the admitted fact that she was informed by the Vixen that the port was under control of the United States military forces, and that the war ships were visible before she entered the bay.
Bearing of tin; In this connection we are cited by counsel for the Adula Pans. to a change in the law said to have been effected by the
adhesion of this Government, at the beginning- of the war, to the declaration of Paris abolishing privateering. This supposed change apparently rests upon an extract from a French treatise upon international law by Pistoye and Duverdy, vol. 1, p. 375^ in which it is said that by the modern law, in consequence of the declaration of Paris, a vessel must be notified to depart from the blockaded port before she can be captured, and that the contrary rule was the result of the doctrine of the British Orders in Council during the Napoleonic wars, which is now given up by that country. It is also said that "the old rule was that it was a breach of blockade to enter upon a voyage to the blockaded port. This rule is now changed, because neu- trals are obliged only to respect effective blockades. It may well be that a blockade of which official notice has been given is not an effective blockade, or it ma}r be that a blockade which has been established by a sufficient force may have ceased to exist. Neutrals then have the right to begin a voyage to a blockaded port in order to see if the blockade still continues. The}1 are only guilty when, while the blockade continues, they actually endeavor to break it,"
113 - We cannot, however, accept this opinion as overruling Foreign opin-
, . . f , ton" of supposed
in anv particular the prior decisions ot this court in the law cannot over- i « i i f til rn'e Supreme
cases above cited, to the etteet that a departure tor a block- courfBdeokiom. aded port with intent to violate the blockade renders the vessel liable to seizure. When Congress has spoken upon this subject it will be time enough for this court to act. We can not change our rulings to conform to the opinions of foreign writers as to what they suppose to be the exist- ing law upon the subject.
We have not overlooked in this connection the provi- sion contained in Art. 18 of Jay's treat}- of 1794, to the effect that " whereas, it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded or invested, it is agreed, that every vessel so circumstanced, may be turned away from such port or place, but she shall not be detained nor her cargo, if not contraband, confis- cated, unless after notice she shall again attempt to enter." Fitzfrimmone v. Newport Ins. Co., 4 Cranch, 185. Waiv- ing the question whether this clause of Jay's treaty was abrogated by the war of 1812, and accepting it as a correct exposition of the law of nations, it applies only to vessels which have sailed for a hostile port or place without know- ing that the same is either besieged, blockaded or invested. The whole case against the Adula depends upon the ques- Basis of case tion whether those in charge of her knew before she leftfjfalE Kingston that Santiago and Guantanamo were blockaded. If they did, the treaty does not apply. If they did not, they are entitled to the benefit of this principle of inter- national law. In the case of the Maryland Ins. Co. \. Woods, 6 Cranch, 29, in which it was held that the vessel could not be placed in the situation of one having notice of the blockade until she was warned off, the decision was placed upon the express ground that orders had been given by the British government, and communicated to our gov- ernment, " not to consider blockades as existing, unless in respect to particular ports which may be actually invested, and then not to capture vessels bound to such ports, unless they shall have been previously warned not to enter them.r This order was treated by the court as a mitigation of the general rule so far as respected blockades in the West Indies.
'2. The questions concerning the notification of, and the ownership of intent to violate, blockade depend largely upon the same testimony, and may be properly disposed of together. l.>or,ti— 04- 8
114
There is no doubt that the Adula belonged to a British corporation, the Atlas Steamship Company; was regis- tered in the name of the managing director of such corpo- ration; flew the British flag, and prior to the Spanish- American war was engaged in general trade between Kingston and other ports on the coast of Jamaica, in con- nection with other steamers of the same line from New York, and from time to time had made voyages to Cuban Previous ciwr- ports. After the breaking out of the war the steamer was chartered by various persons, in the intervals of its regu- lar work for voyages to Cuba. On May 7, in pursuance of a verbal arrangement between the agent of the steam- ship company and the American consul, the Adula was sent to Cienfuegos in Cuba to bring away refugees. On arrival off Cienfuegos she was boarded by officers of the U. S. S. Marblehead, who, upon being shown the permit and the ship's papers, allowed her to proceed, though the officers served the master with a printed copy of the Pres- ident's proclamation blockading Cienfuegos and several ports on the north side of Cuba, and made a memorandum on the ship's log that they had done so. She sailed from Cienfuegos May 10, with 350 passengers, mostly women and children; was again boarded on leaving the port, but was allowed to proceed.
On May 16, she was chartered by a Cuban refugee to proceed to Santiago; arrived there the following day, and returned with 200 passengers. No war ships were off Santiago at that time. She arrived at Kingston on the 19th, and landed her passengers.
On May 21, she was again chartered to go to Cienf uo- gos, having a permit from Washington, 'through the con- sul, to pass the blockade. She reached the blockading fleet on the 23d, was boarded by a boat from one of the vessels, and was again given permission to proceed; was arrested upon suspicion by the Spanish authorities in the port of Cienfuegos, but after a detention of sixty hours was released. She sailed again on May 26 directly for Kingston; saw no war ships in sight, and arrived at Kingston on May 28.
After making two of -her ordinary coasting voyages around Jamaica, she was offered a further charter for Cienfuegos, but could not obtain the permission of the American consul, who told the master he had no authority to grant it. She left June 15, with a letter of instruc- tions to the captain to proceed to the fleet off Cienfuegos,
115
then under a public blockade, to ask permission from them to enter the port, and if granted, to go in, and if not granted, to return to Jamaica. She arrived at Cienf uegos Juno IT; landed some provisions which had been shipped for her passengers, found no war ships there, and sailed away on the 19th with only ninety-eight passengers. Sixty miles S. S. E. from Cienf uegos she was stopped by the U. S. S. Yankee, and an officer sent on board. The master showed the boarding officer his instructions and the ship's papers, as well as the passenger list; was in- formed that Cienf uegos was blockaded, and that he must not enter it again. She arrived in Kingston on June 21; proceeded around the island on her usual coasting trip, and returned to Kingston on the 27th.
She was chartered for her last vovage June 28, bv one Last charter,
C- i- LJ • u i • .L i_ TT j i- • -.LI lllld political
Sons, a Spanish subject, born near Havana, and living with Character of the his family at Manzanillo. He had landed recently from Manzanillo with a cargo of refugees. He had lived in Cuba, and at one time had been the French consul at Manzanillo, though there was no evidence that he had ever cooperated with the Spanish authorities during the war, or rendered aid or comfort to the Spanish forces. He had, however, a passport from the Spanish consul to enter the cities to which he was bound and take passengers away as refugees. He had previously been engaged in shipping supplies to Cuban ports and returning with passengers for Jamaica. He also carried a special personal Spanish passport granted the year before. Such being his political char- acter, he entered into a charter party with the Atlas Steamship Company, under which he was at liberty to go to Manzanillo, Santiago and Guantanamo, and if not per- mitted to enter these harbors, to return to Kingston. An option was also given to the charterer for another similar voyage upon like terms upon twenty-four hours' notice after arrival at Kingston. The charter was for the con- veyance of passengers from Cuban ports to Kingston at one hundred pounds per day. Solis was entered upon the ship's articles as supercargo. She was evident^ chartered for his personal benefit, with power to name the port which she was to visit, but with no right to interfere with the navigation of the ship. Solis had made the same sort of trip twice before with English schooners, and expected upon this trip to make $19,000 profit. He appeared to have known nothing about the previous voyages of the Adula, and had seen her for the first time only about two
116
months before. The vessel bore a passport from the Spanish consul at Kingston; a bill of health vised by the Spanish consul. With regard to his knowledge of the blockade at Guantanamo he testified as follows:
"^ knew that there was a condition of war existing blockade. between America and Spain on the 21st. They told me on board the Adula that the blockade of Guantanamo was published on the 27th, the day before. I had not heard it before I left Kingston. I did not know officially Guan- tanamo was blockaded. On board the Adula I heard that on the 27th there was issued an order from the President of the United States declaring a blockade of the port of Guantanamo, but I did not know it until we arrived at Guantanamo. At Kingston 1 heard there were some war ships at Guantanamo, and I told Captain Forwood that the first thing 1 would do would be to go to the admiral and tell him my intentions. I did not think the papers in Kingston published the blockade. I did not see it if they did. The people generally did not talk about it. 1 read something about ' McCalla's camp. ' I understood Guan- tanamo was not blockaded by the United States. I heard that marines had been landed at the entrance to Guan- tanamo, Caimenera — the bay is called Caimenera — and that the marines had possession of the port, and that the ships were inside. 1 cannot tell when I received the information that marines had been landed there and taken possession of the point of Guantanamo or Caimenera. Perhaps it was one or two days before. I don't know what the others knew about a state of war existing. I understood Guantanamo was not declared officially block- aded, although there were some vessels there. I got that information from newspapers in Kingston, and from those newspapers I got the information that marines had been landed at the entrance to the bay on the east side; they call it 'East Point.'" Aduia's agent Jt further appeared that the American consul warned
warned of the r* i_ • •• TT--
blockade by the Mr. Forwood, the agent of the ship at Kingston, or the
American con- ' , , -, • . n
sui- existence of the blockade in the following language, as
stated by the agent himself: "'Well, Forwood, I would not advise you to let the ship go; the}7 won't let her into Guantanamo, and they will be watching for her.' I said to him, ' Oh, Dent, let me show you the captain's instruc- tions. He has got orders to go to the fleet there and ask their permission to take some refugees.' ; Well,' he said, 4 1 don't know, but they will be watching for her, and I
117
think that Senor Soils is a Spanish agent, carrying $300,000 in gold to buy over the rebels in the American camp.' 1 told him that I had inquired about the man, and that it was one of the usual Kingston yarns." It also appears that Mr. Forwood knew that Mr. Solis was a Spaniard, and had been shipping supplies to Cuban ports. After taking on board a large supply of coal, the Adula left Kingston on June 28; rounded Morant Point on the east end of the island of Jamaica; proceeded at her usual speed toward Santiago, and sighted the blockading fleet off that port about noon of the 29th. The captain gives as his reason for going by the way of Santiago that he was not acquainted with the coast line to the eastward of that port; had no large scale chart, and therefore steered more to the westward than he should have done, because he knew the coast about Santiago, and did not know that about Guantanamo; but it is quite as probable that it was the presence of a number of war vessels off Santiago which sent her to Guantanamo. She was hailed by the Vixen within half a mile of the entrance to the harbor of Guan- tanamo, brought to, and then directed into the harbor, where several war vessels were tying, and was shortly thereafter seized by order of Commander McCalla of the Marblehead.
In his testimonv before the prize commissioners, Cap- certain testi-
, nil niony of the cap-
tain Yeates, master of the Adula, stated that he was stop- tain and of one
()f tilt1 C1*(?\V
ped by the Vixen about half a mile from the entrance to the bay and permitted to proceed, and that it was not until after he had anchored that he was acquainted with the blockade of the harbor. One of the crew testified somewhat to the contrary and swore that "about three days before I left Kingston I heard that Guantanamo was blockaded; I heard it from people around the streets; 1 did not see it; I heard it was in the papers; I never heard any of the officers of the Adula or people on board talking about Guantanamo being blockaded, and I don't know exactly whether the owner or master or officers of the ship Adula knew that Guantanamo was blockaded. I knew about it, but I don't know anything about them. I don't know how 1 found it out, but I heard it on the streets of Kingston." He also swore "that at that time he went up to the mouth of the harbor, and at that time, when we got to Guantanamo, we found the war ships there blockading the harbor." A small cruiser, the Vixen, "ran up across our bow and the captain of the cruiser asked us: "Didn't you sight the war
118
ships down at Santiago? ' and the captain said, * Yes.' And the captain stopped, and he said: 'Didn't you hear that . Guantanamo was blockaded?' and our captain said ' Yes.' Then he said, 'You can proceed on.' 1 heard about the blockade in Kingston, but after leaving Kingston, until we met the cruiser, I never heard anything more about it/' Captain Yeates also testified that he expected to be stop- ped when he approached Santiago. Mr. Solis, who had chartered the Adula for this voyage, testified that he was told, while on board the Adula, that the blockade of Guan- tanamo was published on the 27th, the day before, but that he had not heard of it before he left Kingston, though he had heard, while in Kingston, that there were some war ships at Guantanamo. At the time the Adula was captured she was searched for her ship's papers and other documents and letters. Several letters were found, as well as copies of a newspaper published at Kingston, which spoke of the American military and naval opera- tions both at Santiago and Guantanamo. Extracts from Among these extracts from The Gleaner of June 1-i,
a Kingston news- • 7i - 11 • i i ,.
paper. 1898, is the following, apparent^ telegraphed from Lon-
don: "A dispatch boat off Santiago reports that the Amer- icans now hold thirty-five miles of the coast east of San- tiago, including Guantanamo harbor, and that 20,000 Span- ish troops at Santiago are preparing to desperately resist the Americans, who have landed 3,000 rifles, 300,000 rounds of ammunition, and large stores of provisions;" and the following from the issue of June 25: ''On board the Adula, which arrived from Cienfuegos this week, there was an individual officially appointed by the Captain Gen- eral in Cuba to make arrangements in Jamaica for regu- larly suppl}Ting the Spanish troops with provisions; in fact, to make Jamaica a base for Spanish purposes."
In this connection it would seem from the report of the Bureau of Navigation that the consul at Kingston tele- graphed to Washington that the Under Secretary of the Captain General of Cuba and certain Spanish naval officers " came aboard the Adula with, it is supposed, $250,000 to purchase provisions to be taken to Manzanillo for Cervera. . . . Extensive preparations being made for shipping provisions to Cuba." Letter of Cap In a letter from Captain Yeates to his parents, under
paR.mesaes llsdate of July 13, and apparently written when the Adula was at Savannah, he says: " And now to tell you dear ones how it is or was that we got into this pickle, which
119
has not come as any surprise, as I have anticipated this for some time; it is I did riot think 1 should be in com- mand when it happened, but it was my luck to be, I sup- pose." Speaking of the capture, he says: "The}' turned • the ship upside down; took my papers; measured the coals, and took stock generally. As far as the ship is con- cerned she was on perfectly legitimate business, fetching refugees. Whether Mr. Solis chartered the ship for that purpose alone, of course, has to be proved, and we are now on our way to Savannah for that purpose with a prize crow and Lieutenant Anderson in charge." In a postscript dated at Savannah, July 15, he says: " We have not yet reached the town proper, for we are going through the same performance as we did at Tampa, but I was not caught this time, for I managed to keep my things out of the oven."
As tending to show the good faith of this expedition, Evidence of
j Li- i i AI_ * XL A j i LI- good faith of this
and more particularly the owners of the Adula, much reh- expedition. ance is placed upon the letter of Mr. Forwood to Captain Yeates of June 28, the day upon which the Adula left Kingston, in which he instructs him, in case he finds American warships off Guaritanamo, to stop immediately upon being signalled, and communicate to the command- ing officer the object of the voyage, and to be careful upon his arrival "not to interfere, or in any way make any observations or sketches of anything you may see or hear of, but adhere strictly to the duties of }rour ship," and to observe the same precautions off Santiago. In this letter he also instructs him not to allow any provisions to leave the ship, or to do anything which could be interpreted as a breach of faith in being allowed to pass the blockade and enter the ports. While this letter doubtless tends to showr good faith on the part of Mr. Forwood, still it was writ- ten with full information from Mr. Solis that the consul had refused to give him a passport, without permission from the American authorities in Washington. That Mr. Forwood recognized the necessity of an authority from Washington in order to pass the blockade is shown by his letter to Captain Walker of May 21, 1898, in reference to one of the voyages to Cienfuegos, in which he says: " In giving this letter to the blockade, be sure and ask the officer if he would allow the ship to pass another voyage without cabling to Washington."
From all the testimony in the case it appears very clear: That (niantanamo was actually and effectively blockaded
by orders of Admiral Sampson from June 7 until after the capture of the Adula;
That the Adula was chartered to a Spanish subject for
a voyage to Guantanamo, Santiago or Manzanillo, for the
purpose of bringing away refugees, and that such voyage
was primarily, at least, a commercial one for the personal
status of neu- profit of the charterer. During such charter she was to a
tral vessels char- * . °
tered to an ene- certain extent, f>ro hac vice* a Spanish vessel, and a notice
my: notice of . ' A . '
blockade toto Solis of the existence of the blockade was a notice to tice to vessel, the vessel. The Ranger, 6 C. Rob. 126; The Ybnge Emilia, 3 C. Rob. 52; The Napoleon, Blatch. Prize Cases, 296. The fact of her sailing under a Spanish passport — in fact, an enemy's license — is not devoid of significance. Indeed, we have in several cases regarded this as sufficient ground for condemnation. The India, 8 Cranch, 181 ; The Aurora, 8 Cranch, 203; The Hiram, 1 Wheat. 440; The Ariadne, 2 Wheat. 143. This passport gave the Adula authority to enter the Cuban ports and take away refugees, and it is a circumstance worthy of notice that it could not be found when the vessel was captured. Solis acknowledged its existence, but made no effort to account for its loss;
Both Solis himself and the Adula had been previously engaged in similar enterprises to the coast of Cuba, and were chargeable with notice, not only of war between the United States and Spain, but with the fact of military and naval operations upon the southern coast of Cuba;
The fact of such war, that the object of it was the expulsion of the Spanish forces from Cuba, and that mili- tary and naval operations were being carried on by us with that object in view, must have been matters of com- mon knowledge in Kingston, as well as the fact that the commerce with the southern ports of Cuba was likely to be interrupted, and that all intercourse with such ports would become dangerous in consequence of such war; The Aduia \\as While the mission of the Adula was not an unfriendly
not a cartel ship. _ g •
one to this Government, she was not a cartel ship, privi- leged from capture as such, but one employed in a commer- cial enterprise for the personal profit of the charterer, and only secondarily, if at all, for the purpose of humanity. Her enterprise was an unlawful one, in case a blockade existed, and both Solis and the master of the Adula were cognizant of this fact. The direction of the commanding officer of the Vixen, which overhauled the Adula off Guantanamo, to enter the harbor, cannot be construed as a permission to violate the blockade, as such permission
121
would not be within the scope of his authority. T/>< Hope, 1 Dod. 226; The Amado, Newb. 400; The Joseph, 8 Cr. 451 ; The Benito Estenger, post, 568.
That upon arrival off Santiago the blockading fleet was plainly visible, and we think there is a preponderance of evidence to the effect that both Solis and the master of the Adula knew of the actual blockade, that it was generally known in Kingston before she sailed, and that the Adula was chargeable with a breach of it, notwithstanding the letter of instructions from Mr. Forwood to Captain Yeates. As the blockade had been in existence since June 7, it is scarcely possible that, in the three weeks that elapsed be- fore the Adula sailed, it should not have been known in Kingston, which is only a day's trip from the southern coast of Cuba, and with which it appears to have been in frequent communication. This probability is confirmed by the direct testimony of the sailor Morris, that it was mat- ter of common talk in Kingston. The testimony of Solis, that he did not know " official ly" that Guantanamo was blockaded, by which we are to understand that it had not been officially proclaimed, is perfectly consistent with a personal knowledge of the actual fact. His statement
seems to be little more than a convenient evasion. Upon Knowledge <>f
. 11., iii Solis was ™owl-
the principle already stated his knowledge was the knowl- «'<Jge of the ship.
edge of the ship.
We think the facts herein stated outweigh the general statement of the officers that they had not heard of the blockade.
3. There was no error in denying the motion of the claimant to take further proofs. It appears from the opinion of the court that "the hearing upon the proceed- ings for condemnation was upon the evidence afforded by the examination of the captured crewr taken upon standing interrogatories, the ship's papers, and other evidence of a documentary character found upon the ship by the captors. This was done in conformity to the established rule in prize causes."
The motion to take further proof was made upon the affidavit of Robert Gemmell, the New York agent of the company, the statement of W. P. Forwood, the Kingston agent, annexed thereto, as well as his own affidavit and exhibits, and upon the counter testimony of Anderson, Ellen berg and Gill taken de hens esse. Upon the hearing of this motion the court considered the allegations of For- wood, attached to Gemmell's affidavit, as if Forwood had
122
testified upon depositions regularly taken, giving due weight to the same in connection with other evidence in the case; and was of opinion that the evidence as it stood was not susceptible of any satisfactory explanation; and comparing the proof proposed to be brought forward with that already in the case, came to the conclusion that the legal effect of the facts before the court could not be varied by the explanation offered. The motion was denied. In considering this case we have also given effect to these affidavits, and have come to the conclusion that, if they are to be taken as true, and the further proofs, if taken, would support them, they would not change our opinion with respect to the affirmance of the decree.
order for fur- If an examination of the ship's papers and of the crew, waeyspma°de1with taken in preparatorio , upon which the cause is first heard tion.rei "in the District Court, make a case for condemnation, the order for further proof is, as stated in TJie Gray Jacket, 5 Wall. 342, 368, always made with extreme caution, and only where the interests of justice clearly require it. If the ship's papers and the testimony of the crew do not justify an acquittal, it is improbable that a defence would be established b}7 further proof; and as the interest of all parties require that prize causes be quickly disposed of, it is only where the testimony in preparatorio makes a case of grave doubt, that the court orders the taking of further proofs. The Pizarro, 2 Wheat. 227; The Amiable Isabella, 6 Wheat. 1, 77; Benedict's Adm'y, sec. 512 a\ Story on Prize Courts, 17.
sir wniiam It was said b}T Sir William Scott in The /Sarah, 3 C. Rob. ing of "further 330, that "it has seldom been done except in cases where there has appeared something in the original evidence, which lays a suggestion for prosecuting the inquiiy farther. In such case the court has allowed it; but when the matter is foreign, and not connected with the original evidence of the cause, it must be under very peculiar cir- cumstances indeed that the court will be induced to accede to such an application; because, if remote suggestions were allowed, the practice of the court would be led away from the simplicity of prize proceedings, and there would be no end to the accumulation of proof that would be intro- duced in order to support arbitrary suggestions."
These remarks are specially pertinent to the offer of further proof that, while Solis owed allegiance to the Queen of Spain, yet, that he left Cuba soon after the war broke out, took no part in the hostilities, but on the con-
123
trary had done all in his power while he remained in Cuba to assist citizens of the United States residing there; had sided with the natives of Cuba, and was desirous that a government should be established in the island under the auspices of the United States. As was observed in the very satisfactory opinion of the District Judge in this case, this evidence was altogether irrelevant to the case of the Adula, and was, to a certain extent, a contradiction of his testimony before the prize commissioners that he was a loyal subject of Spain, bore a Spanish passport, and carried a bill of health vised by the Spanish consul at Kingston. It would throw the whole practice in prize cases into confusion if the testimony, taken in prepara- torio, when the facts are fresh in the minds of the wit- nesses, were subject to be contradicted by the same wit- nesses after its weak points had been developed. It was said by Mr. Justice Story in The Pizarro 2 Wheat. 227: story on re
J » . animation.
" Nor should the captured crew have been permitted to be reexamined in court. They are bound to declare the whole truth upon the first examination; and if they fraudulently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give color to their former statements after counsel has been taken, and they know the pressure of the cause. Public policy and justice equall}1" point out the necessity of an inflexible adherence to this rule."
Upon the whole, we think the decree of the District Judgment. Court was correct, and it is therefore
Affirmed.
MR. JUSTICE SHIRAS, with whom concurred MR. JUS- TICE GRAY, MR. JUSTICE WHITE and MR. JUSTICE PECK- HAM, dissenting.
CASE OF THE PANAMA.
(Vol. 176, United States Reports, p. 535. Decided February 26, 1900.)
MR. JUSTICE GRAY delivered the opinion of the court.
This was a libel for the condemnation of the steamship statement of Panama as prize of war, and was heard in the District Court upon the libel, the claim of the master in behalf of the owner of the vessel, and the depositions in prepara- torio of her master, her supercargo, and her chief engi- neer, which showed the following state of facts:
124
The Panama was a steamship of 1432 tons register; was owned by the Compania Transatlantica, a corporation of Barcelona in Spain; sailed under the Spanish flag; had a commission as a royal mail ship from the Government of Spain; carried a crew of Tl men all told, who had been shipped at different times at Havana; and her usual course of voyage included the ports of New York and Havana^ and Progreso, Vera Cruz and other Mexican ports, with general cargoes, passengers and mails.
Her last voyage began in Havana, for a round trip by way of New York, and was to have ended in Vera Cruz. She sailed from New York at half past two o'clock in the afternoon of April 20, 1898, with a clearance from the custom-house at that port for Havana, Progreso, and Vera Cruz, having on board the United States mails, 29 passen- gers (all Spaniards except one Frenchman) and a general cargo, the produce or manufacture of the United States, shipped at New York, and to he delivered, at the risk of the shippers, to consignees at those ports. She pursued the usual course of ships bound southward along the coast until she passed Alligator Reef light on the coast of Florida, and then bore away for Havana, and sighted the Cuban coast x)n the morning of April 25; and on that day, when about twenty- five miles from Havana, was captured by the United States ship of war Mangrove, and was sent in charge of a prize crew into Key West. She had no mili- tary or naval officer on board, made no resistance to the capture, and delivered all her papers and mails to the prize master. Armament of There were mounted on board the Panama, at the time
the Panama car- € ,
rii-d in accord- of her capture, five guns: Two breech-loading Hontoria 9
ab.ce with a con- . ° i i .
tmct with the centimetre guns, one on each side of the ship, with 30
Spanish Govern- . .
ment. rounds of shot for each; one Maxim rapid-nnng gun, on
the bridge, with ammunition; and two signal guns, one on each side of the pilot house, with ammunition. She also had on board about twenty Remington rifles and ten Mauser rifles, with ammunition for each, and about thirty or forty cutlasses. The cannon had been put on board about three years before, and the small arms arid ammu- nition had been on board a year or more. She was so armed in accordance with a contract with the Spanish Government, which required all the mail steamships of the company to be armed, and article 26 of which was as follows: "Every ship shall take on board, for her own defence, the following armament: Two Hontoria 9 centi-
125
metre guns, with powder and ammunition for 30 shots for each piece; twenty Remington rifles, with 100 rounds apiece, and bayonet or sword-ba}7onet; and twenty cut- lasses."
The master of the Panama moved the court to allow further proof upon the matters set forth in two test affi- davits, filed by leave of the court, in which he testified more distinctly that the mounted guns and small arms which the Panama carried had not been shipped for the purpose of war, or in expectation of hostilities between the Spanish Government and the United States, but were taken on board pursuant to the requirements of that con- tract; and also testified that the Spanish Government had never taken possession of the Panama under the terms of the contract; and that until the capture he and his officers were ignorant of the existence of the war between Spain and the United States, and of any blockade of the port of Havana. And he asked leave to submit to the court the whole contract, as contained in a printed book, which was in the chart room of the Panama, and in the custody of the prize master, and which he has since sent up to this court as one of the exhibits in the cause.
By that contract, concluded between the Spanish Gov- contract co i- ernment and the Compania Transatlantica on November c' 18, 1886, and drawn up and printed in Spanish, the com- pany bound itself to establish and to maintain for twenty years various lines of mail steamships, one of which included Havana, New York and other ports of the United States and of Mexico; and the Spanish Government agreed to pay certain subsidies to this company, and not to subsidize other steamship lines between the same points. Among the provisions of the contract, besides article 26, above quoted, were the following:
By article 25 new ships of the West Indian line must Terms of the be of iron, or of the material which experience may prove00 to be the best; must have double-bottomed hulls, divided into water-tight compartments, with all the latest improve- ments known to the art of naval construction; and u their deck and sides shall have the necessary strength to support the artillery that they are to mount." All the ships of that line must have a capacity for 500 enlisted men on the orlop deck, and a convenient place for them on the main deck. The company, when beginning to build a new ship, shall submit to tho Minister of the Colonies her plans as prepared for commercial and postal service; ''the Minister shall
126
contrac-t ot the cause t° be studied the measures that should be taken looking to the rapid mounting in time of war of pieces of artillery on board of said vessel; and may compel the company to do such strengthening of the hull as he may deem necessary for the possible mounting of that artil- lery; said strengthening shall not be required fora greater number than six pieces whose weight and whose force of recoil do not exceed those of a piece of fourteen centimetres." The plans of ships already built shall be submitted to the Minister of Marine, in order that he ma}' cause to be studied the measures necessary to adapt them to war serv- ice; and any changes that he may deem necessary or pos- sible for that end shall be made by the company. But in both old and new ships the changes proposed by the Min- istry must be such as not to prejudice the commercial purposes of the vessels.
By article 35, the vessels, with their engines, arma- ments and other appurtenances, must be constantly main- tained in good condition for service.
By article 41, the officers and crews of the vessels, and, as far as possible, the engineers, shall be Spaniards.
By article 49, the company may employ its vessels in the transportation of all classes of passengers and mer- chandise, and engage in all commercial operations that will not prejudice the service that it must render to the state.
By article 60, when by order of the Government muni- tions of war shall be taken on board, the company may require that it shall be done in the manner and with the precautions necessary to avoid explosions and disasters.
By article 64, in case of the suspension of the mail service by a naval war, or by hostilities in any of the seas or ports visited by the company's ship, the Government may take possession of them with their equipment and supplies, having a valuation of the whole made by a com- mission composed of two persons selected by the Govern- ment, two by the company, and a fifth person chosen by those four; at the termination of the war, the vessels with their equipment are to be returned to the company, and the Government is to pay to the company an indem- nity for any diminution in their value, according to the opinion of the commission, and is also, for the time it has the vessels in its service, to pay five per cent on the val- uation aforesaid. By article 66, at the end of the war, the Government may relieve the company of the performance
127
of the contract if the casualties of the war have disabled C0nt™| of the it from continuing the service. And by article 67, in extraordinary political circumstances, and though there be no naval war, the Government may charter one or more of the company's vessels, and in that event shall pay an indemnity estimated by the aforesaid commission.
The District Court denied the motion of the master to take further proof; restored parts of the cargo to claim- ants thereof; gave claimants of other parts of the cargo leave to introduce further proof; and entered a final decree of condemnation and sale of the Panama and the rest of her cargo, upon the ground that she was enemy's property, and was upon the high seas at the time of the President's proclamation exempting certain vessels from arrest. 87 Fed. Rep. 927. The court also, on the appli- cation of the commodore commanding at Key West, and on the recommendation of the prize commissioners, ordered all the mounted guns and the ammunition there- for to be appraised by two officers of the Navy, and deliv- ered to the commodore for the use of the Navy Depart- ment. The master of the Panama appealed to this court from the decree condemning the vessel.
The recent war with Spain, as declared by the act of certain arti- Congress of April 25, 1898, c. 189, and recognized in the de1u'°prociama- President's proclamation of April 26, 1898, existed on andlsg". ° after April 21, 1898. 30 Stat. 364, 1770. This proclama- tion declared, among the rules on which the war would be conducted, the following:
"4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term; Pro- vided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage) or any other article prohibited or contraband of war, or any dispatch of or to the Spanish government."
"6. The right of search is to be exercised with strict regard for the rights of neutrals, and the voyages of mail steamers are not to be interfered with except on the
128
clearest grounds of suspicion of a violation of law in respect of contraband or blockade.''
Decision in the It has been decided b}T this court, in the recent case of vessels sailing 27ie Bucna Ventura.*1 175 IT. S. 384, that a Spanish mer-
before w H, r
began. chant vessel, which had sailed before April 21, 1898, from
a port of the United States on a voyage to a foreign port, not having on board any officer in the militaiy or naval service of Spain, nor any article contraband of war, nor any dispatch of or to the Spanish Government, was pro- tected by the fourth clause of the President's proclamation of April 26, 1898, from condemnation while on that voy- age; but that her capture, before that proclamation was issued, was with probable cause; and that she should therefore be ordered to be restored to her owner, but without damages or costs.
That case would be decisive of this one, but for the mails and the arms carried by the Panama, and the con- tract with the Spanish Government under which the arms were put on board.
It was argued in behalf of the claimant that, inde- pendently of her being a merchant vessel, she was exempt from capture by reason of her being a mail steamship and actually carrying mail of the United States.
NO interna- There are instances in modern times, in which two na- tional rule ex-
empts mail ships tionS, by convention between themselves, have made spe-
irom capture. J ....
cial agreements concerning mail ships. But international agreements for the immunity of -the mail ships of the con- tracting parties in case of war between them have never. we believe, gone further than to provide, as in the postal convention between the United States and Great Britain in 1848, in that between Great Britain and France in 1833, and in other similar conventions, that the mail packets of the two nations shall continue their navigation, without impediment or molestation, until a notification from one of the governments to the other that the service is to be discontinued; in which case the}T shall be permitted to return freely, and under special protection, to their re- spective ports. And the writers on international law con- cur in affirming that no provision for the immunity of mail ships from capture has as j7et been adopted by such a general consent of civilized nations as to constitute a rule of international law. 9 Stat. 969; Wheaton, (8th ed.) pp. 659-661, Dana's note; Calvo, (5th ed.) §§ 23T8, 2809; De Boeck, §§ 207, 208. De Boeck, in § 208, after observ-
«See page 70, preceding.
129
ing that, in the case of mail packets between belligerent countries, it .seems difficult to go further than in the con- vention of 1833, above mentioned, proceeds to discuss the case of mail packets between a belligerent and a neutral country, as follows: "It goes without saying that each belligerent may stop the departure of its own mail pack- ets. But can either intercept enemy mail packets ? There can be no question of intercepting neutral packets, because communications between neutrals and belligerents are law- ful, in principle, saving the restrictions relating to block- ade, to contraband of war, and the like; the right of search furnishes belligerents with a sufficient means of control. But there is no doubt that it is possible, according to existing practice, to intercept, and seize the enemy's mail packet?."
The provision of the sixth clause of the President's proclamation of April 26, 1898, relating to interference with the voyages of mail steamships, appears by the con- text to apply to neutral vessels onhr, and not to restrict in any degree (he authority of the United States, or of their naval officers, to search and seize vessels carrying the mails between the United States and the enenry's countiy. Nor can the autliorit}7 to do so, in time of war, be affected by the facts that before the war a collector of customs had granted a clearance, and a postmaster had put mails on board, for a port which was not then, but has since become, enemy's country. Moreover, at the time of the capture of the Panama, this proclamation had not been issued. Without an express order of the Government, a merchant gov^rifm era vessel is not privileged from search or seizure by the factonfy by6 express that it has a government mail on board. The Peterhoff, ernment. o Wall. 28, 61.
The mere fact, therefore, that the Panama was a mail steamship, or that she carried mail of the United States on this voyage, does not afford any ground for exempting her from capture.
The remaining question in the case is whether the Pan- status of ,tbe
Panama under
ama came within the class of vessels described in the fourth clause- fourth clause of the President's proclamation of April 26, 1898, as "Spanish merchant vessels," and as not "Span- ish vessels having on board any officer in the militar}^ or naval service of the enemy, or any coal (except such as may be necessary for their voyage) or any other article prohibited or contraband of war, or any dispatch of or to the Spanish government." 2056—04 9
130
dist?rrcuonabe- ^n tne Part °^ tne claimant, it was argued that the arms and w^ich the Panama carried, under the requirements of her contract and for the protection of the mails, are not to be regarded as contraband or munitions of war, within the sense of this clause; that ;i contraband," as therein referred to, means contraband cargo, not contraband por- tion of the ship's permanent equipment; and that, if the furnishings of a ship could be regarded as contraband, every ship would have contraband on board.
On the other hand, it was contended, in support of the condemnation, that the arms which the Panama carried, belonging to her owner, were contraband of war, arid ren- dered her liable to capture; and that by reason of her being so armed, and of the provisions of her mail contract with the Spanish government, requiring her armament, and recognizing the right of that government, in case of a suspension of the mail service by war, to take possession of her for warlike purposes, she can not be considered as a merchant vessel, within the meaning of the proclama- tion, but must be treated like any regular vessel of the Spanish navy under similar circumstances.
The ptgou or The claimant much relied on a case decided in 1800 by the French Council of Prizes, in accordance with the opinion and report of Portalis, himself a high authority. Wheaton, (8th ed.) p. 460; De Boeck, § 81. In the case referred to, an American vessel, carrying ten cannon of various sizes, together with muskets and munitions of war, had been captured by French frigates; and had been con- demned by two inferior French tribunals, upon the ground that she was armed for war, and had no commission or authorit}7 from her own government. The claimants con- tended that their ship, being bound for India, was armed for her own defence, and that the munitions of war, the muskets and the cannon that composed her armament did not exceed what was usual in like cases for long vo\rages. Upon this point, Portalis, acting as commissioner of the French government, reported his conclusion on the ques- tion of armament as follows: "For my part, I do not think it is enough to have or to carry arms, to incur the reproach of being armed for war. Armament for v ar is of a purely offensive nature. It is established when there is no other object in the armament than that of attack, or, at least, when everything shows that such is the principal object of the enterprise; then a vessel is deemed enemy or pirate, if she has no commission or papers sufficient to
131
remove all suspicion. But defence is a natural right, and means of defence are lawful in voyages at sea, as in all other dangerous occupations of life. A ship which had but a small crew, and a considerable cargo, was evidently intended for commerce, and not for war. The arms found on this ship were evidently intended, hot for committing acts of rapine or hostility, but for preventing them; not for attack, but for self-defence. The pretext of being armed for war therefore appears to me to be unfounded." The Council of Prizes, upon consideration of the report of Portalis, adjudged that the capture of the vessel and her cargo was null and void, and ordered them to be restored, with damages. The Pegou or Pigou, 2 Pistoye et Duverdy, Prises Maritimes, 51; S. C. 2 Cranch, 96-98, and note.
But in that case the only question at issue was whether a neutral merchant vessel, carrying arms solely for her enemy, vessel. own defence, was liable to capture for want of a commis- sion as a vessel of war or privateer. That the capture took place while there was no state of war between France and the United States is shown by her being treated, throughout the case, as a neutral vessel; if she had been enemy's propeilr, she would have been lawful prize, even if she had a commission, or if she were unarmed. She was not eneim''s property, nor in the enemy's possession, nor bound to a port of the enemy; nor had her owner made any contract with the enemy by which the enemy was, or would be, under any circumstances, entitled to take and use her, either for war, or for any other purpose.
Generally speaking, arms and ammunition arecontraband Arms and am- of war. In 77<e Feterltoff, 5 Wall. 28, Chief Justice Chase, generally con- deli voring the judgment of this court, said: "The classifi- cation of goods as contraband or not contraband has much perplexed text-writers and jurists. A strictty accurate and satisfactory classification is perhaps impracticable; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes. Of those classes, the first consists of articles manufactured, and primarily and ordinarih* used, for mili- tary purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always
132
contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemna- tion for violation of blockade or siege." And it was adjudged that so much of the cargo of the Peterhoff, as consisted of artillery harness, artillery boots, and army shoes and blankets, came fairly under the description of goods primarily and ordinarily used for military purposes in time of war; and, being destined directly for the use of the rebel military service, came within the second, if not within the first class of goods contraband of war. 5 Wall. 58. But not when Yet itlnust be admitted that arms and ammunition are
kept on board for
defence against not contraband ot war, when taken and kept on board a
"enemies, pi- rates, and assail- merchant vessel as part or her equipment, and solely for ing thieves."
her defence against "enemies, pirates, and assailing thieves," according to the ancient phrase still retained in policies of marine insurance. Pratt, in his essa}^ on the Law of Contraband of War, speaking of the class of "articles which are of direct use in war," says: "With respect to these no question can arise. On proof of the use of the article being solely or particularly applicable to hostile purposes, the conveyance of it to the enemy would amount to such a direct interposition in the war as neces- sarily to entail the confiscation of the propert}7." But he afterwards adds this qualification: "But even in the case of articles of direct use in war, an exception is always made in favor of such a quantity of them as may be sup- posed to be necessary for the use or defence of the ship." And again, speaking of " warlike stores," he sa3rs: "These are, from their very nature, evidently contraband; but every vessel is, of course, allowed to carry such a quantity as may be necessar}7 for purposes of defence; this pro- vision is expressly introduced in many treaties." Pratt, Contraband of War, xxii. xxv, xl. And at pages 23'.). 244, 245 of his appendix he quotes express provisions to that effect in the treaties between Great Britain and Russia in 1766, 1797 and 1801. See also Cases of Dutch and Spanish /Skips, 6 C. Rob. 48; The Happy Couple, Stewart Adm. (Nova Scotia) 65, 69; Madison, quoted in 3 Whart. Int. Law Dig. § 368, p. 313. Arms for de- gut, the fact that arms carried by a merchant vessel
fence not con- *
elusive evidence were originally taken on board for her own defence is not
of character. .
conclusive as to her character. This is clearly shown by
133
the case of The An«r«i. (1801) reported by the name of ThcAuuMa. Talbot v. Seeman,) 1 Cranch, 1. In that case, during the naval warfare between the United States and France near the end of the last century, a neutral merchant vessel, having eight iron cannon and eight wooden guns mounted on board, and a cargo of merchandise, sailed from Calcutta for Hamburg, both being neutral ports; and before reach- ing her destination was captured by a French cruiser, and put by her captors, with the cannon still on board, in charge of a French prize crew, with directions to take her into a French port for adjudication as prize; and on her way thither was recaptured by a United States ship of war. The recapture was held to be lawful, and to entitle the recaptors to salvage before restoring the vessel to her neutral owner, because, as Chief Justice Marshall said, '* The Amelia was an armed vessel commanded and manned by Frenchmen," ''.she was an armed vessel under French authority, and in a condition to annoy the American com- merce." 1 Cranch, 32. And in The Charming Betxy, (1804) 2 Cranch, 64, that case was express!}7 approved, as a precedent to be followed under similar circumstances; but was held to be inapplicable where the arms on board at the time of the recapture were but a single musket and a small amount of powder, and ball. 2 Cranch, 121. Notwithstanding that the Amelia was a neutral vessel, with an armament original ly taken on board for defence only, and therefore, while in the possession of her neutral owner, would not (according to the French case above cited) have been liable to capture as an armed vessel, yet, after she had been taken possession of by the enemy, with the same armament still on board, and thus was in a con- dition to be used by the enemy for hostile purposes, the fact that the original purpose of the armament was purely defensive did not prevent her from being considered as an armed vessel of the enemy.
While the authorities above referred to present princi- A"!,ho/iti-eu
1 quoted furnish
pies and analogies worthy of consideration in the case at no conclusive *= •* rule for tola cue.
bar, the\r furnish no conclusive rule to govern its deter- mination. The decision of this case must depend upon its own facts, and upon the true construction of the Presi- dent's proclamation.
As to the facts, there is no serious dispute. The mat- ters stated in the test affidavits upon which the motion for further proof was based add nothing of importance to the facts disclosed by the testimony /// prepara&orio, and by
134
the mail contract between her owner and the Spanish Gov- ernment, which forms part of the ship's papers.
The Panama was a steamship of 1432 tons register, car- lying a crew of 71 men all told, owned by a Spanish corporation, sailing under the Spanish flag, having a com- mission as a royal mail ship from the Government of Spain, and plying from and to New York and Havana and various Mexican ports, with general cargoes, passengers and mails. At the time of her capture, she was on a voy- age from New York to Havana, and had on board two breech-loading Hontoria guns of nine centimetre bore, one mounted on each side of the ship, one Maxim rapid- firing gun on the bridge, twenty Remington rifles and ten Mauser rifles, with ammunition for all the guns and rifles, and thirty or forty cutlasses. The guns had been put on board three years before, and the small arms and ammu- nition had been on board a 3^ear or more. Her whole armament had been put on board b}T the company in com- pliance with its mail contract with the Spanish Govern- ment, (made more than eleven years before and still in force,) which specifically required eveiy mail steamship of the company to "take on board, for her own defence,'' such an armament, with the exception of the Maxim gun and the Mauser rifles.
That contract contains many provisions looking to the use of the company's steamships by the Spanish Govern- ment as vessels of war. Among other things, it requires that each vessel shall have the capacity to carry 500 en- listed men; that that government, upon inspection of her plans as prepared for commercial and postal purposes, may order her deck and sides to be strengthened so as to support additional artillery; and that, in case of the sus- pension of the mail service b}^ a naval war, or by hostilities in any of the seas or ports visited by the compan3T's ves- sels, the Government may take possession of them with their equipment and supplies, at a valuation to be made by a commission; and shall, at the termination of the war, return them to the company, paying five per cent on the valuation while it has them in its service, as well as an indemnity for any diminution in their value. Panama's Ha- The Panama was not a neutral vessel; but she was enemy
bility to capture, ' *
irrespective of property, and as such, even it she carried no arms, (either
armament. , J ' . 'V
as part or her equipment, or as cargo,) would be liable to capture, unless protected by the President's proclamation.
135
It may be assumed that a primary object of her arma- ment, and, in time of peace, its only object, was for pur- poses of defence. But that armament was not of itself inconsiderable, as appears, not only from the undisputed facts of the case, but from the action of the District Court, upon the application of the commodore commanding at the port where the court was held, and on the recommenda- tion of the prize commissioners, directing her arms and ammunition to be delivered to the commodore for the use of the Nav}r Department. And the contract of her owner with the Spanish Government, pursuant to which the armament had been put on board, expressly provided that, in case of war, that government might take pos- session of the vessel with her equipment, increase her armament, and use her as a war vessel; and, in these and other provisions, evidenthr contemplated her use for hos- tile purposes in time of war.
She was, then, enemy property, bound for an enemy character!8 port, carrying an armament susceptible of use for hostile purposes, and herself liable, upon arrival in that port, to be appropriated by the enemy to such purposes.
The intent of the fourth clause of the President's procla- mation was to exempt for a time from capture peaceful commercial vessels; not to assist the enemy in obtaining weapons of war. This clause exempts "Spanish mer- chant vessels" only; and expressly declares that it shall not apply to "Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage) or any other article prohibited or contraband of war, or any dis- patch of or to the Spanish Government."
Upon full consideration of this case, this court is of opinion that the proclamation, expressly declaring that the exemption shall not apply to any Spanish vessel hav- ing on board an\T article prohibited or contraband of war, or a single military or naval officer, or even a dispatch, <5f the enemy, cannot reasonably be construed as including, in the description of "Spanish merchant vessels " which arc to be temporarily exempt from capture, a Spanish vessel owned by a subject of the enemy; having an arma- ment fit for hostile use; intended, in the event of war, to be used as a war vessel; destined to a port of the enemy; and liable, on arriving there, to be taken possession of b}' the enemy, and employed as an auxiliary cruiser of the enenn^s navy, in the war with this country.
136
judgment. The result is, that the Panama was lawfully captured and condemned, and that the decree of the District Court must be
Affirmed. MR. JUSTICE PECKHAM dissented.
CASE OF THE BENITO P^STENGER.
(Vol. 176, United States Reports, p. 568. Decided March 5, 1900. MR. CHIEF JUSTICE FULLER delivered the opinion of the court.)
°f The Benito Estenger was captured by the U. S. S. Hor-' net on June 27, 1898, otf Cape Crux on the south side of the island of Cuba, and was brought into the port of Key West and duly libelled on July 2. The depositions in preparatorio of Badamero Perez, Edwin Cole and Enrique de Messa were taken, and thereafter and on July 27 a claim was interposed by Perez as master of the steamer on behalf of Arthur Elliott Beattie, a British subject, as owner, supported by test affidavits of himself and de Messa. The cause was preliminarily heard on the libel, the depositions in preparatorio and the test affidavits, and sixty days given for further proofs. Accordingly the depositions of the claimant and sundry others were token on behalf of the claimant, and the testimony of the consul of the United States at Kingston on behalf of the captor. The cause coming on for final hearing, the court entered a decree December 7, 1898, condemning the vessel as law- ful prize as enemy property, and ordering her to be sold in accordance with law. Claimant thereupon appealed, and assigned errors to the effect in substance that the court erred in failing to Hold that the Benito Estenger was a British merchant ship, duly documented and entitled to the protection of the British flag, and lawfully owned and registered by a subject domiciled in Great Britain; and also in holding that the Benito Estenger was lawful prize of war, inasmuch as she was engaged on a vo}7age in behalf of the local Cuban junta in Kingston, allies of the United States, and when captured was in the service of the United States, and employed in friendly offices to the forces of the United States. The vessel prior to June 9, 1898, was the property of Enrique de Messa, of the firm of Gallego, de Messa and CompamT, subjects of Spain and residents of Cuba. On that day a bill of sale was made by de Messa to the claimant, Beattie, a British sub-
137
ject, and, on compliance with the requirements of theth^^ent "f British law governing1 registration, was registered as a British vessel in the port of Kingston, Jamaica. The vessel had been engaged in trading with the island of Cuba, and more particularly between Kingston and Mon- tego, Jamaica, and Manzanillo, Cuba. She left Kingston on the 23d of June, and proceeded with a cargo of flour, rice, cornmeal and coffee to Manzanillo, where the cargo was discharged. She cleared from Manzanillo at 2 o'clock A. M., June 27, for Moritego, and then for Kingston, and was captured at half-past five of that day off Cape Cruz. The principal question was as to the ownership of the vessel and the legality of the alleged transfer, but other collateral questions were raised in respect of the alleged Cuban sympathies of de Messa; service on behalf of the Cuban insurgents in the United States; and the relation of the United States consul to the transactions which pre ceded the seizure. It was argued that the vessels of Cuban insurgents and other adherents could not be deemed prop- erty of the enemies of the United States; that this capture could not be sustained on the ground that the vessel was such property; that the conduct of de Messa in his sale to Beattie was lawful, justifiable, and the only means of protecting the vessel as neutral property from Spanish seizure; and finalhr, that this court could and should do justice by ordering restitution, under all circumstances of the case.
MR. CHIEF JUSTICE FULLER, after stating the case, de- opinion, livered the opinion of the court.
If the alleged transfer was colorable merely, and Messa was the owner of the vessel at the time of capture, did the District Court err in condemning the Benito Estenger as lawful prize as enemy property?
•'Enemy property" is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distinguished from the common law. The general rule is that in war the citizens or subjects of the belligerents are enemies to each other without regard to individual sen- timents or dispositions, and that political status determines the question of enemy ownership. And by the law of prize, property engaged in any illegal intercourse with the enemy is deemed enemy property, whether belonging to illegal traffic
11" •*.• -ii il/u -i-iii stamps property
an ally or a citizen, as the illegal t rathe stamps it with the as hostile, hostile character and attaches to it all the penal conse-
138
quences. Prize Cases, 2 Black, 635, 674; The Sally, 8 Oranch, 382, 384; Jecker v. Montgomery, 18 How. 110; The Peterhoff, 5 Wall. 28; The Flying Scud, 6 Wall. 263.
Messa was a Spanish subject, residing- at Santiago, and for years engaged in business there. His vessel had a Spanish crew and Spanish officers, and he testified that he was on board of her as supercargo. She had the Spanish Hag in her lockers, though she was flying the British flag at the moment, under a transfer, which, as presently to be seen, was colorable and invalid. There was evidence tend- ing* to show that Messa sympathized with the Cuban in- surgents, but no proof that he was himself a Cuban rebel or that he had renounced his allegiance to Spain. The vessel carried to Manzanillo on this voyage a cargo of pro- visions, consisting principally of eleven hundred barrels of flour.
Manzanillo was a city of several thousand inhabitants and .the first important place on the south Cuban coast be- tween Santiago and Cienfuegos, lying inside the bay formed by the promontory which Cape Cruz terminates, and about sixty miles northeast of the cape. Cape Cruz is about due north from Montego Bay on the northwestern shore of Jamaica, and about seventy-five miles distant, while Kingston is on the southeastern coast of Jamaica. The record lacks evidence of the condition of affairs there at that time, but official reports leave no doubt that it was defended by several vessels of war and \>\ shore batteries, and was occupied by some thousands of Spanish soldiers. On the 6th of April, 1898, the Secretary of the Navy had instructed Admiral Sampson, among other things, that the Department desired, "that in case of war, you will maintain a strict blockade of Cuba, particularly the ports of Havana, Matanzas, and, if possible, Santiago de Cuba, Manzanillo and Cienfuegos." Manzanillo was the termi- nus of a cable which connected with Santa Cruz, Trinidad, Cienfueg"os and Havana, and was subsequently cut by the forces of the United States, in order to check the inland traffic with Manzanillo and to prevent the calling of reen- forcements to resist the capture of that place. And it appeared that Admiral Sampson had been for some weeks endeavoring to stop blockade running- on the south coast of Cuba, and that a large vessel with a heavy battery w;is stationed at Cape Cruz. Manzanillo was not declared blockaded, however, until the proclamation of June 27, 1898; but the consul of the United States at Kingston had
139
warned Messa and Beattie that a blockade in fact existed. The claimant testified that the vessel was chartered bjr Flouriache, a Cuban merchant, and that the cargo was consigned to Bauriedel and Company, at Manzanillo. The deposition of neither of these was taken. According to the explicit testimony of the consul, he was informed by both the claimant and his brother that the flour was trans- ferred by Bauriedel and Compamr, through a communi- cating way from their warehouse to the Spanish govern- ment warehouse, immediately upon its delivery: and no evidence to contradict this was introduced.
The instructions of the Navy Department to "Blockading Vessels and Cruisers," in the late war, included among arti- cles conditionally contraband, "Provisions, when destined for an enemy's ship or ships, or for a place that is besieged."
In The Cominercen, I Wheat. 382, 388, Mr. Justice ri*£f^"0K{- Story said: " By the modern law of nations provisions areband- not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their des- tination. ... If destined for the ordinary use of life in the enemy's country, they are not, in general, contra- band; but it is otherwise if destined for military use. Hence, if destined for the army or nav}7 of the enemy, or for his ports of naval or military equipment, they are deemed contraband."
In The Jonqe Marqaretha, 1 C. Rob. 189, 193, Sir Wil- sir wniiam
. y y f .Scott on the same
liam Scott discussed this question, and, after referring to<}uestion- many instances, concluded: "And I take the modern established rule to be this, that generally the\T are not contraband, but may become so under circumstances aris- ing out of the particular situation of the war, or the condition of the parties engaged in it."
But while ajluding to this subject by way of illustration we do not feel called on to consider under what particular circumstances, generally speaking, provisions ma}' be held contraband of war. It is enough that in dealing with a Trade with the
enemy on an en-
vessel adjudicated to have been an enemy vessel, the factem.v vessel deci- of trade with the enemj', especiall}' in supplies necessary for the enemy's forces, is of well nigh decisive importance. In reply it is suggested that this cargo was intended for the Cuban insurgents, and a quotation is made from a letter of the consul to the effect that he had been " told privately by the president of the local junta, who has performed valuable services for me, that the proceeds of this cargo
are to be forwarded to the Cuban government and troops through the Cuban agent at Manzanillo." The suggestion derives no support from the record, and the facts remain that the provisions were delivered to the Spanish govern- ment, and that the trade to this Spanish stronghold consti- tuted, under the laws of war. illicit intercourse with the enemy.
This brings us to consider the contention that Messa had rendered important services to the United States; that he was the friend and not the enemy of this Government, and that there was an agreement between him and the United States consul which operated to protect the vessel from capture. But Messa's status was that of an enemy, as friendly a<?ts?alalrea(ty stated, and this must be held to be so notwith- standing individual acts of friendship, certainly since there was no open adherence to the Cuban cause, and allegiance could have been shifted with the accidents of war. The legal conclusion was not affected by the fact that Messa had, in cultivating friendly relations with the consul, given the latter an old Government plan of the province of San- tiago and an especially prepared chart of the harbor. Thus displaying his amicable inclinations, he endeavored to obtain from the consul a letter of protection for the voyage he was about to undertake, but this the consul declined to furnish, and informed him at the same time that Manza- nillo was blockaded, and that the contemplated venture would be at his own risk.
Nevertheless, the consul agreed to write the Admiral, and did write him June 23, that Messa offered to give cer- tain information that might be valuable, and that he pro- posed to be off Cape Cruz on June 30, when he could be picked up there and taken to the Admiral if desired; but the consul said: ''You quite understand that in dealing with those people, one is always more or less liable to im- position. I therefore make no recommendation of Messa to you." There was nothing to show that the voyage was undertaken on the strength of this letter or that it in any way contributed to the capture, nor that the Admiral in- tended to avail himself of the suggestion in regard to Messa.
The claimant asserted and the consul denied that protec- tion to the voyage was extended by the latter. But we do not go at length into this matter because we think that no engagement with the United States nor any particular service to the United States was made out in that connec-
141
tion, and so far as appears the vessel was captured in the ordinary course of cruising duty at a time and tinder cir- cumstances when her liability was not to be denied. More- consult manot over, a United States consul has no authority by virtue of f^emption to his official station to grant any license or permit the ex- e eruption of a vessel of an enemy from capture and confis- cation. This was so held by Judge McCaleb in JRogers v. The Amado, Newberry, 400, in which he quotes the lan- guage of Sir William Scott in The Hope, 1 Dodson, 226, 229: "To exempt the property of enemies from the effect of hostilities, is a very high act of sovereign authority; if at any time delegated to persons in a subordinate situation, it must be exercised either by those who have a special commission granted to them for the particular business, and who, in legal language, are termed mandatories, or b}7 persons in whom such a power is vested in virtue of any official situation to which it may be considered incidental. It is quite clear that no consul in any country, particularly in an enemy's country, is vested with any such power in virtue of his station. ' El rei non prceponitur^ and there- fore his acts relating to it are not binding."
In 77w Joseph, 8 Cranch, 451, the vessel was condemned for trading with the enem}r, and it was held that she was not excused by the necessity of obtaining funds to pay the expenses of the ship, nor by the opinion of an American minister expressed to the master, that by undertaking the voyage he would violate, no law of the United States. The court said that these considerations, "if founded in truth, present a case of peculiar hardship, yet the}7 afford no legal excuse which it is competent to this court to admit as the basis of its decision."
This is equally true of the case before us, for even if the circumstances ma}' have justified liberal treatment, that can not be permitted to influence our decision. It belongs to another department of the Government to extend such amelioration as appears to be demanded in particular instances.
Neither the case of Les OinqFreres, 4 Lebau's Nouveau Code des Prises, 63, nor that of The Maria, 6 C. Rob. 201, cited by counsel, is in point. In the former, the Commit- tee of Public Safety in the year three of the French calen- dar of the Revolution decreed the condemnation of Les Cinq F re res as an enemy's vessel, and of her cargo although belonging, to Frenchmen, but further decreed restitution of the cargo or its value, as matter of grace, in considera-
142
tion of services rendered by the claimants in furnishing- provisions to the Republic, adding that this should not be drawn into a precedent. The latter simply involved the interpretation of an indulgence specifically granted by the British Government. colorable Thus far we have proceeded on the assumption that the
r&iisicris *• •*•
ion con" transfer of the Benito Estenger was merely colorable, and this, if so, furnished in itself ground for condemnation. A brief examination of the evidence, in the light of well- settled principles, will show that the assumption is correct.
Messa's story of the transfer was that the steamer had been owned l>y Gallego, Messa and Company, and then by himself; that he was compelled to sell in order to get money to live on; that he made the sale for $40,000, for which, or a large amount of which, credit was given on an indebtedness of Messa to Beattie and Company, and that he was employed by Beattie to go on the vessel as his rep- resentative and business manager.
It appeared that Beattie applied to the customs and shipping office in Jamaica for a British register, lodged with him the bill of sale, and made a declaration of owner- ship before him as registrar of shipping, which documents were filed on June 9 and 14 respectively, and were in con- formity with the requirements of British law. The depo- sitions of the ship broker and his emplo3Tes put the price at nine thousand pounds, and showed their belief that the sale was bonafide, founded on what passed between Messa and Beattie. They did not know what arrangements were made for the payment of the price or how or in what shape the purchase mone}7 was paid. The accountant stated that after the sale Beattie went on board and took possession of the vessel, and informed the officers in charge that he become the owner, gave orders regarding her, and transfer0 after inf°rmed witness that he had given Messa the position as supercargo.
There was considerable confusion on the point as to who conflicting evi- was master of the vessel after the transfer. Perez testi-
as to who
the* transfer after ^^ *na* ^e was' anc^ as master he interposed the claim on behalf of Beattie. He also swore that Mr. Beattie "in- formed him that he could remain as master, but it would be necessary for him to put an English subject on board as first officer or second captain, in conformity with the British law." Cole, a British subject, asserted that he was master, and Beattie stated that he appointed him such with Perez as mate and pilot, while Messa said that Perez
143
was master and that he, Messa, was supercargo. Peivx had been the captain of the ship and remained on her, and conceding that Cole was placed on board in the capacitjr of captain, the inference is not unreasonable that this was for appearances only.
Beattie testified that he was a member of the firm of Beattie and Company, composed of himself and his broth- ers, all British subjects, and interested in lands, sugar estates, mines and forests in the district of Manzanillo; that he had resided there for some years, returning to his parents'1 home in England for several months at a time; that he concluded the purchase of the Benito Estenger from Messa on June 9, 1898; that she left Jamaica on her last voyage on June 23, bound for Manzanillo, and char- tered by Flouriache, a Cuban merchant, carrying a cargo of foodstuffs sent for the purpose of trade; that he bought the vessel for nine thousand pounds; but he declined to state of what the payment or payments of the purchase money consisted, although saying that the sale was bona
The consul testified that claimant, in conversation, while insisting that the transfer was absolute, admitted that it was effected for the purpose of protecting the vessel.
In short, the statements as to price were conflicting; the . R^um
' dence regarding
reason assigned for the sale was to get money to live on, transfer. and yet apparently no money passed, and Messa said that he received credit for a large part of the consideration on indebtedness to claimant's firm; claimant himself refused to describe the payment or payments; the Spanish master and crew remained in charge; Messa went on the voyage as supercargo; the vessel continued in trade, which, in this instance at least, appeared to be plainly trade with the enemy; and, finalh", it is said by claimant's counsel in his printed brief: " It will not be contended upon this appeal that all the interest of Mr. Messa in the Benito Estenger ceased on June 9, 1898. The transfer was obviously made to protect the steamer as neutral property from Spanish sei/ure. That Mr. Messa, however, still retained a bene- ficial interest after this sale and transfer of flags, and con- tinued to act for the vessel as supercargo, has not been disputed."1
The attempt to break the force of this admission by the contention that the change of Hag was justifiable as made to avoid capture by the Spanish is no more than a reitera- tion of the argument that Messa was a Cuban rebel, and his
144
vessel a Cuban vessel, which, as has been seen, we have been unable to concur in. If the transfer were invalid, she belonged to a Spanish subject, she was engaged in an ille- gal venture, and her owner can not plead his fear of Span- ish aggression.
1 of* validity Transfers of vessels ftagrante ~bello were originally held nva^J kut the rule has been modified, and is thus given
6eMo by Mr. Hall, who, after stating that in France "their sale
is forbidden, and they are declared to be prize in all cases in which the}r have been transferred to neutrals after the buj- ers could have knowledge of the outbreak of the war ; " sa}'s: "in England and the United States, on the contrary, the right to purchase vessels is in principle admitted, thej' being in themselves legitimate objects of trade as fully as an}T other kind of merchandise, but the opportunities of fraud being great, the circumstances attending a sale are severely scrutinized, and the transfer is not held to be good if it is subjected to any condition or even tacit un- derstanding by which the vendor keeps an interest in the vessel or its profits, a control over it, a power of revoca- tion, or a right to its restoration at the conclusion of the war.'' International Law, (4th ed.) 525. And to the same
samerques"ion.he effect is Mr. Justice Story in his Notes on the Principles and Practice of Prize Courts, (Pratt's ed.) 63 ; 2 Wheat. App. 30: "In respect to the transfers of enemies' ships dur- ing the war, it is certain that purchases of them by neu- trals are not, in general, illegal; but such purchases are liable to great suspicion; and if good proof be not given of their validity by a bill of sale and pa3Tment of a reasonable consideration, it will materially impair the validity of a neutral claim; . . . and if after such transfer the ship be employed habitually in the enemy's trade, or under the management of a hostile proprietor, the sale will be deemed merely colorable and collusive. . . . Anything tending to continue the interest of the enemy in the ship vitiates a contract of this description altogether." f" Tfie 8ec^ Geschwistern, 4 C. Rob. 100, is cited, in which Sir William Scott said: "This is the case of a ship, asserted to have been purchased of the enemy; a liberty which this country has not denied to neutral merchants, though by the regulation of France, it is entirely forbid- den. The rule which this country has been content to apply is, that property so transferred, must be Itonajide and absolutely transferred; that there must be a sale di- vesting the enemy of all further interest in it; and that
145
anything tending to continue his interest, vitiates a con- tract of this description altogether."
In The Jemmy, 4 C. Rob. 31, the same eminent jurist observed: "This case has been admitted to farther proof, owing entirely to the suppression of a circumstance, which if the court had known, it would not have permitted far- ther proof to have been introduced; namely, that the ship has been left in the trade, and under the management of her former owner. Wherever that fact appears, the court will hold it to be conclusive, because, from the evidentia ret, the strongest presumption necessarily arises, that it is merely a covered and pretended transfer. The presump- tion is so strong, that scarcely any proof can avail against it. It is a rule which the court finds itself under the abso- lute necessity of maintaining. If the enemy could be permitted to make a transfer of the ship, and yet retain the management of it, as a neutral vessel, it would be impossible for the court to protect itself against frauds."
And in The Omnibus, 6 C. Rob. 71, he said: "The court has often had occasion to observe, that where a ship, asserted to have been transferred, is continued under the former agency and in the former habits of trade, not all the swearing in the world will convince it that it is a gen- uine transaction."
The rule was stated by Judge Cadwalader of the Eastern District of Pennsylvania thus: "The rule of decision in some countries has been that, as to a vessel, no change of ownership during hostilities can be regarded in a prize court. In the United States, as in England, the strictness of this rule is not observed. But no such change of prop- erty is recognized where the disposition and control of a vessel continue in the former agent of her former hostile proprietors; more especially when, as in this case, he is a person whose relations of residence are hostile." The I*l«nd Belle, 13 Fed. Cases, 168.
So in The Baltica. Spinks Prize Cases, 264, several vessels had been sold by a father, an enemy, to his son, a neutral, immediately before the war, and only paid for in part, the remainder to be paid out of the future earnings thereof, and the Baltica, which was one of them, was condemned on the ground of a continuance of the enemy's interest.
In The Soglasie, Spinks Prize Cases, 104, Dr. Lushing- ton held the imnx jn-tJuimlt' to he upon the claimant, and made these observations: "With regard to documents of
2056—04 10
The Jemmy.
The Omnibus.
The Belle.
Island
The Baltica.
146
a formal nature, though when well authenticated the}' are to be duly appreciated, it does not follow that they are always of the greatest weight, because we know, without attributing blame to the authorities under which they issue, the}" are instruments often procured with extraor- dinary facility. What the court especially desires is, that testimony which bears less the appearance of formality,— evidence natural to the transaction, but which often car- ries with it a proof of its own genuineness; the court looks for that correspondence and other evidence which naturally attends the transaction, accompanies it, or follows it, and which, when it bears upon the face of it the aspect of sincerity, will always receive its due weight." st Merck. In The Ernst Merck, Spinks Prize Cases, 98, the sale was to neutrals of Mecklenburg shortly before the break- ing out of war, and it was ruled that the onus of giving satisfactory proof of the sale was on the claimant, and without it the court could not restore even though it was not .called on to pronounce affirmatively that the transfer was fictitious and fraudulent. In that case the vessel was condemned partly because of absence of proof of pay- ment, Dr. Lushington saying: "We all know that one of the most important matters to be established by a claimant is undoubted proof of payment."
To the point that the burden of proof was on the claim- ant see also The Jenny, 5 Wall. 183; The Amiable Isabella, 6 Wheat. 1; TheLilla. 2 Cliff. 169; Story's Prize Courts, 26. judgment. We think that the requirements of the law of prize
were not satisfied by the proofs in regard to this transfer, and on all the evidence are of opinion that the court below was right -in the conclusion at which it arrived.
Decree tijfir i //<•</.
MR. JUSTICE SHIRAS, MR. JUSTICE WHITE and MR. JUS- TICE PECKHAM dissented.
CASE OF THE CARLOS F. ROSES.
(Vol. 177, United States Reports, p. 655. Decided May 14, 1900. MR. CHIEF .It STK K FULLER delivered the opinion of the court.)
°f The ^ai'l°s F. Roses was a Spanish bark of 499 tons, hailing from Barcelona, Spain, sailing under the Spanish flag, and officered and manned by Spaniards. She had been owned for many years by Pedro Roses Valenti, a cit- izen of Barcelona. Her last voyage began at Barcelona,
147
whence she proceeded to Montevideo, Uruguay, with a t cargo of wine and salt. All of the outward cargo was dis- charged at Montevideo, where the vessel took on a cargo of jerked beef and garlic to be delivered at Havana. Cuba, and sailed for the latter port on March 16. 1898. On May 17, when in the Bahama Channel off Punta de Maternillos, Cuba, and on her course to Havana, she was captured by the United States cruiser New York and sent to Key West in charge of a prize crew. The bark and her cargo were duly libelled May 20. All of the ship's papers were de- livered to the prize commissioners, and the deposition of Maristany, her master, was taken in preparatorio. Klein- wort Sons and Company of London, England, made claim to the cargo, consisting of a shipment of 110,256 kilos of jerked beef and 19,980 strings of garlic, and a further shipment of 165,384 kilos of jerked beef, alleging that they were its owners and that it was not lawful prize of war. In support of the claim the firm's agent in the United States filed a test affidavit made on information and belief. In this it was alleged that Kleinwort Sons and Company were merchants in London; that the members of the firm were subjects of the United Kingdom of Great Britain and Ireland; that in February and March, 1898, the bark, being then in Montevideo, bound on a voyage to Havana, took on board a cargo of jerked beef and strings of garlic shipped by Pla Gibernau and Company, merchants of Montevideo, to be transported to the port of Havana, and there to be delivered to the order of the ship- pers according to the condition of certain bills of lading issued therefor by the bark to Pla Gibernau and Compan}-; that the members of the firm of Gibernau and Company were citizens of the Argentine Republic; that the bark left Montevideo on March 16, and proceeded on her voy- age to Havana, until May 17, when, being at a point in the Bahama Channel off Martinique, she was captured by the United States cruiser New York, without resistance on her part, and sent into Key West as prize of war. That after the shipment of the cargo in Montevideo claimants made advances to the shippers and owners of the cargo in the sum of £6297, British sterling, to wit, £2714 item thereof, upon the security of said lot of 110,256 kilos of jerked beef and 19,980 strings of garlic, and £3583 item thereof, upon the security of said lot of 165,384 kilos of jerked !>eef; that at the time of making said advances and in consideration thereof, bills of lading covering the ship-
148
statement of ments were delivered to claimants duly indorsed in blank with the intent and purpose that they should thereby take title to said bills of lading, and to said shipments of jerked beef and garlic, and should, on the arrival of the vessel at her destination, take delivery of the shipments and hold the same as security for their said advances until paid, and with the right to dispose of said shipments and to appty the proceeds to the payment of their said ad- vances; and accordingly the said Kleinwort Sons and Com- pany did become and ever since have been and still are as aforesaid the true and lawful owners of the said bills of lading and of the shipments of jerked beef and garlic therein referred to. The affidavits further stated that the advances were equivalent in money of the United States to about $30,6-14.35, and that no part of the same had been paid, or otherwise secured to be paid.
The cause was heard on the libel and claims of the mas- ter of the bark and Kleinwort and Company, and the evi- dence taken in preparatorio. The vessel was condemned as enemy property, and the court ordered the claimants of the cargo to "have sixty days in which to file further proof of ownership;1' and because of its perishable nature the marshal of the court was ordered to advertise and sell the same, and deposit the proceeds in accordance to law. No appeal was taken on behalf of the vessel. The cargo was sold and the proceeds deposited with the assistant treas- urer of the United States at New York, subject to the order of the court. The time for claimants to take further proofs was twice extended. No witnesses were produced by claim- ants, but Charles F. Harcke, claimants' manager in Lon- don, made three ex parte affidavits before the United States consul genera], which were offered in evidence by claim- ants. Appended to the affidavits were a large number of exhibits purporting to be papers, or copies of papers, relating to the shipment of the cargo, and some of the financial transactions of some of those who had to do with it. From these affidavits and papers it appeared that the voyage of the Carlos F. Roses was a joint venture entered into by Pedro Pages of Havana, a Spanish subject; the Spanish owners of the vessel, and Gibernau and Company. The whole cargo was made up of two shipments, one of jerked beef and one of garlic, which had been purchased b}r Gibernau and Company on commission, and by them delivered to the Carlos F. Roses "consigned to order for account and risk and by order of the parties noted" in the
149
invoices. The shipment of jerked beef containing 275,640 , kilos in bulk was divided thus: 60%, 165,384 kilos, k"to the expedition or voyage of the Carlos F. Roses;" 40%, 110,256 kilos, "to Mr. Pedro Pages of Havana." The shipment of garlic was divided thus: 9990 strings, "account of Mr. Pedro Pages," and 9990 strings for "account of" Gibernau and Company. Both invoices were signed by Gibernau and Company, and bore date March 11 and 12, 1898.
Harcke stated in one of his affidavits that: "The said cargo was ultimately destined for Don Pedro Pages, of Havana, who in the ordinary course of business would by payment to or indemnification of Kleinwort Sons & Co. or their agents in that behalf take up the said bills of lading and thus be enabled thereon to take the goods. No pay- ment whatever has been made to Messrs. Kleinwort Sons & Co., or their agents, on account of the payments made by them through the said advances by said Don Pedro Pages, or by any person on his behalf, or otherwise, and the said Kleinwort Sons & Co. have been and are wholly unindemnified in respect of their said payments except so far as the proceeds of said cargo and the insurance thereon which as the owners of the said goods they have become entitled to collect, thereby subrogating to their own right to the extent of such payments the insurers of the said goods."
The ship's manifest appears to have been signed by Maristany, her master, at Montevideo, on March 15, 1898, and was vised by the Spanish consul at that port the pre- vious day. It described the ship's destination as Havana, and her cargo as made up of two lots of jerked beef con- taining 248,076 kilos and 29,970 kilos respectively, and one lot of garlic containing 19,980 strings, all shipped by Gibernau and Company, "to order." On March 14, Mari- statiy issued three bills of lading, in which it was stated that the shipments were received from Gibernau and Com- pany for transportation to Havana "for account and at the risk of whom it may concern ; " one of the bills covering a shipment of 165,384 kilos of jerked beef; another of 110,256 kilos of jerked beef; and the third of 19.980 bunches of garlic.
March 15, Gibernau and Company drew this hill of exchange:
"No. 128. Montevideo, March 15, 1898. For £2714 13 8. Ninety days after sight you will please pay for this
150
o£ tirst of exchange (the second and third being unpaid), to the order of the London River Plate Bank, L'd, the sum of £2714 13 8, value received, which you will charge to the account of Pedro Pages of Havana as per advice.
"PLA GIBERNAU & Co.
"To Messrs. Klein wort Sons & Co., London. " On the same day Maristany drew this bill of exchange: "No. 129. Montevideo, March 15, 1898. For £3583 11 6. Ninety days after sight you will please pay for this first of exchange (the second and third being unpaid), to the order of Pla Giber nau & Co. the sum of £3583 11 6, invoice value of jerked beef, per Carlos F. Roses, which you will charge to the account of P. Roses Valenti. of Barcelona, as per advice.
"YsiDRO BERTRAN MARISTANY. "To Messrs. Kleinwort Sons & Co., London." This was indorsed by Gibernau and Company. Valenti was the managing owner of the Carlos F. Roses. Both bills of exchange passed through the London River Plate Bank, L't'd, at Montevideo. On April 6 they were accepted by Kleinwort Sons and Company, and on May 9 were paid under discount by that firm. Harcke alleged that at the time of the acceptance of these bills of exchange, bills of lading covering the shipments of the garlic, and the jerked beef shipped for account and l>y order of Pages, indorsed in blank by Gibernau and Company, were delivered to claimants, as security for payment of the bills of exchange; and that thereafter the bill of lading cover- ing the shipment of jerked beef made for the account and by the order of the Carlos F. Roses was delivered in like manner, but affiant did not state when. It was also alleged that on April 9 the bills of lading and invoices, covering the shipment of garlic and Pages's share of the jerked beef wero mailed by Kleinwort Sons and Company to Gelak and Compam1, bankers of Havana, to be held until the bills of exchange charged to the account of Pages should be paid. Neither the instructions sent to Gehik and Corn- pan}7, nor a copy of them, were produced. Harcke fur- ther alleged that the bills of lading and the invoices covering the vessel's share of the shipment of jerked beef were retained by Kleinwort Sons and Company i; pending the disposal of the said cargo." On May 17, the da}' of the capture, Kleinwort Sons and Compan}' cabled Gelak and Company requesting them to return the bills of lad- ing and invoices, which had been forwarded on April 9.
151
June 9, Gelak and Company replied that the bills and in- th|^^ent of voices had not been received. On October 21 claimants produced these bills of lading, alleging that they had been received from Gelak and Company on October 18, and that neither Pages, Gibernau and Company, nor the own- ers of the Carlos F. Roses had paid claimants anything for or on account of their acceptance and payment of the bills of exchange. The cause of the cargo was heard a second time on the claim, test affidavit, and Harcke's affidavits, and a decree was entered for the payment to claimants of the proceeds of sale: from which decree the United States took this appeal.
MR. CHIEF JUSTICE FULLER, after stating the case, opinion, delivered the opinion of the court.
The President's proclamation of April 26, 1898, declared the policy of the Government in the conduct of the war would be to adhere to the rules of the Declaration of Paris therein set forth, one of them being thus expressed: "Neutral goods, not contraband of war, are not liable to confiscation under the enemy's flag."
The question is whether this cargo when captured was enemy property or not. The District Court held that both the title and right of possession were in these neutral claimants at the time of the capture, "as evidenced by the indorsed bills of lading and the paid bills of exchange,'' and, therefore, entered the decree in claimant's favor. As the vessel was an enemy vessel the presumption was cargoon enemy that the cargo was enemj^'s property, and this could only sumatJiy enenfy be overcome by clear and positive evidence to the con- trary. The burden of proving ownership rested on claimants. T/ie London Packet, 5 Wheat. 132; The Sally Magee, 3 Wall. 451; The Bcnlto Estenger, 176 U. S. 568.
Further proofs on claimant's behalf were ordered to be furnished within sixty days from June 2; and the time was enlarged to August 31; and again to October 15. The proofs tendered were three affidavits of claimants' man- ager sworn to September 27, October 12 and October 21, 1898, respectively, with accompanying papers. Such e.i- jnirt<> statements, where further proofs have been ordered, though admitted without objection, are obviously open to criticism, but without pausing to comment on these in that aspect, we inquire whether they satisf}- the require- ments of the law of prize in respect of the establishment of the neutral character of this cargo under the circum- stances.
152
ci^mnstances Gibernau and Company were citizens of a neutral state;
owneraMpo" the tnev were evidently commission merchants, and in each
cargo- . invoice a charge for their commission on the shipment
appears. The invoices expressly provided that the goods were shipped "to order for account and risk and by order of the parties noted below. ' ' The consignees noted below in the invoice of the jerked beef were the owners of the ves- sel, "the expedition or voyage of the 'Carlos F. Hoses ": and "Mr. Pedro Pages of Havana," all Spanish subjects. The consignees of the garlic were "Mr. Pedro Pages" and "the undersigned;" that is, Gibernau and Compan}'. There were three sets of bills of lading issued by the master to Gibernau rfnd Company. One covered the portion of the shipment of jerked beef made for the account of the vessel; another, the portion of that shipment made for the account of Pages; the third, the shipment of garlic made for tha joint account of Pages and Gibernau and Company. All the bills set forth that the goods were taken for the account and at the risk of whom it might concern. The ship's manifest was signed under date March 15, and the destina- tion cf the cargo was stated thus: " Shipped by Pla Giber- nau Co. To order." The vise of the consul of Spain, dated the day before, was: "Good for Havana, with a cargo of jerked beef and garlic." As the vessel had a share in the shipment of jerked beef, and the consignees were named in the invoices, which set forth that the shipments were made by their orders for their account and at their
•wlseem>n1eoust ™k, it would appear that the manifest was erroneous, and ^is and the fact that the bills of lading stated that the goods were taken "for account of whom it may concern," should be especially noted, since the reasonable inference is that the consignees must have been known to the master. And it also should be observed that there was no charter party, which would have necessarily revealed the engage- ments of the vessel, but which natural \y would not be entered into if the commercial venture was that of her owner. The general rule is that a consignor on delivering goods ordered, to a master of a ship, delivers them to him as the agent of the consignee so that the property in them is vested in the latter from the moment of such delivery, though the rule may be departed from by agreement or by a particular trade custom, whereby the goods are shipped as belonging to the consignor and on his account and risk. We think that on the face of the papers it must be concluded that when these goods were delivered to the
153
vessel they became the property of the consignees named in the- invoices. Hence the shipments of jerked beef must be regarded as owned by Pages, or by him and the owners of the Carlos F. Roses. One half of the garlic belonged to Pages, the remaining half was consigned to Gibernau and Company, and they did not claim, and have not claimed it, nor was it asserted that Gibernau and Company retained the ownership of any part of the cargo after its delivery to the vessel. Property so long unclaimed may be treated as un^a?med may in an}' view good prize. The Adeline, 9 Cranch, 2-14; T Harrison, 1 Wheat. 298. In fact, claimants admit that the whole cargo "was ultimately destined for Don Pedro Pages of Havana." The bill of exchange drawn by Giber- nau and Company named Kleinwort Sons and Company as acceptors, and directed them to charge the amount to the account of "Pedro Pages of Havana as per advice." The bill drawn by Maristany also named Kleinwort Sons and Company as drawees, and directed them to charge the amount "to P. Roses Valenti of Barcelona as per advice." In neither of them was there any reference to the cargo, and, so far as appeared, the amounts were at once charged up to the persons named.
Harcke said that when the bills of exchange were ac- cepted by Kleinwort Sons and Company bills of lading covering the shipment of 110,256 kilos of jerked beef and of the garlic were delivered to them in consideration of the acceptance of the draft for £2714 13 8, and that bills of lading for the 165,354 kilos of jerked beef were afterwards delivered in consideration of the acceptance of the draft for £3583 11 6. But the date of the latter delivery was not given, and it affirmatively appeared that whenever these bills of lading reached Kleinwort Sons and Company they were retained "pending the disposal of the cargo/' Both drafts were accepted April 6, and the bills of lading for the 110,256 kilos of jerked beef and for the garlic were forwarded to Gelak and Company on April 9, but the bills for the 165,384 kilos of jerked beef, whenever received, never were. The instructions to Gelak and Company were not put in evidence, nor any of the correspondence with Valenti or Pages. In June, Gelak and Company cabled that the bills sent to them had not been received; in Sep- tember they turned up, but no information was afforded as to how they came into Gelak and Company's possession; and in October duplicates were also received by claimants from Gelak and Company, with, so far as disclosed, no
154
accompanying- explanation. And Harcke's affidavits failed to set forth the relations, transactions or correspondence existing and passing between claimants and the en em}' owners of the cargo. This, although, as Sir William Scott said in The Magnus, 1 C. Rob. 31, "the correspondence of the parties, the orders for purchase, and the mode of payment, would have been the points to which the court would have looked for satisfaction."
The affidavits alleged that the claimants were wholly unindemnified except by the proceeds of the cargo and tho insurance thereon, by which the insurers were subrogated to their own rights, but did not state whether the insur- ance contemplated a war risk, or why the bills of lading for the larger portion of the beef were retained by claim- ants and not sent to the Havana agents, or whether the}' retained them upon instructions from the enemy owners; or whether they came to claimants from Spain; nor did anything appear in respect of the interest of Pages as con- signee for himself, or in a representative capacity; nor of Valenti, the owner of the enemy vessel, who resided at Barcelona. The evidence of enemy interest arising on the face of the documents called on the asserted neutral owners to prove beyond question their right and title. And still for all that appears, the documents may have been sent merely to facilitate delivery to the agent of the enem}r owners.
Bins 01 lading Bills of lading stand as the substitute and representative egotiabL qnasi of the goods described therein, and while quasi negotiable instruments, are not negotiable in the full sense in which that term is applied to bills and notes. The transfer of the bill passes to the transferee the transferror's title to the goods described, and the presumption as to ownership arising from the bill may be explained or rebutted by other evidence showing where the real ownership lies. A pledgee to whom a bill of lading is given as security gets the legal title to the goods and the right of possession only if such is the intention of the parties, and that inten- tion is open to explanation. Inquiry into the transaction in which the bill originated is not precluded because it came into the hands of persons who may have innocently paid value for it. Pollard v. Vinton, 105 U. S. 7; Shaw v. Railroad Company, 101 U. S. 557.
Generally speaking, in the purchase and shipment of goods on bills of lading attached to bills of exchange drawn against them, the bill of exchange is drawn on the
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consignee and purchaser, and sent forward for collection through the banker at the place of shipment, who advances on the draft, and thereafter realizes on it through his cor- respondents, or by sale as exchange; or the banker at some other point, or at the general exchange center, may be the drawee of the bill of exchange instead of the con- signee or real owner, the banker standing in the place of the owner, in virtue of some arrangement with his cus- tomer, or on the faith of a running account, the pledge of other securities, or the customer's personal liability, so that the draft may be charged up at once, and, at all events, the control of the goods is not the sole reliance of the banker.
In the case in hand, the captors succeeded to the enemy owners' rights, and could have introduced evidence as to the real nature of the transactions, and so have rebutted any presumption in favor of the bankers as purchasers for value, and although they did not do this, the question still remains that in prize courts it is necessary for claimants to show the absence of anything to impeach the transac- tion, and at least to disclose fully all the surrounding cir- cumstances. And this we think claimants have failed to do.
The right of capture acts on the proprietary interest of notetaffecteiright the thing captured at the time of the capture and is riotof affected b}r the secret liens or private engagements of the parties. Hence the prize courts have rejected in its favor the lien of bottomry bonds, of mortgages, for supplies, and of bills of lading. The assignment of bills of lading trans- fers the jus ad rem, but not necessarily the jus in rent. The, jus in re or in rem, implies the absolute dominion— the ownership independently of any particular relation with another person. The jus ad rein has for its founda- tion an obligation incurred by another. Sand. Inst. Just., Introd., xlviii; 2 Marcade, Expl. du Code Napoleon, 350; •2 Bouvier, (Rawle's Revision,) 73; The Young Mechanic, '2 Curtis, 404.
Claimants did not obtain the jus in rem, and, according to the great weight of authority, the right of capture was superior.
In The Frances, 8 Cranch, 418, a New York merchant T/" '"'»<"• claimed two shipments of goods, one in consequence of an advance made to enemy shippers by him in consideration of the consignment, and the other in virtue of a general 1 rdhuice of account due to him from the shippers as their factor. Both consignments were at the risk of the enemy
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shippers. The goods were condemned as enemy property, and the sentence was affirmed. This court said:
4'The doctrine of liens seems to depend chiefly upon the
prize courtT8 m ru^es °^ jurisprudence established in different countries. There is no doubt but that, agreeably to the principles of the common law of England, a factor has a lien upon the goods of his principal in his possession, for the balance of account due to him; and so has a consignee for advances made by him to the consignor. . . . But this doctrine is unknown in prize courts, unless in very peculiar cases, where the lien is imposed by a general law of the mer- cantile world, independent of any contract between the parties. Such is the case of freight upon enemies' goods seized in the vessel of a friend, which is always decreed to the owner of the vessel. . . . But in cases of liens created by the mere private contract of individuals, depending upon the different laws of different countries, the difficulties which an examination of such claims would impose upon the captors, and even upon the prize courts, in deciding upon them, and the door which such a doctrine would open to collusion between the enemy owners of the property and neutral claimants, have excluded such cases from the con- sideration of those courts. . . . The principal strength of the argument in favor of the claimant in this case, seemed to be rested upon the position, that the consignor .in this case could not have countermanded the consign- ment after delivery of the goods to the master of the ves- sel; and hence it was inferred that the captor had no right to intercept the passage of the property to the consignee. This doctrine would be well founded, if the goods had been sent to the claimant upon his account and risk, ex- cept in the case of insolvency. But when goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him as agent of the shipper, not of the consignee; and it is competent to the consignor, at any time before actual delivery to the consignee, to countermand it, and thus to prevent his lien from attach- ing. Upon the whole, the court is of opinion that, upon the reason of the case, as well as upon authority, this claim cannot be supported, and that the sentence of the court below must be affirmed with costs."
siwaw Mary and In The Mary and Susan, I Wheat. 25, an American mer- chantman bound from Liverpool to New York was cap- tured by a privateer of the United States during the war of 1812. In her cargo were certain goods which had been
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shipped by British subjects to citizens of the United States, in pursuance of orders received before the declaration of war. Previous to the execution of the orders the shippers became embarrassed, and assigned the goods to certain bankers to secure advances made by them, with a request to the consignees to remit the amount to the bankers, who also repeated the same request, the invoices being for gain and risk of the consignees, and stating the goods to be then the property of the bankers, and it was held that the goods having been purchased and shipped in pursuance of orders from the consignees, the property was originally vested in them, and was not devested by the intermediate assignment, which was merely intended to transfer the right to the debt due from the consignees.
In The Hampton, 5 Wall. 372, the schooner Hampton 1 and her cargo had been captured, libelled and condemned as prize of war. The master of the vessel was her owner, but interposed no claim; nor did anyone claim the cargo. One Brinckley appeared and claimed the vessel as mort- gagee. The 1)0 n a fides of this mortgage was not disputed; nor that he was a Io3'al citizen. But his claim was dis- missed, and, the case having been certified to this court, it was held that in proceedings in prize, and under the prin- ciples of international law, mortgages on vessels captured jure belli are to be treated only as liens subject to be over- ridden by the capture. Mr. Justice Miller said:
"The ground on which appellant relies is, that the mort- gage, being a^'^.s- in r<> held by an innocent party, is some- thing more than a mere lien, and is protected by the law of nations. The mortgagee was not in possession in this case, and the real, owner who was in possession admits that his vessel was in delicto by failing to set up any claim for her. It would require pretty strong authority to induce us to import into the prize courts the strict com- mon law doctrine, which is sometimes applied to the rela- tion of a mortgagee to the property mortgaged. It is ye^eisgcfptured certainly much more in accordance with the liberal prin-Jmorebfhanr?iens ciples which govern admiralty courts to treat mortgages overridden10 by as equity courts treat them, as a mere security for thecapture' debt for which they are given, and therefore no more than a lien on the property conveyed. But it is unnec- essary to examine this question minutely, because an obvious principle of necessity must forbid a prize court from recognizing the doctrine here contended for. If it were once admitted in these courts, there would be an end
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of all prize condemnation. As soon as a war was threat- ened, the owners of vessels and cargoes which might be so situated as to be subject to capture, would only have to raise a sufficient sum of money on them, by bfma fide mortgages, to indemnify them in case of such capture. If the vessel or cargo was seized, the owner need not appear, because he would be indifferent, having the value of his property in his hands already. The mortgagee having an honest mortgage which he could establish in a court of prize, would either have the property restored to him or get the amount of the mortgage out of the proceeds of the sale. The only risk run by enemy vessels or cargoes on the high seas, or by neutrals engaged in an effort to break the blockade, would be the costs and expenses of capture and condemnation, a risk too unimportant to be of an}T value to a belligerent in reducing his opponent to terms. The principle which thus abolishes the entire value of prize capture on the high seas, and deprives blockades of all danger to parties disposed to break them, can not be recognized as a rule of prize courts."
The Bam. Jn The Battle, 6 Wall. 498, the steamer Battle and cargo
were captured on the high seas as prize of war, brought into court and condemned, for breach of blockade and also as enemy property. Two claims were set up against the steamer in the court below, one for supplies, and another for materials, furnished, and for work and labor in build- ing a cabin on the boat. These claims were dismissed, and the decree affirmed by this court, Mr. Justice Nelson delivering the opinion, saying: "The principle is too well settled that capture as prize of war, jure belli, overrides all previous liens, to require examination."
Such is the rule in the British prize courts. The Tobago, 5 C. Rob. 218; The Marianna, 6 C. Rob. 24: The Ida, Spinks Prize Cases, 26.
The Tobago. The Tobago was a case of claim to a captured French vessel, made on behalf of a British merchant as the holder of a bottouny bond executed and delivered to him by the master of the ship before the commencement of hostilities between Great Britain and France. Sir William Scott said:
"The integrit}7 of this transaction is not impeached, but I am called upon to consider whether the court can, con- sistently with the principles of law that govern its prac- tice, afford relief. It is the case of a bottomry bond, given fairly in times of peace, without any view of infring-
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ing the rights of war, to relieve a ship in distress. . . , But can the court recognize bonds of this kind as titles of property, so as to give persons a right to stand in judg- ment, and demand restitution of such interests in a court of prize ? . . . The person advancing money on bonds of this nature, acquires, by that act, no property in the ves- sel; he acquires the jus in m/z, but not the jus in re, until it has been converted and appropriated hy the final process of a court of justice. . . . But it is said that the captor takes cum onere, and, therefore, that this obligation would devolve upon him. That he is held to take cum (mere is undoubtedly true, as a rule which is to be understood to apply where the onus is immediately and visibly incum- bent upon it. A captor who takes the cargo of an enemy on board the ship of a friend, takes it liable to the freight due to the owner of the ship; because the owner of the ship has the cargo in his possession, subject to that demand by the general law, independent of all contract. . . . But it is a proposition of a much wider extent, which affirms that a mere right of action is entitled to the same favor- able consideration in its transfer from a neutral to a cap- tor. It is very obvious that claims of such a nature may be so framed as that no powers belonging to this court can enable it to examine them with effect. They are private contracts, passing between parties who may have an inter- est in colluding; the captor has no access whatever to the original private understanding of the parties in forming such contracts; and it is, therefore, unfit that he should be affected by them. His rights of capture act upon the property, without regard to secret liens possessed by third parties. ... I am of opinion that there is no instance in which the court has recognized bonds of this kind as titles of property, and that they are not entitled to be recog- nized as such in the prize courts."
In The Marianna, the vessel had been sold at Buenos The Ay res by American owners to a Spanish merchant; the purchase mone}', however, had not been paid in full, but \\ as to be satisfied out of the proceeds of a quantity of tal- low on board the vessel for sale, consigned to the agents of the American vendors at London. The vessel was seized on her voyage to England, documented as belong- ing to a Spanish merchant, and sailing under the flag and pass of Spain. The former American proprietors made claim to the cargo, but the claim was disallowed because
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the claimants' interest was not sufficient to support it; and the court said:
"Captors are supposed to lay their hands on the gross tangible property, on which there may be many just claims outstanding, between other parties, which can have no operation as to them. If such a rule did not exist, it would be quite impossible for captors to know upon what grounds the}7 were proceeding to make any seizure. The fairest and most credible documents, declaring the property to belong to the enemy, would only serve to mis- lead them, if such documents were liable to be overruled by liens which could not in any manner come to their knowledge. It would be equally impossible for the court, which has to decide upon the question of property, to admit such considerations. The doctrine of liens depends very much upon the particular rules of jurisprudence which prevail in different countries. To decide judicially on such claims, would require of the court a perfect knowl- edge of the law of covenant, and the application of that law in all countries, under all the diversities in which that law exists. From necessity, therefore, the court would be obliged to shut the door against such discussions and to decide on the simple title of property, with scarcely any exceptions. ... As to the title of property in the goods, which are said to have been going as the funds out of which the pa}7ment for the ship was to have been made. That they were going for the payment of a debt will not alter the property; there must be something more. Even if bills of lading are delivered, that circumstance will not be sufficient, unless accompanied with an understanding that he who holds the bill of lading is to bear the risk of the goods as to the voyage, and as to the market to which they are consigned; otherwise, though the security may avail pro tanto, it can not be held to work any change in the proper ty."
The Ida. These cases were cited by Dr. Lushington in The Ida as
settling the law. In that case, claim was made by a neu- tral merchant to a cargo of coffee which had been con- signed to him by an enemy on the credit of certain advances, as security for pa}Tment of which bills of lading covering the cargo had been delivered to him. But the court de- clined to recognize the lien, and condemned the cargo as enemy property. Dr. Lushington referred to The San Jox,' Indiana and Cargo 2 Gallison, '267, and subscribed to
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what was there said by Mr. Justice Story, but thought his remarks inapplicable to the case in hand.
The case referred to was affirmed by this court. 1 Wheat. 208. Goods were shipped by Dyson, Brothers and Company of Liverpool on board a neutral ship bound to Rio de Janeiro, which was captured and brought into the United States for adjudication. The invoice was headed: "Consigned to Messrs. Dyson, Brothers, and Finnic, by order and for account of J. Lizaur." In a let- ter accompanying the bill of lading and invoice, Dyson, Brothers and Company wrote Dyson, Brothers, and Finnic: "For Mr. Lizaur we open an account in our books here, and debit him, etc. We cannot yet ascertain the proceeds of his hides, etc., but find his order for goods will far exceed the amount of these shipments, therefore we con- sign the whole to you, that you may come to a proper understanding with him." The two houses consisted of the same persons. It was held that the goods were, dur- ing their transit, the property and at the risk of the enemy shippers, and therefore subject to condemnation. Lizaur's claim was rejected, although Dyson, Brothers and Com- pany had the proceeds of his hides in their hands.
The Lynchburg, Blatchford's Prize Casete, 57, and The Amy Warwick, 2 Sprague, 150, are cited on behalf of claimants, but, as we read them, they do not sustain their contention. The schooner Lynchburg with a cargo of coffee had been libelled during the civil war as enemy property, and also for an attempt to violate blockade. Brown Brothers and Company, loyal citizens, intervened as claimants of 2045 bags of coffee, part of the cargo. The}' alleged that they had made an advance of credit to Max- well, Wright and Company, neutral merchants of Rio de Janeiro, for the purchase of the coffee, under which credit Maxwell, Wright and Company drew drafts on Brown Brothers and Company for £6000, on the condition ex- pressed therein that the coffee purchased by claimants should be held until their advances were reimbursed thereon. It was admitted by the United States attorney that 1541 bag* of the coffee should be released to Brown Brothers and Company, and that was done. As to the remaining 504 hags embraced in the general claim of Brown Brothers and Company, in which Wortham and Company of Virginia, assorted an interest, it was held by the court that as no proof was given by claimants that the value of the 1541 2056—04 11
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bags restored to them was not equivalent to the sum of their advances used in purchasing the whole 1J045 hags, , the reasonable presumption was that the restoration satis- fied the entire advance. And Judge Betts said: "The claim to an absolute ownership of the 2045 bags was placed before the court in the oral argument, and in the written points filed in the cause by the counsel for the claimants, upon the proposition of law, that a bill of lading, trans- mitted to them by the shipper to cover advances, passed to them the title to the cargo purchased therewith. If this doctrine be correct as to mere commercial transactions, it does not prevail in prize courts, in derogation of the rights of captors, when the interest of the claimants is only a debt, although supported by liens equitable and tacit, or legal and positive, even of the character of bottomry bonds, when not signified on the ship's papers at the time of her capture. The Frances, 8 Cranch, 418; The Tobago, 5 C. Rob. 218; The Marianna, 6 C. Rob. 24. Here, the vessel was an enemy bottom; the bill of lading consigned the cargo to order or assigns, at large, at an enemy's port, and, on the surrender of the principal portion of the consignment to the claimants, no other evidence was given in establishing the facts that the remainder of the shipment was owned by them, or yet stood under hypothecation to them on the bill of lading." The 504 bags were condemned, " because, by intendment of law, that portion belonged to Wort-ham and Company, and was not shown by the proofs to be exempt from capture as prize."
The Amy War- In TJie Amy Warwick, J. L. Phipps and Company of New York, British subjects, purchased 4700 bags of cof- fee, part of the cargo of an enemy vessel, which they had purchased through Phipps Brothers and Co., their firm at Rio, with funds of an enemy firm, and £2000 of their own money by draft on Phipps and Co., their firm at Liverpool. They took from the master a bill of lading which stated that Phipps Brothers and Company were the shippers of this coffee, and that it was to be deliv- ered to their order. Indorsed on the bill of lading was a statement declaring that a portion of the coffee was the property of British subjects. Phipps Brothers and Com- pany indorsed the bill of lading over to J. L. Phipps and Co. They also delivered to the master another part of the bill of lading, an invoice of the coffee, and a letter of advice to be conveyed to the firm in New York. The let- ter stated that the coffee was shipped for account of mer-
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chants at Richmond, Virginia, and that a bill of lading would have been sent to them had it not been deemed advisable by reason of the unsettled state of political affairs, for the better protection of the property, and to prevent privateers from molesting the vessel, to have it certified on the bill of lading that a portion of the coffee was British property, and that this referred to the portion against which they had valued on Liverpool. It was held that the facts led plainly to the conclusion that claimants ought to be repaid the amount they had expended from their own funds in the purchase of the coffee and that the residue of the proceeds should be condemned. It was said that as the coffee was purchased at Rio by the claim- ants, and shipped by them on board the vessel under a bill of lading by which the master was bound to deliver it to their order, and they ordered it to be delivered to J. L. Phipps and Co., that is, to themselves, they were the legal owners of the property, and could hardly be said to have a lien upon it. Their real character was that of trustees holding the legal title and possession with a right of retention until their advances should be paid. The doctrine of liens was considered, and The Frances, The Tobago, The Marianna and other cases examined. Judge Prize courts
0 » . . . , ., , , , . must look be-
oprague was or opinion that the rule in such cases ought yond legal title not to be that which stops at the mere legal title, but that flciai interest. which ascertains and deals with the real beneficial interest, "for, if the court were never to look beyond the legal title, the result would be that when such title is held by an enemy in trust for a neutral, the latter loses his whole property; but, when the legal title is in a neutral in trust for an enemy, the property is restored to the neutral, not for his benefit, but merel}r as a conduit through which it is to be conveyed to the enemy. To refuse to look beyond the legal title is to close our eyes for the benefit of the enemy. It would enable him always to protect his prop- erty by simply putting it in the name of a neutral trustee."
W<> agree with counsel for the United States that not- Proof of neu withstanding the indorsement of Gibernau and Company cient in this. use. on the bills of lading, the proof of a neutral title was not sufficient. Even if when the neutral interest is adequately proven to be lona Jide, the claim of the captors ma}^ be required to 3'ield, yet in this case the belligerent right overrides the neutral claim, which must be regarded merely as a debt, and the assignment as a cover to an enemy interest.
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Something was said in argument in relation to the char- acter of the cargo. It is true that by the modern law of nations, provisions, while not generally deemed contraband, may become so, although belonging to a neutral, on account of the particular situation of the war, or on account of their destination, as, if destined for military use, for the armj' or navy of the enemy, or ports of naval or military equipment. The Benito Estenger, 176 U. S. 568; The Panama, 176 U. S. 535; The Pderhoff, 5 Wall. 28; Gro- tius De Jure Belli et Pacis, lib. Ill, c. 1, § 5; Hall, § 236.
Doubtless, in this instance, the concentration and accu- mulation of provisions at Havana might fairly be considered a necessary part of Spanish military operations, imminente bello, and these particular provisions were perhaps espe- cially appropriate for Spanish military use; but while these features may well enough be adverted to in connection with all the other facts and circumstances, we do not place our decision upon them.
judgment. we are of opinion that a valid transfer of title to this enemy property to claimants was not satisfactorily made out, and that
The decree below must be revised, and a dewee of condemnation directed to be entered, and it is so ordered.
MR. JUSTICE SHIRAS, with whom concurred MR. JUS- TICE BREWER, dissenting.
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INTERNATIONAL BOUNDARY QUESTIONS. TITLE BY PRESCRIPTION.
Article IV of the Treaty of Arbitration between Great Britain and Venezuela, which was ratified on June 14, 1897, contains the following rules, which are remarkable for limiting- the necessary occupation in country claimed by one sovereignty or the other to a period of fifty years:
In deciding the matters submitted the arbitrators shall ascertain all the facts which they deem necessary to a decision of the controversy and shall be governed by the following rules, which are agreed upon by the high con- tracting parties as rules to be taken as applicable to the case, and by such principles of international law not incon- sistent therewith as the arbitrators shall determine to be applicable to the case.
RULES.
(a) Adverse holding or prescription during a period of fifty years shall make a good title. The arbitrators may deem exclusive political control of a district, as well as actual settlement thereof, sufficient to constitute adverse holding or to make title by prescription.
(b) The arbitrators may recognize and give effect to rights and claims resting on any other ground whatever, valid according to international law, and on any principles of international law which the arbitrators may deem to be applicable to the case and which are not in contravention of the foregoing rule.
(c) In determining the boundary line, if territory of one part\' be found b\r the tribunal to have been at the date of this treaty in the occupation of the subjects or citizens of the other party, such effect shall be given to such occupa- tion as reason, justice, the principles of international law, and the equities of the case shall, in the opinion of the tribunal, require.
These rules had been embodied in a proposed treaty of arbitration which was agreed upon late in 189G by the American Secretary of State, Mr. Gluey, and the British Ambassador, Sir Julian Pauncefote, for the settlement of the Venezuelan boundary dis-
166
pute. They were not altogether satisfactory to Venezuela and were only accepted by her after considerable hesitation.
THE JURISDICTION OF THE UNITED STATES OVER THE BERING SEA.
(Fur Seal Arbitration: Proceedings of the Tribunal of Arbitration, vol. 1, p. 75.)
The following is the principal part of the award of the Tribunal of Arbitration, made August 15, 1893, under the treaty of February 29, 1892, be- tween the United States and Great Britain: Preamble of Whereas bv a treaty between the United States of
award. <* J
America and Great Britain, signed at Washington, Feb- ruary 29, 1892, the ratifications of which by the Govern- ments of the two countries were exchanged at London on May the 7th, 1892, it was, amongst other things, agreed and concluded that the questions which had arisen between the Government of the United States of America and the Government of Her Britannic Majesty, concerning the jurisdictionai iurisdictional rights of the United States in the waters of
rights of United J . , o , , ,, ,. , ,,
states and pres- Bering's Sea, and concerning also the preservation of the seals in Bering f ur-seal in or habitually resorting to the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-seals in or habitually resorting to the said waters, should be submitted to a Tribunal of Arbitration, to be composed of seven Arbitrators, who should be appointed in the following manner — that is to say: Two should be named by the President of the United States; two should be named by Her Britannic Majesty; His Excellency the President of the French Republic should be jointly requested by the High Contracting Par- ties to name one; His Majesty the King of Italy should be so requested to name one; His Majesty the King of Sweden and Norway should be so requested to name one; the seven Arbitrators to be so named should be jurists of distin- guished reputation in their respective countries, and the selecting Powers should be requested to choose, if possible, jurists who are acquainted with the English language;
And whereas it was further agreed by Article II of the said Treaty that the Arbitrators should meet at Paris
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within twenty davs after the deliver}* of the Counter-Cases mentioned in Article IV, and should proceed impartially and carefully to examine and decide the questions which had been or should be laid before them as in the said Treaty provided on the part of the Governments of the United States and of Her Britannic Majesty, respectively, and that all questions considered by the Tribunal, includ- ing the final decision, should be determined by a majority of the Arbitrators;
And whereas by Article VI of said Treaty, it was fur- ther provided as follows:
In deciding the matters submitted to the said Arbitrators, it is agreed Points for sepa- that the following five points shall be submitted to them, in order rate decision- that their award shall embrace a distinct decision upon each of said five points, to wit:
1. What exclusive jurisdiction in the sea now known as the Bering's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?
2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?
3. Was the body of water now known as the Bering's Sea included in the phrase Pacific Ocean, as used in the Treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering's Sea were held and exclusively exercised by Russia after said Treaty?
4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering's Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th of March, 1867, pass unimpaired to the United States under that Treaty?
5. Has the United States any right, and if so, what right of protec- tion or property in the fur-seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?
And whereas, by Article VII of the said Treaty, it was further agreed as follows:
If the determination of the foregoing questions as to the exclusive As to concur- jurisdiction of the United States shall leave the subject in such posi- tion that the concurrence of Great Britain is necessary to the establish- ment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what concurrent Regulations, outside the juris- dictional limits of the respective Governments, are necessary, and over what waters such regulations should extend;
The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other Powers to such Regulations;
And whereas, by Article VIII of the said Treaty, after reciting that the High Contracting Parties had found them- selves unable to agree upon a reference which should include the question of the liability of each for the injuries
168
alleged to hav7e been sustained by the other, or by its citizens, in connection with the claims presented and urged by it, and that "they were solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions," the High Contracting Parties agreed that "either of them might submit to the Arbitrators any question of fact in- volved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation;" triburna°innel °f And whereas the President of the United States of America named the Honorable John M. Harlan, Justice of the Supreme Court of the United States, and the Hon- orable John T. Morgan, Senator of the United States, to be two of the said Arbitrators, and Her Britannic Majesty named the Right Honorable Lord Hannen and the Honor- able Sir John Thompson, minister of justice and attorney- general for Canada, to be two of the said Arbitrators, and His Excellency the President of the French Republic named the Baron de Courcel, Senator, Ambassador of France, to be one of the said Arbitrators, and His Majesty the King of Italy named the Marquis Emilio Visconti Venosta, former Minister of Foreign Affairs and Senator of the Kingdom of Italy, to be one of the said Arbitrators, and His Majesty the King of Sweden and Norway named Mr. Gregers Gram, minister of state, to be one of the said Arbitrators;
And whereas We, the said Arbitrators, so named and appointed, having taken upon ourselves the burden of the said Arbitration, and having duly met at Paris, pro- ceeded impartially and carefully to examine and decide all the questions submitted to us, the said Arbitrators, under the said Treaty, or laid before us as provided in. the said Treaty on the part of the Governments of Her Britannic Majesty and the United States, respectively;
Award. Now We, the said Arbitrators, having impartially and
carefully examined the said questions, do in like manner by this our Award decide and determine the said questions in manner following, that is to say, we decide and deter- mine as to the five, points mentioned in Article VI as to which our Award is to embrace a distinct decision upon each of them:
As to the first of the said five points, We, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers
169
First point.
Gram, being a majority of the said Arbitrators, do decide and determine as follows:
By the Ukase of 1821 Russia claimed jurisdiction in the sea now known as the Bering's Sea to the extent of 100 Italian miles from the coasts and islands belonging to her, but, in the course of the negotiations which led to the con- clusion of the Treaties of 1824 with the United States and of 1825 with Great Britain, Russia admitted that her jur- isdiction in the said sea should be restricted to the reach of cannon shot from shore, and it appears that from that time up to the time of the cession of Alaska to the United States Russia never asserted in fact or exercised any ex- clusive jurisdiction in Bering's Sea or any exclusive rights in the seal fisheries therein beyond the ordinary limit of territorial waters.
As to the second of the said five points, We, the said second point. Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Veriosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine that Great Britain did not recog- nize or concede any claim, upon the part of Russia, to ex- clusive jurisdiction as to the seal fisheries in Bering Sea, outside of ordinary territorial waters.
As to the third of the said five points, as to so much Third point. thereof as requires us to decide whether the body of water now known as the Bering Sea was included in the phrase "Pacific Ocean" as used in the Treaty of 1825, between Great Britain and Russia, We, the said Arbitrators, do unanimously decide and determine that the body of water now known as the Bering Sea was included in the phrase " Pacific Ocean " as used in the said Treaty.
And as to so much of the said third point as requires us to decide what rights, if any, in the Bering Sea were held and exclusively exercised by Russia after the said Treaty of 1825, We, the said Baron de Courcel, Mr. Justice Har- lan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a majority of the said Arbitrators, do decide and determine that no exclusive rights of jurisdiction in Bering Sea and no exclusive rights as to the seal fisheries therein were held or exercised by Russia outside of ordinary territorial waters after the Treaty of 1825.
As to the fourth of the said five points, We, the said Arbitrators, do unanimously decide and determine that all the rights of Russia as to jurisdiction and as to the seal
Fourth point.
170
fisheries in Bering Sea, east of the water boundary, in the Treaty between the United States and Russia of the 30th of March, 1867, did pass unimpaired to the United States under the said Treaty.
Fifth point. As to the fifth of said five points, We, the said Baron de Courcel, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers Gram, being a major- ity of the said Arbitrators, do decide and determine that the United States has not any right of protection or prop- erty in the fur seals frequenting the islands of the United States in Bering Sea, when such seals are found outside the ordinary three-mile limit.
R^ui°tionsre(?e- ^nc^ wnereas the aforesaid determination of the fore- t>ev Tribunaiup°n S°*n£ questions as to the exclusive jurisdiction of the United States mentioned in Article VI leaves the subject in such a position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in or habitually resorting to the Bering Sea, the Tribunal having decided by a majority as to each Article of the following Regulations, We, the said Baron de Courcel, Lord Hannen, Marquis Visconti Venosta, and Mr. Gregers Gram, assenting to the whole of the nine Articles of the following Regulations, and being a majority of the said Arbitrators, do decide and determine, in the mode pro- vided by the Treaty, that the following concurrent Regu- lations outside the jurisdictional limits of the respective Governments are necessary and that they should extend over the waters hereinafter mentioned; that is to say:
ARTICLE 1.
The Governments of the United States and of Great Britain shall forbid their citizens and subjects respectively to kill, capture, or pursue, at any time and in any manner whatever, the animals commonly called fur seals, within a zone of sixty miles around the Pribilof Islands, inclusive of the territorial waters.
The miles mentioned in the preceding paragraph are geographical miles of sixty to a degree of latitude.
ARTICLE 2.
The two Governments shall forbid their citizens and subjects respectively to kill, capture, or pursue, in any manner whatever, during the season extending, each year, from the 1st of May to the 31st of Juhr, both inclusive,
171 the fur seals on the high sea, in the part of the Pacific concurrent
„ - . .fr 0 , . . . . , Regulations de-
Ocean, inclusive or the -Bering oea, which is situated to the temnned upon north of the 35th degree of North latitude, and eastward of the 180th degree of longitude from Greenwich till it strikes the water boundary described in Article 1 of the Treaty of 1867 between the United States and Russia, and following that line up to Bering Straits.
ARTICLE 3.
During the period of time and in the waters in which the fur seal fishing is allowed, only sailing vessels shall be permitted to carry on or take part in fur-seal fishing operations. They will, however, be at liberty to avail themselves of the use of such canoes or undecked boats, propelled by paddles, oars, or sails, as are in common use as fishing boats.
ARTICLE 4.
Each sailing vessel authorized to fish for fur seals must be provided with a special license issued for that purpose by its Government and shall be required to carry a distin- guishing flag to be prescribed by its Government.
ARTICLE 5.
The masters of the vessels engaged in fur seal fishing shall enter accurately in their official log book the date and place of each fur seal fishing operation, and also the number and sex of the seals captured upon each day. These entries shall be communicated by each of the two Governments to the other at the end of each fishing season.
ARTICLE 6.
The use of nets, firearms, and explosives shall be for- bidden in the fur seal fishing. This restriction shall not apply to shotguns when such fishing takes place outside of Bering's Sea, during the season when it may be law- fully carried on.
ARTICLE 7.
The two Governments shall take measures to control the fitness of the men authorized to engage in fur seal fishing; these men shall have been proved fit to handle with sufficient skill the weapons by means of which this fishing may be carried on.
172 ARTICLE 8.
Rfguinationsrede- The regulations contained in the preceding articles shall bvTribeunaiup°n not aPPbT to Indians dwelling on the coast of the territory of the United States or of Great Britain and carrying on fur seal fishing in canoes or undecked boats not trans- ported by or used in connection with other vessels and propelled wholly by paddles, oars, or sails, and manned by not more than fivre persons each, in the way hitherto practiced by the Indians, provided such Indians are not in the employment of other persons, and provided that, when so hunting in canoes or undecked boats, they shall not hunt fur seals outside of territorial waters under contract for the delivery of the skins to any person.
This exception shall not be construed to affect the mu- nicipal law of either country, nor shall it extend to the waters of Bering Sea or the waters of the Aleutian Passes. Nothing herein contained is intended to interfere with the employment of Indians as hunters or otherwise in connection with fur sealing vessels as heretofore.
ARTICLE 9.
The concurrent regulations hereby determined with a view to the protection and preservation of the fur seals shall remain in force until they have been, in whole or in part, abolished or modified by common agreement between the Governments of the United States and of Great Britain.
The said concurrent regulations shall be submitted every five years to a new examination, so as to enable both inter- ested Governments to consider whether, in the light of past experience, there is occasion for any modification thereof.
* * * * * * *
And whereas each and every question which has been considered by the Tribunal has been determined by a majority of all the Arbitrators;
Now, We, Baron de Courcel, Lord Hannen, Mr. Justice Harlan, Sir John Thompson, Senator Morgan, the Mar- quis Visconti Venosta, and Mr. Gregers Gram, the respec- tive minorities not withdrawing their votes, do declare this to be the final Decision and Award in writing of this Tribunal in accordance with the Treaty.
Made in duplicate at Paris and signed by us the fifteenth day of August, in the year 1893.
173
And We do certify this English Version thereof to be true and accurate.
ALPH. DE COURCEL.
JOHN M. HARLAN.
JOHN T. MORGAN.
HANNEN.
JNO. S. D. THOMPSON.
VISCONTI VENOSTA.
G. GRAM.
RIGHTS OF CITIZENS OF THE UNITED STATES IN FOREIGN COUNTRIES.
ILLEGAL IMPRISONMENT.
(Opinions of Attorney-General U. 8* Vol. XXII, p. 32, etc.)
The following extract is from an opinion of the Attorney-General of the United States, in which it is held that the imprisonment of a United States citizen by a foreign official because of alleged dis- respect of that official's authority, and without judi- cial process or allegation of a violation of lawj is such an injury as to render that official's govern- ment liable in damages:
On January 4, 1886, a citizen of the United States, Mr. Thomas J. Culliton, the treasurer of the dredging com- pany then doing work on the Isthmus of Panama, was arrested and imprisoned by the acting prefect of Colon without judicial process and without any allegation of a violation of law, but simply because Mr. Culliton's con- duct was alleged by the prefect to be in disrespect of his authority. The United States consul at Colon and Admiral Jouett, who happened to be in port at that time, inter- vened, and Culliton was released by the order of the pre- fect after live hours' detention in the common jail.
The imprisonment of a citizen of the United States by an officer of a foreign government, without judicial proc- <^s. or allegation of a violation of law, but because of an alleged disrespect of such official's authority, is such an injury as to render such government liable in damages.
The loss of time, the absence from business, the personal humiliation, the bodily and mental suffering, resulting
174
from wrongful arrest and imprisonment, are grounds for compensatory damages. The precise amount required to make the wronged citizen whole is determined in a suit of law by a jury, and in this case must be fixed through nego- tiations.
EXTRATERRITORIAL RIGHTS IN CHINA. AS TO MUNICIPALITY OF SHANGHAI.
The following1 is a portion of a letter from Secre- tary Bayard to Mr. Denby, minister to China, dated March 7, 1887,a concerning the municipal ordinances of Shanghai, and the authority of the consul-general at that place to enforce them :
I have received your No. 240 of the 12th of November
last, touching the projected revision of the municipal
regulations and by-laws of Shanghai, and offering certain
pertinent points for the consideration of the Department.
shanghai mu- Jt appears that by the municipal charter of Shanghai
nicipal charter. »
every foreigner owning land of the value of at least 500 taels, or occupying a house of an assessed rental value of not less than 250 taels, is a member of what is called the "municipal body," and is entitled to vote at all municipal elections. The "municipal body" elect at stated times a municipal council, consisting of not more than nine mem- bers, who have the power to make regulations for the government of the municipality, subject to the approval of the consuls and foreign ministers, or a majority of them, and of the ratepayers at a special meeting. Proposed re- In the proposed revision it is insisted by the munici-
vision of munici- ... , , ,-, •, «, -,
pai regulations, pality, in respect to any by-law that may hereafter be passed, that "any such additional or substituted by-law, or alteration or repeal of a by-law, shall be binding when approved by the treaty consuls and the intendant of cir- cuit, or by a majority of them; but the representatives of the treaty powers may, at any time within six months of the date of such approval, annul any such additional or substituted by-law, or alteration or repeal of by-law."
Your opinion as to this proposed ordinance is in entire accord with that of the Department, that it would reverse
« Wharton's International Law Digest, second edition, vol. 3, Ap- pendix, p. 852.
175
the proper order of things and be inexpedient to put in force, without the approval of the foreign ministers, a bv-law which they might, in the exercise of an acknowl- edged power, subsequently disapprove and disallow. This would be in fact the substitution of a power of annulment for the power of veto which the foreign ministers now possess.
The question which you suggest as to the authority of the consul-sreneral at Shanghai to enforce the ordinances enforce
' t f pal ordinances.
of the municipality against citizens of the United States is not without difficulty. Under section 4086 of the Re- vised Statutes of the United States, consuls of the United States in China are empowered to exercise criminal and civil jurisdiction in conformity with the laws of the United States. It is provided, however, that when those laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies the com- mon law and the law of equity and admiralty shall be extended to the persons within the consul's jurisdiction; and iF neither the common law nor the law of equity or under certain admiralty, nor the statutes of the United States, furnish appropriate remedies the ministers in the countries, respec- r tively, to which the statute applies shall, by decrees and jaw.th< regulations which shall have the force of law, supply such defects and deficiencies.
The last clause, in respect to decrees and regulations, has been construed by the Department to confer upon the ministers in question the power to regulate the course of procedure and the forms of judicial remedies rather than any general legislative power for the definition of offenses and the imposition of penalties for their commission. It is true that opinion has been divided on this point. Mr. Attorney-General Gushing held that the power given to the commissioner of the United States in China to make " decrees and regulations" which should have the force of law gave him the power to legislate in certain respects for citizens of the United States in China, and "to provide for many cases of criminality which neither Federal statutes nor the common law would cover/' (7 Op., 504, 505.) The disposition, however, of this Department has been to restrict the legislative power of the minister to the regu- lation of forms and course of judicial procedure, it not being regarded as desirable or proper to authorize the exercise of so great a power, while it was so much in doubt, as that of criminal legislation.
176 Grounds for But the ordinances of the municipality of Shanghai,
Shanghai munic- ,,,,•, -, j: J.U • ^ v e.
ipai ordinances, although dependent tor their operation as to citizens ot the United States upon the approval of the minister of this Government in China, are conceived to present in one aspect a different question from that of the power of the minister of the United States as to criminal legis.ation. The municipality of Shanghai is understood to have been organized by the voluntary action of the foreign residents of certain nationalities, or such of those residents as were owners or renters of land, for the purpose of exercising such local powers for the preservation of the order and morals of the community as are usually enjoyed by munic- ipal bodies. In the United States, where government is reduced to a legal s}rstem, these powers of local police rest on charters granted by the supreme legislative authority of the State; but it is not difficult to conceive of a case in which a community outside of any general system of law might organize a government and adopt rules and regula- tions which would be recognized as valid on the ground of the right of self-preservation, which is inherent in people everywhere.
In this light ma}7 be regarded the municipal ordinances of Shanghai. The foreign settlement not being subject to the laws of China, and the legal systems of the respective foreign powers represented there being not only dissimilar inter se, but insufficient to meet the local needs, it became necessary for the local residents interested in the preser- vation of peace and order to supply the deficiency.
American citizens residing in Shanghai enjoy, in com- mon with other persons composing the foreign settlement, all the rights, privileges, arid protection which the munici- pal government affords; and as they go there voluntarily, and presumptively for the advancement of their personal interests, they may reasonably be held to observe such police regulations as are not inconsistent with their rights under the laws of the United States. It is true that this reasoning is not Conclusive as to the strict legal authority of the consul-general of the United States to enforce such regulations; but, taken in connection with the fact that at present American citizens in Shanghai are not subject to any judicial control except that of the consul-general of the United States, it affords a basis upon which his en- forcement of the municipal regulations may be justified, risdfctlon ol con- ^ 'ls important to observe that the jurisdiction of con- suls in china. su]s Of the United States in China is very extensive, in-
177
eluding not only the administration of the laws of the United States, and the law of equit3r and admiralty, but also the common law. The consular courts have, there- fore, what the courts of the United States generally have not — common-law jurisdiction in criminal cases. It is true that this jurisdiction is difficult, indeed incapable, of exact definition, but it implies the power to enforce rules which are not to be found on the statute-book of the United States, and which can be ascertained only by the applica- tion of the general principles of the common law to special cases and condition. In respect to matters of local police, a fair measure and definition of the law may be found in the regulations adopted by the municipality in aid of and supplementary to the general juridical systems of the for- eign powers. Such a process, while maintaining the peace and order of the community, tends to consolidate the local administration of law.
The Department is, however, of opinion that all difficul- ties would be removed if the treaty powers would adhere to the plan suggested in your dispatch of organizing a municipal court to administer the regulations of the mu- nicipal body. This course would be advantageous, both to the municipality and to the treaty powers. It would relieve the consular representatives of the latter from the performance of an embarrassing duty, and would secure a uniform and equal administration of the municipal laws.
COOPERATION OF CIVILIZED POWERS IN NON- CHRISTIAN AND SEMICIVILIZED COUNTRIES.
EXTRACTS FROM BRITISH ADMIRALTY STATION ORDERS FOR CHINA.
DEPARTMENT OF STATE, Washington, December 19, 189 1+. The Honorable The SECRETARY OF THE NAVY.
SIR: 1 have the honor to inclose for your information a copy of a note of the 14th instant from the 'British ambas- sador at this capital, transmitting a copy of the instruc- tions by which Her Majesty's naval commanders on the Chinese Station for the protection of Europeans at the treat}r ports will be governed. I have the honor to be. Sir,
Your obedient servant, W. Q. GRESHAM.
2056—04 12
178
WASHINGTON, December 14, 1894.
SIR: With reference to Mr. Goschen's note of October 27 respecting joint action by the naval commanders on the China Station for the protection of Europeans at the treaty ports, I have the honor to forward to you here- with, at the request of the Earl of Kimberly, a copy of articles 396, 397, 405, 406, and 407 of the station orders for China, which are supplied to naval commanders of Her Majesty's ships.
The lords commissioners of the Amiralty propose, I am informed, to adhere to these instructions, as any further orders would, in their opinion fetter the discretion which in present circumstances it is desirable to give to the British naval commander-in-chief in China in settling with his colleagues the details of the arrangement which may be necessary for carrying out the object in view. 1 have the honor, etc.,
JULIAN PAUNCEFOTE.
The HON. W. Q. GRESHAM.
ARTICLE 396.
AS to landing Armed parties are not to be landed from Her Majesty's ships to escort consuls proceeding into the interior of the country, except under circumstances of pressing emergency.
2. They are not to be landed during a disturbance, or apprehended disturbance, unless at the written requisi- tion of the consular officer at the port, who is to state explicitly in it:
(1) That the lives, or property, of British subjects are actually in danger from violence, which can not otherwise be controlled (vide article 421, Admiralty Instructions.)
(2) That the local authorities have declined, or are unable to afford the necessary protection.
(3) The number, nature, and arms of the force or mob against which the armed party is required to be landed, also the nature of the locality, or any other information that may enable officers command- ing to judge whether the resources at their disposal are sufficient to meet the exigencies of the service required. (Observing that as a rule it is highly unadvisable to risk a reverse by landing a weak party, or allowing them to be entangled amongst the narrow streets, which are usually to be found in most of the towns out here. )
3. The party landed, however small, is to be commanded by a commissioned officer, and is to be kept intact, unless there is a second commissioned officer to command the
179
detached force. It is always to be remembered that "concentration means strength" — "dispersion weak- ness," with liability of being defeated in detail.
4. The officer commanding a landing party is invariably to be furnished with written orders laying down the gen- eral principles under which he is to act, and as far as possible the details.
5. The lords commissioners of the Admiralty will not sanction any departure from the rule laid down prohibit- ing naval officers from undertaking or carrying on opera- tions at a distance from their ships, and whatever ope- ration they may engage in, jointly with Chinese forces, must always be carried on under the limitations of civi- lized and Christian warfare.
ARTICLE 397.
The special purposes for which Her Majesty's ships of Off a™iathebem- war are stationed in the ports of China and employed on^JJ16"*^ the coasts are to protect the floating commerce of British ^tere11 chinese subjects against the piratical attacks in Chinese waters, to support Her Majesty's consuls in maintaining order and discipline among the crews of British vessels in the re- spective ports, and, in cases of great emergency, to protect the lives and properties of British subjects if placed in peril by wanton attacks directed against them, either on the part of local authorities or by an uncontrolled popu- lar movement.
2. As regards this last point, it must constantly be borne in mind that the interference of naval force, either on the representation of Her Majesty's consuls or on the part of naval officers acting on their own estimation of facts be- • fore them, will alone receive the subsequent approval of Her Majesty's Gbvernment when it is clearly shown that, without such interference, the lives and properties of British subjects would in all probability have been sacri- ficed; and even in such a case Her Majesty's Government will expect to learn that the alternative of receiving them
on board ship, and so extricating them from threatened danger, was not available.
3. Beyond this the circumstances of the case must be of a very peculiar nature which would be held by Her Majesty's Government to justify a recourse to force.
4. Her Majesty's Government can not leave it with Her Majesty's consuls or naval officers to determine for them- selves what redress or reparation for wrong done to Brit-
180
ish subjects is due, or by what means it should be enforced. They can not allow them to determine whether coercion is to be applied by blockade, by reprisals, by landing armed parties, or by acts of even a more hostile charac- ter. All such proceedings bear more or less the character of acts of war, and Her Majesty's Government can not delegate to Her Majesty's servants in foreign countries the power of involving their own country in war.
ARTICLE 405.
cooperation. There is no objection to officers complying with requisi- tions from the Chinese authorities for cooperation in ob- taining reparation for British subjects for damage to their persons or properties, with the clear understanding that the operation is merely directed to redress the wrong done to British subjects, and not to the general assertion of Chinese authority over any class of persons who may, for whatever reason, be obnoxious to the local government.
Her Majesty's ministers have been instructed that "whenever British subjects have been plundered, or are likely to be exposed to maltreatment, or their property to be endangered, Her Majesty's consul in the district shall apply to the Chinese authorities for immediate protection; or, if the injury has been consummated before such pro- tection has been afforded, for redress of wrongs sustained and protection against their renewal; and in the event of those authorities pleading inability to afford it with the means at their disposal, the consul shall offer the coopera- tion of Her Majesty's naval forces as far as they may be available for the special purpose and occasion, and, in case * of necessity, may even propose that Her Majest}r's naval forces should act alone if accompanied by a Chinese man- darin, whose presence would afford imperial sanction to an enterprise which, without it, would be inconsistent with the principles on which Her Majesty desires that the rela- tions between the two countries should be conducted."
ARTICLE 406.
The particular attention of officers in command is di- rected to the following extract from a dispatch of Sir Rutherford Alcock, dated the 15th of March, 1869, to the Commander-in-Chief:
Naval force to it ig obviously the desire of Her Majesty's Government to recognize act alone only in »
case of imminent the supreme authority of the Government at Peking over the provm-
danger. cjaj authorities and to discountenance all local efforts to arrive at the
181
settlement of differences by any measures of coercion or pressure brought to bear against the latter. They count upon the central Gov- ernment exercising the necessary power for the redress of local griev- ances, and disapprove all actions of the consuls, on the spot, beyond the due representation of the causes of complaint. If they fail in obtaining redress by such means, their appeal then lies to Her Maj- esty's minister at Peking, and in no case to the naval force, except for the immediate protection of lives and property in imminent danger, and in default of that protection which the Chinese local authorities are bound by treaty to supply.
It is only under such circumstances, I conclude, that Her Majesty's Government would sanction any appeal on the part of Her Majesty's consuls for aid from the naval commanders, or approve of assistance being rendered.
ARTICLE 407.
The foregoing articles, Nos. 396, 397, 405, and 406, con- taining, as they do, explicit rules approved by Her Maj- esty's Government, are in a general way amply sufficient for the purpose for which they were framed, but in view of the apparently organized character of the outrages recently perpetrated in the Yang-tsze Valley at Wuhu, Wusueh, and other places, the following observations may be useful to officers suddenly brought face to face with an emergency of this nature.
2. It is the obvious duty of the Chinese Government to maintain order in the country, and the necessity for com- plying with this obligation can not be too strongly urged upon the local authorities at all ports where British sub- jects are established.
3. The treaty ports at which Her Majesty's consuls General pro-
., -ir. • i • 11 cedure in case of
reside necessarily require the first consideration, and the threatened out-
breaks.
main object to be kept in view is that Her Majesty's con- suls should employ all their influence in causing the taotai, or other local official in command at a place where disturb- ances are apprehended, to make proper arrangements to preserve order, and to prevent outrages being committed against the persons or property of British subjects, and in the event of such officials declaring themselves unable to preserve order, to secure their full authority and per- sonal cooperation in any action to be taken by the crews of Her Majesty's ships. .
4. The mode of procedure required from consuls in making requisition for armed assistance upon the captains of Her Majesty's ships is laid down in article 396.
5. Officers commanding Her Majesty's ships stationed for the protection of British residents at treaty ports are to take the earliest opportunity after their arrival to study
182 General pro- the features of the concessions or settlements, with a view
CGduro in C£isc of
threatened out- to arriving at a definite plan of action, should action unfortunately become unavoidable, and in concert with Her Majesty's consul should, before the occasion arises if possible, settle upon a course of procedure to be fol- lowed in case of necessity by all British subjects in the neighborhood.
6. The first consideration is necessarily the safety of women and children, and it is obvious that these should not be left in exposed places, especially at night, when any danger from the Chinese populace is apprehended.
7. In all the treaty ports, and in some others, are hulks lying off the bunds, and to these hulks the women and children should remove in good time before the occurrence of an outbreak. An armed boat's crew, or a very small number of men, could secure the safety of the people in these vessels on the connection with the shore being broken.
8. It is clear that small detachments of men can not be sent out to distant places, or to the back streets in Chinese towns, and missionaries and others in such localities should remove to the port before they have to risk their lives as well as the property which it may be their object to stand by.
9. The loss of property wantonly destined or plun- dered by Chinese mobs is recoverable by indemnity from the Chinese Government; it is needless to say the loss of life is not.
10. The consideration second in importance, therefore, should be the timely withdrawal of people from outlying exposed positions to some central raiding point on the water front, to be decided on according to strategic con- sideration— this would no doubt be in most cases the British consulate.
11. Third, the able-bodied men in the settlement should be required by the consul to organize themselves for the protection of the women and children, or, if in sufficient numbers, for general defense, and in this all possible as- sistance should be given them.
12. A rallying point — which should always be, if pos- sible, covered by the ship of war — being decided upon, commanding officers would then be strictly right in giving all possible aid in its defense, as it is obvious that Her Majesty's consulates, or the dwellings of Her Majesty's subjects, must not be attacked by ruffianly mobs and the flag insulted under the guns of Her Majesty's ships.
183
13. Commanding officers will understand that while the General pro- i L u u ji -£ u -i £ u eedore in case of last resort should be to force, it unhappily force becomes threatened out-
breaks
unavoidable, their action should be sharp and decisive, and a serious lesson should be given; but it is only requisite to consider the number of places in China where British subjects and other foreigners are more or less at the mere}' of the Chinese populace to enable them to fully realize the necessity of forbearance within all reasonable limits in dealing with local disturbances, and the necessity for secur- ing, if possible, the attendance of the local mandarins, should they be compelled to fire on a mob.
14. If missionaries or other persons, in the face of the threatened outbreak, find it necessary to close their estab- lishments, the consuls will no doubt notify the fact to the local authorities and request them to place guards upon the premises and their official seal upon the doors.
15. During an}r extraordinary movement of the Chinese populace which appears to be directed against foreigners generally, humanity as well as a common interest demands that help should be freely extended to the citizens of other States in all cases when it can be afforded by Her Majes- ty's ships, as it will undoubtedly be rendered by the com- manders of foreign ships of war to all British subjects who may be in need of that protection which they may be in a position to afford under like circumstances.
INJURIES TO FOREIGNERS BY MOB VIOLENCE. CASES OF ITALIAN SUBJECTS IN NEW ORLEANS.
(United States Foreign Relations, 1891, pp. 682-686.)
Iii the following letter of the Secretary of State it is held that subjects of foreign governments must submit to treatment according to the laws of the country of domicile; that they are not entitled to special treatment or to methods of redress beyond those open to citizens of the country; and that they accept the laws and customs of the country where they take up residence.
184 Mr. Elaine to Marquis Intjx r'mli.
DEPARTMENT OF STATE,
Washington, April 14, 1891.
^ nave the honor to acknowledge the receipt of your note dated Thursday, April 2, 1891. It contains a second telegram from the Marquis Rudini, a part of which I here quote:
The Government of the King of Italy has asked nothing beyond the prompt institution of judicial proceedings through the regular chan- nels. It would have been absurd to claim the punishment of the guilty parties without the warrant of a regular judgment. The Italian Government now repeats the same demand. Not until the Federal Government shall have explicitly declared that the aforesaid proceed- ings shall be promptly begun can the diplomatic incident be considered as closed.
This Government certainly had no desire whatever to change the meaning of the Marquis Rudini's telegram of March 24. It was delivered at the State Department by Baron Fava in person, written in his own hand, and ex- pressed in the English language. The following is the full text of the telegram:
ROME, March 24, 1891. ITALIAN MINISTER, Washington:
Our requests to the Federal Government are very simple. Some Italian subjects, acquitted by the American magistrates, have been murdered in prison while under the immediate protection of the authorities. Our right, therefore, to demand and obtain the punishment of the murderers and an indemnity for the victims is unquestionable. I wish to add that the public opinion in Italy is justly impatient, and, if concrete provisions were not at once taken, I should find myself in the painful necessity of showing openly our dissatisfaction by recall- ing the minister of His Majesty from a country where he is unable to obtain justice.
RUDINI.
The words underscored are precisely those which I quoted in my former note; and I am directed by the Pres- ident to express the satisfaction of this Government with the very material qualification of the demand made by the Marquis Rudini on behalf of the Italian Government.
You quote in your note another part of the Marquis Rudini's telegram of April 2 in these words:
Meanwhile His Majesty's Government takes note of the declaration whereby the Federal Government recognizes that an indemnity is due to the families of the victims in virtue of the treaty in force between the two countries.
°
f oroe TS the Marquis Rudini will carefully examine my note ffif'S treaty of APril *» he wil1 discover that I did not " recognize that rights. an indemnity is due to the families of the victims in vir-
185
tue of the treat}' in force between the two countries." What I did .say was in answer to Baron Fava's assertion that the United States Government refused to take this demand for indemnity into consideration. I quote my reply:
The United States, so far from refusing, has distinctly recognized the principle of indemnity to those Italian subjects who may have been wronged by a violation of the rights secured to them under the treaty with the United States concluded February 26, 1871.
The Marquis Rudini ma}' be assured that the United States would recompense every Italian subject who might "be wronged by the violation of a treat}'" to which the faith of the United States is pledged. But this assurance leaves unsettled the important question whether the treaty has been violated. Upon this point the President, with sufficient facts placed before him, has taken full time for decision. He now directs that certain considerations on the general subject be submitted to the judgment of the Italian Government.
As a precedent of great value to the case under discus- ag)[il,°t
sion, the President recalls the conclusion maintained by andPo"her ^pan-
Mr. Webster in 1851, when he was Secretary of State 5gLBDbJectl in
under President Fillmore. In August of that year a mob
in New Orleans demolished the building in which the
office of the Spanish consul was located, and at the same
time attacks were made upon coffeehouses and cigar
shops kept by Spanish subjects. American citizens were
involved in the losses, which, in the aggregate, were
large. The supposed cause of the mob was the intelli-
gence of the execution of 50 young Americans in Havana
and the banishment to Spanish mines of nearly 200 citi-
zens of the United States. The victims were all mem-
bers of the abortive Lopez expedition.
In consequence of these depredations of the mob upon the property of the Spanish consul, as well as against the Spanish subjects, Don Calderon de la Barca, the min- ister of Spain, demanded indemnification for all the losses, both official and personal.
Mr. Webster admitted that the Spanish consul was indemnity due
r to consul.
entitled to indemnity, and assured the Spanish minister if the injured consul, Mr. Laborde —
shall return to his post, or any other consul for New Orleans shall be appointed by Her Catholic Majesty's Government, the officers of this Government resident in that city will be instructed to receive and treat him with courtesy and with a national salute to the flag of his ship, if he shall arrive in a Spanish vessel, as a demonstration of respect,
186
such as may signify to him and to his Government the sense enter- tained by the Government of the United States of the gross injustice done to his predecessor by a lawless mob, as well as the indignity and insult offered by it to a foreign State with which the United States are, and wish ever to remain, on terms of the most respectful and pacific intercourse.
r But when pressed by the Spanish minister to afford subjects ^"'ack-ittderonity to Spanish subjects injured by the mob in corn- ceded to. mon wjth American citizens, Mr. Webster declined to accede to the demand, and gave his reasons as follows:
This Government supposes that the rights of the Spanish consul, a public officer residing here under the protection of the United States Government, are quite different from those of the Spanish subjects who have come into the country to mingle with our own citizens and here to pursue their private business and objects. The former may claim special indemnity; the latter are en titled to such protection as is afforded to our own citizens. While, therefore, the losses of individ- uals, private Spanish subjects, are greatly to be regretted, yet it is un- derstood that many American citizens suffered equal losses from the same cause; and these private individuals, subjects of her Catholic Majesty, coming voluntarily to reside in the United States, have cer- tainly no cause of complaint if they are protected by the same laws and the same administration of law as native-born citizens of this country. They have, in fact, some advantages over citizens of the State in which they happen to be, inasmuch as they are enabled, until they become citizens themselves, to prosecute for any injuries done to their persons or property in the courts of the United States or the State courts, at their election.
indemnity ac- It is proper, however, to add that two 3Tears after Mr.
tually paid as an .
act of grace. Webster wrote the foregoing note Congress, in recogni- tion of certain magnanimous conduct on the part of the Queen of Spain in pardons bestowed on Americans who had unjustifiably invaded the island of Cuba, enacted a joint resolution, approved by President Fillmore March 3, 1853, the last da}7 of his term, indemnifying the Span- ish consul and other Spanish subjects for the losses sus- tained in the New Orleans mob of 1851 . The considerations upon which this resolution was passed were held not to contravene the original position of Mr. Webster, shared also by President Fillmore. judicial rem- The right to judicial remedy which Mr. Webster assured
fan subjects. to the Spanish subjects is likewise assured to the Italian subjects. The right is specially guaranteed in the second section of the third article of the Constitution. And, as Mr. Webster points out, the resident alien has a privilege which is denied to the! citizen. The widows and children of the citizens who lost their lives by mob violence may sue the leaders and members of the mob only in the courts of
187
the State of Louisiana, while the widows and children of the Italian subjects who suffered death have the right to sue each member of the mob, not only in the State courts, but also before the Federal tribunals for the district of Louisiana.
Provision is made in the revised civil code of Louisiana for redress of such grievances as the widows and children of the victims of the mob may plead. I quote:
ART. 2314. Every act whatever of man that causes damage to an- other obliges him by whose fault it happened to repair it. The right of this action shall survive, in case of death, in favor of 'the minor children and widow of the deceased, or either of them, and, in default of these, in favor of the surviving father or mother, or either of them, for the space of one year from the death.
ART. 2316. Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.
ART. 2324. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable in solido with that person for the damage caused by such act.
The Government of the United States would feel justi- ac?eristfcs ofhthe fied in resting on the argument and conclusion of Mr. J^*8 of 1851 and Webster if the mob of March 14, 1891, did not, in some of its characteristics, differ from the mob of 1851. But it is due to entire candor, due to this Government, and due to the Government of Italy to point out certain differ- ences of which the Government of the United States is honorably bound to take notice. In the case of the mob of 1851 Mr. Webster asserts that " no personal injury was offered to anyone;" that "the police and other legal authorities did all that was possible to preserve the peace and arrest the rioters;" that "the mob acted in the heat of blood, and not in pursuance of any predetermined plan or purpose of injury or insult;" that "the mob was com- posed of irresponsible persons, the names of none of whom are known to the Government of the United States, nor, so far as the Government is informed, to its officers or agents in New Orleans."
As promptly as possible after the lamentable occurrence at New Orleans the President directed the Attorney- General to cause, through his Department, a full inquiry to be made into all the facts connected therewith, and solicited his opinion whether an}' criminal proceedings would lie under the Federal laws in the Federal courts against per- sons charged with the killing of Italian subjects. He has not yet received the official report. If it be found that a
188
prosecution can be maintained under the statutes of the United States, the case will be presented to the next grand jury according to the usual methods of criminal adminis- tration. But if it shall be found, as seems probable, that criminal proceedings can only be taken in the courts of Louisiana, the President can in this direction do no more than to urge upon the State officers the duty of promptly bringing the offenders to trial. This was done in his tele- gram to the governor of Louisiana as early as the 15th of March.
If it shall result that the case can be prosecuted only in the State courts of Louisiana, and the usual judicial inves- tigation and procedure under the criminal law is not re- sorted to, it will then be the duty of the United States to consider whether some other form of redress ma}' be asked. It is understood that the State grand jury is now investigating the affair, and, while it is possible that the juiy may fail to present indictments, the United States can not assume that such »will be the case. united states The United States did not by the treaty with Italy be-
does not insure J J J
lives or property come the insurer of the lives or propertv of Italian sub-
of Italians by _ ^ _ .
treaty. jects resident within our territory. No government is
able, however high its civilization, however vigilant its police supervision, however severe its criminal code, and however prompt and inflexible its criminal administration, to secure its own citizens against violence promoted by individual malice or by sudden popular tumult. The for- eign resident must be content in such cases to share the same redress that is offered by the law to the citizen, and has no just cause of complaint or right to ask the interpo- sition of his country if the courts are equally open to him for the redress of his injuries. when indem- The treaty in the first, second, third, and, notablv, in
nity may not, 1-1 • i i IT-, ^i -i,
and when it the twenty-third articles, clearly limits the rights guar- cianned. antied to the citizens of the contracting powers in the ter-
ritory of each to equal treatment and to free access to the courts of justice. Foreign residents are not made a f avored class. It is not believed that Italy would desire a more stringent construction of her duty under the treaty. Where the injury inflicted upon a foreign resident is not the act of the Government or of its officers, but of an individual or of a mob, it is believed that no claim for indemnity can justly be made, unless it shall be made to appear that the public authorities charged with the peace of the community have connived at the unlawful act, or,
189
having timely notice of the threatened danger, have been guilty of such gross negligence in taking the necessary precautions as to amount to connivance.
If, therefore, it should appear that among those killed by the mob at New Orleans there were some Italian subjects who were resident or domiciled in that city, agreeably to our treaty with Italy, and not in violation of our immi- gration laws, and who were abiding in the peace of the United States and obeying the laws thereof and of the State of Louisiana, and that the public officers charged with the duty of protecting life and property in that city connived at the work of the mob, or, upon proper notice or infor- mation of the threatened danger, failed to take any steps for the preservation of the public peace and afterwards to bring the guilt}7 to trial, the President would, under such circumstances, feel that a case was established that should be submitted to the consideration of Congress with a view to the relief of the families of the Italian subjects who had lost their lives by lawless violence.
Accept, etc., JAMES G. ELAINE.
To conclude the diplomatic history of this case the following- extracts are given from official records,0 in which an indemnity was offered and accepted.
Mr. Blaine to Marquis Imperiali.
DEPARTMENT OF STATE,
Washington, April 12, 1892.
SIR: I congratulate you that the difficulty existing be- tween the United States and Italy growing out of the lamentable massacre at New Orleans in March of last 3Tear is about to be terminated. The President, feeling that for such an injury there should be ample indemnity, instructs me to tender you 125,000 francs. The Italian Government will distribute this sum among the families of the victims.
While the injury was not inflicted directly by the United States, the President nevertheless feels that it is the solemn duty, as well as the great pleasure, of the National Government to pay a satisfactory indemnity. . . .
JAMES G. BLAINE.
« United States Foreign Relations, 1891, pp. 727, 728.
190
Marquis Imperial! accepted the sum in behalf of the Italian Government in a letter of the same date in which he says,' in part:
The King's Government does not hesitate to accept this indemnity without prejudice to the judicial steps which it may be proper for the parties to take, and, considering the redress obtained sufficient. . . .
CASE OF ANTONIO ABBAGNATO, AN ITALIAN SUBJECT.
(Vol. 62, Federal Reporter, p. 240. Case of City of New Orleans v. Abbagnato. Decided May 29, 1894.)
of This action was brought by the mother of An- tonio Abbagnato against the city of New Orleans for damages for the death of her son, who had been killed, with others, in March, 1891, by a mob which had broken into the parish jail without any ade- quate attempt at resistance on the part of the con- stituted authorities of the city. The victims had been tried before the criminal district court for the parish of New Orleans for the murder of the chief of police of New Orleans, and Abbagnato and five of the coaccused had been acquitted by the ver- dict of the jury, and mistrial had been found in the case of three others of the coaccused. Pending further legal proceedings all the coaccused, includ- ing those acquitted and those as to whom there had been a mistrial, were reincarcerated in the New Orleans parish prison, where they met their deaths at the hand of a mob, as stated abpve.
At the trial the jury found for the plaintiff, and judgment for the plaintiff was entered on the ver- dict. The defendant brought error. The case was heard before the Circuit Court of Appeals, Fifth Circuit.
Judge PARDEE delivered the opinion of the court, saying in part:
Rights of itai- The treaty between the kingdom of Italy and the United same as those of States proclaimed November 23, 1871, guaranties to the
United States . . .
citizens. citizens of either nation in the territory of the other ''the
191
most constant protection and security for their persons and property," and further provides that "they shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives on their submitting themselves to the conditions imposed upon the natives." Treaty of 1871, art. 3 (17 Stat. 845). This treaty applies to this case only so far as to require that the rights of the plaintiff shall be adjudicated and determined exactly the same as if she were, and her deceased son had been, a native of the United States. . . .
The city of New Orleans, by her pleadings, admits the Li*b.iiity of
* ' J . . municipahtiesin
gross negligence charged in the petition in the perform- damages for m-
" . jury at the hands
ance of the duties devolving upon the municipality under of a mob. the constitution and laws of the state above referred to, whereby Abbagnato lost his life at the hands of a mob while in the custody of the law; and the question pre- sented in this case is whether, on such admission of facts, the city can be held liable in damages. It is well settled that at common law no civil action lies for injury to a person which results in his death. . . . The rule is the same under the civil law, according to the decisions of the Louisiana supreme court. ... In the absence of a statute giving a remedy, public or municipal corporations are under no liability to pay for the property of individ- uals destroyed by mobs or riotous assemblages. . . .
In the case of State v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, the supreme court of the United States held that the right to demand reimbursement from a municipal corporation for damages caused by a mob is not founded on contract. It is a statutory right, and may be given or taken away at pleasure. . . .
If this be the rule with regard to the liability of munic- ipal corporations for damages to property committed by mobs or riotous assemblages, a fortiori it must be the rule with regard to the liability of municipal corporations for damages resulting in the loss of life from the acts of mobs or riotous assemblages. The reason of the rule is Reasons for
. . . rule.
obvious. Actions to recover from municipal corporations damages resulting from the acts of mobs and riotous assemblages are actions to hold such corporations liable in damages for a failure to preserve the public peace. The preservation of the public peace primarily devolves upon the sovereign. Under our system of government, the Mate is that sovereign. U. S. v. Cruikshank, 92 U. S. 54^-553; Western College v. City of Cleveland, 12 Ohio
192
St. 377. When, by the action of the state, a municipal corporation is charged with the preservation of the peace, and empowered to appoint police boards and other agencies to that end, the corporation pro tanto is charged with gov- ernmental functions in the public interest and for public purposes, and is entitled to the same immunity as the sovereign granting the power for negligence in preserving the public peace unless such liability is expressly declared by the sovereign. This proposition is so well recognized that not a well-considered, adjudicated case can be found in the books where, in the absence of an express statute, any municipality has been held liable for the neglect of its officers to preserve the peace. . . .
Exemption of The exemption of municipalities from liability to suits recognized in for damages for the negligence of officers and agents in the execution of the governmental functions granted by the state, in the public interest, and in the absence of stat- utory liability, is recognized in Louisiana, as shown by the decisions of the supreme court of the state. ... It follows, therefore, that in order to recover damages against the city of New Orleans for the taking of human life by a mob in said city, no matter what the negligence of the city officials may have been, there must be a statute of the state of Louisiana expressly or b}T necessary impli- cation giving a remedy in such cases. . . .
NO damages. As we find no law of the state of Louisiana giving a remedv in damages against a municipal corporation for the acts done by a mob resulting in the loss of human life, we are c cupelled to reverse the judgment of the court below.
ARREST OF DESERTERS UNDER FOREIGN FLAG IN HOME JURISDICTION.
PROCEDURE RECOMMENDED.
Iii 1*93 deserters from the U. S. S. Chicago were arrested on board the British steamer Berlin in the harbor of New York. As some of these deserters were enrolled on the articles of the vessel, and ques- tions of identity, etc., might have arisen, it was deemed wise to have the arrest on board made by the local police instead of by naval officers direct.
193
This course was suggested by the British ambassa- dor and adopted by the Department of State in its letter of advice to the Navy Department. As a matter of procedure it is desirable from many points of view to have such arrests made through the aid of local police.
AMERICAN CITIZENS EXILED FROM FOREIGN COUN- TRIES FOR CAUSE.
AS TO THEIR RIGHT TO REENTER WITHOUT PERMIS- SION.
The following quotation is from a letter to the Secretary of the Navy from the Secretary of State, dated July 15, 1899, respecting Americans who had been allowed to leave a foreign country in which they had been implicated in an insurrection. The position is taken that the American Government can not intervene in their behalf should they return to that foreign country and be recaptured:
SIR: 1 have the honor to acknowledge the receipt of case of certain
, £ , _,n * , . . , „ American citi-
3rour letter or the Iztn ultimo, inclosing a copy or one to zens in Nicara- you from Lieutenant-Commander Kimhall, IT. S. N., com- manding officer of the Vixen, at Bluefields, in which he requests general instructions as to the policy of this Gov- ernment respecting the protection of such American citi- zens as, having taken part in the recent insurrection at that place, were allowed to leave the country, but who may again return thither and be apprehended and prose- cuted by the Nicaraguan authorities.
You request to be advised of the views of this Depart- ment on the subject.
In reply I have the honor to inform you that an instruc- instruction to tion, a copv of which is herewith inclosed, was sent to our san 'juan del
Norte
consul at San Juan del Norte on May 13 last, informing him that Americans who were implicated in that insurrec- tion and who have returned to Nicaragua have placed them- sclves beyond the power of this Government to intervene in their behalf, should they be recaptured.
The cases thus foreshadowed do not come under either the Barrundia or the Gomez case, referred to by Lieutenant-
2056—04 13
194
Commander Kimball. These persons were natives of the country, in transit, and on board an American ship enter- ing1 a port of the country without intent to land. The 33 men in question were expelled from Nicaraguan territory, and it is apprehended that they may attempt to reenter Nicaraguan jurisdiction. Many, if not most of them are understood to be citizens of the United States. Proper action Effort should be made to warn such persons in time of
for a naval com- mander, the risk the}T run in reentering Nicaragua, and if occasion
require, they might be temporarily received on an Ameri- can naval vessel before they land, and before any process of arrest under due warrant of law be attempted against them. If, however, they actually land, or are arrested by judicial authority on a merchant ship in port before endeav- oring to land, the naval commander could not claim their release or delivery to him, but would have to limit his action to the exercise of good offices so far as possible, in conjunction with the consular representatives of the United States, to secure for them fair and open process of law, with every opportunity for defense, and if convicted, leni- encv of treatment.
SUBMARINE CABLES IN ENEMY COUNTRY. SUBJECT TO DAMAGE AS INCIDENT OF WAR.
(Opinions of Attorney-General of United States, Vol. XXII, p. 315.)
The following is a portion of an opinion rendered by the Attorney- General of the United States "rela- tive to a claim of the British Eastern Extension Australasia and China Telegraph Company for damages and losses alleged to have been sustained in consequence of the cutting of its cable at Manila during the war with Spain and in response to a re- quest for an opinion as to whether this Government is in any way liable for those damages and losses :"
NO ground for Property of a neutral permanently situated within the
cutting- of neu- territory of an enemy is, from its situation, liable to dam-
emy waters. age f rom the lawful operations of war, which this cutting
is conceded to have been, and no compensation is due for
such damage.
It is said, however, that this rule has never been applied to a cable; that the whole utility of the cable over many
195
miles is as much destroyed by cutting it in territorial wa- ters as by cutting it on the high seas, which last act, it is claimed, would undoubtedly entitle the owners to compen- sation; and that the United States admiral did not merely aim at preventing the use of the cable by the Spaniards, but also at using it himself.
Do these reasons withdraw this property from the rule which has been stated ?
In the first place, that is a rule applying to property of a neutral which he has placed within the territory of our enenn% which property our necessary military operations damage or destroy. It takes no account of the character of the property, but only of its location, and no account of any motives of its owner or of the military officer who finds it necessary to meddle with it in hurting the enemy. He sees it across his path and brushes it away, and the rule cited says that the owner, by putting his property in the country, took the chance of a war against it and of all law- ful military acts to carry the war to a successful issue.
It argues nothing that cables have not heretofore been the subject of any discussion of this rule. The same might be said of many kinds of propert3r, either because they happened not to be injured or because the rule was so well understood that a discussion was deemed superfluous. It is necessary to show why the cable property is exempt from the rule, and not that the rule has ever been applied
to it.
*******
I am of the opinion, therefore, that upon the law of the case there is no ground for indemnity.
CONTINUOUS VOYAGES. CASE OF THE BUNDESRATH IN THE SOUTH AFRICAN WAR.
(British Parliamentary Paper, Africa No. 1, 1900, Cd 33.)
During the South African war the German mail steamer Bundesrath, bound for Delagoa Bay, was reported from Aden as suspected of carrying ammu- nition for the enemy, also with carrying persons in- tending to be combatants against the British forces in South Africa. The Bundesratli was seized at a later date by H. M. S. Magicienne and brought into
196
Durban. The mails of the Bundesrath were released and turned over to the German vessel of war Condor. No contraband of war being found on the Bundes- rath, the vessel and cargo were released. In the correspondence that arose concerning this case the positions of the British and German Governments were stated in the following letters:
Count Hatzfeldt to the Marquess of Salisbury. (Received January 4-)
[Translation.]
GERMAN EMBASSY, LONDON, January 4, 1900. views of Ger- MY LORD, With reference to the seizure of the German
man Govern- ,, _, , , ,, - 1-1 i» i i <
ment. steamer Bundesrath ny an English ship of war, I have
the honor to inform your excellency, in accordance with instructions received, that the Imperial Government, after carefully examining the matter and considering the judi- cial aspects of the case, are of opinion that proceedings before a Prize Court are not justified.
This view is grounded on the consideration that proceed- ings before a Prize Court are only justified in cases where the presence of contraband of war is proved, and that, whatever may have been on board the "Bundesrath," there could have been no contraband of war, since, according to recognized principles of international law, there can not be contraband of war in trade between neutral ports.
This is the view taken by the British Government in 1863 in the case of the seizure of the "Springbok" as against the judgment of the American Prize Court, and this view is also taken by the British Admiralty in their " Manual of Naval Prize Law" of 1866.
The Imperial Government are of opinion that, in view of the passages in that Manual: "A vessel's destination should be considered neutral, if both the port to which she is bound and every intermediate port at which she is to call in the course of her. voyage be neutral," and, "the destination of the vessel is conclusive as to the destination of the goods on board," they are fully justified in claiming the release of the "Bundesrath" without investigation by a Prize Court, and that all the more because, since the ship is a mail-steamer with a fixed itinerary, she could not dis- charge her cargo at any other port than the neutral port of destination.
197
In view of what is stated above, I have the honor to re- quest your Excellency, in accordance with instructions from the Imperial Government, and with the reservation of what may further be decided, to order the release of the " Bundesrath," and since she was seized more than a week ago and the Imperial Government have not yet been in- formed of the reasons for the seizure, I should be obliged if I could be favored with a reply at your earliest con- venience.
I have, etc., P. HATZFELDT.
The Marquess of Salisbury to Sir F. Lascelles.
FOREIGN OFFICE, January 10, 1900.
SIR, I transmit to your Excellency herewith the transla- tion of a note which I have received from the German Ambassador at this Court with regard to the seizure of the German steamer " Bundesrath" by Her Majestj^'s ship " Magicienne," on suspicion of carrying contraband of war destined for the South African Republics.
In this note Count Hatzfeldt states that the German Government, after careful examination of the judicial aspects of the case, are of the opinion' that proceedings before a Prize Court are not justified. They base this view on the doctrine that, according to the recognized principles of international law, no question of contraband of war arises in trade between neutral ports. In support of this argument they cite the view which they state "to have been taken by Her Majesty's Government in 1863 in the case of the seizure of the "Springbok," as against the Judgment of the United States' Prize Court, and that which they consider to be taken "by the British Admiralty in their 'Manual on Naval Prize Law' of 1866."
Before examining the doctrine thus put forward by the German Government, it will be desirable to remove some errors of fact in regard to the authorities which they cite.
It is not the case that the British Government in 1863 i raised any claim or contention against the Judgment of the United States' Prize Court in the case of the "Springbok." On the first seizure of that vessel, and on an ex parte and imperfect statement of the facts by the owners, Earl Rus- sell, then Secretary of State for Foreign Affairs, informed Her Majesty's Minister at Washington that there did not appear to be any justification for the seizure of the vessel and her cargo, that the supposed reason, namely, that
198
h ^Government" there wer^ articles in the manifest not accounted for by the captain, certainly did not warrant the seizure, more especially as the destination of the vessel appeared to have been bond fide neutral, but that, inasmuch as it was probable that the vessel had by that time been carried before a Prize Court of the United States for adjudication, and that the adjudication might shortly follow, if it had not already taken place, the only instruction that he could at present give to Lord Lyons was to watch the proceed- ings and the Judgment of the Court, and eventually transmit full information as to the course of the trial and its results.
The Prize Court of the United States, in a long and considered Judgment, decreed confiscation both of the vessel and the cargo. The owners applied for the inter- vention of Her Majesty's Government, and forwarded in support of their application an opinion by two English Counsel of considerable eminence.
The real contention advanced in this opinion was that the goods were, in fact, bond fide consigned to a neutral at Nassau. It cannot, therefore, be adduced in support of the doctrine now advanced by the German Government. But Her Majesty's Government, after consulting the Law Officers of the Crown, distinctly refused to make any dip- lomatic protest or enter any objection against the decision of the United States' Prize Court, nor did they ever express any dissent from that decision on the grounds on which it was based.
The volume which is described in Count Hatzfeldt's note as "The Manual of Naval Prize Law of the British Admiralty," and from which Count Hatzfeldt quotes certain phrases as expressing the view of the Lords Com- missioners on this subject, is, in fact, a book originally compiled by Mr. (now Sir Godfrey) Lushington, which was published under the authority of the Lords Commis- sioners as stating in a convenient form the general prin- ciples by which Her Majesty's officers are guided in the exercise of their duties; but it has never been asserted and can not be admitted to be an exhaustive or authorita- tive statement of the views of the Lords Commissioners. The preface to the book states that it does not treat of questions which will ultimately have to be disposed of by the Prize Court, but which do not concern the officer's duty of the place and hour. The directions in this Manual, which for practical purposes were sufficient in the case of
199 wars such as have been waged by Great Britain in the views of Brit-
ish Government.
past, are quite inapplicable to the case which has now arisen of war with an inland State, whose only communi- cation with the sea is over a few miles of railway to a neutral port. In a portion of the Introduction the author discusses the question of destination of the cargo, as dis- tinguished from destination of the vessel, in a manner by no means favorable to the contention advanced in Count Hatzfeldt's note. Moreover, Professor Holland, who edited a revised edition of this Manual in 1888, in a recent letter published in the "Times," has expressed an opinion altogether inconsistent with the view which the German Government endeavor to found upon the words of the Manual.
In the opinion of Her Majesty's Government, the pas- sage cited from the Manual, "that the destination of the vessel is conclusive as to the destination of the goods on board," has no application to such circumstances as have now arisen.
It cannot apply to contraband of war on board of a neutral vessel if such contraband was at the time of seizure consigned or intended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy1* country.
The true view in regard to the latter category. of goods is, as Her Majest}T's Government believe, correctly stated in paragraph 813 of Professor Bluntschli's "Droit Inter- national Codifie," as follows (I cite from the French trans- lation of 187-i, 2nd edition, of the work of this eminent German jurist): —
"Si les navires ou marchandises ne sont expedies a des- tination d'un port neutre que pour mieux venir en aide a 1'ennemi il y aura contrebande de guerre et la confiscation sera justifiee."
Her Majesty's Government are unable therefore to agree that there are grounds for ordering the release of the "Bundesrath" without examination by the Prize Court as to whether she was carrying contraband of war belonging to, or destined for, the South African Republics. But they fully recognize how desirable it is that this examina- tion should be carried through at the earliest possible moment, and that all proper consideration should be shown for the owners and for innocent passengers and merchan- dise on board of her. Repeated and urgent instructions have been sent by telegraph for this purpose, and arrange-
200
ments have been made for the speed}' transmission of the mails.
Your excellency will address a note to the German Min- ister for Foreign Affairs containing the above observations. I am, etc.,
SALISBURY.
The Marquess of Salisbury to Sir F. Lascelles.
FOREIGN OFFICE, January 11, 1900. SIR, Baron von Eckardstein called on me yesterday, and in the course of conversation on the subject of the recent seizures of German mail-steamers, informed me that in view of the protest which I had made against the position taken up by the German Government that there could not be any question of contraband of trade between neutral ports, they had decided to abstain from pressing or dis- cussing their opinion for the present in order to facilitate a speedy and amicable settlement.
1 am, etc., SALISBURY.
STATUS OF AUXILIARY CRUISERS IN TIME OF WAR.
CASE OF THE UNITED STATES CRUISER YALE AT THE TIME OF THE CAPTURE OF THE SPANISH STEAMER RITA DURING THE SPANISH-AMERICAN WAR.
(Fed. Rep., vol. 89, p. 763.)
United States District Judge Brawley, October 13, 1898: conditions of As the proof shows that the Rita was an unarmed mer-
Yale's service as A .
an auxiliary chant vessel, the captors are entitled to one-halt of the
cruiser.
prize money, and Capt. W. C. Wise, being in command of the capturing vessel and on independent duty, is entitled to three-twentieths of the amount allowed to the captors. No other vessel being in sight and entitled to share, the only question for determination is as to the distribution of the residue, and this question arises out of the somewhat anomalous character of the capturing vessel. The capture was made May 8, 1898, by the United States cruiser Yale, which prior to April 30, 1898, was known as the "City of Paris." She belonged to the International Navigation Compan3T, and was of the class of steamships which, under
201
the provisions of the act of March 3, 1891, was subject to be taken by the United States as a cruiser or transport, upon payment of her actual value. By a charter party and supplementary agreement entered into April 30, 1898, between the company and the government, acting through the secretary of the navy, possession of the ship was trans- ferred to the government. B}^ it she was heavily armed, and converted into an auxiliary cruiser, and her name changed. The charter party provided that the ship should be "manned, victualed, and supplied at the expense of the charterer," which is also to pay all other expenses whatsoever, and return the same in good repair, less ordi- nary wear and tear, at the termination of the chartering, which was to be at the will of the charterer. The supple- mentary agreement provided that the ship was "to be manned by her regular officers and crew, and in addition thereto was to take on board two naval officers, a marine officer, and a guard of thirty marines, and was to be victualed and supplied with two months' provisions, and about four thousand tons of coal; the actual cost to the owners of such additional equipment and services to be reimbursed by the charterer upon bills to be certified by the senior naval officer on board." There were also pro- visions protecting the owner against all expenses and lia- bility, and a provision that during the continuation of the supplementary agreement the steamship was to be " under the entire control of the senior naval officer on board." ****** *
The evidence fully establishes the fact that the peti- ^yb tioner Watkins and others of the crew of the City of Paris, Yal.e ;;inf
J _ ' service' of the
mentioned in his petition, although not formally enlisted, government. were "doing duty on board and borne upon the books." The}r were charged with the navigation of the ship. There was no other crew on board capable of performing that service. From them was selected the prize master and crew which brought the Rita into port for condemna- tion. If they were not "in the service" of the govern- ment while performing that mission, they incurred the hazard of being considered as pirates.
202
MILITARY OCCUPATION.
INSTRUCTIONS OF THE PRESIDENT OF THE UNITED STATES A.S TO THE OCCUPATION OF SANTIAGO DE
CUBA.
(Proclamations and Decrees during the War with Spain, p. 83.)
GENERAL ORDERS,! WAR DEPARTMENT,
| ADJUTANT-GENERAL'S OFFICE, No. 101. Washington, July 18, 1898.
The following, received from the President of the United States, is published for the information and guid- ance of all concerned:
EXECUTIVE MANSION, Washington,, July 13, 1898. To the SECRETARY OF WAR.
SIR: The capitulation of the Spanish forces in Santiago de Cuba and in the eastern part of the Province of San- tiago, and the occupation of the territory by the forces of the United States, render it necessary to instruct the military commander of the United States as to the conduct which he is to observe during the military occupation.
The first effect of the military occupation of the enemy's territory is the severance of the former political relations of the inhabitants and the establishment of a new political power. Under this changed condition of things the inhabitants, so long as they perform their duties, are
^^e^ to security in their persons and property and in property. a]j their private rights and relations. It is my desire that
the inhabitants of Cuba should be acquainted with the purpose of the United States to discharge to the fullest extent its obligations in this regard. It will therefore be the duty of the commander of the army of occupation to announce and proclaim in the most public manner that wo come not to make war upon the inhabitants of Cuba, nor upon any party or faction among them, but to protect them in their homes, in their employments, and in their personal and religious rights. All persons who, either by active aid or by honest submission, cooperate with the United States in its efforts to give effect to this beneficent purpose will receive the reward of its support and pro- tection. Our occupation should be as free from severity as possible.
203
Though the powers of the military occupant are absolute and supreme and immediately operate upon the political condition of the inhabitants, the municipal laws of the Municipal laws
7 r hold, except for
conquered territory, such as affect private rights of person cause. and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupa- tion. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and the other officials connected with the administration of justice may, if they accept the supremacy of the United States, continue to administer the ordinary law of the land, as between man and man, under the supervision of the American commander in chief. The native constabu- lary will, so far as may be practicable, be preserved. The freedom of the people to pursue their accustomed occupa- tions will be abridged only when it may be necessary to do so.
While the rule of conduct of the American commander , other Proce;
dure in case of
in chief will be such as has just been defined, it will be necessity. his duty to adopt measures of a different kind, if, unfor- tunately, the course of the people should render such measures indispensable to the maintenance of law and order. He will then possess the power to replace or expel the native officials in part or altogether, to substitute new courts of his own constitution for those that now exist, or to create such new or supplemental1}' tribunals as may be necessary. In the exercise of these high powers, the com- mander must be guided by his judgment and his experience and a high sense of justice.
One of the most important and most practical prob- lems with which it will be necessary to deal is that of the treatment of property and the collection and administra- tion of the revenues. It is conceded that all public funds erfylblic prop" and securities belonging to the government of the country in its own right, and all arms and supplies and other movable property of such government, may be seized by the military occupant and converted to his own use. The real property of the state he may hold and administer, at the same time enjoying the revenues thereof, but he is not to destroy it save in the case of military necessity. All
204
public means of transportation, such as telegraph lines, cables, railwaj's, and boats belonging to the state may be appropriated to his use, but unless in case of military necessity they are not to be destined. All churches and buildings devoted to religious worship and to the arts and sciences, all schoolhouses, are, so far as possible, to be protected, and all destruction or intentional defacement of such places, of historical monuments or archives, or of works of science or art, is prohibited, save when required by urgent military necessit}^.
Private prop- Private property, whether belonging to individuals or corporations, is to be respected, and can be confiscated only for cause. Means of transportation, such as tele- graph lines and cables, railways and boats, may, although they belong to private individuals or corporations, be seized by the military occupant, but unless destroyed under mili- tary necessity are not to be retained.
contributions, While it is held to be the right of the conqueror to lew
taxes, and du- °. .
ties. contributions upon the enemy in their seaports, towns, or
provinces which may be in his military possession by con- quest and to apply the proceeds to defray the expenses of the war, this right is to be exercised within such limita- tions that it may not savor of confiscation. As the result of military occupation the taxes and duties pa}rable by the inhabitants to the former government become pa}rable to the military occupant, unless he sees fit to substitute for them other rates or modes of contribution to the expenses of the government. The moneys so collected are to be used for the purpose of paying the expenses of govern- ment under the military occupation, such as the salaries of the judges and the police, and for the pa}anent of the expenses of the army.
Private property taken for the use of the army is to be paid for when possible in cash at a fair valuation, and when payment in cash is not possible, receipts are to be given.
occupied ports All ports and places in Cuba which may be in the actual possession of our land and naval forces will be opened to the commerce of all neutral nations, as well as our own, in articles not contraband of war upon payment of the prescribed rates of dut}^ which may be in force at the
time of the importation.
WILLIAM McKiNLEY.
By order of the Secretary of War:
H. C. CORBIN,
Adjutant- General.
205
RIGHT OF MILITARY AUTHORITIES TO IMPOSE TARIFF UPON IMPORTS DURING MILITARY OCCUPATION.
Attorney-General J. W. Griggs (Opinions Attor- ney-General, vol. 22, p. 562) says, August 10, 1899:
According to the well-settled principles of public law relating to territory held by conquest, and according to the adjudication of the Supreme Court of the United States in Cross v. Harrison, the military authorities in possession, in the absence of legislation by Congress, may make such rules or regulations and impose such duties upon merchandise imported into the conquered territory as the}7 may, in their judgment and discretion deem wise and prudent.
As TO THE ASSUMPTION OF CONSULAR FUNCTIONS BY NAVAL OFFICERS IN TERRITORY HELD BY MILITARY OCCUPATION.
The following letter explains the opinion of the Department of State in matters of this kind :
DEPARTMENT OF STATE, Washington, November 3, 1898. The Honorable The SECRETARY OF THE NAVY.
SIR: I am advised by the Secretary of War, upon infor- mation received from Major General J. F. Wade, U. S. V., President of the United States Commission for the Evac- uation of the Island of Cuba, that the senior officer com- manding a United States naval vessel in the harbor of Habana has, in virtue of an existing statute or regulation, assumed the functions of United States Consul in and for the port of Habana.
It is presumed that the statute referred to is Sec. 1433, Title 15, Chap. 2, of the U. S. laws relating to Navy and Marine Corps (p. 297).
During the suspension of relations between the govern- merits of the United States and Spain, consequent upon a state of war, and still continuing notwithstanding the stip- ulated suspension of hostilities between them, all direct diplomatic and consular representation of the United States in places and ports within Spanish control is neces- sarily suspended. During such suspension resort has been
206
had to the usual privilege, recognized by international law, of placing the interests of American citizens in the respective ports and places under the care of the respec- tive British diplomatic or consular representative whose good offices in this relation have been recognized and admitted by the government and authorities of Spain. The acting Consul -General of Great Britain at Habana, Mr. Lucien J. Jerome, is so acting at the present time and will continue to do so until, by the final evacuation, the control of that port shall pass for the time being into the hands of the military authorities of the United States, when, of course, there would be no further occasion for a consular representative there.
In view of the fact that adequate provision exists for consular representation of the United States at Habana during the current interval and in view, also, of the further circumstances that the same technical continuance of a state of war which would prevent the titular consular- general of the United States at Habana from returning to his post, would prevent the substitution of a new consular representative whose power to act would depend upon recognition by the local authorities and whose functions are, by the statute above referred to, limited to mariners of the United States, I have the honor to request that proper instructions be given to the naval officer in the premises.
I have the honor to be, Sir,
Your obedient servant,
JOHN HAY.
INSURGENT BLOCKADE. CERTAIN CONCLUSIONS OF THE DEPARTMENT OF STATE.
In the following letter addressed to the Secretary of the Navy the Secretary of State discusses the question of insurgent blockade and formulates cer- tain conclusions. The correspondence in full may be found in International Law Situations, Naval War College, 1902, pp. 79-83, embodied in a some- what full discussion of the subject.
207
DEPARTMENT OF STATE, Washington, D. C., November 15, 1902. The HONORABLE
The SECRETARY OF THE NAVY.
SIR: I have the honor to acknowledge the receipt of the letter of the Acting- Secretary of the Navy (346855 B), under date of November 12, inclosing copy of a letter from the president of the Naval War College containing certain suggestions respecting interference with commerce by in- surgent vessels, and requesting my comments thereon.
While as a rule this Department is reluctant to express, of record, general opinions or comments upon questions of a more or less academic character, the papers you submit to me, and particularly the statement prepared by Pro- fessor Wilson and submitted to Captain F. E. Chadwick, may justify some general observations.
Cases involving assertion of the rights of insurgent insu ;ent " blockade" are necessarily exceptional, to be considered ceptionai. ls as governed by exigent circumstances rather than by doc- trine.
In dealing with concrete cases arising within the official HOW dealt cognizance of the Department of State and embracing W1 points of international law like those presented in Mr. Wilson's memorandum, this Department endeavors to in- terpret the consensus of international law authorities with due regard to the precise significance of the term "block- ade."
Blockade of eneniv ports is, in its strict sense, conceived .B.1°ckadel,
strictly speak- to be a definite act of internationally responsible sovereign ins- and .meaf-
* ures marking its
in the exercise of a right of belligerency. Its exercise exercise, involves the successive stages of, first, proclamation by a sovereign state of the purpose to enforce a blockade from an announced date. Such proclamation is entitled to re- spect b}7 other sovereigns conditionally on the blockade proving effective. Second, warning of vessels approaching the blockaded port under circumstances preventing their having previous actual or presumptive knowledge of the international proclamation of blockade. Third, seizure of a vessel attempting to run the blockade. Fourth, adjudica- tion of the question of good prize by a competent court of admiralty of the blockading sovereign.
Insurgent "blockade," on the other hand, is exceptional, being a function of hostility alone, and the right it in- volves is that of closure of avenues by which aid may reach the enemy.
208
insurgeem°sgnized ^P ^he case °^ an unrecognized insurgent, the foregoing conditions do not join. An insurgent power is not a sov- ereign maintaining equal relations with other sovereigns, so that an insurgent proclamation of blockade does not rest on the same footing as one issued b}r a recognized sovereign power. The seizure of a vessel attempting to run an insurgent blockade is not generally followed by generaHygieanck admiralty proceedings for condemnation as good prize, entui^to^nter- an(^ ^ suc^ proceedings were nominally resorted to a de- nationai respect. cree of fae condemning court would lack the title to that international respect which is due from sovereign states to the judicial act of a sovereign. The judicial power be- ing a coordinate branch of government, recognition of the government itself is a condition precedent to the recogni- tion of the competency of its courts and the acceptance of their judgments as internationally valid.
To found a general right of insurgent blockade upon the recoRnition of belligerency of an insurgent by one or a - f ew foreign powers wrould introduce an element of uncer- tainty. The scale on which hostilities are conducted by the insurgents must be considered. In point of fact, the insurgents may be in a physical position to make war against the titular authority as effectively as one sovereign could against another. Belligerency is a more or less notorious fact of which another government, whose com- mercial interests are affected by its existence, may take cognizance by proclaiming neutrality toward the contend- ing parties, but such action does not of itself alter the relations of other governments which have not taken cog- nizance of the existence of hostilities. Recognition of in- surgent belligerency could merely imply the acquiescence by the recognizing government in the insurgent seizure of shipping flying the flag of the recognizing state. It could certainly not create a right on the part of the insur- gents to seize the shipping of a state which has not recog- nized their belligerency.
It seems important to discriminate between the claim of a belligerent to exercise quasi sovereign rights in accord- ance with the tenets of international law and the conduct of hostilities by an insurgent against the titular govern- ment. sovereign The formal right of the sovereign extends to acts on the
rights extend to i M • .o • i j. • i i •
high seas; insur- high seas, while an insurgent s right to cripple his enemv
gent rights are . fr . . ~
essentially do- by any usual hostile means is essentially domestic within
mestic.
the territory of the titular sovereign whose authority is
209
contested. To deny to an insurgent the right to prevent the enemy from receiving material aid can not well be justified without denying the right of revolution. If for- eign vessels carrying aid to the enemies of the insurgents are interfered with within the territorial limits, that is apparently a purely military act incident to the conduct of hostilities, and, like &ny other insurgent interference with foreign property within the theatre of insurrection, is effected at the insurgent's risk.
To apply these observations to the four points presented in Professor Wilson's memorandum, I may remark:
1. Insurgents not yet recognized as possessing the attributes of full belligerency can not establish a blockade gent blockade- according to the definition of international law.
2. Insurgents actually having before the port of the state against which they are in insurrection a force suffi- cient, if belligerency had been recognized, to maintain an international law blockade, may not be materially able to enforce the conditions of a true blockade upon foreign vessels upon the high seas even though they be approach- ing the port. Within the territorial limits of the coun- tiy, their right to prevent the access of supplies to their enemy is practically the same on water as on land — a de- fensive act in the line of hostility to the enemy.
3. There is no call for the Government of the United neVerSjuSrtffled in
States to admit in advance the ability of the insurgents to close, within the territorial limits, avenues of access to *^r ters ** their enemy. That is a question of fact to be dealt with as it arises. But in no case would the insurgents be justi- fied in treating as an enemy a neutral vessel navigating the internal waters — their only right being, as hostiles, to prevent the access of supplies to their domestic enemy. The exercise of this power is restricted to the precise end to be accomplished. No right of confiscation or destruc- tion of foreign property in such circumstances could well be recognized, and any act of injury so committed against foreigners would necessarily be at the risk of the insur- gents. The question of the nature and mode of the re- dress which may be open to the government of the injured foreigners in such a case hardly comes within the purview of your inquiry, but I may refer to the precedents hereto- fore established by this Government in enunciation of the right to recapture American vessels seized by insurgents. 1 have the honor to be, sir, your obedient servant,
JOHN HAY.
2056—04 - 14
INDEX.
ADMIRALTY JURISDICTION. See JURISDICTION-. ADULA—
Case of (105). AGENTS—
Immunity of those of foreign governments in United States courts (38).
APPROACH- TO blockaded port unwarranted, even to make inquiries, by master knowing of
blockade (112). ARBITRATION—
Fur seal (Bering Sea). See BERING. ARMS—
Distinction between arms as cargo and as equipment (130); generally contra- band (131); but not when kept solely for defense against "enemies, pirates, and assailing thieves" (132) ; when on board for defense not conclusive as to vessel's character (132). ARREST—
Of deserters under foreign flag in home jurisdiction (192). ASSIGNMENT—
Neutral title by, to cover enemy interest, overridden by captor's claim (163) . AUXILIARY CRUISERS—
Status of Yale in Spanish- American war (200). BELLIGERENCY—
Operation of neutrality act not necessarily dependent upon state of (23); nor upon recognition of (36); recognition of incurs certain restraints and liabili- ties (34); conditions of recognition of (34); distinction between recognition of and recognition of a condition of political revolt (34). BENITO ESTENGER—
Case of (136). BERING SEA—
Award of Arbitration Tribunal in matter of the preservation of fur seals, and of
jurisdictional rights (166). BILLS OF LADING—
Only quasi negotiable (154). BLOCKADE—
Different kinds of (47); difference between military and commercial (49); actual, or simple, as distinguished from public (108); simple maybe established by naval officers without governmental notification (108) ; presence of a particu- lar force not necessary for effectiveness (42); not dependent upon numbers for effectiveness (45); effective if one modern cruiser makes entrance dan- gerous (45,47); effective if ingress or egress be dangerous in fact (50); not terminated by occupation of a river or harbor mouth when places beyond are held by enemy (110); legal effect of (111); violated ipso facto by vessel sailing with intent to violate it ( 111 ) ; notice of to charterer is notice to vessel
211
212
( 120) ; effectiveness of can not be disputed by vessel captured after once being warned (45); of north Cuban coast instituted and proclaimed (60); of Guan- tanamo competently established (109); insurgent (207); strict, and measures attending its exercise (207); strict, can not be established by unrecognized insurgents (208, 209) ; limitations upon insurgent blockade when belligerency is recognized (208, 209). BLOCKADED PORT—
Masters knowing of blockade must not approach, even to make inquiries (112). BOUNDARY—
Between Great Britain and Venezuela, title by prescription recognized (165) BRITISH FOREIGN ENLISTMENT ACT (31). BUENA VENTURA—
Case of (70). BUNDESRATH—
Correspondence in case of (195). CABLES—
Cutting of neutral, in enemy waters not ground for indemnity (194). CAPTOR—
Claim of, overrides neutral title by assignment to cover enemy interest (163). CAPTURE—
Probable cause exists for, when circumstances warrant suspicion (57) ; justified by probable cause (79) ; right of, unaffected by secret liens or private engage- ments (155). CARGO—
On enemy vessels is presumably enemy property (151). CARLOS F. ROSES—
Case of (146). CAUSE—
Probable, for capture, exists when circumstances warrant suspicion (57) . CHARTER—
Of neutral vessel to an enemy makes her to a certain extent an enemy vessel
(120). CHINA—
Extraterritorial jurisdiction of consuls in (176). CIVILIAN—
Officers and crew of auxiliary cruiser Yale " in the service" (201). COAST FISHING VESSELS—
Exemption from capture, see EXEMPTION; Sampson's dispatch concerning (102);
Department's answer (103). COLONY, DISTRICT, OR PEOPLE—
Why words were included in act of 1817 (27); application of words (28, 29). CONDEMNATION—
Colorable transfer is ground for (142). CONTINUOUS VOYAGES—
Case of the Bundesrath (195). CONSULAR FUNCTIONS—
Assumption of by naval officers during military occupation (205). CONSULS—
Extraterritorial jurisdiction of in China (176.); those of the United States have
no authority to give a license of exemption to enemy vessels (141). CONTRABAND—
Arms: Cargo as opposed to permanent equipment (130); arms and ammunition generally contraband (131), but not when kept on board solely for defense against "enemies, pirates, and assailing thieves "(132); provisions are not, in general, but may become so (139).
218
COOPERATION—
British China Station orders concerning (177). CRUISER—
Auxiliary: Case of Yale (200). CUBA—
Declared free and independent by joint resolution of Congress (58). DATE—
Of sailing unimportant if prior to that set for beginning of war (76, 78). DECREE—
Spanish, at opening of war with the United States (61) . DESERTERS-
Arrest of, under foreign flag in home jurisdiction (192). DISTRICT—
Application of words "colony, district, or people" in neutrality act (28,29). DUTIES—
Accrue to military occupant (204). EFFECTIVE BLOCKADE. See BLOCKADE. ENEMIES—
Who are, in general (137); status of, not affected by individual acts of friend- ship (140). ENEMY PROPERTY—
Determined by illegal traffic (137). ENEMY STATUS—
Not affected by individual acts of friendship (140). ENEMY VESSEL—
Cargo on board is presumably enemy property (151). EXEMPTION FROM CAPTURE—
Not governed by a state's diplomatic attitude, but by international law (66) ; only for vessels on original voyage from the United States (77); none for enemy vessels because of neutral ownership (69) ; vessels sailing shortly before as well as shortly after war began included under President's proclamation (78) ; none by international rule for mail ships ( 128) ; none for ships carrying government mail except by express order of the government (129); consuls of the United States have no authority to grant to enemy vessels (141). EXEMPTION FROM CAPTURE, COAST FISHING VESSELS—
History of rule (82); doctrine familiar to United States (84); recognized by the United States in treaties with Prussia (85); interrupted during French Revo- lution (86); recognized by United States in Mexican war (90), and in treaty with Mexico, 1848 (93); not denied since 1806 (94); opinions of various writers (94); now established rule (101); voided by warlike employment (101); does not include " great fisheries " (101); attitude of United States in Spanish war (102). EXILES—
Reentry of American, into foreign countries (193). EXTRATERRITORIAL RIGHTS—
In Shanghai (174); of consuls in China (176). FISHERIES—
Coast, see COAST FISHING VESSELS, also EXEMPTION; great, not included in exemp- tion of coast fishing vessels (101). FOREIGN ENLISTMENT ACT, BRITISH (31). FUR SEALS—
Award of Arbitration Tribunal (168) ; concurrent regulations for preservation and
protection of (170). GUANTANAMO—
Blockade of, competently established by Admiral Sampson (109).
214
HIGH—
One signification of word and its application to the seas (13). HIGH SEAS—
Former meaning of term (7); claims of sixteenth and seventeenth centuries (8); Hale' s definition (8); American court definitions (8); indicates certain dis- tinctions (9); Supreme Court's interpretation in United States v. Rodgers (10, 15); previous Supreme Court pronouncements (12). ILLEGAL TRAFFIC—
Stamps property as hostile ( 137 ) . IMMUNITY-
Of officers or agents of foreign governments in United States courts (38); for acts
done as an agent for a revolutionary government (38) . IMPRISONMENT—
Illegal, of United States citizens abroad (173). INDEMNITY—
For acts done by a mob, see MOB VIOLENCE; none due for cutting neutral cables
in enemy waters (194) . INDEPENDENCE—
Of Cuba declared by joint resolution of Congress (58). INSURGENT BLOCKADE. See BLOCKADE. INTERNATIONAL LAW—
Is part of United States law (94). JOINT RESOLUTION—
Of Congress declaring Cuba free and independent and demanding Spain's with- drawal (58). JURISDICTION—
Of Russia in Bering Sea (169); of the United States (170). JURISDICTION, ADMIRALTY—
Division of opinion of Circuit Court in the case of United States \. Rodgers (5); question upon which division arose (6) ; over vessels in Detroit River (14, 17); general rule (14); Mr. Webster on (18); unaffected by boundary line in the Great Lakes (19). JURISDICTION, EXTRATERRITORIAL—
Of consuls in China (176). LADING—
Bills of, only quasi negotiable (154). LANDING PARTIES—
British China station orders concerning (178). LAW—
Courts must apply it as it is, not as contended it should be (66) ; international, is part of United States law (94); municipal, generally holds in occupied ter- ritory (203). LIABILITIES—
Incurred by recognition of belligerency (34). LIENS—
Secret, do not affect right of capture (155). LOLA—
Case of (80). MAIL SHIPS—
Not exempt from capture by international rule (128) ; not exempt when carrying
government mail except by express orders of the government (129). MERCHANT VESSELS—
Treatment of, prescribed by President's proclamation (62).
215
MILITARY AUTHORITIES—
Right of, to levy tariffs during occupation (205). MILITARY OCCUPATION. See OCCUPATION. MOB VIOLENCE—
To Italian subjects: Letter of Secretary of State concerning (184); in case of Antonio Abbagnato (190); in case of Spanish consul and others (185); in- demnity for injury by, not a general right (186) ; redress of Italians for injury by, same as for United States citizens (190); indemnity for injuries by, in New Orleans, 1891, offered and accepted (189,190). NAVAL OFFICERS—
Assumption of consular functions by, during military occupation (205); may
establish blockades (108). NEUTRAL—
Ownership does not exempt enemy vessels (69); vessels chartered to enemy
become to a certain extent enemy vessels ( 120) . NEUTRALITY-
Strict, as distinguished from duty toward friendly nations whose domestic peace
is disturbed (24). NEUTRALITY ACT—
Usual name of Title LXVII of the Revised Statutes (24); its operation not
necessarily dependent upon a state of belligerency (23); history of (24). NOTICE—
Of blockade to charterer is notice to vessel (120). OCCUPATION—
Of entrance does not necessarily terminate blockade off entrance (110); of Santi- ago de Cuba: Executive order in War Department, G. 0. No. 101 (202) ; right of military authorities to levy tariffs during (205) ; assumption of consular functions by naval officers during military (205). OFFICERS—
Assumption by naval, of consular functions during military occupation (205); naval, may establish blockades (108); immunity of those of foreign govern- ments in United States courts (38). OLINDE RODRIGUES—
Case of (40). ORDER IN COUNCIL, BRITISH—
Rules for the treatment of merchant ships in the Crimean war (69). OUTBREAKS—
Use of British naval force during (177). PANAMA—
Case of (123). PAPERS—
Spoliation or concealment of ship's, not in itself sufficient ground for condem- nation (55, 56). PAQUETE HABANA—
Case of (80). PEDRO—
Case of (58). PEOPLE—
Application of words "colony, district, or people" in neutrality act (28, 29);
meaning of word, in neutrality act (33). POLICY-
Evidenced by prior Executive views (74). PORT—
Time allowed merchant vessels to leave after war began (61, 62, 69 footnote).
216
PRESCRIPTION—
Title by. See BOUNDARY. PRIZE MONEY—
Of civilian officers and crew of auxiliary cruiser Yale (200). PROBABLE CAUSE—
Capture justified by (79) ; existence of, when circumstances warrant suspicion (57) . PROCLAMATION—
President's, of blockade of Cuban north coast (60); President's, as to conduct of war at sea (62); liberal interpretation by court (73); construction of (74); intent of (76); restricted immunity under (77); vessels sailing before war began included in those exempted under (78). PROPERTY—
Cargo on enemy vessel presumably enemy (151); public and private, during
occupation (203,204). PROVISIONS—
Not generally contraband, but may become so (139); trade in them with an
enemy by an enemy is decisive (139). REENTRY—
Into foreign countries of Americans exiled therefrom for participation in revo- lutions (193).
RESOLUTION, JOINT. See JOINT RESOLUTION. RESTRAINTS—
Certain, incurred by recognition of belligerency (34). REVOLT—
Recognition of a condition of political, as compared with recognition of bellig- erency (34). REVOLUTION—
Agents of successful, are official representatives of state (39) . RIGHTS—
Of foreigners in the United States by treaty (186, 190). RULINGS—
Of Supreme Court can not be changed to conform to foreign opinions of supposed
international law (113). SEALS. See FUR SEALS. SEAS—
Great Lakes are essentially (11, 19). See also HIGH SEAS. SHANGHAI—
Extraterritorial jurisdiction of consul in (176). SPANISH-AMERICAN WAR. See WAR. SPANISH DECREE—
At opening of war with the United States (61). STATUS—
As enemy unchanged by individual acts of friendship (140). SUPREME COURT RULINGS. See RULINGS. TARIFFS—
Right of military authorities to levy, during occupation (205). TAXES—
Accrue to military occupant (204). THREE FRIENDS—
Case of (20). TITLE—
By assignment. See ASSIGNMENT.
By prescription. See BOUNDARY.
217
TRADE—
With enemy on enemy vessel is decisive (139). TRANSFER—
Colorable, is ground for condemnation (142). TREATY RIGHTS. See RIGHTO. UNITED STATES v. RODGERS.
Case of (5). UNDERBILL v. HERNANDEZ—
Case of (37). VESSEL—
Cargo on board enemy is presumably enemy property (151). VIOLATION OF BLOCKADE—
Committed ipso facto by vessel sailing with intent to violate it (111) . WAR—
Existence of, in revolutions or insurrections not necessarily dependent upon acknowledgment of belligerency (39); historical attitude of the United States in favor of mitigating its horrors ( 72 ) ; may exist before formal decla- ration or actual hostilities (65) ; Spanish-American: Date of beginning set in declaration of, by act of Congress (61); declaration in Spanish decree (61); rules for its conduct at sea (62). YALE—
Case of, as auxiliary cruiser (200).
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