treated as an authority for the restoration of the Pedro. The case of The Guido, 175 U. S. 382, was decided on the strength of the Pedro without an extended opinion. A Spanish vessel which sailed from England Apr. 9, 1898, touched at Corunna, Spain, April 16, and then sailed for ports in Porto Rico, did not come within the proclamation of Apr. 26, but was, after the outbreak of war, subject to capture as enemy property. (The Rita 87 Fed. Rep. 925; S. P., The Maria Dolores, 88 Fed. Rep. 548.) "7. In accordance with the rule adopted by the United States in the existing war with Spain, neutral vessels found in port at the time of the establishment of a blockade will, unless otherwise ordered by the United States, be allowed thirty days from the establishment of the blockade to load their cargoes and depart from such port." Instructions to United States Blockading Vessels and Cruisers, General "ARTICLE I. Russian merchant ships which happen to be moored in any Japanese port at the time of the issue of the present rules may discharge or load their cargo and leave the country not later than February 16. "ARTICLE II. Russian merchant ships which have left Japan in accordance with the foregoing article and which are provided with a special certificate from the Japanese authorities shall not be captured if they can prove that they are steaming back direct to the nearest Russian port, or a leased port, or to their original destination: this measure shall, however, not apply in case such Russian merchant ships have once touched at a Russian port or a leased port. “ARTICLE III. Russian steamers which may have left for a Japanese port before February 16 may enter our ports, discharge their cargo at once, and leave the country. The Russian steamers coming under the above category shall be treated in accordance with Article II. "ARTICLE IV. Russian steamers carrying contraband of war of any kind whatever shall be excluded from the above rules." 66 Imperial Japanese Ordinance, No. 20, Feb. 9, 1904, For. Rel. 1904, 414; Japanese trading vessels which were in Russian ports or havens at the time of the declaration of the war are authorized to remain at such ports before putting out to sea with goods which do not constitute articles of contraband during the delay required in proportion to the cargo of the vessel but which in any case must not exceed fortyeight hours from the time of the publication of the present declaration by the local authorities." Imperial Russian Order, Feb. 14, 1904, For. Rel. 1904, 727-728; Monthly 3. PALCULAR EXEMPTIONS. § 1197. A cargo, the product of the island of Dominica, was held to be protected from British capture under the capitulation under which Great Britain surrendered the island to France, though the cargo was at the time at sea, and its owners were resident in England. Case of The Resolution, Federal Court of Appeals, 1781, 2 Dallas, 1. "In the case of a collection of Italian paintings and prints captured by a British vessel during the war of 1812, on their passage from Italy to the United States, the learned judge (Sir Alexander Croke) of the vice-admiralty court at Halifax, directed them to be restored to the Academy of Arts in Philadelphia, on the ground that the arts and sciences are admitted amongst all civilised nations to form an exception to the severe rights of war, and to be entitled to favour and protection. They are considered not as the peculium of this or that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species; and that the restitution of such property to the claimants would be in conformity with the law of nations, as practised by all civilised countries." 66 Twiss, I aw of Nations at War (2d ed.), 132. Fishing boats have also, as a general rule, been exempt from the effects of hostilities. Henry VI. issued orders on the subject of fishing vessels in 1403 and 1406. In 1521, while war was raging between Charles V. and Francis, embassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800, the British and French Governments issued formal instructions exempting the fishing boats of each other's subjects from seizure. This order was subsequently rescinded by the British Government, on the ground that some French fishing boats were equipped as gun boats (it being intended by the French to form a flotilla of some 500 or 600 of them to employ against England), and that some French fishermen, who had been prisoners in England, had violated their parole, and had gone to join the French fleet at Brest. The British restriction was afterwards withdrawn, and the freedom of fishing was again allowed on both sides. Emerigon refers to ordinances of France and Holland, in favor of the protection of fishermen during Fishermen were included in the treaty between the United States and Prussia in 1785, as a class of non-combatants not to be war. molested by either side. French writers consider this exemption as an established principle of the modern law of war; it has been so recognised in the French courts, which have restored such vessels when captured by French cruisers, and the French Government, for the last forty years, has absolutely prohibited their capture. The United States made a like prohibition during the Mexican war. The doctrine, however, of the English courts is that such exceptions form a rule of comity only; for fishing vessels fall under the description of ships employed in the enemy's trade, and as such may be condemned as prize." 2 Halleck's Int. Law (3d ed. by Baker), 106–107. "Coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war." 66 The Paquete Habana, 175, U. S. 677, 708; The Lota, id. 4. PROPOSED GENERAL IMMUNITY. § 1198. See supra, And all women and children, scholars of every faculty, cultivators of the earth, artizans, manufacturers, 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, 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. And all merchant and trading vessels employed in exchanging the products of different places, and thereby rendering the necessaries, conveniencies, and comforts of human life more easy to be obtained, and more general, shall be allowed to pass free and unmolested; and neither of the contracting powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce." Article XXIII. Treaty with Prussia, signed Sept. 10, 1785, on the part of the United States by Franklin, Jefferson, Adams; on the part of Prussia, by De Thulemeier. See comment in the special message of President J. Q. Adams of Mar. 15, 1826, Richardson's Messages, II. 329. Mr. C. J. Ingersoll, in "A View of the Rights and Wrongs, Power and Policy, of the United States of America," a pamphlet published in November, 1808, while denouncing paper blockades and impressment, asserted his conviction that the world would come in time to maintain the immunity of all private property in war on the ocean. "If," he said, "a concert with Russia, France, Holland, and Spain, all of whom with Denmark must desire it, could be effectuated for freeing the ocean of privateers and search ships, and directing by common agreement the operations of war against ships of war, leaving the merchantman to the peaceable pursuit of his traffic, and if such a system could be secured without our being drawn into hostilities, it certainly were a consummation devoutly to be wished." Mr. Ingersoll urged the same policy on the floor of the House during the war of 1812, as well as in a letter to Mr. Madison of July, 1814. Mr. Madison, it is said, "replied that Mr. Jefferson had rather taken the other view in his correspondence with Genet, but that he himself thought the principle good and desirable, and that unarmed vessels, like ploughs, ought not to be molested." Meigs' Life of Charles Jared Ingersoll, 324–326. "It has been remarked that by the usages of modern war the private property of an enemy is protected from seizure and confiscation as such; and private war itself has been almost universally exploded upon the land. By an exception, the reason of which it is not easy to perceive, the private property of an enemy upon the sea has not so fully received the benefit of the same principle. Private war, banished by the tacit and general consent of Christian nations from their territories, has taken its last refuge upon the ocean, and there continued to disgrace and afflict them by a system of licensed robbery, bearing all the most atrocious characters of piracy. To a Government intent, from motives of general benevolence and humanity, upon the final and total suppression of the slave trade, it cannot be unreasonable to claim her aid and cooperation to the abolition of private war upon the sea. "From the time when the United States took their place among the nations of the earth, this has been one of their favorite objects. "It is time,' said Dr. Franklin, in a letter of 14 March, 1785, it is high time for the sake of humanity that a stop were put to this enormity. The United States of America, though better situated than any European nation to make profit by privateering, are, as far as in them lies, endeavoring to abolish the practice by offering in all their treaties with other powers an article engaging solemnly that in case of future war no privateer shall be commissioned on either side, and that unarmed merchant ships on both sides shall pursue their voyages unmolested. This will be a happy improvement of the law of nations. The humane and the just can not but wish general success to the proposition.' Mr. Adams, Sec. of State, to Mr. Rush, min. to England, July 28, 1823, This proposal was sent to the leading maritime powers, but was not An example, given by Mr. Adams himself, of that private war on the sea, which he so strongly deprecated and condemned, may be found in the following letter addressed by him to Mr. Justice William Johnson, of the Supreme Court, in 1820: "I have had the honor of receiving your letter communicating information of the decease of Mr. Parker, late U. S. district attorney for the district of South Carolina, and also your two letters of the 26th ultimo, with the enclosures in one of them. The first was immediately transmitted to the President, and the last two will be forwarded to him as soon as possible. The agent of the United States now on his way to Angostura, has been instructed to demand the revocation of the commission of Captain Almeida, and satisfaction for his repeated outrages upon the laws of the United States. But Almeida is a citizen of the United States and has never ceased for many years to be an inhabitant of Baltimore, excepting when he has been a sea rover under South American flags and commissions. As captain of the Louisa he was a Buenos Ayrean; as captain of the Wilson, alias Bolivar, he is a Colombian, but the Republic of Colombia has no hold upon him, and if they revoke his commission he can buy one of Artigas for a few dollars. The liberality of this Government in admitting into our ports armed vessels of the South American revolutionists, has not been well requited. They have in fact neither ships, officers, nor seamen of their own. They disavow piracies commited in their names, but they commission foreigners with blank commissions. They require neither residence nor citizenship as qualifications for their officers, and they authorize adjudications upon their captures, out of their own territories. The court at Margaritta, is a mockery upon judicial proceedings, and in a discussion which we have had with the Venezuelan authorities, they assumed as a principle that irregularities of their tribunals were merely errors of form, and that when the property captured was de facto that of their enemies they had a right to keep it, however, it might have got into their power, and however informal their administration of admiralty court justice might be. We have been these three years remonstrating with them as gently and amicably as possible against these prevarications, but their governments are Chinese shadows; they rise upon the stage and pass off like the images of Banquo's descendants in Macbeth. Before a dispatch can be transmitted, and an answer received, a new set of performers appear upon the stage, who acknowledge no responsibility for the acts of their predecessors, and vanish in their turn to make way for others. We hope for better things in future, but in the meantime all the justice we can obtain must be by the execution of our own laws and the decisions of our own tribunals." (Mr. Adams, Sec. of State, to Mr. Justice Johnson, U. S. Supreme Court, Sept. 5, 1820, 18 MS. Dom. Let, 132.) |