before, and the small arms or ammunition a year or more; and all her armament was carried in compliance with the mail contract, except the Maxim gun and the Mauser rifles. It might be assumed, said the court, that the primary object of the steamer's armament, and in time of peace its only object, was that of defense. The armament, however, was not in itself inconsiderable, and after the capture of the vessel her arms and ammunition were delivered over for the use of the United States Navy. The ship was therefore enemy property, bound to an enemy port, carrying an armament susceptible of use for hostile purposes, and herself liable, on arriving in that port, to be appropriated by the enemy for such purposes. The intent of the proclamation, continued the court, was to exempt for a time from capture peaceful commercial vessels, and not to assist the enemy in obtaining weapons of war; and it could not be reasonably construed as exempting from capture "a Spanish vessel owned by a subject of the enemy; having an armament 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 by the enemy and employed as an auxiliary cruiser in the enemy's navy." The Panama, 176 U. S. 535. In the proclamation of the President of April 26, 1898, concerning maritime law in the war with Spain, there was the following rule · 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 afterward 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." Proclamations and Decrees during the War with Spain, 77, 78. The Pedro, which was a British-built ship, and for several years. sailed under a British registry, was transferred in 1887 to a Spanish corporation of Bilbao, Spain, and was duly registered as a Spanish vessel. Thereafter she sailed under the Spanish. flag and was officered and manned by Spaniards, though she was employed for the transportation of merchandise for hire under the management of a Liverpool firm. Her usual course was to take cargo in Europe for Cuban ports and, after discharging there, to proceed to the United States and obtain cargo for Europe, the round trip occupying about three months. On March 18, 1898, while she was loading in Antwerp for Cuba, she was chartered by an American firm to proceed to Pensacola, Florida, or Ship Island, Mississippi, for a cargo of lumber for Rotterdam or Antwerp. Soon afterwards she left Antwerp with about two thousand tons of merchandise of various kinds for Havana and Cienfuegos. She arrived at Havana on April 17 and, after discharging most of her cargo, sailed on the 22d for Santiago, Cuba, with a small quantity of general merchandise taken at Havana. On the same day she was captured a few miles off Havana by a cruiser of the United States blockading fleet. Her condemnation was resisted on the ground, among others, that her true destination was a port in the United States, so that she fell within the exemption contained in rule five. The court, Chief Justice Fuller delivering the opinion, declined so to hold. The Chief Justice observed that the Pedro remained at Havana from the 17th of April to the 22d, and left on the latter day, which was the day after the war began; that she then had no cargo for any port in the United States, but only for Santiago and Cienfuegos, in Cuba. She had not left a foreign port in ignorance of the "perilous condition of affairs," but must be assumed to have been advised of the imminency of hostilities; nor was she bringing a cargo to the United States for the increase of its resources and the convenience of its citizens. On the contrary, she was captured while trading from one enemy port to another, being herself an enemy vessel. Under these circumstances, the fact that she was under contract ultimately to proceed to a port of the United States to take cargo for Europe did not, said the Chief Justice, bring her within the exemption of the fifth rule; and he declared that the doctrine of continuous voyages, as laid down by the court on various occasions, did not apply to the case. The decree of condemnation was therefore affirmed. The Pedro, 175 U. S. 354. The Chief Justice discussed and distinguished the following cases: The 52. Mr. Justice White delivered a strong dissenting opinion, in which Justices Brewer, Shiras, and Peckham concurred. In this opinion it was argued that the principal voyage of the vessel was from Antwerp to the United States, the calling at Cuban ports being merely incidental: that, although Congress afterwards declared that war should be considered as having existed on and after April 21, it was neither conceived nor known, when she left Havana on the 22d, that a state of war existed; that, just before her departure from Havana, one American ship was allowed to sail from that port, and, shortly after her departure, another; and that the reference to the fact that the Pedro had no cargo for the United States ignored the enlightened moral purpose of the proclamation, and particularly the provisions of the fourth rule, which allowed enemy ships not only to depart from the United States, but also to load and take away cargo either for a neutral port or for a port of the enemy not blockaded. Mr. Justice White also contended that the decision of The Argo, Spinks's Prize Cases, 53, was a decision in consimili casu, and should be 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." 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 war. Fishermen were included in the treaty between the United States and Prussia in 1785, as a class of non-combatants not to be 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." 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. |