"Austrian merchant vessels which are now in Prussian ports, or whose masters, unaware of the breaking out of the war, may enter Prussian ports, shall, on condition of reciprocity, have six weeks reckoned from the day of their entry into port to land their cargo and to go away with a new cargo, contraband of war excepted. On the expiration of this term they must leave port. Austrian merchant. vessels whose masters were aware of the breaking out of the war are not permitted to enter a Prussian port." Prussian ministerial declaration, June 21, 1866, enclosed with Baron von A similar course was taken by the French Government. (Halleck, Int. "Merchant vessels belonging to the enemy which were actually in the French ports, or which entered the ports in ignorance of the war, were allowed a delay of thirty days for leaving, and safe-conducts were given them to return to their port of despatch or of destination. Vessels which took in cargoes for France, or on French account, in enemies' or neutral ports before the declaration of war, were not subject to capture, but were allowed to disembark their freights in the French ports, and afterwards received safe-conducts to return to their ports of despatch." Halleck, Int. Law (3d ed., by Baker), I. 532, note. Among the rules laid down by the President in his proclamation of April 26, 1898, for the government of officers of the United States during the war with Spain, the fourth read as follows: "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: 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 despatch of or to the Spanish Government." Proclamations and Decrees during the War with Spain, 77. The rules to be observed by the Spanish Government were embodied in the royal decree of April 23, 1898. This decree allowed only five days from the date of its publication for the departure of American ships from Spanish ports. It did not in terms prohibit the capture of such ships after their departure, nor did it provide for the entrance and discharge of American ships sailing for Spanish ports before the war. A list of all the prizes made by the United States naval forces on the In the case of the Buena Ventura an important application was made of rule 4 of the proclamation of April 26. The Buena Ventura was a Spanish merchant steamship, which was captured by the United States steamship Nashville, eight or nine miles off the Florida coast. On the 27th of May she was condemned by the United States district court for the southern district of Florida as enemy property. This sentence was reversed by the Supreme Court of the United States. It appeared that the Buena Ventura was, at the time of her capture, on a voyage from Ship Island, in the State of Mississippi, to Rotterdam, by way of Norfolk, Virginia, with a cargo of lumber. She arrived at Ship Island March 31, 1898, and sailed for Rotterdam on April 19, with a permit, obtained in accordance with the laws of the United States, to call at Norfolk for a supply of bunker coal. She was captured on the morning of April 22. She made no resistance, had on board no military or naval officer, and carried no arms or munitions of war. It was undisputed that when captured she was on her way to Norfolk and that her papers for that purpose were in due form. The opinion of the Supreme Court was delivered by Mr. Justice Peckham. The question at issue was whether she could be brought within the exemption of the fourth rule of the proclamation of April 26 as to "Spanish merchant vessels, in any ports or places within the United States." In the course of his opinion Mr. Justice Peckham observed that the vessel in question, as a merchant vessel of the enemy carrying on an innocent commercial enterprise at or just prior to the time when hostilities began, belonged to a class which the United States had always desired to treat with great liberality, and which civilized nations had in their later practice in fact so treated." The President's proclamation should therefore receive "the most liberal and extensive interpretation" of which it was capable, and where two or more interpretations were possible, the one most favorable to the belligerent in favor of whom the proclamation was issued. The provision that “Spanish merchant vessels in any ports or places within the United States shall be allowed until May 21, 1898, inclusive, for loading their cargoes and departing," might, said the learned justice, be held to include (1) only vessels in port on the day when the proclamation was issued, namely, April 26, or (2) those in port on April 21, the day on which war was declared by Congress to have begun, or (3) not only those then in port, but also any that had H. Doc. 551-vol 7-30 sailed there from on or before May 21, whether before or after the commencement of the war or the issuing of the proclamation. The court adopted the last interpretation. While the proclamation did not in so many words include vessels which had sailed from the United States before the commencement of the war, such vessels were, said Mr. Justice Peckham, clearly within its "intention," under the liberal construction which the court felt bound to give it. In view of the fact, however, that, at the time of the capture, the proclamation of April 26, without which the vessel would have been liable to condemnation, had not been issued, restitution was awarded without damages or costs. The Buena Ventura, 175 U. S. 384; reversing Buena Ventura et al., 87 The Chief Justice and Justices Gray and McKenna dissented from the The effect of the fourth rule of the proclamation of April 26 was again considered in the case of the Spanish steamship Panama. This vessel was condemned by the court of original jurisdiction as enemy property, and the decree was confirmed by the Supreme Court. The Panama, a steamship of 1,432 tons register, owned by the Compania. Transatlantica, a Spanish corporation of Barcelona, Spain, and carrying the Spanish flag, sailed from New York on April 20, 1898, for Havana, Cuba, and certain Mexican ports, with a general cargo and passengers and mails. April 25, when about twenty-five miles from Havana, she was captured by a United States man-of-war. The Panama had a commission as a royal mail ship from the Spanish Government and a crew of seventy-one men, who had been shipped at various times at Havana, and she carried twenty-nine passengers, all of whom, with the exception of one Frenchman, were Spaniards. Mr. Justice Gray, who delivered the opinion of the Supreme Court, said that the case of the Buena Ventura would be decisive of that of the Panama, but for the mails and the arms carried by the latter vessel and the contract under which she sailed. Under that contract, which was entered into in 1886, the Spanish Government had the right to take possession of the steamer in case of war; and it was required that the ships belonging to the line should be specially adapted to use in war, and that every mail steamer should carry a certain armament "for her own defense." The officers and crew. and so far as possible the engineers, were to be Spaniards. When captured the Panama carried two breech-loading Hontoria guns of nine-centimeter bore, one mounted on each side of the ship; one Maxim rapid-fire gun on the bridge; twenty Remington 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 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 |