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. * * * This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience 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 capture as prize of war. The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way. 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 are salted 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 any treaty or other public act of their own government in relation to the matter. Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance. Calvo, § 2368. Nor are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous one, should be recognized and declared by a prize court. * To this subject, in more than one aspect, are singularly applicable the words uttered by Mr. Justice Strong, speaking for this court: "Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when generally accepted, became of universal obligation." "This is not giving to the statutes of any nation extra-territorial effect. It is not treating them as general maritime laws; but it is recognition of the historical fact that by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact, we think, we may take judicial notice. Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations." The Scotia, 14 Wall. 170, 187, 188, 20 L. Ed. 822.10 * 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. 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 vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages and costs. Mr. Chief Justice FULLER, with whom concurred Mr. Justice HARLAN and Mr. Justice MCKENNA, dissenting. * * 10 Maritime law (unless part of international law) has the effect of law only in so far as it is adopted by the laws, usages, and customs of the particular country. Norwich Co. v. Wright, 13 Wall. 104, 20 L. Ed. 585 (1872), especially The Lottawanna, 21 Wall. 558, 572-578, 22 L. Ed. 654 (1874), where the subject is discussed in detail; The Scotland, 105 U. S. 24, 26 L. Ed. 1001 (1881), where cases in 13 and 21 Wall. are cited and approved. In The Manhasset (D. C.) 18 Fed. 918, 920-923 (1884) this subject was considered and the following résumé is found on page 922 of the judgment of Hughes, J.: "From all that has been said, these things would seem to be clear: First, that the maritime law, existing as it does by the common consent of nations, and being a general law, cannot be changed or modified as to its general operation by any particular sovereignty; second, that it has force in any country only by its adoption, express or implied, by that country, and may be modified in its special operation in that jurisdiction at the will of that special sovereignty; third, that it is by such adoption part of the federal law of the United States, and incapable of modification by state enactment,-Congress having exclusive power, under the Constitution, 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;' and the judicial power of the United States, 'exclusive of the state courts,' extending 'to all cases of admiralty and maritime jurisdiction.'" The leading cases on mercantile and maritime law are collected and annotated in Tudor's Mercantile Cases (3d Ed., 1884). For the origin, nature, and extent of admiralty jurisdiction in the United States, see Ames, Cases on Admiralty (1901). SECTION 2.-COMITY. GRAY, J., in THE PAQUETE HABANA, 1900, 175 U. S. 677, 693, 694, 20 Sup. Ct. 290, 44 L. Ed. 320: "Lord Stowell's judgment in The Young Jacob and Johanna, 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 Stowell, in delivering judgment, said: 'In former wars, it has not been usual to make captures of these small fishing vessels; 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 reason 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 enemy's trade.' And he added: 'It is a farther satisfaction to me in giving this judgment to observe that the facts also bear strong marks of a false and fraudulent transaction.' * "But some expressions in his opinion have been given so much weight by English writers, that it may be well to examine them particularly. The opinion begins by admitting the known custom in former wars not to capture such vessels-adding, however, 'but this was a rule. of comity only, and not of legal decision.' Assuming the phrase 'legal decision' to have been there used, in the sense in which courts are accustomed to use it, as equivalent to 'judicial decision,' it is true that, so far as appears, there had been no such decision on the point in England. The word 'comity' was apparently used by Lord Stowell as synonymous with courtesy or good will. But the period of a hundred years which has since elapsed is amply sufficient 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 substantial mitigation has taken place in the practice of war; and in proportion as that mitigated practice has received the sanction of time, it is raised from the rank of mere usage, and becomes part of the law of nations.' Discourse on the Law of Nations, 38; 1 Miscellaneous Works, 360." 11 11 For the relation of international law to the municipal law of Great Britain and the United States, see Cyril Moses Picciotto, The Relation of International SCOTT INT. LAW-2 Law to the Law of England and of the United States of America (1915); Philip Quincy Wright, The Enforcement of International Law through Municipal Law in the United States (1916). For the general relation of international law to municipal law, see Heinrich Triepel, Völkerrecht und Landesrecht (1899), French translation under title of Droit International et Droit Interne, by René Brunet (1920). See, also, a briefer treatment of the same subject by Wilhelm Kaufman, Die Rechtskraft des Internationalen Rechts und das Verhältnis der Staatsgesetzgebungen und der Staatsorgane zu demselben (1899). The tendency to regard international law as having the force and effect of municipal law is admirably stated in article 4 of the present Constitution of the German Republic, adopted August 11, 1919: "Die allgemein anerkannten Regeln des Völkerrechts gelten als bindende Bestandteile des deutschen Reichsrechts." This article may be freely, but accurately, rendered as follows: "The generally recognized rules of international law form an integral part of the law of the German Reich and are binding as such." See, also, to the same effect, article 9 of the Constitution of the Republic of Austria, of October 1, 1920. The German text is as follows: "Die allgemein anerkannten Regeln des Völkerrechtes gelten als Bestandteile des Bundesrechtes." Of this the following is an English equivalent: "The generally recognized rules of international law form an integral part of the federal law." SCOTT INT.LAW PART I RIGHTS AND DUTIES OF NATIONS IN TIME CHAPTER 1 STATES SECTION 1.-NATURE AND KINDS: YRISARRI v. CLEMENT. (Court of Common Pleas, 1825. 2 Car. & P. 223.) In an action brought by the plaintiff against defendant for a libel published in the Morning Chronicle, it appeared that the plaintiff had been appointed minister and diplomatic agent to Great Britain; that he employed Messrs. Hullett and Widder to raise a loan of £100,000 for the service of Chili; that the Morning Chronicle imputed fraud to plaintiff in the application of the money raised by him.1 BEST, C. J. It occurs to me at present, that there is this distinction. If a foreign state is recognized by this country, it is not necessary to prove that it is an existing state; but if it is not so recognized, such proof becomes necessary. There are hundreds in India, and elsewhere, that are existing states, though they are not recognized. I take the rule to be this-if a body of persons assemble together to protect themselves, and support their own independence, and make laws, and have courts of justice, that is evidence of their being a state. We have had, certainly, some evidence here to-day that these provinces formerly belonged to Spain; but it would be a strong thing to say, that because they once belonged, therefore they must always belong. We have recognized lately some of these states. It makes no difference whether they formerly belonged to Spain, if they do not continue to acknowledge it, and are in possession of a force sufficient to support themselves in op 1 A shortened statement of facts is substituted for that of the original report, and only so much of the opinion is given as relates to Chile as a "foreign state." |