tions 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. By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential. 1 Kent Com. 91, note; Halleck, c. 20, § 22; Calvo, § 2376; Hall, § 138. In 1813, while the United States were at war with England, an American vessel, on her voyage from Italy to the United States, was captured by an English ship, and brought into Halifax in Nova Scotia, and with her cargo condemned as lawful prize by the Court of Vice Admiralty there. But a petition for the restitution of a case of paintings and engravings which had been presented to and were owned by the Academy of Arts in Philadelphia, was granted by Dr. Croke, the judge of that Court, who said: "The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted, amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and protection. They are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species." And he added that there had been "innumerable cases of the mutual exercise of this courtesy between nations in former wars." The Marquis de Somerueles, Stewart Adm. (Nova Scotia), 445, 482. In 1861, during the War of the Rebellion, a similar decision was made, in the District Court of the United States for the Eastern District of Pennsylvania, in regard to two cases of books belonging to and consigned to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the custody of the marshal, and restored to the agent of the university, said: "Though this claimant, as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different character. The United States, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to confiscate property captured at sea, of which the proceeds would otherwise increase the wealth of that district. But the United States are not at war with literature in that part of their terriory." He then referred to the decision in Novo Scotia, and to the French decisions upon cases of fishing vessels, as precedents' for the decree which he was about to pronounce; and he added that, without any such precedents, he should have had no difficulty in liberating these books. The Amelia, 4 Philadelphia, 417. . Ordered, that the decree of the District Court be reversed. . . . MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE MCKENNA, dissenting. NOTE. As to the exemption of fishing vessels from capture in time of war see U. S. Naval Instructions Governing Maritime Warfare, June 30, 1917, no. 63 and no. 65; Prize Regulations of Japan, art. 35, 2 Hurst and Bray, 430; Prize Code of the German Empire, sec. 6; The Michael (Japan, 1905), 2 Hurst and Bray, 80; The Alexander (Japan, 1905), 2 Ib. 86. For early English practice see The Young Jacob and Johanna (1798), 1 C. Robinson, 20, and The Liesbet van den Toll (1804), 5 C. Robinson, 283. For the present English practice see The Berlin (1914), L. R. [1914] P. 265. As to other exemptions from capture see The Daifjie (1800), 3 C. Robinson, 139; La Gloire (1804), 5 Ib. 198; The Mary (1804), 5 Ib. 200; The Carolina (1807), 6 Ib. 336; The Rose in Bloom (1811), 1 Dodson, 57; The William Penn (1815), Federal Cases, no. 3372 (cartel ships); The Aryol (Japan, 1905), Takahashi, 620 (hospital ships); The Paklat (Hong-Kong, 1915), 1 Br. & Col. P. C. 515 (philanthropic mission). A ship forfeits its exemption if it performs any service of a military nature or fails to act in good faith, La Rosine (1800), 2 C. Robinson, 372; The Venus (1803), 4 Ib. 355. A hospital ship which is equipped with wireless apparatus and which sends in a secret code messages of which it fails to keep a complete record is not entitled to the protection of Hague Convention no. 10, The Ophelia (1916), L. R. [1916] 2 A. C. 206. A school ship for the training of navigators is not a scientific ship exempt from capture, The Compte de Smet de Naeyer (Germany, 1916), Entscheidungen, 209. See also Hall, International Law, 7th ed. 473; Westlake, International Law, II, 133; Holtzendorff, Handbuch des Völkerrechts, IV, 585, Holland, Prize Law, sec. 36; Oppenheim, International Law, II, 234; Halleck, International Law, 4th ed., II, 124; Latifi, Effects of War on Property, ch. iv; Cobbett, Cases and Opinions, II, 169; Hyde, II, 510; Moore, Digest, VII, 434. CHAPTER XV. PRIZE LAW AND PRIZE COURTS. THE FLAD OYEN. HIGH COURT OF ADMIRALTY OF ENGLAND. 1799. [The Flad Oyen, an English ship, was captured by a French privateer and taken to the neutral port of Bergen, Norway, where the French consul held a pretended prize court and ordered the vessel sold. On a voyage from Bergen to St. Martins she was captured by the British, and is now claimed by her purchaser at the sale ordered by the French consul. In the first part of his opinion the learned judge discusses the bona fides of the sale and finds it colorable.] But another ques Sir W. SCOTT [LORD STOWELL]. tion has arisen in this case, upon which a great deal of argument has been employed; namely, Whether the sentence of condemnation which was pronounced by the French consul, is of such legal authority as to transfer the vessel, supposing the purchase to have been bona fide made? I directed the counsel for the claimants to begin; because, the sentence being of a species altogether new, it lay upon them to prove that it was nevertheless a legal one. It has frequently been said, that it is the peculiar doctrine of the law of England to require a sentence of condemnation, as necessary to transfer the property of prize; and that according to the practice of some nations twenty-four hours, and according to the practice of others bringing infra presidia, is authority enough to convert the prize. I take that to be not quite correct; for I apprehend, that by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary; and that a neutral purchaser in Europe, during war, does look to the legal sentence of condemna tion as one of the title-deeds of the ship, if he buys a prize vessel. I believe there is no instance in which a man having purchased a prize vessel of a belligerent, has thought himself quite secure in making that purchase, merely because the ship had been in the enemy's possession twenty-four hours, or carried infra presidia: the contrary has been more generally held, and the instrument of condemnation is amongst those documents which are most universally produced by a neutral purchaser; that if she has been taken as prize, it should appear also that she has been, in a proper judicial form, subjected to adjudication. Now, in what form have these adjudications constantly appeared? They are the sentences of courts acting and exercising their functions in the belligerent country; and it is for the very first time in the world, that, in the year 1799, an attempt is made to impose upon the court a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorized within the dominions of a neutral country: in my opinion, if it could be shewn, that, regarding mere speculative general principles, such a condemnation ought to be deemed sufficient; that would not be enough; more must be proved; it must be shewn that it is conformable to the usage and practice of nations. A great part of the law of nations stands on no other foundation: it is introduced, indeed, by general principles; but it travels with those general principles only to a certain extent: and, if it stops there, you are not at liberty to go farther, and to say, that mere general speculations would bear you out in a further progress: thus, for instance, on mere general principles it is lawful to destroy your enemy; and mere general principles make no great difference as to the manner by which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some, and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes. Now, it having been the constant usage, that the tribunals of the law of nations in these matters shall exercise their functions within the belligerent country; if it was proved to me in the clearest manner, that on mere general theory such a tribunal |