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Something was said in argument in relation to the character of the cargo. It is true that by the modern law of nations, provisions, while not generally deemed contraband, may become so, although belonging to a neutral, on account of the particular situation of the war, or on account of their destination, as, if destined for military use, for the army or navy of the enemy, or ports of naval or military equipment. The Benito Estenger, 176 U. S. 568; The Panama, 176 U. S. 535; The Peterhoff, 5 Wall. 28; Grotius De Jure Belli et Pacis, lib. III, c. 1, $ 5; Hall, $ 236.
Doubtless, in this instance, the concentration and accumulation of provisions at Havana might fairly be considered a necessary part of Spanish military operations, imminente bello, and these particular provisions were perhaps especially appropriate for Spanish military use; but while these features may well enough be adverted to in connection with all the other facts and circumstances, we do not place our decision upon them.
We are of opinion that a valid transfer of title to this enemy property to claimants was not satisfactorily made out, and that
The decree below must be reversed, and a decree of condemnation directed to be entered, and it is so ordered. MR. JUSTICE SHIRAS, with whom concurred MR. JUSTICE BREWER, dissenting.
INTERNATIONAL BOUNDARY QUESTIONS.
TITLE BY PRESCRIPTION.
Article IV of the Treaty of Arbitration between Great Britain and Venezuela, which was ratified on June 14, 1897, contains the following rules, which are remarkable for limiting the necessary occupation in country claimed by one sovereignty or the other to a period of fifty years:
In deciding the matters submitted the arbitrators shall ascertain all the facts which they deem necessary to a decision of the controversy and shall be governed by the following rules, which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the arbitrators shall determine to be applicable to the case.
(a) Adverse holding or prescription during a period of fifty years shall make a good title. The arbitrators may deem exclusive political control of a district, as well as actual settlement thereof, sufficient to constitute adverse holding or to make title by prescription.
(6) The arbitrators may recognize and give effect to rights and claims resting on any other ground whatever, valid according to international law, and on any principles of international law which the arbitrators may deem to be applicable to the case and which are not in contravention of the foregoing rule.
(c) In determining the boundary line, if territory of one party be found by the tribunal to have been at the date of this treaty in the occupation of the subjects or citizens of the other party, such effect shall be given to such occupation as reason, justice, the principles of international law, and the equities of the case shall, in the opinion of the tribunal, require.
These rules had been embodied in a proposed treaty of arbitration which was agreed upon late in 1896 by the American Secretary of State, Mr. Olney, and the British Ambassador, Sir Julian Pauncefote, for the settlement of the Venezuelan boundary dis
pute. They were not altogether satisfactory to Venezuela and were only accepted by her after considerable hesitation.
THE JURISDICTION OF THE UNITED STATES OVER
THE BERING SEA.
(Fur Seal Arbitration: Proceedings of the Tribunal of Arbitration, vol. 1, p. 75.)
The following is the principal part of the award of the Tribunal of Arbitration, made August 15, 1893, under the treaty of February 29, 1892, between the United States and Great Britain: of Whereas by a treaty between the United States of
America and Great Britain, signed at Washington, February 29, 1892, the ratifications of which by the Governments of the two countries were exchanged at London on May the 7th, 1892, it was, amongst other things, agreed and concluded that the questions which had arisen between the Government of the United States of America and the
Government of Her Britannic Majesty, concerning the Jurisdictional jurisdictional rights of the United States in the waters of States and pres- Bering's Sea, and concerning also the preservation of the seals in Bering fur-seal in or habitually resorting to the said sea, and the
rights of the citizens and subjects of either country as regards the taking of fur-seals in or habitually resorting to the said waters, should be submitted to a Tribunal of Arbitration, to be composed of seven Arbitrators, who should be appointed in the following manner—that is to say: Two should be named by the President of the United States; two should be named by Her Britannic Majesty; His Excellency the President of the French Republic should be jointly requested by the High Contracting Parties to name one; His Majesty the King of Italy should be so requested to name one; His Majesty the King of Sweden and Norway should be so requested to name one; the seven Arbitrators to be so named should be jurists of distinguished reputation in their respective countries, and the selecting Powers should be requested to choose, if possible, jurists who are acquainted with the English language;
And whereas it was further agreed by Article II of the said Treaty that the Arbitrators should meet at Paris within twenty days after the delivery of the Counter-Cases mentioned in Article IV, and should proceed impartially and carefully to examine and decide the questions which had been or should be laid before them as in the said Treaty provided on the part of the Governments of the United States and of Her Britannic Majesty, respectively, and that all questions considered by the Tribunal, including the final decision, should be determined by a majority of the Arbitrators;
And whereas by Article VI of said Treaty, it was further provided as follows:
In deciding the matters submitted to the said Arbitrators, it is agreed Points for sepathat the following five points shall be submitted to them, in order rate decision. that their award shall embrace a distinct decision upon each of said five points, to wit:
1. What exclusive jurisdiction in the sea now known as the Bering's Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?
2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?
3. Was the body of water now known as the Bering's Sea included in the phrase Pacific Ocean, as used in the Treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Bering's Sea were held and exclusively exercised by Russia after said Treaty?
4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering's Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th of March, 1867, pass unimpaired to the United States under that Treaty?
5. Has the United States any right, and if so, what right of protection or property in the fur-seals frequenting the islands of the United States in Bering Sea when such seals are found outside the ordinary three-mile limit?
And whereas, by Article VII of the said Treaty, it was further agreed as follows: If the determination of the foregoing questions as to the exclusive
rent regulations. jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Bering Sea, the Arbitrators shall then determine what concurrent Regulations, outside the jurisdictional limits of the spective Governments, are necessary, and over what waters such regulations should extend;
The High Contracting Parties furthermore agree to cooperate in securing the adhesion of other Powers to such Regulations;
And whereas, by Article VIII of the said Treaty, after reciting that the High Contracting Parties had found themselves unable to agree upon a reference which should include the question of the liability of each for the injuries
As to concur. Personnel of tribunal.
alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it, and that “they were solicitous that this subordinate question should not interrupt or longer delay the submission and determination of the main questions," the High Contracting Parties agreed that “either of them might submit to the Arbitrators any question of fact involved in said claims and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation;"
And whereas the President of the United States of America named the Honorable John M. Harlan, Justice of the Supreme Court of the United States, and the Honorable John T. Morgan, Senator of the United States, to be two of the said Arbitrators, and Her Britannic Majesty named the Right Honorable Lord Hannen and the Honorable Sir John Thompson, minister of justice and attorneygeneral for Canada, to be two of the said Arbitrators, and His Excellency the President of the French Republic named the Baron de Courcel, Senator, Ambassador of France, to be one of the said Arbitrators, and His Majesty the King of Italy named the Marquis Emilio Visconti Venosta, former Minister of Foreign Affairs and Senator of the Kingdom of Italy, to be one of the said Arbitrators, and His Majesty the King of Sweden and Norway named Mr. Gregers Gram, minister of state, to be one of the said Arbitrators;
And whereas We, the said Arbitrators, so named and appointed, having taken upon ourselves the burden of the said Arbitration, and having duly met at Paris, proceeded impartially and carefully to examine and decide all the questions submitted to us, the said Arbitrators, under the said Treaty, or laid before us as provided in the said Treaty on the part of the Governments of Her Britannic Majesty and the United States, respectively;
Now We, the said Arbitrators, having impartially and carefully examined the said questions, do in like manner by this our Award decide and determine the said questions in manner following, that is to say, we decide and determine as to the five points mentioned in Article VI as to which our Award is to embrace a distinct decision upon each of them:
As to the first of the said five points, We, the said Baron de Courcel, Mr. Justice Harlan, Lord Hannen, Sir John Thompson, Marquis Visconti Venosta, and Mr. Gregers