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U.S. Supreme CourtThe Paquete Habana, 175 U.S. 677 (1900) The Paquete HabanaNos. 95!96"r#ue$ No%ember 7!, 199&e'$e$ anuar* , 1900175 U.S. 677 (1900)

APPEALS FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF FLORIDA

Syllabus

Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from all final

sentences and decrees in prie causes, !ithout regard to the amount in dispute and !ithout an" certificate of the

district judge as to the importance of the particular case.

#nternational la! is part of our la!, and must $e ascertained and administered $" the courts of justice of

appropriate jurisdiction as often as %uestions of right depending upon it are dul" presented for their

determination. &or this purpose, !here there is no treat" and no controlling e'ecuti(e or legislati(e act or

judicial decision, resort must $e had to the customs and usages of ci(ilied nations, and, as e(idence of these, to

the !or)s of jurists and commentators, not for the speculations of their authors concerning !hat the la! ought

to $e, $ut for trust!orth" e(idence of !hat the la! reall" is.

At the present da", $" the general consent of the ci(ilied nations of the !orld and independentl" of an" e'press

treat" or other pu$lic act, it is an esta$lished rule of international la! that coast fishing (essels, !ith their

implements and supplies, cargoes and cre!s, unarmed and honestl" pursuing their peaceful calling of catching

and $ringing in fresh fish, are e'empt from capture as prie of !ar. And this rule is one !hich prie courts,

administering the la! of nations, are $ound to ta)e judicial notice of, and to gi(e effect to, in the a$sence of an"

treat" or other pu$lic act of their o!n go(ernment in relation to the matter.

At the $rea)ing out of the recent !ar !ith *pain, t!o fishing smac)s ++ the one a sloop, 3 feet long on the )eel

and of -5 tons $urden, and !ith a cre! of three men, and the other a schooner, 51 feet long on the )eel and of

35 tons $urden, and !ith a cre! of si' men ++ !ere regularl" engaged in fishing on the coast of Cu$a, sailing

under the *panish flag, and each o!ned $" a *panish su$ject, residing in a(ana/ her cre!, !ho also resided

there, had no interest in the (essel, $ut !ere entitled to shares, amounting in all to t!o thirds, of her catch, the

other third $elonging to her o!ner, and her cargo consisted of fresh fish, caught $" her cre! from the sea, put

on $oard as the" !ere caught, and )ept and sold ali(e. 0ach (essel left a(ana on a coast fishing (o"age, and

sailed along the coast of Cu$a a$out t!o hundred miles to the !est end of the island/ the sloop there fished for

t!ent"+fi(e da"s in the territorial !aters of *pain, and the schooner e'tended her fishing trip a hundred

age 175 U. *. 278



miles farther across the ucatan Channel, and fished for eight da"s on the coast of ucatan. 4n her return, !ith

her cargo of li(e fish, along the coast of Cu$a, and !hen near a(ana, each !as captured $" one of the United

*tates $loc)ading s%uadron. either fishing (essel had an" arms or ammunition on $oard, had an" )no!ledge

of the $loc)ade, or e(en of the !ar, until she !as stopped $" a $loc)ading (essel, made an" attempt to run the

$loc)ade, or an" resistance at the time of her capture, nor !as there an" e(idence that she, or her cre!, !as

li)el" to aid the enem". Held that $oth captures !ere unla!ful, and !ithout pro$a$le cause.

6he cases are stated in the opinion of the Court.

M. U*6#C0 A deli(ered the opinion of the Court.

6hese are t!o appeals from decrees of the :istrict Court of the United *tates for the *outhern :istrict of

&lorida condemning t!o fishing (essels and their cargoes as prie of !ar.

0ach (essel !as a fishing smac), running in and out of a(ana, and regularl" engaged in fishing on the coast of

Cu$a/ sailed under the *panish flag/ !as o!ned $" a *panish su$ject of Cu$an $irth, li(ing in the Cit" of

a(ana/ !as commanded $" a su$ject of *pain, also residing in a(ana, and her master and cre! had no

interest in the (essel, $ut !ere entitled to shares, amounting in all to t!o+thirds, of her catch, the other third

$elonging to her o!ner. er cargo consisted of fresh fish, caught $" her cre! from the sea, put on $oard as the"

!ere caught, and )ept and sold ali(e. Until stopped $" the $loc)ading s%uadron, she had no )no!ledge of the

e'istence of the !ar or of an" $loc)ade. *he had no arms or ammunition on $oard, and made no attempt to run

the $loc)ade after she )ne! of its e'istence, nor an" resistance at the time of the capture.

The Paquete Habana !as a sloop, 3 feet long on the )eel,

age 175 U. *. 279

and of -5 tons $urden, and had a cre! of three Cu$ans, including the master, !ho had a fishing license from the

*panish go(ernment, and no other commission or license. *he left a(ana March -5, 1898, sailed along the

coast of Cu$a to Cape *an Antonio at the !estern end of the island, and there fished for t!ent"+fi(e da"s, l"ing

$et!een the reefs off the cape, !ithin the territorial !aters of *pain, and then started $ac) for a(ana, !ith a

cargo of a$out ; %uintals of li(e fish. 4n April -5, 1898, a$out t!o miles off Mariel, and ele(en miles from

a(ana, she !as captured $" the United *tates gun$oat Castine.

The Lla !as a schooner, 51 feet long on the )eel, and of 35 tons $urden, and had a cre! of si' Cu$ans,including the master, and no commission or license. *he left a(ana April 11, 1898, and proceeded to

Campeach" *ound, off ucatan, fished there eight da"s, and started $ac) for a(ana !ith a cargo of a$out

1;,;;; pounds of li(e fish. 4n April -2, 1898, near a(ana, she !as stopped $" the United *tates

steamship Cin!innati" and !as !arned not to go into a(ana, $ut !as told that she !ould $e allo!ed to land at

<ahia onda. *he then changed her course, and put for <ahia onda, $ut on the ne't morning, !hen near that

port, !as captured $" the United *tates steamship Dl#hin.



<oth the fishing (essels !ere $rought $" their captors into =e" >est. A li$el for the condemnation of each

(essel and her cargo as prie of !ar !as there filed on April -7, 1898/ a claim !as interposed $" her master on

$ehalf of himself and the other mem$ers of the cre!, and of her o!ner/ e(idence !as ta)en, sho!ing the facts

a$o(e stated, and on Ma" 3;, 1898, a final decree of condemnation and sale !as entered,

?the court not $eing satisfied that as a matter of la!, !ithout an" ordinance, treat", or proclamation, fishing

(essels of this class are e'empt from seiure.?

0ach (essel !as thereupon sold $" auction/ the Paquete Habana for the sum of @9; and the Lla for the sum

of @8;;. 6here !as no other e(idence in the record of the (alue of either (essel or of her cargo.

#t has $een suggested in $ehalf of the United *tates that

age 175 U. *. 28;

this Court has no jurisdiction to hear and determine these appeals $ecause the matter in dispute in either case

does not e'ceed the sum or (alue of @-,;;;, and the district judge has not certified that the adjudicationin(ol(es a %uestion of general importance.

6he suggestion is founded on 295 of the e(ised *tatutes, !hich pro(ides that

?an appeal shall $e allo!ed to the *upreme Court from all final decrees of an" district court in prie causes,

!here the matter in dispute, e'clusi(e of costs, e'ceeds the sum or (alue of t!o thousand dollars, and shall $e

allo!ed, !ithout reference to the (alue of the matter in dispute, on the certificate of the district judge that the

adjudication in(ol(es a %uestion of general importance.?

6he udiciar" Acts of the United *tates, for a centur" after the organiation of the go(ernment under the

Constitution, did impose pecuniar" limits upon appellate jurisdiction.

#n actions at la! and suits in e%uit" the pecuniar" limit of the appellate jurisdiction of this Court from the circuit

courts of the United *tates !as for a long time fi'ed at @-;;;. Acts of *eptem$er -, 1789, c. -;, --/ 1 *tat.

8/ March 3, 18;3, c. ;/ - *tat. -/$%dn &. O'den" 3 et. 33/ e(.*tat. 291, 29-. #n 1875, it !as raised

to @5,;;;. Act of &e$ruar" 12, 1875, c. 77, 3/ 18 *tat. 312. And in 1889 this !as modified $" pro(iding that,

!here the judgment or decree did not e'ceed the sum of @5,;;;, this Court should ha(e appellate jurisdiction

upon the %uestion of the jurisdiction of the circuit court, and upon that %uestion onl". Act of &e$ruar" -5, 1889,c. -32, 1/ -5 *tat. 293/ Pa%(e% &. O%)sby"11 U. *. 81.

As to cases of admiralt" and maritime jurisdiction, including prie causes, the udiciar" Act of 1789, in 9,

(ested the original jurisdiction in the district courts, !ithout regard to the sum or (alue in contro(ers", and in

-1 permitted an appeal from them to the circuit courts !here the matter in dispute e'ceeded the sum or (alue of

@3;;. 1 *tat. 77, 83, c. -;/ The *etsey" 3 :all. 2, 3 U. *. 12/The A)iable Nan!y" 3 >heat. 52/ St%attn &.

+a%&is" 8 et. , 33 U. *. 11. <" the Act of March 3, 18;3, c. ;, appeals to the circuit court !ere permitted from

all final decrees of a district court !here

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age 175 U. *. 281

the matter in dispute e'ceeded the sum or (alue of @5;, and from the circuit courts to this Court in all cases ?of

admiralt" and maritime jurisdiction, and of prie or no prie? in !hich the matter in dispute e'ceeded the sum

or (alue of @-,;;;. - *tat. -/ +en(s &. Le,is" 3 Mason 5;3/ St%attn &. +a%&is" a$o(e cited/ The Ad)i%al" 3

>all. 2;3, 7; U. *. 21-. 6he acts of March 3, 1823, c. 82, 7, and une 3;, 182, c. 17, 13, pro(ided that

appeals from the district courts in prie causes should lie directl" to this Court, !here the amount in contro(ers"e'ceeded @-,;;;, or ?on the certificate of the district judge that the adjudication in(ol(es a %uestion of difficult"

and general importance.? 1- *tat. 72;/ 13 *tat. 31;. 6he pro(ision of the act of 18;3, omitting the !ords ?and

of prie or no prie,? !as reenacted in 29- of the e(ised *tatutes, and the pro(ision of the act of 182,

concerning prie causes, !as su$stantiall" reenacted in 295 of the e(ised *tatutes, alread" %uoted.

<ut all this has $een changed $" the Act of March 3, 1891, c. 517, esta$lishing the circuit courts of appeals and

creating a ne! and complete scheme of appellate jurisdiction, depending upon the nature of the different cases,

rather than upon the pecuniar" amount in(ol(ed. -2 *tat. 8-2.

<" that act, as this Court has declared, the entire appellate jurisdiction from the circuit and district courts of the

United *tates !as distri$uted, ?according to the scheme of the act,? $et!een this Court and the circuit courts of

appeals there$" esta$lished, ?$" designating the classes of cases? of !hich each of these courts !as to ha(e

final jurisdiction. M!Lish &. R--"11 U. *. 221, 11 U. *. 222/ A)e%i!an Cnst%u!tin C. &. +a!(sn&ille

Rail,ay"18 U. *. 37-, 18 U. *. 38-/ Ca%ey &. Hustn Te/as Rail,ay "15; U. *. 17;, 15; U. *. 179.

6he intention of Congress, $" the act of 1891, to ma)e the nature of the case, and not the amount in dispute, the

test of the appellate jurisdiction of this Court from the district and circuit courts clearl" appears upon

e'amination of the leading pro(isions of the act.

*ection pro(ides that no appeal, !hether $" !rit of error or other!ise, shall hereafter $e ta)en from a district

court

age 175 U. *. 28-

to a circuit court, $ut that all appeals, $" !rit of error or other!ise, from the district courts ?shall onl" $e su$ject

to re(ie!? in this Court or in the circuit court of appeal ?as is hereinafter pro(ided,? and ?the re(ie! $" appeal,

$" !rit of error, or other!ise? from the circuit courts, ?shall $e had onl"? in this Court or in the circuit court of

appeals, ?according to the pro(isions of this act regulating the same.?

*ection 5 pro(ides that ?appeals or !rits of error ma" $e ta)en from the district courts, or from the e'isting

circuit courts, direct to the *upreme Court, in the follo!ing casesB?

&irst.

?#n an" case in !hich the jurisdiction of the court is in issue/ in such cases, the %uestion of jurisdiction alone

shall $e certified to the *upreme Court from the court $elo! for decision.?






















6his clause includes ?an" case,? !ithout regard to amount, in !hich the jurisdiction of the court $elo! is in

issue, and differs in this respect from the act of 1889, a$o(e cited.

*econd. ?&rom the final sentences and decrees in prie causes.? 6his clause includes the !hole class of ?the

final sentences and decrees in prie causes,? and omits all pro(isions of former acts regarding amount in

contro(ers", or certificate of a district judge.

6hird. ?#n cases of con(iction of a capital or other!ise infamous crime.? 6his clause loo)s to the nature of the

crime, and not to the e'tent of the punishment actuall" imposed. A crime !hich might ha(e $een punished $"

imprisonment in a penitentiar" is an infamous crime, e(en if the sentence actuall" pronounced is of a small fine

onl". E/ Pa%te 0ilsn"11 U. *. 17, 11 U. *. -2. Conse%uentl", such a sentence for such a crime !as su$ject

to the appellate jurisdiction of this Court, under this clause, until this jurisdiction, so far as regards infamous

crimes, !as transferred to the circuit court of appeals $" the Act of anuar" -;, 1897, c. 28. -9 *tat. 9-.

&ourth. ?#n an" case, that in(ol(es the construction or application of the Constitution of the United *tates.?

&ifth.

?#n an" case in !hich the constitutionalit" of an" la! of the United *tates, or the (alidit" or construction of an"

treat" made under its authorit", is dra!n in %uestion. ?

age 175 U. *. 283

*i'th. ?#n an" case in !hich the Constitution or la! of a state is claimed to $e in contra(ention of the

Constitution of the United *tates.?

0ach of these last three clauses, again, includes ?an" case? of the class mentioned. 6he" all relate to !hat are

commonl" called federal %uestions, and cannot reasona$l" $e construed to ha(e intended that the appellate

jurisdiction of this Court o(er such %uestions should $e restricted $" an" pecuniar" limit ++ especiall" in their

connection !ith the succeeding sentence of the same sectionB

?othing in this act shall affect the jurisdiction of the *upreme Court in cases appealed from the highest court

of a state, nor the construction of the statute pro(iding for re(ie! of such cases.?

>rits of error from this Court to re(ie! the judgments of the highest court of a state upon such %uestions ha(e

ne(er $een su$ject to an" pecuniar" limit. Act of *eptem$er -, 1789, c. -;, -5/ 1 *tat. 85/ *uel &. 1an Ness" 8

>heat. 31-/ Act of &e$ruar" 5, 1827, c. -8, -/ 1 *tat. 382/ e(.*tat. 7;9.

<" section 2 of the act of 1891, this Court is relie(ed of much of the appellate jurisdiction that it had $efore/ the

appellate jurisdiction from the district and circuit courts ?in all cases other than those pro(ided for in the

preceding section of this act, unless other!ise pro(ided $" la!,? is (ested in the circuit court of appeals, and its

decisions in admiralt" cases, as !ell as in cases arising under the criminal la!s, and in certain other classes of

cases, are made final, e'cept that that court ma" certif" to this Court %uestions of la!, and that this Court ma"










order up the !hole case $" !rit of certiorari. #t is settled that the !ords ?unless other!ise pro(ided $" la!,? in

this section, refer onl" to pro(isions of the same act, or of contemporaneous or su$se%uent acts, and do not

include pro(isions of earlier statutes. Lau O, *e, &. United States"1 U. *. 7, 1 U. *. 57/ Hubba%d &

Sby"12 U. *. 52/ A)e%i!an Cnst%u!tin C. &. +a!(sn&ille Rail,ay"18 U. *. 37-, 18 U. *. 383.

6he act of 1891 no!here imposes a pecuniar" limit upon the appellate jurisdiction, either of this Court or of the

circuit court of appeals, from a district or circuit court of the United *tates. 6he onl" pecuniar" limit imposed isone of

age 175 U. *. 28

@1,;;; upon the appeal to this Court of a case !hich has $een once decided on appeal in the circuit court of

appeals, and in !hich the judgment of that court is not made final $" section 2 of the act.

*ection 1 of the act of 1891, after specificall" repealing section 291 of the e(ised *tatutes and section 3 of

the act of &e$ruar" 12, 1875, further pro(ides that

?all acts and parts of acts relating to appeals or !rits of error, inconsistent !ith the pro(isions for re(ie! $"

appeals or !rits of error in the preceding sections 5 and 2 of this act, are here$" repealed.?

-2 *tat. 8-9, 83;. 6he o$ject of the specific repeal, as this Court has declared, !as to get rid of the pecuniar"

limit in the acts referred to. M!Lish &. R--"11 U. *. 221, 11 U. *. 227. And, although neither section 29- nor

section 295 of the e(ised *tatutes is repealed $" name, "et, ta)ing into consideration the general repealing

clause, together !ith the affirmati(e pro(isions of the act, the case comes !ithin the reason of the decision in an

analogous case, in !hich this Court saidB

?6he pro(isions relating to the su$ject matter under consideration are, ho!e(er, so comprehensi(e, as !ell as so

(ariant from those of former acts, that !e thin) the intention to su$stitute the one for the other is necessaril" to

$e inferred, and must pre(ail.?

Fis( &. Hena%ie"1- U. *. 59, 1- U. *. 28.

6he decision in this Court in the recent case of United States &. Ride% "123 U. *. 13-, affords an important, if not

controlling, precedent. &rom the $eginning of this centur" until the passage of the act of 1891, $oth in ci(il and

in criminal cases, %uestions of la! upon !hich t!o judges of the circuit court !ere di(ided in opinion might $ecertified $" them to this Court for decision. Act of April -9, 18;-, c. 31, 2/ - *tat. 159/ une 1, 187-, c. -55,

1/ 17 *tat.192/ e(.*tat. 25;+25-, 293, 297/ Insu%an!e C. &. Dunha)" 11 >all. 1, 78 U. *. -1/ United States

&. San'es"1 U. *. 31;, 1 U. *. 3-;. <ut in United States &. Ride%" it !as adjudged $" this Court that the act

of 1891 had superseded and repealed the earlier acts authoriing %uestions of la! to $e certified from the circuit

court to this Court, and the grounds of that adjudication sufficientl" appear $"

age 175 U. *. 285







































the statement of the effect of the act of 1891 in t!o passages of that opinionB

?Appellate jurisdiction !as gi(en in all criminal cases $" !rit of error either from this Court or from the circuit

courts of appeals, and in all ci(il cases $" appeal or error, !ithout regard to the amount in contro(ers", e'cept as

to appeals or !rits of error to or from the circuit courts of appeals in cases not made final as specified in 2. . .

#t is true that repeals $" implication are not fa(ored, $ut !e cannot escape the conclusion that, tested $" its

scope, its o$(ious purpose, and its terms, the Act of March 3, 1891, co(ers the !hole su$ject matter underconsideration, and furnishes the e'clusi(e rule in respect of appellate jurisdiction on appeal, !rit of error, or

certificate.?

123 U. *. 123 U.*. 138, 123 U. *. 1;.

6hat judgment !as thus rested upon t!o successi(e propositionsB first, that the act of 1891 gi(es appellate

jurisdiction, either to this Court or to the circuit court of appeals, in all criminal cases, and in all ci(il cases

?!ithout regard to the amount in contro(ers"/? second, that the act, $" its terms, its scope, and its o$(ious

purpose, ?furnishes the e'clusi(e rule in respect of appellate jurisdiction on appeal, !rit of error, or certificate.?

As !as long ago said $" Chief ustice Marshall,

?the spirit as !ell as the letter of a statute must $e respected, and !here the !hole conte't of the la!

demonstrates a particular intent in the legislature to effect a certain o$ject, some degree of implication ma" $e

called in to aid that intent.?

Du%usseau &. United States" 2 Cranch 3;7, 1; U. *. 31. And it is a !ell settled rule in the construction of

statutes, often affirmed and applied $" this Court, that,

?e(en !here t!o acts are not in e'press terms repugnant, "et if the latter act co(ers the !hole su$ject of the

first, and em$races ne! pro(isions, plainl" sho!ing that it !as intended as a su$stitute for the first act, it !ill

operate as a repeal of that act.?

United States &. Tynen" 11 >all. 88, 78 U. *. 9-/ 2in' &. C%nell"1;2 U. *. 395, 1;2 U. *. 392/ T%a!y &.

Tu--ly"13 U. *. -;2, 13 U. *. --3/ Fis( &. Hena%ie "1- U. *. 59, 1- U. *. 28/ Dist%i!t - Clu)bia &

Huttn"13 U. *. 18, 13 U. *. -7/ United States &. Healey "12; U. *. 132, 12; U. *. 17.

>e are of opinion that the act of 1891, upon its face, read

age 175 U. *. 282

in the light of settled rules of statutor" construction and of the decisions of this Court, clearl" manifests the

intention of Congress to co(er the !hole su$ject of the appellate jurisdiction from the district and circuit courts

of the United *tates, so far as regards in !hat cases, as !ell as to !hat courts, appeals ma" $e ta)en, and to

supersede and repeal, to this e'tent, all the pro(isions of earlier acts of Congress, including those that imposed

pecuniar" limits upon such jurisdiction, and, as part of the ne! scheme, to confer upon this Court jurisdiction of








































appeals from all final sentences and decrees in prie causes, !ithout regard to the amount in dispute, and

!ithout an" certificate of the district judge as to the importance of the particular case.

>e are then $rought to the consideration of the %uestion !hether, upon the facts appearing in these records, the

fishing smac)s !ere su$ject to capture $" the armed (essels of the United *tates during the recent !ar !ith

*pain.

<" an ancient usage among ci(ilied nations, $eginning centuries ago and graduall" ripening into a rule of

international la!, coast fishing (essels pursuing their (ocation of catching and $ringing in fresh fish ha(e $een

recognied as e'empt, !ith their cargoes and cre!s, from capture as prie of !ar.

6his doctrine, ho!e(er, has $een earnestl" contested at the $ar, and no complete collection of the instances

illustrating it is to $e found, so far as !e are a!are, in a single pu$lished !or), although man" are referred to

and discussed $" the !riters on international la!, nota$le in - 4rtolan, egles #nternationales et :iplomatie de

la Mer th ed.D li$. 3, c. -, pp. 51+52/ in Cal(o, :roit #nternational 5th ed.D -327+-373/ in :e <oec),

ropriete ri(ee 0nnemie sous a(illon 0nnemi, 191+192, and in all, #nternational Ea! th ed.D 18. #tis therefore !orth the !hile to trace the histor" of the rule from the earliest accessi$le sources through the

increasing recognition of it, !ith occasional set$ac)s, to !hat !e ma" no! justl" consider as its final

esta$lishment in our o!n countr" and generall" throughout the ci(ilied !orld.

6he earliest acts of an" go(ernment on the su$ject mentioned

age 175 U. *. 287

in the $oo)s either emanated from, or !ere appro(ed $", a =ing of 0ngland.

#n 1;3 and 1;2, enr" #F issued orders to his admirals and other officers, entitled ?Concerning *afet" for

&ishermen ++ De Se!u%itate #% Pis!at%ibus.? <" an order of 4cto$er -2, 1;3, reciting that it !as made

pursuant to a treat" $et!een himself and the =ing of &rance, and for the greater safet" of the fishermen of either

countr", and so that the" could $e, and carr" on their industr", the more safel" on the sea, and deal !ith each

other in peace, and that the &rench =ing had consented that 0nglish fishermen should $e treated li)e!ise, it !as

ordained that &rench fishermen might, during the then pending season for the herring fisher", safel" fish for

herrings and all other fish from the har$or of ra(elines and the #sland of 6hanet to the mouth of the *eine and

the har$or of autoune. And $" an order of 4cto$er 5, 1;2, he too) into his safe conduct and under his special

protection, guardianship, and defense all and singular the fishermen of &rance, &landers, and <rittan", !ith their

fishing (essels and $oats, e(er"!here on the sea, through and !ithin his dominions, jurisdictions, and

territories, in regard to their fisher", !hile sailing, coming, and going, and at their pleasure, freel" and la!full"

fishing, dela"ing, or proceeding, and returning home!ard !ith their catch of fish, !ithout an" molestation or

hindrance !hate(er, and also their fish, nets, and other propert" and goods soe(er, and it !as therefore ordered

that such fishermen should not $e interfered !ith, pro(ided the" should comport themsel(es !ell and properl"

and should not, $" color of these presents, do or attempt, or presume to do or attempt, an"thing that could

prejudice the =ing, or his =ingdom of 0ngland, or his su$jects. 8 "merGs &oedera 332, 51.



6he treat" made 4cto$er -, 15-1, $et!een the 0mperor Charles F and &rancis # of &rance, through their

am$assadors, recited that a great and fierce !ar had arisen $et!een them, $ecause of !hich there had $een, $oth

$" land and $" sea, fre%uent depredations and incursions on either side, to the gra(e detriment and intolera$le

injur" of the innocent

age 175 U. *. 288

su$jects of each, and that a suita$le time for the herring fisher" !as at hand, and, $" reason of the sea $eing

$eset $" the enem", the fishermen did not dare to go out, !here$" the su$ject of their industr", $esto!ed $"

hea(en to alla" the hunger of the poor, !ould !holl" fail for the "ear unless it !ere other!ise pro(ided ++ qu

-it" ut #is!atu%ae !))ditas" ad #au#e%u) le&anda) -a)en a !elesti nu)ine !n!essa" !essa%e h! ann

)nin debeat" nisi alite% #%&ideatu%. And it !as therefore agreed that the su$jects of each so(ereign, fishing

in the sea or e'ercising the calling of fishermen, could and might, until the end of the ne't anuar", !ithout

incurring an" attac), depredation, molestation, trou$le, or hindrance soe(er, safel" and freel", e(er"!here in the

sea, ta)e herrings and e(er" other )ind of fish, the e'isting !ar $" land and sea not!ithstanding/ and, further,

that, during the time aforesaid, no su$ject of either so(ereign should commit, or attempt or presume to commit,an" depredation, force, (iolence, molestation, or (e'ation to or upon such fishermen or their (essels, supplies,

e%uipments, nets, and fish, or other goods soe(er trul" appertaining to fishing. 6he treat" !as made at Calais,

then an 0nglish possession. #t recites that the am$assadors of the t!o so(ereigns met there at the earnest re%uest

of enr" F### and !ith his countenance and in the presence of Cardinal >olse", his chancellor and

representati(e. And to!ards the end of the treat", it is agreed that the said =ing and his said representati(e, ?$"

!hose means the treat" stands concluded, shall $e conser(ators of the agreements therein, as if thereto $" $oth

parties elected and chosen.? :umont, Corps :iplomati%ue, pt. 1, pp. 35-, 353.

6he herring fisher" !as permitted, in time of !ar, $" &rench and :utch edicts in 1532. <"n)ershoe),

Huaestiones uris u$licae, li$. 1, c. 3/ 1 0merigon des Assurances, c. , section 9/ c. 1-, section 19, section 8.

&rance, from remote times, set the e'ample of alle(iating the e(ils of !ar in fa(or of all coast fishermen. #n the

compilation entitled ?Us et Cutu)es de la Me%"? pu$lished $" Cleirac in 1221, and in the third part thereof,

containing ?Maritime or Admiralt" urisdiction 33 la +u%isdi!tin de la

age 175 U. *. 289

Ma%ine u d4Ad)i%aute ++ as !ell in time of peace as in time of !ar,? article 8; is as follo!sB

?6he admiral ma" in time of !ar accord fishing truces ++ t%es&es #es!he%esses ++ to the enem" and to his

su$jects, pro(ided that the enem" !ill li)e!ise accord them to &renchmen.?

Cleirac 5. Under this article, reference is made to articles 9 and 79, respecti(el", of the &rench ordinances

concerning the admiralt" in 153 and 158, of !hich it is $ut a reproduction. ardessus, Collection de Eois

Maritimes 319/ - 4rtolan, 51. And Cleirac adds, in a note, this %uotation from &roissartGs ChroniclesB



?&ishermen on the sea, !hate(er !ar there !ere in &rance and 0ngland, ne(er did harm to one another/ so the"

are friends, and help one another at need ++ Pes!heu%s su% )e%" quelque 'ue%%e qui sit en F%an!e et An'lete%%e"

5a)ais ne se -i%ent )al l4un a l4aut%e6 ain!is snt a)is" et s4aydent l4un a l4aut%e au besin.?

6he same custom !ould seem to ha(e pre(ailed in &rance until to!ards the end of the se(enteenth centur". &or

e'ample, in 1275, Eouis I#F and the *tates eneral of olland, $" mutual agreement, granted to :utch and

&rench fishermen the li$ert", undistur$ed $" their (essels of !ar, of fishing along the coasts of &rance, olland,and 0ngland. :Gauteri(e et :e Cuss", 6raites de Commerce, pt. 1, (ol. -, p. -78. <ut $" the ordinances of

1281 and 129-, the practice !as discontinued, $ecause, Falin sa"s, of the faithless conduct of the enemies of

&rance, !ho, a$using the good faith !ith !hich she had al!a"s o$ser(ed the treaties, ha$ituall" carried off her

fishermen, !hile their o!n fished in safet". - Falin sur lG4rdonnance de la Marine 1772D 289, 29;/ - 4rtolan

5-/ :e <oec), 19-.

6he doctrine !hich e'empts coast fishermen, !ith their (essels and cargoes, from capture as prie of !ar, has

$een familiar to the United *tates from the time of the >ar of #ndependence.

4n une 5, 1779, Eouis IF#., our all" in that !ar, addressed a letter to his admiral, informing him that the !ish

he had al!a"s had of alle(iating, as far as he could, the hardships of !ar, had directed his attention to that class

of his su$jects

age 175 U. *. 29;

!hich de(oted itself to the trade of fishing, and had no other means of li(elihood/ that he had thought that the

e'ample !hich he should gi(e to his enemies, and !hich could ha(e no other source than the sentiments of

humanit" !hich inspired him, !ould determine them to allo! to fishermen the same facilities !hich he should

consent to grant, and that he had therefore gi(en orders to the commanders of all his ships not to distur$ 0nglish

fishermen, nor to arrest their (essels laden !ith fresh fish, e(en if not caught $" those (essels/ pro(ided the"

had no offensi(e arms, and !ere not pro(ed to ha(e made an" signals creating a suspicion of intelligence !ith

the enem", and the admiral !as directed to communicate the =ingGs intentions to all officers under his control.

<" a ro"al order in council of o(em$er 2, 178;, the former orders !ere confirmed, and the capture and

ransom, $" a &rench cruiser, of The +hn and Sa%ah" an 0nglish (essel, coming from olland, laden !ith fresh

fish, !ere pronounced to $e illegal. - Code des rises ed. 178D 7-1, 9;1, 9;3.

Among the standing orders made $" *ir ames Marriott, udge of the 0nglish igh Court of Admiralt", !as oneof April 11, 178;, $" !hich it !as

?ordered that all causes of prie of fishing $oats or (essels ta)en from the enem" ma" $e consolidated in one

monition, and one sentence or interlocutor", if under fift" tons $urthen, and not more than si' in num$er.?

MarriottGs &ormular" . <ut $" the statements of his successor, and of $oth &rench and 0nglish !riters, it

appears that 0ngland, as !ell as &rance, during the American e(olutionar" >ar, a$stained from interfering

!ith the coast fisheries. The 7un' +a!b and +hanna"1 C. o$. -;/ - 4rtolan 53/ all, 18.



#n the treat" of 1785 $et!een the United *tates and russia, article -3 !hich !as proposed $" the American

Commissioners, ohn Adams, <enjamin &ran)lin, and 6homas efferson, and is said to ha(e $een dra!n up $"

&ran)linD, pro(ided that if !ar should arise $et!een the contracting parties,

?all !omen and children, scholars of e(er" facult", culti(ators of the earth, artisans, manufacturers, and

fishermen,

age 175 U. *. 291

unarmed and inha$iting unfortified to!ns, (illages, or places, and in general all others !hose occupations are

for the common su$sistence and $enefit of man)ind, shall $e allo!ed to continue their respecti(e emplo"ments

and shall not $e molested in their persons, nor shall their houses or goods $e $urnt or other!ise destro"ed, nor

their fields !asted $" the armed force of the enem", into !hose po!er, $" the e(ents of !ar, the" ma" happen

to fall/ $ut if an"thing is necessar" to $e ta)en from them for the use of such armed force, the same shall $e paid

for at a reasona$le price.?

8 *tat. 92/ 1 =ent Com. 91, note/ >heaton, istor" of the Ea! of ations, 3;2, 3;8. ere !as the clearest

e'emption from hostile molestation or seiure of the persons, occupations, houses, and goods of unarmed

fishermen inha$iting unfortified places. 6he article !as repeated in the later treaties $et!een the United *tates

and russia of 1799 and 18-8. 8 *tat. 17, 38. And :ana, in a note to his edition of >heatonGs #nternational

Ea!s, sa"sB

?#n man" treaties and decrees, fishermen catching fish as an article of food are added to the class of persons

!hose occupation is not to $e distur$ed in !ar.?

>heaton, #nternational Ea! 8th ed.D 35, note 128.

*ince the United *tates $ecame a nation, the onl" serious interruptions, so far as !e are informed, of the general

recognition of the e'emption of coast fishing (essels from hostile capture, arose out of the mutual suspicions

and recriminations of 0ngland and &rance during the !ars of the &rench e(olution.

#n the first "ears of those !ars, 0ngland ha(ing authoried the capture of &rench fishermen, a decree of the

&rench ational Con(ention of 4cto$er -, 1793, directed the e'ecuti(e po!er ?to protest against this conduct,

theretofore !ithout e'ample/ to reclaim the fishing $oats seied/ and, in case of refusal, to resort to reprisals.?

<ut in ul", 1792, the Committee of u$lic *afet" ordered the release of 0nglish fishermen seied under theformer decree, ?not considering them as prisoners of !ar.? La Nst%a Se'n%a de la Piedad 18;1D cited $elo!

- :e Cuss", :roit Maritime, 12, 125/ 1 Masse, :roit Commercial -d ed.D -22, -27.

age 175 U. *. 29-

4n anuar" -, 1798, the 0nglish go(ernment $" e'press order instructed the commanders of its ships to seie

&rench and :utch fishermen !ith their $oats. 2 Martens, ecueil des 6raites -d ed.D 5;5/ 2 *choell, istoire

des 6raites, 119/ - 4rtolan, 53. After the promulgation of that order, Eord *to!ell then *ir >illiam *cottD in



the igh Court of Admiralt" of 0ngland condemned small :utch fishing (essels as prie of !ar. #n one case, the

capture !as in April, 1798, and the decree !as made o(em$er 13, 1798. The 7un' +a!b and +hanna" 1 C

o$. -;. #n another case, the decree !as made August -3, 1799. The Nydt $eda!ht" - C. o$. 137, note.

&or the "ear 18;;, the orders of the 0nglish and &rench go(ernments and the correspondence $et!een them

ma" $e found in $oo)s alread" referred to. 2 Martens 5;3+51-/ 2 *choell, 118+1-;/ - 4rtolan 53, 5. 6he

doings for that "ear ma" $e summed up as follo!sB on March -7, 18;;, the &rench go(ernment, un!illing toresort to reprisals, reenacted the orders gi(en $" Eouis IF# in 178;, a$o(e mentioned, prohi$iting an" seiure

$" the &rench ships of 0nglish fishermen, unless armed or pro(ed to ha(e made signals to the enem". 4n Ma"

3;, 18;;, the 0nglish go(ernment, ha(ing recei(ed notice of that action of the &rench go(ernment, re(o)ed its

order of anuar" -, 1798. <ut soon after!ard, the 0nglish go(ernment complained that &rench fishing $oats

had $een made into fire$oats at &lushing, as !ell as that the &rench go(ernment had impressed and had sent to

<rest, to ser(e in its flotilla, &rench fishermen and their $oats, e(en those !hom the 0nglish had released on

condition of their not ser(ing, and on anuar" -1, 18;1, summaril" re(o)ed its last order, and again put in force

its order of anuar" -, 1798. 4n &e$ruar" 12, 18;1, apoleon <onaparte, then &irst Consul, directed the

&rench commissioner at Eondon to return at once to &rance, first declaring to the 0nglish go(ernment that its

conduct,

?contrar" to all the usages of ci(ilied nations, and to the common la! !hich go(erns them, e(en in time of

!ar, ga(e to the e'isting !ar a character of rage and $itterness !hich destro"ed e(en the relations usual in a

lo"al !ar, ?

age 175 U. *. 293

and ?tended onl" to e'asperate the t!o nations, and to put off the term of peace,? and that the &renchgo(ernment, ha(ing al!a"s made it

?a ma'im to alle(iate as much as possi$le the e(ils of !ar, could not thin), on its part, of rendering !retched

fishermen (ictims of a prolongation of hostilities, and !ould a$stain from all reprisals.?

4n March 12, 18;1, the Addington Ministr", ha(ing come into po!er in 0ngland, re(o)ed the orders of its

predecessors against the &rench fishermen, maintaining, ho!e(er, that ?the freedom of fishing !as no!ise

founded upon an agreement, $ut upon a simple concession,? that ?this concession !ould $e al!a"s su$ordinate

to the con(enience of the moment,? and that ?it !as ne(er e'tended to the great fisher", or to commerce ino"sters or in fish.? And the freedom of the coast fisheries !as again allo!ed on $oth sides. 2 Martens 51/ 2

*choell 1-1/ - 4rtolan, 5/ Manning, Ea! of ations AmosG ed.D -;2.

Eord *to!ellGs judgment in The 7un' +a!b and +hanna" 1 C. o$. -;, a$o(e cited, !as much relied on $"

the counsel for the United *tates, and deser(es careful consideration.

6he (essel there condemned is descri$ed in the report as ?a small :utch fishing (essel ta)en April, 1798, on her

return from the :ogger $an) to olland,? and Eord *to!ell, in deli(ering judgment, saidB



?#n former !ars, it has not $een usual to ma)e captures of these small fishing (essels/ $ut this rule !as a rule of

comit" onl", and not of legal decision/ it has pre(ailed from (ie!s of mutual accommodation $et!een

neigh$oring countries, and from tenderness to a poor and industrious order of people. #n the present !ar, there

has, # presume, $een sufficient reason for changing this mode of treatment, and as the" are $rought $efore me

for m" judgment, the" must $e referred to the general principles of this Court/ the" fall under the character and

description of the last class of cases ++ that is, of ships constantl" and e'clusi(el" emplo"ed in the enem"Gs

trade.?

And he addedB ?#t is a further satisfaction to me in gi(ing this judgment to o$ser(e that the facts also $ear strong

mar)s of a false and fraudulent transaction.?

age 175 U. *. 29

<oth the capture and the condemnation !ere !ithin a "ear after the order of the 0nglish go(ernment of anuar"

-, 1798, instructing the commanders of its ships to seie &rench and :utch fishing (essels, and $efore an"

re(ocation of that order. Eord *to!ellGs judgment sho!s that his decision !as $ased upon the order of 1798, as!ell as upon strong e(idence of fraud. othing more !as adjudged in the case.

<ut some e'pressions in his opinion ha(e $een gi(en so much !eight $" 0nglish !riters that it ma" $e !ell to

e'amine them particularl". 6he opinion $egins $" admitting the )no!n custom in former !ars not to capture

such (essels, adding, ho!e(er, ?$ut this !as a rule of comit" onl", and not of legal decision.? Assuming the

phrase ?legal decision? to ha(e $een there used, in the sense in !hich courts are accustomed to use it, as

e%ui(alent to ?judicial decision,? it is true that, so far as appears, there had $een no such decision on the point in

0ngland. 6he !ord ?comit"? !as apparentl" used $" Eord *to!ell as s"non"mous !ith courtes" or good!ill.

<ut the period of a hundred "ears !hich has since elapsed is ampl" sufficient to ha(e ena$led !hat originall"ma" ha(e rested in custom or comit", courtes" or concession, to gro!, $" the general assent of ci(ilied nations

into a settled rule of international la!. As !ell said $" *ir ames Mac)intoshB

?#n the present centur", a slo! and silent, $ut (er" su$stantial, mitigation has ta)en place in the practice of !ar,

and in proportion as that mitigated practice has recei(ed the sanction of time, it is raised from the ran) of mere

usage and $ecomes part of the la! of nations.?

:iscourse on the Ea! of ations 38/ 1 Miscellaneous >or)s, 32;.

6he &rench prie tri$unals, $oth $efore and after Eord *to!ellGs decision, too) a !holl" different (ie! of the

general %uestion. #n 178;, as alread" mentioned, an order in council of Eouis IF# had declared illegal the

capture $" a &rench cruiser of The +hn and Sa%ah" an 0nglish (essel coming from olland, laden !ith fresh

fish. And on Ma" 17, 18;1, !here a ortuguese fishing (essel, !ith her cargo of fish, ha(ing no more cre! than

!as needed for her management and for ser(ing the nets, on a trip of se(eral da"s, had $een captured

age 175 U. *. 295



in April, 18;1, $" a &rench cruiser, three leagues off the coast of ortugal, the Council of ries held that the

capture !as contrar" to ?the principles of humanit" and the ma'ims of international la!,? and decreed that the

(essel, !ith the fish on $oard, or the net proceeds of an" that had $een sold, should $e restored to her master. La

Nst%a Se'n%a de la Piedad" -5 Merlin, urisprudence, rise Maritime, 3, arts. 1, 3/ S.C. 1 isto"e et

:u(erd", rises Maritimes 331/ - :e Cuss", :roit Maritime 122.

6he 0nglish go(ernment, soon after!ards, more than once un%ualifiedl" prohi$ited the molestation of fishing(essels emplo"ed in catching and $ringing to mar)et fresh fish. 4n Ma" -3, 18;2, it !as

?ordered in council that all fishing (essels under russian and other colors, and engaged for the purpose of

catching fish and con(e"ing them fresh to mar)et, !ith their cre!s, cargoes, and stores, shall not $e molested

on their fishing (o"ages and $ringing the same to mar)et, and that no fishing (essels of this description shall

hereafter $e molested. And the ight onora$le the Eords Commissioners of is Majest"Gs 6reasur", the Eords

Commissioners of the Admiralt", and the udge of the igh Court of Admiralt", are to gi(e the necessar"

directions herein as to them ma" respecti(el" appertain.?

5 C. o$. ;8. Again, in the order in council of Ma" -, 181;, !hich directed that

?all (essels !hich shall ha(e cleared out from an" port so far under the control of &rance or her allies as that

<ritish (essels ma" not freel" trade thereat, and !hich are emplo"ed in the !hale fisher", or other fisher" of an"

description, sa(e as hereinafter e'cepted, and are returning, or destined to return either to the port from !hence

the" cleared, or to an" other port or place at !hich the <ritish flag ma" not freel" trade, shall $e captured and

condemned together !ith their stores and cargoes, as prie to the captors,?

there !ere e'cepted ?(essels emplo"ed in catching and con(e"ing fish fresh to mar)et, such (essels not $eing

fitted or pro(ided for the curing of fish.? 0d!.Adm. app'. E.

>heaton, in his :igest of the Ea! of Maritime Captures and ries, pu$lished in 1815, !roteB

?#t has $een usual

age 175 U. *. 292

in maritime !ars to e'empt from capture fishing $oats and their cargoes, $oth from (ie!s of mutua

accommodation $et!een neigh$oring countries, and from tenderness to a poor and industrious order of people.6his custom, so honora$le to the humanit" of ci(ilied nations, has fallen into disuse, and it is remar)a$le that

$oth &rance and 0ngland mutuall" reproach each other !ith that $reach of good faith !hich has finall"

a$olished it.?

>heaton, Captures, c. -, 18.

6his statement clearl" e'hi$its >heatonGs opinion that the custom had $een a general one, as !ell as that it

ought to remain so. is assumption that it had $een a$olished $" the differences $et!een &rance and 0ngland at



the close of the last centur" !as hardl" justified $" the state of things !hen he !rote, and has not since $een

$orne out.

:uring the !ars of the &rench 0mpire, as $oth &rench and 0nglish !riters agree, the coast fisheries !ere left in

peace. - 4rtolan 5/ :e <oec) 193/ all 18. :e <oec) %uaintl" and trul" adds, ?and the incidents of 18;;

and of 18;1 had no morro! ++ n4eu%ent #as de lende)ain.?

#n the !ar !ith Me'ico, in 182, the United *tates recognied the e'emption of coast fishing $oats from

capture. #n proof of this, counsel ha(e referred to records of the a(" :epartment, !hich this Court is clearl"

authoried to consult upon such a %uestion. +nes &. United States"137 U. *. -;-/ Unde%hill &. He%nande8"128 U

*. -5;, 128 U. *. -53.

<" those records, it appears that Commodore Conner, commanding the ome *%uadron $loc)ading the east

coast of Me'ico, on Ma" 1, 182, !rote a letter from the ship Cu)be%land" off <raos *antiago, near the

southern point of 6e'as, to Mr. <ancroft, the *ecretar" of the a(", enclosing a cop" of the commodoreGs

?instructions to the commanders of the (essels of the ome *%uadron, sho!ing the principles to $e o$ser(ed inthe $loc)ade of the Me'ican ports,? one of !hich !as that ?Me'ican $oats engaged in fishing on an" part of the

coast !ill $e allo!ed to pursue their la$ors unmolested,? and that, on une 1;, 182, those instructions !ere

appro(ed $" the a(" :epartment, of !hich Mr. <ancroft !as still the head, and continued to $e until he !as

appointed Minister to

age 175 U. *. 297

0ngland in *eptem$er follo!ing. Although Commodore ConnerGs instructions and the :epartmentGs appro(al

thereof do not appear in an" contemporar" pu$lication of the go(ernment, the" e(identl" $ecame generall"

)no!n at the time, or soon after, for it is stated in se(eral treatises on international la! $eginning !ith

4rtolanGs second edition, pu$lished in 1853D that the United *tates in the Me'ican !ar permitted the coast

fishermen of the enem" to continue the free e'ercise of their industr". - 4rtolan -d ed.D 9, note/ th ed.D 55/

Cal(o 5th ed.D -37-/ :e <oec) 19/ all th ed.D 18.

As %ualif"ing the effect of those statements, the counsel for the United *tates relied on a proclamation of

Commodore *toc)ton, commanding the acific *%uadron, dated August -;, 182, directing officers under his

command to proceed immediatel" to $loc)ade the ports of Maatlan and *an <las, on the !est coast of Me'ico,

and sa"ing to them,

?All neutral (essels that "ou ma" find there "ou !ill allo! t!ent" da"s to depart, and "ou !ill ma)e the

$loc)ade a$solute against all (essels, e'cept armed (essels of neutral nations. ou !ill capture all (essels under

the Me'ican flag that "ou ma" $e a$le to ta)e.?

a(" eports of 182, pp. 273, 27. <ut there is nothing to sho! that Commodore *toc)ton intended, or that

the go(ernment appro(ed, the capture of coast fishing (essels.











4n the contrar", eneral allec), in the preface to his !or) on #nternational Ea!, or ules egulating the

#ntercourse of states in eace and >ar, pu$lished in 1821, sa"s that he $egan that !or) during the !ar $et!een

the United *tates and Me'ico ?!hile ser(ing on the staff of the commander of the acific *%uadron,? and ?often

re%uired to gi(e opinions on %uestions of international la! gro!ing out of the operations of the !ar.? ad the

practice of the $loc)ading s%uadron on the !est coast of Me'ico during that !ar, in regard to fishing (essels,

differed from that appro(ed $" the a(" :epartment on the east coast, eneral allec) could hardl" ha(e failed

to mention it !hen stating the pre(ailing doctrine upon the su$ject as follo!sB

age 175 U. *. 298

?&ishing $oats ha(e also, as a general rule, $een e'empted from the effects of hostilities. As earl" as 15-1, !hile

!ar !as raging $et!een Charles F and &rancis, am$assadors from these t!o so(ereigns met at Calais, then

0nglish, and agreed that, !hereas the herring fisher" !as a$out to commence, the su$jects of $oth $elligerents

engaged in this pursuit should $e safe and unmolested $" the other part", and should ha(e lea(e to fish as in

time of peace. #n the !ar of 18;;, the <ritish and &rench go(ernments issued formal instructions e'empting the

fishing $oats of each otherGs su$jects from seiure. 6his order !as su$se%uentl" rescinded $" the <ritishgo(ernment on the alleged ground that some &rench fishing $oats !ere e%uipped as gun$oats, and that some

&rench fishermen !ho had $een prisoners in 0ngland had (iolated their parole not to ser(e, and had gone to join

the &rench fleet at <rest. *uch e'cuses !ere e(identl" mere prete'ts, and after some angr" discussions had

ta)en place on the su$ject, the <ritish restriction !as !ithdra!n and the freedom of fishing !as again allo!ed

on $oth sides. &rench !riters consider this e'emption as an esta$lished principle of the modern la! of !ar, and

it has $een so recognied in the &rench courts, !hich ha(e restored such (essels !hen captured $" &rench

cruisers.?

allec) 1st ed.D c. -;, -3.

6hat edition !as the onl" one sent out under the authorGs o!n auspices e'cept an a$ridgment, entitled ?0lements

of #nternational Ea! and the Ea! of >ar,? !hich he pu$lished in 1822, as he said in the preface, to suppl" a

suita$le te't$oo) for instruction upon the su$ject, ?not onl" in our colleges, $ut also in our t!o great national

schools ++ the Militar" and a(al Academies.? #n that a$ridgment, the statement as to fishing $oats !as

condensed as follo!sB

?&ishing $oats ha(e also, as a general rule, $een e'empted from the effects of hostilities. &rench !riters

consider this e'emption as an esta$lished principle of the modern la! of !ar, and it has $een so recognied inthe &rench courts, !hich ha(e restored such (essels !hen captured $" &rench cruisers.?

allec)Gs 0lements, c. -;, -1.

#n the treat" of peace $et!een the United *tates and Me'ico,

age 175 U. *. 299



in 188, !ere inserted the (er" !ords of the earlier treaties !ith russia, alread" %uoted, for$idding the hostile

molestation or seiure in time of !ar of the persons, occupations, houses, or goods of fishermen. 9 *tat. 939,

9;.

>hartonGs :igest of the #nternational Ea! of the United *tates, pu$lished $" authorit" of Congress in 1882 and

1887, em$odies eneral allec)Gs fuller statement, a$o(e %uoted, and contains nothing else upon the su$ject. 3

>hart. #nt.Ea! :ig. 35, p. 315/ - allec) 0ng. eds. 1873 and 1878D p. 151.

&rance in the Crimean !ar in 185, and in her !ars !ith #tal" in 1859 and !ith erman" in 187;, $" general

orders, for$ade her cruisers to trou$le the coast fisheries or to seie an" (essel or $oat engaged therein unless

na(al or militar" operations should ma)e it necessar". Cal(o, -37-/ all, 18/ - 4rtolan th ed.D 9/ 1;

e(ue de :roit #nternationale 1878D 399.

Cal(o sa"s that, in the Crimean >ar,

?not!ithstanding her alliance !ith &rance and #tal", 0ngland did not follo! the same line of conduct, and her

cruisers in the *ea of Aof destro"ed the fisheries, nets, fishing implements, pro(isions, $oats, and e(en the

ca$ins of the inha$itants of the coast.?

Cal(o -37-. And a ussian !riter on prie la! remar)s that those depredations,

?ha(ing $rought ruin on poor fishermen and inoffensi(e traders, could not $ut lea(e a painful impression on the

minds of the population, !ithout impairing in the least the resources of the ussian go(ernment.?

=atcheno(s)" rattGs ed.D 18. <ut the contemporaneous reports of the 0nglish na(al officers put a different

face on the matter $" stating that the destruction in %uestion !as part of a militar" measure, conducted !ith thecooperation of the &rench ships, and pursuant to instructions of the 0nglish admiral

?to clear the sea$oard of all fish stores, all fisheries and mills, on a scale $e"ond the !ants of the neigh$oring

population, and indeed of all things destined to contri$ute to the maintenance of the enem"Gs arm" in the

Crimea,?

and that the propert" destro"ed consisted of large fishing esta$lishments and storehouses of the ussian

go(ernment, num$ers of hea(" launches, and enormous %uantities of nets and gear, salted fish, corn,

age 175 U. *. 7;;

and other pro(isions intended for the suppl" of the ussian arm". United *er(ice ournal of 1855, pt. 3, pp. 1;8+

11-.

*ince the 0nglish orders in council of 18;2 and 181;, $efore %uoted, in fa(or of fishing (essels emplo"ed in

catching and $ringing to mar)et fresh fish, no instance has $een found in !hich the e'emption from capture of

pri(ate coast fishing (essels honestl" pursuing their peaceful industr" has $een denied $" 0ngland or $" an"

other nation. And the 0mpire of apan the last state admitted into the ran) of ci(ilied nationsD, $" an ordinance



promulgated at the $eginning of its !ar !ith China in August, 189, esta$lished prie courts and ordained that

?the follo!ing enem"Gs (essels are e'empt from detention,? including in the e'emption ?$oats engaged in coast

fisheries,? as !ell as ?ships engaged e'clusi(el" on a (o"age of scientific disco(er", philanthroph", or religious

mission.? 6a)ahashi, #nternational Ea! 11, 178.

#nternational la! is part of our la!, and must $e ascertained and administered $" the courts of justice of

appropriate jurisdiction as often as %uestions of right depending upon it are dul" presented for theirdetermination. &or this purpose, !here there is no treat" and no controlling e'ecuti(e or legislati(e act or

judicial decision, resort must $e had to the customs and usages of ci(ilied nations, and, as e(idence of these, to

the !or)s of jurists and commentators !ho $" "ears of la$or, research, and e'perience ha(e made themsel(es

peculiarl" !ell ac%uainted !ith the su$jects of !hich the" treat. *uch !or)s are resorted to $" judicial tri$unals

not for the speculations of their authors concerning !hat the la! ought to $e, $ut for trust!orth" e(idence of

!hat the la! reall" is. Hiltn &. $uyt"159 U. *. 113, 159 U. *. 123+12, 159 U. *. -1+-15.

>heaton places among the principal sources international la!

?te't !riters of authorit", sho!ing !hat is the appro(ed usage of nations, or the general opinion respecting their

mutual conduct, !ith the definitions and modifications introduced $" general consent.?

As to these, he forci$l" o$ser(esB

?>ithout !ishing to e'aggerate the importance of these !riters or to su$stitute, in an" case, their authorit" for

the principles of reason, it ma" $e affirmed that the" are generall"

age 175 U. *. 7;1

impartial in their judgment. 6he" are !itnesses of the sentiments and usages of ci(ilied nations, and the !eight

of their testimon" increases e(er" time that their authorit" is in(o)ed $" statesmen, and e(er" "ear that passes

!ithout the rules laid do!n in their !or)s $eing impugned $" the a(o!al of contrar" principles.?

>heaton, #nternational Ea! 8th ed.D, 15.

Chancellor =ent sa"sB

?#n the a$sence of higher and more authoritati(e sanctions, the ordinances of foreign states, the opinions of

eminent statesmen, and the !ritings of distinguished jurists are regarded as of great consideration on %uestions

not settled $" con(entional la!. #n cases !here the principal jurists agree, the presumption !ill $e (er" great in

fa(or of the solidit" of their ma'ims, and no ci(ilied nation that does not arrogantl" set all ordinar" la! and

justice at defiance !ill (enture to disregard the uniform sense of the esta$lished !riters on international la!.?

1 =ent, Com. 18.









#t !ill $e con(enient, in the first place, to refer to some leading &rench treatises on international la!, !hich deal

!ith the %uestion no! $efore us, not as one of the la! of &rance onl", $ut as one determined $" the general

consent of ci(ilied nations.

?0nem" ships,? sa" isto"e and :u(erd", in their 6reatise on Maritime ries, pu$lished in 1855,

?are good prie. ot all, ho!e(er, for it results from the unanimous accord of the maritime po!ers that an

e'ception should $e made in fa(or of coast fishermen. *uch fishermen are respected $" the enem" so long as

the" de(ote themsel(es e'clusi(el" to fishing.?

1 isto"e et :u(erd", 6it. 2, c. 1, p. 31.

:e Cuss", in his !or) on the hases and Eeading cases of the Maritime Ea! of ations ++ Phases et Causes

Celeb%es du D%it Ma%iti)e des Natins ++ pu$lished in 1852, affirms in the clearest language the e'emption

from capture of fishing $oats, sa"ing, in li$. 1, 6it. 3, 32, that

?in time of !ar, the freedom of fishing is respected $" $elligerents/ fishing $oats are considered as neutral/ inla!, as in principle, the" are not su$ject either to capture or to confiscation,?

and that in li$. -, c. -;, he !ill state ?se(eral facts and se(eral decisions

age 175 U. *. 7;-

!hich pro(e that the perfect freedom and neutralit" of fishing $oats are not illusor".? 1 :e Cuss", p. -91. And in

the chapter so referred to, entitled De la Libe%te et de la Neut%alite Pa%-aite de la Pe!he" $esides references to

the edicts and decisions in &rance during the &rench e(olution, is this general statementB

?#f one consulted onl" positi(e international la! ++ 9e d%it des 'ens #siti- ++ J$" !hich is e(identl" meant

international la! e'pressed in treaties, decrees, or other pu$lic acts, as distinguished from !hat ma" $e implied

from custom or usageK, fishing $oats !ould $e su$ject, li)e all other trading (essels, to the la! of prie/ a sort of

tacit agreement among all 0uropean nations frees them from it, and se(eral official declarations ha(e confirmed

this pri(ilege in fa(or of Ga class of men !hose hard and ill re!arded la$or, commonl" performed $" fee$le and

aged hands, is so foreign to the operations of !ar.G?

- :e Cuss" 12, 125.

4rtolan, in the fourth edition of his Re'les Inte%natinales et Di#l)atie de la Me%" pu$lished in 182, after

stating the general rule that the (essels and cargoes of su$jects of the enem" are la!ful prie, sa"sB

?e(ertheless, custom admits an e'ception in fa(or of $oats engaged in the coast fisher"/ these $oats, as !ell as

their cre!s, are free from capture and e'empt from all hostilities. 6he coast+fishing industr" is, in truth, !holl"

pacific, and of much less importance in regard to the national !ealth that it ma" produce than maritime

commerce or the great fisheries. eaceful and !holl" inoffensi(e, those !ho carr" it on, among !hom !omen

are often seen, ma" $e called the har(esters of the territorial seas, since the" confine themsel(es to gathering in



the products thereof/ the" are for the most part poor families !ho see) in this calling hardl" more than the

means of gaining their li(elihood.?

- 4rtolan 51. Again, after o$ser(ing that there are (er" fe! solemn pu$lic treaties !hich ma)e mention of the

immunit" of fishing $oats in time of !ar, he sa"sB

?&rom another point of (ie!, the custom !hich sanctions this immunit" is not so general that it can $e

considered as ma)ing an a$solute international rule/ $ut it has $een so often put in practice, and, $esides, it

accords so !ell !ith the rule in use in !ars on

age 175 U. *. 7;3

land, in regard to peasants and hus$andmen, to !hom coast fishermen ma" $e li)ened, that it !ill dou$tless

continue to $e follo!ed in maritime !ars to come.?

- 4rtolan 55.

o international jurist of the present da" has a !ider or more deser(ed reputation than Cal(o, !ho, though

!riting in &rench, is a citien of the Argentine epu$lic emplo"ed in its diplomatic ser(ice a$road. #n the fifth

edition of his great !or) on international la!, pu$lished in 1892, he o$ser(es, in -322, that the international

authorit" of decisions in particular cases $" the prie courts of &rance, of 0ngland, and of the United *tates is

lessened $" the fact that the principles on !hich the" are $ased are largel" deri(ed from the internal legislation

of each countr", and "et the peculiar character of maritime !ars, !ith other considerations, gi(es to prie

jurisprudence a force and importance reaching $e"ond the limits of the countr" in !hich it has pre(ailed. e

therefore proposes here to group together a num$er of particular cases proper to ser(e as precedents for the

solution of gra(e %uestions of maritime la! in regard to the capture of pri(ate propert" as prie of !ar.

#mmediatel", in -327, he goes on to sa"B

?ot!ithstanding the hardships to !hich maritime !ars su$ject pri(ate propert", not!ithstanding the e'tent of

the recognied rights of $elligerents, there are generall" e'empted, from seiure and capture, fishing (essels.?

#n the ne't section, he addsB ?6his e'ception is perfectl" justicia$le ++ Cette e/!e#tin est #a%-aite)ent

5usti!iable? ++ that is to sa", $elonging to judicial jurisdiction or cogniance. Eittre, :ist. &!. usticia$le/ Hans

&. Luisiana"13 U. *. 1, 13 U. *. 15. Cal(o then %uotes 4rtolanGs description, a$o(e cited, of the nature of the

coast+fishing industr", and proceeds to refer in detail to some of the &rench precedents, to the acts of the &renchand 0nglish go(ernments in the times of Eouis IF# and of the &rench e(olution, to the position of the United

*tates in the !ar !ith Me'ico, and of &rance in later !ars, and to the action of <ritish cruisers in the Crimean

!ar. And he concludes his discussion of the su$ject, in -373, $" affirming the e'emption of the coast fisher"

and pointing out the distinction in this regard $et!een the coast fisher" and

age 175 U. *. 7;

!hat he calls the great fisher", for cod, !hales, or seals, as follo!sB







?6he pri(ilege of e'emption from capture, !hich is generall" ac%uired $" fishing (essels pl"ing their industr"

near the coasts, is not e'tended in an" countr" to ships emplo"ed on the high sea in !hat is called the great

fisher", such as that for the cod, for the !hale or the sperm !hale, or for the seal or sea calf. 6hese ships are, in

effect, considered as de(oted to operations !hich are at once commercial and industrial ++ Ces na&i%es snt en

e--e!t !nside%es !))e adnnes a des #e%atins a la -is !))e%!iales et indust%ielles.?

6he distinction is generall" recognied. - 4rtolan 5/ :e <oec) 192/ all, 18. See als The Susa" - Co$. -51/ The +han"0d!.Adm. -75, and app'. E.

6he modern erman $oo)s on international la!, cited $" the counsel for the appellants, treat the custom $"

!hich the (essels and implements of coast fishermen are e'empt from seiure and capture as !ell esta$lished

$" the practice of nations. effter 137/ - =alter$orn -37, p. 8;/ <luntschli 227/ erels 37, p. -17.

:e <oec), in his !or) on 0nem" ri(ate ropert" under 0nem"Gs &lag ++ De la P%#%iete P%i&ee Enne)ie sus

Pa&illn Enne)i ++ pu$lished in 188-, and the onl" continental treatise cited $" the counsel for the United

*tates, sa"s in 191B

?A usage (er" ancient, if not uni(ersal, !ithdra!s from the right of capture enem" (essels engaged in the coast

fisher". 6he reason of this e'ception is e(ident/ it !ould ha(e $een too hard to snatch from poor fishermen the

means of earning their $read. . . . 6he e'emption includes the $oats, the fishing implements, and the cargo of

fish.?

Again, in 195B

?#t is to $e o$ser(ed that (er" fe! treatises sanction in due form this immunit" of the coast fisher". . . . 6here is,

then, onl" a custom. <ut !hat is its characterL #s it so fi'ed and general that it can $e raised to the ran) of a

positi(e and formal rule of international la!L?

After discussing the statements of other !riters, he appro(es the opinion of 4rtolan as e'pressed in the last

sentence a$o(e %uoted from his !or)D and sa"s that, at $ottom, it differs $" a shade onl" from that formulated

$" Cal(o and $" some of the erman jurists, and that

?it is more e'act,

age 175 U. *. 7;5

!ithout ignoring the imperati(e character of the humane rule in %uestion ++ elle est #lus e/a!te" sans

)e!nnait%e le !a%a!te%e i)#e%ati- de la %e'le d4hu)anite dnt il s4a'it.?

And in 192 he defines the limits of the rule as follo!sB

?<ut the immunit" of the coast fisher" must $e limited $" the reasons !hich justif" it. 6he reasons of humanit"

and of harmlessness ++les %aisns d4hu)anite et d4inn!uite ++ !hich militate in its fa(or do not e'ist in the great

fisher", such as the cod fisher"/ ships engaged in that fisher" de(ote themsel(es to trul" commercial operations,



!hich emplo" a large num$er of seamen. And these same reasons cease to $e applica$le to fishing (essels

emplo"ed for a !arli)e purpose, to those !hich conceal arms, or !hich e'change signals of intelligence !ith

ships of !ar/ $ut onl" those ta)en in the fact can $e rigorousl" treated/ to allo! seiure $" !a" of pre(enti(e

!ould open the door to e(er" a$use, and !ould $e e%ui(alent to a suppression of the immunit".?

6!o recent 0nglish te't !riters cited at the $ar influenced $" !hat Eord *to!ell said a centur" sinceD hesitate

to recognie that the e'emption of coast fishing (essels from capture has no! $ecome a settled rule ofinternational la!. et the" $oth admit that there is little real difference in the (ie!s, or in the practice, of

0ngland and of other maritime nations, and that no ci(ilied nation at the present da" !ould molest coast

fishing (essels so long as the" !ere peacea$l" pursuing their calling and there !as no danger that the" or their

cre!s might $e of militar" use to the enem". all, in 18 of the fourth edition of his 6reatise on #nternational

Ea!, after $riefl" s)etching the histor" of the positions occupied $" &rance and 0ngland at different periods

and $" the United *tates in the Me'ican !ar, goes on to sa"B

?#n the foregoing facts there is nothing to sho! that much real difference has e'isted in the practice of the

maritime countries. 0ngland does not seem to ha(e $een un!illing to spare fishing (essels so long as the" areharmless, and it does not appear that an" state has accorded them immunit" under circumstances of

incon(enience to itself. #t is li)el" that all nations !ould no! refrain from molesting them as a general rule, and

!ould capture

age 175 U. *. 7;2

them so soon as an" danger arose that the" or their cre!s might $e of militar" use to the enem", and it is also

li)el" that it is impossi$le to grant them a more distinct e'emption.?

*o, 6. .Ea!rence, in -;2 of his rinciples of #nternational Ea!, sa"sB

?6he difference $et!een the 0nglish and the &rench (ie! is more apparent than real, for no ci(ilied $elligerent

!ould no! capture the $oats of fishermen pl"ing their a(ocation peacea$l" in the territorial !aters of their o!n

state, and no jurist !ould seriousl" argue that their immunit" must $e respected if the" !ere used for !arli)e

purposes, as !ere the smac)s $elonging to the northern ports of &rance !hen reat <ritain ga(e the order to

capture them in 18;;.?

<ut there are !riters of (arious maritime countries not "et cited too important to $e passed $" !ithout notice.

an elenus &erguson, etherlands Minister to China, and pre(iousl" in the na(al and in the colonial ser(ice of

his countr", in his Manual of #nternational Ea! for the Use of a(ies, Colonies, and Consulates, pu$lished in

188-, !ritesB

?An e'ception to the usage of capturing enem"Gs pri(ate (essels at sea is the coast fisher". . . . 6his principle of

immunit" from capture of fishing $oats is generall" adopted $" all maritime po!ers, and in actual !arfare the"

are uni(ersall" spared so long as the" remain harmless.?



- &erguson -1-.

&erdinand Attlma"r, captain in the Austrian a(", in his Manual for a(al 4fficers, pu$lished at Fienna in 187-

under the auspices of Admiral 6egetthoff, sa"sB

?egarding the capture of enem" propert", an e'ception must $e mentioned, !hich is a uni(ersal custom.

&ishing (essels !hich $elong to the adjacent coast, and !hose $usiness "ields onl" a necessar" li(elihood, are,

from considerations of humanit", uni(ersall" e'cluded from capture.?

1 Attlma"r 21.

#gnacio de Megrin, &irst 4fficial of the *panish <oard of Admiralt", in his 0lementar" 6reatise on Maritime

#nternational Ea!, adopted $" ro"al order as a te't$oo) in the na(al schools of *pain and pu$lished at Madrid in

1873, concludes his chapter ?4f the la!fulness of pries? !ith these !ordsB

?#t remains to $e added that the custom of all ci(ilied peoples e'cludes from capture and from all )ind of

hostilit" the

age 175 U. *. 7;7

fishing (essels of the enem"Gs coasts, considering this industr" as a$solutel" inoffensi(e, and deser(ing, from its

hardships and usefulness, of this fa(ora$le e'ception. #t has $een thus e'pressed in (er" man" international

con(entions, so that it can $e deemed an incontesta$le principle of la! at least among enlightened nations.?

egrin, 6it. 3, c. 1, 31;.

Carlos 6esta, captain in the ortuguese a(" and professor in the na(al school at Eis$on, in his !or) on u$lic

#nternational Ea!, pu$lished in &rench at aris in 1882, !hen discussing the general right of capturing enem"

ships, sa"sB

?e(ertheless, in this, customar" la! esta$lishes an e'ception of immunit" in fa(or of coast fishing (essels.

&ishing is so peaceful an industr", and is generall" carried on $" so poor and so hard!or)ing a class of men,

that it is li)ened, in the territorial !aters of the enem"Gs countr", to the class of hus$andmen !ho gather the

fruits of the earth for their li(elihood. 6he e'amples and practice generall" follo!ed esta$lish this humane and

$eneficent e'ception as an international rule, and this rule ma" $e considered as adopted $" customar" la! and

$" all ci(ilied nations.?

6esta, pt. 3, c. -, in 18 <i$liothe%ue #nternational et :iplomati%ue, pp. 15-, 153.

o less clearl" and decisi(el" spea)s the distinguished #talian jurist, as%uale &iore, in the enlarged edition of

his e'hausti(e !or) on u$lic #nternational Ea!, pu$lished at aris in 1885+1882, sa"ingB

?6he (essels of fishermen ha(e $een generall" declared e'empt from confiscation $ecause of the eminentl"

peaceful o$ject of their hum$le industr" and of the principles of e%uit" and humanit". 6he e'emption includes



the (essel, the implements of fishing, and the cargo resulting from the fisher". 6his usage, eminentl" humane,

goes $ac) to (er" ancient times, and although the immunit" of the fisher" along the coasts ma" not ha(e $een

sanctioned $" treaties, "et it is considered toda" as so definitel" esta$lished that the in(iola$ilit" of (essels

de(oted to that fisher" is proclaimed $" the pu$licists as a positi(e rule of international la!, and is generall"

respected $" the nations. Conse%uentl" !e shall la" do!n the follo!ing ruleB aD (essels $elonging to citiens of

the enem" state, and de(oted to fishing

age 175 U. *. 7;8

along the coasts, cannot $e su$ject to capture/ $D such (essels, ho!e(er, !ill lose all right of e'emption !hen

emplo"ed for a !arli)e purpose/ cD there ma" ne(ertheless $e su$jected to capture (essels de(oted to the great

fisher" in the ocean, such as those emplo"ed in the !hale fisher", or in that for seals or sea cal(es.?

3 &iore 1-1.

6his re(ie! of the precedents and authorities on the su$ject appears to us a$undantl" to demonstrate that, at the

present da", $" the general consent of the ci(ilied nations of the !orld, and independentl" of an" e'press treat"

or other pu$lic act, it is an esta$lished rule of international la!, founded on considerations of humanit" to a poor

and industrious order of men, and of the mutual con(enience of $elligerent states, that coast fishing (essels,

!ith their implements and supplies, cargoes and cre!s, unarmed and honestl" pursuing their peaceful calling of

catching and $ringing in fresh fish, are e'empt from capture as prie of !ar.

6he e'emption, of course, does not appl" to coast fishermen or their (essels if emplo"ed for a !arli)e purpose,

or in such a !a" as to gi(e aid or information to the enem", nor !hen militar" or na(al operations create a

necessit" to !hich all pri(ate interests must gi(e !a".

or has the e'emption $een e'tended to ships or (essels emplo"ed on the high sea in ta)ing !hales or seals or

cod or other fish !hich are not $rought fresh to mar)et, $ut are salted or other!ise cured and made a regular

article of commerce.

6his rule of international la! is one !hich prie courts administering the la! of nations are $ound to ta)e

judicial notice of, and to gi(e effect to, in the a$sence of an" treat" or other pu$lic act of their o!n go(ernment

in relation to the matter.

Cal(o, in a passage alread" %uoted, distinctl" affirms that the e'emption of coast fishing (essels from capture is perfectl" justicia$le, or, in other !ords, of judicial jurisdiction or cogniance. Cal(o -328. or are judicial

precedents !anting in support of the (ie! that this e'emption, or a some!hat analogous one, should $e

recognied and declared $" a prie court.

age 175 U. *. 7;9

<" the practice of all ci(ilied nations, (essels emplo"ed onl" for the purposes of disco(er" or science are

considered as e'empt from the contingencies of !ar, and therefore not su$ject to capture. #t has $een usual for



the go(ernment sending out such an e'pedition to gi(e notice to other po!ers, $ut it is not essential. 1 =ent,

Com. 91, note/ allec), c. -;, --/ Cal(o -372/ all 138.

#n 1813, !hile the United *tates !ere at !ar !ith 0ngland, an American (essel on her (o"age from #tal" to the

United *tates !as captured $" an 0nglish ship, and $rought into alifa', in o(a *cotia, and, !ith her cargo,

condemned as la!ful prie $" the court of (ice admiralt" there. <ut a petition for the restitution of a case of

paintings and engra(ings !hich had $een presented to and !ere o!ned $" the Academ" of Arts in hiladelphia!as granted $" :r. Cro)e, the judge of that court, !ho saidB

?6he same la! of nations !hich prescri$es that all propert" $elonging to the enem" shall $e lia$le to

confiscation has li)e!ise its modifications and rela'ations of that rule. 6he arts and sciences are admitted

amongst all ci(ilied nations as forming an e'ception to the se(ere rights of !arfare, and as entitled to fa(or and

protection. 6he" are considered not as the peculium of this or of that nation, $ut as the propert" of man)ind at

large, and as $elonging to the common interests of the !hole species.?

And he added that there had $een ?innumera$le cases of the mutual e'ercise of this courtes" $et!een nations informer !ars.? The Ma%quis de S)e%ueles" *te!art Adm. o(a *cotiaD 5, 8-.

#n 1821, during the !ar of the e$ellion, a similar decision !as made in the :istrict Court of the United *tates

for the 0astern :istrict of enns"l(ania in regard to t!o cases of $oo)s $elonging and consigned to a uni(ersit"

in orth Carolina. udge Cad!alader, in ordering these $oo)s to $e li$erated from the custod" of the marshal

and restored to the agent of the uni(ersit", saidB

?6hough this claimant, as the resident of a hostile district, !ould not $e entitled to restitution of the su$ject of a

commercial ad(enture in $oo)s, the purpose of the shipment in %uestion gi(es to it a different

age 175 U. *. 71;

character. 6he United *tates, in prosecuting hostilities for the restoration of their constitutional authorit", are

compelled incidentall" to confiscate propert" captured at sea, of !hich the proceeds !ould other!ise increase

the !ealth of that district. <ut the United *tates are not at !ar !ith literature in that part of their territor".?

e then referred to the decision in o(a *cotia, and to the &rench decisions upon cases of fishing (essels, as

precedents for the decree !hich he !as a$out to pronounce, and he added that, !ithout an" such precedents, he

should ha(e had no difficult" in li$erating these $oo)s. The A)elia" hiladelphia 17.

#n *%,n &. United States" 8 Cranch 11;, there are e'pressions of Chief ustice Marshall !hich, ta)en $"

themsel(es, might seem inconsistent !ith the position a$o(e maintained, of the dut" of a prie court to ta)e

judicial notice of a rule of international la!, esta$lished $" the general usage of ci(ilied nations, as to the )ind

of propert" su$ject to capture. <ut the actual decision in that case, and the leading reasons on !hich it !as

$ased, appear to us rather to confirm our position. 6he principal %uestion there !as !hether personal propert"

of a <ritish su$ject, found on land in the United *tates at the $eginning of the last !ar !ith reat <ritain, could






la!full" $e condemned as enem"Gs propert" on a li$el filed $" the attorne" of the United *tates, !ithout a

positi(e act of Congress. 6he conclusion of the Court !as

?that the po!er of confiscating enem" propert" is in the legislature, and that the legislature has not "et declared

its !ill to confiscate propert" !hich !as !ithin our territor" at the declaration of !ar.?

8 Cranch 1- U. *. 1-9. #n sho!ing that the declaration of !ar did not, of itself, (est the 0'ecuti(e !ith authorit"

to order such propert" to $e confiscated, the Chief ustice relied on the modern usages of nations, sa"ingB

?6he uni(ersal practice of for$earing to seie and confiscate de$ts and credits, the principle uni(ersall" recei(ed

that the right to them re(i(es on the restoration of peace, !ould seem to pro(e that !ar is not an a$solute

confiscation of this propert", $ut simpl" confers the right of confiscation,?

and againB

?6he modern rule, then, !ould seem to $e that tangi$le propert"

age 175 U. *. 711

$elonging to an enem", and found in the countr" at the commencement of !ar, ought not to $e immediatel"

confiscated, and in almost e(er" commercial treat", an article is inserted stipulating for the right to !ithdra!

such propert".?

8 Cranch 1- U. *. 1-3+1-5. 6he decision that enem" propert" on land, !hich $" the modern usage of nations is

not su$ject to capture as prie of !ar, cannot $e condemned $" a prie court, e(en $" direction of the 0'ecuti(e,

!ithout e'press authorit" from Congress appears to us to repel an" inference that coast fishing (essels, !hich

are e'empt $" the general consent of ci(ilied nations from capture and !hich no act of Congress or order of

the resident has e'pressl" authoried to $e ta)en and confiscated, must $e condemned $" a prie court for

!ant of a distinct e'emption in a treat" or other pu$lic act of the go(ernment.

6o this su$ject in more than one aspect are singularl" applica$le the !ords uttered $" Mr. ustice *trong,

spea)ing for this CourtB

?Undou$tedl" no single nation can change the la! of the sea. 6he la! is of uni(ersal o$ligation, and no statute

of one or t!o nations can create o$ligations for the !orld. Ei)e all the la!s of nations, it rests upon the common

consent of ci(ilied communities. #t is of force not $ecause it !as prescri$ed $" an" superior po!er, $ut $ecause

it has $een generall" accepted as a rule of conduct. >hate(er ma" ha(e $een its origin, !hether in the usages of

na(igation, or in the ordinances of maritime states, or in $oth, it has $ecome the la! of the sea onl" $" the

concurrent sanction of those nations !ho ma" $e said to constitute the commercial !orld. Man" of the usages

!hich pre(ail, and !hich ha(e the force of la!, dou$tless originated in the positi(e prescriptions of some single

state, !hich !ere at first of limited effect, $ut !hich, !hen generall" accepted, $ecame of uni(ersal o$ligation.?







?6his is not gi(ing to the statutes of an" nation e'traterritorial effect. #t is not treating them as general maritime

la!s, $ut it is recognition of the historical fact that, $" common consent of man)ind these rules ha(e $een

ac%uiesced in as of general o$ligation. 4f that fact !e thin) !e ma" ta)e judicial notice. &oreign municipal

la!s

age 175 U. *. 71-

must indeed $e pro(ed as facts, $ut it is not so !ith the la! of nations.?

The S!tia" 1 >all. 17;, 81 U. *. 187+188.

6he position ta)en $" the United *tates during the recent !ar !ith *pain !as %uite in accord !ith the rule of

international la!, no! generall" recognied $" ci(ilied nations, in regard to coast fishing (essels.

4n April -1, 1898, the *ecretar" of the a(" ga(e instructions to Admiral *ampson, commanding the orth

Atlantic *%uadron, to ?immediatel" institute a $loc)ade of the north coast of Cu$a, e'tending from Cardenas on

the east to <ahia onda on the !est.? <ureau of a(igation eport of 1898, app'. 175. 6he $loc)ade !asimmediatel" instituted accordingl". 4n April --, the resident issued a proclamation declaring that the United

*tates had instituted and !ould maintain that $loc)ade ?in pursuance of the la!s of the United *tates, and the

la! of nations applica$le to such cases.? 3; *tat. 1729. And $" the act of Congress of April -5, 1898, c. 189, it

!as declared that the !ar $et!een the United *tates and *pain e'isted on that da", and had e'isted since and

including April -1, 3; *tat. 32.

4n April -2, 1898, the resident issued another proclamation !hich, after reciting the e'istence of the !ar as

declared $" Congress, contained this further recitalB

?#t $eing desira$le that such !ar should $e conducted upon principles in harmon" !ith the present (ie!s of

nations and sanctioned $" their recent practice.?

6his recital !as follo!ed $" specific declarations of certain rules for the conduct of the !ar $" sea, ma)ing no

mention of fishing (essels. 3; *tat. 177;. <ut the proclamation clearl" manifests the general polic" of the

go(ernment to conduct the !ar in accordance !ith the principles of international la! sanctioned $" the recent

practice of nations.

4n April -8, 1898 after the capture of the t!o fishing (essels no! in %uestionD, Admiral *ampson telegraphedto the *ecretar" of the a(" as follo!sB

?# find that a large num$er of fishing schooners are attempting to get into a(ana from their fishing grounds

near the &lorida reefs and coasts. 6he" are generall" manned $" e'cellent seamen, $elonging

age 175 U. *. 713

to the maritime inscription of *pain, !ho ha(e alread" ser(ed in the *panish na(", and !ho are lia$le to further

ser(ice. As these trained men are na(al reser(es, most (alua$le to the *paniards as artiller"men, either afloat or







ashore, # recommend that the" should $e detained prisoners of !ar, and that # should $e authoried to deli(er

them to the commanding officer of the arm" at =e" >est.?

6o that communication the *ecretar" of the a(", on April 3;, 1898, guardedl" ans!eredB

?*panish fishing (essels attempting to (iolate $loc)ade are su$ject, !ith cre!, to capture, and an" such (essel or

cre! considered li)el" to aid enem" ma" $e detained.?

<ureau of a(igation eport of 1898, app'. 178. 6he admiralGs dispatch assumed that he !as not authoried,

!ithout e'press order, to arrest coast fishermen peacea$l" pursuing their calling, and the necessar" implication

and e(ident intent of the response of the a(" :epartment !ere that *panish coast fishing (essels and their

cre!s should not $e interfered !ith so long as the" neither attempted to (iolate the $loc)ade nor !ere

considered li)el" to aid the enem".

The Paquete Habana" as the record sho!s, !as a fishing sloop of -5 tons $urden, sailing under the *panish flag

running in and out of a(ana, and regularl" engaged in fishing on the coast of Cu$a. er cre! consisted of $ut

three men, including the master, and, according to a common usage in coast fisheries, had no interest in the

(essel, $ut !ere entitled to t!o+thirds of her catch, the other third $elonging to her *panish o!ner, !ho, as !ell

as the cre!, resided in a(ana. 4n her last (o"age, she sailed from a(ana along the coast of Cu$a, a$out t!o

hundred miles, and fished for t!ent"+fi(e da"s off the cape at the !est end of the island, !ithin the territorial

!aters of *pain, and !as going $ac) to a(ana !ith her cargo of li(e fish !hen she !as captured $" one of the

$loc)ading s%uadron on April -5, 1898. *he had no arms or ammunition on $oard/ she had no )no!ledge of the

$loc)ade, or e(en of the !ar, until she !as stopped $" a $loc)ading (essel/ she made no attempt to run the

$loc)ade, and no resistance at the time of the capture/ nor !as there an" e(idence

age 175 U. *. 71

!hate(er of li)elihood that she or her cre! !ould aid the enem".

#n the case of the Lla" the onl" differences in the facts !ere that she !as a schooner of 35 tons $urden, and had

a cre! of si' men, including the master/ that, after lea(ing a(ana and proceeding some t!o hundred miles

along the coast of Cu$a, she !ent on, a$out one hundred miles farther, to the coast of ucatan, and there fished

for eight da"s, and that, on her return, !hen near <ahia onda on the coast of Cu$a, she !as captured, !ith her

cargo of li(e fish, on April -7, 1898. 6hese differences afford no ground for distinguishing the t!o cases.

0ach (essel !as of a moderate sie, such as is not unusual in coast fishing smac)s, and !as regularl" engaged

in fishing on the coast of Cu$a. 6he cre! of each !ere fe! in num$er, had no interest in the (essel, and

recei(ed, in return for their toil and enterprise, t!o+thirds of her catch, the other third going to her o!ner $"

!a" of compensation for her use. 0ach (essel !ent out from a(ana to her fishing ground and !as captured

!hen returning along the coast of Cu$a. 6he cargo of each consisted of fresh fish, caught $" her cre! from the

sea and )ept ali(e on $oard. Although one of the (essels e'tended her fishing trip across the ucatan channel



and fished on the coast of ucatan, !e cannot dou$t that each !as engaged in the coast fisher", and not in a

commercial ad(enture, !ithin the rule of international la!.

6he t!o (essels and their cargoes !ere condemned $" the district court as prie of !ar/ the (essels !ere sold

under its decrees, and it does not appear !hat $ecame of the fresh fish of !hich their cargoes consisted.

Upon the facts pro(ed in either case, it is the dut" of this Court, sitting as the highest prie court of the United

*tates and administering the la! of nations, to declare and adjudge that the capture !as unla!ful and !ithout

pro$a$le cause, and it is therefore, in each case

O%de%ed" that the decree of the district court $e re(ersed, and the proceeds of the sale of the (essel, together !ith

the proceeds of an" sale of her cargo, $e restored to the claimant, !ith damages and costs.

age 175 U. *. 715

M. C#0& U*6#C0 &UEE0, !ith !hom concurred M. U*6#C0 AEA and M. U*6#C0

Mc=0A, dissentingB

6he district court held these (essels and their cargoes lia$le $ecause not ?satisfied that, as a matter of la!,

!ithout an" ordinance, treat", or proclamation, fishing (essels of this class are e'empt from seiure.?

6his Court holds other!ise not $ecause such e'emption is to $e found in an" treat", legislation, proclamation,

or instruction granting it, $ut on the ground that the (essels !ere e'empt $" reason of an esta$lished rule of

international la! applica$le to them !hich it is the dut" of the court to enforce.

# am una$le to conclude that there is an" such esta$lished international rule, or that this Court can properl"

re(ise action !hich must $e treated as ha(ing $een ta)en in the ordinar" e'ercise of discretion in the conduct of

!ar.

#n cannot $e maintained ?that modern usage constitutes a rule !hich acts directl" upon the thing itself $" its

o!n force, and not through the so(ereign po!er.? 6hat position !as disallo!ed in *%,n &. United States" 8

Cranch 11;, 1- U. *. 1-8, and Chief ustice Marshall saidB

?6his usage is a guide !hich the so(ereign follo!s or a$andons at his !ill. 6he rule, li)e other precepts of

moralit", of humanit", and e(en of !isdom, is addressed to the judgment of the so(ereign, and although it

cannot $e disregarded $" him !ithout o$lo%u", "et it ma" $e disregarded. 6he rule is in its nature fle'i$le. #t is

su$ject to infinite modification. #t is not an immuta$le rule of la!, $ut depends on political considerations !hich

ma" continuall" (ar".?

6he %uestion in that case related to the confiscation of the propert" of the enem" on land !ithin our o!n

territor", and it !as held that propert" so situated could not $e confiscated !ithout an act of Congress. 6he

Chief ustice continuedB







?Commercial nations in the situation of the United *tates ha(e al!a"s a considera$le %uantit" of propert" in the

possession of their neigh$ors. >hen !ar $rea)s out, the %uestion !hat shall $e done !ith enem" propert" in our

countr" is a

age 175 U. *. 712

%uestion rather of polic" than of la!. 6he rule !hich !e appl" to the propert" of our enem" !ill $e applied $"

him to the propert" of our citiens. Ei)e all other %uestions of polic", it is proper for the consideration of a

department !hich can modif" it at !ill, not for the consideration of a department !hich can pursue onl" the la!

as it is !ritten. #t is proper for the consideration of the legislature, not of the e'ecuti(e or judiciar".?

6his case in(ol(es the capture of enem"Gs propert" on the sea, and e'ecuti(e action, and if the position that the

alleged rule e/ #%#%i &i'%e limits the so(ereign po!er in !ar $e rejected, then # understand the contention to

$e that $" reason of the e'istence of the rule, the proclamation of April -2 must $e read as if it contained the

e'emption in terms, or the e'emption must $e allo!ed $ecause the capture of fishing (essels of this class !as

not specificall" authoried.

6he pream$le to the proclamation stated, it is true, that it !as desira$le that the !ar ?should $e conducted upon

principles in harmon" !ith the present (ie!s of nations and sanctioned $" their recent practice,? $ut the

reference !as to the intention of the go(ernment ?not to resort to pri(ateering, $ut to adhere to the rules of the

:eclaration of aris,? and the proclamation spo)e for itself. 6he language of the pream$le did not carr" the

e'emption in terms, and the real %uestion is !hether it must $e allo!ed $ecause not affirmati(el" !ithheld ++ or

in other !ords, $ecause such captures !ere not in terms directed.

6hese records sho! that the *panish sloop Paquete Habana ?!as captured as a prie of !ar $" the

U.*.*. Castine? on April -5, and ?!as deli(ered? $" the Castine4s commander ?to ear Admiral >m. 6.

*ampson commanding the orth Atlantic *%uadronD,? and thereupon ?turned o(er? to a prie master !ith

instructions to proceed to =e" >est.

And that the *panish schooner Lla ?!as captured as a prie of !ar $" the U.*.*. Dl#hin"? April -7, and ?!as

deli(ered? $" the Dl#hin4s commander ?to ear Admiral >m. 6. *ampson commanding the orth Atlantic

*%uadronD,? and thereupon ?turned o(er? to a prie master !ith instructions to proceed to =e" >est.

age 175 U. *. 717

6hat the (essels !ere accordingl" ta)en to =e" >est and there li$eled, and that the decrees of condemnation

!ere entered against them Ma" 3;.

#t is impossi$le to concede that the Admiral ratified these captures in disregard of esta$lished international la!

and the proclamation, or that the resident, if he had $een of opinion that there !as an" infraction of la! or

proclamation, !ould not ha(e inter(ened prior to condemnation.



6he correspondence of April -8, 3;, $et!een the Admiral and the *ecretar" of the a(", %uoted from in the

principal opinion, !as entirel" consistent !ith the (alidit" of the captures.

6he %uestion put $" the Admiral related to the detention as prisoners of !ar of the persons manning the fishing

schooners ?attempting to get into a(ana.? oncom$atants are not so detained e'cept for special reasons.

*ailors on $oard enem"Gs trading (essels are made prisoners $ecause of their fitness for immediate use on ships

of !ar. 6herefore the Admiral pointed out the (alue of these fishing seamen to the enem", and ad(ised theirdetention. 6he *ecretar" replied that if the (essels referred to !ere ?attempting to (iolate $loc)ade,? the" !ere

su$ject ?!ith cre!? to capture, and also that the" might $e detained if ?considered li)el" to aid enem".? 6he

point !as !hether these cre!s should $e made prisoners of !ar. 4f course, the" !ould $e lia$le to $e if

in(ol(ed in the guilt of $loc)ade running, and the *ecretar" agreed that the" might $e on the other ground in the

AdmiralGs discretion.

All this !as in accordance !ith the rules and usages of international la!, !ith !hich, !hether in peace or !ar,

the na(al ser(ice has al!a"s $een necessaril" familiar.

# come then to e'amine the proposition

?that at the present da", $" the general consent of the ci(ilied nations of the !orld and independentl" of an"

e'press treat" or other pu$lic act, it is an esta$lished rule of international la!, founded on considerations of

humanit" to a poor and industrious order of men, and of the mutual con(enience of $elligerent states, that coast

fishing (essels, !ith their implements and supplies,

age 175 U. *. 718

cargoes, and cre!s, unarmed, and honestl" pursuing their peaceful calling of catching and $ringing in of fresh

fish, are e'empt from capture as prie of !ar.?

6his, it is said, is a rule

?!hich prie courts, administering the la! of nations, are $ound to ta)e judicial notice of, and to gi(e effect to,

in the a$sence of treat" or other pu$lic act of their o!n go(ernment.?

At the same time, it is admitted that the alleged e'emption does not appl"

?to coast fishermen or their (essels if emplo"ed for a !arli)e purpose or in such a !a" as to gi(e aid or

information to the enem", nor !hen militar" or na(al operations create a necessit" to !hich all pri(ate interests

must gi(e !a",?

and further that the e'emption has not

?$een e'tended to ships or (essels emplo"ed on the high sea in ta)ing !hales or seals, or cod or other fish

!hich are not $rought fresh to mar)et, $ut are salted or other!ise cured and made a regular article of

commerce.?



#t !ill $e percei(ed that the e'ceptions reduce the supposed rule to (er" narro! limits, re%uiring a careful

e'amination of the facts in order to ascertain its applica$ilit", and the decision appears to me to go altogether

too far in respect of dealing !ith captures directed or ratified $" the officer in command.

<ut !ere these t!o (essels !ithin the alleged e'emptionL 6he" !ere of t!ent"+fi(e and thirt"+fi(e tons $urden,

respecti(el". 6he" carried large tan)s in !hich the fish ta)en !ere )ept ali(e. 6he" !ere o!ned $" citiens of

a(ana, and the o!ners and the masters and cre! !ere to $e compensated $" shares of the catch. 4ne of themhad $een t!o hundred miles from a(ana, off Cape *an Antonio, for t!ent"+fi(e da"s, and the other for eight

da"s off the coast of ucatan. 6he" $elonged, in short, to the class of fishing or coasting (essels of from fi(e to

t!ent" tons $urden, and from t!ent" tons up!ards, !hich, !hen licensed or enrolled as prescri$ed $" the

e(ised *tatutes, are declared to $e (essels of the United *tates, and the shares of !hose men, !hen the (essels

are emplo"ed in fishing, are regulated $" statute. 6he" !ere engaged in !hat !ere su$stantiall" commercial

(entures, and the mere fact that the fish !ere )ept ali(e $" contri(ances

age 175 U. *. 719

for that purpose ++ a practice of considera$le anti%uit" ++ did not render them an" the less an article of trade than

if the" had $een $rought in cured.

# do not thin) that, under the circumstances, the considerations !hich ha(e operated to mitigate the e(ils of !ar

in respect of indi(idual har(esters of the soil can properl" $e in(o)ed on $ehalf of these hired (essels as $eing

the implements of li)e har(esters of the sea. ot onl" so as to the o!ners, $ut as to the masters and cre!s. 6he

principle !hich e'empts the hus$andman and his instruments of la$or e'empts the industr" in !hich he is

engaged, and is not applica$le in protection of the continuance of transactions of such character and e'tent as

these.

#n truth, the e'emption of fishing craft is essentiall" an act of grace, and not a matter of right, and it is e'tended

or denied as the e'igenc" is $elie(ed to demand.

#t is, said *ir >illiam *cott, ?a rule of comit" onl", and not of legal decision.?

6he modern (ie! is thus e'pressed $" Mr. allB

?0ngland does not seem to ha(e $een un!illing to spare fishing (essels so long as the" are harmless, and it does

not appear that an" state has accorded them immunit" under circumstances of incon(enience to itself. #t is li)el"that all nations !ould no! refrain from molesting them as a general rule, and !ould capture them so soon as

an" danger arose that the" or their cre!s might $e of militar" use to the enem", and it is also li)el" that it is

impossi$le to grant them a more distinct e'emption.?

#n the Crimean !ar, 185+55, none of the orders in council, in terms, either e'empted or included fishing

(essels, "et the allied s%uadrons s!ept the *ea of Aof of all craft capa$le of furnishing the means of

transportation, and the 0nglish admiral in the ulf of &inland directed the destruction of all ussian coasting







+.. No. 9661 &e'ember -, 1991

HN. /S/& C"/, n hs 'apa't* as Se'retar* o the &epartment o 2$u'aton, Cu3ture 4 Sports,&. 2/N&" "+", n her 'apa't* as Supernten$ent o Ct* S'hoo3s o an3a, petitioners,

(s.

TH2 C/SS/N N HU"N /+HTS, +"C/"N U&8, U/2T" """N, 2S"/"", H22N UP, "P" +N"2S, U &2 C"ST/, 2S" 282S an$"P/N"/ 2S2, respondents.

N":"S", J.:p

6he issue raised in the special ci(il action of !e%ti%a%i and prohi$ition at $ar, instituted $" the *olicitor

eneral, ma" $e formulated as follo!sB !here the relief sought from the Commission on uman ights $" a

part" in a case consists of the re(ie! and re(ersal or modification of a decision or order issued $" a court of

justice or go(ernment agenc" or official e'ercising %uasi+judicial functions, ma" the Commission ta)e

cogniance of the case and grant that reliefL *tated other!ise, !here a particular su$ject+matter is placed $" la!!ithin the jurisdiction of a court or other go(ernment agenc" or official for purposes of trial and adjudgment,

ma" the Commission on uman ights ta)e cogniance of the same su$ject+matter for the same purposes of

hearing and adjudicationL

6he facts narrated in the petition are not denied $" the respondents and are hence ta)en as su$stantiall" correct

for purposes of ruling on the legal %uestions posed in the present action. 6hese facts, 1 together !ith others

in(ol(ed in related cases recentl" resol(ed $" this Court - or other!ise undisputed on the record, are hereunder

set forth.

1. 4n *eptem$er 17, 199;, a Monda" and a class da", some 8;; pu$lic school teachers, among them mem$ersof the Manila u$lic *chool 6eachers Association M*6AD and Alliance of Concerned 6eachers AC6D

undertoo) !hat the" descri$ed as ?mass concerted actions? to ?dramatie and highlight? their plight resulting

from the alleged failure of the pu$lic authorities to act upon grie(ances that had time and again $een $rought to

the latterGs attention. According to them the" had decided to underta)e said ?mass concerted actions? after the

protest rall" staged at the :0C* premises on *eptem$er 1, 199; !ithout disrupting classes as a last call for the

go(ernment to negotiate the granting of demands had elicited no response from the *ecretar" of 0ducation. 6he

?mass actions? consisted in sta"ing a!a" from their classes, con(erging at the Ei!asang <onifacio, gathering in

peacea$le assem$lies, etc. 6hrough their representati(es, the teachers participating in the mass actions !ere

ser(ed !ith an order of the *ecretar" of 0ducation to return to !or) in - hours or face dismissal, and a

memorandum directing the :0C* officials concerned to initiate dismissal proceedings against those !ho did

not compl" and to hire their replacements. 6hose directi(es not!ithstanding, the mass actions continued into the

!ee), !ith more teachers joining in the da"s that follo!ed. ;

Among those !ho too) part in the ?concerted mass actions? !ere the eight 8D pri(ate respondents herein,

teachers at the amon Magsa"sa" igh *chool, Manila, !ho had agreed to support the non+political demands

of the M*6A. <



-. &or failure to heed the return+to+!or) order, the C complainants pri(ate respondentsD !ere

administrati(el" charged on the $asis of the principalGs report and gi(en fi(e 5D da"s to ans!er the charges

6he" !ere also pre(enti(el" suspended for ninet" 9;D da"s ?pursuant to *ection 1 of .:. 8;7? and

temporaril" replaced unmar)ed C 0'hi$its, Anne'es &, , D. An in(estigation committee !as

conse%uentl" formed to hear the charges in accordance !ith .:. 8;7. 5

3. #n the administrati(e case doc)eted as Case o. :0C* 9;+;8- in !hich C complainants raciano <udo",

r., ulieta <a$aran, Eu del Castillo, Apolinario 0s$er !ere, among others, named respondents, 6 the latter filedseparate ans!ers, opted for a formal in(estigation, and also mo(ed ?for suspension of the administrati(e

proceedings pending resolution $" . . the *upremeD Court of their application for issuance of an injuncti(e

!rittemporar" restraining order.? <ut !hen their motion for suspension !as denied $" 4rder dated o(em$er

8, 199; of the #n(estigating Committee, !hich later also denied their motion for reconsideration orall" made at

the hearing of o(em$er 1, 199;, ?the respondents led $" their counsel staged a !al)out signif"ing their intent

to $o"cott the entire proceedings.? 7 6he case e(entuall" resulted in a :ecision of *ecretar" CariNo dated

:ecem$er 17, 199;, rendered after e(aluation of the e(idence as !ell as the ans!ers, affida(its and documents

su$mitted $" the respondents, decreeing dismissal from the ser(ice of Apolinario 0s$er and the suspension for

nine 9D months of <a$aran, <udo" and del Castillo.

. #n the meantime, the ?M*6A filed a petition for !e%ti%a%i $efore the egional 6rial Court of Manila against

petitioner CariNoD, !hich !as dismissed unmar)ed C 0'hi$it, Anne' #D. Eater, the M*6A !ent to the

*upreme Court on !e%ti%a%i, in an attempt to nullif" said dismissal, grounded on theD alleged (iolation of the

stri)ing teachers? right to due process and peacea$le assem$l" doc)eted as .. o. 955, su#%a. 6he AC6

also filed a similar petition $efore the *upreme Court . . . doc)eted as .. o. 9559;.? 9 <oth petitions in this

Court !ere filed in $ehalf of the teacher associations, a fe! named indi(iduals, and :the% tea!he%3)e)be%s s

nu)e%us si)ila%ly situated: % :the% si)ila%ly situated #ubli! s!hl tea!he%s t nu)e%us t be

i)#leaded .:

5. #n the meantime, too, the respondent teachers su$mitted s!orn statements dated *eptem$er -7, 199; to the

Commission on uman ights to complain that !hile the" !ere participating in peaceful mass actions, the"

suddenl" learned of their replacements as teachers, allegedl" !ithout notice and conse%uentl" for reasons

completel" un)no!n to them. 10

2. 6heir complaints O and those of other teachers also ?ordered suspended $" the . . . :0C*D,? all num$ering

fort"+t!o -D O !ere doc)eted as :St%i(in' Tea!he%s CHR Case N. ;<==>.? #n connection there!ith the

Commission scheduled a ?dialogue? on 4cto$er 11, 199;, and sent a su$poena to *ecretar" CariNo re%uiring his

attendance therein. 11

4n the da" of the ?dialogue,? although it said that it !as ?not certain !hether he *ec. CariNoD recei(ed the

su$poena !hich !as ser(ed at his office, . . . theD Commission, !ith the Chairman presiding, and

Commissioners esi%uio . Mallilin and arciso C. Monteiro, proceeded to hear the case/? it heard the

complainantsG counsel aD e'plain that his clients had $een ?denied due process and suspended !ithout formal

notice, and unjustl", since the" did not join the mass lea(e,? and $D e'patiate on the grie(ances !hich !ere ?the

cause of the mass lea(e of M*6A teachers, andD !ith !hich causes the" C complainantsD

s"mpathie.? 1- 6he Commission thereafter issued an 4rder 1; reciting these facts and ma)ing the follo!ing

dispositionB



6o $e properl" apprised of the real facts of the case and $e accordingl" guided in its in(estigation

and resolution of the matter, considering that these fort" t!o teachers are no! suspended and

depri(ed of their !ages, !hich the" need (er" $adl", *ecretar" #sidro CariNo, of the :epartment

of 0ducation, Culture and *ports, :r. 0rlinda Eolarga, school superintendent of Manila and the

rincipal of amon Magsa"sa" igh *chool, Manila, are here$" enjoined to appear and

enlighten the Commission en $anc on 4cto$er 19, 199; at 11B;; A.M. and to $ring !ith them

an" and all documents rele(ant to the allegations aforestated herein to assist the Commission in

this matter. 4ther!ise, the Commission !ill resol(e the complaint on the $asis of complainantsGe(idence.

''' ''' '''

7. 6hrough the 4ffice of the *olicitor eneral, *ecretar" CariNo sought and !as granted lea(e to file a motion

to dismiss the case. is motion to dismiss !as su$mitted on o(em$er 1, 199; alleging as grounds therefor,

?that the complaint states no cause of action and that the C has no jurisdiction o(er the case.? 1<

8. ending determination $" the Commission of the motion to dismiss, judgments affecting the ?stri)ing

teachers? !ere promulgated in t!o -D cases, as aforestated, &i8 .B

aD 6he :ecision dated :ecem$er l7, 199; of 0ducation *ecretar" CariNo in Case o. :0C* 9;+

;8-, decreeing dismissal from the ser(ice of Apolinario 0s$er and the suspension for nine 9D

months of <a$aran, <udo" and del Castillo/ 15 and

$D 6he joint esolution of this Court dated August 2, 1991 in .. os. 955 and 9559;

dismissing the petitions ?!ithout prejudice to an" appeals, if still timel", that the indi(idual

petitioners ma" ta)e to the Ci(il *er(ice Commission on the matters complained

of,? 16 and inte% alia ?ruling that it !as #%i)a -a!ie la!ful for petitioner CariNo to issue return+

to+!or) orders, file administrati(e charges against recalcitrants, pre(enti(el" suspend them, and

issue decision on those charges.? 17

9. #n an 4rder dated :ecem$er -8, 199;, respondent Commission denied *ec. CariNoGs motion to dismiss and

re%uired him and *uperintendent Eolarga ?t sub)it thei% !unte%3a--ida&its ,ithin ten ?9<@ days . . . ?a-te%

,hi!h@ the C))issin shall #%!eed t hea% and %esl&e the !ase n the )e%its ,ith % ,ithut %es#ndents

!unte% a--ida&it .? 1 #t held that the ?stri)ing teachers? ?!ere denied due process of la!/ . . . the" should not

ha(e $een replaced !ithout a chance to repl" to the administrati(e charges/? there had $een a (iolation of their

ci(il and political rights !hich the Commission !as empo!ered to in(estigate/ and !hile e'pressing its ?utmost

respect to the *upreme Court . . . the facts $efore . . . itD are different from those in the case decided $" the

*upreme Court? the reference $eing unmista)a$l" to this CourtGs joint esolution of August 2, 1991 in .

os. 955 and 9559;, su#%aD.

#t is to in(alidate and set aside this 4rder of :ecem$er -8, 199; that the *olicitor eneral, in $ehalf of

petitioner CariNo, has commenced the present action of !e%ti%a%i and prohi$ition.

6he Commission on uman ights has made clear its position that it does not feel $ound $" this CourtGs joint

esolution in .. os. 955 and 9559;, su#%a. #t has also made plain its intention ?to hear and resol(e the



case i.e., *tri)ing 6eachers C Case o. 9;+775D on the merits.? #t intends, in other !ords, t t%y and de!ide

% hea% and dete%)ine" i.e." e/e%!ise 5u%isdi!tin o(er the follo!ing general issuesB

1D !hether or not the stri)ing teachers !ere denied due process, and just cause e'ists for the imposition of

administrati(e disciplinar" sanctions on them $" their superiors/ and

-D !hether or not the grie(ances !hich !ere ?the cause of the mass lea(e of M*6A teachers, andD !ith !hich

causes the" C complainantsD s"mpathie,? justif" their mass action or stri)e.

6he Commission e(identl" intends to itself ad5udi!ate, that is to sa", determine !ith character of finalit" and

definiteness, the same issues !hich ha(e $een passed upon and decided $" the *ecretar" of 0ducation, Culture

P *ports, su$ject to appeal to the Ci(il *er(ice Commission, this Court ha(ing in fact, as aforementioned,

declared that the teachers affected ma" ta)e appeals to the Ci(il *er(ice Commission on said matters, if still

timel".

6he threshold %uestion is !hether or not the Commission on uman ights has the po!er under the

Constitution to do so/ !hether or not, li)e a court of justice, 19 or e(en a %uasi+judicial agenc", -0 it has

jurisdiction or adjudicator" po!ers o(er, or the po!er to tr" and decide, or hear and determine, certain specifict"pe of cases, li)e alleged human rights (iolations in(ol(ing ci(il or political rights.

6he Court declares the Commission on uman ights to ha(e no such po!er/ and that it !as not meant $" the

fundamental la! to $e another court or %uasi+judicial agenc" in this countr", or duplicate much less ta)e o(er

the functions of the latter.

6he most that ma" $e conceded to the Commission in the !a" of adjudicati(e po!er is that it

ma" in&esti'ate, i.e., recei(e e(idence and ma)e findings of fact as regards claimed human rights (iolations

in(ol(ing ci(il and political rights. <ut fact finding is not adjudication, and cannot $e li)ened to the 5udi!ial

-un!tin of a court of justice, or e(en a %uasi+judicial agenc" or official. 6he function of recei(ing e(idence andascertaining therefrom the facts of a contro(ers" is not a judicial function, properl" spea)ing. 6o $e considered

such, the facult" of recei(ing e(idence and ma)ing factual conclusions in a contro(ers" must $e accompanied

$" the authorit" of a##lyin' the la, t thse -a!tual !n!lusins t the end that the !nt%&e%sy )ay be de!ided

% dete%)ined auth%itati&ely" -inally and de-initi&ely" sub5e!t t su!h a##eals % )des - %e&ie, as )ay be

#%&ided by la,. -1 6his function, to repeat, the Commission does not ha(e. --

6he proposition is made clear $" the constitutional pro(isions specif"ing the po!ers of the Commission on

uman ights.

6he Commission !as created $" the 1987 Constitution as an independent office. -; Upon its constitution, it

succeeded and superseded the residential Committee on uman ights e'isting at the time of the effecti(it" of

the Constitution. -< #ts po!ers and functions are the follo!ing -5

1D #n(estigate, on its o!n or on complaint $" an" part", all forms of human rights (iolations in(ol(ing

ci(il and political rights/

-D Adopt its operational guidelines and rules of procedure, and cite for contempt for (iolations thereof

in accordance !ith the ules of Court/



3D ro(ide appropriate legal measures for the protection of human rights of all persons !ithin the

hilippines, as !ell as &ilipinos residing a$road, and pro(ide for pre(enti(e measures and legal aid

ser(ices to the underpri(ileged !hose human rights ha(e $een (iolated or need protection/

D 0'ercise (isitorial po!ers o(er jails, prisons, or detention facilities/

5D 0sta$lish a continuing program of research, education, and information to enhance respect for the

primac" of human rights/

2D ecommend to the Congress effecti(e measures to promote human rights and to pro(ide for

compensation to (ictims of (iolations of human rights, or their families/

7D Monitor the hilippine o(ernmentGs compliance !ith international treat" o$ligations on human

rights/

8D rant immunit" from prosecution to an" person !hose testimon" or !hose possession of documents

or other e(idence is necessar" or con(enient to determine the truth in an" in(estigation conducted $" it

or under its authorit"/

9D e%uest the assistance of an" department, $ureau, office, or agenc" in the performance of its

functions/

1;D Appoint its officers and emplo"ees in accordance !ith la!/ and

11D erform such other duties and functions as ma" $e pro(ided $" la!.

As should at once $e o$ser(ed, onl" the first of the enumerated po!ers and functions $ears an" resem$lance to

adjudication or adjudgment. 6he Constitution clearl" and categoricall" grants to the Commission the po!ertoin&esti'ate all -%)s - hu)an %i'hts &ilatins in&l&in' !i&il and #liti!al %i'hts . #t can e'ercise that po!er

on its o!n initiati(e or on complaint of an" person. #t ma" e'ercise that po!er pursuant to such rules of

procedure as it ma" adopt and, in cases of (iolations of said rules, cite for contempt in accordance !ith the

ules of Court. #n the course of an" in(estigation conducted $" it or under its authorit", it ma" grant immunit"

from prosecution to an" person !hose testimon" or !hose possession of documents or other e(idence is

necessar" or con(enient to determine the truth. #t ma" also re%uest the assistance of an" department, $ureau,

office, or agenc" in the performance of its functions, in the conduct of its in(estigation or in e'tending such

remed" as ma" $e re%uired $" its findings. -6

<ut it cannot tr" and decide cases or hear and determine causesD as courts of justice, or e(en %uasi+judicial $odies do. 6o in(estigate is not to adjudicate or adjudge. >hether in the popular or the technical sense, these

terms ha(e !ell understood and %uite distinct meanings.

:In&esti'ate": commonl" understood, means to e'amine, e'plore, in%uire or del(e or pro$e into, research on,

stud". 6he dictionar" definition of ?in(estigate? is ?to o$ser(e or stud" closel"B in%uire into s"stematicall". ?to

search or in%uire intoB . . . to su$ject to an official pro$e . . .B to conduct an official in%uir".? -7 6he purpose of

in(estigation, of course, is to disco(er, to find out, to learn, o$tain information. o!here included or intimated





matters !hich ma" $e passed upon and determined through a motion for reconsideration addressed to the

*ecretar" 0ducation himself, and in the e(ent of an ad(erse (erdict, ma" $e re(ie!ed $" the Ci(il *er(ice

Commission and e(entuall" the *upreme Court.

6he Commission on uman ights simpl" has no place in this scheme of things. #t has no $usiness intruding

into the jurisdiction and functions of the 0ducation *ecretar" or the Ci(il *er(ice Commission. #t has no

$usiness going o(er the same ground tra(ersed $" the latter and ma)ing its o!n judgment on the %uestions

in(ol(ed. 6his !ould accord success to !hat ma" !ell ha(e $een the complaining teachersG strateg" to a$ortfrustrate or negate the judgment of the 0ducation *ecretar" in the administrati(e cases against them !hich the"

anticipated !ould $e ad(erse to them.

6his cannot $e done. #t !ill not $e permitted to $e done.

#n an" e(ent, the in(estigation $" the Commission on uman ights !ould ser(e no useful purpose. #f its

in(estigation should result in conclusions contrar" to those reached $" *ecretar" CariNo, it !ould ha(e no

po!er an"!a" to re(erse the *ecretar"Gs conclusions. e(ersal thereof can onl" $" done $" the Ci(il *er(ice

Commission and lastl" $" this Court. 6he onl" thing the Commission can do, if it concludes that *ecretar"

CariNo !as in error, is to refer the matter to the appropriate o(ernment agenc" or tri$unal for assistance/ that!ould $e the Ci(il *er(ice Commission. ;5 #t cannot arrogate unto itself the appellate jurisdiction of the Ci(il

*er(ice Commission.

>00&40, the petition is granted/ the 4rder of :ecem$er -9, 199; is AUEE0: and *06 A*#:0, and

the respondent Commission on uman ights and the Chairman and Mem$ers thereof are prohi$ited ?to hear

and resol(e the case i.e., *tri)ing 6eachers C Case o. 9;+775D on the merits.?

*4 4:00:.

Melen!i3He%%e%a" C%u8" Feli!ian" *idin" $%i3Aquin" Medialdea" Re'alad" Da&ide" +%. and R)e%" ++"!n!u%.

+.. No. 100150 anuar* 5, 199<

/+/& . S/N, ., C"S =U/P, C"/T "2"&, "N& +2N2SC"P, petitioners,

(s.C/SS/N N HU"N /+HTS, =U2 >2, "N& TH2S "S HN&2S, respondents.



:/TU+, J.:

6he e'tent of the authorit" and po!er of the Commission on uman ights ?C?D is again placed into focus

in this petition for prohi$ition, !ith pra"er for a restraining order and preliminar" injunction. 6he petitioners as)

us to prohi$it pu$lic respondent C from further hearing and in(estigating C Case o. 9;+158;, entitled

?&ermo, et al. (s. Huimpo, et al.?

6he case all started !hen a ?:emolition otice,? dated 9 ul" 199;, signed $" Carlos Huimpo one of the petitionersD in his capacit" as an 0'ecuti(e 4fficer of the Hueon Cit" #ntegrated a!)ers Management

Council under the 4ffice of the Cit" Ma"or, !as sent to, and recei(ed $", the pri(ate respondents $eing the

officers and mem$ers of the orth 0:*A Fendors Association, #ncorporatedD. #n said notice, the respondents

!ere gi(en a grace+period of three 3D da"s up to 1- ul" 199;D !ithin !hich to (acate the %uestioned premises

of orth 0:*A. 1 rior to their receipt of the demolition notice, the pri(ate respondents !ere informed $"

petitioner Huimpo that their stalls should $e remo(ed to gi(e !a" to the ?eopleGs ar)?. - 4n 1- ul" 199;, the

group, led $" their resident o%ue &ermo, filed a letter+complaint Pina'3sa)an' Sinu)#aan' SalaysayD !ith

the C against the petitioners, as)ing the late C Chairman Mar" Concepcion <autista for a letter to $e

addressed to then Ma"or <rigido *imon, r., of Hueon Cit" to stop the demolition of the pri(ate respondentsG

stalls, sa%i3sa%i stores, and !a%inde%ia along orth 0:*A. 6he complaint !as doc)eted as C Case o. 9;+

158;. ; 4n -3 ul" 199;, the C issued an 4rder, directing the petitioners ?to desist from demolishing the

stalls and shanties at orth 0:*A pending resolution of the (endorss%uattersG complaint $efore the

Commission? and ordering said petitioners to appear $efore the C. <

4n the $asis of the s!orn statements su$mitted $" the pri(ate respondents on 31 ul" 199;, as !ell as CGs

o!n ocular inspection, and con(inced that on -8 ul" 199; the petitioners carried out the demolition of pri(ate

respondentsG stalls, sa%i3sa%i stores and !a%inde%ia" 5 the C, in its resolution of 1 August 199;, ordered the

dis$ursement of financial assistance of not more than -;;,;;;.;; in fa(or of the pri(ate respondents to

purchase light housing materials and food under the CommissionGs super(ision and again directed the

petitioners to ?desist from further demolition, !ith the !arning that (iolation of said order !ould lead to a

citation for contempt and arrest.? 6

A motion to dismiss, 7 dated 1; *eptem$er 199;, %uestioned CGs jurisdiction. 6he motion also a(erred,

among other things, thatB

1. this case came a$out due to the alleged (iolation $" the petitionersD of the #nter+Agenc"

Memorandum of Agreement !here$" Metro+Manila Ma"ors agreed on a moratorium in the demolition

of the d!ellings of poor d!ellers in Metro+Manila/

''' ''' '''

3. . . . , a perusal of the said Agreement re(ealedD that the moratorium referred to therein refers to

moratorium in the demolition of the structures of poor d!ellers/

. that the complainants in this case !ereD not poor d!ellers $ut independent $usiness entrepreneurs

e(en this onora$le 4ffice admitted in its resolution of 1 August 199; that the complainants are indeed

(endors/



5. that the complainants !ereD occup"ing go(ernment land, particularl" the side!al) of 0:*A corner

orth A(enue, Hueon Cit"/ . . . and

2. that the Cit" Ma"or of Hueon Cit" hadD the sole and e'clusi(e discretion and authorit" !hether or

not a certain $usiness esta$lishment shouldD $e allo!ed to operate !ithin the jurisdiction of Hueon

Cit", to re(o)e or cancel a permit, if alread" issued, upon grounds clearl" specified $" la! and

ordinance.

:uring the 1- *eptem$er 199; hearing, the petitioners mo(ed for postponement, arguing that the motion to

dismiss set for -1 *eptem$er 199; had "et to $e resol(ed. 6he petitioners li)e!ise manifested that the" !ould

$ring the case to the courts.

4n 18 *eptem$er 199; a supplemental motion to dismiss !as filed $" the petitioners, stating that the

CommissionGs authorit" should $e understood as $eing confined onl" to the in(estigation of (iolations of ci(il

and political rights, and that ?the rights allegedl" (iolated in this case !ereD not ci(il and political rights, $utD

their pri(ilege to engage in $usiness.? 9

4n -1 *eptem$er 199;, the motion to dismiss !as heard and su$mitted for resolution, along !ith the contemptcharge that had meantime $een filed $" the pri(ate respondents, al$eit (igorousl" o$jected to $" petitioners on

the ground that the motion to dismiss !as still then unresol(edD. 10

#n an 4rder, 11 dated -5 *eptem$er 199;, the C cited the petitioners in contempt for carr"ing out the

demolition of the stalls, sa%i3sa%i stores and !a%inde%ia despite the ?order to desist?, and it imposed a fine of

5;;.;; on each of them.

4n 1 March 1991, 1- the C issued an 4rder, den"ing petitionersG motion to dismiss and supplemental motion

to dismiss, in this !iseB

Clearl", the Commission on uman ights under its constitutional mandate had jurisdiction o(er

the complaint filed $" the s%uatters+(endors !ho complained of the gross (iolations of their

human and constitutional rights. 6he motion to dismiss should $e and is here$" :0#0: for

lac) of merit. 1;

6he C opined that ?it !as not the intention of the ConstitutionalD Commission to create onl" a paper tiger

limited onl" to in(estigating ci(il and political rights, $ut it shouldD $e consideredD a %uasi+judicial $od" !ith

the po!er to pro(ide appropriate legal measures for the protection of human rights of all persons !ithin the

hilippines . . . .? #t addedB

6he right to earn a li(ing is a right essential to oneGs right to de(elopment, to life and to dignit".

All these $raenl" and (iolentl" ignored and trampled upon $" respondents !ith little regard at

the same time for the $asic rights of !omen and children, and their health, safet" and !elfare.

6heir actions ha(e ps"chologicall" scarred and traumatied the children, !ho !ere !itness and

e'posed to such a (iolent demonstration of ManGs inhumanit" to man.

#n an 4rder, 1< dated -5 April 1991, petitionersG motion for reconsideration !as denied.



ence, this recourse.

6he petition !as initiall" dismissed in our resolution 15 of -5 une 1991/ it !as su$se%uentl" reinstated,

ho!e(er, in our resolution 16 of 18 une 1991, in !hich !e also issued a temporar" restraining order, directing

the C to ?C0A*0 and :0*#*6 from further hearing C o. 9;+158;.? 17

6he petitioners pose the follo!ingB

>hether or not the pu$lic respondent has jurisdictionB

aD to in(estigate the alleged (iolations of the ?$usiness rights? of the pri(ate respondents !hose stalls !ere

demolished $" the petitioners at the instance and authorit" gi(en $" the Ma"or of Hueon Cit"/

$D to impose the fine of 5;;.;; each on the petitioners/ and

cD to dis$urse the amount of -;;,;;;.;; as financial aid to the (endors affected $" the demolition.

#n the CourtGs resolution of 1; 4cto$er 1991, the *olicitor+eneral !as e'cused from filing his comment for pu$lic respondent C. 6he latter thus filed its o!n comment, 1 through on. *amuel *oriano, one of its

Commissioners. 6he Court also resol(ed to dispense !ith the comment of pri(ate respondent o%ue &ermo,

!ho had since failed to compl" !ith the resolution, dated 18 ul" 1991, re%uiring such comment.

6he petition has merit.

6he Commission on uman ights !as created $" the 1987

Constitution. 19 #t !as formall" constituted $" then resident Coraon A%uino &ia 0'ecuti(e 4rder o

123, -0 issued on 5 Ma" 1987, in the e'ercise of her legislati(e po!er at the time. #t succeeded, $ut so

superseded as !ell, the residential Committee on uman ights. -1

6he po!ers and functions -- of the Commission are defined $" the 1987 Constitution, thusB to O

1D #n(estigate, on its o!n or on complaint $" an" part", all forms of human rights (iolations in(ol(ing

ci(il and political rights/

-D Adopt its operational guidelines and rules of procedure, and cite for contempt for (iolations thereof

in accordance !ith the ules of Court/

3D ro(ide appropriate legal measures for the protection of human rights of all persons !ithin thehilippines, as !ell as &ilipinos residing a$road, and pro(ide for pre(enti(e measures and legal aid

ser(ices to the underpri(ileged !hose human rights ha(e $een (iolated or need protection/

D 0'ercise (isitorial po!ers o(er jails, prisons, or detention facilities/

5D 0sta$lish a continuing program of research, education, and information to enhance respect for the

primac" of human rights/



2D ecommend to the Congress effecti(e measures to promote human rights and to pro(ide for

compensation to (ictims of (iolations of human rights, or their families/

7D Monitor the hilippine o(ernmentGs compliance !ith international treat" o$ligations on human

rights/

8D rant immunit" from prosecution to an" person !hose testimon" or !hose possession of documents

or other e(idence is necessar" or con(enient to determine the truth in an" in(estigation conducted $" itor under its authorit"/

9D e%uest the assistance of an" department, $ureau, office, or agenc" in the performance of its

functions/

1;D Appoint its officers and emplo"ees in accordance !ith la!/ and

11D erform such other duties and functions as ma" $e pro(ided $" la!.

#n its 4rder of 1 March 1991, den"ing petitionersG motion to dismiss, the C theories that the intention of themem$ers of the Constitutional Commission is to ma)e C a %uasi+judicial $od". -; 6his (ie!, ho!e(er, has

not heretofore $een shared $" this Court. #n CariNo (. Commission on uman ights, -< the Court, through then

Associate ustice, no! Chief ustice Andres ar(asa, has o$ser(ed that it is ?onl" the first of the enumerated

po!ers and functions that $ears an" resem$lance to adjudication or adjudgment,? $ut that resem$lance can in no

!a" $e s"non"mous to the adjudicator" po!er itself. 6he Court e'plainedB

. . . 6Dhe Commission on uman ights . . . !as not meant $" the fundamental la! to $e another court

or %uasi+judicial agenc" in this countr", or duplicate much less ta)e o(er the functions of the latter.

6he most that ma" $e conceded to the Commission in the !a" of adjudicati(e po!er is that it ma"in(estigate, i.e., recei(e e(idence and ma)e findings of fact as regards claimed human rights (iolations

in(ol(ing ci(il and political rights. <ut fact finding is not adjudication, and cannot $e li)ened to the

judicial function of a court of justice, or e(en a %uasi+judicial agenc" or official. 6he function of

recei(ing e(idence and ascertaining therefrom the facts of a contro(ers" is not a judicial function,

properl" spea)ing. 6o $e considered such, the facult" of recei(ing e(idence and ma)ing factual

conclusions in a contro(ers" must $e accompanied $" the authorit" of appl"ing the la! to those factual

conclusions to the end that the contro(ers" ma" $e decided or determined authoritati(el", finall" and

definiti(el", su$ject to such appeals or modes of re(ie! as ma" $e pro(ided $" la!. 6his function, to

repeat, the Commission does not ha(e.

After thus la"ing do!n at the outset the a$o(e rule, !e no! proceed to the other )ernel of this contro(ers" and,

its is, to determine the e'tent of CGs in(estigati(e po!er.

#t can hardl" $e disputed that the phrase ?human rights? is so generic a term that an" attempt to define it, al$eit

not a fe! ha(e tried, could at $est $e descri$ed as inconclusi(e. Eet us o$ser(e. #n a s"mposium on human

rights in the hilippines, sponsored $" the Uni(ersit" of the hilippines in 1977, one of the %uestions that has

$een propounded is ?!Dhat do "ou understand $" ?human rightsL? 6he participants, representing different

sectors of the societ", ha(e gi(en the follo!ing (aried ans!ersB



Hu)an %i'hts are the $asic rights !hich inhere in man $" (irtue of his humanit". 6he" are the same in

all parts of the !orld, !hether the hilippines or 0ngland, =en"a or the *o(iet Union, the United *tates

or apan, =en"a or #ndonesia . . . .

Hu)an %i'hts include ci(il rights, such as the right to life, li$ert", and propert"/ freedom of speech, of

the press, of religion, academic freedom, and the rights of the accused to due process of la!/ political

rights, such as the right to elect pu$lic officials, to $e elected to pu$lic office, and to form political

associations and engage in politics/ and social rights, such as the right to an education, emplo"ment, andsocial ser(ices. -5

Hu)an %i'hts are the entitlement that inhere in the indi(idual person from the sheer fact of his humanit"

. . . <ecause the" are inherent, human rights are not granted $" the *tate $ut can onl" $e recognied and

protected $" it. -6

Hu)an %i'hts include allD the ci(il, political, economic, social, and cultural rights defined in the

Uni(ersal :eclaration of uman ights. -7

Hu)an %i'hts are rights that pertain to man simpl" $ecause he is human. 6he" are part of his natural $irth, right, innate and inaliena$le. -

6he Uni(ersal :eclaration of uman ights, as !ell as, or more specificall", the #nternational Co(enant on

0conomic, *ocial and Cultural ights and #nternational Co(enant on Ci(il and olitical ights, suggests that

the scope of human rights can $e understood to include those that relate to an indi(idualGs social, economic,

cultural, political and ci(il relations. #t thus seems to closel" identif" the term to the uni(ersall" accepted traits

and attri$utes of an indi(idual, along !ith !hat is generall" considered to $e his inherent and inaliena$le rights,

encompassing almost all aspects of life.

a(e these $road concepts $een e%uall" contemplated $" the framers of our 1982 Constitutional Commission inadopting the specific pro(isions on human rights and in creating an independent commission to safeguard these

rightsL #t ma" of (alue to loo) $ac) at the countr"Gs e'perience under the martial la! regime !hich ma" ha(e,

in fact, impelled the inclusions of those pro(isions in our fundamental la!. Man" (oices ha(e $een heard.

Among those (oices, aptl" represented perhaps of the sentiments e'pressed $" others, comes from Mr. ustice

.<.E. e"es, a respected jurist and an ad(ocate of ci(il li$erties, !ho, in his paper, entitled ?resent *tate of

uman ights in the hilippines,? -9 o$ser(esB

<ut !hile the Constitution of 1935 and that of 1973 enshrined in their <ill of ights most of the

human rights e'pressed in the #nternational Co(enant, these rights $ecame una(aila$le upon the

proclamation of Martial Ea! on -1 *eptem$er 197-. Ar$itrar" action then $ecame the rule

#ndi(iduals $" the thousands $ecame su$ject to arrest upon suspicion, and !ere detained and

held for indefinite periods, sometimes for "ears, !ithout charges, until ordered released $" the

Commander+in+Chief or this representati(e. 6he right to petition for the redress of grie(ances

$ecame useless, since group actions !ere for$idden. *o !ere stri)es. ress and other mass media

!ere su$jected to censorship and short term licensing. Martial la! $rought !ith it the suspension

of the !rit of ha$eas corpus, and judges lost independence and securit" of tenure, e'cept

mem$ers of the *upreme Court. 6he" !ere re%uired to su$mit letters of resignation and !ere



dismissed upon the acceptance thereof. 6orture to e'tort confessions !ere practiced as declared

$" international $odies li)e Amnest" #nternational and the #nternational Commission of urists.

Con(erging our attention to the records of the Constitutional Commission, !e can see the follo!ing discussions

during its -2 August 1982 deli$erationsB

M. AC#A . . . , the primac" of its CD tas) must $e made clear in (ie! of the importance

of human rights and also $ecause ci(il and political rights ha(e $een determined $" man"international co(enants and human rights legislations in the hilippines, as !ell as the

Constitution, specificall" the <ill of ights and su$se%uent legislation. 4ther!ise, if !e !&e%

su!h a ,ide te%%it%y in a%ea" ,e )i'ht di--use its i)#a!t and the #%e!ise natu%e - its tas("

hen!e" its e--e!ti&ity ,uld als be !u%tailed .

S" it is i)#%tant t delienate the #a%a)ete%s - its tas(s s that the !))issin !an be )st

e--e!ti&e.

M. <0Q4. 6hat is precisel" m" difficult" $ecause ci(il and political rights are (er" $road

6he Article on the <ill of ights co(ers ci(il and political rights. 0(er" single right of anindi(idual in(ol(es his ci(il right or his political right. *o, !here do !e dra! the lineL

M. AC#A. Actuall", these ci(il and political rights ha(e $een made clear in the language of

human rights ad(ocates, as !ell as in the Uni(ersal :eclaration of uman ights !hich

addresses a num$er of articles on the right to life, the right against torture, the right to fair and

pu$lic hearing, and so on. 6hese are (er" specific rights that are considered enshrined in man"

international documents and legal instruments as constituting ci(il and political rights, and these

are precisel" !hat !e !ant to defend here.

M. <0Q4. *o, !ould the commissioner sa" ci(il and political rights as defined in theUni(ersal :eclaration of uman ightsL

M. AC#A. es, and as # ha(e mentioned, the #nternational Co(enant of Ci(il and olitical

ights distinguished this right against torture.

M. <0Q4. *o as to distinguish this from the other rights that !e ha(eL

M. AC#A. es, $ecause the other rights !ill encompass social and economic rights, and

there are other (iolations of rights of citiens !hich can $e addressed to the proper courts and

authorities.

''' ''' '''

M. <0Q4. *o, !e !ill authorie the commission to define its functions, and, therefore, in

doing that the commission !ill $e authoried to ta)e under its !ings cases !hich perhaps

heretofore or at this moment are under the jurisdiction of the ordinar" in(estigati(e and

prosecutorial agencies of the go(ernment. Am # correctL



M. AC#A. o. >e ha(e alread" mentioned earlier that !e !ould li)e to define the specific

parameters !hich co(er ci(il and political rights as co(ered $" the international standards

go(erning the $eha(ior of go(ernments regarding the particular political and ci(il rights of

citiens, especiall" of political detainees or prisoners. 6his particular aspect !e ha(e e'perienced

during martial la! !hich !e !ould no! li)e to safeguard.

M. <0Q4. 6hen, # go $ac) to that %uestion that # had. 6herefore, !hat !e are reall" tr"ing

to sa" is, perhaps, at the proper time !e could specif" all those rights stated in the Uni(ersal:eclaration of uman ights and defined as human rights. 6hose are the rights that !e en(ision

hereL

M. AC#A. es. #n fact, the" are also enshrined in the <ill of ights of our Constitution.

6he" are integral parts of that.

M. <0Q4. The%e-%e" is the $entle)an sayin' that all the %i'hts unde% the *ill - Ri'hts

!&e%ed by hu)an %i'htsL

M. AC#A. N" nly thse that #e%tain t !i&il and #liti!al %i'hts.

''' ''' '''

M. AMA. In !nne!tin ,ith the dis!ussin n the s!#e - hu)an %i'hts" I ,uld li(e t

state that in the #ast %e'i)e" e&e%yti)e ,e in&(e the &ilatin - hu)an %i'hts" the Ma%!s

%e'i)e !a)e ut ,ith the de-ense that" as a )atte% - -a!t" they had de-ended the %i'hts - #e#le

t de!ent li&in'" -d" de!ent husin' and a li-e !nsistent ,ith hu)an di'nity.

S" I thin( ,e shuld %eally li)it the de-initin - hu)an %i'hts t #liti!al %i'hts. Is that the

sense - the !))ittee" s as nt t !n-use the issueL

M. *AM#064. 7es" Mada) P%esident .

M. AC#A. # !ould li)e to continue and respond also to repeated points raised $" the

pre(ious spea)er.

The%e a%e a!tually si/ a%eas ,he%e this C))issin n Hu)an Ri'hts !uld a!t e--e!ti&elyB 9@

#%te!tin - %i'hts - #liti!al detainees6 B@ t%eat)ent - #%isne%s and the #%e&entin -

t%tu%es6 @ -ai% and #ubli! t%ials6 @ !ases - disa##ea%an!es6 >@ sal&a'in's and ha)lettin'6 and

@ the% !%i)es !))itted a'ainst the %eli'ius.

''' ''' '''

6he 0*#:06. Commissioner uingona is recognied.

M. U#4A. 6han) ou Madam resident.

# !ould li)e to start $" sa"ing that # agree !ith Commissioner arcia that !e should, in %de% t

)a(e the #%#sed C))issin )%e e--e!ti&e" deli)it as )u!h as #ssible" ,ithut #%e5udi!e t



-utu%e e/#ansin. The !&e%a'e - the !n!e#t and 5u%isdi!tinal a%ea - the te%) ?hu)an

%i'hts?. # !as actuall" distur$ed this morning !hen the reference !as made !ithout %ualification

to the rights em$odied in the uni(ersal :eclaration of uman ights, although later on, this !as

%ualified to refer to ci(il and political rights contained therein.

#f # remem$er correctl", Madam resident, Commissioner arcia, after mentioning the Uni(ersal

:eclaration of uman ights of 198, mentioned or lin)ed the concept of human right !ith

other human rights specified in other con(ention !hich # do not remem$er. Am # correctL

M. AC#A. #s Commissioner uingona referring to the :eclaration of 6orture of 1985L

M. U#4A. # do not )no!, $ut the commissioner mentioned another.

M. AC#A. Madam resident, the other one is the #nternational Con(ention on Ci(il and

olitical ights of !hich !e are signator".

M. U#4A. # see. 6he onl" pro$lem is that, although # ha(e a cop" of the Uni(ersal

:eclaration of uman ights here, # do not ha(e a cop" of the other co(enant mentioned. #t is%uite possi$le that there are rights specified in that other con(ention !hich ma" not $e specified

here. # !as !ondering !hether it !ould $e !ise to lin) our concept of human rights to general

terms li)e ?con(ention,? rather than specif" the rights contained in the con(ention.

As far as the Uni(ersal :eclaration of uman ights is concerned, the Committee, $efore the

period of amendments, could specif" to us !hich of these articles in the :eclaration !ill fall

!ithin the concept of ci(il and political rights, not for the purpose of including these in the

proposed constitutional article, $ut to gi(e the sense of the Commission as to !hat human rights

!ould $e included, !ithout prejudice to e'pansion later on, if the need arises. &or e'ample, there

!as no definite repl" to the %uestion of Commissioner egalado as to !hether the right to marr"!ould $e considered a ci(il or a social right. #t is not a ci(il rightL

M. AC#A. Mada) P%esident" I ha&e t %e#eat the &a%ius s#e!i-i! !i&il and #liti!al %i'hts

that ,e -elt )ust be en&isined initially by this #%&isin -%eed) -%) #liti!al detentin and

a%%est #%e&entin - t%tu%e" %i'ht t -ai% and #ubli! t%ials" as ,ell as !%i)es in&l&in'

disa##ea%an!e" sal&a'in's" ha)lettin's and !lle!ti&e &ilatins. S" it is li)ited t #liti!ally

%elated !%i)es #%e!isely t #%te!t the !i&il and #liti!al %i'hts - a s#e!i-i! '%u# - indi&iduals"

and the%e-%e" ,e a%e nt #enin' it u# t all - the de-inite a%eas.

M. U#4A. Correct. 6herefore, just for the record, the entlemen is no longer lin)ing his

concept or the concept of the Committee on uman ights !ith the so+called ci(il or political

rights as contained in the Uni(ersal :eclaration of uman ights.

M. AC#A. >hen # mentioned earlier the Uni(ersal :eclaration of uman ights, # !as

referring to an international instrument.

M. U#4A. # )no!.



M. AC#A. <ut it does not mean that !e !ill refer to each and e(er" specific article therein,

$ut onl" to those that pertain to the ci(il and politicall" related, as !e understand it in this

Commission on uman ights.

M. U#4A. Madam resident, # am not e(en clear as to the distinction $et!een ci(il and

social rights.

M. AC#A. 6here are t!o international co(enantsB the #nternational Co(enant and Ci(il andolitical ights and the #nternational Co(enant on 0conomic, *ocial and Cultural ights. 6he

second co(enant contains all the different rights+the rights of la$or to organie, the right to

education, housing, shelter, et cetera.

M. U#4A. *o !e are just limiting at the moment the sense of the committee to those

that the entlemen has specified.

M. AC#A. es, to ci(il and political rights.

M. U#4A. 6han) "ou.

''' ''' '''

*. 6A. Madam resident, from the standpoint of the (ictims of human rights, # cannot stress

more on ho! much !e need a Commission on uman ights. . . .

. . . human rights (ictims are usuall" penniless. 6he" cannot pa" and (er" fe! la!"ers !ill

accept clients !ho do not pa". And so, the" are the ones more a$used and oppressed. Anthe%

%easn is" the !ases in&l&ed a%e &e%y deli!ate t%tu%e" sal&a'in'" #i!(in' u# ,ithut any

,a%%ant - a%%est" )assa!%e O and the persons !ho are allegedl" guilt" are people in po!er li)e politicians, men in the militar" and $ig shots. 6herefore, this uman ights Commission must $e

independent.

# !ould li)e (er" much to emphasie ho! much !e need this commission, especiall" for the

little &ilipino, the little indi(idual !ho needs this )ind of help and cannot get it. And I thin( ,e

shuld !n!ent%ate nly n !i&il and #liti!al &ilatins be!ause i- ,e #en this t land" husin'

and health" ,e ,ill ha&e n #la!e t ' a'ain and ,e ,ill nt %e!ei&e any

%es#nse. . . . ;0 emphasis suppliedD

6he final outcome, no! !ritten as *ection 18, Article I###, of the 1987 Constitution, is a pro(ision empo!eringthe Commission on uman ights to ?in(estigate, on its o!n or on complaint $" an" part", all forms of human

rights (iolations in&l&in' !i&il and #liti!al %i'hts? *ec. 1D.

6he term ?ci(il rights,? ;1 has $een defined as referring O

tDo those rightsD that $elong to e(er" citien of the state or countr", or, in !ider sense, to all its

inha$itants, and are not connected !ith the organiation or administration of the go(ernment.

6he" include the rights of propert", marriage, e%ual protection of the la!s, freedom of contract,



etc. 4r, as other!ise defined ci(il rights are rights appertaining to a person $" (irtue of his

citienship in a state or communit". *uch term ma" also refer, in its general sense, to rights

capa$le of $eing enforced or redressed in a ci(il action.

Also %uite often mentioned are the guarantees against in(oluntar" ser(itude, religious persecution, unreasona$le

searches and seiures, and imprisonment for de$t. ;-

olitical rights, ;;

on the other hand, are said to refer to the right to participate, directl" or indirectl", in theesta$lishment or administration of go(ernment, the right of suffrage, the right to hold pu$lic office, the right of

petition and, in general, the rights appurtenant to citienship &is3a3&is the management of go(ernment. ;<

ecalling the deli$erations of the Constitutional Commission, afore%uoted, it is readil" apparent that the

delegates en(isioned a Commission on uman ights that !ould focus its attention to the more se(ere cases of

human rights (iolations. :elegate arcia, for instance, mentioned such areas as the ?1D protection of rights of

political detainees, -D treatment of prisoners and the pre(ention of tortures, 3D fair and pu$lic trials, D cases

of disappearances, 5D sal(agings and hamletting, and 2D other crimes committed against the religious.? >hile

the enumeration has not li)el" $een meant to ha(e an" preclusi(e effect, more than just e'pressing a statement

of priorit", it is, nonetheless, significant for the tone it has set. #n an" e(ent, the delegates did not apparentl"ta)e comfort in peremptoril" ma)ing a conclusi(e delineation of the CGs scope of in(estigatorial jurisdiction.

6he" ha(e thus seen it fit to resol(e, instead, that ?Congress ma" pro(ide for other cases of (iolations of human

rights that should fall !ithin the authorit" of the Commission, ta)ing into account its recommendation.? ;5

#n the particular case at hand, there is no ca(il that !hat are sought to $e demolished are the stalls, sa%i3

sa%istores and !a%inde%ia, as !ell as temporar" shanties, erected $" pri(ate respondents on a land !hich is

planned to $e de(eloped into a ?eopleGs ar)?. More than that, the land adjoins the orth 0:*A of Hueon

Cit" !hich, this Court can ta)e judicial notice of, is a $us" national high!a". 6he conse%uent danger to life and

lim$ is not thus to $e li)e!ise simpl" ignored. #t is indeed parado'ical that a right !hich is claimed to ha(e

$een (iolated is one that cannot, in the first place, e(en $e in(o)ed, if it is, in fact, e'tant. <e that as it ma",

loo)ing at the standards hereina$o(e discoursed &is3a3&is the circumstances o$taining in this instance, !e are

not prepared to conclude that the order for the demolition of the stalls, sa%i3sa%i stores and !a%inde%ia of the

pri(ate respondents can fall !ithin the compartment of ?human rights (iolations in(ol(ing ci(il and political

rights? intended $" the Constitution.

4n its contempt po!ers, the C is constitutionall" authoried to ?adopt its operational guidelines and rules of

procedure, and cite for contempt for (iolations thereof in accordance !ith the ules of Court.? Accordingl", the

C acted !ithin its authorit" in pro(iding in its re(ised rules, its po!er ?to cite or hold an" person in direct or

indirect contempt, and to impose the appropriate penalties in accordance !ith the procedure and sanctions

pro(ided for in the ules of Court.? 6hat po!er to cite for contempt, ho!e(er, should $e understood to appl"

onl" to (iolations of its adopted operational guidelines and rules of procedure essential to carr" out its

in(estigatorial po!ers. 6o e'emplif", the po!er to cite for contempt could $e e'ercised against persons !ho

refuse to cooperate !ith the said $od", or !ho undul" !ithhold rele(ant information, or !ho decline to honor

summons, and the li)e, in pursuing its in(estigati(e !or). 6he ?order to desist? a semantic interpla" for a

restraining orderD in the instance $efore us, ho!e(er, is not in(estigatorial in character $ut prescinds from an

adjudicati(e po!er that it does not possess. #n E/#%t P%!essin' Gne Auth%ity &s. C))issin n Hu)an

Ri'hts" ;6 the Court, spea)ing through Madame ustice Carolina riNo+A%uino, e'plainedB



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Cases Session 1-2 (HR)