traband articles on board, quits her port on a hostile destination, the capture may be legally made. It is by no means necessary to wait till the ship and goods are actually endeavouring to enter the enemy's port. The voyage being illegal at its commencement, the penalty immediately attaches and continues to the end of the voyage, or at least so long as the illegality exists.'

The decision in the case of the 'Springbok' has been the subject of great discussion among publicists. The Springbok' left London on December 9, 1862, for Nassau, and when 150 miles from the latter port was captured by the Federal cruiser Sonoma,' the ground being that she intended to run the blockade. The cargo belonged to one owner, some of it being contraband and some not. The vessel and her cargo were condemned by the District Court of New York, following the cases of the 'Neutralitet' (3 Rob., 296); the 'Franklin' (ibid. 217); the 'Ranger' (6 Rob., 126); and the 'Baltic' (I Acton, 25). This decree was reversed by the Supreme Court of the United States in December 1866, so far as concerns the ship, following the case of the 'Bermuda' (3 Wall., 514), but it was affirmed as to the cargo. There was nothing in the papers when taken from the 'Springbok' to show that the intention was to run the blockade. The condemnation of the cargo of the Springbok' was put by the Chief Justice on the alternative of either contraband or blockade-running. 'We do not refer,' he said, 'to the character of the cargo for the purpose of determining whether it was liable to condemnation as contraband, but for the purpose of ascertaining its real destination; for, we repeat, contraband or not, it must be condemned if really destined for Nassau and not beyond; and, contraband or not, it must be condemned if destined to any rebel port, for all rebel ports were under blockade. Upon the whole case we cannot doubt that the cargo was originally shipped with intent to violate the blockade; that the owners of the cargo intended that it should be transhipped at Nassau into some vessel more likely to succeed in running safely to a blockaded port than the "Springbok;" that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of the parties, one voyage, and that the liability to condemnation, if captured during any part The Imina,' 3 Rob., 168; the 'Trende Sostre,' 6 Rob., 390, note.

of that voyage, attached to the cargo from the time of sailing.' The substance of the judgment of the court will be found in the note below. The British Foreign Office was advised on March 13, 1863, by Sir William Atherton, Sir Roundell Palmer, and Dr. Phillimore (the then law officers of the Crown) that there was nothing to justify the seizure of the bark "Springbok" and her cargo, and that her Majesty's Government would be justified in demanding the immediate restitution of the ship and cargo, without submitting to any adjudication by an American prize court.' The ruling of the Supreme Court of the United States has inflicted a serious blow on neutral rights, and is in conflict with the views generally expressed by the United States, and it is doubtful

Where the papers of a ship, sailing under a charter party, are all genuine and regular, and show a voyage between ports neutral within the meaning of international law; where there has been no concealment nor spoliation of them; where the stipulations of the charter party, in favour of the owners, are apparently in good faith; where the owners are neutrals, have no interest in the cargo, and have not previously in any way violated neutral obligations, and there is no sufficient proof that they have any knowledge of the unlawful destination of the cargo-in such a case, its aspect being otherwise fair, the vessel will not be condemned, because the neutral port, to which it is sailing, has been constantly and notoriously used as a port of call and transshipment, by persons engaged in systematic violation of blockade, and in the conveyance of contraband of war, and was meant, by the owners of the cargo carried on the ship, to be so used in regard to it. The fact that the master declared himself ignorant as to what part of his cargo, of which invoices were not on board (having been sent by mail to the port of destination), consisted-such part being contraband--and that he also declared himself ignorant of the cause of capture, when his mate, boatswain, and steward all testified that they understood it to be the vessel's having contraband on board, was held to be insufficient of itself to infer guilt to the owners of the vessel, which was in no way compromised with the cargo. But the misrepresentation of the master, as to his knowledge of the ground of capture, was held to deprive the owners of the costs on restoration. The cargo was condemned for intent to run a blockade: the vessel was sailing to a port such as that above described, the bills of lading disclosed the contents of 619 out of 2,007 packages, which made the cargo, the contents of the remaining 1,388 being not disclosed; both they, and the manifest, made the cargo deliverable by order, the master being directed by his letter of instructions to report himself, on arrival at the neutral port, to H., who 'would give him orders as to the delivery of his cargo;' a certain portion of the cargo, whose contents were undisclosed, was specially fitted for the enemy's military use, and a larger part was capable of being adapted to it; other vessels, owned by the owners of the cargo, and by the charterer, and sailing ostensibly for neutral ports, were, on invocation, shown to have been engaged in blockade-running, many packages on one of the vessels, and numbered in a broken series of numbers, finding many of their complemental numbers on the vessel under adjudication. (The Springbok,' 5 Wall., 1.)

Return voyage

If not contra

band at time of seizure

if it would be adopted by the courts of Great Britain; see the case of Hobbs v. Henning, 34 L. J. (N.S.), 117.

§ 8. Where the contraband goods are not taken in delicto, in the actual prosecution of the outward voyage, and the return voyage is distinct and independent, the penalty is not generally held to attach, either upon the proceeds of the goods or on the ship upon her return voyage. But where they are both inseparably connected in their original plan, so as to form parts of a continuous voyage, the penalty is generally considered as attaching in every stage till its final completion. Such is the doctrine established by the decisions of the English Admiralty, and seemingly admitted by the Supreme Court of the United States. Wheaton has questioned its soundness, but his objection, that it extends the offence indefinitely, is completely answered by the decisions themselves, which expressly limit the offence and its penal consequences to completion of the entire voyage. Ortolan contests this rule of the continuation of the offence during the return voyage, on the ground that the ship should, in all cases, be exempted from any penalty, and the confiscation confined to the contraband articles. He has supported his doctrine by strong and logical arguments, but, however correct it may be in theory, it is not supported by the practice of the great maritime powers of the world. The general rule of exemption is, undoubtedly, well established, but the exceptions indicated are supported by good authorities, and generally admitted in practice.1

§ 9. It must be observed that the offence does not necessarily continue during the entire outward voyage, even where it was completed by the mere inception with contraband articles on board. 'Where there is positive evidence,' says Duer, 'that, previous to the capture, the voyage had been changed, by the substitution of an innocent port of destination, or that the original port, by capitulation or otherwise, had ceased to be hostile, as the goods were not contraband

1 Ortolan, Diplomatie de la Mer, liv. iii. ch. vi.; Hubner, De la Saisie des Bâtiments, liv. ii. ch. iv. § 4; Zouch, Juris et Jur. Fecialis, p. ii. cap. viii.; Wheaton, On Captures, p. 183; the 'Nancy,' 3 Rob., 127; the Rosalie and Betty,' 2 Rob., 348; the Baltic,' 1 Act., 25; the 'Joseph,' 8 Cranch., 451; the Caledonia,' 1 Wheat., 100; 'Christiansberg,' 6 Rob., 381; Carrington v. the M. Ins. Co., 8 Peters., 521; the Frederick Molke,' 1 Rob., 87; the Charlotte,' ibid. 386; the Margaret,' Act. R., 133.

when seized, the capture is invalid, and restitution is decreed.' Although the penalty is not averted by the possibility that the intention to prosecute an illegal voyage, which is in the progress of execution, will be changed before its completion, yet, if the intention, when the capture was made, had, in good faith, been abandoned, or was no longer capable of execution, the corpus delicti is extinguished, and the penalty cannot be sustained.1

from one

port to

§ 10. The illegality of the transportation of contraband Transfer goods is not confined to an original importation into an enemy's country. The transportation of such articles from another one port of the enemy to another is equally unlawful, and is subject to be treated in the same manner as an original importation. It may equally and as directly tend to assist the enemy in the prosecution of the war. 'The transfer of contraband from one port of a country to another,' says Sir William Scott, is subject to be treated in the same manner as an original importation into the country itself.' 2

2

use in a

port

§ 11. In order to constitute the unlawfulness of the trans- If for portation of contraband, it is not necessary that the immediate enemy's destination of the ship and cargo should be to an enemy's neutral country or port. If the goods are contraband and destined for the direct use of the enemy's army or navy, the transportation is illegal, and subject to the ordinary penalty. Thus, if an enemy's fleet be lying, in tiine of war, in a neutral port, and a neutral vessel should carry contraband goods to that port, not intended for sale in the neutral market, but destined for the exclusive supply of the hostile forces, such conduct would be a direct interposition in the war by furnishing essential aid in its prosecution, and consequently would be a flagrant departure from the duties of neutrality.

• Com

§ 12. In the case of the 'Commercen,' a Swedish vessel The captured by an American cruiser in the act of carrying a mercen' cargo of barley and oats for the supply of the allied armies in the Spanish peninsula, the United States being at war with Great Britain, but at peace with Sweden and the other powers allied against France, the Supreme Court of the United States held that the voyage was illegal, the cargo was condemned, and the neutral carrier denied his freight. The cargo, in this case, 1 Duer, On Insurance, vol. i. pp. 629, 571, 572. 2 The Edward,' 4 Rob., 70.

Disagreement as to what

are contraband

was enemy's property, but all the members of the court concurred in the principle that a neutral carrying supplies for the enemy's naval or military forces, was engaged in an illicit voyage inconsistent with the duties of neutrality, and that it was a very lenient administration of justice to confine the penalty to a mere denial of freight. Some doubts have arisen as to the propriety of the decision in the particular case, but none as to the truth of the general principles upon which it was founded. Chief Justice Marshall dissented from the majority of the court, but his dissent was founded on the special circumstances of the case: first, that the war in the Spanish peninsula was so distinct from that between England and the United States, that the latter could not be prejudiced by the aid furnished; and, second, that Sweden being an ally with England in the war against France, her subjects might lawfully aid the British forces engaged in that war, and without violating their neutrality toward the United States.'

§ 13. All writers on international law are agreed, that implements and munitions of war, and articles, which, in their particular actual condition, are of immediate use for warlike purposes, articles are to be deemed contraband, whenever they are destined to an enemy's country, or to an enemy's use; but, beyond this, there is such a diversity of opinion among text-writers that it is exceedingly difficult, if not impossible, to deduce from such works any well-established and satisfactory principles to guide our decision on the points in dispute. We will proceed to refer to the discussions of publicists of the highest authority on these questions, without attempting, however, to reconcile their differences of opinion.

Views of Grotius and others

§ 14. Grotius divides all articles of trade into three classes: 1. Implements and materials which, by their nature, are suitable to be used in war. 2. Articles of taste and luxury, useful only for civil purposes, as books, paintings, &c. 3. Articles which are of indiscriminate use in peace and war, as provisions, naval stores, &c. Articles of the first class are always contraband; those of the second class never; those of the third class may or may not be contraband, according to the particular circumstances of the war. But little objection can be made to this classification, but it leaves the entire difficulty unsettled, as the question immediately arises with 1 The Commercen,' 1 Wheat. R., p. 322.