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.'

§ 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

1 The Imina,' 3 Rob., 168; the 'Trende Sostre,' 6 Rob., 390, note. 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 trans-shipment, 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.) The district court-following the cases of the Neutralitet' (3 Rob., 296); the 'Franklin' (Ibid. 217); the 'Ranger' (6 Rob., 126); the Baltic' (1 Acton, 25)—had decided that the vessel was a good prize, but this was reversed by the Supreme Court following the case of the Bermuda' (3 W'all., 514).

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. Mr. 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 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.2

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, 1 Act. R., 133

2

Duer, On Insurance, vol. i. pp. 629, 571, 572.

§ 10. The illegality of the transportation of contraband goods is not confined to an original importation into an enemy's country. The transportation of such articles from 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.'1

§ II. In order to constitute the unlawfulness of the transportation of contraband, it is not necessary that the immediate destination of the ship and cargo should be to an enemy's 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 time 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.

§ 12. In the case of the 'Commercen,' a Swedish vessel captured by an American cruiser in the act of carrying a 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, 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

1 The 'Edward,' 4 Rob., 70.

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 actual condition, are of immediate use for warlike purposes, 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.

§ 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, etc. 3. Articles which are of indiscriminate use in peace and war, as provisions, naval stores, etc. 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 respect to what articles are to be assigned to each class, and under what particular circumstances articles of the third class are subject to capture as contraband of war. Loccenius is of opinion that provisions are universally contraband, and refers to many instances in which different nations had enforced the prohibition. Heineccius includes in the list of contraband articles of promiscuous use in peace or war, such as provi

1 The Commercen,' 1 Wheat. R., p. 322.

sions, naval stores, etc. Vattel makes a similar distinction to that of Grotius, though he includes timber or naval stores among articles which are liable to capture as contraband, and considers provisions as such only under certain circumstances, as 'when there are hopes of reducing the enemy by famine.' Valin and Pothier wholly exclude provisions, but admit that by general usage, when they wrote, naval stores were prohibited. Bynkershoek strenuously contends against admitting into the list of contraband articles of promiscuous use in peace and war, and denies that any other than those which, in their actual state, are immediately applicable to warlike purpose, can properly be enumerated as prohibited. Sir Leoline Jenkins, in a letter to Charles II., says: 'I am humbly of opinion that nothing ought to be judged contraband by the general law of nations, but what is directly and immediately subservient to the uses of war, except it be in the case of besieged places.'!

§ 15. The more modern treaties on the law of nations present an almost equal diversity of sentiment on this subject. Kent, Wheaton, and Duer have generally limited their remarks to stating the opinions of the older text-writers, and the decisions of English and American courts of prize. Wheaton is evidently disposed to exclude entirely, from the list of contraband, provisions and other articles of promiscuous use. Kent and Duer are of opinion that such articles may, or may not, be contraband, according to the circumstances of the case.

1 Grotius, De Fur. Bel. ac Pac., lib. iii. cap. i. § 5; Loccenius, De Fur. Marit., lib. i. cap. 4, § 9; Heineccius, De Navibus, cap. i. § 14; Vattel, Droit des Gens, liv. iii. ch. vii. § 112; Valin, Com. sur l'Ord., liv. iii. tit. ix. art. xi. ; Bynkershoek, Quæst. Jur. Bel., liv. i. cap. x.

A strictly accurate and satisfactory classification is perhaps imprac ticable, but that which is best supported by English and American decisions divides all merchandise into three classes :

1st. Articles manufactured and primarily or ordinarily used for military purposes in time of war, destined to a belligerent country or places occupied by the army and navy of a belligerent, are always contraband and liable to condemnation.

2nd. Articles which may be and are used for purposes of war or peace, according to circumstances, are contraband only when actually destined to the military or naval use of a belligerent.

3rd. Articles exclusively used for peaceful purposes are not contraband at all, though liable to seizure and condemnation for violation of blockade or siege.

Contraband articles contaminate the parts not contraband of a cargo if belonging to the same owner; and the non-contraband must share the fate of the contraband-viz., confiscation.-The 'Peterhoff,' 5 Wall., 28.