any point of its course. As the bona fide destination of the ship, as indicated by its papers, was Matamoras, a neutral port, it was therefore decided that the ship was not, and, under the circumstances, could not be, liable to condemnation for breach of blockade.

As to the cargo, the decision was that the destination of such part of it as was contraband of war, according to the rules already cited, was not the neutral port of Matamoras, and "that these articles, at least, were destined for the use of the rebel forces then occupying Brownsville and other places in the vicinity. Contraband merchandise is subject to a different rule in respect to ulterior destination from that which applies to merchandise not contraband. The latter is liable to capture only when a violation of blockade is intended; the former, when destined to a hostile country, or to the actual military or naval use of the enemy, whether blockaded or not. The trade of neutrals with belligerents, in articles not contraband, is absolutely free, except interrupted by a blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles not contraband might be sent to Matamoras and beyond to the rebel region, where the communication was not interrupted by blockade, articles of a contraband character, destined in fact to a state in rebellion, or for the use of the rebel military forces, were liable to capture though primarily destined for Matamoras." The rule that the ownership of a portion of the contraband cargo rendered articles not contraband, but belonging to the same owners, liable to condemnation was enforced as in the case of the Springbok.

Penalty for Contraband Trade. The conveyance of contraband of war is an offence against the law of nations. Over this offence the prize-courts of a belligerent are given jurisdiction, and, in the decision of prize cases, these courts apply the

'The Peterhoff, 5 Wallace, 35. 'The English cases of the Stert, 4 Robinson, Admiralty Reports, p.

65, and the Jonge Pieter, 4 Ibid. pp. 79, 85, were cited by the court as precedents applicable to the case.

rules and impose the penalties which are sanctioned by international law.

The invariable penalty imposed for the carriage of contraband is that of forfeiture. In ordinary cases this penalty is applied to the contraband goods alone, and to the freight due upon them to the neutral carrier.' The question as to whether it is to be extended to other parts of the cargo or to the ship is determined by the knowledge and intention of their owners, as presumed from the circumstances of the case. The ancient penalty for engaging in contraband trade involved the forfeiture of the ship and the non-contraband cargo. This rule has in modern times been relaxed in cases where such contraband articles make up a minor portion of the cargo, thus creating a presumption of innocence in favor of the carrier. In other cases the old presumption remains, and the burden of proof lies upon the owner of the ship to establish his innocence. Such presumption exists, as to the ship

(a.) When the owner of the ship owns any part of the contraband cargo. If a part owner of the vessel be shown to have an interest in the contraband cargo, his share only is forfeited.'

(b.) When the greater part of the cargo is contraband. In this case the presumption is that the owner of the ship knew of the use to which his property was put, and consented to such illegal use.'

'Dana's Wheaton, p. 663, note 230. "According to the modern law of nations-for there has been some relaxation in practice from the strictness of the ancient rules-the carriage of contraband goods to the enemy subjects them, if captured in delicto, to the penalty of confiscation; but the vessel and the remaining cargo. if they do not belong to the owner of the contraband goods, are not subject to the same penalty. The penalty is applied to the latter only when there has been some actual co-operation, on their part, in a meditated fraud upon the

(c.) When fraud or deceit is attempted by concealment, or by the use of false papers, or when a false destination is claimed.'

(d.) When contraband is carried in violation of treaty stipulation.'

Rule as to Innocent Cargo. The innocent cargo is exempt from forfeiture unless its ownership is the same as that of the whole or a part of the contraband.'

The offence of carrying contraband begins so soon as the ship passes into the high seas from the territorial waters of the neutral state. It is complete, and the liability to penalty no longer exists, when the articles have been delivered at their hostile destination. A ship cannot be captured on its return voyage, since there is no offence against international law in carrying a cargo of any character from a belligerent to a neutral destination.'

Release of Neutral Ship upon the Surrender of Contraband Cargo. In a few instances neutral ships have been released, and allowed to proceed to their destination, on condition that the contraband articles be surrendered to the captor. Al

Bermuda, 3 Wallace, 555; II Halleck, pp. 245-247; Dana's Wheaton, p. 663, note 230.

'The Baltic, I Acton, Adm. Rep. p. 25; the Margaret, Ibid. p. 333; the Rising Sun, 2 Robinson, 104; III Phillimore, §§ 275, 276.

The Concordia, 1 Robinson, 119; the Two Brothers, Ibid. 131; the Hunter, 1 Dodson, 481; III Phillimore, §§ 276, 277; Hall, § 247.

Hall, § 247; II Halleck, p. 247; III Phillimore, § 276; Upton, p. 332.

"Generally, when contraband goods have been landed, and the vessel has proceeded on her voyage, neither the vessel nor the remaining cargo is liable to seizure; aliter, if the destination and papers are false."-Carrington vs. Merchants' Ins. Co., 8 Peters, 495;

II Halleck, pp. 248, 249; II Ortolan, chap. vi. It was held by Sir William Scott, in at least two cases, that the duration of the penalty was prolonged to the end of the return voyage when false papers had been used to evade seizure on the outward voyage. This view is properly questioned by Wheaton, on the ground that there must be a delictum at the moment of seizure. To subject the property to confiscation, while the offence no longer continues, would be to extend it indefinitely, not only to the return voyage, but to all future cargoes of the vessel, which would thus never be purified from the contagion communicated by the contraband articles."-Boyd's Wheaton, pp. 584, 585.

though this practice has been recognized in a limited number of treaties, it is entirely opposed to the rule of law upon the subject, and has never received, nor is it likely to receive, general sanction. The surrendered articles must be carried before a prize-court in order to secure a decree of condemnation, upon which alone a valid title can be based. The court, in the absence of the ship's papers, frequently finds itself unable to determine, from lack of evidence, whether the articles are, or are not, contraband of war; and, in the absence of the owner, the master of the ship has no legal power to surrender any portion of his cargo, except in accordance with the laws of war.'

The Doctrine of Continuous Voyages. In both of the above cases the doctrine of continuous voyages, originated by the English prize-courts at the beginning of this century, was recognized by the court in reaching a decree of condemnation. By this doctrine the ultimate destination of a cargo is held to determine its liability to capture. If such destination is a neutral port, and if the cargo is intended to be sold there, and taken up as a part of the general stock in trade, the cargo is not liable to condemnation. If, however, a neutral port is made a new base of operations, and the goods are intended to be finally delivered at a blockaded port; or if they are contraband of war, and are destined to the ultimate military use of a belligerent, then the alleged neutral destination will not avail. The principle of continuous voyages is thus seen to have been extended by the Supreme Court in its application to the cases of the Springbok and Peterhoff, although the fundamental principle involved, as announced by Lord Stowell in his original decision, has undergone no material change. The

1 Dana's Wheaton, p. 663, note 230; III Hautefeuille, p. 274; Treaties and Conventions of the United States, pp. 96, 200, 260, 327; Field, International Code, § 877.

2 For a full account of the decision of Lord Stowell upon the subject of continuous voyages, see the

Polly, 2 Robinson, Admiralty Reports, p. 369; the William, 5 Ibid. p. 395; and the Baltic, I Acton, 25; the Imanuel, 2 Robinson, 197; the Maria, 5 Ibid. 365; the Flora, 6 Ibid. 9; the Ebenezer, 6 Ibid. 250. See, also, III Phillimore, p. 394, and Boyd's Wheaton, pp. 589–592.

later decision regards the goods if contraband, and destined to an enemy's use, or to a blockaded port, as still liable to capture, even when they were to have been discharged at a neutral port, with a view to reshipment to the belligerent destination.'

Difference between the Old and New Rules. The rule thus laid down by the Supreme Court of the United States is undoubtedly at variance with the provisions of international law on the same subject, as they were accepted and understood at the outbreak of the Civil War. Neither has the new rule received that general recognition which it must receive to entitle it to consideration as a rule of international law. The development of steam navigation, however, has been such as greatly to facilitate the operations of blockade-running and carrying of contraband. So important has this development been that a belligerent would now suffer great injury were he to adhere to the old rule on the subject, which received international sanction at a time when maritime commerce was carried on in sailing vessels and before the application of steam to purposes of navigation had become an accepted fact. Some modification of the old rule is, therefore, both just and necessary, in order to place a belligerent in as good a situation as that which he formerly occupied. What that modification is to be can only be deduced from experience, of which a sufficient amount has not yet been acquired to justify such a deduction or to warrant the statement of a modified rule. This much only is clear: A powerful belligerent will not, in the future, allow himself to

1 In the case of the Springbok the British Government was applied to by the owners of the contraband cargo to demand restitution of the goods from the American Government, or compensation for their seizure. The case was referred to the law officers of the crown, and their opinion was that the seizure was illegal. The case was referred to a mixed commission, and the claim was rejected, but no reason

was given by the commission for its decision. See Creasy, pp. 619, 620, for a full and able discussion of the subject. See, also, Field's International Code, § 859; the Jonge Pieter, 4 Robinson, Adm. Rep. p. 79; the Maria, 5 Ibid. p. 365; the Freundschaft, 4 Ibid. p. 96; the Polly, 2 Ibid. p. 361; the Carl Walter, 4 Ibid. p. 207; the Mercury, 1 Ibid. p. 80; 4 Ibid.app. A; Dana's Wheaton, p. 667, note 231.