of the finding of the Court below as to false and simulated papers. It was, however, beyond all doubt, open to the Supreme Court of the United States, after pronouncing an interlocutory decree releasing the ship, to have suspended motu suo its definitive sentence respecting the cargo, and to have allowed its owners to bring in further proof, if they were so minded. Instead of this, the Supreme Court, by what I venture to think must have been an oversight on its part, laid stress as a condemnatory circumstance, on what it termed "the very remarkable fact, that no application had been made by the claimants for leave to take further proof in order to furnish some explanation of the defects in the cargo papers." There were, it may be observed, no such defects in the cargo papers, as, according to the established practice in such matters, would have justified the condemnation of the cargo. The owners of the ship and cargo had accordingly appealed to the Supreme Court on the evidence, as it stood before the District Court, and they were justified in their view, that it did not support the conclusions of the Judge of the District Court, inasmuch as the Supreme Court found that the ship was bona fide bound from London. to Nassau; that her papers were regular and all genuine; and there was no concealment of any of them and no spoliation. The Court thereupon decreed the ship itself to be released, not so however the cargo.

Such a conclusion respecting the ship on the part of the Supreme Court would, under the ordinary practice of European Prize Courts and according to the ancient practice of the Prize Courts of the United States, have at once led to the release of the neutral cargo.

The law as hitherto administered in the English Prize Courts is thus stated by Lord Stowell: "The rule respecting contraband, as I have always understood it, is that the articles must be taken in delicto, in the actual prosecution of the voyage to the enemy's port.' Such is also the view

The Imina, 3 Ch. Rob., p. 168.

which the British Government entertained in 1863 as to what constitutes contraband of war, as may be inferred from the words, which fell from the late Earl of Derby and Earl Russell (then Secretary of State for Foreign Affairs) in the debate in the House of Lords on 18th May, 1863, ("Hansard's Reports"). Lord Derby said, “If a vessel were proceeding bonâ fide from this country to Nassau, whatever might be the nature of her cargo, no American cruiser has a right to interfere with her, and no matter what may be the ultimate intentions of the owners, even though it were meant that she should subsequently proceed from Nassau to the Confederate States, and endeavour to break the blockade, that would afford no justification of her seizure by an American cruiser previously to her entering. the harbour of Nassau. I hope the Noble Earl (Lord Russell) has not conceded to the American Government anything like an acknowledgment, that under the circumstances they are justified in interfering with a vessel sailing from one neutral port to another, whatever grounds of doubt or suspicion there may be as to her future course."

Earl Russell replied, that "the Noble Earl (Earl Derby); certainly misunderstood me, when he supposed that I meant to say, that a vessel going to Nassau, intending afterwards to make another voyage, might be captured on her way thither. What I alluded to was a case of a simulated destination, that is a vessel pretending that she. is going to Nassau, when she is in reality bound for another port."*

* In justification of the Springbok's capture, reference is twice made by the Supreme Court to Earl Russell's Letter of July 5th, 1862, addressed to certain Merchants and Shipowners at Liverpool, and it is said that his Lordship "had then distinctly informed the Liverpool Memorialists, that he could not be surprised that the cruisers of the United States should watch with vigilance a port," (Nassau) "which was said to be the great entrepôt of this commerce." There is nothing, however, in the letter referred to that recognises the right of an American cruiser to capture a British ship on its voyage from England to Nassau. Earl Russell merely admitted the right of such a cruiser to capture

To the same effect Mr. Wheaton, a very high authority in Europe as well as in the United States, says, “The general rule as to contraband articles, as laid down by Sir W. Scott, is that the articles must be taken in delicto in the actual prosecution of the voyage to the enemy's port."—"From the moment of quitting port on a hostile destination indeed the offence is complete, and it is not necessary to wait until the goods are actually endeavouring to enter the enemy's port, but beyond this, if the goods are not in delicto and in the actual prosecution of such a voyage, the penalty is not now generally held to attach."*

The well-known New York case of Seton v. Low, in which Chancellor Kent was one of the Judges, is to the same effect.†

These old landmarks of the doctrine of contraband of war were abandoned for the first time by the Judges of the American Prize Courts in the case of the Bermuda, already mentioned, when the Supreme Court ruled, that "it made no difference whether the destination to the rebel port was ulterior or direct, nor could the question of destination be affected by transhipment at Nassau, if transhipment was intended, for that could not break the continuity of transportation of the cargo." The Supreme Court appears on this

blockade runners on their way from Nassau to the blockaded ports. In fact, Lord Russell's letter relates to "Ships that have been sent from this country to America with a fixed purpose to run the blockade."

* Elements of International Law, London, 1836.

NOTE.-The Emperor of Russia has declared his intention to adhere to the old landmarks of the Law of Contraband in a proclamation issued at the commencement of the present war with the Ottoman Porte, and published in the Journal of St. Petersburgh of 14-26 May, 1877. This Proclamation, after enumerating the objects reputed to be contraband, goes on to say: "Ces objets, lors qu'ils sont trouvés à bord de navires neutres et destinés à un port ennemi, peuvent être saisis et confisqués, sauf la quantité, qui est nécessaire au navire sur lequel est operêe la saisie." The Proclamation is printed in the "Revue de Droit International," 9me vol., p. 137, 1877, No. 1. Gand.

+ Johnson's "Cases in the Supreme Court of New York from 1799 to 1803," vol. I., p. I.

The Bermuda, 3, Wallace's Reports, p. 553.

occasion to have relied in the first place on the analogy of an underhand trade, which was attempted to be carried on by American citizens with the enemy's ports, when the United States were engaged in a war with Mexico in 1855. In such cases, however, the goods were confiscable, not because they were contraband of war under the Law of Nations, but because it is a rule of Public Law, that in time of war the subjects of a belligerent State cannot lawfully carry on any kind of trade with the enemy's State. Such cases belong to a category, of which numerous instances came before Lord Stowell, and of which the Jonge Pieter, 4 Ch. Rob. 79, may be cited as a leading case. "In all the cases," says Sir W. Scott, "that have occurred on this question, and they are many, it has been held indubitably clear, that a subject cannot trade with the enemy, without the special license of Government. The interposition of a prior port makes no difference. All trade with the enemy is illegal, and the circumstance that the goods are to go first to a neutral port, will not make it lawful." But such cases, however conclusive their authority may be against the subjects of a belligerent State in its own Courts, can be of no authority against the subjects of other States, which owe no allegiance on the high seas to the municipal law of the belligerent State. The other class of cases, to which the doctrine of continuous voyages has been heretofore applied in the English Prize Courts, and to which reference has already been made, are no doubt cases of International Law, where the belligerent has claimed to confiscate the property of neutrals, because neutrals have interposed in the colonial trade of the enemy. Further, in those cases such interposition was not conjectural, it was actual; and the ulterior voyage, which constituted the offence, was in the course of execution.

"The same principle,"-such is the language of Chief Justice Chase in the case of the Bermuda,—“is equally applicable to the conveyance of contraband to belligerents;

and the vessel, which with the consent of the owner is so employed in the first stage of a continuous transportation, is equally liable to capture and confiscation with the vessel, which is employed in the last, if the employment is such as to make either so liable."

The application of this doctrine of a continuous transportation to breach of blockade in the subsequent case of the Springbok and her cargo was simply a corollary to the application of the new doctrine to contraband of war. The Supreme Court had in fact, in giving judgment in the case of the Bermuda, anticipated the further application of the doctrine to breaches of blockade. In the case however of the Bermuda they condemned both the ship and the cargo on the ground that the original destination of the Bermuda was to a blockaded port.*

On the other hand, in the case of the Springbok and her cargot the Court released the ship and condemned the cargo. It released the ship, being satisfied that it was going no further than to Nassau, a neutral port; it condemned the cargo, having no doubt, that it was the intention of the owners to tranship it at Nassau to some blockaded port. The judgment of the Court was thus expressed. "On the whole 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 reaching safely 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 of that voyage, attached to the cargo from the time of sailing." The Chief Justice had already illustrated the principle in

* The Bermuda, 3 Wallace, p. 558. The Court condemned the Bermuda and her cargo for breach of blockade, as well as for conveying contraband of

war.

The Springbok and her cargo, 5 Wallace, p. 1.