on the return voyage, and he was not thinking of the exact circumstances in which an enemy destination will be held actual.2

28

The cases of the Eagle and the Imina may also be reconciled, if it is necessary, on the theory that the Imina was a case of a ship with a false destination.20

Mr. Justice Story also considered the doctrine of continuous voyages as applicable to the carriage of contraband.

"But it is argued," he says, "that the doctrine [of contraband] cannot apply [to the present case] because the destination was to a neutral country; and it is certainly true that goods destined for the use of a neutral country can never be deemed contraband, whatever may be their character or however well adapted to warlike purposes. But if such goods are destined for the direct and avowed use of the enemy's army or navy, we should be glad to see an authority which countenances the exemption from forfeiture even though the property of a neutral.”

In the same opinion, he says:

But it is not the effect of a particular transaction that the law regards, it is the general tendency of such transactions to assist the military operations of the enemy and the temptations which it presents to deviate from a strict neutrality. Nor do we perceive how the destination, to a neutral port can vary the application of this rule; it is only doing that indirectly which is prohibited in direct courses.

The doctrine of continuous voyages was also recognized by the Supreme Court of the United States in a case which arose during the war between the United States and Mexico. The ship Admittance cleared from New Orleans for Honolulu with a cargo intended for sale

28 Introduction to Takahashi's Int. Law during the Chino-Japanese War, p. xx. It is suggested that Lord Stowell did not regard a neutral destination of the ship as conclusive against the condemnation of contraband goods on board.

29 In Smith & Sibley's Int. Law as interpreted during the Russo-Japanese War, p. 236, it is said: "It may, of course, be properly pointed out that the application of the doctrine of continuous voyages to the conveyance of contraband is hardly consistent with one of the best known of Lord Stowell's judgments, the Imina. But the case of the Eagle can be reconciled with even this last case, if it be treated as a case of a vessel with a false destination. There would appear to be considerable analogy between sailing under false papers from a neutral port to a belligerent port and sailing from a neutral (or belligerent) to a belligerent port via an interposed neutral port. There is the same fraud practiced on the other belligerent, and it is essential to recollect, as appears from Lord Stowell's judgments, that the ground of condemnation in the prize court of a belligerent is the fraud practiced on him under the neutral's flag."

30 The Commercen, 1 Wheat. (U. S.) 382.

in a Mexican port. It was thus a case of illegal trading with the enemy and the fact that the goods were consigned to a party at a Mexican port was conclusive evidence of their ultimate destination. An attempt was made to show that the ship was bound for the neutral port of Honolulu but the court said that it appeared by the charter party that the interposition of the neutral port was not for the purpose of trade with, or transshipment at, the neutral port.

"Attempts have been made," said Mr. Justice Daniel, "to evade the rule of public law, by the interposition of a neutral port between the shipment from the belligerent port and their ultimate destination in the enemy's country; but in all such cases the goods have been condemned as having been taken in a course of commerce rendering them liable to confiscation.”’31

During the Crimean War, France applied the doctrine of continuous voyages to the carriage of contraband goods." The Dutch ship, Frau Howina, was captured off Cape Rocca while on a voyage from Lisbon to the neutral port of Hamburg with a cargo of saltpeter described in the manifest and bills of lading simply as "goods." A hostile destination overland into Russia was inferred from various circumstances, among the most important of which was the fact that Hamburg was already overstocked with saltpeter and that there was no such local commercial demand there for a further supply of that necessary ingredient of gunpowder as to attract foreign traders. The ship was captured while on a voyage from one neutral port to another and the cargo was condemned because it appeared to the satisfaction of the court that it was destined by the owner from the first for, and was being carried to, a belligerent. As the real destination was shown to be Russia it was deemed immaterial whether the saltpeter was to be carried on by the ship to the Baltic or discharged at Hamburg and carried overland to Russia. It will be noted that the ship was captured before it arrived at the neutral port and the second stage of the carriage was to be either by water or land transportation.

During the Civil War the United States applied the doctrine for the

31 Jecker v. Mongomery, 18 How. (U.S.) 110. See also 18 How. (U. S.) 198. The idea that this case turned upon the construction of an act of Congress, and therefore "has nothing to do with the matter of continuous voyages" is without foundation. The point is that the court announced its adherence to the doctrine.

"Calvo, Le Droit Int. (4 ed.), tom. v, §§1961, 2767, where the judgment is printed in full. See also Revue de Droit Int., tom. xxi, p. 55.

purpose of preventing the carriage of contraband to the blockaded ports of the Southern Confederacy. By established British and American usage a blockade runner is subject to capture at any time after leaving its home port with the intention of running an existing and publicly proclaimed blockade.33 The same rule applies to the carriage of contraband to a belligerent. In considering the Civil War cases it must be remembered that the entire coast of the Confederacy was blockaded, and that both blockade running and the carriage of contraband goods was involved in every attempt to carry goods of a contraband nature to that coast. In order to restrict the danger area, ships engaged in the forbidden trade adopted the plan of clearing for neutral ports conveniently near the southern coast and there transshipping the goods to neutral vessels, especially adapted for the hazardous work of entering a confederate port. The advantages of the system were obvious. If the vessel was not subject to capture until after it left a neutral port such as Nassau, the danger line was brought within a few miles of the coast of the belligerent. A small island near the coast of Florida, therefore, soon became the center of an important trade. Its harbor swarmed with innocent looking trading vessels and the United States government was asked to assume that they had no improper relations with other craft of race-horse type and notorious character which so frequently called at the port. The nature of the trade was notorious and it was commented upon by Lord Russell in the House of Lords and by Lord Lyons in a letter to Secretary Seward. It was in fact common knowledge that the entire trade was a gross manifest and palpable evasion of the recognized rules and requirements of the law of neutrality; that Nassau was a mere outpost for attack upon a friendly belligerent by theoretical neutrals; a rendezvous for vessels engaged in a forbidden trade. The greater part of the transactions were conducted by, or under the immediate supervision of, confederate agents. On May 3, 1862, Commodore Bullock, the confederate nava agent in Europe, wrote to Mason that Frazer, Trenholm & Co., the confederate financial and commercial agents in London:

say their ships are necessarily sailed under the British flag and the presence on board of any person known to have been in the confederate service would compromise their character.34

33 The Adula, 176 U. S. 361.

34 Moore, Int. Arb., vol. i, p. 580; Int. Law Solutions (Naval War Col.), 1901, p. 42.

On August 18, 1862, the government instructed the naval commanders of the United States that a ship was not to be seized without a search carefully made so far as to render it reasonable to believe that she is engaged in carrying contraband of war for or to the insurgents or to their ports directly or indirectly by transshipment, or otherwise violating the blockade.35

About this time the American Minister in London gave to the British foreign office a list of vessels which were being prepared to engage in a trade with the Southern Confederacy in violation of the neutrality laws. All the vessels subsequently captured appeared upon this interesting list.

The Dolphins was the first of a series of cases in which the doctrine of continuous voyages was applied. She was a steamer of apparent British ownership which was captured near Porto Rico, while ostensibly on a voyage from Liverpool to Nassau with a cargo composed in part of goods contraband if destined for a belligerent country. Both ship and cargo were condemned by the district court.

"The cutting up of the voyage into several parts," said Judge Marvin, "by the intervention or proposed intervention of several intermediate ports may render it more difficult for cruisers or prize courts to determine where the ultimate terminus is intended to be but it cannot make a voyage which in its nature is one, to become two or more voyages, nor make any of the parts of one entire voyage to become legal which would be illegal if not so divided."

The Pearl was captured when about sixty miles from Nassau while on an ostensible voyage from Liverpool to Nassau. The district court was satisfied that the vessel was really on a voyage to Nassau and directed that the claimants of the vessel and the cargo should be allowed to produce further evidence touching the ownership of the vessel and cargo and the disposition to be made thereof after the arrival at Nassau. No additional evidence was taken under this order and the court directed the restitution of the ship and the cargo. On appeal the

35 Official Records of the Union and Confederate Navies, Ser. 1, vol. i, p. 417. These instructions applied the doctrine in regard to captures which had been announced by the government of the United States at a very early date. On Feb. 1, 1782, the congress of the confederation declared it lawful to capture and condemn "all contraband goods, wares and merchandise to whatever nations belonging, although found in a neutral bottom, if destined for the use of an enemy."

36 The Dolphin, 7 Fed. Cas. 864 (1863).

"The Pearl, 19 Fed. Cas. 54; affm. 5 Wall. (U. S.) 578.

Supreme Court of the United States reversed this decision and con-demned both the ship and the cargo.

In the case of the Stephen Hart 38 the principles involved received elaborate consideration. The schooner was captured on January 29, 1862, while off the coast of Florida about twenty-five miles from Key West and about eighty-five miles from Port Yeacos, Cuba. She was loaded with army supplies and was bound ostensibly from London to Cuba. The government was able to show by evidence which was practically conclusive that the cargo of contraband goods was when it left London destined for delivery to the confederates either directly by the Stephen Hart or through transshipment at Cardenas to another. vessel; that the vessel and the cargo were equally involved in the forbidden transaction and that the papers of the vessel were simulated and fraudulent. The mate swore that he knew the real destination of the cargo if not the vessel herself was to one of the blockaded ports of the confederacy; that the port of Cardenas was to be used simply as an intermediate port of call and transshipment of the cargo; that the cargo should be there transshipped to a steamer better adapted for blockade running, and that at Cardenas he was to report to a confederate representative who would direct his future actions with reference to the schooner and the cargo. He also testified that he had been employed because of his especial knowledge of the southern coast. There were no invoices, no bills of lading and no manifests. The mate also told how he had met Yancey and other well known agents of the confederacy at the house of Isaac Campbell & Co., at London, and how he was at first employed to undertake a blockade running adventure on a steamer and subsequently transferred to the Hart nominally as mate but really in charge of the cargo. There was an entire absence of papers and circumstances to show that there was any intention to dispose of the cargo at Cardenas in the usual way of lawful commerce. The court carefully distinguished between the case of a simulated neutral destination and that of a vessel having an actual terminus at a neutral point. It was conceded that if the Hart was a neutral vessel engaged in carrying a cargo from an English port to Cardenas for the general purpose of trade commerce and sale at Cardenas without an actual ulterior destination to the belligerents neither vessel nor cargo,

38 The Stephen Hart, Blatchf. Prize Cas. 387.