on the ground that it was intended to transship it at the neutral port and forward it by another vessel to a blockaded port.

Sir Sherston Baker53 believed that the rule announced by the court had inflicted a serious blow on neutral rights and was in conflict with the views generally expressed theretofore by the United States. Halls objected to the decisions because the vessels were in his judgment condemned

not for an act, for the act done was in itself innocent, and no previous act existed with which it could be connected so as to form a noxious whole, but on the mere suspicion of an intention to do an act. Between the grounds upon which these and the English cases were decided there is of course no analogy.

But the argument constructed upon the airy premise, "of course," was not satisfactory to other writers.

"In the administration of all law, "said Sir Edward Creasy, 55 "international as well as municipal, the realities and not the sham are to be regarded. The artifice which is in fraud of the law is itself a breach of the law. Unquestionably there ought to be a very full and clear proof of the artifice being practiced as well as planned. The burden of proof necessarily lies on the captor who imputes liability to seizure, nay more,

"Halleck's Int. Law, vol. ii (Baker's ed.), p. 219. In a later work, entitled First Steps in Int. Law, p. 310, Baker says: "It is a most unfortunate decision * * * vessels are captured while on their way from one neutral port to another and were condemned not for what they had done, which was prima facie innocent, but on the suspicion of an intention to do an unlawful act."

"Hall, Int. Law, 4th ed., p. 695 note. "Of course, the analogy of 'continuous colonial voyages' is nil ad. rem.," says a recent writer in Jour. of Soc. of Com. Leg. (n. s.), vol vi, p. 204. Lawrence (Int. Law, p. 597) says: "Putting aside disputes as to fact, the statements of law involved in the decision are open to grave doubt. If a belligerent may capture a neutral vessel honestly intended for a neutral port, and condemn her cargo because he vaguely suspects it will be transferred to some vessel unknown to him and sent to some hostile destination also unknown to him, a new disability has been imposed upon neutral commerce. States at war will in future be able to establish what has well been called a blockade by interpretation of any neutral port situated near the coast of an enemy. *** Its authority has been seriously impaired by this chorus of disapproval. The utmost that can be allowed is that, if the captors have clear and definite proof that the destination of the cargo is hostile while that of the vessel is neutral, the courts may separate between the two and condemn the former while releasing the latter. Further it is impossible to go without inflicting great injustice on neutral trade." As this distinction was made by the Supreme Court in the Springbok case, the force of the criticism is not apparent. For similar statements, see Walker, Science of Inter. Law, p. 514, and Walker's Manual of Pub. Int. Law, p. 209; Taylor Int. Law, § 683.

"Creasy, First Platform of Int. Law, p. 624.

neutral destination ought to be looked on as presumptive proof of the destination of the cargo and the evidence on behalf of the captors to outweigh such presumption ought to be very different in quality and amount from what was held sufficient in the case of the Springbok. But if full and clear evidence is adduced that the contraband was not destined for sale and consumption in the neutral markets, but that the direct and primary object of their shipment was to forward them to or for the enemy, then the belligerent against whom they were destined to be used has a right to protect himself by arresting and seizing the intended instruments of ill to him while they are on the seas which are the highways of all nations but the territories of none."

Prof. Montague Bernard56 objected not so much to the rule as to the severe manner in which he believed it had been enforced. He admitted that it was probable that all through the war very few cargoes were really intended to be disposed of at Nassau, and that injustice would rarely be done by acting on the presumption that the business of southern traders or agents residing there was not so much to make purchases on the spot as to forward the transmission of goods from Europe. He thought that it must be admitted that while the rules which had been gradually worked out by the prize courts were not on the whole inequitable, their application had sometimes been severe. Excuses for this he found in the extreme facility with which the rules themselves might be evaded. Prize courts were incessantly struggling with artifices and contrivances which are traditional and resorted to in all maritime wars, artifices and contrivances as easy to practice as they are difficult to unmask-by which neutral trade is constantly struggling to escape the heavy pressure of war and elude its restraints. He recognized the danger, however, to neutral trade, in the tendency to infer ulterior destination from insufficient and unsatisfactory evidence.

There was also a difference of opinion among American writers.

5 Bernard, The Neutrality of Great Britain during the American Civil War, p. 320. In the British Manual of Naval Prizes (1866), the editor, Mr. Lushington, after stating that in this volume the destination of the vessel had been treated as conclusive evidence of the destination of the goods, contrary to the claim of the belligerents, said: "Judged by principle the view of the belligerent seems correct. A neutral vessel which forwards munitions of war on their way to their ultimate destination to one of the belligerents is really aiding and abetting in the war and this on the high The same statement of the rule appears in the Naval Prize Manual of 1888. But Professor Holland, the editor of the last edition, regards the rule as obsolete. See statement of Lord Salisbury, infra.

seas.

President Woolsey57 believed that the American decisions were a natural extension of the English principle of continuous voyages as announced by Lord Stowell, but suggested the danger that the courts might infer the illegal intention from insufficient evidence. J. C. Bancroft Davis,58 American minister in Berlin, published a defense of the decisions and the practice and procedure adopted by the American prize courts, and remarked that the fact that the United States has been a defender of neutral rights in the past does not require it to advocate and defend a fictitious neutrality. Dana,50 writing before the final decision in the Springbok case, said that if the cargo is destined to be carried through a blockade, it can be captured at any stage of the voyage. A neutral destination will often be interposed in such cases with all the ceremonies of landing transshipment and sale as in the case of contraband and the same test and principles of reasoning apply to both. Dr. Wharton believed that the decision of the case of the Springbok should not be adhered to because in his opinion it violated those principles of neutral rights for which the United States had always consistently contended. His principal objection was, however, to the application of the doctrine to the law of blockade.

As was to be anticipated the decided weight of continental opinion as expressed by writers on international law was against the soundness and policy of the American decisions. These writers had never accepted either the rule of the war of 1756 or the doctrine of continuous voyages as applied by the British prize courts and could not reasonably be expected to approve an application of the doctrine which seemed to impose further restrictions upon the claims of neutrals. The disapproval of the rule as applied to the law of blockade was almost universal as it was inconsistent with the French practice of condemnation only after a vessel had once been warned of the existence of the blockade by the blockading fleet. But some of the most distinguished continental writers found nothing particularly objectionable in the appli"Woolsey, Int. Law (6 ed.), p. 536.

55 Davis, Les Tribunaux de prises des États-Unis, Paris (1878). See Snow, Int. Law (2d ed.), p. 160.

" Wheaton, Int. Law (Dana) §598, note 231. See also the pamphlet by Historicus on The Nassau Trade, pp. 33-40 (1863).

See also an article in the Indepen

** Wharton, Int. Law Dig., vol. iii, §363, p. 404. dent, June 10, 1889, on Patches on the Constitution. of the Am. Rev., vol. i, p. xxvii.

Reprinted in the Dip. Corres.

61

62

cation of the doctrine of continuous voyages to the carriage of contraband. Calvo, who may be considered as belonging to the continental school of writers, reviews the case of the Springbok very fully and expresses approval of the doctrine of the case, although like many others he was not satisfied with the evidence. According to Fiore, contraband goods destined for one belligerent may be seized by the other belligerent if found on a neutral ship sailing between neutral ports if it is plain that the intention was to supply the goods to the former belligerent. In this sense the voyages of such goods are continuous as they constitute an indivisible unity as links in the same chain. This by itself however would not justify the seizure of the vessel but only the seizure of such goods as are actually contraband.

Gessner also condemned the decision in the Springbok case but approved the doctrine as applied to the carriage of a contraband.

"The capture," says he, "can be justified even if the destination is a neutral port if it can be proved beyond a doubt that the contraband of war is destined for the enemy."

Bluntschli stated the rule clearly and definitely that if the ship or goods are sent to the destination of a neutral port only the better to

61 Calvo, Le Droit Int. (4 ed.), tom. v, p. 43, where the views of many writers are stated. "C'est la destination ennemie qui décide: En principe il n'y a pas de la contrebande entre ports neutres mais il ne faut pas qu'en observant la lettre de ce principe on en blesse l'esprit, * * * on ne peut donc, dans le cas de contrebande, rejeter l'application de la théorie de la continuité de voyage comme dans la question du blocus. La contrebande est soumise à la capture dès qu'elle a quitté le port neutre à destination d'un port ennemi, qu'elle soit expédiée directement ou par voie détournée; 'dolus circuitu non purgatur.' (Geffcken, Heffter (4th ed. French), p. 392 note 2.)

62 Fiore, Le Droit Int, tom. iii, §1649, by Antoine.

63 Gessner, Rev. de Droit Int., tom. vii, p. 236. See Woolsey, Int. Law, p. 357, citing Nord Deutsche Alleg. Zeit. of Dec. 29/30 (1868). In Le Droit des Neutres Sur Mer, p. 137, Dr. Gessner says: "Le transport des articles de contrebande n'est permissible suivant les principes que nous croyons juste que lorsque le vaisseau neutre est saisi en pleine mer, et que la destination pour l'ennemi des marchandises qu'il porte ne fait l'objet d'aucun doute. Une fois la destination bien déterminée, il est parfaitment indifférent que le vaisseau neutre se rende dans un port neutre d'où la contrebande de guerre doit etre transportée dans un port belligérant, ou que les destinataires prennent possession de la marchandise dans le port neutre. Le lieu de destination n'a aucune importance; tout dépend de la destination elle-même, du fait que la marchandise est, ou n'est pas, destinée à un belligérant; du fait que l'on ne peut pas déduire des circonstances qu'elle sera appliquée aux besoins de la guerre."

64 "Si les navires ou marchindises ne sont expédiés à destination d'un port neutre que pour mieux venir en aide à l'ennemi il y aura contrebande de guerre et la con

come to the aid of the enemy, they are contraband of war and may legally be confiscated. Perels agreed that when a ship laden with contraband goods is on a voyage from one neutral port to another, it does not follow that the destination is conclusive as to the innocence of the cargo. Others assert that the idea of contraband is not to be entertained in connection with a voyage from one neutral port to another and repudiate the doctrine of continuous voyages in its entirety. The grounds upon which writers of this class place their objections to the doctrine, as applied in the American cases, are well stated by Fauchille, in his work upon the law of blockade." After speaking of the origin of the doctrine he says:

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This doctrine was pushed by the Supreme Court of the United States so as to make it sustain the seizure of a vessel between the port of original departure and an intermediate neutral port and this on the conjecture of an ulterior adventure being projected for the goods in question from such intermediate neutral port to a blockaded port. * * * The effect of this decision is to impose upon a voyage between two neutral ports the penalties which may be imposed on a voyage between a neutral and a belligerent port. The decision stands on the fiction that though the vessel in which the goods are to be carried is changed at the intermediate port, yet the voyage is the same; and the reason would

fiscation sera justifiée." Droit Int. Codifié (Lardy's ed., 1895, §813). Bluntschli condemned the doctrine applied to the law of blockade. See §835 note.

Perels, Das Internationale Oeffentliche Seerecht, p. 259, French ed., p. 278. "In a paper read before the International Law Association at the 1905 Session, Dr. Thomas Baty says: "One cannot feel satisfied with Pillet's permission to belligerents to contradict the ship's papers purporting to show a neutral destination, by evidence ab extra. Such a permission immediately renders nugatory the freedom which a neutral is formally accorded. Pillet, moreover, adopts the curious view that, if the destination of goods is a neutral port, they cannot be contraband, even if they are meant to go overland to the enemy; whilst if the immediate destination is a neutral port, but they are meant to be eventually carried on to a hostile one by sea, they are capable of condemnation. If he means that if they have a through bill of lading to the enemy's port they may be confiscated, there may be little objection to the proposition, Otherwise there seems no reason in the nature of things why a conjectural voyage by water should be any more taken into account than a conjectural voyage by land. (Lois de le Guerre, §§216, 217.) Pillet follows Gessner, Phillimore and Perels in his theoretically satisfactory but practically fatal concession, Desjardins does not seem to go so far; he allows the belligerent to make a capture when the ostensible neutral destination is a mere blind."

See Théorie du Voyage Continue. Paul Fauchille, Rev. de Droit Int. et Pub., tom. iv, p. 297.

Fauchille, Du Blocus Maritime, §335 ff.