the great powers have not given their adherence to the declaration of Paris and nations still generally exclude foreign ships from participation in their coasting trade.20

The rule of maritime law, as enforced by Great Britain during the period under consideration, permitted neutrals to continue their customary trade during a war, but forbade them to engage in a trade from which they had been excluded in time of peace. She conceded to the neutral the right to import the products of the enemy's colonies into a neutral country and to export the goods of a neutral country other than contraband, to any port of the enemy which was not blockaded. The inevitable result of this condition was the importation of colonial goods into the country and their carriage from there to the belligerent. The law, according to the British view, contemplated two distinct voyages and the efforts of the American traders to engage in the forbidden commerce by means of alleged colorable importations into American ports was met by the assertion that where the importation into the neutral country was not in good faith the voyage from the colonial port to the belligerent was in law but one voyage and the ship was therefore subject to capture at any time after its departure from the neutral port. The voyage from the neutral port was not a new and distinct voyage but a continuation of the original voyage by which the goods had been imported and the entire voyage, although circuitous, was as illegal as if the neutral port had been entirely omitted.

20 "Nor is it easy," says Hall, "to see that the question has necessarily lost its importance to the degree which is sometimes thought. The more widely the doctrine is acted upon, that enemy's goods are protected by a neutral vessel the more necessary it is to determine whether it ought to be governed in a particular case by exceptional considerations." (Int. Law (4 ed.), p. 663.)

"The importance of the rule-vindicated again and again, as it was by Sir Wm. Scott has been vastly decreased by the adoption in the declaration of Paris of the principle of the freedom in all cases of the neutral flag. But the neutral flag cannot save the blockade runner or the contraband trader; though the operation of the rule of 1756 is minimized, the principle is sound. Neutral trading now as always is subjected to the over-riding condition of abstention from active assistance of a belligerent; and if in the forgotten corners of the earth there be any commercial operation which is forbidden to foreigners in time of peace, these foreigners can have no sound ground for complaint should the opposing belligerent deny in time of war the privilege which the home state would, in the hour of its exigency, now accord." (Walker, Science of Int. Law, p. 261.)

Other writers regard the principle as dead and buried.

It has been claimed that the theory of continuous voyages was first suggested by James Stephen, in the celebrated pamphlet, entitled War in Disguise.21 This publication undoubtedly had some influence upon the conduct of Great Britain but it was not published until 1805, and the theory of continuous voyages was applied by Sir William Scott as early as the year 1800. It is interesting to note that it was first applied in favor of a neutral for the protection of a cargo which had gone from the neutral port of Hamburg to the belligerent port of Bordeaux and from there to the French port of San Domingo. The ship was captured on the run from Bordeaux to San Domingo and the captor contended that by touching at Bordeaux with an entry and a form of importation, the goods were incorporated into the French commerce and should thereafter be considered as being carried from one French port to another. Sir William Scott declined to take this view and said:22

I incline to think that this would be much too rigorous an application of principles rather belonging to the revenue law of this kingdom-a system of law having little in common with the general prize law of nations and that these goods are entitled to be considered as coming from Hamburg, the original port of shipment.

The important and difficult question to be determined in all the cases in which the doctrine was applied was whether the importation into the neutral country had been made in good faith for the purpose of adding the goods to the common stock of the country, or was merely colorable and intended to conceal an original design of exportation to the belligerent country.

"It is certainly true," said Sir William Scott," that a continued voyage from the colony of the enemy to the mother country to any other ports but those of the country to which the vessel belongs, will subject the cargo to confiscation; and the only point which the court has to decide is whether the voyage in question is to be considered as a continued voyage or not. It is a question in its nature subject to very considerable difficulties in particular cases; and one on which the court must exercise its judgment with great caution on the special circumstances which com

"Leslie Stephen, Life of J. F. Stephen, p. 19.

"The Immanuel, 2 C. Rob. 186, Scott's Cases, 845. See also an article in London Quarterly Rev., vol. vii, p. 6; Lyman's Diplomacy of the U. S., vol. ii, chap. 1; Wharton, Int. Law Dig., vol. iii, §388, p. 501.

23 The Maria, 5 C. Rob. 365 (1805).

pose the substance of each case, and with great care not to attribute more weight to any particular fact than what it justly demands."

The nature and sufficiency of the evidence required to show good faith importation into a country was first considered in the case of the Polly," an American ship seized while on the voyage from the neutral port of Marblehead to a belligerent port of Spain. The goods had been brought from the port of Havana in a Spanish colony in the same vessel and on account of the same owners and had been landed at Marblehead while the ship was undergoing repairs. The duties had been paid to the United States but the captors contended that these facts were not sufficient to break the continuity of the voyage from Havana to Spain. To this Sir William Scott replied that an American had an undoubted right to import the produce of the Spanish colonies for his own use into his own country, and after he had imported it in good faith was at liberty to carry it on to the general commerce of Europe. Answering the contention that the landing of the goods and the payment of the duties were not sufficient evidence of good faith, the learned judge said:

If these criteria are not to be resorted to, I should be at a loss to know what should be the test; and I am strongly disposed to hold that it would be sufficient that the goods should be landed and the duties paid.

The evidence was held sufficient to show bona fide the importation and the cargo and the vessel were restored to the owners.

The American merchants understood from this decision that the landing of the goods and the payment of the duties at the neutral port would be accepted by the English prize courts as conclusive evidence that the continuity of the voyage had been broken. In reliance upon this understanding they engaged largely in the trade with the Spanish and French colonies and evidently treated the proceedings in the neutral port as a mere formality which imposed expense and trouble but did not otherwise interfere with the trade. Their point of view was radically different from that of the British government. They considered the trade as legitimate and the requirement of importation into a neutral port as a restriction wrongfully imposed by Great Britain. The British, on the other hand, regarded the trade as illegal and the attempt of the American traders to engage in it as improper and in

The Polly, 2 C. Rob. 361 (1800).

both instances fraudulent. Upon this theory the attempt to carry the products of the colonies from a colonial port to the mother country was illegal and their passage through a neutral port by compliance with the mere forms of importation was a fraudulent attempt to do by indirection what was forbidden to be done directly.

In December, 1805, the lords of appeal held in the Essex,25 that while the landing of the goods and the payment of the duties was evidence of importation it was not conclusive evidence; that the original intention of the importer to transship and export the colonial produce was the test of the continuity of the voyage and that this intention was to be ascertained from all the attending circumstances. Among these the landing of the goods and the payment of the duties had great probative value, but like other facts they might be merely colorable and designed to give a false appearance of importation where none was in fact intended. This decision struck a fatal blow at American commerce and it was freely charged that a deliberate trap had been laid into which American vessels had been induced to enter under the belief that they were protected upon compliance with the requirements of the decision rendered five years before in the case of the Polly. In the famous case of the William," Sir William Grant, in delivering the opinion of the court of appeals, reviewed the former cases and proceeded to show that the Americans had no just ground for assuming that the court had held that the landing of the goods and the payment of the duties would be accepted as conclusive evidence of good faith importation into the country. There is no doubt but that many American merchants had entered upon this trade in good faith reliance

25 The Essex, 5 C. Rob. 369 (1805); Duer, Mar. Ins., vol. i, p. 726.

20 The William, 5 C. Rob. 395 (1806); Scott's Cas. 848. See also the statement of the doctrine in the Thomyris, Edwards 17. The cases in which the doctrine was applied are reviewed in Wildman's Int. Law, vol. 2, p. 65, et seq. In the Bermuda, 3 Wall (U.S.), 514, 554, Chief Justice Chase said that Sir William Grant in the William established the rule which has never been shaken that even the landing of goods and payment of duties does not interrupt the continuity of the voyage of the cargo, unless there be an honest intention to bring them into the common stock of the country. If there be an intention formed either at the time of the original shipment or afterward to send the goods forward to an unlawful destination the continuity of the voyage will not be broken as to the cargo by any transaction at the intermediate port. See also Opinions of the Attorneys-General of the U. S., vol. i, pp. 359–362, 394-396. Atty. Gen. Wirt, while condemning the rule, approves as just in the abstract, the English principle of the continuity of voyages.

upon their consrtuction of the earlier decision. But it is clear that there was nothing in the decision which was inconsistent with the rule applied in the case of the William.

In the course of the opinion in the William, Sir William Grant said that the act of shifting the cargo from the ship to the shore and from the shore back to the ship did not necessarily amount to the termination of the voyage and the commencement of another. It might be wholly unconnected with any importation in the place where it was done. Suppose the landing to be merely for the purpose of airing or drying the goods or of repairing the ship, would any one think of describing the voyage as beginning at the place where it happened to become necessary to go through such a process? Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading and that he lands the cargo purely and solely for the purpose to affirm that it was at such other place that the goods were taken on board, would this contrivance at all alter the truth of the fact? Would not the real voyage still be from the place of the original shipment notwithstanding the attempt to give it the appearance of having begun from a different place? The truth may not always be discernible but when it is discovered it is according to the truth and not according to the fiction that we are to give the transaction its character and denomination. If the voyage from the place of lading be not really ended it matters not by what acts the party may have evinced his desire of making it appear to have ended. That these acts have been attended with trouble and expense cannot alter their effect. The trouble and expense may weigh as circumstances of evidence to show the purpose for which the acts were done but if the evasive purpose is admitted or proved a court can never be bound to accept as a substitute for the observance of the law the means which have been employed to cover a breach of it. Between the actual importation by which a voyage is really ended and the colorable importation which is to give it the appearance of being ended, there must necessarily be great resemblance. The acts to be done must be almost entirely the same but there is this difference between them. The landing of the cargo, the entry at the custom house and the payment of such duties as the law of the place requires, are necessary ingredients in a genuine importation; the true purpose of