The penalty attaches till the voyage is complete. A ship that has violated a blockade is liable to be seized on its return voyage. There can be no natural termination of the offence but the end of the voyage. It would be ridiculous to say, if you can get past the blockading force you are free. There is no other point at which the offence can be terminated but the end of the voyage. If a ship that has broken a blockade is taken in any part of that voyage she is taken in the commission of the offence and subject to confiscation (t). Where a vessel was driven into a port by stress of weather, it was held that the voyage was not terminated and that the penalty continued to attach (u).

The continuance of the penalty is subject to the continuance of the blockade. The penalty does not attach where the blockade is raised before capture. The same reason for rigour does not exist, because the blockade being gone the necessity for applying the penalty to prevent future transgression does not continue (v). So, where there is a guilty intention, but no possibility of committing the offence; as where a ship was destined for a blockaded port, but before she sailed the blockade was raised (w). So, the law allows a place for repentance, where a ship sails with a destination for a blockaded port: if the intention has been abandoned, and the ship is taken while proceeding to an open port (x).

(t) The Frederick, 1 Rob. 86. The Welvaart, 2 Rob. 128. The Adelaide, 2 Rob. 111 (n). The General Hamilton, 6 Rob. 61. Bynk. Q. J. P. 1. xii. p. 214. The Christiansberg, 6 Rob. 382. Parkman v. Allan, 1 Stair's Decis. 529.

(u) The General Hamilton, 6 Rob. 61. Bynk. Q. J. P. 1, xii. p. 214. (v) The Lisette, 6 Rob. 687.

(w) The Conferenzrath, 6 Rob. 362.

(x) The Neptunus, 2 Rob. 110. Per Cur. The James Cook, Edw. 263.

CHAPTER V.

OF CONTRABAND.

ALL articles of commerce may be divided into three classes; first, those which have no military use and are merely matters of luxury; secondly, those which are of promiscuous use being adapted either to military or to civil purposes; thirdly, those which are peculiarly adapted to purposes of war.

The first are innocent whatever may be their destination: thus cheeses not fit for naval use are not confiscable though sent to a port of military equipment (a). So of torse, an inferior kind of hemp, unfit for naval purposes; but the captor's expences were allowed, because torse is so like hemp that if it were allowed to pass without examination the enemy would be supplied with hemp (b). The second are innocent or contraband, according to the predominant character of the enemy's port, which is the port of the vessel's destination: the third are contraband when the vessel in which they are carried, is destined to any port of the enemy whatever the character of that port may be (c). It is unnecessary for the purpose of this work to consider the modern distinction as to the right of preemption: as that distinction does not affect the right of capturing vessels and sending them in for adjudication.

(a) The Jonge Margaretha, 1 Rob. 195.

(b) The Geselschaft, 4 Rob. 94. The Evert, 4 Rob. 354.
(c) Grot. iii. 1. v. Bynk. Q. J. P. 1. x.

Goods going to a neutral port cannot come under the description of contraband, inasmuch as all goods with a neutral destination are equally lawful (d). So it was held, that a cargo could not come under the description of contraband, which was dispatched in bonâ fide ignorance of war (e). A person is not at liberty to carry to a hostile port a cargo containing amongst other things contraband articles with the intention of selling innocent commodities only, and of proceeding with the contraband articles to a neutral port (ƒ). The transfer of contraband articles from one part of the enemy's country to another, where they are required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself (g).

Gunpowder, arms, and military equipments and other things peculiarly adapted to military purposes, have been always contraband (h). Thus sail cloth is universally contraband even on a destination to ports of mere mercantile equipment (i). So of masts (k), anchors (7), pitch and tar (m), and hemp (n). But pitch and tar bond fide intended for the ship's use as stores are not contraband. The bona fides is a question of evidence whether the quantity found on board could really be intended for the ship's use. Persons are not, under pretence of a voyage round the world, to carry as much as they please of articles of this noxious nature, and then sell

(d) The Imina, 3 Rob. 167. Valin. v. 6. ix. (e) Jurgan v. Logan, 1 Stair. Decis. 477.

(f) The Trende Sostre, 6 Rob. 390, n.

(g) The Edward, 4 Rob. 68.

(h) Bynk. Q. J. P. 1. x.

(i) The Neptunus, 3 Rob. 108.

(k) Staadt Embden, 1 Rob. 29. The Charlotte, 5 Rob. 305.

(1) Per Cur. The Jonge Margaretha, 1 Rob. 189.

(m) The Jonge Tobias, 1 Rob. 329. The Neutralitet, 3 Rob. 295. The Twee Juffroyen, 4 Rob. 242. The Sarah Christina, 1 Rob. 237.

The Apollo, 4 Rob. 158. The Richmond,

(n) The Evert, 4 Rob. 354. 5 Rob. 325. The Ringendie Jacob, 1 Rob. 91.

them at different ports, where they may immediately become convertible to purposes of war. The term stores is to be liberally interpreted, but still it must be so understood as to be capable of something like a definitive construction (o). A ship peculiarly adapted to purposes of war is contraband as an article of commerce if intended to be sold for hostile purposes. It cannot, under any point of view but be considered as a very hostile act to be carrying a supply of a very powerful instrument of mischief, of contraband ready made up, to the enemy for hostile use (p). Thus, where a vessel in every respect fitted for a ship of war, was sent on her first voyage to a belligerent port, with instructions to the master to sell her, or take goods on freight, but that the owners would prefer selling to freighting, as she was not adapted to purposes of freight, the ship was condemned (g). But where ships of ambiguous use, and previously employed for purposes of trade, were going to be sold under circumstances not indicating a hostile purpose, they were restored (r).

In respect to matters of ambiguous use, the catalogue of contraband has varied much, and sometimes in such a manner as to make it very difficult to assign the reasons of the variations, owing to particular circumstances the history of which has not accompanied the history of the decisions. In 1673 corn, wine, and oil were deemed contraband. In much later times many other sorts of provisions have been condemned as contraband. In 1747 butter going to Rochelle was condemned; cheese was restored. The distinction appears nice; in all probability the cheeses were not of that species which is intended for ship's use. In the same year

(o) The Richmond, 5 Rob. 334.
(p) The Richmond, 5 Rob. 325.
(q) The Brutus, 5 Rob. Appendix, 1.
(r) The Fanny, ibid.

salted cod and salmon going to Rochelle were condemned. In 1748 rice and salted herrings were condemned as contraband. The modern established rule is, that generally they are not contraband, but may become so under circumstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it. Articles are more favourably considered which are in their native and unmanufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. But the most important distinction is, whether the articles were intended for civil or for military uses, and this is determined by the nature and quality of the port to which they are going. If the port is a general commercial port, it shall be understood that the articles are going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. On the contrary, if the great predominant character of the port be a port of military equipment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption (s). Dutch cheeses, sent by a neutral merchant from Amsterdam to Brest, being cheeses fit for naval use, and such as are exclusively used in French ships of war, were condemned (t). So when

cheeses fit for naval use were sent to Corunna, they were deemed contraband, because Corunna, if not in its prominent character a port of naval equipment, is situate in the same bay with Ferrol, and if the supply were permitted to be imported into the bay, it would be impossible to prevent its going on immediately and in the same conveyance to Ferrol (u). But such cheeses destined to Quimper were

(s) The Jonge Margaretha, 1 Rob. 189.
(t) Ibid.

(u) The Zelden Rust, 6 Rob. 93.