vary with the special circumstances of each case. Nevertheless, it may be possible to deduce from these apparently conflicting decisions of courts of admiralty, some general principle which may form the basis of the rule of international law, with respect to the carriage of such prohibited articles. (Kent, Com. on Am. Law, vol. 1, pp. 135-143; Wheaton, Elemn. Int. Law, pt. 4, ch. 3, § 24; Duer, On Insurance, vol. 1, p. 624; Phillimore, On Int. Law, vol. 3, § 227; Wildman, Int. Law, vol. 2, pp. 216, et. seq.; Manning, Law of Nations, p. 305; Ortolan, Diplomatie de la Mer, liv. 3, ch. 6; Garden, De Diplomatie, liv. 7, § 4; Heffter, Droit International, § 161; Nau Volkerseerecht, §§ 193, et seq.; Jocobson, Seerecht, etc., pp. 422, 423; Pando, Derecho Internacional, p. 496; Hautefeuille, Des Nations Neutres, tit. 8, sec. 1; Bello, Derecho Internacional, pt. 2, cap. 8, § 4; Poehls, Seerecht, etc., b. 4, p. 1104; Kaltenborn, Seerecht, b. 2, p. 420.)

§ 3. By the ancient laws of war, as established by the usages of European nations, the contraband cargo affected the ship, and involved it in the sentence of condemnation. The justice of this rule is vindicated by Bynkershoek and Heineccius, and it cannot be said that the penalty was unjust in itself, or unsupported by the analogies of the law. Grotius does not particularly discuss the case of the ship carrying contraband, but alludes to the subject in very general terms. Soon after this time, a relaxation began to be introduced into treaties, but this relaxation, at first, applied only to cases in which the owner of the vessel might be supposed to be a stranger to the transaction. Subsequently, the stipulation in treaties became more general, although the relaxation was directed, in its particular application, as well as in its origin, only to such cases as afford a presumption that the owner was innocent, or the master deceived. (Kent, Com. on Am. Law, vol. 1, pp. 135, 136; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 10; Heinecceius, De Nov., etc., cap. 2, § 6; Grotius, De Jur. Bel. ac Pac., lib. 3, cap. 1; The Franklin, 3 Rob. Rep., p. 221, note; Duer, On Insurance, vol. 1, p. 624; Heffter, Droit International, § 161; Manning, Law of Nations, p. 309; The Ringende Jacob, 1 Rob. Rep., p. 90; The Mercurius, 1 Rob. Rep., p. 288, note; Ortolan, Diplomatie de la Mer, tome 2, ch. 6.)

§ 4. By the modern practice of the prize courts of England and the United States, and not opposed, it is believed, by other nations, a milder rule has been adopted, and the carrying of articles contraband of war is now attended only with the loss of freight and expenses, except where the ships belong to the owner of the contraband cargo, or where the simple misconduct of carrying contraband articles, is connected with other circumstances which extend the offense to the ship also. Sir William Scott says, "Anciently, the carrying of contra band did, in ordinary cases, affect the ship, and although a relaxation has taken place, it is a relaxation, the benefit of which can only be claimed by fair cases. The aggravation of fraud justifies additional penalties." (Phillimore, On Int. Law, vol. 3, § 275; Wildman, Int. Law, vol, 2, pp. 216, 217; Polson, Law of Nations, p. 64; Duer, On Insurance, vol. 1, p. 624; The Ringendc Jacob, 1 Rob. Rep., p. 89; The Mercurius, 1 Rob. Rep., p. 288; The Jonge Tobias, 1 Rob. Rep., p. 329; The Franklin, 3 Rob. Rep., p. 217; The Neptunus, 3 Rob. Rep., p. 108; The Jonge Margaretha, 1 Rob. Rep,, p. 189; The Sarah Christina, 1 Rob. Rep., p. 242; Manning, Law of Nations, pp. 309, et seq.)

§ 5. Where the transportation of the contraband articles is prohibited by the stipulations of a treaty, to which the government of the neutral ship-owner is a party, the forfeiture of the freight is extended to the ship, on the ground that the criminality of the act is enhanced by the violation of the additional duty imposed by the treaty. An attempt to conceal the destination of the ship, by false papers, will lead to the same result. "I desire it to be considered as the settled rule of law received by this court," says Sir William Scott, in the case of The Franklin, "that the carriage of contraband with a false destination, will work a condemnation of the ship as well as the cargo." There are other cases of misconduct which are held by the courts to involve the confiscation of the ship carrying contraband; as the privity of the owner of the ship to the contraband; the concealment of the contraband in the outward voyage; the misconduct of the supercargo-the agent of the owner; the contraband traffic of the officer placed in command of a private vessel by the board of admiralty, and where the owner of the contra

band is also owner, or part owner of the ship. But these cases will be more particularly discussed in the chapter on violation of neutral duties. (Wildman, Int. Law, vol. 2, pp. 216-218; Phillimore, On Int. Law, vol. 3, § 276; Duer, On Insurance, vol. 1, p. 625; The Mercurius, 1 Rob. Rep., p. 288, note; The Jonge Tobias, 1 Rob. Rep., p. 329; The Ringende Jacob, 1 Rob. Rep., p. 91; The Baltic, 1 Acton, Rep., p. 25; Blewitt v. Hill, 13 East Rep., p. 13; The Floreot Commercium, 3 Rob. Rep., p. 178; The Neutralitet, 3 Rob. Rep., p. 295; The Enrom, 2 Rob. Rep., p. 6; The Franklin, 3 Rob. Rep., p. 221, note; The Ranger, 6 Rob. Rep., p. 125; The Edward, 4. Rob. Rep., p. 68.)

§ 6. The ordinary penalty of carrying articles contraband of war, is the confiscation of the goods and the loss of the freight and expenses to the ship. This penalty is not to be averted by the allegation that the owners or master were ignorant of the true nature of the articles, or that, by the threat or violence of the enemy, they were compelled to receive and transport them. Such excuses, if allowed, would be constantly urged, and by robbing the prohibition of contraband of its penal character, would convert it into a mere nugatory threat. Where the cargo does not wholly consist of contraband goods, the innocent articles of innocent shippers are restored; but all the goods of the owner of the contraband articles, even those which are innocent, share the same fate. (Duer, On Insurance, vol. 1, p. 625; Phillimore, On Int. Law, vol. 3, § 275; Ortolan, Diplomatie de la Mer, tome 2, ch. 6; Manning, Law of Nations, pp. 308, 309; The Oster Resoer, 4 Rob. Rep., p. 199; The Caroline, 4 Rob. Rep., p. 260; The Richmond, 5 Rob. Rop., p. 325; The Charlotte, 5 Rob. Rep., p. 275; Heffter, Droit International, § 161; Bello, Derecho Internacional, pt. 2, cap. 8, §4; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 15.)

§ 7. The inception of the voyage is held to complete the offense; and from the moment that the vessel, with the contraband articles on board, quits her port on a hostile destination, the capture may be legally made. It is by no means necessary to wait till the ship and goods are actually endeavoring to enter the enemy's port. The voyage being illegal

at its commencement, the penalty immediately attaches, and continues to the end of the voyage, or at least so long as the illegality exists. (Wildman, Int. Law, vol. 2, p. 218; Duer, On Insurance, vol. 1, p. 626; Ortolan, Diplomatie de la Mer, tome 2, ch. 6; The Imina, 3 Rob. Rep., p. 168; The Trende Sostre, 6 Rob. Rep., p. 390, note.)

§ 8. Where the contraband goods are not taken in delicto, in the actual prosecution of the outward voyage, and the return voyage is distinct and independent, the penalty is not generally held to attach, either upon the proceeds of the goods or on the ship upon her return voyage. But where they are both inseperably connected in their original plan, so as to form parts of a continuous voyage, the penalty is generally considered as attaching in every stage till its final completion. Such is the doctrine established by the decisions of the English admiralty, and seemingly admitted by the supreme court of the United States. Mr. Wheaton has questioned its soundness, but his objection, that it extends the offense indefinitely, is completely answered by the decisions themselves, which expressly limit the offense and its penal consequences to completion of the entire voyage. Ortolan contests this rule of the continuation of the offense during the return voyage, on the ground that the ship should, in all cases, be exempted from any penalty, and the confiscation confined to the contraband articles. He has supported his doctrine by strong and logical arguments, but, however correct it may be in theory, it is not supported by the practice of the great maritime powers of the world. The general rule of exemption is, undoubtedly, well established, but the exceptions indicated are supported by good authorities, and generally admitted in practice. (Hubner, De la Saisie des Bâtiments, liv. 2, ch. 4, §4; Hieneccius, De Novibus, cap. 2, §§ 3, 4; Zouch, Juris et Jur. Fecialis, p. 2, cap. 8; Albericus Gentilis, Hispan. Advoc., lib. 1, cap. 20; Bynkershoek, Quaest Jur. Pub., lib. 1, cap. 12; Manning, Law of Nations, p. 309; Reddie, Researches, etc., vol. 2, p. 568; Wildman. Int. Law, vol. 2, p. 218; Duer, On Insurance, vol. 1, pp. 626, 627; Kent, Com. on Am. Law, vol. 1, p. 151, note; Wheaton, On Captures, p. 183; The Imina, 3 Rob. Rep., p. 158; The Nancy, 3 Rob. Rep., p. 127; The Rosalie and Betty, 2 Rob. Rep., p. 348; The Baltic, 1 Act. Rep., p. 25; The Joseph,

8 Cranch. Rep., p. 451; The Caledonia, 1 Wheaton Rep., p. 100; Christiansberg, 6 Rob. Rep., p. 381; Carrington v. The M. Ins. Co., & Peters. Rep., p. 521; The Frederick Molke, 1 Rob. Rep., p. 87; The Charlotte, 1 Rob. Rep., p. 386; The Margaret, 1 Act. Rep., p. 133; Polson, Law of Nations, p. 54; Ortolan, Diplomatie de la Mer, liv. 3, ch. 6; Bello, Derecho Internacional, pt. 2, cap. 8, § 4.)

§ 9. It must be observed that the offense does not necessarily continue during the entire outward voyage, even where it was completed by the mere inception with contraband articles on board. "Where there is positive evidence," says Duer, "that, previous to the capture, the voyage had been changed, by the substitution of an innocent port of destination, or that the original port, by capitulation or otherwise, had ceased to be hostile, as the goods were not contraband when seized, the capture is invalid, and restitution is decreed." Although the penalty is not averted by the possibility that the intention to prosecute an illegal voyage, which is in the progress of execution, will be changed before its completion, yet, if the intention, when the capture was made, had, in good faith, been abondoned, or was no longer capable of execution, the corpus delicti is extinguished, and the penalty cannot be sustained. (Duer, On Insurance, vol. 1, pp. 629, 571, 572; Wildman, Int. Law, vol. 2, p. 218; The Imina, 3 Rob. Rep., p. 167; The Trende Sostre, 6 Rob. Rep., p. 390, note.)

§ 10. The illegality of the transportation of contraband goods is not confined to an original importation into an enemy's country. The transportation of such articles from one port of the enemy to another, is equally unlawful, and is subject to be treated in the same manner of an original importion. It may equally and as directly tend to assist the enemy in the prosecution of the war. "The transfer of contraband from one port of a country to another," says Sir William Scott, "is subject to be treated in the same manner as an original importation into the country itself." (Heffter, Droit International, § 161; Wildman, Int. Law, vol. 2, p. 211; Duer, On Insurance, vol. 1, pp. 629, 630; The Edward, 4 Rob. Rep., p. 70.)