less obnoxious goods on board, and the master being found guilty of fraudulent conduct in various respects. As will presently appear, the ship and a portion of the cargo were restored on appeal to the Supreme Court, but the Court confirmed the confiscation of the distinctly warlike articles intended to be delivered to the enemy. The above decisions make it abundantly clear that the American view of the law of nations in respect of contraband is that the point to be looked at is the ulterior destination of the warlike articles; and that from this issue the captors are not to be diverted by arguments based on the incident that the property, when seized, was in the course of transit to a neutral port. It is easy to see that the application of this principle may be, in some cases, attended by substantial difficulties, as, for instance, if the obnoxious goods are primá facie shipped to what may be reasonably or plausibly alleged to be a neutral market, but it is, notwithstanding, contended by the captors that the intention was to carry the goods to the enemy via the neutral territory. But if the abstract principle be correct, the circumstance that it may occasionally be difficult of application is not to be allowed to interfere with its acceptance. That the principle as declared in the United States Courts is correct, and that it is also accepted in this country, is to be concluded from a consideration of the two suits which arose out of The Peterhoff seizure, viz., Hobbs v. Henning, and Seymour v. London and Provincial Insurance Co., referred to under the head Insurance below. A neutral vessel carrying contraband of war must on no account touch at an enemy's port (f). Nor, as was established by The Edward (g), must contraband goods be coasted from a belligerent commercial port to a port of naval equipment in the same country. (ƒ) The Trende Sostre, 6 Rob. 387. (The subject of Continuous Voyages is considered in connexion with the offence of Engaging in the Privileged Trade of the Enemy, pp. 236-240, infra.) Application of the Penalty of Confiscation.-It has already been remarked (f) that neutrals are within their strict rights in shipping contraband of war to belligerents; but that the exercise of such right is attended by the concurrent belligerent right of seizure and confiscation of the prohibited goods; though, in the case of ordinary provisions, the latter right is now usually softened down to that of pre-emption. The law of nations, rigorously applied, would appear to admit the principle that vessels engaged in contraband trade are themselves, as well as the contraband goods, liable to confisca tion (g); and the Russian Government, in 1854, by proclamation adopted this principle. The milder rule of limiting the penalty of confiscation to the obnoxious article carried, together with any freight due to the ship in respect of it, may, however, be regarded as the rule now generally accepted. In cases where the right has been exercised of seizing enemy goods on board a neutral vessel, it has been usual to allow freight to the neutral vessel; but it is otherwise in the case of contraband articles carried by neutrals (h). Neutral owners must be made to feel that, though the ship herself may be released, to engage in the carriage of prohibited goods is still attended by the substantial disadvantages of loss of freight (where it has not been paid in advance), of time, and expenses. But if the condemnation of the goods, and the consequent confiscation of the freight, be due to deceit on the part of the shippers, the master may proceed against them for compensa (f) Page 160, supra. (g) Vide 1 Rob. 288, note. (h) The Mercurius, 1 Rob. 288. tion (i). If the captain be found guilty of carrying false papers, or of similar misconduct calculated to defeat the rights. of a belligerent, the ship will be involved in the fate of the cargo (j). The offence of carrying false papers, and of simulating or destroying papers, will be considered presently per se (k). Where the ship belongs to the owner of contraband cargo, both are liable to condemnation; and the same principle has been held to apply where contraband goods appeared by the ship's papers to belong to a part-owner of the ship (7). The rule is that contraband contaminates any other property in the same vessel belonging to the owner of the contraband (m); but the application of this principle is, of course, subject to modification by treaty. Similarly, if contraband goods are carried in breach of special treaty engagements, the vessel may be condemned as well as the cargo (n). By the practice of the French prize courts both ship and cargo will be forfeited en bloc if three-fourths of the entire cargo consist of contraband. An innocent shipper and insurer of permissive goods is not to be held responsible for the shipment of contraband by other parties (0). If the master carry contraband he will not be heard to aver ignorance of the contents of the objectionable packages (p); nor is it open to the owner of the vessel to aver ignorance of the master's act or that he acted contrary to orders; for the act of the master binds the owner (7). In former times the (i) The Emanuel, 1 Rob. 296. (j) The Franklin, 3 Rob. 217; The Edward, 4 ib. 68; The Ranger, 6 ib. 125. (k) Infra, p. 219. () The Jonge Tobias, 1 Rob. 329; The Springbok; The Peterhoff, infra. (m) The Staadt Embden, 1 Rob. 26; The Springbok, Blatch. Pr. Ca. 434; (0) Hobbs v. Henning, 34 L. J. C. P. 121. (p) The Springbok, Blatch. Pr. Ca. 434; The Peterhoff, ib. 463. (2) The Imina, 3 Rob. 167. offence of carrying contraband to the enemy was not purged by successful delivery: the ship remained liable to confiscation on the homeward voyage. Nowadays, however, the vessel herself is not in ordinary cases held liable to confiscation; and, as observed by Sir W. Scott in The Imina (r), "under the present understanding of the law of nations you cannot generally take the proceeds in the return voyage. . . . If the goods are not taken in delicto and in the actual prosecution (of the intention) the penalty is not now generally held to attach." But where there has been misconduct on the part of the master, such as concealment of the contraband goods; or the use of papers showing a false destination; the vessel has been condemned on the return voyage, and not only the vessel, but her cargo also, though the latter was not purchased with the proceeds of the contraband goods (s). The soundness of these last decisions is questioned by Wheaton, who disputes the right to inflict a penalty when the offence no longer continues, arguing that if the offence is to be held to survive after termination of the actual delictum, it should logically be held to survive indefinitely, and not only for the return voyage. His opinion on this point is in accord with the principles laid down by the King's Advocate, Sir R. Wiseman, so far back as 1672. Summary. To constitute any article contraband of war two essential conditions must be fulfilled, viz. (I) the article must be adapted for warlike purposes, and (2) it must be destined for belligerent use. The circumstance that the ship is bound to a neutral port is strong presumptive evidence that the article is bonâ fide intended for neutral use. This presumption (r) 3 Rob. 167. (s) The Margaret, 1 Act. 335; The Rosalie and Betty, 2 Rob. 343; The Nancy, 3 Rob. 122. may, however, be rebutted by the captor; but no mere unsupported allegation of a bare intention to deliver to the enemy will justify condemnation. The sole judge of the sufficiency of evidence, however, is in all cases the prize court of the captors. The fact that goods are not contraband of war will not necessarily ensure that they shall not be captured and brought in for adjudication. If, on restoration, the bringingin be attributed to the fault of the shipmaster, he may be called upon to pay compensation to the captors. On the other hand, if the capture prove unwarrantable, damages may be awarded against captors. If the goods be condemned as contraband, the master cannot claim freight from the captors. If he be guilty of fraud or misconduct, the ship may be forfeited. All articles of an essentially warlike quality are distinctly liable to confiscation if destined for belligerent use. Goods of a purely peaceful quality may be freely carried to belligerent ports not blockaded. Articles of an equivocal nature have to be considered on their merits, by the light of the facts as ascertained. It is, in short, less the goods than the disposition with which the goods are regarded. If presumably intended for warlike purposes they will probably be condemned; if for peaceful purposes, restored. The sole judge of the probable use is the capturing belligerent. His right it is also, by common consent, to say what goods are contraband and what are not, and there is no appeal against his decision. But of course if, in so deciding, he should act in a high-handed and grossly unreasonable manner, he would expose himself to the hostility of neutral powers. The decisions of former days, on the subject of contraband, are valuable as exemplifying the principles on which prize courts proceed; but as regards the articles themselves, which called forth these decisions, the latter are at the present day worth, for the most part, very little. This is more especially the case in respect of the articles destined for maritime uses in |