ordered on the ground that there had been a bonâ fide intention to effect a sale at the intermediate port, and consequently that the voyage was not to be regarded as continuous. And Sir W. Scott in The Polly (p), on the point as to what constituted a genuine importation (at an apparently intermediate port), said: "An American has undoubtedly a right to import the produce of the Spanish colonies for his own use, and after it is imported bonâ fide into his own country he would be at liberty to carry them on to the general commerce of Europe. . . . . It is not my business to say what is universally the test of a bona fide importation. It is argued that it would not be sufficient that the duties should be paid and that the cargo should be landed. 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. If it appears to have been landed and warehoused for a considerable time, it does, I think, raise a forcible presumption on that side, and it throws on the other party to show how this could be merely insidious and colourable." This, however, was not the view taken by the Master of the Rolls (Sir William Grant) in the appeal case of The William, already mentioned. "If the voyage from the place of lading," said his Lordship, "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 those acts have been attended with trouble and expense cannot alter their quality or 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 be admitted or proved we can never be bound to accept, as a substitute for the observance of the law, the means, however operose, which have been employed to

(P) 2 Rob. 361, an. 1800.

cover a breach of it. . . . In a fictitious importation the acts. to be done are mere voluntary ceremonies which have no natural connexion whatever with the purpose of sending on the cargo to another market, and which, therefore, would never be resorted to by a person entertaining that purpose, except with a view of giving to the voyage, which he has resolved to continue, the appearance of being broken by an importation which he has resolved not really to make." It would indeed seem evident that if the original intention was to make a really continuous voyage, the mere fact that customs dues, &c., have been incurred at an intermediate port is altogether beside the question. For, the original estimate as to the balance of advantages would naturally include such charges on the debit side of the account, and if, notwithstanding, the final result promised to be satisfactory, the advantage of incurring the intermediate charges in order to secure it would be obvious. In 1801, the British AdvocateGeneral, in an official report (q) on the law concerning the colonial trade, apparently quoting Sir W. Scott's decision in The Polly, supra, declared that the High Court of Admiralty had expressly decided, and that he saw no reason to expect that the Court of Appeal would vary the rules, that landing the goods and paying the duties in the neutral country breaks the continuity of the voyage, and is such an importation as legalizes the trade. But the Advocate-General, if in fact basing his remarks on the above judgment, would appear to have lost sight of the fact that it was qualified by a reference to the length of time during which the goods were warehoused; and the subsequent decision in The William in 1806 certainly falsified the prediction relative to the view likely to be taken by the Court of Appeal.

The Thomyris (r) (1808) is also an interesting case in this

(2) Mentioned in Maritime Warfare, p. 206.

(r) 1 Edw. Ad. 17. l'ide also The Jonge Pieter, p. 260, infra.

connexion. A British order having prohibited all trade from the port of one enemy to that of another, certain barilla on the American ship Thomyris was seized in respect of an alleged breach of this order, viz., in being carried from Alicante to Cherbourg. It appeared that the goods were brought from Alicante to Lisbon, where they were put on board the neutral vessel for Cherbourg. "In all cases of this description," said Sir W. Scott, "it is a clear and settled principle that the mere transhipment of a cargo at an intermediate port will not break the continuity of the voyage, which can only be effected by a previous actual importation into the common stock of the country where the transhipment takes place." The barilla was declared to have been sold at Lisbon, but it was decided that the goods having been waterborne at the time of the alleged sale, and then transhipped, no importation could be considered to have taken place.

The Stephen Hart, The Springbok, and The Peterhoff, mentioned in connexion with the subject of contraband (pp. 186 et seq., supra), provide an exposition of the view of the United States Courts relative to the continuous voyage question.

The prohibitions against engaging in the enemy's privileged colonial trade apply also to his privileged coasting trade. "As to the coasting trade," said Sir W. Scott in The Emanuel (s), "supposing it to be a trade not usually open to foreign vessels, can there be described a more effective accommodation that can be given to an enemy during a war, than to undertake it for him during his own disability?" In The Johanna Tholen (t), however, it was observed that whereas the penalty formerly enforced by this country against neutral vessels so engaged was confiscation, it has in later times been reduced to a forfeiture of freight. But this mitigated penalty is applicable only in cases where the trading has (t) 6 Rob. 72.

(s) 1 Rob. 300.

been open and undisguised. Where it has been aggravated by concealment or subterfuge, such as the carrying of false papers (as in this case), the stricter penalty of former times

has been enforced.

66

Sailing under the enemy's licence is deemed, per se, an efficient cause of condemnation" (u).

Illicit Trade.-Neutrals possess, it is true, the right to carry lawful merchandise the property of belligerents, but annexed to this right is the implied condition that such traffic shall be engaged in openly, without subterfuge. Any underhand or fraudulent conduct on the part of a neutral, with the view of evading belligerent rights, will expose both ship and cargo to condemnation. Of this, the case of Darby v. The Brig Ernstern, in the United States Courts (x), is an exceptional but well-defined instance, the ship and cargo being both condemned on the ground that neutral subjects cannot, consistently with neutrality, combine with enemy subjects to wrest from their adversary advantages acquired by the rights of war, and so, in effect, take part with the enemy. During the hostilities occurring in 1782 between this country and the United States, Dominica capitulated to the latter power, which thereupon prohibited all commerce between the island and Great Britain. To evade this prohibition, one Mason, a British subject, arranged with an Ostend firm to ship goods from London ria Ostend. This firm bought in London the brig Ernstern, which was loaded by Mason for Ostend. On arrival there the Ostend firm supplied her with false and colourable papers, assumed the ownership of the cargo, and disguised it under neutral garb in order to

(u) Story's Prize Courts, p. 70, cases cited.
(x) 2 Dall. 34.

screen it from capture. These precautions were, it would seem, quite superfluous, as an Act of Congress had already extended protection to enemy goods on neutral ships. The vessel was seized and detained, and ultimately, in the peculiar circumstances, condemned, the American Court deciding that the vessel had exceeded the rights accorded to neutral vessels. "Can such conduct," it was inquired, "consist with neutrality? Can there be a more flagrant violation of it? Does it not aim to wrest from France and the United States the advantages they acquired by the conquest of Dominica? And does it not evince a fraudulent combination with British subjects, and a palpable partiality?"

The Commercen (y) is another leading case in the American Courts in relation to unlawful trade. During the progress of hostilities between Great Britain and the United States, a Swedish vessel, whilst carrying a cargo of English oats and barley for use by the British forces in the Spanish peninsula, was captured by an American cruiser. The direct effect of this voyage, said the Court, was to aid the British hostilities against the United States; and a vessel engaged in carrying stores for the exclusive use of the British forces must, to all intents and purposes, be deemed a British transport. The cargo being confiscated, freight was denied to the neutral carrier—a penalty which was declared to be, in the circumstances, a very lenient administration of justice.

Confiscation.-To engage in the privileged trade of the enemy, with the necessary consequence of mitigating, so far as he is concerned, the inconveniences to which it is the right, as well as the policy, of his adversary to subject him, is an offence involving confiscation of neutral property so engaged.

(y) 1 Wheat. Rep. 382. Also p. 175, supra.