the character of the goods is altered, and they are not longer to be considered as contraband, going to the port of an enemy, it is not enough to say that they were going under an illegal intention. There may be the mens rea, not accompanied by the act of going to an enemy's port. I am of opinion, therefore, that the same rule does apply to cases of contraband, and upon the same principle on which it has been applied in those of blockade; I am not aware of any cases in which the penalty of contraband has been inflicted on goods not in delicto, except in the recent class of cases respecting the proceeds of contraband carried outward with false papers. But on what principle have those decisions been founded? On this, that the right of capture having been defrauded in the original voyage, the opportunity should be extended to the return voyage. Here the opportunity has been afforded till the character of the port of destination became British. Till that time the liability attached; after that, though the intention is consummated, there is a material defect in the body and substance of the offence, in the fact, though not in the intent. I am of opinion that it is a discharge, and a complete acquittal, that long before the time of seizure these goods had lost their noxious character of going as contraband to an enemy's port.

The same principle has been adopted and acted upon in the most recent wars by the prize courts of other countries. In the case of the Lydia, tried in 1906 in the course of the Russo-Japanese War, the decision of the Prize Court of Sasebo, and of the Higher Prize Court of Japan on appeal, proceeded on the ground that a ship transporting contraband of war to an enemy port was liable to confiscation, so long only as her intention to proceed to such a port had not been abandoned at the time of the capture (Takahashi's International Law, pp. 674–682). In the case of the Rincluden (1905) the Prize Court at Sasebo found that the ship had intended to take contraband goods to Vladivostokan enemy naval base-and also that her papers were false. Nevertheless, as the result of the court's investigation was that the ship had actually abandoned her first object of going to Valdivostok at the time of capture, and was steaming for a Japanese port to deliver the goods there, the court released the ship and cargo (Takahashi, p. 741). The Sishan is also an instance of an original intention which was abandoned before capture of running a blockade and delivering contraband goods at a blockaded port (Takahashi, p. 742).

It will be observed also from the authorities, and from the provisions of the Declaration of London as modified and adopted, in reference to the outward voyage of contraband cargo, and the effect upon the ship's homeward voyage if false papers were carried on the outward voyage, that the assumption has always been that the contraband goods have been captured in delicto while on the intended voyage to the enemy

destination; or, in the case of a capture of a vessel on her return or homeward voyage, that the contraband goods had actually been delivered to the enemy or carried to the enemy destination. On this aspect of the present case, I am of opinion that the result, according to the principles and rules of international law, is that as the original intention to carry and deliver the contraband goods to the enemy had been frustrated and abandoned, and the goods themselves had been sold and delivered. to other buyers before the vessel was seized, the vessel had become freed from any liability to confiscation.

If this conclusion should be brought to the examination of the tribunal of appeal, and should not meet with approval, it may be necessary to consider the case in its other aspect. The question argued is of substantial practical importance. It is whether according to international law as now understood, and as it should be administered in this court, a vessel which may have been subject to capture and confiscation for carrying contraband goods on an outward voyage remains subject to capture and confiscation upon the return voyage if on the outward voyage the ship carried false papers, or had a false destination, or was otherwise engaged in a deceptive and fraudulent transaction for the purpose of defeating legitimate belligerent rights. It will be remembered that in his judgment in The Trende Sostre (supra) Sir William Scott referred to the recent class of cases respecting the proceeds of contraband carried outward with false papers. The reported cases of that class commence about 1800 (see The Nancy, 3 C. Rob., 122). A couple of years later (1802) the Lords Commissioners of Appeal in Prize Cases lent their high authority to the legal proposition that the carriage of contraband outward with false papers would affect the ship as well as the return cargo with condemnation (see The Rosalia and The Elizabeth, mentioned in a note to the Table of Cases in front of Vol. 4 of C. Rob.). On reference to the record it will be seen that The Rosalia has sailed outward from Hamburg in June, 1798, with contraband under a fraudulent destination to Tranguebar, but being actually destined to the Isle of France when she delivered it. The vessel was captured on May 25, 1799, on a return voyage from the Isle of France to Hamburg. Both the vessel and the cargo (said to have been the proceeds of the outward voyage) were condemned.

As to The Elizabeth, the record shows similarly that she sailed outward from Hamburg in 1798 and carried contraband to the Isle of France, where it was delivered, whereas her papers falsely showed a destination

to Tranguebar. She was captured on March 29, 1799, on the return voyage from the Isle of France to Hamburg. In this case also both the vessel and cargo were condemned.

Subsequently the Lords of Appeal in The Baltic in 1809 (1 Acton, 25) and in The Margaret in 1814 (1 Acton, 333) regarded the matter as settled, even if the return cargo did not represent the proceeds of the outward contraband. Sir William Grant who presided and delivered the judgment in The Margaret said:

The principle upon which this and other prize courts have generally proceeded to adjudication in cases of this nature [that is, where there were false papers] appears simply to be this, that if a vessel carried contraband on the outward voyage, she is liable to condemnation on the homeward voyage. It is by no means necessary that the cargo should have been purchased by the proceeds of this contraband. Hence we must pronounce against this appeal, the sentence of the court below [which was one of condemnation of both ship and cargo] being perfectly valid, and consistent with the acknowledged principles of general law.

It is worth noting that in that case the outward voyage had taken place over three years before the capture, the vessel being engaged in various parts from 1804 to 1807.

The doctrine of these decisions had been criticized by jurists. The criticism began early by Wheaton in 1815. He called it an innovation not founded upon principle and argued that to subject the property to confiscation while the offence no longer continued would be to extend it indefinitely, not only to the return voyage, but to all future voyages of the same vessel, which could never be purified from the contagion communicated by the contraband articles. (See Wheaton's Maritime Captures, p. 183.) This criticism has been repeated literally by many since, but it does not appear to be sound, nor does the conclusion drawn seem to be warranted.

Quite the opposite view was taken and expressed by the Supreme Court of Mr. Wheaton's own country many years later, when Chief Justice Marshall and Mr. Justice Story were members of the court. The Supreme Court passed under review the cases already referred to (with others) in 1834 in Carrington v. Merchants' Insurance Company (8 Peters, 518). Of them Mr. Justice Story in delivering the judgment of the court said:

We cannot but consider these decisions as very high evidence of the law of nations, as actually administered; and in their actual application to the circumstances of the present case, they are not, in our judgment, controlled by any opposing authority.

Upon principle, too, we trust, that there is great soundness in the doctrine, as a reasonable interpretation of the law of nations. The belligerent has a right to require a frank and bona fide conduct on the part of neutrals in the course of their commerce in times of war; and if the latter will make use of fraud, and false papers, to elude the just rights of the belligerents, and to cloak their own illegal purposes, there is no injustice in applying to them the penalty of confiscation. The taint of the fraud travels with the party and his offending instrument during the whole course of the voyage, and until the enterprize has, in the understanding of the party himself, completely terminated.

This country in practice has certainly never given up in such cases the right of capture on the return voyage. In Wildman's International Law (1854) and in his Plain Directions to Naval Officers as to the Law of Search, Capture and Prize (1854) after the outbreak of the Crimean War the doctrine is maintained.

In Godfrey Lushington's Manual of Naval Prize Law, published with the authority of the British Admiralty in 1866, the paragraph (185) relating to the matter is as follows:

A vessel which carries contraband goods becomes liable to detention from the moment of quitting port with the goods on board and continues to be so liable until she has deposited them. After depositing them, the vessel, in ordinary cases, ceases to be liable; and therefore, as a general rule, a commander should not detain a vessel for carrying contraband goods unless he finds them actually on board. But simulated papers are an aggravation of the offence. If, therefore, a commander meets with a vessel on her return voyage and ascertains that on her outward voyage she carried contraband goods with simulated papers he should detain her; and the fact that the return cargo has not been purchased by the proceeds of the outward contraband cargo makes no difference.

The paragraph in the Manual edited by Mr. Holland in 1888 (Par. 80) is in identical terms.

It is right in passing to mention the cases of The Allanton (Russian Cases in Russo-Japanese War, p. 1) and The Eastry (Takahashi, p. 739). These decisions, however, proceeded in accordance with the written Code of Prize Regulations of Russia and Japan respectively, made for that war.

In 1908 the Memorandum issued by the British Foreign Office by way of Instructions to the British Delegates to the London International Naval Conference of that year deals with the matter as follows:

6. A ship carrying contraband as defined in section 1, may be seized at any moment throughout the whole course of her voyage so long as she is on the high seas or in

belligerent waters. The liability to seizure is not affected by the fact that the vessel is intending to touch at some neutral port of call before reaching the hostile destination.

When the contraband goods have been discharged, the liability to seizure is at an end. In exceptional cases it has been held that a ship which has carried contraband to the enemy on her outward voyage under circumstances aggravated by fraud and simulated papers is still liable to capture and condemnation on her return voyage.

I may finally mention that according to the present German Prize Code if the vessel carried contraband to the enemy contrary to the indications of the ship's papers, she is liable to capture and condemnation until the end of the war. In these circumstances whatever may have been written by jurists, I am not prepared to pronounce that the rule of international law upon the subject which has been declared and acted upon in this country by the highest prize courts, as also in those of America, has ceased to be in force. The ease with which in the circumstances of modern maritime trade papers and destinations can be falsified and frauds can be carried out in no way minimizes the obligations of neutrals engaged in such trade in time of war to act with frankness, straight-forwardness and good faith.

I accordingly should hold that a vessel which had been used by its owner by means of false papers, with false destination, and any such deceitful practices intended to elude the rights of capture by belligerents, to carry contraband goods to the enemy and which has delivered such goods on an outward voyage, remains confiscable upon the return voyage also. What would constitute the return voyage would depend upon all the circumstances of the particular case.

I have stated my view of the law at this stage before considering the effect of the Orders in Council in reference to the provisions of the Declaration of London, by reason of the doctrines as to the force of the Orders in Council which were declared by the Privy Council in the recent case of The Zamora1 (32 The Times L. R., 436).

I will deal shortly with these Orders in Council. That of August 20, 1914, affected the voyage of the Alwina when it began. That of October 29 came into force while the voyage was still in progress, and the offence in the sense mentioned was continuing. Article 38 of the Declaration said: "A vessel is liable to capture for carrying contraband, but not for having done so." That provision was not ratified. It was modified by the Order in Council of August 20 by the following:

1 Printed in this JOURNAL for April, 1916, p. 422.