pal regulation forbidding British subjects to trade with the enemy, the alleged offense consisting in the transportation of goods destined to the enemy's territory. The seizure of the cargoes was declared to be only incidental to the seizure of the ships. As to certain articles, however (particularly the oil consigned to the Netherlands South African Railway, in the Transvaal), an allegation of enemy's property was made; but no question of contraband was raised, and it was eventually agreed that the United States consul-general at Cape Town should arrange with Sir Alfred Milner, the British high commissioner, for the release or purchase by the British Government of any American-owned goods, which, if purchased, were to be paid for at the price they would have brought at the port of destination at the time they would have arrived there in case the voyage had not been interrupted."

In the course of the correspondence Lord Salisbury thus defined the position of Her Majesty's Government on the question of contraband:

"Foodstuffs, with a hostile destination, can be considered contraband of war only if they are supplies for the enemy's forces. It is not sufficient that they are capable of being so used; it must be shown that this was in fact their destination at the time of the seizure."

Mr. Thomas Gibson Bowles, in a letter in the London Times, January 4, 1900, says: "In July, 1896, the Dutch steamer Doelwijk took a cargo of arms and ammunition, destined to Abyssinia, then at war with Italy, from the neutral port of Rotterdam to the neutral (French) port of Jibutil, in the Gulf of Tajura. The steamer being captured by the Italian cruiser Etna and brought in for adjudication, was condemned as lawful prize by the prize court at Rome on December 8, 1896." c

VI. PENALTY.

§ 1263.

By the law of nations at the close of the eighteenth century the act of carrying materials of war to a belligerent was regarded as a wrong for which vessel and cargo were liable to condemnation.

The Atlantic (1901), 37 Ct. Cl. 17.

The court further observed, in this relation, that the mere presence of a contraband article on board without proof or indication that the owners knew the vessel was carrying contraband would justify only

a Mr. Hay, Sec. of State, to Mr. Toomey, March 2, 1900; to the Ballard & Ballard Co., March 9, 1900; to Mr. Newman, March 13, 1900; 243 MS. Dom. Let. 317, 412, 488.

b S. Doc. 173, 56 Cong. 1 sess. 29.

S. Doc. 173, 56 Cong. 1 sess. 20-22.

the seizure of the article, but that if a substantial part of the cargo (e. g., 38 horses on a vessel of 85 tons burden) was contraband, the presumption was that the cargo was to aid a belligerent.

Where, however, there were only 5 horses on a 98-ton vessel, the rest of the cargo consisting of cattle and fowls, an intended military use was not presumed. (The Juno, 38 Ct. Cl. 465.)

April 16, 1814, the Swedish ship Commercen, while on a voyage from Limerick, Ireland, to Bilbao, Spain, was captured by an American privateer. Her cargo consisted of corn, shipped under the special permission of the British Government for the use of British forces in Spain. The cargo was condemned, but the ship was restored with an allowance of freight. Against this allowance the captor appealed, and the decree as to freight was reversed by the circuit court. From this sentence an appeal was taken to the Supreme Court, which held that, as the voyage of the vessel was illicit and inconsistent with the duties of neutrality, the penalty of loss of freight was properly imposed.

The Commercen (1816), 1 Wheat. 382.

The court said: "The general rule that the neutral carrier of enemy's property is entitled to his freight, is now too firmly established to admit of discussion. But to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence, the carrying of contraband goods to the enemy; the engaging in the coasting or colonial trade of the enemy; the spoliation of papers, and the fraudulent suppression of enemy interests, have been held to affect the neutral with the forfeiture of freight, and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy, and a breach of blockade, the penalty of confiscation of the vessel has also been inflicted."

See a note by Wheaton to this case, on the question of penalty for carrying contraband, 1 Wheat. 394.

The carriage of contraband goods does not subject the vessel and remaining cargo to confiscation, unless they all belong to the same owner, or unless there has been some actual cooperation in an attempted fraud upon the belligerent, by covering up the voyage under false papers, and with a false destination. When the contraband goods have been deposited at the port of destination, neither the vessel nor the cargo is liable to seizure on the return voyage, though the latter may have been purchased with the proceeds of the contraband.

The same rule would seem to apply, by analogy, to cases where the contraband articles have been deposited at an intermediate port on the outward voyage, and before it terminated. But if the voyage be

disguised, and the vessel sails under false papers, and with a false destination, the mere deposit of the contraband in the course of the voyage does not exempt the vessel from seizure.

Carrington v. Ins. Co., 8 Pet. 495.

In the case of The Lucy (1901), 37 Ct. Cl. 97 (a French spoliation case). the court, referring to the state of the law at the close of the eighteenth century, said: "Where the owners of a vessel were the owners of the [contraband] cargo, the vessel as well as the cargo was subject to confiscation." See, also, The Bird (1903), 38 Ct. Cl. 228.

Mere consent to transportation of contraband will not always or usually be taken as a violation of good faith by the neutral owner of a ship. There must be circumstances of aggravation. The nature of the contraband articles and their importance to the belligerent, and general features of the transaction must be taken into consideration in determining whether the neutral owner intended or did not intend, by consenting to the transportation, to mix in the war.

Contraband of war is always subject to seizure when being conveyed to a belligerent destination, whether the voyage be direct or indirect; such seizure, however, is restricted to actual contraband, and does not extend to the ship or other cargo, except in cases of fraud or bad faith on the part of the owners or of the master with the sanction of the owners.

The Bermuda, 3 Wall. 514; The Springbok, 5 id. 1.

Conveyance of contraband attaches in ordinary cases only to the freight of the contraband merchandise. It does not subject the vessel to forfeiture.

The Peterhoff, 5 Wall. 28.

Contraband articles contaminate the noncontraband parts of a cargo, if belonging to the same owner, and the noncontraband must share the fate of the contraband.

The Peterhoff, 5 Wall. 28.

This is known as the doctrine of "infection."

A false destination will not justify a vessel's condemnation as for carrying contraband, where her real destination is an unblockaded port and her cargo is innocent.

The Betsey and Polly (1902), 38 Ct. Cl. 30.

Where a vessel sailed in March, 1798, with a cargo of horses for a belligerent port, but under a false destination, and the owners of the cargo were the owners of the vessel, the vessel was liable to seizure

and condemnation on her return voyage, together with her cargo, though the cargo was innocent.

The Lucy (1901), 37 Ct. Cl. 97. The court said: The liability to confiscation attended the entire voyage; that is to say, from the home port back to the home port, and to the cargo on the return voyage, though it might be innocent. There can be no doubt but that such was the recognized law of nations at the close of the eighteenth century. (The Joseph, 8 Cranch, 451-454; Carrington v. Merchants' Insurance Co., 8 Pet. 494-520.)"

"Regarding the trade in arms and ammunition and other contraband objects, the Government of the King, looking to the strict observance of the duties prescribed by neutrality, does not intervene either to protect or prohibit it. No law prohibiting the exportation of these products of national industry, the trade in question is carried on freely in the country, but outside the territory at the risks and perils of those who carry it on. If Belgian merchandise of this kind, or vessels transporting it flying the national flag, were stopped and seized on the high seas by the cruisers of one of the belligerents, the intervention of the Government would be confined to seeing that the laws of war and the regulations of the procedure before the prize courts were strictly applied to all parties interested."

M. de Favereau, Belgian min. of for. aff., to Mr. Storer, min. to Belgium, Sept. 6, 1898, enclosed by Mr. Storer with dispatch No. 140, Sept. 14, 1898, MSS. Dept. of State.

In February, 1865, a British subject shipped from Liverpool to his agent in Buenos Ayres a quantity of rifles, with a view to their sale in Paraguay. After the arrival of the goods at Buenos Ayres such a sale was negotiated, and the rifles were shipped from Buenos Ayres on April 8, 1865, for Corrientes, Argentine Republic, where they were to be transshipped for Paraguay. On April 14 war broke out between the Argentine Republic and Paraguay, and the steamer on which the rifles were transported was stopped by the governor of Corrientes, who took out the rifles and placed them at the disposal of the Argentine Government. The owner subsequently presented a claim for the value of the rifles, as well as for an indemnity of about a fourth of their value for their detention for eighteen months. Their value he estimated by the price which they would have fetched in Paraguay. A suit was brought in the federal court at Buenos Ayres, which held that the rifles could not be lawfully confiscated, and that they should be returned to the owner or that a just equivalent should be paid to him or his representative. From this decision the Argentine Government appealed to the supreme court, which decided that, as the arms were shipped by the owner before the declaration of war, they were not subject to confiscation; that their taking

by the Argentine Republic was to be considered as an act of expropriation for public use, and not as an act of preemption under the law of nations; that, according to the law of expropriation the price to be paid was what the goods were worth in place where they were taken; and that, as the Government had in detaining the arms exercised a legitimate right, from which no obligation to pay indemnity could arise, the Government should pay only the current rate of interest on the value of the arms from the date of their expropriation.

Mr. Buchanan, min. to the Argentine Republic, to Mr. Hay, Sec. of State, No. 584, Dec. 1, 1898, enclosing a report of Mr. François S. Jones, sec. of legation, citing Fallos de la Suprema Corte, 1869, IV. 245–246.

A citizen of a neutral state who, for hire, serves on a neutral ship employed in contraband commerce with a belligerent power, is not punishable personally, according to the law of nations, though taken in the act by that belligerent nation to whose detriment the trade would operate.

Lee, At. Gen., 1796, 1 Op. 61.

The rule" that a vessel on a return voyage is liable to capture by the circumstances of her having on the outward voyage conveyed contraband articles to an enemy's port " is an intrepolation in the law of nations.

Mr. Madison, Sec. of State, report of Jan. 25, 1806, 15 MS. Dom. Let. 70. The transportation of contraband, though an unneutral service, is not a "criminal" act.

1 Kent's Comm. 142, approved by Lord Westbury, in Ex parte Chavasse, 11 Jur. N. S., pt. 1, 400. See, also, 11 Op. At. Gen. 408, 451; The Helen, L. R. 1 Adm. & Eccles. 1.

Much misapprehension as to the quality of the act of supplying contraband articles, such as arms and munitions of war, to the parties to an armed conflict, has arisen from the statement so often made that the trade in contraband is lawful and not prohibited. This statement, when used with reference to the preventive duties of neutral governments, is quite correct, but if applied to the duties of individuals it is quite incorrect. The acts which individuals are forbidden to commit and the acts which neutral governments are obliged to prevent are by no means the same; precisely as the acts which the neutral government is obliged to prevent and the acts which it is forbidden to commit are by no means the same. The supply of materials of war, such as arms and ammunition, to either party to an armed conflict, although neutral governments are not obliged to