A Swedish ship, while on a voyage from Ireland to Spain, with a cargo of corn, shipped under the permission of the British Government for the use of the British forces in Spain, was captured, in April, 1814, by an American privateer. It was contended that the doctrine of contraband could not apply to the case because the cargo was destined to a country which was neutral in the war between Great Britain and the United States. It was held, however, that the cargo was contraband because it was avowedly destined to British military forces. The opinion of the court, which was delivered by Mr. Justice Story, was concurred in by Justices Washington, Todd, and Duvall. Marshall, Chief Justice, with whom concurred Justices Livingston and Johnson, dissented, on the ground that the war in Europe was separable from that in which the United States and Great Britain were engaged, and that, although British troops in every part of the world were legally enemies of the United States, yet the furnishing of supplies to British armies in Spain was not in reality an unneutral act to the prejudice of the United States. The Commercen (1816), 1 Wheat., 382. To the inquiry of an importer as to whether the United States would object to the importation of pyrites and phosphate of soda as contraband articles, the following reply was made: “The Departnent is not informed of the views of the Spanish Government on this subject, but the articles in question are not generally mentioned in the lists of contraband found in treaties. It is also proper to observe that, where articles classed as contraband are destined for this country, it is not our policy to obstruct their importation." Mr. Moore, Asst. Sec. of State, to Secretary of Treasury, May 7, 1898, 228 MS. Dom. Letters, 341. 2. DOCTRINE OF "CONTINUOUS VOYAGES.” The doctrine of "Continuous voyages" has already (supra, § 1180) been to some extent discussed in connection with the Rule of the War of 1756. It will now be considered under the head of "Contraband," in connection with which it has had its latest development. In some of the cases in the American civil war it is uncertain whether the doctrine was applied by the court in connection with contraband or with blockade, but, as this question can best be judged by studying the cases as a whole, they are here fully presented under the preponderant topic-that of contraband. (1.) QUESTION RAISED IN AMERICAN CIVIL WAR. § 1256. Early in the war the Confederate Government, whose ports were blockaded by the United States, sent abroad agents for the purpose, among others, of obtaining arms and munitions of war and other needful supplies, as well as vessels to transport them, the means of payment to be derived chiefly from the proceeds of the Southern cotton crop. To carry out this plan a firm under the name of Frazer, Trenholm & Co., composed of merchants of Charleston, South Carolina, and constituting a branch of a house in that city, was established in Liverpool. Consignments of cotton were made to this firm, to be drawn against for purchases for the Confederacy. In this way a vast system of blockade running was soon built up, under cover of the neutral flag, but under actual Confederate supervision and control. Commander Bulloch, C. S. N., writing at Liverpool, May 3, 1862, to Mr. Mason, Confederate commissioner in London, stated that he had read to Messrs. Frazer, Trenholm & Co. a part of one of Mr. Mason's letters, and added: "These gentlemen say that their ships are necessarily sailed under the British flag, and the presence on board of any persons known to have been in the Confederate service would compromise their character, and in this view of the case they feel reluctantly compelled to decline giving a pasage to any of the Sumter's men.” As the system of blockade running grew in notoriety it became more difficult of execution, and Confederate agents were established in the various West India islands to facilitate its operations; and, instead of direct voyages to blockaded ports, goods were shipped in British bottoms to neutral ports and there transshipped into steamers of light draft and great speed, which could carry coal enough for the short passage to Charleston, Savannah, or Wilmington. Of the neutral ports thus used, Nassau, in the island of New Providence, acquired the greatest celebrity. Moore, Int. Arbitrations, I. 580-581; Official Records of the Union and July 5, 1862, Mr. A. H. Layard, by direction of Earl Russell, addressed a letter to certain British merchants and shipowners of Liverpool in reply to a memorial in which they invoked the protection of the British Government against "the hostile attitude assumed by Federal cruisers in the Bahama waters," so as to put a check on the seizures frequently made therein. Earl Russell, in his reply, stated that complaint had, on the other hand, been made on the part of the United States that ships had been sent out from Great Britain to America "with a fixed purpose to run the blockade; that high premiums of insurance have been paid with this view, and that arms and ammunition have been thus conveyed to the Southern States to enable them to carry on the war. Lord Russell," so the letter continues," was unable either to deny the truth of those allegations or to prosecute to conviction the parties engaged in those transactions. But he can not be surprised that the cruisers of the United States should watch with vigilance a port which is said to be the great entrêpot of this commerce. "Her Majesty's Government have no reason to doubt the equity and adherence to legal requirements of the United States prize courts. But he is aware that many vessels are subject to harsh treatment, and that, if captured, the loss to the merchant is far from being compensated even by a favorable decision in a prize court. "The true remedy would be that the merchants and shipowners of Liverpool should refrain from this species of trade. It exposes innocent commerce to vexatious detention and search by American cruisers; it produces irritation and ill will on the part of the population of the Northern States of America; it is contrary to the spirit of Her Majesty's proclamation; and it exposes the British name to suspicions of bad faith, to which neither Her Majesty's Government nor the great body of the nation are justly obnoxious. "It is true, indeed, that supplies of arms and ammunition have been sent to the Federals equally in contravention of that neutrality which Her Majesty has proclaimed. It is true, also, that the Federals obtain more freely and more easily that of which they stand in need. But if the Confederates had the command of the sea they would no doubt watch as vigilantly and capture as readily British vessels going to New York as the Federals now watch Charleston and capture vessels seeking to break the blockade. "There can be no doubt that the watchfulness exercised by Federal cruisers to prevent supplies reaching the Confederates by sea will occasionally lead to vexatious visits of merchant ships not engaged in any pursuit to which the Federals can properly object. This, however, is an evil to which war on the ocean is liable to expose neutral commerce, and Her Majesty's Government have done all they can fairly do, that is to say, they have urged the Federal Government to enjoin upon their naval officers greater caution in the exercise of their belligerent rights. "Her Majesty's Government having represented to the United States Government every case in which they were justified in interfering, have only further to observe that it is the duty of Her Majesty's subjects to conform to Her Majesty's proclamation, and to abstain from furnishing to either of the belligerent parties any of the means of war, which are prohibited to be furnished by that proclamation." Dip. Cor. 1862, 171. . When a vessel is visited she "is not then to be seized without a search carefully made, so far as to render it reasonable to believe that she is engaged in carrying contraband of war for or to the insurgents, and to their ports directly or indirectly by transshipment, or otherwise violating the blockade; and that if, after visitation and search, it shall appear to your satisfaction that she is in good faith and without contraband, actually bound and passing from one friendly or so-called neutral port to another, and not bound or proceeding to or from a port in the possession of the insurgents, then she can not be lawfully seized." Instructions of Mr. Welles, Sec. of Navy, to United States cruisers, Aug. For correspondence preceding the issuance of these instructions, see Blue Diligent watch was kept by the United States consuls in English ports for vessels believed to be engaged in contraband and blockaderunning ventures. December 30, 1862, Mr. Adams, United States minister at London, communicated to Earl Russell two lists, respectively furnished by the consuls at Liverpool and London, of vessels which, as Mr. Adams said, were believed to have "left with supplies, principally contraband of war, with the intention of either running the blockade directly, or of going to a neighbouring Atlantic or Gulf port, and there discharging their cargoes into another class of vessels, the more easily to get such cargoes to their places of destination." In these lists, which contained the names of 82 vessels, were the steamers Bermuda, Circassian, Gertrude, Labuan, Pearl, and Peterhoff, and the sailing vessels Springbok and Stephen Hart. Parl. Paper, North America, No. 3 (1863), 29, 34, 35. The first judicial application during the civil war of the doctrine of continuous voyages was made by Judge Marvin, of the district court of the United States for the southern district of Florida, in the case of the Dolphin, a steamer of 129 tons net, of apparent British ownership. She was captured March 25, 1863, at 5.15 o'clock a. m., by Lieut. Commander Fleming, of the U. S. S. Wachusett, between the islands of Culebra and Porto Rico, while ostensibly on a voyage from Liverpool to Nassau. The Dolphin left St. Thomas just after midnight on March 25. The Wachusett followed her but lost her in the night; descried her again at daylight, and captured her after an hour and a half's chase and the firing of a number of shots. In his first brief report, March 25, Commander Fleming said: "Suspicion being strong against her I seized her." In a further report, of March 28, he said that the report of the boarding officer, " together with an examination I had of her papers, and the strong suspicion attached to her of intending to run the blockade, induced me to capture her and to send her to Key West." When sent before the prize court, the vessel and cargo were claimed by one Grazebrook, of Liverpool, to whose order the bills of lading consigned the cargo, while the freight bill consigned it to Messrs. Chambers & Raw, of Nassau. It corresponded to the freight list found on board, except as to certain cases containing in all 920 rifles and 2,240 cavalry swords, which were described as "hardware." 66 Judge Marvin said that if the vessel and cargo were owned as claimed and there was no intention on the part of the owner that the vessel should proceed with the cargo to a port of the enemy," there would be no justification for the capture or condemnation of either; but that if, on the other hand, it was the intention of the owner that the vessel should simply touch at Nassau and should proceed thence to Charleston or some other port of the enemy, then the voyage was not a voyage prosecuted by a neutral from one neutral port to another, but was a voyage to a port of the enemy, begun and carried on in violation of the belligerent rights of the United States to blockade the enemy's ports and prevent the introduction of munitions of war. . . . The cutting up of a continuous voyage into several parts by the intervention or proposed intervention of several intermediate ports may render it the more difficult for cruisers and prize courts to determine where the ultimate terminus is intended to be, but it can not make a voyage which in its nature is one to become two or more voyages, nor make any of the parts of one entire voyage to become legal which would be illegal if not so divided." The master and some of the crew swore that Nassau was the terminus of the voyage. Three letters, however, were found on board, all signed by Grazebrook. One of them, addressed to Chambers & Raw, suggested that if the market at Nassau was "overdone from New York and the States," or if the "French charter" for "army stores, rum, etc.." had fallen through, a "fine trade" might be done "between Nassau and Boston and New York," and a "return cargo" of coal might be brought from Prince Edward Island for blockade runners; or perhaps the steamer might be sold, but not for any of your Federal or Confederate paper," but only for "hard cash." Another letter, addressed to the master, was of similar purport. The third, which evidently was not intended to be shown to visiting cruisers, and the contents of which were unknown to the master, was addressed to Chambers & Raw. It canceled the prior instructions, which were said to have been given " for a certain reason;" declared |