"All the above-quoted legal display rests on a judicial sophism. In respect of the cargo between the port of loading and the suspected port of delivery (a port which the prize court was unable to specify), there is, forsooth, but one royage. Now, a royage in the widest application of the word, has never been held in maritime legal phraseology to compromise more than the space traversed by a vessel between its ports of loading and unloading. But to pretend that the * voyage' still continues after the cargo has been discharged and the commercial operation has been completed is, indeed, the very acme of the judicial temerity. The proposition is rendered more glaringly preposterous by the court's admission that the voyage as to the ship' ended at Nassau. The voyage is at an end 'as to the ship,' yet it is continuous 'as to the cargo. This is startling law. The proposition seems more monstrous and absurd when we bear in mind that no transshipment having taken place, it was utterly impossible to say whether or not the cargo would be sent forward, or, if so sent forward, to what port it might go. To tack such a hypothetical, indefinite, imaginary voyage without date of departure or fixed destination on to the completed voyage, and thus to convert the real port of destination (Nassau) into an intermediate port, is to misconstrue the facts of the case to establish the right of confiscation by a wretched play upon words.

“To hold a vessel and cargo liable to capture simply because it is on its way to a blockaded port is, in our opinion, a departure from the true principles of international law. What, we ask, was the use of the congress of Paris in 1856 abrogating paper and other fictitious blockades, if England and the United States persist in maintaining that the bare intent constitutes a breach of blockade, and that the setting sail for a blockaded port establishes that intent. The paradox is altogether indefensible in the case of a vessel sailing from one neutral port to another neutral port. According to the English and American doctrine it would, under the circumstances, be necessary to prove that the vessel's destination was simulated; the intent would be inferred from the care taken to conceal it and to mislead the belligerent as to the real destination. But even in an English prize court the captor would be required to produce the clearest proof of the alleged concealed destination. There would be no guessing, no surmising, no inferring, no jumping at illogical conclusions, as in the ease of the Springbok. In the case of that vessel the Supreme Court's judgment is in the highest degree arbitrary and unjust. Firstly, the blockade is held to have been broken because there was an intention to break it; secondly, the neutral vessel is held to have had the intention to break the blockade, not because it was proceeding to a certain blockaded port, but because though bound to a neutral port it might subsequently proceed thence to 'some blockaded port,' or the cargo might be sent forward by transshipment to 'some blockaded port.' No! Such doctrines are repugnant to every principle of international justice. No more in the United States than in Europe are such subtleties compatible with the law of nations. The case of the Springbok is one of those upon which public opinion, even in the United States, has already decisively condemned the judges.... "The American people are too enlightened, they possess too much prac tical sound sense, not to perceive that if the doctrine of their Supreme

Court were generally adopted, if the Springbok precedent were followed by future belligerents, neutral commerce would be completely crippled, paralyzed, or destroyed on the advent of a maritime war. For instance, American coasting vessels carrying cotton from New Orleans to New York would be liable to capture while on that honest voyage, because the cotton might subsequently be forwarded to some blockaded port and some belligerent cruiser suspected such ulterior destination. In time of war, courage—robur et œs tripler—would be necessary to risk a voyage from one neutral port to another. If the merchants in countries engaged in war were to abstain from risking their goods at sea because private enemy property does not yet enjoy immunity from capture, and if neutral vessels were laid up, and their owners renounced a lucrative neutral carrying trade out of fear of being seized, as the Springbok was, on suspicion of being engaged on 'a continuous voyage' to some undefined blockaded port, what would become of maritime international trade? What, we ask, will be the position of those nations which, in consequence of their need of foreign supplies, can not possibly dispense with that trade? The subject is a very serious one. It deserves, it commands, the meditation and action of statesmen, and especially of American statesmen." (Mr. Arthur Desjardins, avocat-général of the court of cassation of France, member of the Institute of France, in 59 Revue des Deux Mondes, Sept. 1, 1883, 218, 223–225.)

Fiore, in the second edition of his work on International Law, translated into French by Antoine (1886), vol. 3, § 1649, takes, when commenting on the Springbok case, the following distinctions: "Contraband goods destined for one belligerent may be seized by the other belligerent when found on a neutral ship sailing between neutral ports if it be plain that the intention was to supply the goods to the former belligerent. In this sense voyages of such goods are continuous, as they constitute an indivisible unity as links in the same chain. But this by itself would not justify the seizure of the vessel, but only the seizure of such goods as are actually contraband, and of no other."

"The principle of continuous voyages will apply when cases of contraband, attempt to break blockade, etc., come up before courts which accept this English doctrine. In the war of secession many British vessels went to Nassau, and either landed their cargoes destined for Confederate ports there, to be carried forward in some other vessel, or stopped at that port as a convenient place for a new start towards Charleston or some other harbor. If an intention to enter a blockaded port can be shown, the vessel and the cargo, as is said in the text, are subject to capture according to English and American doctrine from the time of setting sail. Now the doctrine of continuous voyages has been so applied by our Supreme Court, that it matters not if the vessel stops at a neutral port, or unlades its cargo and another vessel conveys it onward, or if formalities of consignment to a person at the neutral port, or the payment even of duties are used to cover the transaction: provided destination to the blockaded port, or, in the case of contraband, to the hostile country, can

be established, the ship on any part of its voyage, and the cargo before and after being landed, are held to be liable to confiscation. Or, if again the master of the vessel was ordered to stop at the neutral port to ascertain what the danger was of continuing the voyage to the blockaded harbor, still guilt rested on the parties to the transaction as before. All this seems a natural extension of the English principle of continued voyages, as at first given out; but there is danger that courts will infer intention on insufficient grounds. A still bolder extension was given to it by our courts in the case of vessels and goods bound to the Rio Grande, the goods being then carried up by lighters to Matamoras. We could not prohibit neutrals from sending goods to the Mexican side of that river; but if it could be made to appear that the goods were destined for the side belonging to the United States, that was held to be sufficient ground for condemnation of them; although, in order to reach their destination, they would need overland carriage over neutral territory. (See Prof. Bernard's British Neutrality, 307-317, and comp. Dana's note 231 on Wheaton, § 508.)"

Woolsey, Int. Law, 356,

German Cases.

(6) DELAGOA BAY CASES.

§ 1262.

An interesting and important discussion of questions of contraband and continuous voyage may be found in the correspondence between Germany and Great Britain growing out of the seizure and detention by British cruisers of the three German East African Mail steamers Bundesrath, General, and Herzog.

The first case was that of the Bundesrath. As early as Dec. 5, 1899, Rear Admiral Sir R. Harris reported that that vessel had sailed from Aden for Delagoa Bay; that "ammunition" was "suspected, but none ascertained;" and that she carried" twenty Dutch and Germans and two supposed Boers, three Germans and two Austrians, believed to be officers, all believed to be intending combatants, although shown as civilians; also twenty-four Portuguese soldiers,“ On the 29th of December she arrived at Durban in charge of the British cruiser Magicienne. The German Government requested her release on the ground, among others, of "positive assurances by the Hamburg Company that she carried no contraband. Lord Salisbury replied that she was suspected to be carrying ammunition in her cargo, and that she had on board a number of passengers

Blue Book, Africa, No. 1 (1900), 1.

believed to be volunteers for service with the Boers," but that no details as to the grounds of the seizure had been received. Subsequently the British Government was advised by Admiral Harris that the ship changed the position of her cargo on being chased; that a partial search had revealed some sugar consigned to a person at Delagoa Bay, and some railway sleepers and small trucks consigned to a firm at the same place, but labelled "Johannesburg; " and that a further search was expected to disclose "arms among baggage of Germans on board, who state openly they are going to the Transvaal." The German Government declared that it had no knowledge of more than two officers having proceeded to the Transvaal, where they were unable to obtain commands. On Jan. 3, 1900, the British Government directed that an application be made to the prize court for the release of the mails; that, if the application should be granted, they be handed over to the German consul, to be hastened to their destination by a British cruiser if available, or by mail steamer, or otherwise; and that every facility for proceeding to his destination should be afforded "to any passenger whom the court considers innocent." The search of the steamer was continued for nine days, but no contraband was found. Jan. 5 the mails and passengers were released by order of the prize court and were taken on board the German war ship Condor for Delagoa Bay. The steamer and her cargo was discharged on the 18th of January.

Dec. 16, 1899, the Admiralty communicated to the foreign office two telegrams, one from the commander in chief of the Mediterranean Station, and the other from the commander in chief of the Cape of Good Hope, in relation to the Herzog. One of the telegrams conveyed a report that this steamer, though she had declared that there were no troops on board, had left the Suez Canal for South Africa with "a considerable number of male passengers, many in khaki, apparently soldiers; " the other spoke of "a number of passengers dressed in khaki," and asked whether they could be legally removed. Dec. 21 the senior naval officer at Aden reported her as having sailed on the 18th for Delagoa Bay "conveying, probably for service in [the] Transvaal, about forty Dutch and German medical and other officers and nurses." Jan. 1, 1900, the Admiralty telegraphed to Admiral Harris: "Neither the Herzog nor other German mail steamer should be arrested on suspicion only until it becomes obvious that the Bundesrath is carrying contraband." The Herzog was brought into Durban on the 6th of January. It seems that she had among her passengers three Red Cross expeditions, one of which, however, had no official character nor any connection with the regular Red Cross societies. Jan. 7 the Admiralty directed her immediate release unless guns or ammunition were revealed by the summary search. To this there was added next day the further proviso, “ un

less provisions on board are destined for the enemy's government or agents, and are also for the supply of troops or are specially adapted for use as rations for troops." The steamer was released on the 9th of January.

Jan. 4, 1900, the senior naval officer at Aden reported that the Steamer General was detained " on strong suspicion" and was und rgoing search. The German Government protested, and asked that explicit instructions be given to British officers "to respect the rules of international law, and to place no further impediments in the way of the trade between neutrals "-a request to the form and imputations of which the British Government strongly excepted. The Admiralty had previously telegraphed to Aden that it was undesirable to detain the steamer if she carried the mails. It appears that she was detained on information" that various suspicions articles were on board for Delagoa Bay, including boxes of ammunition stowed in the main hold, buried under reserve col. The manifest contained several large cases of rifle ammunition for Mauser, Mannlicher, and sporting rifles, consigned to Mombasa, but this consignment was believed to be bona fide. After a search, which included the removal of 1,200 tons of cargo and the digging out of a large quantity of coal-a task which occupied the Marathon's ship's company, assisted by 100 coolies, several days-no contraband was found. The British Government ordered the vessel's release on the 7th of January, but as time was requisite for the replacement of the 1,200 tons of cargo which had then been removed, she was unable to sail till the 10th. She had on board a considerable number of Dutch and German passengers for the Transvaal, in plain clothes, but" of mili tary appearance," some of whom were believed to be trained artillerymen, though it was stated by the British officials that proof of this suspicion could be obtained only by searching their baggage. Lord Salisbury afterwards stated that there was no sufficient evidence as to their destination to justify further action on the part of the officers conducting the search."

With the release of the ships and their passengers and cargoes, and en expression of regret by Great Britain for what had occurred, the subject in controversy was arranged as follows:

1. The British Government admitted in principle the obligation to make compensation, and expressed its readiness to arbitrate the claims should an agreement by other means be impracticable.

2. Instructions were issued to prevent the stopping and searching of vessels at Aden or at any point equally or more distant from the seat of war.

3. It was agreed provisionally, till another arrangement should be made, that German mail steamers should not in future be searched on suspicion only." By a mail steamer, however, was understood