carry on the commerce between the mother-country and her colonies, under special licenses or passes, granted for this particular purpose, excluding, at the same time, all other neutrals from the same trade. Many Dutch vessels so employed were captured by the British cruisers, and, together with their cargoes, were condemned by the prize courts, upon the principle, that by such employment they were, in effect, incorporated into the French navigation, having adopted the commerce and character of the enemy, and identified themselves with his interests and purposes. They were, in the judgment of these courts, to be considered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle with property condemned for carrying military persons or despatches. In these cases, the property was considered, pro hac vice, as enemy's property, as so completely identified with his interests as to acquire a hostile character. So, where a neutral is engaged in a trade, which is exclusively confined to the subjects of any country, in peace and in war, and is interdicted to all others, and cannot at any time be avowedly carried on in the name of a foreigner, such a trade is considered so entirely national, that it must follow the hostile situation of the country. (a) There is all the difference between this principle and the more modern doctrine which interdicts to neutrals, during war, all trade not open to them in time of peace, that there is between the granting by the enemy of special licenses to the subjects of the opposite belligerent, protecting their property from capture in a particular trade which the policy of the enemy induces him to tolerate, and a general exemption of such trade from capture. The former is clearly cause of confiscation, whilst the latter has never been deemed to have such an effect. The "Rule of the War of 1756" was originally founded upon the former principle: it was suffered to lie dormant during the war of the American Revolution; and when revived at the commencement of the war against France in 1793, was applied, with various relaxations and modifications, to the prohibition of all neutral traffic with the colonies and upon the coasts of the enemy. The principle of the rule was frequently vindicated by Sir W. Scott, in his masterly judgments in the High Court of Admiralty and in the

(a) The Princessa, Robinson's Adm. Rep. ii. 52. The Anna Catharina, Ibid. iv. 118. The Rendsborg, Ibid. 121. The Vrow Anna Catharina, Ibid. v. 150. Wheaton's Rep. ii. Appendix, 29.

writings of other British public jurists of great learning and ability. But the conclusiveness of their reasonings was ably contested by different American statesmen, and failed to procure the acquiescence of neutral powers in this prohibition of their trade with the enemy's colonies. The question continued a fruitful source of contention between Great Britain and those powers, until they became her allies or enemies at the close of the war; but its practical importance will probably be hereafter much diminished by the revolution which has since taken place in the colonial system of Europe. (b)281

(b) Wheaton's Rep. i. Appendix, Note III. See Madison's "Examination of the British Doctrine which subjects to Capture a Neutral Trade not Open in Time of Peace." [231 Continuous Voyages. The examination into the continuous nature of voyages is, or may be necessary in reference alike to blockade, trade with enemies, unneutral service, and carrying contraband, and, indeed, to all cases where the destination of the vessel or cargo is material. The right of the belligerent is to know the facts. The policy of the neutral is to conceal them. If the destination is really to a hostile port, -if that is the plan or scheme of the voyage, it is, of course, immaterial what formal acts, intended to deceive, are interposed. If the plan of the voyage is, that the cargo be landed in a neutral port, and thence transshipped to its actual destination, it is to be expected that the neutral, whose object is to deceive, will be careful to go through all the forms which would be gone through with for a cargo actually destined to that neutral port. His object is to assimilate all the acts of a fictitious destination to those of a real destination. Such a cargo will be furnished with bills of lading and invoices, letters of instruction to the master or supercargo, and to the consignee in the neutral port, - all ostensibly contemplating an actual termination of the commercial enterprise there. That may be as well assumed, as it would be assumed that a spy would have not only no signs of his real character about him, but all the usual badges of an opposite character. The shipper may actually intend to have the goods landed in the neutral port, and stored there, and the employment of the vessel may cease there; and the mode, means, and time of transshipment to the real port of destination may be either planned by the shipper or left entirely to the discretion of his agent, and even a sale may be gone through with. All these facts are merely evidential, and consistent alike with an honest and a fraudulent intent. If a real hostile destination is proved aliunde, they make the fraudulent character of the scheme the more incontrovertible, while, if a hostile destination is disproved, they are natural and proper. It is the duty of the prize court to sift thoroughly all the facts, and detect the fraud if it exists; none of them having any conclusive and defined legal effect attached to them.

With reference to cargo landed at the neutral port, and a sale made there, Sir William Scott puts the test, whether the cargo, at that place, is "imported into the common stock of the country." (Thomyris, Edwards, 17. Maria, Rob. v. 365. William, Ibid. v. 385.) If, all the while, the consignee is merely an agent and bailee, whose office is to hold the goods for a greater or less time, and go through with more or less ceremonies over them, and ultimately to transship them to their real destination, with or without discretion in him or some one else as to the time and mode of transshipment, the hostile destination remains impressed on the goods; and they are all the while in itinere. If the form only of sale is gone through with, it is adding so much

blockade.

Bynker

Breach of § 509. Another exception to the general freedom of Grotius and neutral commerce in time of war, is to be found in the trade to ports or places besieged or blockaded by one of the belligerent powers.

shoek.

to the fraud. But the transfer of title may be actual; still, if the original destination is superior to the transfer and overrides it, or if the transfer is consistent with the plan of hostile destination originated and carried out, the mere change of ownership is a fact immaterial to the captor. The modes of accommodating an actual sale at a neutral port to the hostile destination may be numerous. As instances of it, are an original contract by the shipper to sell at the neutral port, deliverable by him at the enemy's port; or a contract of sale made first at the neutral port, with a transfer of title there, but subject to the original destination and delivery at the hostile port. Such a transfer of general title is of no more consequence to the captor than a change of interest by death or insolvency of the shipper. But a sale is not necessary to create an importation into the common stock of the country. If the goods are to take their chances of the future, and to be retained there or consumed there, or transshipped to some other country, whether an enemy's or a neutral's, as may prove expedient, controlled by no original plan of hostile destination, no change of ownership need be made. (On the general subject of continuity of voyages, see Kent's Comm. i. 84, and note a. Opinions of Attorney-General, i. 359–362, 394–396. Halleck's Intern. Law. The Polly, Rob. ii. 361. Essex, Ibid. v. 365. Maria, Ibid. v. 367. William, Ibid. v. 349. Thomyris, Edw. 17. Matchless, Hagg. i. 97. Eliza Ann, Ibid. i. 259. Imina, Rob. iii. 167. Charlotte, Ibid. vi. 382. Margaret, Acton, i. 333. Richmond, Rob. v. 325. Two Nancies, Ibid. ii. and iii. 122. The Baltic, Acton, i. 25. Rosalie and Betty, Rob. ii. 343. Mentor, Edw. 207. Franklin, Rob. iii. 217. James Cook, Edw. 261. Liverpool Packet, Gallison, i. 526. Mary, Cranch, ix. 126.)

It is not necessary that the goods be sent from a neutral port. The rule of contraband is the same, if they are transported from one port of the enemy to another. (Halleck, 575. Heffter, § 161. Wildman, ii. 211. The Edward, Rob. iv. 70.) Examinations into continuity of voyages occur chiefly where a subject of the capturing power is supposed to be trading with the enemy, or a neutral to be sending contraband goods to the enemy, or under what is called the "Rule of 1756," explained at large in the text. It also becomes important in case of suspicion of an intent to break blockade. If a cargo is destined to be carried through blockade, it can be captured at any stage of the voyage. A neutral destination will often be interposed in such case, with all the ceremonies of landing, transshipping, sale, &c., as in the case of contraband; and the same tests and principles of reasoning apply to both. This subject has been fully and ably treated by Mr. Harcourt [Historicus] in his pamphlet on the Nassau trade, published in 1863, pp. 33-40. If the only objection to the cargo be, its destination to be carried through blockade, it is not enough to show that it was destined ultimately for a blockaded place, if it was to be landed at a port not blockaded, whether an enemy's or neutral, and carried thence by land to the blockaded port; for, in that case, there is not an intent to carry the cargo through the blockade. (The Staat, Rob. iv. 65. Jonge Pieter, Ibid. iv. 79. Ocean, Ibid. iii. 297.) In these cases, it was held, that where a harbor of a city is blockaded by sea, it is not a breach of blockade to send goods to or from that city by a canal navigation which has a separate access to the sea, if that access is not itself under effective blockade.

But, if a cargo destined from the blockaded city is sent through the blockade in lighters to a vessel in a port not under blockade, and is captured in that vessel on its way to its destination, there has been a breach of blockade. It is one voyage and one

The more ancient text-writers all require that the siege or blockade should actually exist, and be carried on by an adequate force, and not merely declared by proclamation, in order to render commercial intercourse with the port or place unlawful on the part of neutrals. Thus Grotius forbids the carrying any thing to besieged or blockaded places, "if it might impede the execution of the belligerent's lawful designs, and if the carriers might have known of the siege or blockade; as in the case of a town actually invested, or a port closely blockaded, and when a surrender or peace is already expected to take place." (a) And Bynkershoek, in commenting upon this passage, holds it to be "unlawful to carry any thing, whether contraband or not, to a place thus circumstanced; since those who are within may be compelled to surren

transaction. (The Maria, Rob. vi. 201. Charlotte Sophia, Ibid. 204, note. Lisette, Ibid. 394.) The same rule would apply to a cargo destined to such a city, intended to be landed at a near port not under blockade, and to be sent through the blockade in lighters. But, if the cargo is destined to the city, and the vessel is to be run on shore, and the cargo landed and sent to the city by land-carriage there, it would not be an attempt to break blockade, unless the blockade effectively extended over the place where the cargo is to be run ashore.

In exercising the search into the continuity of the voyage, if it appears that the carrier did not know of any destination of the cargo beyond that of the neutral port, and that his ignorance was excusable, he does not lose his freight and expenses. (Ebenezer, Rob. vi. 256.)

If the vessel is to deliver a contraband cargo into the hands and control of the enemy's government or of its executive officers, that makes the destination hostile, whether the place of delivery be at sea, or in a neutral or a hostile port. The Commercen, Wheaton, i. 382.

Even in cases of trading with the enemy by subjects of the capturing power, or of intended breach of blockade, or of contraband cargo, the fact that the place of the final and bona fide destination of the vessel is a neutral port, has no conclusive legal effect attached to it. The question is, the destination of the cargo; and the destination of the vessel is only an evidential fact, of more or less weight, under the circumstances of each case. If the cargo has a hostile destination, and the vessel has only a neutral one, and is excusably ignorant of that of the cargo, the consequence is that it does not lose freight and expenses; but it does lose them if it is cognizant of that destination, and is knowingly aiding it by carrying the cargo over one stage, though between neutral ports. Destination to an enemy's ship is a hostile destination. (Commercen, Wheaton, i. p. 382. Lord Wellington, Gallison, ii. 104.) If it is sought to condemn a vessel for being engaged in the service of the belligerent government by knowingly transporting troops or military persons or munitions of war, or verbal or written orders or messages, or persons charged with such orders or messages, the termini of the vessel's voyage are also immaterial, except as throwing light on the question of the knowledge of the vessel, or of its obligations to make inquiries and satisfy itself.] — D. “Si juris mei executionem rerum subvectio impediret, idque scire potuerit qui advexit, ut si OPPIDUM OBSESSUM TENEBAM, si PORTUS CLAUSOS, et jam deditio aut pax expectabatur," &c. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 1, § 5, note 3.

(a)

der, not merely by the direct application of force, but also by the want of provisions and other necessaries. If, therefore, it should be lawful to carry to them what they are in need of, the belligerent might thereby be compelled to raise the siege or blockade, which would be doing him an injury, and therefore unjust. And because it cannot be known what articles the besieged may want, the law forbids, in general terms, carrying any thing to them; otherwise disputes and altercations would arise to which there would be no end." (b)

Bynkershoek on besieged and blockaded

§ 510. Bynkershoek appears to have mistaken the true sense of the above-cited passage from Grotius, in supports. posing that the latter meant to require, as a necessary ingredient in a strict blockade, that there should be an expectation of peace or of a surrender, when, in fact, he merely mentions that as an example, by way of putting the strongest possible case. But that he concurred with Grotius in requiring a strict and actual siege or blockade, such as where a town is actually invested with troops, or a port closely blockaded by ships of war, (oppidum obsessum, portus clausos,) is evident from his subsequent remarks in the same chapter, upon the decrees of the States-General against those who should carry any thing to the Spanish camp, the same not being then actually besieged. He holds the decrees to be perfectly justifiable, so far as they prohibited the carrying of contraband of war to the enemy's camp; "but, as to other things, whether they were or were not lawfully prohibited, depends entirely upon the circumstance of the place being besieged or not." So, also, in commenting upon the decree of the States-General of the 26th June, 1630, declaring the ports of Flanders in a state of blockade, he states that this decree was, for some time, not carried into execution, by the actual presence of a sufficient naval force, during

(b) "Sola obsidio in causâ est, car nihil obsessis subvehere liceat, sive contrabandum sit, sive non sit, nam obsessi non tantum vi coguntur ad deditionem, sed et fame, et aliâ aliarum rerum penuriâ. Si quid eorum, quibus indigeat, tibi adferre liceret, ego fortè cogerer obsidionem solvere, et sic facto tuo mihi noceres, quod iniquum est. Quia autem scire nequit, quibus rebus obsessi indigeant, quibus abundent, omnis subvectio vetita est, alioquin altercationum nullus omnino esset modus vel finis. Hactenus Grotii sententiæ accedo, sed vellem ne ibidem addidisset, tunc demum id verum esse, si jam deditio aut pax expectabatur, . . . nam nec rationi conveniunt, nec pactis Gentium, quæ mihi succurrerunt. Quæ ratio me arbitrum constituit de futurâ deditione aut pace? et, si neutra exspectetur, jam licebit obsessis quælibet advehere? imo nunquam licet, durante obsidione, et amici non est causam amici perdere, vel quoque modo deteriorem facere." Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 11.