that the port of destination, being an interdicted port, is the port of delivery of the cargo. If it were once admitted that a ship may enter an interdicted port to supply herself with water, or any other pretence, a door would be open to all sorts of frauds, without the possibility of preventing them (k). But where there was a contingent destination to a blockaded port, with an honest intention of coming to the belligerent country to procure a license, it was held that there was no ground to impute fraud (1).

The penalty attaches till the voyage is complete. A ship that has violated a blockade is liable to be seized on its return voyage. There can be no natural termination of the offence but the end of that voyage. It would be ridiculous to say, that if you can get past the blockading force, you are free. There is no other point at which the offence can be terminated, but the end of the return voyage. If a ship, that has broken a blockade, is taken in any part of that voyage, she is taken in delicto, and subject to confiscation (m). Where a vessel slips into an interdicted port, it is not till she comes out again that any opportunity is afforded of vindicating the law. It has been objected, that if the penalty is applied to the subsequent voyage, it may travel on with the vessel for ever. In principle, perhaps, it might not unjustly be pursued farther than the immediate voyage, but in practice it has not been carried farther than the voyage succeeding, which affords the first opportunity of enforcing the law (n). Where a vessel was driven into a port by stress of weather, it was held, that the voyage was not terminated; that it was impossible to consider this accident as any discontinuance of the

(k) The Exchange, Edw. 42.

(1) The Mercurius, Edw. 53.

(m) The Frederick Molke, 1 Rob. 86; The Welvaart Van Pillaw, 2 Rob. 128; The Adelaide, 2 Rob. 111, (n); The General Hamilton, 6 Rob. 61; Bynk. Q. J. P. i. xi.

(n) The Christiansberg, 6 Rob. 382; Parkman v. Allan, 1 Stair's Decisions, 529.

voyage, or as a defeasance of the penalty which had been incurred (o).

cannot be con

The penalty does not attach where there is no corpus delicti. Though there is mens rea, the parties are allowed the benefit of extrinsic circumstances turning out in their favour. Thus, where there was a design to violate a blockade, but before the vessel sailed the blockade was raised; it was held, that there was not that corpus delicti existing that would be necessary to draw upon them the penalties of the law (p). So, where the blockade is raised before the capture, a ship demned for the breach of a bygone blockade. The same reason for rigour does not exist, because the blockade being gone, the necessity for applying the penalty to prevent future transgression does not continue. It is true, that the offence incurred by a breach of blockade generally remains during the voyage; but that must be understood as subject to the condition, that the blockade itself continues. When the blockade is raised, a veil is thrown over every thing that has been done, and the vessel is no longer taken in delicto. The delictum may have been completed at one period, but it is by subsequent events entirely done away (q).

(0) The General Hamilton, 6 Rob. 61; Bynk. Q. J. P. i. xii. p. 214. (p) The Conferenzrath, 6 Rob. 362.

(9) The Lisette, 6 Rob. 387.

210

CHAPTER V.

OF CONTRABAND.

THE subject of contraband is to be considered with respect to the questions, First, What goods are contraband? Secondly, To whom and to what extent the penalty attaches? Thirdly, With respect to the conveyance of enemy's despatches? and Fourthly, The penalty thereof.

First, Grotius divides all articles of commerce into three classes, First, Those which are used only for purposes of war. Secondly, Those which have no military use, and are merely matters of luxury. Thirdly, Such as are of promiscuous use, being adapted either to military or to civil purposes. With respect to the first, he holds, that those who supply the enemy with the means of war must be considered as his adherents, so that articles of the first class are always contraband. Those of the second class are always innocent. Those of the third class he holds to be innocent or contraband, according to their destination and the circumstances of the war. In respect to the third class, he appears not to distinguish the doctrine of contraband from that of blockade (a), and in his time no settled rules were established by the usage of nations in relation to this matter (b).

With regard to the division itself, Bynkershoek has remarked, that it is not logically accurate, since there is nothing which belongs strictly to its first class. There is nothing

(a) Grot. iii. i. v.
(b) Grot. ibid. § 5.

so exclusively military, that it cannot be applied to civil uses. Swords may be worn as a part of civil dress, and gunpowder may be applied to purposes of sport, amusement, or public rejoicing, yet no one doubts that both are contraband. The matter therefore must be determined by reference to such distinctions as the usage of nations has established (c). Goods going to a neutral port cannot come under the description of contraband, inasmuch as all goods with a neutral destination are equally lawful (d). So it was held, that a cargo could not come under the description of contraband, which was innocently shipped on board a vessel, which sailed in bonâ fide ignorance of war (e). Nor can any question of contraband arise as to goods sold by neutrals in their own country and not conveyed in neutral vessels. A neutral may lawfully sell in his own country to a belligerent arms, ammunition, and other articles, which would be contraband on board a neutral vessel destined to a hostile port (f). But a person is not at liberty to carry to a hostile port a cargo containing, amongst other things, contraband articles with the intention of selling innocent commodities only, and of proceeding with the contraband articles to a neutral port (g). The transfer of contraband articles from one port of a country to another, where they are required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself (h).

Gunpowder, arms, and military equipments, and other things peculiarly adapted to military purposes, have been always contraband (¿), though, with respect to some of them, the right of pre-emption has been substituted in modern

(c) Bynk. Q. J. P. i. x.

(d) The Imina, 3 Rob. 167; Val. Tr. v. 6, ix.
(e) Jurgan v. Logan, 1 Stair's Decisions, 477.
(f) Bynk. Q. J. P. i. xxii; Kent Comm. i. 132.
(g) The Trende Sostre, 6 Rob. 390, (n).

(h) The Edward, 4 Rob. 68.

(i) Bynk. Q. J. P. i. x.

practice for that of confiscation, where they are the produce of the country exporting them. Thus sail cloth is universally contraband, even on a destination to ports of mere mercantile equipment (k). So of masts (1), anchors (m), pitch, and tar (n), and hemp (o). But pitch and tar bonâ fide intended for the ship's use as stores are not contraband. The bona fides is a question of evidence, whether the quantity found on board could really be intended for the ship's use. Persons are not, under pretence of a voyage round the world, to carry as much as they please of articles of this noxious nature and then sell them at different ports, where they may immediately become convertible to purposes of war. The term stores is to be liberally interpreted, but still it must be so understood as to be capable of something like a definitive construction (p). A ship peculiarly adapted to purposes of war is contraband as an article of commerce, if intended to be sold for hostile purposes. It cannot, under any point of view, but be considered as a very hostile act to be carrying a supply of a very powerful instrument of mischief, of contraband ready made up, to the enemy for hostile use (q). Thus, where a vessel in every respect fitted for a ship of war was sent on her first voyage to a belligerent port, with instructions to the master to sell her or take goods on freight, but that the owners would prefer selling to freighting, as she was not adapted to purposes of freight, the ship was condemned (r). But where ships of ambiguous use, and previously employed for purposes of trade,

(k) The Neptunus, 3 Rob. 108.

(1) Itaadt Embden, 1 Rob. 29; The Charlotte, 5 Rob. 305. (m) Per Cur. The Jonge Margaretha, 1 Rob. 189.

(n) The Jonge Jobias, 1 Rob. 329; The Neutralitet, 3 Rob. 295; The Twee Juffrowen, 4 Rob. 242; The Sarah Christina, 1 Rob. 237. (0) The Evert, 4 Rob. 354; The Apollo, 4 Rob. 158; The Richmond, 5 Rob. 325.

(p) The Richmond, 5 Rob. 334. (9) The Richmond, 5 Rob. 325. (r) The Brutus, 5 Rob. App. 1.