blockade is known to the owner of the cargo, the shipper is his agent. If this rule were not adopted, there would be no end of shipments made during a blockade; while there would be nobody at all answerable for such acts of misconduct (d). If the cargo was going to a blockaded port, in consequence of a breach of faith in the agents or the master, the merchant must indemnify himself by recourse against the wrongdoer (e). So, where the master is consignee of the cargo (ƒ). So, where there was a supercargo on board, and after due warning the master, in a continued state of intoxication, refused to alter his course, and the supercargo took no step to compel him to do so, but suffered the vessel to proceed on the interdicted course, and relied only on a secret intention in his mind to dispossess the master before he actually got into port. It would be a dangerous doctrine to hold, that a master, in a state of intoxication, might be permitted to go on for the blockading port, and that the supercargo might lie by, and then come and plead the intoxication of the master, and exculpate himself by stating a mere intention to dispossess him, and to steer another course (g).

A fraudulent deviation towards a blockaded port, accompanied with false excuses, such as wanting a pilot, or water, or provisions, or to ascertain the land, is conclusive against the owner of the cargo. When such excuses are false, a presumption necessarily arises, that it was for the delivery of the cargo that such a fraud had been attempted; since there is scarcely any other adequate motive which can be supposed to induce a master to hazard the interests of his vessel, the motives that he has assigned being demonstrated to be false. There is a presumption likewise in such cases, that it is done with

(d) The Juffrow Maria Schroeder, 3 Rob. 158; The Hurtige Hane, 3 Rob. 325; The Tutela, 6 Rob. 177.

(e) The Exchange, Edw. 40.

(f) The Elizabeth, Edw. 198.
(g) The Shepherdess, 5 Rob. 266.

the knowledge and at the instigation of the owner of the cargo; because, although it is not an impossible thing that a master may be guilty of barratry, it is not a natural conduct, nor what is gratuitously to be supposed. The effect of the presumption is not merely to operate as matter of evidence in concurrence with other proofs, but to exclude all contrary averment. Although it is possible that a master should commit barratry in a case of this kind, yet the owner cannot be permitted to go into proof upon this point, on account of the fraudulent abuse to which such a liberty must inevitably lead; since it would be perfectly easy at any time to set up the pretence, and equally impossible on the other side to detect it. The ordinary test would be letters to correspondents elsewhere, and insurances; measures wholly in the power of the parties, and capable of being made, at their pleasure, a complete recipe for a safe traffic with a blockaded place. When this consequence is duly weighed on one side, and when it is considered on the other what few inducements a master can have to go to any other port than that at which his charterparty binds him to deliver his cargo, and particularly to a blockaded port, less injustice will be done by adopting this rule, than by permitting the freighter to distinguish, by external and collateral evidence, the destination of his cargo from that of the master (h). Where a ship is going into a blockaded port on a frivolous pretence, it would be impossible to maintain a blockade, which is directed more against the cargo than against the ship, if the Court did not draw the inference that a ship going on fraudulently is going in the service of the cargo, with the knowledge and by the direction of the owner. If any inconvenience arises to the claimants of the cargo from this necessary conclusion, the owners of the vessel, or the master, are the persons to whom they must look for indemnification (i). It is a clear and inflexible principle,

(h) The Adonis, 5 Rob. 256.

(1) The Alexander, 4 Rob. 93; 1 Kent Comm. (1st ed.) 141.

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)

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 cannot be condemned 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.

(4) The Lisette, 6 Rob. 387.

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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.