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Published online by Cambridge University Press: 04 May 2017
The doctrine of continuous voyages was developed by the English courts to defeat the devices by which American merchantmen endeavored to avoid the rule denying to neutrals in time of war the right to engage in a commerce from which they were excluded in time of peace. Under the system of colonial monopoly which then prevailed the trade with colonial possessions was confined to the ships of the home country. Colonists were regarded as the property of the mother country and as existing exclusively for her use and benefit. They were expected to supply markets for her manufactured goods and products for her markets. With respect to other countries colonies in a commercial sense had no existence. In theory, it has been said, the English colonies were no more to France than as if they were settlements in the mountains of the moon. For commercial purposes they were not on the same planet. Had they been annihilated it would have left no chasm in the commercial map of Germany. Had they been submerged the fact would have found its way into the chronicles of other countries as an interesting event but nothing more.
2 Brymer v. Atkins, 1 H. Black. 165, 191, Lord Loughborough. In Berens v. Rucker 1 W. Black. 314, Lord Mansfield said: “The rule is that if a neutral ship trades to a French Colony with all the privileges of a French ship and is thus adopted and naturalized, it must be looked upon as a French ship, and is liable to be taken. Not so, if she has only French produce on board, without taking it in at a French port; for it may be purchased of neutrals.”
3 Duer, Mar. Ins., vol. i, p. 762, n. 1; Madison’s Examination of British Claims; Madison’s Works, vol. 2, p. 226; Wheaton’s Note on the Rule of the War of 1756, 1 Wheat. (U. S.) App., p. 507; Pinckney’s review of the British proceedings in the Memorial of the Baltimore Merchants, Wheaton’s Life of Pinckney, p. 372; 1 Wheat. (U. S.) App., 506. For the British view, see The Practice of the British Prize Courts with Reference to the Colonial Trade of the Enemy during the American War, 6 C. Rob. App. iii. Jenkinson (Lord Liverpool), Discourse on the Conduct of Great Britain with Respect to Neutral Nations. This work was published in 1757, soon after the close of the war, and is apparently the only contemporaneous assertion of the principle or rule of the war of 1756.
Duer contends that the rule was not enforced in any form by the English admiralty prior to 1756, that as then enforced it was founded on a different principle from that subsequently adopted and that during and after the American war it was explicitly abandoned and over-ruled by the Lords of Appeal and by the House of Lords.
4 The claim of a right to prohibit all trade with an enemy had been definitely abandoned. See generally, Ward, Rights and Duties of Belligerents, p. 3; Jenkinson, Discourse, etc., p. 36; War with America, Edinburgh Review (Nov., 1812), vol. xx, p. 453; Hennebicq, Principes de Droit Maritime Comparé; Speech of Erskine on the Orders in Council, 10 Cobbett, Pari. Deb. 935. In the Immanuel, 2 C. Rob. 198, Scott’s Cases, 845, Sir William Scott said: “The general rule is that the neutral has the right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable.”
5 The Immanuel, 2 C. Rob. 186, Scott’s Cas. 845.
6 See the treaties in Manning, Law of Nations, p. 198.
7 See the statement of the Lord Chancellor in the Whilemina in the Court of Appeals (1801), 4 C. Rob., App. xi.
8 Henry Adams, History of the United States, vol. iii, p. 47.
9 Monroe to Lord Mulgrave, Sept. 23, 1805, Madison’s Examination of British Doctrine, etc.; Pinckney’s Memorial to Congress from the Merchants of Baltimore, 1 Wheat. (U. S.), App., p. 507; Wheaton’s Life of Pinckney, p. 72; Monroe to Madison, Aug. 20, 1805; State Papers, vol. iii, 105.
10 The Commercen, 1 Wheaton (U. S.) 398.
11 Kent’s Commentaries, vol. i (12th ed.), p. 84.
12 Story, Life and Letters of Joseph Story, vol. i, p. 287.
13 Wheaton, Elements Int. Law (Dana’s ed.), pt. iv, chap. 3, §27.
14 Bluntschli, Le Droit Int. Codifié, §§799, 800. See Calvo, Le Droit Int., tom iv, §2410.
“La règle de 1756 a été déclarée contraire aux principes internationaux par tous les publicistes modernes de quelque autoritié en Allemagne et en France, par Bluntschli, Gesener, Geffcken, Kalterborn, Perels, De Boeck, Hautefeuille, Ortolan, par Calvo, par Wheaton, etc.” Bonfils, Man. de Droit Int. Pub. (4 ed. Fauchille), §1534, p. 822 (1905).
“Néanmoins, cette prétention est purement arbitraire; se livrer à un commerce inoffensif qu’un des belligérants permit, n’est pas un manque d’impartialité, et c’est tout aussi peu une inmixtión dans les hostilités. C’est ce commerce des colonies qui a donné naissance à la théorie de la continuité de voyage.” (Geffcken’s Heffter, Le Droit Int., §166 note.)
15 De La Saisie des Batiments Neutres, tom. i, chap. 4, §6 (1759). The author of this work was sent by the Danish government to protest against the condemnation of the Dutch ships engaged in the trade with the French colonies. This book was the result of his mission. As to the author’s attitude toward the claims of neutrals and belligerents, see Valin, Traité des Prises, chap, v, §5.
16 For comments upon this passage, see Phillimore, Int. Law, vol. iii, §221; Manning, Law of Nations, 199, 200.
17 Gessner, Le Droit des Neutres, pp. 266, 275. See Rivier, Principes du Droit des Gens., tom. 2, p. 411.
18 Manning, Law of Nations, p. 198.
19 Hall, Int. Law (4th ed.), p. 642.
20 “Nor is it easy,” says Hall, “to see that the question has necessarily lost its importance to the degree which is sometimes thought. The more widely the doctrine is acted upon, that enemy’s goods are protected by a neutral vessel the more necessary it is to determine whether it ought to be governed in a particular case by exceptional considerations.” (Int. Law (4 ed.), p. 663.)
“The importance of the rule—vindicated again and again, as it was by Sir Wm. Scott—has been vastly decreased by the adoption in the declaration of Paris of the principle of the freedom in all cases of the neutral flag. But the neutral flag cannot save the blockade runner or the contraband trader; though the operation of the rule of 1756 is minimized, the principle is sound. Neutral trading now as always is subjected to the over-riding condition of abstention from active assistance of a belligerent; and if in the forgotten corners of the earth there be any commercial operation which is forbidden to foreigners in time of peace, these foreigners can have no sound ground for complaint should the opposing belligerent deny in time of war the privilege which the home state would, in the hour of its exigency, now accord.” (Walker, Science of Int. Law, p. 261.)
Other writers regard the principle as dead and buried.
21 Leslie Stephen, Life of J. F. Stephen, p. 19.
22 The Immanuel, 2 C. Rob. 186, Scott’s Cases, 845. See also an article in London Quarterly Rev., vol. vii, p. 6; Lyman’s Diplomacy of the U. S., vol. ii, chap. 1; Wharton, Int. Law Dig., vol. iii, §388, p. 501.
23 The Maria, 5 C. Rob. 365 (1805).
24 The Polly, 2 C. Rob. 361 (1800).
25 The Essex, 5 C. Rob. 369 (1805); Duer, Mar. Ins., vol. i, p. 726.
26 The William, 5 C. Rob. 395 (1806); Scott’s Cas. 848. See also the statement of the doctrine in the Thomyris, Edwards 17. The cases in which the doctrine was applied are reviewed in Wildman’s Int. Law, vol. 2, p. 65, et seq. In the Bermuda, 3 Wall (U. S.), 514, 554, Chief Justice Chase said that Sir William Grant in the William established the rule which has never been shaken that even the landing of goods and payment of duties does not interrupt the continuity of the voyage of the cargo, unless there be an honest intention to bring them into the common stock of the country. If there be an intention formed either at the time of the original shipment or afterward to send the goods forward to an unlawful destination the continuity of the voyage will not be broken as to the cargo by any transaction at the intermediate port. See also Opinions of the Attorneys-General of the U. S., vol. i, pp. 359–362, 394–396. Atty. Gen. Wirt, while condemning the rule, approves as just in the abstract, the English principle of the continuity of voyages.
27 The Imina, 3 C. Rob. 167; Scott’s Cas. 776.
28 Introduction to Takahashi’s Int. Law during the Chino-Japanese War, p. xx. It is suggested that Lord Stowell did not regard a neutral destination of the ship as conclusive against the condemnation of contraband goods on board.
29 In Smith & Sibley’s Int. Law as interpreted during the Russo-Japanese War, p. 236, it is said: “It may, of course, be properly pointed out that the application of the doctrine of continuous voyages to the conveyance of contraband is hardly consistent with one of the best known of Lord Stowell’s judgments, the Imina. But the case of the Eagle can be reconciled with even this last case, if it be treated as a case of a vessel with a false destination. There would appear to be considerable analogy between sailing under false papers from a neutral port to a belligerent port and sailing from a neutral (or belligerent) to a belligerent port via an interposed neutral port. There is the same fraud practiced on the other belligerent, and it is essential to recollect, as appears from Lord Stowell’s judgments, that the ground of condemnation in the prize court of a belligerent is the fraud practiced on him under the neutral’s flag.”
30 The Commercen, 1 Wheat. (U. S.) 382.
31 Jecker v. Mongomery, 18 How. (U. S.) 110. See also 18 How. (U. S.) 198. The idea that this case turned upon the construction of an act of Congress, and therefore “has nothing to do with the matter of continuous voyages” is without foundation. The point is that the court announced its adherence to the doctrine.
32 Calvo, Le Droit Int. (4 ed.), tom. v, §§1961, 2767, where the judgment is printed in full. See also Revue de Droit Int., tom. xxi, p. 55.
33 The Adula, 176 U. S. 361.
34 Moore, Int. Arb., vol. i, p. 580; Int. Law Solutions (Naval War Col.), 1901, p. 42.
35 Official Records of the Union and Confederate Navies, Ser. 1, vol. i, p. 417. These instructions applied the doctrine in regard to captures which had been announced by the government of the United States at a very early date. On Feb. 1, 1782, the congress of the confederation declared it lawful to capture and condemn “all contraband goods, wares and merchandise to whatever nations belonging, although found in a neutral bottom, if destined for the use of an enemy.”
36 The Dolphin, 7 Fed. Cas. 864 (1863).
37 The Pearl, 19 Fed. Cas. 54; affm. 5 Wall. (U. S.) 578.
38 The Stephen Hart, Blatchf. Prize Cas. 387.
39 The Hart, 3 Wall. (U. S.) 559.
40 The Circassian, 2 Wall. (U. S.) 135. Mr. Justice Nelson dissenting, on the ground that at the time of the capture of the ship the blockade of the port of New Orleans had been raised. The mixed commission, the American commissioner dissenting, subsequently awarded compensation to the owners. (Moore, Int. Arbs., vol. iv, 3911, 3920, 3922.)
41 The Bermuda, 3 Wall. (U. S.) 514; Moore Int. Law Dig., vol. vii, §1259.
42 The Peterhof, Blatchf. Prize Cas. 463, 5 Wall. (U. S.) 28
43 The Volant, 5 Wall. (U. S.) 179: the Science, 5 Wall. (U. S.) 178.
44 The Springbok. Blatchf. Prize Cas. 434 (1863).
45 The invocation of the proofs in the Hart and the Gertrude has been criticised. See Twiss, Law Mag. and Rev. (4 ser.) 1, quoting from the brief of Mr. Evarts, counsel for the claimants before the mixed commission. It was argued by counsel, when the Springbok was before the Supreme Court, that invocation was permissible only after further proof ordered. In reply it was said that no case decided that a decree would be reversed because invocation had been made on the original hearing. The court admitted that the procedure was not strictly regular but held that the matter was within the lawful exercise of the discretion of the court. See Davis, Les Tribunaux des Prises des États-Unis. The British foreign office was of the opinion that these records were “properly invoked.”
46 The Juffrow, 1 C. Rob. 127; the Argo. 1 C. Rob. 158; the Nancy, 3 C. Rob. 122; the Rosalie and Betty, 2 C. Rob. 343; the Experiment, 8 Wheat. (U. S.) 261. Judge Betts also cited Mosely on Contraband, p. 99, for the rule that the known character of the owners and agents of a vessel as connected with the contraband trade is a circumstance to be considered in determining whether there is sufficient reason to doubt the regularity of the ship’s papers as to justify the court in disregarding them.
47 The Springbok, 5 Wall. (U. S.) 1 (1866).
48 Correspondence, Miscellaneous (1900), Nos. 1, 27, 28, 31, 33. See Hansard, 3 ser., vol. cixx, cols. 1834–5. Debate in House of Lords, May 18, 1863.
49 Mr. Mellish, afterward Lord Mellish, and Sir Vernon Harcourt (Historicus). In this opinion it is said that “the Supreme Court have in their opinion justly stated that the real question upon which the condemnation must turn is the original destination of the cargo.” Moore, Int. Law. Dig., vol. vii, p. 723. In his juridical review of the Springbok case, Dr. Gessner states that the British foreign office shortly after the seizure of the bark Springbok laid the case before the law officers of the crown and were advised that the seizure was null and void.
This opinion is quoted in Wharton, Int. Law Dig., vol. vi, §362. p. 394, and by Desjardin, 59 Revue des Deux Mondes, 218. Arecent writer in the Law Quart. Kev., vol. 17, lxv, p. 24 note, states that he has been unable to find any record of the opinion.
50 British and American Claims Commission; Art. xii of the treaty of Washing ton; Moore, Int. Arbs., vol. iv, p. 3928; Hale’s Report, p. 117 ;vol. 3, For. Rel., 1873; Blue Book, North America, No. 2 (1874); Brief of Mr. Evarts, Department of State.
51 Belligerent Rights on the High Seas since the Declaration of Paris (1884). This paper was read before the Antwerp meeting (1877) of the Association for the Reform and Codification of the Law of Nations, and is also printed in Law Mag. and Rev., vol. iii (4th ser.), p. 12.
The statement that the opinion in the Springbok case was by a majority of the court is an error. There was no dissent.
52 Phillimore, Int. Law, vol. iii, p. 490.
53 Halleck’s Int. Law, vol. ii (Baker’s ed.), p. 219. In a later work, entitled First Steps in Int. Law, p. 310, Baker says: “It is a most unfortunate decision * * * vessels are captured while on their way from one neutral port to another and were condemned not for what they had done, which was prima facie innocent, but on the suspicion of an intention to do an unlawful act.”
54 Hall, Int. Law, 4th ed., p. 695 note. ”Of course, the analogy of ‘continuous colonial voyages’ is nil ad. rem.,” says a recent writer in Jour, of Soc. of Com. Leg. (n. s.), vol vi, p. 204. Lawrence (Int. Law, p. 597) says: “Putting aside disputes as to fact, the statements of law involved in the decision are open to grave doubt. If a belligerent may capture a neutral vessel honestly intended for a neutral port, and condemn her cargo because he vaguely suspects it will be transferred to some vessel unknown to him and sent to some hostile destination also unknown to him, a new disability has been imposed upon neutral commerce. States at war will in future be able to establish what has well been called a blockade by interpretation of any neutral port situated near the coast of an enemy. * * * Its authority has been seriously impaired by this chorus of disapproval. The utmost that can be allowed is that, if the captors have clear and definite proof that the destination of the cargo is hostile while that of the vessel is neutral, the courts may separate between the two and condemn the former while releasing the latter. Further it is impossible to go without inflicting great injustice on neutral trade.” As this distinction was made by the Supreme Court in the Springbok case, the force of the criticism is not apparent. For similar statements, see Walker, Science of Inter. Law, p. 514, and Walker’s Manual of Pub. Int. Law, p. 209; Taylor Int. Law, § 683.
55 Creasy, First Platform of Int. Law, p. 624.
56 Bernard, The Neutrality of Great Britain during the American Civil “War, p. 320. In the British Manual of Naval Prizes (1866), the editor, Mr. Lushington, after stating that in this volume the destination of the vessel had been treated as conclusive evidence of the destination of the goods, contrary to the claim of the belligerents, said: “Judged by principle the view of the belligerent seems correct. A neutral vessel which forwards munitions of war on their way to their ultimate destination to one of the belligerents is really aiding and abetting in the war and this on the high seas.” The same statement of the rule appears in the Naval Prize Manual of 1888. But Professor Holland, the editor of the last edition, regards the rule as obsolete. See statement of Lord Salisbury, infra.
57 Woolsey, Int. Law (6 ed.), p. 536.
58 Davis, Les Tribunaux de prises des États-Unis, Paris (1878). See Snow, Int. Law (2d ed.), p. 160.
59 Wheaton, Int. Law (Dana) §598, note 231. See also the pamphlet by Historicus on The Nassau Trade, pp. 33–40 (1863).
60 Wharton, Int. Law Dig., vol. iii, §363, p. 404. See also an article in the Independent, June 10, 1889, on Patches on the Constitution. Reprinted in the Dip. Corres. of the Am. Rev., vol. i, p. xxvii.
61 Calvo, Le Droit Int. (4 ed.), tom. v, p. 43, where the views of many writers are stated. “C’est la destination ennemie qui décide: En principe il n’y a pas de la contrebande entre ports neutres mais il ne faut pas qu’en observant la lettre de ce principe on en blesse l’esprit, * * * on ne peut donc, dans le cas de contrebande, rejeter l’application de la théorie de la continuité de voyage comme dans la question du blocus. La contrebande est soumise à la capture dès qu’elle a quitté le port neutre à destination d’un port ennemi, qu’elle soit expédiée directement ou par voie détournée; ‘dolus circuitu non purgatur.’ ” (Geffcken, Heffter (4th ed. French), p. 392 note 2.)
62 Fiore, Le Droit Int, tom. iii, §1649, by Antoine.
63 Gessner, Rev. de Droit Int., tom. vii, p. 236. See Woolsey, Int. Law, p. 357, citing Nord Deutsche Alleg. Zeit, of Dec. 29/30 (1868). In Le Droit des Neutres Sur Mer, p. 137, Dr. Gessner says: “Le transport des articles de contrebande n’est permissible suivant les principes que nous croyons juste que lorsque le vaisseau neutre est saisi en pleine mer, et que la destination pour l’ennemi des marchandises qu’il porte ne fait l’objet d’aucun doute. Une fois la destination bien déterminée, il est parfaitment indifférent que le vaisseau neutre se rende dans un port neutre d’où la contrebande de guerre doit être transportée dans un port belligérant, ou que les destinataires prennent possession de la marchandise dans le port neutre. Le lieu de destination n’a aucune importance; tout dépend de la destination elle-même, du fait que la marchandise est, ou n’est pas, destinée à un belligérant; du fait que l’on ne peut pas déduire des circonstances qu’elle sera appliquée aux besoins de la guerre.”
64 “Si les navires ou marchindises ne sont expédiés à destination d’un port neutre que pour mieux venir en aide à l’ennemi il y aura contrebande de guerre et la confiscation sera justifiée.” Droit Int. Codifié (Lardy’s ed., 1895, §813). Bluntsehli condemned the doctrine applied to the law of blockade. See §835 note.
65 Perels, Das Internationale Oeffentliche Seerecht, p. 259, French ed., p. 278.
66 In a paper read before the International Law Association at the 1905 Session, Dr. Thomas Baty says: “One cannot feel satisfied with Pillet’s permission to belligerents to contradict the ship’s papers purporting to show a neutral destination, by evidence ab extra. Such a permission immediately renders nugatory the freedom which a neutral is formally accorded. Pillét, moreover, adopts the curious view that, if the destination of goods is a neutral port, they cannot be contraband, even if they are meant to go overland to the enemy; whilst if the immediate destination is a neutral port, but they are meant to be eventually carried on to a hostile one by sea, they are capable of condemnation. If he means that if they have a through bill of lading to the enemy’s port they may be confiscated, there may be little objection to the proposition, Otherwise there seems no reason in the nature of things why a conjectural voyage by water should be any more taken into account than a conjectural voyage by land. (Lois de le Guerre, §§216, 217.) Pillét follows Gessner, Phillimore and Perels in his theoretically satisfactory but practically fatal concession, Dcsj ardine does not seem to go so far; he allows the belligerent to make a capture when the ostensible neutral destination is a mere blind.”
See Théorie du Voyage Continue. Paul Fauchille, Rev. de Droit Int. et Pub., tom. iv, p. 297.
67 Fauchille, Du Blocus Maritime, §335 ff.
68 Remy (Théorie de la Continuité du Voyage, etc.) states that the case of the Springbok was decided by the Supreme Court of New York. Fiore is also a trifle vague as to the identity of the court. (Nouveau Droit Int. Pub. (Antoine), tom. iii, §§1648, 1649.)
69 Kleen, Lois et Usages de la Neutralité, tom. i, p. 638 (1898). If there is any justification for this disparaging reference to the Supreme Court of the United States it must be found in the letter which it was claimed was written by Mr. Justice Nelson to William Beach Lawrence, in which the justice is said to have stated “that the Supreme Court was not familiar with the law of blockade at the time when the appeal in the case of the Springbok came before it, and that the minds of several of the judges were warped by patriotic sentiments and by resentment against England.” The letter is printed in Law Mag. and Rev., 4 ser., vol. iii, p. 31, and has been referred to by all who were dissatisfied with the decisions. See also North Am. Rev., July-Aug., 1878, article by Wm, Beach on International Obligations. There is nothing remarkable possibly in the fact that a dissenting judge should feel that the majority of the court were ignorant of the principles of the law which they announced. Mr. Justice Nelson dissented in the case of the Circassian upon the ground that the blockade of New Orleans had been raised before the vessel was captured. He did not agree with the majority of the court as to what constituted a blockade, but he concurred with the other justices in all the decisions of the Supreme Court which announced and applied the doctrine of continuous voyages and continuous transport. It has been frequently assumed that he dissented from the opinion in the case of the Springbok. There were no dissenting opinions in any of the cases except as stated in the case of the Circassian.
As said by Judge Baldwin, in his inaugural address as President of the International Law Association, perhaps this particular criticism is sufficiently answered by similar ulings which have been made by the prize courts of France and Italy.
70 “Ludicrous,” “absurd” and “attenuated,” used adjectively seem to be the favorite argument. See “Recrudescence of Belligerent Rights.” Proceedings Int Law Assoc, 1905, p. 129.
71 The Atalanta, 6 C. Rob. 440, 458 (1808).
72 In the cases of the Susan and the Hope (the Caroline, 6 C. Rob., 641 note) neutral American vessels were condemned by Sir Wm. Scott for carrying on voyages from Bordeaux official dispatches destined to French authorities in the West Indies. In neither case does it appear to have been alleged that the apparent destination of the vessel was not her true and final destination, or that she was especially employed by the French government. Nevertheless it was held that the transportation of the dispatches toward their belligerent destination was an unneutral and a prohibited service. (Noted in Moore, Int. Law Dig., vol. vii, p. 727.)
73 Geffcken, Chine et le Droit Int., Revue de Droit Int. et de Légis. Com., tom. xvii, p. 148.
74 For the decision of the Italian prize court, see Ruys v. Royal Exchange Assur. Co., 2 Com. Cas. 201, and Journal de Droit Int. Privé, pp. 850–878. Archives Diplomatique, torn, i, p. 81 (1897). See generally Brusa, L’affaire de Doelwijk, Droit, Revue Générale deInt. Pub., tom. iv, p. 157 (1897)Google Scholar; Diena, , Le Judgment du Conseil des Prises d’Italie dans l’Affaire du Doelwijk, Journal du Droit Int. Priv., tom. xxiv, pp. 268, 275 (1897)Google Scholar; Despagnet, , Le Conflit entre Italie et Abyssinnia, Revue Gén. de Droit Int. et Priv., tom. iv, p. 39Google Scholar; Remy, Théorie de la Continuité du Voyage, p. 62; Kleen, Lois et Usages de la Neutralité, tom. ii, p. 662; Bonfils, Manuel de Droit Int. Pub. (Fauchille), §1707; Pillét, Lois Actuelles de la Guerre, §216, p. 329; Fedozzi, , Revue de droit Int., tom. 29, p. 49 (1897)Google Scholar.
75 Annuaire de I’Institute de Droit Int., tom. xv, p. 231.
76 Takahaski, the legal adviser to the Japanese admiralty, cites the case of the Hart as “an established precedent,” and remarks that, “Anyone with common sense can soon deduce that if Japan had admitted all neutral vessels to be exempt from the enforcement of belligerent rights simply because they were ostensibly going to Hong-Kong, which is in its geographical position actually a part of China, then all neutral vessels would have been exempt from capture even though they carried contraband of war.” (Int. Law During the Chino-Japanese War, p. 62.)
77 See Revue de Droit Int., tom. vii, p. 259.
78 Takahaski, Int. Law. During the Chino-Japanese War, Intro. Note by Prof. Westlake. Reprinted in Law Quart. Rev., vol. xv, p. 3. In Professor Westlake’s opinion the search of the Gallic could not be justified on the doctrines relating to contraband of war.
79 Correspondence on the Seizure of the Bundesrath, South Africa, No. 1 (1900) ; The seizure of the Bundesrath by White, J. Dundas, Law Quar. Rev., vol. 17. lxv, p. 12Google Scholar; Contraband Goods and Neutral Ports, by Hart, E. L. de, Law Quar. Rev., vol. 17, lxvi, p. 193Google Scholar (a reply to the foregoing article); Baty, Int. Law in S. Africa, pp. 1–44; Desjardins, Rev. des Deux Mondes, March, 1900, p. 61. Int. Law Situations (Pub. Naval War College), p. 79.
80 The Times, Jan. 3, 1900. The latest edition of the Manual of Naval Prize Law prepared by Professor Holland states the rule as follows, “The ostensible destina tion of a vessel is sometimes a neutral port while she is in reality intended after touch ing and even loading and colorably delivering over her cargo there to proceed with the same cargo to an enemy’s port. In such a case the voyage is held to be con tinuous and the destination is held to be hostile throughout.”
81 Ruys v. Royal Exchange Co., 2 Com. Cas., 201; also (1890) 2 Q. B., 135.
82 Hobbes v. Henning, 17 C. B. (n. s.) 791.
83 Phillimore, Int. Law, vol. iii, p. 397; Westlake, Law Quar. Rev., vol. xv, p. 28.
84 41 L. J. N. S. C. P. affm. in Exchequer Chamber, 42 L. J. N. S. C. P. Ill note.
85 Rev. de Droit Int., tom. xiv, p. 328 (1882). The conclusions of the committee are printed in Rivier, Principes du droit des gens, tom. 2, p. 433, in Moore, Int. Law Dig., vol. vii, p. 731.
86 La destination pour l’ennemi est présumée lorsque le transport va à l’un des ses ports, ou bien à un port neutre qui d’après des preuves évidentes et des fait incontestables n’est qu’un étape pour l’ennemi comme but final de la même opération commerciale.” (Annuaire de l–Institute de Droit Int., tom. xv, p. 231.)
87 Two Centuries of American Law, p. 551, International Law, by Prof. T. S. Woolsey.
88 Holland, Prize Law, §133; United States Naval Code, Art. 42; Taylor, Int. Law, p. 769; Oppenheim, , Int. Law, vol. ii, p. 413Google Scholar; Bulmerincq, , Revue de Droit Int., tom. x, p. 240Google Scholar; the Betsy, 1 C. Rob. 34.
89 Calvo, Le Droit Int., tom. v, §2846, et seq; Pistoye & Duverdy, Traité des Prises Maritimes, tom. i, p. 370.
90 Bonfils, Manuel de droit Int. public (4 ed.), §1665; De Boeck, De la Propriété Privée, §175; Geffcken, Heffter, Le droit Int. (4th ed. French), p. 379, note 9; Depuis, Le Droit de la Guerre Maritime, §194–5; Pillét, Les Lois Actuelles de la Guerre, §216.
91 Taylor, Int. Law, p. 680. The ship cannot be admitted to even approach the blockaded port for the purpose of inquiry. The Irene, 5 C. Rob. 390. For an extreme application of this principle, see the Adula, 176 U. S. 361, and the comments of the defeated counsel thereon in report of the Universal Congress of Lawyers and Jurists, 1904, pp. 248–250.