not every steamer that had a bag of letters on board, but a steamer flying the German mail flag.

On the other hand, the German Government substantially modified its original position with regard to the questions of international law involved. In a note to Lord Salisbury, of January 4, 1900, Count Hatzfeldt, German ambassador at London, declared it to be the opin ion of his Government that prize proceedings in the case of the Bundesrath were not justified, for the reason that, no matter what may have been on board, "there could have been no contraband of war, since, according to recognized principles of international law, there can not be contraband of war in trade between neutral ports." He also declared this to be the view taken by the British Government in 1863 as against the judgment of the American prize court in the case of the Springbok; and by the British Admiralty in the Manual of Naval Prize Law, in 1866.

Lord Salisbury, in his reply of the 10th of January, pointed out the error of the German Government as to the case of the Springbok. As to the Manual of Naval Prize Law, he declared that, while its directions were for practical purposes sufficient for wars such as Great Britain had waged in the past, they were "quite inapplicable to the case which has now arisen of war with an inland state, whose only communication with the sea is over a few miles of railway to a neutral port." He also adverted to the fact that the author of the Manual, in another part of the work than that cited, had discussed "the question of destination of the cargo, as distinguished from destination of the vessel, in a manner by no means favorable to the contention advanced in Count Hatzfeldt's note," and that Professor Holland, who edited a revised edition of the Manual in 1888, had, in a recent letter in The Times, expressed an opinion altogether inconsistent with that which the German Government had endeavored to found on its words. Lord Salisbury stated that, in the opinion of Her Majesty's Government, the passage cited from the Manual "that the destination of the vessel is conclusive as to the destination of the goods on board," could not apply to "contraband of war on board of a neutral vessel if such contraband was at the time of seizure consigned or intended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy's country," and that the true view in regard to such goods, as Her Majesty's Government believed, was correctly stated by Bluntschli, as follows: "If the ships or goods are sent to the destination of a neutral port only the better to come to the aid of the enemy, there will be contraband of war and confiscation will be justified."

a

• Si les navires ou marchandises 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, ed. 1874, § 813.)

In his speech in the Reichstag, January 19, 1900, announcing the arrangement with Great Britain, Count von Bülow laid down certain propositions as constituting a system of law which should be operative in practice, and a disregard of which would constitute a breach of international treaties and customs. One of these propositions was that by the term contraband of war "only such articles or persons are to be understood as are suited for war, and at the same time are destined for one of the belligerents." Count von Bülow added that the Imperial Government had striven from the outset to induce the English Government, in dealing with neutral vessels consigned to Delagoa Bay, " to adhere to that theory of international law which guarantees the greatest security to commerce and industry, and which finds expression in the principle that, for ships consigned from neutral states to a neutral port, the notion of contraband of war simply does not exist. To this the English Government demurred. We have reserved to ourselves the right of raising this question in the future, in the first place, because it was essential to us to arrive at an expeditious solution of the pending difficulty, and, secondly, because, in point of fact, the principle here set up by us has not yet met with universal recognition in theory and practice." a

Contemporaneously with the British-German controversy a question arose between the United States and Great

American cases. Britain as to the seizure of various articles shipped at New York, some of them on regular monthly orders, by American merchants and manufacturers on the vessels Beatrice, Maria, and Mashona, which were seized by British cruisers while on the way to Delagoa Bay. These articles consisted chiefly of flour, canned meats, and other food stuffs, but also embraced lumber, hardware, and various miscellaneous articles, as well as quantities of lubricating oil, which were consigned partly to the Netherlands South African Railway, in the Transvaal, and partly to the Lourenço Marques Railway, a Portuguese concern. It was at first supposed that the seizures were made on the ground of contraband, and with reference to this possibility the Government of the United States declared that it could not recognize their validity "under any belligerent right of capture of provisions and other goods shipped by American citizens in ordinary course of trade to a neutral port.”

It soon transpired, however, that the Beatrice and Mashona, which were British ships, and the Maria, which, though a Dutch ship, was at first supposed to be British, were arrested for violating a munici

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

Mr. Hay, Sec. of State, to Mr. Choate, ambassador at London, tel., Jan, 2, 1900, S. Doc. 173, 56 Cong. 1 sess. 13-14.

c S. Doc. 173, 56 Cong. 1 sess. 16.

H. Doc. 551-vol 7-48

pal regulation forbidding British subjects to trade with the enemy, the alleged offense consisting in the transportation of goods destined to the enemy's territory. The seizure of the cargoes was declared to be only incidental to the seizure of the ships. As to certain articles, however (particularly the oil consigned to the Netherlands South African Railway, in the Transvaal), an allegation of enemy's property was made; but no question of contraband was raised, and it was eventually agreed that the United States consul-general at Cape Town should arrange with Sir Alfred Milner, the British high commissioner, for the release or purchase by the British Government of any American-owned goods, which, if purchased, were to be paid for at the price they would have brought at the port of destination at the time they would have arrived there in case the voyage had not been interrupted."

In the course of the correspondence Lord Salisbury thus defined the position of Her Majesty's Government on the question of contraband:

"Foodstuffs, with a hostile destination, can be considered contraband of war only if they are supplies for the enemy's forces. It is not sufficient that they are capable of being so used; it must be shown that this was in fact their destination at the time of the seizure.”

Mr. Thomas Gibson Bowles, in a letter in the London Times, January 4, 1900, says: "In July, 1896, the Dutch steamer Doelwijk took a cargo of arms and ammunition, destined to Abyssinia, then at war with Italy, from the neutral port of Rotterdam to the neutral (French) port of Jibutil, in the Gulf of Tajura. The steamer being captured by the Italian cruiser Etna and brought in for adjudication, was condemned as lawful prize by the prize court at Rome on December 8, 1896." e

VI. PENALTY.

§ 1263.

By the law of nations at the close of the eighteenth century the act of carrying materials of war to a belligerent was regarded as a wrong for which vessel and cargo were liable to condemnation.

The Atlantic (1901), 37 Ct. Cl. 17.

The court further observed, in this relation, that the mere presence of a contraband article on board without proof or indication that the owners knew the vessel was carrying contraband would justify only

a Mr. Hay, Sec. of State, to Mr. Toomey, March 2, 1900; to the Ballard & Ballard Co., March 9, 1900; to Mr. Newman, March 13, 1900; 243 MS. Dom. Let. 317, 412, 488.

b S. Doc. 173, 56 Cong. 1 sess. 29.

c S. Doc, 173, 56 Cong. 1 sess. 20-22.

the seizure of the article, but that if a substantial part of the cargo (e. g., 38 horses on a vessel of 85 tons burden) was contraband, the presumption was that the cargo was to aid a belligerent.

Where, however, there were only 5 horses on a 98-ton vessel, the rest of the cargo consisting of cattle and fowls, an intended military use was not presumed. (The Juno, 38 Ct. Cl. 465.)

April 16, 1814, the Swedish ship Commercen, while on a voyage from Limerick, Ireland, to Bilbao, Spain, was captured by an American privateer. Her cargo consisted of corn, shipped under the special permission of the British Government for the use of British forces in Spain. The cargo was condemned, but the ship was restored with an allowance of freight. Against this allowance the captor appealed, and the decree as to freight was reversed by the circuit court. From this sentence an appeal was taken to the Supreme Court, which held that, as the voyage of the vessel was illicit and inconsistent with the duties of neutrality, the penalty of loss of freight was properly imposed.

The Commercen (1816), 1 Wheat. 382.

The court said: "The general rule that the neutral carrier of enemy's property is entitled to his freight, is now too firmly established to admit of discussion. But to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence, the carrying of contraband goods to the enemy; the engaging in the coasting or colonial trade of the enemy; the spoliation of papers, and the fraudulent suppression of enemy interests, have been held to affect the neutral with the forfeiture of freight, and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy, and a breach of blockade, the penalty of confiscation of the vessel has also been inflicted."

See a note by Wheaton to this case, on the question of penalty for carrying contraband, 1 Wheat. 394.

The carriage of contraband goods does not subject the vessel and remaining cargo to confiscation, unless they all belong to the same owner, or unless there has been some actual cooperation in an attempted fraud upon the belligerent, by covering up the voyage under false papers, and with a false destination. When the contraband goods have been deposited at the port of destination, neither the vessel nor the cargo is liable to seizure on the return voyage, though the latter may have been purchased with the proceeds of the contraband.

The same rule would seem to apply, by analogy, to cases where the contraband articles have been deposited at an intermediate port on the outward voyage, and before it terminated. But if the voyage be

disguised, and the vessel sails under false papers, and with a false destination, the mere deposit of the contraband in the course of the voyage does not exempt the vessel from seizure.

Carrington . Ins. Co., 8 Pet. 495.

In the case of The Lucy (1901), 37 Ct. Cl. 97 (a French spoliation case). the court, referring to the state of the law at the close of the eighteenth century, said: "Where the owners of a vessel were the owners of the [contraband] cargo, the vessel as well as the cargo was subject to confiscation." See, also, The Bird (1903), 38 CL Cl. 228.

Mere consent to transportation of contraband will not always or usually be taken as a violation of good faith by the neutral owner of a ship. There must be circumstances of aggravation. The nature of the contraband articles and their importance to the belligerent, and general features of the transaction must be taken into consideration in determining whether the neutral owner intended or did not intend. by consenting to the transportation, to mix in the war.

Contraband of war is always subject to seizure when being con veyed to a belligerent destination, whether the voyage be direct or indirect; such seizure, however, is restricted to actual contraband. and does not extend to the ship or other cargo, except in cases of fraud or bad faith on the part of the owners or of the master with the sanction of the owners.

The Bermuda, 3 Wall. 514; The Springbok, 5 id. 1.

Conveyance of contraband attaches in ordinary cases only to the freight of the contraband merchandise. It does not subject the vessel to forfeiture.

The Peterhoff, 5 Wall. 28.

Contraband articles contaminate the noncontraband parts of a cargo, if belonging to the same owner, and the noncontraband must share the fate of the contraband.

The Peterhoff, 5 Wall. 28.

This is known as the doctrine of "infection."

as for

A false destination will not justify a vessel's condemnation carrying contraband, where her real destination is an unblockaded port and her cargo is innocent.

The Betsey and Polly (1902), 38 Ct. Cl. 30.

Where a vessel sailed in March, 1798, with a cargo of horses for a belligerent port, but under a false destination, and the owners of the cargo were the owners of the vessel, the vessel was liable to seizure