Chap. XII. Yet it is not the less lawful on that account.

Neutral traffic to or from a blockaded country by inland navigation or transportation is not prohibited; and trade from London to Matamoros, even with intent to supply from Matamoros goods to Texas, violated no blockade, and could not be declared unlawful. But articles contraband of war, on their voyage to a neutral port with a probable ulterior destination to the enemy, were held liable to condemnation, although the presumed transportation from the neutral port to the enemy was to be effected, and could only be effected, by overland conveyance across neutral territory. "It is true that even these goods, if really intended for sale in the market of Matamoros, would be free from liability, for contraband may be transported by neutrals to a neutral port if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destination, while all the circumstances indicate that these articles at least were destined for the use of the real forces then occupying Brownsville and other places in the vicinity."

1 This decision extended still further the doctrine of "ulterior destination," which, in the cases of the Bermuda,. the Stephen Hart, and the Springbok, was applied to goods intended, or supposed to be intended, to be conveyed all the way by sea. In such a case it is clear that the goods might be captured in the second stage of their journey, and the question therefore is, whether they may not as lawfully be captured in the first stage of it, treating the two stages as together constituting one continuous voyage? But it is otherwise where the ulterior transportation is overland: over this the belligerent never could exercise any control; the condemnation must therefore stand or fall with the broad proposition that the fate of contraband articles, found at sea on board of a neutral vessel, and the liability of the neutral vessel to the consequences of carrying contraband, depend in all cases on what a Prize Court may regard as the ultimate destination of the goods, no matter how that destination is to be reached.

In Hobbs v. Heming (New Reports, v, 406)—a case which arose in England out of the capture of the Peterhoff-the question was, whether a plea that certain goods were contraband of war, and were shipped by the plaintiff for the purpose of being sent to and imported into

In connection with the subject of this chapter, I shall Chap. XII. here insert some extracts from correspondence, which

a port in a State engaged in hostilities against the United States, and were liable to be seized by the cruisers of the United States as contraband of war, showed a defence to an action on a policy of assurance. The Court held that it did not. Chief Justice Erle, in the course of his Judgment, said: "If the goods were in course of transport from a neutral to a neutral port, the better opinion (see the authorities collected in Ortolan's Diplomatie de la Mer, vol. ii, p. 181) seems to be, that war does not give to a belligerent any right to seize them on account of their quality. The allegation that the goods were shipped for the purpose of being sent to an enemy's port is an allegation of a mental process only; we are not to assume therefore, either that the plaintiff had made any contract or provided any means for the further transmission of the goods into the enemy's State, or that the shipment to Matamoros was an unreal pretence. If the goods were in course of transmission, not to Matamoros but to an enemy's port, the voyage would not be covered by the policy. Here the allegation does not deny the destination to the neutral port to which the insurance relates, but introduces a purpose existing in the mind of the assured, after the termination of the voyage insured, for the ulterior disposition of the cargo and ship. It is consistent with that purpose, as here alleged, that the plaintiff made the consignment for mercantile profit, as the end to be attained by himin other words, that he knew of an effective demand for warlike stores at Matamoros, and was induced to send a supply by the expectation of high prices, and that he expected that the purchase would probably be made on behalf of the Confederate States, and in that sense had the purpose that the goods should pass into those States. In this sense, price was the ultimate object which he purposed to attain, and Federal and Confederate were alike indifferent as means, provided he attained that end; and in a neutral territory he might lawfully sell to either."

The Court added: "If goods fit for immediate use in war, and therefore of the quality denoted by the term contraband of war, are passing between neutrals, it seems that they are not liable to seizure by a belligerent. The right of capture, according to Sir W. Scott's opinion, expressed in the case of the Imina (Rob. iii, 167), attaches only where they are passing on the high seas tó an enemy's port: they must be taken in delicto, in the actual prosecution of a voyage to an enemy's port. The liability therefore of these goods to lawful seizure, although their quality was such as might make them contraband of war, depended on their destination, and they were not liable unless it distinctly appeared that the voyage was to an enemy's port."

The decision in Hobbs v. Heming does not directly conflict with the decision in The Peterhoff, the question determined in the latter case not having been directly raised in the former. But the opinion of the

Chap. XII. require no explanation. The representations made by the British Government appear to have been reasonable,

Court of Common Pleas does not appear to have been in accordance with that of the Supreme Court of the United States.

In the case of the Will o' the Wisp, a British schooner captured on the Texan side of the Rio Grande, while discharging her cargo (part of which consisted of percussion caps and powder) into lighters for Matamoros, the powder and percussion caps having been purchased for the Mexican Government, and a Custom-house permit issued for them, the vessel and cargo were released by the Prize Court of the United States at Key West," inasmuch as in a trade carried on by neutral nations or ports there can be no such thing as contraband of war, but the trade of neutrals between themselves is unaffected by the war, nor does the United States assume to intercept or interfere with the trade of Mexico or of any of her ports with neutrals." Judge Marvin, however, refused to give the owners their costs and expenses as against the captors, on the ground that a supposed concealment had been practised by packing the powder and caps in casks and kegs marked "codfish," though they had been duly entered in the manifest; and the endeavours of the British Government to obtain compensation were ineffectual.-Parliamentary Papers, North America, No. 12, 1863.

In the cases of the Dashing Wave, Volant, Science, and Teresita (Wallace's R., v, 170, 178, 179, 180), all captured at the mouth of the Rio Grande and north of the line dividing Mexican from Texan waters, restitution was decreed by the Supreme Court; but the Court laid down the following rule :

"We think it was the plain duty of a neutral claiming to be engaged in trade with Matamoros, under circumstances which warranted close observation by the blockading squadron, to keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the boundary line as to repel, so far as position could repel, all imputation of intent to break the blockade. He had no right to take voluntarily a position in the immediate presence of the blockading fleet, from which merchandize might be so easily introduced into the blockaded region."

In pursuance of this rule costs and expenses were refused when the vessels had voluntarily anchored north of the line, but were granted in the case of the Teresita, which appeared to have drifted across it under stress of weather.

Part of the cargoes of the Science and Volant consisted of bales of cloth such as was used for Confederate uniforms, but there was no evidence "showing destination to enemy territory or immediate enemy

use."

The Labuan, also captured at the mouth of the Rio Grande, but south of the line, with a cargo of cotton, and under circumstances that

and to have been readily and fairly met on the part of Chap. XII. the United States.

"Sir,

Mr. Seward to Mr. Welles.

"Department of State, Washington, August 8, 1862. "Mr. Stuart, the Chargé d'Affaires of Great Britain, has submitted to me, informally, papers touching the recent capture of the Adela by the United States' steamer Quaker City, which he has received from Vice-Admiral Milne, with papers from Captain Hewett, Commander of Her Majesty's steam-ship Rinaldo, on the station adjoining our coast, which among other things represent:

"In these papers it is stated that the Quaker City fell in with the Adela near the British Island of Abaco, and within two-and-a-half miles of the coast, and without showing any colours chased and fired at the Adela several times.

"It is farther stated that she was seized before the result of any actual search could have proved that contraband of war was on board, which seizure was thus made without previous search, upon the ground that the real destination of the Adela was some Southern (blockaded American) port, and not her pretended one, Nassau.

"Commander Hewett farther states that he understood the flagofficer to say that he has orders to seize any British vessels whose names were given to them in orders from the Government, and that being bound from one British port to another would not prevent the

afforded no excuse for a seizure, was released by decree of a District Admiralty Court.

The Magicienne, captured on the outward voyage to Matamoros, and brought into Key West, was restored, and damages paid to the owners under the authority of an Act of Congress. Bills for a like purpose were introduced into the Senate, on the recommendation of the Government and of the Committee on Foreign Affairs, in reference to the cases of the Labuan, the Volant, and the Science; but they appear to have encountered some opposition, and no legislative provision has yet been made for the payment of these claims. In the cases of the Volant and Science no expenses had been awarded, but the ships and cargoes had been sold under order of the Court, and the proceeds were lost, partly by the failure of a bank in which they were deposited, and partly by the defalcation of an officer of the Court.

The Sir William Peel, captured on the Mexican side, was restored, but without costs, there being circumstances of suspicion, and some conflict of evidence. But the Court held that, in the absence of any claim on the part of the neutral (Mexican) Government, the fact that the vessel was captured in neutral (Mexican) waters constituted in itself no ground for restitution.-Wallace's R. v, 517.

Chap. XII. United States' officers from carrying out these orders; and farther, that such were the definite orders that they were, whenever and wherever met with, to seize British steamers or vessels of which official information had been sent them.

"It is farther reported in these same papers, that the Adela was bound at that time from one British port to another, and was carrying a British mail from Her Britannic Majesty's Postmasters at Liverpool and Bermuda, addressed to Her Britannic Majesty's Postmaster at Nassau, one of which bags contained despatches from the British Admiral to Her Britannic Majesty's ship Greyhound, at Nassau; and that the flag-officer of the Quaker City claimed that the mailbags were liable to be opened, and their contents, including the Admiral's despatches, would be liable to be read in the Court of Admiralty.

"It is the duty of the naval officers to be vigilant in searching and seizing vessels of whatever nation which are carrying contraband of war to the insurgents of the United States. But it is equally important that the provisions of the maritime law in all cases be observed and respected. Without waiting to inquire into the correctness of the representations of Admiral Milne thus brought to my notice, and with a view to prevent collisions between the armed vessels of the United States and Great Britain, I am directed by the President to ask you to give the following instructions explicitly to the naval officers of the United States, namely:

"First. That under no circumstances will they seize any foreign vessels within the waters of a friendly nation.

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'Secondly. That in no case are they authorized to chase and fire at a foreign vessel without showing their colours, and giving her the customary preliminary notice of a desire to speak and visit her.

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Thirdly. That when that visit is made the vessel is not then to be seized without a search carefully made so far as to render it reasonable to believe that she is engaged in carrying contraband of war to the insurgents and to their ports, or otherwise violating the blockade; and that if it shall appear that she is actually bound and passing from one friendly or so-called neutral port to another, and not bound or proceeding to or from a port in the possession of the insurgents, then she cannot be lawfully seized.

'And, finally, that official seals or locks or fastenings of foreign authorities are in no case, nor on any pretext, to be broken, or parcels covered by them read by any naval authorities of the United States; but all bags or other things conveying such parcels and duly sealed or fastened by foreign authorities will be, in the discretion of the United States' officer to whom they may come, delivered to the Consul, Commanding Naval Officer, or Legation of the foreign Government to be opened, upon the understanding that whatever is contraband or important as evidence concerning the character of a captured vessel will be remitted to the Prize Court or to the Secretary of State at