PROBLEMS OF INTERNATIONAL LAW 527 



stances of aggravation or misconduct may revive against the ship 

 the ancient penalty. 



Justice Story shows that the penalty is applied to the vessel on 

 account of cooperation " in a meditated fraud upon the belligerents 

 by covering up the voyage under false papers and with a false de- 

 stination." l The whole right of seizure and condemnation of neutral 

 contraband is based, as Kent shows from Vattel, on "the law of 

 necessity " and " the principle of self-defense." 2 



Sir W. Scott held that the penalty for carrying dispatches of a 

 belligerent (certainly a more noxious act), must be the condemna- 

 tion of the neutral ship, and argues that the confiscation of the 

 dispatches would be ridiculous and says: "It becomes absolutely 

 necessary, as well as just, to resort to some other measure of confisca- 

 tion, w r hich can be no other than that of the vehicle." 3 If the 

 courts of Russia, reasoning as boldly as Sir William, Mr. Justice Story, 

 and Chancellor Kent, are allowed to maintain their conclusion from 

 the rules of justice and necessity, their position is by no means 

 untenable. 



His Excellency, Count Cassini, the Russian imperial ambassador 

 to the United States, on the 15th of September, 1904, by letter, 

 kindly called the writer's attention to the Russian imperial order of 

 March 27, 1895, which reads as follows: 



" In extreme cases, where the retention of ships is impossible, 

 owing to their bad condition, when they are of small value, in danger 

 of capture by the enemy, when at a great distance from a home port, 

 or when there is danger for the ship which has taken the prize, the 

 commander, upon his responsibility, may burn or sink the captured 

 vessel after previously having taken her crew and as far as possible 

 her cargo. Her documents must be preserved and witnesses can 

 be held for the purpose of testimony before the prize court." 



His Excellency adds: 



" As this last declaration has never been protested by any power, 

 it appears, consequently, that the commander of the Russian man- 

 of-war committed a perfectly lawful act in sinking the British steamer 

 Knight Commander, which was undoubtedly carrying contraband of 

 war, as was proven immediately after her being stopped. This was 

 confirmed later on at the trial, when the deposition of the captain 

 was refuted and contradicted by the presented board documents 

 which he supposed to be lost with the ship." 



The instructions issued by the Secretary of the Navy of the United 

 States in 1898 to blockading vessels and cruisers, and prepared by 

 the Department of State, strongly resemble those of Russia. 



1 Carrington v. Merchants Ins. Co., 8 Peters, 495. 



2 Seton v. Low, 1 Johns. Cases, I. 



3 The Atlanta, 6 C. Robinson, 440. 



