NEUTRAL RIGHTS AND OBLIGATIONS IN THE ANGLO-BOER WAR

BY ROBERT GRANVILLE CAMPBELL

1908

PREFACE. 

This essay is the outgrowth of work done in the Political ScienceSeminary of the Johns Hopkins University and is a portion of a largerstudy dealing with the causes of the Anglo-Boer War and the questions ofinternational law arising during that conflict. 

At the beginning of the war the English Government was inclined to viewthe contest as one which would not make it necessary to call intooperation the neutrality laws of third parties. It was soon realized, however, that the condition of insurgency was not broad enough tosustain the relations between the two Governments. Toward the close ofNovember Great Britain's declaration with a retroactive effect put thecontest upon a distinctly belligerent basis and accepted the date of theTransvaal's ultimatum, 5 p. M. , October 11, 1899, as the commencement ofthe war. 

Other Powers which had awaited this announcement with some anxiety atonce declared their attitude toward the war. Among the first to assumethis neutral position was the United States with the announcement thatits attitude would be in accordance with the requirements of thestrictest neutrality. 

It is the purpose of the first chapter to inquire how far theseobligations were fulfilled by the United States Government, and in thesecond chapter the attitude of European Governments is considered. Inthe third chapter the rights and obligations of belligerents andneutrals are discussed with regard to neutral commerce. Under this topicthe wide divergence of English practice from Continental as well as fromAmerican opinion on points of international law cannot fail to benoticed. 

The chief sources of information used in the preparation of the presentpaper have been the British Blue Books; the Foreign Relations of theUnited States; the House and Senate Documents not included in theForeign Relations; the Congressional Record, Debates in Congress, Resolutions and Reports in answer to requests for information. Othersources and authorities are indicated in the footnotes. 

I wish to express my gratitude to Dr. W. W. Willoughby, not only for hiscareful criticism of this study during its preparation, and for thehelpful suggestions by which he has attempted to correct some of itsobvious deficiencies, but especially for his kindly inspiration at alltimes. 

CONTENTS. 

PREFACE

CHAPTER I. THE NEUTRALITY OF THE UNITED STATES

CHAPTER II. THE NEUTRALITY OF EUROPEAN POWERS

CHAPTER III. CONTRABAND OF WAR AND NEUTRAL PORTS

CHAPTER IV. TRADING WITH THE ENEMY

CHAPTER I. 

THE NEUTRALITY OF THE UNITED STATES. 

The neutral attitude assumed by the United States was maintainedthroughout the war. With reference to any official recognition of theTransvaal as an independent State apart from the immediate purposes ofwar no action was taken. This view of the situation in South Africa wasentirely consistent with the requirements of international law, and, incarrying out the obligations of a neutral to the belligerents, thegovernmental position was fully justified by a knowledge of therelations which had existed between the Transvaal and Great Britain inthe past. 

Early in October, before war had actually begun, it was understood thatMr. Pierce, the Orange Free State consul-general in New York, had madeevery effort to induce President McKinley to request other nations toact with the United States as arbitrators in the dispute between theGovernments of the Transvaal and Great Britain, but the close friendshipexisting between England and the United States and the very friendlyattitude assumed by Great Britain during the Spanish-American War madesuch action impossible. The State Department at Washington announcedthat in the event of war the Government would maintain an absolutelyneutral attitude, and issued instructions early in October to allAmerican consuls in South Africa directing them to secure protection forall neutrals of the United States who had not affiliated politicallywith either Great Britain or the South African Republics, either byexercising the franchise or otherwise. While those whom this definitiondid not cover were not to be directly under the protection of the UnitedStates, the State Department expressed itself as ready to use its goodoffices in their behalf in case they were involved in trouble resultingfrom the war. Such had been the position of the Department in the caseof Mr. John Hays Hammond, a citizen of the United States who had beeninvolved in the Jameson Raid, although he had taken part in anexpedition which was not officially approved by Great Britain and whichwas hostile to a Government with which the United States had noquarrel. [1]

[Footnote 1: For. Rel. , 1896, pp. 562-581. ]

On October 8, the day before the Transvaal ultimatum was presented toGreat Britain, the British Ambassador in Washington confidentiallyinquired whether in the event of an attack upon the English forces bythe Boers, rendering necessary the withdrawal of the British agent, theUnited States would allow its consul to take charge of the Britishinterests in the Transvaal. [2] Consent was very properly given on theeleventh that the United States would gladly allow its consul atPretoria "to afford to British interests in that quarter friendly andneutral protective offices. "[3] On the thirteenth this courtesy wasacknowledged and the information given that the British agent hadwithdrawn. On the same day Mr. McCrum was instructed, "with the assentof the South African Republic, to afford to British interests thefriendly protective offices usual in such contingencies. "[4]

[Footnote 2: For. Rel. , 1899, p. 350, Tower to Hay, Oct. 8, 1899. ]

[Footnote 3: For. Rel. , 1899, P. 350, Hill to Tower, Oct. 11, 1899. ]

[Footnote 4: For. Rel. , 1899, p. 351, Tower to Hill, and Adee to Tower, Oct. 13, 1899. ]

Having thus assumed an attitude entirely in accord with the obligationsincumbent upon a neutral, the United States refused to heed the populardemand to urge upon Great Britain its offices as mediator in a matterwhich directly concerned the British colonial policy. Secretary Hayproperly refused to involve the Administration in the complicationswhich would have followed any official interrogation addressed to theBritish Government with reference to its ultimate intentions in SouthAfrica. Moreover, it was authoritatively stated that any concertedEuropean intervention would not meet with favor in Washington, as suchaction would only tend to disturb general commercial relations byembroiling most of the nations of the world. Any attempted interventionwould certainly have led to a conflict of the Powers, and would haveinvolved questions of national supremacy, disturbed the balance ofpower, and raised the Chinese question, in which last the United Stateshad an important interest. It was a sound policy therefore upon the partof the United States not to encourage any intervention by Europeannations in the affairs of Great Britain in South Africa. 

This attitude not only reciprocated the friendly feeling shown byEngland during the Spanish-American War, but was in strict accord withthe traditional American policy enunciated by Washington. Theacquisition of the Philippines had only served to exemplify thesoundness of this doctrine, and the State Department was not in a moodto take the initial steps which might lead to added responsibilitieswith reference to matters which, in this instance at any rate, were notdirectly of American concern. The part to be played by the United Stateswas clearly that of an impartial neutral. 

In his message to Congress in 1900 President McKinley stated that he washappy to say that abundant opportunity had been afforded in thesituation at Pretoria to permit the United States consul there to showthe impartiality of the Government toward both the combatants. Developments, however, were to show that things had not gone so smoothlythere as was supposed at the time. 

On December 8 the President had appointed Mr. Adelbert Hay, son of theSecretary of State, to succeed Mr. McCrum in his position as consul andinstructions were sent to him to proceed at once to Pretoria. Mr. Hollis, the American consul at Lorenzo Marques, was directed at the sametime to act _ad interim_ at Pretoria after the departure of Mr. McCrumand until Mr. Hay could reach South Africa. On December 18 Mr. Hollistook charge of all British and American interests within the Transvaalwhile still keeping an oversight of the affairs of the United States inand around Lorenzo Marques. 

Soon after the war had begun Mr. McCrum had reported to Washington, inreply to inquiries with reference to the British prisoners in the handsof the Boers, that it was the wish of the Republican Government that inthe future all requests for the payment of money to officers or otherprisoners, as well as inquiries regarding their welfare, should comethrough the regular military channels at the front. The Republic at thesame time intimated that it could no longer recognize Mr. McCrum in anyofficial capacity on behalf of Great Britain. [5] The Britishrepresentative at once suggested that the United States consul beinstructed to point out to the Transvaal that such an attitude was adeparture from the usual practice in not permitting the AmericanGovernment to use its friendly good offices on behalf of the Englishprisoners of war. Lord Salisbury called attention to the fact thatduring the Crimean War "moneys" for the British prisoners in Russia weredistributed through the Danish representatives in St. Petersburg andLondon; and that during the Franco-Prussian War such small sums of moneywere handed to the French prisoners in Germany through the BritishForeign Office. It was understood as a matter of course that reciprocalprivileges would be extended to the Boer prisoners in the hands of theEnglish commanders. [6]

[Footnote 5: For. Rel. , 1900, p. 619, Hay to Pauncefote, Nov. 11, 1899. ]

[Footnote 6: Ibid. , p. 619, Hay to Pauncefote, Nov. 22, 1899. ]

Mr. McCrum, following instructions from his Government, had placed theEnglish view of the situation before the Transvaal authorities before heleft Pretoria, and had called their attention to the fact that for themto permit the charitable and humane intervention of the United Statesconsul under the circumstances was the regular course in time of war. [7]But not until Mr. Hollis reached Pretoria was the attitude of theRepublic explained. He inquired of the Secretary of State as well as ofthe Secretary for Foreign Affairs with reference to the attitude hewould be allowed to assume toward British interests; to what extent hemight act on behalf of British prisoners of war in the Transvaal andOrange Free State; and how far he might exercise the usual consularfunctions on behalf of Great Britain during the war. 

[Footnote 7: For. Rel. , 1900, p. 620, Hay to Pauncefote, Nov. 28, 1900, and Hay to Pauncefote, Apl. 9, 1900. ]

The report was made to Washington "from many official and consularsources that the late British agent at this capital [presumably Mr. Green] was always a thorn in the side of this Government, and that heis, in part, responsible for this present war. "[8] It was pointed outthat since this was the attitude of the Republican Government thereexisted at Pretoria a decided aversion to the recognition of any one whomight claim to act as a British agent. The Transvaal Secretary of Stateexpressed himself emphatically upon the point: "We got rid of theBritish agent on the eleventh of October last, and God willing, we willnever have another one here. "[9] Mr. Reitz even went so far as toexpress the confident hope that at the close of the war a Britishminister and British consuls would reside at Pretoria, but he waspositive upon the question of receiving any one who was known as anagent of Great Britain. No one who assumed this relation toward theEnglish Government would be acceptable to the Transvaal and Orange FreeState. 

[Footnote 8: For. Rel. , 1900, p. 621, Hollis to Hill, Feb. 2, 1900. ]

[Footnote 9: For. Rel. , 1900, p. 621, Hollis to Hill, Feb. 2, 1900. ]

The attitude which the Republic alleged it had been willing and wasready to assume was an unwillingness to recognize the consul of theUnited States or any other consular officer as the officialrepresentative of the British Government during the war; an objection tothe transmission of the official communications of the EnglishGovernment to that of the South African Republic, or of the officialdespatches of the English Government addressed to the British prisonersin the hands of the Transvaal, or of "moneys" or funds sent by theBritish Government to the English prisoners of war. On the other handthe Transvaal authorities were not unwilling to allow the United Statesconsul at Pretoria to perform certain enumerated services in behalf ofall British prisoners of war and their friends. No objection was made tothe forwarding of letters and papers sent by friends to the prisoners, and, under the supervision of the War Office of the Transvaal, theRepublic expressed itself willing to permit the distribution of fundssent to the English prisoners by their friends at home. But it wasunderstood that such services would be reciprocal, and that the Republicwould have the right to request similar services of the Americanconsular officers on behalf of the Boer and Afrikander prisoners in theEnglish possessions. The right was reserved to revoke any and allprivileges to receive letters, papers, parcels and money, which wereenjoyed by British prisoners in the Transvaal, should the fact besufficiently proved that Boer or Afrikander prisoners in the hands ofthe English authorities were not receiving kind and humane treatment, orwere being denied privileges similar to those enjoyed by Britishprisoners in the Republic. All concessions on the part of the TransvaalGovernment would be instantly revoked on these grounds as sufficientreason and cause for such action. The Republican Government assertedthat this had been the attitude in accordance with which it had actedfrom the commencement of the war. [10]

[Footnote 10: For. Rel. , 1900, pp. 621-622, Hollis to Reitz, Jan. 31, 1900, and Reitz to Hollis, Feb. 2, 1900. ]

With reference to the recall of the American consul and the appointmentof Mr. Adelbert Hay, it appears that there had been a certain amount offriction between Mr. McCrum and the English censor at Durban concerningthe consular mails. In connection with this incident, and a littleunwisely it would seem, Mr. McCrum had reported unofficially that hismail had been tampered with by the censor and had been forwarded to himonly after Colonel Stowe, the American consul-general at Cape Town, hadsecured its release. He asserted: "I had the humiliation, as therepresentative of the American Government, of sitting in my office inPretoria and looking upon envelopes bearing the official seal of theAmerican Government, opened and officially sealed with stickers, notifying me that the contents had been read by the censor at Durban. "And he continues, "when I accepted my post as consul I knew nothing ofany secret alliance between America and Great Britain. "[11] Thesecharges brought forth in the House of Representatives a resolution whichcalled upon the President to furnish information as to whether theconsul's mail had been opened and read by the British censor and, if so, what steps had been taken in the matter. Information was also asked asto what truth there was in the statement that a secret alliance existedbetween the "Republic of the United States and the Empire of GreatBritain. "[12]

[Footnote 11: H. R. , Doc. 458, 56 Cong. , 1 Sess. ]

[Footnote 12: H. Res. 149, 56 Cong. , 1 Sess. ; also H. Res. 160. ]

In response the President reported through the Secretary of State thatthe Department had been in regular communication by mail and telegraphwith Charles E. McCrum, late consul at Pretoria, since his entrance uponthe duties of the office. Communications made to him had been answeredby him. His despatches forwarded through the consulate at LorenzoMarques had been regularly received during his incumbency in office. Itwas pointed out that the only instance of complaint had been inNovember, when a temporary stoppage of the mails had occurred at CapeTown, against which both Mr. McCrum and the consul at Lorenzo Marqueshad protested. But arrangements had been then made for the promptdelivery of all the consular mails to the United States consulate atCape Town by which they were forwarded to the consul at Lorenzo Marquesand thence to Pretoria. The delay had continued only a few days and thedifficulty had not occurred again. It was pointed out also that thisarrangement had been made known to both Mr. McCrum and Mr. Hollis asearly as November 16, and that no obstacle had since existed to preventthe unhampered correspondence from Pretoria to Washington. Moreover, theSecretary of State asserted that Mr. McCrum had not officially reported"any instance of violation, by opening or otherwise, of his officialmail by the British censor at Durban, or any person or personswhatsoever, there or elsewhere;"[13] he had not so reported since heleft Pretoria, although ample opportunity was afforded him to do so bymail or in person when he reported to the Department on his return. 

[Footnote 13: H. R. , Doc. 458, 56 Cong. , 1 Sess. ]

In regard to the second charge made by Mr. McCrum it seemed hardlynecessary to say that there was no truth in the statement that a secretalliance existed between Great Britain and the United States; that noform of secret alliance was possible under the Constitution since alltreaties required the advice and consent of the Senate. Mr. Hayconcluded, however, by emphatically assuring the members of Congressthat "no secret alliance, convention, arrangement, or understandingexists between the United States and any other nation. "[14]

[Footnote 14: H. R. , Doc. 458, 56 Cong. , 1 Sess. ]

Mr. McCrum later appeared before the Committee on Foreign Affairs in theHouse of Representatives and stated his side of the case. He declaredthat while at Pretoria he had _understood_ that the British Governmentwas in possession of the United States cable ciphers but he was unableto affirm this from personal knowledge. He based his belief, he said, upon the fact that when on November 6 he had cabled by way of Durban tothe Department asking for leave of absence the incident had beenreported to have been published in a Durban paper on the following day, although he had cabled in cipher. He was not able to say, however, whether the fact of his desiring leave was actually published onNovember 7, as he had not seen the paper, but had heard that the facthad been published. He asserted that the first actual evidence of theopening of his mail was in the case of two opened letters reaching him, but he admitted that he had not reported the matter to the Department. When Mr. Hay mentioned the matter to Sir Julian Pauncefote, the BritishAmbassador in Washington, the English Government replied that it had noknowledge of the incident, and gave the assurance that if it hadoccurred it had been contrary to instructions. Colonel Stowe laterinformed Mr. Hay that two letters from the consulate at Cape Town, onefor Pretoria, the other for Lorenzo Marques, had been opened by thecensor at Durban, but that Sir Alfred Milner, the British HighCommissioner, had afterward offered a very satisfactory apology. 

In view of these facts the committee of the House, before which Mr. McCrum appeared, made no report, and when Mr. Adelbert Hay reported thathe had failed to find on the files of the consulate any evidence of theofficial mail having been tampered with, the incident was consideredclosed. Mr. Hay declared that as far as he could ascertain, nointerference had occurred in the communication, either telegraphic orpostal, between the State Department and the consulate. [15]

[Footnote 15: For. Rel. , 1906, p. 20, Hay to Pauncefote, Apr. 9, 1900. ]

The new consul at Pretoria also reported that everything was assatisfactory as could be expected under the circumstances of war, andhis official intercourse with the Transvaal Government afterwards fullyjustified this assertion. The republics displayed a proper attitudetoward the consulate not only as representing American interests, but asrepresenting Great Britain during the course of hostilities. Everyfacility was afforded the American consul for performing his duties. Forthe efficient service he had rendered in connection with the Britishprisoners he was publicly thanked by the British High Commissioner, whoexpressed the feeling of gratitude which he said existed throughout theBritish Empire for the good work which had been performed by both Mr. Hay and Colonel Stowe, the latter at Cape Town. 

While enforcing the obligations of a neutral State by an attitude ofstrict impartiality toward both belligerents, the United States was notinclined to allow popular sympathy for the Boers to lead tocomplications with foreign nations over a matter with which it was onlyremotely concerned. This position was known to the envoys of theTransvaal and Orange Free State before they left Pretoria. Ampleopportunity to realize the situation had been afforded them before theyleft Europe for America after an unsuccessful tour of the capitals ofthe Continent. Nevertheless, they determined to appeal to the UnitedStates, and with this purpose in view arrived in Washington on May 17, 1900. A resolution introduced in the Senate by Mr. Allen of Nebraska onMay 19, which would have extended the privilege of the floor to them, was laid on the table, [16] a decision the wisdom of which isunquestionable. The Senate stands before the world as an important partof the treaty-making power of the United States. Such a privilege, ifextended to the mission, could have meant nothing to foreign powers butan official reception to the envoys of a government which was notrecognized as legitimate by its former conventional suzerain. It was notthe part of the Senate to inquire into the substance of the pastrelations between Great Britain and the Transvaal. Especially was thistrue since the governmental position had been declared early in the warand nothing had occurred to warrant any alteration in that position. This was the view which President McKinley took of the situation, andthe policy of dealing with the problem was that of the strictestneutrality. 

[Footnote 16: 56 Cong. , 1 Sess. , Record, pp. 5735, 5783-86. ]

On May 21 it was officially announced that the delegates had called byappointment at the State Department. The notice given out to the pressread: "They were cordially received and remained with the Secretary ofState for more than an hour. They laid before the secretary at muchlength and with great energy and eloquence the merits of the controversyin South Africa and the desire of the Boer Republics that the UnitedStates should intervene in the interests of peace and use its influenceto that end with the British Government. "[17] The ambition of the envoyson leaving the Transvaal for Europe had been "for the purpose of seekingrecognition and intervention, " but the success of their mission atWashington was not to be greater than it had been in European capitals. Although Mr. Hay received them courteously their competence to treatdirectly with the State Department was not recognized. When theyrealized this fact they appealed directly to the people in the hope ofbringing a certain amount of pressure to bear upon the President fromthat source. He fully realized, however, that under the circumstances nointerference was advisable. A departure from this policy would havecreated a precedent which might later have been appealed to by anyEuropean government in behalf of its subjects in this country. AsPresidential candidate, however, William J. Bryan, in effect, if not inexpress terms, promised a mediation that would mean something should theDemocrats come into power, and it was hopes created by such utteranceswhich encouraged the Boers to believe that intervention on the part ofthe United States was a possibility. Even the Senate passed resolutionsof sympathy which only held out a vain hope and naturally caused acertain amount of criticism in England. In the end, however, the envoysbecame convinced that nothing was to be hoped for in the way ofdictatorial interference by the United States. 

[Footnote 17: Moore, Digest of Int. Law, Vol. I, p. 213]

In his message to Congress, in 1899, three months after the war began, President McKinley had been able to declare: "This Government hasmaintained an attitude of neutrality in the unfortunate contest betweenGreat Britain and the Boer States of Africa. We have remained faithfulto the precept of avoiding entangling alliances as to affairs not of ourdirect concern. Had circumstances suggested that the parties to thequarrel would have welcomed any kindly expression of the hope of theAmerican people that war might be averted, good offices would have beengladly tendered. " And in May, 1900, after the interview with theTransvaal delegation, Mr. Hay gave out a statement through his secretaryin which it was declared that this entirely correct neutral attitude hadbeen strictly adhered to: "As the war went on the President, whileregretting the suffering and the sacrifices endured by both of thecombatants, could do nothing but preserve a strict neutrality betweenthem. This has been steadfastly and constantly done, but there never hasbeen a moment when he would have neglected any favorable occasion to usehis good offices in the interest of peace. "[18] Mr. Hay also pointed tothe fact that on March 10, 1900, at the request of the Republics, theUnited States consul at Pretoria had communicated with his Governmentwith a view to the cessation of hostilities, and that the same proposalwas made to European powers through their respective consuls. 

[Footnote 18: Moore, Digest of Int. Law, Vol. VII, p. 19. ]

The request of the Transvaal was at once despatched to London, and theearnest hope was expressed by the President that a way might be found tobring about peace, with the intimation that he "would be glad to aid inany friendly manner to promote so happy a result. " The Transvaal waspromptly informed of this action and the United States representative inLondon communicated the President's instructions to Lord Salisbury. Inanswer he was requested to "thank the President for the friendlyinterest shown by him, " but it was unmistakably declared that "HerMajesty's Government could not accept the intervention of anypower. "[19] This reply was communicated to Pretoria, and no furthersteps were taken, since any insistence upon the part of the UnitedStates would have been an unfriendly act. 

[Footnote 19: Moore, Digest of Int. Law, Vol. VII, p. 20. ]

In justification of the action of the President, in view of the popularfeeling that more urgent pressure might have been used to cause thecessation of hostilities, Secretary Hay clearly showed that the UnitedStates Government was the only one of all those approached by therepublics which had even tendered its good offices in the interest ofpeace. He called attention to the fact that despite the popular clamorto the contrary the action of the Government was fully in accord withthe provisions of the Hague Conference and went as far as thatConvention warranted. A portion of Article III of that instrumentdeclares: "Powers, strangers to the dispute, may have the right to offergood offices or mediation, even during the course of hostilities, " butArticle V asserts, "The functions of the mediator are at an end whenonce it is declared either by one of the parties to the dispute or bythe mediator, himself, that the means of conciliation proposed by himare not accepted. "[20] Obviously any further action on the part of theUnited States was not required under the circumstances, and SecretaryHay seems fully justified in his statement that "the steps taken by thePresident in his earnest desire to see an end to the strife which causedso much suffering may already be said to have gone to the extreme limitpermitted to him. " Moreover, had the President preferred not to presentto Great Britain the Republic's request for good offices, his actioncould have been justified by the conditions under which therepresentatives of the United States at the Hague signed thatconvention. At that time the express declaration was made that "Nothingcontained in this Convention shall be so construed as to require theUnited States of America to depart from its traditional policy of notintruding upon, interfering with, or entangling itself with questions ofpolicy or internal administration of any foreign State. "[21]

[Footnote 20: Moore, Digest of Int. Law, Vol. VII, p. 23. ]

[Footnote 21: Moore, Digest of Int. Law, Vol. VII, p. 21. ]

The final utterance of the President in regard to the mission of theBoers was the conclusive statement made through Secretary Hay: "ThePresident sympathizes heartily in the desire of all the people of theUnited States that the war . . . May, for the sake of both partiesengaged, come to a speedy close; but having done his full duty inpreserving a strictly neutral position between them and in seizing thefirst opportunity that presented itself for tendering his good officesin the interests of peace, he feels that in the present circumstances nocourse is open to him except to persist in the policy of impartialneutrality. To deviate from this would be contrary to all our traditionsand all our national interests, and would lead to consequences whichneither the President nor the people of the United States could regardwith favor. "[22]

[Footnote 22: Moore, Digest of Int. Law, Vol. VII, p. 21. ]

The attitude of the United States in the immediate vicinity of the waras well as the manner in which the envoys of the Transvaal were receivedin Washington rendered criticism impossible with reference to thefulfilment of the obligations of a neutral State. But serious chargeswere repeatedly made by the Transvaal sympathizers with reference to theuse to which American ports and waters were put by British vessels orBritish-leased transports plying between the United States and SouthAfrica. It was alleged that Great Britain was able to create here a baseof warlike supplies, and thus to obtain material aid in her operationsagainst the Boer forces. The probability of the truth of the Transvaal'sallegations would seem at first thought to be slight considering thedistance of the scene of war from the coasts of the United States, butupon closer inspection these charges become more worthy of belief. Thatwarlike supplies were actually transported from at least one of theports of the United States under such a systematic scheme as toconstitute a base of hostile supplies for the English forces in SouthAfrica, would seem to be established. 

Individual commercial transactions with belligerents always occur, andit is not the part of neutral governments to assume responsibility forall such transactions, but the principles of the international law ofthe present day do require all neutral states to see to it that theirrespective territories are not made bases for hostile operations. 

A few minor incidents showed that the obligations of neutrality would beenforced by the United States when it became apparent to the Governmentthat the neutrality laws were being evaded. In Cincinnati a Frenchmangiving his name as Pierrot was summoned before the United StatesAttorney on a charge of a violation of neutral restrictions. He had beenknown, it seems, as a recruiting officer for the Transvaal Government, but avowed that he had engaged men only for the Boer hospital corps andnot for the army of the Republics. The warning that he must ceaseenlisting men even for this branch of the republican service provedsufficient in this case, but undoubtedly such recruiting on a smallscale continued to evade detection. 

Later, the New York courts restrained the steamer _Bermuda_ from leavingthe port upon the application of a British subject, who alleged that hehad been informed that the _Bermuda_ was carrying contraband to theTransvaal. After a detention of five days the ship was allowed to sailbecause it was not shown that the allegation had any foundation in fact. 

Toward the close of November, 1900, a charge of a more serious naturewas made. It was reported that a British remount establishment wasoperating in the United States and had just purchased fifty thousandhorses and mules for the British forces in South Africa, andconsiderable attention to this alleged violation of neutral obligationswas drawn by that portion of the press which was in sympathy with theBoers. A resolution was adopted by the House of Representatives callingupon the President to furnish information "whether our ports or watershad been used for the exportation of horses, mules, and other suppliesfor use in South Africa, and if so, to what extent and what steps hadbeen taken to prevent such a use being made of neutral territory in timeof war. "[23] The request was also made that full information befurnished with reference to the number of horses and mules which hadbeen cleared from the ports of the United States since the beginning ofthe war, with a detailed statement of the shipments from each port andthe dates of such clearances. 

[Footnote 23: H. Res. 414, 418, 56 Cong. , 2 Sess. , Feb. 28, 1901. ]

The reply submitted to Congress was that the ports of the United Stateshad been used for the exportation of horses and mules and other suppliesfor use in South Africa; that between October, 1899, and January 31, 1901, the value of such shipments had amounted to $26, 592, 692; that nosteps had been taken to prevent the "lawful exportation of horses, mules, and other supplies to South Africa;" and that the number ofhorses and mules shipped from the ports of the United States during thisperiod had been 76, 632. It was not practicable, it was asserted, to givethe shipments from each port and the dates of such shipments withoutexamining the copies of the manifests of each vessel that had clearedfor South Africa. Such an examination and compilation could not bepresented to Congress before its adjournment, although copies of theclearance papers were filed with the collectors of the customs at thedifferent ports of the country. [24]

[Footnote 24: H. R. , Doc. 498, 56 Cong. , 2 Sess. ]

In the same report it was shown that of the entire exports to SouthAfrica during this period a large proportion had been of warlikesupplies, if horses and mules for army purposes can be consideredwarlike in character; 28, 598 horses valued at $2, 698, 827; 48, 034 mulesvalued at $4, 611, 365. Gunpowder to the value of $1472 had also beenexported; other explosives to the value of $7073, and firearms valued at$924, in all $7, 310, 661 worth of such supplies exported to one or bothof the belligerents in South Africa. Possibly the larger proportion ofthe gunpowder, other explosives, and firearms was run into the Transvaalby way of Delagoa Bay as contraband under the usual risks, or was usedfor purposes apart from the war, but with reference to the supplies forthe British army it would seem that a very free use was made of theports and waters of the United States. One reason why the EnglishGovernment was able to supply its armies in South Africa with horses andmules in such large numbers may have been the fact that a better marketsupply existed in this country, but it is more probable that the evasionof the strictest neutral requirements was easier here than elsewhere. The distance from the scene of war, although it involved an additionalcost for transportation, also rendered an evasion of the requirements ofneutrality less conspicuous. The supply of horses and mules in theEuropean market was scant, especially in the class of animals which wasneeded, but it seems obvious that the motive which actuated thepurchases was rather the greater ease in evading neutral prohibitionsthan the desire to secure a better market at a distance of ten thousandmiles from the seat of war. Possibly both motives actuated thepurchases, but it is nevertheless true that the United States ports wereused to a far greater extent than those of any other neutral Government. The last statement is borne out by the Report of the Royal Commission onthe War in South Africa, which shows that from November, 1899, to June, 1902, inclusive, no fewer than 191, 363 horses and mules were shippedfrom the ports of the United States for the British forces in SouthAfrica, aggregating a total cost to Great Britain of approximately$20, 175, 775. The entire cost in the United States and elsewhere for suchpurchases at the end of July, 1902, amounted to $52, 000, 000 in roundnumbers. The entire cost incurred within the United States was greaterthan that incurred in any other country. In Hungary the cost to GreatBritain for horses and mules was $8, 203, 505; in Spain $1, 667, 695; inItaly $688, 690; in the Argentine Republic, the British colonies andelsewhere, $21, 284, 335. [25]

[Footnote 25: Sessional Papers of the House of Commons, C. 1792 (1903), p. 260. ]

In view of this undoubted use of the ports and waters of the UnitedStates by one of the belligerents in a war toward which a neutralattitude had been declared, it may be inquired how far the condition ofaffairs was known to the Administration and what opportunity there wasfor executive action, especially with reference to the allegation madeby the Transvaal that the port of New Orleans was used as a base ofwarlike supplies for the British forces. 

On April 10, 1902, a resolution of the House of Representatives calledupon the President for copies of "any report and communication of theGovernor of Louisiana, together with all accompanying affidavits, documents and communications concerning the shipments of horses, mules, and other supplies from Louisiana to the seat of war in SouthAfrica. "[26] In response a report of Secretary Hay disclosed the factthat on February 1, 1902, a certain Samuel Pearson had appealed to thePresident against the use to which Great Britain had been allowed to putthe ports of the United States in supplying her armies in South Africa. Pearson had affirmed that "the port of New Orleans was being made thebasis of military operations and the port and waters for the purpose ofthe renewal and augmentation of military supplies for the British army. "He further alleged that the attention of the courts had been called tothe matter and the United States circuit court for the eastern districtof Louisiana had declared that the case was not within the cognizance ofthe court since the matter could be taken up only by the executivebranch of the government. [27] In making his plea directly to thePresident, Pearson asserted that at the port of Chalmette, a few milesbelow New Orleans, a British post had been established; that men andsoldiers had been assembled there and were daily engaged in warlikeoperations not only for the renewal and augmentation of militarysupplies, but for the recruitment of men. He alleged that no concealmentwas made of the facts as he had stated them; that although the Englishofficers did not appear in uniform war was actually being carried on inbehalf of the British Government from the territory of the UnitedStates. He concluded: "With every respect for the authority of theUnited States Government, may I not consider your silence or inactionthe equivalent of consent for me to stop the further violation of theneutrality laws of this port, or to carry on war here for theburghers. "[28]

[Footnote 26: H. R. , Doc. 568, 57 Cong. , 1 Sess. , p. 1. ]

[Footnote 27: Pearson _v_. Parson, 108 Fed. Rep. 461. ]

[Footnote 28: H. R. , Doc. 568, 57 Cong. , 1 Sess. , p. 3. ]

The President referred the matter to the Mayor of New Orleans with theintimation that a breach of the peace was threatened. The Mayor shiftedthe responsibility to the Governor of the State on the ground that theacts complained of were alleged to have been committed in the parish ofSt. Bernard and consequently outside the jurisdiction of the cityauthorities. Finally, under the orders of the Governor the Sheriff ofSt. Bernard parish made an investigation and reported that Pearson'sstatements had been incorrect in a number of points. [29] It was admittedthat mules and horses had been and were then being loaded at PortChalmette for the British Government either directly or indirectly; thatthe operation was being carried out by local men all of whom werecitizens of the United States; that the work was being supervised byEnglishmen who might or might not be officers of the British army, although none of them wore the uniform of Great Britain. But the Sheriffpositively asserted that a British post with men and soldiers was notestablished at the port; that no recruiting of men was taking placewithin the parish; that the only men taken on the ships were muleteerswho were employed in the city of New Orleans by the contractors; thatthese men were taken on board the ships when in mid-stream by tugs whichset out from the city wharves. 

[Footnote 29: H. R. , Doc. 568, 57 Cong. , 1 Sess. , p. 4; Nunez, Sheriff ofSt. Bernard, to Heard, Governor of Louisiana, Feb. 28, 1902. ]

In a personal interview "General" Pearson made the same charges to theGovernor that he had made in his letter to the President. He asked thathe be allowed to offer forcible resistance to the shipments to SouthAfrica, and to the enlisting or employing of men as muleteers, who, healleged, were later incorporated in the British army. This interviewtook place the day following the Sheriff's letter partially denying thecharges to the Governor, and the latter was not disposed to take anyaction in the matter until proof of the accuracy of the averments wasproduced, although the facts which were alleged had become widely known. 

The attitude of the Administration with reference to Pearson's letter, it was believed by the press, was not of a character to inspire greatconfidence in the strict performance of neutral duties. To ignore anallegation of so flagrant a character as the breach of neutrality, itwas declared, constituted a disregard of American ideals in the interestof British imperialism which could not be excused by jocular referencesto "General" Pearson's request to the President "to either put an end tothis state of affairs or permit me to strike one blow. "[30]

[Footnote 30: The Republic of Chicago, Feb. 15, 1902. ]

It was pointed out that the problem raised by Pearson was not one thatmight be laughed out of the White House, but was the serious questionwhether the British Government should any longer be permitted, inviolation of American neutrality, to use an American city and port as abase of warlike operations against a friendly people. The newspapers, too, had made public the movements of the English army officers incharge of the shipments. It seems that the base of operations at firstused by Great Britain was Southport, but that Chalmette had later beenselected. The efficiency of the latter station was reported upon inMarch, 1902, by General Sir Richard Campbell Stewart of the Britisharmy. Everything pertaining to the efficiency of the transportationservice was carefully inspected on behalf of the British Government. Colonel DeBergh, who was in command of the remount service in the UnitedStates, declared that he had not received orders from the British WarOffice to discontinue the shipments, and that they would be continued"unless General Pearson and the Boer army drive our garrison away. "[31]

[Footnote 31: The New Orleans Picayune, Mar. 28, 1902. ]

The evidence which Pearson was able to place before Governor Heard andwhich the latter laid before the President seemed to substantiate thefact that at least one of the ports of the United States had beenconstantly used and was then being used as a base of militarytransportation to the British forces in South Africa. It was shown thatWilliam B. Leonard, of New Orleans, had contracted with Major H. J. Scobell, representing the British Government, for the purchase of mulesto be shipped to South Africa for military purposes. The contract hadbeen signed in October, 1899, and during the months from October, 1899, to May, 1900, large numbers had been shipped to South Africa under theimmediate direction of British army officers. [32] P. B. Lynch madeaffidavit that he had been employed as clerk and bookkeeper in thebureau of the British remount service in New Orleans from December, 1899, to September, 1901. He explained the operations of the remountservice as well as its methods, and indicated clearly the directconnection of regularly appointed officers of the British army with thepurchase and shipment of horses and mules to South Africa. Thepurchases, it seems, were made at different points in the country andafterward assembled at a place designated by the officer in charge inNew Orleans. The British army brand was then placed upon the animals, which were immediately consigned to the British officer in New Orleansbut without giving his military title. They were then transferred toships the charter parties of which were agents of the EnglishGovernment. It was shown that the ships' agents usually employedmuleteers taken on by tugs from the city of New Orleans, and it wasproved that the whole operation was controlled by English army officerswho were detailed from London or from South Africa for the purpose. [33]

[Footnote 32: Leonard _v_. Sparks Bros. & McGee, Civil District Court, Parish of New Orleans, Division E, No. 62, 770, Feb. 24, 1902. ]

[Footnote 33: H. R. , Doc. 568, 57 Cong. , 1 Sess. , p. 9; also pp. 10-13passim. ]

The testimony of Charles J. Cole showed that as foreman in charge ofseventy or more men he had made six trips to South Africa in the serviceof the British Government or of its agents. His testimony wassubstantiated by certificates for seamen discharged before thesuperintendent of a mercantile marine office in the British Empire, aBritish consul, or a shipping officer on board the vessel on which hehad sailed. He had been employed on the transports _Prah, Montcalm, Knight Bachelor, Montezuma_, and _Rosetta_, all engaged in transportinghorses and mules to the British army in South Africa. He testified thatthe transports were in charge of regular officers of the English armyand that from them all orders were received. He also avowed that many ofthe men were urged and solicited by the officers to join the Britisharmy, and were unable to obtain their pay unless they complied with therequest. [34]

[Footnote 34: Pearson et al. _v_. Parson et al. , United States CircuitCourt, Eastern District of Louisiana; also H. R. , Doc. 568, 57 Cong. , 1Sess. , p. 20. ]

The affidavit of R. J. Tourres showed that he had served on the ship_Milwaukee_. He averred that the ship's articles were signed by himbefore the vice-consul of the British Government; that he was finallyreferred to an officer of the English army for duty and acted under hisorders during the voyage from New Orleans to Cape Town; that when thevessel was not allowed to land its cargo at that place on account of theplague the consignment of horses and mules for the British army wasdelivered at Durban to English officers in uniform; that he was notallowed to go ashore except upon the condition of signing with therecruiting officer and joining the British army; that during the entirevoyage a British military officer in uniform controlled the ship's crew;and that among the men the _Milwaukee_ was known as a transport underthe direct command of regularly detailed officers of the Englisharmy. [35]

[Footnote 35: Sworn to before notary public Mch. 21, 1902. H. R. , Doc. 568, 57 Cong. , 1 Sess. , p. 21. ]

The testimony of a number of other witnesses sworn before thecommissioner for the eastern district of Louisiana showed that the wagesof the men employed upon the ship _Montcalm_ had been refused by thecaptain unless they would agree to enlist in the British army, but asAmerican citizens they had refused to enlist and had demanded the wagesdue them under the ship's articles. August Nozeret, an American citizen, foreman of a corps of muleteers on board the _Montcalm_, testified thathe was told by the ship's officers that the only way to secure hisdischarge at Port Elizabeth was to have a recruiting officer vouch forhis enlisting in the British army; and that he complied with this demandand escaped enlistment only by pretending to be physically unable tocount the number of perforations in a card when required to do so as atest of sight at the recruiting office. The affiant was able to say fromhis own personal knowledge that certified discharges were not givenunless the men were willing to enlist in the English army. [36] Anabundance of other evidence to the same effect was produced, and it wasshown that both the _Montcalm_ and the _Milwaukee_ were under the directcontrol of the British war authorities. Both had their official numberspainted from their hulls before entering the Portuguese harbor of Beira. 

[Footnote 36: Cramer et al. _v_. S. S. _Montcalm_, United States DistrictCourt, Eastern District of Louisiana, in Admiralty, No. 13, 639; alsoH. R. , Doc. 568, 57 Cong. , 1 Sess. , pp. 22-23. ]

The evidence which was thus placed before the President would seem toshow that the spirit at any rate of the neutrality laws of the UnitedStates[37] had been violated, and that this violation had beensystematically carried out by the British Government and not byindividual citizens merely as a commercial venture. 

[Footnote 37: Revised Statutes, Title LXVII, Sections 5281-5291, inclusive. ]

The first section of the neutrality laws which were passed by Congressin 1818 defines the offense of accepting a foreign commission and laysdown the penalty for such an offense. The second section forbids anyperson within the territory of the United States to enlist in a foreignservice "as soldier, or as a mariner, or seaman, on board of any vesselof war, letter of marque, or privateer. " The three following sectionsprohibit the arming of a vessel to cruise against a people at peace withthe United States, or against the citizens of the United States, or theaugmentation of the force of any foreign vessel of war. The nextprohibits military expeditions of any kind. This section reads:

"Every person who, within the territory or jurisdiction of the UnitedStates, begins, or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thenceagainst the territory or dominions of any foreign prince, state, colony, district or people, with whom the United States are at peace, shall bedeemed guilty of a misdemeanor, and shall be fined not exceeding $3, 000, and imprisoned not more than three years. "[38]

[Footnote 38: Sec. 5286. ]

Section 5287 provides for the enforcement of the foregoing provisions. It leaves the cognizance of all complaints in the hands of the severaldistrict courts, but empowers the President to employ the land and navalforces to enforce all of the restrictions embodied in the neutralityprovisions. The following section empowers the President to compelforeign vessels "to depart the United States in all cases in which, bythe laws of nations, or by the treaties of the United States they oughtnot to remain within the United States, " Section 5289 requires that aforeign armed vessel shall give bond on clearance. Section 5290 empowersthe collectors of the customs to detain foreign vessels: "The severalcollectors of the customs shall detain any vessel manifestly built forwarlike purposes, and about to depart the United States, the cargo ofwhich principally consists of arms and munitions of war, when the numberof men on board, or circumstances render it probable that such vessel isintended to be employed by the owners to cruise or commit hostilitiesupon the subjects, citizens or property of any colony, district orpeople with whom the United States are at peace, until the decision ofthe President is had thereon, or until the owner gives such bond andsecurity as is required of the owners of armed vessels by the precedingsection. " Section 5291 defines the construction to be put upon theneutrality laws. They are not to be construed to extend to any subjector citizen of any foreign State who is only transiently within theUnited States, nor directly to be construed in such a way as to preventthe prosecution or punishment of treason, or of any piracy defined bythe laws of the United States. Possibly the alleged unneutral acts inthe territorial waters of the United States did not fall within thestrict letter of the restrictions contained in these laws. But if theprovisions of 1818 are construed so as to require the maintenance of aperfect neutrality it would seem that they were evaded in thetransactions which were permitted at the port of New Orleans. 

In this connection the neutrality clause of the Treaty of Washington isof interest. This treaty was signed in 1871 by Great Britain and theUnited States and is illustrative of the requirements of neutrality asunderstood by these two nations should either be at war with a thirdparty. For the immediate purposes of war the allied republics of SouthAfrica by the fact of their recognized belligerent status possessedrights equal in international law to those held by Spain or by theUnited States with reference to third powers during the Spanish-AmericanWar. On April 26, 1898, the day after this war was declared, the Britishdeclaration of neutrality referred to the Treaty of Washington asembodying the terms upon which a neutral attitude should be observed: "Aneutral government is bound . . . Not to permit or suffer eitherbelligerent to make use of its ports or waters as the base of navaloperations against the other, or for the purpose of the renewal oraugmentation of military supplies of arms, or the recruitment of men, . . . To exercise due diligence in its own ports and waters, and as to allpersons within its own jurisdiction, to prevent any violation of theforegoing obligations and duties, "[39]

[Footnote 39: Art. VI; London Gazette Extraordinary, April 26, 1898;For. Rel. , 1899, pp. 865-866. ]

Illegal enlistment was clearly defined as understood by Great Britain:"If any person . . . Being a British subject, within or without HerMajesty's dominions, accepts or agrees to accept any commission orengagement in the military or naval service of any foreign state at warwith any foreign state at peace with Her Majesty, . . . Or whether aBritish subject or not, within Her Majesty's dominions, induces anyother person to accept any commission or engagement in the military ornaval service of any . . . Foreign state . . . He shall be guilty of anoffense" against this act. And, "If any person induces any other personto quit Her Majesty's dominions or to embark on any ship within HerMajesty's dominions under a misrepresentation or false representation ofthe service in which such person is to be engaged, with the intent or inorder that such person may accept or agree to accept any commission orengagement in the military or naval service of any foreign state at warwith a friendly state . . . He shall be guilty of an offense againstthis act. " [40]

[Footnote 40: British declaration of neutrality, Apl. 26, 1898. It waspointed out that this act extended to all Her Majesty's dominions, including the adjacent territorial waters. ]

The last clause of Article six of the Treaty of 1871 read: "And the HighContracting Parties agree to observe these rules as between themselvesin future and to bring them to the knowledge of other maritime Powersand to induce them to accede to them. "[41]

[Footnote 41: Gushing, Treaty of Washington (1873), p. 260. GreatBritain was averse to the acceptance of this article of the treaty, butfinally acceded to it in the above terms by signing the mutualagreement. ]

These provisions were strictly enforced during the Spanish-American War, and other countries in their declarations defined the neutral attitudewhich they assumed. 

The Brazilian Government in its proclamation of April 29, 1898, declared: "The exportation of material of war from the ports of Brazilto those of either of the belligerent powers, under the Brazilian flag, or that of any other nation, is absolutely prohibited. "[42] It was alsopointed out that: "Individuals residing in Brazil, citizens orforeigners, must abstain from all participation and aid in favor ofeither of the belligerents, and may not do any act which might beconsidered as hostile to either one of the two parties and, therefore, contrary to the obligations of neutrality. "[43] Neither belligerent wasto be permitted "to promote enlistment in Brazil, not only of its owncitizens, but also of the citizens of other countries, for the purposeof incorporating them in its forces of land and sea. "[44] Not evenmerchant vessels were to be permitted to weigh anchor in Brazilian portsuntil permission from the port authorities had been granted, and anymovements of the belligerents were to be under the supervision of thecustoms authorities for the purpose of verifying the proper character ofthe things put on board. [45]

[Footnote 42: Art. IV of the Brazilian proclamation of neutrality; For. Rel. , 1898, pp. 847 ff. ]

[Footnote 43: For. Rel. , 1898, pp. 847 ff. , Art. I. ]

[Footnote 44: Ibid. , Art. II. ]

[Footnote 45: Ibid. , Arts. XVII and III. ]

The decree of Denmark forbade Danish subjects to commit certainenumerated offenses, and among them: "On or from Danish territory toassist any of the belligerent powers in the enterprises of war, such assupplying their ships with articles that must be considered contrabandof war. "[46] Danish subjects were forbidden "to take service in anyquality soever in the army of the belligerent powers or on board theirgovernment ships, such prohibition to include piloting their ships ofwar or transports outside the reach of Danish pilotage, or, except incase of danger of the sea, assisting them in sailing the ship;"[47] "Tobuild or remodel, sell or otherwise convey, directly or indirectly, foror to any of the belligerent powers, ships known or supposed to beintended for any purposes of war, or to cooperate in any manner on orfrom Danish territory in the arming or fitting out of such ships forenterprises of war;"[48] "To transport contraband of war for any of thebelligerent powers, or hire or charter to them ships known or supposedto be intended for such use. "[49]

[Footnote 46: Section I (3) of Danish proclamation of neutrality, Apl. 29, 1898; For. Rel. , 1898, p. 855. ]

[Footnote 47: Ibid. , Sec. I (1). ]

[Footnote 48: Ibid. , Sec. I (2). ]

[Footnote 49: Ibid. , Sec. I (4). ]

Japan forbade "the selling, purchasing, chartering, arming, or equippingships with the object of supplying them to one or the other of thebelligerent powers for use in war or privateering; the assisting such, chartering, arming or equipping, "[50]

[Footnote 50: Art. 4 of Japanese proclamation of neutrality, May 2, 1898. For. Rel. , 1898, p. 879. ]

The Netherlands proclamation warned all Dutch subjects under penaltyagainst exporting "arms, ammunition, or other war materials to theparties at war [to include] everything that is adaptable for immediateuse in war. "[51]

[Footnote 51: Art II (b) of Netherlands proclamation of neutrality. May3, 1898. For. Rel. , 1898, p. 888. ]

Although the primary object of these prohibitions was the stoppage ofall dealings in articles of a contraband nature, when fairly construedin the light of international opinion they would seem to render illegalthe wholesale dealing in horses and mules intended for army purposes byone of the belligerents. Such animals are undoubtedly "adaptable forimmediate use in war" and were in fact a necessity for the successfulcarrying on of the war. In the light of the express restrictions of theTreaty of Washington as exemplified in the war between one of theparties to that treaty and a third party in 1898, the obligation imposedupon the United States, impliedly at any rate, by the sixth article ofthe mutual agreement of 1871 might be read: "The United States is boundnot to permit Great Britain to make use of its ports or waters as thebase of naval operations against the South African Republics, or for thepurpose of the renewal or augmentation of military supplies. "

It would seem obvious that horses and mules when intended for immediateuse in military operations are within the meaning of the term "militarysupplies. " In numbers of instances horses have been consideredcontraband of war. The treaty of 1778 between the United States andFrance declared: "Horses with their furnishings are contraband ofwar, "[52] In the treaty of December 1, 1774, between Holland and GreatBritain it was understood that "Horses and other warlike instruments arecontraband of war. " And Hall declares that horses are generallyconsidered contraband and are so mentioned in the treaties betweendifferent States. He points out that the placing of an army on a warfooting often exhausts the whole horse reserve of a country andsubsequent losses must be supplied from abroad; the necessity for thisis in proportion to the magnitude of the armies. Every imported horse isprobably bought on account of the Government, and if it is not someother horse is at least set free for belligerent use. "Under the merelight of common sense, " he says, "the possibility of looking upon horsesas contraband seems hardly open to argument. "[53]

[Footnote 52: Article XXIV; Wharton, Digest of Int. Law (1886), Vol. III, §372. ]

[Footnote 53: International Law (1880), pp. 579-580. ]

Oppenheim shows that the importance of horses and beasts of burden forcavalry, artillery, and military transport sufficiently explains theirbeing declared contraband by belligerents. He asserts that no argumentagainst their being held as conditional contraband has any validity, andit is admitted that they are frequently declared absolutecontraband. [54] During the Russo-Japanese War Russia at first refused torecognize any distinction between conditional and absolute contraband, but later altered her decision with the exception of "horses and beastsof burden, " which she treated as absolute contraband. 

[Footnote 54: International Law, Vol. II, p. 426. ]

The tendency in modern times, however, is to treat horses as onlyconditional contraband. The only reason that they were not expresslydeclared contraband in the Anglo-Boer contest was the character of thewar. Had the Transvaal been able to issue an authoritative declarationand insure respect for it by a command of the sea, horses and muleswould have been considered technical contraband as in fact they wereactual contraband, being nothing if they were not "warlike instruments. "

The enforcement of the obligations incumbent upon the United Statesunder the circumstances undoubtedly lay with the Federal Governmentrather than with the States. Early in 1901 a proceeding in equity hadbeen instituted in a federal court in New Orleans for the purpose ofenjoining the shipment of horses and mules from that port to CapeColony. The bill was filed by private individuals who alleged that theyhad property in the Transvaal and Orange Free State which was beingdestroyed by the armies of Great Britain, and that these armies wereable to continue their work of destruction only by means of the suppliesof horses and mules which were shipped from the port of New Orleans. Theapplication for an injunction was denied on the ground that theenforcement of the treaty obligations of the Government is a function ofthe President with which the courts have nothing to do. 

The district judge in delivering the opinion declared that there wasnothing in the principles of international law or in the terms of theTreaty of Washington, to which an appeal had been made, to prevent thecitizens of a neutral state from selling supplies of war to abelligerent. The court went on to discuss the right of private citizensto sell supplies to belligerents, but did not enter upon the questionwhether or not the United States had permitted the British Government tomake use of its ports and waters as a base for the purpose of theaugmentation of its military supplies. The entire discussion ofquestions of international law was considered by the court as beyond itscognizance. The court said: "If the complainants could be heard toassert here rights personal to themselves in the treaty just mentioned, and if the mules and horses involved in the case are munitions of war, all of which is disputed by the defendants, it would become necessary todetermine, whether the treaty is meant to prevent private citizens fromselling supplies to the belligerents. " The court then proceeded: "Butthe nature of this cause is such that none of the considerationshereinbefore set out need be decided, " because "the case is a politicalone of which a court of equity can take no cognizance, and which in thevery nature of governmental things must belong to the executive branchof the Government. "[55]

[Footnote 55: Pearson _v_ Parson 108 Fed. Rep. 461]

It will be seen that the court did not pass upon the question of animproper use of the ports of the United States. Clearly an injunctioncould not be granted since such a measure would not have had the effectof remedying the evil. It could not issue, for it was not establishedthat there were private property rights to be protected. Thecomplainants could show no property in the implications of the treaty, nor could they establish the fact alleged, namely, that horses and mulesare munitions of war. The last question was one for the FederalGovernment alone to pass upon under the circumstances. Politicalobligations are not proper matters for enforcement by the courts. Butthe court did declare emphatically that the enforcement of all neutralobligations with reference to the ports and waters of the United Stateswas the function of the executive branch of the Government. 

The question at once arose whether it was a function of the state or ofthe federal executive to see that the neutrality laws were properlyenforced. In submitting the evidence of the operations of the Britishagents within the State of Louisiana Governor Heard declared it to behis opinion that it was the proper function of the federal and not ofthe state Government to enforce obedience to these laws; but, heconcluded, "if such duty belongs to the State where the violations ofsuch laws occur, I would not hesitate to act as the laws may warrant andin keeping with the dignity and responsibilities of statehood. "[56] TheGovernor asked that he be informed immediately what, in the opinion ofthe federal authorities, were the powers and duties of the stategovernments in matters of this character. 

[Footnote 56: H. R. , Doc. 568, 57 Cong. , 1 Sess. , p. 5. ]

Unquestionably it lay with the federal executive to see to it that theneutral obligations of all the States were properly observed. Certainduties rest upon the governors of the different States, but it is thefunction of the President to carry into effect the laws regulatingneutral obligations as well as the provisions of all treaties withforeign powers as a part of the law of the land. This duty was pointedout by Secretary Randolph in a circular of April 16, 1795, to thegovernors of the different States during the war between France andEngland. He defined the duties of neutrality and concluded: "As often asa fleet, squadron or ship, of any belligerent nation shall clearly andunequivocally use the rivers, or other waters . . . As a station inorder to carry on hostile expeditions from thence, you will cause to benotified to the commander thereof that the President deems such conductto be contrary to the rights of our neutrality. . . . A standing orderto this effect may probably be advantageously placed in the hands ofsome confidential officer of the militia, and I must entreat you toinstruct him to write by mail to this Department, immediately upon thehappening of any case of the kind. "[57]

[Footnote 57: Moore, Digest of Int. Law, Vol. VII, p. 934-935. ]

It was the duty of the central Government to prevent as far as possibleany abuse of the privileges which the laws of war allowed to thebelligerents. "A Government is justly held responsible for the acts ofits citizens, " said Justice McLean of the United States Supreme Court, speaking of the Canadian insurrection of 1838. And he continued: "Ifthis Government be unable or unwilling to restrain our citizens fromacts of hostility against a friendly power, such power may hold thisnation answerable and declare war against it. "[58]

Clearly the responsibility for the proper restraint rested upon thePresident with reference to the incidents which occurred around NewOrleans. The fact that forbidden acts committed within the jurisdictionof a State of the Union escape punishment within that State does notrelieve the central government of responsibility to foreign governmentsfor such acts. In view of this fact the citizens of the separate Statesshould remember the consequences which may result from their acts. Thewarning of Justice McLean, speaking of the incident already cited, is tothe point:

[Footnote 58: Citing Reg. _v_. Recorder of Wolverhampton, 18 Law T. 395-398; see also H. R. , Doc. 568, 57 Cong. , 1 Sess. , p. 17. ]

"Every citizen is . . . Bound by the regard he has for his country, bythe reverence he has for its laws, and by the calamitous consequences ofwar, to exert his influence in suppressing the unlawful enterprises ofour citizens against any foreign and friendly power. " And he concludes:"History affords no example of a nation or people that uniformly tookpart in the internal commotions of other Governments which did not bringdown ruin upon themselves. These pregnant examples should guard usagainst a similar policy, which must lead to a similar result. "

In the end nothing came of the alleged unneutral conduct of the UnitedStates in the use which had been permitted of the port of New Orleansduring the war. Had the South African Republic gained an internationalstatus claims for indemnity would probably have lain against the UnitedStates for a violation of its neutral duties. Had the Transvaal, recognized in war as a belligerent, become an independent State as theresult of that war, such claims would doubtless have been honored andcompensation been made upon equitable grounds. Had the opponent of GreatBritain in the war been one of the recognized powers of the world such ause of territorial waters could not have been permitted without aneffective protest having been made by the State which was injured. TheRepublics, however, were treated at the close of the war as conqueredterritory and their obligations taken over by the British Government. Their rights as an independent State vanished when they failed to attainthe end for which they fought. 

The extreme generosity afterward displayed by Great Britain in thesettlement of the claims of all citizens of the United States who hadsuffered by the war may possibly be explained by the benefits which theEnglish forces were able to secure from the construction which was putupon American neutrality. 

A resolution of the House of Representatives inquiring as to thetreatment of citizens of the United States in the South African Republicbrought out the fact that the number of those who claimed compensationwas not large and that the British Government was willing to indemnifythem. [59] The terms of settlement allowed to the United States were inmarked contrast to those granted to other powers whose citizens orsubjects had also presented claims for indemnity through theirrespective governments. This fact is evident from the transactionsbefore the Deportation Claims Commission, the appointment of which wasannounced on April 8, 1901. 

[Footnote 59: H. Res. , 178, 56 Cong. , 1 Sess. ; also H. R. , Doc. 618, 56Cong. , 1 Sess. ]

The commission came together "for the purpose of investigating theclaims to compensation which have been made or may be made by personsthe subjects of various friendly powers in consequence of theirdeportation to Europe by the British military authorities in SouthAfrica. "[60] It was to be composed of five members, among them "R. K. Loveday, Esq. , formerly a member of the late South African Republic. "The commission was to meet in London to hear such cases as might bepresented there and then proceed to South Africa with the purpose ofcontinuing its investigations. Any further evidence that was considerednecessary was to be taken on the return to London. It was announced thatall claims should be filed on or before April 25, 1901, that claimantsmight appear either in person or by counsel, and that the differentgovernments might represent the combined claims of their respectivecitizens or subjects. 

[Footnote 60: For. Rel. , 1901, pp. 216-222. ]

Mr. R. Newton Crane appeared before the commission on the part of theUnited States. In all, fifteen claims were presented. Five of these werepresented by persons who alleged that they were native-born citizens ofthe United States, although no evidence was furnished as to the date orplace of their birth. Eight alleged that they were naturalized citizens, while there were two who could produce no evidence whatever of theirstatus. Eight had been deported on the suspicion of having beenconcerned in the Johannesburg plot to murder Lord Roberts and otherEnglish officers; one had been imprisoned at Natal as a Boer spy;another was captured on the field of battle while serving, as healleged, with a Red Cross ambulance corps attached to the Boer forces;three others were compelled to leave the country for various reasons, while two more could produce no evidence that they had been forciblydeported; on the contrary it appeared that they had left South Africavoluntarily and at their own expense. The whole amount claimed was$52, 278. 29 on account of actual losses alleged. The commission heard allclaims by means of an _ex parte_ statement in each case, with theexception of two for which no statement had been presented. These lasttwo had been mentioned as claimants by the Ambassador of the UnitedStates on October 24, 1900, in a communication to Lord Landsdowne, theEnglish Secretary of State for Foreign Affairs, and were so presented tothe consideration of the commission. 

In dealing with the cases the commission did not insist upon anytechnical formality in the way of proof. The plan followed was to allowthe legal representative of the English Government an opportunity toexplain why each individual had been deported. The several claimantswere then permitted to put in evidence to clear themselves of thesecharges. After the claims had all been considered in this way theEnglish representative announced the wish of his government to "agreewith the representatives of the various governments upon a lump sum tobe received by each of the powers in full satisfaction of the demands oftheir respective claimants, " it being understood that the BritishGovernment "was not to be concerned as to how the sums so paid wereallocated among the various claimants. "[61] This proposal was acceptedby the United States and by the other governments represented. 

[Footnote 61: For. Rel. , 1901, p. 221. ]

With the announcement of the decision of the commissioners on October28, 1901, Mr. Crane pointed out that it had been very difficult todetermine the real merits of most of the claims. Difficulty had beenexperienced not only in ascertaining the real facts but in applying theprinciples of international law as well. Many of the facts alleged bythe claimants were not substantiated, and it was only the considerateview taken by the British Government which made possible a settlement sofavorable to the United States. 

Holland put in a claim for £706, 355 in behalf of 1139 persons whoalleged that they were Dutch subjects, and received 5. 3 per cent, ofthat amount, or £37, 500, which was the highest actual award made, although the lowest percentage of the sum claimed. Germany received£30, 000, or 12. 22 per cent, of the amount claimed for 199 persons;Austria-Hungary £15, 000, or 34. 24 per cent, for 112 persons; Italy£12, 000, or 28. 52 per cent, for 113 persons; the United States £6, 000, or 22. 22 per cent, for 15 persons. But Mr. Crane called attention to theevident error of basing a calculation upon the relation the award ineach case bears to the amount claimed. The amount claimed in most casesis not what the claimant thinks he is justly entitled to for the losseshe has sustained, but is the amount which his "caprice or cupidity fixesas that which may possibly be allowed him. "[62] Among the Americanclaims a number included demands for "moral" damages, and these claimswere larger than similar demands put in by citizens of other countries. Even among the American claimants themselves there was a wide divergencein appraising their losses, actual as well as moral. Of three in thesame occupation, the same employment, the same domestic surroundings, deported together, at about the same time, and under almost identicalcircumstances, one demanded $5, 220, the second appraised his losses at$11, 112. 50, and the third estimated his losses at $50, 000. 

[Footnote 62: For. Rel. , 1901, p. 221. ]

With reference to the American claimants the conditions under which thepersons were deported were practically the same, and there was little ifany distinction as to social rank or grade of employment. Mr. Crane, therefore, seems justified in his conclusion that the idea conveyed bythe percentage relation of the amount demanded to the amount actuallyawarded is misleading, and should not serve as a precedent withoutcomment for similar claims in the future. A much fairer method forascertaining what the award really amounts to is shown to be that ofcomputing what average sum each claimant received, since the claimantswere practically of one walk of life and employment and were deportedunder like conditions. Such a computation shows that the United Statesfared much better than any one of the other governments, the average sumreceived by each claimant being £428 11s. 5d. , as compared with £15015s. For Germany; £142 17s. 1d. For Russia; £133 18s. 6d. ForAustria-Hungary; £133 6s. 8d. For Belgium; £125 for Norway and Sweden;and £106 3s. 10d. For Italy. 

The £6, 000 offered by the British Government as full compensation forall claims of citizens of the United States on account of wrongfularrest, imprisonment and deportation from South Africa up to October 26, 1901, was accepted by Secretary Hay. Only £4, 000 had been originallyoffered, but the amount had afterward been increased to £6, 000. Throughout the negotiations the attitude of the English Government wasgenerous toward the United States. The claimants included good, bad andindifferent, some of whom were not entitled to compensation at all, since they were not citizens of the United States, while others hadactually taken up arms against Great Britain. The average amount awardedto each alleged citizen of the United States was approximately $2000 asagainst $216 for each claimant of all other Governments taken together. 

In a number of cases the claimants had contracted with local attorneysupon the basis of a contingent fee of 50 per cent, of whatever might beawarded. In one case the fee of the attorney presenting the claimamounted to $3750, although his services consisted in merely filingmemorials which were not supported by a single word of proof of theassertions they contained, even after ample time had been given for theintroduction of such proof. Mr. Crane, therefore, urged that in futuresimilar claims should be presented directly by the citizens themselveswithout the intermediation of attorneys. In the present cases he saidthat his requests to the attorneys for the different claimants tofurnish evidence to meet the accusations of the British Governmentagainst their clients had met with no response whatever. He feltjustified in believing that these attorneys had either given up thepresentation of the claims of their clients or that the latter weredead. It was accordingly suggested that in either case the United Stateswould be justified in refusing to pay over to the attorneys such sums asmight be allotted to their clients until the latter had been directlycommunicated with. In this way they would have the opportunity toconfirm or withdraw any powers of attorney which they might haveexecuted for the collection of their respective claims. 

CHAPTER II. 

THE NEUTRALITY OF EUROPEAN POWERS. 

The attitude of the European powers was generally observant of therequirements of neutrality in so far as governmental action could beproved. The frequent charges which Great Britain made that the Transvaalwas recruiting forces in Europe were not proved against the States fromwhich the recruits came. The numbers in the parties which perhapsactually joined the Boer forces were not large, and no formidablefitting out of an expedition or wholesale assistance was proved againstany European government. 

Germany, the power most nearly in touch with the Transvaal in SouthAfrica with the exception of Portugal, early declared the governmentalattitude toward the struggle. The German consul-general at Cape Town onOctober 19, 1899, issued a proclamation enjoining all German subjects tohold aloof from participation in the hostilities which Great Britain atthat time had not recognized as belligerent in character. If insurgencybe recognized as a distinct status falling short of belligerency, thiswas perhaps such a recognition, but it was in no sense an unfriendly acttoward Great Britain. It was merely a warning to German subjects as tothe manner in which they should conduct themselves under thecircumstances. It did not recognize the Boers as belligerents in theinternational sense, but it warned German subjects that a condition ofaffairs existed which called for vigilance on their part in theirconduct toward, the contestants. Later, when the British Governmentannounced that the war would be recognized retroactively as entitled tofull belligerent status, Germany declared the governmental attitude tobe that of strict neutrality in the contest. An attempt of the Boers torecruit in Damaraland was promptly stopped by the German officers incontrol, who were ordered to allow neither men nor horses to cross theborder for the purposes of the war. All German steamship lines whichheld subventions from the Government were warned that if they were foundcarrying contraband they would thereby forfeit their privileges. Stringent orders were also given by the different German ship companiesto their agents in no case to ship contraband for the belligerents. Theattitude assumed by the German Government was not entirely in accordwith the popular feeling in Germany. On October 5 a mass-meeting atGöttingen, before proceeding to the business for which the conferencewas called, proposed a resolution of sympathy for the Boers: "Notbecause the Boers are entirely in the right, but because we Germans musttake sides against the English. "[1] But despite popular sentiment, theposition which had been taken by the Government seems to have beenconsistently maintained. 

[Footnote 1: London Times, Weekly Ed. , Oct. 5, 1899, p. 626, col. 2. ]

In June, prior to the outbreak of war, President Kruger had been advisedby the Dutch Minister for Foreign Affairs that the Transvaal shouldmaintain a moderate attitude in the discussion of the questions at issuewith the British Government. The German Government, too, had advised theRepublics to invite mediation, but at that time President Krugerdeclared that the moment had not yet come for applying for the mediationof America. The United States, it was considered by both Holland andGermany, could most successfully have undertaken the role of mediatorfrom the fact that England would have been more likely to entertainproposals of the kind coming from Washington than from a Europeancapital. 

In December, 1900, Count Von Bülow, the German Imperial Chancellor, speaking of the neutral attitude of Germany, declared that whenPresident Kruger later attempted to secure arbitration it was not untilfeeling had become so heated that he was compelled to announce to theDutch Government that it was not possible to arrange for arbitration. The German Government, it was declared, regarded any appeal to a GreatPower at that time as hopeless and as very dangerous to the Transvaal. The German and the Dutch Governments each believed that President Krugershould not have rejected the English proposal then before him for ajoint commission of inquiry. [2] The German Government had nothing forwhich to reproach itself in regard to the outbreak of war or withreference to the fate of the Republics. "Of course there are certainlengths to which we could not possibly go. We could not, in order toprevent the door from being slammed, let our own fingers be crushedbetween the door and the hinges; that would not have helped the Boersand would only have harmed ourselves, --and when the war had broken outit was impossible for us, in view of the general situation of the worldand from the standpoint of German interests as a whole to adopt anyattitude except that of strict neutrality. "[3] Continuing, Count VonBülow pointed out the fact that the policy of a great country should notat a critical moment be governed by the dictates of feeling, but shouldbe guided solely in accordance with the interests of the country, calmlyand deliberately calculated. 

[Footnote 2: The German Chancellor seems slightly in error in assumingthat the Transvaal _rejected_ the English proposal for a joint inquiry. It will be remembered that immediately following the BloemfonteinConference President Kruger had drafted a law considerably modifying theTransvaal demands in the conference, and later submitted the proposalsof August 19, which he alleged had been" induced "by their impliedacceptance on the part of the British agent. When these proposals lapsedfrom the fact of their non-acceptance by the British Government, hedeclared that he was ready to return to the discussion of the proposedjoint commission of inquiry and was met by the English assertion thatthe condition of affairs no longer warranted a discussion of theoriginal proposal for such a commission, and that Great Britain wouldhave to formulate new demands to meet the altered conditions. Theoutbreak of war had forestalled these demands. ]

[Footnote 3: Speech in Reichstag, London Times, Dec. 11, 1900, p. 5, col. 1. ]

The possibility of mediation with Germany in the role of mediator wasshown to have been made conditional upon the acceptance of such a stepby both the parties to the contest, as otherwise it would not have beenmediation but intervention, with the ultimate possibility of theexercise of force for the purpose of stopping the hostilities. Intervention of that kind, involving the idea of coercion, was neverconsidered by the German Government because of the general situation ofthe world and of special German interests. The idea of anything otherthan entirely peaceful and friendly intervention was not entertained byany power in considering the situation in South Africa. The GermanChancellor declared that "even those Powers which academicallyventilated the idea of peaceful mediation invariably and expressly laidstress upon the fact that they had no thought or intention of forcingEngland to accept peace against her will. " He asserted that thepossibility of mediation was thus excluded since the preliminarycondition of such a course was the consent of both parties to theconflict. 

Count Von Bülow also called attention to the fact that the gentlest formof diplomatic inquiry made by the United States had been rejected by theEnglish Government "officially and categorically in the most distinctmanner possible. " And speaking officially, he continued, "We thereforedid what we could as a neutral Power and without imperilling directGerman interests in order to prevent the outbreak of war. In particularwe acted in the most straightforward manner toward the governments ofthe South African Republics inasmuch as from the first and in good timewe left them in no doubt regarding the situation in Europe and alsoregarding our own neutrality in the event of war in South Africa. Inboth these regards we made matters clear to the two South AfricanRepublics and did so in good time. "[4] The Chancellor seems to havefairly defined the position maintained by the German Governmentthroughout the war, although popular feeling often clamored for officialaction in behalf of the Boers. 

[Footnote 4: Speech in Reichstag, Dec. 10, 1900. ]

A similar course was pursued by the French Government despite the factthat in France popular sympathy was more strongly in favor of theTransvaal than was the case in Germany. No official action, however, wastaken which could involve France in complications in view of thedeclared neutral attitude assumed at the beginning of the war. Theadministration at Paris ordered the prefects throughout the country tohave removed from the official minutes the resolutions of sympathy forthe Boers which had been adopted by the provincial councils. But opposedto the correct attitude of the Government, popular feeling wasmanifested in different ways. A committee of ladies in Paris made adirect appeal to the French people. They declared: "We are not biasedenemies of the British Nation . . . But we have a horror of graspingfinanciers, the men of prey who have concocted in cold blood thisrascally war. They have committed with premeditation a crime of_lèse-humanité_, the greatest of crimes. May the blood which reddens thebattle-fields of South Africa forever be upon their heads. . . . Yes, weare heart and soul with the Boers. . . . We admire them because old menand young women, even, are all fighting like heroes. . . . Alas! to besure, there is no more a France, nor yet an America. . . . Ah! Idealabode of the human conscience, founded by Socrates, sanctified byChrist, illuminated in flashes of lightning by the French Revolution, what has become of thee? There is no longer a common temple forcivilized states. Our house is divided against itself and is fallingasunder. Peace reigns everywhere save on the banks of the Vaal, but itis an armed peace, an odious peace, a poisoned peace which is eating usup and from which we are all dying. "[5] Such hysterical outbursts inFrance were not taken seriously by the Government, and the feeling whichinspired them was possibly more largely due to historic hatred ofEngland than to the inherent justice of the Boer cause. 

[Footnote 5: London Times, April 2, 1900, p. 5, col. 5. ]

The Ninth Peace Conference, which was in session at Paris in the fall of1900, without expressly assuming the right of interfering in the affairsof a friendly nation further than to "emphatically affirm theunchangeable principles of international justice, " adopted a resolutiondeclaring that the responsibility for the war devastating South Africafell upon that one of the two parties who repeatedly refusedarbitration, that is, it was explained, upon the British Government;that the British Government, in ignoring the principles of right andjustice, in refusing arbitration and in using menaces only too likely tobring about war in a dispute which might have been settled by judicialmethods, had committed an outrage against the rights of nationscalculated to retard the pacific evolution of humanity; that theGovernments represented at the Hague had taken no public measures toensure respect for the resolutions which should have been regarded bythem as an engagement of honor; that an appeal to public opinion on thesubject of the Transvaal was advocated and sympathy and admiration wereexpressed for the English members of the conference. [6]

[Footnote 6: London Times, Oct. 3, 1900, p. 3, col. 3. ]

The usual French attitude toward Great Britain was expressed in theseresolutions, but the conference was not prepared to go so far as toadopt a resolution proposed by a member from Belgium expressing the hopethat the mistake of depriving the Republics of their independence wouldnot be committed, and favoring an energetic appeal to the powers forintervention. The resolution was rejected by a large majority on theground that it would be impolitic and naturally irritating to Englandand without much probability of favorable results being attained. 

When the delegation of the Boers which was sent to appeal to theEuropean Powers for action in behalf of the Republics reached Paris inJuly, 1900, the attitude of the French Government was not altered, norwere the envoys encouraged to hope for intervention. They were receivedby the President but only in an informal and unofficial manner whenpresented by Dr. Leyds. When they reached Berlin in August neither theEmperor nor the Chancellor was in the city and consequently the visithad no official significance, but in St. Petersburg a more favorablereception awaited them. The Official Messenger announced on August 26that Dr. Leyds had been received in audience by the Czar. Thisstatement, coming as it did from the official organ of the ForeignOffice, seemed to signify a full recognition of the accredited characterof the delegation, and Dr. Leyds was referred to officially as "Ministerof the South African Republic. "[7] With the exception of the BritishMinister, he was received by all of the diplomatic corps, a courtesywhich the members could not well have denied him, but as to practicalresults the mission to Russia amounted to nothing. 

[Footnote 7: London Times, July 26, 1900. ]

On their return to Germany the envoys received no official notice. Thesecret instructions which they had opened only upon reaching Milan weresupposed to have contained certain communications which had beenexchanged between the Governments of the Transvaal and Great Britain butwhich it was alleged had not been published in the Blue Books. Thisassertion of sinister motives on the part of Great Britain exertedlittle influence upon foreign governments in Europe. The delegationrealized the impossibility of securing the interference of a concert ofPowers or of any one State against the wishes of England. The mission ofthe Boers had been doomed to failure from the beginning. 

The action of the Queen of Holland in receiving the delegation wasgenerally understood as not of an unneutral character but as inspired bysympathy for a kindred people and a willingness to mediate though not tointervene. It was recognized that no nation whose interests were notdirectly concerned could afford to persist in offers of mediation inview of the fact that Great Britain had already intimated to the UnitedStates that such an offer could not be accepted. Although Hollandrefused to intervene, the attitude assumed by the Dutch Government inother respects caused severe criticism in England. The chiefcircumstance which confirmed the opinion that Holland as a neutral Statehad not displayed a proper attitude at Lorenzo Marques was the fact thatafter the visit of the envoys of the Transvaal the Hague Government hadsent a man-of-war to the island of St. Helena, which was being used as aprison for the Boers who were transported from South Africa. Thisproceeding was viewed by England as officious from the fact that foreignmen-of-war were not usually received at that port. Popular feeling sawin the despatch of the man-of-war an unfriendly act which might easilyhave led to difficulty. But the incident, aside from the benevolentcharacter which Holland had given to the enforcement of her neutralitylaws throughout the war, had no significance in international law. Itwas generally considered, however, that the feeling which Englandmanifested with regard to the visit of the cruiser gave some ground forthe suspicion that the British Government might have had something toconceal at St. Helena. 

The general attitude of Germany, France and Russia toward the Boermission was guided by a policy of strict adherence to the neutralobligations assumed at the beginning of the war. These Powers in theirofficial statements all followed such a course, realizing that it wasdemanded by a sound foreign policy. They considered the idea ofintervention out of the question, although friendly interest for theBoers and for the peaceful purpose of their mission was evident. 

From the beginning of the war the active duties of neutrality had fallenupon Portugal, since neither the Transvaal nor the Orange Free Statepossessed a seaport. Fifty miles of railway separated the Portugueseharbor of Lorenzo Marques in Delagoa Bay from the Transvaal border, andfrom this point the road continued to Pretoria. Lorenzo Marques beingneutral could not be blockaded, but, being neutral, it was the duty ofthe Portuguese Government to observe the laws of neutrality. GreatBritain alleged that a constant stream of supplies and recruits passedover the Portuguese border to aid the Boer armies. The difficulty on thepart of the English Government, however, was to prove that the goodswere in fact on their way to a belligerent destination or that smallparties of men were in reality organized bands of recruits for thefighting forces of the enemy. It was asserted that the manner in whichPortugal performed her neutral obligations, demanding an absolutelyimpartial treatment of both belligerents, made Delagoa Bay and the portof Lorenzo Marques more valuable to the Republics than would have beenthe case had they actually been in their possession. 

The efficiency of Portugal's performance of neutral duties varied duringthe war. As early as August 25, before negotiations had been broken offbetween the Transvaal and Great Britain, the Portuguese Governor atLorenzo Marques refused to permit two cargoes of Mauser ammunition toland because it was consigned to the Transvaal. The ammunition wastransferred to a Portuguese troop ship, and the Governor assigned assufficient reason for his action the fact that Great Britain had urgedthe measure upon the Portuguese authorities. He stated that orders hadbeen received from Lisbon that guns and ammunition for the Transvaalshould not be landed until further notice from the PortugueseGovernment. The Transvaal strongly protested against this act as abreach of a treaty between the two Governments in which by Article VIthe Portuguese Government was prohibited from stopping ammunitionintended for the Transvaal, but upon representations by England mightstop ammunition on its way to any English colony. The opinion in theTransvaal was that the act on the part of Portugal and Great Britainconstituted an act of war, in that peaceable negotiations were stillpending, a view which seems fully warranted since Portugal possessed noright to treat any traffic as contraband before war had begun. Apetition was circulated at Pretoria advising the Government todiscontinue negotiations pending with England looking to a peacefulsettlement of the issues between the two Governments. Although this stepwas not taken, the protestations made by the Transvaal seem to have hadtheir effect upon the Portuguese authorities, for upon the outbreak ofwar the banks at Lorenzo Marques continued to accept Transvaal coin, andafter the first flurry caused by the transition from peace to war theTransvaal notes were accepted at their face value. 

By the middle of December the English Government had begun to view thecondition of affairs at the port of Delagoa Bay and the town of LorenzoMarques with grave dissatisfaction. It was publicly alleged that LorenzoMarques was nothing more nor less than a base from which the Transvaalobtained everything that it needed. Further than this, it was declaredthat the town was the headquarters of Transvaal agents of everydescription who were in daily communication with their Government andwith Europe. The English authorities felt themselves helpless to preventthe importation of machinery and other material required for the mineswhich were worked by the Transvaal Government. Even explosives for thegovernment factory and actual ammunition reached the Transvaal by way ofLorenzo Marques because of the inability of the English cruisers to makea thorough search of foreign vessels bound for a neutral port andprofessedly carrying foodstuffs. British shippers alleged that whilethey were prohibited from trading with the enemy foreign shippers werereaping the profits and materially aiding in the prolongation of thewar. 

It later developed that the apparent neglect on the part of Portugal toobserve a strict watch over the character of goods allowed to passthrough to the Transvaal was not entirely due to the governmentalattitude at Lisbon. It seems that the Dutch consul at Lorenzo Marqueshad taken over in the way of friendly offices the interests of theOrange Free State as well as those of the Transvaal. It was alsoascertained that the consul of Holland was the manager of the localagencies for a number of steamboat companies, among them the CastlePacket Company, the African Boating Company, the British India, and theBritish and Colonial Steam Navigation Company. Only one English companyhad put patriotism before profit and transferred its agency from theDutch consul upon the outbreak of war. 

The British Government was also handicapped by the fact that localBritish banks accepted the drafts issued by the Transvaal and OrangeFree State. The Transvaal dies of 1899 and 1900 had been seized by theEnglish, but despite this fact the coins issued with the date of thedies of 1897 and 1898 were freely used by the local English banks. [8]This unpatriotic action on the part of British subjects controlling thebanks made easy the work of the Boer forwarding agents; it was alleged, and the fact seemed pretty well authenticated, that the Dutch consul, Mr. Pott, facilitated this work by allowing contraband to be landed atnight. Such articles thrown into half-laden trucks upon the railwayoften reached the Transvaal without detection. Cases labelled "candles"were hoisted in without pretense of examination. It was alleged alsothat guns and fifty tons of shells had been landed in December under thevery noses of two British warships, and that wholesale smuggling wasgoing on with the connivance of a nominally neutral consular agent. 

[Footnote 8: London Times, Weekly Ed. , Jan. 12, 1899, p. 20, col. 4. ]

Under the protests of the British Government, however, orders arrivedfrom Lisbon which revived an old law requiring all persons leavingPortuguese territory to obtain passports signed by the Governor-general. The applicants were required to give guarantees through their respectiveconsuls that they were not going to the Transvaal for the purpose ofenlisting. The Portuguese authorities took the matter in hand, andpersons attempting to go without passports were promptly sent back. Thecustoms authorities began a stricter watch over the Transvaal imports, and on January 19 seized as contraband three cases of signallingapparatus consigned to Pretoria. [9]

[Footnote 9: London Times, Weekly Ed. , Jan. 19, 1900, p. 36, col. 3. ]

It was claimed, however, that of the imports of £30, 500 to Delagoa Bayduring December there had been forwarded to the Transvaal goods valuedat not less than £21, 000. And it seemed evident to England, despite themore stringent port regulations, that the number of foreigners dailyentering the Transvaal by way of Lorenzo Marques was far in excess ofthe number which would be desirous of going to Pretoria for peacefulpurposes. Mr. Pott, it was still alleged, was acting as the head of aBoer organization for facilitating the entrance of men desiring toenlist with the Boer forces. He was consequently cautioned in January bythe Portuguese Governor that if he recruited for the Boer forces or wasdetected doing anything inconsistent with the neutral obligations ofPortugal, a request would be made to the Netherlands Government to havehim transferred to another field. The Portuguese authorities at the sametime began a closer supervision of the persons who were allowed to enterthe Transvaal from Portuguese territory. The previous restriction thatpassports be signed by the respective consuls of persons leaving forTransvaal territory was considered insufficient, and the consuls of thedifferent countries represented at Lorenzo Marques were informed thatthey must personally guarantee that the applicants whom they endorsedwere not military men, and were not proceeding to assist the Boer forcesin the field. 

These restrictions, while giving evidence of Portugal's efforts to seethat the neutrality of the port was respected, did not satisfy theEnglish authorities. The latter still alleged that no doubt existed asto the fact that Lorenzo Marques was being used by Boer agents as arecruiting station for the Transvaal forces. It was asserted that largenumbers of "men of military stamp" landed daily at Lorenzo Marques fromall parts of Europe, and were allowed to proceed to the Transvaal forthe purpose of either actually enlisting with the Boers or working thegovernment mines. It was alleged, too, that a number of these newcomerswere "smart looking men, " evidently officers. The majority, however, were of a low class, mostly penniless adventurers. On February 2 thereport was made to the English authorities that twenty of the bettersort, many wearing riding boots and carrying field glasses, had leftLorenzo Marques for the Transvaal, and as tending to throw suspicionupon the purpose of their journey, a Transvaal detective was "mostassiduous" in his attentions to them. [10] The influence of the consul ofHolland largely defeated all efforts to stop entirely the imperfectfulfillment of the duties of neutrality incumbent upon the port. 

[Footnote 10: London Times, Weekly Ed. , Feb. 5, 1900, p. 84, col. 2. ]

At other places any attempts to convey prohibited goods into theTransvaal were summarily stopped. Arms and ammunition which the Boersattempted to land at Inhambane were seized by the Portuguese customsauthorities on the ground that they were consigned under a falsedescription. The consignment was not a large one and the attempt wasevidently made as an experiment. This incident, too, indicates theextremity to which the Transvaal authorities had been reduced by theincreased watchfulness at Lorenzo Marques, for the distance from theport of Inhambane to the Transvaal could be covered only by nativecarriers and required fourteen days for the trip. The difficulties inevading the customs surveillance at Lorenzo Marques had also beenincreased by the fact that most of the steamship companies which had atfirst employed the Dutch consul as their agent had later relieved him ofthis duty. But, notwithstanding the continued protests by England, theHague Government seemed reluctant to take any official notice of theevident partiality of its consular agent. With reference to the Englishprotests the Administration took the view that while acting as therepresentative of the Transvaal and Orange Free State during the war Mr. Pott was only fulfilling the duties incumbent upon him in this triplecapacity. 

As the war progressed, although the administration of the customs atLorenzo Marques was made more efficient, this improvement was inverselyproportional to the successes of the Boer forces in the field. Under thecircumstances it was almost impossible for England to prove that actualgovernmental support had been given to any scheme for augmenting themilitary forces of the Transvaal, but the whole manipulation of thecustoms seemed to be controlled by a weak administration not tooscrupulous in seeing that an impartial view was taken of the situation. The failure of the Boers to attain their ends in the field did more toimprove the efficiency of the administration of the customs than theprotests of England. It seems unquestionable that the resources of theTransvaal had induced the Portuguese authorities at Lorenzo Marques todisplay toward the Boers an attitude which, according to obsolete ideas, was termed benevolent neutrality. But as the Boer hopes declined thePortuguese authorities increased their vigilance, and in the end went asfar in favor of England as they had previously gone in their benevolentattitude to the Republics. Passengers arriving by German and othersteamers were refused passports upon the instance of the British consulwhere there was a strong suspicion that they were entering the Transvaalfor purposes hostile to Great Britain. 

Portugal, too, refused to accept the offer of the Transvaal to advancethe amount required of the Lisbon Government by the Beirne ArbitrationAward. [11] The Portuguese Government, in courteously declining theoffer, stated that the amount had already been provided. Great Britain, who already held a preemptive title to Delagoa Bay, was also ready toadvance the money, but was denied this privilege by Portugal. 

[Footnote 11: London Times, Weekly Ed. , April 20, 1900, p. 244, col. 2. ]

By August, 1900, it had become evident that the Boer hopes of bringingthe war to any sort of favorable conclusion were doomed to failure. OnAugust 4 all the customs officials at Lorenzo Marques were dismissed andtheir places filled by military officers, and a force of twelve hundredmen was sent out from Lisbon two days later. The Portuguese frontier wasput under a strong guard and all Boer refugees who arrived were summonedbefore the Governor and warned against carrying on any communicationswith the Transvaal Government or with the Boer forces still in thefield. Notice was given them that if they were detected in suchtransactions they would be sent out of Portuguese territory and theright of asylum denied them. And in the further performance of herneutral duties at such a time Portugal assumed an entirely correctattitude. 

In September three thousand Boers evacuated their position along thefrontier and surrendered to the Portuguese Governor. They were lodged inthe barracks at Lorenzo Marques and later, to prevent any disturbance inthe town that might be caused by their presence, were removed to thePortuguese transports lying in the harbor. The Governor gave notice tothe English commander who had occupied the position evacuated by theBoers that all the Transvaal troops which had surrendered were beingguarded and would not be allowed to rejoin the Boer forces still in thefield. A number of the refugees agreed to surrender to the Britishcommander as prisoners of war upon the stipulation that they would notbe sent out of the country, and thus better terms were obtained than bythose captured in the field. Others who surrendered to Portugal weretransported by Portuguese ships to Lisbon, land being assigned them inthe country where they were given permission to settle. 

In other respects, also, during the later phases of actual warfare, Portugal maintained a correct attitude. Especially was this attitudenoticeable with reference to the investigation of the conduct of theDutch consul at Lorenzo Marques. In spite of the protests of GreatBritain and of Portugal as to his unneutral attitude he had beencontinued in his position. But on December 7, 1900, the strain to whichthe relations between the two Governments had been put reached thebreaking point. The Dutch Minister, Dr. Van Weede, withdrew from Lisbonand at the same time the Portuguese Minister at the Hague, Count deSelin, returned to Lisbon. 

The reason for this technical breaking off of friendly relations wasexplained on December 11. A member of the Second Chamber at the Hague, M. Van Bylandt, questioned the Minister for Foreign Affairs as to thecause of the difficulties between the two Governments. M. Beaufort, inhis explanation of the situation, stated that as early as November 17, 1899, the Dutch Government had been informed that it would be necessaryfor the Lisbon authorities to cancel the exequatur of Mr. Pott as consulat Lorenzo Marques. This cancellation of the agent's credentials, it wasalleged, was deemed necessary on account of irregularities withreference to the transshipment of contraband of war from Lorenzo Marquesto the Transvaal. It was further represented to the Dutch Governmentthat the consul under suspension had made an improper use of hisposition as the acting consular agent for the Free State and theTransvaal; he had taken advantage of the consular privileges accordedhim at Lorenzo Marques as the representative of a neutral Power at aneutral port; the courteous communications made by the PortugueseGovernment prior to the final withdrawal of his exequatur had notreceived from the Hague Government the attention they deserved; everyopportunity had been given the Dutch Government to take the initiativein the matter by merely recalling their agent, but this step had notbeen taken. 

M. Beaufort admitted that this had been the attitude of the PortugueseGovernment, but asserted that he had not cared to suspend Mr. Pottwithout an inquiry, and for this purpose had merely granted him leave ofabsence for three months. This action, he said, had not been favorablyreceived in Lisbon, and he had therefore thought it necessary to warnthe Portuguese Government that the withdrawal of the consul's exequaturwould be considered an unfriendly act. But notwithstanding the warning, the consul's credentials had been cancelled by the Lisbon Government. Asa consequence of this act M. Beaufort had requested the Dutch Ministerat Lisbon to come to the Hague that he might take part in a personalinterview with the consul under suspension. Later, M. Beaufort statedthat the specific incidents upon which Mr. Pott's conduct had beenarraigned were the illegal importation of heliographic apparatus for theTransvaal artillery and a wrongful grant of passports in his dualcapacity as consular agent for Holland and the Republics. [12]

[Footnote 12: London Times, March 1, 1900, p. 5, col. 3. ]

In the end diplomatic relations were resumed between the twoGovernments. Holland, after an investigation of the charges against herconsul, acquiesced in the action of the Lisbon Government. But theincident served to demonstrate the fact that the Government at Lisbonwas aware of the inefficient manner in which the duties of neutralityhad been enforced at Lorenzo Marques by the port administration. 

From this time on to the close of the war the Portuguese Governmentdisplayed greater care in asserting the neutral character of the port. By placing the town under military supervision this purpose was moresurely attained, and the only other charge made against Portugal for thefailure to perform a neutral duty came from the Transvaal Government, anallegation of a more serious character than any that had been advancedby the English Government. The grounds upon which Portugal granted aprivilege of war to one of the belligerents under protest from the otherhave not been made so clear as the reasons which led to her apparentdereliction of duty at Lorenzo Marques. This incident placed thePortuguese Government in an unfavorable light with regard to its duty inthe full and impartial performance of the obligation of neutrality. British troops were allowed to pass across Portuguese territory in orderto reach belligerent British territory commanding the Transvaal positionon the north. From Rhodesia, the nominal objective point in thismovement of troops, the Transvaal might be conveniently invaded from thenorth, as it was already attacked on the south. 

Early in the war the British South Africa Company, a chartered companywhich was responsible for the administration of the RhodesianGovernment, became apprehensive as to the fate of this section of thecountry should the Boers decide to invade it. Troops had been raised inRhodesia for the war but were employed outside the colony. It wasasserted that this fact had left the province in such an unprotectedstate that, aside from the fear of a Boer invasion, a Kaffir uprisingwas imminent. 

Mr. Chamberlain had refused to send forces into Rhodesia in Decemberupon the ground that troops could not be spared. But it was finallyarranged to send five thousand mounted men, some of them to be enlistedin Rhodesia and all of them to be furnished outside of England. Beforethe end of January, 1899, a commander had been appointed from theEnglish army, and it was expected that the forces would be upon theborders of Bechuanaland by the end of May. 

Difficulty at once arose with reference to the right of passage of thesetroops, military stores, and in fact a full equipment for warlikepurposes. There was not much choice of routes. Those through theTransvaal and through Bechuanaland were closed. The only route left wasthrough the port of Beira. This course necessitated the passage ofbelligerent troops across two hundred miles of neutral territorycontrolled by Portugal as territorial sovereign. Beira, situated aboutfour hundred and fifty miles north of Lorenzo Marques, bears nearly thesame relation topographically to British Mashonaland and to BritishRhodesia that Delagoa Bay does to the Transvaal and the Orange FreeState. A railway nearing completion formed an almost continuous routefrom Beira to Salisbury in Rhodesia, and once in the latter provincetroops would be in a position to invade the Transvaal. 

Under ordinary circumstances it would have been a distinct breach ofneutrality on the part of Portugal to allow the passage across herterritory of the troops of one of the belligerents, since the obviousdestination could only be the country of the other belligerent, withwhom she was on friendly terms. Portugal had granted to England in 1896the right of passage for a field force to be used against the natives inMashonaland. [13] But that was a case of warfare against a savage tribe, and was not to be considered as a reliable precedent for similar actionagainst a civilized State such as the South African Republic. 

[Footnote 13: Times Military History of the War in South Africa, Vol. IVp. 365]

The principles of the international law of modern times leave little orno doubt as to the proper course for a neutral to follow in such a case. Oppenheim says: "In contradistinction to the practice of the eighteenthcentury, it is now generally recognized that a violation of the duty ofimpartiality is involved when a neutral allows a belligerent the passageof troops or the transport of war material over his territory. And itmatters not whether a neutral give such permission to one of thebelligerents only, or to both alike. "[14] And Lawrence points out that"It is now acknowledged almost universally that a neutral state whichpermits the passage of any part of a belligerent army through itsterritory is acting in such a partial manner as to draw down upon itselfjust reprobation. " The permission given of necessity "to further awarlike end" is "therefore inconsistent with the fundamental principleof state neutrality. " "These considerations, " he says, "have influencedpractice during the present century, and the weight of modern precedentis against the grant of passage in any case. "[15]

[Footnote 14: International Law (1906), Vol. II, p. 345]

[Footnote 15: Principles of International Law, p. 526. The older writersdiffered from this view. Grotius maintained the right of passage, evenby force; Vattel practically agreed with Grotius that it might be takenby force, but contended that it should be asked and force used onlyunder extreme necessity, or when the refusal was unjust; Wheaton deniedthat the right of passage was a "perfect right" and consequently couldnot be enforced against the will of the neutral; Hall, International Law(1880), §219, points out that more recent writers take an opposite view, namely, that a grant of passage is incapable of impartial distribution. See also Wheaton, International Law, §427; Vattel, Droit des gens, III, §110; Calvo, Droit international, 3d Ed. , III, §§2344-2347. ]

Mr. Baty, who has made a careful study of the precedents upon thesubject, states that while "writers vary in their treatment of thequestion" of the passage of troops over neutral territory, "the modernauthorities are all one way. "[16] He points out that the jurists of thefirst half of the nineteenth century, with the possible exception ofKlüber, were "unanimous in following" Grotius and Vattel, and allowingneutrals to permit belligerents passage as long as they did itimpartially. But since the middle of the century a total and violentchange in the opinion of authors has operated. Every modern author holdsthat passage is now a benefit which must be refused absolutely, and notoffered impartially. [17]

[Footnote 16: International Law in South Africa, p. 71. ]

[Footnote 17: Ibid. , p. 73. ]

[Footnote 18: Times Military History of the War in South Africa, Vol. IV, p. 369]

In February the Transvaal Government had attempted to bring troops intoRhodesia by way of Portuguese territory. Portugal had promptly sent outforces to prevent such an evasion of Portuguese neutrality and hadguarded the railway bridges along the line to Rhodesia. And in MarchGreat Britain had met with a refusal to allow a large quantity offoodstuffs, mules, and wagons to be landed at Beira for the purpose oftransportation to Rhodesia. Nevertheless, on April 9, General SirFrederick Carrington landed at Cape Town under orders to proceedimmediately to Beira. [18] He was to use transports put at his disposalby his government for the purpose of collecting a full equipment for hiscommand of five thousand men to be mobilized at Beira, and from thatport was to enter Rhodesia. This province was then to be made the basefor an expedition against Pretoria in concert with the English forcesadvancing from the south. 

It is undoubted that the laws of neutrality demanded of Portugal notonly an impartial treatment of both belligerents, as the earlier writersheld, but an absolute prohibition against such a warlike expedition byeither of them, as unanimously held by all the more recent authorities. At the time English public expression contended that absolute equalityof neutrality was not incumbent upon independent States in theperformance of their neutral duties. English writers spoke of a"benevolent neutrality" as possible, and cited such cases as that in1877, when Roumania, before taking an active part in the war againstTurkey, permitted Russian troops to march through her territory; and theincident which occurred during the Neuchâtel Royalist insurrection in1856 when the Prussian Government requested permission to march throughWurtemberg and Baden "without any idea of asking those states to abandontheir neutrality, or assist Prussia against Switzerland. "

It was alleged upon the authority of such precedents that the privilegeof passage for troops might be granted by Portugal to England without abreach of neutrality really occurring. Portugal would be merely givingher neutrality a benevolent character towards one of the belligerents, which it was asserted she was perfectly entitled to do, a view of thesituation which is too obsolete in the light of modern times to needcriticism. Although public opinion throughout Europe is usually hostileto England when she is at war, the general condemnation of the proposeduse of neutral territory seems therefore to have been well founded inthis particular case. 

The Cabinet at Paris refused to entertain any question or debate on theproposed passage of English troops through Portuguese territory. OnApril 11, however, a discussion of the subject occurred in the Chamberof Deputies in which two interpellations were announced by thePresident. One of these questioned the Government as to what steps hadbeen taken to protect French interests in Mozambique; the other hadreference to the proposed passage of English troops inland from Beira. M. Delcasse said that the Chamber did not feel that the Governmentshould discuss a current question of international law, but he pointedout the fact that France with the other Great Powers had declared herneutrality at the beginning of hostilities. He added, however, that itwas not the part of France to guarantee the neutrality of others. Onemember asserted that the proposed act would be a distinct violation ofher neutral duties by Portugal. Another declared that Europe, byconcerted action, should prevent such a flagrant violation of neutralityduring a war in which a small nation was already contending againstgreat odds; that France, surrounded by neutral nations, could not affordto see such a precedent established and should appeal to Europe to joinwith her in protesting. 

Although such concerted action as was proposed by the different memberswas improbable, and although the proposals may have been dictated by theusual French bias in situations where English interests are at stake, these opinions indicate pretty well the real sentiment in Europe at thetime. 

The Transvaal Government formally notified Portugal that the passage ofBritish troops and munitions of war through Beira would be considered inthe Transvaal as tantamount to hostile action. Nevertheless, on May 1, the Chamber of Deputies at Lisbon rejected an interpellation made by oneof its members to question the action of the Government with referenceto the privilege which Great Britain sought. The Minister for ForeignAffairs, however, stated that the Transvaal Government had not orderedthe Portuguese consul to leave Pretoria. He denied emphatically that anyincident whatever had followed Portugal's notification to the Transvaal. When further interrogated, the Minister declared that the English troopshad been granted permission to use the railway inland from Beira uponthe plea of treaty rights already possessed by Great Britain. No power, he asserted, had protested except the South African Republic. It waspromised that the Government would later justify its action in grantingthe permission by producing the documents showing the right of Englandto the privilege, but it was not considered convenient at that time todiscuss the question. [19]

[Footnote 19: London Times, April 21, 1900, p. 7, col. 3. ]

The protest of the Transvaal against the alleged breach of neutrality onthe part of Portugal was without effect, and this was the only means theRepublic had of declaring itself. To have entered upon hostile actionagainst Portugal at that time would have had only one result, thestoppage of all communication with the outside world by way of DelagoaBay. The British forces were sent into Rhodesia, and though thesubsequent part they played in the war was not important the purpose ofthe expedition was admitted. It was to cut off any possibility of aretreat northward into British territory by the Boer forces which werebeing driven back by the English advance upon Pretoria. The Britishmilitary plan was that General Carrington should march with his forcesand reach Pretoria from the north at the same time that General Robertsreached that point from the south. [20] Thus, the end for which thetroops were to be used was not to quell an insurrection of the nativesin Rhodesia, as was alleged, but to incorporate the expedition into theregular campaign of the war against the Republics. This being the case, the contractual grounds upon which the English Government claimed theright of passage should have been beyond question in order to furnish ajustification for Portugal or for England in what is viewed byinternational law writers of the present day as a distinct breach ofneutrality. When the expedition was sent out the statement was made thatEngland was merely availing herself of existing treaty rights, but itwas felt necessary to add that the action was not illegal as was that ofthe Boers in making Delagoa Bay their virtual base earlier in the war. And on May 31, in legalizing the proceeding, the Cabinet at Lisbon alsofelt impelled to say that the Portuguese Government had not become aninstrument of British ambition; that it was not a question of puttinginto execution in the territory of Mozambique conventions recentlyconcluded with England, but merely of profiting by stipulations agreedupon in the treaty of 1891 between Great Britain and Portugal. PresidentKruger was, therefore, informed that the legality of the incident wasnot to be questioned at Pretoria. 

[Footnote 20: Times Military History, Vol. IV, p. 364 ff. ]

The consensus of opinion among European Powers was that the landing oftroops at Beira and the passage by rail to Rhodesia with the consent ofPortugal constituted a breach of neutrality on the part of the latter. The opinion was freely expressed that the British Government not onlyplaced a strained interpretation upon the only basis for her action, thetreaty of 1891, but that even upon this interpretation she possessed noreal servitude over the territory used by her for warlike purposes. Theonly claim of justification advanced by the British Government whichwould appear at all tenable rests upon the statement of Calvo: "It maybe that a servitude of public order, or a treaty made antecedently tothe war, imposes on a neutral State the obligation of allowing thepassage of the troops of one belligerent. " "In such a case, " Calvoconcludes, "the fulfilment of the legal obligation cannot be regarded asan assistance afforded to that belligerent and a violation of the dutiesof neutrality. "[21]

[Footnote 21: Baty, Int. Law in South Africa, p. 73, quoting Calvo. ButCalvo calls attention to the fact that this is his own "exception to thegeneral rule, " in support of which he cites no authorities and only oneprecedent--that of the passage of foreign troops across the Canton ofSchaffhausen in 1867 by virtue of a prior treaty between Switzerland andthe Grand Duchy of Baden. Obviously no general conclusion can be drawnfrom the conduct of a neutralized state, such as Switzerland. Thegeneral rule, not the exception, is sought in determining internationalrights. Droit international, 3d Ed. , III, §2347. ]

Basing his argument largely upon this authority, Mr. Baty asserts thatCalvo approves the granting of passage where this privilege has beensecured by previous treaty. But the following statement which he citesfrom Calvo, taken in connection with the rule given above, would appearto deny this conclusion: "During war neutrals may oppose, even by force, all attempts that a belligerent may make to use their territory, andmay, in particular, refuse one of the belligerents a passage for itsarmies to attack the enemy; _so much the more so, inasmuch as theneutral who should allow a passage of the troops of one belligerentwould be false to its character and would give the other just cause ofwar. "_[22]

[Footnote 22: Int. Law in South Africa, p. 73. This quotation isslightly misleading, but even as used it clearly denies the Englishclaim. ]

What Calvo says is: "Tous les publicistes sont d'accord pour admettreque le territoire d'une nation constitue une véritable propriété . . . Le territoire neutre doit être à l'abri de toutes les entreprises desbelligérants de quelque nature qu'elles soient; les neutres ont le droitincontestable de s'opposer par tous les moyens en leur pouvoir, même parla force des armes, à toutes les tentatives qu'un belligerant pourraitfaire pour user de leur territoire. "[23] He also calls attention to thefact that Grotius, Wolff and other authors held that a belligerent, "dont la cause est juste peut, pour aller à la rencontre de son ennemi, traverser avec ses armées le territoire d'une nation neutre. "[24] Buthis statement of the modern rule is conclusive: "Par contre, Heffter, Hautefeuille, Manning et d'autres auteurs modernes se sont avec justeraison élevés contre des principes dans lesquels ils entrevoient lanégation implicite des droits et des devoirs stricts de la neutralité. Aleur yeux, la nation neutre qui consent au passage des troupes de l'unedes parties belligerantes manque à son caractère et donne à l'autrepartie un juste motif de lui déclarer la guerre. "[25]

[Footnote 23: Calvo, §2344. ]

[Footnote 24: Ibid. , §2345. ]

[Footnote 25: Ibid. , §2346. ]

Mr. Baty, without reaching any definite conclusion in the matter, admitsthat the point to be decided in any case is not so much the fact thatthere is an antecedent treaty, as the nature of that treaty. He says, "If it granted a real right of way of the nature of a right _in rem_there is no reason why the way should be stopped against troops any morethan why a purchaser of territory should be debarred from using, it as abase of military operations. " But he points out, "If the treaty onlycreated a right _in personam_ the case is different. " In the latter caseit is obvious that the power which claims the way depends entirely onthe promise of the territorial power for the exercise of that advantage. "In such a case, " he concludes, "it may well be that the performance ofits promise by the territorial power becomes unlawful, on the outbreakof war between the promiser and a third party. "[26] For internationalpurposes the true test is, "Could the power claiming the right of way, or other servitude, enforce its claims during peace time by force, without infringing the sovereignty of the territorial power?" Mr. Baty'sopinion is that "if it could, and, if the servitude is consequently areal right, " the promisee might use its road in time of war, and theowner of the territory would be "bound to permit the use, without givingoffense to the enemy who is prejudiced by the existence of theservitude. "[27] But he continues, "If the right of way is merelycontractual, then the fulfillment of the promise to permit it must betaken to have become illegal on the outbreak of war and the treatycannot be invoked to justify the grant of passage. " It is asserted thatin the former case where a real servitude, a right _in rem_, waspossessed, to stop the use of the road would be analogous to the seizureby a neutral of a belligerent warship to prevent its being used againstthe enemy. In the case where the treaty grants the so-called right _inpersonam_, a merely contractual or promissory right exists, and theexercise of the right would be analogous to the sale of a warship to abelligerent by the neutral granting the permission stipulated in thetreaty. Mr. Baty is of the opinion that while the belligerent might have"a right _in rem_ to the ship so far as the civil law was concerned, " itwould have only a "quasi-contractual right _in personam_ against thestate in whose waters it lay, to allow it to be handed over. " Obviously, the performance of that duty, to hand over the vessel, "would havebecome illegal when hostilities broke out. "[28]

[Footnote 26: Int. Law in South Africa, p. 74. ]

[Footnote 27: Ibid. , p. 74. ]

[Footnote 28: Ibid. , p. 75. ]

We have seen in previous pages that the consensus of opinion amonginternational law authorities of modern times is that a neutral shouldin no case whatever allow the use of its territory for the purposes of abelligerent expedition against a State with which it is upon friendlyterms. But granting the contention made by Mr. Baty that such a thing asa real servitude may exist in international relations, let us examinethe stipulations in the treaty of June 11, 1891, by which it has beenalleged this right was secured to England. 

If the British Government possessed a right _in rem_, then to allintents and purposes it owned the road internationally, in war as wellas in peace, for all the uses to which a road is usually put, namely, that of transporting all kinds of goods, warlike or peaceable. IfEngland only possessed a right _in personam_, this right was a valid onein times of peace and for the purposes stipulated by the terms of thetreaty, but became void in time of war, and, being purely personal incharacter, depended upon the promise of the State through which the roadpassed. In the former case it would be a "right of way" in peace or inwar. In the latter case it would be merely a "license to pass, " for thegranting of which Portugal would have to show valid reasons in view ofher neutral duties. 

The parts of the treaty which may by any possibility apply to the caseare Articles 11, 12, and I4. [29]

[Footnote 29: British and Foreign State Papers, Vol. 83, pp. 27-41, Treaty between Great Britain and Portugal, defining the Spheres ofInfluence of the two Countries in Africa, signed at Lisbon, June 11, 1891, ratifications exchanged at London, July 3, 1891. ]

A portion of Article 11 reads: "It is understood that there shall befreedom for the passage of the subjects and goods of both powers acrossthe Zambesi, and through the districts adjoining the left bank of theriver situated above the confluence of the Shiré, and those adjoiningthe right bank of the Zambezi situated above the confluence of the riverLuenha (Ruenga), without hindrance of any description and withoutpayment of transit dues. "[30]

[Footnote 30: Ibid. , p. 34]

The only applicable portion of Article 12 says: "The PortugueseGovernment engages to permit and to facilitate transit for all personsand goods of every description over the water-ways of the Zambezi, theShiré, the Pungwe, the Busi, the Limpopo, the Sabi and theirtributaries; and also over the land ways which supply means ofcommunication where these rivers are not navigable. "[31]

[Footnote 31: British and Foreign State Papers, Vol. 83, p. 36. ]

The only other clause of the treaty which bears on the case is a portionof Article 14: "In the interests of both Powers, Portugal agrees togrant _absolute freedom of passage_ between the British sphere ofinfluence and Pungwe Bay for _all merchandise_ of every description andto give the necessary facilities for the improvement of the means ofcommunication. "[32]

[Footnote 32: Ibid. , pp. 39-40. Italics our own. ]

It is obvious that Article 14 could not apply to anything more warlikethan "_merchandise_" being transported from Pungwe Bay, where Beira issituated, to the British sphere of influence. It is admitted by Mr. Batythat Article 12 is inapplicable to any routes other than the water-waysspecified and the land routes and portages auxiliary to them. It is alsoadmitted that the only other stipulation that might apply, Article II, "obviously applies to the territory far to the north, and concerns thequestion of access to British Central Africa. "[33]

[Footnote 33: International Law in South Africa, p. 76. ]

Mr. Baty, however, contends that it was not a new right, that of passagethrough Portuguese territory, but was one created by this treaty. Uponthe supposition that if the right still existed in times of war it musthave been by virtue of Article II, he says, "The question arises, 'Wasit such a grant as could be valid in war time?'"[34]

[Footnote 34: Ibid. , p. 76. ]

It should be remembered that Mr. Baty has concluded that Calvo assertsthe possibility of a neutral, without violating its neutral obligations, allowing a belligerent to pass troops over neutral territory for thepurpose of attacking a State which is on friendly terms with theGovernment granting the privilege. Mr. Baty asserts that a real easementexisted in favor of England if she might "force her way along" theroutes stipulated in the treaty, "without going to war with Portugal, "But he says this interpretation is always "subject to the consideration, that the terms of the treaty do not seem to contemplate the use of theroad as a military road at all, " a conclusion which would seem to settlethe question, and deny that any shred of justification existed for theuse to which neutral territory was put in time of war. But Mr. Baty inthe same breath says: "There can be such a thing as a military roadacross neutral territory. The German Empire has such a road across thecanton of Schaffhausen, and there used to be one between Saxony andPoland. But it seems very questionable whether the roads indicated bythe treaty of 1891 were not simply commercial, and not for the purposesof war at all. "[35] And this English writer reluctantly admits, "Thetreaty has, therefore, to be pressed very far to cover the grant of anoverland passage for troops from Beira inland. "[36]

[Footnote 35: International Law in South Africa, p. 77. ]

[Footnote 36: Ibid. , p. 76. ]

The conclusion reached by Mr. Baty is far more favorable to England thanthe circumstances of the case warrant. "One may regret, " he says, "thatthe British Government should have found it necessary to place asomewhat strained interpretation on a treaty which, even then did notgive them in anything like clear terms, an absolute servitude of thekind contended for. "[37]

[Footnote 37: Ibid. , p. 77. ]

Such a conclusion is misleading in the first place because the BritishGovernment was contending for a right which was not recognized amongindependent nations at the time the treaty was formed; in the secondplace, granting that ancient authorities may have declared thepossibility of such a right existing in time of war, the stipulations ofthe treaty itself are the strongest argument against the interpretationused by England. Hall has pointed out that, "When the language of atreaty, taken in the ordinary meaning of the words, yields a plain andreasonable sense, it must be taken to be read in that sense. "[38]The only reasonable sense in which the stipulations of theBritish-Portuguese treaty of 1891 could be taken was that of a purelycommercial agreement. The spirit of the treaty, the general sense andthe context of the disputed terms all seem to indicate that theinstrument considered only times of peace and became absolutely invalidwith reference to the transportation of troops in time of war. Theauthority already cited says, "When the words of a treaty fail to yielda plain and reasonable sense they should be interpreted by recourse tothe general sense and spirit of the treaty as shown by the context ofthe incomplete, improper, ambiguous, or obscure passages, or by theprovisions of the instrument as a whole, "[39]

[Footnote 38: International Law (1880), p. 281. ]

[Footnote 39: Hall, Int. Law (1880), p. 283. ]

Unquestionably the provisions of the instrument as a whole yield but onemeaning. The treaty is not broad enough to sustain the passage of troopsin time of war. Nor would there seem to be any plausibility in the claimthat certain mutual explanations exchanged between the two Governmentsat the time of the signing of the treaty gave tenable ground for thefulfilment of such a right as that which was granted by Portugal. 

The words of the Portuguese notification to the Transvaal condemn theaction of Portugal rather than justify the proceeding in view of therequirements of the neutrality of the present day. This communicationread: "The Portuguese Government has just been informed that inaccordance with the mutual explanations exchanged in the treaty of 1891with regard to the right of moving troops and material of war throughthe Portuguese territory in South Africa into English territory and_vice versa_, the British Government has just made a formal demand forall troops and material of war to be sent through Beira to the Englishhinterland. The Portuguese Government cannot refuse the demand and mustfulfill a convention depending on reciprocity, a convention which wassettled long before the present state of war had been foreseen. Thisagreement cannot be regarded as a superfluous support of one of thebelligerent parties or as a violation of the duties imposed byneutrality or indeed of the good friendly relations which the PortugueseGovernment always wishes to keep up with the Government of the SouthAfrican Republic. "[40] The fact that the assent of the PortugueseGovernment was obtained only after ten weeks of pressure brought to bearupon the Lisbon authorities would seem to indicate that intrigue is morepotent in international relations than accepted precedent. 

[Footnote 40: Times Military History of the War in South Africa, Vol. IV, p. 366, note. ]

In its reply to the Portuguese dispatch the Transvaal reasonablyprotested that the treaty in question had not been made public and thatno notice of it had been received by the Republic at the outbreak ofwar. [41] It was pointed out that this being the case the treaty couldnot be applied even if it granted the right contended for by England. And even stronger was the Transvaal argument that in no case after warhad begun could such a treaty be applied by a neutral State to thedisadvantage of third parties. The fact of neutrality had suspended theworking of the agreement. The action of Portugal, it was justly alleged, put her in the position of an enemy instead of a neutral. 

[Footnote 41: Ibid. , p. 367, note. ]

The Transvaal contention would appear to be fully warranted. In thelight of modern international law the action of England in sendingtroops through neutral Portuguese territory against a nation at peacewith Portugal was based upon a flagrant misreading of a purelycommercial treaty. The action of the Portuguese Government in allowingthis to be accomplished was a gross breach of the duties incumbent upona neutral State in time of war. 

CHAPTER III. 

CONTRABAND OF WAR AND NEUTRAL PORTS. 

During the war the question of blockade could not arise for the reasonthat neither the Transvaal nor the Orange Free State possessed aseaport. Lorenzo Marques being a neutral Portuguese possession could notbe blockaded by the English. General Buller, commanding the British landforces in South Africa, had indeed urged that such a declaration bemade, but it was realized by Great Britain that such a step was notpossible under the laws of war. [1] More stringent measures, however, were taken to prevent the smuggling of contraband through Delagoa Bay, atransaction which the English alleged was an everyday occurrence. Anumber of neutral merchantmen bound for this port were seized, but thedifficulty experienced by England was her inability to prove that thegoods on board were really intended for the enemy, or that the men shownas passengers were actually proceeding to the Transvaal as recruits forthe Boer forces in the field. 

[Footnote 1: Sessional Papers of the House of Commons, Royal Commissionon the War in South Africa, Appendices to Minutes of Evidence being C. 1792 (1903). ]

On October 18 the ship _Avondale Castle_ had been arrested by theEnglish gunboat _Partridge_ and ordered to return under escort toDurban. The British cruiser _Tartar_ there took over £25, 000 in goldwhich, it was alleged, had been intended for the Transvaal Government. It was found, however, that the gold was consigned to the Delagoa branchof the Transvaal Bank from the Durban branch of the same institution. The allegation against the consignment, it was considered by the prizecourt, did not sufficiently contaminate the shipment since thedestination was proved to be a neutral one and the point of departure anEnglish port. In February the gold was returned to the Bank of Durbanbecause the ultimate destination of the consignment did not warrant thepresumption that it was enemy's property. 

In November a French steamer, the _Cordoba_, was hailed by the Britishcruiser _Magicienne_. The _Cordoba_ refused to recognize the signal tohalt seventy miles out from Lorenzo Marques and was brought to by ablank shot. Her papers, however, failed to show any guilt on her partand she was allowed to proceed to her port of destination, LorenzoMarques. 

These seizures indicate the feeling of suspicion which was prevalent inEngland that apparently innocent descriptions in the bills of lading ofsteamers arriving at Lorenzo Marques concealed contraband of war. Thequestion was raised whether the English commanders should not be orderedto open packing cases and the like and not examine merely the manifestsin order to furnish evidence which would warrant the confiscation of thegoods and possibly the ships carrying contraband, should such be foundon board. The Council of the British and Foreign Arbitration Associationsent a resolution to the English Government and to that of Portugalwhich declared: "This association most earnestly and emphaticallyprotests against the permission granted by Portugal to the Boers of theTransvaal to make of Lorenzo Marques an emporium for the collection ofarms and ammunition against Great Britain with whom the king of Portugalis at peace . . . Thereby . . . Enlarging the sphere of the presentcarnage in South Africa. "[2]

[Footnote 2: London Times, Weekly Ed. , Dec. 29, 1899, p. 821, col. I. ]

It was alleged in England that at the beginning of the war, when thePortuguese Government believed victory certain for Great Britain andonly a matter of brief hostilities, the administration at LorenzoMarques had put a certain amount of restraint upon the extent to whichthe port might be used as a base of warlike supplies, but had laterrelaxed this proper restriction. The only remedy possible to be appliedby England was the right of patrol outside the three mile limit, but thedetection of forbidden forms of commerce was practically impossible. Undoubtedly not only food but munitions of war as well were brought inconcealed in the holds of merchantmen and by other devices. To examinethe ships properly at sea it was estimated would have required threeweeks or more, and it was declared that such an examination alone couldhave insured Great Britain in her rights, since the bills of lading wereevidently fictitious. Recruits came in on the ships in question aswaiters, as sailors, as passengers, and when landed were sent on toPretoria. With permanent offices at the Hague, Dr. Leyds, it wasasserted, was the recruiting agent of the Transvaal, and was successfulin sending out men from Germany, Belgium, Russia, Sweden, Holland, Ireland, and as a matter of fact from the whole of Europe as a greatrecruiting station. 

It was this state of affairs that impelled the English Government toassume an attitude toward neutral commerce which it was found difficultto maintain against other nations whose interests were involved. Thepoints in the British position which were most violently attacked werethe classification of foodstuffs as contraband in certain cases, and theapplication which was made of the doctrine of "continuous voyages, " notto absolute contraband of war or to goods seeking to cross the line ofan established blockade, but to other classes which are usuallyconsidered free. 

There seems little certainty as to the exact circumstances under which abelligerent may treat foodstuffs as contraband, although it is generallyadmitted that under certain conditions such goods may be so considered. On the other hand doubt is expressed by many writers upon internationallaw as to whether it is ever possible to treat as contraband of war sucharticles as are necessary for the sustenance of a people. 

Contraband as is well known is generally held to consist of two kinds, first, absolute contraband such as arms, machinery for manufacturingarms, ammunition and any materials which are of direct application innaval or military armaments; second, conditional contraband, consistingof articles which are fit for but not necessarily of direct applicationto hostile uses. 

The first class is always liable to capture and confiscation, but withregard to the second class no unanimity of opinion exists. Disputesalways arise as to what articles, though not necessarily of directapplicability to hostile uses, may nevertheless be considered contrabandof war. This question is especially difficult of solution with referenceto foodstuffs when seized on their way to a belligerent in neutralbottoms. 

The case of seizure which occurred during the war involved not only thequestion of foodstuffs as contraband but brought up also theapplicability of the doctrine of "continuous voyages, " where the articlebeing conveyed to a belligerent by stages were goods which, except underunusual circumstances, have generally been held to be free from thetaint of contraband character. Great Britain has held that provisionsand liquors fit for the consumption of the enemy's naval or militaryforces may be treated as contraband. In the case of the seizure of"naval or victualling" stores her rule has been their purchase withoutcondemnation in a prize court. [3]

[Footnote 3: Holland, Manual of Naval Prize Law (1888), p. 24. ]

France in 1885 declared rice to be contraband when shipped from thesouthern to the northern ports of China, with whom she was at war. Butin declaring that all cargoes so shipped were to be considered ascontraband the French Government made a distinction as to their intendedor probable destination and use. Great Britain protested at that time, but as no cases came before French prize courts we have no way ofjudging of the French declaration and its value as a precedent. But themajority of the authorities upon the principles of international lawadmit that foodstuffs which are destined for the use of the enemy's armyor navy may be declared contraband in character. The practice of theUnited States, of Great Britain and of Japan has been to follow thisrule. Russia in 1904 declared rice and provisions in general to becontraband. When Great Britain and the United States protested againstthis decision the Russian Government altered its declaration so far asto include foodstuffs as conditional contraband only. Germany has heldthat articles which may serve at the same time in war and peace arereputed contraband if their destination for the military or navaloperations of the enemy is shown by the circumstances. 

All authorities seem to agree that contraband to be treated as such mustbe captured in the course of direct transit to the belligerent, but thedifficulty nearly always arises as to what shall be considered directtransit. One rule has been that the shipment is confiscable if bound fora hostile port, another that it is only necessary to show that theultimate destination of the goods is hostile. The latter rule wasdeclared to apply in the American case of the _Springbok_, an Englishmerchantman conveying goods in 1863 from a neutral port to a neutralport, but, it was alleged, with the evident intention that the goodsshould reach by a later stage of the same voyage the belligerent forcesof the Southern Confederacy, then at war with the United States. [4] Inthis case, however, the conclusive presumption was that the character ofthe goods themselves left no doubt possible as to their ultimatedestination. The guilt of the vessel was not based upon the ground ofcarrying contraband but upon a presumption that the blockade establishedover the Southern States was to have been broken. Both the ship and itscargo were condemned by the district court of southern New York, but thecargo alone was later considered liable to condemnation by the SupremeCourt of the United States. Great Britain at the time noted an exceptionto the decision, but refused to take up claims on the part of theEnglish owners against the United States Government for indemnity. EarlRussell, in refusing the request of the owners for intervention by GreatBritain, said in part: "A careful perusal . . . Of the judgment, containing the reasons of the judge, the authorities cited by him insupport of it, and the . . . Evidence invoked . . . Goes . . . Toestablish that the cargo of the _Springbok_, containing a considerableportion of contraband, was never really and _bona fide_ destined forNassau [the alleged destination], but was either destined merely to callthere, or to be immediately transshipped after its arrival there withoutbreaking bulk and without any previous incorporation into the commonstock of that colony, and to proceed to its real port of destination, being a blockaded port. "[5]

[Footnote 4: Sessional Papers of the House of Commons, Correspondencerespecting the Seizure of the British Vessels "Springbok" and "Peterhof"by United States Cruisers in 1863, Miscl. No. I (1900), C. 34]

[Footnote 5: Sessional Papers of the House of Commons, p. 39. ]

This case is often cited as containing an application of the doctrine of"continuous voyages" to contraband _per se_. But it seems that theprimary question was not one of contraband. The guilt of the ship layrather in the intention, presumed upon the evidence, that a breach of anactual blockade was ultimately designed. The Supreme Court in reviewingthe decision of the lower court said: "We do not refer to the characterof the cargo for the purpose of determining whether it was liable tocondemnation as contraband, but for the purpose of ascertaining its realdestination; for we repeat again, contraband or not, it could not becondemned if really destined for Nassau, and not beyond, and, contrabandor not, it must be condemned if destined to any rebel port, for allrebel ports are under blockade. "[6] In other words, the decision wasupon presumption and not upon the evidence in the case; upon thepresumption that a breach of blockade was premeditated and not upon theground that the cargo was contraband. The fact that the cargo was of acharacter which did not seem likely to be incorporated into the stock intrade of the Nassau population gave the judges whatever justificationthere was for the presumption that the goods were intended to betransshipped without breaking bulk. A recent English writer, Mr. Atherley-Jones, who criticises this decision of the Supreme Court of theUnited States as a verdict based upon the principle of the expediency ofthe moment and not upon the usual rules of evidence, admits that if avessel sails with the intention of violating a blockade there is noquestion of the character of the port from which she sets out butinsists that there is no necessity in such a case to apply the doctrineof "continuous voyages, " If it can be proved, he says, that she is goingto a blockaded port, it does not matter whether she is going to aneutral one or not, but it must be made clear that she is going to ablockaded one. He points to the fact that suspicion can never prove thisapart from the ship's papers, the admission of the ship's company andthe situation and course of the vessel. His view of the case is that theSupreme Court as well as the lower courts of, the United States"accepted well founded surmise as to a vessel's destination in lieu ofproof, " and he adds, "the danger of such a departure needs no furthercomment. "[7]

[Footnote 6: Op. Cit. , p. 45. ]

[Footnote 7: Commerce in War (1907), p. 255. ]

The first position taken by Great Britain to support her right ofseizure of foodstuffs bound for Delagoa Bay seems to have been basedupon this departure of the Supreme Court of the United States in thecase of the _Springbok_ in 1863. It was found, however, that this basisof justification would not be acceptable to other Powers generally norto the United States when the doctrine of "continuous voyages" was givensuch an application as practically to include foodstuffs as contraband. Without the taint of contraband there could be no justification evenupon the _Springbok_ decision as a precedent, since there was noblockaded port in question. In the seizure of American goods which werebeing conveyed by British ships there was the possibility of a violationof a municipal regulation which forbade British subjects to trade withthe enemy. 

But the charge of trading with the enemy to gain plausible groundnecessarily carried with it the further presumption that the ultimateintention was that the foodstuffs should reach the Transvaal by a laterstage of the same voyage. 

With reference to the arrest and detention of German mail steamers boundfor Delagoa Bay, the English Government found the attempt to substitutepossibly well-grounded suspicions for facts no more acceptable to thirdPowers than the assumption with regard to foodstuffs had been, if theemphatic statements of the German Government indicate the generalopinion upon the subject of the carrying of analogues of contraband andunneutral service in general. 

GERMAN SEIZURES. BUNDESRATH, HERZOG AND GENERAL. 

THE BUNDESRATH. --It was reported to the English Government by RearAdmiral Sir Robert Harris, on December 5, 1899, that the German EastAfrican mail steamer _Bundesrath_ had sailed from Aden for Delagoa Bay. He informed his Government that ammunition was "suspected but noneascertained;" that the _Bundesrath_ had on board "twenty Dutch andGermans and two supposed Boers, three Germans and two Australiansbelieved to be officers, all believed to be intending combatants, although shown as civilians; also twenty-four Portuguese soldiers. "[8]On the twenty-ninth of the same month the _Bundesrath_ was taken intoDurban, about three hundred miles from Lorenzo Marques, under the escortof the British cruiser _Magicienne_. The German Government demanded theimmediate release of the steamer upon the assurance made by the Hamburgowners that she carried no contraband. Great indignation was expressedin Hamburg, and a demand was made in the Chamber of Commerce thatmeasures be taken to insure the protection of German commercialinterests. A diplomatic note was sent by Germany protesting against theaction of England. Lord Salisbury's reply on the part of his Governmentwas that the _Bundesrath_ was suspected of carrying ammunition in hercargo, and that it was known that she had on board a number ofpassengers who were believed to be volunteers for service with theBoers. He added, however, that no official details had been receivedother than those contained in the cable announcing the fact that theship had been captured. [9] The German consul at Durban protested againstthe ship's being brought in there as prize, and his Governmentreiterated its request that she be released at once since she carried nocontraband. The detention of a mail ship, it was asserted, interferedwith public interests in addition to the loss which was inflicted uponthe owners of the vessel. 

[Footnote 8: Sessional Papers of the House of Commons, Correspondencerespecting the Action of Her Majesty's Naval Authorities with referenceto Certain Foreign Vessels, Africa No. I (1900), C. 33, p. I. ]

[Footnote 9: Ibid. , pp. 2-3. ]

Admiral Harris reported on December 31 that the _Bundesrath_ had changedthe position of her cargo on being chased, a fact which was consideredsuspicious; that a partial search had revealed sugar consigned to a firmat Delagoa Bay, and railway sleepers and small trucks consigned to thesame place. It was expected that a further search would reveal armsamong the baggage of the Germans on board who admitted that they weregoing to the Transvaal. England's senior naval officer at Durban was ofthe opinion that there was ample ground for discharging the cargo andsearching it. The request was accordingly made that authority be givenfor throwing the ship into a prize court, and that instructions beforwarded as to the proper disposal of the passengers on board. 

Despite the protest of Germany that the _Bundesrath_ carried neithercontraband nor volunteers for the Transvaal, instructions were issuedthat a prize court should take over the ship and a search be at oncemade by competent authorities. Orders were given at the same time, however, that until it became evident that the _Bundesrath_ was carryingcontraband, "other German mail steamers should not be arrested onsuspicion only. "[10]

[Footnote 10: Ibid. , p. 4. ]

Instructions were also issued by the British Government that applicationbe made to the prize court for the release of the mails; that if theywere released they were to be handed over to the German consul and to behastened to their destination, "either by an English cruiser ifavailable, or by a mail steamer, or otherwise. "[11] It was pointed outthat the ship and its cargo, including the mails, were in the custody ofthe court and except by the order of that tribunal should not betouched. It was urged, however, that every facility for proceeding tohis destination be afforded to any passenger whom the court consideredinnocent. 

[Footnote 11: Ibid. , pp. 5-6; Chamberlain to Hely-Hutchinson, Jan. 3, 1900. ]

The German consul at Durban reported that no contraband had been foundon the _Bundesrath_ although a thorough search had been made. Thefailure to discover goods of a contraband character apparently renderedthe action of Great Britain's naval authorities unjustifiable. Germanyindeed insisted that had there been contraband disclosed even this factwould not have given England any right to interfere with neutralcommerce from one neutral port to another and insisted that the task ofpreventing the transmission of contraband to the Transvaal lay with thePortuguese Government. [12] The fact was also pointed out that when warfirst broke out, the steamship company owning the _Bundesrath_ haddischarged shipments of a contraband character at Dar-es-Salaam as wellas at Port Said in order to obviate any possible complication, and sincethen had issued strict orders that contraband should not be embarked. 

[Footnote 12: Ibid. , p. 7; Lascelles to Salisbury, Jan. 5, 1900. ]

Great Britain expressed herself as "entirely unable to accede to . . . The contention that a neutral vessel was entitled to convey withouthindrance contraband of war to the enemy, so long as the port at whichshe intended to land it was a neutral port. "[13] The novel suggestionwas made by Germany that "the mail steamer be allowed to go on bail soas not to interfere more than was necessary with her voyage, " but theEnglish representative doubted the practicability of such a plan. He wasin favor of the suggestion if it could be adopted under suitableconditions, but since the ship had probably gone into the hands of theprize court, that tribunal, he said, would have to act independently. 

[Footnote 13: Ibid. , p. 7; Salisbury to Lascelles, Jan. 4, 1900. ]

On January 5 the mails and the passengers were released by order of thecourt and were taken on board the German warship, _Condor_, for DelagoaBay. But not until two weeks later were the ship and its cargoreleased. [14] The only reason assigned by the court for the release wasthat no contraband had been discovered by the search. 

[Footnote 14: Ibid. , p. 22; Hely-Hutchinson to Chamberlain, Jan. 18, 1900. ]

Since the three cases which attracted most attention, the _Bundesrath_, the _Herzog_, and the _General_, with a few unimportant exceptions as todetails, were similar in regard to the points of law involved, the factsin the remaining cases will be outlined. It will then be possible todiscuss the grounds upon which Great Britain asserted the right ofseizure, and the objections which Germany made to the English assertion. 

THE HERZOG. --On December 16, 1899, a cable from the commander-in-chiefof the Mediterranean station announced to the British Foreign Officethat the German "steamship" _Herzog_ had left the Suez Canal on thetwelfth for South Africa carrying "a considerable number of malepassengers, many in khaki, apparently soldiers" although "no troops weredeclared. " On the same day an inquiry was made by the commander at theCape whether "a number of passengers dressed in khaki" could be "legallyremoved" from the _Herzog_. [15] On the twenty-first the senior navalofficer at Aden reported that the _Herzog_ had sailed on the eighteenthfor Delagoa Bay conveying, "probably for service in the Transvaal, aboutforty Dutch and German medical and other officers and nurses. "[16]Although instructions had been issued on the first of January thatneither the _Herzog_ nor any other German mail steamer should bearrested "_on suspicion only_" until it became evident that the_Bundesrath_, which was then being searched, really carried contraband, the _Herzog_ was taken into Durban as prize on the sixth by the Britishship _Thetis_. 

[Footnote 15: Ibid. P. 1; Admiralty to Foreign Office, Nos. 1 and 2. ]

[Footnote 16: Ibid. , pp. 2, 4, II. ]

The consul at Durban as well as the commander of the German man-of-war_Condor_ protested in the name of their Government against the seizureof the _Herzog_. They urged that the vessel be allowed to proceed sinceher captain had given the assurance that there were no contraband goodson board; that the only suspected articles were the mails, and certainsmall iron rails and railway sleepers which were destined for theneutral port of Delagoa Bay. On board the _Herzog_, however, there werethree Red Cross expeditions, one of which had no official connectionwith the legitimate Red Cross societies. It had no official characterbut had been organized by a committee, the "Hilfs Ausshuss für Transvaalin Antwerp. "[17] The other Red Cross expeditions were legitimate, onebeing German and the other Dutch. 

[Footnote 17: Ibid. , p. 16. ]

On the seventh instructions were issued that the _Herzog_ be released atonce, unless guns or ammunition were revealed by a summary search. Buton the following day the order was added that proceedings might bediscontinued and the ship released unless "provisions on board aredestined for the enemy's Government or agents, and are also for thesupply of troops or are especially adapted for use as rations fortroops. "[18] On the ninth the _Herzog_ was released, arrangements havingbeen made two days before for the passage of one of the passengers, thePortuguese Governor of Zambesi, to Delagoa Bay by the _Harlech Castle. _

[Footnote 18: Ibid. , pp. 14, 16. ]

THE GENERAL. --On the fourth of January the senior naval officer at Adenhad reported to the English admiralty that the German vessel _General_, another East African mail steamer, was under detention there upon strongsuspicion and was being searched. [19] The German Government at onceentered a strong protest and demanded in rather brusque terms "thatorders be given for the immediate release of the steamer and her cargo, for that portion of her cargo which has already been landed to be takenon board again, and for no hindrances to be placed in the way of theship continuing her voyage to the places mentioned in her itinerary. "Count Hatzfelt, the German representative in London, continued: "I amfurther instructed to request your Excellency [the Marquis of Salisbury]to cause explicit instructions to be sent to the Commanders of Britishships in African waters to respect the rules of international law, andto place no further impediments in the way of the trade betweenneutrals. "[20]

[Footnote 19: Ibid. , p. 6. ]

[Footnote 20: Ibid. , p. 8. ]

To the form and imputations of this request the British Government tookexception, and the situation appeared ominous for a time. Instructionshad been issued, however, that unless the _General_ disclosed contrabandafter a summary search it was undesirable to detain the ship since shecarried the mails. The report of the naval officer at Aden disclosed thefact that he had boarded and detained the ship at that place. The groundfor his action was that he had been informed that a number of suspiciousarticles were on board for Delagoa Bay, including boxes of ammunitionstowed in the main hold, buried under reserve coal. An inspection of themanifest had shown several cases of rifle ammunition for Mauser, Mannlicher and sporting rifles consigned to Mombasa, but thisconsignment was believed to be _bona fide_. Other suspected articles onthe manifest were wagon axles and chemicals and at the bottom of thehold was a consignment of food for Delagoa Bay, with boilers and heavymachinery stowed on top of the reserve coal. The _General_ carriedbesides a number of Flemish and German passengers for Delagoa Bay, inplain clothes but of "military appearance, " some of whom were believedto be trained artillerymen. It was suggested that this last doubt couldbe cleared up only by a search of the private baggage of the personssuspected, but it was not considered by the British Foreign Office thatthere was "sufficient evidence as to their destination to justifyfurther action on the part of the officers conducting the search. "[21]

[Footnote 21: Ibid. , p. 22; see also pp. 10, 17, 21. ]

On the seventh the _General_ was released, but was not able to sailuntil the tenth, a delay due to the labor of restowing her cargo, whichwas done as quickly as possible. The crew of the English ship_Marathon_, assisted by one hundred coolies, having worked day and nightafter the arrival of the ship on the fourth, completed the search on thesixth but were unable to complete the restowal until the morning of thetenth. 

THE JUDICIAL ASPECTS OF THE SEIZURES. 

In the discussion which occurred during the detention, and which wascontinued after the release of the three German ships, the assertionsmade by the British and German Governments brought out the fact thatEnglish practice is often opposed to Continental opinion in questions ofinternational law. 

On the fourth of January the German Ambassador in London had declaredthat his Government, "after carefully examining the matter" of theseizure of the _Bundesrath_, and considering the judicial aspects of thecase, was "of the opinion that proceedings before a Prize Court were notjustified. "[22] This view of the case, he declared, was based on theconsideration that "proceedings before a Prize Court are only justifiedwhere the presence of contraband of war is proved, and that, whatevermay have been on board the _Bundesrath_, there could have been nocontraband of war, since, according to recognized principles ofinternational law, there cannot be contraband of war in trade betweenneutral ports. "

[Footnote 22: Sessional Papers, Africa, No. I (1900), C. 33, p. 6;Hatzfelt to Salisbury, Jan. 4, 1900. ]

He asserted that this view was taken by the English Government in thecase of the _Springbok_ in 1863 as opposed to the decision of theSupreme Court of the United States sitting as a prize court on an appealfrom the lower district court of the State of New York. [23] The protestof the British Government against the decision of the United Statescourt as contravening these recognized principles, he said, was put onrecord in the Manual of Naval Prize Law published by the EnglishAdmiralty in 1866, three years after the original protest. The passagecited from the manual read: "A vessel's destination should be consideredneutral, if both the port to which she is bound and every intermediateport at which she is to call in the course of her voyage be neutral, "and "the destination of the vessel is conclusive as to the destinationof the goods on board. " In view of this declaration on the part of GreatBritain toward neutral commerce Count Hatzfeldt contended that hisGovernment was "fully justified in claiming the release of the_Bundesrath_ without investigation by a Prize Court, and that all themore because, since the ship is a mail-steamer with a fixed itinerary, she could not discharge her cargo at any other port than the neutralport of destination. "[24]

[Footnote 23: This case, it will be remembered, was _not_ decided on theground of the contraband character of the goods in the cargo but becauseof the presumption that the ultimate intention of the ship was to breakthe blockade established over the Southern States. This well foundedsuspicion, based upon the character of the cargo as tending to show thatit could be intended only for the forces of the Southern Confederacy, led to the conclusion that a breach of blockade was premeditated. Thispresumption no doubt was correct and in this particular case thedecision of the court was probably justified, but the course ofreasoning by which the conclusion was reached was generally considered adangerous innovation in international relations. It has been recentlyagain asserted that the decision was not based upon the accepted rulesof evidence. Supra p. 24. For a clear statement of the latter view, seeAtherley-Jones, Commerce in War, p. 255. ]

[Footnote 24: Sessional Papers, Africa, No. I (1900), C. 33, p. 6;Hatzfeldt to Salisbury, Jan. 4, 1900. ]

In his reply to the German note Lord Salisbury thought it desirable, before examining the doctrine put forward, to remove certain "errors offact in regard to the authorities" cited. He emphatically declared thatthe British Government had not in 1863 "raised any claim or contentionagainst the Judgment of the United States' Prize Court in the case ofthe _Springbok_" And he continued: "On the first seizure of that vessel, and on an _ex parte_ and imperfect statement of the fact by the owners, Earl Russell, then Secretary of State for Foreign Affairs, informed HerMajesty's Minister at Washington that there did not appear to be anyjustification for the seizure of the vessel and her cargo, that thesupposed reason, namely, that there were articles in the manifest notaccounted for by the captain, certainly did not warrant the seizure, more especially as the destination of the vessel appeared to have been_bona fide_ neutral, but that, inasmuch as it was probable that thevessel had by that time been carried before a Prize Court of the UnitedStates for adjudication, and that the adjudication might shortly follow, if it had not already taken place, the only instruction that he could atpresent give to Lord Lyons was to watch the proceedings and the Judgmentof the Court, and eventually transmit full information as to the courseof the trial and its results. " He asserted that the real contentionadvanced in the plea of the owners for the intervention of the BritishGovernment had been that "the goods [on board the _Springbok_] were, infact, _bona fide_ consigned to a neutral at Nassau;" but that this pleahad been refused by the British Government without "any diplomaticprotest or . . . Any objection against the decision . . . Nor did theyever express any dissent from that decision on the grounds on which itwas based. "[25]

[Footnote 25: Ibid. , p. 18; Salisbury to Lascelles, Jan. 10, 1900. ]

This assertion is fairly based upon the reply of the English Governmentto the owners on February 20, 1864. Earl Russell had expressly declaredthat his government could not interfere officially. "On the contrary, "he said, "a careful perusal of the elaborate and able Judgment, containing the reasons of the Judge, the authorities cited by him insupport of it, and the important evidence properly invoked from thecases of the _Stephen Hart_ and _Gertrude_ (which her majesty'sgovernment have now seen for the first time) in which the same partieswere concerned, " had convinced his Government that the decision wasjustifiable under the circumstances. [26] The fact was pointed out thatthe evidence had gone "so far to establish that the cargo of the_Springbok_, containing a considerable portion of contraband, was neverreally and _bona fide_ destined for Nassau, but was either destinedmerely to call there or to be immediately transhipped after its arrivalthere without breaking bulk and without any previous incorporation intothe common stock of that Colony, and then to proceed to its _realdestination_, being a _blockaded port_. "[27] The "complicity of theowners of the ship, with the design of the owners of the cargo, " was "soprobable on the evidence" that, in the opinion of the law advisers ofthe Crown, "there would be great difficulty in contending that this shipand cargo had not been rightly condemned. " The only recourse of theowners was consequently the "usual and proper remedy of an appeal"before the United States Courts. 

[Footnote 26: Sessional Papers, Miscl. , No. I (1900), C. 34, pp. 39-40;Russell to Lyons, Feb. 20, 1864. ]

[Footnote 27: Ibid. Italics our own. ]

The next point that Count Hatzfeldt made was not so squarely met by LordSalisbury, namely, that the manual of the English Admiralty of 1866expressly declared: "A vessel's destination shall be considered neutral, if both the point to which she is bound and every intermediate port atwhich she is to call in the course of her voyage be neutral. " And again, "The destination is conclusive as to the destination of the goods onboard. " Count Hatzfeldt contended that upon this principle, admitted byGreat Britain herself, Germany was fully justified in claiming therelease of the ship without adjudication since she was a mail-steamerwith a fixed itinerary and consequently could not discharge her cargo atany other port than the neutral port of destination. [28]

[Footnote 28: Sessional Papers, Africa, No. I (1900), C. 33, p. 6. ]

The only reply that Lord Salisbury could make was that the manual citedwas only a general statement of the principles by which British officerswere to be guided in the exercise of their duties, but that it had neverbeen asserted and could not be admitted to be an exhaustive orauthoritative statement of the views of the British Government. Hefurther contended that the preface stated that it did not treat ofquestions which would ultimately have to be settled by English prizecourts. The assertion was then made that while the directions of themanual were sufficient for practical purposes in the case of wars suchas had been waged by Great Britain in the past, they were quiteinapplicable to the case which had arisen of war with an inland Statewhose only communication with the sea was over a few miles of railway toa neutral port. The opinion of the British Government was that thepassage cited to the effect "that the destination of the vessel isconclusive as to the destination of the goods on board" had noapplication. "It cannot apply to contraband of war on board a neutralvessel if such contraband was at the time of seizure consigned orintended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy's country. "[29]

[Footnote 29: Ibid. , pp. 18-19. Salisbury to Lascelles, Jan. 10, 1900. ]

Lord Salisbury then cited Bluntschli as stating what in the opinion ofthe British Government was the correct view in regard to goods capturedunder such circumstances: "If the ships or goods are sent to thedestination of a neutral port only the better to come to the aid of theenemy, there will be contraband of war and confiscation will bejustified. "[30] And, basing his argument upon this authority, heinsisted that his Government could not admit that there was sufficientreason for ordering the release of the _Bundesrath_ "without examinationby the Prize Court as to whether she was carrying contraband of warbelonging to, or destined for, the South African Republic. " It wasadmitted, however, that the British Government fully recognized howdesirable it was that the examination should be carried through at theearliest possible moment, and that "all proper consideration should beshown for the owners and for innocent passengers and all merchandise onboard of her. "[31] It was intimated that explicit instructions had beenissued for this purpose and that arrangements had been made for thespeedy transmission of the mails. 

[Footnote 30: "Si les navires ou marchandises ne sont expédiés àdestination d'un port neutre que pour mieux venir en aide à l'ennemi, ily aura contrebande de guerre, et la confiscation sera justifiée. " DroitInt. Codifié, French translation by Lardy, 1880, 3d Ed. , § 813. One ofthe two cases cited in support of this opinion is that of the_Springbok_, but in §835, Rem. 5, the following statement is made: "Unethéorie fort dangereuse a été formulé par le juge Chase: 'Lorsqu'un portbloqué est le lieu de destination du navire, le neutre doit êtrecondamné, même lorsqu'il se rend préalablement dans un port neutre, peuimporte qu'il ait ou non de la contrebande de guerre à bord. '"]

[Footnote 31: Sessional Papers, Africa, No. I (1900), C. 33, p. 19;Salisbury to Lascelles, Jan. 10, 1900. ]

The German Government, agreeing for the moment to put to one side thedisputed question of trade between neutral ports in general, nevertheless insisted that since a preliminary search of the_Bundesrath_ had not disclosed contraband of war on board there was nojustification for delivering the vessel to a prize court. The suggestionwas made that future difficulty might be avoided by an agreement upon aparallel of latitude down to which all ships should be exempt fromsearch. And although it was not found possible to reach an exactagreement upon this point, orders were issued by Great Britain that theright of search should not in future be exercised at Aden or at anyplace at an equal distance from the seat of war and that no mailsteamers should be arrested on suspicion alone. Only mail steamers ofsubsidized lines were to be included, but in all cases of steamerscarrying the mails the right of search was to be exercised with allpossible consideration and only resorted to when the circumstances wereclearly such as to justify the gravest suspicion. [32]

[Footnote 32: Ibid. , pp. 19-22. ]

It is interesting to note in the positions taken by the German andEnglish Governments with regard to the theory of ultimate destinationand continuous voyages a wide divergence of opinion. The BritishGovernment apparently based its contention upon the decision of theUnited States Supreme Court in the case of the _Springbok_ in 1863, namely, that a continuous voyage may be _presumed_ from an intendedultimate hostile destination in the case of a _breach of blockade_, thecontraband character of the goods only tending to show the ultimatehostile intention of the ship. But the English contention went furtherthan this and attempted to apply the doctrine to contraband goodsultimately intended for the enemy or the enemy's country by way of aneutral port which, however, was not and could not be blockaded. TheGerman Government contended on the other hand that this position was nottenable and apparently repudiated the extension of the continuous voyagedoctrine as attempted by England. 

In the end the immediate dispute was settled upon the followingprinciples: (1) The British Government admitted, in principle at anyrate, the obligation to make compensation for the loss incurred by theowners of the ships which had been detained, and expressed a readinessto arbitrate claims which could not be arranged by other methods. (2)Instructions were issued that vessels should not be stopped and searchedat Aden or at any point equally or more distant from the seat of war. (3) It was agreed provisionally, till another arrangement should bereached, that German mail steamers should not be searched in future onsuspicion only. This agreement was obviously a mere arrangement dictatedby the necessity of the moment, and was not such as would settle thequestion of the extent to which the doctrine of continuous voyages mightbe extended in dealing with contraband trade or with alleged traffic ofthis character. 

Count Von Bülow, the German Chancellor, speaking before the Reichstagwith reference to the seizures of the German mail steamers said: "Westrove from the outset to induce the English Government in dealing withneutral vessels consigned to Delagoa Bay, to adhere to that theory ofinternational law which guarantees the greatest security to commerce andindustry, and which finds expression in the principle that _for shipsconsigned from neutral states to a neutral port, the notion ofcontraband of war simply does not exist_. To this the English Governmentdemurred. We have reserved to ourselves the right of raising thisquestion in the future, in the first place because it was essential tous to arrive at an expeditious solution of the pending difficulty, andsecondly, because, in point of fact, the principle here set up by us hasnot met with universal recognition in theory and practice. "[33]

[Footnote 33: Sessional Papers, Africa, No. I (1900), C 33; p. 25, Jan. 19, 1900. Italics our own. ]

Summing up what in the opinion of the German Government correspondedmost closely with the general opinion of the civilized world, theChancellor then declared: "We recognize the rights which the Law ofNations actually concedes to belligerents with regard to neutral vesselsand neutral trade and traffic. We do not ignore the duties imposed by astate of war upon the ship owners, merchants, and vessels of a neutralstate, but we require of the belligerents that they shall not extend thepowers they possess in this respect beyond the strict necessities ofwar. We demand of the belligerents that they shall respect theinalienable rights of legitimate neutral commerce, and we require aboveall things that the right of search and of the eventual capture ofneutral ships and goods shall be exercised by the belligerents in amanner conformable to the maintenance of neutral commerce, and of therelations of neutrality existing between friendly and civilizednations. "[34]

[Footnote 34: Ibid. , p. 25. ]

This doctrine, namely, that "for ships consigned from neutral states toa neutral port, the notion of contraband simply does not exist, " clearlydefined the contention of Great Britain that contraband which "at thetime of seizure" was "consigned or intended to be delivered to an agentof the enemy at a neutral port, or, in fact, destined for the enemy'scountry, " is liable to seizure and that both ship and cargo may beconfiscated. [35] It also denied the English contention that "provisionson board . . . Destined for the enemy's Government or agents, and . . . Also for the supply of troops or . . . Especially adapted for use asrations for troops" may be seized as contraband. [36]

[Footnote 35: Ibid. , p. 19; Salisbury to Lascelles, Jan. 10, 1900. ]

[Footnote 36: Ibid. , p. 16; Admiralty to Harris, Jan. 8, 1900. ]

Count Von Bülow summarized the action of the German Government bysaying: "We demanded in the first place the release of the steamers. . . . In the second place we demanded the payment of compensation for theunjustified detention of our ships and for the losses incurred by theGerman subjects whose interests were involved. . . . Thirdly, we drewattention to the necessity for issuing instructions to the British NavalCommanders to molest no German merchantmen in places not in the vicinityof the seat of war, or at any rate, in places north of Aden. . . . Fourthly, we stated it to be highly desirable that the EnglishGovernment should instruct their Commanders not to arrest steamersflying the German mail flag. . . . Fifthly, we proposed that all pointsin dispute should be submitted to arbitration. . . . Lastly, the EnglishGovernment have given expression to their regret for what has occurred. We cherish the hope that such regrettable incidents will not berepeated. We trust that the English naval authorities will not againproceed without sufficient cause, in an unfriendly and precipitatemanner against our ships. "[37]

[Footnote 37: Speech in Reichstag, Jan. 19, 1900. ]

The Chancellor at the same time set forth certain general propositionsas a tentative system of law to be operative in practice, a disregard ofwhich in the opinion of the German Government would constitute a breachof international treaties and customs:

(1) "Neutral merchant ships on the high seas or in the territorialwaters of the belligerent Powers . . . Are subject to the right of visitby the warships of the belligerent parties. " It was pointed out thatthis was apart from the right of convoy, a question which did not arisein the cases under discussion. The proposal was not intended to apply towaters which were too remote from the seat of war and a specialagreement was advocated for mail ships. 

"(2) The right of visit is to be exercised with as much consideration aspossible and without undue molestation. 

"(3) The procedure in visiting a vessel consists of two or three actsaccording to the circumstances of each case; stopping the ship, examining her papers, and searching her. The two first acts may beundertaken at any time, and without preliminary proceeding. If theneutral vessel resists the order to stop, or if irregularities arediscovered in her papers, or if the presence of contraband is revealed, then the belligerent vessel may capture the neutral, in order that thecase may be investigated and decided upon by a competent Prize Court. 

"(4) By the term 'contraband of war' only such articles or persons areto be understood as are suited for war and at the same time are destinedfor one of the belligerents. " "The class of articles to be included inthis definition, " it was intimated, "is a matter of dispute, and withthe exception of arms and ammunition, is determined, as a rule, withreference to the special circumstances of each case unless one of thebelligerents has expressly notified neutrals in a regular manner whatarticles it intends to treat as contraband and had met with noopposition. 

"(5) Discovered contraband is liable to confiscation; whether with orwithout compensation depends upon the circumstances of each case. 

"(6) If the seizure of the vessel was not justified the belligerentstate is bound to order the immediate release of the ship and cargo andto pay full compensation. "

It was the view of the German Government according to these principles, and in view of the recognized practice of nations, that it would nothave been possible to lodge a protest against the stopping on the highseas of the three German steamers or to protest against the examinationof their papers. But by the same standard, it was contended that the actof seizing and conveying to Durban the _Bundesrath_ and the _Herzog_, and the act of discharging the cargoes of the _Bundesrath_ and_General_, were both undertaken upon insufficiently founded suspicionand did not appear to have been justified. 

The end of the discussion between Great Britain and Germany left thesomewhat uncertain doctrine of continuous voyages still unsettled. Asapplied in 1863 distinctly to a breach of blockade it was generallyconsidered an innovation. As applied, or attempted to be applied, byGreat Britain in 1900 to trade between neutral ports at a time when noblockade existed or was in fact possible, it failed to receive theacquiescence of other nations who were interested. The discussion, however, rendered, apparent a clear line of cleavage between Englishpractice and Continental opinion. 

Mr. Lawrence characterizes as "crude" the doctrine of the GermanChancellor, that neutral ships plying between neutral ports are notliable to interference; that, in order for the ship to be legitimatelyseized, there must be contraband on board, that is, goods bound for abelligerent destination, and that this could not occur where thedestination was a neutral port and the point of departure a neutralport. He declares that if this doctrine were accepted the offense ofcarrying contraband "might be expunged from the international code;"that "nothing would be easier for neutrals than to supply a belligerentwith all he needed for the prosecution of his war. "[38] He points outthe danger of the acceptance on the part of the Powers of such adoctrine by citing the hypothetical case of France engaged in war, andasserts that under such circumstances even arms and ammunition might bepoured into the neutral port of Antwerp and carried by land to theFrench arsenals. If Germany should be at war, munitions of war might berun in with practically no hindrance through the neutral harbors ofJutland. If Italy were at war, Nice or Trieste might be used in the samemanner for the Italian Government to secure arms and ammunition. 

[Footnote 38: Principles of Int. Law, 3d Ed. , p. 679. ]

Possibly Mr. Lawrence does not do full justice to the points taken bythe German Government as enunciated in the speech of Count Von Bülow, although he clearly indicates what he thinks the general tendency of theproposed German system of law would be. It would seem that he does notgive a clear statement of the German doctrine. When he asserts that"Count Von Bülow committed himself to the crude doctrine that neutralships plying between neutral ports would not be liable to interference, "the inference is not a necessary result of the German position. Nor doesit necessarily follow according to the German standard that, "toconstitute the offense of carrying contraband a belligerent destination"is "essential, and therefore there" can "be no contraband when thevoyage" is "from neutral port to neutral port, "[39] Mr. Lawrencepossibly has reference only to the position taken _arguendo_ by theGerman Government during the correspondence immediately following theseizure of the German ships and not to the general rules formulated bythe German Chancellor on January 19, 1900, in his speech before theReichstag. [40] There is no indication that Mr. Lawrence had this speechbefore him when he passed judgment upon the German doctrine, althoughthe preface to the third edition of his Principles of International Lawis dated August 1, 1900. 

[Footnote 39: Principles of Int. Law, p. 679. ]

[Footnote 40: The German argument was that according to Englishexpression in the past, notably in 1863, and expressly in her own navalguide, there could not be contraband of war between neutral ports. ]

It is possibly true that the German rules were advanced because of theirexpediency in view of the geographical position of Germany. But theEnglish writer apparently admits a similar motive in opposing theproposed German system, when he says, "Great Britain is the onlyEuropean state which could not obtain, " in time of war, "all thesupplies she wished for by land carriage from neighboring neutral ports, with which according to the doctrine in question, neutrals would be freeto trade in contraband without the slightest hindrance from the otherbelligerent. "[41]

[Footnote 41: Principles of Int. Law, p. 680. ]

The view taken by Mr. Lawrence would seem unfair to the proposed rulesin a number of points. Count Von Bülow clearly pointed out thatbelligerent vessels might capture a neutral vessel if the latterresisted the order to stop, or if irregularities were discovered in herpapers, or if the presence of contraband were revealed. Under the term"contraband of war" he admitted that articles and persons suited for warmight be included, provided they were at the same time destined for theuse of one of the belligerents, and he was ready to admit thatdiscovered contraband should be confiscable. It is true the caution wasadded that should the seizure prove to be unjustifiable the belligerentState should be bound to order immediate release and make fullcompensation, and that the right of visit and search should be exercisedwith as much consideration as possible and without undue molestation toneutral commerce. It was understood that neutral merchant vessels on thehigh seas or in the territorial waters of the belligerent powers shouldbe liable to visit and search, but again with the necessary caution thatthe right should not be exercised in waters too remote from the seat ofwar, and that additional consideration be conceded to mail steamers. [42]

[Footnote 42: Sessional Papers, Africa, No. I (1900), C. 33, p. 24. Speech in Reichstag, Jan. 19, 1900. ]

There would seem to be no necessary opposition between the Germanposition in 1900 and that taken by the Supreme Court of the UnitedStates in 1863 with reference to the ships _Springbok_ and _Peterhof_. In the latter case the cargo of the ship was condemned on the groundthat the goods, not necessarily contraband in character, were beingcarried into the neutral Mexican port of Matamoras. It was believed, however, that the goods were not intended to be sold there as a matterof trade, but were destined for the use of the forces of the SouthernConfederacy across the Rio Grande River. To these belligerent forces itwas presumed the goods were to be conveyed as the final stage of theirvoyage, but the decision of the court was distinctly upon the guilt of abreach of blockade. [43] The character of the goods did not give justground for seizure provided they were intended in good faith for aneutral market, but the character of the goods showed that they were notso intended, and the simulated papers of the ship substantiated thissuspicion. But it is to be repeated, condemnation was declared upon theground of an intended breach of an established blockade as the finalstage of the voyage. Had there been no blockade of the Southern Statesthese decisions could not have been upheld. No contraband of war waspossible between the neutral ports in the course of _bona fide_ neutraltrade, but the character of the goods and the dishonest character of theships made possible the conclusive presumption that the goods wereultimately intended for the blockaded enemy. 

[Footnote 43: Sessional Papers, Miscl. , No. I (1900), C. 34, p. 60. ]

In the seizure of the German ships, on the other hand, the BritishGovernment was not able to show that the ships were really carryingcontraband or that there was any irregularity in their papers. Theprotest of the German Government and its later announcement of certainrules which should govern such cases merely cautioned Great Britainagainst an undue exercise of the recognized right of visit and search. The attempt was not made to lay down a new system of principles whichwould render the carrying of contraband by neutrals unhampered by thebelligerents, for Count Von Bülow in setting forth the tentative systemwhich in the opinion of his Government would protect neutral commerce intime of war laid stress upon the fact that there are as yet no legalprinciples fixed and binding on all the maritime Powers, respecting therights of neutrals to trade with a belligerent, or the rights ofbelligerents in respect to neutral commerce. He pointed out that, although proposals had been repeatedly made to regulate this subject allattempts had failed owing to the obstacles created by the conflictingviews of the different Powers. 

The Peace Conference at the Hague has in fact expressed the wish that aninternational conference might regulate, on the one hand, the rights andduties of neutrals, and on the other, the question of private propertyat sea. The German Chancellor intimated that his Government wouldsupport any plan of the kind for more clearly defining the disputedpoints of maritime law. The fact was pointed out that maritime law isstill in a "liquid, elastic, and imperfect state, " that with many gapswhich are only too frequently apt to be supplemented by armed force atcritical junctures, this body of law opens the way for the criticismthat "the standard of might has not as yet been superseded by thestandard of right. "

The Institute of International Law which met at Venice in 1896 declaredthat the destination of contraband goods to an enemy may be shown evenwhen the vessel which carries them is bound to a neutral port. But itwas considered necessary to add the caution that "evident andincontestable proof" must make clear the fact that the goods, contrabandin character, were to be taken on from the neutral port to the enemy, asthe final stage of the same commercial transaction. 

This latter condition the English Government failed to fulfil in thecases of the _Bundesrath, Herzog_ and _General_, and it was this failurewhich gave just ground for Germany's protests. Great Britain not onlyfailed to show by "evident and incontestable proof" that the Germanships carried actual contraband, but she failed to show that there wereon board what have been called "analogues" of contraband. The point wasemphasized indeed that while special consideration would be shown to allGerman mail steamers, not every steamer which "carried a bag of letters"could claim this partial immunity. The English representative said: "Weunderstand by mail steamers, steamers of subsidized lines, andconsequently owned by persons whom the German Government consider asrespectable. "[44] And in this intimation he merely voiced the suspicionin England that with or without the knowledge of the Government theGerman ships had been guilty of unneutral service, which the more recentauthorities on international law distinguished from the carrying ofcontraband. 

[Footnote 44: Sessional Papers, Africa, No. I (1900), C. 33, p. 21;Salisbury to Lascelles, Jan. 16, 1900. ]

It is generally agreed that neutral mail steamers and other vesselscarrying the mails by agreement with neutral governments have in certainrespects a peculiar position. Their owners and captains cannot be heldresponsible for the nature of the numerous communications they carry. Itis equally well understood that a neutral may not transmit signals ormessages for a belligerent, nor carry enemy's despatches, nor transportcertain classes of persons in the service of a belligerent. But mailsteamers may carry persons who pay for their passage in the usual wayand come on board as ordinary passengers, even though they turn out tobe officers of one or the other of the belligerents. Although thetendency of modern times to exempt mail ships from visit and search andfrom capture and condemnation is not an assured restriction uponbelligerent interests, it is a right which neutrals are entitled todemand within certain well-defined limits. It was understood when thisimmunity was granted by the United States in 1862 that "simulated mailsverified by forged certificates and counterfeit seals" were not to beprotected. [45]

[Footnote 45: Wheaton, International Law, Dana's Ed. , p. 659, note. ]

During the controversy between the English and German Governments withreference to the seizure of the three German ships, Professor T. E. Holland, the editor of the British Admiralty Manual of Prize Law of1888, declared: "The carriage by a neutral ship of troops, or of even afew military officers, as also of enemy despatches, is an enemy serviceof so important a kind as to involve the confiscation of the vesselconcerned, a penalty which under ordinary circumstances, is not imposedupon the carriage of contraband property so called. "[46] Under this headif would seem the alleged offense of the ship _Bundesrath_ may properlybe classed, and charges of a similar character were made against theships _General_ and _Herzog_. It was suspected that persons on boardvariously described as of a military appearance were on their way to theTransvaal to enlist. The suspicion, however, could not be proved, andthe result was that the ships were released without guilt upon thecharge of unneutral service or upon that of carrying contraband goods inthe usual sense of the term contraband. 

[Footnote 46: International Law Situations, Naval War College, 1900, p. 98. Also Arguments of Lord Stowell in the case of the _Orozembo_, 6 Rob. 430; and the _Atlanta_, 6 Rob. 440. ]

In connection with the attitude of Great Britain in regard to thedoctrine of continuous voyages as applied to both goods and personsbound for Delagoa Bay, it is interesting to note the view expressed by aleading English authority upon international law with reference to theseizure of the ship _Gaelic_ by the Japanese Government during theChino-Japanese War. The _Gaelic_, a British mail steamer, was bound fromthe neutral port of San Francisco for the British port of Hongkong. Information had reached Japan that there were on board persons seekingservice with the Chinese Government and carrying a certain kind ofmaterial intended to destroy Japanese ships. 

Japan arrested the ship at Yokohama and had her searched. The suspectedindividuals, it was discovered, had escaped and taken the Frenchmail-ship _Sidney_ from Yokohama to Shanghai. Nevertheless the searchwas continued by the Japanese authorities in the hope of findingcontraband. The British Government protested, and this protest isespecially significant in view of the English contention in the cases ofthe German mail steamers. The protest against the further detention andsearch of the _Gaelic_ was made on the ground that the ship did not havea hostile destination, Sagasaki, a port in Japanese territory, being theonly port of call between Yokohama and Hongkong. It was shown by theJapanese that ships of the company to which the _Gaelic_ belonged oftencalled at Amoy, China, a belligerent port, but sufficient proof was notadvanced to show that there was any intention to touch there on thevoyage in question. [47]

[Footnote 47: Takahashi, Int. Law during the Chino-Japanese War, pp. Xvii-xxvii. Note on Continuous Voyages and Contraband of War by J. Westlake; also L. Q. Rev. , Vol. 15, p. 24. ]

The British assertion that the neutral destination of the ship precludedthe possibility of a search being made, and that it was immaterialwhether anything on board had a hostile destination ulterior to that ofthe ship, appears rather surprising when it is seen to be almost theopposite of the position taken in the seizures of ships bound forDelagoa Bay in Portuguese territory. Japan on the other hand maintainedthat the proceedings were entirely correct on the ground: (1) of theprobability that the _Gaelic_ might call at Amoy; (2) that the doctrineof continuous voyages was applicable in connection with contrabandpersons or goods if they were destined for the Chinese Government evenby way of Hongkong. This it will be remembered was practically the viewtaken by Great Britain in the German seizures, though strenuouslyopposed in this incident. 

Professor Westlake, commenting upon the case of the _Gaelic_, states theEnglish view of the doctrine of continuous voyages as affecting: (1)goods which are contraband of war and (2) persons who are contraband ofwar, or analogues of contraband. Goods, he says, may be consigned topurchasers in a neutral port, or to agents who are to offer them forsale there, and in either case what further becomes of them will dependon the consignee purchasers or on the purchasers from the agents. Hecontends that "such goods before arriving at the neutral port have onlya neutral destination; on arriving there they are imported into thestock of the country, and if they ultimately find their way to abelligerent army or navy it will be in consequence of a new destinationgiven them, and this notwithstanding that the neutral port may be awell-known market for the belligerent in question to seek supplies in, and that the goods may notoriously have been attracted to it by theexistence of such a market. "[48]

[Footnote 48: L. Q. Rev. , Vol. 15, p. 25. ]

It is obvious that this was the position taken by Germany and othernations with reference to the interference with neutral commerce boundfor Delagoa Bay. Professor Westlake continues in regard to the Japaneseincident: "The consignors of the goods may have had an expectation thatthey would reach the belligerent but not an intention to that effect, for a person can form an intention only about his own acts and abelligerent destination was to be impressed on the goods, if at all, byother persons. " Thus it is agreed, he says, "that the goods though ofthe nature of contraband of war, and the ship knowingly carrying them, _are not subject to capture during the voyage to the neutral port_"[49]

[Footnote 49: L. Q. R. , Vol. 15, p. 25. Italics our own. ]

The German Government could not have based its protest against theseizure of German mail steamers upon a stronger argument for thecorrectness of its position than upon this view expressing the EnglishGovernment's attitude toward neutral commerce at the time of the seizureof the _Gaelic_. Professor Westlake points out, however, that goods onboard a ship destined for a neutral port may be under orders from herowners to be forwarded thence to a belligerent port, army or navy, either by a further voyage of the same ship or by transshipment, or evenby land carriage. He shows that such goods are to reach the belligerent"without the intervention of a new commercial transaction in pursuanceof the intention formed with regard to them by the persons who are theirowners during the voyage to the neutral port. Therefore even during thatvoyage they have a belligerent destination, although the ship whichcarries them may have a neutral one. "[50] In such a case, he declares, by the doctrine of continuous voyages, "the goods and the knowinglyguilty ship are capturable during that voyage. " In a word, "goods arecontraband of war when an enemy destination is combined with thenecessary character of the goods. " And it is pointed out that "theoffense of carrying contraband of war" in view of the doctrine ofcontinuous voyages is committed by a ship "which is knowingly engaged inany part of the carriage of the goods to their belligerentdestination. "[51]

[Footnote 50: Ibid. , p. 25. ]

[Footnote 51: L. Q. R. , Vol. 15, p. 26. ]

It is shown that even if the doctrine of continuous voyages is denied ashaving any validity, it may still be held that "the goods and theknowingly guilty ship are liable before reaching the neutral port ifthat port is only to be a port of call, the ultimate destination of theship as well as of the goods being a belligerent one. "[52] But if thedoctrine of continuous voyages is denied it may also be questioned "thata further intended carriage by transshipment or by land can be unitedwith the voyage to the neutral port so as to form one carriage to abelligerent destination, and make the goods and the knowingly guiltyship liable during the first part" of the voyage. [53] In other words, abelligerent destination both of the goods and of the ship carrying themwould be required. 

[Footnote 52: Ibid. , p. 26. ]

[Footnote 53: Ibid. , p. 26. ]

In regard to the doctrine of continuous voyages as applied to persons, Professor Westlake says, in speaking of the _Gaelic_, "When a personwhose character would stamp him as contraband, or an analogue ofcontraband, is a passenger on board a ship bound for a neutral port, andhaving no ulterior destination, but intends on arriving there to proceedto a belligerent port, there is no closer connection between the twoparts of his journey than that he should hold a through ticket to thebelligerent port. " It is pointed out that the distinction between aperson when considered as contraband and goods or despatches is that"the person cannot be forwarded like a thing. " Thus in the case of aperson holding a through ticket, the ticket is merely a facility, but itmust depend upon the person whether he will use it, and consequently, where the passenger is booked only to a neutral port, he "cannot_constructively_ be considered as _bound for a belligerent destination_until he is _actually bound for one_. "[54]

[Footnote 54: Ibid. , p. 29. Italics our own. ]

Upon Professor Westlake's reasoning the whole contention of the EnglishGovernment in arresting passengers upon German mail steamers bound forDelagoa Bay falls to the ground, for he continues: "There must for sucha destination be a determination of his own which during the _first partof his journey_ inevitably remains _contingent_ and which is thereforeanalogous to the new determination which may be given in the neutralport as to the employment of goods which have found a market there. "Consequently he says: "The doctrine of continuous voyages cannot beapplied to the carriage of persons. . . . A neutral destination of theship is conclusive in the case of passengers taken on board in theregular course. "[55] Accordingly, Professor Westlake reaches theconclusion that the search of the _Gaelic_ was unjustifiable under theright of belligerents against neutrals on the high seas. [56]

[Footnote 55: L. Q. R, p. 32. ]

[Footnote 56: He held, however, that the search was justifiable as anexercise of the police power of Japan within her own territorialwaters. ]

The application which Great Britain attempted to make of the doctrine ofcontinuous voyages proved unsuccessful both with reference to contrabandfor neutral ports and the carrying of analogues of contraband by Germanmail steamers bound for Delagoa Bay. In the end the British Governmentpaid to the German East African Line owning the _Bundesrath, Herzog_ and_General_, £20, 000 sterling, together with an additional sum of £5, 000as compensation to the consignees. For the detention of the ship _HansWagner_, a German sailing boat which had been arrested on February 6, 1900, the sum of £4, 437 sterling was paid. The allegation in this casewas that of carrying contraband, but the ship was finally releasedwithout the cargo being examined, a fact which indicates that in this, the last of the German vessels to be seized, Great Britain realized thefutility of attempting to interfere with commerce between neutral ports. 

The recommendations for the adjustment of the difficulty in the severalcases were made by a commission of five members, two of whom wereGermans, and the awards gave general satisfaction in Germany. The EastAfrican Line congratulated Count Von Bülow upon the energetic manner inwhich he had handled the incidents. German commercial interestsconsidered that they might count upon the effective support of theGovernment, and that the result was a complete justification of theattitude which Germany had assumed with regard to the conflictinginterests of belligerents and neutrals. 

CHAPTER IV. 

TRADING WITH THE ENEMY. 

Almost contemporaneously with the German-English controversy withreference to the restrictions which might legitimately be put uponGerman mail steamers Great Britain and the United States became involvedin a lengthy correspondence. 

Various articles of the general nature of foodstuffs were seized uponships plying between New York and Delagoa Bay. It developed later thatthe seizures were justified by England not upon the ground of the guiltof carrying contraband _per se_, but because an English municipalregulation was alleged to have been violated by English subjects in thatthey had traded with the enemy. But the fact was incontrovertible thatthe port of destination as well as that of departure was neutral. Theburden of proof under the circumstances rested upon the captor to showthat goods innocent in themselves were really intended for the enemy. Consequently the line of justification which was set up involved notmerely an extension of the doctrine of continuous voyages, but anapplication of this much mooted theory that would show an ultimateintention to trade with the enemy. 

The offense of trading with the enemy is not a new one in internationallaw. In 1799 Sir William Scott, afterwards Lord Stowell, sitting uponthe case of the _Hoop_, which is perhaps the leading case upon thesubject, declared that all trading with the enemy by the subjects of oneState without the permission of the sovereign is interdicted in time ofwar[1]. It was pointed out that, according to the law of Holland, ofFrance, of Spain and as a matter of fact of all the States of Europe, "when one state is at war with another, all the subjects of the one areconsidered to be at war with all the subjects of the other and allintercourse and trade with the enemy is forbidden. " This principle hasbeen accepted in the United States as one of the conditions of warfare. Wheaton declares: "One of the immediate consequences of the commencementof hostilities is the interdiction of all commercial intercourse betweenthe subjects of the States at war without the license of theirrespective Governments. "[2]

[Footnote 1: 1 C. Rob. 200. ]

[Footnote 2: Elements of International Law, Dana Ed. (1866), §309 etseq. ]

In England a declaration of war is equal to an Act of Parliamentprohibiting all intercourse with the enemy except by the license of theCrown. The penalty of such illegal intercourse is the confiscation ofthe cargo and of the ship engaged in such trade. The instructions areemphatic upon the point: "The commander should detain any British vesselwhich he may meet with trading with the enemy unless, either: (1) He issatisfied that the master was pursuing such trade in ignorance that warhad broken out, or, (2) The vessel is pursuing such trade under alicense from the British Government. "[3]

[Footnote 3: British Admiralty Manual of Naval Prize Law (1888), §38. ]

When a vessel is bound for a belligerent port it appears that the burdenof proof is thrown upon the ship's captain to show that goods so shippedare not intended for the enemy. In the case of the _Jonge Pieter_ (1801)goods purchased in England were shipped for an enemy port but wereseized by a British cruiser under the right of a belligerent. It wasattempted to be set up that the goods belonged to citizens of the UnitedStates, but in the absence of documentary proof condemnation was decreedon the ground of hostile ownership. [4]

[Footnote 4: 4 C. Rob. 79; other cases bearing upon the subject are: the_Samuel_ (1802), 4 C. Rob. 284 N; the _Nayade_ (1802), 4 C. Rob. 251;the _Franklin_ (1805), 6 C. Rob. 127; see also Kent's Commentaries, Vol. I, p. 87; Halleck, International Law (1878), Vol. II, p. 130; Moore, Digest of Int. Law, Vol. VII, p. 534; White, L. Q. Rev. , Vol. 16, p. 407. ]

The decisions in these cases as well as the general opinion of the pasthad shown what the British view was, namely, that all trading with theenemy is absolutely forbidden to British subjects upon the outbreak ofwar. But in the controversy between the English Government and that ofthe United States with reference to foodstuffs bound for Delagoa Bay onboard English ships the argument set up by the British authorities wasnot generally considered well founded, since little more than suspicionwas produced as evidence to show that any of the ships really intendedto trade with the enemy. There was no dissent from the established rulethat trading with the enemy on the part of the subjects of thebelligerent States is prohibited. But those nations whose citizens orsubjects suffered loss by the enforcement of the English law were notsatisfied that the English ordinance had been violated either in deed orby intent. 

Soon after war had begun it was known that the English authorities wouldscrutinize closely any transactions of British ships, or of ships leasedby English firms, which had dealings in a commercial way with thewarring Republics. On November 24 the Official Imperial Gazette ofBerlin had published the following note: "According to officialinformation British subjects are forbidden by English law to have anytrade or intercourse with the South African Republic and the Orange FreeState, or with the subjects of these two states, within theirterritories, during the continuance of the present state of war. "[5]Because of this prohibition, it was pointed out, all goods sent byEnglish ships and intended for the South African Republic or the OrangeFree State and ships of war, even in cases where the goods were notcontraband of war, might be legally detained by the British authorities. Attention was called to the fact that this measure might also be appliedto goods destined for ports in the neighborhood of the seat of war andnot belonging to Great Britain. German commercial circles were warnedthat they should consider whether under the circumstances it was not totheir interest to avoid using British ships for transporting goods toSouth Africa during the war. 

[Footnote 5: London Times, Nov. 24, 1899, p. 7, col. 4. ]

Notwithstanding this announcement, toward the close of December theBritish Foreign Office stated that information had reached the Secretaryof State for Foreign Affairs which showed that it was not generallyknown that trading with the enemy was unlawful. The English view of therestrictions upon British subjects was thus pointed out: "Britishsubjects may not in any way aid, abet, or assist the South AfricanRepublic or the Orange Free State in the prosecution of hostilities, norcarry on any trade with, nor supply any goods, wares or merchandise toeither of those Republics or to any person resident therein, nor supplyany goods, wares, or merchandise to any person for transmission toeither Republic, or to any person resident there, nor carry any goods orwares destined for either of the Republics or for any person residenttherein. "[6] It was further declared that these restrictions applied toall foreigners while they were on British territory, and that allpersons, whether British subjects or foreigners, who might commit any ofthe prohibited acts would be liable to such penalty as the law provided. 

These municipal restrictions obviously made illegal on the part ofEnglish subjects and of strangers temporarily resident upon British soilall commercial acts, from one country to the other, all buying andselling of merchandise, contracts for transportation, as well as alloperations of exchange, or the carrying out of any contract which wouldbe to the advantage of the enemy. A time-honored English maxim declares:"_Est prohibitum habere commercium cum inimicis. "_

[Footnote 6: British and Foreign State Papers, vol. 92, p. 383. Notice . . . Warning British Subjects against trading with the enemy, London, December 22, 1899. ]

When Great Britain attempted to enforce these recognized prohibitionsagainst trading with the enemy it was found difficult to show that thesuspected ships had in reality had dealings with the public enemy orwith its agents. The ships were not bound for a hostile port nor for ablockaded one, but for a neutral harbor which was not even contiguous toeither the Transvaal or Orange Free State. Other Governments, althoughready to admit that it was competent for England to forbid her ownsubjects to trade with the enemy, were not willing to allow theirrespective subjects to suffer the loss of goods which had been shippedin good faith. The character of the goods apparently excluded the ideaof contraband of war, and the ships themselves, since they were boundfrom neutral ports to a neutral port, appeared to be acting in goodfaith. 

THE SEIZURES. MARIA, MASHONA, BEATRICE, AND SABINE. 

THE MARIA. --As early as September 6, 1899, the _Maria_, a Dutch ship, had touched at Cape Town on her way to Delagoa Bay with a cargoconsisting largely of flour, canned meats and oats shipped from NewYork[7]. She was allowed to proceed after a short detention by theBritish authorities although goods in her cargo were plainly marked forthe Transvaal. It was realized under the circumstances that there was noground for the detention of ship or cargo, and in view of the fact thatno war was in progress at the time, the detention of the vessel even fora short period would appear to have been unjustifiable. The _Maria_called at Port Elizabeth, whence she cleared for Delagoa Bay. On October29 she put in for coal at Durban, three hundred miles from LorenzoMarques, and was boarded by the commander of the English ship _Tartar_. The _Maria's_ captain was willing to be visited and searched withoutprotest. According to the official report, "no guard was placed on her, "and "the agents were willing to land all the contraband. "[8] Thecommander of the _Tartar_ informed them that if this were submitted tothe vessel need no longer be detained. When the _Maria_ had been broughtin and no contraband was discovered by the search, the agents of theship protested against the landing of that portion of the cargoconsisting of flour and other goods which they considered innocent, butspoke of the vessel, it was alleged, as belonging to a British companycalled the "American-African Line. " The commander of the English cruiserpointed out to them that British subjects could not under the Governor'sproclamation trade with the enemy, and mentioned the warning in a localcustoms notice as the penalty for "vessels which carried contraband ofwar or goods of whatever nature the real destination of which was theenemy or their agents in neutral ports. "[9]

[Footnote 7: For. Rel. , 1900, p. 529. ]

[Footnote 8: For. Rel. , 1900, p. 575. ]

[Footnote 9: For. Rel. , 1900, p. 575. ]

The _Maria's_ cargo included a consignment of lubricating oil as well asa miscellaneous consignment of light hardware. Part of the cargo wasseized and part merely "detained. " The consignment to the NetherlandsSouth African Railway, a thousand cases of lubricating oil, eighty-fourcases of picks, twenty cases of handles, was seized as enemy's property, since there was sufficient evidence, it was thought, to show that thesegoods belonged to the railway company, the consignees, and not to theNew York shippers, the consignors. This opinion was held on the groundthat the Netherlands South African Railway was owned by the SouthAfrican Republic. 

All of the Delagoa Bay cargo including the flour and other foodstuffswas landed and the _Maria_ put to sea. But on November 3 the authoritiesat Durban were instructed by the British Foreign Office that foodstuffswere not to be treated as contraband, and the captain of the Britishcruiser _Philomel_ warned the customs that the flour should no longer bedetained. It was released and measures were at once taken for reshippingit on the British steamer _Matabele_, when it seems for the first timeto have occurred to the customs authorities that the flour might thusfind its way to Pretoria by means of an English ship. According to theofficial report: "It was then provisionally detained again. But on itbeing found that the flour was _bona fide_ a part of the _Maria's_ cargothe agents and all parties concerned were told that no furtherrestrictions would be placed on the shipment, but it was at the sametime pointed out that the flour was going direct to the enemy. TheGovernor's proclamation against trading with the enemy was then studiedin connection with the above-mentioned permission, with the result thatagents, shippers, and shipowners all refused to ship or carry the flourand nobody would have anything to do with it, " although no objection wasmade by the naval authorities to the cargo being forwarded to itsdestination. [10]

[Footnote 10: For. Rel. , 1900, p. 575. ]

For the detention of the _Maria_ her owners, upon the protest of theNetherlands Government, were awarded £126 sterling as indemnity. Theconsignment of flour "detained" at Durban was purchased by the EnglishGovernment at the price it would have brought at Delagoa Bay on November2, the day on which it would presumably have reached there had nointerruption occurred. [11]

[Footnote 11: For. Rel. , 1900, p. 610. ]

It was pointed out in the report upon the case that the _Maria_ wasundoubtedly a Dutch ship and that her agents had introduced an elementof confusion in the dealings with her by speaking of her as belonging toa British company. It was therefore admitted that possibly some of thegoods were removed on the erroneous supposition that she was a Britishship and could not lawfully carry them. Had she been a Dutch ship leasedby a British firm her liability would appear to have been as great as ifshe had been a vessel owned by British subjects. Had she belonged to aBritish company she would have been a British ship, and it would havebeen unlawful for her to carry for the enemy. 

THE MASHONA. --On December 5, 1899, the _Mashona_, clearing from New Yorkfor Delagoa Bay, was seized by the British cruiser _Partridge_ near PortElizabeth, seven hundred and fifty miles from Lorenzo Marques, and takeninto Table Bay, but later to Cape Town as prize on the charge of tradingwith the enemy. Consul-General Stowe reported the capture, and informedthe Department at Washington that the _Mashona_ carried five thousandtons of general cargo, including seventeen thousand bags of flour forthe Transvaal by way of Delagoa Bay. Foreseeing the probability that the_Mashona_ would be brought into Cape Town as prize, Mr. Stowe inquired:"Is foodstuff such as flour, contraband? Being a British ship has theBritish Government a right to seize?"[12]

[Footnote 12: For. Rel. , 1900, p. 529; Stone to Cridler, Dec. 6, 1899. ]

Counsel for the original American shippers upon the _Mashona_ statedthat the cargo was of the character of general merchandise and wasdestined "for neutral citizens domiciled in neutral territory. " It waspointed out in the prayer of the owners of this portion of the cargothat while the British Government might be justified in seizing her ownvessels, it appeared that the British naval authorities were illegallyjeopardizing the property of American citizens in that the vessel seizedwas "under contract to deliver to the persons named in the invoices themerchandise therein specified, none of which is contraband of war. "[13]

[Footnote 13: For. Rel. , 1900, p. 530; Hopkins and Hopkins to Hay, Dec. 12, 1899. ]

One portion of another shipment was on account of a Delagoa Bay firm, the other on account of a London one. With reference to the goodsconsigned to the latter firm the American shippers were unable to saywhat their ultimate destination might be, but in regard to the shipmentto Delagoa Bay they were positive that the consignees were a firm doinga large local business in Lorenzo Marques. To the best of theirknowledge it was a German firm whose members were not citizens either ofthe Transvaal or of the Orange Free State. They showed that the goodswere sold on four months' time dating from November 3, and consequentlythat their loss would fall upon the original shippers, who were citizensof the United States. The fact was pointed out that additionalmerchandise amounting to five thousand dollars had been purchased forthe Delagoa Bay firm, with a view to immediate shipment, but would haveto be held up and probably lost because of a situation which amounted toa blockade declared by Great Britain over a neutral port, an act whichin the end would compel all firms in Lorenzo Marques to cease buyingAmerican goods. [14]

[Footnote 14: For. Rel. , 1900, pp. 530-533; Flint Eddy and Co. ToHopkins and Hopkins, Dec. 9, 1899, and Hopkins and Hopkins to Adee, Dec. 15, 1899. ]

It was alleged by the captors that the ship's papers were not in properform, and that besides the flour and other foodstuffs she carried aconsignment of lubricating oil for the Netherlands South AfricanRailway. This consignment was held to be enemy's property since it wasconsidered that the railway belonged to the Transvaal, the specificcharge against the ship being that of trading with the enemy. The factthat a consignment of flour was billed to a Lorenzo Marques firm butlabelled "Z. A. R. " created a conclusive presumption, it was thought, thatthe flour was intended for the Transvaal, although its owners claimedthat the consignment was not destined for the belligerent Republic butfor local consumption at Lorenzo Marques. [15]

[Footnote 15: For. Rel. , 1900, pp. 538-539, 561. ]

Both the cargo consigned to the Transvaal and the vessel herself wereclaimed as lawful prize. The cargo, it was contended, was unprotectedsince it was enemy's property, and the vessel, by trading with theenemy, had violated a regulation which rendered it confiscable. Againstthis it was urged that the consignees were hostile only by reason ofdomicile, and that neither the owners of the ship nor the captain hadany intention to trade with the enemy. So far as intention wasconcerned, it was shown that the captain had intended to pass a bond atAlgoa Bay, one of the ports of call, undertaking not to deliver thegoods at Delagoa Bay without the permission of the proper authorities. The three judges of the Supreme Court of Cape Colony sitting as a prizecourt came to different conclusions. The Chief Justice held that thecargo should be condemned but not the ship. One opinion was that neithership nor cargo should be condemned; the third that both ship and cargoshould be condemned. There were thus two justices to one for condemningthe cargo and two to one against the condemnation of the ship. The cargowas consequently condemned and the ship released. [16]

[Footnote 16: Decision at Cape Town, March 13, 1900, reported in CapeTimes, March 14, 1900. ]

Different views were also held by the judges with reference to thecondemnation of the goods aboard the _Mashona_. The Chief Justice heldthat the intention of the captain to alter the destination of the goodswas sufficiently established to prevent their condemnation. The otherjustices dissented on this point. They held that the goods should beregarded in prize law as the property of residents of the Transvaal, andthat such ownership did not seem possible of denial. In their opinionthere was sufficient reason for condemning the goods since they wereenemy's property captured on the high sea in a non-neutral ship. 

This view obviously implied that an enemy character was impressed uponpersons resident in the Transvaal not by nationality but merely bydomicile. England's proclamation had in fact forbidden trade with theenemy or with those resident upon enemy territory. In other words, thoseresiding in hostile territory were regarded as enemies when there was aquestion of trading with the enemy. The same principle was applied whenthere was a question of property in goods which were on their way to theenemy's territory, a view which would seem reasonable since even the _defacto_ Government of a hostile region could possess itself of goodswhich had been allowed to enter its territory. 

With regard to the question of condemning the ship the Chief Justiceheld that there was not sufficient evidence to warrant confiscation. Hecited the case of the _Hook_, [17] which was condemned in 1801, but heldthat the case of the _Mashona_ was not on all fours with the conditionsof that decision. He took the view that the case of the _Mashona_ wasmore nearly analogous to the cases of the _Minna_ and the_Mercurius_, [18] and consequently declared for the restoration of theship. 

[Footnote 17: I. C. Rob. , p. 200; Moore, Digest of Int. Law, Vol. VII, p. 534. ]

[Footnote 18: The _Minna_ (Edwards 55, n. ; Roscoe, English Prize Cases(1905), p. 17, note) was restored by Sir William Scott in 1807 on theground that her voyage was _contingent_ not _continuous_. The ship hadbeen captured on a voyage from Bordeaux, destined ultimately to Bremen, but with orders to touch at a British port and to resume her voyage ifpermitted. The _Mercurius_ (Edwards 53; Roscoe English Prize Cases(1905), p. 15) was restored by the same judge in 1808 on the ground ofan "_honest intention_" to procure a license before trading with theenemy. ]

One justice concurred on the main point at issue, namely, that thereappeared to be "sufficient proof in the present case of an honestintention to pass a bond at Algoa Bay not to take the goods to DelagoaBay except with the permission of the proper authorities. . . . Thepresumption of an intention of trading with the enemy, arising from thefact that the ship was carrying enemy's goods consigned to Delagoa Bayand destined for the enemy's country, is entirely rebutted by theconduct of all the parties interested in the ship. The claim for therestitution of the ship must consequently be allowed. "[19]

[Footnote 19: Decision at Cape Town, March 13, 1900, Chief Justice, Mr. Justice Buchanan concurring. ]

One justice dissented from this opinion and argued that "as soon as warbroke out, it became the duty of the master to decline to convey anygoods which, from the papers in his possession, appeared to be theproperty of enemy consignees. " It was contended by this justice that"his contract of affreightment could not be fulfilled" in any event, andhe should have been aware of this fact. Further, it was urged that therewas not convincing evidence to "establish that there was no intention onthe part of the master of the ship to trade with the enemy, except withthe permission of the proper authorities. In the circumstances, such adefense must be established by very clear proof; . . . Although there isno reason whatever to impute any disloyal intention, or _mala fides_, . . . The proof of non-liability on this ground has not been made out. " Onthe contrary, it was insisted, in this dissent from the leading opinion, "there seems to be an absence of proof that it was not the intention . . . To deliver these goods to the consignees unless prevented from doingso by some competent authority; and this cannot be regarded asequivalent to proof that [the master] intended to apply for and obtain alicense before engaging in intercourse which, in the absence of thelicense, was of an unlawful character. From the moment this ship leftNew York harbour . . . She was liable _stricto jure_ . . . To seizureand condemnation; as she was still without a license when seized, _stricto jure_ the liability remains. "[20]

[Footnote 20: Decision, March 13, 1900; Mr. Justice Lawrencedissenting. ]

The fate, however, of the ship itself was of interest to third partiesonly in so far as its disposition involved the rights of neutrals whosegoods were on board. Great Britain's action in seizing her own ships, orships chartered by her own subjects, had the effect of placing a virtualblockade upon a neutral port, for few but English ships carried for theTransvaal or Orange Free State, a fact which bore with especial hardshipupon American shippers. The "detention" of all Delagoa Bay cargoes inBritish bottoms, provided a few articles were found consigned to theTransvaal, was a practice which was indignantly protested against by allneutral shippers upon English vessels. The injustice which this practiceworked was forcefully brought home to the United States by an apparentdisregard of the property rights of innocent neutrals in the seizure oftwo other ships at about the same time as that of the _Mashona_. 

THE BEATRICE. --This ship, also clearing from New York, was reported inDecember, 1899, to have been compelled by the English naval authoritiesto discharge all of her Delagoa Bay cargo into lighters at East London, some six hundred miles distant from Lorenzo Marques. It was pointed outby the New York shippers in their protest addressed to Secretary Hay atWashington that, according to the terms of the American and African billof lading, the steamship line was thus relieved of any furtherresponsibility, since the goods were at the risk and expense of theconsignees after leaving the ship's side. [21]

[Footnote 21: For. Rel. , 1900, p. 533, Norton and Son to Geldart, Dec. 14, 1899. ]

The shipments had been made, many of them on regular monthly orders, toPortuguese and other firms in Lorenzo Marques. The policy of insurancedid not cover war risks, and the company holding the insurance declaredthat it was not responsible for any accident which might occur while themerchandise was lying in lighters or hulks at a port of discharge whichhad been forced upon the ship by the English authorities. [22] Thatportion of the cargo of the _Beatrice_ which was shipped from New Yorkconsisted of large consignments of flour, canned goods, and otherfoodstuffs, but included also a consignment of lubricating oil as wellas a miscellaneous assortment of light hardware, but none of thearticles shipped were of a contraband character in the usual meaning ofthat term. Part of the flour was branded Goldfields and part waslabelled Johannesburg, although the whole consignment was marked DelagoaBay. The American shippers averred that although they regularly soldflour to merchants engaged in trade in various parts of South Africathey "had never sold flour with direct or ulterior destination to theSouth African Republic, by re-sale or otherwise. " They made affidavitthat all of their sales had been made for the ordinary uses of life, andthat "since the war had broken out they had made no sales of flour tomerchants or others in the South African Republic. "[23]

[Footnote 22: According to the terms of sale, on time, the shipperspointed out the obvious fact that unless the goods were delivered, theDelagoa Bay consignees as well as others would refuse to honor thedrafts drawn upon them for the amount of the purchase. Consequently theloss would fall upon the American shippers should Great Britain persistin turning aside innocent consignments from their neutral port ofdestination. ]

[Footnote 23: For. Rel. , 1900, p. 565; Choate to Salisbury, Jan. 13, 1900. ]

The reason assigned in the official report of the English authoritiesfor their action in regard to the _Beatrice_ was that she "containedlarge quantities of goods, principally flour, destined for the SouthAfrican Republic, which the customs authorities at East London requiredshould be landed at that port. " Since the cargo was stowed in such amanner as to make it impossible to land goods destined for the Republicwithout also discharging goods intended for Portuguese East Africa, itwas alleged that the master and agents of the ship preferred to land thewhole of the cargo at East London, where it was stowed by the customs. But it was admitted that the removal of large quantities of the goods solanded had been permitted from time to time "for the purposes of localand _bona fide_ Portuguese consumption. " The consignment to theNetherlands South African Railway was held to be enemy's property sinceit was considered that the railway was owned by the Republic. Thespecific reason assigned for the arrest of the steamer was "that the_Beatrice_ being a British ship, was by carrying goods destined for theenemy's territory, illegally engaged in trade with the enemy incontravention of Her Majesty's proclamation of December 27, 1899. "[24]The vessel sailed for Calcutta in ballast on December 11, 1900. 

[Footnote 24: For. Rel. , 1900, p. 574; Salisbury per Bertie to Choate, Jan. 26, 1900. This proclamation was not retroactive in the sense thatit established a new prohibition, but was merely explanatory of anaccepted restriction upon trade with the enemy by British subjects. Supra, p. 116. ]

THE SABINE. --On February 22 the last of the ships clearing from New Yorkfor South African ports was reported to have been seized at PortElizabeth, seven hundred and fifty miles from Lorenzo Marques. The_Sabine_ was also a British ship with Mossel Bay, Algoa Bay, and Durbanamong her ports of call, and carried shipments aggregating thirty toforty thousand dollars in value made by New York merchants to theseports, all of which are in British territory. But in addition to theallegation which had been brought against the _Maria_, _Mashona_, and_Beatrice_, of trading with the enemy, it was suspected that the_Sabine_ was carrying actual contraband of war. The latter suspicion, however, was not pressed, although the authorities who stopped andexamined the ship upon the specific charge of violating a municipal lawasserted that the _Sabine's_ "papers were not in proper form and thatgoods were found on board which, though shipped to ports this side weremarked to persons residing in Boer territory. " The case was viewed bythe English Government "as a very suspicious one under municipal law, but, as the evidence was not very complete, they gave the vessel thebenefit of the doubt. "[25] After a short detention both ship and cargowere released. 

[Footnote 25: For. Rel. , 1900, pp. 594-595. ]

The news of the reported seizures aroused considerable popular feelingin the United States. In the Senate a resolution was introduced which, as finally amended, read: "Whereas it is alleged that property ofcitizens of the United States not contraband of war has been latelyseized by the military authorities of Great Britain in and near DelagoaBay, South Africa, without good reason for the same, and contrary to theaccepted principles of international law; and, Whereas it is allegedthat property of citizens of the United States is now unjustly detainedby the military authorities of Great Britain, in disregard of the rightsof the owners of the same; therefore, Resolved by the Senate of theUnited States, That the President is hereby requested to send to theSenate, if not, in his opinion incompatible with the public interests, all information in possession of the State Department relating to thesaid alleged seizure and detention, and also to inform the Senate whatsteps have been taken in requesting the restoration of property takenand detained as aforesaid. "[26]

[Footnote 26: 56 Cong. , 1 Sess. , Jan. 17, 1900, Record, Vol. 33, Pt. 1, pp. 895, 900. ]

The final clause of the resolution as at first introduced was strickenout after a discussion as to whether the Secretary of State should be"_directed_" or the President be "_requested_" to furnish the desiredinformation. It was realized that the language of the expunged clause, "and whether or not the Department has informed the proper Britishauthorities that, if said detention is persisted in, such act will beconsidered as without warrant and offensive to the Government and peopleof the United States, " was neither diplomatic in its tone nor warrantedby the circumstances. Amicable negotiations were still in progress, andthose negotiations were concerned with a discussion of the very questionwhich would thus have been decided in the affirmative by the Senate, namely, that the seizures had been contrary to the principles ofinternational law. Consequently the resolution only declared that it was"alleged" that Great Britain had departed from the strict principles ofinternational law, and it was not intimated that her persistence in suchacts would probably require a resort to more forcible measures than mereprotest on the part of the United States. 

A motion had been made that the resolution be referred to the Committeeon Foreign Relations, where it was hoped by certain members of theSenate that it would die a natural death, an end which would have beendeserved under the circumstances, since the event to which theresolution referred was then in the course of diplomatic considerationand nothing had indicated that the State Department would not be able tosecure protection for the interests of all citizens of the United Statesas neutrals during a recognized belligerent contest. An unsettledquestion of international law was at issue between Great Britain and theUnited States, and was being dealt with as fast as official informationreached the British Foreign Office from the scene of the occurrenceswhich were alleged to have been in contravention of establishedprinciples. Flour or any other foodstuff might or might not becontraband of war according to the particular circumstances of the case. As a general rule products like flour shipped from a neutral State arenot contraband, but it is always a question of fact whether theimmediate destination of such flour is for hostile purposes, namely, thesustenance of a belligerent army. If flour or foodstuffs generally wereso destined they became contraband of war for the particular case. 

Not less than twenty thousand barrels of flour had been shipped bycitizens of the United States upon the three steamers, _Maria_, _Mashona_, and _Beatrice_, and the proposer of the resolution insistedthat the Senate was entitled to know in what manner the rights of theUnited States were being asserted in view of the obvious hardship which_bona fide_ neutral shippers had thus suffered. He urged that theseizure of property of citizens of the United States by one of thebelligerents was "a thing which profoundly affects the American people;it affects every corn grower, every wheat farmer, the owner of thecattle upon a thousand hills, the mill man, the middleman, everybody whois interested in producing and exporting the products of the farm andthe field is interested in this question and is entitled to know whathas been done in this case. "[27]

[Footnote 27: Hale of Maine, 56 Cong. , 1 Sess. , Rec. , Vol. 33, Pt 1, p. 896. ]

It is to be hoped that the Senator's constituents read this speech inthe next morning's papers, for otherwise it must go down in history as aburst of eloquence wasted upon unhearing ears. Had he been able to passhis resolution so worded as to "_direct_" the Secretary of State tothrow open the entire files of the Department's foreign correspondencefor the Senate's inspection, instead of merely "_requesting_" thePresident to furnish such information as the Senate desired "if not, inhis opinion, incompatible with the public interest, " the result wouldhave been practically the same. In either event the President would havecontrolled the situation, since he can not be compelled to furnishinformation to the Senate when he considers it incompatible with thepublic interest to do so. The only power possible to be exercised by theSenate over the Executive in such a case is that of impeachment. Andshould impeachment be possible or advisable the process could be carriedthrough as well with the words, "if not, in his opinion, incompatiblewith the public interest, " _out_ of a resolution as with those words_in_ such a formal request of the Senate. [28]

[Footnote 28: Teller of Colorado, 56 Cong. , 1 Sess. , Record, Vol. 33, Pt. 1, p. 898. ]

As a rule it is unwise for the Senate to interfere while negotiationsare pending between the Executive Department and foreign Governmentsover any question which is at issue. Should a resolution "_requesting_"information upon any subject be deemed necessary, it should obviously beaddressed to the President and, merely for the sake of courtesy, withthe usual _caveat_. It should not be "directed" to the Secretary ofState, for that official stands in a different relation to thelegislative department from that of the secretaries of any of the otherdepartments. The Secretary of State is not required by law to report toCongress as are all the other Cabinet officers. He has been exemptedfrom that requirement for the reason that his duties are mainlydiplomatic. Negotiations carried on with foreign Governments uponmatters of a delicate character might involve serious embarrassments ifduring their pendency the successive steps were reported toCongress. [29] The power of the President in consultation with theSecretary of State to deal with foreign Governments at least up to thelast moment and final consent of the Senate has made it possible for theUnited States to preserve a fairly uniform foreign policy. For despitethe repeated changes of administration and of domestic policies thegeneral foreign policy has been closely modeled upon the expedientcourse of absolute neutrality laid down by Washington. Were it apractical requirement of the Constitution that all foreigncorrespondence upon any important question should be at once laid beforethe Senate, it is reasonable to suppose that few treaties or importantconventions would finally be ratified. In a question of internationallaw such as that under discussion between the Governments of GreatBritain and the United States, it would have been extremely unwiseduring the negotiations for the Senate to interfere in any way with theregular course of diplomatic intercourse between the two Governments. 

[Footnote 29: Platt of Connecticut, 56 Cong. , 1 Sess. , Record, Vol. 33, Pt 1, p. 899. ]

In the end the Hale Resolution was agreed to, but nothing came of it, for the State Department found the English Government not unwilling tomake an equitable settlement for the losses which citizens of the UnitedStates had incurred as a result of the seizures of British shipscarrying American goods from New York to Delagoa Bay. 

THE LEGALITY OF THE SEIZURES. 

While the fruitless discussion had been in progress in the SenateSecretary Hay had been dealing with the question in such a manner as tosafeguard all American interests, but at the same time with a fullconsideration of the necessity for protesting against any undueextension of belligerent rights. Immediately following the seizure ofthe British ships clearing from New York with American goods on board hehad requested a prompt explanation. In his instructions to AmbassadorChoate he said: "You will bring the matter to the attention of theBritish Government and inquire as to the circumstances and legality ofthe seizures. "[30] And later, Mr. Choate was further instructed toascertain "the grounds in law and fact" upon which the interference withapparently innocent commerce between neutral ports was made, and todemand "prompt restitution of the goods to the American owners if thevessels were seized on account of a violation of the laws of GreatBritain, as for trading with the enemy; but if the seizure was onaccount of the flour . . . The United States Government can notrecognize its validity under any belligerent right of capture ofprovisions and other goods shipped by American citizens to a neutralport. "[31] Mr. Hay pointed out the fact that the American shippers hadproduced evidence intended to show that the goods were not contraband incharacter, and should this prove to be true prompt action was to berequested on the part of Great Britain in order to minimize as far aspossible the damage to neutral goods. 

[Footnote 30: For. Rel. , 1900, p. 534; Hay to Choate, Dec. 21, 1900. ]

[Footnote 31: For. Rel. , 1900, pp. 539-540; Hay to Choate, Jan. 2, 1900. ]

The position taken by the English Government was indicated on January 10in a note handed to Mr. Choate: "Our view is that foodstuffs with ahostile destination can be considered contraband of war only if they aresupplies for the enemy's forces. It is not sufficient that they arecapable of being so used. It must be shown that this was in fact theirdestination at the time of their seizure. "[32] Lord Salisbury verballyadded that the British Government did not claim that any of the Americangoods were actual contraband, but that the ships had been seized on acharge of trading with the enemy, and it was intimated also that "anultimate destination to the citizens of the Transvaal, even of goodsconsigned to British ports on the way thither, might, if thetransportation were viewed as one continuous voyage, be held toconstitute in a British vessel such a trading with the enemy as to bringthe vessel within the provisions of the municipal law. "[33] He assertedthat the offense was cognizable by a prize court alone, but admittedthat "if the owners of the cargoes, being neutrals, claim that they areinnocent, the cargoes should not be condemned with the ship but shouldbe delivered over to them. "[34] He suggested that the ordinary coursewould be that the owners should claim the cargoes in the prize court, where the cases would be considered and properly dealt with on theirmerits. [35] The owners would be requested, he said, to prove that theywere the _bona fide_ owners by submitting bills of lading and invoicesto the court. It was intimated that the American flour which had beenremoved from the ships was not detained in any way but was perfectlyopen to the owners to make whatever arrangements they pleased for itsimmediate removal. If they considered themselves aggrieved by the actionof the English authorities in causing the flour to be landed it was ofcourse open to them to take such proceedings against the personsconcerned as they were advised might be appropriate under thecircumstances. [36]

[Footnote 32: For. Rel. , 1900, p. 549; Salisbury per Choate to Hay. ]

[Footnote 33: For. Rel. , 1900, p. 609; Hay to White, March 20, 1900, citing Choate's despatch of April 26, 1900. ]

[Footnote 34: For. Rel. , 1900, p. 549. ]

[Footnote 35: See Story, Manual of Naval Prize Law (1854), pp. 46-71, where the practice in such cases before prize courts is stated; in otherportions of the work the claims made by innocent or interested partiesare considered. ]

[Footnote 36: For. Rel. , 1900, p. 549, Salisbury, speaking with specialreference to the _Mashona_ and _Maria;_ Choate to Hay, Jan. 10, 1899. ]

Mr. Choate at once retorted that in such a case the United States wouldvery probably send the bill to the British Government. The fact waspointed out that the operation of the English law did not lessen theobligation incumbent upon Great Britain to restore the goods to their_bona fide_ neutral owners or to the neutral consignees. Although thepermission had been given to the owners to come and take their goods atthe ports of detention, short of the original port of destination, thispermission could not be considered as discharging the obligation torestore the goods. The representative of the United States insisted thatnothing short of delivery at their port of consignment would fulfill theEnglish obligation in a commercial sense such as to give the goods thevalue intended. It was clearly shown that under the application of theEnglish municipal law the goods in question became as inaccessible totheir owners for all the purposes of their commercial adventure "as ifthey had been landed on a rock in mid-ocean. "[37] In his criticism ofthe English position, Mr. Choate said: "The discharge from the vesseland landing short of the port of destination and failure to deliver atthat port, constitute wrongful acts as against all owners of innocentcargoes. "[38] And he pointed out the inconsistency of the position sinceit was not claimed that any but British subjects could be guilty of anyviolation of the English prohibition against trading with the enemy. Hewas accordingly instructed to insist that the obligation rested upon theBritish Government to indemnify the neutral owners and make good to themall damages and loss sustained by the treatment to which they had beensubjected. 

[Footnote 37: For. Rel. , 1900, p. 585; Choate to Salisbury, Feb. 6, 1900. ]

[Footnote 38: For. Rel. , 1900, p. 586. ]

The United States was ready to admit that there might have been causefor the seizure and detention for the purpose of examination before aprize court upon the suspicion of trading with the enemy. But thedecision of the judges seemed to indicate that such a suspicion was notfounded upon facts which could be produced before the courts. Thevessels were released upon the ground that they had not in fact tradedwith the enemy nor intended to do so except with the express or impliedpermission of the British Government. In view of the causes put forwardfor the seizures and of the reasons stated by the authorities for thesubsequent release of the ships it would seem that the cargoes, "exceptin so far as contraband might have been involved would have the samestatus as though found aboard British ships trading between neutralports where there was no question of a belligerent in the neighborhoodof the port of detention. "[39] The prize court _did_ decide that therewas no question of contraband involved, and the American representativepointed out the fact that the seizures not having been made or justifiedon account of contraband goods, the only effect of the British decisionwould seem to be either that Great Britain possessed the right to seizeneutral and non-contraband goods aboard British vessels trading betweenneutral ports, or else the American owners of such cargoes would beentitled to full compensation for their damages. 

[Footnote 39: For. Rel. , 1900, p. 611; Hay to Choate, May 24, 1900. ]

Lord Salisbury in his reply attempted to correct what he considered themisapprehension which underlay the statement of alternatives, namely, that neutral and non-contraband goods were not free in British bottomsbetween neutral ports, or else full compensation must be made to theowners for their seizure. It was asserted that the British Governmenthad neither exercised nor claimed any such right as that which wasindicated, nor had they _seized_ neutral and non-contraband goods. Hedeclared that the goods were not seized. Their passage to LorenzoMarques was merely interrupted, and by this interruption they weredetained only to the extent that their being on board the ship which hadbeen arrested made their detention unavoidable. It was further allegedthat had the prize court held that the arrest of the ships was notjustified they would "_presumably_ have awarded damages against thecaptors of the ships and the damages would _presumably_ have been socalculated as to enable the ship to meet the claims of merchants arisingout of the unjustified interruption of the voyage. "[40] The fact wasalleged that the court had not so held and that it appeared that theships should, therefore, bear the consequences of the arrest and meetthe merchants' claims. By the law of the flag under which the shipssailed they could not carry goods destined for the enemy. If theyshipped such goods they should bear the consequences. Among thoseconsequences was the delaying of the goods until such time as they couldbe placed on a ship that could legally carry them on to their originalport of destination. 

[Footnote 40: For. Rel. , 1900, p. 618; Salisbury to Choate, July 20, 1900. ]

The result of such a decision is apparent. The American goods, in thewords of Mr. Hay, were "as inaccessible to their owners as if they hadbeen landed on a rock in mid-ocean, " since no steamers not belonging toBritish lines plied between the ports of Cape Colony and Delagoa Bay. But there seemed little chance of securing a revision of Great Britain'sdecision, which was based upon the principle that she might deal withEnglish subjects and with English ships in accordance with the law ofthe flag under which those ships sailed. Mr. Hay, therefore, onlyendeavored to secure every possible guarantee for American interestsinvolved, but incidentally emphasized the view that, although Englandmight use her own as she saw fit she must show just ground for allinjuries suffered by innocent American shippers. Instructions were sentto Mr. Hollis, the United States consul at Lorenzo Marques, that heshould investigate the seizures and make every effort to protect theproperty of American citizens, and later he was urged to ascertain thefacts concerning the detention of American flour on board the shipsarrested by Great Britain. [41]

[Footnote 41: For. Rel, 1900, p. 538; Hay to Hollis, Dec. 28, 1899. ]

It soon developed that freight had been prepaid and that the draftsdrawn against the various shipments from New York would be protested fornon-payment by the parties on whom they had been drawn at DelagoaBay. [42] Consequently the title to the property in such cases was vestedin the American shippers, and they urged their Government to see thattheir interests were protected against what they considered an undueextension of belligerent rights against ordinary neutral trade from oneneutral port to another. Mr. Hay pointed out the obvious injustice ofthe goods being in the prize courts with the vessel, even granting thatthe ship as a common carrier of international commerce had violated thelaw of its flag, on the remote possibility of having carried for theenemy. He insisted that, although the shippers might be required tofurnish invoices and bills of lading, they should not be sent to theprize court for their property. Lord Salisbury, however, contended thatthe prize court had complete control of the situation, and that anyneutral shippers who were innocent could secure the release of theirgoods only by applying to the court with the proper evidence ofownership. The injustice of the vigorous enforcement of this rule ofprize law was obvious, and the demand was made that the goods should bereleased by order of the proper British law officer and not be left tothe mercy of the prize court. [43] It was urged that since the ships hadbeen seized because of a violation of the municipal law of GreatBritain, for trading with the enemy, and since the seizure and detentionof the flour and other goods was only incidental to the seizure of theships, the flour, to which no such offense could be imputed, could notunder the circumstances be admitted to be subject to capture because notcontraband of war. Upon these grounds prompt restitution to the Americanowners was demanded. [44]

[Footnote 42: For. Rel, 1900, p. 540; Toomey to Hay, Jan. 3, 1900. ]

[Footnote 43: For. Rel, 1900, p. 543; Choate to Hay, Jan. 5, 1900. ]

[Footnote 44: For. Rel. , 1900, p. 543; Choate to Salisbury, Jan. 4, 1900. ]

The view of the Department was that nothing seemed to justify theseizure of the American goods, for to all intents and purposes they were_seized_ although it was considered by Great Britain that they hadmerely been _detained_ as an incident of the seizure of the ships onwhich they were carried. Since the flour was sold delivered at DelagoaBay it was therefore the property of the United States shippers untilthe obligation of delivery was fulfilled irrespective of the drafts madeagainst it on Delagoa Bay. Upon the return of these drafts unpaid theflour was left in a critical position even if released. [45]

[Footnote 45: For. Rel. , 1900, p. 548; Toomey to Hay, Jan. 10, 1900. ]

It was clearly shown that the flour had been sold in the regular courseof business as for a number of years past, shipments being made of somany bags each month to their regular users who anticipated theirordinary requirements. The consignees, it was urged by the Americanshippers, were reputable merchants in Delagoa Bay, and the consignmentswere not of an unusual character but were a part of the ordinarycommerce with the East coast. [46] It was admitted that certain of theconsignments had been to residents of Johannesburg, but it was at thesame time asserted that the consignees were legitimate flour merchantswho were not contractors for the Transvaal Government at the time thepurchases were made. [47]

[Footnote 46: For. Rel. , 1900, p. 567; Choate to Salisbury, Jan. 15, 1900. ]

[Footnote 47: For. Rel. , 1890, p. 584. Affidavit of A. J. Toomey, President of the Penn. Milling and Export Co. , Jan. 23, 1900. ]

The Pennsylvania Milling and Export Company suggested that possiblytheir shipments had been confused with those of an English firm, Collierand Sons, of Bristol. It was alleged to be a notorious fact that thisfirm had made large shipments of flour to the Transvaal Government; thatArthur May and Company were the agents of the firm in the Republic, andthat the Bristol firm had shipped on the same steamers on which Americangoods were carried. A. J. Toomey, President of the Pennsylvania firm, inalleging these facts pointed out that he mentioned only what was wellknown in shipping circles and did so merely to establish the fact thatthere had been no wrong intent with reference to his shipments. He urgedthat the question of the justice of indemnification should be settled, leaving the respective rights of consignors or consignees to theproceeds to be settled afterward. [48]

[Footnote 48: For. Rel. , 1900, p. 589; Toomey to Hay, Feb. 12, 1900. ]

Mr. Choate, in carrying out instructions received from Washington, insisted that where the ship was seized and taken into port on thecharge of trading with the enemy, and where the flour was not held ascontraband, and was not claimed to be contraband, and under thecircumstances could not be involved in the specific charge against theship, it was manifestly a great hardship for the owners of the flour tobe compelled to go into the prize court at a port short of the originaldestination even for the purpose of proving their ownership, which heinsisted would involve costs and damages for the detention and possibledeterioration in value. [49] It was intimated that aside from thepecuniary features of the situation it was of primary importance toinsist upon the principles involved, with a view to preventing anextension of belligerent rights to the detriment of all neutral commercein time of war. Emphasis was therefore placed upon the point thatevidence must be shown that the goods were really for the supply of theenemy's forces and that this was in fact their destination at the timeof their seizure. The fact was pointed out that otherwise the action ofthe British authorities seemed to imply the right to exercise an embargoon the sale and delivery of non-contraband goods in the ordinary courseof trade with the people of the Republics. It was intimated that thiswas inconsistent with the view of contraband expressed by the EnglishGovernment, and wholly inadmissible from the point of view of the UnitedStates. [50]

[Footnote 49: For. Rel. , 1900, p. 566; Choate to Salisbury, Jan. 13, 1900. ]

[Footnote 50: For. Rel. , 1900, p. 578; Choate to Salisbury, Jan. 29, 1900. ]

The argument was presented that the British Government had seized flourshipped to buyers at Delagoa Bay and had prevented it from reaching thatpoint in time to meet a good market. Consequently, in view of the factthat it was not sold for any purposes hostile to Great Britain, it wasurged that the latter should not be allowed to consider herself relievedof any responsibility for indemnity or direct loss assumed by theshippers, or for any indirect loss for which the shippers might have tocompensate the buyers on account of the diversion and detention. It wasthe opinion of the United States that the mere release of the flour toqualified owners did not meet the obligation in the case because theowners could not possibly take the delivery of the flour owing to theobstacles of war at the points where the goods lay. Even if they coulddo so they would naturally suffer considerable loss by the condition ofthe market and by any diminution in value that might have occurred tothe flour through climatic deterioration. 

The American State Department, therefore, suggested as the onlyequitable plan apparent under the circumstances that Great Britain buythe flour and other innocent goods at their invoice price and pay overthe proceeds of the purchases to those persons who could prove a justclaim for its value. An additional sum was also asked as "reasonablecompensation" for loss of market and other losses that might have beensuffered by American interests. [51] In other words, the EnglishGovernment should use the flour, pay the costs and indemnify the ownersreasonably, since the latter were entirely innocent and had dependedupon the usual rights and immunities of neutral shippers in time of war. The fact was pointed out that the situation was causing an uncertaintyand hesitancy in business circles which was detrimental to all Americaninterests. Although a number of the consignments were being delivered atDelagoa Bay, presumably by English ships, it was alleged that theseizures and the unforeseen attitude of Great Britain had compelled alllater shipments to go by way of Hamburg or Bordeaux when seeking theports of South Africa in the way of ordinary neutral commerce in orderto avoid using British bottoms as a means of transportation. Many of thedrafts had been returned unpaid and others were expected in due course, and whether paid or not they would finally have to be lifted by theshippers from the United States, since they were the final recourse. [52]All delay tended to reduce the value of the goods, which wereperishable, on account of the climate and because of Cape Colony dutiesand loss of market. 

[Footnote 51: For. Rel. , 1900, p. 582; Toomey to Hay, Jan. 23, 1900. ]

[Footnote 52: For. Rel. , 1900, p. 540; Hay to Choate, Jan. 10, 1900. ]

The offer was made by several of the American shippers to sell to GreatBritain for the value of the goods at the port of original destinationat the time they would have arrived there had the voyage not beeninterrupted. And the American representative urged that it would beadvisable for all American shippers who were interested to agree to sellupon the same terms with a view to securing an arrangement which wouldinclude all neutral American property. He suggested that where the titleto property was doubtful both shipper and buyer might unite in the sale, since this course was preferable to incurring questions as betweenconsignors and consignees in the prize courts. [53]

[Footnote 53: For. Rel. , 1900, p. 551; Choate to Hay, Jan. 12, 1900. ]

The English Government had naturally been unwilling to buy at currentprices for the reason that prices were doubled at Delagoa Bay after theseizures, but it was considered that the price there on the day of theseizures was not unreasonable. Great Britain was willing to buy, butemphasized the point that the alleged owners must prove their title toownership beyond a doubt as an essential condition of the arrangement, since the Government could not incur the risk of paying one man only tohave another appear later and prove that he was the real owner. Fearswere expressed that the question of ownership would cause trouble, although the regular shipping documents by which the goods had gotteninto the ships, it was thought, should be sufficient proof provided thejoint consent of consignors and consignees could be secured. [54]

[Footnote 54: For. Rel. , 1900, pp. 553, 554, 579]

The English view had been that the whole cargo was included in the libelfor trading with the enemy declared against the ship, but the plea ofthe American owners was heard, that the rules of prize procedure shouldnot be so rigorously enforced in the present instances, since such aninterpretation would have led to obvious injustice by requiring innocentAmerican owners to appear before the court to prove the title to theirproperty. [55] Such a requirement, it was realized, would have led todifficulties of an almost unsurmountable character under thecircumstances. Claimants would have had to submit evidence showing a_bona fide_ American citizenship and an actual title to the ownership ofthe goods at the time they were seized. Within the rules of prizejurisdiction the consignee on whose account and at whose expense thegoods were shipped is considered the owner of such goods during thevoyage. And as a corollary the further rule is suggested that the rightto claim damages caused for an illegal seizure would be in the owner. Inthe prize court the delay caused by all such questions as betweenconsignor and consignee would have been almost endless. 

[Footnote 55: For. Rel. , 1900, p. 579; Choate to Hay, Feb. 2, 1900. ]

The question might naturally have arisen whether there could be anybasis for a claim for indirect loss sustained by an American shippergrowing out of the sale on credit to citizens of the Transvaal. It mightbe a question, too, whether the consignor might, notwithstanding theseizures, be able to recover at law the full contract price of the goodsshipped prepaid to the consignee, and if so, whether the seizure couldbe considered legally as a wrong against the American consignor. Andeven granting that the latter were unable to recover at law from theconsignee, the question would still remain whether under all thecircumstances such inability on the part of the American consignor couldbe legally imputable to the act of the British Government in making theseizure. The question might also have arisen where an agent had boughtfor the Transvaal Government on credit, so that the title passed whenthe goods went on board and the goods were discovered to have beencontraband, whether an American shipper might not appear to have beenprivy to the real character of the purchases. In such a case the UnitedStates Government could hardly have championed the cause of a party whohad shipped contraband. A prize court is filled with pitfalls of thekind, but the diplomacy of Secretary Hay, backed by the prestige of theUnited States and a reciprocal feeling of friendship between the twonations, was able to avoid all such questions by inducing Great Britainto agree upon a settlement without compelling the claimants to go intothe prize court. Although it was pretty well ascertained that no actualcontraband in the usual sense of the term had been carried from Americaby the ships which were seized, difficult questions were thus avoided asbetween liens and general ownerships which might have arisen hadAmerican shippers been compelled to go into court. 

It is not a universal rule where the shipper has not been paid for hisgoods that the property is still in him, so as to constitute him theowner in a prize court, or for the purposes of sale. By the terms ofsale and shipment he may not have retained a lien on the goods. But inany case as a rule the title of the absolute owner prevails in a prizecourt over the interests of a lien holder, whatever the equities betweenconsignor and consignee may be. [56] Consequently the policy adopted bySecretary Hay in demanding that Great Britain should settle with allAmerican shippers on an equitable basis without forcing them to taketheir chances in a prize court was the wisest course that could havebeen pursued. 

[Footnote 56: The _Winnifred_, Blatch. Prize Cases, 2, cited 2 Halleck, International Law, Engl. Ed. (1893), 392. ]

In the final arrangement Great Britain admitted that the American goodshad not been liable to seizure except as a result of the libel attachingto the ships. But any claims for damages due to the owners of thecargoes on account of the failure of the vessels to deliver at the portmentioned in the freight contract, it was asserted, should be madeagainst those who entered into or became responsible for the executionof the contract for the delivery which they failed to perform, and theassumption that such damages could be sustained at law would depend onthe terms of the contract of carriage. The English Government, however, did not admit that it was in any way liable for damages to the owners ofthe flour and other goods, since their detention was due entirely to thecircumstance that the ships were not able to complete their voyages, andthe fact that they could not complete their voyages was due to thecircumstance that such voyages were illegal by the law of the flag underwhich they were sailing. [57]

[Footnote 57: For. Rel. , 1900, pp. 604-605; Salisbury to Choate, March3, 1900. ]

Although the financial settlement which Great Britain was willing tomake was accepted by the United States, this acceptance did not imply anacquiescence in the view expressed by the English Government withreference to the conditions under which flour and other foodstuffs mightbecome contraband of war, nor in the doctrine of continuous voyages asapplied by Great Britain to trading with the enemy. It was preferred atWashington to follow the usual rule and avoid passing upon hypotheticalcases until occasion had called them into actual existence. The problemwhich had been before the Department of State was, not to force GreatBritain to declare herself finally upon broad questions of internationallaw, nor to express the final attitude of the United States uponquestions which were not immediately at issue, but to meet the demandsof American shippers and secure their immediate interests by someequitable agreement with Great Britain. The arrangement agreed upon, therefore, met only the necessity of the case immediately in view. TheUnited States Consul-General at Cape Town was to arrange with Sir AlfredMilner, the British High Commissioner in South Africa, for the releaseor purchase by the British Government of any goods owned by citizens ofthe United States, which, if purchased, were to be paid for at the pricethey would have brought at the port of destination at the time theywould have arrived there had the voyage not been interrupted. 

Against certain articles, especially the oil consigned to theNetherlands South African Railway, an allegation of enemy's property wasjustly made and the oil confiscated. 

In the end most of the American claims were withdrawn or paid in full. In the former event the American owners threw the burden of proof ofownership upon the consignees, who were instructed to present theirclaims through their respective governments. But it should be noted thatin acceding to the American demands by purchasing the goods, the BritishGovernment emphasized the fact that the act was purely _ex gratia_ onthe part of England. The British representative clearly stated that thegoods had been legally detained and that it was open for the owners tocome and take them upon proof of ownership before the prize court. Itwas pointed out that the fact that none but British ships ran betweenCape Colony and Delagoa Bay, although an unfortunate circumstance, wasone which could hardly be held to be a fault of the English Government. The enforcement of the English law was the right of Great Britain nomatter upon whom the inconvenience might happen to fall. Lord Salisburysaid: "It must be distinctly understood that these payments are madepurely _ex gratia_ and having regard to the special circumstances ofthis particular case. No liability is admitted by Her Majesty'sGovernment either to purchase the goods or to compensate . . . For thelosses or for the expenses . . . Incurred. "[58] The view held by theEnglish statesman was that Great Britain's concession in these casesshould not serve as a precedent in the future. 

[Footnote 58: For. Rel. , 1900, p. 618; Salisbury to Choate, July 20, 1900, with reference to the _Beatrice_. ]

The attitude which Great Britain had assumed with reference to thedifferent seizures was generally considered a menace to neutralcommercial interests should the British position be accepted as aprecedent for similar cases that might occur. The danger of such aprecedent had been realized by Secretary Hay and throughout thenegotiations he had dwelt upon the fact that while the protection ofAmerican interests was the end immediately sought, the principles whichunderlay the disposition of the particular cases were of the greaterimportance. 

Lord Roseberry, too, called attention to the danger of the precedentshould England determine to treat foodstuffs in general as contraband ofwar. It was pointed out, however, that in the seizures of foodstuffsnear Delagoa Bay the question of contraband did not necessarily arise, since all trade with the enemy, even in articles the most innocent, wasforbidden under heavy penalty. The seizure of certain classes offoodstuffs as of a contraband character did not of necessity involve theprinciple of treating all foodstuffs as contraband of war. The Englishview was that it had long been recognized that a belligerent mightdiscriminate between foodstuffs obviously intended for the commissariatof an army in the field and foodstuffs which might be properly importedfor the use of the non-combatant population. 

The consensus of opinion, however, seems to be that while there may bereasonable ground for including tinned or canned meats and the like inthe former category, flour naturally belongs to the latter class, and ithas been pointed out that neither the British Government nor any otherhas the power of treating what it pleases as contraband withoutreference to the prize court, with which alone the decision rests. Theprize courts of all countries have held at different times thatfoodstuffs under certain circumstances are contraband, as, for instance, where they are intended for the supply of a belligerent garrison as wellas in less obvious cases, but any decision which considered foodstuffsgenerally as contraband would be disquieting to all neutral interests. 

One writer has asserted that such an innovation would not be alarming toGreat Britain as long as she remained predominant at sea, since the moreeffectual her sea power were declared to be in preventing sustenancefrom going over sea to her enemy the better it would be for Englishpredominance. It is believed by this writer that during the existence ofthis supremacy at sea she would be able to protect the passage ofgeneral foodstuffs from foreign countries to her own ports. Heconcludes, however: "Of course if we lose our predominance at sea it isanother matter. But then, è finita la Musica. "[59]

[Footnote 59: Thos. Gibson Bowles, Jan. 4, 1900. For. Rel. , 1900, p. 546. ]

The acceptance of the principle that foodstuffs are contraband of war, it need hardly be said, is not even a remote probability except undervery exceptional circumstances where they are for the immediate supplyof the enemy's army or navy, and in most cases of this kind they canusually be confiscated as enemy's property without a direct implicationof a distinctly contraband character. In other words, the use for whichthey are intended may give reasonable ground for the conclusivepresumption that they are for the enemy's immediate supply, whether thetitle to property in them vests in the enemy or in some other agency, and the last question is always to be decided by the prize court of theparticular country which has made the seizure. The decision should bebased upon a careful examination of the evidence which is submitted tothe court, and not presumed from the fact that the political power hasexercised the belligerent right of visit, search and detention. Thefinal decision of confiscation rests with the prize court. 

By way of recapitulation it may be pointed out that the goods seized ordetained by the English authorities in South African waters were shippedby American merchants and manufacturers, many of them on regular monthlyorders to alleged reputable merchants in Lorenzo Marques, Delagoa Bay, in Portuguese territory. Certain consignments were intended for allegedreputable firms in Johannesburg, South African Republic. The articlescomposing the cargoes of the ships were of the general character offoodstuffs, chiefly flour, canned meats, and other food materials. Lumber, hardware and various miscellaneous articles generally consideredinnocent in character were also included. There was a consignment oflubricating oil to the Netherlands South African Railway, the lattercompany held to be the property of the Transvaal Government, and a likeconsignment to the Lorenzo Marques Railway, a Portuguese concern. Atfirst the seizures which occurred at points between Cape Colony andDelagoa Bay were supposed to have been made on account of contraband. Later Great Britain declared that the ships had been seized because ofthe violation of a municipal ordinance forbidding British subjects totrade with the enemy. The _Mashona, Beatrice_ and _Sabine_ were Britishships sailing under the English flag. The _Maria_ was a Dutch vesselsailing under the flag of Holland, but was supposed by the Englishauthorities to have been under charter to an English firm. In the lattercase the ship would have been liable to the English law, but for themistake the owners of the ship as well as the owners of the cargo wereindemnified by the English Government. The seizure of the cargoes of theBritish ships was declared to have been merely an unavoidable incidentof the seizure of the alleged guilty ships. Compensation was made toAmerican shippers by the purchase of the goods. The consignment of oilto the Netherlands South African Railway was confiscated as enemy'sproperty. 

The views of Great Britain and the United States were divergent withreference to the principle of treating foodstuffs as contraband. Ratheras an _obiter dictum_ the former declared: "Foodstuffs with a hostiledestination can be considered contraband of war only if they aresupplies for the enemy's forces. It is not sufficient that they arecapable of being so used; it must be shown that this was in fact theirdestination at the time of the seizure. "[60]

[Footnote 60: For. Rel. , 1900, p. 555. ]

The United States declared that the validity of the right to seize goodson the ground of contraband could not be recognized "under anybelligerent right of capture of provisions and other goods shipped byAmerican citizens in the ordinary course of trade to a neutralport. "[61]

[Footnote 61: For. Rel. , 1900, p. 540. ]

England declared: "Her Majesty's Government have not admitted liabilityin respect of any claims for loss or damage sustained . . . Inconsequence of the delay in the delivery of the . . . Goods. But theyhave offered to purchase the flour on board by United States citizens. Claims for redress for the non-delivery of the cargo appear to be amatter for settlement between such claimants and the ship whichundertook to deliver. British subjects who owned goods on board, havingno right to trade with the enemy, are not in the same position asforeign owners. The latter are not guilty of any offense in trading withthe enemy from a neutral country unless the goods are contraband and arefound on board a British ship in British territorial waters or on thehigh seas, _and are destined for the enemy's countries_. "[62]

[Footnote 62: Mr. Broderick, Under-Secretary for Foreign Affairs, speaking in House of Commons in regard to the _Mashona_ on March 19, 1900. ]

With reference to trading with the enemy Great Britain attempted toextend the accepted doctrine of continuous voyages. She expressedherself as follows: "An ultimate destination to citizens of theTransvaal even of goods consigned to British ports on the way thither, might, if viewed as one "continuous voyage" be held to constitute in aBritish vessel such a "trading with the enemy" as to bring the vesselwithin the provisions of the municipal law. "[63]

[Footnote 63: For. Rel. , 1900, p. 609. ]

The United States held that "the destination of the vessel being onlysuch [British] ports . . . The port authorities may presumably, and areassumed to be bound to, prevent transshipment through British territoryof contraband destined for the Boers. "[64]

[Footnote 64: For. Rel. , 1900, p. 594. ]

No contraband was shown, and the attempt which Great Britain made toextend the ruling of the Supreme Court of the United States in 1863 soas to apply to trading with the enemy cannot be considered to have beensuccessful. The questions of international law involved in the seizuresof flour and foodstuffs generally were not answered by the finalarrangement between the Governments concerned. In his Message toCongress in 1900 President McKinley deplored the fact that while the warhad introduced important questions the result had not been a "broadsettlement of the question of a neutral's right to send goods notcontraband _per se_ to a neutral port adjacent to a belligerent area. "

Two things, however, were apparently admitted: (1) that a belligerentmay declare flour contraband _pro hac vice_; (2) that a belligerent maydetain neutral goods and divert them from their destination on areasonable suspicion that they are intended for the enemy, subject to aclaim for compensation including damage by detention.