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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 Science
Seminary of the Johns Hopkins University and is a portion of a larger
study dealing with the causes of the Anglo-Boer War and the questions of
international law arising during that conflict.

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

Other Powers which had awaited this announcement with some anxiety at
once declared their attitude toward the war. Among the first to assume
this neutral position was the United States with the announcement that
its attitude would be in accordance with the requirements of the
strictest neutrality.

It is the purpose of the first chapter to inquire how far these
obligations were fulfilled by the United States Government, and in the
second chapter the attitude of European Governments is considered. In
the third chapter the rights and obligations of belligerents and
neutrals are discussed with regard to neutral commerce. Under this topic
the wide divergence of English practice from Continental as well as from
American opinion on points of international law cannot fail to be
noticed.

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

I wish to express my gratitude to Dr. W.W. Willoughby, not only for his
careful criticism of this study during its preparation, and for the
helpful suggestions by which he has attempted to correct some of its
obvious deficiencies, but especially for his kindly inspiration at all
times.




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 maintained
throughout the war. With reference to any official recognition of the
Transvaal as an independent State apart from the immediate purposes of
war no action was taken. This view of the situation in South Africa was
entirely consistent with the requirements of international law, and, in
carrying out the obligations of a neutral to the belligerents, the
governmental position was fully justified by a knowledge of the
relations which had existed between the Transvaal and Great Britain in
the past.

Early in October, before war had actually begun, it was understood that
Mr. Pierce, the Orange Free State consul-general in New York, had made
every effort to induce President McKinley to request other nations to
act with the United States as arbitrators in the dispute between the
Governments of the Transvaal and Great Britain, but the close friendship
existing between England and the United States and the very friendly
attitude assumed by Great Britain during the Spanish-American War made
such action impossible. The State Department at Washington announced
that in the event of war the Government would maintain an absolutely
neutral attitude, and issued instructions early in October to all
American consuls in South Africa directing them to secure protection for
all neutrals of the United States who had not affiliated politically
with either Great Britain or the South African Republics, either by
exercising the franchise or otherwise. While those whom this definition
did not cover were not to be directly under the protection of the United
States, the State Department expressed itself as ready to use its good
offices in their behalf in case they were involved in trouble resulting
from the war. Such had been the position of the Department in the case
of Mr. John Hays Hammond, a citizen of the United States who had been
involved in the Jameson Raid, although he had taken part in an
expedition which was not officially approved by Great Britain and which
was hostile to a Government with which the United States had no
quarrel.[1]

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

On October 8, the day before the Transvaal ultimatum was presented to
Great Britain, the British Ambassador in Washington confidentially
inquired whether in the event of an attack upon the English forces by
the Boers, rendering necessary the withdrawal of the British agent, the
United States would allow its consul to take charge of the British
interests in the Transvaal.[2] Consent was very properly given on the
eleventh that the United States would gladly allow its consul at
Pretoria "to afford to British interests in that quarter friendly and
neutral protective offices."[3] On the thirteenth this courtesy was
acknowledged and the information given that the British agent had
withdrawn. On the same day Mr. McCrum was instructed, "with the assent
of the South African Republic, to afford to British interests the
friendly 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 obligations
incumbent upon a neutral, the United States refused to heed the popular
demand to urge upon Great Britain its offices as mediator in a matter
which directly concerned the British colonial policy. Secretary Hay
properly refused to involve the Administration in the complications
which would have followed any official interrogation addressed to the
British Government with reference to its ultimate intentions in South
Africa. Moreover, it was authoritatively stated that any concerted
European intervention would not meet with favor in Washington, as such
action would only tend to disturb general commercial relations by
embroiling most of the nations of the world. Any attempted intervention
would certainly have led to a conflict of the Powers, and would have
involved questions of national supremacy, disturbed the balance of
power, and raised the Chinese question, in which last the United States
had an important interest. It was a sound policy therefore upon the part
of the United States not to encourage any intervention by European
nations in the affairs of Great Britain in South Africa.

This attitude not only reciprocated the friendly feeling shown by
England during the Spanish-American War, but was in strict accord with
the traditional American policy enunciated by Washington. The
acquisition of the Philippines had only served to exemplify the
soundness of this doctrine, and the State Department was not in a mood
to take the initial steps which might lead to added responsibilities
with reference to matters which, in this instance at any rate, were not
directly of American concern. The part to be played by the United States
was clearly that of an impartial neutral.

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

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

Soon after the war had begun Mr. McCrum had reported to Washington, in
reply to inquiries with reference to the British prisoners in the hands
of the Boers, that it was the wish of the Republican Government that in
the future all requests for the payment of money to officers or other
prisoners, as well as inquiries regarding their welfare, should come
through the regular military channels at the front. The Republic at the
same time intimated that it could no longer recognize Mr. McCrum in any
official capacity on behalf of Great Britain.[5] The British
representative at once suggested that the United States consul be
instructed to point out to the Transvaal that such an attitude was a
departure from the usual practice in not permitting the American
Government to use its friendly good offices on behalf of the English
prisoners of war. Lord Salisbury called attention to the fact that
during the Crimean War "moneys" for the British prisoners in Russia were
distributed through the Danish representatives in St. Petersburg and
London; and that during the Franco-Prussian War such small sums of money
were handed to the French prisoners in Germany through the British
Foreign Office. It was understood as a matter of course that reciprocal
privileges would be extended to the Boer prisoners in the hands of the
English 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 the
English view of the situation before the Transvaal authorities before he
left Pretoria, and had called their attention to the fact that for them
to permit the charitable and humane intervention of the United States
consul under the circumstances was the regular course in time of war.[7]
But not until Mr. Hollis reached Pretoria was the attitude of the
Republic explained. He inquired of the Secretary of State as well as of
the Secretary for Foreign Affairs with reference to the attitude he
would be allowed to assume toward British interests; to what extent he
might act on behalf of British prisoners of war in the Transvaal and
Orange Free State; and how far he might exercise the usual consular
functions 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 consular
sources that the late British agent at this capital [presumably Mr.
Green] was always a thorn in the side of this Government, and that he
is, in part, responsible for this present war."[8] It was pointed out
that since this was the attitude of the Republican Government there
existed at Pretoria a decided aversion to the recognition of any one who
might claim to act as a British agent. The Transvaal Secretary of State
expressed himself emphatically upon the point: "We got rid of the
British agent on the eleventh of October last, and God willing, we will
never have another one here."[9] Mr. Reitz even went so far as to
express the confident hope that at the close of the war a British
minister and British consuls would reside at Pretoria, but he was
positive upon the question of receiving any one who was known as an
agent of Great Britain. No one who assumed this relation toward the
English Government would be acceptable to the Transvaal and Orange Free
State.

[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 was
ready to assume was an unwillingness to recognize the consul of the
United States or any other consular officer as the official
representative of the British Government during the war; an objection to
the transmission of the official communications of the English
Government to that of the South African Republic, or of the official
despatches of the English Government addressed to the British prisoners
in the hands of the Transvaal, or of "moneys" or funds sent by the
British Government to the English prisoners of war. On the other hand
the Transvaal authorities were not unwilling to allow the United States
consul at Pretoria to perform certain enumerated services in behalf of
all British prisoners of war and their friends. No objection was made to
the forwarding of letters and papers sent by friends to the prisoners,
and, under the supervision of the War Office of the Transvaal, the
Republic expressed itself willing to permit the distribution of funds
sent to the English prisoners by their friends at home. But it was
understood that such services would be reciprocal, and that the Republic
would have the right to request similar services of the American
consular officers on behalf of the Boer and Afrikander prisoners in the
English possessions. The right was reserved to revoke any and all
privileges to receive letters, papers, parcels and money, which were
enjoyed by British prisoners in the Transvaal, should the fact be
sufficiently proved that Boer or Afrikander prisoners in the hands of
the English authorities were not receiving kind and humane treatment, or
were being denied privileges similar to those enjoyed by British
prisoners in the Republic. All concessions on the part of the Transvaal
Government would be instantly revoked on these grounds as sufficient
reason and cause for such action. The Republican Government asserted
that this had been the attitude in accordance with which it had acted
from 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 appointment
of Mr. Adelbert Hay, it appears that there had been a certain amount of
friction between Mr. McCrum and the English censor at Durban concerning
the consular mails. In connection with this incident, and a little
unwisely it would seem, Mr. McCrum had reported unofficially that his
mail had been tampered with by the censor and had been forwarded to him
only after Colonel Stowe, the American consul-general at Cape Town, had
secured its release. He asserted: "I had the humiliation, as the
representative of the American Government, of sitting in my office in
Pretoria and looking upon envelopes bearing the official seal of the
American 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 of
any secret alliance between America and Great Britain."[11] These
charges brought forth in the House of Representatives a resolution which
called upon the President to furnish information as to whether the
consul'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 as
to what truth there was in the statement that a secret alliance existed
between the "Republic of the United States and the Empire of Great
Britain."[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 that
the Department had been in regular communication by mail and telegraph
with Charles E. McCrum, late consul at Pretoria, since his entrance upon
the duties of the office. Communications made to him had been answered
by him. His despatches forwarded through the consulate at Lorenzo
Marques had been regularly received during his incumbency in office. It
was pointed out that the only instance of complaint had been in
November, when a temporary stoppage of the mails had occurred at Cape
Town, against which both Mr. McCrum and the consul at Lorenzo Marques
had protested. But arrangements had been then made for the prompt
delivery of all the consular mails to the United States consulate at
Cape Town by which they were forwarded to the consul at Lorenzo Marques
and thence to Pretoria. The delay had continued only a few days and the
difficulty had not occurred again. It was pointed out also that this
arrangement had been made known to both Mr. McCrum and Mr. Hollis as
early as November 16, and that no obstacle had since existed to prevent
the unhampered correspondence from Pretoria to Washington. Moreover, the
Secretary of State asserted that Mr. McCrum had not officially reported
"any instance of violation, by opening or otherwise, of his official
mail by the British censor at Durban, or any person or persons
whatsoever, there or elsewhere;"[13] he had not so reported since he
left Pretoria, although ample opportunity was afforded him to do so by
mail 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 hardly
necessary to say that there was no truth in the statement that a secret
alliance existed between Great Britain and the United States; that no
form of secret alliance was possible under the Constitution since all
treaties required the advice and consent of the Senate. Mr. Hay
concluded, however, by emphatically assuring the members of Congress
that "no secret alliance, convention, arrangement, or understanding
exists 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 the
House of Representatives and stated his side of the case. He declared
that while at Pretoria he had _understood_ that the British Government
was in possession of the United States cable ciphers but he was unable
to 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 to
the Department asking for leave of absence the incident had been
reported 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 on
November 7, as he had not seen the paper, but had heard that the fact
had been published. He asserted that the first actual evidence of the
opening 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 British
Ambassador in Washington, the English Government replied that it had no
knowledge of the incident, and gave the assurance that if it had
occurred it had been contrary to instructions. Colonel Stowe later
informed Mr. Hay that two letters from the consulate at Cape Town, one
for Pretoria, the other for Lorenzo Marques, had been opened by the
censor at Durban, but that Sir Alfred Milner, the British High
Commissioner, 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 that
he had failed to find on the files of the consulate any evidence of the
official mail having been tampered with, the incident was considered
closed. Mr. Hay declared that as far as he could ascertain, no
interference had occurred in the communication, either telegraphic or
postal, 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 as
satisfactory as could be expected under the circumstances of war, and
his official intercourse with the Transvaal Government afterwards fully
justified this assertion. The republics displayed a proper attitude
toward the consulate not only as representing American interests, but as
representing Great Britain during the course of hostilities. Every
facility was afforded the American consul for performing his duties. For
the efficient service he had rendered in connection with the British
prisoners he was publicly thanked by the British High Commissioner, who
expressed the feeling of gratitude which he said existed throughout the
British 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 of
strict impartiality toward both belligerents, the United States was not
inclined to allow popular sympathy for the Boers to lead to
complications with foreign nations over a matter with which it was only
remotely concerned. This position was known to the envoys of the
Transvaal and Orange Free State before they left Pretoria. Ample
opportunity to realize the situation had been afforded them before they
left Europe for America after an unsuccessful tour of the capitals of
the Continent. Nevertheless, they determined to appeal to the United
States, and with this purpose in view arrived in Washington on May 17,
1900. A resolution introduced in the Senate by Mr. Allen of Nebraska on
May 19, which would have extended the privilege of the floor to them,
was laid on the table,[16] a decision the wisdom of which is
unquestionable. The Senate stands before the world as an important part
of the treaty-making power of the United States. Such a privilege, if
extended to the mission, could have meant nothing to foreign powers but
an official reception to the envoys of a government which was not
recognized as legitimate by its former conventional suzerain. It was not
the part of the Senate to inquire into the substance of the past
relations between Great Britain and the Transvaal. Especially was this
true since the governmental position had been declared early in the war
and nothing had occurred to warrant any alteration in that position.
This was the view which President McKinley took of the situation, and
the policy of dealing with the problem was that of the strictest
neutrality.

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

On May 21 it was officially announced that the delegates had called by
appointment at the State Department. The notice given out to the press
read: "They were cordially received and remained with the Secretary of
State for more than an hour. They laid before the secretary at much
length and with great energy and eloquence the merits of the controversy
in South Africa and the desire of the Boer Republics that the United
States should intervene in the interests of peace and use its influence
to that end with the British Government."[17] The ambition of the envoys
on leaving the Transvaal for Europe had been "for the purpose of seeking
recognition and intervention," but the success of their mission at
Washington was not to be greater than it had been in European capitals.
Although Mr. Hay received them courteously their competence to treat
directly with the State Department was not recognized. When they
realized this fact they appealed directly to the people in the hope of
bringing a certain amount of pressure to bear upon the President from
that source. He fully realized, however, that under the circumstances no
interference was advisable. A departure from this policy would have
created a precedent which might later have been appealed to by any
European government in behalf of its subjects in this country. As
Presidential candidate, however, William J. Bryan, in effect, if not in
express terms, promised a mediation that would mean something should the
Democrats come into power, and it was hopes created by such utterances
which encouraged the Boers to believe that intervention on the part of
the United States was a possibility. Even the Senate passed resolutions
of sympathy which only held out a vain hope and naturally caused a
certain amount of criticism in England. In the end, however, the envoys
became convinced that nothing was to be hoped for in the way of
dictatorial 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 has
maintained an attitude of neutrality in the unfortunate contest between
Great Britain and the Boer States of Africa. We have remained faithful
to the precept of avoiding entangling alliances as to affairs not of our
direct concern. Had circumstances suggested that the parties to the
quarrel would have welcomed any kindly expression of the hope of the
American people that war might be averted, good offices would have been
gladly tendered." And in May, 1900, after the interview with the
Transvaal delegation, Mr. Hay gave out a statement through his secretary
in which it was declared that this entirely correct neutral attitude had
been strictly adhered to: "As the war went on the President, while
regretting the suffering and the sacrifices endured by both of the
combatants, could do nothing but preserve a strict neutrality between
them. This has been steadfastly and constantly done, but there never has
been a moment when he would have neglected any favorable occasion to use
his good offices in the interest of peace."[18] Mr. Hay also pointed to
the fact that on March 10, 1900, at the request of the Republics, the
United States consul at Pretoria had communicated with his Government
with a view to the cessation of hostilities, and that the same proposal
was 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 the
earnest hope was expressed by the President that a way might be found to
bring about peace, with the intimation that he "would be glad to aid in
any friendly manner to promote so happy a result." The Transvaal was
promptly informed of this action and the United States representative in
London communicated the President's instructions to Lord Salisbury. In
answer he was requested to "thank the President for the friendly
interest shown by him," but it was unmistakably declared that "Her
Majesty's Government could not accept the intervention of any
power."[19] This reply was communicated to Pretoria, and no further
steps were taken, since any insistence upon the part of the United
States 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 popular
feeling that more urgent pressure might have been used to cause the
cessation of hostilities, Secretary Hay clearly showed that the United
States Government was the only one of all those approached by the
republics which had even tendered its good offices in the interest of
peace. He called attention to the fact that despite the popular clamor
to the contrary the action of the Government was fully in accord with
the provisions of the Hague Conference and went as far as that
Convention warranted. A portion of Article III of that instrument
declares: "Powers, strangers to the dispute, may have the right to offer
good offices or mediation, even during the course of hostilities," but
Article V asserts, "The functions of the mediator are at an end when
once it is declared either by one of the parties to the dispute or by
the mediator, himself, that the means of conciliation proposed by him
are not accepted."[20] Obviously any further action on the part of the
United States was not required under the circumstances, and Secretary
Hay seems fully justified in his statement that "the steps taken by the
President in his earnest desire to see an end to the strife which caused
so much suffering may already be said to have gone to the extreme limit
permitted to him." Moreover, had the President preferred not to present
to Great Britain the Republic's request for good offices, his action
could have been justified by the conditions under which the
representatives of the United States at the Hague signed that
convention. At that time the express declaration was made that "Nothing
contained in this Convention shall be so construed as to require the
United States of America to depart from its traditional policy of not
intruding upon, interfering with, or entangling itself with questions of
policy 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 the
Boers was the conclusive statement made through Secretary Hay: "The
President sympathizes heartily in the desire of all the people of the
United States that the war ... may, for the sake of both parties
engaged, come to a speedy close; but having done his full duty in
preserving a strictly neutral position between them and in seizing the
first opportunity that presented itself for tendering his good offices
in the interests of peace, he feels that in the present circumstances no
course is open to him except to persist in the policy of impartial
neutrality. To deviate from this would be contrary to all our traditions
and all our national interests, and would lead to consequences which
neither the President nor the people of the United States could regard
with 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 war
as well as the manner in which the envoys of the Transvaal were received
in Washington rendered criticism impossible with reference to the
fulfilment of the obligations of a neutral State. But serious charges
were repeatedly made by the Transvaal sympathizers with reference to the
use to which American ports and waters were put by British vessels or
British-leased transports plying between the United States and South
Africa. It was alleged that Great Britain was able to create here a base
of warlike supplies, and thus to obtain material aid in her operations
against the Boer forces. The probability of the truth of the Transvaal's
allegations would seem at first thought to be slight considering the
distance of the scene of war from the coasts of the United States, but
upon closer inspection these charges become more worthy of belief. That
warlike supplies were actually transported from at least one of the
ports of the United States under such a systematic scheme as to
constitute a base of hostile supplies for the English forces in South
Africa, would seem to be established.

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

A few minor incidents showed that the obligations of neutrality would be
enforced by the United States when it became apparent to the Government
that the neutrality laws were being evaded. In Cincinnati a Frenchman
giving his name as Pierrot was summoned before the United States
Attorney on a charge of a violation of neutral restrictions. He had been
known, it seems, as a recruiting officer for the Transvaal Government,
but avowed that he had engaged men only for the Boer hospital corps and
not for the army of the Republics. The warning that he must cease
enlisting men even for this branch of the republican service proved
sufficient in this case, but undoubtedly such recruiting on a small
scale continued to evade detection.

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

Toward the close of November, 1900, a charge of a more serious nature
was made. It was reported that a British remount establishment was
operating in the United States and had just purchased fifty thousand
horses and mules for the British forces in South Africa, and
considerable attention to this alleged violation of neutral obligations
was drawn by that portion of the press which was in sympathy with the
Boers. A resolution was adopted by the House of Representatives calling
upon the President to furnish information "whether our ports or waters
had been used for the exportation of horses, mules, and other supplies
for use in South Africa, and if so, to what extent and what steps had
been taken to prevent such a use being made of neutral territory in time
of war."[23] The request was also made that full information be
furnished with reference to the number of horses and mules which had
been cleared from the ports of the United States since the beginning of
the war, with a detailed statement of the shipments from each port and
the 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 States
had been used for the exportation of horses and mules and other supplies
for use in South Africa; that between October, 1899, and January 31,
1901, the value of such shipments had amounted to $26,592,692; that no
steps had been taken to prevent the "lawful exportation of horses,
mules, and other supplies to South Africa;" and that the number of
horses and mules shipped from the ports of the United States during this
period had been 76,632. It was not practicable, it was asserted, to give
the shipments from each port and the dates of such shipments without
examining the copies of the manifests of each vessel that had cleared
for South Africa. Such an examination and compilation could not be
presented to Congress before its adjournment, although copies of the
clearance papers were filed with the collectors of the customs at the
different 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 South
Africa during this period a large proportion had been of warlike
supplies, if horses and mules for army purposes can be considered
warlike in character; 28,598 horses valued at $2,698,827; 48,034 mules
valued at $4,611,365. Gunpowder to the value of $1472 had also been
exported; 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 both
of the belligerents in South Africa. Possibly the larger proportion of
the gunpowder, other explosives, and firearms was run into the Transvaal
by way of Delagoa Bay as contraband under the usual risks, or was used
for purposes apart from the war, but with reference to the supplies for
the British army it would seem that a very free use was made of the
ports and waters of the United States. One reason why the English
Government was able to supply its armies in South Africa with horses and
mules in such large numbers may have been the fact that a better market
supply existed in this country, but it is more probable that the evasion
of the strictest neutral requirements was easier here than elsewhere.
The distance from the scene of war, although it involved an additional
cost for transportation, also rendered an evasion of the requirements of
neutrality less conspicuous. The supply of horses and mules in the
European market was scant, especially in the class of animals which was
needed, but it seems obvious that the motive which actuated the
purchases was rather the greater ease in evading neutral prohibitions
than the desire to secure a better market at a distance of ten thousand
miles from the seat of war. Possibly both motives actuated the
purchases, but it is nevertheless true that the United States ports were
used 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 on
the War in South Africa, which shows that from November, 1899, to June,
1902, inclusive, no fewer than 191,363 horses and mules were shipped
from the ports of the United States for the British forces in South
Africa, aggregating a total cost to Great Britain of approximately
$20,175,775. The entire cost in the United States and elsewhere for such
purchases at the end of July, 1902, amounted to $52,000,000 in round
numbers. The entire cost incurred within the United States was greater
than that incurred in any other country. In Hungary the cost to Great
Britain for horses and mules was $8,203,505; in Spain $1,667,695; in
Italy $688,690; in the Argentine Republic, the British colonies and
elsewhere, $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 United
States by one of the belligerents in a war toward which a neutral
attitude had been declared, it may be inquired how far the condition of
affairs was known to the Administration and what opportunity there was
for executive action, especially with reference to the allegation made
by the Transvaal that the port of New Orleans was used as a base of
warlike supplies for the British forces.

On April 10, 1902, a resolution of the House of Representatives called
upon the President for copies of "any report and communication of the
Governor 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 South
Africa."[26] In response a report of Secretary Hay disclosed the fact
that on February 1, 1902, a certain Samuel Pearson had appealed to the
President against the use to which Great Britain had been allowed to put
the ports of the United States in supplying her armies in South Africa.
Pearson had affirmed that "the port of New Orleans was being made the
basis of military operations and the port and waters for the purpose of
the renewal and augmentation of military supplies for the British army."
He further alleged that the attention of the courts had been called to
the matter and the United States circuit court for the eastern district
of Louisiana had declared that the case was not within the cognizance of
the court since the matter could be taken up only by the executive
branch of the government.[27] In making his plea directly to the
President, Pearson asserted that at the port of Chalmette, a few miles
below New Orleans, a British post had been established; that men and
soldiers had been assembled there and were daily engaged in warlike
operations not only for the renewal and augmentation of military
supplies, but for the recruitment of men. He alleged that no concealment
was made of the facts as he had stated them; that although the English
officers did not appear in uniform war was actually being carried on in
behalf of the British Government from the territory of the United
States. He concluded: "With every respect for the authority of the
United States Government, may I not consider your silence or inaction
the equivalent of consent for me to stop the further violation of the
neutrality laws of this port, or to carry on war here for the
burghers."[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 the
intimation that a breach of the peace was threatened. The Mayor shifted
the responsibility to the Governor of the State on the ground that the
acts complained of were alleged to have been committed in the parish of
St. Bernard and consequently outside the jurisdiction of the city
authorities. Finally, under the orders of the Governor the Sheriff of
St. Bernard parish made an investigation and reported that Pearson's
statements had been incorrect in a number of points.[29] It was admitted
that mules and horses had been and were then being loaded at Port
Chalmette for the British Government either directly or indirectly; that
the operation was being carried out by local men all of whom were
citizens of the United States; that the work was being supervised by
Englishmen who might or might not be officers of the British army,
although none of them wore the uniform of Great Britain. But the Sheriff
positively asserted that a British post with men and soldiers was not
established at the port; that no recruiting of men was taking place
within the parish; that the only men taken on the ships were muleteers
who were employed in the city of New Orleans by the contractors; that
these men were taken on board the ships when in mid-stream by tugs which
set out from the city wharves.

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

In a personal interview "General" Pearson made the same charges to the
Governor that he had made in his letter to the President. He asked that
he be allowed to offer forcible resistance to the shipments to South
Africa, and to the enlisting or employing of men as muleteers, who, he
alleged, were later incorporated in the British army. This interview
took place the day following the Sheriff's letter partially denying the
charges to the Governor, and the latter was not disposed to take any
action in the matter until proof of the accuracy of the averments was
produced, 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 great
confidence in the strict performance of neutral duties. To ignore an
allegation of so flagrant a character as the breach of neutrality, it
was declared, constituted a disregard of American ideals in the interest
of British imperialism which could not be excused by jocular references
to "General" Pearson's request to the President "to either put an end to
this 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 that
might be laughed out of the White House, but was the serious question
whether the British Government should any longer be permitted, in
violation of American neutrality, to use an American city and port as a
base of warlike operations against a friendly people. The newspapers,
too, had made public the movements of the English army officers in
charge of the shipments. It seems that the base of operations at first
used by Great Britain was Southport, but that Chalmette had later been
selected. The efficiency of the latter station was reported upon in
March, 1902, by General Sir Richard Campbell Stewart of the British
army. Everything pertaining to the efficiency of the transportation
service was carefully inspected on behalf of the British Government.
Colonel DeBergh, who was in command of the remount service in the United
States, declared that he had not received orders from the British War
Office 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 and
which the latter laid before the President seemed to substantiate the
fact that at least one of the ports of the United States had been
constantly used and was then being used as a base of military
transportation to the British forces in South Africa. It was shown that
William B. Leonard, of New Orleans, had contracted with Major H.J.
Scobell, representing the British Government, for the purchase of mules
to be shipped to South Africa for military purposes. The contract had
been signed in October, 1899, and during the months from October, 1899,
to May, 1900, large numbers had been shipped to South Africa under the
immediate direction of British army officers.[32] P.B. Lynch made
affidavit that he had been employed as clerk and bookkeeper in the
bureau of the British remount service in New Orleans from December,
1899, to September, 1901. He explained the operations of the remount
service as well as its methods, and indicated clearly the direct
connection of regularly appointed officers of the British army with the
purchase and shipment of horses and mules to South Africa. The
purchases, it seems, were made at different points in the country and
afterward assembled at a place designated by the officer in charge in
New Orleans. The British army brand was then placed upon the animals,
which were immediately consigned to the British officer in New Orleans
but without giving his military title. They were then transferred to
ships the charter parties of which were agents of the English
Government. It was shown that the ships' agents usually employed
muleteers taken on by tugs from the city of New Orleans, and it was
proved that the whole operation was controlled by English army officers
who 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. 10-13
passim.]

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

[Footnote 34: Pearson et al. _v_. Parson et al., United States Circuit
Court, Eastern District of Louisiana; also H.R., Doc. 568, 57 Cong., 1
Sess., 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 him
before the vice-consul of the British Government; that he was finally
referred to an officer of the English army for duty and acted under his
orders during the voyage from New Orleans to Cape Town; that when the
vessel was not allowed to land its cargo at that place on account of the
plague the consignment of horses and mules for the British army was
delivered at Durban to English officers in uniform; that he was not
allowed to go ashore except upon the condition of signing with the
recruiting officer and joining the British army; that during the entire
voyage a British military officer in uniform controlled the ship's crew;
and that among the men the _Milwaukee_ was known as a transport under
the direct command of regularly detailed officers of the English
army.[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 the
commissioner for the eastern district of Louisiana showed that the wages
of the men employed upon the ship _Montcalm_ had been refused by the
captain unless they would agree to enlist in the British army, but as
American citizens they had refused to enlist and had demanded the wages
due them under the ship's articles. August Nozeret, an American citizen,
foreman of a corps of muleteers on board the _Montcalm_, testified that
he was told by the ship's officers that the only way to secure his
discharge at Port Elizabeth was to have a recruiting officer vouch for
his enlisting in the British army; and that he complied with this demand
and escaped enlistment only by pretending to be physically unable to
count the number of perforations in a card when required to do so as a
test of sight at the recruiting office. The affiant was able to say from
his own personal knowledge that certified discharges were not given
unless the men were willing to enlist in the English army.[36] An
abundance of other evidence to the same effect was produced, and it was
shown that both the _Montcalm_ and the _Milwaukee_ were under the direct
control of the British war authorities. Both had their official numbers
painted from their hulls before entering the Portuguese harbor of Beira.

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

The evidence which was thus placed before the President would seem to
show that the spirit at any rate of the neutrality laws of the United
States[37] had been violated, and that this violation had been
systematically carried out by the British Government and not by
individual 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 Congress
in 1818 defines the offense of accepting a foreign commission and lays
down the penalty for such an offense. The second section forbids any
person within the territory of the United States to enlist in a foreign
service "as soldier, or as a mariner, or seaman, on board of any vessel
of war, letter of marque, or privateer." The three following sections
prohibit the arming of a vessel to cruise against a people at peace with
the United States, or against the citizens of the United States, or the
augmentation of the force of any foreign vessel of war. The next
prohibits military expeditions of any kind. This section reads:


"Every person who, within the territory or jurisdiction of the United
States, begins, or sets on foot, or provides or prepares the means for,
any military expedition or enterprise, to be carried on from thence
against the territory or dominions of any foreign prince, state, colony,
district or people, with whom the United States are at peace, shall be
deemed 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 several
district courts, but empowers the President to employ the land and naval
forces to enforce all of the restrictions embodied in the neutrality
provisions. The following section empowers the President to compel
foreign vessels "to depart the United States in all cases in which, by
the laws of nations, or by the treaties of the United States they ought
not to remain within the United States," Section 5289 requires that a
foreign armed vessel shall give bond on clearance. Section 5290 empowers
the collectors of the customs to detain foreign vessels: "The several
collectors of the customs shall detain any vessel manifestly built for
warlike purposes, and about to depart the United States, the cargo of
which principally consists of arms and munitions of war, when the number
of men on board, or circumstances render it probable that such vessel is
intended to be employed by the owners to cruise or commit hostilities
upon the subjects, citizens or property of any colony, district or
people with whom the United States are at peace, until the decision of
the President is had thereon, or until the owner gives such bond and
security as is required of the owners of armed vessels by the preceding
section." Section 5291 defines the construction to be put upon the
neutrality laws. They are not to be construed to extend to any subject
or citizen of any foreign State who is only transiently within the
United States, nor directly to be construed in such a way as to prevent
the prosecution or punishment of treason, or of any piracy defined by
the laws of the United States. Possibly the alleged unneutral acts in
the territorial waters of the United States did not fall within the
strict letter of the restrictions contained in these laws. But if the
provisions of 1818 are construed so as to require the maintenance of a
perfect neutrality it would seem that they were evaded in the
transactions which were permitted at the port of New Orleans.

In this connection the neutrality clause of the Treaty of Washington is
of interest. This treaty was signed in 1871 by Great Britain and the
United States and is illustrative of the requirements of neutrality as
understood by these two nations should either be at war with a third
party. For the immediate purposes of war the allied republics of South
Africa by the fact of their recognized belligerent status possessed
rights equal in international law to those held by Spain or by the
United States with reference to third powers during the Spanish-American
War. On April 26, 1898, the day after this war was declared, the British
declaration of neutrality referred to the Treaty of Washington as
embodying the terms upon which a neutral attitude should be observed: "A
neutral government is bound ... not to permit or suffer either
belligerent to make use of its ports or waters as the base of naval
operations against the other, or for the purpose of the renewal or
augmentation of military supplies of arms, or the recruitment of men, ...
to exercise due diligence in its own ports and waters, and as to all
persons within its own jurisdiction, to prevent any violation of the
foregoing 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 Her
Majesty's dominions, accepts or agrees to accept any commission or
engagement in the military or naval service of any foreign state at war
with any foreign state at peace with Her Majesty, ... or whether a
British subject or not, within Her Majesty's dominions, induces any
other person to accept any commission or engagement in the military or
naval service of any ... foreign state ... he shall be guilty of an
offense" against this act. And, "If any person induces any other person
to quit Her Majesty's dominions or to embark on any ship within Her
Majesty's dominions under a misrepresentation or false representation of
the service in which such person is to be engaged, with the intent or in
order that such person may accept or agree to accept any commission or
engagement in the military or naval service of any foreign state at war
with a friendly state ... he shall be guilty of an offense against
this act." [40]

[Footnote 40: British declaration of neutrality, Apl. 26, 1898. It was
pointed 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 High
Contracting Parties agree to observe these rules as between themselves
in future and to bring them to the knowledge of other maritime Powers
and to induce them to accede to them."[41]

[Footnote 41: Gushing, Treaty of Washington (1873), p. 260. Great
Britain was averse to the acceptance of this article of the treaty, but
finally acceded to it in the above terms by signing the mutual
agreement.]

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

The Brazilian Government in its proclamation of April 29, 1898,
declared: "The exportation of material of war from the ports of Brazil
to those of either of the belligerent powers, under the Brazilian flag,
or that of any other nation, is absolutely prohibited."[42] It was also
pointed out that: "Individuals residing in Brazil, citizens or
foreigners, must abstain from all participation and aid in favor of
either of the belligerents, and may not do any act which might be
considered as hostile to either one of the two parties and, therefore,
contrary to the obligations of neutrality."[43] Neither belligerent was
to be permitted "to promote enlistment in Brazil, not only of its own
citizens, but also of the citizens of other countries, for the purpose
of incorporating them in its forces of land and sea."[44] Not even
merchant vessels were to be permitted to weigh anchor in Brazilian ports
until permission from the port authorities had been granted, and any
movements of the belligerents were to be under the supervision of the
customs authorities for the purpose of verifying the proper character of
the 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 certain
enumerated offenses, and among them: "On or from Danish territory to
assist any of the belligerent powers in the enterprises of war, such as
supplying their ships with articles that must be considered contraband
of war."[46] Danish subjects were forbidden "to take service in any
quality soever in the army of the belligerent powers or on board their
government ships, such prohibition to include piloting their ships of
war or transports outside the reach of Danish pilotage, or, except in
case of danger of the sea, assisting them in sailing the ship;"[47] "To
build or remodel, sell or otherwise convey, directly or indirectly, for
or to any of the belligerent powers, ships known or supposed to be
intended for any purposes of war, or to cooperate in any manner on or
from Danish territory in the arming or fitting out of such ships for
enterprises of war;"[48] "To transport contraband of war for any of the
belligerent powers, or hire or charter to them ships known or supposed
to 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 equipping
ships with the object of supplying them to one or the other of the
belligerent 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 penalty
against exporting "arms, ammunition, or other war materials to the
parties at war [to include] everything that is adaptable for immediate
use in war."[51]

[Footnote 51: Art II (b) of Netherlands proclamation of neutrality. May
3, 1898. For. Rel., 1898, p. 888.]

Although the primary object of these prohibitions was the stoppage of
all dealings in articles of a contraband nature, when fairly construed
in the light of international opinion they would seem to render illegal
the wholesale dealing in horses and mules intended for army purposes by
one of the belligerents. Such animals are undoubtedly "adaptable for
immediate use in war" and were in fact a necessity for the successful
carrying on of the war. In the light of the express restrictions of the
Treaty of Washington as exemplified in the war between one of the
parties to that treaty and a third party in 1898, the obligation imposed
upon the United States, impliedly at any rate, by the sixth article of
the mutual agreement of 1871 might be read: "The United States is bound
not to permit Great Britain to make use of its ports or waters as the
base of naval operations against the South African Republics, or for the
purpose of the renewal or augmentation of military supplies."

It would seem obvious that horses and mules when intended for immediate
use in military operations are within the meaning of the term "military
supplies." In numbers of instances horses have been considered
contraband of war. The treaty of 1778 between the United States and
France declared: "Horses with their furnishings are contraband of
war,"[52] In the treaty of December 1, 1774, between Holland and Great
Britain it was understood that "Horses and other warlike instruments are
contraband of war." And Hall declares that horses are generally
considered contraband and are so mentioned in the treaties between
different States. He points out that the placing of an army on a war
footing often exhausts the whole horse reserve of a country and
subsequent losses must be supplied from abroad; the necessity for this
is in proportion to the magnitude of the armies. Every imported horse is
probably bought on account of the Government, and if it is not some
other horse is at least set free for belligerent use. "Under the mere
light of common sense," he says, "the possibility of looking upon horses
as 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 for
cavalry, artillery, and military transport sufficiently explains their
being declared contraband by belligerents. He asserts that no argument
against their being held as conditional contraband has any validity, and
it is admitted that they are frequently declared absolute
contraband.[54] During the Russo-Japanese War Russia at first refused to
recognize any distinction between conditional and absolute contraband,
but later altered her decision with the exception of "horses and beasts
of 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 only
conditional contraband. The only reason that they were not expressly
declared contraband in the Anglo-Boer contest was the character of the
war. Had the Transvaal been able to issue an authoritative declaration
and insure respect for it by a command of the sea, horses and mules
would have been considered technical contraband as in fact they were
actual contraband, being nothing if they were not "warlike instruments."

The enforcement of the obligations incumbent upon the United States
under the circumstances undoubtedly lay with the Federal Government
rather than with the States. Early in 1901 a proceeding in equity had
been instituted in a federal court in New Orleans for the purpose of
enjoining the shipment of horses and mules from that port to Cape
Colony. The bill was filed by private individuals who alleged that they
had property in the Transvaal and Orange Free State which was being
destroyed by the armies of Great Britain, and that these armies were
able to continue their work of destruction only by means of the supplies
of horses and mules which were shipped from the port of New Orleans. The
application for an injunction was denied on the ground that the
enforcement of the treaty obligations of the Government is a function of
the President with which the courts have nothing to do.

The district judge in delivering the opinion declared that there was
nothing in the principles of international law or in the terms of the
Treaty of Washington, to which an appeal had been made, to prevent the
citizens of a neutral state from selling supplies of war to a
belligerent. The court went on to discuss the right of private citizens
to sell supplies to belligerents, but did not enter upon the question
whether or not the United States had permitted the British Government to
make use of its ports and waters as a base for the purpose of the
augmentation of its military supplies. The entire discussion of
questions of international law was considered by the court as beyond its
cognizance. The court said: "If the complainants could be heard to
assert 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 to
determine, whether the treaty is meant to prevent private citizens from
selling supplies to the belligerents." The court then proceeded: "But
the nature of this cause is such that none of the considerations
hereinbefore set out need be decided," because "the case is a political
one of which a court of equity can take no cognizance, and which in the
very nature of governmental things must belong to the executive branch
of 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 an
improper use of the ports of the United States. Clearly an injunction
could not be granted since such a measure would not have had the effect
of remedying the evil. It could not issue, for it was not established
that there were private property rights to be protected. The
complainants could show no property in the implications of the treaty,
nor could they establish the fact alleged, namely, that horses and mules
are munitions of war. The last question was one for the Federal
Government alone to pass upon under the circumstances. Political
obligations are not proper matters for enforcement by the courts. But
the court did declare emphatically that the enforcement of all neutral
obligations with reference to the ports and waters of the United States
was the function of the executive branch of the Government.

The question at once arose whether it was a function of the state or of
the federal executive to see that the neutrality laws were properly
enforced. In submitting the evidence of the operations of the British
agents within the State of Louisiana Governor Heard declared it to be
his opinion that it was the proper function of the federal and not of
the state Government to enforce obedience to these laws; but, he
concluded, "if such duty belongs to the State where the violations of
such laws occur, I would not hesitate to act as the laws may warrant and
in keeping with the dignity and responsibilities of statehood."[56] The
Governor asked that he be informed immediately what, in the opinion of
the federal authorities, were the powers and duties of the state
governments 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 the
neutral obligations of all the States were properly observed. Certain
duties rest upon the governors of the different States, but it is the
function of the President to carry into effect the laws regulating
neutral obligations as well as the provisions of all treaties with
foreign powers as a part of the law of the land. This duty was pointed
out by Secretary Randolph in a circular of April 16, 1795, to the
governors of the different States during the war between France and
England. He defined the duties of neutrality and concluded: "As often as
a fleet, squadron or ship, of any belligerent nation shall clearly and
unequivocally use the rivers, or other waters ... as a station in
order to carry on hostile expeditions from thence, you will cause to be
notified to the commander thereof that the President deems such conduct
to be contrary to the rights of our neutrality.... A standing order
to this effect may probably be advantageously placed in the hands of
some confidential officer of the militia, and I must entreat you to
instruct him to write by mail to this Department, immediately upon the
happening 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 possible
any abuse of the privileges which the laws of war allowed to the
belligerents. "A Government is justly held responsible for the acts of
its citizens," said Justice McLean of the United States Supreme Court,
speaking of the Canadian insurrection of 1838. And he continued: "If
this Government be unable or unwilling to restrain our citizens from
acts of hostility against a friendly power, such power may hold this
nation answerable and declare war against it."[58]

Clearly the responsibility for the proper restraint rested upon the
President with reference to the incidents which occurred around New
Orleans. The fact that forbidden acts committed within the jurisdiction
of a State of the Union escape punishment within that State does not
relieve the central government of responsibility to foreign governments
for such acts. In view of this fact the citizens of the separate States
should remember the consequences which may result from their acts. The
warning of Justice McLean, speaking of the incident already cited, is to
the 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, by
the reverence he has for its laws, and by the calamitous consequences of
war, to exert his influence in suppressing the unlawful enterprises of
our citizens against any foreign and friendly power." And he concludes:
"History affords no example of a nation or people that uniformly took
part in the internal commotions of other Governments which did not bring
down ruin upon themselves. These pregnant examples should guard us
against a similar policy, which must lead to a similar result."

In the end nothing came of the alleged unneutral conduct of the United
States in the use which had been permitted of the port of New Orleans
during the war. Had the South African Republic gained an international
status claims for indemnity would probably have lain against the United
States for a violation of its neutral duties. Had the Transvaal,
recognized in war as a belligerent, become an independent State as the
result of that war, such claims would doubtless have been honored and
compensation been made upon equitable grounds. Had the opponent of Great
Britain in the war been one of the recognized powers of the world such a
use of territorial waters could not have been permitted without an
effective protest having been made by the State which was injured. The
Republics, however, were treated at the close of the war as conquered
territory and their obligations taken over by the British Government.
Their rights as an independent State vanished when they failed to attain
the end for which they fought.

The extreme generosity afterward displayed by Great Britain in the
settlement of the claims of all citizens of the United States who had
suffered by the war may possibly be explained by the benefits which the
English forces were able to secure from the construction which was put
upon American neutrality.

A resolution of the House of Representatives inquiring as to the
treatment of citizens of the United States in the South African Republic
brought out the fact that the number of those who claimed compensation
was not large and that the British Government was willing to indemnify
them.[59] The terms of settlement allowed to the United States were in
marked contrast to those granted to other powers whose citizens or
subjects had also presented claims for indemnity through their
respective governments. This fact is evident from the transactions
before the Deportation Claims Commission, the appointment of which was
announced on April 8, 1901.

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

The commission came together "for the purpose of investigating the
claims to compensation which have been made or may be made by persons
the subjects of various friendly powers in consequence of their
deportation to Europe by the British military authorities in South
Africa."[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 be
presented there and then proceed to South Africa with the purpose of
continuing its investigations. Any further evidence that was considered
necessary was to be taken on the return to London. It was announced that
all claims should be filed on or before April 25, 1901, that claimants
might appear either in person or by counsel, and that the different
governments might represent the combined claims of their respective
citizens or subjects.

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

Mr. R. Newton Crane appeared before the commission on the part of the
United States. In all, fifteen claims were presented. Five of these were
presented by persons who alleged that they were native-born citizens of
the United States, although no evidence was furnished as to the date or
place of their birth. Eight alleged that they were naturalized citizens,
while there were two who could produce no evidence whatever of their
status. Eight had been deported on the suspicion of having been
concerned in the Johannesburg plot to murder Lord Roberts and other
English officers; one had been imprisoned at Natal as a Boer spy;
another was captured on the field of battle while serving, as he
alleged, 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 forcibly
deported; on the contrary it appeared that they had left South Africa
voluntarily and at their own expense. The whole amount claimed was
$52,278.29 on account of actual losses alleged. The commission heard all
claims by means of an _ex parte_ statement in each case, with the
exception of two for which no statement had been presented. These last
two had been mentioned as claimants by the Ambassador of the United
States on October 24, 1900, in a communication to Lord Landsdowne, the
English Secretary of State for Foreign Affairs, and were so presented to
the consideration of the commission.

In dealing with the cases the commission did not insist upon any
technical formality in the way of proof. The plan followed was to allow
the legal representative of the English Government an opportunity to
explain why each individual had been deported. The several claimants
were then permitted to put in evidence to clear themselves of these
charges. After the claims had all been considered in this way the
English representative announced the wish of his government to "agree
with the representatives of the various governments upon a lump sum to
be received by each of the powers in full satisfaction of the demands of
their respective claimants," it being understood that the British
Government "was not to be concerned as to how the sums so paid were
allocated among the various claimants."[61] This proposal was accepted
by 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 October
28, 1901, Mr. Crane pointed out that it had been very difficult to
determine the real merits of most of the claims. Difficulty had been
experienced not only in ascertaining the real facts but in applying the
principles of international law as well. Many of the facts alleged by
the claimants were not substantiated, and it was only the considerate
view taken by the British Government which made possible a settlement so
favorable to the United States.

Holland put in a claim for £706,355 in behalf of 1139 persons who
alleged that they were Dutch subjects, and received 5.3 per cent, of
that 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 the
evident error of basing a calculation upon the relation the award in
each case bears to the amount claimed. The amount claimed in most cases
is not what the claimant thinks he is justly entitled to for the losses
he has sustained, but is the amount which his "caprice or cupidity fixes
as that which may possibly be allowed him."[62] Among the American
claims a number included demands for "moral" damages, and these claims
were larger than similar demands put in by citizens of other countries.
Even among the American claimants themselves there was a wide divergence
in appraising their losses, actual as well as moral. Of three in the
same occupation, the same employment, the same domestic surroundings,
deported together, at about the same time, and under almost identical
circumstances, 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 the
persons were deported were practically the same, and there was little if
any distinction as to social rank or grade of employment. Mr. Crane,
therefore, seems justified in his conclusion that the idea conveyed by
the percentage relation of the amount demanded to the amount actually
awarded is misleading, and should not serve as a precedent without
comment for similar claims in the future. A much fairer method for
ascertaining what the award really amounts to is shown to be that of
computing what average sum each claimant received, since the claimants
were practically of one walk of life and employment and were deported
under like conditions. Such a computation shows that the United States
fared much better than any one of the other governments, the average sum
received by each claimant being £428 11s. 5d., as compared with £150
15s. for Germany; £142 17s. 1d. for Russia; £133 18s. 6d. for
Austria-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 for
all claims of citizens of the United States on account of wrongful
arrest, imprisonment and deportation from South Africa up to October 26,
1901, was accepted by Secretary Hay. Only £4,000 had been originally
offered, but the amount had afterward been increased to £6,000.
Throughout the negotiations the attitude of the English Government was
generous toward the United States. The claimants included good, bad and
indifferent, some of whom were not entitled to compensation at all,
since they were not citizens of the United States, while others had
actually taken up arms against Great Britain. The average amount awarded
to each alleged citizen of the United States was approximately $2000 as
against $216 for each claimant of all other Governments taken together.

In a number of cases the claimants had contracted with local attorneys
upon the basis of a contingent fee of 50 per cent, of whatever might be
awarded. In one case the fee of the attorney presenting the claim
amounted to $3750, although his services consisted in merely filing
memorials which were not supported by a single word of proof of the
assertions they contained, even after ample time had been given for the
introduction of such proof. Mr. Crane, therefore, urged that in future
similar claims should be presented directly by the citizens themselves
without the intermediation of attorneys. In the present cases he said
that his requests to the attorneys for the different claimants to
furnish evidence to meet the accusations of the British Government
against their clients had met with no response whatever. He felt
justified in believing that these attorneys had either given up the
presentation of the claims of their clients or that the latter were
dead. It was accordingly suggested that in either case the United States
would be justified in refusing to pay over to the attorneys such sums as
might be allotted to their clients until the latter had been directly
communicated with. In this way they would have the opportunity to
confirm or withdraw any powers of attorney which they might have
executed for the collection of their respective claims.




CHAPTER II.


THE NEUTRALITY OF EUROPEAN POWERS.

The attitude of the European powers was generally observant of the
requirements of neutrality in so far as governmental action could be
proved. The frequent charges which Great Britain made that the Transvaal
was recruiting forces in Europe were not proved against the States from
which the recruits came. The numbers in the parties which perhaps
actually joined the Boer forces were not large, and no formidable
fitting out of an expedition or wholesale assistance was proved against
any European government.

Germany, the power most nearly in touch with the Transvaal in South
Africa with the exception of Portugal, early declared the governmental
attitude toward the struggle. The German consul-general at Cape Town on
October 19, 1899, issued a proclamation enjoining all German subjects to
hold aloof from participation in the hostilities which Great Britain at
that time had not recognized as belligerent in character. If insurgency
be recognized as a distinct status falling short of belligerency, this
was perhaps such a recognition, but it was in no sense an unfriendly act
toward Great Britain. It was merely a warning to German subjects as to
the manner in which they should conduct themselves under the
circumstances. It did not recognize the Boers as belligerents in the
international sense, but it warned German subjects that a condition of
affairs existed which called for vigilance on their part in their
conduct toward, the contestants. Later, when the British Government
announced that the war would be recognized retroactively as entitled to
full belligerent status, Germany declared the governmental attitude to
be that of strict neutrality in the contest. An attempt of the Boers to
recruit in Damaraland was promptly stopped by the German officers in
control, who were ordered to allow neither men nor horses to cross the
border for the purposes of the war. All German steamship lines which
held subventions from the Government were warned that if they were found
carrying contraband they would thereby forfeit their privileges.
Stringent orders were also given by the different German ship companies
to their agents in no case to ship contraband for the belligerents. The
attitude assumed by the German Government was not entirely in accord
with the popular feeling in Germany. On October 5 a mass-meeting at
Göttingen, before proceeding to the business for which the conference
was called, proposed a resolution of sympathy for the Boers: "Not
because the Boers are entirely in the right, but because we Germans must
take sides against the English."[1] But despite popular sentiment, the
position which had been taken by the Government seems to have been
consistently 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 advised
by the Dutch Minister for Foreign Affairs that the Transvaal should
maintain a moderate attitude in the discussion of the questions at issue
with the British Government. The German Government, too, had advised the
Republics to invite mediation, but at that time President Kruger
declared that the moment had not yet come for applying for the mediation
of America. The United States, it was considered by both Holland and
Germany, could most successfully have undertaken the role of mediator
from the fact that England would have been more likely to entertain
proposals of the kind coming from Washington than from a European
capital.

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

[Footnote 2: The German Chancellor seems slightly in error in assuming
that the Transvaal _rejected_ the English proposal for a joint inquiry.
It will be remembered that immediately following the Bloemfontein
Conference President Kruger had drafted a law considerably modifying the
Transvaal demands in the conference, and later submitted the proposals
of August 19, which he alleged had been" induced "by their implied
acceptance on the part of the British agent. When these proposals lapsed
from the fact of their non-acceptance by the British Government, he
declared that he was ready to return to the discussion of the proposed
joint commission of inquiry and was met by the English assertion that
the condition of affairs no longer warranted a discussion of the
original proposal for such a commission, and that Great Britain would
have to formulate new demands to meet the altered conditions. The
outbreak 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 was
shown to have been made conditional upon the acceptance of such a step
by both the parties to the contest, as otherwise it would not have been
mediation but intervention, with the ultimate possibility of the
exercise of force for the purpose of stopping the hostilities.
Intervention of that kind, involving the idea of coercion, was never
considered by the German Government because of the general situation of
the world and of special German interests. The idea of anything other
than entirely peaceful and friendly intervention was not entertained by
any power in considering the situation in South Africa. The German
Chancellor declared that "even those Powers which academically
ventilated the idea of peaceful mediation invariably and expressly laid
stress upon the fact that they had no thought or intention of forcing
England to accept peace against her will." He asserted that the
possibility of mediation was thus excluded since the preliminary
condition of such a course was the consent of both parties to the
conflict.

Count Von Bülow also called attention to the fact that the gentlest form
of diplomatic inquiry made by the United States had been rejected by the
English Government "officially and categorically in the most distinct
manner possible." And speaking officially, he continued, "We therefore
did what we could as a neutral Power and without imperilling direct
German interests in order to prevent the outbreak of war. In particular
we acted in the most straightforward manner toward the governments of
the South African Republics inasmuch as from the first and in good time
we left them in no doubt regarding the situation in Europe and also
regarding our own neutrality in the event of war in South Africa. In
both these regards we made matters clear to the two South African
Republics and did so in good time."[4] The Chancellor seems to have
fairly defined the position maintained by the German Government
throughout the war, although popular feeling often clamored for official
action in behalf of the Boers.

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

A similar course was pursued by the French Government despite the fact
that in France popular sympathy was more strongly in favor of the
Transvaal than was the case in Germany. No official action, however, was
taken which could involve France in complications in view of the
declared neutral attitude assumed at the beginning of the war. The
administration at Paris ordered the prefects throughout the country to
have removed from the official minutes the resolutions of sympathy for
the Boers which had been adopted by the provincial councils. But opposed
to the correct attitude of the Government, popular feeling was
manifested in different ways. A committee of ladies in Paris made a
direct appeal to the French people. They declared: "We are not biased
enemies of the British Nation ... but we have a horror of grasping
financiers, the men of prey who have concocted in cold blood this
rascally war. They have committed with premeditation a crime of
_lèse-humanité_, the greatest of crimes. May the blood which reddens the
battle-fields of South Africa forever be upon their heads.... Yes, we
are heart and soul with the Boers.... We admire them because old men
and young women, even, are all fighting like heroes.... Alas! to be
sure, there is no more a France, nor yet an America.... Ah! Ideal
abode of the human conscience, founded by Socrates, sanctified by
Christ, illuminated in flashes of lightning by the French Revolution,
what has become of thee? There is no longer a common temple for
civilized states. Our house is divided against itself and is falling
asunder. Peace reigns everywhere save on the banks of the Vaal, but it
is an armed peace, an odious peace, a poisoned peace which is eating us
up and from which we are all dying."[5] Such hysterical outbursts in
France were not taken seriously by the Government, and the feeling which
inspired them was possibly more largely due to historic hatred of
England 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 of
1900, without expressly assuming the right of interfering in the affairs
of a friendly nation further than to "emphatically affirm the
unchangeable principles of international justice," adopted a resolution
declaring that the responsibility for the war devastating South Africa
fell upon that one of the two parties who repeatedly refused
arbitration, that is, it was explained, upon the British Government;
that the British Government, in ignoring the principles of right and
justice, in refusing arbitration and in using menaces only too likely to
bring about war in a dispute which might have been settled by judicial
methods, had committed an outrage against the rights of nations
calculated to retard the pacific evolution of humanity; that the
Governments represented at the Hague had taken no public measures to
ensure respect for the resolutions which should have been regarded by
them as an engagement of honor; that an appeal to public opinion on the
subject of the Transvaal was advocated and sympathy and admiration were
expressed 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 these
resolutions, but the conference was not prepared to go so far as to
adopt a resolution proposed by a member from Belgium expressing the hope
that the mistake of depriving the Republics of their independence would
not be committed, and favoring an energetic appeal to the powers for
intervention. The resolution was rejected by a large majority on the
ground that it would be impolitic and naturally irritating to England
and without much probability of favorable results being attained.

When the delegation of the Boers which was sent to appeal to the
European Powers for action in behalf of the Republics reached Paris in
July, 1900, the attitude of the French Government was not altered, nor
were the envoys encouraged to hope for intervention. They were received
by the President but only in an informal and unofficial manner when
presented by Dr. Leyds. When they reached Berlin in August neither the
Emperor nor the Chancellor was in the city and consequently the visit
had no official significance, but in St. Petersburg a more favorable
reception awaited them. The Official Messenger announced on August 26
that Dr. Leyds had been received in audience by the Czar. This
statement, coming as it did from the official organ of the Foreign
Office, seemed to signify a full recognition of the accredited character
of the delegation, and Dr. Leyds was referred to officially as "Minister
of the South African Republic."[7] With the exception of the British
Minister, he was received by all of the diplomatic corps, a courtesy
which the members could not well have denied him, but as to practical
results 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. The
secret instructions which they had opened only upon reaching Milan were
supposed to have contained certain communications which had been
exchanged between the Governments of the Transvaal and Great Britain but
which it was alleged had not been published in the Blue Books. This
assertion of sinister motives on the part of Great Britain exerted
little influence upon foreign governments in Europe. The delegation
realized the impossibility of securing the interference of a concert of
Powers or of any one State against the wishes of England. The mission of
the Boers had been doomed to failure from the beginning.

The action of the Queen of Holland in receiving the delegation was
generally understood as not of an unneutral character but as inspired by
sympathy for a kindred people and a willingness to mediate though not to
intervene. It was recognized that no nation whose interests were not
directly concerned could afford to persist in offers of mediation in
view of the fact that Great Britain had already intimated to the United
States that such an offer could not be accepted. Although Holland
refused to intervene, the attitude assumed by the Dutch Government in
other respects caused severe criticism in England. The chief
circumstance which confirmed the opinion that Holland as a neutral State
had not displayed a proper attitude at Lorenzo Marques was the fact that
after the visit of the envoys of the Transvaal the Hague Government had
sent a man-of-war to the island of St. Helena, which was being used as a
prison for the Boers who were transported from South Africa. This
proceeding was viewed by England as officious from the fact that foreign
men-of-war were not usually received at that port. Popular feeling saw
in the despatch of the man-of-war an unfriendly act which might easily
have led to difficulty. But the incident, aside from the benevolent
character which Holland had given to the enforcement of her neutrality
laws throughout the war, had no significance in international law. It
was generally considered, however, that the feeling which England
manifested with regard to the visit of the cruiser gave some ground for
the suspicion that the British Government might have had something to
conceal at St. Helena.

The general attitude of Germany, France and Russia toward the Boer
mission was guided by a policy of strict adherence to the neutral
obligations assumed at the beginning of the war. These Powers in their
official statements all followed such a course, realizing that it was
demanded by a sound foreign policy. They considered the idea of
intervention out of the question, although friendly interest for the
Boers and for the peaceful purpose of their mission was evident.

From the beginning of the war the active duties of neutrality had fallen
upon Portugal, since neither the Transvaal nor the Orange Free State
possessed a seaport. Fifty miles of railway separated the Portuguese
harbor of Lorenzo Marques in Delagoa Bay from the Transvaal border, and
from this point the road continued to Pretoria. Lorenzo Marques being
neutral could not be blockaded, but, being neutral, it was the duty of
the Portuguese Government to observe the laws of neutrality. Great
Britain alleged that a constant stream of supplies and recruits passed
over the Portuguese border to aid the Boer armies. The difficulty on the
part of the English Government, however, was to prove that the goods
were in fact on their way to a belligerent destination or that small
parties of men were in reality organized bands of recruits for the
fighting forces of the enemy. It was asserted that the manner in which
Portugal performed her neutral obligations, demanding an absolutely
impartial treatment of both belligerents, made Delagoa Bay and the port
of Lorenzo Marques more valuable to the Republics than would have been
the case had they actually been in their possession.

The efficiency of Portugal's performance of neutral duties varied during
the war. As early as August 25, before negotiations had been broken off
between the Transvaal and Great Britain, the Portuguese Governor at
Lorenzo Marques refused to permit two cargoes of Mauser ammunition to
land because it was consigned to the Transvaal. The ammunition was
transferred to a Portuguese troop ship, and the Governor assigned as
sufficient reason for his action the fact that Great Britain had urged
the measure upon the Portuguese authorities. He stated that orders had
been received from Lisbon that guns and ammunition for the Transvaal
should not be landed until further notice from the Portuguese
Government. The Transvaal strongly protested against this act as a
breach of a treaty between the two Governments in which by Article VI
the Portuguese Government was prohibited from stopping ammunition
intended for the Transvaal, but upon representations by England might
stop ammunition on its way to any English colony. The opinion in the
Transvaal was that the act on the part of Portugal and Great Britain
constituted an act of war, in that peaceable negotiations were still
pending, a view which seems fully warranted since Portugal possessed no
right to treat any traffic as contraband before war had begun. A
petition was circulated at Pretoria advising the Government to
discontinue negotiations pending with England looking to a peaceful
settlement of the issues between the two Governments. Although this step
was not taken, the protestations made by the Transvaal seem to have had
their effect upon the Portuguese authorities, for upon the outbreak of
war the banks at Lorenzo Marques continued to accept Transvaal coin, and
after the first flurry caused by the transition from peace to war the
Transvaal notes were accepted at their face value.

By the middle of December the English Government had begun to view the
condition of affairs at the port of Delagoa Bay and the town of Lorenzo
Marques with grave dissatisfaction. It was publicly alleged that Lorenzo
Marques was nothing more nor less than a base from which the Transvaal
obtained everything that it needed. Further than this, it was declared
that the town was the headquarters of Transvaal agents of every
description who were in daily communication with their Government and
with Europe. The English authorities felt themselves helpless to prevent
the importation of machinery and other material required for the mines
which were worked by the Transvaal Government. Even explosives for the
government factory and actual ammunition reached the Transvaal by way of
Lorenzo Marques because of the inability of the English cruisers to make
a thorough search of foreign vessels bound for a neutral port and
professedly carrying foodstuffs. British shippers alleged that while
they were prohibited from trading with the enemy foreign shippers were
reaping the profits and materially aiding in the prolongation of the
war.

It later developed that the apparent neglect on the part of Portugal to
observe a strict watch over the character of goods allowed to pass
through to the Transvaal was not entirely due to the governmental
attitude at Lisbon. It seems that the Dutch consul at Lorenzo Marques
had taken over in the way of friendly offices the interests of the
Orange Free State as well as those of the Transvaal. It was also
ascertained that the consul of Holland was the manager of the local
agencies for a number of steamboat companies, among them the Castle
Packet Company, the African Boating Company, the British India, and the
British and Colonial Steam Navigation Company. Only one English company
had put patriotism before profit and transferred its agency from the
Dutch consul upon the outbreak of war.

The British Government was also handicapped by the fact that local
British banks accepted the drafts issued by the Transvaal and Orange
Free State. The Transvaal dies of 1899 and 1900 had been seized by the
English, but despite this fact the coins issued with the date of the
dies of 1897 and 1898 were freely used by the local English banks.[8]
This unpatriotic action on the part of British subjects controlling the
banks 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 at
night. Such articles thrown into half-laden trucks upon the railway
often reached the Transvaal without detection. Cases labelled "candles"
were hoisted in without pretense of examination. It was alleged also
that guns and fifty tons of shells had been landed in December under the
very noses of two British warships, and that wholesale smuggling was
going 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 arrived
from Lisbon which revived an old law requiring all persons leaving
Portuguese territory to obtain passports signed by the Governor-general.
The applicants were required to give guarantees through their respective
consuls that they were not going to the Transvaal for the purpose of
enlisting. The Portuguese authorities took the matter in hand, and
persons attempting to go without passports were promptly sent back. The
customs authorities began a stricter watch over the Transvaal imports,
and on January 19 seized as contraband three cases of signalling
apparatus 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 Bay
during December there had been forwarded to the Transvaal goods valued
at not less than £21,000. And it seemed evident to England, despite the
more stringent port regulations, that the number of foreigners daily
entering the Transvaal by way of Lorenzo Marques was far in excess of
the number which would be desirous of going to Pretoria for peaceful
purposes. Mr. Pott, it was still alleged, was acting as the head of a
Boer organization for facilitating the entrance of men desiring to
enlist with the Boer forces. He was consequently cautioned in January by
the Portuguese Governor that if he recruited for the Boer forces or was
detected doing anything inconsistent with the neutral obligations of
Portugal, a request would be made to the Netherlands Government to have
him transferred to another field. The Portuguese authorities at the same
time began a closer supervision of the persons who were allowed to enter
the Transvaal from Portuguese territory. The previous restriction that
passports be signed by the respective consuls of persons leaving for
Transvaal territory was considered insufficient, and the consuls of the
different countries represented at Lorenzo Marques were informed that
they must personally guarantee that the applicants whom they endorsed
were not military men, and were not proceeding to assist the Boer forces
in the field.

These restrictions, while giving evidence of Portugal's efforts to see
that the neutrality of the port was respected, did not satisfy the
English authorities. The latter still alleged that no doubt existed as
to the fact that Lorenzo Marques was being used by Boer agents as a
recruiting station for the Transvaal forces. It was asserted that large
numbers of "men of military stamp" landed daily at Lorenzo Marques from
all parts of Europe, and were allowed to proceed to the Transvaal for
the purpose of either actually enlisting with the Boers or working the
government mines. It was alleged, too, that a number of these newcomers
were "smart looking men," evidently officers. The majority, however,
were of a low class, mostly penniless adventurers. On February 2 the
report was made to the English authorities that twenty of the better
sort, many wearing riding boots and carrying field glasses, had left
Lorenzo Marques for the Transvaal, and as tending to throw suspicion
upon the purpose of their journey, a Transvaal detective was "most
assiduous" in his attentions to them.[10] The influence of the consul of
Holland largely defeated all efforts to stop entirely the imperfect
fulfillment 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 the
Transvaal were summarily stopped. Arms and ammunition which the Boers
attempted to land at Inhambane were seized by the Portuguese customs
authorities on the ground that they were consigned under a false
description. The consignment was not a large one and the attempt was
evidently made as an experiment. This incident, too, indicates the
extremity to which the Transvaal authorities had been reduced by the
increased watchfulness at Lorenzo Marques, for the distance from the
port of Inhambane to the Transvaal could be covered only by native
carriers and required fourteen days for the trip. The difficulties in
evading the customs surveillance at Lorenzo Marques had also been
increased by the fact that most of the steamship companies which had at
first employed the Dutch consul as their agent had later relieved him of
this duty. But, notwithstanding the continued protests by England, the
Hague Government seemed reluctant to take any official notice of the
evident partiality of its consular agent. With reference to the English
protests the Administration took the view that while acting as the
representative of the Transvaal and Orange Free State during the war Mr.
Pott was only fulfilling the duties incumbent upon him in this triple
capacity.

As the war progressed, although the administration of the customs at
Lorenzo Marques was made more efficient, this improvement was inversely
proportional to the successes of the Boer forces in the field. Under the
circumstances it was almost impossible for England to prove that actual
governmental support had been given to any scheme for augmenting the
military forces of the Transvaal, but the whole manipulation of the
customs seemed to be controlled by a weak administration not too
scrupulous 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 to
improve the efficiency of the administration of the customs than the
protests of England. It seems unquestionable that the resources of the
Transvaal had induced the Portuguese authorities at Lorenzo Marques to
display toward the Boers an attitude which, according to obsolete ideas,
was termed benevolent neutrality. But as the Boer hopes declined the
Portuguese authorities increased their vigilance, and in the end went as
far in favor of England as they had previously gone in their benevolent
attitude to the Republics. Passengers arriving by German and other
steamers were refused passports upon the instance of the British consul
where there was a strong suspicion that they were entering the Transvaal
for purposes hostile to Great Britain.

Portugal, too, refused to accept the offer of the Transvaal to advance
the amount required of the Lisbon Government by the Beirne Arbitration
Award.[11] The Portuguese Government, in courteously declining the
offer, stated that the amount had already been provided. Great Britain,
who already held a preemptive title to Delagoa Bay, was also ready to
advance 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 bringing
the war to any sort of favorable conclusion were doomed to failure. On
August 4 all the customs officials at Lorenzo Marques were dismissed and
their places filled by military officers, and a force of twelve hundred
men was sent out from Lisbon two days later. The Portuguese frontier was
put under a strong guard and all Boer refugees who arrived were summoned
before the Governor and warned against carrying on any communications
with the Transvaal Government or with the Boer forces still in the
field. Notice was given them that if they were detected in such
transactions they would be sent out of Portuguese territory and the
right of asylum denied them. And in the further performance of her
neutral duties at such a time Portugal assumed an entirely correct
attitude.

In September three thousand Boers evacuated their position along the
frontier and surrendered to the Portuguese Governor. They were lodged in
the barracks at Lorenzo Marques and later, to prevent any disturbance in
the town that might be caused by their presence, were removed to the
Portuguese transports lying in the harbor. The Governor gave notice to
the English commander who had occupied the position evacuated by the
Boers that all the Transvaal troops which had surrendered were being
guarded and would not be allowed to rejoin the Boer forces still in the
field. A number of the refugees agreed to surrender to the British
commander as prisoners of war upon the stipulation that they would not
be sent out of the country, and thus better terms were obtained than by
those captured in the field. Others who surrendered to Portugal were
transported by Portuguese ships to Lisbon, land being assigned them in
the 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 attitude
noticeable with reference to the investigation of the conduct of the
Dutch consul at Lorenzo Marques. In spite of the protests of Great
Britain and of Portugal as to his unneutral attitude he had been
continued in his position. But on December 7, 1900, the strain to which
the relations between the two Governments had been put reached the
breaking point. The Dutch Minister, Dr. Van Weede, withdrew from Lisbon
and at the same time the Portuguese Minister at the Hague, Count de
Selin, returned to Lisbon.

The reason for this technical breaking off of friendly relations was
explained on December 11. A member of the Second Chamber at the Hague,
M. Van Bylandt, questioned the Minister for Foreign Affairs as to the
cause of the difficulties between the two Governments. M. Beaufort, in
his explanation of the situation, stated that as early as November 17,
1899, the Dutch Government had been informed that it would be necessary
for the Lisbon authorities to cancel the exequatur of Mr. Pott as consul
at Lorenzo Marques. This cancellation of the agent's credentials, it was
alleged, was deemed necessary on account of irregularities with
reference to the transshipment of contraband of war from Lorenzo Marques
to the Transvaal. It was further represented to the Dutch Government
that the consul under suspension had made an improper use of his
position as the acting consular agent for the Free State and the
Transvaal; he had taken advantage of the consular privileges accorded
him at Lorenzo Marques as the representative of a neutral Power at a
neutral port; the courteous communications made by the Portuguese
Government prior to the final withdrawal of his exequatur had not
received from the Hague Government the attention they deserved; every
opportunity had been given the Dutch Government to take the initiative
in the matter by merely recalling their agent, but this step had not
been taken.

M. Beaufort admitted that this had been the attitude of the Portuguese
Government, but asserted that he had not cared to suspend Mr. Pott
without an inquiry, and for this purpose had merely granted him leave of
absence for three months. This action, he said, had not been favorably
received in Lisbon, and he had therefore thought it necessary to warn
the Portuguese Government that the withdrawal of the consul's exequatur
would be considered an unfriendly act. But notwithstanding the warning,
the consul's credentials had been cancelled by the Lisbon Government. As
a consequence of this act M. Beaufort had requested the Dutch Minister
at Lisbon to come to the Hague that he might take part in a personal
interview with the consul under suspension. Later, M. Beaufort stated
that the specific incidents upon which Mr. Pott's conduct had been
arraigned were the illegal importation of heliographic apparatus for the
Transvaal artillery and a wrongful grant of passports in his dual
capacity 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 two
Governments. Holland, after an investigation of the charges against her
consul, acquiesced in the action of the Lisbon Government. But the
incident served to demonstrate the fact that the Government at Lisbon
was aware of the inefficient manner in which the duties of neutrality
had been enforced at Lorenzo Marques by the port administration.

From this time on to the close of the war the Portuguese Government
displayed greater care in asserting the neutral character of the port.
By placing the town under military supervision this purpose was more
surely attained, and the only other charge made against Portugal for the
failure to perform a neutral duty came from the Transvaal Government, an
allegation of a more serious character than any that had been advanced
by the English Government. The grounds upon which Portugal granted a
privilege of war to one of the belligerents under protest from the other
have not been made so clear as the reasons which led to her apparent
dereliction of duty at Lorenzo Marques. This incident placed the
Portuguese Government in an unfavorable light with regard to its duty in
the full and impartial performance of the obligation of neutrality.
British troops were allowed to pass across Portuguese territory in order
to reach belligerent British territory commanding the Transvaal position
on the north. From Rhodesia, the nominal objective point in this
movement of troops, the Transvaal might be conveniently invaded from the
north, as it was already attacked on the south.

Early in the war the British South Africa Company, a chartered company
which was responsible for the administration of the Rhodesian
Government, became apprehensive as to the fate of this section of the
country should the Boers decide to invade it. Troops had been raised in
Rhodesia for the war but were employed outside the colony. It was
asserted that this fact had left the province in such an unprotected
state that, aside from the fear of a Boer invasion, a Kaffir uprising
was imminent.

Mr. Chamberlain had refused to send forces into Rhodesia in December
upon the ground that troops could not be spared. But it was finally
arranged to send five thousand mounted men, some of them to be enlisted
in Rhodesia and all of them to be furnished outside of England. Before
the end of January, 1899, a commander had been appointed from the
English army, and it was expected that the forces would be upon the
borders of Bechuanaland by the end of May.

Difficulty at once arose with reference to the right of passage of these
troops, military stores, and in fact a full equipment for warlike
purposes. There was not much choice of routes. Those through the
Transvaal and through Bechuanaland were closed. The only route left was
through the port of Beira. This course necessitated the passage of
belligerent troops across two hundred miles of neutral territory
controlled by Portugal as territorial sovereign. Beira, situated about
four hundred and fifty miles north of Lorenzo Marques, bears nearly the
same relation topographically to British Mashonaland and to British
Rhodesia that Delagoa Bay does to the Transvaal and the Orange Free
State. A railway nearing completion formed an almost continuous route
from Beira to Salisbury in Rhodesia, and once in the latter province
troops would be in a position to invade the Transvaal.

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

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

The principles of the international law of modern times leave little or
no doubt as to the proper course for a neutral to follow in such a case.
Oppenheim says: "In contradistinction to the practice of the eighteenth
century, it is now generally recognized that a violation of the duty of
impartiality is involved when a neutral allows a belligerent the passage
of troops or the transport of war material over his territory. And it
matters not whether a neutral give such permission to one of the
belligerents only, or to both alike."[14] And Lawrence points out that
"It is now acknowledged almost universally that a neutral state which
permits the passage of any part of a belligerent army through its
territory is acting in such a partial manner as to draw down upon itself
just reprobation." The permission given of necessity "to further a
warlike end" is "therefore inconsistent with the fundamental principle
of state neutrality." "These considerations," he says, "have influenced
practice during the present century, and the weight of modern precedent
is 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 writers
differed from this view. Grotius maintained the right of passage, even
by force; Vattel practically agreed with Grotius that it might be taken
by force, but contended that it should be asked and force used only
under extreme necessity, or when the refusal was unjust; Wheaton denied
that the right of passage was a "perfect right" and consequently could
not 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 the
subject, states that while "writers vary in their treatment of the
question" of the passage of troops over neutral territory, "the modern
authorities are all one way."[16] He points out that the jurists of the
first half of the nineteenth century, with the possible exception of
Klüber, were "unanimous in following" Grotius and Vattel, and allowing
neutrals to permit belligerents passage as long as they did it
impartially. But since the middle of the century a total and violent
change in the opinion of authors has operated. Every modern author holds
that passage is now a benefit which must be refused absolutely, and not
offered 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 into
Rhodesia by way of Portuguese territory. Portugal had promptly sent out
forces to prevent such an evasion of Portuguese neutrality and had
guarded the railway bridges along the line to Rhodesia. And in March
Great Britain had met with a refusal to allow a large quantity of
foodstuffs, mules, and wagons to be landed at Beira for the purpose of
transportation to Rhodesia. Nevertheless, on April 9, General Sir
Frederick Carrington landed at Cape Town under orders to proceed
immediately to Beira.[18] He was to use transports put at his disposal
by his government for the purpose of collecting a full equipment for his
command of five thousand men to be mobilized at Beira, and from that
port was to enter Rhodesia. This province was then to be made the base
for an expedition against Pretoria in concert with the English forces
advancing from the south.

It is undoubted that the laws of neutrality demanded of Portugal not
only an impartial treatment of both belligerents, as the earlier writers
held, but an absolute prohibition against such a warlike expedition by
either of them, as unanimously held by all the more recent authorities.
At the time English public expression contended that absolute equality
of neutrality was not incumbent upon independent States in the
performance of their neutral duties. English writers spoke of a
"benevolent neutrality" as possible, and cited such cases as that in
1877, when Roumania, before taking an active part in the war against
Turkey, permitted Russian troops to march through her territory; and the
incident which occurred during the Neuchâtel Royalist insurrection in
1856 when the Prussian Government requested permission to march through
Wurtemberg and Baden "without any idea of asking those states to abandon
their neutrality, or assist Prussia against Switzerland."

It was alleged upon the authority of such precedents that the privilege
of passage for troops might be granted by Portugal to England without a
breach of neutrality really occurring. Portugal would be merely giving
her neutrality a benevolent character towards one of the belligerents,
which it was asserted she was perfectly entitled to do, a view of the
situation which is too obsolete in the light of modern times to need
criticism. Although public opinion throughout Europe is usually hostile
to England when she is at war, the general condemnation of the proposed
use of neutral territory seems therefore to have been well founded in
this particular case.

The Cabinet at Paris refused to entertain any question or debate on the
proposed passage of English troops through Portuguese territory. On
April 11, however, a discussion of the subject occurred in the Chamber
of Deputies in which two interpellations were announced by the
President. One of these questioned the Government as to what steps had
been taken to protect French interests in Mozambique; the other had
reference to the proposed passage of English troops inland from Beira.
M. Delcasse said that the Chamber did not feel that the Government
should discuss a current question of international law, but he pointed
out the fact that France with the other Great Powers had declared her
neutrality at the beginning of hostilities. He added, however, that it
was not the part of France to guarantee the neutrality of others. One
member asserted that the proposed act would be a distinct violation of
her neutral duties by Portugal. Another declared that Europe, by
concerted action, should prevent such a flagrant violation of neutrality
during a war in which a small nation was already contending against
great odds; that France, surrounded by neutral nations, could not afford
to see such a precedent established and should appeal to Europe to join
with her in protesting.

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

The Transvaal Government formally notified Portugal that the passage of
British troops and munitions of war through Beira would be considered in
the Transvaal as tantamount to hostile action. Nevertheless, on May 1,
the Chamber of Deputies at Lisbon rejected an interpellation made by one
of its members to question the action of the Government with reference
to the privilege which Great Britain sought. The Minister for Foreign
Affairs, however, stated that the Transvaal Government had not ordered
the Portuguese consul to leave Pretoria. He denied emphatically that any
incident whatever had followed Portugal's notification to the Transvaal.
When further interrogated, the Minister declared that the English troops
had been granted permission to use the railway inland from Beira upon
the plea of treaty rights already possessed by Great Britain. No power,
he asserted, had protested except the South African Republic. It was
promised that the Government would later justify its action in granting
the permission by producing the documents showing the right of England
to the privilege, but it was not considered convenient at that time to
discuss 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 on
the part of Portugal was without effect, and this was the only means the
Republic had of declaring itself. To have entered upon hostile action
against Portugal at that time would have had only one result, the
stoppage of all communication with the outside world by way of Delagoa
Bay. The British forces were sent into Rhodesia, and though the
subsequent part they played in the war was not important the purpose of
the expedition was admitted. It was to cut off any possibility of a
retreat northward into British territory by the Boer forces which were
being driven back by the English advance upon Pretoria. The British
military plan was that General Carrington should march with his forces
and reach Pretoria from the north at the same time that General Roberts
reached that point from the south.[20] Thus, the end for which the
troops were to be used was not to quell an insurrection of the natives
in Rhodesia, as was alleged, but to incorporate the expedition into the
regular campaign of the war against the Republics. This being the case,
the contractual grounds upon which the English Government claimed the
right of passage should have been beyond question in order to furnish a
justification for Portugal or for England in what is viewed by
international law writers of the present day as a distinct breach of
neutrality. When the expedition was sent out the statement was made that
England was merely availing herself of existing treaty rights, but it
was felt necessary to add that the action was not illegal as was that of
the Boers in making Delagoa Bay their virtual base earlier in the war.
And on May 31, in legalizing the proceeding, the Cabinet at Lisbon also
felt impelled to say that the Portuguese Government had not become an
instrument of British ambition; that it was not a question of putting
into execution in the territory of Mozambique conventions recently
concluded with England, but merely of profiting by stipulations agreed
upon in the treaty of 1891 between Great Britain and Portugal. President
Kruger was, therefore, informed that the legality of the incident was
not 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 of
troops at Beira and the passage by rail to Rhodesia with the consent of
Portugal constituted a breach of neutrality on the part of the latter.
The opinion was freely expressed that the British Government not only
placed a strained interpretation upon the only basis for her action, the
treaty of 1891, but that even upon this interpretation she possessed no
real servitude over the territory used by her for warlike purposes. The
only claim of justification advanced by the British Government which
would appear at all tenable rests upon the statement of Calvo: "It may
be that a servitude of public order, or a treaty made antecedently to
the war, imposes on a neutral State the obligation of allowing the
passage of the troops of one belligerent." "In such a case," Calvo
concludes, "the fulfilment of the legal obligation cannot be regarded as
an assistance afforded to that belligerent and a violation of the duties
of neutrality."[21]


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

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

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

What Calvo says is: "Tous les publicistes sont d'accord pour admettre
que le territoire d'une nation constitue une véritable propriété ...
le territoire neutre doit être à l'abri de toutes les entreprises des
belligérants de quelque nature qu'elles soient; les neutres ont le droit
incontestable de s'opposer par tous les moyens en leur pouvoir, même par
la force des armes, à toutes les tentatives qu'un belligerant pourrait
faire pour user de leur territoire."[23] He also calls attention to the
fact 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] But
his statement of the modern rule is conclusive: "Par contre, Heffter,
Hautefeuille, Manning et d'autres auteurs modernes se sont avec juste
raison élevés contre des principes dans lesquels ils entrevoient la
négation implicite des droits et des devoirs stricts de la neutralité. A
leur yeux, la nation neutre qui consent au passage des troupes de l'une
des parties belligerantes manque à son caractère et donne à l'autre
partie 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, admits
that the point to be decided in any case is not so much the fact that
there 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 more
than why a purchaser of territory should be debarred from using, it as a
base of military operations." But he points out, "If the treaty only
created a right _in personam_ the case is different." In the latter case
it is obvious that the power which claims the way depends entirely on
the promise of the territorial power for the exercise of that advantage.
"In such a case," he concludes, "it may well be that the performance of
its promise by the territorial power becomes unlawful, on the outbreak
of war between the promiser and a third party."[26] For international
purposes 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's
opinion is that "if it could, and, if the servitude is consequently a
real right," the promisee might use its road in time of war, and the
owner of the territory would be "bound to permit the use, without giving
offense to the enemy who is prejudiced by the existence of the
servitude."[27] But he continues, "If the right of way is merely
contractual, then the fulfillment of the promise to permit it must be
taken to have become illegal on the outbreak of war and the treaty
cannot be invoked to justify the grant of passage." It is asserted that
in the former case where a real servitude, a right _in rem_, was
possessed, to stop the use of the road would be analogous to the seizure
by a neutral of a belligerent warship to prevent its being used against
the enemy. In the case where the treaty grants the so-called right _in
personam_, a merely contractual or promissory right exists, and the
exercise of the right would be analogous to the sale of a warship to a
belligerent by the neutral granting the permission stipulated in the
treaty. 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," it
would have only a "quasi-contractual right _in personam_ against the
state in whose waters it lay, to allow it to be handed over." Obviously,
the performance of that duty, to hand over the vessel, "would have
become 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 among
international law authorities of modern times is that a neutral should
in no case whatever allow the use of its territory for the purposes of a
belligerent expedition against a State with which it is upon friendly
terms. But granting the contention made by Mr. Baty that such a thing as
a real servitude may exist in international relations, let us examine
the stipulations in the treaty of June 11, 1891, by which it has been
alleged this right was secured to England.

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

The parts of the treaty which may by any possibility apply to the case
are 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 of
Influence 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 be
freedom for the passage of the subjects and goods of both powers across
the Zambesi, and through the districts adjoining the left bank of the
river situated above the confluence of the Shiré, and those adjoining
the right bank of the Zambezi situated above the confluence of the river
Luenha (Ruenga), without hindrance of any description and without
payment of transit dues."[30]

[Footnote 30: Ibid., p. 34]

The only applicable portion of Article 12 says: "The Portuguese
Government engages to permit and to facilitate transit for all persons
and goods of every description over the water-ways of the Zambezi, the
Shiré, the Pungwe, the Busi, the Limpopo, the Sabi and their
tributaries; and also over the land ways which supply means of
communication 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 portion
of Article 14: "In the interests of both Powers, Portugal agrees to
grant _absolute freedom of passage_ between the British sphere of
influence and Pungwe Bay for _all merchandise_ of every description and
to give the necessary facilities for the improvement of the means of
communication."[32]

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

It is obvious that Article 14 could not apply to anything more warlike
than "_merchandise_" being transported from Pungwe Bay, where Beira is
situated, to the British sphere of influence. It is admitted by Mr. Baty
that Article 12 is inapplicable to any routes other than the water-ways
specified and the land routes and portages auxiliary to them. It is also
admitted that the only other stipulation that might apply, Article II,
"obviously applies to the territory far to the north, and concerns the
question 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 passage
through Portuguese territory, but was one created by this treaty. Upon
the supposition that if the right still existed in times of war it must
have been by virtue of Article II, he says, "The question arises, 'Was
it 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 asserts
the possibility of a neutral, without violating its neutral obligations,
allowing a belligerent to pass troops over neutral territory for the
purpose of attacking a State which is on friendly terms with the
Government granting the privilege. Mr. Baty asserts that a real easement
existed in favor of England if she might "force her way along" the
routes 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 the
road as a military road at all," a conclusion which would seem to settle
the question, and deny that any shred of justification existed for the
use to which neutral territory was put in time of war. But Mr. Baty in
the same breath says: "There can be such a thing as a military road
across neutral territory. The German Empire has such a road across the
canton of Schaffhausen, and there used to be one between Saxony and
Poland. But it seems very questionable whether the roads indicated by
the treaty of 1891 were not simply commercial, and not for the purposes
of war at all."[35] And this English writer reluctantly admits, "The
treaty has, therefore, to be pressed very far to cover the grant of an
overland 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 than
the circumstances of the case warrant. "One may regret," he says, "that
the British Government should have found it necessary to place a
somewhat strained interpretation on a treaty which, even then did not
give them in anything like clear terms, an absolute servitude of the
kind contended for."[37]

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

Such a conclusion is misleading in the first place because the British
Government was contending for a right which was not recognized among
independent nations at the time the treaty was formed; in the second
place, granting that ancient authorities may have declared the
possibility of such a right existing in time of war, the stipulations of
the treaty itself are the strongest argument against the interpretation
used by England. Hall has pointed out that, "When the language of a
treaty, taken in the ordinary meaning of the words, yields a plain and
reasonable sense, it must be taken to be read in that sense."[38]
The only reasonable sense in which the stipulations of the
British-Portuguese treaty of 1891 could be taken was that of a purely
commercial agreement. The spirit of the treaty, the general sense and
the context of the disputed terms all seem to indicate that the
instrument considered only times of peace and became absolutely invalid
with reference to the transportation of troops in time of war. The
authority already cited says, "When the words of a treaty fail to yield
a plain and reasonable sense they should be interpreted by recourse to
the general sense and spirit of the treaty as shown by the context of
the incomplete, improper, ambiguous, or obscure passages, or by the
provisions 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 one
meaning. The treaty is not broad enough to sustain the passage of troops
in time of war. Nor would there seem to be any plausibility in the claim
that certain mutual explanations exchanged between the two Governments
at the time of the signing of the treaty gave tenable ground for the
fulfilment of such a right as that which was granted by Portugal.

The words of the Portuguese notification to the Transvaal condemn the
action of Portugal rather than justify the proceeding in view of the
requirements of the neutrality of the present day. This communication
read: "The Portuguese Government has just been informed that in
accordance with the mutual explanations exchanged in the treaty of 1891
with regard to the right of moving troops and material of war through
the Portuguese territory in South Africa into English territory and
_vice versa_, the British Government has just made a formal demand for
all troops and material of war to be sent through Beira to the English
hinterland. The Portuguese Government cannot refuse the demand and must
fulfill a convention depending on reciprocity, a convention which was
settled long before the present state of war had been foreseen. This
agreement cannot be regarded as a superfluous support of one of the
belligerent parties or as a violation of the duties imposed by
neutrality or indeed of the good friendly relations which the Portuguese
Government always wishes to keep up with the Government of the South
African Republic."[40] The fact that the assent of the Portuguese
Government was obtained only after ten weeks of pressure brought to bear
upon the Lisbon authorities would seem to indicate that intrigue is more
potent 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 reasonably
protested that the treaty in question had not been made public and that
no notice of it had been received by the Republic at the outbreak of
war.[41] It was pointed out that this being the case the treaty could
not be applied even if it granted the right contended for by England.
And even stronger was the Transvaal argument that in no case after war
had begun could such a treaty be applied by a neutral State to the
disadvantage of third parties. The fact of neutrality had suspended the
working 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 the
light of modern international law the action of England in sending
troops through neutral Portuguese territory against a nation at peace
with Portugal was based upon a flagrant misreading of a purely
commercial treaty. The action of the Portuguese Government in allowing
this to be accomplished was a gross breach of the duties incumbent upon
a 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 reason
that neither the Transvaal nor the Orange Free State possessed a
seaport. Lorenzo Marques being a neutral Portuguese possession could not
be blockaded by the English. General Buller, commanding the British land
forces in South Africa, had indeed urged that such a declaration be
made, but it was realized by Great Britain that such a step was not
possible under the laws of war.[1] More stringent measures, however,
were taken to prevent the smuggling of contraband through Delagoa Bay, a
transaction which the English alleged was an everyday occurrence. A
number of neutral merchantmen bound for this port were seized, but the
difficulty experienced by England was her inability to prove that the
goods on board were really intended for the enemy, or that the men shown
as passengers were actually proceeding to the Transvaal as recruits for
the Boer forces in the field.

[Footnote 1: Sessional Papers of the House of Commons, Royal Commission
on 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 the
English gunboat _Partridge_ and ordered to return under escort to
Durban. The British cruiser _Tartar_ there took over £25,000 in gold
which, it was alleged, had been intended for the Transvaal Government.
It was found, however, that the gold was consigned to the Delagoa branch
of the Transvaal Bank from the Durban branch of the same institution.
The allegation against the consignment, it was considered by the prize
court, did not sufficiently contaminate the shipment since the
destination was proved to be a neutral one and the point of departure an
English port. In February the gold was returned to the Bank of Durban
because the ultimate destination of the consignment did not warrant the
presumption that it was enemy's property.

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

These seizures indicate the feeling of suspicion which was prevalent in
England that apparently innocent descriptions in the bills of lading of
steamers arriving at Lorenzo Marques concealed contraband of war. The
question was raised whether the English commanders should not be ordered
to open packing cases and the like and not examine merely the manifests
in order to furnish evidence which would warrant the confiscation of the
goods and possibly the ships carrying contraband, should such be found
on board. The Council of the British and Foreign Arbitration Association
sent a resolution to the English Government and to that of Portugal
which declared: "This association most earnestly and emphatically
protests against the permission granted by Portugal to the Boers of the
Transvaal to make of Lorenzo Marques an emporium for the collection of
arms and ammunition against Great Britain with whom the king of Portugal
is at peace ... thereby ... enlarging the sphere of the present
carnage 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 the
Portuguese Government believed victory certain for Great Britain and
only a matter of brief hostilities, the administration at Lorenzo
Marques had put a certain amount of restraint upon the extent to which
the port might be used as a base of warlike supplies, but had later
relaxed this proper restriction. The only remedy possible to be applied
by England was the right of patrol outside the three mile limit, but the
detection of forbidden forms of commerce was practically impossible.
Undoubtedly not only food but munitions of war as well were brought in
concealed in the holds of merchantmen and by other devices. To examine
the ships properly at sea it was estimated would have required three
weeks or more, and it was declared that such an examination alone could
have insured Great Britain in her rights, since the bills of lading were
evidently fictitious. Recruits came in on the ships in question as
waiters, as sailors, as passengers, and when landed were sent on to
Pretoria. With permanent offices at the Hague, Dr. Leyds, it was
asserted, was the recruiting agent of the Transvaal, and was successful
in sending out men from Germany, Belgium, Russia, Sweden, Holland,
Ireland, and as a matter of fact from the whole of Europe as a great
recruiting station.

It was this state of affairs that impelled the English Government to
assume an attitude toward neutral commerce which it was found difficult
to maintain against other nations whose interests were involved. The
points in the British position which were most violently attacked were
the classification of foodstuffs as contraband in certain cases, and the
application which was made of the doctrine of "continuous voyages," not
to absolute contraband of war or to goods seeking to cross the line of
an established blockade, but to other classes which are usually
considered free.

There seems little certainty as to the exact circumstances under which a
belligerent may treat foodstuffs as contraband, although it is generally
admitted that under certain conditions such goods may be so considered.
On the other hand doubt is expressed by many writers upon international
law as to whether it is ever possible to treat as contraband of war such
articles 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 manufacturing
arms, ammunition and any materials which are of direct application in
naval or military armaments; second, conditional contraband, consisting
of articles which are fit for but not necessarily of direct application
to hostile uses.

The first class is always liable to capture and confiscation, but with
regard to the second class no unanimity of opinion exists. Disputes
always arise as to what articles, though not necessarily of direct
applicability to hostile uses, may nevertheless be considered contraband
of war. This question is especially difficult of solution with reference
to foodstuffs when seized on their way to a belligerent in neutral
bottoms.

The case of seizure which occurred during the war involved not only the
question of foodstuffs as contraband but brought up also the
applicability of the doctrine of "continuous voyages," where the article
being conveyed to a belligerent by stages were goods which, except under
unusual circumstances, have generally been held to be free from the
taint of contraband character. Great Britain has held that provisions
and liquors fit for the consumption of the enemy's naval or military
forces may be treated as contraband. In the case of the seizure of
"naval or victualling" stores her rule has been their purchase without
condemnation 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 the
southern to the northern ports of China, with whom she was at war. But
in declaring that all cargoes so shipped were to be considered as
contraband the French Government made a distinction as to their intended
or probable destination and use. Great Britain protested at that time,
but as no cases came before French prize courts we have no way of
judging of the French declaration and its value as a precedent. But the
majority of the authorities upon the principles of international law
admit that foodstuffs which are destined for the use of the enemy's army
or navy may be declared contraband in character. The practice of the
United States, of Great Britain and of Japan has been to follow this
rule. Russia in 1904 declared rice and provisions in general to be
contraband. When Great Britain and the United States protested against
this decision the Russian Government altered its declaration so far as
to include foodstuffs as conditional contraband only. Germany has held
that articles which may serve at the same time in war and peace are
reputed contraband if their destination for the military or naval
operations of the enemy is shown by the circumstances.

All authorities seem to agree that contraband to be treated as such must
be captured in the course of direct transit to the belligerent, but the
difficulty nearly always arises as to what shall be considered direct
transit. One rule has been that the shipment is confiscable if bound for
a hostile port, another that it is only necessary to show that the
ultimate destination of the goods is hostile. The latter rule was
declared to apply in the American case of the _Springbok_, an English
merchantman conveying goods in 1863 from a neutral port to a neutral
port, but, it was alleged, with the evident intention that the goods
should reach by a later stage of the same voyage the belligerent forces
of the Southern Confederacy, then at war with the United States.[4] In
this case, however, the conclusive presumption was that the character of
the goods themselves left no doubt possible as to their ultimate
destination. The guilt of the vessel was not based upon the ground of
carrying contraband but upon a presumption that the blockade established
over the Southern States was to have been broken. Both the ship and its
cargo were condemned by the district court of southern New York, but the
cargo alone was later considered liable to condemnation by the Supreme
Court of the United States. Great Britain at the time noted an exception
to the decision, but refused to take up claims on the part of the
English owners against the United States Government for indemnity. Earl
Russell, in refusing the request of the owners for intervention by Great
Britain, said in part: "A careful perusal ... of the judgment,
containing the reasons of the judge, the authorities cited by him in
support of it, and the ... evidence invoked ... goes ... to
establish that the cargo of the _Springbok_, containing a considerable
portion of contraband, was never really and _bona fide_ destined for
Nassau [the alleged destination], but was either destined merely to call
there, or to be immediately transshipped after its arrival there without
breaking bulk and without any previous incorporation into the common
stock 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, Correspondence
respecting 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 the
primary question was not one of contraband. The guilt of the ship lay
rather in the intention, presumed upon the evidence, that a breach of an
actual blockade was ultimately designed. The Supreme Court in reviewing
the decision of the lower court said: "We do not refer to the character
of the cargo for the purpose of determining whether it was liable to
condemnation as contraband, but for the purpose of ascertaining its real
destination; for we repeat again, contraband or not, it could not be
condemned if really destined for Nassau, and not beyond, and, contraband
or not, it must be condemned if destined to any rebel port, for all
rebel ports are under blockade."[6] In other words, the decision was
upon presumption and not upon the evidence in the case; upon the
presumption that a breach of blockade was premeditated and not upon the
ground that the cargo was contraband. The fact that the cargo was of a
character which did not seem likely to be incorporated into the stock in
trade of the Nassau population gave the judges whatever justification
there was for the presumption that the goods were intended to be
transshipped without breaking bulk. A recent English writer, Mr.
Atherley-Jones, who criticises this decision of the Supreme Court of the
United States as a verdict based upon the principle of the expediency of
the moment and not upon the usual rules of evidence, admits that if a
vessel sails with the intention of violating a blockade there is no
question of the character of the port from which she sets out but
insists that there is no necessity in such a case to apply the doctrine
of "continuous voyages," If it can be proved, he says, that she is going
to a blockaded port, it does not matter whether she is going to a
neutral one or not, but it must be made clear that she is going to a
blockaded one. He points to the fact that suspicion can never prove this
apart from the ship's papers, the admission of the ship's company and
the situation and course of the vessel. His view of the case is that the
Supreme Court as well as the lower courts of, the United States
"accepted well founded surmise as to a vessel's destination in lieu of
proof," and he adds, "the danger of such a departure needs no further
comment."[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 of
seizure of foodstuffs bound for Delagoa Bay seems to have been based
upon this departure of the Supreme Court of the United States in the
case of the _Springbok_ in 1863. It was found, however, that this basis
of justification would not be acceptable to other Powers generally nor
to the United States when the doctrine of "continuous voyages" was given
such an application as practically to include foodstuffs as contraband.
Without the taint of contraband there could be no justification even
upon the _Springbok_ decision as a precedent, since there was no
blockaded port in question. In the seizure of American goods which were
being conveyed by British ships there was the possibility of a violation
of a municipal regulation which forbade British subjects to trade with
the enemy.

But the charge of trading with the enemy to gain plausible ground
necessarily carried with it the further presumption that the ultimate
intention was that the foodstuffs should reach the Transvaal by a later
stage of the same voyage.

With reference to the arrest and detention of German mail steamers bound
for Delagoa Bay, the English Government found the attempt to substitute
possibly well-grounded suspicions for facts no more acceptable to third
Powers than the assumption with regard to foodstuffs had been, if the
emphatic statements of the German Government indicate the general
opinion upon the subject of the carrying of analogues of contraband and
unneutral service in general.


GERMAN SEIZURES. BUNDESRATH, HERZOG AND GENERAL.

THE BUNDESRATH.--It was reported to the English Government by Rear
Admiral Sir Robert Harris, on December 5, 1899, that the German East
African mail steamer _Bundesrath_ had sailed from Aden for Delagoa Bay.
He informed his Government that ammunition was "suspected but none
ascertained;" that the _Bundesrath_ had on board "twenty Dutch and
Germans and two supposed Boers, three Germans and two Australians
believed 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 into
Durban, about three hundred miles from Lorenzo Marques, under the escort
of the British cruiser _Magicienne_. The German Government demanded the
immediate release of the steamer upon the assurance made by the Hamburg
owners that she carried no contraband. Great indignation was expressed
in Hamburg, and a demand was made in the Chamber of Commerce that
measures be taken to insure the protection of German commercial
interests. A diplomatic note was sent by Germany protesting against the
action of England. Lord Salisbury's reply on the part of his Government
was that the _Bundesrath_ was suspected of carrying ammunition in her
cargo, and that it was known that she had on board a number of
passengers who were believed to be volunteers for service with the
Boers. He added, however, that no official details had been received
other than those contained in the cable announcing the fact that the
ship had been captured.[9] The German consul at Durban protested against
the ship's being brought in there as prize, and his Government
reiterated its request that she be released at once since she carried no
contraband. The detention of a mail ship, it was asserted, interfered
with public interests in addition to the loss which was inflicted upon
the owners of the vessel.

[Footnote 8: Sessional Papers of the House of Commons, Correspondence
respecting the Action of Her Majesty's Naval Authorities with reference
to 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 changed
the position of her cargo on being chased, a fact which was considered
suspicious; that a partial search had revealed sugar consigned to a firm
at Delagoa Bay, and railway sleepers and small trucks consigned to the
same place. It was expected that a further search would reveal arms
among the baggage of the Germans on board who admitted that they were
going to the Transvaal. England's senior naval officer at Durban was of
the opinion that there was ample ground for discharging the cargo and
searching it. The request was accordingly made that authority be given
for throwing the ship into a prize court, and that instructions be
forwarded as to the proper disposal of the passengers on board.

Despite the protest of Germany that the _Bundesrath_ carried neither
contraband nor volunteers for the Transvaal, instructions were issued
that a prize court should take over the ship and a search be at once
made by competent authorities. Orders were given at the same time,
however, that until it became evident that the _Bundesrath_ was carrying
contraband, "other German mail steamers should not be arrested on
suspicion only."[10]

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

Instructions were also issued by the British Government that application
be made to the prize court for the release of the mails; that if they
were released they were to be handed over to the German consul and to be
hastened to their destination, "either by an English cruiser if
available, or by a mail steamer, or otherwise."[11] It was pointed out
that the ship and its cargo, including the mails, were in the custody of
the court and except by the order of that tribunal should not be
touched. It was urged, however, that every facility for proceeding to
his destination be afforded to any passenger whom the court considered
innocent.

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

The German consul at Durban reported that no contraband had been found
on the _Bundesrath_ although a thorough search had been made. The
failure to discover goods of a contraband character apparently rendered
the action of Great Britain's naval authorities unjustifiable. Germany
indeed insisted that had there been contraband disclosed even this fact
would not have given England any right to interfere with neutral
commerce from one neutral port to another and insisted that the task of
preventing the transmission of contraband to the Transvaal lay with the
Portuguese Government.[12] The fact was also pointed out that when war
first broke out, the steamship company owning the _Bundesrath_ had
discharged shipments of a contraband character at Dar-es-Salaam as well
as at Port Said in order to obviate any possible complication, and since
then 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 without
hindrance contraband of war to the enemy, so long as the port at which
she intended to land it was a neutral port."[13] The novel suggestion
was made by Germany that "the mail steamer be allowed to go on bail so
as not to interfere more than was necessary with her voyage," but the
English representative doubted the practicability of such a plan. He was
in favor of the suggestion if it could be adopted under suitable
conditions, but since the ship had probably gone into the hands of the
prize 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 the
court and were taken on board the German warship, _Condor_, for Delagoa
Bay. But not until two weeks later were the ship and its cargo
released.[14] The only reason assigned by the court for the release was
that 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 to
details, were similar in regard to the points of law involved, the facts
in the remaining cases will be outlined. It will then be possible to
discuss the grounds upon which Great Britain asserted the right of
seizure, and the objections which Germany made to the English assertion.

THE HERZOG.--On December 16, 1899, a cable from the commander-in-chief
of the Mediterranean station announced to the British Foreign Office
that the German "steamship" _Herzog_ had left the Suez Canal on the
twelfth for South Africa carrying "a considerable number of male
passengers, many in khaki, apparently soldiers" although "no troops were
declared." On the same day an inquiry was made by the commander at the
Cape whether "a number of passengers dressed in khaki" could be "legally
removed" from the _Herzog_.[15] On the twenty-first the senior naval
officer at Aden reported that the _Herzog_ had sailed on the eighteenth
for Delagoa Bay conveying, "probably for service in the Transvaal, about
forty Dutch and German medical and other officers and nurses."[16]
Although instructions had been issued on the first of January that
neither the _Herzog_ nor any other German mail steamer should be
arrested "_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 British
ship _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 seizure
of the _Herzog_. They urged that the vessel be allowed to proceed since
her captain had given the assurance that there were no contraband goods
on board; that the only suspected articles were the mails, and certain
small iron rails and railway sleepers which were destined for the
neutral port of Delagoa Bay. On board the _Herzog_, however, there were
three Red Cross expeditions, one of which had no official connection
with the legitimate Red Cross societies. It had no official character
but had been organized by a committee, the "Hilfs Ausshuss für Transvaal
in Antwerp."[17] The other Red Cross expeditions were legitimate, one
being German and the other Dutch.

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

On the seventh instructions were issued that the _Herzog_ be released at
once, unless guns or ammunition were revealed by a summary search. But
on the following day the order was added that proceedings might be
discontinued and the ship released unless "provisions on board are
destined for the enemy's Government or agents, and are also for the
supply of troops or are especially adapted for use as rations for
troops."[18] On the ninth the _Herzog_ was released, arrangements having
been made two days before for the passage of one of the passengers, the
Portuguese 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 Aden
had reported to the English admiralty that the German vessel _General_,
another East African mail steamer, was under detention there upon strong
suspicion and was being searched.[19] The German Government at once
entered a strong protest and demanded in rather brusque terms "that
orders 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 taken
on board again, and for no hindrances to be placed in the way of the
ship continuing her voyage to the places mentioned in her itinerary."
Count Hatzfelt, the German representative in London, continued: "I am
further instructed to request your Excellency [the Marquis of Salisbury]
to cause explicit instructions to be sent to the Commanders of British
ships in African waters to respect the rules of international law, and
to place no further impediments in the way of the trade between
neutrals."[20]

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

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

To the form and imputations of this request the British Government took
exception, and the situation appeared ominous for a time. Instructions
had been issued, however, that unless the _General_ disclosed contraband
after a summary search it was undesirable to detain the ship since she
carried the mails. The report of the naval officer at Aden disclosed the
fact that he had boarded and detained the ship at that place. The ground
for his action was that he had been informed that a number of suspicious
articles were on board for Delagoa Bay, including boxes of ammunition
stowed in the main hold, buried under reserve coal. An inspection of the
manifest had shown several cases of rifle ammunition for Mauser,
Mannlicher and sporting rifles consigned to Mombasa, but this
consignment was believed to be _bona fide_. Other suspected articles on
the manifest were wagon axles and chemicals and at the bottom of the
hold was a consignment of food for Delagoa Bay, with boilers and heavy
machinery stowed on top of the reserve coal. The _General_ carried
besides a number of Flemish and German passengers for Delagoa Bay, in
plain clothes but of "military appearance," some of whom were believed
to be trained artillerymen. It was suggested that this last doubt could
be cleared up only by a search of the private baggage of the persons
suspected, but it was not considered by the British Foreign Office that
there was "sufficient evidence as to their destination to justify
further 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 sail
until the tenth, a delay due to the labor of restowing her cargo, which
was done as quickly as possible. The crew of the English ship
_Marathon_, assisted by one hundred coolies, having worked day and night
after the arrival of the ship on the fourth, completed the search on the
sixth but were unable to complete the restowal until the morning of the
tenth.


THE JUDICIAL ASPECTS OF THE SEIZURES.

In the discussion which occurred during the detention, and which was
continued after the release of the three German ships, the assertions
made by the British and German Governments brought out the fact that
English practice is often opposed to Continental opinion in questions of
international law.

On the fourth of January the German Ambassador in London had declared
that his Government, "after carefully examining the matter" of the
seizure of the _Bundesrath_, and considering the judicial aspects of the
case, was "of the opinion that proceedings before a Prize Court were not
justified."[22] This view of the case, he declared, was based on the
consideration that "proceedings before a Prize Court are only justified
where the presence of contraband of war is proved, and that, whatever
may have been on board the _Bundesrath_, there could have been no
contraband of war, since, according to recognized principles of
international law, there cannot be contraband of war in trade between
neutral 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 the
case of the _Springbok_ in 1863 as opposed to the decision of the
Supreme Court of the United States sitting as a prize court on an appeal
from the lower district court of the State of New York.[23] The protest
of the British Government against the decision of the United States
court as contravening these recognized principles, he said, was put on
record in the Manual of Naval Prize Law published by the English
Admiralty in 1866, three years after the original protest. The passage
cited from the manual read: "A vessel's destination should be considered
neutral, if both the port to which she is bound and every intermediate
port 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 destination
of the goods on board." In view of this declaration on the part of Great
Britain toward neutral commerce Count Hatzfeldt contended that his
Government was "fully justified in claiming the release of the
_Bundesrath_ without investigation by a Prize Court, and that all the
more because, since the ship is a mail-steamer with a fixed itinerary,
she could not discharge her cargo at any other port than the neutral
port of destination."[24]

[Footnote 23: This case, it will be remembered, was _not_ decided on the
ground of the contraband character of the goods in the cargo but because
of the presumption that the ultimate intention of the ship was to break
the blockade established over the Southern States. This well founded
suspicion, based upon the character of the cargo as tending to show that
it could be intended only for the forces of the Southern Confederacy,
led to the conclusion that a breach of blockade was premeditated. This
presumption no doubt was correct and in this particular case the
decision of the court was probably justified, but the course of
reasoning by which the conclusion was reached was generally considered a
dangerous innovation in international relations. It has been recently
again asserted that the decision was not based upon the accepted rules
of evidence. Supra p. 24. For a clear statement of the latter view, see
Atherley-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 of
fact in regard to the authorities" cited. He emphatically declared that
the British Government had not in 1863 "raised any claim or contention
against the Judgment of the United States' Prize Court in the case of
the _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 Her
Majesty's Minister at Washington that there did not appear to be any
justification for the seizure of the vessel and her cargo, that the
supposed reason, namely, that there were articles in the manifest not
accounted 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 the
vessel had by that time been carried before a Prize Court of the United
States for adjudication, and that the adjudication might shortly follow,
if it had not already taken place, the only instruction that he could at
present give to Lord Lyons was to watch the proceedings and the Judgment
of the Court, and eventually transmit full information as to the course
of the trial and its results." He asserted that the real contention
advanced in the plea of the owners for the intervention of the British
Government had been that "the goods [on board the _Springbok_] were, in
fact, _bona fide_ consigned to a neutral at Nassau;" but that this plea
had been refused by the British Government without "any diplomatic
protest or ... any objection against the decision ... nor did they
ever express any dissent from that decision on the grounds on which it
was based."[25]

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

This assertion is fairly based upon the reply of the English Government
to the owners on February 20, 1864. Earl Russell had expressly declared
that 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 in
support of it, and the important evidence properly invoked from the
cases of the _Stephen Hart_ and _Gertrude_ (which her majesty's
government have now seen for the first time) in which the same parties
were concerned," had convinced his Government that the decision was
justifiable under the circumstances.[26] The fact was pointed out that
the evidence had gone "so far to establish that the cargo of the
_Springbok_, containing a considerable portion of contraband, was never
really and _bona fide_ destined for Nassau, but was either destined
merely to call there or to be immediately transhipped after its arrival
there without breaking bulk and without any previous incorporation into
the common stock of that Colony, and then to proceed to its _real
destination_, being a _blockaded port_."[27] The "complicity of the
owners of the ship, with the design of the owners of the cargo," was "so
probable on the evidence" that, in the opinion of the law advisers of
the Crown, "there would be great difficulty in contending that this ship
and cargo had not been rightly condemned." The only recourse of the
owners 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 Lord
Salisbury, namely, that the manual of the English Admiralty of 1866
expressly declared: "A vessel's destination shall be considered neutral,
if both the point to which she is bound and every intermediate port at
which 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 on
board." Count Hatzfeldt contended that upon this principle, admitted by
Great Britain herself, Germany was fully justified in claiming the
release of the ship without adjudication since she was a mail-steamer
with a fixed itinerary and consequently could not discharge her cargo at
any 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 cited
was only a general statement of the principles by which British officers
were to be guided in the exercise of their duties, but that it had never
been asserted and could not be admitted to be an exhaustive or
authoritative statement of the views of the British Government. He
further contended that the preface stated that it did not treat of
questions which would ultimately have to be settled by English prize
courts. The assertion was then made that while the directions of the
manual were sufficient for practical purposes in the case of wars such
as had been waged by Great Britain in the past, they were quite
inapplicable to the case which had arisen of war with an inland State
whose only communication with the sea was over a few miles of railway to
a neutral port. The opinion of the British Government was that the
passage cited to the effect "that the destination of the vessel is
conclusive as to the destination of the goods on board" had no
application. "It cannot apply to contraband of war on board a neutral
vessel if such contraband was at the time of seizure consigned or
intended to be delivered to an agent of the enemy at a neutral port, or,
in fact, destined for the enemy's country."[29]

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

Lord Salisbury then cited Bluntschli as stating what in the opinion of
the British Government was the correct view in regard to goods captured
under such circumstances: "If the ships or goods are sent to the
destination of a neutral port only the better to come to the aid of the
enemy, there will be contraband of war and confiscation will be
justified."[30] And, basing his argument upon this authority, he
insisted that his Government could not admit that there was sufficient
reason for ordering the release of the _Bundesrath_ "without examination
by the Prize Court as to whether she was carrying contraband of war
belonging to, or destined for, the South African Republic." It was
admitted, however, that the British Government fully recognized how
desirable it was that the examination should be carried through at the
earliest possible moment, and that "all proper consideration should be
shown for the owners and for innocent passengers and all merchandise on
board of her."[31] It was intimated that explicit instructions had been
issued for this purpose and that arrangements had been made for the
speedy transmission of the mails.

[Footnote 30: "Si les navires ou marchandises ne sont expédiés à
destination d'un port neutre que pour mieux venir en aide à l'ennemi, il
y aura contrebande de guerre, et la confiscation sera justifiée." Droit
Int. Codifié, French translation by Lardy, 1880, 3d Ed., § 813. One of
the two cases cited in support of this opinion is that of the
_Springbok_, but in §835, Rem. 5, the following statement is made: "Une
théorie fort dangereuse a été formulé par le juge Chase: 'Lorsqu'un port
bloqué est le lieu de destination du navire, le neutre doit être
condamné, même lorsqu'il se rend préalablement dans un port neutre, peu
importe 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 the
disputed 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 no
justification for delivering the vessel to a prize court. The suggestion
was made that future difficulty might be avoided by an agreement upon a
parallel of latitude down to which all ships should be exempt from
search. And although it was not found possible to reach an exact
agreement upon this point, orders were issued by Great Britain that the
right of search should not in future be exercised at Aden or at any
place at an equal distance from the seat of war and that no mail
steamers should be arrested on suspicion alone. Only mail steamers of
subsidized lines were to be included, but in all cases of steamers
carrying the mails the right of search was to be exercised with all
possible consideration and only resorted to when the circumstances were
clearly 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 and
English Governments with regard to the theory of ultimate destination
and continuous voyages a wide divergence of opinion. The British
Government apparently based its contention upon the decision of the
United States Supreme Court in the case of the _Springbok_ in 1863,
namely, that a continuous voyage may be _presumed_ from an intended
ultimate hostile destination in the case of a _breach of blockade_, the
contraband character of the goods only tending to show the ultimate
hostile intention of the ship. But the English contention went further
than this and attempted to apply the doctrine to contraband goods
ultimately intended for the enemy or the enemy's country by way of a
neutral port which, however, was not and could not be blockaded. The
German Government contended on the other hand that this position was not
tenable and apparently repudiated the extension of the continuous voyage
doctrine as attempted by England.

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

Count Von Bülow, the German Chancellor, speaking before the Reichstag
with reference to the seizures of the German mail steamers said: "We
strove from the outset to induce the English Government in dealing with
neutral vessels consigned to Delagoa Bay, to adhere to that theory of
international law which guarantees the greatest security to commerce and
industry, and which finds expression in the principle that _for ships
consigned from neutral states to a neutral port, the notion of
contraband of war simply does not exist_. To this the English Government
demurred. We have reserved to ourselves the right of raising this
question in the future, in the first place because it was essential to
us to arrive at an expeditious solution of the pending difficulty, and
secondly, because, in point of fact, the principle here set up by us has
not 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 corresponded
most closely with the general opinion of the civilized world, the
Chancellor then declared: "We recognize the rights which the Law of
Nations actually concedes to belligerents with regard to neutral vessels
and neutral trade and traffic. We do not ignore the duties imposed by a
state of war upon the ship owners, merchants, and vessels of a neutral
state, but we require of the belligerents that they shall not extend the
powers they possess in this respect beyond the strict necessities of
war. We demand of the belligerents that they shall respect the
inalienable rights of legitimate neutral commerce, and we require above
all things that the right of search and of the eventual capture of
neutral ships and goods shall be exercised by the belligerents in a
manner conformable to the maintenance of neutral commerce, and of the
relations of neutrality existing between friendly and civilized
nations."[34]

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

This doctrine, namely, that "for ships consigned from neutral states to
a neutral port, the notion of contraband simply does not exist," clearly
defined the contention of Great Britain that contraband which "at the
time of seizure" was "consigned or intended to be delivered to an agent
of the enemy at a neutral port, or, in fact, destined for the enemy's
country," is liable to seizure and that both ship and cargo may be
confiscated.[35] It also denied the English contention that "provisions
on board ... destined for the enemy's Government or agents, and ...
also for the supply of troops or ... especially adapted for use as
rations 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 by
saying: "We demanded in the first place the release of the steamers....
In the second place we demanded the payment of compensation for the
unjustified detention of our ships and for the losses incurred by the
German subjects whose interests were involved.... Thirdly, we drew
attention to the necessity for issuing instructions to the British Naval
Commanders to molest no German merchantmen in places not in the vicinity
of the seat of war, or at any rate, in places north of Aden....
Fourthly, we stated it to be highly desirable that the English
Government should instruct their Commanders not to arrest steamers
flying the German mail flag.... Fifthly, we proposed that all points
in dispute should be submitted to arbitration.... Lastly, the English
Government have given expression to their regret for what has occurred.
We cherish the hope that such regrettable incidents will not be
repeated. We trust that the English naval authorities will not again
proceed without sufficient cause, in an unfriendly and precipitate
manner against our ships."[37]

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

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

(1) "Neutral merchant ships on the high seas or in the territorial
waters of the belligerent Powers ...are subject to the right of visit
by the warships of the belligerent parties." It was pointed out that
this was apart from the right of convoy, a question which did not arise
in the cases under discussion. The proposal was not intended to apply to
waters which were too remote from the seat of war and a special
agreement was advocated for mail ships.

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

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

"(4) By the term 'contraband of war' only such articles or persons are
to be understood as are suited for war and at the same time are destined
for one of the belligerents." "The class of articles to be included in
this definition," it was intimated, "is a matter of dispute, and with
the exception of arms and ammunition, is determined, as a rule, with
reference to the special circumstances of each case unless one of the
belligerents has expressly notified neutrals in a regular manner what
articles it intends to treat as contraband and had met with no
opposition.

"(5) Discovered contraband is liable to confiscation; whether with or
without compensation depends upon the circumstances of each case.

"(6) If the seizure of the vessel was not justified the belligerent
state is bound to order the immediate release of the ship and cargo and
to 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 not
have been possible to lodge a protest against the stopping on the high
seas of the three German steamers or to protest against the examination
of their papers. But by the same standard, it was contended that the act
of 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 suspicion
and did not appear to have been justified.

The end of the discussion between Great Britain and Germany left the
somewhat uncertain doctrine of continuous voyages still unsettled. As
applied in 1863 distinctly to a breach of blockade it was generally
considered an innovation. As applied, or attempted to be applied, by
Great Britain in 1900 to trade between neutral ports at a time when no
blockade existed or was in fact possible, it failed to receive the
acquiescence of other nations who were interested. The discussion,
however, rendered, apparent a clear line of cleavage between English
practice and Continental opinion.

Mr. Lawrence characterizes as "crude" the doctrine of the German
Chancellor, that neutral ships plying between neutral ports are not
liable to interference; that, in order for the ship to be legitimately
seized, there must be contraband on board, that is, goods bound for a
belligerent destination, and that this could not occur where the
destination was a neutral port and the point of departure a neutral
port. He declares that if this doctrine were accepted the offense of
carrying contraband "might be expunged from the international code;"
that "nothing would be easier for neutrals than to supply a belligerent
with all he needed for the prosecution of his war."[38] He points out
the danger of the acceptance on the part of the Powers of such a
doctrine by citing the hypothetical case of France engaged in war, and
asserts that under such circumstances even arms and ammunition might be
poured into the neutral port of Antwerp and carried by land to the
French arsenals. If Germany should be at war, munitions of war might be
run in with practically no hindrance through the neutral harbors of
Jutland. If Italy were at war, Nice or Trieste might be used in the same
manner 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 by
the German Government as enunciated in the speech of Count Von Bülow,
although he clearly indicates what he thinks the general tendency of the
proposed German system of law would be. It would seem that he does not
give a clear statement of the German doctrine. When he asserts that
"Count Von Bülow committed himself to the crude doctrine that neutral
ships plying between neutral ports would not be liable to interference,"
the inference is not a necessary result of the German position. Nor does
it necessarily follow according to the German standard that, "to
constitute the offense of carrying contraband a belligerent destination"
is "essential, and therefore there" can "be no contraband when the
voyage" is "from neutral port to neutral port,"[39] Mr. Lawrence
possibly has reference only to the position taken _arguendo_ by the
German Government during the correspondence immediately following the
seizure of the German ships and not to the general rules formulated by
the German Chancellor on January 19, 1900, in his speech before the
Reichstag.[40] There is no indication that Mr. Lawrence had this speech
before him when he passed judgment upon the German doctrine, although
the preface to the third edition of his Principles of International Law
is dated August 1, 1900.

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

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

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

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

The view taken by Mr. Lawrence would seem unfair to the proposed rules
in a number of points. Count Von Bülow clearly pointed out that
belligerent vessels might capture a neutral vessel if the latter
resisted the order to stop, or if irregularities were discovered in her
papers, or if the presence of contraband were revealed. Under the term
"contraband of war" he admitted that articles and persons suited for war
might be included, provided they were at the same time destined for the
use of one of the belligerents, and he was ready to admit that
discovered contraband should be confiscable. It is true the caution was
added that should the seizure prove to be unjustifiable the belligerent
State should be bound to order immediate release and make full
compensation, and that the right of visit and search should be exercised
with as much consideration as possible and without undue molestation to
neutral commerce. It was understood that neutral merchant vessels on the
high seas or in the territorial waters of the belligerent powers should
be liable to visit and search, but again with the necessary caution that
the right should not be exercised in waters too remote from the seat of
war, 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 German
position in 1900 and that taken by the Supreme Court of the United
States in 1863 with reference to the ships _Springbok_ and _Peterhof_.
In the latter case the cargo of the ship was condemned on the ground
that the goods, not necessarily contraband in character, were being
carried into the neutral Mexican port of Matamoras. It was believed,
however, that the goods were not intended to be sold there as a matter
of trade, but were destined for the use of the forces of the Southern
Confederacy across the Rio Grande River. To these belligerent forces it
was presumed the goods were to be conveyed as the final stage of their
voyage, but the decision of the court was distinctly upon the guilt of a
breach of blockade.[43] The character of the goods did not give just
ground for seizure provided they were intended in good faith for a
neutral market, but the character of the goods showed that they were not
so intended, and the simulated papers of the ship substantiated this
suspicion. But it is to be repeated, condemnation was declared upon the
ground of an intended breach of an established blockade as the final
stage of the voyage. Had there been no blockade of the Southern States
these decisions could not have been upheld. No contraband of war was
possible between the neutral ports in the course of _bona fide_ neutral
trade, but the character of the goods and the dishonest character of the
ships made possible the conclusive presumption that the goods were
ultimately 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 British
Government was not able to show that the ships were really carrying
contraband or that there was any irregularity in their papers. The
protest of the German Government and its later announcement of certain
rules which should govern such cases merely cautioned Great Britain
against an undue exercise of the recognized right of visit and search.
The attempt was not made to lay down a new system of principles which
would render the carrying of contraband by neutrals unhampered by the
belligerents, for Count Von Bülow in setting forth the tentative system
which in the opinion of his Government would protect neutral commerce in
time of war laid stress upon the fact that there are as yet no legal
principles fixed and binding on all the maritime Powers, respecting the
rights of neutrals to trade with a belligerent, or the rights of
belligerents in respect to neutral commerce. He pointed out that,
although proposals had been repeatedly made to regulate this subject all
attempts had failed owing to the obstacles created by the conflicting
views of the different Powers.

The Peace Conference at the Hague has in fact expressed the wish that an
international conference might regulate, on the one hand, the rights and
duties of neutrals, and on the other, the question of private property
at sea. The German Chancellor intimated that his Government would
support any plan of the kind for more clearly defining the disputed
points of maritime law. The fact was pointed out that maritime law is
still in a "liquid, elastic, and imperfect state," that with many gaps
which are only too frequently apt to be supplemented by armed force at
critical junctures, this body of law opens the way for the criticism
that "the standard of might has not as yet been superseded by the
standard of right."

The Institute of International Law which met at Venice in 1896 declared
that the destination of contraband goods to an enemy may be shown even
when the vessel which carries them is bound to a neutral port. But it
was considered necessary to add the caution that "evident and
incontestable proof" must make clear the fact that the goods, contraband
in character, were to be taken on from the neutral port to the enemy, as
the final stage of the same commercial transaction.

This latter condition the English Government failed to fulfil in the
cases of the _Bundesrath, Herzog_ and _General_, and it was this failure
which gave just ground for Germany's protests. Great Britain not only
failed to show by "evident and incontestable proof" that the German
ships carried actual contraband, but she failed to show that there were
on board what have been called "analogues" of contraband. The point was
emphasized indeed that while special consideration would be shown to all
German mail steamers, not every steamer which "carried a bag of letters"
could claim this partial immunity. The English representative said: "We
understand by mail steamers, steamers of subsidized lines, and
consequently owned by persons whom the German Government consider as
respectable."[44] And in this intimation he merely voiced the suspicion
in England that with or without the knowledge of the Government the
German ships had been guilty of unneutral service, which the more recent
authorities on international law distinguished from the carrying of
contraband.

[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 vessels
carrying the mails by agreement with neutral governments have in certain
respects a peculiar position. Their owners and captains cannot be held
responsible for the nature of the numerous communications they carry. It
is equally well understood that a neutral may not transmit signals or
messages for a belligerent, nor carry enemy's despatches, nor transport
certain classes of persons in the service of a belligerent. But mail
steamers may carry persons who pay for their passage in the usual way
and come on board as ordinary passengers, even though they turn out to
be officers of one or the other of the belligerents. Although the
tendency of modern times to exempt mail ships from visit and search and
from capture and condemnation is not an assured restriction upon
belligerent interests, it is a right which neutrals are entitled to
demand within certain well-defined limits. It was understood when this
immunity was granted by the United States in 1862 that "simulated mails
verified by forged certificates and counterfeit seals" were not to be
protected.[45]

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

During the controversy between the English and German Governments with
reference to the seizure of the three German ships, Professor T.E.
Holland, the editor of the British Admiralty Manual of Prize Law of
1888, declared: "The carriage by a neutral ship of troops, or of even a
few military officers, as also of enemy despatches, is an enemy service
of so important a kind as to involve the confiscation of the vessel
concerned, a penalty which under ordinary circumstances, is not imposed
upon the carriage of contraband property so called."[46] Under this head
if would seem the alleged offense of the ship _Bundesrath_ may properly
be classed, and charges of a similar character were made against the
ships _General_ and _Herzog_. It was suspected that persons on board
variously described as of a military appearance were on their way to the
Transvaal to enlist. The suspicion, however, could not be proved, and
the result was that the ships were released without guilt upon the
charge of unneutral service or upon that of carrying contraband goods in
the 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 the
doctrine of continuous voyages as applied to both goods and persons
bound for Delagoa Bay, it is interesting to note the view expressed by a
leading English authority upon international law with reference to the
seizure of the ship _Gaelic_ by the Japanese Government during the
Chino-Japanese War. The _Gaelic_, a British mail steamer, was bound from
the neutral port of San Francisco for the British port of Hongkong.
Information had reached Japan that there were on board persons seeking
service with the Chinese Government and carrying a certain kind of
material intended to destroy Japanese ships.

Japan arrested the ship at Yokohama and had her searched. The suspected
individuals, it was discovered, had escaped and taken the French
mail-ship _Sidney_ from Yokohama to Shanghai. Nevertheless the search
was continued by the Japanese authorities in the hope of finding
contraband. The British Government protested, and this protest is
especially significant in view of the English contention in the cases of
the German mail steamers. The protest against the further detention and
search of the _Gaelic_ was made on the ground that the ship did not have
a hostile destination, Sagasaki, a port in Japanese territory, being the
only port of call between Yokohama and Hongkong. It was shown by the
Japanese that ships of the company to which the _Gaelic_ belonged often
called at Amoy, China, a belligerent port, but sufficient proof was not
advanced to show that there was any intention to touch there on the
voyage 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 precluded
the possibility of a search being made, and that it was immaterial
whether anything on board had a hostile destination ulterior to that of
the ship, appears rather surprising when it is seen to be almost the
opposite of the position taken in the seizures of ships bound for
Delagoa Bay in Portuguese territory. Japan on the other hand maintained
that the proceedings were entirely correct on the ground: (1) of the
probability that the _Gaelic_ might call at Amoy; (2) that the doctrine
of continuous voyages was applicable in connection with contraband
persons or goods if they were destined for the Chinese Government even
by way of Hongkong. This it will be remembered was practically the view
taken by Great Britain in the German seizures, though strenuously
opposed in this incident.

Professor Westlake, commenting upon the case of the _Gaelic_, states the
English view of the doctrine of continuous voyages as affecting: (1)
goods which are contraband of war and (2) persons who are contraband of
war, or analogues of contraband. Goods, he says, may be consigned to
purchasers in a neutral port, or to agents who are to offer them for
sale there, and in either case what further becomes of them will depend
on the consignee purchasers or on the purchasers from the agents. He
contends that "such goods before arriving at the neutral port have only
a neutral destination; on arriving there they are imported into the
stock of the country, and if they ultimately find their way to a
belligerent army or navy it will be in consequence of a new destination
given them, and this notwithstanding that the neutral port may be a
well-known market for the belligerent in question to seek supplies in,
and that the goods may notoriously have been attracted to it by the
existence 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 other
nations with reference to the interference with neutral commerce bound
for Delagoa Bay. Professor Westlake continues in regard to the Japanese
incident: "The consignors of the goods may have had an expectation that
they would reach the belligerent but not an intention to that effect,
for a person can form an intention only about his own acts and a
belligerent destination was to be impressed on the goods, if at all, by
other persons." Thus it is agreed, he says, "that the goods though of
the 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 the
seizure of German mail steamers upon a stronger argument for the
correctness of its position than upon this view expressing the English
Government's attitude toward neutral commerce at the time of the seizure
of the _Gaelic_. Professor Westlake points out, however, that goods on
board a ship destined for a neutral port may be under orders from her
owners to be forwarded thence to a belligerent port, army or navy,
either by a further voyage of the same ship or by transshipment, or even
by land carriage. He shows that such goods are to reach the belligerent
"without the intervention of a new commercial transaction in pursuance
of the intention formed with regard to them by the persons who are their
owners during the voyage to the neutral port. Therefore even during that
voyage they have a belligerent destination, although the ship which
carries them may have a neutral one."[50] In such a case, he declares,
by the doctrine of continuous voyages, "the goods and the knowingly
guilty ship are capturable during that voyage." In a word, "goods are
contraband of war when an enemy destination is combined with the
necessary character of the goods." And it is pointed out that "the
offense of carrying contraband of war" in view of the doctrine of
continuous voyages is committed by a ship "which is knowingly engaged in
any part of the carriage of the goods to their belligerent
destination."[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 as
having any validity, it may still be held that "the goods and the
knowingly guilty ship are liable before reaching the neutral port if
that port is only to be a port of call, the ultimate destination of the
ship as well as of the goods being a belligerent one."[52] But if the
doctrine of continuous voyages is denied it may also be questioned "that
a further intended carriage by transshipment or by land can be united
with the voyage to the neutral port so as to form one carriage to a
belligerent destination, and make the goods and the knowingly guilty
ship liable during the first part" of the voyage.[53] In other words, a
belligerent destination both of the goods and of the ship carrying them
would 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 person
whose character would stamp him as contraband, or an analogue of
contraband, is a passenger on board a ship bound for a neutral port, and
having no ulterior destination, but intends on arriving there to proceed
to a belligerent port, there is no closer connection between the two
parts of his journey than that he should hold a through ticket to the
belligerent port." It is pointed out that the distinction between a
person when considered as contraband and goods or despatches is that
"the person cannot be forwarded like a thing." Thus in the case of a
person holding a through ticket, the ticket is merely a facility, but it
must 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 English
Government in arresting passengers upon German mail steamers bound for
Delagoa Bay falls to the ground, for he continues: "There must for such
a destination be a determination of his own which during the _first part
of his journey_ inevitably remains _contingent_ and which is therefore
analogous to the new determination which may be given in the neutral
port as to the employment of goods which have found a market there."
Consequently he says: "The doctrine of continuous voyages cannot be
applied to the carriage of persons.... A neutral destination of the
ship is conclusive in the case of passengers taken on board in the
regular course."[55] Accordingly, Professor Westlake reaches the
conclusion that the search of the _Gaelic_ was unjustifiable under the
right 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 an
exercise of the police power of Japan within her own territorial
waters.]

The application which Great Britain attempted to make of the doctrine of
continuous voyages proved unsuccessful both with reference to contraband
for neutral ports and the carrying of analogues of contraband by German
mail steamers bound for Delagoa Bay. In the end the British Government
paid to the German East African Line owning the _Bundesrath, Herzog_ and
_General_, £20,000 sterling, together with an additional sum of £5,000
as compensation to the consignees. For the detention of the ship _Hans
Wagner_, a German sailing boat which had been arrested on February 6,
1900, the sum of £4,437 sterling was paid. The allegation in this case
was that of carrying contraband, but the ship was finally released
without the cargo being examined, a fact which indicates that in this,
the last of the German vessels to be seized, Great Britain realized the
futility of attempting to interfere with commerce between neutral ports.

The recommendations for the adjustment of the difficulty in the several
cases were made by a commission of five members, two of whom were
Germans, and the awards gave general satisfaction in Germany. The East
African Line congratulated Count Von Bülow upon the energetic manner in
which he had handled the incidents. German commercial interests
considered that they might count upon the effective support of the
Government, and that the result was a complete justification of the
attitude which Germany had assumed with regard to the conflicting
interests of belligerents and neutrals.




CHAPTER IV.


TRADING WITH THE ENEMY.

Almost contemporaneously with the German-English controversy with
reference to the restrictions which might legitimately be put upon
German mail steamers Great Britain and the United States became involved
in a lengthy correspondence.

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

The offense of trading with the enemy is not a new one in international
law. In 1799 Sir William Scott, afterwards Lord Stowell, sitting upon
the case of the _Hoop_, which is perhaps the leading case upon the
subject, declared that all trading with the enemy by the subjects of one
State without the permission of the sovereign is interdicted in time of
war[1]. It was pointed out that, according to the law of Holland, of
France, 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 are
considered to be at war with all the subjects of the other and all
intercourse and trade with the enemy is forbidden." This principle has
been accepted in the United States as one of the conditions of warfare.
Wheaton declares: "One of the immediate consequences of the commencement
of hostilities is the interdiction of all commercial intercourse between
the subjects of the States at war without the license of their
respective Governments."[2]

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

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

In England a declaration of war is equal to an Act of Parliament
prohibiting all intercourse with the enemy except by the license of the
Crown. The penalty of such illegal intercourse is the confiscation of
the cargo and of the ship engaged in such trade. The instructions are
emphatic upon the point: "The commander should detain any British vessel
which he may meet with trading with the enemy unless, either: (1) He is
satisfied that the master was pursuing such trade in ignorance that war
had broken out, or, (2) The vessel is pursuing such trade under a
license 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 burden
of proof is thrown upon the ship's captain to show that goods so shipped
are not intended for the enemy. In the case of the _Jonge Pieter_ (1801)
goods purchased in England were shipped for an enemy port but were
seized by a British cruiser under the right of a belligerent. It was
attempted to be set up that the goods belonged to citizens of the United
States, but in the absence of documentary proof condemnation was decreed
on 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 past
had shown what the British view was, namely, that all trading with the
enemy is absolutely forbidden to British subjects upon the outbreak of
war. But in the controversy between the English Government and that of
the United States with reference to foodstuffs bound for Delagoa Bay on
board English ships the argument set up by the British authorities was
not generally considered well founded, since little more than suspicion
was produced as evidence to show that any of the ships really intended
to trade with the enemy. There was no dissent from the established rule
that trading with the enemy on the part of the subjects of the
belligerent States is prohibited. But those nations whose citizens or
subjects suffered loss by the enforcement of the English law were not
satisfied that the English ordinance had been violated either in deed or
by intent.

Soon after war had begun it was known that the English authorities would
scrutinize closely any transactions of British ships, or of ships leased
by English firms, which had dealings in a commercial way with the
warring Republics. On November 24 the Official Imperial Gazette of
Berlin had published the following note: "According to official
information British subjects are forbidden by English law to have any
trade or intercourse with the South African Republic and the Orange Free
State, or with the subjects of these two states, within their
territories, during the continuance of the present state of war."[5]
Because of this prohibition, it was pointed out, all goods sent by
English ships and intended for the South African Republic or the Orange
Free State and ships of war, even in cases where the goods were not
contraband of war, might be legally detained by the British authorities.
Attention was called to the fact that this measure might also be applied
to goods destined for ports in the neighborhood of the seat of war and
not belonging to Great Britain. German commercial circles were warned
that they should consider whether under the circumstances it was not to
their interest to avoid using British ships for transporting goods to
South Africa during the war.

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

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

These municipal restrictions obviously made illegal on the part of
English subjects and of strangers temporarily resident upon British soil
all commercial acts, from one country to the other, all buying and
selling of merchandise, contracts for transportation, as well as all
operations of exchange, or the carrying out of any contract which would
be 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 prohibitions
against trading with the enemy it was found difficult to show that the
suspected ships had in reality had dealings with the public enemy or
with its agents. The ships were not bound for a hostile port nor for a
blockaded one, but for a neutral harbor which was not even contiguous to
either the Transvaal or Orange Free State. Other Governments, although
ready to admit that it was competent for England to forbid her own
subjects to trade with the enemy, were not willing to allow their
respective subjects to suffer the loss of goods which had been shipped
in good faith. The character of the goods apparently excluded the idea
of contraband of war, and the ships themselves, since they were bound
from neutral ports to a neutral port, appeared to be acting in good
faith.


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 cargo
consisting largely of flour, canned meats and oats shipped from New
York[7]. She was allowed to proceed after a short detention by the
British authorities although goods in her cargo were plainly marked for
the Transvaal. It was realized under the circumstances that there was no
ground for the detention of ship or cargo, and in view of the fact that
no war was in progress at the time, the detention of the vessel even for
a short period would appear to have been unjustifiable. The _Maria_
called at Port Elizabeth, whence she cleared for Delagoa Bay. On October
29 she put in for coal at Durban, three hundred miles from Lorenzo
Marques, and was boarded by the commander of the English ship _Tartar_.
The _Maria's_ captain was willing to be visited and searched without
protest. According to the official report, "no guard was placed on her,"
and "the agents were willing to land all the contraband."[8] The
commander of the _Tartar_ informed them that if this were submitted to
the vessel need no longer be detained. When the _Maria_ had been brought
in and no contraband was discovered by the search, the agents of the
ship protested against the landing of that portion of the cargo
consisting of flour and other goods which they considered innocent, but
spoke of the vessel, it was alleged, as belonging to a British company
called the "American-African Line." The commander of the English cruiser
pointed out to them that British subjects could not under the Governor's
proclamation trade with the enemy, and mentioned the warning in a local
customs notice as the penalty for "vessels which carried contraband of
war or goods of whatever nature the real destination of which was the
enemy 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 as
a miscellaneous consignment of light hardware. Part of the cargo was
seized and part merely "detained." The consignment to the Netherlands
South African Railway, a thousand cases of lubricating oil, eighty-four
cases of picks, twenty cases of handles, was seized as enemy's property,
since there was sufficient evidence, it was thought, to show that these
goods belonged to the railway company, the consignees, and not to the
New York shippers, the consignors. This opinion was held on the ground
that the Netherlands South African Railway was owned by the South
African Republic.

All of the Delagoa Bay cargo including the flour and other foodstuffs
was landed and the _Maria_ put to sea. But on November 3 the authorities
at Durban were instructed by the British Foreign Office that foodstuffs
were not to be treated as contraband, and the captain of the British
cruiser _Philomel_ warned the customs that the flour should no longer be
detained. It was released and measures were at once taken for reshipping
it on the British steamer _Matabele_, when it seems for the first time
to have occurred to the customs authorities that the flour might thus
find its way to Pretoria by means of an English ship. According to the
official report: "It was then provisionally detained again. But on it
being found that the flour was _bona fide_ a part of the _Maria's_ cargo
the agents and all parties concerned were told that no further
restrictions would be placed on the shipment, but it was at the same
time pointed out that the flour was going direct to the enemy. The
Governor's proclamation against trading with the enemy was then studied
in connection with the above-mentioned permission, with the result that
agents, shippers, and shipowners all refused to ship or carry the flour
and nobody would have anything to do with it," although no objection was
made by the naval authorities to the cargo being forwarded to its
destination.[10]

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

For the detention of the _Maria_ her owners, upon the protest of the
Netherlands Government, were awarded £126 sterling as indemnity. The
consignment of flour "detained" at Durban was purchased by the English
Government at the price it would have brought at Delagoa Bay on November
2, the day on which it would presumably have reached there had no
interruption occurred.[11]

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

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

THE MASHONA.--On December 5, 1899, the _Mashona_, clearing from New York
for Delagoa Bay, was seized by the British cruiser _Partridge_ near Port
Elizabeth, seven hundred and fifty miles from Lorenzo Marques, and taken
into Table Bay, but later to Cape Town as prize on the charge of trading
with the enemy. Consul-General Stowe reported the capture, and informed
the Department at Washington that the _Mashona_ carried five thousand
tons of general cargo, including seventeen thousand bags of flour for
the 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 the
British 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_ stated
that the cargo was of the character of general merchandise and was
destined "for neutral citizens domiciled in neutral territory." It was
pointed out in the prayer of the owners of this portion of the cargo
that while the British Government might be justified in seizing her own
vessels, it appeared that the British naval authorities were illegally
jeopardizing the property of American citizens in that the vessel seized
was "under contract to deliver to the persons named in the invoices the
merchandise 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 goods
consigned to the latter firm the American shippers were unable to say
what their ultimate destination might be, but in regard to the shipment
to Delagoa Bay they were positive that the consignees were a firm doing
a large local business in Lorenzo Marques. To the best of their
knowledge it was a German firm whose members were not citizens either of
the Transvaal or of the Orange Free State. They showed that the goods
were sold on four months' time dating from November 3, and consequently
that their loss would fall upon the original shippers, who were citizens
of the United States. The fact was pointed out that additional
merchandise amounting to five thousand dollars had been purchased for
the Delagoa Bay firm, with a view to immediate shipment, but would have
to be held up and probably lost because of a situation which amounted to
a blockade declared by Great Britain over a neutral port, an act which
in the end would compel all firms in Lorenzo Marques to cease buying
American goods.[14]

[Footnote 14: For. Rel., 1900, pp. 530-533; Flint Eddy and Co. to
Hopkins 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 proper
form, and that besides the flour and other foodstuffs she carried a
consignment of lubricating oil for the Netherlands South African
Railway. This consignment was held to be enemy's property since it was
considered that the railway belonged to the Transvaal, the specific
charge against the ship being that of trading with the enemy. The fact
that a consignment of flour was billed to a Lorenzo Marques firm but
labelled "Z.A.R." created a conclusive presumption, it was thought, that
the flour was intended for the Transvaal, although its owners claimed
that the consignment was not destined for the belligerent Republic but
for 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 were
claimed as lawful prize. The cargo, it was contended, was unprotected
since it was enemy's property, and the vessel, by trading with the
enemy, had violated a regulation which rendered it confiscable. Against
this it was urged that the consignees were hostile only by reason of
domicile, and that neither the owners of the ship nor the captain had
any intention to trade with the enemy. So far as intention was
concerned, it was shown that the captain had intended to pass a bond at
Algoa Bay, one of the ports of call, undertaking not to deliver the
goods at Delagoa Bay without the permission of the proper authorities.
The three judges of the Supreme Court of Cape Colony sitting as a prize
court came to different conclusions. The Chief Justice held that the
cargo should be condemned but not the ship. One opinion was that neither
ship nor cargo should be condemned; the third that both ship and cargo
should be condemned. There were thus two justices to one for condemning
the cargo and two to one against the condemnation of the ship. The cargo
was consequently condemned and the ship released.[16]

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

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

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

With regard to the question of condemning the ship the Chief Justice
held that there was not sufficient evidence to warrant confiscation. He
cited the case of the _Hook_,[17] which was condemned in 1801, but held
that the case of the _Mashona_ was not on all fours with the conditions
of that decision. He took the view that the case of the _Mashona_ was
more nearly analogous to the cases of the _Minna_ and the
_Mercurius_,[18] and consequently declared for the restoration of the
ship.

[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 the
ground that her voyage was _contingent_ not _continuous_. The ship had
been captured on a voyage from Bordeaux, destined ultimately to Bremen,
but with orders to touch at a British port and to resume her voyage if
permitted. The _Mercurius_ (Edwards 53; Roscoe English Prize Cases
(1905), p. 15) was restored by the same judge in 1808 on the ground of
an "_honest intention_" to procure a license before trading with the
enemy.]

One justice concurred on the main point at issue, namely, that there
appeared to be "sufficient proof in the present case of an honest
intention to pass a bond at Algoa Bay not to take the goods to Delagoa
Bay except with the permission of the proper authorities.... The
presumption of an intention of trading with the enemy, arising from the
fact that the ship was carrying enemy's goods consigned to Delagoa Bay
and destined for the enemy's country, is entirely rebutted by the
conduct of all the parties interested in the ship. The claim for the
restitution 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 war
broke out, it became the duty of the master to decline to convey any
goods which, from the papers in his possession, appeared to be the
property of enemy consignees." It was contended by this justice that
"his contract of affreightment could not be fulfilled" in any event, and
he should have been aware of this fact. Further, it was urged that there
was not convincing evidence to "establish that there was no intention on
the part of the master of the ship to trade with the enemy, except with
the permission of the proper authorities. In the circumstances, such a
defense must be established by very clear proof; ... although there is
no reason whatever to impute any disloyal intention, or _mala fides_, ...
the proof of non-liability on this ground has not been made out." On
the 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 doing
so by some competent authority; and this cannot be regarded as
equivalent to proof that [the master] intended to apply for and obtain a
license before engaging in intercourse which, in the absence of the
license, was of an unlawful character. From the moment this ship left
New York harbour ... she was liable _stricto jure_ ... to seizure
and condemnation; as she was still without a license when seized,
_stricto jure_ the liability remains."[20]

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

The fate, however, of the ship itself was of interest to third parties
only in so far as its disposition involved the rights of neutrals whose
goods were on board. Great Britain's action in seizing her own ships, or
ships chartered by her own subjects, had the effect of placing a virtual
blockade upon a neutral port, for few but English ships carried for the
Transvaal or Orange Free State, a fact which bore with especial hardship
upon American shippers. The "detention" of all Delagoa Bay cargoes in
British bottoms, provided a few articles were found consigned to the
Transvaal, was a practice which was indignantly protested against by all
neutral shippers upon English vessels. The injustice which this practice
worked was forcefully brought home to the United States by an apparent
disregard of the property rights of innocent neutrals in the seizure of
two other ships at about the same time as that of the _Mashona_.

THE BEATRICE.--This ship, also clearing from New York, was reported in
December, 1899, to have been compelled by the English naval authorities
to discharge all of her Delagoa Bay cargo into lighters at East London,
some six hundred miles distant from Lorenzo Marques. It was pointed out
by the New York shippers in their protest addressed to Secretary Hay at
Washington that, according to the terms of the American and African bill
of lading, the steamship line was thus relieved of any further
responsibility, since the goods were at the risk and expense of the
consignees 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, to
Portuguese and other firms in Lorenzo Marques. The policy of insurance
did not cover war risks, and the company holding the insurance declared
that it was not responsible for any accident which might occur while the
merchandise was lying in lighters or hulks at a port of discharge which
had been forced upon the ship by the English authorities.[22] That
portion of the cargo of the _Beatrice_ which was shipped from New York
consisted of large consignments of flour, canned goods, and other
foodstuffs, but included also a consignment of lubricating oil as well
as a miscellaneous assortment of light hardware, but none of the
articles shipped were of a contraband character in the usual meaning of
that term. Part of the flour was branded Goldfields and part was
labelled Johannesburg, although the whole consignment was marked Delagoa
Bay. The American shippers averred that although they regularly sold
flour to merchants engaged in trade in various parts of South Africa
they "had never sold flour with direct or ulterior destination to the
South African Republic, by re-sale or otherwise." They made affidavit
that all of their sales had been made for the ordinary uses of life, and
that "since the war had broken out they had made no sales of flour to
merchants or others in the South African Republic."[23]

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

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

The reason assigned in the official report of the English authorities
for their action in regard to the _Beatrice_ was that she "contained
large quantities of goods, principally flour, destined for the South
African Republic, which the customs authorities at East London required
should be landed at that port." Since the cargo was stowed in such a
manner as to make it impossible to land goods destined for the Republic
without also discharging goods intended for Portuguese East Africa, it
was alleged that the master and agents of the ship preferred to land the
whole 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 so
landed had been permitted from time to time "for the purposes of local
and _bona fide_ Portuguese consumption." The consignment to the
Netherlands South African Railway was held to be enemy's property since
it was considered that the railway was owned by the Republic. The
specific reason assigned for the arrest of the steamer was "that the
_Beatrice_ being a British ship, was by carrying goods destined for the
enemy's territory, illegally engaged in trade with the enemy in
contravention 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 that
it established a new prohibition, but was merely explanatory of an
accepted 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 York
for South African ports was reported to have been seized at Port
Elizabeth, seven hundred and fifty miles from Lorenzo Marques. The
_Sabine_ was also a British ship with Mossel Bay, Algoa Bay, and Durban
among her ports of call, and carried shipments aggregating thirty to
forty thousand dollars in value made by New York merchants to these
ports, all of which are in British territory. But in addition to the
allegation 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 and
examined the ship upon the specific charge of violating a municipal law
asserted that the _Sabine's_ "papers were not in proper form and that
goods were found on board which, though shipped to ports this side were
marked to persons residing in Boer territory." The case was viewed by
the English Government "as a very suspicious one under municipal law,
but, as the evidence was not very complete, they gave the vessel the
benefit of the doubt."[25] After a short detention both ship and cargo
were released.

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

The news of the reported seizures aroused considerable popular feeling
in the United States. In the Senate a resolution was introduced which,
as finally amended, read: "Whereas it is alleged that property of
citizens of the United States not contraband of war has been lately
seized by the military authorities of Great Britain in and near Delagoa
Bay, South Africa, without good reason for the same, and contrary to the
accepted principles of international law; and, Whereas it is alleged
that property of citizens of the United States is now unjustly detained
by the military authorities of Great Britain, in disregard of the rights
of the owners of the same; therefore, Resolved by the Senate of the
United States, That the President is hereby requested to send to the
Senate, if not, in his opinion incompatible with the public interests,
all information in possession of the State Department relating to the
said alleged seizure and detention, and also to inform the Senate what
steps have been taken in requesting the restoration of property taken
and 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 stricken
out after a discussion as to whether the Secretary of State should be
"_directed_" or the President be "_requested_" to furnish the desired
information. It was realized that the language of the expunged clause,
"and whether or not the Department has informed the proper British
authorities that, if said detention is persisted in, such act will be
considered as without warrant and offensive to the Government and people
of the United States," was neither diplomatic in its tone nor warranted
by the circumstances. Amicable negotiations were still in progress, and
those negotiations were concerned with a discussion of the very question
which would thus have been decided in the affirmative by the Senate,
namely, that the seizures had been contrary to the principles of
international law. Consequently the resolution only declared that it was
"alleged" that Great Britain had departed from the strict principles of
international law, and it was not intimated that her persistence in such
acts would probably require a resort to more forcible measures than mere
protest on the part of the United States.

A motion had been made that the resolution be referred to the Committee
on Foreign Relations, where it was hoped by certain members of the
Senate that it would die a natural death, an end which would have been
deserved under the circumstances, since the event to which the
resolution referred was then in the course of diplomatic consideration
and nothing had indicated that the State Department would not be able to
secure protection for the interests of all citizens of the United States
as neutrals during a recognized belligerent contest. An unsettled
question of international law was at issue between Great Britain and the
United States, and was being dealt with as fast as official information
reached the British Foreign Office from the scene of the occurrences
which were alleged to have been in contravention of established
principles. Flour or any other foodstuff might or might not be
contraband of war according to the particular circumstances of the case.
As a general rule products like flour shipped from a neutral State are
not contraband, but it is always a question of fact whether the
immediate destination of such flour is for hostile purposes, namely, the
sustenance of a belligerent army. If flour or foodstuffs generally were
so destined they became contraband of war for the particular case.

Not less than twenty thousand barrels of flour had been shipped by
citizens of the United States upon the three steamers, _Maria_,
_Mashona_, and _Beatrice_, and the proposer of the resolution insisted
that the Senate was entitled to know in what manner the rights of the
United States were being asserted in view of the obvious hardship which
_bona fide_ neutral shippers had thus suffered. He urged that the
seizure of property of citizens of the United States by one of the
belligerents was "a thing which profoundly affects the American people;
it affects every corn grower, every wheat farmer, the owner of the
cattle upon a thousand hills, the mill man, the middleman, everybody who
is interested in producing and exporting the products of the farm and
the field is interested in this question and is entitled to know what
has 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 in
the next morning's papers, for otherwise it must go down in history as a
burst of eloquence wasted upon unhearing ears. Had he been able to pass
his resolution so worded as to "_direct_" the Secretary of State to
throw open the entire files of the Department's foreign correspondence
for the Senate's inspection, instead of merely "_requesting_" the
President to furnish such information as the Senate desired "if not, in
his opinion, incompatible with the public interest," the result would
have been practically the same. In either event the President would have
controlled the situation, since he can not be compelled to furnish
information to the Senate when he considers it incompatible with the
public interest to do so. The only power possible to be exercised by the
Senate over the Executive in such a case is that of impeachment. And
should impeachment be possible or advisable the process could be carried
through as well with the words, "if not, in his opinion, incompatible
with 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 negotiations
are pending between the Executive Department and foreign Governments
over any question which is at issue. Should a resolution "_requesting_"
information upon any subject be deemed necessary, it should obviously be
addressed to the President and, merely for the sake of courtesy, with
the usual _caveat_. It should not be "directed" to the Secretary of
State, for that official stands in a different relation to the
legislative department from that of the secretaries of any of the other
departments. The Secretary of State is not required by law to report to
Congress as are all the other Cabinet officers. He has been exempted
from that requirement for the reason that his duties are mainly
diplomatic. Negotiations carried on with foreign Governments upon
matters of a delicate character might involve serious embarrassments if
during their pendency the successive steps were reported to
Congress.[29] The power of the President in consultation with the
Secretary of State to deal with foreign Governments at least up to the
last moment and final consent of the Senate has made it possible for the
United States to preserve a fairly uniform foreign policy. For despite
the repeated changes of administration and of domestic policies the
general foreign policy has been closely modeled upon the expedient
course of absolute neutrality laid down by Washington. Were it a
practical requirement of the Constitution that all foreign
correspondence upon any important question should be at once laid before
the Senate, it is reasonable to suppose that few treaties or important
conventions would finally be ratified. In a question of international
law such as that under discussion between the Governments of Great
Britain and the United States, it would have been extremely unwise
during the negotiations for the Senate to interfere in any way with the
regular 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 to
make an equitable settlement for the losses which citizens of the United
States had incurred as a result of the seizures of British ships
carrying American goods from New York to Delagoa Bay.


THE LEGALITY OF THE SEIZURES.

While the fruitless discussion had been in progress in the Senate
Secretary Hay had been dealing with the question in such a manner as to
safeguard all American interests, but at the same time with a full
consideration of the necessity for protesting against any undue
extension of belligerent rights. Immediately following the seizure of
the British ships clearing from New York with American goods on board he
had requested a prompt explanation. In his instructions to Ambassador
Choate he said: "You will bring the matter to the attention of the
British Government and inquire as to the circumstances and legality of
the seizures."[30] And later, Mr. Choate was further instructed to
ascertain "the grounds in law and fact" upon which the interference with
apparently innocent commerce between neutral ports was made, and to
demand "prompt restitution of the goods to the American owners if the
vessels were seized on account of a violation of the laws of Great
Britain, as for trading with the enemy; but if the seizure was on
account of the flour ... the United States Government can not
recognize its validity under any belligerent right of capture of
provisions and other goods shipped by American citizens to a neutral
port."[31] Mr. Hay pointed out the fact that the American shippers had
produced evidence intended to show that the goods were not contraband in
character, and should this prove to be true prompt action was to be
requested on the part of Great Britain in order to minimize as far as
possible 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 10
in a note handed to Mr. Choate: "Our view is that foodstuffs with a
hostile destination can be considered contraband of war only if they are
supplies for the enemy's forces. It is not sufficient that they are
capable of being so used. It must be shown that this was in fact their
destination at the time of their seizure."[32] Lord Salisbury verbally
added that the British Government did not claim that any of the American
goods were actual contraband, but that the ships had been seized on a
charge of trading with the enemy, and it was intimated also that "an
ultimate destination to the citizens of the Transvaal, even of goods
consigned to British ports on the way thither, might, if the
transportation were viewed as one continuous voyage, be held to
constitute in a British vessel such a trading with the enemy as to bring
the vessel within the provisions of the municipal law."[33] He asserted
that the offense was cognizable by a prize court alone, but admitted
that "if the owners of the cargoes, being neutrals, claim that they are
innocent, the cargoes should not be condemned with the ship but should
be delivered over to them."[34] He suggested that the ordinary course
would be that the owners should claim the cargoes in the prize court,
where the cases would be considered and properly dealt with on their
merits.[35] The owners would be requested, he said, to prove that they
were the _bona fide_ owners by submitting bills of lading and invoices
to the court. It was intimated that the American flour which had been
removed from the ships was not detained in any way but was perfectly
open to the owners to make whatever arrangements they pleased for its
immediate removal. If they considered themselves aggrieved by the action
of the English authorities in causing the flour to be landed it was of
course open to them to take such proceedings against the persons
concerned as they were advised might be appropriate under the
circumstances.[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 other
portions of the work the claims made by innocent or interested parties
are considered.]

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

Mr. Choate at once retorted that in such a case the United States would
very probably send the bill to the British Government. The fact was
pointed out that the operation of the English law did not lessen the
obligation incumbent upon Great Britain to restore the goods to their
_bona fide_ neutral owners or to the neutral consignees. Although the
permission had been given to the owners to come and take their goods at
the ports of detention, short of the original port of destination, this
permission could not be considered as discharging the obligation to
restore the goods. The representative of the United States insisted that
nothing short of delivery at their port of consignment would fulfill the
English obligation in a commercial sense such as to give the goods the
value intended. It was clearly shown that under the application of the
English municipal law the goods in question became as inaccessible to
their owners for all the purposes of their commercial adventure "as if
they had been landed on a rock in mid-ocean."[37] In his criticism of
the English position, Mr. Choate said: "The discharge from the vessel
and landing short of the port of destination and failure to deliver at
that port, constitute wrongful acts as against all owners of innocent
cargoes."[38] And he pointed out the inconsistency of the position since
it was not claimed that any but British subjects could be guilty of any
violation of the English prohibition against trading with the enemy. He
was accordingly instructed to insist that the obligation rested upon the
British Government to indemnify the neutral owners and make good to them
all damages and loss sustained by the treatment to which they had been
subjected.

[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 cause
for the seizure and detention for the purpose of examination before a
prize court upon the suspicion of trading with the enemy. But the
decision of the judges seemed to indicate that such a suspicion was not
founded upon facts which could be produced before the courts. The
vessels were released upon the ground that they had not in fact traded
with the enemy nor intended to do so except with the express or implied
permission of the British Government. In view of the causes put forward
for the seizures and of the reasons stated by the authorities for the
subsequent release of the ships it would seem that the cargoes, "except
in so far as contraband might have been involved would have the same
status as though found aboard British ships trading between neutral
ports where there was no question of a belligerent in the neighborhood
of the port of detention."[39] The prize court _did_ decide that there
was no question of contraband involved, and the American representative
pointed out the fact that the seizures not having been made or justified
on account of contraband goods, the only effect of the British decision
would seem to be either that Great Britain possessed the right to seize
neutral and non-contraband goods aboard British vessels trading between
neutral ports, or else the American owners of such cargoes would be
entitled 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 the
misapprehension which underlay the statement of alternatives, namely,
that neutral and non-contraband goods were not free in British bottoms
between neutral ports, or else full compensation must be made to the
owners for their seizure. It was asserted that the British Government
had neither exercised nor claimed any such right as that which was
indicated, nor had they _seized_ neutral and non-contraband goods. He
declared that the goods were not seized. Their passage to Lorenzo
Marques was merely interrupted, and by this interruption they were
detained only to the extent that their being on board the ship which had
been arrested made their detention unavoidable. It was further alleged
that had the prize court held that the arrest of the ships was not
justified they would "_presumably_ have awarded damages against the
captors of the ships and the damages would _presumably_ have been so
calculated as to enable the ship to meet the claims of merchants arising
out of the unjustified interruption of the voyage."[40] The fact was
alleged that the court had not so held and that it appeared that the
ships should, therefore, bear the consequences of the arrest and meet
the merchants' claims. By the law of the flag under which the ships
sailed they could not carry goods destined for the enemy. If they
shipped such goods they should bear the consequences. Among those
consequences was the delaying of the goods until such time as they could
be placed on a ship that could legally carry them on to their original
port 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 the
words of Mr. Hay, were "as inaccessible to their owners as if they had
been landed on a rock in mid-ocean," since no steamers not belonging to
British lines plied between the ports of Cape Colony and Delagoa Bay.
But there seemed little chance of securing a revision of Great Britain's
decision, which was based upon the principle that she might deal with
English subjects and with English ships in accordance with the law of
the flag under which those ships sailed. Mr. Hay, therefore, only
endeavored to secure every possible guarantee for American interests
involved, but incidentally emphasized the view that, although England
might use her own as she saw fit she must show just ground for all
injuries suffered by innocent American shippers. Instructions were sent
to Mr. Hollis, the United States consul at Lorenzo Marques, that he
should investigate the seizures and make every effort to protect the
property of American citizens, and later he was urged to ascertain the
facts concerning the detention of American flour on board the ships
arrested 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 drafts
drawn against the various shipments from New York would be protested for
non-payment by the parties on whom they had been drawn at Delagoa
Bay.[42] Consequently the title to the property in such cases was vested
in the American shippers, and they urged their Government to see that
their interests were protected against what they considered an undue
extension of belligerent rights against ordinary neutral trade from one
neutral port to another. Mr. Hay pointed out the obvious injustice of
the goods being in the prize courts with the vessel, even granting that
the ship as a common carrier of international commerce had violated the
law of its flag, on the remote possibility of having carried for the
enemy. He insisted that, although the shippers might be required to
furnish invoices and bills of lading, they should not be sent to the
prize court for their property. Lord Salisbury, however, contended that
the prize court had complete control of the situation, and that any
neutral shippers who were innocent could secure the release of their
goods only by applying to the court with the proper evidence of
ownership. The injustice of the vigorous enforcement of this rule of
prize law was obvious, and the demand was made that the goods should be
released by order of the proper British law officer and not be left to
the mercy of the prize court.[43] It was urged that since the ships had
been seized because of a violation of the municipal law of Great
Britain, for trading with the enemy, and since the seizure and detention
of the flour and other goods was only incidental to the seizure of the
ships, the flour, to which no such offense could be imputed, could not
under the circumstances be admitted to be subject to capture because not
contraband of war. Upon these grounds prompt restitution to the American
owners 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 the
seizure of the American goods, for to all intents and purposes they were
_seized_ although it was considered by Great Britain that they had
merely been _detained_ as an incident of the seizure of the ships on
which they were carried. Since the flour was sold delivered at Delagoa
Bay it was therefore the property of the United States shippers until
the obligation of delivery was fulfilled irrespective of the drafts made
against it on Delagoa Bay. Upon the return of these drafts unpaid the
flour 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 course
of business as for a number of years past, shipments being made of so
many bags each month to their regular users who anticipated their
ordinary requirements. The consignees, it was urged by the American
shippers, were reputable merchants in Delagoa Bay, and the consignments
were not of an unusual character but were a part of the ordinary
commerce with the East coast.[46] It was admitted that certain of the
consignments had been to residents of Johannesburg, but it was at the
same time asserted that the consignees were legitimate flour merchants
who were not contractors for the Transvaal Government at the time the
purchases 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 possibly
their shipments had been confused with those of an English firm, Collier
and Sons, of Bristol. It was alleged to be a notorious fact that this
firm had made large shipments of flour to the Transvaal Government; that
Arthur May and Company were the agents of the firm in the Republic, and
that the Bristol firm had shipped on the same steamers on which American
goods were carried. A.J. Toomey, President of the Pennsylvania firm, in
alleging these facts pointed out that he mentioned only what was well
known in shipping circles and did so merely to establish the fact that
there had been no wrong intent with reference to his shipments. He urged
that the question of the justice of indemnification should be settled,
leaving the respective rights of consignors or consignees to the
proceeds 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 the
charge of trading with the enemy, and where the flour was not held as
contraband, and was not claimed to be contraband, and under the
circumstances could not be involved in the specific charge against the
ship, it was manifestly a great hardship for the owners of the flour to
be compelled to go into the prize court at a port short of the original
destination even for the purpose of proving their ownership, which he
insisted would involve costs and damages for the detention and possible
deterioration in value.[49] It was intimated that aside from the
pecuniary features of the situation it was of primary importance to
insist upon the principles involved, with a view to preventing an
extension of belligerent rights to the detriment of all neutral commerce
in time of war. Emphasis was therefore placed upon the point that
evidence must be shown that the goods were really for the supply of the
enemy's forces and that this was in fact their destination at the time
of their seizure. The fact was pointed out that otherwise the action of
the British authorities seemed to imply the right to exercise an embargo
on the sale and delivery of non-contraband goods in the ordinary course
of trade with the people of the Republics. It was intimated that this
was inconsistent with the view of contraband expressed by the English
Government, and wholly inadmissible from the point of view of the United
States.[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 flour
shipped to buyers at Delagoa Bay and had prevented it from reaching that
point in time to meet a good market. Consequently, in view of the fact
that it was not sold for any purposes hostile to Great Britain, it was
urged that the latter should not be allowed to consider herself relieved
of any responsibility for indemnity or direct loss assumed by the
shippers, or for any indirect loss for which the shippers might have to
compensate the buyers on account of the diversion and detention. It was
the opinion of the United States that the mere release of the flour to
qualified owners did not meet the obligation in the case because the
owners could not possibly take the delivery of the flour owing to the
obstacles of war at the points where the goods lay. Even if they could
do so they would naturally suffer considerable loss by the condition of
the market and by any diminution in value that might have occurred to
the flour through climatic deterioration.

The American State Department, therefore, suggested as the only
equitable plan apparent under the circumstances that Great Britain buy
the flour and other innocent goods at their invoice price and pay over
the proceeds of the purchases to those persons who could prove a just
claim for its value. An additional sum was also asked as "reasonable
compensation" for loss of market and other losses that might have been
suffered by American interests.[51] In other words, the English
Government should use the flour, pay the costs and indemnify the owners
reasonably, since the latter were entirely innocent and had depended
upon the usual rights and immunities of neutral shippers in time of war.
The fact was pointed out that the situation was causing an uncertainty
and hesitancy in business circles which was detrimental to all American
interests. Although a number of the consignments were being delivered at
Delagoa Bay, presumably by English ships, it was alleged that the
seizures and the unforeseen attitude of Great Britain had compelled all
later shipments to go by way of Hamburg or Bordeaux when seeking the
ports of South Africa in the way of ordinary neutral commerce in order
to avoid using British bottoms as a means of transportation. Many of the
drafts had been returned unpaid and others were expected in due course,
and whether paid or not they would finally have to be lifted by the
shippers from the United States, since they were the final recourse.[52]
All delay tended to reduce the value of the goods, which were
perishable, on account of the climate and because of Cape Colony duties
and 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 Great
Britain for the value of the goods at the port of original destination
at the time they would have arrived there had the voyage not been
interrupted. And the American representative urged that it would be
advisable for all American shippers who were interested to agree to sell
upon the same terms with a view to securing an arrangement which would
include all neutral American property. He suggested that where the title
to property was doubtful both shipper and buyer might unite in the sale,
since this course was preferable to incurring questions as between
consignors 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 current
prices for the reason that prices were doubled at Delagoa Bay after the
seizures, but it was considered that the price there on the day of the
seizures was not unreasonable. Great Britain was willing to buy, but
emphasized the point that the alleged owners must prove their title to
ownership beyond a doubt as an essential condition of the arrangement,
since the Government could not incur the risk of paying one man only to
have another appear later and prove that he was the real owner. Fears
were expressed that the question of ownership would cause trouble,
although the regular shipping documents by which the goods had gotten
into the ships, it was thought, should be sufficient proof provided the
joint 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 libel
for trading with the enemy declared against the ship, but the plea of
the American owners was heard, that the rules of prize procedure should
not be so rigorously enforced in the present instances, since such an
interpretation would have led to obvious injustice by requiring innocent
American owners to appear before the court to prove the title to their
property.[55] Such a requirement, it was realized, would have led to
difficulties of an almost unsurmountable character under the
circumstances. Claimants would have had to submit evidence showing a
_bona fide_ American citizenship and an actual title to the ownership of
the goods at the time they were seized. Within the rules of prize
jurisdiction the consignee on whose account and at whose expense the
goods were shipped is considered the owner of such goods during the
voyage. And as a corollary the further rule is suggested that the right
to claim damages caused for an illegal seizure would be in the owner. In
the prize court the delay caused by all such questions as between
consignor 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 any
basis for a claim for indirect loss sustained by an American shipper
growing out of the sale on credit to citizens of the Transvaal. It might
be a question, too, whether the consignor might, notwithstanding the
seizures, be able to recover at law the full contract price of the goods
shipped prepaid to the consignee, and if so, whether the seizure could
be considered legally as a wrong against the American consignor. And
even granting that the latter were unable to recover at law from the
consignee, the question would still remain whether under all the
circumstances such inability on the part of the American consignor could
be legally imputable to the act of the British Government in making the
seizure. The question might also have arisen where an agent had bought
for the Transvaal Government on credit, so that the title passed when
the goods went on board and the goods were discovered to have been
contraband, whether an American shipper might not appear to have been
privy to the real character of the purchases. In such a case the United
States Government could hardly have championed the cause of a party who
had shipped contraband. A prize court is filled with pitfalls of the
kind, but the diplomacy of Secretary Hay, backed by the prestige of the
United States and a reciprocal feeling of friendship between the two
nations, was able to avoid all such questions by inducing Great Britain
to agree upon a settlement without compelling the claimants to go into
the prize court. Although it was pretty well ascertained that no actual
contraband in the usual sense of the term had been carried from America
by the ships which were seized, difficult questions were thus avoided as
between liens and general ownerships which might have arisen had
American shippers been compelled to go into court.

It is not a universal rule where the shipper has not been paid for his
goods that the property is still in him, so as to constitute him the
owner in a prize court, or for the purposes of sale. By the terms of
sale and shipment he may not have retained a lien on the goods. But in
any case as a rule the title of the absolute owner prevails in a prize
court over the interests of a lien holder, whatever the equities between
consignor and consignee may be.[56] Consequently the policy adopted by
Secretary Hay in demanding that Great Britain should settle with all
American shippers on an equitable basis without forcing them to take
their chances in a prize court was the wisest course that could have
been 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 goods
had not been liable to seizure except as a result of the libel attaching
to the ships. But any claims for damages due to the owners of the
cargoes on account of the failure of the vessels to deliver at the port
mentioned in the freight contract, it was asserted, should be made
against those who entered into or became responsible for the execution
of the contract for the delivery which they failed to perform, and the
assumption that such damages could be sustained at law would depend on
the 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 of
the flour and other goods, since their detention was due entirely to the
circumstance that the ships were not able to complete their voyages, and
the fact that they could not complete their voyages was due to the
circumstance that such voyages were illegal by the law of the flag under
which they were sailing.[57]

[Footnote 57: For. Rel., 1900, pp. 604-605; Salisbury to Choate, March
3, 1900.]

Although the financial settlement which Great Britain was willing to
make was accepted by the United States, this acceptance did not imply an
acquiescence in the view expressed by the English Government with
reference to the conditions under which flour and other foodstuffs might
become contraband of war, nor in the doctrine of continuous voyages as
applied by Great Britain to trading with the enemy. It was preferred at
Washington to follow the usual rule and avoid passing upon hypothetical
cases until occasion had called them into actual existence. The problem
which had been before the Department of State was, not to force Great
Britain to declare herself finally upon broad questions of international
law, nor to express the final attitude of the United States upon
questions which were not immediately at issue, but to meet the demands
of American shippers and secure their immediate interests by some
equitable agreement with Great Britain. The arrangement agreed upon,
therefore, met only the necessity of the case immediately in view. The
United States Consul-General at Cape Town was to arrange with Sir Alfred
Milner, the British High Commissioner in South Africa, for the release
or purchase by the British Government of any goods owned by citizens of
the United States, which, if purchased, were to be paid for at the price
they would have brought at the port of destination at the time they
would have arrived there had the voyage not been interrupted.

Against certain articles, especially the oil consigned to the
Netherlands South African Railway, an allegation of enemy's property was
justly 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 of
ownership upon the consignees, who were instructed to present their
claims through their respective governments. But it should be noted that
in acceding to the American demands by purchasing the goods, the British
Government emphasized the fact that the act was purely _ex gratia_ on
the part of England. The British representative clearly stated that the
goods had been legally detained and that it was open for the owners to
come and take them upon proof of ownership before the prize court. It
was pointed out that the fact that none but British ships ran between
Cape Colony and Delagoa Bay, although an unfortunate circumstance, was
one 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 no
matter upon whom the inconvenience might happen to fall. Lord Salisbury
said: "It must be distinctly understood that these payments are made
purely _ex gratia_ and having regard to the special circumstances of
this particular case. No liability is admitted by Her Majesty's
Government either to purchase the goods or to compensate ... for the
losses or for the expenses ... incurred."[58] The view held by the
English statesman was that Great Britain's concession in these cases
should 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 the
different seizures was generally considered a menace to neutral
commercial interests should the British position be accepted as a
precedent for similar cases that might occur. The danger of such a
precedent had been realized by Secretary Hay and throughout the
negotiations he had dwelt upon the fact that while the protection of
American interests was the end immediately sought, the principles which
underlay the disposition of the particular cases were of the greater
importance.

Lord Roseberry, too, called attention to the danger of the precedent
should England determine to treat foodstuffs in general as contraband of
war. It was pointed out, however, that in the seizures of foodstuffs
near Delagoa Bay the question of contraband did not necessarily arise,
since all trade with the enemy, even in articles the most innocent, was
forbidden under heavy penalty. The seizure of certain classes of
foodstuffs as of a contraband character did not of necessity involve the
principle of treating all foodstuffs as contraband of war. The English
view was that it had long been recognized that a belligerent might
discriminate between foodstuffs obviously intended for the commissariat
of an army in the field and foodstuffs which might be properly imported
for the use of the non-combatant population.

The consensus of opinion, however, seems to be that while there may be
reasonable ground for including tinned or canned meats and the like in
the former category, flour naturally belongs to the latter class, and it
has been pointed out that neither the British Government nor any other
has the power of treating what it pleases as contraband without
reference to the prize court, with which alone the decision rests. The
prize courts of all countries have held at different times that
foodstuffs under certain circumstances are contraband, as, for instance,
where they are intended for the supply of a belligerent garrison as well
as in less obvious cases, but any decision which considered foodstuffs
generally as contraband would be disquieting to all neutral interests.

One writer has asserted that such an innovation would not be alarming to
Great Britain as long as she remained predominant at sea, since the more
effectual her sea power were declared to be in preventing sustenance
from going over sea to her enemy the better it would be for English
predominance. It is believed by this writer that during the existence of
this supremacy at sea she would be able to protect the passage of
general foodstuffs from foreign countries to her own ports. He
concludes, however: "Of course if we lose our predominance at sea it is
another 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 under
very exceptional circumstances where they are for the immediate supply
of the enemy's army or navy, and in most cases of this kind they can
usually be confiscated as enemy's property without a direct implication
of a distinctly contraband character. In other words, the use for which
they are intended may give reasonable ground for the conclusive
presumption that they are for the enemy's immediate supply, whether the
title 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 the
particular country which has made the seizure. The decision should be
based upon a careful examination of the evidence which is submitted to
the court, and not presumed from the fact that the political power has
exercised the belligerent right of visit, search and detention. The
final decision of confiscation rests with the prize court.

By way of recapitulation it may be pointed out that the goods seized or
detained by the English authorities in South African waters were shipped
by American merchants and manufacturers, many of them on regular monthly
orders to alleged reputable merchants in Lorenzo Marques, Delagoa Bay,
in Portuguese territory. Certain consignments were intended for alleged
reputable firms in Johannesburg, South African Republic. The articles
composing the cargoes of the ships were of the general character of
foodstuffs, chiefly flour, canned meats, and other food materials.
Lumber, hardware and various miscellaneous articles generally considered
innocent in character were also included. There was a consignment of
lubricating oil to the Netherlands South African Railway, the latter
company held to be the property of the Transvaal Government, and a like
consignment to the Lorenzo Marques Railway, a Portuguese concern. At
first the seizures which occurred at points between Cape Colony and
Delagoa Bay were supposed to have been made on account of contraband.
Later Great Britain declared that the ships had been seized because of
the violation of a municipal ordinance forbidding British subjects to
trade with the enemy. The _Mashona, Beatrice_ and _Sabine_ were British
ships sailing under the English flag. The _Maria_ was a Dutch vessel
sailing under the flag of Holland, but was supposed by the English
authorities to have been under charter to an English firm. In the latter
case the ship would have been liable to the English law, but for the
mistake the owners of the ship as well as the owners of the cargo were
indemnified by the English Government. The seizure of the cargoes of the
British ships was declared to have been merely an unavoidable incident
of the seizure of the alleged guilty ships. Compensation was made to
American shippers by the purchase of the goods. The consignment of oil
to the Netherlands South African Railway was confiscated as enemy's
property.

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

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

The United States declared that the validity of the right to seize goods
on the ground of contraband could not be recognized "under any
belligerent right of capture of provisions and other goods shipped by
American citizens in the ordinary course of trade to a neutral
port."[61]

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

England declared: "Her Majesty's Government have not admitted liability
in respect of any claims for loss or damage sustained ... in
consequence of the delay in the delivery of the ... goods. But they
have offered to purchase the flour on board by United States citizens.
Claims for redress for the non-delivery of the cargo appear to be a
matter for settlement between such claimants and the ship which
undertook to deliver. British subjects who owned goods on board, having
no right to trade with the enemy, are not in the same position as
foreign owners. The latter are not guilty of any offense in trading with
the enemy from a neutral country unless the goods are contraband and are
found on board a British ship in British territorial waters or on the
high 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 to
extend the accepted doctrine of continuous voyages. She expressed
herself as follows: "An ultimate destination to citizens of the
Transvaal even of goods consigned to British ports on the way thither,
might, if viewed as one "continuous voyage" be held to constitute in a
British vessel such a "trading with the enemy" as to bring the vessel
within 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 only
such [British] ports ... the port authorities may presumably, and are
assumed to be bound to, prevent transshipment through British territory
of contraband destined for the Boers."[64]

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

No contraband was shown, and the attempt which Great Britain made to
extend the ruling of the Supreme Court of the United States in 1863 so
as to apply to trading with the enemy cannot be considered to have been
successful. The questions of international law involved in the seizures
of flour and foodstuffs generally were not answered by the final
arrangement between the Governments concerned. In his Message to
Congress in 1900 President McKinley deplored the fact that while the war
had introduced important questions the result had not been a "broad
settlement of the question of a neutral's right to send goods not
contraband _per se_ to a neutral port adjacent to a belligerent area."

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