Neutral Rights and Obligations in the Anglo-Boer War
by
Robert Granville Campbell
Part 2 out of 3
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), Sec.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, Sec.427; Vattel, Droit des gens, III,
Sec.110; Calvo, Droit international, 3d Ed., III, Sec.Sec.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
Klueber, 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 Neuchatel 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, Sec.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 veritable propriete ...
le territoire neutre doit etre a l'abri de toutes les entreprises des
belligerants de quelque nature qu'elles soient; les neutres ont le droit
incontestable de s'opposer par tous les moyens en leur pouvoir, meme par
la force des armes, a 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 a la rencontre de son ennemi,
traverser avec ses armees 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 eleves contre des principes dans lesquels ils entrevoient la
negation implicite des droits et des devoirs stricts de la neutralite. A
leur yeux, la nation neutre qui consent au passage des troupes de l'une
des parties belligerantes manque a son caractere et donne a l'autre
partie un juste motif de lui declarer la guerre."[25]
[Footnote 23: Calvo, Sec.2344.]
[Footnote 24: Ibid., Sec.2345.]
[Footnote 25: Ibid., Sec.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 Shire, 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
Shire, 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 L25,000 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 fuer 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 expedies a
destination d'un port neutre que pour mieux venir en aide a l'ennemi, il
y aura contrebande de guerre, et la confiscation sera justifiee." Droit
Int. Codifie, French translation by Lardy, 1880, 3d Ed., Sec. 813. One of
the two cases cited in support of this opinion is that of the
_Springbok_, but in Sec.835, Rem. 5, the following statement is made: "Une
theorie fort dangereuse a ete formule par le juge Chase: 'Lorsqu'un port
bloque est le lieu de destination du navire, le neutre doit etre
condamne, meme lorsqu'il se rend prealablement dans un port neutre, peu
importe qu'il ait ou non de la contrebande de guerre a 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 Buelow, 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 Buelow 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 Buelow,
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 Buelow 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 Buelow 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 Buelow 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_, L20,000 sterling, together with an additional sum of L5,000
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 L4,437 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 Buelow 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), Sec.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), Sec.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 L126 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
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