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

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

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

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

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

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

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

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

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

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

It was claimed, however, that of the imports of L30,500 to Delagoa Bay during December there had been forwarded to the Transvaal goods valued at not less than L21,000. And it seemed evident to England, despite the more stringent port regulations, that the number of foreigners daily entering the Transvaal by way of Lorenzo Marques was far in excess of the number which would be desirous of going to Pretoria for peaceful purposes. Mr. Pott, it was still alleged, was acting as the head of a Boer organization for facilitating the entrance of men desiring to enlist with the Boer forces. He was consequently cautioned in January by the Portuguese Governor that if he recruited for the Boer forces or was detected doing anything inconsistent with the neutral obligations of Portugal, a request would be made to the Netherlands Government to have him transferred to another field. The Portuguese authorities at the same time began a closer supervision of the persons who were allowed to enter the Transvaal from Portuguese territory. The previous restriction that passports be signed by the respective consuls of persons leaving for Transvaal territory was considered insufficient, and the consuls of the different countries represented at Lorenzo Marques were informed that they must personally guarantee that the applicants whom they endorsed were not military men, and were not proceeding to assist the Boer forces in the field.

These restrictions, while giving evidence of Portugal's efforts to see that the neutrality of the port was respected, did not satisfy the English authorities. The latter still alleged that no doubt existed as to the fact that Lorenzo Marques was being used by Boer agents as a recruiting station for the Transvaal forces. It was asserted that large numbers of "men of military stamp" landed daily at Lorenzo Marques from all parts of Europe, and were allowed to proceed to the Transvaal for the purpose of either actually enlisting with the Boers or working the government mines. It was alleged, too, that a number of these newcomers were "smart looking men," evidently officers. The majority, however, were of a low class, mostly penniless adventurers. On February 2 the report was made to the English authorities that twenty of the better sort, many wearing riding boots and carrying field glasses, had left Lorenzo Marques for the Transvaal, and as tending to throw suspicion upon the purpose of their journey, a Transvaal detective was "most assiduous" in his attentions to them.[10] The influence of the consul of Holland largely defeated all efforts to stop entirely the imperfect fulfillment of the duties of neutrality incumbent upon the port.

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

At other places any attempts to convey prohibited goods into the Transvaal were summarily stopped. Arms and ammunition which the Boers attempted to land at Inhambane were seized by the Portuguese customs authorities on the ground that they were consigned under a false description. The consignment was not a large one and the attempt was evidently made as an experiment. This incident, too, indicates the extremity to which the Transvaal authorities had been reduced by the increased watchfulness at Lorenzo Marques, for the distance from the port of Inhambane to the Transvaal could be covered only by native carriers and required fourteen days for the trip. The difficulties in evading the customs surveillance at Lorenzo Marques had also been increased by the fact that most of the steamship companies which had at first employed the Dutch consul as their agent had later relieved him of this duty. But, notwithstanding the continued protests by England, the Hague Government seemed reluctant to take any official notice of the evident partiality of its consular agent. With reference to the English protests the Administration took the view that while acting as the representative of the Transvaal and Orange Free State during the war Mr. Pott was only fulfilling the duties incumbent upon him in this triple capacity.

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

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

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

By August, 1900, it had become evident that the Boer hopes of bringing the war to any sort of favorable conclusion were doomed to failure. On August 4 all the customs officials at Lorenzo Marques were dismissed and their places filled by military officers, and a force of twelve hundred men was sent out from Lisbon two days later. The Portuguese frontier was put under a strong guard and all Boer refugees who arrived were summoned before the Governor and warned against carrying on any communications with the Transvaal Government or with the Boer forces still in the field. Notice was given them that if they were detected in such transactions they would be sent out of Portuguese territory and the right of asylum denied them. And in the further performance of her neutral duties at such a time Portugal assumed an entirely correct attitude.

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

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

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

M. Beaufort admitted that this had been the attitude of the Portuguese Government, but asserted that he had not cared to suspend Mr. Pott without an inquiry, and for this purpose had merely granted him leave of absence for three months. This action, he said, had not been favorably received in Lisbon, and he had therefore thought it necessary to warn the Portuguese Government that the withdrawal of the consul's exequatur would be considered an unfriendly act. But notwithstanding the warning, the consul's credentials had been cancelled by the Lisbon Government. As a consequence of this act M. Beaufort had requested the Dutch Minister at Lisbon to come to the Hague that he might take part in a personal interview with the consul under suspension. Later, M. Beaufort stated that the specific incidents upon which Mr. Pott's conduct had been arraigned were the illegal importation of heliographic apparatus for the Transvaal artillery and a wrongful grant of passports in his dual capacity as consular agent for Holland and the Republics.[12]

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

In the end diplomatic relations were resumed between the two Governments. Holland, after an investigation of the charges against her consul, acquiesced in the action of the Lisbon Government. But the incident served to demonstrate the fact that the Government at Lisbon was aware of the inefficient manner in which the duties of neutrality had been enforced at Lorenzo Marques by the port administration.

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

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

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

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

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

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

The principles of the international law of modern times leave little or no doubt as to the proper course for a neutral to follow in such a case. Oppenheim says: "In contradistinction to the practice of the eighteenth century, it is now generally recognized that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over his territory. And it matters not whether a neutral give such permission to one of the belligerents only, or to both alike."[14] And Lawrence points out that "It is now acknowledged almost universally that a neutral state which permits the passage of any part of a belligerent army through its territory is acting in such a partial manner as to draw down upon itself just reprobation." The permission given of necessity "to further a warlike end" is "therefore inconsistent with the fundamental principle of state neutrality." "These considerations," he says, "have influenced practice during the present century, and the weight of modern precedent is against the grant of passage in any case."[15]

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

[Footnote 15: Principles of International Law, p. 526. The older writers differed from this view. Grotius maintained the right of passage, even by force; Vattel practically agreed with Grotius that it might be taken by force, but contended that it should be asked and force used only under extreme necessity, or when the refusal was unjust; Wheaton denied that the right of passage was a "perfect right" and consequently could not be enforced against the will of the neutral; Hall, International Law (1880), 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]

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