S ERI ES XXV I
JOHNS
N OS 4 5 6
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-
.
H O P KI N S U N I VE R S I TY
S T U DI E S
IN
H ISTO RICAL
Unde
D e p artment s
of
PO
AN D
r th e
Di
S CIE N C E
LI TI C A L
recti on
of
th e
H istor y , P olitical E conom y ,
P olitical
and
Science
N EUTRAL RI G H TS AN D OBLI G ATI ON S
I N TH E A N G LO BOER
-
WA R
BY
R O BE R T G RAN VI LL E OAM P BE LL
F ll w i P l iti c l Sc i c J h s H pki U iv rsi ty
I
e
o
n
o
en
a
e,
n
o
O
o
AT R
J OH N S H O P KIN S P RESS
B L IM O E
TH E
ns
P U B L IS
Apri l
—
H
E D M ON
M ay —
Ju
T Y
HL
ne , 1 908
n
e
CO Y I T 908
JOH N S H OPK I N S PR E SS
P
TH E
R GH
1
BY
P as s : o r
TH E N e w E R A P am r m c COM PA N Y
L A N CA S T E R PA
.
.
P R E FAC E
.
This essay is the outgrowth of work done i n th e Political
Science Se m i n ary of the J ohns Hopkins University and is
a portion of a larger study dea ling with the causes of the
A nglo B oer Wa r and the q uestio n s o f international law
arising during that conflict
A t the beginning o f the war the E nglish Government was
inclined to view the contest as one which would not ma k e
it necessary to call into op e ration the neutrality laws of
third parties It was soon realized however that the con
dition o f i n surgen cy was not broad enough to sustain th e
relations between the two Governments Toward the close
o f N ovember G r eat B ritain s declaration with a re troactive
e ff ect put the contest upon a distinctly belligerent basis
and accepted the date of the Transvaal s ultimatum 5
P M
October 1 1 1 899 as the com m encement O f the war
Other Powers which had await e d this announcement with
some a n xi e ty at on ce declared their attitude toward th e
war A mong the fi rst to assum e this neutral position w as
the United States with th e an n ouncemen t that its attitude
would be in accordance with the requirements o f the
strictest neutrality
It is the purpose of the fi rst chapter to inquire how far
these obligations were ful fi lled by the United States Gov
e rn m e n t and in the second chapter the attitude o f E uro
pean Governments is considered In the third chapt e r th e
rights and obligations O f be lligere nts and n e utrals are dis
cussed with regard to neutral commerc e Under this topic
the wide divergence o f E nglish pract ice from Conti n ental
as well as from A m erican Opi n ion on points of internatio n al
law cannot fail to b e noticed
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P r eface
vi
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chief sourc e s of information used in the preparation
of the present paper have been the B ritish B lue B ooks ; the
F oreign R elations of the Unit e d States ; the House and
Senate Documents not i ncluded in the F oreign R elations ;
the Congressional R ecord D ebates i n Congress R esolu
tions and R eports in answer to requests for in formation
Other sources and authorities are indicated in the footnotes
I wish to express my gratitude to D r W W W illoughby
not o nl y for his careful criticism of this study during its
preparation and for the help ful suggestions by which he
has attempted to correct so m e o f its obvious defi ciencies
but especially for his kindly inspiration at all times
The
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CO N T E N T S
I
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TH
E
N
EU
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T RAL ITY
OF
U N IT E D
TH E
9
CH A PT E R
II
.
TH
E
N E U T RA L ITY
OF
E U R OP E A N
47
CHA PT E R
I II
.
CON
T RABAN D
OF
WA R
AN D
N E U T RAL
78
CH A PT E R
IV
.
T RADI N G
W IT H
v ii
TH E
EN
EM
Y
x x3
N E U T RAL
O BL I G A T I O N S I N
AN G LO BO E R WA R
R I G H TS AN D
TH E
—
.
CH A PT E R
TH
E
N E U T RA L ITY
OF T H E
I
.
UN
I
T E D S TAT E S
.
The neutral attitude assumed by the United Stat e s was
maintained th roughout the war W ith reference to any
offi cial recognition o f the Transvaal as an independent
State apart from the i mm ediate purposes o f war no action
was taken This vi e w o f the situation in South A frica was
entirely consistent with the re q uirements of international
law and in carrying out the obligations o f a neutral to
the belligerents the governmental position was fully j usti
fi e d by a kn owledge o f the relations which had existed
be tween the Transvaal and Great B ritain in the past
E arly in October before war had actu ally begun it was
understood that M r Pierce the Orange F ree State consul
general in N e w York had made every e ff ort to induce
President M c K i n ley to re q uest other nations to act with
the United States as arbitrators in the dispute between the
Governments o f th e Transvaal and Gre at B ritain but the
close friendship existing bet ween E ngland and the United
States and the very friendly attitude assumed by Great
B ritain during the Spanish A merican W a r made such ac
tion impossible The State De partm ent at W ashi n gton
announced that in th e event o f war the Government would
maintain an absolutely neutral attitude and issued i n stru c
tions early in October to all A m e rican con suls in South
A frica directing them to secure pTo te cti o n for all neutrals
of the United States who had not affi liated politically with
either Great B ritain or the South A frican R epublics either
by exercisi n g the franchise or otherw ise While those
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9
e u tral
N
I O
War
R i gh ts i n the A n glo B o e r
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[
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16 2
whom this d e fi nition did not cover were not to be directly
unde r the protect ion o f the United States the State D epart
ment express e d itsel f as ready to use its good o fii ce s in their
behal f in case they were involved in trouble resulting from
the war Such had been the position of the D epartment
in the case o f M r J ohn Hays Ham m ond a citizen of the
United States who had been involved in the J ameson R aid
although he had taken part in an expedition which was
not offi cially approved by Great B ritain and which was
hostile to a Go vernment with which the United States had
no quarrel
On O ctober 8 the day be fore the Transvaal ultimat um
was presented to Great B ritain the B ritish A mbassador in
W ashi n gton con fi den tially inquired whether in th e ev e nt o f
an attack upon the E nglish forces by the B oers rendering
n e c e ssary the withdrawal of the B ritish agent the United
States would allow its consul to tak e charge of the B ritish
interests in the Transvaal Consent was very properly
given on the eleventh that the Unit e d States would gladly
“
allow its consul at Pretoria to a ff ord to B ritish i n t e re sts
in that quarter friendly and neutral protective o ffi ce s
On the thirt e e nth this court e sy was acknowledg e d and the
in formation given that the B ritish agent had withdrawn
On the same day M r M c Cru m was instructed
with the
assent of the South A frican R e public to a ff ord to B ritish
interests the friendly protectiv e o ffices usual in such con
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Having thus assumed an att itude entire ly in accord w ith
the obligation s incumbent upon a neutral the United States
re fused to h e e d the popular demand to urge upon Great
B ritain its o ffi ces as mediator in a matter which directly
concerned the B ritish colonial policy Secretary Hay prop
erly re fused to involve the A dministration in the co m
plications which would have followed any offi cial interro
F or R l 1 896 pp 5 6 5 8
F or R l 899 p 35 0 T ow r t o H y O t 8 899
R l 1 89 9 p 3 5 0 H i l l t o T ow r O t 1 1
F
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For R l 899 p 3 5 1 T ow r t o H ill d A d to T ow r O t
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163
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N
e u trali ty o
f
the
U n i te d S ta tes
11
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addressed to the B ritish Government with re ference
to its ultimate int e ntions in South A frica M oreover it
was authoritatively stated that any concerted E uropean
interven tion would not meet with favor in W ashington
as such action would only tend to disturb general com m er
c i al r e lations by embroiling most o f the nations of the
world A n y attempt e d i n t e rvention would certainly have
led to a conflict o f the Powers and would have i n volved
q uestions o f national supremacy disturbed the balance of
power and raised the Chinese q uestion in which last the
United Sta tes had an important interest It was a sound
policy therefore upon the part o f the United States not to
encourage any i n tervention by E uropean nations in the a i
fairs O f Great B ritain in South A frica
This attitude not only reciprocated the friendly feeling
shown by E ngland during the Spanish A merica n W ar but
was in strict accord with the traditional A meri can policy
en unciated by W ashington The acquisition of the Philip
pines had only served to exempli fy the soundness o f this
doctrine and the State D epartment was not in a mood to
ta k e the initial st eps which might lead to added responsi
b i li ti e s with re ference to matters which in this instance
at any rate were not directly o f A merican concern The
part to be played by the United States was clearly that o f
an impartial neutral
In his message to Co n gress in 1 900 President M cKi n le y
stated that he was happy to say that abundant opportunity
had been afi o rd e d in the situation at Pretoria to permit th e
United States consul there to show the impartiality o f the
Govern m ent toward both the combatants D evelopments
however were to show that things had not gone so smoothly
there as was supposed at the time
On D ecember 8 the President had appointed M r A d e l
bert Hay son o f the S ec re ta ry o f State to succeed M r
M c Cru m in his position as consul and instructions were
sent to him to proceed at once to Pretoria M r Hollis
the A merican consul at Lorenzo M arques was directed at
gati o n
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12
e u tral
War
R i gh ts i n th e A n glo B o er
-
[
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164
the same tim e to act ad i n te ri m at Pr e toria after the de
parture of M r M c Crum and until M r Hay could reach
South A frica On D ec e mber 1 8 M r Hollis took cha r g e
of all B ritish and A m e rican int e re sts within the Transvaal
while still k e e ping an oversight of the a ff airs of the United
States in and around Lorenzo M a r ques
Soon a fter the war had begun M r M c c rum had re
ported to W ashington in reply to inquiri e s with re fe r e nce
to the B ritish prisoners in the hands of the B oers that it
was the wish o f the R epublican Government that in th e
future all requests for the paym e nt of mon e y to o fficers or
other prisoners as w e ll as inquiries regarding their w e l fare
should come through the regular military channels at th e
front T h e R epublic at the same time intimated that it
could no longer recognize M r M c Crum in any offi cial
capacity on b e half of Great B ritain The B ritish re p re
s e n tati ve at o n ce sugg e sted that the United States consul
be in struct e d to poi n t out to the Transvaal that such an
attitude was a departure from th e usual practice in n o t
permitting the A merican Government to use its friendly
good Offi ces on behal f o f the E nglish prisoners o f war
Lord Salisbury call e d att e n tion to th e fact that du r ing th e
for the B ritish prisoners in R ussia
Crimean W a r mon e ys
were distributed through the D anish representatives in St
Petersburg and London ; an d that duri n g the F ranco Prus
sian W ar such small su m s o f mo n ey were handed to the
F rench prisoners in G e rmany through the B ritish F oreign
It was understood as a matter o f c ourse that t e
Offi ce
c i p ro cal privileg e s would be ext e nd e d to the B oe r prisoners
in the hands o f the E nglish commanders
M r M c Crum followi n g i n struction s from his Governm e nt
had placed th e E nglish view of the situation before the
Transvaal authoriti e s b e fore he left Pretoria and had call e d
their attention to the fact that for them to permit the chari
table and humane interven tion of the United States consul
unde r the circumstances was the re gular course in time of
F
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165
]
N
e u trali ty o
f
th e U n i te d S tates
13
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war B ut not un til M r Hollis reached Pretoria was the
attitude of th e R epublic explained He inquired o f the
S e cretary o f State as well as o f the Secreta ry fo r F ore ign
A ff ai r s with reference to the attitude he would be allowed
to ass ume toward B ritish inte rests ; to what extent he might
act on behal f o f B ritish prisoners of war in the Transvaal
and Orange F ree State ; and how far he might exercise
the usual consular functions on behal f of Great B ritain
during the war
“
The report was made to W ashingt on from many o ffi
c i a l and consular sources that th e late B ritish agent at this
capital [ pre sumably M r Green ] was always a thorn in
the side o f this Government and that he is in part re
s p onsible for this present war
It was pointed out that
since this was the attitude of the R epublican Government
there e x ist e d at Pretoria a decided aversion to the re co gn i
tion o f any one who might claim to act as a B ritish agent
The Transvaal Secretary of State expressed himsel f em
phatically upon the point : W e got rid of the B ritish agent
on the eleventh o f October last and God willing we will
never have another one
M r R eitz even we n t so
far as to express the con fi de n t hope that at the close o f the
war a B ritish minister and B ritish consuls would reside at
Pretoria but he was positive upon the question o f receiving
No
an y one who was k nown as an agent of Great B ritain
one who assumed this relation toward the E n gli sh Govern
ment would be acceptable to the Transvaal and Orange F ree
State
The attitude which the R epublic alleged it had been will
i n g and was ready to assume was an unwillingn e ss to recog
ni z e the consul o f the United Stat e s or any other con sular
offi cer as the offi cial representative o f the B ritish Go vern
m en t during the war ; an obj ection to the transmission of
the offi cial com m unications o f the E nglish Government to
that o f the South A frican R epublic or of the official des
d
8
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F or R l 1900 p 62 1 H oll i s t o H ll F b 2 1900
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R i gh ts i n th e A n glo B o er
e u tral
N
14
-
War
[
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1 66
patch e s of the E nglish Governm e nt addressed to the B ritish
“
prisoners in the hands of th e Transvaal or of moneys
or funds s e nt by the B ritish Governme n t to the E nglish
prison e rs o f war On the other han d the Tra n svaal auth o ri
ti e s were not unwilling to allow the United States consul
at Pre toria to perform certa in enumerated services in b e
half o f all B ritish prison e rs of wa r and their friends N o
obj ection was made to the f orwarding o f letters and papers
sent by frie n ds to the prisoners and under the supervision
o f the W a r Offi ce of the Transvaal the R epublic expressed
itsel f willing to permit the dist r ibution o f funds sent to
the E nglish prisoners by their fri e nds at home B ut it was
understood that such services would be reciprocal and that
the R epublic would have the right to request similar ser
vices o f th e A merican consular offi cers on behal f o f the
B o e r and A frik ander prisoners in the E nglish possessions
The right was reserved to revok e any and all privil e ges
to receive lett e rs papers parcels and money which w e re
enj oyed by B ritish prisoners in th e Transvaal should the
fact be suffi ci e ntly proved that B o e r or A frikander prison e rs
in the hands of the E n glish autho r ities w e re not receiving
kind and human e treatm e nt or w e re being denied privil e ges
similar to thos e e nj oy e d by B ritish prisoners in the R epublic
A ll concessions on th e part of the Transvaal Govern m e n t
would be ins tantly revoked on these grounds as suffi ci e nt
r e ason and cause for such action The R epublican Gove rn
m e n t asserted that this had been the attitude in accordan ce
w ith which it had acted from the commencement of the
0
war
W ith re fe r e nce to the recall o f the A merican consul and
the appoi n tment of M r A delbert Hay it appears that there
had be e n a certain amount o f friction between M r M cCrum
and th e E nglish censor at D urban concerning the consular
mails In c onnection with this inci dent and a little un
wisely it would seem M r M cCrum had r e port e d u n o ffi ci
ally that his mail had been tamp e red with by the censor
F or R l 900 pp 6 6 H oll i s t R itz J 3 1 1900 d
R it t H oll i s F b
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167
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N
e u trali ty
o
f
th e
U n i te d S tates
15
.
had been forwarded to him only a fter Colonel Sto w e
the A merican consul general at Cape Town had secured
“
its release He asserted : I had the humiliation as the
representative o f the A merican Government of sitting in
my offi ce in Pre toria and looking upon e nvelopes bearing
the offi cial s e al o f the A merican Government opened and
offi cially sealed with stickers notifying me that the con
tents had been read by the censor at D urban
A n d he
continues when I accepted my post as consul I kn e w noth
ing o f any secret alliance between A m erica and Gre at
B ritain
These charges brought forth in the House o f
R epres e ntatives a resolution which called upon the Presi
dent to furnish in formation as to whether the consul s mail
had been opened and read by the B ritish censor and i f so
what steps had been taken in the matter In formation was
also asked as to what truth there was in the statement that
“
a secret alliance existed between the R e public o f the
U nited St ates and the E mpire o f Great B ritain
In response the Preside n t reported through the Secretary
o f State that the D epartment had been in re gular communi
cation by mail and telegraph with Charles E M c Crum late
consul at Pretoria since his entrance upon the duties of
the o ffi ce Communications made to him had been answered
by him His despatches forwarded through the consulate
at L orenzo M arq ues had been regularly received during his
incumbency in offi ce It was pointed out that the o a
instance of complaint had been in N ovember when a tem
p o rary stoppage o f the mails had occurred at Cape Town
against which both M r M c Crum and the consul at Lorenzo
M arques had protested
B u t arrangements had been then
made for the prompt delivery o f all the consular mails to
the United Sta tes consulate at Cape Town by which they
were forwarded to the consul at L orenzo M arques and
thence to Pretoria The delay had continued only a f e w
days and the di ffi culty had not occurred again It was
pointed out also that th is arrangement had been made
an
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R e s 1 49 , 5 6 Co n g , 1
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I
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6
R i gh ts i n th e A n glo B o e r
e u tral
-
War
[
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168
known to bo th M r M c c rum and M r Hollis as early as
N ove mber 1 6 and that no obstacle had since existed to
preve nt the unhampered corre spondence from Pret oria to
W ashington M oreover the Secretary of State ass e rted
that M r M c crum had not o ffi cially re ported any i n sta n ce
o f violation by opening or otherwise o f his offi cial m ail
by the B ritish censor at D urban or any p e rson or p e rso n s
whatsoever there or elsewhere
he had not so reported
sinc e he l e ft Pretoria although ample opportunity was
a ff orded him to do so by mail or in person when he reported
to the D epartm e nt on his return
In regard to the secon d charge made by M r M c Cru m it
seem e d hardly n e cessary to say that there was no truth in
th e statem e nt that a s e cret alliance existed between Great
B ritain and the Un ited States ; that no form of secret alli
ance was possible under the Constitution since all treaties
require d the advic e and consent o f the S e nat e M r Hay
co n clud e d however by e m phatically assuring the members
of Congress that no secre t alliance convention arrange
ment or understan ding e xists b e tw e en th e United States
and an y other nation
M r M c Cru m later appeared before the Committee on
F oreign A ff airs in the House o f R epresentati ves and stated
his side of the case He declared that while at Pretoria
he had u n d ers to o d that the B ritish Govern ment was in
poss e ssion of the Unit e d States cable ciphers but he was
unable to affi rm this fro m personal knowledge He based
his belief h e said upon th e fact that wh e n on N o
v e m b e r 6 he had cabl e d by way of D urban to th e D epart
ment asking for leave of absence the incident had been
reported to have been published in a D urban paper on the
following day although he had cabled in cipher He was
not able to say however W he ther the fact o f his desirin g
l e ave was actually publish e d on N ovember 7 as he had
not s e e n the pap er but had heard that the fact had be e n
publish e d He asserted that the fi rst actual evidence of the
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1
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ss
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e
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18
e u tra l
War
R i gh ts i n th e A n glo B o e r
-
[
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170
W hil e en forcing the obligations o f a neutral State by an
attitude of strict impartiality toward both belligerents th e
Unit e d Sta tes was not inclined to allow popular sympathy
for the B oers to lead to complications with fore ign nations
over a matter with which it was only re mot e ly concerned
Th is position was know n to the envoys of the Transvaal
and Orange F ree State before they l e ft Pretoria A mpl e
oppo rtunity to realize the situation had been a ff orded th e m
before th e y le ft E urop e for A m e rica after an unsucc e ssful
tour o f the capitals o f the Continent N evertheless they
determ i n ed to appeal to the United Stat e s and with this
purpose in view arrived in W ashingt on on M ay 1 7 1 900
A r e solution introduce d in the Senate by M r A llen o f N e
braska on M ay 1 9 which would have ext e nded the privi
lege of the floor to them was laid on th e table a decision
the wisdom of which is unquestionable The Senate stan ds
before the world as an important part of the treaty making
power of the United States Such a privil e ge i f ext e nde d
to the mission could have meant nothing to foreign powers
but an o ffi cial reception to the envoys of a government which
was not recognized as legitimate by its former conven tional
suz erain It was not the part o f the Senate to inquire into
the substan ce of the past relations betwe e n Great B ritain
and the Transvaal E specially was th is true sinc e th e
gov e rnmental position had been declared e arly in the war
and nothing had occurred to warrant any alt e ration in that
position This was the view which Pre sident M cKi n le y
took o f the situation and the policy of deali n g with the prob
lem was that o f th e strictest neutrality
On M ay 2 I it was offi cially announced that the d e l e gat e s
had called by appointment at the State D epartment The
“
notice given out to the press read : They were cordially
received and remained with the Secretary o f State for more
than an hour They laid before th e secreta ry at much
length and with gr e at e n ergy and eloquence the merits o f the
controversy in South A frica and the desire of the B oer R e
5 6 Co g 1 S ss R or d pp 5 7 35 5 7 83 86
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ec
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17 1
]
N
e u tr a li ty
o
f
th e
U n i te d S ta tes
19
.
publics that the United States should interv e ne in the inter
ests o f peace an d use its influence to that end with the
B ritish Government
The a m bition o f the envoys on
“
leavi n g the Transvaal for E urope had been for the pur
pose o f seeking recogn ition and intervention but the suc
cess o f their mission at W ashington was not to be greater
th an it had been in E uropean ca pital s A lthough M r H ay
received them courteously their comp e tence to treat directly
with the State D epartment was not recognized Wh en
they realized this fact they appealed dire ctly to the people
in the hope of bringing a certain amount o f pressure to bear
upon the President from that source He fully realized
however that under th e circumstances no interference was
advisable A departure from this policy would have created
a precedent which might later have been appealed to by any
E uropean government in behal f o f its subj ects in this country
A s Presidential candidate however W illiam J B ryan in
e ff ect i f not in express terms promis e d a mediation that
would mean something should the D emocrats come into
power and it was hopes cre ated by such utterances which
encouraged the B oers to b e lieve that intervention on the
part o f the United States was a possibility E ven the Sen
ate passed resolutions o f sympathy which only held out a
vain h 0pe and naturally caused a certain amount o f criticism
in E ngland In the end however the envoys became con
v i n ce d that nothing was to be hop e d for in the way o f dicta
to ri al interference by the United States
In his message to Congress in 1 899 three months after
the war b e gan President M cK i n le y had been able to d e
“
clare : Th is Government has maintained an attitude o f
neutrality in the un fortunate contest between Grea t B ritain
and the B oer States o f A frica W e have remained faith ful
to the precept of avoiding entangling alliances as to affairs
not o f our direct concern Had circumstances suggested that
the parties to the q uarrel would have welcomed any k indly
expression o f the hope o f the A merican people that war
” 17
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M
oor e
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D
ig st o f
e
I nt
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L aw,
Vo l
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I,
p
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2 13
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,
N
20
e u tral
War
R i gh ts i n the A n glo —B o e r
[
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17 2
might be av e rt e d good offi ces would hav e been gladly ten
A n d in M ay 1 900 aft e r th e int e rvi e w with the
d e red
Transvaal d e legation M r Hay gave out a statem e nt through
his secretary in which it was declared that this entirely cor
“
rect n e utral attitude had been strictly adhered to : A s the
war went on the Pre sid e n t while regre tting the su ff e ri n g
and the sacri fi ce s en dured by both of the combatants could
do nothing but pres e rv e a strict neutrality bet w e en th e m
This has be e n st e ad fastly an d constantly don e but th e re
never has been a m om e nt when he would have n eglected any
favorable occasion to u se his goo d o ffi c e s in the int e rest o f
pe ac e
M r Hay also poi n ted to the fact that o n M arch
I O 1 900 at the r e qu e st of the R e publics the Unit e d States
consul at Pretoria had communicated with his Gov e rnment
with a view to the cessation of hostilities and that th e sam e
proposal was made to E uropean pow e rs through th e ir re
s p e cti ve consuls
Th e request of th e Tran svaal was at once despatch e d to
London and the earn e st hope was e xpre ss e d b v the Presi
dent that a way might b e found to brin g about p e ac e with
“
the intimation that h e would be glad to aid in any friendly
ma nner to promote so happy a re sult
The Transvaal was
promptly in formed o f this action and the Unit e d Stat e s
represen tative in Lo n don co mm u n icated the President s i n
s tru cti o n s to Lord Salisbury
I n answer he was requested
“
to thank th e Presid e n t for th e fri e n dly interest sho w n by
h im
but it was u n mistakably d e clared that H e r M aj e sty s
Government could n o t accept th e i n t e rv e ntion of any
power
This reply was communicated to Pretoria and
no further steps wer e tak e n since any insist e nce upon the
part o f the United Stat e s would hav e been an un friendly act
In j usti fi cation o f the action o f the Pre side n t i n view o f
th e popular feeli n g that mor e urgent pressure m ight hav e
be e n us e d to cause the c e ssation of hostilities Secre tary Hay
clearly show e d that th e Un ited S tates Gove rnment was the
M oor
D i g s t o f I t L w V ol V I I p 1 9
M oor
D i g s t of I t L w V ol V I I p 20
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N
173
e u tr ali ty o
f
th e
U n i te d S tates
21
.
on ly one o f all those approach e d by th e republics which h ad
even te n de r e d its good offi ces in the interest o f peace He
called attention to th e fact that d e spite th e popular clamor
to th e co n t r ary the action o f the Govern m e nt was fully in
acco r d with the provisions of the Hague Co n ference and
went as far as that Convention warran ted A portion of
A rticle III of that i n strume n t declares :
Powers strang e rs
to th e dispute may have the right to o ff e r good o ffi ces or
mediation e ven during the course of hostilities but A rticle
“
V asserts
The fu n ctio n s o f the mediator are at an e n d
whe n once it is declared e ither by one o f th e parti e s to the
dispute or by the mediator hi m sel f that the mea n s o f con
ciliation proposed by h i m are not acc e pted
Obviously
any further action on the part of the Unit e d Stat e s was not
required under the Circumstanc e s an d Secretary Hay seems
“
fully j usti fi e d in his statement that the steps tak e n by the
Preside n t in his earnest desire to see an end to the stri fe
which caused so much su ff ering may alre ady be said to have
gone to the extreme limit permitted to him
M oreover
had the President pre ferre d not to presen t to Great B r itain
the R epublic s request for good offi ces his action could have
been j usti fi e d by the conditions u n der which the represe n ta
t i ve s o f the United States at the Hague sign ed that co n v e n
tion A t that time the express declaration was made that
N othing contained i n this Convention shall be so co n stru ed
as to require th e United States o f A merica to depart from
its traditional po licy of not intruding upon interf e ri n g with
or e ntangling itsel f with question s o f policy or i n t e rnal
administratio n of any for e ign State
T h e fi n al utterance of the President in r e gard to the mis
sion of the B oers was the conclusive stateme n t m ade th rough
“
S e cretary Hay : T h e Presid e nt sympathizes heartily in the
desire o f all the people o f the Unite d States that the war
may for the sake o f bo th p arties engage d com e to a
speedy close ; but having done his full duty in preservi n g a
M oor
D i g s t of I t L w V l V I I p 2 3
M oor
D i g s t o f I t L w V ol V I I p
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2
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e u tr al
N
22
R i gh ts i n th e A n glo B o er
-
War
[
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174
strictly neutral position between them and in sei z ing the fi rst
opportunity that presented its e l f for tende ring his good
o ffi ces in the int e re sts o f peace he fe e ls that in the present
circum stances no course is op e n to him except to persist
in the policy o f i m partial neutrality To deviate from this
would b e contrary to all our tradition s and all our national
intere sts an d would lead to consequ e nc e s which neither the
President nor the people o f th e Un it e d States could regard
with favor
The attitu de of the United States in the immediate vicin
ity o f the war as well as the manner in which the envoys
o f the Transvaal w e r e received in W ashington rendere d
criticism impossible with refe rence to the ful fi lment of the
obligations of a n e utral State B ut serious charges were
repeatedly made by the Transvaal sym pathizers with refer
enc e to the use to which A m e rican ports and waters were
put by B ritish vessels or B ritish leased transports plying
between the United States and South A f r ica It was
alleged that Great B ritain was able to creat e here a base of
warlike s upplies and thus to obtai n material aid in h e r
operations against the B oer forces The probability of the
truth of th e Transvaal s allegations would seem at fi rst
thought to be slight consideri n g th e distan ce of the sc e n e
of war from the coasts of the United States but upon closer
i n sp e ct ion these charge s become more worthy of beli e f
That warlike supplies were actually transported from at
least one of the ports o f the United Stat e s under such a
syst e matic schem e as to constitute a base o f hostil e suppli e s
for the E nglish force s in South A frica would seem to
be establish e d
Individual commercial transactions with belligerents
al w ays occur and it is not the part o f neutral governments
to assume responsibility for all such transactions but the
principles of the international law o f the present day do
require all neutral states to see to it that their respecti ve
territories are not made bases for hostile ope rations
,
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22
M
oore
,
D i ge s
t of
I n t L a w,
.
Vol
.
VI I
,
p
.
21
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17
5]
N
e u trali ty o
f
U n i te d S tate s
th e
23
.
few minor incidents showed that the obligati ons of
neutrality would be en forc e d by the United States when it
becam e apparent to the Governmen t that th e neutrality laws
were being evaded In Cincinnati a F rench m an giving his
name as Pierrot was su m mon e d b e fore the Un ited States
A ttorn e y on a charge of a violation o f neutral restrictions
He had been known it seems as a re cruiti n g o ffi cer for
the Transvaal Government but avowed that he had e n
gaged men only for the B oer hospital corps and not for the
army o f the R e publi cs The warning that he must cease
e nlisting men even for this branch of the republican se rvice
p r oved su ffi cient in this cas e but undoubtedly such re cruiting
on a small scale continued to evade detection
Later th e N e w York courts restrained the steamer B er
m u d a from leaving the port upon the application o f a B ritish
subj ect who alleged that he had been in formed that the
B e r m u d a was carrying contraband to the Transvaal
A fter
a detention o f fi ve days the ship was allowed to sail because
it was not shown that the allegation had any foundation
in fact
Toward the close o f N ov e mber 1 900 a charge of a more
serious nature was made It was reported that a B ritish
remount establishment w as operating in the United Stat e s
and had j ust purchased fi fty thousand horses and mules
for th e B ritish forces in South A frica and co n sid e rable
attention to this alleged violation of neutral obligations was
drawn by that portion o f the press which was in sympathy
with the B oe rs A resolution was adopted by the House
of R epresentatives calling upon the President to furnish
“
in formation whether our ports or waters had been used
for th e e xportation of horses mules and other supplies
for use in South A frica and i f so to w hat extent and
what steps had b e en taken to prevent such a use being
made o f neutral t e rri to ry in ti m e of war
The request
was also made that full in formation be furnished with re fer
ence to the number of horses and mules which had been
A
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"
H
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R e s 4 14, 4 18, 5 6 Co n g
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28,
1901
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N
24
e u tral
R i gh ts i n th e A n glo B o er
-
War
[
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17 6
cleared from th e ports of th e Unit e d State s sinc e the begin
ning of th e war with a detailed statement of th e shipm e nts
from each port an d the dates of such cl e arances
The reply submitted to Congress was that the ports of the
Unit e d Stat e s had be e n used for the exportation of hors e s
and m ules and oth e r supplies for u se in South A frica ; that
betw e en Octob e r 1 899 and J an uary 3 1 1 90 1 th e valu e of
such shipme n ts had amou n ted to
that no st e ps
had b e e n tak e n to prev e nt the law ful expo rtation of hors e s
mules and other suppli e s to South A frica and that the
numb e r of horses and mules shipp e d from the ports of the
United Stat e s during this period had been
It was not
practicable it was asserted to giv e the shipm e nts from
each port an d th e dates of such shipm e nts without e x am i n
ing the copies o f the mani fe sts of each vessel that had
cleared for South A frica Such an exam ination and com
p ilati o n could not be present e d to Co n gr e ss befor e its a d
m
n
e
although
copies
o
f
the
cl
arance papers w ere
o
u
rn
e
t
j
fi led with the collectors o f the customs at the di ff e rent ports
o f the country
In the sam e report it was shown that of the entir e ex
ports to South A f r ica during this p e riod a large proportion
had b e en of warlike supplies i f horses and mul e s for army
purpos e s can be consid e red w arlike in character ;
horses valu e d at
mul e s valu e d at
Gunpowder to the value of $ 1 4 7 2 had also been ex
3 65
ported oth e r explosive s to the value of $7 07 3 and fi rearm s
valued at $9 24 in all
worth of such supplies ex
ported to o n e or both of the be lligere nts i n South A f r ica
Possibly th e larger proportion of the gunpo w der other ex
plosives and fi rearms was run into the Transvaal by way
o f De lago a B ay as c ontraband under the usual ris k s or
was used for purpos e s apart from the war but with ref e r
ence to the supplies for the B ritish army it would seem that
a ve r y free use was mad e o f th e ports and waters o f the
United States On e reason why the E nglish Gove rnment
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26
e utral
War
R i gh ts i n th e A n glo B o e r
-
[
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17
8
tive action especially with reference to the allegation made
by the Tran svaal that the port of N e w Orleans was used as
a base of warlike supplies for th e B ritish forces
On A pril I O 1 902 a resolution o f the House of R ep re
“
the President for copies of any
s e n ta ti ve s called upon
report and communication of the Governor of Louisiana
together with all accompanying a ff idavits docum e nts and
commu n ications concerning the shipments o f hors e s mules
and o th e r suppli e s from Louisiana to the seat of war in
South A frica
In response a report of Secretary Hay
disclosed the fact that on F ebruary I 1 902 a certain Samuel
Pearson had appealed to the President against the use to
which Great B ri tain had been allowed to put th e ports of
the United States i n supplying h e r armies in South A frica
“
P e arson had affi rmed that the port of N e w Orleans was
being made the basis of military operations and the port
and waters for the purpose of the renewal and augmentati on
of military supplies for the B ritish army
He further
alleged that th e attention of the courts had been called to
the matt e r and the United States circuit court for the east
ern district of Louisi ana had declared that the case was not
within th e cognizance of the court sinc e the matter could
b e tak e n up only by the executive branch of the govern
m e nt
In making his plea dir e ctly to th e Preside n t Pear
son asserted that at the port of Chalm e tt e a f e w miles
b e low N e w O rlean s a B ritish post had been established ;
that m e n and soldi e rs had b e e n assembl e d there and were
daily engaged in warlik e operations not o nly for the re
n e wal and augm e ntation o f military suppli e s but for the
r e cruitm ent of men He alleged that no concealment was
mad e o f the facts as he had stated th e m ; that although the
E n glish o ff icers did not appear in uniform war was actually
being carried on in behalf of the B ritish Government from
“
the territory of the Unit e d Stat e s He conclud e d : W ith
ev e ry respect for the authority of the United States Gov
e rn m e n t
may I not consider your silence or i n act ion the
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S
D o c 5 68, 5 7 Con g I
e ss , p
1”
P e arso n v Parso n , 108 F e d R ep 4 6 1
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N
e u trali ty o
f
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S tates
27
.
equivale n t o f consent for me to stop th e further violation
of the n e utrality laws o f this port or to carry on war here
for the burghers
The Pr e sident r e ferred the matter to the M ayor of N e w
Orleans with the intimation th at a breach of the peace was
threat e n e d The M ayor shi fted the responsibility to the
Gove rn or o f the State on the gr ound that the acts com
plai n ed o f were all e ged to have be e n committed in the par
ish o f St B ernard and consequen tly outside the j u ri sdi c
tion o f the city authorities F inally under the orders o f
the Governor the Sheri ff of St B ernard parish made an
investigation and r e ported that Pearson s statements had
”
been incorrect in a nu m ber o f points
It was admitted
that mules and horses had been an d were then being loaded
at Port Chalmette for the B ritish Govern m ent e ither di
re c tly or indirectly ; that the op e ration w as being carried
out by local men all of whom were citizens of the Un ited
States ; that the wor k was being superv ised by E nglis h men
who might or might not be offi cers of the B ritish army al
though none o f them wore the uni form of Great B ritain B ut
th e Sheri ff positiv e ly asserted that a B ritish post with men
and soldiers was not established at the port ; that no recruit
ing of men was tak ing place with in the parish ; that the only
men taken on the ships were muleteers who were employed
in the city of N e w Orleans by the co n tractors ; tha t these
men were tak en on board the ships when in mid stream by
tugs which set out from the city wharves
“
In a personal interview General Pearson made th e
same charges to the Governor that he had made in his l e tter
to the President He asked th at he be allowed to off e r
forcible resistance to the shipm e nts to South A frica and
to th e enlisting or employing of men as muleteers who he
alleged were lat e r incorporated in the B ritish army This
inte rview too k place the day following the Sheriff s letter
partially denying the charges to the Govern or and the latter
,
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H
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B e rn ar
R
R
d
,
D o c 5 68, 5 7 Co n g
Do c 5 68, 5 7 Co n g
,
o H e ar , Go e rn or
,
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t
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d
v
S
ss p 3
1 S e ss
p 4 ; N u n e z S h e ri E o f
of L o u i s i a n a Fe b 28 1 902
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1
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28
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[
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1 80
was not disposed to tak e any acti on in the matter until proo f
of the accuracy of the averme n ts was p r oduced although th e
facts which w e re alleged had be co m e w id e ly know n
T h e attitude of the A dministratio n with r e f e r e nc e to
P e arson s l e tt e r it was b e li e ved by th e press w as not of a
character to i n spire gre at co n fi d e n c e in th e strict perform
ance of neutral duti e s To ignore an all e gation o f so fla
g r ant a characte r as the breach of n e utrality it was declared
con stitut e d a disregard of A merican id e als in th e i n ter e st
o f B ritish i m perialis m which could not be excused by jocu
lar re f e r e nces to General Pearson s request to the Presi
d e nt to e ith e r put an e n d to this state of a ff airs or permit
"
m e to strike one b lo w
It was poi n ted out that the probl e m raised by P e arson
was not o n e that might b e laughed out o f the W hite House
but was the serious qu e stion wheth e r the B ritish Gov e rn
ment sh o uld any longer be p e rm itte d in violation of A mer
ican neutrality to use an A m erica n city and port as a base
of warlike operations again st a frie n dly p e o ple The news
papers too had made public the mov e ments of the E nglish
army offi cers in charge of the ship m e n ts It se e ms that the
base o f op e rations at fi r st us e d by Great B ritain was South
port but that Chalmette had lat e r b e en selected The e ffi
c i e n cy o f the latter station was r e ported upon in M arch
1 902
by General Sir R ichard Campb e ll St e wart o f th e
B ritish army
E verythi n g p e rtaini n g to the e ffi cie n cy o f
the tra n sporta tion se rvice was carefully insp e cted on behal f
o f the B ritish Govern m e n t Colon el D e B e rgh who was in
command of th e remount se rvice in the United States de
clare d that he had not r e ceived ord e rs from the B ritish W a r
Offi c e to discon ti n u e the shipm e n ts and that they would be
continued unless Gene r al Pearson and the B oer army
d r iv e our garr i son away
The e vidence which P e arson was able to plac e be fore Go v
e r n o r Heard and which the latter laid before the President
se e med to substantiate the fact that at l e ast one o f the ports
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R
The
e pu b l i c
“
T h e N e w Or
of Ch i cago Fe b 1 5
l e an s P i cayu n e M ar
.
,
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,
.
1 902
2 8,
.
I
9OZ
18 1
N
]
e u trali ty o
f
U n i te d S ta tes
the
29
.
of the Unite d States had been co n sta n tly used and was then
being us e d as a base o f military transportation to the B ritish
forces in South A frica It was shown that W illiam B
Leonard of N e w O rleans had contract e d with M aj or H J
S co be ll re presenting the B ritish Gov e rn m ent for the pur
chas e of mules to be shipped to South A frica for milita ry
purpos e s T h e contract had been signed in October 1 899
and during the months from October 1 899 to M ay 1 900
large numbers had been shipped to South A frica u n der the
immediate dir e ction o f B ritish army o ffice rs
P B Lynch
m ade a ffi davit that he had been e m ployed as clerk and book
k e eper in the bureau o f the B ritish remount servic e in N e w
He
Orleans from D ecember 1 899 to September 1 90 1
e xplained the operations of the remount service as well as
its methods and indicated clearly the direct conn e ction of
regularly appointed offi cers of th e B ritish army with th e
purchase and shipm ent o f horses and mules to South A frica
The purchases it seems were made at di ff erent points in
the country and afterward assembled at a place designated
by th e offi cer i n charge in N e w Orleans The B ritish army
brand was then placed upon th e animals which were imme
d i ate ly co n signed to the B ritish offi cer in N e w Orleans but
without giving his military title They were then trans
ferre d to ships the charter part ies of which were agents of
the E n glish Governm e nt It was shown that th e ships
age nts usually e m ployed muleteers taken on by tugs fro m
th e city of N e w O rleans and it was proved that the whole
operation was controlled by E nglish army offi cers who were
detailed from Lo ndon or from South A frica for the pur
pose
T h e testimony o f Charles J Cole showed that as forem an
in charge of sev e nty or more m e n he had made six trips to
South A frica in the service of the B ritish Government or
of its ag e nts His testimony was substantiated by ce rt ifi
cates for seamen discharged before the superintendent of
“
L o ar d
S park s B ros M G Ci v i l D i st ric t Cou rt Pari sh
o f N w O rl a s D iv i s i o E N
F b
4 1 90
H R D
5 68 5 7 Co g 1 S ss p 9 ; also pp 1 0 13 pass i m
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30
eu tral
War
R i gh ts i n th e A n glo B o er
-
[
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1 82
a m e rcantile marin e offi ce in the B ritish E mpire a B ritish
consul or a shipping offi cer on board the vessel on which
he had sailed He had been employed on the transports
P r ah M o n tcalm K n i gh t B ach elo r M o n tezu ma and R o
s e tta all engag e d in transporting horses an d mules to the
He testi fi ed that the tran s
B ritish army in South A frica
ports were i n charge of re gular offi cers o f the E nglish army
and that from th e m all orders were r e ceived He also
avowed that many of the men were urged and solicited by
the offi cers to j oin the B ritish army and were u n able to
“
obtain th e ir pay unless th e y complied with the r e quest
The affi davit of R J Tourres showed that he had served
on the ship M i lwa u k e e H e averred that the ship s articl e s
were signed by him before th e vice consul of the B ritish
Gov e rnm e nt ; that he was fi nally referred to an offi cer o f
the E n glish army for duty and acted under his orders during
the voyage from N e w Orleans to Cape Town ; that when the
vessel was not allowed to land its cargo at that place on
accou n t of the plague th e consignment of hors e s an d mules
for the B ritish army was delivered at D urban to E nglish
o ffi cers in uniform ; that he was not allowed to go ashore
except upon the condition of signing with the r e cruiting
offi cer and j oining the B ritish army ; that during the entire
voyage a B ritish military offi cer in uni form controlled the
ship s crew ; and that among th e men the M i lwau k e e was
k nown as a transport und e r the direct comma nd of regularly
detailed offi cers of the E nglish army
Th e testimony o f a number of other witnesses sworn
before the commissioner for the eastern district of Louisiana
showed that th e wages of the men employed upon the ship
M o n tcalm had b een refused by the captain unless they
would agree to enlist in the B ritish army but as A merica n
citizens they had refused to enlist and had demanded the
wages due them under the ship s articles A ugust N o z e ret
“
P arso t l v Parso t l U it d S t at s Ci rcu i t Cour t
E as t r D i s t r i ct of L ou i s i a a ; also H R
D
1
5 68 5 7 Co g
S “ss p 20
S wor t b for otary pu bli c M h 2 90 H R D 5 68
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5 7 Co n g
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ss p
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21
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1,
1
2
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oc
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,
183
]
N
e u trali ty o
f
U n i te d S tates
th e
31
.
an A merican citizen foreman of a corps o f muleteers on
board the M on tcalm testi fi ed that he was told by the ship s
offi cers that the only way to s e cure his discharge at Port
E lizabeth was to have a recruiting offi cer vouch for h i s
enlisting in the B ritish army ; and that he compli e d with this
demand and esca ped enlistment only by pretending to be
physica lly unable to count the numbe r o f per forations in a
card when required to do so as a test of sight at the recruit
ing offi ce The affi an t was able to say from his own per
sonal kn owledge that certi fi ed discharges were not given
”
unless the men were willing to enlist in the E nglish army
A n abundance o f oth e r evidence to the same e ff ect was pro
d uce d and it was shown that both the M o n tcalm and the
M i lwa u k e e were under the direct control o f the B ritish war
authorities B oth had their offi cial numbers painted from
their hulls before entering the Portuguese harbor o f B eira
The evidence which was thus placed be fore th e President
would seem to show that the spirit at any rate o f the neu
trali ty laws o f the U nited States
had been violated and
that this violation had been systematically carried out by
the B ritish Government and not by individual citizens merely
as a commercial venture
The fi rst section o f th e neutrality laws which were passed
by Congress in 1 8 1 8 de fi nes the o ff ense o f accepting a
foreign commission and lays down the penalty for such an
o ff ense The second section forbids any person within the
territory o f the U nited States to enlist in a foreign s e rvice
“
as soldier or as a mariner or seaman on board of any
vessel o f war letter o f marq ue or privateer
The three
following sections prohibit the arming of a vessel to cruise
against a people at pe ace with the United States or against
the citizens of the United States or the augmentation of the
force of any foreign vessel o f war Th e next prohibits
military expeditions o f any kind This section reads :
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Cra m e r
et
al
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v
t
itit
R vi d St t t
.
S S
.
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.
.
M
o n tca lm ,
Un
it
e
d S tat
i s i a a i A d m i ral ty
S ss pp
3
it l L XV I I S cti o s
E as e rn D s r c of L o u
R Do c 5 68, 5 7 Co n g , I
‘
1
e
se
a u e s, T
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5 28 1
-
t r ic t Cou rt
a l so H
5 29 1 i c l u s i v
Di s
,
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,
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N
32
“
eu tral
R i gh ts i n th e A n glo B o e r
-
E very
War
[
.
1 84
person who withi n the t e rritory or j urisdiction o f
the Un it e d States b e gins or s e ts o n foot or provides or
pre pares th e m e ans for an y military e xpedition or e nter
prise to be carried on from then ce against th e t e rritory or
do m i n ions of any for e ign pri n ce stat e colony district or
p e opl e with whom th e Un it e d States are at peace shall be
d e emed guilty o f a misd e mean or and shall b e fi n ed not
exceedi n g
and i m prison ed not more than three
years
Section 5 2 87 provid e s for th e e n fo r cem e nt of the fore
goi n g provisions I t l e av e s th e cogni z an ce of all complai n ts
in the hands of the several district courts but empow e rs the
President to employ the land and naval forces to en force all
of the r e strictions e mbodi e d in the neutrality provisions
The followi n g section e m p owers the Presid e nt to comp e l
“
foreign v e ssels to depart th e Un ited Sta tes in all cas e s in
which by the laws of nations or by the treaties o f the
Un ited States they ought not to re mai n within the United
States
Section 5 2 89 re quires that a foreign armed v e ssel
shall give bond on clearance Section 5 2 90 empowers the
“
collectors of the customs to detai n fore ign vessels : The
s e veral coll e ctors o f the customs shall d e tain any v e ssel
mani festly built for warlike purposes and about to d e part
the United States the cargo of which principally consists
o f arms and munitions of war when th e n u m ber of m e n on
board or circumstances rend e r it probabl e that such v e ssel
is i n t e n ded to be employed by the ow n ers to cru i se or comm it
hostilities upon the subj ects citizen s or property o f any
colony district or people with whom th e Unit e d States are
at peace un til the decision o f th e Presid e nt is had ther e on
or until the owner gi ves such bond and s e curity as is required
o f the own e rs of armed v e ssels by the precedi ng section
Section 5 2 9 1 de fi nes the construction to be put upon the
n e utrality laws They are not to b e construed to ext e nd to
any subj e ct or citizen of any foreign Stat e who is on ly
transi e n tly within the United States nor directly to be con
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S ec
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5 286
.
War
N e u tral R i gh ts i n th e A n glo B o e r
34
-
'
[
.
1 86
fore ign stat e at peac e with H e r M aj esty
or wh e ther a
B ritish subj e ct or not withi n Her M aj e sty s dominio n s i n
duces an y other person to accept an y commi ssion or engage
ment i n the military or n aval service of an y
fore ign
state
he shall be guilty o f an o ff en se against this act
“
I f an y p e rson induces an y oth e r person to quit Her
And
M aj esty s domi n ions or to e mbark on an y ship within H e r
M aj esty s dominions und e r a misre presentation or false re p
r e se n tati o n o f the service in which such person is to be e n
gaged with the in tent o r in order that such person may
acc e pt or agree to acc e pt any commission or engagement in
th e military or naval s e rvice o f any for e ign state at war with
a fri e ndly state
he shall b e guilty of an o ff e nse against
this act
The last clause of A rticle six of the Treaty of 1 87 1 read :
“
A n d the High Contracti n g Parti e s agree to observe these
rules as b e tween th e mselves in future an d to bring th e m
to the k n owledge o f other maritim e Powers and to i nduce
‘
th e m to accede to them
Th e se provisions were strictly e n forced during the Span
ish A m e rican W ar and other countries in their declarations
de fi n e d the neutral attitude which they assum ed
The B ra z ilian Governm e nt in its proclamation o f A pril 2 9
“
The exportation of material o f war from
1 898 d e clar e d :
the ports of B r azil to thos e of either of the bellige r e nt
powers und e r the B razilia n flag or that of any other nation
‘
It was also pointed out that :
is absolutely prohibit e d
Individuals residing in B razil citizens or foreigners must
abstain from all participation and aid in favor of either o f
the belligerents and may not do any act which might b e con
s i d e re d as hostile to either one of the two parties and ther e
“
u t ral ity A pl 26 1898 I t was po i t d
B r iti sh d clara ti o of
ou t that th i s ac t xt d d t all H M aj s ty s d o m i io s i clu d i g
a
d
j
ac
t
t rr itor i al wat rs
th
“
p 260 G r a t B r ita i
Cush i g T r aty o f Wash i gt o
was a v rs t o th acc ep t a c of th i s articl of th t r aty b t fi ally
acc“ d d t o i t i th a bo v t rm s by s i g i g th m u t ual agr m t
A t I V o f th B raz l a p rocla m a ti o of
u t ral ity ; F or R l
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ee
.
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,
187
]
e u trali ty o
N
f
th e U n i te d S ta te s
35
.
‘3
fore contrary to th e obligations o f neutrality
N either
“
belligere nt was to be p e r mitt e d to pro m ote enlistmen t in
B ra z il not only o f its own citi z e ns but also o f the citizens o f
oth e r countries for the purpose of incorporati n g them i n its
‘
forc e s of land and sea
N o t eve n m e rchant v e ssels were
to be pe rmitted to weigh anchor in B razilian ports until
permission from the port authorities had b e en granted and
any mov e ments o f th e belligerents w e re to be under th e
supe rvision of the customs authoriti e s for the purpose of
“
veri fyi n g th e proper cha r acter o f the things put on board
The decre e of D e nmark forbade D a n ish subj ects to com
“
mit certain enumerated o ff e nses and among th e m : On or
from D anish territory to assist an y o f the b e lligerent powers
in the enterprises of war such as supplying th e ir ships with
articles that must be considered contraband o f war ‘
“
D anish subj ects were forbidd e n
to take servic e i n any
quality soever in the army o f the b e lligerent po w e rs or
on board their gov e rn ment ships such prohibition to
include piloting their ships o f war or transports outsid e
the reach of D an ish pilotage or except in case of danger o f
‘
To build or
the sea assisting them in sailing the ship ;
remod e l sell or otherwis e conve y directly or indirectly for
or to any o f the bellige re nt pow e rs ships known or supposed
to be i n t e nded for any pu rposes o f war or to co operate in
an y m a n ner on or from D anish territory i n the arming or
“
fi tting out o f such ships for enterprises of war
To
tra n spo rt co n traband of war for any o f the belligerent pow
ers or hire or cha r t e r to them ships kn own or supposed to
‘
be int e nd e d for such use
“
J apan forbade the selling purchasing chartering arm
i n g or equipping ships with the obj ect o f supplying th e m
”
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9
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F
or
“
“
R e l , 1 89 8, pp 84 7 ff , A rt I
I bid , A rt I I
“
I bi d
t s X I I an d I I I
r
“
e c on I
( 3 ) of D a n sh proc a m a
or
R e l , 1 898, p 85 5
1 898 ;
"
M i d , S ec I
“
11
nd , S e c I
“
I bi d , S e c I
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ti
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l
ti o of
n
ne
u t ral i ty A pl
,
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29,
N
36
e u tral
War
R igh ts i n th e A n glo —B o e r
[
1 88
to o n e or the other o f th e b e lligerent pow e rs for use in war
or privat e e ring ; th e assisting such char t e ri n g arming or
equipping
The N e therlands proclamation warn e d all D utch subj ects
“
un d e r pen alty against exporting arms a m munition or
oth e r war mat e rials to th e parties at war [ to include ] e very
thing that is adaptable for i m m ediat e u s e in war
A lthough the pri m ary obj e ct o f thes e prohibitions was th e
stoppage of all dealin gs in articles of a con traband nature
wh e n fairly con strued in the light of intern ational opinion
they would s e e m to render ill e gal the w holesale deali n g in
horses and mules int e n d e d for army pu r pos e s by o n e o f th e
belligerents Such animals are undoubtedly adaptable for
imm e diat e use in war and w e re in fact a necessity for th e
succe ss ful carrying o n of th e war I n the light of the ex
pre ss restrictions o i the Treaty of W ashington as e xempli
fi e d in the war b e tw e e n one of th e parti e s to that treaty and
a third party in 1 898 the obligatio n impos e d upon th e
Unit e d States i m pli e dly at any rat e by the sixth article o f
the mutual agre emen t of 1 87 1 might be read : The Unit e d
States is bound not to permit Great B ritain to ma k e use
of its ports or wat e rs as the base o f naval operations against
the South A frican R epublics or for the purpose of the
renewal or augm e n tation o f military supplies
It would se e m obvious that ho r ses an d m ules wh e n i n
tended for i m mediat e use in military operations are within
the mea n ing of the term military supplies
In numbers
o f i n stances horses hav e been consid e red con traban d o f
war T h e treaty o f 1 7 7 8 betw e en th e United States and
F ranc e d e clared : Horses with their furnishings are con
trabaud o f
In the treaty o f D ec e mber I 1 7 7 4
b e tween Hollan d and Great B ritain it was understood that
Horses and other warlike instruments are contraband of
"
A t 4 o f J apa s
p roclam ati o o f u t ral ity M y
898
F or R l 898 p 87 9
A rt I I ( b ) of N th rla d s procla m atio of u t ral ity M y 3
898
F
or
R l
898 p 888
“
A rt c l XXI V ; Wharto D i g s t of I t L w
Vo l I I I
,
,
”5 °
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,
,
”61
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”
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ne
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1
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37 2
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,
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,
a
,
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n,
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n
.
a
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,
1 89
]
war
N
e u trali ty o
f
U n i te d S tates
the
37
.
Hall declares that horses are generally con
s i d e re d contraband an d a re so mentioned in the treaties
between di ff e rent Stat e s H e poin ts out that the placing
o f an army on a war footing o ften exhausts the whol e horse
reserve of a count r y and subsequent loss e s must be supplied
from abroad ; the n e cessity for this is in proportion to the
magnitude of the armi e s E very imported hors e is prob
ably bo ught on accou n t o f the Government and i f it is not
som e other hors e is at l e ast set fre e for bellige re nt use
“
“
Under the m e re light of common sense he says the
possibility o f looking upon horses as contraband seems
”
hardly open to argum e nt "
Oppenheim shows that the impo rtance o f ho r ses and
beasts o f burd e n for cavalry artillery an d milita ry tra n s
port suffi cie n tly explains th e ir being declared contraband
by bellige re nts H e ass e rts that no argu m e n t against their
being held as conditional con traband has any validity and it
is admitted that they are frequently decla red absolute con
“
D uring the R usso J apanese W ar R ussia at fi rst
t rab an d
refused to recognize any distinction betwe e n conditional and
absolute contraband but later altered her decision with th e
“
exception of horses and beasts o f burden which she
tre ated as absolute contraband
The tendency in modern times however is to treat hors e s
as only conditional contraband The o n ly r e ason that they
were not e xp r essly declared co n traband in th e A nglo B oer
con test was the character of the war Had the Transvaal
be e n able to issue an authorita tive declaration and insure
resp e ct for it by a command o f the sea horses an d mul e s
would have been considere d t e chnical contraband as in fact
they were act ual co n traband being nothing i f th e y w ere
not warlike instru m e n ts
The en forcement o f th e obligations incumbent upon the
Unit e d Stat e s under the circum stances undoubtedly lay with
the Fe d e r al Gov e rnm e nt rather than with the Stat e s E arly
in 1 90 1 a proc e eding i n equity had been instituted in a
“
pp 5 7 9—5 80
I t r a ti o al L w
“
I t r ati o al L w V ol I I p 426
.
And
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n e n
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e u tral
N
38
R i gh ts i n th e A n glo B o e r
-
War
[ 1 90
.
federal court in N e w O rleans for the purpose o f enj oining
th e shipment of horses and mules from that port to Cape
The bill was fi l e d by p r ivat e i n dividuals who a1
Colo n y
le ge d that they had prop e r ty in the Transvaal and Ora n ge
F ree State which was b e ing destroyed by the arm ies of
Great B ritain and that these armies w e re able to conti n ue
th e ir wor k o f d e structio n o n ly by m eans o f the suppli e s of
horses and mul e s which w e r e shipp e d from th e port of N e w
O rleans
The application for an inj unction was d e ni e d
o n th e ground that the e n forc e ment of the treaty obligatio n s
o f the Governm e nt is a fu n ction o f the President with which
the courts have nothin g to do
The district j udge i n deliv e ring the Opinion declared that
there was nothi n g in the pri n cipl e s of international law or
in the te r ms of th e Tre aty of W ashi n gt on to which an
app e al had b e en mad e to pre ve n t th e citiz e ns o f a n e ut r al
state from s e lling suppli e s of war to a b e lligerent The
court w e nt o n to discuss th e right of pr ivate citi z e ns to
sell supplies to bellig e re n ts but did not ent e r upon the
question wh e ther or not th e Unit e d States had permitted
the B ritish Governm e nt to make use of its ports and wat e rs
as a base for the purpose o f the augmentation of its mili
tary supplies T h e e n tire discussion of qu e stions of int e r
national law was conside red by the court as b e yond its
cognizance The court said : I f the complai n ants could
b e heard to assert here rights personal to th e m s e lves in th e
treaty j ust m e n tioned and i f the mules and horses involv e d
in the cas e are munition s o f war all of which is disputed
by the defendants it would becom e necessary to det e rm ine
whether the treaty is meant to pr e vent private citi z ens f r om
s e lling supplies to the bellige re n ts
The court th e n pro
ce e d e d :
B u t the nature of this cause is such that none of
the considerations herei n b e fore set out need be decid e d
“
because the case is a political one o f which a court o f
e quity can tak e no cogni z ance
and which in the v e ry na
ture of gove rn me n tal things must belong to the ex e cutive
branch of th e Govern m e nt
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P e arson
v
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Parson
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1 08
F e d R ep
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46 1
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I
9
I
]
N
e u trali ty o
f
U n i te d S tates
the
39
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It will be seen that the court did not pass upon the ques
tion o f an improper use of the ports o f the United Stat e s
Clearly an inj unction could not be granted since such a
measure would not have had the eff ect of remedying the
evil It could not issue for it was not established that there
were private property rights to be protected The com
plainants could show no property in th e implications of the
treaty nor could they establish the fact alleged nam ely that
horses and mules are munitions of war Th e last question
was one for the F ederal Governme n t alone to pass upon
under th e circumstances Political obligatio n s are not proper
matters for en forcement by the courts B ut the court did
declare e m phatically that the enforcement o f all neutral o h
ligations with re ference to the ports and wat e rs o f the
United States was the function o f the executive branch o f
the Government
The question at once arose whether it was a function of
the state or o f the federal executive to s e e that the n e u
trali ty laws were properly en forced
In submitting the
evidence of the Operations of the B ritish agents within the
State o f Louisiana Governor H e ard declared it to be his
Opinion that it was the proper function o f the federal and
not o f the state Government to en force obedience to these
“
laws ; but he concluded i f such duty belongs to th e S tate
w here the violations o f such laws occur I would not hesi
tate to act as the laws may warrant and in keeping with the
dignity and responsibilities o f
The Go vernor
asked that he be in formed immediately what in th e opinion
of the federal authorities were the powers and duties o f
the state governm e nts in matters of this character
Unquestion ably it lay with the federal executive to see
to it that the neutral obligations of all the States were prop
erly observ e d Certain duties rest upon the governors of
the diff erent States but it is the fu nction o f the President
to carry into e ff ect the laws regulating neutral obligations
as well as the provisions o f all treaties with foreign powers
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Do c 5 68, 5 7 Co n g
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S ss p
e
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N
4O
War
R i gh ts i n th e A n glo B o er
eu tral
-
[
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19 2
as a part of the law of th e lan d This duty was poi n t e d
out by Secretary R andolph in a circular of A pril 1 6 1 7 95
to th e gov e rnors of the di ff e re nt Stat e s duri n g th e war
b e tw e en F ran ce an d E ngland H e defi ned the duties of
n e utrali ty and conclud e d : A s often as a fleet squadron or
ship of an y b e lligerent nation shall clearly an d u n e qu i vo
cally u se th e rive rs or other wate r s
as a station in
ord e r to carry o n hostile e xp e ditions from th e nc e you will
cause to b e noti fi e d to th e c om mand e r th e reof that th e
President de e ms such co n duct to be contrary to the rights
of our n e utrality
A sta n ding ord e r to this e ffect may
probably be advantageously plac e d in the hands o f som e
con fi dential offi cer o f the militia and I must e ntreat you
to instruct h i m to write by m ail to this D epart m ent i m
mediately upon the happ e n i n g of any case of th e kind
It was th e duty of the c entral Gov e rnment to pre ven t as
far as possibl e any abuse of the privil e ges which th e laws
“
A Governme n t is
of war allowed to th e belligerents
j ustly held responsibl e for th e acts of its citiz e ns said
J ustice M cL e an of th e Un it e d States Supr e m e Court sp e ak
ing o f th e Can adian insurr e ction of 1 838 A n d he con
I f this Go vern m e nt be unable or unwilling to re
ti n u e d :
strain our citi z e n s f r om acts o f hostility agai n st a friendly
power such pow e r m ay hold this nation answerabl e and
declare war against i t
Cle arly th e r e spon sibility for th e p r oper r e strai n t r e sted
upon th e Presid e n t with r e f e r e n ce to th e i n cide nts which
occurr e d a r ou n d N e w Orl e ans The fact that forbidde n
acts committ e d withi n the jurisdiction of a State of the
U n ion e scape punishm e nt within that State does not reli e ve
th e c e ntral government o f respo n sibility to foreign govern
ments for such acts In view of this fact the citiz e n s of the
separat e States should remembe r th e consequ e n c e s which
may r e sult from their acts The warni n g of J ustice M c
Lean sp e aki n g o f th e incid e nt alr e ady cited is to the point :
‘
M o or
D i g s t of I t L w V ol V I I p 934 9 3 5
“
Ct g R g
R cor d r of W ol v rha m p to 8 L w T 395
also H R D
S ss p 7
3 98 ;
5 68 5 7 Co g
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7
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i
in
see
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e
n
21
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e
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a
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e
oc
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e
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n,
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e
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a
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1
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e u tral
N
42
R i gh ts i n th e A n glo B o e r
-
War
[
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19 4
South A frican R epublic brought out the fact that the num
ber of those who clai m ed comp e nsation was n o t large and
that the B ritish Gov e rnm e nt was willi n g to ind e mni fy
th e m
The terms of settl emen t allowed to th e United
States w e re in marked contrast to those granted to other
powers whos e citizens or subj e cts had also presented claims
for indem n ity through their r e spective gov e rnments This
fact is e vident from the transactions before the D eporta
tion Claims Commission the appoi n tment of which was an
1 90 1
n o u n c e d on A pril 8
“
The com m ission came toge th e r for the purpose of i n
ve s ti gati n g the clai m s to compensation which have been
made or may be mad e by persons the subj e cts of various
friendly pow e rs in conseque n ce of their deportation to
E urope by th e B ritish military authorities in South
“
It was to b e composed of fiv e m em b e rs among them R
K Loveday E sq form erly a memb e r of the late South
A frican R e public
T h e commission was to meet in Lon
don to hear such cases as might be pr e sente d there and then
proceed to South A frica with th e purpose of contin uing its
investigation s A n y further evidence that was consid e red
necessary was to b e taken on th e re turn to London It was
announc e d that all clai m s should be fi led on or before A pril
1 90 1
25
that claiman ts might appear eith e r i n p e rson or
by counsel and that th e di ff erent governments might re p re
s e n t th e combined claims o f th e ir resp e ctive citize n s or
subj e cts
M r R N e wton Crane appeared b e fore the commi ssion
on the part of th e United States In all fi fte e n claims w e re
pr e sented F ive of these were presen ted by persons who
all e g e d that they were native born citizens o f the United
States although no evidence was furnished as to th e date
o r place o f their birth E ight all eg e d that th e y were natur
ali z e d citizens while th e re were two who could produc e no
evid e nce whatever o f their status E ight had be en deported
5 9
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R es
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e ss
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1 7 8,
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5 6 Co n g ,
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S
I
e
ss
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F or
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R el ,
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1 901 ,
pp
2 1 6 222
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a l so
H
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R
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D o c 6 1 8 5 6 Co n g
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19 5
N
]
e u trali ty
o
f
th e U n i te d S tates
43
.
suspicion of having be e n co n cerned in the J ohannes
burg plot to murd e r Lord R oberts and other E nglish offi cers ;
one had been imp r isoned at N atal as a B oer spy ; another
was captured on the fi eld of battle while serving as he
alleged with a R e d Cross ambulance corps attached to the
B o e r forces ; three others were co m pelled to l e ave the coun
try for various re asons while two more could produce no
evid e nce that th e y had b e en forcibly deported ; on the con
f rary it appeared that th e y had left South A frica vo lun
f arily and at their own expense
The whole amount claimed
was
on account of actual losses alleged The
commission heard all claims by means o f an ex p ar te state
ment in e ach ca se with the exce ption o f two for which no
stateme n t had been presented These last two had been
mentioned as claimants by the A mbassador o f the United
Sta tes on October 2 4 1 900 in a comm unication to Lord
La n dsdowne the E nglish Secreta ry o f Sta te for F oreign
A ff airs and were so presented to the consideration of the
commission
In d e aling with the cases the commission did not insist
upon any technical formality in the way of proo f The plan
f ollowed w as to allow the legal representative o f the E nglish
G overnment an opportunity to explain why each individual
had been deport e d The several claimants were then per
m i tt e d to put in evid e nce to clear themselves of these
charges A fter the claims had all been co n sidered in this
way the E nglish repr e sentative announced th e wish of his
“
government to agre e with th e repres e ntativ e s o f the vari
ous governm e nts upon a lump sum to be rec eived by each
o f the pow e rs i n full satis faction of the de m ands of their
respective claimants it being understo o d that the B ritish
Government was not to be co n c e rned as to how the sums
so paid were allocated among the various clai m ants
This
proposal was acc e pted by the United States and by the other
governments represented
W ith the annou n c e ment of the decision o f th e commis
on
th e
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F or
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R el ,
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1 90 1 ,
p
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22 1
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N
44
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[
196
on Octob e r 2 8 1 90 1 M r Cra n e pointed out that
it had b e en very diffi cult to d e t e rm i n e the real merits of
most of the claims D ifli culty had be e n experienced not
only i n asc e rtaining th e real facts but in applying the prin
M an y o f the facts
ci p le s of i n t e rnational law as well
alleg e d by the claiman ts were not substantiated and it was
only the considerate vi e w tak e n by the B ritish Gov e rnm e nt
which made possible a settlem e nt so favorable to th e Unit e d
States
Holland put in a claim for
in behal f of 1 1 39
persons who alleg ed that th e y were D utch subj e cts and
re cei ve d
per ce n t of that amount or
which
was the highest actual award made although the lowest
pe r c e ntage o f the sum claim e d Germany r e c e ived
or
pe r cent of the amount clai m e d for 1 99 persons ;
A ustria Hungary
or
p e r cent for 1 1 2 p e r
h
e
son s ; Italy
or
cent
for
1
1
persons
t
e
r
;
3
p
United Stat e s
or
p e r ce n t for 1 5 perso n s
B u t M r Cra n e called attention to the e vid e nt e rror o f basing
a calculation upon th e relation the award in each case bears
to th e am ount claimed The amount claimed in most cases
is not what the clai m ant thi n ks he is j ustly entitl e d to for
the losses he has sustained but is th e amount which his
“
caprice or cupidity fi xes as that which may possibly b e
allowed him
A mon g the A m erican claims a n umb e r
“
included demands for moral damages and th e s e claim s
were larger than similar demands put in by citi z e n s of other
coun tries E ven am on g th e A m e rican clai m a n ts th e m selves
there was a wide diverge n ce in appraising th e ir loss e s
actual as well as moral O f thre e in th e sam e occupation
the same employment the sam e dom e stic surroundings d e
ported tog e ther at abo ut th e same ti m e and u n der almost
ide n tical circumstances o n e d e mand e d
th e secon d
app r aised his losses at
and the third estimat e d
his losses at
W ith r e f e rence to the A merican claimants the conditions
si o n e rs
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F or
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R el ,
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1 901,
p
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22 1
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1
97]
N
e u trali ty o
f
th e U n i te d
S tates
45
.
under which the perso n s wer e d e ported w e re pract ically the
sa m e and there was little i f any distinction as to soc ial
ra n k or grade o f employment M r Cran e there fore se e ms
j ustifi ed in his co n clusion that the id e a conve yed by the per
centa ge relatio n of th e amount demanded to the amount
actually awa r d e d is misleading and should not s e rv e as a
preced e n t without c o mment for similar claims in the fu ture
A m uch fair e r method for ascertaini n g what the award
r e ally amounts to is shown to be that of computing what
average sum each clai m ant receiv e d since the claimants
were practically of one wal k of li fe and e mployment and
w e re d e po rted under like conditio n s Such a computa tion
shows that the United Stat e s fared much bette r than any
one o f the other gov e rnments the av e rage sum receiv e d by
each claiman t bei n g £42 8 1 1 5 5 d as co m pared with £ 1 5 0 1 5 5
for Ge rmany ; £ 142 I 7 S 1 d for R ussia ; £ 1 33 1 8 5 6d for
A ustria Hungary ; £ 1 3 3 65 8 d for B elgium ; £ 1 2 5 for N o r
way and Swed e n ; and £ 106 3 5 1 0d for Italy
The
o ff ered by the B ritish Gov e rnm e nt as full
comp e nsation for all claims of citizens of the United States
on account of wrongful arrest imprisonment and d e porta
tion from South A frica up to October 2 6 1 90 1 was ac
ce p te d by Secr e ta ry Hay
had been originally
Only
off ered but the amount had a fterward been increased to
Throughout the negotiations the attitude of the
E nglish Government was generous toward the United
States The claimants included go od bad and indi ff ere nt
som e o f whom were not entitled to compensation at all
si n ce they were not citizens o f the United States while
others had actually taken up arms against Gr e at B ritain
The average amount awarded to each all e ged citizen o f the
United States was approximately $2000 as against $ 2 1 6 for
each claimant of all other Governments taken together
In a number o f cases the claimant s had contracted with
local attorneys upon the basis of a contingent fee of 5 0
In o e case the
p e r cent of whatev e r might be awarded
f e e of the attorney presenting the claim amounted to $37 5 0
,
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46
N
e u tral
R i gh ts i n th e A n glo —B o er
War
[
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198
although his services con sist e d i n m e rely fi ling memorials
which were not supported by a single wo r d of proof o f
th e assertions th e y contain e d even aft e r ample time had
b e en give n for the i n troduction of such proof M r Crane
th e refore urge d that in futur e si milar clai m s should be
pre s e nted directly by th e citi z ens thems e lve s w ithout the
intermediation of attorn eys In the presen t cases he said
that his r e quests to the attorneys for the di ff erent claiman ts
to furn ish evid e nce to m e e t th e accusatio n s of the B ritish
Government against th e ir clients had met with no respon se
whatever He felt j usti fi ed in believing that thes e atto r
neys had either giv e n up the presentation o f the claims o f
th e ir clients or that the latter were dead It was accord
i n gly sugg e sted that in e ither case th e Unit e d States would
be j usti fi ed in refusing to pay over to the attorneys such
sums as might be allotted to their clients until the latt er had
been directly com m unica ted with In this way they would
have the opportunity to con fi rm or withd r aw any po w ers o f
attorn ey which th e y might have executed for the collection
of their respective claims
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CH A PT E R
TH
E
N E U T RAL ITY
OF
II
.
E U R OP E A N
POW E R S
.
The attitude o f the E uropean powers was generally o h
servant o f the requirements o f n e utrality in so far as gov
e rn m e n ta l act ion could be proved
The frequ e nt charges
which Great B ritain made that the Transvaal was recruit
ing forces in E urope were not proved against the States
from which th e recruits came The numbers in the parties
w h ich perhaps actually j oined the B oe r forces were not
large and no formidable fi tting out o f an expedition or
wholesale assista nce was proved against an y E uropean gov
.
.
,
e rn m e n t
.
Ge rmany the power m o st nearly in touch with the Trans
vaal in South A frica with the exception o f Portugal early
declared the governmental attitude toward the struggle
The German consul general at Cape Town on October 1 9
1 899 issued a proclamation enj oining all German subj ects
to hold aloof from participation in the hostilities which
Great B ritain at that time had not recognized as belligerent
in character I f insurgency be recogn ized as a distinct
sta tus falling short of be lligerency this was perhaps such a
recognition but it was in no sense an un friendly act to
ward Great B ritain I t was merely a warning to German
subj ects as to the ma n ner in which they should conduct
themselves under the circumstances It did not reco gnize
the B oers as belligerents in the international s e nse but it
warned German subj ects that a condition of aff airs existed
which called for vigilance on their part in their conduct
toward the contestants L ater when the B ritish Govern
ment announced that the war would be recogn ized retro
actively as e ntitl e d to full belligerent status Germany de
c la re d the governmental attitude to be that o f strict neutral
ity in the contest A n attempt of the B oers to recruit in
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47
N
48
R i gh ts i n th e A n glo B o e r
e u tral
-
War
[
.
2 00
D amaraland
was promptly stopped by the German offi cers in
control w ho we r e ordere d to allow neither m e n nor horses
to cross the border for the purpos e s o f th e war A ll Ger
man steamship lines which h e ld subventions from th e Gov
e rn m e n t were warned that i f they were
found carrying
contraban d th e y would thereby forf e it their privileges
Stringen t ord e rs were also gi v e n by the di ff erent G e rman
ship com panies to their age nts i n n o case to S hip contra
band for the belligere nts The attitude assu m e d by the
German Govern m e nt was not enti r ely in accord with th e
popular f e e ling in G e rman y On October 5 a mass meet
i n g at G Otti n ge n before proceeding to the business for
which the c on ference was called proposed a res olution o f
sympathy for the B oers : N o t because the B oers are e u
ti re ly in the right but because we Germans must take sides
against the E n glish
B ut d e spite popular sentime n t the
position which had been taken by the Government seems to
have b e en consistently maintai n ed
In J une prior to the outbre ak o f war Presid e n t Kruger
had been advised by the D utch M inister for F oreign A ff airs
that th e Transvaal should maintain a moderate attitude in
the discussion of the q uestions at issue with the B ritish
Government The German Government too had advised
the R epublics to invite mediation but at that time President
Kruger declare d that the moment had not yet come for
applying for the mediation of A merica The Unit e d States
it was considered by both Holland and Germany could most
success fully have und e rtaken the role of mediator from the
fact that E ngland would have been more li k ely to entertain
proposals of the kind coming from W ashington than from
a E uropean capital
In De cemb e r 1 900 Count Von B ii lo w the G e rman I m
perial Chancellor speaking of the neutral attitude o f Ger
many declared that when President Krug e r lat e r attempt e d
to secure arbitration it was not until feeling had become
so heated that he was compelled to announce to th e D utch
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1
L on
d o T im
n
e
s W e e kl y
,
Ed
.
,
Oct 5 ,
.
1 899,
p
.
626,
col
.
2
.
N
5O
eu tral
R i gh ts i n th e A n glo B o er
-
War
[
.
202
test as oth e r wise it would not hav e be e n mediation but i n ter
ve n ti o n with the ulti m ate possibility of th e e xercise of forc e
fo r the purp ose of stoppi n g the hostilities Int e rventio n of
that ki n d i n volving th e idea of co e rcion was never co n si d
ered by th e German Govern m e n t be cause of th e ge n e ral
situation of th e world and of sp e cial Germa n i n t e rests The
idea o f an yt hi n g oth e r than e n tire ly peace ful and friendly
int e rv e ntion was not e n t e rtai n e d by an y po w e r i n consid e r
ing the S ituation in South A frica T h e German Chan cellor
declared that e ven those Powers which aca d e m i cally ve n ti
lated the idea of peaceful m e diation i n variably and expr e ssly
laid stress upon th e fact that th e y had no thought or i mt e n
tion of fo r cin g E ngland to acc e pt pe ace agai n st h e r will
He assert e d that the possibility of mediation was thus ex
cluded sinc e the p r e limi n ary condition o f such a course was
th e cons e n t o f both parties to the co n flict
Count Von B ii lo w also call e d att e ntion to the fact that th e
gentlest form o f diplomatic i n quiry made by the Unit e d
“
Stat e s had been rej e cted by th e E n glish Gov e rn m ent o ffi
c i ally and cat e gorically i n the most distinct ma n n e r possible
“
W e th e refore did
An d sp e aki n g Offi cially he conti n u e d
what we could as a neutral Power and without imperilling
direct Ge rman interests i n order to prevent th e outbreak o f
war I n particular w e acted in the m ost straightforward
mann e r toward the govern men ts o f th e South A frican R e
publics inasmuch as from the fi rst an d in good ti m e we le ft
them in no doubt r e gardi n g the situation i n E urope and also
regarding our own n e ut r ality in the event o f war in South
In both thes e re gards w e made matters clear to th e
A frica
two South A frican R e publics an d did so in good
The Chan cellor seems to have fairly d e fi n e d the po sition
maintained by th e German Go vernme n t throughout the war
although popular feeling often clam or e d for offi cial action
in b e hal f o f the B oers
A similar course was pursued by the F rench G overnm e nt
despite th e fact that in F rance popular sympath y was more
,
,
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,
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o
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”
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,
,
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.
,
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S p ch
ee
in
R i chs tag
e
,
D ec
.
1 0, 1 900
.
203
]
N
e u trali ty o
f
E
ur o
p
P o w ers
e an
5
.
1
strongly in favor of the Tran svaal tha n was the cas e in
‘
Ge rman y N o Ofli c i al action howev e r was tak e n which
could i n volve F ra n ce in co m plications in vi e w o f the d e
c lare d neutral attitud e assumed at the b e gi n ning of the
war T h e a d mi n istrati o n at Paris ord e re d th e pre fects
throughout the country 10 have re moved from the o fficial
minut e s the resolutions o f sympathy for th e B oers which
had b e e n adopted by the provi n cial councils B ut oppos e d
to the correct attitud e o f the Govern m e nt popular feeli n g
was mani fested in di ff ere n t ways A committee of ladies
in Pa r is mad e a di r e ct appeal to the F r e nch p e ople They
d e clared : W e are not biased e n e mi e s o f th e B ritish N atio n
but we hav e a hor r or of graspi n g fi n anciers th e m e n of
prey w ho have con coct e d in cold blood this rascally war
They have committed with premeditation a crime of lese
M ay the blood which red
k uma n i te th e greatest of c r imes
den s th e battle fi e ld s of South A frica forever be upon th e ir
h e ads
Yes we are h e art and soul with the Boers
W e admire them b e cause old men an d you n g women even
are all fi ghting lik e heroes
A las "to be sure there is
n o mor e a F rance nor yet an A m erica
Ah "
Id e al abod e
o f the human consci e n c e fou n d e d by Socrates sa n cti fi ed by
Ch rist illumi n ated in flashes of lightn ing by the F rench
R evolution what has become o f thee " There is no lo n g e r
a com mon t e mple for civilized states Our house is di
v i d e d against itsel f and is falli n g asund e r
Peac e r e igns
everyw here save on the banks o f the Vaal but it is an armed
peac e an odious p e ac e a poison e d pe ace which is eating us
up and from which we are all dyi n g
Such hysterical
outbursts in F ranc e were not tak e n seriously by the Gov
e rn m e n t an d the feeling which inspired th em was po ssibly
more large ly due to histori c hatred of E ngland than to the
i n here nt j ustice o f the B oe r cause
The N i n th Peace Con fe ren c e which was i n s e ssion at
Paris in the fall o f 1 900 without expressly assuming the
right o f interf e ring in th e a ff airs o f a friendly nation fur
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” 5
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‘
L on
do
n
i
T m e s,
A pr il
2,
1900,
p
.
5,
co l
.
5
.
,
5
N
2
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[
.
2 04
th e r than to emphatically affi rm the u n change able principl e s
o f i n t e rn ational j ustic e adopt e d a re solution d e claring that
th e r e spo n sibility for the war d e vastating South A frica fell
upon that o n e O f th e t w o parties who r e p e at e dly re fus e d
arbitration that is it was explain e d upo n the B ritish Gov
that th e B ritish Gov e rn m ent in ign ori n g the prin
e rn m e n t
c i p le s o f right and j ustice
i n refusing arbitratio n and in
using men ac e s only too likely to b r i n g about war i n a dis
pute which might have been settl e d by j udicial m e thods
had comm itt e d an outrage agai n st th e rights of nation s cal
cu late d to retard th e paci fi c e volutio n o f humanity ; that the
Govern m e nts re pre s e nted at the Hague had tak e n no public
measures to e n su r e re sp e ct for th e resolutions which Should
have be e n regard e d by them as an e n gage m e nt o f hon or ;
that an app e al to public opinion on th e subj ect o f th e Trans
vaal was advoc at e d and sym pathy and adm i ration were e x
pr e ssed for th e E nglish m e mb e r s of the con f e rence
The usual F re n ch attitude toward Great B ritain was ex
p r e ssed in th e se re solutions but the con f e rence was not
pre pared to go so far as to adopt a resolution proposed by
a m e mb e r from B elgium expre ssi n g the hope that the mis
tak e o f deprivi n g th e R epublics of their indep e n denc e would
not be com m itt e d and favori n g an e n e rge tic app e al to th e
pow e rs for int e rv e ntion The resolution was rej e ct e d by a
large ma j ority o n the grou n d that it would b e i m politic and
naturally irritatin g to E n glan d an d without much proba
bili f y of favorabl e results bei n g attain e d
W h e n the del e gation of th e B oe rs which was sent to appeal
to the E uropean Pow e rs for action in b e hal f of the R epub
lies reached Paris in J uly 1 900 th e attitude o f th e F re nch
Gov e rn m ent was n o t altered n o r w e re the envoys encouraged
to hope for i n terv e ntion Th e y were received by th e Presi
de n t but only in an i n formal and u n o fli ci al mann e r when
p r ese n t e d by D r L e yd s When they reach e d B erlin in
A ugust n eith e r the E mperor nor the Chan c e llor was in the
city an d con s e que n tly the visit had no o ff icial signi fi can c e
”
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8
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,
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,
“
L on
do T im
n
e
s
,
Oc t 3,
.
1 900,
p
.
3,
col
.
3
.
2 05
]
e u tra li t
N
y
o
f
E ur o
p
P ow e rs
e an
53
.
but in St P e tersburg a more favorable re ception awaited
them T h e Official M esse n ger an nounced o n A ugu st 2 6
that D r L e yd s had b e en received i n audi e nc e by th e Czar
This stat e me n t comi n g as it did from the offi cial organ of
the F o r e ign Offi ce s e e m e d to signify a full re cognition o f
the accre dit e d ch aracter of the del e gation and D r L e vd S
was re fe rred to offi cially as M i n ister of the South A frican
R e public
W ith th e e xc e ption O f the B ritish M inister h e
was re ceived by all of the diplo m atic co rps a courtesy which
the members could not well have denied him but as to p rac
tical results the missio n to R ussia a m ounted to nothing
On thei r return to G e rmany the e nvoys receiv e d no o ffi cial
notic e T h e s e cret instructions which th e y had opened on ly
upon re aching M ilan w e re supposed to have contain e d cer
tain communications which had be e n exchanged be twe e n the
Governments o f th e Transvaal and Gre at B ritain but which
it was alleged had not be e n published in the B lue B ooks
This assertion o f S inister motiv e s o n the part of Great B rit
ain exerted little influ e nce upon foreign governments i n
E urope
The del e gation re aliz e d the impossibility o f se
curing th e interferen c e o f a conc e rt o f Powers or of any o n e
State agai n st the wishes of E ngland The mission of the
B oers had been doom e d to failure from the b e ginning
The action o f the Q u e en of Holland in re c e iving the dele
gati o n was gen e rally understood as not o f an u n n e utral
character but as inspired by sympathy for a kindred people
and a willi n gness to mediat e though not to int e rven e It
was r e cogn i z ed that n o nation whose intere sts were not
directly concerned could aff ord to persist i n o ff ers o f medi
atio n in view of th e fact that G r eat B ritain had already inti
mated to th e United States that such an o ff e r could not be
acc e pted A lthough Holland re fus e d to intervene th e atti
tude assumed by th e D utch Go vernme n t i n other respects
caus e d severe criticism in E n glan d f Th e chief circu m sta nce
which co n fi rmed th e Opinion that Holla n d as a n e utral State
had not displayed a proper attitude at Lore nzo M arqu e s was
L o d o T i m s J uly 26
900
.
.
.
,
,
,
.
” 7
.
,
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,
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.
.
.
.
.
.
,
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'
n
n
e
,
,
1
.
N
54
e u tral
War
R i gh ts i n th e A n glo B o er
-
[
2 06
the fact that aft e r th e visit o f th e e nvoys of th e Tran svaal
th e Hagu e Gov e rn m e nt had se n t a man o f war to th e isla n d
o f St H e l e na which was b e ing used as a prison for the B o e rs
who were tran sport e d f r om South A frica This proce e ding
was view e d by E n gland as offi cious from th e fact that for
e i gn m e n o f war wer e n o t usually r e c e ived at that port
Popular f e e ling saw in th e d e spatch of th e m an o f war an
un fri e ndly act which might easily hav e le d to di ffi culty
B ut th e incident aside fro m th e b e n e vole n t character which
Holland had giv e n to th e e n force m e nt of h e r n eutrality
laws throughout th e war had n o signi fi canc e i n int e rnational
law It was ge n e rally consid e red how e ver that the f e e ling
which E ngland man i f e st e d with r e gard to th e visit of th e
cruis e r gav e som e ground for the suspicion that the B ritish
Gove rnm e n t m ight hav e had som e th i n g to conc e al at St
H e lena
T h e ge n e r al attitud e o f G e rman y F rance and R ussia
to w ard th e B oer mission was guided by a po licy of strict
adh e renc e to th e neutral obligations assumed at th e begi n ning
of th e war Thes e Powers in their offi cial statemen ts all
follow e d such a course rea lizi n g that it was dem and e d by a
sou n d for e ign policy They con sid e re d the ide a of i n t e r
although friendly i n t e re st for
ve n ti o n out O f th e question
the B o e rs and for the p e ac e ful purpos e o f th e ir mission was
evid e n t
F rom th e b e gi n n i n g o f the war th e activ e duti e s of neu
trali ty had fall e n upon Portugal si n ce n e ith e r th e Tra n s
vaal nor the Oran ge F re e Stat e poss e ssed a seaport F ifty
mil e s o f railway s e parat e d the Portugu e se ha r bor o f Lore n zo
M arques in De lago a B ay fro m th e Tran svaal bo rder and
from this point the road continu e d to Pre toria Lo re n z o
M a r ques being n e utral could not b e blockaded but b e ing
n e utral
it was th e duty o f the Portugu e se Government to
obs e rv e the laws o f neutrality Great B ritain alleged
that a constant stre am o f supplies and r e cruits pass e d ove r
th e Portugu e s e border to aid th e B o e r arm i e s
The d i ffi cultv
o n th e part of th e E n glish Govern m e n t
how e v e r was to
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—
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,
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,
,
2 07
N
]
e u tra li t
o
y
f
E ur o
p
e an
P o we rs
55
.
prove that the goods w e re in fact on their way to a h e lli ge r
ent destination or that s m all parties o f men were in reality
orga n i z ed ba n ds of recruits for th e fi ghting forces o f the
ene m y It was asserted that the manner in which Portugal
p e rform e d h e r neutral obligations demanding an absolutely
impartial treatment of both b e lligerents made D e lago a B ay
and the port o f Lore nzo M arques more valuable to the R e
publics than would hav e been the case had they actually been
in their po ssession
The e ffi ciency o f Portugal s performance o f neutral duties
varied duri n g the war A s early as A ugust 2 5 be fore nego
t i ati o n s had been broken o ff between the Transvaal and
Great B ritain the Portuguese Governor at Lorenzo M arques
re fused to permit two cargoes o f M aus e r ammunition to land
b e caus e it was consi gned to the Transvaal The amm un i
tion was trans ferre d to a Portugues e troop S hip and the
Governor assi gn ed as su ffi cient reason for his action the
fact that Great B ritain had urged the measure upon the
Portuguese authorities He stated that orders had be e n re
c e i ve d from Lisbon that gu ns and ammunition for the Trans
vaal should not h e landed until furth e r notice from the
Portuguese Govern m e nt The Transvaal stro n gly protested
against this act as a breach o f a treaty between the two Gov
e rn m e n ts in which by A rticle V I the Portuguese Govern
ment was prohibited from stopping ammunition intend e d for
the Transvaal but upon representations by E nglan d might
stop ammu n ition on its way to an y E nglish colony The
opinion in the Transvaal was that the act on the part o f
Portugal and Great B ritain con stituted an act o f war in that
p e ace able negotiations w e re still pending a view which
s e e ms fully warranted since Po rtugal possessed no right to
tre at any trafli c as contraband be fore war had b e gun A
petition was circulat e d at Pretoria advising the Gove rn m ent
to discontinue negotiations pending with E ngland looking to
a pe aceful settlement o f the issues between the two Govern
men ts A lthough this step was not taken the protestations
made by the Transvaal seem to have had their e ff e ct upon
.
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,
56
N
e u tra l
R i gh ts i n th e A n glo —B o e r
Wa r
[
.
2 08
Portugu e se authorities for upon th e outbr e ak o f wa r th e
banks at Lo r e n z o M arqu e s con ti n u e d to acc e pt Transvaal
coin an d aft e r th e fi r st flurry caused by th e tran sition f r om
p e ac e to war the T r an svaal notes were acc e pt e d at their
face value
B y the middle o f D e c e m b e r the E nglish Gov e rnm e nt had
b e gun to view th e con dition of a ff airs at the port of D e lago a
B a y and the town of Lo r e n z o M a r qu e s with grav e d i ssati s
faction I t was publicly all e ge d that Lorenzo M arqu e s
was nothing more nor l e ss th an a base from which the Trans
vaal obtained ev e rythi n g that it n e e d e d F urther than this
it was declare d that th e town was th e h e adquart e rs of Trans
vaal age nts o f every d e scription who w e re in daily commun i
catio n with their Gov e rn m en t and with E urop e T h e E n g
lish authoriti e s felt them s e lve s h e lpless to prev e nt the i m
of
machine
y
n d other m at e rial requir e d for the
r
r
n
a
t
o
t
a
i
o
p
mines which w e re worked by th e Tran svaal Gov e rnm e n t
E v e n explosives for th e gov e rn m e n t factory an d actual
am mun ition r e ached the Tran svaal by way of Lore n z o
M arqu e s b e cause of the inability of the E n glish cruis e rs
to m ak e a thorough s e arch of foreign v e ssels bound for a
neutral port and prof e ssedly car rying foodstu ff s B ritish
shippers all e ge d that while th e y were prohibited from trading
with th e e n e my forei gn shippers were r e aping th e pro fi ts an d
materially aiding in th e p rolongation of th e war
It lat e r developed that the apparent negl e ct on the part o f
Portugal to Observ e a strict watch ov e r the character o f
goods allowed to pass through to the Transvaal was not
e n tirely due to the gov e rnme n tal attitud e at Lisbon
It
see m s that the D utch co n sul at Loren z o M arqu e s had tak e n
over i n the way o f fri e n dly o ff ices th e in t e rests of the Orange
F re e State as w e ll as those of th e Tra n svaal It was also
asce rtai n e d that th e consul o f Holland was the manager
o f th e local age n ci e s for a number o f st e am boat compan ies
amon g th e m th e Castl e Pack e t Company th e A frican B oat
i n g Com pany the B ritish India an d the B ritish and Colo n ial
St e am N avigation Co mpany Only o n e E nglish compa n y
th e
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N
58
e u tral
War
R i gh ts i n th e A n glo B o e r
-
[2 10
.
it seemed evident to E n gland despite th e more strin
gent port r e gulations that the num ber of foreign ers daily
e n teri n g the Transvaal by way of Lorenzo M arques was far
in excess o f the nu m b e r which would be desirous of going
to P r etoria for p e ace ful pu rposes M r Pott it was still al
le ge d was acting as the head o f a B o e r organization for
facilitating the entrance o f m e n d e siring to enlist with the
B oer forces
He was cons e qu e ntly cautioned in J anuary
by the Portuguese Governor that i f he recruited for the
B oe r forces or was detect ed doi n g anything inco n sistent
with the neutral obligations o f Portugal a request would be
mad e to the N e therlands Gove rnment to have him trans
ferred to another fi eld The Portuguese authorities at th e
same tim e b e gan a clos e r supervision of the person s who
were allowed to enter the Transvaal from Portuguese terri
tory The previous restriction that passports be signed by
the respective co n suls of persons l e aving for Transvaal ter
ri to ry was consid e red i n suffi ci e nt and th e consuls of the dif
f e re n t cou n tries represented at Lorenzo M arques were i n
form e d that they must p e rsonally guarantee that the
applicants whom they e n dorsed were not military m e n and
were not proce e ding to assist the B oer forces in the fi eld
Thes e r e strictions while giving evid e nce o f Portugal s
e ff orts to see that the n eutrality o f the port was respected
did not satis fy the E n glish authoriti e s T h e latter still
allege d that no doubt existed as to the fact that Lore nzo
M arqu e s was bei n g us e d by B oer age n ts as a r e cruiting
station for the Transvaal forces It was assert e d that large
“
‘
m
m
n
nu bers o f m e n o f military sta p la ded da ily at
Lore nzo M arques from all parts of E urope and were al
lowed to proce e d to th e Tran svaal for the purpose o f eith e r
actually enlisting with the B o e rs or working the governm e nt
min e s It was alleged too that a numb e r of th e se new
com ers w e re smart looking men e vide n tly o ffi cers The
maj ority however wer e of a low class mostly p e nniless
adv e nturers On F e bruary 2 th e report was m ade to the
E nglish authorities that tw e nty of the bett e r sort man y
And
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211
]
N
e u trali ty o
f
E uro
p
P o w ers
e an
59
.
wearing riding boots an d carrying fi eld glasses had left
Lore nz o M arques for the Transvaal and as tending to throw
suspicion upon the purpose o f their journ ey a Transvaal
“
d e tective was most assiduous in his attentions to them
The influence o f the consul of Hollan d largely defeated all
eff orts to stop entirely the i m p e r fect ful fi llment of the duties
o f neutrality incumbent upon th e po rt
A t o ther places any attempts to convey prohibited goods
i n to the Transv aal were summ arily stopped A rm s and
ammunition which the B oers att e mpted to land at Inham
ban e were seized by the Portugu e s e customs authorities on
the groun d that they were consign ed und e r a false d e scri p
tion The consignment was not a large o n e and th e attempt
was evidently made as an experiment This inciden t too
indicates th e extremity to which the Transvaal authorities
had be e n reduced by the increased watch fulness at Lorenzo
M arques for th e distance from the port o f Inhambane to
the Transvaal could be covered only by native carriers and
re quired fourteen days for the trip The d i fli culti e s in
evadi n g th e customs surveillanc e at Lorenzo M arques had
also been increased by the fact that most o f the steamship
compan ies which had at fi rst em ploy e d the D utch consul as
their agent had later relieved him o f this duty B ut not
withstanding the continued prot e sts by E ngland th e Ha gue
Go vernment seemed reluctant to tak e any Offi cial notice o f
the evident partiality o f its co n sular agent W ith re fe rence
to the E nglish protests the A dministration too k the view that
while acting as th e representa tive o f the Tran svaal and
Orange F ree State during the war M r Pott was only f ulfi ll
ing th e duties incum bent upon him i n this triple capacity
A s the war p r ogressed although the administration of
the customs at Loren z o M arques was made more e ffi cient
this improvement was invers e ly propo rtional to the successes
of the B oer forces in the fi eld U n der the circumstances it
was almost impossible for E ngland to prove that actual
governme n tal support had been given to any schem e for
,
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10
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,
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,
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.
.
,
,
.
L on
do
n
i
T m e s,
W e e k ly
Ed
.
,
Fe b 5 ,
.
1900,
p
.
84
,
co l
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2
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6O
N
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[
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2 12
augmenti n g the military forces o f the Tran svaal but the
whol e manipulation o f th e custom s s e e m e d to be con troll e d
by a w eak ad m i n istration not too scrupulous i n s e e ing that an
i m partial vi e w was tak e n o f the situation The failure of
the B o e rs to attai n their e nds in th e fi e ld did mo r e to improve
the e ffi ci e n cy o f th e ad m inistration o f the custo m s than the
protests o f E ngland It seems unqu e stion abl e that th e re
sourc e s o f the Transvaal had induc e d th e Portuguese author
ities at Lore n z o M arques to display toward the B oe r s an
attitude which according to obsolete ideas was termed
benevolent neutrality B u t as th e B oe r hop e s declin e d the
Portuguese authorities i n cr e as e d th e ir vigilance and i n th e
end wen t as far in favor o f E ngland as th e y had previously
gone in th e ir ben e volent attitude to the R epublics Passen
gers arrivi n g by Ge rman an d other st e am e rs wer e r e fused
passports upon th e i n sta n ce O f th e B ritish consul wh e re there
was a strong suspicion that th e y were e ntering the Tran s
vaal for purpos e s hostile to Great B ritain
Portugal too refused to accept the Offer O f the Trans
vaal to advance the amount r e quired of the Lisbon Govern
m e nt by the B e irne A rbitration A ward
The Portuguese
Government in courteously declini n g th e o ff er stated that
the amou n t had already been provid e d Great B ritain w ho
already held a preemptive title to D e lago a B ay was also
ready to advance the money but was d e nied this privil e ge
by Portugal
B y A ugust 1 900 it had become evid e nt that the B o e r
hop e s of bringi n g th e war to any sort of favorable con
clu s i o n were doo m ed to failure
On A ugust 4 all the cus
toms offi cials at Lorenzo M arqu e s w e re dismissed and th e ir
places fi lled by military o fli ce rs and a force o f twelve hun
dre d m e n was sent out fro m Lisbon two days later T h e
Portuguese fronti e r was put under a stron g gu ard and all
B oer re fugees who arrived were summoned before the Gov
e rn o r and warned against carryi n g on an y co m m un ications
with the Transvaal Gov e rnm e n t or with th e B oer force s still
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1
L on
do
n
i
T m e s,
W e ek ly
Ed
.
,
A pr i l
20, 1 900,
p
.
2 44,
co l
.
2
.
2 13
in
]
N
e u tra li ty
o
f
E uro
p
P o w e rs
e an
61
.
eld N otic e was given them that i f they were de
te cte d in such transactions th e y would be se n t out of Por
tugu e s e territory an d th e right o f asylum denied them
And
i n th e further performance o f her neutral duties at such a
ti m e Portugal assum e d an entire ly correct attitude
In S e ptember thre e thousand B o e rs evacuated their posi
tion along the frontier and surrend e red to the Portugu e se
Go ve rnor Th e y were lodged i n th e barracks at Lorenzo
M arques and later to prevent any disturbance in the town
that might be ca used by their presence were removed to the
Portuguese transports lying in the harbor The Governor
gav e notice to the E nglish comm ander who had occupi e d the
position evacuated by the B oers that all the Transvaal
troops which had surrendered w e re bei n g guarded and would
not be allowed to rej oin the B oer forces still in the fi eld A
num ber of the refuge e s agreed to surre nder to th e B ritish
commander as prison e rs o f war upon th e stipulation that
they would not be sent out o f the coun try and thus better
terms w e re obtai n ed than by those captured in the fi eld
O thers who surre ndered to Portugal were transported by
Portugu e se ships to Lisbo n land being assigned them in
the cou n try where they were given permission to settle
In other resp e cts also during the later phases o f actual
warfare Portugal maintai n ed a correct attitude E specially
was this attitud e noticeable with re fere nce to the i n vestiga
tion o f th e conduct o f the D utch consul at Lore n zo M arques
In S pite o f the prot e sts o f Great B r itai n an d o f Portugal as
to his un n eutral attitude he had bee n co n tinued in his posi
tion B ut on Dec e mber 7 1 900 th e strain to which the rela
tions between the two Governments had been put reached
the breaking point The D utch M inist e r D r Van W eede
withdrew from Lisbon and at the same time the Portuguese
M inister at the Hagu e Count de Selin returned to Lisbon
The reason for this technica l br e aking o ff o f friendly rela
tions was explain e d on D e cember 1 1 A member o f th e
S e cond Chamber at the Hague M Van E ylandt question ed
the M inister for F oreign A ff airs as to the cause of the d i ffi
th e fi
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R i gh ts i n the A n glo B o e r
-
War
[
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2 14
betwe e n th e two Govern m e n ts M B e aufort in his
explan ation of th e situation stated that as early as N ovember
17
1 899 the D utch Gov e rn m e n t had b e e n in formed that it
would be nec e ssary fo r the Lisbo n autho r iti e s to canc e l th e
e x e quatur of M r Pott as consul at Lo re n zo M arques
This
cancellation of the agent s cr e dentials it was alleged was
de e med necessary on account of irregularities with ref e re nce
to the transship m e n t o f contraband o f war from Lo r enzo
M arques to the Transvaal
It was furth e r represented to
the D utch Govern ment that th e con sul und e r suspe nsion had
made an improper use of his position as th e acti n g consular
age nt for the F re e State and the Transvaal ; h e had tak e n
a d v an tage o f the consular p r ivil e ges accorded him at Lo
renzo M arques as the r e presentativ e o f a n e utral Power at
a neutral port ; th e courteous commun ications made by the
Portuguese Govern m ent prior to the fi nal W ithdrawal of his
e xequatur had not receiv e d from th e Ha gue Gov e rn ment the
atte n tion th e y deserved ; ev e ry opportunity had been given
th e D utch Government to tak e th e initiativ e in the matter by
mere ly recalling th e ir age nt but this step had not b e e n taken
M B e aufort admitt e d that this had be e n the attitude of
the Portugu e se Gov e rnm e nt but ass e rt e d that he had not
cared to suspend M r Pott without an i n quiry and for this
purpos e had merely gran ted him l e ave o f abs e nc e fo r thre e
mon ths This action h e said had not b e e n favo r ably re
ce i ve d in Lisbon a n d h e had th e r e for e thought it n e c e ssary
to warn the Portu guese Govern m en t that the w i thdrawal o f
the consul s e xequatur would b e considered an unfriendly act
B ut n otwithstanding the warning the co n sul s credentials
had been can celled by th e Lisbon Governm e nt A s a co n se
B e aufort had r e qu e st e d the D utch
q u e n c e of this act M
M inister at Lisbo n to com e to the Hague that he might
tak e part i n a personal intervi e w with the consul und e r sus
pension Later M B eau fort stat e d that the speci fi c incide n ts
upon which M r Pott s con duct had been arraigned were the
illegal importation o f h e liographic apparatus for the Trans
vaal artillery and a wrongful grant o f passpo rts in his dual
c u lti e s
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N
i ty
e u tral
o
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E ur o
p
P o w e rs
e an
63
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capacity as co n sular age nt for Holland an d the R epublics
In the end diplomatic relations w e re res umed between the
two Governme n ts Holland a fter an investigation of the
charges against her consul acqui e sced in the action of the
Lisbon Government B ut the incident served to demon
strat e the fact that the Govern ment at Lisbon was aware o f
the ineffi cient man n er in which the duties o f neutrality had
been en forced at Lo r enzo M arques by the port ad m i n i s
12
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t rati o n
.
F rom this time on to the close of the war the Portugu ese
Governm ent displayed gr ea ter care in asserting the neutral
character o f th e port B y placing the town under military
supervision this purpose was m ore surely atta i ned and the
o n ly other charge made agai n st Portugal for the failure to
perform a neutral duty came fro m the Transvaal Govern
ment an allegation o f a more serious character than any that
had been advanced by the E n glish Governm e nt Th e
grounds upon which Portugal granted a privilege o f w ar
to one o f the belligerents under protest from the other have
not been made so cl e ar as the re ason s which led to her
apparent dereliction o f duty at Lo r en z o M arques This inci
dent placed the Portuguese Government i n an un favorable
light with regard to its duty in the full and impartial per
B ritish troops
f o rm an ce o f the obligation of neutrality
were allowed to pass across Portugu es e territory in order
to reach belligerent B ritish territory commanding the T r ans
vaal position on the north F rom R hodesia the nominal
obj ective point in this movement o f troops the Transvaal
might be co n ven ie n tly i n vaded from th e north as it was
already attack e d on the south
E arly in the war the B ritish South A frica Company a
chartered company which was responsible for th e ad m i n i s
trati o n of the R hodesian Government became apprehensive
as to the fate o f this section o f the coun try should the B oers
decide to invade it Troops had been rais e d in R hodesia
for the war but were employed outside the colony It was
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L on
do
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T m e s, M
arch
1 , 1 900,
p
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5,
co l
.
3
.
64
R i gh ts i n th e A n glo B o e r
e u tral
N
-
War
[
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2 16
asserted that this f act h ad le ft the province i n such an un
prot e ct e d stat e that aside from th e fear o f a B oe r invasion
a K affi r uprising was imminent
M r Chamberlain had refused to send forces into R hodesia
in D ece mb e r upon the ground that troops could not be
spare d B ut it was fi nally arran ge d to send fi ve thousand
mounted m e n som e of th em to he enlisted i n R hodesia and
all o f them to be fu rnished outside of E ngland B e fore the
end of J anuary 1 899 a commander had been appointed
f r om th e E nglish army and it was expected that the forces
would b e upon the borders of B echuanaland by the end
o f M ay
D i ffi culty at once arose with re fe rence to the right of pass
age o i th e s e tro ops military stores and i n fact a full e quip
m e nt for warlike purposes Th e re was not much choice
of rout e s Those through the Transvaal and through
B e chuanala n d were clos e d The only route l e ft was through
the port o f B eira This cours e n e c e ssitat e d the passage o f
b e llige re nt troops across two hundred miles of neutral t e rri
tory controlled by Portugal as territorial sov e reign B eira
situat e d about four hundred and fi fty miles north o f Lo
r e nzo M arques bears n early the sam e re lation topograph
i cally to B ritish M ashon aland and to B ritish R hodesia that
De lago a B ay does to the Transvaal an d th e O rang e F ree
State A rail w ay nearing compl e tion form e d an al m ost
continuous rout e from B e i r a to Salisbury in R hodesia and
on c e in the latter provi n ce troops would b e i n a position to
invade the Tran svaal
Under ordinary circumstances it would hav e be e n a dis
ti n ct bre ach o f n eutrality on the part o f Portugal to allow
the passage across h e r territory of th e troops o f one of the
b e lligerents sinc e the Obvious destination could o n ly be th e
country o f th e other bellige re nt with whom she was o n
fri e n dly terms Portugal had granted to E ngland i n 1 896
the right o f passage for a fi eld force to be used agai n st th e
nativ e s in M ashon aland
B u t that was a case o f wa r far e
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13
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“
im e s M i li
13 3 S
g
ta ry
H is
t ory o f
th e
War
in
S out h
A fri ca Vol
,
.
I V,
66
N
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[2 1 8
.
He poi n ts out that the j u r ists of th e fi rst hal f
o f the nin e te e nth ce n tury with th e possibl e exception o f
Klii b e r w e re
unani m ous in following G r otius an d
Vatt e l and allo w i n g neutrals to permit b e lliger e n ts passage
as long as th e y did it impartially B u t since th e middle
of th e century a total an d viol e n t chan ge in the opinion of
authors has operated E ve ry modern author holds that
passage is now a bene fi t w hich must be refused absolut e ly
”
and not Off ered impartially
In F e bruary the Transvaal Gove rn m ent had attempt e d
to bring troops i n to R hodesia by way o f Portuguese t e rri
tory Portugal had prom ptly sen t out fo r ces to prevent
such an e vasion o f Portugu e se neutrality and had gua r ded
the railway bridges alon g th e line to R hod e sia A n d in
M a r ch Great B ritai n had m e t with a refusal to allow a large
quantity of foo dstuff s mul e s and wagons to be landed at
B eira for the purpose of transporta tion to R hodesia N e v e r
th e le ss on A pril 9 General Sir F r e derick Carrington landed
at Cap e Town under ord e rs to proceed i m m e diately to
H e was to use transports put at his disposal by
B eira
his govern m ent for the purpose of coll e cting a full equip
ment for his command of fi ve thousand men to be mobilized
at B ei r a and from that port was to e n ter R hodesia This
province was then to be made the base for an expedition
against P r e toria in conc e rt with th e E nglish force s a d van c
ing from the south
It is undoubt e d that the laws of neutrali ty d e manded o f
Portu gal n o t only an i m partial treatment of both b e lli ge r
as the earlier writers h e ld but an absolute p ro h i bi
e nts
tion against such a warlike expedition by e ither of them
as unanimously held by all the more recent authorities A t
the time E nglish public expression cont e nded that absolut e
equality of neutrality was not incumbent upon independent
States in the performance of their neutral duties E nglish
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t r a i o al L
p
l tary
In e n t n
"
I bi d ,
73
‘
1“
i m es M i i
13 3 g
.
g
o
.
aw
.
H
in
S ou th
i story of
A fri ca p
,
th e
War
.
in
71
.
S out h
A fri ca V o l
,
.
I V,
2 19
]
N
e u trali ty
o
f
E ur o
p
P o w e rs
ean
67
.
w rite r s spok e o f a benevole n t neutrality as possible and
cited such cases as that in 1 87 7 wh e n R oumania be fore ta ki n g
an act ive part in the war against Turk e y p e rmitted R u s
sian troops to ma r ch th r ough h e r territory ; and the incid e nt
which occur r e d during the N e uch at e l R oyalist i n surrection
in 1 85 6 when th e Prussian Governm ent requested permis
“
sion to ma r ch th rough W u rte m be rg an d B aden w ithout
a n y id e a o f asking those states to abandon their n e utralit
y
o r assist Prussia against Switzerland
It was alleged upon the authority of such precedents that
the p r ivil e ge of passage for troops might be granted by
Portugal to E n gland without a bre ach o f neutrality really
oc cu r r i n g Portugal would be merely giving her neutrality
a b e n e vol e nt cha r acte r towards one o f the belligere n ts
which it was asse rted she was perfectly entitled to do a
vi e w o f the situation which is too Obsol e t e in the light
of modern times to ne e d criticism Al though public Opin
ion throughout E urope is usually hostile to E ngla n d when
she is at war the g e neral cond e mnation o f the prop os e d
u s e of n e utral t e rritory see m s therefore to hav e be e n well
founded in this partic ular case
The Cabi n et at Paris refused to e n te r tain any question
or d e bate on the propos e d passage of E nglish troops through
Portugu e s e t e rritory On A pril 1 1 howeve r a discussion
of the subj ect occurred in the Chamber of D eputies in
which two i n t e rpellatio n s w e re a n n ounc e d by the Pr e sid e nt
On e o f these questioned the Government as to w hat steps
had b e e n tak e n to p r ot e ct F re n ch i n t e rests i n M o z ambiqu e ;
the other had re ference to the proposed passage of E n g
lish troops i n lan d from B ei r a M D e lcass e said that th e
Cha m b e r did not feel that the Govern m e n t should discuss
a current question of international law but h e pointed out
the fact that Fr a n ce with the other Great Pow e rs had de
ning o f hostiliti e s H e
c lar e d he r n e utrality at th e begi n
added however that it was not the part o f F ranc e to
gu arantee the neutrality of others On e membe r asserted
that the propos e d act would b e a distinct violation o f her
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2 20
n e utral duti e s by Portugal A nother declared that E urope
by concert e d action should preve n t such a flagrant viola
tion of neutrality duri n g a war in which a small nation was
alre ady con ten ding agai n st gr e at odds ; that F ranc e sur
rou n d e d by n e utral nations could not a ff ord to se e such
a preceden t established an d should app e al to E urop e to
j oin with her in prot e st i ng
A lthough such concerted action as w as proposed by the
diff e re nt m e m bers was improbable and although the pro
p o s als may have be e n dictated by the usual F rench bias in
S ituations wh e r e E n glish i n terests are at stake these Opin
ion s i n dicat e pretty w ell th e real s e ntim e nt in E urope at
the tim e
The Tran svaal Gove rn ment formally noti fi ed Portugal
that the passage of B ritish troops and mu n itions of war
through B eira would b e consid e re d in the Transvaal as
tantamount to hostile action N e verth e less o n M ay 1 the
Chamb e r o f D eputies at Lisbon r e j ected an int e rp e llation
made by one of its members to qu e stion the action o f th e
Gove rnm e nt with referenc e to the privilege which Great
B ritain sought
T h e M inister for F oreign A ff airs how
ev e r stated that the Transvaal Government had not ord e red
the Portugu es e consul to leave Pre toria H e d e ni e d em
phatically that any incid e nt w hatever had followed Portu
gal s noti fi cation to th e Transvaal W hen further inter
r o gate d
the M i n iste r d e clare d that the E nglish troops had
bee n gran ted perm issio n to u se th e railway inland from
B e i r a upon th e pl e a o f tr e aty rights alre ady poss e ssed by
Gre at B ritain N o power he asserted had protested ex
cept the South A frican R e public It was promis e d that
the Governm e n t would later j ustify its action in granting
the p e rmission by prod uci n g th e docume n ts showing the
right o f E ngland to the privil e ge but it was not considered
”
e
n
conv ient at that ti m e to discuss the question
T h e prot e st o f th e Transvaal agai n st th e alleg e d br e ach
o f n eutrality o n the part o f Portugal was without e ff ect
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1900,
p
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7,
col
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3
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22 1
]
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o
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E ur o
p
e an
P o w ers
69
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this was the only m e a n s th e R e public had of d e claring
itself To have e n te r ed upon hostil e action against Por
tugal at th at ti m e would hav e had only one result the
stoppage of all co m mun ication with th e outside world by
way o f D e lago a B ay T h e B ritish forces w ere se n t into
R hodesia and though th e subsequ e nt part they played in
the wa r was not i m portant the purpos e of th e expedition
was admitted It was to cut o ff any po ssibility of a re
treat north w ard into B ritish t e rritory by the B oer forces
which were bei n g driven back by the E n glish advan ce upon
P r etoria The B ritish military plan was that General Ca r
rington should march with h is force s and reach Pretoria
f r om the north at the sa m e time that General R ob e r ts
re ach e d that poi n t from the south
Thus the end for
w hich the troops w e re to b e used was not to qu e ll an i n su r
rection o f th e natives in R hodesia as was all e ge d but to
incorpo r at e the exp e ditio n i n to the r e gular campaign of the
war against the R epublics This b e ing the cas e th e con
which the E nglish Government
t ractu a l g r ou n ds upo n
claimed th e right o f passage should hav e been beyond qu e s
tion in order to furnish a j usti fi cation for Portugal or for
E ngland in w hat is vie w ed by int e rnation al law writers o f
W hen
th e prese n t day as a disti n ct breach o f neutrality
the expedition was se n t out the stat e m ent was mad e that
E ngland was merely availing hersel f o f existi n g t reaty
ri ghts but it was f e lt necessary to add that the action w as
not illegal as was that o f the B oers in making D e lago a B ay
their virtual base earlier in the war A n d on M ay 3 1 in
l e galizing the proceeding the Cabinet at Lisbon also f e lt
im p e ll e d to say that the Portugues e Government h ad not
become an instrument o f B ritish a m bition ; that it was not
a qu e stion o f putti n g into execution in the territory o f
M o z ambiqu e conventio n s recentl y concluded with E ngla n d
but merely o f pro fiting by stipulation s agreed upon in the
tre aty o f 1 89 1 b e tw e en Gr e at B ritain and Portugal Presi
dent Kruger was th e re fore i n formed that th e legality o f
th e i ncident was not to be questioned at Pretoria
“
T im s M i l itary H i story V ol I V p 364 ff
an d
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70
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R i gh ts i n th e A n glo B o e r
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War
[
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222
con sensus o f Opinion amon g E urop e an Pow e r s was
that th e lan ding o f troops at B e ira and th e passage by rail
to R hod e sia with th e consen t of Portugal constituted a
br e ach o f neutrality on th e part of th e latter The opinion
was fre e ly expre ssed that th e B ritish Gov e rn m e n t n o t o n l y
placed a strai n e d i n t e rpre tation upon the o n ly basis for h e r
action the treaty o f 1 89 1 but that even upon this i n t e r
p re tati o n she poss e ssed no real s e rvitude over the t e rritory
used by h e r for wa r like purposes The only claim of j usti
fi cati o n advanced by th e B ritish Govern m ent which would
app e ar at all t e n abl e rests upon the statem e nt o f Calvo :
It may be that a s e rvitud e of public ord e r or a tre aty made
ant e c e d e ntly to the war imposes o n a n e utral Stat e the o h
ligation o f allowi n g the passage of th e troops of o n e b e l
“
“
liger e nt
In such a cas e Calvo con clud e s the ful
fi lm e n t Of the legal obligation cannot be r e gard e d as an
assistance a ff orded to that belliger e nt an d a violation of th e
duti e s of n eutrality
B asing his argument largely upon this authority M r
B aty asserts that Calvo approves the gra n ting of passage
where this privilege has b e e n s e cured by previous tr e aty
B u t the following statem e nt which he cit e s from Calvo
take n in co n nectio n with th e rule given above would app e ar
to d en y this conclusion : D uring war n e utrals m ay oppos e
eve n by force all attempts that a bellige r e n t m ay mak e to
use th e ir t e rritory an d may i n particular r e fus e o n e of the
bellige re nts a passag e for its armies to attack th e enemy ;
The
.
,
,
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,
,
”
”
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,
,
” 21
.
.
,
.
,
,
,
,
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m u ch th e m or e
so
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th e tr o o
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p
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as
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wh o
s h o u ld
belli ger e n t w o u ld be
on e
q
t
v
x
v
B a ty, I n t L a w i n
ou th fr i ca p 7 3 uo i n g “Cal o B u t Cal o
calls a tte n ti o”n to th e fac tha h i s i s h i s o wn e c ep on o th e
ge n e ral rul e , i n suppor of wh i ch h e c e s n o au hori ti e s an d on ly
o n e pr e c e d e n —
ha of th e passage of for e i gn t roops across th e
Ca n o n of
cha ff haus e n i n 1 867 b y rt u e of a pr or t re a y b etw e e n
wi tze rla n an d th e G ran D uchy of B a d e n Ob ously n o gen e ra
co n clus i o n c an b e rawn fro m th e co n uc of a n e u tral ze s ta e ,
such as w i ze rlan
T h e ge n e ral ru l e , n o t th e e c e p ti o n , i s sough
in
e e r m i n i n g i n e r n a o n al
r i gh ts D ro i t i n e rn a on al , 3 d E d ,
2 34 7
I I I,
2
.
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22 3
fals e
o
f
to i ts
w ar
e u trali t
o
y
cha rac te r
f
an d
E ur o
p
P ow e rs
e an
wo u ld gi v e th e
7
.
j us t
o th e r
1
cau s e
” 22
.
W hat
Calvo
“
says is
Tous les publicistes so n t d ac
cord pour a dm e ttre que le territoire d u n e nation con
le territoire neutre
stitne une véritable propriété
doit etre l abri de toutes les entreprises des belligérants
de quelque nature qu elles soient ; les neutres ont le
droit incontestable de s o p p o se r par tous les moyens en leur
pouvoir m eme par la force des armes £1 toutes les tentatives
q u un belligérant pourrait faire po ur user de leur terri
toire
H e also calls attention to the fact that Grotius
“
W ol ff and other authors held that a bellige rent dont la
cause est j uste peut pour aller a la rencontre de son ennemi
‘
traverser avec ses armées le territoire d une nation n e utre
“
B ut his statement of the mod e rn rule is co n clusive :
Par
contre H e ff te r Hautefeuille M anning e t d autre s auteurs
modernes se sont avec j ust e raison élevés contre des prin
c i p e s dans les q uels ils entr e voient la n egati o n implicite des
droits et des devoirs stricts de la neutralité A leur yeux
la nation neutre qui consent au passage les troupes de l une
des parties b e lligérantes manque a son caract ere e t donne
‘
a l autre partie u m j uste motif d e lui déclarer la guerre
M r B aty without reaching any de fi nite conclusion in the
matter ad m its that the poi n t to be decided in any case is
not so much the fact that th e re is an antecedent treaty as the
“
nature o f that treaty He says I f it granted a real right
o f way o f the nature o f a right in re m there is no reason
why th e way should be stopped against troops any more than
why a purchaser o f territory S hould be debarred from using
it as a base o f military operations
B ut he poi n ts out
I f the treaty only created a right i n p ers o n am the case is
di ff erent
In the latter case it is Obvious that the power
which claims the way d e p e nds entire ly on the promi se o f the
I t L w i S ou t h A fr i ca p 7 3
T h i s q uo ta ti o i s sl i ghtly m i
l a d g b t v as us d it cl arly d i s th E gl i sh cla i m
°
’
’
’
’
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” 23
,
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”2
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Cal
‘
2
a
.
vo
u
,
I bi d
I bi d
.
,
,
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,
en
2 344
§ 2 34 5
§ 2346
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s
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N
72
e u tral
War
R i gh ts i n th e A n glo B o e r
-
[
.
2 24
territorial power for th e e xe r cise o f that advan tage
In
“
such a case h e con cludes it m ay w e ll b e that th e p e r
f o rm an c e of its p r o m is e by th e t e rritorial po w e r b e co m e s
un law ful on th e outb r e ak of war b e tw e e n th e p ro rn i s e r an d
a thi r d party
For i n t e rn ational purposes th e true test is
Could the power claiming the right of way or other servi
tud e e n forc e its clai m s duri n g p e ac e ti m e by force w ithout
in fri n gi n g th e sov e r e ignty of th e t e rritorial pow e r " M r
“
B aty s Opi n ion is that
i f it could and i f th e s e rvitude is
co n s e qu e n tly a r e al right th e promisee might u s e its road
i n tim e o f war an d the ow n e r of th e t e rritory would b e
“
boun d to p e rmit th e u se without givi n g o ff e n s e to th e
e n e m y who is pr e j udic e d by th e e xist e n ce of the se rvitud e
B ut he con tinu e s
I f th e right of way is m erely cont r actual
th e n th e ful fi ll m e nt o f the p r omis e to p e rmit it m ust b e tak e n
to hav e b e come ill e gal o n th e outbre ak o f war and th e treaty
can n ot be in voked to justi fy th e gran t o f passage
It is
ass e rted that in th e form e r case where a rea l s e rvitude a
right i n r em was poss e ss e d to stop th e u se of th e road would
b e analogous to the s e i z ur e by a n e utral o f a bellig e rent war
ship to pre v e n t its being us e d against th e e n em y In th e
cas e wh e r e th e t r eaty gran ts the s o call e d right i n p ers o n am
a m e re ly con tractual or pro m issory right exists and the ex
e r ci se o f th e right w o uld b e an alogous to the sal e of a war
ship to a b e llige re n t by th e n e utral g r an ti n g th e permi ssion
stipulated i n t h e tre aty M r B aty is of th e opi n io n that
whil e th e b e llige r e nt might have a right i n r e m to th e ship
so far as the civil law was con c e rn e d it would have only a
“
quasi contractual right i n p e rs o n am agai n st th e stat e i n
whose waters it lay to allow it to be han d e d ov e r
Ob
v i o u sly th e p e rformanc e o f that duty to han d ov e r the v e s
“
sel
would hav e become illegal when ho stiliti e s br oke
out
We hav e seen in previous page s that the consensus of
Opinion among int e rnational law authorities of mod e rn ti m e s
“
I t L w i S ou th A fri ca p 7 4
“
“
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n
a
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I bi d
2"
I bi d
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,
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p
p
n
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74
75
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,
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N
74
e u tral
War
R i gh ts i n th e A n glo B o er
-
.
[
2 26
Portuguese Government e ngage s to p e rmit an d to facili
tat e t r an sit for all person s and goods o f every description
ove r the water ways o f the Z ambe z i the S h i ré the Pun gwe
th e B usi the Li m popo the Sabi and their tributaries ; and
also ov e r th e land ways which supply m e ans o f co m m uni
‘
cation where these rive rs a re not navigabl e
The on ly other clause of th e t r e aty which b e ars on th e
“
case is a port ion of A rticle 1 4 : In th e interests o f both
Pow e rs Portugal agr e es to grant abs o lu te fr e ed o m o f p as
s age b e t w e en the B ritish sphere o f i n flue n ce and Pu n gwe
B ay for all m e rch an di s e of every description and to gi ve the
necessary facilities for th e improvement of the means o f
communication
It is obvious that A rticl e 1 4 could not apply to anything
more w arlike than m erch an d is e b e ing transported from
Pungw e B ay wh e re B eira is situated to the B ritish S ph e re
of i n flu e n c e It is admi tted by M r B aty that A rticle 1 2 is
inapplicable to any routes other than the water w ays speci
It
fi e d and the land routes an d po rtages auxiliary to them
is also admitted that the o n ly oth e r stipulation that might
“
apply A rticle 1 1 obviously appli e s to the territory far
to the n orth and conce rns the question o f access to B ritish
”
Ce n tral A frica
M r B aty however co n te n ds that it was not a new right
that of passage through Portuguese territory but was one
cre at e d by this tre aty Upon the supposition that i f the
right still existed in times of war it must hav e been by virtue
of A rticle 1 1 he says The question arises W a s it such a
‘
grant as could be valid in war time "
It should be rem e m bered that M r B aty has concluded that
Calvo asserts the possibility of a neutral without violating
its neutral obligatio n s allowing a b e llige rent to pass troops
over neutral t e rritory for th e purpos e o f attacki n g a State
which is on fri e ndly t e rms with the Gov e rn m ent g r anting
B i ti h
d F or i g S t at Pap rs V o l 83 p 36
: I b d pp 3 9 40 I tal cs our w
I t r a ti o al L w i S ou t h A fr i ca p 7 6
“
-
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”3 2
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33
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’
3
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,
,
r
s
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e
—
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,
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n e n
I bi d
n
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,
n
p
.
i
.
76
.
a
n
e
o
,
n
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,
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,
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.
2 27
]
N
e u tral i ty o
f
E ur o
p
e an
P o w e rs
75
.
privilege M r B aty asserts that a re al e aseme n t ex
“
i ste d in favor of E ngland i f S h e might
force her way
“
along the routes stipulated in the treaty without go
B ut he says this int e rpreta tio n
ing to war with Portugal
is always subj ect to th e consideration that the t e rms o f the
treaty do not seem to cont e m plat e th e u se o f th e road as a
military road at all a co n clusion which would s e e m to
se ttl e the question and de n y that any shred of j usti fi cation
exist e d for the use to which neutral territory was put in
time of war B ut M r B aty in the same breath says : There
can be such a thing as a milita r y road across n e utral terri
tory The German E mpire has such a road across the can
ton o f Schaffhaus en and there us e d to be o n e b e tw e e n
Saxony and Poland B ut it seems very quest i onabl e wh e th e r
the roads indicat e d by th e tre aty of 1 89 1 were not simply
And
com m e rcial and not for the purposes of war at all
“
this E nglish writer reluctantly admits The tr e aty has
there fore to b e p r essed very far to cover th e grant o f an
overland passage for troops from B eira inland
The conclusion re ached by M r B aty is far more favorable
to E ngland than th e circumstances of the case warrant
“
he says that the B ritis h Governme n t
On e may regr e t
S hould have fou n d it n ec e ssary to place a so m ewhat strained
i n terpretation on a treaty which even then did not give
them in anything lik e clear t e rms an absolute servitude o f
the kind contended for
Such a co n clusion is misl e ading in the fi rst place because
the B ritish Government was con t e nding for a right which
was not r e cognized amon g independ e nt nations at th e time
the treaty was form e d ; in the se cond place granting that
anci e nt authorities may hav e declared the possibility o f such
a right e xisting in time o f war th e stipulatio n s of the trea ty
itsel f are th e stronge st argum e nt against the interpretation
“
used by E ngland Hall has poi n te d out that W h e n the
language of a treaty taken i n the ordinary mea ning o f the
“
I t r a ti o a l L w i S ou t h A f ri ca p 7 7
th e
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” 35
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”
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,
”8 7
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,
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’
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,
,
n e
I bi d
"
I bi d
n
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,
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,
n
p
p
.
.
76
77
.
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a
n
,
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N
76
e u tra l
R i gh ts i n the A n glo B o e r
-
War
[
.
228
words yi e lds a plain an d reason able sens e it must be tak e n
to b e read in that s e ns e
T h e o n ly r e asonable sense in
which the stipulations o f th e B ritish —Portugu e s e treaty o f
1 8 9 1 could be tak en was that o f a pu r e ly co m m e rcial agree
m e nt Th e spirit of the tre aty th e ge neral s e nse and the
con text o f th e disputed term s all seem to indicate that the
instrum e nt con sidere d on ly times of peace and b e cam e ab so
lute ly invalid with refer e n ce to the tra n sportation o f troops
in time of war The authority already cited says W h e n
the words of a treaty fail to yield a plain an d reasonabl e
s e ns e they should b e int e r preted by recourse to th e ge n e ral
se ns e and spirit o f th e tre aty as S hown by th e con t e xt of th e
i n com plete improper a m biguous or obscure passage s or
"
by the provisions o f the i n strum e nt as a whol e
Unquestionably the provisions o f the instrument as a
whole yi e ld but one mean ing The treaty is n o t broad
enough to sustain th e passage o f troops in time of wa r
N o r would th e re se e m to be an y plausibility in the claim
that certain mutual explanation s e xchange d between the
two Gove rn m e nts at the time of the signi n g o f the treaty
gave t e nable ground for the ful fi lm e nt of such a right as
that which was g r an ted by Portugal
The words of the Portugu e se noti fi cation to the Transvaal
con d e mn th e action o f Po r tugal rath e r than j ustify the pro
ce e d i n g in view o f the r e quire m ents of the n e utrality o f th e
present day This communication r e ad : T h e Portuguese
Governme n t has j ust b e e n informed that in accordance with
the mutual e xplanatio n s e xchange d in the treaty o f 1 89 1
with regard to the right o f moving troops and mat e rial of
war through the Portugu e se territory in South A frica into
E n glish territory and v i ce v e rsa the B ritish Governm e n t
has j ust made a formal demand for all troops and material
of war to be sent through B eira to the E nglish hinterlan d
T h e Portugu e se Governme n t cannot r e fuse the demand an d
must ful fi ll a convention depending on recipro city a co n
v e n ti o n which was settl e d long before the pr e sent state o f
“
I t r a ti o al L w
p
8
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n
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e n
all
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n
I n t L aw
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a
p
2
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2 83
.
1
.
2 29
]
N
e u tra li ty
o
f
E ur o
p
ea n
P o w ers
77
.
war had been foreseen This agre ement cannot be regarded
as a superfluous support o f o n e of the belligerent parties
or as a violation o f the duti e s imposed by neutrality or
ind e ed of th e good friendly relations which th e Portuguese
Governme n t always wishes to keep up with the Government
o f the South A frican R epublic
The fact that the as
sent O f th e Portugues e Government was obtained only
after ten we e ks of pressure brought to bear upon the Lisbo n
authorities would seem to indicate that intrigue is more
potent in i n ternational relations than accepted precedent
In its reply to the Portuguese despatch the Transvaal
re asonably protested that the treaty in question had n o t
been made public and that no notice o f it had be en re
‘
It was
c e i ve d by th e R epublic at the outbreak o f war
poi n ted out that this b e i n g the case the treaty could not be
applied even i f it granted the right contended for by E n g
land A n d ev e n stronger was th e Transvaal argument that
in no case a ft e r war had begun could such a treaty be
applied by a neutral State to the disadvantage of third par
ties The fact o f neutrality had suspended the work ing o f
The act ion o f Portugal it was j ustly all e ged
th e agreement
put her in the position o f an enemy instead o f a neutral
The Transvaal contention would appear to be fully war
ranted I n the light o f modern i n ternational law the ac
tion o f E ngland in sending troops through neutral Portu
gu e se territory against a nation at peace with Portugal was
based upon a flagrant misreading o f a purely com m ercial
treaty The action of the Portuguese Government in allow
i n g this to be accomplished was a gross breach o f the duties
incumbent upon a neutral State in time of war
“
T im s M i l itary H i story o f th War i S out h A fri ca Vo l I V
p“
ot
ot
I b d p 367
.
” 4°
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1
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e
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,
CON
T RA BA N D
CH A PT E R
III
WA R
N
OF
AN D
.
EU
T RAL POR T S
.
D uring
the war th e qu e stion o f blockade could not aris e
for the r e ason that n e ither the T r an svaal nor the O r an ge
F re e State possess e d a seapo rt Lore nzo M arques b e ing
a n eutral Portugu e s e poss e ssion could not be blockad e d by
the E nglish Ge n eral B ull e r com m a n ding th e B ritish land
forces i n South A frica had i n d e e d urg e d that such a d e cla
ration b e made but it was reali z ed by Great B ritain that
such a step was not possible und e r the laws of war M ore
string e nt measure s how e v e r w e re tak e n to pre ve nt the
smuggling of contraba n d through D e lago a B ay a tran s
action which th e E n glish all e ge d was an e v e r yday occur
r e nc e A nu m ber of neutral merchantmen bound for this
port w e re seiz e d but the diffi culty e xp e rienc e d by E n gland
was h e r inability to prov e that the goods on board w e re
really inte nded for th e e n e m y or that the men shown as
pass e nge rs w e re actually proce e ding to the Transvaal as
r e cruits for th e B oe r forc e s i n the fi eld
On O ctober 1 8 the ship A v o n d ale Cas tle had bee n ar
rest e d by the E nglish gun boat P ar tri dge and ord e re d to
r e turn und e r escort to D urban T h e B ritish cruiser T ar
i n gold which it was all e ge d
tar th e re took ov e r
had been i n t e nd e d for the Transvaal Government It was
fou n d how e ver that th e gold was consign e d to the D e lago a
b r anch o f the Transvaal B ank from the D urban bra n ch
o f th e same institution The all e gation against th e con
s i gn m e n t
it was co n sid e red by th e p r i z e court did not
suffici e ntly contaminate the S hipm e nt since th e d e stin ation
was prove d to be a n e utral o n e and the point of d e parture
an E nglish port In F ebruary th e gold was re tu r n e d to the
S ss i o al Pap rs of th H ous of Co m m o s R oyal Co m m i ss i o
War i S ou th A fr i ca A pp d i c s t M i u t s of E v i d c
th
b i g C 7 92
.
.
,
,
,
1
.
,
,
,
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,
,
.
.
,
,
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,
,
.
,
,
.
1
on
e n
n
e
e
e
n
.
n
e
e
en
,
1
78
e
o
n
,
n
e
en
e
23 1
]
Co n traba n d
o
f War
an d
N
e u tral
P o r ts
79
.
B an k
o f D urban because the ultimate destination o f the
consignme n t did not warran t the presumption that it was
en e my s property
In N ove m b e r a Fr e nch st e a m er the Co rd o ba was hail e d
by th e B ritish cruiser M agi ci e n n e The Co rd o ba re fused
to recognize the signal to halt seventy miles out f r om
Lorenzo M arqu e s and was brought to by a blank shot
H er papers howeve r failed to S how an y guilt on her part
and she was allowed to proc e ed to her port of destination
Lorenzo M arques
Th e se seizures indicate the f e eling of suspicion which
was pre valent in E ngland that appare n tly innocent d e sc ri p
tions in the bills o f lading of steamers arrivi n g at Lo r en z o
M arques co n cealed co n traband of war
The question was
raised whether the E nglish commanders should not be
ordered to open packi n g cases and the like and not examine
merely the mani fests in ord e r to furnish evidence which
would warrant the con fi scation of the goods and possibly
the ships carrying contraband sh ould such be found on
board The Council o f the B ritish and F oreign A rbitra
tion A ssociation sent a resolution to the E nglish Govern
“
ment and to that o f Portugal which declared : This as
s o ciation most earnestly and emphatically protests against
the perm ission granted by Portugal to the B oers o f the
Transvaal to make of Lorenzo M arques an emporium for
the coll e ction o f arms and ammunition against Great B ritain
thereby
with whom the king o f Portugal is at peace
e nlarging the sphere o f the present carn age in South
A frica
It was alleged in E ngland that at the beginning o f the
war when the Portugu e se Government believed vict ory cer
tai n for Great B r itain and o n ly a m atter of brief hostilities
the administration at Lo renzo M arques ha d put a certain
amount o f restraint upon th e ext e nt to which th e port might
be used as a base o f warli k e supplies but had later r e laxed
this proper restriction The only remedy possible to be
L o d o T i m s W k ly E d D
l 1
9 1899 p 82 1
’
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,
,
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.
,
,
,
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,
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”2
.
,
,
,
.
n
n
e
,
ee
.
,
ec
.
2
,
,
.
,
co
.
.
N
80
R i gh ts i n th e A n glo B o er
e u tral
-
War
[
.
232
applied by E ngland was th e right o f patrol outside the
three mile limit but the detect ion of forbidd e n forms of
commerce was practically impossible Undoubtedly n o t
only food but munitions of war as well were brought in
c o n cealed in the holds o f merchantmen and by other de
vices To exam ine th e ships prop e rly at sea it was esti
mat e d would have required thre e weeks or more and it was
declared that such an e xam ination alone could have insured
Great B ritain in her rights si n ce the bills o f lading were
evidently fi ctitious R ecruits cam e i n on th e ships in ques
tion as waiters as sailors as passenge rs an d wh e n landed
w e re sent on to Pre toria W ith permanent offi ces at the
Hague D r L e yd s it was assert e d was the re cruiting age n t
o f the Transvaal and was success ful in sending out men
from Germany B e lgiu m R ussia Sweden Holland Ireland
an d as a matter of fact from the whole o f E urope as a
great recruiting station
It was this state of a ff airs that impelled the E nglish Gov
e rn m e n t to assume an attitude toward neutral commerce
which it was found di fficult to maintain against other na
tions whose i n terests were i n volved The points in th e
B ritish position which were most violently attac k ed were
the classi fi cation o f fo o dstu ff s as contraband in certain cases
an d the application which was made o f the doctrine o f
continuous voyages not to absolute contraband of war
or to goods se e king to cross the line o f an establish e d bloc k
a d e but to oth e r classes which are usually considered free
There seems little certainty as to the exact circumstances
under which a bellige re nt may tre at foodstu ff s as contra
ban d although i t is generally admitted that under certain
conditions such goods may be so co n sidered On the other
hand doubt is express e d by many writers upon i n ternational
la w as to whether it is ever possible to treat as contraband
o f war such articles as are necessary for the sustenance of
a people
Contraband as is well known is generally held to consist
o f two kinds fi rst absolute contraband such as arms ma
,
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,
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,
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,
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‘
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N
82
e u tral
War
R i gh ts i n th e A n glo B o e r
-
[
.
2 34
enemy s army Or n avy may be d e clared con t r aband in
charact e r The practice of the United Stat e s o f Great
R ussia
B ritain an d of J apan has b e en to follow t h is rul e
in 1 904 de cla r e d ric e an d p r ovision s in g e n e ral to be co n
t rab an d
W h e n Gr e at B ritain and the United States pro
t e st e d against this decision the R ussian Gov e rnment altered
its declaration so far as to i n clude foodstu ff s as conditional
con t r aba n d only German y has h e ld that articles which may
serve at the sa m e ti m e in war and peace are r e put e d con
trabaud i f th e ir destination for th e military or naval op e ra
tions of the e n e m y is shown by the circum sta nces
A ll authoriti e s s e em to agr e e that contraba n d to b e tr e ated
as such must b e capture d in the cou r s e of direct tran sit to
th e bellige re nt but th e di fficulty n e arly always arises as to
what shall be consid e re d dire ct tra n sit On e rul e has b e en
that the ship m ent is c o n fi s ca ble i f bound for a hostil e port
anoth e r that it is only n ecessary to Show that th e ulti m at e
destination of the goods is hostile The latter rul e was d e
an
c lar e d to apply in th e A m e rican case o f th e S p ri n gbo k
E n glish mercha n tman con veyi n g goods in 1 863 f r om a neu
tral port to a n e utral port but it was alleged with the evi
dent intention that the goods should rea ch by a late r stage
o f th e same voyage th e b e lligerent forces of the Southern
‘
I n this
Confed e racy then at war with th e Unit e d Stat e s
cas e howeve r th e conclusive pre sumption was that th e
character o f th e goods themselves left no doubt possibl e as
to th e ir ultimate d e sti n ation The guilt of the vess e l was
not based upon the grou n d o f carrying cont r aban d but upon
a presumption that the blockade established ov e r the South
ern States was to have b e e n b r ok e n B oth the ship and its
cargo w e re cond e mned by the district court o f south ern N e w
York but the cargo alon e was later considered liable to con
d e m n ati o n by th e Su p r e m e Court o f th e Unit e d States
Great B ritain at the tim e noted an exce ption to th e d e cision
‘
S ss i o al Pap rs o f th H ous of Com m o s Corr spo d c
t g th
i gb o k
sp
c
S
zur
of
S
pr
th
B ri ti sh V ss ls
d
rP t rhof b U t d S ta t s Cru i s rs i
863 M i l N
y
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e
in
e
e e
C 34
n
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e
e
ei
ni e
e
e
e
n
e
e
e
e
n
1
e
,
“
sc
n
e
,
”
n
.
o
.
1
en
an
e
2
35 ]
Co n tra band
o
a
W
r
f
an d
N
e u tr al
P
ar ts
83
.
but re fused to tak e up clai m s on the part of th e E n glish
owners aga inst th e United Stat e s Gov e rn m e n t for i n d e m
n i ty
E arl R uss e ll in re fusing the request of th e owners
for i n te r ve n tion by Great B r itain said in part : A careful
perusal
of th e j udgment co n taini n g the re asons o f
the j udge th e authoriti e s cit e d by him in support o f it and
th e
evidence invoked
go e s
to e stablish that
the ca r go o f the S p ri n gbo k co n tai n ing a consid e rable por
tio n of con traband was never really and bo na fid e d e sti n e d
for N assau [ the alleged desti n ation ] but was either destin e d
mere ly to call th e r e or to be immediat e ly tra n sshipp e d after
its a r rival th e re without breaking bulk an d without an y p re
v i o u s i n corpo r ation into the co m m o n stock o f that colony
and to proc e e d to its real port o f desti n ation being a block
a d c d port
This case is o ft e n cit e d as containing an applicatio n of the
“
doctri n e o f continuous voyages to contraba n d p e r s e
B u t it se e ms that the p r imary qu e stion was not o n e o f con
trab an d
The gu ilt of th e S hip lay rath e r in th e int e ntion
pre su m ed upo n th e e videnc e that a breach o f an actual
blockad e was ultimately designed The Supre me Court in
r eviewi n g the decisio n o f the low e r court said : W e do not
re f e r to th e character of the cargo for the purpos e of d e
te rm i n i n g wh e th e r it was liable to cond e mn ation as co n tra
band but for the purpose o f ascertaining its real d e stina
tion ; for w e r e p e at agai n contraban d or not it could not
be co n demn e d i f really destined for N assau and not beyond
and con traban d or not it must be cond e m n ed i f desti n e d to
any rebel port for all r e b e l ports are under blockad e
In other wo r ds the decision was upon p r e su m ptio n and not
upon th e e vid e nce i n th e cas e ; upon the presu m ption that a
bre ach o f blockade was pre m editat e d an d not upon the
ground that th e cargo was co n t r aband T h e fact that the
cargo was o f a character which did n o t s e em likely to be
i n corporat e d i n to th e stoc k in trade o f the N assau p o p u la
S ss i o al Pap rs o f th H ou s o f Co m m o s p 39
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,
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” 5
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”
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” 6
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,
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e
e
n
ci t
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,
p
.
45
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e
e
n
,
.
.
84
N
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[
.
2 36
tion gave the j udges whatev e r j usti fi cation th e re was for
th e presumption that the goods wer e i n t e nded to be trans
shipped without breaki n g bulk A rec e nt E nglish w riter
M r A the r l e y J on e s who criticises this decision o f th e S u
prem e Court o f th e United Stat e s as a ver dict based upon
the pri n ciple o f th e expe diency o f the moment an d not upon
the usual rul e s o f e vid e nce admits that i f a v e ssel sails with
the i n tention o f violati n g a blockade there is no question
o f th e character of the port from which sh e sets out but
insists that th e re is no necessity in such a cas e to apply the
“
doctri n e o f conti n uous voyage s
I f it can be proved
he says that she is goi n g to a blockaded port it do e s not
matter whether sh e is going to a n eutral one or not but it
must be mad e clear that S h e is going to a blockaded o n e He
points to the fact that suspicion can nev e r prove this apart
from the S hip s pap e rs th e admission o f the S hip s company
and the situation and cours e of the v e ssel His view o f th e
case is that the Supreme Court as w e ll as th e lo w e r courts of
“
the United States accepted well found e d surm ise as to a
“
vess e l s d e stination i n lieu of proof and he adds the
dange r of such a departure n e eds n o furth e r comme n t
The fi rst position taken by Great B ritain to support h e r
right of sei z ure o f foodstu ff s bo und for D e lago a B ay seems
to hav e b e e n based upon this d e parture o f the Suprem e
Court of the Un ited Stat e s in th e cas e o f the S p ri n gbo k
in 1 863 It was found how e ver that this basis of j u sti fi ca
tion would not be acce ptabl e to oth e r Powers ge nerally nor
“
to the United States when the doctrine o f continuous
voyages was given such an application as practically to
i n clud e foodstu ff s as contraband W ithout the tai n t of
co n t rab an d th e re could be no j usti fi cation ev e n upon th e
S p ri n gbo k decision as a pr e cedent since there was no
blockaded port in qu e stio n I n th e s e i z ure o f A m erican
goods which w e re b e i n g con veyed by B ritish ships there
was the possibility of a violation o f a mu n icipal regulation
which fo rbade B ritish subj e cts to trad e with th e e nemy
.
,
-
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,
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’
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” 7
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”
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Co m m e rc e i n
W ar
p
.
25
5
.
2 37
]
Co n tr aban d
o
a
W
r
f
an d
N
e u tr al
P ar ts
85
.
charge of trading with the e n emy to gain plausibl e
grou n d n e c e ssarily carried with it the further presu m ption
that the ultimate int e ntion was that th e foodstuffs should
re ach the Tran svaal by a later stage o f the same voyage
W ith re ference to the arrest and detention of G e rman
mail st e am e rs bou n d for D e lagoa B ay the E nglish Go v e rn
ment found the attempt to substitute possibly w e ll grounded
suspicions for facts no more acc e ptable to third Powers than
the assumption with re gard to foodstu ff s had be e n i f the
G e rm an Govern m ent indicate
e mphatic state m e n ts o f th e
th e ge n eral opinion upo n the subj ect of the carrying of
analogu es of contraband and un n eutral service in ge neral
B ut th e
.
,
-
,
.
G E R M AN S E I Z U R E S
.
B U N D E S RAT H , H
E Rz o c; A N D
G E N E RA L
.
was reported to the E n glish
Go v e rnment by R e ar A dmiral Sir R ob e rt Harris on D e
1 899 that the German E ast A frican mail steamer
ce m b e r 5
He
B u n d esra th had sail e d f r om A den for D e lago a B ay
in formed his Government that am m unition w as suspected
but none asc e rtained that the B u n d esrath had on board
twenty D utch and Germans and two supposed B oers three
Germ a n s and two A ustralians believed to b e offi c e rs all
believed to be inte n ding combatants although shown as
civilians ; also twenty four Portuguese soldiers
On the
twenty ninth o f the same month the B u n d es ra th was tak e n
into D urban about three hundred miles from Lore n zo
M arques under the escort o f the B ritish cruiser M agi ci e n n e
The G e rman Government demanded the immediat e r e lease
of th e stea m e r upon th e assuranc e mad e by th e Hambu r g
owners that she car r ied no contraband G r eat i n dignation
was expressed in Hamburg and a demand was mad e in
th e Chamber of Commerce that measures b e ta ken to i n
sure the protection o f German c ommercial int e rests A
diplomatic note was sent by Germany protesting against
TH
BU N
E
DE S R A
TH
.
—I
t
,
,
,
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,
,
,
”8
-
.
-
,
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,
.
,
.
S ss i o al
s p c ti g h
Pape rs of th e H ous e o f Co m m o n s Corr e spon d e n c e
r e e n t e A c t i o n o f H e r M aj e s ty s N a v al A u thor i ti e s w it h r e f e r
C 33 p 1
A fr i ca N o 1
e n c e to Ce r ta i n F or e gn V e ss e ls
'
e
n
,
’
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i
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.
,
.
.
e u tra l
N
86
R igh ts i n th e A n glo B o e r
-
War
[
.
2 38
the action of E ngland Lord Salisbu r y s reply o n the part
of his Government was that the B un d esrath was suspected
of ca r ryi n g ammun ition in h e r cargo an d that it was k n own
that she had on board a n umber o f passeng e rs who were
b e li e ved to b e volunteers for s e rvice with the B oers H e
added how e ver that no o ff icial d e tails had been rec e ived
other than those contained in the ca ble announ cing th e fact
that the ship had been captured T h e German consul at
D urban prot e sted against the ship s b e ing brought in there
as prize an d his Go v e rnm e nt reit e rated its re quest that she
be re leased at o n ce si n ce she carri e d no co n traban d T h e
dete n tion o f a mail ship it was ass e rt e d i n terf e red w ith
public i n t e rests i n addition to th e loss which was inflicted
upon the owners o f the vessel
A dmiral Harris r e ported on D ecemb e r 3 1 that the B u n
d es ra th had chan ged the po sitio n of her cargo on b e ing
c has e d a fact w hich was consider e d suspicious ; that a par
tial s e arch had reveal e d sugar consign e d to a fi rm at D e
lagoa B ay and rail w ay sle e pers an d small trucks con signed
to th e sam e place It was exp e ct e d that a furthe r s e arch
would reve al arms a m ong the baggage of the Germans on
boa r d who admitted that th e y w e re goi n g to the Transvaal
E n gla n d s s e n ior naval o fli ce r at Du rba n was of th e opi n ion
that th e re was am pl e ground for discharging the cargo and
searchi n g it Th e r e quest was accordingly m a d e th at au
t h o ri ty be giv e n for thro w ing th e ship into a prize court
and that instructions be forwarded as to the proper dis
posal of th e pass e nge rs on board
D espite the protest of Ge rma n y that the B u n d esra th
carri e d neither contraband nor volun te e rs for the Transvaal
instructions w e re issu e d that a prize court should take over
th e ship an d a search be at once made by comp e tent a u
th o r i ti e s
O r ders were given at the same time however
that until it becam e evident that the B u n d esra th was carry
i n gcontraba n d
oth e r G e rman mail st e amers S hould not be
a r re ste d o n suspicion only
’
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I bi d ,
1"
I bi d ,
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.
pp
p
.
.
2 —3
4
.
.
,
2 39
]
Co n traba n d
o
ar
W
f
N
an d
e u tral
P o rts
87
.
Instructions were also issued by the B ritish Government
that application be made to th e prize court for the relea se
of the mails ; that i f they were released they were to be
ha n d e d ov e r to the G e rman consul and to be hastened to
their d e sti n ation either by an E nglish cruiser i f available
or by a mail steamer o r otherwise
It was pointed out
that the ship an d its cargo including the mails were in the
custody of th e court and except by the ord e r o f that tri
bu n al should n o t be touch e d It was urged however that
e very facility for pr o ceeding to his destination be a ff orded
to any pass e nger whom the court con sidered innocent
The German consul at D urban re port e d that no contra
band had b e en found o n the B u n d e s ra th although a thorough
search had been made The failure to discover goods of
a contraband character apparently rendered the action o f
Great B ritain s naval authoriti e s unj usti fi able Ge rmany
indeed insisted that had there been contraband disclosed
even this fact would not have given E ngland any right to
interfere with neutral commerce from one neutral port to
another and insisted that the task o f preventing the trans
mission o f oo n traban d to the Transvaal lay with the Portu
G
vernment
The
fact
was
also
pointed
o
u
t
t
hat
when
e
se
o
u
g
war fi rst broke out the steamship company owning the
B un d esr a th had discharged S hip m e nts o f a cont r aband char
acter at D ar e s 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 b e embarked
“
Great B ri tain expressed herself as entire ly unable to
acc e de to
the contention that a n e utral vessel was
entitl e d to co n v e y without hindran ce co n traban d o f w ar
to th e en e my so long as the port at which she int e nded
to land it was a neutral port
The novel suggestion was
made by G e rmany that the mail steamer be allo w ed to go
on bail so as not to interf e re mor e than was necessa ry with
her voyage but the E nglish representative doubted the
( bi d pp 5 —6 ; Cha m b rla i t o H ly H u tch i so
J
3
900
“
I bi d p 7 ; L asc ll s t o S al i s b u ry J
900
5
I b i d p 7 ; S al i s b ury t o L asc ll s J
4 1900
,
,
”1 1
,
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,
,
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,
,
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.
’
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12
.
,
-
-
,
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,
”13
.
”
,
11
e
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,
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,
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.
,
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e
n
e
e
an
,
e
e
,
n
-
.
an
1
,
.
,
n,
.
.
an
.
,
1
.
N
88
e u tral
R i gh ts i n th e A n glo B o er
-
War
[
.
24 0
practicability o f such a plan He was in favor o f the sug
gestion i f it could be adopted under suitable conditions
but S ince the S hip had probably gon e into the hands of the
prize c ourt that tribunal he said would have to act inde
pendently
O n J anuary 5 the mails and the passengers were t e
leased by order o f the court and were taken on board th e
German warship Co n d o r for D e lago a B ay B ut not until
two w e eks lat e r were th e ship and its cargo released
The
only reason assigned by the court for the release was that
no contraband had been discover e d by the search
Si n ce the three cas e s which attract e d most attention the
B un d e s rath the H erz o g and the G e n e ra l with a few unim
portant exceptions as to details were S imilar in r e gard to
the points of law involv e d the facts in the remaining cases
will be outlined It will then be possibl e to discuss th e
grounds upon which Gre at B ritain ass e rted the right of seiz
ure and the o bj ections which G e rmany made to the E n g
lish assertion
T H E H E R Z OG — On D ecember 1 6 1 899 a cabl e from the
comm and e r i n chief of the M e diterranean station announced
to the B ritish Foreign Ofli ce that the German st e am ship
H e rz o g had l e ft the Suez Canal on the twelfth for South
A frica carrying a considerabl e numb e r o f mal e pa ss e ngers
“
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 passen
“
gers dress e d in khaki could be legally removed from
“
the H e rzo g
On the twenty fi rs t the senior naval o ffi cer
at A den reported that the H erz o g had sailed on the eight
“
e e n th for D e lago a B ay conveying
probably for service in
the Transvaal about forty D utch and German medical and
other o fli ce rs and nurses
A lthough instructions had been
issued on th e fi rst o f J anuary that neither the H erz o g nor
any other Ge rman mail steamer should be arrest e d o n s us
‘
I bi d p 2 ; H ly H u t ch i so t o Cha m b rla i
8
00
J
9
“
I bid p 1 ; A d m i ral ty t F or i g Offi c
N
1
d
"
.
,
,
,
,
.
,
.
,
14
.
.
,
,
,
,
,
,
.
,
.
.
-
,
,
-
-
,
”
,
”
.
”
”
s
-
.
,
,
”13
.
1
.
,
.
.
,
.
1
1
I bi d
.
,
pp
2
e
n
-
o
.
2,
4,
11
.
n
e
e
n
e,
n,
os
.
an
.
an
1
1
,
2
.
.
N
90
e u tral
R i gh ts i n th e A n glo B o e r
-
War
.
[
24 2
and was b e ing s e arched
The Ge rman Governm e nt at once
e n ter e d a stro n g p r otest and demand e d in rath e r brusque
“
t e rms that orders be giv e n fo r th e immediate re l e as e of
the steam e r an d her cargo for that portion of h e r cargo
which has alre ady b e en landed to be tak e n on board agai n
a n d for no hindrances to be placed i n the way o f th e S hip
con ti n uing her voyage to the plac e s me n tion e d in h e r itin
crary Cou n t H atz f e lt the G e rman r e pres e ntative in Lon
“
don con tinued : I am further instructed to requ e st your
E xc e ll e n cy [ th e M arquis of Salisbury ] to cause explicit i n
s truc ti o n s to be s e n t to the Comma n d e rs of B ritish ships
in A frican w aters to resp e ct the rules of international law
and to p lace no furth e r impedim e nts i n the way of the trade
b e tw e e n neutrals
To the form and imputations of this request th e B ritish
Gov e rnment took e xception and th e situation appeared
ominous for a time I n structions had be e n issued how e ver
that u n l e ss the G en e ral disclos e d contraban d afte r a sum
mary s e arch it was und e sirable to d e tain the ship si n c e Sh e
carri e d the mails The report o f th e naval offi cer at A den
disclos e d the fact that he had board e d and detain e d th e
ship at that place The ground for his action was that
he had b e en i n formed that a numb e r of suspicious articles
were on board for D e lago a B ay including boxes of am
mun ition stowed in th e main hold burie d under res e rv e coal
A n insp e ction of th e m an ifest had shown several cas e s o f
rifle am m unition for M aus e r M annlich e r an d S portin g rifl e s
consigned to M o m basa but this consignment was beli e ved
to be bo n a fid e Other suspected articl e s on the mani fest
were wago n axles an d chem icals an d at th e botto m of the
hold w as a consignme n t of food for D e lago a B ay with boil
ers and heavy machin e ry stowed on top o f the res e rv e coal
The G e neral carried b e sid e s a number o f F lem ish and Ger
man passengers for D e lago a B ay i n plain clothes but of
“
military app e aranc e some of whom were believed to be
19
.
,
,
”
.
,
,
,
” 20
.
,
,
.
,
.
.
,
.
,
,
,
.
,
.
,
”
,
1’
I bi d
20
I bi d
.
,
.
,
p
p
.
.
6
8
.
.
24 3
]
Co n traban d
o
f War
an d
N
e u tral
P o r ts
91
.
train ed artillerym e n It w as suggested that this last doubt
could be cleared up only by a search of th e private baggage
of the p e r sons suspected but it was not considered by the
“
B ritish F oreign Offi ce that there was
suffi ci e nt evidence
as to their destination to j usti fy furth e r action on the part
o f the o fli ce rs conducting the search
O n the s e ve n th th e G e n e ral was released but was not
able to sail until th e tenth a delay due to th e labor o f re
stowing her cargo which was do n e as quickly as possible
T h e cr e w of the E nglish S hip M a rat h o n assist e d by one
hu n dre d cooli e s having worked day and night afte r the
arrival o f the ship on the fourth completed the search on
the s i xth but were unabl e to complete the resto w al until the
morning of the tenth
.
,
” 21
.
,
,
,
.
,
,
,
.
A S P E CT S
S E I Z U R ES
In the discussion which occurred duri n g the d e tention
and which was con tinued after the releas e o f the three Ger
man ships the assertions made by the B ritish and Ge rman
Govern ments brought out th e fact that E nglish practice is
oft e n opposed to Continental opinion in questions o f i n ter
natio n al law
On th e fourth of J anuary th e Ge rman A mbassador in
“
London had declared that his Go ve rnm e nt aft e r ca re
fully exa m i n i n g the matter o f the s e izure of the B u n d e s
ra th
and considering the j udicial aspects o f the case was
o f th e Opinion that proceedings before a Prize Court w e re
not j usti fi e d
This vi e w o f the case he declared was
based on the consideration that proceedi n gs before a Prize
Court are only j usti fi ed where the presence o f oo n traban d
o f war is proved and that what e ver may have b e en on
board the B u n d es rath th e re could have been no contraband
of war si n ce according to reco gn iz e d pr inciple s of inter
natio n al law there cannot be cofi tfaban d o f war in trade
between neutral ports
TH
J U DI CI A L
E
OF T H E
.
,
,
.
,
”
,
,
” 22
.
,
,
,
,
,
,
,
,
”
.
also
pp
10 1 7 2 1
”
S e ss i o n a l Pa p e rs A f ri ca N o 1
S al i s b ury Jan 4 1900
21
I bid
.
p
,
.
22
;
se e
,
,
,
.
,
.
,
,
.
.
.
C 33
.
,
p
.
6 ; H atz f e lt
to
.
e u tral
N
92
War
R igh ts i n th e A n glo B o er
-
[
.
244
He ass e rt e d that this view was taken by th e E nglish Gov
e rn m e n t in the case o f the S p ri n gb o k i n 1 863 as oppos e d to
th e d e cision of the Supre me Court o f th e Unit e d Stat e s
sitti n g as a pri z e court o n an appeal from th e low e r dis
”
t ri ct court of th e Stat e of N e w Yo r k
T h e prot e st of
th e B ritish Gov e rnm e nt against th e d e cisio n of th e U n ited
Stat e s court as contraveni n g th e s e recogniz e d principles
he said was put on r e cord in the M anual o f N aval Prize
Law published by the E nglish A dm iralty in 1 866 thre e ye ars
a ft e r the origi n al prot e st T h e passage cited from th e
“
manual read : A vess e l s destination should be considere d
neutral i f bo th the port to which she is boun d and e very
interm e diate port at which she is to call in th e course o f
“
her voyage be neutral and th e destination o f the vessel
is conclusive as to the d e sti n atio n of th e goods on board
In vi e w o f this d e claration on the part o f Great B r itai n
toward neutral com m e rce Count H at f e ld t con tend e d that his
Governm ent was fully j usti fied i n claimi n g th e rel e as e o f
the B un d es ra th without in vestigation by a Priz e Court an d
that all the more b e cause S i n ce the S hip is a mail st e am e r
with a fi x e d itin e rary sh e could not discharge h e r ca r go
at any oth e r port than the n e utral port o f destination
I n his reply to the German not e Lord Salisbury thought it
desirable befor e e xam i n ing the doctrine put f orwa r d to
re m ove c e rtain errors of fact in r e gard to the authoriti e s
cited He e mphatically declared that the B ritish Govern
"
i t w i ll b r m m b r d was
t d cid d
th
grou d
T h i s cas
of th co traba d charact r of th good s i th cargo b t b caus
o f th pr su m ptio that th ul tim at i t ti o of th sh i p wa s
st ab l i sh d o v r th S ou th r S t at s T h i s
t
b r a k th b loc k a d
w ll fou d d susp i c i o b as d upo th charact r of th cargo as
t d i g t how that i t cou l d b i t d d o ly for th forc s of
th
S ou th r Co f d racy l d t o th co clus i o t hat a b r ach o f
T h i s pr su m ptio
d ou bt was cor
b loc ka d was pr m d it at d
r ct d i t h i s part i cular cas th d c i s i o of th cou rt was prob
ably j us ti fi d b t th cou rs of r aso i g by wh i ch th co clu s i o
was r ach d was g rally co s i d r d a d a g rou s i o v a ti o i
i t r a t i o al r lati o s
r c t ly aga i ass rt d tha t
I t has b
th
d ci s i o
was t b as d p
acc p t d ru l s of v i d c
th
S upra p 24 F or a cl ar s tat m t o f th l att r v i w
Ath r l y
J o“ s Co m m rc i W ar 9 5 5
S ss i o al Pap rs A fri ca N 1
C 3 3 p 6 ; H t f ld t
.
,
,
,
.
’
,
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,
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.
z
,
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,
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.
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J an
.
4,
,
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u
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e
en
2
.
,
1 900
n
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.
24 5
]
Co n tr aban d
o
f War
an d
N
e u tral
P ar ts
93
.
m e nt had not in 1 863 raised any claim or contention
against the J udgm e nt o f the United States Prize Court in
“
A n d he continued :
the case o f the S p ri n gbo k
On the
fi rst seiz ure o f that vess e l and on an ex p ar te and i m per fect
statem e nt o f the fact by the owners E arl R ussell then Sec
re ta ry o f Stat e for F oreign A ff airs inform e d Her M aj e sty s
M inister at W ashington that the r e did not app e ar to be any
j usti fi cation for the seizure of the vess e l and h e r cargo that
the supposed r e aso n namely that th e re were articles in the
mani fest not accounted for by the captain certainly did not
warra n t the seizure more especially as the destination of
the vessel ap p eare d to have be en bo na fid e n e utral but that
inasmuch as it was probable that the v e ssel had by that ti me
been car r ied be fore a Prize Cou rt o f the U n it e d Sta tes for
adj udication and that the adj udication might shortly follow
i f it had not alrea dy tak en place the only instru ction that
he could at present give to Lord Lyo n s was to watch the
proceedings an d the J udgment of the Court and eventually
transmit full in formation as to the course o f the trial and its
re sults
He assert e d that the real contention advan ced in
the plea of the owners for the int e rvention of the B ritish
Go vernment had bee n that the goods [ o n board th e
S p r i n gb o k ] were in fact b o n a fid e consigned to a neutral
at N assau but that this plea had b e en refused by the
“
B ritish Government without any diplomatic protest or
any obj ection against the decision
nor did they ever
express any dissent from that decision on the grounds on
which it was
This assertion is fairly based upon the re ply o f the E n g
lish Go vernment to the own e rs on F ebru ary 2 0 1 864 E arl
R ussell had expressly declared that his government could
“
“
not in terfere o ffi c i ally
he said a
On the contrary
careful perusal o f th e e laborate and abl e J udgment conta in
i n g th e reasons of the J udge the authorities cited by him
in support of it and the important evidence properly i n
v o k e d f r om the cases o f the S te p h e n H art and G e rtr u d e
“
I bi d p
8 ; S al i s b u ry t o L asc ll s J
10 1 900
’
”
.
,
,
,
’
,
,
,
,
,
,
,
,
,
,
,
,
”
.
,
,
.
,
”
.
,
,
,
,
,
.
,
.
1
e
e
,
an
.
,
.
N
94
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[
.
24 6
( which h er maj e sty s gov e r n m e nt have n o w seen for the
”
fi r st tim e ) i n which th e sa m e parties w e r e conc e r n ed
had
’
,
convi n ce d his Gove rn m ent that th e d e cision was j ustifi abl e
”
m
T h e fact was poi n ted out that the
und e r the circu stance s
e vid e n c e had go n e
so far to establish that the cargo o f the
S p ri n gbo k contai n i n g a consid e r able portion of co n traband
was nev e r r e ally an d bo n a fid e d e stin e d for N assau but was
either d e sti n ed m e re ly to call th e re or to b e imm e diat e ly
transhipped aft e r its arrival there without bre aki n g bulk
and with out any pre vious incorporation into the common
stock of that Colony and then to proc e ed to its r e al d es ti
“
n a ti o n
being a blo ck ad e d p o r t
The complicity of th e
owne r s of th e ship with the d e sign of the owners o f th e
cargo was so probable on the evidence that in the opin
ion of th e law advis e rs o f th e Crown th e re would be great
d ifficulty in cont e n di n g that this ship and cargo had not
be e n rightly conde m n ed
T h e only r e cours e of the owners
was consequ e ntly the usual and proper rem e dy of an ap
peal before th e United States Courts
T h e next poi n t that Count H atz f e ldt mad e was not so
squar e ly m e t by Lord Salisbury n a m ely that the manual
“
of th e E n glish A dm iralty of 1 866 expre ssly declared : A
v e ssel s destination shall b e considere d neutral i f both the
point to which sh e is bound an d e v e ry int e rmediat e port at
which she is to call in the course of h e r voyage be n eutral
“
A n d again
The desti n ation is con clusive as to the d e sti
nation o f th e go ods on board
Count H atz f e ld t contended
that upon this pri n cipl e admitted by Gr e at B ritain hers e l f
Germany was fully j usti fi ed i n clai m i n g th e rel e ase o f th e
ship without adj udication si n c e she was a mail steamer with
a fi x e d itin e rary and cons e q uently could not disch arge h e r
"
cargo at any other port than the n e utral port of destination
T h e o n ly r e ply that Lord Salisbury could m ake was that
the manual cited was on ly a general statem e nt o f the pri n
"
S ss i o al Pap rs M i s l N I
C 34 pp 39—40 ; R uss ll
t o L yo s F b 0 864
I bi d
I t al i cs our w
"
S
w l Pap rs A fr i ca N
I
C 33 p 6
.
,
,
:
,
,
” 27
.
,
,
”
,
,
,
”
.
.
,
,
’
,
”
.
,
”
.
,
,
-
8
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,
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.
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,
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,
.
.
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.
2
.
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.
.
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,
,
o
.
.
,
.
.
24 7
]
Co n tra ba n d
o
ar
W
f
N
an d
e u tr al
P
ar ts
95
.
by which B ritish offi c e rs we r e to b e guided in th e
exercise of thei r duti e s but that it had never been assert e d
and could not be ad m itted to be an e xhaustive or auth o ri ta
tiv e statem e n t of th e vi e ws of the B r itish Governme n t H e
further cont e n ded that the pre face stat e d that it did not
t r eat of questions which would ultimately have to be settl e d
by E nglish prize courts The assertion was th e n made that
while the dir e ctions of the m anual w e re su ffi cient for prae
ti cal purpos e s in the cas e of wars such as had be e n waged
by Great B ritain in the past they were quite inapplica bl e to
the case which had arisen of war with an inlan d State whose
only com munication with the sea was over a few miles of
rail w ay to a n e utral port T h e Op i nion o f the B ritish Gov
that the
e rn m e n t was that the passage cited to the eff ect
destination of the v e ssel is conclusive as to the d e stination
“
o f the goods on board had no application
It ca n not
apply to con traband of war on board a neutral v e ssel i f
such contraband was at th e time of seiz ure consign ed or
i n tended to be delivered to an agent o f the en e my at a n eu
”
tral port or in fact destined for the enemy s country "
Lord Salisbury then cite d B luntschli as statin g what in
the opi n ion of the B ritish Gov e rnment was the correct view
“
in re gard to goods captured und e r such circumsta nc e s : If
the ships or goods are s e nt to the destination of a neutral
port only the be tter to come to the aid of the e nemy there
will be contraband of war and con fi scation will be j usti
fi ed
A n d basing his argument upon this authority he
i n sisted that his Govern m e nt could not admit that ther e was
suffi cie n t re ason for ordering the r e lease of the B und esr ath
c i p le s
,
.
.
,
.
”
.
’
,
,
,
,
”3 0
,
,
.
S al i s bu ry t o L asc ll s J 10 900
S i l a vi r s ou m archa d i s s m so t xpé d i és a d sti a
ti o d port u t r q u pou r m i u x v i r
aid a l
m i i1
y au ra co t r b a d d e gu rr t la co fi scati o s ra j ti fié
D ro it
I t C d i fié F r ch t ra sla ti o by L ar d y 1 880 3 d E d § 8 I 3
O
of th t wo cas s c it d i u
t o f t h i s op i i o
i s tha t of th
S p i gb k b u t i § 835 R m 5 th follow i g s t a t m t i s m a d :
U e t héor i e fort d a g r us a é t é form ulé par l j ug Chas e :
port b lo q u é st l l i u d d s ti ati o d u a v i r l
utr
L o sq
d o it etr co d a m é m em l q u i l r d p réalab l m t d a s u
port u t r p u i m port q u i l a it
no
d e la co t r b a d
de
2"
I bid
.
,
pp
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1 8—19
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.
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N
6
9
e u tral
War
R i gh ts i n th e A n glo —B o er
[
.
24 8
without examination by the Prize Court as to whether she
was carrying con traband of war b e lon ging to or destined
for the South A frican R epublic
It was admitted how
e ver that th e B ritish Go vernment fully recognized how de
sirable it was that the examination should be carried through
“
at th e earliest possibl e mom e nt and that all proper con
sideration should be shown for the owners and for i n nocent
pass e ngers and all m erchandise on board of her
It was
intimated that explicit instructions had been issued for this
purpose and that arrangements had been made for the
speedy transmission o f the mails
The German Government agreeing for the moment to
put to one side th e disputed question of trad e betw e en neu
tral ports in general neverthel e ss insisted that since a pre
liminary search of the B un d es r ath had not disclosed contra
band o f war on board th e re was no j ustifi cation for d e li v
ering the vessel to a prize court The suggestion was made
that future diffi culty might be avoided by an agre e me n t
upon a parallel of latitude down to which all ships should
b e e xempt from search
A n d alt h ough it was not found
possibl e to reach an exact agreement upon this point orders
w e re issued by Great B ritain that th e right of s e arch should
not in future be exercised at A d e n or at any place at an
equal distance from the seat of war and that no mail
steamers should be arr e sted on suspicion alone Only mail
steam e rs of subsidiz e d lines were to be included but in all
cas e s of steamers carrying the m ails the right of search was
to be exercised with all possible consideration and only re
sorte d to when the circumstances were clearly such as to
j usti fy the grav e st suspicion
It is interesting to note in the positions ta k en by the Ger
man and E nglish Governments with regard to th e theory
of ultimate destination and continuous voyages a wide diver
g e nce of opinion The B ritish Government apparently
based its contention upon the decision o f the United States
‘
S ss io a l Pap rs A frica N 1
C 33 p 9 ; S al i s b u ry t o
,
”
,
.
,
,
,
”3 1
.
.
,
,
.
.
,
.
,
82
.
.
3
L
e
n
asc e ll e s
82
I bi d
.
,
,
e
Jan
pp
.
.
1 0,
1 9—22
,
,
1 900
.
.
o
.
.
,
.
1
N
98
e u tral
-
the pri n ciple th at f or
a n e u tr al
to
p
War
R i gh ts i n th e A n glo B o e r
s hi
fr o m
c o n s i gn e d
s
n o ti o n
th e
o r t,
p
o
c o n tr ab an d
f
[
.
250
n e u tr al s ta te s
o
f
w ar
si m
p ly
To this th e E nglish Gov e rn m e nt d e mur r e d
W e hav e r e serv e d to ours e lv e s th e right of raisi n g this qu e s
tion i n th e futur e in th e fi rst place be cause it w as e ss e ntial
to us to arrive at an e xp e ditious solution of th e p e n di n g
diffi culty and s e condly b e c aus e in poi n t of fact th e prin
c i p le her e set up by us has not m e t with u n iv e r sal r e co gn i
tion in th e ory and practic e
Sum m ing up w hat in the opi n ion of th e G e rman Govern
ment corr e sponded most clos e ly with th e g e n eral opi n ion
“
of th e civili z ed world the Chan c e llor th e n d e clare d : W e
r e cogni z e the rights which the Law of N ation s actually con
c e des to b e llige r e nts with r e gard to n e utral v e ss e ls and n e u
tral trade and traffic W e do not ignor e th e dutie s impos e d
by a stat e of war upo n th e ship own e rs merchants an d ves
s e ls of a n e utral stat e but w e re quir e o f th e bellige r e nts that
they shall not e xt e nd th e powe r s th e y poss e ss i n thi s resp e ct
beyo n d th e strict n e c e ssiti e s o f war W e d e m and of the
b e llige r e nts that th e y shall resp e ct the i n ali e n able rights of
legi tim ate neutral com m e r ce an d w e r e quir e above all
things that the right of s e arch and of th e e ve n tual capture
of n e utral ships and goods shall be ex e rcis e d by the b e llig
e r e n ts in a man n er conformabl e to th e m ai n t e n ance o f neu
tral com m erce an d o f the relation s of neutrality existing
b e t w e e n f r i e n dly and civili z e d nation s
“
This doctri n e namely that fo r ships consign e d from
neut r al states to a n eutral po r t th e noti on of con traban d
simply do e s not e xist cl e arly d e fi n e d the cont e ntion of
“
Great B ritain that contraband which at th e ti m e of s e i z
“
u re
was con si gn e d or intend e d to be d e liver e d to an
age nt of th e e nem y at a neutral port or in fact destin e d
for th e e n e m y s country is liabl e to s e izur e an d that both
ship an d cargo may be c o n fi scate d
It also d e n ied the
S ss i o al Pap rs A fri ca N
C 33 ; p
9
5 J
d o es
no
t ex i s t
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,
,
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.
,
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“
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1 900
.
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p 25
p 1 9 ; S al i sb u ry t o L asc e ll e s
.
.
.
.
.
.
,
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.
1 0,
1 900
.
2
,
an
.
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,
2
5
1
Co n traban d
]
o
f War
E nglish
N
an d
e u tr al
P o r ts
99
.
contention that provisions on boar d
destined
for th e en e my s Governm e nt or agents and
also for
the supply of troops or
especially adapted for use as
“
ration s fo r troops may b e seiz e d as contraband
Cou n t Vo n B illow summarized the action o f the German
“
Government by saying W e demanded in the fi rst pl ace
the rel e as e o f the st e amers
In th e second place w e
demanded the paym e n t of compensation for the u n j usti fi ed
detention of our ships an d for the losses incurred by the
German subj ects whose interests were involved
Thirdly
we drew attention to th e necessity for issui n g instructions
to the B ritish N aval Commanders to molest no German
merchantmen in plac e s not in the vicinity of the seat o f
war or at any rate i n places north of A de n
Fo u rthly
we stated it to be highly d e sirabl e that the E nglish Gov
e rn m e n t should instruct their Command e rs not to arrest
steamers flyi n g the G e rman mai l flag
F i fthly we pro
posed that all points i n dispute should be submitted to arbi
Lastly the E nglish Govern m ent have gi ven
trati o n
expr e ssion to their regret for what has occurred W e ch e r
ish the hope that such regre ttable incidents will not be re
W e trust that the E nglish naval authorities will
p ea te d
not again proceed without su ffi cient cause in an unfriendly
and pre cipitate manner against our ships
Th e Chancellor at the same ti m e set forth certa in general
propositions as a tentative system of law to be operative in
practice a disregard of which i n th e opinion of the German
Go vernment would constitute a breach of international
treaties an d customs :
( 1 ) N eutral merchant ships on the high seas or i n the
territorial waters o f the belligerent Powers
are sub
j e c t to th e right of visit by the warships of the belligerent
parti e s
It was point e d out that this was apart from the
right of convoy a q uestion which did not arise in the cases
under discussion The proposal was not intended to apply
to waters which were too r e mote f r om the s e at of war and
a sp e cial agre e m e n t was advocated for mail ships
“
6 ; A d m i ral ty t H arri s J
I bi d p
8
900
S p ch i R i chstag J
900
9
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1 00
e utral
R i gh ts i n th e A n glo B o e r
-
War
[
.
25 2
( 2 ) The right of visit is to be e xercis e d with as much
consideration as pos sible and without undu e molestation
( 3 ) The procedure in visiting a v e ssel con sists o f two
or three acts accordin g to the ci r cu m stanc e s o f ea ch case ;
sto pping th e ship exami n ing h e r papers an d s e archi n g h e r
Th e two fi rst acts may be und e rtak e n at any time and
without pre limi n ary proc e edi n g I f th e neutral v e ss e l re
sists the order to stop or i f irre gularities are discovere d i n
her pap e rs or if th e presence of con t raband is revealed
th e n the belliger e nt vess e l may capture the neutral i n order
that the cas e may be investigated an d decid e d upo n by a
comp e te n t Pri z e Court
B y the term contraband of war only such articles
or persons are to be und e rstoo d as are suited for war and
at the sam e time are destin e d for one of the bellig e rents
“
Th e class of articles to be included i n this de fi n ition
it
“
was intimat e d is a m atter of dispute an d with the e x cep
tion o f arms and a mm unition is d e termined as a rule with
refe rence to the sp e cial circumstanc e s of each case unless
o n e o f th e b e llig e re n ts has expr e ssly noti fi ed n eutrals in a
re gular mann e r what articl e s it i n t e nds to treat as con tra
ba n d an d had met with n o opposition
D iscov e red co n traband is liabl e to co n fi scation ;
wh e ther with or without compensation depends upon the
circu m stanc e s o f e ach case
If th e s e izur e o f th e v e ss e l was not j usti fi ed the bel
li ge r e n t state is bound to order th e immediate r e lease of the
ship and cargo an d to pay full com pensation
It w as th e vi e w of th e Germa n Go v e rn m ent according to
th e s e principles an d in vi e w o f th e re cogni z e d p r actic e of
nation s that it would not hav e be e n possibl e to lodge a pro
t e st against th e stoppi n g o n th e high s e as o f th e thr e e Ger
man st e amers or to protest agai n st th e examination of their
pap e rs B ut by th e sam e st andard it was con tende d that
th e act of s e izing an d conveyi n g to D urban th e B un d esr a th
and th e H e rz o g an d the act o f discharging the cargoes of
th e B u n d es rath and G e n er al w e re both undertaken upo n
.
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N
1 02
e u tral
War
R i gh ts i n th e A n glo B o er
-
[
.
254
points taken by th e G e rman Gove r nment as e nunciat e d in
the speech of Cou n t Von B ii lo w although h e clearly indi
cat e s what he thi n ks the general ten den cy of the proposed
G e rman syste m o f law would be It would s e em that h e
does not giv e a cl e ar statement o f th e German doctrine
W hen h e ass e rts that Cou n t Von B ii lo w com mi tted h i m
sel f to the crud e doctri n e that n e ut r al ships plyi n g betwe e n
n e utral ports would not be liable to interfer e nce the i n fer
ence is not a n e cessary result of th e G e rman position N o r
do e s it n e ce ssarily follow accordi n g to the Ge rm an standard
“
that to constitute the o ffe nse o f carrying contraband a
bellig e rent destination is essential and th e refore th e r e
can be no contraba n d when the voyage is from neutral
port to neutral port
M r La w re n c e possibly has refer e nce
only to th e position tak e n argu en d o by th e Ge rman Gov
e rn m e n t duri n g th e corresponden c e immediat e ly followi n g
the seizure o f the Ge rm an ships and not to the gen e ral
rul e s formulated by th e German Chancellor on J anuary 1 9
1 900
in his speech before the R e ichstag
There is no
indication that M r Lawr e nc e had this spe e ch be fore him
wh e n he passed j udgm e nt upon the German doctrin e
although th e preface to the third e dition of his Prin cipl e s
of Int e rnational Law is dated A ugust 1 1 900
It is possibly true that the Germ an rul e s were advanc e d
be cause of th e ir expedie n cy i n view o f the geographical
position of Germany B ut th e E n glish writer apparently
admits a similar motiv e in opposi n g the proposed Ge rman
system when he says Great B ritai n is th e only E uropean
“
state which could not obtain in tim e o f war all the sup
pli e s s h e wished for by land carriage from neighboring
n e utr al ports with which according to the doctrine in qu e s
tion neut r als would be free to trad e in contraba nd without
the slightest hindranc e from the oth e r belligerent
The view tak e n by M r Lawrenc e would se e m unfair to
"
i c ipl s of I t L w p 67 9
Pr
“
Th
G rm a
argu m t was that accor d i g t o E gl i sh xpr s
h
s i o i th pas t ot ab ly i 863
a v al
d x pr ssly i
w
gu‘i d t h r cou l d t b co t rab a d of war b tw
u t ra l port s
Pr i c i pl s of I t L w p 680
,
.
.
”
,
.
,
”
”
,
”3 9
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.
,
‘
10
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,
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25
5]
Co n traban d
o
f War
N
an d
e u tral
P o r ts
1 03
.
the proposed rules in a number o f points Count Von
B illow clearly pointed out that bellig e rent v e ssels might cap
ture a neutral vessel i f th e latt e r resisted the ord e r to st0p
or i f irregularities were discovered in her pap e rs or if the
presence of contraband wer e rev e aled Under th e term
co n traband o f war he admitte d that article s and persons
suited for war might be i n cluded provided they wer e at th e
same time destin e d fo r the use of o n e of the belliger e nts
and he was ready to admit that discovere d contr aband
should be co n fi scable It is true the caution was added that
should the seizure prove to be unjusti fi able th e bellig e rent
State should be bound to order immediate release and mak e
full compensation an d that the right o f visit and s e arch
should b e exe r cised with as much consideration as possible
It
a n d without undue mol e station to n e utral co m merce
was u n derstood that n e utral mercha n t vess e ls on the high
seas o r i n t h e territorial waters of th e b e lligerent powers
should be liable to visit and search but again with the nec
essary caution that the right should not be exercised in
waters too re mote fro m the seat o f war an d that additional
”
consid e ration be conceded to mail steamers
Th e re would s e em to be no necessary opposition between
the G e rman position in 1 900 and that tak e n by the Supreme
Court o f the United Stat e s in 1 863 with reference to th e
ships S p ri n gbo k and P e terh o f In the latter case the cargo
o f the ship was condemned on the ground that th e goods
not necessarily contraband in cha r acter were being carried
into the neutral M exican po rt of M atamoras It was be
li e v e d however that the goods were not i n tended to be
sold there as a matter o f trade but were d e stined for the
use of the forces of the Southern Con federacy across the
R i o Grand e R iver
To these belligerent forces it was pre
sumed th e goods w e re to be conveyed as the fi nal stage of
their voyage but th e d e cision o f th e court was distinctly
‘
upo n the guilt o f a breach o f bloc kade
The character o f
“
S ss i o al Pap rs A fr ica N 1
C 33 p
S p ch
4
i
R
i
chs
t
ag
900
J
9
“
S ss io al Pap rs M i s l N 1
C 34 p 60
.
,
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”
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3
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n
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e
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an
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2
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N
1 04
eu tral
R i gh ts i n th e A n glo B o e r
-
War
[
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256
the goods did not give j ust ground for sei z ure provided
they were i n tended in g o od fai th for a neutral market but
the character o f the goods showed that they were not so
intended and th e simulated papers of the ship substantiat e d
this suspicion B ut it is to be rep e ated cond e m nation was
declared upon the ground o f an i ntended breach of an
es tablished blockade as the fi nal stage of the voyage Had
there been no block ade of the Southern States th e se d e ci s
ions could n o t have been upheld N o contraband of war
was possible between th e neutral ports in the course of
bo n a fid e neutral trade but the character of the goods an d
the dishonest character of the ships made possible the con
elusive presumption that the goods were ultimat e ly i n
tend e d for the block aded en e my
I n th e seizure of the German ships on the other hand
the B ritish Governm e nt was not able to show that the ships
were really carryi n g contraband or that there was an y
i rregularity in their papers The prot e st of the German
Governmen t and its later announcement of certa in rules
which should govern such cas e s m e rely cautioned Great
B ritain against an undue exercise o f the recognized right
o f visit an d search The attem pt was n o t made to lay
down a n e w s yst e m of principles which would render the
carrying of con traband by neutrals u n hampered by the
belligerents for Cou n t Von B ii lo w in setti n g forth the
t e ntative system which in the opi n ion o f his Govern ment
would prot e ct n eutral commerce i n time of war laid stress
upon the fact that there are as yet no legal pri n ciples fi xed
and bindi n g on all th e maritime Powers respecting the
r ights of n eutrals to trade with a belliger e nt or the rights
of bellige r e nts in respect to n e utral com merce He pointed
out that although proposals had be e n repeatedly made to
regulate this subj ect all attempts had failed owing to th e
obstacl e s created by the conflicting views of the di ff erent
Powers
T h e P e ace Con fer e n c e at th e Hague has i n fact e xpress e d
the wish that an international co n f e rence might regulate
,
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25
8
German ships had been guilty o f unn e utral servic e
which the m ore re cent authoriti e s o n i n t e rnational law dis
ti n gu i sh e d from the carrying o f co n traband
It is gen erally agreed that neutral m ail st e am e rs an d
oth e r vess e ls carrying the mails by agre e ment with n e utral
governments have in c e rtain respects a peculiar position
Th e ir own e rs and captains cannot be h e ld re sponsible for
the nature of the numerous com munications th e y carry
It is equally well u n d e rstood that a n e utral may not transmit
signals or m e ssages for a b e llige r e nt nor carry enemy s
d e spatches nor tra n sport certain classes of p e rsons in the
servic e of a bellige rent B ut mail st e amers may carry
persons who pay for their passage in the usual way and
come on board as ordi n ary pass e ngers e ven though th e y
turn out to be offi cers o f one or the other of the bellige rents
A lthough th e tendency of mod e rn t i m e s to ex e mpt mail
ships from visit and search and from capture and con
d e m n at i o n is not an assured restriction upon belligerent
interests it is a right which n e utrals are e ntitl e d to d e mand
withi n c e rtain w e ll d e fi n e d li m its It was und e rstood w hen
this i m mu n ity was gra n ted by the United States in 1 862
“
that si m ulated mails v e ri fi e d by forge d certi fi cates and
“
counterf e it s e als were not to b e protect e d
D uri n g the controversy b e twe e n the E nglish and Ger
man Governmen ts with reference to the s e izure of the thre e
Ge rman ships Professo r T E Hollan d th e e ditor of th e
B ritish A dmiralty M anual o f Pri z e Law o f 1 888 d e clared :
“
The carriage by a neutral ship of troops or o f even a
f e w military o ffi ce rs as also of enemy despatches is an
enemy service of so im portant a kind as to i n volve the co n
fi s cati o n of the vessel concerned a penalty which under
ordinary cir cumstances is not imposed upon the carriage
o f contraban d prop e rty so called
Under this head i f
would seem the alleged o ff ense o f the ship B u n d esra th may
“
W
h
a
t
o
I t r at i o al L w D a a s E d p 65 9
o
t
“
I t r ati o al L w S it ua t i o s N a v al War Coll g
900 p 9 8
A lso A rgu m t s of L ord S tow ll i th cas of th O m b
th e
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en
6 R o b 430 ;
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an
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d th e A tlan ta 6 R o b 440
,
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1
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e
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,
ro z e
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o,
259
]
Co n traba n d
o
f War
an d
N
e u tral
P o r ts
10 7
.
properly be classed and charge s of a similar character were
m ade agai n st the ships G e n e r al and H e rz o g
It was sus
p e cte d that persons on board variously d e scribed as of a
military app e arance were on their way to the Transvaal to
e n list
The suspicion ho w e ver could not be proved and
the result was that the ships were r e leas e d without guilt
upon the charge of unn e utral service or upon that o f carry
ing contraband goods in the usual s e nse of th e te rm con
,
.
,
.
t rab an d
,
,
.
In connect ion with the attitude of Great B ritain in regard
to the doct r i n e o f continuous voyages as appli e d to bo th
goo ds an d persons bou n d for D e lago a B ay it is int e r e sting
to note the vie w expre ssed by a l e ading E n glish authority
upon i n t e rnatio n al law with re fere n c e to the seizure o f
the ship Ga eli c by th e J apanese Government during the
The Ga e li c a B ritish mail steam e r
Chi n o —J apanese W a r
was bound from th e neutral port of San F rancisco for the
B ritish port of Ho n gkong
In formation had reached
J apan that there were on board persons see k i n g s e rvice
with the Chi n ese Govern m e n t and carrying a certain kind
o f m aterial intended to destroy J apanese ships
J apa n arrested th e ship at Yokohama an d had her
sea r ched The suspected i n dividuals it was discovered had
escaped and tak e n the F r e nch mail ship S i d n ey from Yoko
hama to Shanghai N evertheless th e s e arch was continued
by the J apan es e authorities in the hope of fi nding contra
band T h e B ritish Go vernment protested and this protest
is e sp e cially si gn i fi cant in view o f the E nglish contention in
the cases o f the German mail steam e rs The protest against
the further detention and search of the Gae lic was made on
th e gr ound that th e ship did not have a hostile destina
tion S aga sak i a port in J apanese territory being the only
port o f call betw e e n Yokohama an d Hongkong It was
shown by the J apanese that ships of the company to which
the G ae li c belonge d often called at A moy China a bellig
but suffi cient proof was not advanced to show
e re n t port
,
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N
1 08
War
R i gh ts i n th e A n glo B o er
-
[
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2 60
that there was any intention to touch there on the voyage
‘
in question
The B ritish asserti on that the neutral de stination o f th e
ship pr e cluded the possibility o f a s e arch being made and
that it was imm aterial wh e ther anything o n board had a
hostile d e stination ulte rior to that of the ship app e ars rather
surprisi n g when it is seen to b e almost the opposite of th e
po sition taken in the seizures o f ships bound for D e lago a
B ay in Portuguese te r ritory J apan on the other hand main
ta i n e d that th e proc e e dings were e ntirely corr e ct o n th e
ground : ( I ) o f the probability that the G ae li c might call at
A moy ; ( 2 ) that the doctri n e of continuous voyages was
applicable in con n ection with con traband persons or goods
i f they wer e d e sti n ed for the Chin e se Government ev e n by
way o f Hongkong This it will be r emembere d was p racti
cally the vi e w tak e n by Great B ritain in th e German seizures
though strenuously oppos e d in this incident
Professor W estlak e commenting upon th e case of th e
G a e li c states the E nglish view o f th e doctrine o f continuous
voyages as aff e cting : ( I ) goods which are contraban d of
war and ( 2 ) person s who are con traband o f war or an a
lo gu e s of con traband
Goods he says may be consigned
to purchasers in a neutral port or to age n ts who are to o ff er
them for sale there and in either case what further becomes
o f them will d e pend on the consign e e purchasers or on th e
purchas e rs from the agents He con tends that such goods
before arriv i ng at th e neutral port hav e o n ly a n e utral d e s
ti n ati o n on arriving there th e y are import e d into the stock
o f the country and i f th e y ultimately fi n d th e ir way to a
belligeren t army or navy it will be in conseque n ce of a new
d e stinatio n given them and this notwithstan di n g that the
neutral port m ay be a w e ll k n own market for th e b e lli ge r
ent in qu e stion to se ek supplies in and that the goods may
notoriously have been attracted to it by the exist e n ce o f
such a market
7
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T a k ahash i I L w d u ri g h Ch i
No
Co i uous V oyag s
W st lak also L Q R Vol 5 p
"
nt
,
x x vn
J
.
“
te
.
e
L
.
e
Q
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,
Vol
n
t
.
.
e
ev
.
15
,
o J apan e s e W ar p p xv i i
an d Co n t rab a n d of War b y
e
nt n
on
;
R ev
a
.
p
.
.
25
,
.
.
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,
n
.
-
,
24
.
.
e u tral
N
1 10
War
R i gh ts i n th e A n glo B o e r
-
[
.
262
that th e o ff e nse o f carrying con traban d o f war in vi e w
of th e doctrin e o f con ti n uous voyage s is com mitt e d by a
ship which is knowingly engage d in any part o f the car
ri age o f t h e goods to their belliger e n t d e sti n ation
It is sho w n that ev e n i f th e doctrin e of conti n uous voyage s
is deni e d as having any validity it may still be h e ld that the
goods and the knowi n gly guilty ship are liable be fore re ach
ing th e n e utral port i f that port is o n ly to be a port o f call
the ultimat e destination of the ship as w e ll as of the goods
B ut i f the doctrine of co n tinuous
being a bellige re n t o n e
“
voyage s is d e ni e d it may also be questioned that a further
int e nded carriag e by tran sshipment or by land can b e u n ited
with the voyage to th e n e utral port so as to form o n e carriage
to a bellige rent d e stination and mak e the goods and the
kn owingly guilty ship liabl e during the fi rst part o f the
voyage
In other words a belligere nt desti n ation both of
the go o ds and of the ship carryi n g th e m would be require d
In regard to th e doctrin e of conti n uous voyage s as applied
to persons Prof e ssor W e stlake says in sp e aking of th e
“
G a e li c
W hen a p e rson whose character would stamp him
as contraband or an analogu e o f con traband is a passenger
an d having no
o n bo ard a ship bou n d for a n eutral port
ult e rior desti n ation but i n t en ds on arriving there to proc e ed
to a bellige rent port there is n o closer con nection betwe e n
the two parts of his j ourney than that h e should hold a
through ticket to th e belligerent port
It is pointed out
th at the distinction be tw e en a p e rson wh e n considere d as
“
contraband and goods or despatches is that th e person
”
can n ot be forwarded like a thi n g
Thus in the ca se o f a
person holdi n g a through ticket the ticket is merely a facilit y
but it must dep e n d upo n the person whether he will use it
a n d co n sequently where the passenger is booked only to a
“
neutral port he cann ot co ns tru cti v e ly be consid e re d as
b o u nd f o r a b e lli ge r e n t d es ti na ti o n u n til he is a ctu ally bo un d
“
”
”5 1
.
,
,
” 5 2
.
,
”
63
.
,
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,
,
,
,
,
,
,
,
”
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.
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63
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I bi d
.
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,
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,
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p
p
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.
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.
.
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26
15
p
26
.
.
26
29
.
.
.
I
t al i cs our
o wn
.
]
26 3
Co n tr ab an d
o
f War
an d
N
e u tral
P or ts
111
.
Upon Professor W e stlak e s reason i ng the whole co n te n
tion of th e E nglish Govern ment in arresting pass e ngers upon
G e rm an mail steamers bou n d for D e lago a B ay falls to the
“
ground for h e co n ti n ues : There must for such a destina
tion b e a determi n ation of his o w n which during the firs t
p art o f h i s j o urn ey inevitably remai n s co n ti n gen t and which
is there fore analogous to the new determination which may
be given in the neutral po rt as to the employment of goods
which hav e found a market th e re
Consequ e ntly he says :
T h e doctri n e of continuous voyages cannot be applied to
the carriage of persons
A n e utral destinatio n of the
ship is conclusiv e i n th e case of passe n gers tak e n on board
”
i n the regular course
A ccordingly Profe ssor W e stlake
reaches the conclusion that the search of the G a e li c was
unj usti fi abl e under the right o f belligerents against neutrals
"
on the high seas
The application which Great B ritain attempted to make
o f the doctrine of conti n uous voyages proved unsuccessful
both with re fe re nce to contraba nd for neutral ports and the
carrying o f an alogu es o f contraban d by German mail steam
e r s bound for D e lago a B ay In the end th e B ritish Govern
ment paid to th e Ge rman E ast A frica n Line owning the
sterling together
B u n d esr ath H e rz o g and G e n eral
with an additional sum o f
as compensation to the
consi gnees F or the detention o f the ship H an s Wagn e r a
German sailing boat which had been arrest e d on Fe bruary
6 1 900 th e sum o f
sterling was paid The allegation
in this case was that of carryin g contraband but the ship
was fi nally re leased without the cargo bein g exam i n e d a
fact which indicates that in this the last o f th e G e rman ves
sels to be s e ized Great B ritain re alized the futility o f at
tempting to interfere with commerce betwe e n neutral ports
The recommendations for th e adj ustm e nt of the diffi culty
in the several cas e s were made by a commission o f fi v e
members two of whom were Germ ans and the awards gave
“
L Q R p 32
H
ho ld how v r t ha t th s arch was j u s tifia b l as
x
rc i s
o f th pol c pow r o f J apa w th m h
w t rr itor i a l wat rs
’
,
”
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.
5
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,
6
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,
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,
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,
,
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,
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,
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an
e
e
e
e
.
1 12
N
e u tral
R i gh ts i n th e A n glo B o er
-
War
.
[
2 64
general satisfaction in Germany The E ast A frican Line
congratulated Count Von B ii lo w upon the energetic manner
in which he had handled the incidents Ge rman co m mercial
i nterests considered that they might count upon the eff ective
support of the Government and that th e result was a com
fi
l
j
usti
cation of the attitude which Germany had as
e
t
e
p
sumed with regard to the conflicting interests of belligerents
and neutrals
.
.
,
.
N
1 14
War
R i gh ts i n th e A n glo B o e r
e u tra l
-
[ 2 66
.
another all th e subj e cts o f th e o n e are consid e red to be at
war w ith all th e subjects of the other an d all i n t e rcourse
This principl e has
an d t r ad e with the en e my is forbidd e n
been accepted i n the United States as o n e of the con ditions
“
of warfa r e W h e aton declares : On e of the i m mediate
cons e qu e nce s of the comm e n cement of hostilities is th e i n
t e r d i cti o n o f all comm e rcial intercour se betw e e n the sub
j e cts of the States at war without the lic e nse of their re sp e c
tive Governments
In E n gland a declaration of war is equal to an A ct of
Parliam e nt prohibiti n g all intercourse with the e n emy exc e pt
by the lic e n s e of the Crow n T h e p e nalty of such illegal
i n tercou r se is the con fi scation of the cargo an d of the ship
e ngag e d in such trade
Th e instructions are e mphatic upon
The comma nder should deta in any B ritish v e ssel
th e point :
which h e m ay m eet with tradi n g with th e en e m y u n l e ss
e ith e r : ( 1 ) He is satis fi ed that the ma st e r was pursuing
such trade in ignorance that war had brok e n out or ( 2 )
The vess e l is pu r sui n g such trade under a lic e ns e from the
B ritish Gov e rnment
W hen a vessel is bound for a belligerent port it app e ars
that th e b u rden o f proof is thrown upon the ship s captain
to show that goods so shipped are not intend e d for the
enemy I n the case of th e J o n ge P i e ter ( 1 80 1 ) goods pur
chas e d i n E n gland were shipp e d for an enemy port but were
s e ized by a B ritish cruiser u n der the right of a belliger e nt
It was atte m pted to be s e t up th at th e goods b e longe d to
citi z e ns of the Unit e d States but in the abse n ce of docu
mentary proo f condemnation was decreed o n the grou n d
of hostile ownership
Th e d e cisions in these cases as w e ll as the general opinion
of the past had shown what the B ritish view was nam e ly
E l m t s o f I t r a ti o al L w D a a E d
09
t
§
3
q
‘
B r t sh A d m i ral ty M a ual of N a v al P ri
8
L w
§
3
‘
,
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.
.
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.
.
,
,
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.
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.
.
oor
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.
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.
all c k
.
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4 C R ob 7 9 ;
S am u e l
4 C R o b 28 4 N
th e F r an k li n
6 C R ob
I,
87 ; H
I n te n
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,
M
e, D i e
I n t L aw ,
1 6,
407
V ol
n
,
.
b e ar i n g upo n
; t h e N o y ad e
12 7
;
see
al s o
r at i o n al L aw
Vol VI I p 5 34 ;
.
,
.
se
a
th e
.
sub j e c t
’
.
.
.
p
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a re :
4 C R ob
C m m en t
II,
L
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ts o
V ol
Wh i t
Q
K en
.
.
th e
25 1
ar i e s
.
.
;
,
1 30 ;
Vol
.
267
]
Trad i n g wi th th e E n em y
1 15
.
that all trading with the enemy is absolutely forbidd e n to
B ut in the co n
B r itish subj ects upon th e outbreak of war
t ro v e rs y be twee n the E nglish Go vernment and that of the
United States with reference to f o odstu ff s bound for D e l
agoa B ay on board E nglish ships the a r gu m e nt se t up by
th e B ritish authorities was not generally consid e red well
founded since little more than suspicion was prod uced as
evidence to show that any of the ships r e ally intended to
t r ade with th e en e my There was no diss e nt from the e s
tab li s h e d rule that tradi n g with th e en e m y o n the part of
the subj ects of the belligerent Stat e s is prohibited B ut
those natio n s whose citizens or subj e cts su ff e r e d loss by the
en fo r cement o f the E nglish law were not satis fi ed that the
E n glish ordinance had been violat e d either in d e ed or b y
intent
Soon after war had b e gu n it was known that the E nglish
authorities would scruti n iz e closely any transactions of
B ritish ships or of ships leased by E nglish fi rm s w hich had
dealings i n a comme r cial way with the warring R e publics
On N ovember 2 4 th e Ofli c i al I m perial Gaz e tte of B e rlin
“
had published the following n ote : A cco r di n g to offi cial
in fo r mation B ritish subj ects are forbidden by E n glish law
to hav e any trade or i n tercourse with the South A frican
R epublic and the Ora n g e F r e e Sta t e o r with the subj e cts
of th e s e two sta tes withi n their t e rritories during th e con
B e cause of this pro
ti n u an ce of the present state of war
h i bi ti o n it was pointed out all goods sent by E n glish ships
and intend e d for th e South A frican R epublic or the O r a n g e
F re e State and ships o f w ar ev e n i n cases where th e goo ds
were not contraband of war might be l e gally detai n ed by
A tt e ntion was call e d to the fact
th e B ritish authorities
that this m easure might also be applied to goods destin e d
for ports in the neighbo r hood of th e seat o f war and not
belonging to Great B ritain Germa n co m m ercial circles
were warned that they should consider wh e ther und e r the
circumsta n ces it was n o t to their int e re st to avoid using
“
L
d o T i m s N 4 899 p 7 col 4
.
,
.
.
.
,
,
.
,
,
,
”5
.
,
,
,
,
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.
on
n
e
,
ov
.
2
,
1
,
.
,
.
1 16
N
B ritish
e u tra l
R i gh ts i n th e A n glo B o er
o
ships for transporting goods to South
War
[
.
A frica
268
during
the war
N otwithstandi n g this ann ounc e ment toward the clos e o f
D ecember the B ritish F ore ign Offi ce stat e d that i n form ation
had re ached the Secre tary o f State for F oreign A ffai r s w hich
showed that it was not ge nerally kn own that trad i ng with the
en e my was un law ful The E nglish vi e w of the restrictions
upon B ritish subj e cts was thus poi n t e d out : B ritish subj e cts
may not in any way aid abet or assist th e South A frican R e
public o r th e Orange F ree State in the prosecution of hos
ti li ti e s nor ca rry on any trad e with nor supply any goods
wares or merchandise to either o f those R e publics or to
any p e rson re sident therein nor supply any g o o ds wares
or merchandise to any p e rson for transmission to e i ther
R epublic or to any p e rson r e sid e n t ther e nor carry any
go ods or ware s d e sti n ed for either of th e R epublics or for
any person resid e n t
It was furth e r d e clared that
these restrictions appli e d to all foreigners whil e th e y w e re
on B ritish territory and that all persons whether B ritish
subj ects or forei gners who might comm it any of the p ro
h i b i te d acts would be liable to such penalty as the law pro
.
,
.
,
,
,
,
,
,
,
,
,
,
,
,
,
vided
.
Th e se municipal r e strictions obviously made illegal on the
part of E nglish subj e cts and o f stran gers tem po rarily resi
dent upon B ritish soil all comm ercial acts f r om o n e country
to the other all buyi n g and selli n g of m e rchandise con
tracts for transportation as w e ll as all op e rations of e x
change o r the carrying out of an y co n tract which would be
to the advantage of the e n em y A t im e hon ored E n glish
“
maxim d e clares : E s t p ro hi bi tum hab e re co m m e r ci um curn
,
,
,
,
,
-
.
i n i m i ci s
”
.
W h e n Great
B ritain
a tte m pted to en force th e s e recog
n i e d prohibitio n s against t r ading with th e e nemy it was
found di ffi cult to show that th e suspected ships had in
reality had dealings with the public enemy or with its
z
i
F
S ta t
B r i t sh an d
ore i gn
warn i n g B r i i sh ubj e c ts
D e c e m b e r 22 1 899
6
t
,
S
.
Pape rs v o l 92 p 383 N oti c e
aga in s t t ra d i g w i th th e e n e m y L o n d on
e
.
,
n
,
.
.
,
,
e u tra l
N
1 18
R i gh ts i n th e A n glo B o e r
-
War
[
.
270
ship prot e st e d against the landing of that portion of the
cargo consisting of flour and other goods which th e y con
it was all e ge d as
s i d e re d innoc e nt but spok e of th e v e ss e l
“
b e longi n g to a B ritish company call e d the A m e r ica n
The com ma n d e r of the E nglish cruis e r
A frican Line
pointed out to them that B ritish subjects could not u n d e r
the Governor s proclamatio n trad e with the e nemy an d
mention e d the warni n g in a local customs notice as the p e n
alty for vessels which carried contraband of war or goo ds
of whatever nature the real destination of which was the
enemy or their age nts i n neutral ports
The M ari a s cargo includ e d a con signment o f lubricating
oil as well as a miscellaneous consignment o f light hard
ware Part o f the c argo was sei z ed and part m e rely de
The con sign m e nt to the N e th e r lan ds South A frican
tai n e d
R ailway a thousand cas e s o f lubricating oil e ighty four
cases o f picks twenty cases o f handles was sei z ed as ene
my s property since there was su fli c i e n t eviden ce it was
thought to show that thes e goods belon ged to the railway
co m pany th e consign e es an d not to the N e w York shipp e rs
the consignors This opi n ion was held on the groun d that
th e N e therlands South A frican R ailway was owned by th e
South A frican R e public
A ll of the D e lago a B ay cargo including th e flour and
other foodstu ff s was lan d e d an d the M ari a put to s e a B ut
on N ov e mber 3 th e authoriti e s at D urban were instructed
by th e B ritish F ore ign Offi ce that foodstu ff s were n o t to
be treat e d as con traband and the captain o f the B ritish
cruis e r P h i lo m el warned the customs that the flour should
no longe r b e d e tained It was released and m e asur e s w e re
at once tak e n for r e shipping it on the B ritish st e am e r
M a ta be le when it s e e m s for th e fi rst time to have occurred
to the custom s authoriti e s that th e flour might thus fi n d its
way to Pretoria by means of an E nglish ship A cco r di n g
to the official r e port : It was th e n provisionally detained
again B ut on it b e i n g fou n d that the flou r was bo n a fid e
For R l 900 p 5 75
,
,
,
”
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’
,
”9
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’
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”
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-
,
,
,
,
’
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,
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’
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e
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27 1
]
Trad i n g wi th th e E n e m y
1 19
.
a part o f the M a ri a s cargo the agents and all parties con
cern e d were told that no further restrictions would be
place d on the shipment but it was at the same t ime point e d
out that the flour was going dire ct to the e n emy The
Governor s proclamation against trading with th e enemy
was th e n studied in con n ection with the abov e mention e d
p e rmission with the result that agents shippers and shi p
owners all re fused to ship or carry th e flour an d nobo dy
would have anything to do with it although no obj ection
was made by the naval authorities to th e cargo b e ing for
warded to its destination
For th e detention o f the M ari a her o w n ers upon the pro
test of the N etherlands Govern m ent w e re awarded £ 1 2 6
sterling as indemnity The consign m e n t of flour de
ta i n e d
at D urba n was purchas e d by th e E nglish Govern
ment at the price it would have bro ught at D e lago a B ay
on N ovember 2 the day on which it would p r esumably have
reach e d there had no i n terruption occurred
It was pointed out in th e report upon the case that the
M ari a was undoubtedly a D utch ship and that he r agents
had introduced an element o f con fusion in the dealings
with h e r by speaking of her as belo n ging to a B ritish com
pany It was therefore admitted that possibly so m e of the
goods w e re re m oved on the e rron e ous suppositio n that she
was a B ritish ship and could not law fully ca rry them
Had she be e n a D utch ship l e ased by a B ritish fi rm her
liability would appear to have b e e n as gre at as i f she had
been a v e ssel owned by B ritish subj e cts Had sh e belonged
to a B r itish company she would have b e e n a B ritish ship
and it would have b e en unla w ful for her to carry for th e
enemy
T H E M A S H ON A — On D ecember 5 1 899 the M as h o n a
cl e aring from N e w York for D e lagoa B ay was seiz e d by th e
B ritish cruis e r P ar tr id ge n e ar Port E lizab e th s e v e n hun
dred and fi fty mil e s from Lorenzo M arques and ta k en into
’
,
.
’
-
,
,
,
”
,
10
.
,
,
“
.
,
11
.
.
.
.
,
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,
,
,
.
,
,
,
“
11
For
For
.
.
R el ,
R el ,
.
.
1900,
1 900,
p
p
5 75
6 10
.
.
.
.
e u tral
N
1 20
R i gh ts i n th e A n glo B o e r
-
War
[
.
27 2
Table B ay but later to Cap e Town as prize on the charge
of t r ading with th e e nemy Co n sul General Stow e reported
the c apture and in form e d the D epartme n t at W ashi n gton
that the M as ho n a carried fi ve thousand tons o f ge neral
cargo i ncluding sevent e e n thousand bags of flour for the
Transvaal by way of D e lago a B ay Foreseeing the prob
ability that the M as ho na would be b r ought into Cape Town
as pri z e M r Stowe inquired : Is foo dstu ff such as flour
contraband " B eing a B ritish ship has the B ritish Govern
"
me n t a right to seize "
Counsel for the original A merican shippers upon the
M as h o n a stat e d that the ca rgo was of the charact e r of
general merchandise and was destined for neutral citizens
domiciled in neutral territory
It was pointed out i n the
prayer o f the owners of this portion of the cargo that whil e
the B ritish Governm e nt might be j usti fi ed in seizing h e r
own v e ss e ls it appeared that the B ritish naval authorities
were illegally j eopardizi n g the property of A merican citi
zen s in that the v e ss e l seized was under contract to deliver
to the persons named in the invoices the merchan dise therein
sp e ci fi ed n one o f which is contraband of war
On e portion o f anoth e r shipment was on account of a
D e lago a B ay fi rm the other on account of a London one
W ith r e ference to the goods consign ed to the latter fi rm the
A merican shippers w e re unable to say what their ultimate
dest ination might be but i n re gard to the shipme n t to
D e lago a B ay they we r e positive that the consignees w e re a
fi rm doing a large local business in Lorenzo M arques
To
the best of th e ir k nowledge it was a German fi rm whose
me m bers were not citizens eith e r o f the Transvaal or of
th e O range F ree State
They show e d that the goods were
sold on four mon ths time dating from N ovemb e r 3 an d
consequently that their loss would fall upon the original
shippers who were citiz ens of the United States The fact
was poin ted out that additional merchandise amounti n g to
For R l 900 p 5 29 ; S to t o C i d l D 6 1899
R l 1 900 p 5 30 ; H op k i s
d H op k i s t o H y D
2
,
-
.
,
,
.
,
,
.
12
”
.
,
”1 3
.
,
.
,
,
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.
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.
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1
,
N
122
e u tral
War
R i gh ts i n th e A n glo B o er
-
[
.
274
tice held that the cargo should be con dem n ed but not the
ship On e opinion was that neither ship nor cargo should
be cond e mn e d ; the third that both ship and cargo should
be cond e mned There were thus two j ustic e s to one for
condemning the cargo and two to one against the con
d e m n at i o n o f the ship
The cargo was c onsequently con
d e m n e d and the ship released
D ifferent views were also held by the j udges with ref e r
ence to the condemnation o f the goods aboard the M as h o n a
The Chie f J ustice h e ld that the int e ntion o f the captain
to alter th e d e stination o f th e goods was suffi ci e ntly estab
li sh e d to prevent th e ir condemnation
The other j ustices
diss e nt e d on this point They held that the goods should
be regarded in prize law as the property o f residents o f the
Tran svaal and that such ownership did not s e em possible
o f denial In their opinion there was suffi ci e nt reason for
condemning the goods since they were e n emy s property
captured on the high sea in a non neutral ship
This view obviously implied that an e nemy character was
impressed upon person s reside n t in the Transvaal n o t by
nationality but m e rely by domicile E ngland s proclamation
had in fact forbidden trade with the enemy or with those
re sid e nt upon en e my territory In oth e r words those re
sidi n g in hostile territory were regarded as e n emies wh e n
there was a question o f trading with the en e my The same
principl e was applied when there was a qu e stion of property
in goods which w e re on their way to the e n emy s t e rritory
a view which would seem reaso n abl e since even the d e fac to
Gove rnment o f a hostile r e gion could possess itsel f of goods
which had been allowed to enter its te r ritory
W ith r e gard to the question of condemning the ship the
Chi e f J ustic e held that th e re was not suffi cient evidence to
warrant co n fi scation H e cit e d the c ase of the H o o k
which was cond e mned in 1 801 but held that the case of
the M as h o n a was not on all fours with the conditions o f
D c i s i o a t Cap T ow
M arch 3 900 r port d i Cap T im s
M arch 4
900
C R b p 200 ; M oor
D i g s t of I t L aw V o l VI I p 5 34
.
.
.
16
.
4
.
.
.
,
.
’
-
.
’
.
.
,
.
’
,
.
17
.
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e,
e
n
.
,
.
,
.
.
27
5]
Trad i n g wi th th e E n e m y
123
.
that decision He too k the view that the case o f the
M as h o n a was more n e arly analogous to the cases o f the
M i n n a and the M e r curi us
and consequently declared for
the restoration of the ship
O n e j ustice concurred on the main point at issue namely
that there appeared to be su fficient proof in the present
ca se o f an hon e st intention to pass a bond at A lgoa B ay
not to take the goods to D e lago a B ay except with th e per
mission o f the proper authoriti e s
The presumption
o f an int e n tion o f trading with the enemy arising from the
fact that the s hip was carrying e n emy s goods consign ed
to D e lago a B ay and destined for the enemy s country is
entirely rebutted by the conduct of all the parti e s interested
in the ship The claim for the restitution o f the ship must
consequently be allowed
On e j ustice disse n ted from this Opinion and argu e d
that as soon as war bro k e out it became the duty of the
master to decline to convey any goods which from the
papers in his possession appeared to be the property o f
e n e my co n signees
It was cont e nded by this justice that
his contract of aff reightment could not be ful fi lled in any
ev e nt and he should have been aware of this fact F urther
it was urged that there was not convincing e vidence to
“
e stablish that there was no intention on the part o f the
master of the ship to trade with the enemy except with the
permission o f the proper authorities I n the circumstances
such a de fense must be e stablished by very clear proo f
although there is no reason w h atever to impute any disloyal
int e ntion or m ala fid es
the proof of non liability on
“
E gl i sh Pr i z
Th
Mi
Cas s
; R osco
( E d war d s 5 5
p 7 ot ) was r s tor d b y S i W i ll i a m S co tt i 807
ti g
t
t
ti
grou d tha t h v oyag was
th
Th
sh i p ha d b
cap t ur d
a v oyag fro m B or d au x d s ti d
ul ti m a t ly t B r m
b t w i th or d rs t o t ouch a t a B ri t i sh port
d t o r su m h
v oyag i f p rm itt d T h M
i
( E d war d s
p 5 ) was r s tor d by th
5 3 ; R osco E gl i sh Pr i z Cas s
sa m j u d g i 808
grou d o f
th
h
t i t
ti
t
proc
ur
a
l
i
c
s
b for t ra d i g w i th th
my
“
D cisio
a t Cap T ow M arch 1 3 1900 Ch i f J us ti c M
J us ti c B ucha a co curri g
.
18
,
.
,
,
1
.
,
’
’
,
.
” 19
.
,
,
,
”
.
,
.
,
,
,
.
-
,
,
n na
e
1
.
e
n
,
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on
e
o
n
n
no
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en ,
e
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r
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e
een
e,
.
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er
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on
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e
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e
“
o n es
e en e
,
e
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e
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o
e,
r
.
,
e
.
N
1 24
R i gh ts i n th e A n glo B o e r
e u tral
-
War
[
.
27 6
this ground has not been made out
On th e contrary it
was insisted in this dissent from the leading opinio n
th e re se e ms to be an abs e nce of proo f that it was not the
int e n tion
to d e liver these goods to the consignees
u n l e ss prevented from doi n g so by some comp e t e nt author
ity and this cannot be r e garded as equival e nt to proo f that
[ the mast e r ] i n tend e d to apply for and obtain a lice n se
be fore engaging in intercourse which in the abs e nc e of the
lic e nse was of an unlawful character F rom the moment
this ship left N e w Yor k harbour
she was liabl e s tri cto
l
r
e
s
h
e
to
sei
z
ure
and
condemnation
as
was
sti
l
u
;
j
without a license when seized s tri cto j ure the liability
remains
The fat e however of the ship itsel f was of interest to
third parties only in so far as its disposition involved the
rights o f neutrals whose good s were on board Great
B ritain s action in s e izing her own ships or ships charter e d
by her own subj ects had the e ffe ct o f placing a virtual
blockade upon a n e utral port for few but E nglish ships
carried for the Transvaal or Oran g e F r e e State a fact
which bore with especial hardship upon Am erican shipp e r s
The d e tention of all D e lago a B ay carg o es in B ritish bot
toms provided a f e w articl e s were found consign ed to the
Transvaal was a practice which was indignantly prot e st e d
against by all n e utral shippers upon E nglish vessels The
in j ustice which this practic e worked was forcefully brought
home to the Unit e d States by an apparent disr e gard of the
property rights of i n n ocent n e utrals in the seizure of two
other ships at about the same time as that of the M as h o na
T H E B EA T R I CE
This ship also clearing from N e w Yor k
was r e ported in D ecem ber 1 899 to have been compelled by
the E nglish naval authorities to discharge all o f her D e lago a
B ay cargo into lighters at E ast London some six hundred
miles distant from Lorenzo M arqu e s It was poi n ted out
by the N e w York shippers in their prot e st addr e ssed to Sec
r e ta ry Hay at W ashington that
according to the t e rms of
”
.
,
,
,
,
.
,
,
” 20
.
,
,
.
’
,
,
,
,
.
,
,
.
.
—
,
,
,
,
,
.
,
20
D eci s
io
n,
M
arch
1 3,
1 900 ;
M
r
.
J usti c e L awr c
en
e
d i ss
en
ti g
n
.
1 26
e u tra l
N
War
R i gh ts i n th e A n glo B o e r
-
[
.
27 8
authoriti e s for th e ir action i n regard to th e B e atric e was
“
that sh e contai n ed large quan tities of goods pri n cipally
flour d e stin e d for th e South A frica n R epublic w hich the
customs authoriti e s at E a st London required should be
lan ded at that port
Si n ce the ca r go was stow e d i n such
a manner as to m ake it impossible to lan d goods d e sti n ed
fo r the R epublic without also dischargi n g goods intend e d
fo r Po r tugu e se E ast A frica it w as all e ged that th e m aster
and ag e n ts of the ship pr e ferr e d to lan d the whole o f the
cargo at E ast London wh e re it was stowed by the customs
B u t it was admitt ed that th e r e m oval of la r ge quantities
o f the good s so land e d had be e n p e rm itt e d from time to time
“
fo r th e purpos e s o f local and bo n a fid e Portugu e s e con
su m ption
T h e co n sign me n t to the N e therlands South
A frica n R ailway was held to b e e n e my s prop e rty since it
was con sidere d that th e railway was ow n e d by the R e public
T h e sp e ci fi c r e ason assign e d fo r the a r r e st of th e st e amer
“
was that the B e atri ce b e ing a B r itish ship was by carry
i n g goods d e stin e d for th e e n emy s territory illegally e n
gag e d i n trad e with th e en e m y i n con t r av e n tion of H e r
T h e ves
M aj e sty s procla m atio n of D e c e mber 2 7
1 900
s e l sailed for Calcutta in ballast o n D e c e mb e r 1 1
T H E S A BI N E
On F ebruary 2 2 th e last of the ships clear
ing from N e w Y ork for South A frican po r ts w as r e ported
to hav e b e e n s e i z e d at Port E li z ab e th s e ve n hu n d re d and
fi fty mil e s f r o m Lore n zo M arques
T h e S a bi n e w as also a
B ritish ship with M oss e l B a y A lgoa B ay an d D urban
a m on g her ports of call an d carri e d ship m e n ts aggre gati n g
thirty to forty thousand dollars in value m ad e by N e w Y ork
merchants to th e se ports all of w hich are i n B ritish t e r rito r y
B u t in addition to th e allegatio n which had b e e n brought
against the M aria M as h o n a an d B e atr i ce o f trading with
the en e m y it was sus p e ct e d that the S ab i ne w as carryi n g
actual co n traband o f war T h e latt e r suspicion ho w e ve r
‘
F or R l 900 p 5 7 4 ; S al i sb ury p B rti t Choa t J
6
T h s procla m at o was t r troac ti v i th s s that i t
900
s tab l sh d a w proh ib it o b t was m r ly x pla a tory of
acc p t d r s tr i c ti o upo t ra d w i th th
m y b y B r i ti sh su b j c ts
S upra p 6
,
,
,
”
.
,
.
,
”
.
’
.
,
’
,
’
,
.
,
—
.
,
-
.
,
,
,
,
.
,
,
,
,
.
2
e
.
1
i
e
1
,
,
i
.
e
.
e
,
n
ne
e
.
er
.
i
e
11
.
no
i
n
,
n
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e
en e
o
n
e
,
an
e,
e
en
.
2
,
e
n
an
e
.
279
]
Trad i n g w i th th e E ne m y
1 27
.
was not p r essed although th e authorities who stopped and
e xamin e d the ship upo n the sp e ci fi c charg e of violating a
municipal law asserted that the S ab i n e s papers wer e not
in prop e r form and that goo ds w ere found on board which
though shipped to ports this sid e w e r e ma r ked to p e rsons
T h e ca s e was vi e w e d by the
r e sidi n g in B oer territory
“
as a v e ry suspicious one u n d e r m u
E nglish Govern ment
n i c i p al law but as th e evidence w as not very co m pl e te they
A fter a short
gave the v e ss e l the be n e fi t of th e doubt
detention both ship an d cargo w e r e re l e as e d
The ne w s of the r e ported seizures aroused consid e rable
popular feeling in the United Stat e s I n th e Senate a reso
lu ti o n wa s introduc e d which as fi nally a m e n d e d read :
W h e r e as it is allege d that property of citi z e n s of the
Unite d States not con traba n d of wa r has been lately seized
by th e mi lita r y authorities of Gre at B ritain i n an d n e ar
D e lago a B ay South A frica without good r eason for the
sa m e and contrary to the accept e d principles of int e r n ational
law ; and W h e reas it is alleged that property of citize n s of
th e Un ited Stat e s is now unj ustly detain e d by th e military
autho r ities of Great B ritai n in disr e gard o f the ri ghts of
the own e rs of th e sa m e ; th e re fore R e solv e d by th e S e n ate
o f the Un ited States That th e President is hereby requested
to se n d to the Senat e i f not in his opi n ion incom patible
with the public int e rests all in formation in possession of
the Stat e D e part m e nt relating to the said all e g e d seizur e and
det e ntion and also to i n form th e Se n ate what steps have
b e en tak e n in re qu e sting th e restoration o f property taken
and d e ta ined as aforesaid
T h e fi nal clause o f th e resolution as at fi rst i n troduc e d
was stricken out aft e r a discussio n as to wh e ther the Secre
tary of State should be d i r e cte d or the P r esid e nt be r e
e
ed
u
s
t
to
furnish
h
e
d
e
sir
e
d
i
n
for
m
ation
It
was
realiz
e
d
t
q
that the langu age of th e expunged claus e and wh e th e r or
not th e D epart m e n t has i n form e d th e prop e r B ritish au
,
“
’
,
”
.
,
,
,
” 25
.
.
.
,
,
“
,
,
,
,
,
,
,
,
,
,
,
” 26
.
“
“
”
”
.
,
23
F or
.
R el ,
Co n g
.
.
,
1 900,
1
S ss
e
pp
.
,
5 94 5 9 5
Jan 1 7 , 1900,
-
.
.
.
R cord Vol
e
,
.
3 3,
Pt
.
1,
pp
.
89 5 ,
128
N
e u tral
War
R i gh ts i n th e A n glo B o e r
-
[
.
2 80
that i f said d e tention is persist e d in su ch act will
b e considered as without warrant and o ff ensive to the Gov
e rn m e n t and people o f the United States
was n e ith e r
diplomatic in its tone nor warranted by the Ci rcums tanc e s
A micable negotiations were still in progress and those n e
go ti ati o n s were conc e rn e d with a discussion of th e very
question whi ch would thus have b e en decided in th e affirm a
tive by the Senat e n amely that the seizures had b e e n con
trary to the pri nciples o f int e rnational law
Cons e qu e ntly
the re solution only declare d that it was alleged that Great
B ritain had d e parted from the strict principles of inter
na tional law and it was not inti m ated that her persist e n ce
in such acts would probably require a resort to more forcible
measure s than mere protest on the part o f th e United Stat e s
A motion had been made that the resolution be referred to
the Committee on F oreign R elations where it was hop e d by
certain members o f the S e nate that it would die a n atural
death an end which would have been deserved und e r the
circu m stanc e s since the eve nt to which the re solution re
ferred was then in th e course of diplomatic consid e ration
and nothing had indicated that the State D epartment would
not be able to s e cure prot e ction for the interests of all
citizens o f the Un ited Stat e s as n e utrals during a r e cogni z ed
belligerent contest A n uns e ttl e d question of intern ation al
law was at issu e betwe e n Great B ritain an d the U n ited
Stat e s and was bei n g d e alt with as fast as offi cial in fo r m a
tion reached the B ritish F oreign Offi ce from the scen e o f
the occurrences which w e re alleged to have been in co n tra
F lour or any other food
v e n ti o n of established principles
stu ff might or might not be contraband o f war according
to the particular circumstances o f the case A s a g e n e ral
rule products like flour shipped from a neutral State are not
contraband but it is always a question o f fact whether th e
immediate destination o f such flour is for hostile purposes
namely the sustenance o f a be lligerent army I f flour or
foodstu ff s generally were so destined they became contra
band o f war for th e particular case
th o ri ti e s
,
,
”
,
.
,
’
,
,
.
,
.
,
,
,
.
,
‘
.
.
,
,
.
,
.
N
1 3o
e u tral
War
R i gh ts i n th e A n glo B o e r
-
[
.
2 82
a rule it is un w ise for the Senat e to interfere while
negotiations are p e n di n g between the E x e cutive D e part
ment and forei gn Governm e nts ov e r any question which is
at issue Should a r e solution r e q u es ti n g i n form ation
upon any subj e ct be d e em e d necessary it should obviously
be addressed to the Pre sident and m e re ly for the sake of
court e sy with th e usual cav e at It should not be direct e d
to the Secretary o f Stat e for that offi cial stands in a di ff e r
ent relation to the legislativ e d e partment from that of th e
secre taries o f any of the other d e partmen ts The S e cretary
o f State is not re quire d by law to report to Congr ess as are
all the other Cabin e t o ffi cers He has b e en exempt e d from
that requirement for the reason that his duties are mainly
diplomatic N e gotiation s carried on with fore ign Go vern
m e nts upon m atters o f a d e licat e character might invo lv e
serious e mbarrassm e nts i f during their pend e ncy th e suc
T h e power of
ce s s i ve st e ps were r e po r t e d to Co n gress
the Preside n t in consultation with the Secre tary of Stat e to
deal with foreign Gov e rnments at least up to the last moment
and fi nal co n sent of the Senat e has made it possibl e for the
Un ited Stat e s to pre s e rv e a fai r ly uni form fore ign policy
F or d e spit e the repeat e d changes of administration and of
domestic policies the general fo r e ign policy has been closely
mod e l e d upon the expedient cours e of absolute n e utrali tv
laid down by W ashin gton W e re it a practical requi r e m e nt
o f the Constitution that all foreign corresp ondence upon
any i m portant question should be at once laid b e fore th e
S e nate it is reason able to suppos e that f e w tre ati e s or i m
portant conventions would fi n ally be rati fi e d I n a question
o f international law such as that under discussion between
th e Govern m ents of Gr e at B ritain and the Unit e d Stat e s it
would have be e n e xtrem e ly unwis e duri n g th e negotiations
for the Sen ate to interfere i n any way with the regular
course o f diplomatic intercourse between the two Govern
ments
“
i m of Co
c ticu t 5 6 Co g
S ss R cord Vol 33 P t 1
As
“
”
.
,
,
,
.
,
.
.
.
29
.
.
.
,
.
,
.
p
.
£
g
nne
,
n
.
,
1
e
.
,
e
,
.
,
.
,
2 83
]
Trad i n g w i th th e E ne m y
13 1
.
In th e end th e Hal e R esolution was agreed to but no thi n g
came o f it for the State D epartme n t found the E nglish
Govern ment not unwilling to make an e quitable settlem e n t
for th e loss e s which citize n s o f th e U n ited States had i n
curred as a result of th e s e izure s of B r itish ships carrying
A m e rican goods from N e w York to D e la go a B ay
,
,
.
TH
W hile
L E G A L ITY o r
E
TH E
S E I Z U RE S
.
fruitl e ss discussion had b e en in progress in th e
Senate Secretary Hay had been d e aling with th e qu e stion
in such a ma n n er as to sa f e gu ard all A merican i n terests but
at the sam e time with a full consideration o f the n e cessity
for prot e sting against an y u n due e xt e nsion of b e lligere n t
rights I m mediately followi n g the s e i z ure o f the B ritish
ships clea r ing from N e w Y ork with A merican goods on
board h e had r e quested a prompt e xplanation In his i n
“
You will b r ing
s tr u cti o n s to A mbassador Choat e h e said :
the matter to the att e ntion of the B ritish Governm e nt and
inquire as to the circumstances an d l e gality of th e s e izures
A n d lat e r M r Choat e was fu rther i n struct e d to asc e rtain
the grounds in law an d fact upon which the interfere n ce
with appare n tly i n n ocent comm e rce betwe e n n e utral ports
was made an d to d e mand prompt restitution of the goods
to the A m e rican owners i f the vessels w e re seized on account
o f a violation o f the laws o f Great B ritain as for trading
with the enemy ; but i f the sei z ure was on accou n t of the
flour
th e United States Govern m ent can not r e cognize
its validity u n der an y belligerent right o f captur e of pro
visio n s and other goods shipped by A m e rican citi z e n s to a
neutral port
M r Hay point e d out the fact that the
A merican ship p ers had produced evid e nce i n tend e d to show
that the goods were not contraband i n charact e r and should
this prove to be true pro m pt action was to be requested on
the part o f Great B ritain in ord e r to minimiz e as far as
possible the damage to n e utral goods
th e
,
.
.
” 3°
.
.
,
“
,
,
” 31
.
.
,
.
"
For
F or
.
.
R el ,
Rel ,
.
.
1 900,
1 900,
p 5 34 ; H ay
pp 5 39 —5 40 ;
.
.
Choa te D e c 2 1 , 1900
H ay o Choa e , Jan 2 , 1 900
to
t
,
t
.
.
.
.
I
N
32
War
R i gh ts i n th e A n glo B o er
e u tr al
-
[
.
2 84
position taken by the E n glish Gov e r nment was indi
Ou r
c ate d on J a n ua r y 1 0 i n a note handed to M r Choat e :
vi e w is that foodstu ff s with a hostile d e sti n ation can b e
con sid e re d con traban d of war only if they are suppli e s fo r
the e n e my s forces It is not suffi cient that th e y are capable
of b e i n g so used It must be shown that this was i n fact
Lord Salis
th e ir destin ation at th e time of their sei z ure
bury verbally add e d that th e B ritish Gov e rnm e n t did not
clai m that any o f the A m e rican goods were actual con tra
ban d but that the ships had b e e n s e i z e d on a charge of trad
“
ing with the en e m y and it w as i n timat e d also that an
ulti m ate d e sti n ation to the citi z ens of th e Transvaal ev e n o f
goods con sign e d to B ritish ports o n the way thith e r might
i f th e tran sportation w e re view e d as o n e co n ti n uous vo y age
be h e ld to constitute i n a B ritish vess e l such a tradi n g with
th e e n e my as to bri n g the vess e l within th e provision s of th e
H e assert e d that the o ff e nse w as cog
municipal law
“
n i z ab le by a pri z e court alon e
but admitted that i f the
own e rs o f the cargoes b e in g n eutrals clai m that they are
i n n ocent th e cargoes should not b e cond e m n ed with th e
“
He sugge st e d
ship but should be d e liv e r e d over to th e m
that th e ordinary cou r s e would b e that th e own e rs should
clai m th e cargoe s i n th e prize court where th e cas e s would
b e co n sid e red and prop e r ly dealt with on their m e rits
The o w ners would be re qu e st e d h e said to prove that th e y
w e r e th e bo n a fid e own e rs by submitti n g bills of ladi n g an d
invoic e s to the court It was i n timat e d that the A m e r ican
flour which had bee n r e mov e d from th e ships was not d e
tai n e d in an y way but was p e rf e ctly op e n to th e own e rs to
make what e v e r arra n ge ments th e y pleas e d for its i m m e diate
r e moval I f they con sid e re d them s e lves aggri e v e d by th e
The
.
’
.
.
” 32
.
,
,
,
,
,
,
” 33
.
,
,
,
,
” 3
.
,
35
.
,
,
.
.
F
or
R l
9
: F or R l 9
Choa s d spa ch
R l
F
or
9
:
p 5 49 ; S al i sb ury p e r Choate to H ay
e
1 00 p
609 ; H ay t o Wh i t e M arch 20 1 900 c iti n g
te
e
t
of A pri l 2 6 1900
e
1 00 p 5 49
S e e S tory M a n ual of N a v al Pr i e L aw
pp 46—7 1
wh e r e th e prac t c e i n such cas e s b e for e pr iz e court s i s s ta te d ; in
o th e r porti o n s of th e wor k th e cla im s m a d e by i n n oc en t or i n te r e s t e d
parti e s a re con s i d e r e d
.
.
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.
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.
1 00,
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.
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,
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,
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1 34
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[ 2 86
.
United States was r e ady to adm it that there might
hav e been cause for the seizure and det e ntion for the pur
pose o f examination b e fore a p r iz e court upon the suspicion
o f trading w ith the e n emy B u t th e d e cision of the j udges
se e m e d to indicate that such a suspicio n was not founded
upon facts which could be pro duced be fore the courts The
vessels were r e leased upon the g r ound that they had not in
fact trad e d with the e nemy nor intended to do so e xcept
with the expr e ss or i m pli e d permission of the B ritish Gov
e rn m e n t
In view of the caus e s put forward for the seiz
ure s and of th e re asons stated by the authorities for the sub
s e quen t rel e as e o f the ships it w ould se e m that the cargoe s
“
e xc e pt in so far as contraband might hav e b een involved
would have the sam e status as though foun d aboard B ritish
ships tradi n g betw e en neutral ports wh e re th e r e was no
qu e stion of a bellig e r e nt in the neighborhood o f the port
of dete ntio n
T h e p r ize court d i d d e cide that th e re was
no question o f contraband involved and the A merican rep
re se n tat ive poi n ted out the fact that the s e izures not having
b e e n made or j usti fi e d on accoun t of contraband go ods th e
only e ff ect of the B ritish decision would s e em to b e eith e r
that G r eat B ritain poss e ss e d the right to s e ize n e utral an d
n o n contraband goods aboard B ritish v e ssels trading be
tw e e n neutral ports o r els e the Am e rican owners of such
ca r goes would be entitled to full comp e nsation for their
damages
Lord Salisbury in his reply att e m pt e d to corre ct w hat h e
considered th e misapprehension which und e rlay the stat e
m e n t o f alt e rn atives n amely that n e utral and non contra
band goods were not fre e in B ritish b ottoms b e t w ee n n e u
tral ports or else full compensation must be made to the
owne r s for th e ir s e izure It was assert e d that th e B ritish
Gov e rn m ent had n e ith e r exercis e d nor claimed any such
right as that which was indicated no r had they s ei z e d n e u
tral and n o n contrab an d goods H e d e clared that the goods
were not sei z ed Their passage to Lore n zo M arques was
Th e
.
.
.
,
”3 9
.
,
,
-
,
.
-
,
,
,
.
,
-
.
.
“
F or
.
R el ,
.
1 900,
p
.
61 1
H ay to Choa
t
e,
M ay
2 4,
1 900
.
2 87
]
Trad i n g wi th the E n e my
135
.
merely interrupted and by this interru ption they were de
ta i n e d only to the extent that their being on board the ship
which had be e n arrested ma de their d e tention un avoidable
It was further alleged that had the prize c o urt held that
the arr e st of the ships was not j usti fi ed they would p r e
s u m ab ly have awarded damages against the captors of the
ships and the damages would pr es u mably have been so cal
c u la te d as to enabl e the ship to meet the claims of merchants
arising out of the unj usti fi ed interruption o f th e
T h e fact was alleged that th e court had not so held and that
it appeared that the ships should therefore bea r the co n se
By
q ue n ce s of th e arrest and meet the merchants claims
th e law of the flag under which the ships sailed they could
not carry goods destined for the enemy I f they shipped
such good s they should bear the consequences A mong
those conse q uenc e s was the d e laying o f the goods until such
time as they could be place d on a ship th at could legally
carry them on to their origi nal port of destination
The result of such a decision is app arent T h e A m erican
“
goods in the words o f M r Hay were as inaccessible to
their owners as i f they had b e en land e d on a rock in mid
ocean since no ste amers not belonging to B ritish lines
plied be tw e en the ports o f Cap e Colony and D e lago a B ay
B u t there seemed little chanc e of securing a revision of
Great B ritain s decision which was based upon th e principle
that she might deal with E nglish subj ects and with E nglish
ships in accordance with the law of the flag u n der which
those ships sailed M r Hay th e re fore o n ly endeavored
to secure every possible guarante e for A m e rican interests
involv e d but incidenta lly e m ph asized the view that although
E ngland might use her own as she saw fi t she must show
j ust ground for all injuries su ff e red by innocent A m e rican
shippers Instructions w e re s e nt to M r Hollis the United
States consul at Lorenzo M arques that he should investi
gate the s e izures and make eve ry e ff ort to prot e ct the pre p
e rt y of A merican citi zens and later h e was urged to asce r
‘
F or R l 1900 p 6 8 ; S al i sb u ry t o Choa t J uly 20 1900
,
.
,
,
’
.
.
.
.
.
,
.
,
”
,
.
’
,
.
.
,
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.
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.
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1 36
e u tra l
N
War
R i gh ts i n th e A n glo —B o er
[
.
2 88
tain th e facts con ce rn i n g the det e ntion of A merican flour on
board th e ships arr e st e d by Gre at B ritain
It s o on dev e loped that fr e ight had been pr e paid and that
th e drafts d r aw n against th e va r ious ship m ents fro m N e w
Y o r k would b e p r otested for non pay m e n t by the parti e s
on whom th e y had be e n drawn at D e lago a B ay
Co n s e
qu e n tly the title to the p r op e rty i n such cas e s was veste d in
th e A me r ica n shippers and th e y urg e d their Gov e r n ment
to s e e that th e ir int e r e sts w er e prot e ct e d agai n st what they
con sid e red an u n du e e xt e nsion of b e llig e re nt rights agai n st
ordinary n eutral trade from o n e n e utral po rt to an oth e r
M r Hay point e d out the obvious i n j ustice of th e goods
b e ing in th e p r i z e courts with th e v e ssel e ven gran ting
that the ship as a common carri e r of i n t e rnation al com m e rce
had violat e d the law o f its flag on th e re mote possibility
of havi n g carried for th e e nem y He insist e d that al
though the shipp e rs might be r e quir e d to furnish i n voic e s
and bills o f ladin g they should not be s e n t to th e pri z e
court for th e ir prop e rty Lord Salisbury howeve r co n
te n ded that the pri z e court had compl e te con t r ol o f the
situation and that any n e utral shippers who were i n n o
c e nt could s e cure th e re l e ase o f th e ir goods o n ly by apply
ing to th e court with th e prop e r evid e n c e o f o w n e rship
The inj ustice of the vigo r ous en force m ent of this rule of
prize law was obvious an d the d e m and w as made that th e
goods should b e rel e as e d by o r d e r o f th e p r oper B ritish
‘
law offic e r and not b e left t o th e me r cy o f the pri z e cou r t
It was u r ged that since th e ships had been s e i z ed b e cause
o f a violation of the m u n icipal law of Gr e at B ritain for
tradi n g with th e en e m y and sin ce th e s e izu r e an d deten tion
of th e flour and other goods was only incidental to the
seizure of the ships th e flour to which no such o ff e n se
could be imputed could not under the circumstances be
admitt e d to b e subj e ct to capture b e cause not contraban d
“
F or R l 1900 p 5 38 ; H y t H oll i s D 28 899
R l
F
or
00 p 5 4 0 ; T oo m y t
H y J
00
9
9
3
: For R l 900 p 5 43 ; Choa t t H
y J
900
5
41
.
-
42
.
,
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.
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e u tral
N
1 38
R i gh ts i n th e A n glo B o e r
-
War
2 90
in alle g
ing these facts pointed out that he me n tion ed only what
was well known in shipping circl e s and did so mere ly to
e stablish the fact that there had b e en no wrong intent with
referen ce to his shipme n ts He urged that the qu e stion o f
the j ustic e o f ind e mn i fi cation should be settled l e aving
th e respective rights of consignors or consignees to the
‘
p r oc e eds to be sett led a f te rw ard f
M r Choate in carrying out instructions received from
W ashi n gton insisted that where the ship was seized and
tak e n into port on the charge of tradi n g with the enemy
an d wher e th e flour was not held as con traband an d was not
clai m ed to be cont r aband and und e r the circumstances coul d
not b e involve d in the sp e ci fi c charge against the ship it
was man ifestly a great hardship for the ow n ers o f the flour
to b e compell e d to go into th e pri z e court at a port short
o f the ori ginal desti n ation even for the purpose o f proving
their ownership which he insisted would involve costs and
damage s for the detentio n and possible d e terioration in
‘
valu e
It was intimated that asid e from th e p e cuniary
features o f the situation it was o f primary importance to
i n sist upon th e principles i n volved with a view to pre
v e nting an extension o f belligerent rights to the detrime nt
o f all neutral commerce in ti m e o f war E mphasis was
there fore placed upon the point that evid e nce must be shown
that th e goods w e re r e ally for th e supply of the e n emy s
forc e s and that this was in fact th e ir destination at the time
of their seizure The fact was poi n ted out that otherwise
th e action o f the B ritish authorities se e m e d to i m ply the
right to exercise an em bargo on the sale and delivery o f
non contraband goods i n the ordi n ary course o f trade with
th e peopl e o f the R epublics
It was i n timated that this was
inconsistent with the vie w o f cont r aband e xpressed by the
E nglish Government and wholly inad m issible fro m the
‘
poi n t of view of the Unit e d Stat e s
‘
F
or
R l
900
900 p 5 89 ; T oo m y t o H y F b
“
F
or
R l
900
900 p 5 66 ; Choa t t o S al i s b u ry J
3
“
F or R l 900 p 5 78 ; Choa t t S al i sb ury J
9
900
A
J Toomey Pr e sident o f the Pennsylva n ia
[
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.
.
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1
.
2
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29 1
]
Trad i n g w i th th e E n em y
1 39
.
The argum e nt was presented that the B ritish Government
had seized flour shipp e d to buyers at D e lago a B ay and had
prevented it from reaching that point in time to meet a
good market Consequently in view o f the fact that it
was not sold for any pu rposes hostile to G r eat B ritain it
was urged that the latter should not be allowed to con
sider hers e l f relieved o f any re spon sibility for indemnity or
direct loss assu m e d by th e shippers or for any indirect loss
for which the shipp e rs might have to compensate the buyers
on account o f the diversion and d e tention It was the
opinion o f the United Sta tes that the mere release of the
flour to quali fi ed owners did not meet the obligation in the
case because the owners could not possibly take the delivery
o f the flour owi n g to th e obstacl e s of war at the points
where the goods lay E ven i f they could do so they would
natu r ally su ff er considerable loss by the condition o f the
market and by an y diminution in value that might have
occurred to the flour through climatic dete r ioration
The A merican S tat e D epartment there fore suggested as
th e only equitable plan appare n t under t h e circumstances
that Gre at B ritain buy the flour and other in n oc e nt goods
at their invoice price and pay over the proceeds o f th e pur
chases to those perso n s who could prove a j ust claim for
its value A n additional sum was also asked as reason
abl e compensation for loss of market and other losses that
‘
might have been su ff e r ed by A merican intere sts
In other
words the E nglish Governme n t should use the flour pay the
costs and indemni fy the owners reasonably since the latter
were entirely innoc e nt and had d e pended upon the usua l
rights and i m munities o f neutral shippers i n time of war
T h e fact was point e d out that the situation was causing an
uncertainty and h e sitancy in busi n ess circl e s which was
detrimental to all A m e rican i n t e re sts A lthough a number
o f the consignments w e re b e in gdelivered at D e lago a B ay
presu m ably by E n glish ships it was all e ged that the
seizures and the un foreseen attitude o f Great B rita in had
For R l 1900 p 5 8 ; T oo m y t H y J
900
3
.
,
,
,
.
.
.
,
,
.
51
.
,
,
,
.
.
,
,
.
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.
,
,
.
2
e
o
a
,
an
.
2
,
1
.
e u tral
N
l 4o
War
R i gh ts i n th e A n glo B o e r
-
[
.
29 2
comp e ll e d all lat e r shipm e nts to go by way of Hamburg
or B o r d e a u x wh e n seeki n g the ports of South A frica in th e
way of ordi nary n eutral commerc e i n ord e r to avoid usi n g
B ritish bottoms as a me ans o f tra n sporta tio n
M any o f th e
drafts had b e en r e turn e d u n paid an d othe r s w e re expected
in d ue cours e and whether paid or not th e y w ould fi nally
h av e to be li ft e d by th e shipp e r s f r om th e U n ited States
‘
si n ce they w e re the fi nal recourse
A ll delay t e n ded to
reduce th e value o f the goods which were p e rishabl e on
account of the climate and b e cause of Cape Colony duties
an d loss o f market
The o ff er was made by several o f th e A merican shippers
to s e ll to Great B r itain for th e valu e o f the goods at the
port of origi n al destinatio n at th e time th e y would have
arrive d there had the voyage not been int e rru pted A n d
the A merican re prese n tativ e urged that it w ould be a d vi s
able for all A m e rican shipp e rs who we r e i n t e re sted to agre e
to s e ll upon the same t e rms with a vie w to s e curi n g an
arrang e men t which would i n clude all neutral A m e r ican
property H e sugge sted that where the title to property
was doubtful both shipper and buyer might unite in the
sal e sinc e this course was pre ferabl e to incurring ques
tions as between consignors and consign e e s i n the pri z e
m
courts
The E nglish Gove rnm e nt had naturally b e en un w illing
to buy at current prices for the re ason that price s w ere
doubled at D e lago a B ay aft e r th e s e izure s but it was c o n si d
ered that th e price th e re on th e day o f th e s e i z u r es was not
unreasonable Great B ritain was willing to buy but em
p h as i e d th e point that the alleg e d o w n ers must prove th e ir
title to own e rship beyond a doubt as an ess e ntial con dition
of the arrangem e nt si n ce the Governme n t could not incur
the risk of paying o n e man only to hav e another app e ar
lat e r and prove that h e was th e r e al own e r Fe ars were
e xpr e ssed
that the question o f o w nership would cause
troubl e although the re gular shippi n g documents by which
‘
R l
F
or
I O
00
900 p 5 0 : H y t o Choa t
J
9
"
.
,
,
52
.
,
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; C
to
H ay ,
an
.
Jan
,
.
1
1 2,
.
1 900
.
N
14 2
e u tral
R i gh ts i n th e A n glo B o e r
-
War
[
.
2 94
be l e gally imputable to th e act of the B ritish Gov e rnment
The qu e stion might also hav e a r isen
i n maki n g the s e izure
where an agent had bought for the Tra n svaal Governm e nt
o n cr e dit so that the title passed when the goods w e nt on
board and th e goods w e re discov e r ed to have been con t r a
band wh e ther an A m e rican shipper might not appea r to
have be e n privy to the re al cha r acte r of th e purchas e s In
such a case the Unit e d States Govern m ent could hardly have
champio n ed th e cause of a party who had shipped co n t r a
band A prize court is fi lled with pit falls o f th e ki n d but
the diplomacy o f Secretary H ay back e d by the prestige o f
th e Unit e d States and a r e ciproc al f e eling of f r i e n dship
betw e e n the two nations was abl e to avoid all such qu e stions
by inducing Gr e at B ritain to agree upon a s e ttlement with
out com pelli n g th e claiman ts to go into the priz e court
Although it was pretty w e ll ascertain e d that no actual con
t raban d i n the usual s e ns e of the t e rm had been ca r ri e d
from A m erica by the ships which w e re seiz e d di ffi cult
qu e stions were thus avoid e d as betw e e n liens an d ge n eral
ownerships which might have arisen had A m e rican shipp e rs
bee n compell e d to go i n to court
It is not a universal rule wh e re the shipper has not bee n
paid for his goods that the prop e rty is still in him so as to
constitute him th e own e r in a p r i z e court or for the pu r
pos e s o f sal e B y the t e rms o f sale an d shipment he may
not hav e r e tained a lien o n the goo ds B u t in an y case as
a rul e the title of th e absolut e owner pr e vails in a prize
court over the interests of a li e n hold e r whatever th e e qui
ties betw e en consignor and con signee may b e
Co n se
quently the policy adopted by Secretary Hay in dema nding
that Gre at B ritain should settle with all A merican shippers
on an equitable basis without forcing them to take their
chances in a priz e court was the wisest course that could
have be e n pursu e d
In the fi nal arrangement G r e at B ritain admitt ed that the
A merican goods had not been liable to seizure e xcept as a
“
T h Wi
i f d B latch
Pr i Cas s
c it d H al l ck I t r
at o al L w E gl E d
39
.
,
,
.
.
,
,
,
.
,
.
,
,
.
.
,
5 6
.
.
e
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i
n
nn
a
,
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n
.
,
.
.
ze
e
2
.
,
2,
e
2
e
,
n e
29 5
]
Tr ad i n g w i th th e E n e my
14 3
.
result of the libel attaching to the ships B ut an y cla ims
for damages due to the owners of th e cargoes on account
of th e failure o f the vessels to deliver at th e port m e ntioned
i n the freight contract it w as asserted should be made
against those who e n tered into or became responsibl e for
the execution of the contract for the delivery which they
failed to perform an d the as sumption that such da m ages
could be sustained at law would d e pend on the terms of the
contract of carriage T h e E nglish Government however
did not adm it that it was in any way liable for damages to
the owners o f the flour an d other goods si n ce their d e te n
tion was due entirely to the ci r cumstance that th e ships
were not able to compl e te their voyages an d the fact that
they could not compl e te their voyages was due to the cir
cu m stan ce that such voyages were illegal by the la w of the
"
flag under which they were sailing
A lthough the fi nancial settlement which Great B ritain was
willing to make was accept e d by th e United States th is
acceptance did not imply an acqui e sc e nce in the view ex
pressed by the E nglish Government with re fere n ce to the
conditions under which flour and other foodstu ff s might
become contraband of war nor in the doctrine of contin
uo u s voyages as applied by Great B ritain to trading with
the enemy It was preferred at W ashi n gton to follow the
usual rule and avoid passing upon hypothetical cases until
occasion had called them into actual existence The prob
lem which had been before the D epartment of State was
not to force Great B ritain to declare h e rsel f fi nally upon
broad questions o f intern ational law nor to express the
fi nal attitude of the United States upon q uestions which
were not immediately at issue but to meet the demands of
A meri can shippers and secure their immediat e interests by
some equitable agreement with Great B rita in The arrange
ment agreed upon there fore met only the necessity of the
case immediately in view Th e Un ited States Consul G e n
eral at Cape Town was to arrange with Sir A lfred M ilner
"
F or R l 1900 pp 604 605 ; S al i sb ury t o Ch oa t M arch 3 1900
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e u tral
N
14 4
War
R igh ts i n th e A n glo B o e r
-
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29 6
the B ritish High Com m issioner in South A frica for the
r e lease or purchas e by th e B ritish Gov e rnm e n t of an y goods
o w n e d by citiz e n s of th e Un it e d States which i f pu r chas e d
w e r e to b e paid for at the pric e th e y would have brought
at th e po r t o f d e sti nation at th e tim e they would have ar
rived there had the voyage not b e e n int e rrupted
A gainst c e rta in articl e s e sp e cially the oil con signed to
th e N e th e rla n ds South A frican R ailway an allegatio n of
en e m y s property was j ustly ma d e and the oil con fi scated
I n the end most of th e A m e rican claims were withdrawn
or paid i n full In th e former e v e n t the A m e rican owners
thre w the burden o f proof of own e rship upon th e consignee s
who wer e i n struct e d to pre s e nt their claims through their
r e sp e ctive gov e rnm e n ts B u t it should be noted tha t in
acc e din g to the A merican d e m a n ds by purchasi n g th e goods
th e B ritish Gov e rnm e n t e m phasi z e d the fact that th e act
was pure ly ex gr ati a on the part of E n gland The B ritish
r e pre s e n tative cl ea rly stat e d that the goods had b e en l e gally
d e tai n ed an d that it was op e n for th e o w n e rs to com e and
take th em upon proof of own e rship befor e th e priz e court
It w as poi n t e d out that th e fact that n on e but B ritish ships
ran b e twe e n Cape Colon y and D e lago a B ay althou gh an
unfortunat e circu m stance was o n e which could hardly be
h e ld to be a fault of the E n glish Gov e r n m e nt T h e e n forc e
m e nt of th e E nglish law was th e right of Grea t B ritai n no
m atte r upon whom th e inconv e n i e n c e might happ e n to fall
Lo r d Salisbury said : It must be distinctly u n d e rst o od that
th e s e payments are made pur e ly ex grati a and havi n g re gard
to th e sp e cial circu m stan c e s of this particular cas e N o
liability is admitt e d by H e r M aj e sty s Gov e rn m e nt e ith e r
to purchase the goods or to com p e nsat e
for the losses
T h e view h e ld by
or for th e exp e ns e s
th e E n glish statesman was that Gr e at B ritai n s conc e ssion
i n th e s e cas e s should not serv e as a pr e c e d e nt in the futur e
The attitude which Gr e at B ritain had assum ed with re f
e r e nc e to the diff er e nt s e izur e s was generally consid e red
“
For R l 900 p 6 8 S al i sb u ry t Choat J uly 0 900 w ith
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re f e re n c e
e
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1
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1
to th e B e a tri ce
o
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e,
2
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1
,
14 6
N
e u tral
War
R i gh ts i n th e A n glo B o e r
-
[
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29 8
writ e r has asserted that such an innovati on would
not be alarming to Great B ritain as long as she remained
predom inant at s e a si n ce the more eff e ctual her sea power
w e r e d e clared to b e in prev e nting sustenanc e from going
ov e r sea to her e nemy the better it would be for E nglish
predominance It is believed by this writer that duri n g the
existence of this supremacy at sea she would be able to pro
t e e t th e passage of general foodstu ff s from foreign coun
tri e s to her own ports H e concludes how e ver : O f course
if we lose our predominance at sea it is another matter B ut
then e fi n i ta la
The acceptanc e o f the pri n ciple that f o odstu ff s are con
trabau d o f war it n e e d hardly be said is not eve n a r e mote
probability e xcept un d e r ve ry exceptional circum stances
wh e r e they a re for the imm e diate supply of the en e my s
a r my or navy and in most cases o f this kind th e y can usually
be con fi scat e d as en e my s property without a dire ct implica
tion of a distinctly contraband character In oth e r words
the use for which th e y are int e nd e d may give re asonable
ground for the conclusive presum ption that they are for th e
wh e ther th e titl e to property in
e n emy s imm e diate supply
them vests i n the e n e my or in some other agency and the
last qu e stion is always to b e decid e d by the pri z e court of the
p articular coun try which has made the seizure The d e cision
should be based upon a careful examination of the evidence
which is submitt e d to th e court and not presumed from the
fact that the political power has exercised the belligeren t
right o f visit search and detention The fi nal d e cision of
con fi scation rests with th e prize court
B y way of recapitulation it may be pointed out that the
goods s e i z ed or d e tained by the E nglish authorities in South
A frican waters were shipped by A merican merchants and
manu facturers many o f them on regular monthly orders to
all e ged reputable merchants in Lo renzo M arques D e lago a
B ay in Portuguese territory
Certain consignments were
intended for all e ged reputable fi rms in J ohannesburg South
“
T hos G i b so B ow l s J
F or R l 900 p 5 46
4
900
On e
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2 99
]
Tr ad i n g wi th th e E n e my
147
.
frican R epublic The articles co m posing th e cargoes o f
th e ships were o f the g e ne r al character of foodstu ff s chiefly
flour canned meats and oth e r food materials Lumb e r
hardware and various miscellaneous articl e s generally con
s i d e re d innocent in character were also includ e d
Th e re
was a consignment o f lubricating oil to th e N etherlands
South A frican R ailway the latter compan y h e ld to be the
p r operty o f the Transvaal Govern ment an d a like consign
me n t to the Lorenzo M arques R ail w ay a Portuguese con
cern A t fi rst the seizure s which occurre d at points bet we en
Cape Colo n y and D e lago a B ay wer e suppos e d to have be e n
made on account o f contraband Lat e r Great B ritai n d e
c la re d that the ships had been sei z ed because o f th e violation
o f a municipal ordinanc e forbidding B ritish subj ects to
trade with the enemy The M as h o n a B e atri ce and S a bi n e
were B ritish ships sailing under the E nglish flag The
M ari a was a D utch v e ss e l sailing under the flag of Holland
but was supposed by the E nglish authorities to have be e n
u n der charter to an E nglish fi rm In the latter case the
ship would have been liable to the E nglish law but for the
mistake the owners o f the ship as well as the own e rs o f the
cargo were indemni fie d by the E n glish Go vernm e nt T h e
seizure o f the cargoes o f th e B ritish ships was d e clared to
have been merely an unavoidable incident of the seizure o f
the alleged gu ilty ships Compensation was made to A meri
can shippers by the purchase o f the goods The consign
m e n t of oil to the N e therlands South A frica n R ailway was
con fi scated as enemy s property
T h e views of Great B ritain and the United Stat e s were
divergent with re fe r e nc e to the pri n cipl e o f treating food
stu ff s as contraban d R ath e r as an o bi ter d i ctum the former
declared : F oodstu ff s with a hostile d e stination can be con
s i d e re d contraband of war o nly i f they are supplies for
the enemy s forces It is not su ffi cient that they are capable
o f being so used ; it must be shown that this was in fact
‘
their destination at the time o f the seizure
F or R l 1900 p 5 5 5
A
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14 8
N
eu tral
R i gh ts i n
War
th e A n glo B o e r
-
00
3
[
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The United State s decl ared that the validity of the
right to seize goods on the groun d o f contraband could not
“
be recogn ized under an y belligerent right of capture of
provisions and other good s shipped by A merican citizens in
“
the ordinary course of trade to a neutral port
“
E ngland declared :
Her M aj esty s Government have not
admitted liability in respect of any claims for loss or dam age
sustained
in consequence o f the delay in the delivery
of the
goods B ut they have o ffered to purchase the
flour on board by Unit e d States citizens Claims for redress
for the non d e livery o f the cargo appear to b e a matter
for s e ttlement between such clai m ants and the ship which
undertook to d e liver B ritish subj ects who owned goods on
board having no right to trade with the enemy are not in
the same position as foreign owners The latter are not
guilty of any o ff ense in trading with the enemy from a
n e utral country unless the goods are contraband and are
found on board a B ritish ship in B ritish territorial waters or
on the high seas an d are d es ti n ed f o r th e e n e m y s co un
”
1
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’
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'
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,
,
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’
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tri e s
” 62
.
W ith reference to trading with the enemy Great
B ritain
attempted to extend the acc e pted doc trine o f contin uous
“
voyages She expressed hers e l f as follows : A n ultimate
destination to citizens of the Transvaal e ve n o f goods con
signed to B ritish ports o n the way thither might i f view e d
“
as one continuous voyage be h e ld to con stitute in a
“
B ritish vessel such a
trading with th e en e my as to bring
the vess e l within the provision s of the municipal law
The Unit e d States held that the destination of the vess e l
bein g only such [ B ritish ] ports
the port authorities may
presumably and are assumed to be bound to prev e nt trans
shipment through B ritish territory o f contraband destined
‘
for th e B oers
“
F
or
R l
900 p 5 40
“
M
B ro d r i c k U d r S cr t ary for F or i g
A ff a i rs sp a k i g
H ous of Co m m o s i r gar d t th M
i
h
M arch 9 900
R l
F
or
00 p 609
9
“
F or R l 900 p 5 94
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14 8
N
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The United St
right to seize goo d
“
be recognized ur
provisions and oth e
the ordinary course
E ngland declared
admitt e d liability in
sustain e d
in o r
of the
goods
flour on board by U i
for the non d e liver)
for settlem ent b e twc
undertook to d e liver
board havi n g no rig
th e sam e position as
guilty of any o ff ens
neutral country un le :
found on board a B ri t
on the high seas o n e
.
-
.
,
,
tri es
” 62
.
W ith reference to t
attempted to extend
voyages She expres s
destination to citi z ens
signed to B ritish ports
“
as one continuous v
B ritish vessel such a
the vess e l within the
The Unit e d States he
m e v ess e l
being only such [ B ritish ] p orts
the port authorities may
presumably and are assumed to be bound to prevent trans
shipment through B ritish territory o f con traband desti n ed
‘
for th e B o e rs
.
01
—
'
,
,
” 6
.
“
F or
R el ,
B ro
1 900,
Mr
H ous e
.
d r ick
p
5 40
r S e cr e tary for F ore i gn A ffa i rs sp e a k in g
in
of
Co m m on s i n r e gar d to th e M as h o n a o n M arch 19 1 900
“
R e l 1 900 p 609
F
or
“
F or R e l 1 900 p 5 94
“
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30 1 ]
T rad i n g wi th th e E n e m y
14 9
.
con traband was shown and the att e mpt which Great
B r itain m ade to e xt e nd the ruling of th e Sup r e me Court
of th e Unite d Stat e s in 1 863 so as to apply to trading w ith
the e nemy can n ot be considered to have b e e n successful
T h e qu e stions of i n ternatio n al law i n volved i n th e s e i z ure s
of flour a n d foodstuff s g e n e r ally were not ans w e r e d by th e
fi nal ar r ange m e nt b e t w e e n th e Governments co n c e rned
In
his M e ssag e to Congre ss i n 1 900 P r eside n t M c K i n le y de
l
the
fact
that
w
hile
the
war
had
introduced
important
o
r
e
d
p
“
questio n s th e r e sult had not b e e n a broad s e ttleme n t of
th e question of a n eutral s right to s e nd goods not contra
ba n d p e r s e to a n e utral po r t adj ac e n t to a bellige r e nt
No
,
.
.
’
a re a f
’
Two things however were appare n tly admitted : ( I ) that
a b e llige re n t may declare flour co n traband p ro h ac vi c e ; ( 2 )
that a bellige re n t may detain neutral goods and divert th e m
fro m their destination on a reasonabl e suspicion that they
a r e int e nded for the en e my subject to a claim for co m pensa
tio n includi n g damage by d e t e ntion
,
,
,
.
THE JOHNS HOPKINS PRESS OF BALTI MORE
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IN O E
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TH E
uarterly
Econ omi cs
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COM PA N Y P ub li sh e rs
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ST R E ET
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vi
BO STO N
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M A SS
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Q U A R T E R LY
A
FOR TH E D I
J O U R NAL
S C USS I ON O F E CON OM I C PO L ITI CAL
,
,
AN D
SOC IAL Q U ESTI O N S
The Yale R eview i s th e successo r o f the N e w E n glander and
Yale R e vi ew foun ded i n 184 3 I n 1892 i ts title was m odi fied
an d i ts fi eld s p e ciali zed
I t n o w confin es it se lf to econom i cs
politics an d th e social sciences givi n g p arti cular attention to
the scien tifi c d is cuss ion o f p rac tical economi c an d social p rob
lem s an d to the l egislative and volun tar y eff orts m ade to solve
th em A m ong i ts cont r ibutor s ou tside o f the edi torial board
are Hen ry C A dam s E B enj A n drews E dwar d A tki n s on
S i m eon E B aldwi n J ohn B ascom J ohn G raham B roo ks T N
Car ver J B Clark R ichard T E ly Wor th i n gt o n C Ford E R
L Gould J H Hollander B rayton Ives J L au renc e L a ughli n
Henry C L ea E m ile L evasseur B ernard M oses H T N ewco m b
Sim on N Patten Willi am Z R i pley L S Rowe E R A Seli g
m an Wern er S o m bart H M orse S tephens F J Sti m son Wil li am
G raham Sumner F W Taussi g Hanni s Taylor F A Walk er
E d ward B Whitn ey D a vi d Wi ll cox T S Woolsey Carroll D
Wri ght Cli nton R ogers Woo dru fi It i s e di ted by th e followi ng
p rofesso r s i n the Depar tments o f P olitical Science and History o f
Yale U ni versity : H E N R Y W FARN A M E G B OU RN E J OH N C
S CH W A B I RVI N G FI S H E R G S CAL L EN DE R H EN R Y C E M E BY
CL I VE DA Y an d A G KE L L E R
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P U B L I S H E D Q U ART E R L Y
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By
F i n an ce s an d A d m in i s trati o n
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4 64
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By H OWAR D
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TO KE S
Cl o th
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Cu b a and I nternati o na l R e l ati o n s
M ORTON CALLAHAN
5 03 pa ges octavo
B Y J A M ES
o
PH D
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,
T h e N e u tra l it y
,
f th e A m eri can L a k e s
and A n glo A m eri can R e l ati o n s
B
J A M E S MORTON CALLAHA N
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Th i s vol u me di s c usse s th e North e ast e rn Bo n dary Cont rove rsy th e
A shb urton Tr eaty th e R e lat i ons bet w ee n M exi c o an d th e U n i t ed S tate s
18
18 3 th e A n exat i on of T ex as th e N orth w e st e rn B u da ry Contro
th e Oregon Tr eaty Pol k s attemp ted Negot i at i on for Cal i forn i a
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A mong th e t o p i c s di s c uss ed ar e Cub a an d N at i onal Po l i c y ; A me ri can
N e utral i ty 1895 —1897 ; Ab a don me nt of Non I te rve nt ion Poli cy ; Inte r
Be lli ger en cy ; Re lati ons of th e
ti
; Trans i t i on fro m N e utral i ty t
Be ll iger e nts ; R elat i ons be t wee n B elli ger e nts and N e ut als ; N e got i a ti ons
of Be lli gerents d uri ng War ; R e storat ion of Pe ac e ; Inte rpre tat i on an d
F ul fil me nt of Tr e aty of P e a c e
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T hi s i s a s p ec i a lly author i ed an d car e ful ly p r e p ar ed trans l a ti on of th e
ce l eb ra ted w or k of M Levasse ur on th e A me r i c an W or k m an
Am ong th e to p i c s tr ea ted ar e Th e Progr e ss Of A mer i ca n I nd ustry in
th e la s t Fi fty Y ears ; Th e Pro d uc t ivity of La bor an d Ma ch i n e ry ; La bor
La w s an d Tra de R e gul a ti ons ; Orga n i a ti ons of La b or ; Th e S tr i k e ; W age s
of M e n ; W age s of Wo me n an d Chi l dr en ; Fa c tors De te rmi n i ng No minal
W age s ; Re a l Wage s an d W or k me n s Bu dget s ; Pr e s e n t Conditi ons an d
Fu t ur e Pros p e c ts Of t h e Am e r i can W or k m n
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Thi s w or k i s p rob abl y t he fi rs t e haus ti ve s t u dy o f th e finan c i a l h i s
tory of an A me r i can c i t y Th e au t hor t ra ce s i n d i t i l t h e d evel o p me n t
o f m uni c i p al ex pe ndi t ure r evenu e i n debte dne s an d finan c i a l d m i i
t hrough t h e s eve ra l pe r i o d s o f p r e c orp ora te an d c or p ora te h i s
t r ti o
to ry I t has bee n f oun d de s i ra bl e t o m a k e us e a l m os t ex cl us i vel y o f
ori gi na l sour c es an d t o em phas i e th e i n fluen ce o f a dm i n i st ra tive change
u pon fi s ca l growt h Th e narra ti ve p rop e r i suppl emented by c ri t i ca l
co mmen t an d constru ctive sugge st i on Wh i l e p r imar i ly of l o ca l i n te r e st
t h e b oo k a pp eals t o a ll stu dents of l o ca l fi nan ce w ho w i ll re c ogn i e m any
p has e s of th e ex p e r ien c e i n Ba l tim or e as typ i c l of th e A me i c n c i ty
Th e w ork i s ful l y e qu i pp ed wit h th e r equ i s i te s ta t i s t i ca l a p pe ndi ce s
4 00
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66
9
RE PRI N T
A
E CO N O M I C
OF
T R A CT S
Th e J ohns Hopki n s Pr e ss i nvites sub s c ri p ti ons to a r ep rin t of four
i m p ortan t e cono mi c e ssays of th e ei gh tee nth c e n t ury to be i ssu ed
t i ly un de r th e edi tori a l di r e c t i on of Prof e ssor Hol l an de r
Th e Q u er i t con ta i ni g s everal q uerie s p rop os ed to th e cons idera tion of
t h e p ubli c Par ts I II III By G e orge Be r k e l e y Dubl i n 17 35 3 7
An E a y o n th e Go ve ni ng Ca us e o f th e Na tural R a t e of I nt e re st ;
wh er ei n th e s e nt ime n ts of S i Willi a m Pet ty an d Mr Lo c k e on tha t
h ea d ar e c onsidered By J os ep h M ss ie London 17 5 0
M one y a ns w er ll Thi ng or an e ssay to m a k e m on ey su ffi c ie n tly p l ti
ful a m ongs t ll ran ks of p eo pl e and i nc re as e our for ei gn an d do
d m ti k tra de
By J a co b V d li t Lon don 17 34
An E a y o n W ys a n d M ea n for r a i ing M o n e y f o r th e supp o r t o f th e
p r e s e n t wa r wi thou t inc r ea ing th e p ubli c deb t B y Fran c i s F
Lon don 17 5 6
q i
E a c h tra c t wi l l be su ppl ie d by t h e edit or wi t h a bri e f i n trod u c t i on and
Th e ge n era l a pp earanc e of
wi t h text anno ta ti on W h e r e i n di s p e nsa bl e
th e titl e p age wi ll be p r e s e rved an d th e or i gi na l p agi na ti o n wi ll be
i ndi c a ted
Th e editi on wi l l be l imi ted t o five hun dr ed co pi e s W ith a vie w to
s ervi ng th e l rge s t s tude n t us e ful n e ss th e sub s c ri p tion for th e e n ti r e
s e rie s of four tra c t s has bee n fixed t th e n et p ri c e of T wo Dollars
Of t h e t ra c ts h e r etofor e r e p ri n ted a l i mi ted numbe r can y et b e
b ta i n ed as fol l o w s A th e e di ti ons a p p roa ch exh us ti on t h e p r i c e s
i n di c a ted ar e li k e l y t o be i n c r e a ed wi thou t not i c e
L n don 169 6 Pri e 5 0 ce n t s
A gi ll
S eve ral Ass e r ti ons Pro ved
B a rb o n A D i s c ours e f Tra de L n d on 1690 Pri c e 5 0 ce n ts
Ca mb ridg e 1663 Pri c e 5 0 c ts
E nglan d s I n te r e s t Cons i de r ed
F t y
A Re fu ta ti on of th e W age F n d Th e ory Lon don 1866 Pri c e
L
g
7 5 ce nt s
M al thus An Inq ui ry i n to t h e N a t ur e an d Progr e ss of R en t Lon don
Pr i c e 7 5 ce nts
1 815
N o rth Di s cours e s up on T a de Lon don 1691 Pri c 5 0 c e nts
Ri a rdo Thr ee L tte rs on Th e Pr ic e of G ol d Lon don 1809 Pri c e
7 5 c ents
L n don 1815
E ssay on t h e App l i c a ti on of Ca p ita l to La n d
We t
Pri c e 7 5 c e nts
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