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

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

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

534.]

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

One justice concurred on the main point at issue, namely, that there appeared to be "sufficient proof in the present case of an honest intention to pa.s.s a bond at Algoa Bay not to take the goods to Delagoa Bay except with the permission of the proper authorities.... The presumption of an intention of trading with the enemy, arising from the fact that the ship was carrying enemy's goods consigned to Delagoa Bay and destined for the enemy's country, is entirely reb.u.t.ted by the conduct of all the parties interested in the ship. The claim for the rest.i.tution of the ship must consequently be allowed."[19]

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

Justice Buchanan concurring.]

One justice dissented from this opinion and argued that "as soon as war broke out, it became the duty of the master to decline to convey any goods which, from the papers in his possession, appeared to be the property of enemy consignees." It was contended by this justice that "his contract of affreightment could not be fulfilled" in any event, and he should have been aware of this fact. Further, it was urged that there was not convincing evidence to "establish that there was no intention on the part of the master of the ship to trade with the enemy, except with the permission of the proper authorities. In the circ.u.mstances, such a defense must be established by very clear proof; ... although there is no reason whatever to impute any disloyal intention, or _mala fides_, ...

the proof of non-liability on this ground has not been made out." On the contrary, it was insisted, in this dissent from the leading opinion, "there seems to be an absence of proof that it was not the intention ...

to deliver these goods to the consignees unless prevented from doing so by some competent authority; and this cannot be regarded as equivalent to proof that [the master] intended to apply for and obtain a license before engaging in intercourse which, in the absence of the license, was of an unlawful character. From the moment this ship left New York harbour ... she was liable _stricto jure_ ... to seizure and condemnation; as she was still without a license when seized, _stricto jure_ the liability remains."[20]

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

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

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

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

14, 1899.]

The shipments had been made, many of them on regular monthly orders, to Portuguese and other firms in Lorenzo Marques. The policy of insurance did not cover war risks, and the company holding the insurance declared that it was not responsible for any accident which might occur while the merchandise was lying in lighters or hulks at a port of discharge which had been forced upon the ship by the English authorities.[22] That portion of the cargo of the _Beatrice_ which was shipped from New York consisted of large consignments of flour, canned goods, and other foodstuffs, but included also a consignment of lubricating oil as well as a miscellaneous a.s.sortment of light hardware, but none of the articles shipped were of a contraband character in the usual meaning of that term. Part of the flour was branded Goldfields and part was labelled Johannesburg, although the whole consignment was marked Delagoa Bay. The American shippers averred that although they regularly sold flour to merchants engaged in trade in various parts of South Africa they "had never sold flour with direct or ulterior destination to the South African Republic, by re-sale or otherwise." They made affidavit that all of their sales had been made for the ordinary uses of life, and that "since the war had broken out they had made no sales of flour to merchants or others in the South African Republic."[23]

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

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

The reason a.s.signed in the official report of the English authorities for their action in regard to the _Beatrice_ was that she "contained large quant.i.ties of goods, princ.i.p.ally flour, destined for the South African Republic, which the customs authorities at East London required should be landed at that port." Since the cargo was stowed in such a manner as to make it impossible to land goods destined for the Republic without also discharging goods intended for Portuguese East Africa, it was alleged that the master and agents of the ship preferred to land the whole of the cargo at East London, where it was stowed by the customs.

But it was admitted that the removal of large quant.i.ties of the goods so landed had been permitted from time to time "for the purposes of local and _bona fide_ Portuguese consumption." The consignment to the Netherlands South African Railway was held to be enemy's property since it was considered that the railway was owned by the Republic. The specific reason a.s.signed for the arrest of the steamer was "that the _Beatrice_ being a British ship, was by carrying goods destined for the enemy's territory, illegally engaged in trade with the enemy in contravention of Her Majesty's proclamation of December 27, 1899."[24]

The vessel sailed for Calcutta in ballast on December 11, 1900.

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

Supra, p. 116.]

THE SABINE.--On February 22 the last of the ships clearing from New York for South African ports was reported to have been seized at Port Elizabeth, seven hundred and fifty miles from Lorenzo Marques. The _Sabine_ was also a British ship with Mossel Bay, Algoa Bay, and Durban among her ports of call, and carried shipments aggregating thirty to forty thousand dollars in value made by New York merchants to these ports, all of which are in British territory. But in addition to the allegation which had been brought against the _Maria_, _Mashona_, and _Beatrice_, of trading with the enemy, it was suspected that the _Sabine_ was carrying actual contraband of war. The latter suspicion, however, was not pressed, although the authorities who stopped and examined the ship upon the specific charge of violating a munic.i.p.al law a.s.serted that the _Sabine's_ "papers were not in proper form and that goods were found on board which, though shipped to ports this side were marked to persons residing in Boer territory." The case was viewed by the English Government "as a very suspicious one under munic.i.p.al law, but, as the evidence was not very complete, they gave the vessel the benefit of the doubt."[25] After a short detention both ship and cargo were released.

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

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

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

The final clause of the resolution as at first introduced was stricken out after a discussion as to whether the Secretary of State should be "_directed_" or the President be "_requested_" to furnish the desired information. It was realized that the language of the expunged clause, "and whether or not the Department has informed the proper British authorities that, if said detention is persisted in, such act will be considered as without warrant and offensive to the Government and people of the United States," was neither diplomatic in its tone nor warranted by the circ.u.mstances. Amicable negotiations were still in progress, and those negotiations were concerned with a discussion of the very question which would thus have been decided in the affirmative by the Senate, namely, that the seizures had been contrary to the principles of international law. Consequently the resolution only declared that it was "alleged" that Great Britain had departed from the strict principles of international law, and it was not intimated that her persistence in such acts would probably require a resort to more forcible measures than mere protest on the part of the United States.

A motion had been made that the resolution be referred to the Committee on Foreign Relations, where it was hoped by certain members of the Senate that it would die a natural death, an end which would have been deserved under the circ.u.mstances, since the event to which the resolution referred was then in the course of diplomatic consideration and nothing had indicated that the State Department would not be able to secure protection for the interests of all citizens of the United States as neutrals during a recognized belligerent contest. An unsettled question of international law was at issue between Great Britain and the United States, and was being dealt with as fast as official information reached the British Foreign Office from the scene of the occurrences which were alleged to have been in contravention of established principles. Flour or any other foodstuff might or might not be contraband of war according to the particular circ.u.mstances of the case.

As a general rule products like flour shipped from a neutral State are not contraband, but it is always a question of fact whether the immediate destination of such flour is for hostile purposes, namely, the sustenance of a belligerent army. If flour or foodstuffs generally were so destined they became contraband of war for the particular case.

Not less than twenty thousand barrels of flour had been shipped by citizens of the United States upon the three steamers, _Maria_, _Mashona_, and _Beatrice_, and the proposer of the resolution insisted that the Senate was ent.i.tled to know in what manner the rights of the United States were being a.s.serted in view of the obvious hardship which _bona fide_ neutral shippers had thus suffered. He urged that the seizure of property of citizens of the United States by one of the belligerents was "a thing which profoundly affects the American people; it affects every corn grower, every wheat farmer, the owner of the cattle upon a thousand hills, the mill man, the middleman, everybody who is interested in producing and exporting the products of the farm and the field is interested in this question and is ent.i.tled to know what has been done in this case."[27]

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

896.]

It is to be hoped that the Senator's const.i.tuents read this speech in the next morning's papers, for otherwise it must go down in history as a burst of eloquence wasted upon unhearing ears. Had he been able to pa.s.s his resolution so worded as to "_direct_" the Secretary of State to throw open the entire files of the Department's foreign correspondence for the Senate's inspection, instead of merely "_requesting_" the President to furnish such information as the Senate desired "if not, in his opinion, incompatible with the public interest," the result would have been practically the same. In either event the President would have controlled the situation, since he can not be compelled to furnish information to the Senate when he considers it incompatible with the public interest to do so. The only power possible to be exercised by the Senate over the Executive in such a case is that of impeachment. And should impeachment be possible or advisable the process could be carried through as well with the words, "if not, in his opinion, incompatible with the public interest," _out_ of a resolution as with those words _in_ such a formal request of the Senate.[28]

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

As a rule it is unwise for the Senate to interfere while negotiations are pending between the Executive Department and foreign Governments over any question which is at issue. Should a resolution "_requesting_"

information upon any subject be deemed necessary, it should obviously be addressed to the President and, merely for the sake of courtesy, with the usual _caveat_. It should not be "directed" to the Secretary of State, for that official stands in a different relation to the legislative department from that of the secretaries of any of the other departments. The Secretary of State is not required by law to report to Congress as are all the other Cabinet officers. He has been exempted from that requirement for the reason that his duties are mainly diplomatic. Negotiations carried on with foreign Governments upon matters of a delicate character might involve serious embarra.s.sments if during their pendency the successive steps were reported to Congress.[29] The power of the President in consultation with the Secretary of State to deal with foreign Governments at least up to the last moment and final consent of the Senate has made it possible for the United States to preserve a fairly uniform foreign policy. For despite the repeated changes of administration and of domestic policies the general foreign policy has been closely modeled upon the expedient course of absolute neutrality laid down by Washington. Were it a practical requirement of the Const.i.tution that all foreign correspondence upon any important question should be at once laid before the Senate, it is reasonable to suppose that few treaties or important conventions would finally be ratified. In a question of international law such as that under discussion between the Governments of Great Britain and the United States, it would have been extremely unwise during the negotiations for the Senate to interfere in any way with the regular course of diplomatic intercourse between the two Governments.

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

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

THE LEGALITY OF THE SEIZURES.

While the fruitless discussion had been in progress in the Senate Secretary Hay had been dealing with the question in such a manner as to safeguard all American interests, but at the same time with a full consideration of the necessity for protesting against any undue extension of belligerent rights. Immediately following the seizure of the British ships clearing from New York with American goods on board he had requested a prompt explanation. In his instructions to Amba.s.sador Choate he said: "You will bring the matter to the attention of the British Government and inquire as to the circ.u.mstances and legality of the seizures."[30] And later, Mr. Choate was further instructed to ascertain "the grounds in law and fact" upon which the interference with apparently innocent commerce between neutral ports was made, and to demand "prompt rest.i.tution of the goods to the American owners if the vessels were seized on account of a violation of the laws of Great Britain, as for trading with the enemy; but if the seizure was on account of the flour ... the United States Government can not recognize its validity under any belligerent right of capture of provisions and other goods shipped by American citizens to a neutral port."[31] Mr. Hay pointed out the fact that the American shippers had produced evidence intended to show that the goods were not contraband in character, and should this prove to be true prompt action was to be requested on the part of Great Britain in order to minimize as far as possible the damage to neutral goods.

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

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

The position taken by the English Government was indicated on January 10 in a note handed to Mr. Choate: "Our view is that foodstuffs with a hostile destination can be considered contraband of war only if they are supplies for the enemy's forces. It is not sufficient that they are capable of being so used. It must be shown that this was in fact their destination at the time of their seizure."[32] Lord Salisbury verbally added that the British Government did not claim that any of the American goods were actual contraband, but that the ships had been seized on a charge of trading with the enemy, and it was intimated also that "an ultimate destination to the citizens of the Transvaal, even of goods consigned to British ports on the way thither, might, if the transportation were viewed as one continuous voyage, be held to const.i.tute in a British vessel such a trading with the enemy as to bring the vessel within the provisions of the munic.i.p.al law."[33] He a.s.serted that the offense was cognizable by a prize court alone, but admitted that "if the owners of the cargoes, being neutrals, claim that they are innocent, the cargoes should not be condemned with the ship but should be delivered over to them."[34] He suggested that the ordinary course would be that the owners should claim the cargoes in the prize court, where the cases would be considered and properly dealt with on their merits.[35] The owners would be requested, he said, to prove that they were the _bona fide_ owners by submitting bills of lading and invoices to the court. It was intimated that the American flour which had been removed from the ships was not detained in any way but was perfectly open to the owners to make whatever arrangements they pleased for its immediate removal. If they considered themselves aggrieved by the action of the English authorities in causing the flour to be landed it was of course open to them to take such proceedings against the persons concerned as they were advised might be appropriate under the circ.u.mstances.[36]

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

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

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

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

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

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

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

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

The United States was ready to admit that there might have been cause for the seizure and detention for the purpose of examination before a prize court upon the suspicion of trading with the enemy. But the decision of the judges seemed to indicate that such a suspicion was not founded upon facts which could be produced before the courts. The vessels were released upon the ground that they had not in fact traded with the enemy nor intended to do so except with the express or implied permission of the British Government. In view of the causes put forward for the seizures and of the reasons stated by the authorities for the subsequent release of the ships it would seem that the cargoes, "except in so far as contraband might have been involved would have the same status as though found aboard British ships trading between neutral ports where there was no question of a belligerent in the neighborhood of the port of detention."[39] The prize court _did_ decide that there was no question of contraband involved, and the American representative pointed out the fact that the seizures not having been made or justified on account of contraband goods, the only effect of the British decision would seem to be either that Great Britain possessed the right to seize neutral and non-contraband goods aboard British vessels trading between neutral ports, or else the American owners of such cargoes would be ent.i.tled to full compensation for their damages.

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