The consensus of opinion among European Powers was that the landing of troops at Beira and the pa.s.sage by rail to Rhodesia with the consent of Portugal const.i.tuted a breach of neutrality on the part of the latter.

The opinion was freely expressed that the British Government not only placed a strained interpretation upon the only basis for her action, the treaty of 1891, but that even upon this interpretation she possessed no real servitude over the territory used by her for warlike purposes. The only claim of justification advanced by the British Government which would appear at all tenable rests upon the statement of Calvo: "It may be that a servitude of public order, or a treaty made antecedently to the war, imposes on a neutral State the obligation of allowing the pa.s.sage of the troops of one belligerent." "In such a case," Calvo concludes, "the fulfilment of the legal obligation cannot be regarded as an a.s.sistance afforded to that belligerent and a violation of the duties of neutrality."[21]

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

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

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

What Calvo says is: "Tous les publicistes sont d'accord pour admettre que le territoire d'une nation const.i.tue une veritable propriete ...

le territoire neutre doit etre a l'abri de toutes les entreprises des belligerants de quelque nature qu'elles soient; les neutres ont le droit incontestable de s'opposer par tous les moyens en leur pouvoir, meme par la force des armes, a toutes les tentatives qu'un belligerant pourrait faire pour user de leur territoire."[23] He also calls attention to the fact that Grotius, Wolff and other authors held that a belligerent, "dont la cause est juste peut, pour aller a la rencontre de son ennemi, traverser avec ses armees le territoire d'une nation neutre."[24] But his statement of the modern rule is conclusive: "Par contre, Heffter, Hautefeuille, Manning et d'autres auteurs modernes se sont avec juste raison eleves contre des principes dans lesquels ils entrevoient la negation implicite des droits et des devoirs stricts de la neutralite. A leur yeux, la nation neutre qui consent au pa.s.sage des troupes de l'une des parties belligerantes manque a son caractere et donne a l'autre partie un juste motif de lui declarer la guerre."[25]

[Footnote 23: Calvo, --2344.]

[Footnote 24: Ibid., --2345.]

[Footnote 25: Ibid., --2346.]

Mr. Baty, without reaching any definite conclusion in the matter, admits that the point to be decided in any case is not so much the fact that there is an antecedent treaty, as the nature of that treaty. He says, "If it granted a real right of way of the nature of a right _in rem_ there is no reason why the way should be stopped against troops any more than why a purchaser of territory should be debarred from using, it as a base of military operations." But he points out, "If the treaty only created a right _in personam_ the case is different." In the latter case it is obvious that the power which claims the way depends entirely on the promise of the territorial power for the exercise of that advantage.

"In such a case," he concludes, "it may well be that the performance of its promise by the territorial power becomes unlawful, on the outbreak of war between the promiser and a third party."[26] For international purposes the true test is, "Could the power claiming the right of way, or other servitude, enforce its claims during peace time by force, without infringing the sovereignty of the territorial power?" Mr. Baty's opinion is that "if it could, and, if the servitude is consequently a real right," the promisee might use its road in time of war, and the owner of the territory would be "bound to permit the use, without giving offense to the enemy who is prejudiced by the existence of the servitude."[27] But he continues, "If the right of way is merely contractual, then the fulfillment of the promise to permit it must be taken to have become illegal on the outbreak of war and the treaty cannot be invoked to justify the grant of pa.s.sage." It is a.s.serted that in the former case where a real servitude, a right _in rem_, was possessed, to stop the use of the road would be a.n.a.logous to the seizure by a neutral of a belligerent warship to prevent its being used against the enemy. In the case where the treaty grants the so-called right _in personam_, a merely contractual or promissory right exists, and the exercise of the right would be a.n.a.logous to the sale of a warship to a belligerent by the neutral granting the permission stipulated in the treaty. Mr. Baty is of the opinion that while the belligerent might have "a right _in rem_ to the ship so far as the civil law was concerned," it would have only a "quasi-contractual right _in personam_ against the state in whose waters it lay, to allow it to be handed over." Obviously, the performance of that duty, to hand over the vessel, "would have become illegal when hostilities broke out."[28]

[Footnote 26: Int. Law in South Africa, p. 74.]

[Footnote 27: Ibid., p. 74.]

[Footnote 28: Ibid., p. 75.]

We have seen in previous pages that the consensus of opinion among international law authorities of modern times is that a neutral should in no case whatever allow the use of its territory for the purposes of a belligerent expedition against a State with which it is upon friendly terms. But granting the contention made by Mr. Baty that such a thing as a real servitude may exist in international relations, let us examine the stipulations in the treaty of June 11, 1891, by which it has been alleged this right was secured to England.

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

The parts of the treaty which may by any possibility apply to the case are Articles 11, 12, and I4.[29]

[Footnote 29: British and Foreign State Papers, Vol. 83, pp. 27-41, Treaty between Great Britain and Portugal, defining the Spheres of Influence of the two Countries in Africa, signed at Lisbon, June 11, 1891, ratifications exchanged at London, July 3, 1891.]

A portion of Article 11 reads: "It is understood that there shall be freedom for the pa.s.sage of the subjects and goods of both powers across the Zambesi, and through the districts adjoining the left bank of the river situated above the confluence of the Shire, and those adjoining the right bank of the Zambezi situated above the confluence of the river Luenha (Ruenga), without hindrance of any description and without payment of transit dues."[30]

[Footnote 30: Ibid., p. 34]

The only applicable portion of Article 12 says: "The Portuguese Government engages to permit and to facilitate transit for all persons and goods of every description over the water-ways of the Zambezi, the Shire, the Pungwe, the Busi, the Limpopo, the Sabi and their tributaries; and also over the land ways which supply means of communication where these rivers are not navigable."[31]

[Footnote 31: British and Foreign State Papers, Vol. 83, p. 36.]

The only other clause of the treaty which bears on the case is a portion of Article 14: "In the interests of both Powers, Portugal agrees to grant _absolute freedom of pa.s.sage_ between the British sphere of influence and Pungwe Bay for _all merchandise_ of every description and to give the necessary facilities for the improvement of the means of communication."[32]

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

It is obvious that Article 14 could not apply to anything more warlike than "_merchandise_" being transported from Pungwe Bay, where Beira is situated, to the British sphere of influence. It is admitted by Mr. Baty that Article 12 is inapplicable to any routes other than the water-ways specified and the land routes and portages auxiliary to them. It is also admitted that the only other stipulation that might apply, Article II, "obviously applies to the territory far to the north, and concerns the question of access to British Central Africa."[33]

[Footnote 33: International Law in South Africa, p. 76.]

Mr. Baty, however, contends that it was not a new right, that of pa.s.sage through Portuguese territory, but was one created by this treaty. Upon the supposition that if the right still existed in times of war it must have been by virtue of Article II, he says, "The question arises, 'Was it such a grant as could be valid in war time?'"[34]

[Footnote 34: Ibid., p. 76.]

It should be remembered that Mr. Baty has concluded that Calvo a.s.serts the possibility of a neutral, without violating its neutral obligations, allowing a belligerent to pa.s.s troops over neutral territory for the purpose of attacking a State which is on friendly terms with the Government granting the privilege. Mr. Baty a.s.serts that a real eas.e.m.e.nt existed in favor of England if she might "force her way along" the routes stipulated in the treaty, "without going to war with Portugal,"

But he says this interpretation is always "subject to the consideration, that the terms of the treaty do not seem to contemplate the use of the road as a military road at all," a conclusion which would seem to settle the question, and deny that any shred of justification existed for the use to which neutral territory was put in time of war. But Mr. Baty in the same breath says: "There can be such a thing as a military road across neutral territory. The German Empire has such a road across the canton of Schaffhausen, and there used to be one between Saxony and Poland. But it seems very questionable whether the roads indicated by the treaty of 1891 were not simply commercial, and not for the purposes of war at all."[35] And this English writer reluctantly admits, "The treaty has, therefore, to be pressed very far to cover the grant of an overland pa.s.sage for troops from Beira inland."[36]

[Footnote 35: International Law in South Africa, p. 77.]

[Footnote 36: Ibid., p. 76.]

The conclusion reached by Mr. Baty is far more favorable to England than the circ.u.mstances of the case warrant. "One may regret," he says, "that the British Government should have found it necessary to place a somewhat strained interpretation on a treaty which, even then did not give them in anything like clear terms, an absolute servitude of the kind contended for."[37]

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

Such a conclusion is misleading in the first place because the British Government was contending for a right which was not recognized among independent nations at the time the treaty was formed; in the second place, granting that ancient authorities may have declared the possibility of such a right existing in time of war, the stipulations of the treaty itself are the strongest argument against the interpretation used by England. Hall has pointed out that, "When the language of a treaty, taken in the ordinary meaning of the words, yields a plain and reasonable sense, it must be taken to be read in that sense."[38]

The only reasonable sense in which the stipulations of the British-Portuguese treaty of 1891 could be taken was that of a purely commercial agreement. The spirit of the treaty, the general sense and the context of the disputed terms all seem to indicate that the instrument considered only times of peace and became absolutely invalid with reference to the transportation of troops in time of war. The authority already cited says, "When the words of a treaty fail to yield a plain and reasonable sense they should be interpreted by recourse to the general sense and spirit of the treaty as shown by the context of the incomplete, improper, ambiguous, or obscure pa.s.sages, or by the provisions of the instrument as a whole,"[39]

[Footnote 38: International Law (1880), p. 281.]

[Footnote 39: Hall, Int. Law (1880), p. 283.]

Unquestionably the provisions of the instrument as a whole yield but one meaning. The treaty is not broad enough to sustain the pa.s.sage of troops in time of war. Nor would there seem to be any plausibility in the claim that certain mutual explanations exchanged between the two Governments at the time of the signing of the treaty gave tenable ground for the fulfilment of such a right as that which was granted by Portugal.

The words of the Portuguese notification to the Transvaal condemn the action of Portugal rather than justify the proceeding in view of the requirements of the neutrality of the present day. This communication read: "The Portuguese Government has just been informed that in accordance with the mutual explanations exchanged in the treaty of 1891 with regard to the right of moving troops and material of war through the Portuguese territory in South Africa into English territory and _vice versa_, the British Government has just made a formal demand for all troops and material of war to be sent through Beira to the English hinterland. The Portuguese Government cannot refuse the demand and must fulfill a convention depending on reciprocity, a convention which was settled long before the present state of war had been foreseen. This agreement cannot be regarded as a superfluous support of one of the belligerent parties or as a violation of the duties imposed by neutrality or indeed of the good friendly relations which the Portuguese Government always wishes to keep up with the Government of the South African Republic."[40] The fact that the a.s.sent of the Portuguese Government was obtained only after ten weeks of pressure brought to bear upon the Lisbon authorities would seem to indicate that intrigue is more potent in international relations than accepted precedent.

[Footnote 40: Times Military History of the War in South Africa, Vol.

IV, p. 366, note.]

In its reply to the Portuguese dispatch the Transvaal reasonably protested that the treaty in question had not been made public and that no notice of it had been received by the Republic at the outbreak of war.[41] It was pointed out that this being the case the treaty could not be applied even if it granted the right contended for by England.

And even stronger was the Transvaal argument that in no case after war had begun could such a treaty be applied by a neutral State to the disadvantage of third parties. The fact of neutrality had suspended the working of the agreement. The action of Portugal, it was justly alleged, put her in the position of an enemy instead of a neutral.

[Footnote 41: Ibid., p. 367, note.]

The Transvaal contention would appear to be fully warranted. In the light of modern international law the action of England in sending troops through neutral Portuguese territory against a nation at peace with Portugal was based upon a flagrant misreading of a purely commercial treaty. The action of the Portuguese Government in allowing this to be accomplished was a gross breach of the duties inc.u.mbent upon a neutral State in time of war.

CHAPTER III.

CONTRABAND OF WAR AND NEUTRAL PORTS.

During the war the question of blockade could not arise for the reason that neither the Transvaal nor the Orange Free State possessed a seaport. Lorenzo Marques being a neutral Portuguese possession could not be blockaded by the English. General Buller, commanding the British land forces in South Africa, had indeed urged that such a declaration be made, but it was realized by Great Britain that such a step was not possible under the laws of war.[1] More stringent measures, however, were taken to prevent the smuggling of contraband through Delagoa Bay, a transaction which the English alleged was an everyday occurrence. A number of neutral merchantmen bound for this port were seized, but the difficulty experienced by England was her inability to prove that the goods on board were really intended for the enemy, or that the men shown as pa.s.sengers were actually proceeding to the Transvaal as recruits for the Boer forces in the field.

[Footnote 1: Sessional Papers of the House of Commons, Royal Commission on the War in South Africa, Appendices to Minutes of Evidence being C.

1792 (1903).]