On October 18 the ship _Avondale Castle_ had been arrested by the English gunboat _Partridge_ and ordered to return under escort to Durban. The British cruiser _Tartar_ there took over 25,000 in gold which, it was alleged, had been intended for the Transvaal Government.

It was found, however, that the gold was consigned to the Delagoa branch of the Transvaal Bank from the Durban branch of the same inst.i.tution.

The allegation against the consignment, it was considered by the prize court, did not sufficiently contaminate the shipment since the destination was proved to be a neutral one and the point of departure an English port. In February the gold was returned to the Bank of Durban because the ultimate destination of the consignment did not warrant the presumption that it was enemy's property.

In November a French steamer, the _Cordoba_, was hailed by the British cruiser _Magicienne_. The _Cordoba_ refused to recognize the signal to halt seventy miles out from Lorenzo Marques and was brought to by a blank shot. Her papers, however, failed to show any guilt on her part and she was allowed to proceed to her port of destination, Lorenzo Marques.

These seizures indicate the feeling of suspicion which was prevalent in England that apparently innocent descriptions in the bills of lading of steamers arriving at Lorenzo Marques concealed contraband of war. The question was raised whether the English commanders should not be ordered to open packing cases and the like and not examine merely the manifests in order to furnish evidence which would warrant the confiscation of the goods and possibly the ships carrying contraband, should such be found on board. The Council of the British and Foreign Arbitration a.s.sociation sent a resolution to the English Government and to that of Portugal which declared: "This a.s.sociation most earnestly and emphatically protests against the permission granted by Portugal to the Boers of the Transvaal to make of Lorenzo Marques an emporium for the collection of arms and ammunition against Great Britain with whom the king of Portugal is at peace ... thereby ... enlarging the sphere of the present carnage in South Africa."[2]

[Footnote 2: London Times, Weekly Ed., Dec. 29, 1899, p. 821, col. I.]

It was alleged in England that at the beginning of the war, when the Portuguese Government believed victory certain for Great Britain and only a matter of brief hostilities, the administration at Lorenzo Marques had put a certain amount of restraint upon the extent to which the port might be used as a base of warlike supplies, but had later relaxed this proper restriction. The only remedy possible to be applied by England was the right of patrol outside the three mile limit, but the detection of forbidden forms of commerce was practically impossible.

Undoubtedly not only food but munitions of war as well were brought in concealed in the holds of merchantmen and by other devices. To examine the ships properly at sea it was estimated would have required three weeks or more, and it was declared that such an examination alone could have insured Great Britain in her rights, since the bills of lading were evidently fict.i.tious. Recruits came in on the ships in question as waiters, as sailors, as pa.s.sengers, and when landed were sent on to Pretoria. With permanent offices at the Hague, Dr. Leyds, it was a.s.serted, was the recruiting agent of the Transvaal, and was successful in sending out men from Germany, Belgium, Russia, Sweden, Holland, Ireland, and as a matter of fact from the whole of Europe as a great recruiting station.

It was this state of affairs that impelled the English Government to a.s.sume an att.i.tude toward neutral commerce which it was found difficult to maintain against other nations whose interests were involved. The points in the British position which were most violently attacked were the cla.s.sification of foodstuffs as contraband in certain cases, and the application which was made of the doctrine of "continuous voyages," not to absolute contraband of war or to goods seeking to cross the line of an established blockade, but to other cla.s.ses which are usually considered free.

There seems little certainty as to the exact circ.u.mstances under which a belligerent may treat foodstuffs as contraband, although it is generally admitted that under certain conditions such goods may be so considered.

On the other hand doubt is expressed by many writers upon international law as to whether it is ever possible to treat as contraband of war such articles as are necessary for the sustenance of a people.

Contraband as is well known is generally held to consist of two kinds, first, absolute contraband such as arms, machinery for manufacturing arms, ammunition and any materials which are of direct application in naval or military armaments; second, conditional contraband, consisting of articles which are fit for but not necessarily of direct application to hostile uses.

The first cla.s.s is always liable to capture and confiscation, but with regard to the second cla.s.s no unanimity of opinion exists. Disputes always arise as to what articles, though not necessarily of direct applicability to hostile uses, may nevertheless be considered contraband of war. This question is especially difficult of solution with reference to foodstuffs when seized on their way to a belligerent in neutral bottoms.

The case of seizure which occurred during the war involved not only the question of foodstuffs as contraband but brought up also the applicability of the doctrine of "continuous voyages," where the article being conveyed to a belligerent by stages were goods which, except under unusual circ.u.mstances, have generally been held to be free from the taint of contraband character. Great Britain has held that provisions and liquors fit for the consumption of the enemy's naval or military forces may be treated as contraband. In the case of the seizure of "naval or victualling" stores her rule has been their purchase without condemnation in a prize court.[3]

[Footnote 3: Holland, Manual of Naval Prize Law (1888), p. 24.]

France in 1885 declared rice to be contraband when shipped from the southern to the northern ports of China, with whom she was at war. But in declaring that all cargoes so shipped were to be considered as contraband the French Government made a distinction as to their intended or probable destination and use. Great Britain protested at that time, but as no cases came before French prize courts we have no way of judging of the French declaration and its value as a precedent. But the majority of the authorities upon the principles of international law admit that foodstuffs which are destined for the use of the enemy's army or navy may be declared contraband in character. The practice of the United States, of Great Britain and of j.a.pan has been to follow this rule. Russia in 1904 declared rice and provisions in general to be contraband. When Great Britain and the United States protested against this decision the Russian Government altered its declaration so far as to include foodstuffs as conditional contraband only. Germany has held that articles which may serve at the same time in war and peace are reputed contraband if their destination for the military or naval operations of the enemy is shown by the circ.u.mstances.

All authorities seem to agree that contraband to be treated as such must be captured in the course of direct transit to the belligerent, but the difficulty nearly always arises as to what shall be considered direct transit. One rule has been that the shipment is confiscable if bound for a hostile port, another that it is only necessary to show that the ultimate destination of the goods is hostile. The latter rule was declared to apply in the American case of the _Springbok_, an English merchantman conveying goods in 1863 from a neutral port to a neutral port, but, it was alleged, with the evident intention that the goods should reach by a later stage of the same voyage the belligerent forces of the Southern Confederacy, then at war with the United States.[4] In this case, however, the conclusive presumption was that the character of the goods themselves left no doubt possible as to their ultimate destination. The guilt of the vessel was not based upon the ground of carrying contraband but upon a presumption that the blockade established over the Southern States was to have been broken. Both the ship and its cargo were condemned by the district court of southern New York, but the cargo alone was later considered liable to condemnation by the Supreme Court of the United States. Great Britain at the time noted an exception to the decision, but refused to take up claims on the part of the English owners against the United States Government for indemnity. Earl Russell, in refusing the request of the owners for intervention by Great Britain, said in part: "A careful perusal ... of the judgment, containing the reasons of the judge, the authorities cited by him in support of it, and the ... evidence invoked ... goes ... to establish that the cargo of the _Springbok_, containing a considerable portion of contraband, was never really and _bona fide_ destined for Na.s.sau [the alleged destination], but was either destined merely to call there, or to be immediately transshipped after its arrival there without breaking bulk and without any previous incorporation into the common stock of that colony, and to proceed to its real port of destination, being a blockaded port."[5]

[Footnote 4: Sessional Papers of the House of Commons, Correspondence respecting the Seizure of the British Vessels "Springbok" and "Peterhof"

by United States Cruisers in 1863, Miscl. No. I (1900), C. 34]

[Footnote 5: Sessional Papers of the House of Commons, p. 39.]

This case is often cited as containing an application of the doctrine of "continuous voyages" to contraband _per se_. But it seems that the primary question was not one of contraband. The guilt of the ship lay rather in the intention, presumed upon the evidence, that a breach of an actual blockade was ultimately designed. The Supreme Court in reviewing the decision of the lower court said: "We do not refer to the character of the cargo for the purpose of determining whether it was liable to condemnation as contraband, but for the purpose of ascertaining its real destination; for we repeat again, contraband or not, it could not be condemned if really destined for Na.s.sau, and not beyond, and, contraband or not, it must be condemned if destined to any rebel port, for all rebel ports are under blockade."[6] In other words, the decision was upon presumption and not upon the evidence in the case; upon the presumption that a breach of blockade was premeditated and not upon the ground that the cargo was contraband. The fact that the cargo was of a character which did not seem likely to be incorporated into the stock in trade of the Na.s.sau population gave the judges whatever justification there was for the presumption that the goods were intended to be transshipped without breaking bulk. A recent English writer, Mr.

Atherley-Jones, who criticises this decision of the Supreme Court of the United States as a verdict based upon the principle of the expediency of the moment and not upon the usual rules of evidence, admits that if a vessel sails with the intention of violating a blockade there is no question of the character of the port from which she sets out but insists that there is no necessity in such a case to apply the doctrine of "continuous voyages," If it can be proved, he says, that she is going to a blockaded port, it does not matter whether she is going to a neutral one or not, but it must be made clear that she is going to a blockaded one. He points to the fact that suspicion can never prove this apart from the ship's papers, the admission of the ship's company and the situation and course of the vessel. His view of the case is that the Supreme Court as well as the lower courts of, the United States "accepted well founded surmise as to a vessel's destination in lieu of proof," and he adds, "the danger of such a departure needs no further comment."[7]

[Footnote 6: Op. cit., p. 45.]

[Footnote 7: Commerce in War (1907), p. 255.]

The first position taken by Great Britain to support her right of seizure of foodstuffs bound for Delagoa Bay seems to have been based upon this departure of the Supreme Court of the United States in the case of the _Springbok_ in 1863. It was found, however, that this basis of justification would not be acceptable to other Powers generally nor to the United States when the doctrine of "continuous voyages" was given such an application as practically to include foodstuffs as contraband.

Without the taint of contraband there could be no justification even upon the _Springbok_ decision as a precedent, since there was no blockaded port in question. In the seizure of American goods which were being conveyed by British ships there was the possibility of a violation of a munic.i.p.al regulation which forbade British subjects to trade with the enemy.

But the charge of trading with the enemy to gain plausible ground necessarily carried with it the further presumption that the ultimate intention was that the foodstuffs should reach the Transvaal by a later stage of the same voyage.

With reference to the arrest and detention of German mail steamers bound for Delagoa Bay, the English Government found the attempt to subst.i.tute possibly well-grounded suspicions for facts no more acceptable to third Powers than the a.s.sumption with regard to foodstuffs had been, if the emphatic statements of the German Government indicate the general opinion upon the subject of the carrying of a.n.a.logues of contraband and unneutral service in general.

GERMAN SEIZURES. BUNDESRATH, HERZOG AND GENERAL.

THE BUNDESRATH.--It was reported to the English Government by Rear Admiral Sir Robert Harris, on December 5, 1899, that the German East African mail steamer _Bundesrath_ had sailed from Aden for Delagoa Bay.

He informed his Government that ammunition was "suspected but none ascertained;" that the _Bundesrath_ had on board "twenty Dutch and Germans and two supposed Boers, three Germans and two Australians believed to be officers, all believed to be intending combatants, although shown as civilians; also twenty-four Portuguese soldiers."[8]

On the twenty-ninth of the same month the _Bundesrath_ was taken into Durban, about three hundred miles from Lorenzo Marques, under the escort of the British cruiser _Magicienne_. The German Government demanded the immediate release of the steamer upon the a.s.surance made by the Hamburg owners that she carried no contraband. Great indignation was expressed in Hamburg, and a demand was made in the Chamber of Commerce that measures be taken to insure the protection of German commercial interests. A diplomatic note was sent by Germany protesting against the action of England. Lord Salisbury's reply on the part of his Government was that the _Bundesrath_ was suspected of carrying ammunition in her cargo, and that it was known that she had on board a number of pa.s.sengers who were believed to be volunteers for service with the Boers. He added, however, that no official details had been received other than those contained in the cable announcing the fact that the ship had been captured.[9] The German consul at Durban protested against the ship's being brought in there as prize, and his Government reiterated its request that she be released at once since she carried no contraband. The detention of a mail ship, it was a.s.serted, interfered with public interests in addition to the loss which was inflicted upon the owners of the vessel.

[Footnote 8: Sessional Papers of the House of Commons, Correspondence respecting the Action of Her Majesty's Naval Authorities with reference to Certain Foreign Vessels, Africa No. I (1900), C. 33, p. I.]

[Footnote 9: Ibid., pp. 2-3.]

Admiral Harris reported on December 31 that the _Bundesrath_ had changed the position of her cargo on being chased, a fact which was considered suspicious; that a partial search had revealed sugar consigned to a firm at Delagoa Bay, and railway sleepers and small trucks consigned to the same place. It was expected that a further search would reveal arms among the baggage of the Germans on board who admitted that they were going to the Transvaal. England's senior naval officer at Durban was of the opinion that there was ample ground for discharging the cargo and searching it. The request was accordingly made that authority be given for throwing the ship into a prize court, and that instructions be forwarded as to the proper disposal of the pa.s.sengers on board.

Despite the protest of Germany that the _Bundesrath_ carried neither contraband nor volunteers for the Transvaal, instructions were issued that a prize court should take over the ship and a search be at once made by competent authorities. Orders were given at the same time, however, that until it became evident that the _Bundesrath_ was carrying contraband, "other German mail steamers should not be arrested on suspicion only."[10]

[Footnote 10: Ibid., p. 4.]

Instructions were also issued by the British Government that application be made to the prize court for the release of the mails; that if they were released they were to be handed over to the German consul and to be hastened to their destination, "either by an English cruiser if available, or by a mail steamer, or otherwise."[11] It was pointed out that the ship and its cargo, including the mails, were in the custody of the court and except by the order of that tribunal should not be touched. It was urged, however, that every facility for proceeding to his destination be afforded to any pa.s.senger whom the court considered innocent.

[Footnote 11: Ibid., pp. 5-6; Chamberlain to Hely-Hutchinson, Jan. 3, 1900.]

The German consul at Durban reported that no contraband had been found on the _Bundesrath_ although a thorough search had been made. The failure to discover goods of a contraband character apparently rendered the action of Great Britain's naval authorities unjustifiable. Germany indeed insisted that had there been contraband disclosed even this fact would not have given England any right to interfere with neutral commerce from one neutral port to another and insisted that the task of preventing the transmission of contraband to the Transvaal lay with the Portuguese Government.[12] The fact was also pointed out that when war first broke out, the steamship company owning the _Bundesrath_ had discharged shipments of a contraband character at Dar-es-Salaam as well as at Port Said in order to obviate any possible complication, and since then had issued strict orders that contraband should not be embarked.

[Footnote 12: Ibid., p. 7; Lascelles to Salisbury, Jan. 5, 1900.]

Great Britain expressed herself as "entirely unable to accede to ...

the contention that a neutral vessel was ent.i.tled to convey without hindrance contraband of war to the enemy, so long as the port at which she intended to land it was a neutral port."[13] The novel suggestion was made by Germany that "the mail steamer be allowed to go on bail so as not to interfere more than was necessary with her voyage," but the English representative doubted the practicability of such a plan. He was in favor of the suggestion if it could be adopted under suitable conditions, but since the ship had probably gone into the hands of the prize court, that tribunal, he said, would have to act independently.

[Footnote 13: Ibid., p. 7; Salisbury to Lascelles, Jan. 4, 1900.]

On January 5 the mails and the pa.s.sengers were released by order of the court and were taken on board the German warship, _Condor_, for Delagoa Bay. But not until two weeks later were the ship and its cargo released.[14] The only reason a.s.signed by the court for the release was that no contraband had been discovered by the search.

[Footnote 14: Ibid., p. 22; Hely-Hutchinson to Chamberlain, Jan. 18, 1900.]

Since the three cases which attracted most attention, the _Bundesrath_, the _Herzog_, and the _General_, with a few unimportant exceptions as to details, were similar in regard to the points of law involved, the facts in the remaining cases will be outlined. It will then be possible to discuss the grounds upon which Great Britain a.s.serted the right of seizure, and the objections which Germany made to the English a.s.sertion.

THE HERZOG.--On December 16, 1899, a cable from the commander-in-chief of the Mediterranean station announced to the British Foreign Office that the German "steamship" _Herzog_ had left the Suez Ca.n.a.l on the twelfth for South Africa carrying "a considerable number of male pa.s.sengers, 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 pa.s.sengers dressed in khaki" could be "legally removed" from the _Herzog_.[15] On the twenty-first the senior naval officer at Aden reported that the _Herzog_ had sailed on the eighteenth for Delagoa Bay conveying, "probably for service in the Transvaal, about forty Dutch and German medical and other officers and nurses."[16]

Although instructions had been issued on the first of January that neither the _Herzog_ nor any other German mail steamer should be arrested "_on suspicion only_" until it became evident that the _Bundesrath_, which was then being searched, really carried contraband, the _Herzog_ was taken into Durban as prize on the sixth by the British ship _Thetis_.

[Footnote 15: Ibid. p. 1; Admiralty to Foreign Office, Nos. 1 and 2.]

[Footnote 16: Ibid., pp. 2, 4, II.]

The consul at Durban as well as the commander of the German man-of-war _Condor_ protested in the name of their Government against the seizure of the _Herzog_. They urged that the vessel be allowed to proceed since her captain had given the a.s.surance that there were no contraband goods on board; that the only suspected articles were the mails, and certain small iron rails and railway sleepers which were destined for the neutral port of Delagoa Bay. On board the _Herzog_, however, there were three Red Cross expeditions, one of which had no official connection with the legitimate Red Cross societies. It had no official character but had been organized by a committee, the "Hilfs Ausshuss fur Transvaal in Antwerp."[17] The other Red Cross expeditions were legitimate, one being German and the other Dutch.

[Footnote 17: Ibid., p. 16.]

On the seventh instructions were issued that the _Herzog_ be released at once, unless guns or ammunition were revealed by a summary search. But on the following day the order was added that proceedings might be discontinued and the ship released unless "provisions on board are destined for the enemy's Government or agents, and are also for the supply of troops or are especially adapted for use as rations for troops."[18] On the ninth the _Herzog_ was released, arrangements having been made two days before for the pa.s.sage of one of the pa.s.sengers, the Portuguese Governor of Zambesi, to Delagoa Bay by the _Harlech Castle._

[Footnote 18: Ibid., pp. 14, 16.]