"(6) If the seizure of the vessel was not justified the belligerent state is bound to order the immediate release of the ship and cargo and to pay full compensation."

It was the view of the German Government according to these principles, and in view of the recognized practice of nations, that it would not have been possible to lodge a protest against the stopping on the high seas of the three German steamers or to protest against the examination of their papers. But by the same standard, it was contended that the act of seizing and conveying to Durban the _Bundesrath_ and the _Herzog_, and the act of discharging the cargoes of the _Bundesrath_ and _General_, were both undertaken upon insufficiently founded suspicion and did not appear to have been justified.

The end of the discussion between Great Britain and Germany left the somewhat uncertain doctrine of continuous voyages still unsettled. As applied in 1863 distinctly to a breach of blockade it was generally considered an innovation. As applied, or attempted to be applied, by Great Britain in 1900 to trade between neutral ports at a time when no blockade existed or was in fact possible, it failed to receive the acquiescence of other nations who were interested. The discussion, however, rendered, apparent a clear line of cleavage between English practice and Continental opinion.

Mr. Lawrence characterizes as "crude" the doctrine of the German Chancellor, that neutral ships plying between neutral ports are not liable to interference; that, in order for the ship to be legitimately seized, there must be contraband on board, that is, goods bound for a belligerent destination, and that this could not occur where the destination was a neutral port and the point of departure a neutral port. He declares that if this doctrine were accepted the offense of carrying contraband "might be expunged from the international code;"

that "nothing would be easier for neutrals than to supply a belligerent with all he needed for the prosecution of his war."[38] He points out the danger of the acceptance on the part of the Powers of such a doctrine by citing the hypothetical case of France engaged in war, and a.s.serts that under such circ.u.mstances even arms and ammunition might be poured into the neutral port of Antwerp and carried by land to the French a.r.s.enals. If Germany should be at war, munitions of war might be run in with practically no hindrance through the neutral harbors of Jutland. If Italy were at war, Nice or Trieste might be used in the same manner for the Italian Government to secure arms and ammunition.

[Footnote 38: Principles of Int. Law, 3d Ed., p. 679.]

Possibly Mr. Lawrence does not do full justice to the points taken by the German Government as enunciated in the speech of Count Von Bulow, although he clearly indicates what he thinks the general tendency of the proposed German system of law would be. It would seem that he does not give a clear statement of the German doctrine. When he a.s.serts that "Count Von Bulow committed himself to the crude doctrine that neutral ships plying between neutral ports would not be liable to interference,"

the inference is not a necessary result of the German position. Nor does it necessarily follow according to the German standard that, "to const.i.tute the offense of carrying contraband a belligerent destination"

is "essential, and therefore there" can "be no contraband when the voyage" is "from neutral port to neutral port,"[39] Mr. Lawrence possibly has reference only to the position taken _arguendo_ by the German Government during the correspondence immediately following the seizure of the German ships and not to the general rules formulated by the German Chancellor on January 19, 1900, in his speech before the Reichstag.[40] There is no indication that Mr. Lawrence had this speech before him when he pa.s.sed judgment upon the German doctrine, although the preface to the third edition of his Principles of International Law is dated August 1, 1900.

[Footnote 39: Principles of Int. Law, p. 679.]

[Footnote 40: The German argument was that according to English expression in the past, notably in 1863, and expressly in her own naval guide, there could not be contraband of war between neutral ports.]

It is possibly true that the German rules were advanced because of their expediency in view of the geographical position of Germany. But the English writer apparently admits a similar motive in opposing the proposed German system, when he says, "Great Britain is the only European state which could not obtain," in time of war, "all the supplies she wished for by land carriage from neighboring neutral ports, with which according to the doctrine in question, neutrals would be free to trade in contraband without the slightest hindrance from the other belligerent."[41]

[Footnote 41: Principles of Int. Law, p. 680.]

The view taken by Mr. Lawrence would seem unfair to the proposed rules in a number of points. Count Von Bulow clearly pointed out that belligerent vessels might capture a neutral vessel if the latter resisted the order to stop, or if irregularities were discovered in her papers, or if the presence of contraband were revealed. Under the term "contraband of war" he admitted that articles and persons suited for war might be included, provided they were at the same time destined for the use of one of the belligerents, and he was ready to admit that discovered contraband should be confiscable. It is true the caution was added that should the seizure prove to be unjustifiable the belligerent State should be bound to order immediate release and make full compensation, and that the right of visit and search should be exercised with as much consideration as possible and without undue molestation to neutral commerce. It was understood that neutral merchant vessels on the high seas or in the territorial waters of the belligerent powers should be liable to visit and search, but again with the necessary caution that the right should not be exercised in waters too remote from the seat of war, and that additional consideration be conceded to mail steamers.[42]

[Footnote 42: Sessional Papers, Africa, No. I (1900), C. 33, p. 24.

Speech in Reichstag, Jan. 19, 1900.]

There would seem to be no necessary opposition between the German position in 1900 and that taken by the Supreme Court of the United States in 1863 with reference to the ships _Springbok_ and _Peterhof_.

In the latter case the cargo of the ship was condemned on the ground that the goods, not necessarily contraband in character, were being carried into the neutral Mexican port of Matamoras. It was believed, however, that the goods were not intended to be sold there as a matter of trade, but were destined for the use of the forces of the Southern Confederacy across the Rio Grande River. To these belligerent forces it was presumed the goods were to be conveyed as the final stage of their voyage, but the decision of the court was distinctly upon the guilt of a breach of blockade.[43] The character of the goods did not give just ground for seizure provided they were intended in good faith for a neutral market, but the character of the goods showed that they were not so intended, and the simulated papers of the ship substantiated this suspicion. But it is to be repeated, condemnation was declared upon the ground of an intended breach of an established blockade as the final stage of the voyage. Had there been no blockade of the Southern States these decisions could not have been upheld. No contraband of war was possible between the neutral ports in the course of _bona fide_ neutral trade, but the character of the goods and the dishonest character of the ships made possible the conclusive presumption that the goods were ultimately intended for the blockaded enemy.

[Footnote 43: Sessional Papers, Miscl., No. I (1900), C. 34, p. 60.]

In the seizure of the German ships, on the other hand, the British Government was not able to show that the ships were really carrying contraband or that there was any irregularity in their papers. The protest of the German Government and its later announcement of certain rules which should govern such cases merely cautioned Great Britain against an undue exercise of the recognized right of visit and search.

The attempt was not made to lay down a new system of principles which would render the carrying of contraband by neutrals unhampered by the belligerents, for Count Von Bulow in setting forth the tentative system which in the opinion of his Government would protect neutral commerce in time of war laid stress upon the fact that there are as yet no legal principles fixed and binding on all the maritime Powers, respecting the rights of neutrals to trade with a belligerent, or the rights of belligerents in respect to neutral commerce. He pointed out that, although proposals had been repeatedly made to regulate this subject all attempts had failed owing to the obstacles created by the conflicting views of the different Powers.

The Peace Conference at the Hague has in fact expressed the wish that an international conference might regulate, on the one hand, the rights and duties of neutrals, and on the other, the question of private property at sea. The German Chancellor intimated that his Government would support any plan of the kind for more clearly defining the disputed points of maritime law. The fact was pointed out that maritime law is still in a "liquid, elastic, and imperfect state," that with many gaps which are only too frequently apt to be supplemented by armed force at critical junctures, this body of law opens the way for the criticism that "the standard of might has not as yet been superseded by the standard of right."

The Inst.i.tute of International Law which met at Venice in 1896 declared that the destination of contraband goods to an enemy may be shown even when the vessel which carries them is bound to a neutral port. But it was considered necessary to add the caution that "evident and incontestable proof" must make clear the fact that the goods, contraband in character, were to be taken on from the neutral port to the enemy, as the final stage of the same commercial transaction.

This latter condition the English Government failed to fulfil in the cases of the _Bundesrath, Herzog_ and _General_, and it was this failure which gave just ground for Germany's protests. Great Britain not only failed to show by "evident and incontestable proof" that the German ships carried actual contraband, but she failed to show that there were on board what have been called "a.n.a.logues" of contraband. The point was emphasized indeed that while special consideration would be shown to all German mail steamers, not every steamer which "carried a bag of letters"

could claim this partial immunity. The English representative said: "We understand by mail steamers, steamers of subsidized lines, and consequently owned by persons whom the German Government consider as respectable."[44] And in this intimation he merely voiced the suspicion in England that with or without the knowledge of the Government the German ships had been guilty of unneutral service, which the more recent authorities on international law distinguished from the carrying of contraband.

[Footnote 44: Sessional Papers, Africa, No. I (1900), C. 33, p. 21; Salisbury to Lascelles, Jan. 16, 1900.]

It is generally agreed that neutral mail steamers and other vessels carrying the mails by agreement with neutral governments have in certain respects a peculiar position. Their owners and captains cannot be held responsible for the nature of the numerous communications they carry. It is equally well understood that a neutral may not transmit signals or messages for a belligerent, nor carry enemy's despatches, nor transport certain cla.s.ses of persons in the service of a belligerent. But mail steamers may carry persons who pay for their pa.s.sage in the usual way and come on board as ordinary pa.s.sengers, even though they turn out to be officers of one or the other of the belligerents. Although the tendency of modern times to exempt mail ships from visit and search and from capture and condemnation is not an a.s.sured restriction upon belligerent interests, it is a right which neutrals are ent.i.tled to demand within certain well-defined limits. It was understood when this immunity was granted by the United States in 1862 that "simulated mails verified by forged certificates and counterfeit seals" were not to be protected.[45]

[Footnote 45: Wheaton, International Law, Dana's Ed., p. 659, note.]

During the controversy between the English and German Governments with reference to the seizure of the three German ships, Professor T.E.

Holland, the editor of the British Admiralty Manual of Prize Law of 1888, declared: "The carriage by a neutral ship of troops, or of even a few military officers, as also of enemy despatches, is an enemy service of so important a kind as to involve the confiscation of the vessel concerned, a penalty which under ordinary circ.u.mstances, is not imposed upon the carriage of contraband property so called."[46] Under this head if would seem the alleged offense of the ship _Bundesrath_ may properly be cla.s.sed, and charges of a similar character were made against the ships _General_ and _Herzog_. It was suspected that persons on board variously described as of a military appearance were on their way to the Transvaal to enlist. The suspicion, however, could not be proved, and the result was that the ships were released without guilt upon the charge of unneutral service or upon that of carrying contraband goods in the usual sense of the term contraband.

[Footnote 46: International Law Situations, Naval War College, 1900, p.

98. Also Arguments of Lord Stowell in the case of the _Orozembo_, 6 Rob.

430; and the _Atlanta_, 6 Rob. 440.]

In connection with the att.i.tude of Great Britain in regard to the doctrine of continuous voyages as applied to both goods and persons bound for Delagoa Bay, it is interesting to note the view expressed by a leading English authority upon international law with reference to the seizure of the ship _Gaelic_ by the j.a.panese Government during the Chino-j.a.panese War. The _Gaelic_, a British mail steamer, was bound from the neutral port of San Francisco for the British port of Hongkong.

Information had reached j.a.pan that there were on board persons seeking service with the Chinese Government and carrying a certain kind of material intended to destroy j.a.panese ships.

j.a.pan arrested the ship at Yokohama and had her searched. The suspected individuals, it was discovered, had escaped and taken the French mail-ship _Sidney_ from Yokohama to Shanghai. Nevertheless the search was continued by the j.a.panese authorities in the hope of finding contraband. The British Government protested, and this protest is especially significant in view of the English contention in the cases of the German mail steamers. The protest against the further detention and search of the _Gaelic_ was made on the ground that the ship did not have a hostile destination, Sagasaki, a port in j.a.panese territory, being the only port of call between Yokohama and Hongkong. It was shown by the j.a.panese that ships of the company to which the _Gaelic_ belonged often called at Amoy, China, a belligerent port, but sufficient proof was not advanced to show that there was any intention to touch there on the voyage in question.[47]

[Footnote 47: Takahashi, Int. Law during the Chino-j.a.panese War, pp.

xvii-xxvii. Note on Continuous Voyages and Contraband of War by J.

Westlake; also L.Q. Rev., Vol. 15, p. 24.]

The British a.s.sertion that the neutral destination of the ship precluded the possibility of a search being made, and that it was immaterial whether anything on board had a hostile destination ulterior to that of the ship, appears rather surprising when it is seen to be almost the opposite of the position taken in the seizures of ships bound for Delagoa Bay in Portuguese territory. j.a.pan on the other hand maintained that the proceedings were entirely correct on the ground: (1) of the probability that the _Gaelic_ might call at Amoy; (2) that the doctrine of continuous voyages was applicable in connection with contraband persons or goods if they were destined for the Chinese Government even by way of Hongkong. This it will be remembered was practically the view taken by Great Britain in the German seizures, though strenuously opposed in this incident.

Professor Westlake, commenting upon the case of the _Gaelic_, states the English view of the doctrine of continuous voyages as affecting: (1) goods which are contraband of war and (2) persons who are contraband of war, or a.n.a.logues of contraband. Goods, he says, may be consigned to purchasers in a neutral port, or to agents who are to offer them for sale there, and in either case what further becomes of them will depend on the consignee purchasers or on the purchasers from the agents. He contends that "such goods before arriving at the neutral port have only a neutral destination; on arriving there they are imported into the stock of the country, and if they ultimately find their way to a belligerent army or navy it will be in consequence of a new destination given them, and this notwithstanding that the neutral port may be a well-known market for the belligerent in question to seek supplies in, and that the goods may notoriously have been attracted to it by the existence of such a market."[48]

[Footnote 48: L.Q. Rev., Vol. 15, p. 25.]

It is obvious that this was the position taken by Germany and other nations with reference to the interference with neutral commerce bound for Delagoa Bay. Professor Westlake continues in regard to the j.a.panese incident: "The consignors of the goods may have had an expectation that they would reach the belligerent but not an intention to that effect, for a person can form an intention only about his own acts and a belligerent destination was to be impressed on the goods, if at all, by other persons." Thus it is agreed, he says, "that the goods though of the nature of contraband of war, and the ship knowingly carrying them, _are not subject to capture during the voyage to the neutral port_"[49]

[Footnote 49: L.Q.R., Vol. 15, p. 25. Italics our own.]

The German Government could not have based its protest against the seizure of German mail steamers upon a stronger argument for the correctness of its position than upon this view expressing the English Government's att.i.tude toward neutral commerce at the time of the seizure of the _Gaelic_. Professor Westlake points out, however, that goods on board a ship destined for a neutral port may be under orders from her owners to be forwarded thence to a belligerent port, army or navy, either by a further voyage of the same ship or by transshipment, or even by land carriage. He shows that such goods are to reach the belligerent "without the intervention of a new commercial transaction in pursuance of the intention formed with regard to them by the persons who are their owners during the voyage to the neutral port. Therefore even during that voyage they have a belligerent destination, although the ship which carries them may have a neutral one."[50] In such a case, he declares, by the doctrine of continuous voyages, "the goods and the knowingly guilty ship are capturable during that voyage." In a word, "goods are contraband of war when an enemy destination is combined with the necessary character of the goods." And it is pointed out that "the offense of carrying contraband of war" in view of the doctrine of continuous voyages is committed by a ship "which is knowingly engaged in any part of the carriage of the goods to their belligerent destination."[51]

[Footnote 50: Ibid., p. 25.]

[Footnote 51: L.Q.R., Vol. 15, p. 26.]

It is shown that even if the doctrine of continuous voyages is denied as having any validity, it may still be held that "the goods and the knowingly guilty ship are liable before reaching the neutral port if that port is only to be a port of call, the ultimate destination of the ship as well as of the goods being a belligerent one."[52] But if the doctrine of continuous voyages is denied it may also be questioned "that a further intended carriage by transshipment or by land can be united with the voyage to the neutral port so as to form one carriage to a belligerent destination, and make the goods and the knowingly guilty ship liable during the first part" of the voyage.[53] In other words, a belligerent destination both of the goods and of the ship carrying them would be required.

[Footnote 52: Ibid., p. 26.]

[Footnote 53: Ibid., p. 26.]

In regard to the doctrine of continuous voyages as applied to persons, Professor Westlake says, in speaking of the _Gaelic_, "When a person whose character would stamp him as contraband, or an a.n.a.logue of contraband, is a pa.s.senger on board a ship bound for a neutral port, and having no ulterior destination, but intends on arriving there to proceed to a belligerent port, there is no closer connection between the two parts of his journey than that he should hold a through ticket to the belligerent port." It is pointed out that the distinction between a person when considered as contraband and goods or despatches is that "the person cannot be forwarded like a thing." Thus in the case of a person holding a through ticket, the ticket is merely a facility, but it must depend upon the person whether he will use it, and consequently, where the pa.s.senger is booked only to a neutral port, he "cannot _constructively_ be considered as _bound for a belligerent destination_ until he is _actually bound for one_."[54]

[Footnote 54: Ibid., p. 29. Italics our own.]

Upon Professor Westlake's reasoning the whole contention of the English Government in arresting pa.s.sengers upon German mail steamers bound for Delagoa Bay falls to the ground, for he continues: "There must for such a destination be a determination of his own which during the _first part of his journey_ inevitably remains _contingent_ and which is therefore a.n.a.logous to the new determination which may be given in the neutral port as to the employment of goods which have found a market there."

Consequently he says: "The doctrine of continuous voyages cannot be applied to the carriage of persons.... A neutral destination of the ship is conclusive in the case of pa.s.sengers taken on board in the regular course."[55] Accordingly, Professor Westlake reaches the conclusion that the search of the _Gaelic_ was unjustifiable under the right of belligerents against neutrals on the high seas.[56]

[Footnote 55: L.Q.R, p. 32.]

[Footnote 56: He held, however, that the search was justifiable as an exercise of the police power of j.a.pan within her own territorial waters.]

The application which Great Britain attempted to make of the doctrine of continuous voyages proved unsuccessful both with reference to contraband for neutral ports and the carrying of a.n.a.logues of contraband by German mail steamers bound for Delagoa Bay. In the end the British Government paid to the German East African Line owning the _Bundesrath, Herzog_ and _General_, 20,000 sterling, together with an additional sum of 5,000 as compensation to the consignees. For the detention of the ship _Hans Wagner_, a German sailing boat which had been arrested on February 6, 1900, the sum of 4,437 sterling was paid. The allegation in this case was that of carrying contraband, but the ship was finally released without the cargo being examined, a fact which indicates that in this, the last of the German vessels to be seized, Great Britain realized the futility of attempting to interfere with commerce between neutral ports.