The recommendations for the adjustment of the difficulty in the several cases were made by a commission of five members, two of whom were Germans, and the awards gave general satisfaction in Germany. The East African Line congratulated Count Von Bulow upon the energetic manner in which he had handled the incidents. German commercial interests considered that they might count upon the effective support of the Government, and that the result was a complete justification of the att.i.tude which Germany had a.s.sumed with regard to the conflicting interests of belligerents and neutrals.

CHAPTER IV.

TRADING WITH THE ENEMY.

Almost contemporaneously with the German-English controversy with reference to the restrictions which might legitimately be put upon German mail steamers Great Britain and the United States became involved in a lengthy correspondence.

Various articles of the general nature of foodstuffs were seized upon ships plying between New York and Delagoa Bay. It developed later that the seizures were justified by England not upon the ground of the guilt of carrying contraband _per se_, but because an English munic.i.p.al regulation was alleged to have been violated by English subjects in that they had traded with the enemy. But the fact was incontrovertible that the port of destination as well as that of departure was neutral. The burden of proof under the circ.u.mstances rested upon the captor to show that goods innocent in themselves were really intended for the enemy.

Consequently the line of justification which was set up involved not merely an extension of the doctrine of continuous voyages, but an application of this much mooted theory that would show an ultimate intention to trade with the enemy.

The offense of trading with the enemy is not a new one in international law. In 1799 Sir William Scott, afterwards Lord Stowell, sitting upon the case of the _Hoop_, which is perhaps the leading case upon the subject, declared that all trading with the enemy by the subjects of one State without the permission of the sovereign is interdicted in time of war[1]. It was pointed out that, according to the law of Holland, of France, of Spain and as a matter of fact of all the States of Europe, "when one state is at war with another, all the subjects of the one are considered to be at war with all the subjects of the other and all intercourse and trade with the enemy is forbidden." This principle has been accepted in the United States as one of the conditions of warfare.

Wheaton declares: "One of the immediate consequences of the commencement of hostilities is the interdiction of all commercial intercourse between the subjects of the States at war without the license of their respective Governments."[2]

[Footnote 1: 1 C. Rob. 200.]

[Footnote 2: Elements of International Law, Dana Ed. (1866), --309 et seq.]

In England a declaration of war is equal to an Act of Parliament prohibiting all intercourse with the enemy except by the license of the Crown. The penalty of such illegal intercourse is the confiscation of the cargo and of the ship engaged in such trade. The instructions are emphatic upon the point: "The commander should detain any British vessel which he may meet with trading with the enemy unless, either: (1) He is satisfied that the master was pursuing such trade in ignorance that war had broken out, or, (2) The vessel is pursuing such trade under a license from the British Government."[3]

[Footnote 3: British Admiralty Manual of Naval Prize Law (1888), --38.]

When a vessel is bound for a belligerent port it appears that the burden of proof is thrown upon the ship's captain to show that goods so shipped are not intended for the enemy. In the case of the _Jonge Pieter_ (1801) goods purchased in England were shipped for an enemy port but were seized by a British cruiser under the right of a belligerent. It was attempted to be set up that the goods belonged to citizens of the United States, but in the absence of doc.u.mentary proof condemnation was decreed on the ground of hostile ownership.[4]

[Footnote 4: 4 C. Rob. 79; other cases bearing upon the subject are: the _Samuel_ (1802), 4 C. Rob. 284 N; the _Nayade_ (1802), 4 C. Rob. 251; the _Franklin_ (1805), 6 C. Rob. 127; see also Kent's Commentaries, Vol.

I, p. 87; Halleck, International Law (1878), Vol. II, p. 130; Moore, Digest of Int. Law, Vol. VII, p. 534; White, L.Q. Rev., Vol. 16, p.

407.]

The decisions in these cases as well as the general opinion of the past had shown what the British view was, namely, that all trading with the enemy is absolutely forbidden to British subjects upon the outbreak of war. But in the controversy between the English Government and that of the United States with reference to foodstuffs bound for Delagoa Bay on board English ships the argument set up by the British authorities was not generally considered well founded, since little more than suspicion was produced as evidence to show that any of the ships really intended to trade with the enemy. There was no dissent from the established rule that trading with the enemy on the part of the subjects of the belligerent States is prohibited. But those nations whose citizens or subjects suffered loss by the enforcement of the English law were not satisfied that the English ordinance had been violated either in deed or by intent.

Soon after war had begun it was known that the English authorities would scrutinize closely any transactions of British ships, or of ships leased by English firms, which had dealings in a commercial way with the warring Republics. On November 24 the Official Imperial Gazette of Berlin had published the following note: "According to official information British subjects are forbidden by English law to have any trade or intercourse with the South African Republic and the Orange Free State, or with the subjects of these two states, within their territories, during the continuance of the present state of war."[5]

Because of this prohibition, it was pointed out, all goods sent by English ships and intended for the South African Republic or the Orange Free State and ships of war, even in cases where the goods were not contraband of war, might be legally detained by the British authorities.

Attention was called to the fact that this measure might also be applied to goods destined for ports in the neighborhood of the seat of war and not belonging to Great Britain. German commercial circles were warned that they should consider whether under the circ.u.mstances it was not to their interest to avoid using British ships for transporting goods to South Africa during the war.

[Footnote 5: London Times, Nov. 24, 1899, p. 7, col. 4.]

Notwithstanding this announcement, toward the close of December the British Foreign Office stated that information had reached the Secretary of State for Foreign Affairs which showed that it was not generally known that trading with the enemy was unlawful. The English view of the restrictions upon British subjects was thus pointed out: "British subjects may not in any way aid, abet, or a.s.sist the South African Republic or the Orange Free State in the prosecution of hostilities, nor carry on any trade with, nor supply any goods, wares or merchandise to either of those Republics or to any person resident therein, nor supply any goods, wares, or merchandise to any person for transmission to either Republic, or to any person resident there, nor carry any goods or wares destined for either of the Republics or for any person resident therein."[6] It was further declared that these restrictions applied to all foreigners while they were on British territory, and that all persons, whether British subjects or foreigners, who might commit any of the prohibited acts would be liable to such penalty as the law provided.

These munic.i.p.al restrictions obviously made illegal on the part of English subjects and of strangers temporarily resident upon British soil all commercial acts, from one country to the other, all buying and selling of merchandise, contracts for transportation, as well as all operations of exchange, or the carrying out of any contract which would be to the advantage of the enemy. A time-honored English maxim declares: "_Est prohibitum habere commercium c.u.m inimicis."_

[Footnote 6: British and Foreign State Papers, vol. 92, p. 383.

Notice ... warning British Subjects against trading with the enemy, London, December 22, 1899.]

When Great Britain attempted to enforce these recognized prohibitions against trading with the enemy it was found difficult to show that the suspected ships had in reality had dealings with the public enemy or with its agents. The ships were not bound for a hostile port nor for a blockaded one, but for a neutral harbor which was not even contiguous to either the Transvaal or Orange Free State. Other Governments, although ready to admit that it was competent for England to forbid her own subjects to trade with the enemy, were not willing to allow their respective subjects to suffer the loss of goods which had been shipped in good faith. The character of the goods apparently excluded the idea of contraband of war, and the ships themselves, since they were bound from neutral ports to a neutral port, appeared to be acting in good faith.

THE SEIZURES. MARIA, MASHONA, BEATRICE, AND SABINE.

THE MARIA.--As early as September 6, 1899, the _Maria_, a Dutch ship, had touched at Cape Town on her way to Delagoa Bay with a cargo consisting largely of flour, canned meats and oats shipped from New York[7]. She was allowed to proceed after a short detention by the British authorities although goods in her cargo were plainly marked for the Transvaal. It was realized under the circ.u.mstances that there was no ground for the detention of ship or cargo, and in view of the fact that no war was in progress at the time, the detention of the vessel even for a short period would appear to have been unjustifiable. The _Maria_ called at Port Elizabeth, whence she cleared for Delagoa Bay. On October 29 she put in for coal at Durban, three hundred miles from Lorenzo Marques, and was boarded by the commander of the English ship _Tartar_.

The _Maria's_ captain was willing to be visited and searched without protest. According to the official report, "no guard was placed on her,"

and "the agents were willing to land all the contraband."[8] The commander of the _Tartar_ informed them that if this were submitted to the vessel need no longer be detained. When the _Maria_ had been brought in and no contraband was discovered by the search, the agents of the ship protested against the landing of that portion of the cargo consisting of flour and other goods which they considered innocent, but spoke of the vessel, it was alleged, as belonging to a British company called the "American-African Line." The commander of the English cruiser pointed out to them that British subjects could not under the Governor's proclamation trade with the enemy, and mentioned the warning in a local customs notice as the penalty for "vessels which carried contraband of war or goods of whatever nature the real destination of which was the enemy or their agents in neutral ports."[9]

[Footnote 7: For. Rel., 1900, p. 529.]

[Footnote 8: For. Rel., 1900, p. 575.]

[Footnote 9: For. Rel., 1900, p. 575.]

The _Maria's_ cargo included a consignment of lubricating oil as well as a miscellaneous consignment of light hardware. Part of the cargo was seized and part merely "detained." The consignment to the Netherlands South African Railway, a thousand cases of lubricating oil, eighty-four cases of picks, twenty cases of handles, was seized as enemy's property, since there was sufficient evidence, it was thought, to show that these goods belonged to the railway company, the consignees, and not to the New York shippers, the consignors. This opinion was held on the ground that the Netherlands South African Railway was owned by the South African Republic.

All of the Delagoa Bay cargo including the flour and other foodstuffs was landed and the _Maria_ put to sea. But on November 3 the authorities at Durban were instructed by the British Foreign Office that foodstuffs were not to be treated as contraband, and the captain of the British cruiser _Philomel_ warned the customs that the flour should no longer be detained. It was released and measures were at once taken for reshipping it on the British steamer _Matabele_, when it seems for the first time to have occurred to the customs authorities that the flour might thus find its way to Pretoria by means of an English ship. According to the official report: "It was then provisionally detained again. But on it being found that the flour was _bona fide_ a part of the _Maria's_ cargo the agents and all parties concerned were told that no further restrictions would be placed on the shipment, but it was at the same time pointed out that the flour was going direct to the enemy. The Governor's proclamation against trading with the enemy was then studied in connection with the above-mentioned permission, with the result that agents, shippers, and shipowners all refused to ship or carry the flour and n.o.body would have anything to do with it," although no objection was made by the naval authorities to the cargo being forwarded to its destination.[10]

[Footnote 10: For. Rel., 1900, p. 575.]

For the detention of the _Maria_ her owners, upon the protest of the Netherlands Government, were awarded 126 sterling as indemnity. The consignment of flour "detained" at Durban was purchased by the English Government at the price it would have brought at Delagoa Bay on November 2, the day on which it would presumably have reached there had no interruption occurred.[11]

[Footnote 11: For. Rel., 1900, p. 610.]

It was pointed out in the report upon the case that the _Maria_ was undoubtedly a Dutch ship and that her agents had introduced an element of confusion in the dealings with her by speaking of her as belonging to a British company. It was therefore admitted that possibly some of the goods were removed on the erroneous supposition that she was a British ship and could not lawfully carry them. Had she been a Dutch ship leased by a British firm her liability would appear to have been as great as if she had been a vessel owned by British subjects. Had she belonged to a British company she would have been a British ship, and it would have been unlawful for her to carry for the enemy.

THE MASHONA.--On December 5, 1899, the _Mashona_, clearing from New York for Delagoa Bay, was seized by the British cruiser _Partridge_ near Port Elizabeth, seven hundred and fifty miles from Lorenzo Marques, and taken into Table Bay, but later to Cape Town as prize on the charge of trading with the enemy. Consul-General Stowe reported the capture, and informed the Department at Washington that the _Mashona_ carried five thousand tons of general cargo, including seventeen thousand bags of flour for the Transvaal by way of Delagoa Bay. Foreseeing the probability that the _Mashona_ would be brought into Cape Town as prize, Mr. Stowe inquired: "Is foodstuff such as flour, contraband? Being a British ship has the British Government a right to seize?"[12]

[Footnote 12: For. Rel., 1900, p. 529; Stone to Cridler, Dec. 6, 1899.]

Counsel for the original American shippers upon the _Mashona_ stated that the cargo was of the character of general merchandise and was destined "for neutral citizens domiciled in neutral territory." It was pointed out in the prayer of the owners of this portion of the cargo that while the British Government might be justified in seizing her own vessels, it appeared that the British naval authorities were illegally jeopardizing the property of American citizens in that the vessel seized was "under contract to deliver to the persons named in the invoices the merchandise therein specified, none of which is contraband of war."[13]

[Footnote 13: For. Rel., 1900, p. 530; Hopkins and Hopkins to Hay, Dec.

12, 1899.]

One portion of another shipment was on account of a Delagoa Bay firm, the other on account of a London one. With reference to the goods consigned to the latter firm the American shippers were unable to say what their ultimate destination might be, but in regard to the shipment to Delagoa Bay they were positive that the consignees were a firm doing a large local business in Lorenzo Marques. To the best of their knowledge it was a German firm whose members were not citizens either of the Transvaal or of the Orange Free State. They showed that the goods were sold on four months' time dating from November 3, and consequently that their loss would fall upon the original shippers, who were citizens of the United States. The fact was pointed out that additional merchandise amounting to five thousand dollars had been purchased for the Delagoa Bay firm, with a view to immediate shipment, but would have to be held up and probably lost because of a situation which amounted to a blockade declared by Great Britain over a neutral port, an act which in the end would compel all firms in Lorenzo Marques to cease buying American goods.[14]

[Footnote 14: For. Rel., 1900, pp. 530-533; Flint Eddy and Co. to Hopkins and Hopkins, Dec. 9, 1899, and Hopkins and Hopkins to Adee, Dec.

15, 1899.]

It was alleged by the captors that the ship's papers were not in proper form, and that besides the flour and other foodstuffs she carried a consignment of lubricating oil for the Netherlands South African Railway. This consignment was held to be enemy's property since it was considered that the railway belonged to the Transvaal, the specific charge against the ship being that of trading with the enemy. The fact that a consignment of flour was billed to a Lorenzo Marques firm but labelled "Z.A.R." created a conclusive presumption, it was thought, that the flour was intended for the Transvaal, although its owners claimed that the consignment was not destined for the belligerent Republic but for local consumption at Lorenzo Marques.[15]

[Footnote 15: For. Rel., 1900, pp. 538-539, 561.]

Both the cargo consigned to the Transvaal and the vessel herself were claimed as lawful prize. The cargo, it was contended, was unprotected since it was enemy's property, and the vessel, by trading with the enemy, had violated a regulation which rendered it confiscable. Against this it was urged that the consignees were hostile only by reason of domicile, and that neither the owners of the ship nor the captain had any intention to trade with the enemy. So far as intention was concerned, it was shown that the captain had intended to pa.s.s a bond at Algoa Bay, one of the ports of call, undertaking not to deliver the goods at Delagoa Bay without the permission of the proper authorities.

The three judges of the Supreme Court of Cape Colony sitting as a prize court came to different conclusions. The Chief Justice held that the cargo should be condemned but not the ship. One opinion was that neither ship nor cargo should be condemned; the third that both ship and cargo should be condemned. There were thus two justices to one for condemning the cargo and two to one against the condemnation of the ship. The cargo was consequently condemned and the ship released.[16]

[Footnote 16: Decision at Cape Town, March 13, 1900, reported in Cape Times, March 14, 1900.]

Different views were also held by the judges with reference to the condemnation of the goods aboard the _Mashona_. The Chief Justice held that the intention of the captain to alter the destination of the goods was sufficiently established to prevent their condemnation. The other justices dissented on this point. They held that the goods should be regarded in prize law as the property of residents of the Transvaal, and that such ownership did not seem possible of denial. In their opinion there was sufficient reason for condemning the goods since they were enemy's property captured on the high sea in a non-neutral ship.