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 Bülow 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 Bülow 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 Institute 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 "analogues" 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 classes of persons in the service of a belligerent. But mail

steamers may carry persons who pay for their passage in the usual way

and come on board as ordinary passengers, 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 assured restriction upon

belligerent interests, it is a right which neutrals are entitled 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 circumstances, 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 classed, 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 attitude 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 Japanese Government during the

Chino-Japanese 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 Japan that there were on board persons seeking

service with the Chinese Government and carrying a certain kind of

material intended to destroy Japanese ships.

Japan 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 Japanese 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 Japanese territory, being the

only port of call between Yokohama and Hongkong. It was shown by the

Japanese 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-Japanese 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 assertion 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. Japan 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 analogues 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 Japanese

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 attitude 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 analogue of

contraband, is a passenger 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 passenger 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 passengers 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

analogous 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 passengers 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 Japan 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 analogues 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.

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 Bülow 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

attitude which Germany had assumed 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 municipal

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 circumstances 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 documentary 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 circumstances 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 assist 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 municipal 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 cum 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 circumstances 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 nobody 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 pass 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.

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 analogous 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 pass 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 rebutted by the

conduct of all the parties interested in the ship. The claim for the

restitution 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 circumstances, 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 assortment 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 assigned in the official report of the English authorities

for their action in regard to the _Beatrice_ was that she "contained

large quantities of goods, principally 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 quantities 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 assigned 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 municipal law

asserted 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 municipal 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 circumstances. 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 circumstances, 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 circumstances 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 entitled to know in what manner the rights of the

United States were being asserted 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 entitled 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 constituents 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 pass

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 embarrassments 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 Constitution 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 Ambassador

Choate he said: "You will bring the matter to the attention of the

British Government and inquire as to the circumstances 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 restitution 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

constitute in a British vessel such a trading with the enemy as to bring

the vessel within the provisions of the municipal law."[33] He asserted

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

circumstances.[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 incumbent 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 municipal 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, constitute 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

entitled to full compensation for their damages.

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

Lord Salisbury in his reply attempted to correct what he considered the

misapprehension which underlay the statement of alternatives, namely,

that neutral and non-contraband goods were not free in British bottoms

between neutral ports, or else full compensation must be made to the

owners for their seizure. It was asserted that the British Government

had neither exercised nor claimed any such right as that which was

indicated, nor had they _seized_ neutral and non-contraband goods. He

declared that the goods were not seized. Their passage to Lorenzo

Marques was merely interrupted, and by this interruption they were

detained only to the extent that their being on board the ship which had

been arrested made their detention unavoidable. It was further alleged

that had the prize court held that the arrest of the ships was not

justified they would "_presumably_ have awarded damages against the

captors of the ships and the damages would _presumably_ have been so

calculated as to enable the ship to meet the claims of merchants arising

out of the unjustified interruption of the voyage."[40] The fact was

alleged that the court had not so held and that it appeared that the

ships should, therefore, bear the consequences of the arrest and meet

the merchants' claims. By the law of the flag under which the ships

sailed they could not carry goods destined for the enemy. If they

shipped such goods they should bear the consequences. Among those

consequences was the delaying of the goods until such time as they could

be placed on a ship that could legally carry them on to their original

port of destination.

[Footnote 40: For. Rel., 1900, p. 618; Salisbury to Choate, July 20,

1900.]

The result of such a decision is apparent. The American goods, in the

words of Mr. Hay, were "as inaccessible to their owners as if they had

been landed on a rock in mid-ocean," since no steamers not belonging to

British lines plied between the ports of Cape Colony and Delagoa Bay.

But there seemed little chance of securing a revision of Great Britain's

decision, which was based upon the principle that she might deal with

English subjects and with English ships in accordance with the law of

the flag under which those ships sailed. Mr. Hay, therefore, only

endeavored to secure every possible guarantee for American interests

involved, but incidentally emphasized the view that, although England

might use her own as she saw fit she must show just ground for all

injuries suffered by innocent American shippers. Instructions were sent

to Mr. Hollis, the United States consul at Lorenzo Marques, that he

should investigate the seizures and make every effort to protect the

property of American citizens, and later he was urged to ascertain the

facts concerning the detention of American flour on board the ships

arrested by Great Britain.[41]

[Footnote 41: For. Rel, 1900, p. 538; Hay to Hollis, Dec. 28, 1899.]

It soon developed that freight had been prepaid and that the drafts

drawn against the various shipments from New York would be protested for

non-payment by the parties on whom they had been drawn at Delagoa

Bay.[42] Consequently the title to the property in such cases was vested

in the American shippers, and they urged their Government to see that

their interests were protected against what they considered an undue

extension of belligerent rights against ordinary neutral trade from one

neutral port to another. Mr. Hay pointed out the obvious injustice of

the goods being in the prize courts with the vessel, even granting that

the ship as a common carrier of international commerce had violated the

law of its flag, on the remote possibility of having carried for the

enemy. He insisted that, although the shippers might be required to

furnish invoices and bills of lading, they should not be sent to the

prize court for their property. Lord Salisbury, however, contended that

the prize court had complete control of the situation, and that any

neutral shippers who were innocent could secure the release of their

goods only by applying to the court with the proper evidence of

ownership. The injustice of the vigorous enforcement of this rule of

prize law was obvious, and the demand was made that the goods should be

released by order of the proper British law officer and not be left to

the mercy of the prize court.[43] It was urged that since the ships had

been seized because of a violation of the municipal law of Great

Britain, for trading with the enemy, and since the seizure and detention

of the flour and other goods was only incidental to the seizure of the

ships, the flour, to which no such offense could be imputed, could not

under the circumstances be admitted to be subject to capture because not

contraband of war. Upon these grounds prompt restitution to the American

owners was demanded.[44]

[Footnote 42: For. Rel, 1900, p. 540; Toomey to Hay, Jan. 3, 1900.]

[Footnote 43: For. Rel, 1900, p. 543; Choate to Hay, Jan. 5, 1900.]

[Footnote 44: For. Rel., 1900, p. 543; Choate to Salisbury, Jan. 4,

1900.]

The view of the Department was that nothing seemed to justify the

seizure of the American goods, for to all intents and purposes they were

_seized_ although it was considered by Great Britain that they had

merely been _detained_ as an incident of the seizure of the ships on

which they were carried. Since the flour was sold delivered at Delagoa

Bay it was therefore the property of the United States shippers until

the obligation of delivery was fulfilled irrespective of the drafts made

against it on Delagoa Bay. Upon the return of these drafts unpaid the

flour was left in a critical position even if released.[45]

[Footnote 45: For. Rel., 1900, p. 548; Toomey to Hay, Jan. 10, 1900.]

It was clearly shown that the flour had been sold in the regular course

of business as for a number of years past, shipments being made of so

many bags each month to their regular users who anticipated their

ordinary requirements. The consignees, it was urged by the American

shippers, were reputable merchants in Delagoa Bay, and the consignments

were not of an unusual character but were a part of the ordinary

commerce with the East coast.[46] It was admitted that certain of the

consignments had been to residents of Johannesburg, but it was at the

same time asserted that the consignees were legitimate flour merchants

who were not contractors for the Transvaal Government at the time the

purchases were made.[47]

[Footnote 46: For. Rel., 1900, p. 567; Choate to Salisbury, Jan. 15,

1900.]

[Footnote 47: For. Rel., 1890, p. 584. Affidavit of A.J. Toomey,

President of the Penn. Milling and Export Co., Jan. 23, 1900.]

The Pennsylvania Milling and Export Company suggested that possibly

their shipments had been confused with those of an English firm, Collier

and Sons, of Bristol. It was alleged to be a notorious fact that this

firm had made large shipments of flour to the Transvaal Government; that

Arthur May and Company were the agents of the firm in the Republic, and

that the Bristol firm had shipped on the same steamers on which American

goods were carried. A.J. Toomey, President of the Pennsylvania firm, in

alleging these facts pointed out that he mentioned only what was well

known in shipping circles and did so merely to establish the fact that

there had been no wrong intent with reference to his shipments. He urged

that the question of the justice of indemnification should be settled,

leaving the respective rights of consignors or consignees to the

proceeds to be settled afterward.[48]

[Footnote 48: For. Rel., 1900, p. 589; Toomey to Hay, Feb. 12, 1900.]

Mr. Choate, in carrying out instructions received from Washington,

insisted that where the ship was seized and taken into port on the

charge of trading with the enemy, and where the flour was not held as

contraband, and was not claimed to be contraband, and under the

circumstances could not be involved in the specific charge against the

ship, it was manifestly a great hardship for the owners of the flour to

be compelled to go into the prize court at a port short of the original

destination even for the purpose of proving their ownership, which he

insisted would involve costs and damages for the detention and possible

deterioration in value.[49] It was intimated that aside from the

pecuniary features of the situation it was of primary importance to

insist upon the principles involved, with a view to preventing an

extension of belligerent rights to the detriment of all neutral commerce

in time of war. Emphasis was therefore placed upon the point that

evidence must be shown that the goods were really for the supply of the

enemy's forces and that this was in fact their destination at the time

of their seizure. The fact was pointed out that otherwise the action of

the British authorities seemed to imply the right to exercise an embargo

on the sale and delivery of non-contraband goods in the ordinary course

of trade with the people of the Republics. It was intimated that this

was inconsistent with the view of contraband expressed by the English

Government, and wholly inadmissible from the point of view of the United

States.[50]

[Footnote 49: For. Rel., 1900, p. 566; Choate to Salisbury, Jan. 13,

1900.]

[Footnote 50: For. Rel., 1900, p. 578; Choate to Salisbury, Jan. 29,

1900.]

The argument was presented that the British Government had seized flour

shipped to buyers at Delagoa Bay and had prevented it from reaching that

point in time to meet a good market. Consequently, in view of the fact

that it was not sold for any purposes hostile to Great Britain, it was

urged that the latter should not be allowed to consider herself relieved

of any responsibility for indemnity or direct loss assumed by the

shippers, or for any indirect loss for which the shippers might have to

compensate the buyers on account of the diversion and detention. It was

the opinion of the United States that the mere release of the flour to

qualified owners did not meet the obligation in the case because the

owners could not possibly take the delivery of the flour owing to the

obstacles of war at the points where the goods lay. Even if they could

do so they would naturally suffer considerable loss by the condition of

the market and by any diminution in value that might have occurred to

the flour through climatic deterioration.

The American State Department, therefore, suggested as the only

equitable plan apparent under the circumstances that Great Britain buy

the flour and other innocent goods at their invoice price and pay over

the proceeds of the purchases to those persons who could prove a just

claim for its value. An additional sum was also asked as "reasonable

compensation" for loss of market and other losses that might have been

suffered by American interests.[51] In other words, the English

Government should use the flour, pay the costs and indemnify the owners

reasonably, since the latter were entirely innocent and had depended

upon the usual rights and immunities of neutral shippers in time of war.

The fact was pointed out that the situation was causing an uncertainty

and hesitancy in business circles which was detrimental to all American

interests. Although a number of the consignments were being delivered at

Delagoa Bay, presumably by English ships, it was alleged that the

seizures and the unforeseen attitude of Great Britain had compelled all

later shipments to go by way of Hamburg or Bordeaux when seeking the

ports of South Africa in the way of ordinary neutral commerce in order

to avoid using British bottoms as a means of transportation. Many of the

drafts had been returned unpaid and others were expected in due course,

and whether paid or not they would finally have to be lifted by the

shippers from the United States, since they were the final recourse.[52]

All delay tended to reduce the value of the goods, which were

perishable, on account of the climate and because of Cape Colony duties

and loss of market.

[Footnote 51: For. Rel., 1900, p. 582; Toomey to Hay, Jan. 23, 1900.]

[Footnote 52: For. Rel., 1900, p. 540; Hay to Choate, Jan. 10, 1900.]

The offer was made by several of the American shippers to sell to Great

Britain for the value of the goods at the port of original destination

at the time they would have arrived there had the voyage not been

interrupted. And the American representative urged that it would be

advisable for all American shippers who were interested to agree to sell

upon the same terms with a view to securing an arrangement which would

include all neutral American property. He suggested that where the title

to property was doubtful both shipper and buyer might unite in the sale,

since this course was preferable to incurring questions as between

consignors and consignees in the prize courts.[53]

[Footnote 53: For. Rel., 1900, p. 551; Choate to Hay, Jan. 12, 1900.]

The English Government had naturally been unwilling to buy at current

prices for the reason that prices were doubled at Delagoa Bay after the

seizures, but it was considered that the price there on the day of the

seizures was not unreasonable. Great Britain was willing to buy, but

emphasized the point that the alleged owners must prove their title to

ownership beyond a doubt as an essential condition of the arrangement,

since the Government could not incur the risk of paying one man only to

have another appear later and prove that he was the real owner. Fears

were expressed that the question of ownership would cause trouble,

although the regular shipping documents by which the goods had gotten

into the ships, it was thought, should be sufficient proof provided the

joint consent of consignors and consignees could be secured.[54]

[Footnote 54: For. Rel., 1900, pp. 553, 554, 579]

The English view had been that the whole cargo was included in the libel

for trading with the enemy declared against the ship, but the plea of

the American owners was heard, that the rules of prize procedure should

not be so rigorously enforced in the present instances, since such an

interpretation would have led to obvious injustice by requiring innocent

American owners to appear before the court to prove the title to their

property.[55] Such a requirement, it was realized, would have led to

difficulties of an almost unsurmountable character under the

circumstances. Claimants would have had to submit evidence showing a

_bona fide_ American citizenship and an actual title to the ownership of

the goods at the time they were seized. Within the rules of prize

jurisdiction the consignee on whose account and at whose expense the

goods were shipped is considered the owner of such goods during the

voyage. And as a corollary the further rule is suggested that the right

to claim damages caused for an illegal seizure would be in the owner. In

the prize court the delay caused by all such questions as between

consignor and consignee would have been almost endless.

[Footnote 55: For. Rel., 1900, p. 579; Choate to Hay, Feb. 2, 1900.]

The question might naturally have arisen whether there could be any

basis for a claim for indirect loss sustained by an American shipper

growing out of the sale on credit to citizens of the Transvaal. It might

be a question, too, whether the consignor might, notwithstanding the

seizures, be able to recover at law the full contract price of the goods

shipped prepaid to the consignee, and if so, whether the seizure could

be considered legally as a wrong against the American consignor. And

even granting that the latter were unable to recover at law from the

consignee, the question would still remain whether under all the

circumstances such inability on the part of the American consignor could

be legally imputable to the act of the British Government in making the

seizure. The question might also have arisen where an agent had bought

for the Transvaal Government on credit, so that the title passed when

the goods went on board and the goods were discovered to have been

contraband, whether an American shipper might not appear to have been

privy to the real character of the purchases. In such a case the United

States Government could hardly have championed the cause of a party who

had shipped contraband. A prize court is filled with pitfalls of the

kind, but the diplomacy of Secretary Hay, backed by the prestige of the

United States and a reciprocal feeling of friendship between the two

nations, was able to avoid all such questions by inducing Great Britain

to agree upon a settlement without compelling the claimants to go into

the prize court. Although it was pretty well ascertained that no actual

contraband in the usual sense of the term had been carried from America

by the ships which were seized, difficult questions were thus avoided as

between liens and general ownerships which might have arisen had

American shippers been compelled to go into court.

It is not a universal rule where the shipper has not been paid for his

goods that the property is still in him, so as to constitute him the

owner in a prize court, or for the purposes of sale. By the terms of

sale and shipment he may not have retained a lien on the goods. But in

any case as a rule the title of the absolute owner prevails in a prize

court over the interests of a lien holder, whatever the equities between

consignor and consignee may be.[56] Consequently the policy adopted by

Secretary Hay in demanding that Great Britain should settle with all

American shippers on an equitable basis without forcing them to take

their chances in a prize court was the wisest course that could have

been pursued.

[Footnote 56: The _Winnifred_, Blatch. Prize Cases, 2, cited 2 Halleck,

International Law, Engl. Ed. (1893), 392.]

In the final arrangement Great Britain admitted that the American goods

had not been liable to seizure except as a result of the libel attaching

to the ships. But any claims for damages due to the owners of the

cargoes on account of the failure of the vessels to deliver at the port

mentioned in the freight contract, it was asserted, should be made

against those who entered into or became responsible for the execution

of the contract for the delivery which they failed to perform, and the

assumption that such damages could be sustained at law would depend on

the terms of the contract of carriage. The English Government, however,

did not admit that it was in any way liable for damages to the owners of

the flour and other goods, since their detention was due entirely to the

circumstance that the ships were not able to complete their voyages, and

the fact that they could not complete their voyages was due to the

circumstance that such voyages were illegal by the law of the flag under

which they were sailing.[57]

[Footnote 57: For. Rel., 1900, pp. 604-605; Salisbury to Choate, March

3, 1900.]

Although the financial settlement which Great Britain was willing to

make was accepted by the United States, this acceptance did not imply an

acquiescence in the view expressed by the English Government with

reference to the conditions under which flour and other foodstuffs might

become contraband of war, nor in the doctrine of continuous voyages as

applied by Great Britain to trading with the enemy. It was preferred at

Washington to follow the usual rule and avoid passing upon hypothetical

cases until occasion had called them into actual existence. The problem

which had been before the Department of State was, not to force Great

Britain to declare herself finally upon broad questions of international

law, nor to express the final attitude of the United States upon

questions which were not immediately at issue, but to meet the demands

of American shippers and secure their immediate interests by some

equitable agreement with Great Britain. The arrangement agreed upon,

therefore, met only the necessity of the case immediately in view. The

United States Consul-General at Cape Town was to arrange with Sir Alfred

Milner, the British High Commissioner in South Africa, for the release

or purchase by the British Government of any goods owned by citizens of

the United States, which, if purchased, were to be paid for at the price

they would have brought at the port of destination at the time they

would have arrived there had the voyage not been interrupted.

Against certain articles, especially the oil consigned to the

Netherlands South African Railway, an allegation of enemy's property was

justly made and the oil confiscated.

In the end most of the American claims were withdrawn or paid in full.

In the former event the American owners threw the burden of proof of

ownership upon the consignees, who were instructed to present their

claims through their respective governments. But it should be noted that

in acceding to the American demands by purchasing the goods, the British

Government emphasized the fact that the act was purely _ex gratia_ on

the part of England. The British representative clearly stated that the

goods had been legally detained and that it was open for the owners to

come and take them upon proof of ownership before the prize court. It

was pointed out that the fact that none but British ships ran between

Cape Colony and Delagoa Bay, although an unfortunate circumstance, was

one which could hardly be held to be a fault of the English Government.

The enforcement of the English law was the right of Great Britain no

matter upon whom the inconvenience might happen to fall. Lord Salisbury

said: "It must be distinctly understood that these payments are made

purely _ex gratia_ and having regard to the special circumstances of

this particular case. No liability is admitted by Her Majesty's

Government either to purchase the goods or to compensate ... for the

losses or for the expenses ... incurred."[58] The view held by the

English statesman was that Great Britain's concession in these cases

should not serve as a precedent in the future.

[Footnote 58: For. Rel., 1900, p. 618; Salisbury to Choate, July 20,

1900, with reference to the _Beatrice_.]

The attitude which Great Britain had assumed with reference to the

different seizures was generally considered a menace to neutral

commercial interests should the British position be accepted as a

precedent for similar cases that might occur. The danger of such a

precedent had been realized by Secretary Hay and throughout the

negotiations he had dwelt upon the fact that while the protection of

American interests was the end immediately sought, the principles which

underlay the disposition of the particular cases were of the greater

importance.

Lord Roseberry, too, called attention to the danger of the precedent

should England determine to treat foodstuffs in general as contraband of

war. It was pointed out, however, that in the seizures of foodstuffs

near Delagoa Bay the question of contraband did not necessarily arise,

since all trade with the enemy, even in articles the most innocent, was

forbidden under heavy penalty. The seizure of certain classes of

foodstuffs as of a contraband character did not of necessity involve the

principle of treating all foodstuffs as contraband of war. The English

view was that it had long been recognized that a belligerent might

discriminate between foodstuffs obviously intended for the commissariat

of an army in the field and foodstuffs which might be properly imported

for the use of the non-combatant population.

The consensus of opinion, however, seems to be that while there may be

reasonable ground for including tinned or canned meats and the like in

the former category, flour naturally belongs to the latter class, and it

has been pointed out that neither the British Government nor any other

has the power of treating what it pleases as contraband without

reference to the prize court, with which alone the decision rests. The

prize courts of all countries have held at different times that

foodstuffs under certain circumstances are contraband, as, for instance,

where they are intended for the supply of a belligerent garrison as well

as in less obvious cases, but any decision which considered foodstuffs

generally as contraband would be disquieting to all neutral interests.

One writer has asserted that such an innovation would not be alarming to

Great Britain as long as she remained predominant at sea, since the more

effectual her sea power were declared to be in preventing sustenance

from going over sea to her enemy the better it would be for English

predominance. It is believed by this writer that during the existence of

this supremacy at sea she would be able to protect the passage of

general foodstuffs from foreign countries to her own ports. He

concludes, however: "Of course if we lose our predominance at sea it is

another matter. But then, è finita la Musica."[59]

[Footnote 59: Thos. Gibson Bowles, Jan. 4, 1900. For. Rel., 1900, p.

546.]

The acceptance of the principle that foodstuffs are contraband of war,

it need hardly be said, is not even a remote probability except under

very exceptional circumstances where they are for the immediate supply

of the enemy's army or navy, and in most cases of this kind they can

usually be confiscated as enemy's property without a direct implication

of a distinctly contraband character. In other words, the use for which

they are intended may give reasonable ground for the conclusive

presumption that they are for the enemy's immediate supply, whether the

title to property in them vests in the enemy or in some other agency,

and the last question is always to be decided by the prize court of the

particular country which has made the seizure. The decision should be

based upon a careful examination of the evidence which is submitted to

the court, and not presumed from the fact that the political power has

exercised the belligerent right of visit, search and detention. The

final decision of confiscation rests with the prize court.

By way of recapitulation it may be pointed out that the goods seized or

detained by the English authorities in South African waters were shipped

by American merchants and manufacturers, many of them on regular monthly

orders to alleged reputable merchants in Lorenzo Marques, Delagoa Bay,

in Portuguese territory. Certain consignments were intended for alleged

reputable firms in Johannesburg, South African Republic. The articles

composing the cargoes of the ships were of the general character of

foodstuffs, chiefly flour, canned meats, and other food materials.

Lumber, hardware and various miscellaneous articles generally considered

innocent in character were also included. There was a consignment of

lubricating oil to the Netherlands South African Railway, the latter

company held to be the property of the Transvaal Government, and a like

consignment to the Lorenzo Marques Railway, a Portuguese concern. At

first the seizures which occurred at points between Cape Colony and

Delagoa Bay were supposed to have been made on account of contraband.

Later Great Britain declared that the ships had been seized because of

the violation of a municipal ordinance forbidding British subjects to

trade with the enemy. The _Mashona, Beatrice_ and _Sabine_ were British

ships sailing under the English flag. The _Maria_ was a Dutch vessel

sailing under the flag of Holland, but was supposed by the English

authorities to have been under charter to an English firm. In the latter

case the ship would have been liable to the English law, but for the

mistake the owners of the ship as well as the owners of the cargo were

indemnified by the English Government. The seizure of the cargoes of the

British ships was declared to have been merely an unavoidable incident

of the seizure of the alleged guilty ships. Compensation was made to

American shippers by the purchase of the goods. The consignment of oil

to the Netherlands South African Railway was confiscated as enemy's

property.

The views of Great Britain and the United States were divergent with

reference to the principle of treating foodstuffs as contraband. Rather

as an _obiter dictum_ the former declared: "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 the seizure."[60]

[Footnote 60: For. Rel., 1900, p. 555.]

The United States declared that the validity of the right to seize goods

on the ground of contraband could not be recognized "under any

belligerent right of capture of provisions and other goods shipped by

American citizens in the ordinary course of trade to a neutral

port."[61]

[Footnote 61: For. Rel., 1900, p. 540.]

England declared: "Her Majesty's Government have not admitted liability

in respect of any claims for loss or damage sustained ... in

consequence of the delay in the delivery of the ... goods. But they

have offered to purchase the flour on board by United States citizens.

Claims for redress for the non-delivery of the cargo appear to be a

matter for settlement between such claimants and the ship which

undertook to deliver. British subjects who owned goods on board, having

no right to trade with the enemy, are not in the same position as

foreign owners. The latter are not guilty of any offense in trading with

the enemy from a neutral country unless the goods are contraband and are

found on board a British ship in British territorial waters or on the

high seas, _and are destined for the enemy's countries_."[62]

[Footnote 62: Mr. Broderick, Under-Secretary for Foreign Affairs,

speaking in House of Commons in regard to the _Mashona_ on March 19,

1900.]

With reference to trading with the enemy Great Britain attempted to

extend the accepted doctrine of continuous voyages. She expressed

herself as follows: "An ultimate destination to citizens of the

Transvaal even of goods consigned to British ports on the way thither,

might, if viewed as one "continuous voyage" be held to constitute in a

British vessel such a "trading with the enemy" as to bring the vessel

within the provisions of the municipal law."[63]

[Footnote 63: For. Rel., 1900, p. 609.]

The United States held that "the destination of the vessel being only

such [British] ports ... the port authorities may presumably, and are

assumed to be bound to, prevent transshipment through British territory

of contraband destined for the Boers."[64]

[Footnote 64: For. Rel., 1900, p. 594.]

No contraband was shown, and the attempt which Great Britain made to

extend the ruling of the Supreme Court of the United States in 1863 so

as to apply to trading with the enemy cannot be considered to have been

successful. The questions of international law involved in the seizures

of flour and foodstuffs generally were not answered by the final

arrangement between the Governments concerned. In his Message to

Congress in 1900 President McKinley deplored the fact that while the war

had introduced important questions the result had not been a "broad

settlement of the question of a neutral's right to send goods not

contraband _per se_ to a neutral port adjacent to a belligerent area."

Two things, however, were apparently admitted: (1) that a belligerent

may declare flour contraband _pro hac vice_; (2) that a belligerent may

detain neutral goods and divert them from their destination on a

reasonable suspicion that they are intended for the enemy, subject to a

claim for compensation including damage by detention.