Neutral Rights and Obligations in the Anglo-Boer War Part 4

The efficiency of Portugal's performance of neutral duties varied during the war. As early as August 25, before negotiations had been broken off between the Transvaal and Great Britain, the Portuguese Governor at Lorenzo Marques refused to permit two cargoes of Mauser ammunition to land because it was consigned to the Transvaal. The ammunition was transferred to a Portuguese troop ship, and the Governor a.s.signed as sufficient reason for his action the fact that Great Britain had urged the measure upon the Portuguese authorities. He stated that orders had been received from Lisbon that guns and ammunition for the Transvaal should not be landed until further notice from the Portuguese Government. The Transvaal strongly protested against this act as a breach of a treaty between the two Governments in which by Article VI the Portuguese Government was prohibited from stopping ammunition intended for the Transvaal, but upon representations by England might stop ammunition on its way to any English colony. The opinion in the Transvaal was that the act on the part of Portugal and Great Britain const.i.tuted an act of war, in that peaceable negotiations were still pending, a view which seems fully warranted since Portugal possessed no right to treat any traffic as contraband before war had begun. A pet.i.tion was circulated at Pretoria advising the Government to discontinue negotiations pending with England looking to a peaceful settlement of the issues between the two Governments. Although this step was not taken, the protestations made by the Transvaal seem to have had their effect upon the Portuguese authorities, for upon the outbreak of war the banks at Lorenzo Marques continued to accept Transvaal coin, and after the first flurry caused by the transition from peace to war the Transvaal notes were accepted at their face value.

By the middle of December the English Government had begun to view the condition of affairs at the port of Delagoa Bay and the town of Lorenzo Marques with grave dissatisfaction. It was publicly alleged that Lorenzo Marques was nothing more nor less than a base from which the Transvaal obtained everything that it needed. Further than this, it was declared that the town was the headquarters of Transvaal agents of every description who were in daily communication with their Government and with Europe. The English authorities felt themselves helpless to prevent the importation of machinery and other material required for the mines which were worked by the Transvaal Government. Even explosives for the government factory and actual ammunition reached the Transvaal by way of Lorenzo Marques because of the inability of the English cruisers to make a thorough search of foreign vessels bound for a neutral port and professedly carrying foodstuffs. British shippers alleged that while they were prohibited from trading with the enemy foreign shippers were reaping the profits and materially aiding in the prolongation of the war.

It later developed that the apparent neglect on the part of Portugal to observe a strict watch over the character of goods allowed to pa.s.s through to the Transvaal was not entirely due to the governmental att.i.tude at Lisbon. It seems that the Dutch consul at Lorenzo Marques had taken over in the way of friendly offices the interests of the Orange Free State as well as those of the Transvaal. It was also ascertained that the consul of Holland was the manager of the local agencies for a number of steamboat companies, among them the Castle Packet Company, the African Boating Company, the British India, and the British and Colonial Steam Navigation Company. Only one English company had put patriotism before profit and transferred its agency from the Dutch consul upon the outbreak of war.

The British Government was also handicapped by the fact that local British banks accepted the drafts issued by the Transvaal and Orange Free State. The Transvaal dies of 1899 and 1900 had been seized by the English, but despite this fact the coins issued with the date of the dies of 1897 and 1898 were freely used by the local English banks.[8]

This unpatriotic action on the part of British subjects controlling the banks made easy the work of the Boer forwarding agents; it was alleged, and the fact seemed pretty well authenticated, that the Dutch consul, Mr. Pott, facilitated this work by allowing contraband to be landed at night. Such articles thrown into half-laden trucks upon the railway often reached the Transvaal without detection. Cases labelled "candles"

were hoisted in without pretense of examination. It was alleged also that guns and fifty tons of sh.e.l.ls had been landed in December under the very noses of two British warships, and that wholesale smuggling was going on with the connivance of a nominally neutral consular agent.

[Footnote 8: London Times, Weekly Ed., Jan. 12, 1899, p. 20, col. 4.]

Under the protests of the British Government, however, orders arrived from Lisbon which revived an old law requiring all persons leaving Portuguese territory to obtain pa.s.sports signed by the Governor-general.

The applicants were required to give guarantees through their respective consuls that they were not going to the Transvaal for the purpose of enlisting. The Portuguese authorities took the matter in hand, and persons attempting to go without pa.s.sports were promptly sent back. The customs authorities began a stricter watch over the Transvaal imports, and on January 19 seized as contraband three cases of signalling apparatus consigned to Pretoria.[9]

[Footnote 9: London Times, Weekly Ed., Jan. 19, 1900, p. 36, col. 3.]

It was claimed, however, that of the imports of 30,500 to Delagoa Bay during December there had been forwarded to the Transvaal goods valued at not less than 21,000. And it seemed evident to England, despite the more stringent port regulations, that the number of foreigners daily entering the Transvaal by way of Lorenzo Marques was far in excess of the number which would be desirous of going to Pretoria for peaceful purposes. Mr. Pott, it was still alleged, was acting as the head of a Boer organization for facilitating the entrance of men desiring to enlist with the Boer forces. He was consequently cautioned in January by the Portuguese Governor that if he recruited for the Boer forces or was detected doing anything inconsistent with the neutral obligations of Portugal, a request would be made to the Netherlands Government to have him transferred to another field. The Portuguese authorities at the same time began a closer supervision of the persons who were allowed to enter the Transvaal from Portuguese territory. The previous restriction that pa.s.sports be signed by the respective consuls of persons leaving for Transvaal territory was considered insufficient, and the consuls of the different countries represented at Lorenzo Marques were informed that they must personally guarantee that the applicants whom they endorsed were not military men, and were not proceeding to a.s.sist the Boer forces in the field.

These restrictions, while giving evidence of Portugal's efforts to see that the neutrality of the port was respected, did not satisfy the English authorities. The latter still alleged that no doubt existed as to the fact that Lorenzo Marques was being used by Boer agents as a recruiting station for the Transvaal forces. It was a.s.serted that large numbers of "men of military stamp" landed daily at Lorenzo Marques from all parts of Europe, and were allowed to proceed to the Transvaal for the purpose of either actually enlisting with the Boers or working the government mines. It was alleged, too, that a number of these newcomers were "smart looking men," evidently officers. The majority, however, were of a low cla.s.s, mostly penniless adventurers. On February 2 the report was made to the English authorities that twenty of the better sort, many wearing riding boots and carrying field gla.s.ses, had left Lorenzo Marques for the Transvaal, and as tending to throw suspicion upon the purpose of their journey, a Transvaal detective was "most a.s.siduous" in his attentions to them.[10] The influence of the consul of Holland largely defeated all efforts to stop entirely the imperfect fulfillment of the duties of neutrality inc.u.mbent upon the port.

[Footnote 10: London Times, Weekly Ed., Feb. 5, 1900, p. 84, col. 2.]

At other places any attempts to convey prohibited goods into the Transvaal were summarily stopped. Arms and ammunition which the Boers attempted to land at Inhambane were seized by the Portuguese customs authorities on the ground that they were consigned under a false description. The consignment was not a large one and the attempt was evidently made as an experiment. This incident, too, indicates the extremity to which the Transvaal authorities had been reduced by the increased watchfulness at Lorenzo Marques, for the distance from the port of Inhambane to the Transvaal could be covered only by native carriers and required fourteen days for the trip. The difficulties in evading the customs surveillance at Lorenzo Marques had also been increased by the fact that most of the steamship companies which had at first employed the Dutch consul as their agent had later relieved him of this duty. But, notwithstanding the continued protests by England, the Hague Government seemed reluctant to take any official notice of the evident partiality of its consular agent. With reference to the English protests the Administration took the view that while acting as the representative of the Transvaal and Orange Free State during the war Mr.

Pott was only fulfilling the duties inc.u.mbent upon him in this triple capacity.

As the war progressed, although the administration of the customs at Lorenzo Marques was made more efficient, this improvement was inversely proportional to the successes of the Boer forces in the field. Under the circ.u.mstances it was almost impossible for England to prove that actual governmental support had been given to any scheme for augmenting the military forces of the Transvaal, but the whole manipulation of the customs seemed to be controlled by a weak administration not too scrupulous in seeing that an impartial view was taken of the situation.

The failure of the Boers to attain their ends in the field did more to improve the efficiency of the administration of the customs than the protests of England. It seems unquestionable that the resources of the Transvaal had induced the Portuguese authorities at Lorenzo Marques to display toward the Boers an att.i.tude which, according to obsolete ideas, was termed benevolent neutrality. But as the Boer hopes declined the Portuguese authorities increased their vigilance, and in the end went as far in favor of England as they had previously gone in their benevolent att.i.tude to the Republics. Pa.s.sengers arriving by German and other steamers were refused pa.s.sports upon the instance of the British consul where there was a strong suspicion that they were entering the Transvaal for purposes hostile to Great Britain.

Portugal, too, refused to accept the offer of the Transvaal to advance the amount required of the Lisbon Government by the Beirne Arbitration Award.[11] The Portuguese Government, in courteously declining the offer, stated that the amount had already been provided. Great Britain, who already held a preemptive t.i.tle to Delagoa Bay, was also ready to advance the money, but was denied this privilege by Portugal.

[Footnote 11: London Times, Weekly Ed., April 20, 1900, p. 244, col. 2.]

By August, 1900, it had become evident that the Boer hopes of bringing the war to any sort of favorable conclusion were doomed to failure. On August 4 all the customs officials at Lorenzo Marques were dismissed and their places filled by military officers, and a force of twelve hundred men was sent out from Lisbon two days later. The Portuguese frontier was put under a strong guard and all Boer refugees who arrived were summoned before the Governor and warned against carrying on any communications with the Transvaal Government or with the Boer forces still in the field. Notice was given them that if they were detected in such transactions they would be sent out of Portuguese territory and the right of asylum denied them. And in the further performance of her neutral duties at such a time Portugal a.s.sumed an entirely correct att.i.tude.

In September three thousand Boers evacuated their position along the frontier and surrendered to the Portuguese Governor. They were lodged in the barracks at Lorenzo Marques and later, to prevent any disturbance in the town that might be caused by their presence, were removed to the Portuguese transports lying in the harbor. The Governor gave notice to the English commander who had occupied the position evacuated by the Boers that all the Transvaal troops which had surrendered were being guarded and would not be allowed to rejoin the Boer forces still in the field. A number of the refugees agreed to surrender to the British commander as prisoners of war upon the stipulation that they would not be sent out of the country, and thus better terms were obtained than by those captured in the field. Others who surrendered to Portugal were transported by Portuguese ships to Lisbon, land being a.s.signed them in the country where they were given permission to settle.

In other respects, also, during the later phases of actual warfare, Portugal maintained a correct att.i.tude. Especially was this att.i.tude noticeable with reference to the investigation of the conduct of the Dutch consul at Lorenzo Marques. In spite of the protests of Great Britain and of Portugal as to his unneutral att.i.tude he had been continued in his position. But on December 7, 1900, the strain to which the relations between the two Governments had been put reached the breaking point. The Dutch Minister, Dr. Van Weede, withdrew from Lisbon and at the same time the Portuguese Minister at the Hague, Count de Selin, returned to Lisbon.

The reason for this technical breaking off of friendly relations was explained on December 11. A member of the Second Chamber at the Hague, M. Van Bylandt, questioned the Minister for Foreign Affairs as to the cause of the difficulties between the two Governments. M. Beaufort, in his explanation of the situation, stated that as early as November 17, 1899, the Dutch Government had been informed that it would be necessary for the Lisbon authorities to cancel the exequatur of Mr. Pott as consul at Lorenzo Marques. This cancellation of the agent's credentials, it was alleged, was deemed necessary on account of irregularities with reference to the transshipment of contraband of war from Lorenzo Marques to the Transvaal. It was further represented to the Dutch Government that the consul under suspension had made an improper use of his position as the acting consular agent for the Free State and the Transvaal; he had taken advantage of the consular privileges accorded him at Lorenzo Marques as the representative of a neutral Power at a neutral port; the courteous communications made by the Portuguese Government prior to the final withdrawal of his exequatur had not received from the Hague Government the attention they deserved; every opportunity had been given the Dutch Government to take the initiative in the matter by merely recalling their agent, but this step had not been taken.

M. Beaufort admitted that this had been the att.i.tude of the Portuguese Government, but a.s.serted that he had not cared to suspend Mr. Pott without an inquiry, and for this purpose had merely granted him leave of absence for three months. This action, he said, had not been favorably received in Lisbon, and he had therefore thought it necessary to warn the Portuguese Government that the withdrawal of the consul's exequatur would be considered an unfriendly act. But notwithstanding the warning, the consul's credentials had been cancelled by the Lisbon Government. As a consequence of this act M. Beaufort had requested the Dutch Minister at Lisbon to come to the Hague that he might take part in a personal interview with the consul under suspension. Later, M. Beaufort stated that the specific incidents upon which Mr. Pott's conduct had been arraigned were the illegal importation of heliographic apparatus for the Transvaal artillery and a wrongful grant of pa.s.sports in his dual capacity as consular agent for Holland and the Republics.[12]

[Footnote 12: London Times, March 1, 1900, p. 5, col. 3.]

In the end diplomatic relations were resumed between the two Governments. Holland, after an investigation of the charges against her consul, acquiesced in the action of the Lisbon Government. But the incident served to demonstrate the fact that the Government at Lisbon was aware of the inefficient manner in which the duties of neutrality had been enforced at Lorenzo Marques by the port administration.

From this time on to the close of the war the Portuguese Government displayed greater care in a.s.serting the neutral character of the port.

By placing the town under military supervision this purpose was more surely attained, and the only other charge made against Portugal for the failure to perform a neutral duty came from the Transvaal Government, an allegation of a more serious character than any that had been advanced by the English Government. The grounds upon which Portugal granted a privilege of war to one of the belligerents under protest from the other have not been made so clear as the reasons which led to her apparent dereliction of duty at Lorenzo Marques. This incident placed the Portuguese Government in an unfavorable light with regard to its duty in the full and impartial performance of the obligation of neutrality.

British troops were allowed to pa.s.s across Portuguese territory in order to reach belligerent British territory commanding the Transvaal position on the north. From Rhodesia, the nominal objective point in this movement of troops, the Transvaal might be conveniently invaded from the north, as it was already attacked on the south.

Early in the war the British South Africa Company, a chartered company which was responsible for the administration of the Rhodesian Government, became apprehensive as to the fate of this section of the country should the Boers decide to invade it. Troops had been raised in Rhodesia for the war but were employed outside the colony. It was a.s.serted that this fact had left the province in such an unprotected state that, aside from the fear of a Boer invasion, a Kaffir uprising was imminent.

Mr. Chamberlain had refused to send forces into Rhodesia in December upon the ground that troops could not be spared. But it was finally arranged to send five thousand mounted men, some of them to be enlisted in Rhodesia and all of them to be furnished outside of England. Before the end of January, 1899, a commander had been appointed from the English army, and it was expected that the forces would be upon the borders of Bechua.n.a.land by the end of May.

Difficulty at once arose with reference to the right of pa.s.sage of these troops, military stores, and in fact a full equipment for warlike purposes. There was not much choice of routes. Those through the Transvaal and through Bechua.n.a.land were closed. The only route left was through the port of Beira. This course necessitated the pa.s.sage of belligerent troops across two hundred miles of neutral territory controlled by Portugal as territorial sovereign. Beira, situated about four hundred and fifty miles north of Lorenzo Marques, bears nearly the same relation topographically to British Mashonaland and to British Rhodesia that Delagoa Bay does to the Transvaal and the Orange Free State. A railway nearing completion formed an almost continuous route from Beira to Salisbury in Rhodesia, and once in the latter province troops would be in a position to invade the Transvaal.

Under ordinary circ.u.mstances it would have been a distinct breach of neutrality on the part of Portugal to allow the pa.s.sage across her territory of the troops of one of the belligerents, since the obvious destination could only be the country of the other belligerent, with whom she was on friendly terms. Portugal had granted to England in 1896 the right of pa.s.sage for a field force to be used against the natives in Mashonaland.[13] But that was a case of warfare against a savage tribe, and was not to be considered as a reliable precedent for similar action against a civilized State such as the South African Republic.

[Footnote 13: Times Military History of the War in South Africa, Vol. IV p. 365]

The principles of the international law of modern times leave little or no doubt as to the proper course for a neutral to follow in such a case.

Oppenheim says: "In contradistinction to the practice of the eighteenth century, it is now generally recognized that a violation of the duty of impartiality is involved when a neutral allows a belligerent the pa.s.sage of troops or the transport of war material over his territory. And it matters not whether a neutral give such permission to one of the belligerents only, or to both alike."[14] And Lawrence points out that "It is now acknowledged almost universally that a neutral state which permits the pa.s.sage of any part of a belligerent army through its territory is acting in such a partial manner as to draw down upon itself just reprobation." The permission given of necessity "to further a warlike end" is "therefore inconsistent with the fundamental principle of state neutrality." "These considerations," he says, "have influenced practice during the present century, and the weight of modern precedent is against the grant of pa.s.sage in any case."[15]

[Footnote 14: International Law (1906), Vol. II, p. 345]

[Footnote 15: Principles of International Law, p. 526. The older writers differed from this view. Grotius maintained the right of pa.s.sage, even by force; Vattel practically agreed with Grotius that it might be taken by force, but contended that it should be asked and force used only under extreme necessity, or when the refusal was unjust; Wheaton denied that the right of pa.s.sage was a "perfect right" and consequently could not be enforced against the will of the neutral; Hall, International Law (1880), --219, points out that more recent writers take an opposite view, namely, that a grant of pa.s.sage is incapable of impartial distribution.

See also Wheaton, International Law, --427; Vattel, Droit des gens, III, --110; Calvo, Droit international, 3d Ed., III, ----2344-2347.]

Mr. Baty, who has made a careful study of the precedents upon the subject, states that while "writers vary in their treatment of the question" of the pa.s.sage of troops over neutral territory, "the modern authorities are all one way."[16] He points out that the jurists of the first half of the nineteenth century, with the possible exception of Kluber, were "unanimous in following" Grotius and Vattel, and allowing neutrals to permit belligerents pa.s.sage as long as they did it impartially. But since the middle of the century a total and violent change in the opinion of authors has operated. Every modern author holds that pa.s.sage is now a benefit which must be refused absolutely, and not offered impartially.[17]

[Footnote 16: International Law in South Africa, p. 71.]

[Footnote 17: Ibid., p. 73.]

[Footnote 18: Times Military History of the War in South Africa, Vol.

IV, p. 369]

In February the Transvaal Government had attempted to bring troops into Rhodesia by way of Portuguese territory. Portugal had promptly sent out forces to prevent such an evasion of Portuguese neutrality and had guarded the railway bridges along the line to Rhodesia. And in March Great Britain had met with a refusal to allow a large quant.i.ty of foodstuffs, mules, and wagons to be landed at Beira for the purpose of transportation to Rhodesia. Nevertheless, on April 9, General Sir Frederick Carrington landed at Cape Town under orders to proceed immediately to Beira.[18] He was to use transports put at his disposal by his government for the purpose of collecting a full equipment for his command of five thousand men to be mobilized at Beira, and from that port was to enter Rhodesia. This province was then to be made the base for an expedition against Pretoria in concert with the English forces advancing from the south.

It is undoubted that the laws of neutrality demanded of Portugal not only an impartial treatment of both belligerents, as the earlier writers held, but an absolute prohibition against such a warlike expedition by either of them, as unanimously held by all the more recent authorities.

At the time English public expression contended that absolute equality of neutrality was not inc.u.mbent upon independent States in the performance of their neutral duties. English writers spoke of a "benevolent neutrality" as possible, and cited such cases as that in 1877, when Roumania, before taking an active part in the war against Turkey, permitted Russian troops to march through her territory; and the incident which occurred during the Neuchatel Royalist insurrection in 1856 when the Prussian Government requested permission to march through Wurtemberg and Baden "without any idea of asking those states to abandon their neutrality, or a.s.sist Prussia against Switzerland."

It was alleged upon the authority of such precedents that the privilege of pa.s.sage for troops might be granted by Portugal to England without a breach of neutrality really occurring. Portugal would be merely giving her neutrality a benevolent character towards one of the belligerents, which it was a.s.serted she was perfectly ent.i.tled to do, a view of the situation which is too obsolete in the light of modern times to need criticism. Although public opinion throughout Europe is usually hostile to England when she is at war, the general condemnation of the proposed use of neutral territory seems therefore to have been well founded in this particular case.

The Cabinet at Paris refused to entertain any question or debate on the proposed pa.s.sage of English troops through Portuguese territory. On April 11, however, a discussion of the subject occurred in the Chamber of Deputies in which two interpellations were announced by the President. One of these questioned the Government as to what steps had been taken to protect French interests in Mozambique; the other had reference to the proposed pa.s.sage of English troops inland from Beira.

M. Delca.s.se said that the Chamber did not feel that the Government should discuss a current question of international law, but he pointed out the fact that France with the other Great Powers had declared her neutrality at the beginning of hostilities. He added, however, that it was not the part of France to guarantee the neutrality of others. One member a.s.serted that the proposed act would be a distinct violation of her neutral duties by Portugal. Another declared that Europe, by concerted action, should prevent such a flagrant violation of neutrality during a war in which a small nation was already contending against great odds; that France, surrounded by neutral nations, could not afford to see such a precedent established and should appeal to Europe to join with her in protesting.

Although such concerted action as was proposed by the different members was improbable, and although the proposals may have been dictated by the usual French bias in situations where English interests are at stake, these opinions indicate pretty well the real sentiment in Europe at the time.

The Transvaal Government formally notified Portugal that the pa.s.sage of British troops and munitions of war through Beira would be considered in the Transvaal as tantamount to hostile action. Nevertheless, on May 1, the Chamber of Deputies at Lisbon rejected an interpellation made by one of its members to question the action of the Government with reference to the privilege which Great Britain sought. The Minister for Foreign Affairs, however, stated that the Transvaal Government had not ordered the Portuguese consul to leave Pretoria. He denied emphatically that any incident whatever had followed Portugal's notification to the Transvaal.

When further interrogated, the Minister declared that the English troops had been granted permission to use the railway inland from Beira upon the plea of treaty rights already possessed by Great Britain. No power, he a.s.serted, had protested except the South African Republic. It was promised that the Government would later justify its action in granting the permission by producing the doc.u.ments showing the right of England to the privilege, but it was not considered convenient at that time to discuss the question.[19]

[Footnote 19: London Times, April 21, 1900, p. 7, col. 3.]

The protest of the Transvaal against the alleged breach of neutrality on the part of Portugal was without effect, and this was the only means the Republic had of declaring itself. To have entered upon hostile action against Portugal at that time would have had only one result, the stoppage of all communication with the outside world by way of Delagoa Bay. The British forces were sent into Rhodesia, and though the subsequent part they played in the war was not important the purpose of the expedition was admitted. It was to cut off any possibility of a retreat northward into British territory by the Boer forces which were being driven back by the English advance upon Pretoria. The British military plan was that General Carrington should march with his forces and reach Pretoria from the north at the same time that General Roberts reached that point from the south.[20] Thus, the end for which the troops were to be used was not to quell an insurrection of the natives in Rhodesia, as was alleged, but to incorporate the expedition into the regular campaign of the war against the Republics. This being the case, the contractual grounds upon which the English Government claimed the right of pa.s.sage should have been beyond question in order to furnish a justification for Portugal or for England in what is viewed by international law writers of the present day as a distinct breach of neutrality. When the expedition was sent out the statement was made that England was merely availing herself of existing treaty rights, but it was felt necessary to add that the action was not illegal as was that of the Boers in making Delagoa Bay their virtual base earlier in the war.

And on May 31, in legalizing the proceeding, the Cabinet at Lisbon also felt impelled to say that the Portuguese Government had not become an instrument of British ambition; that it was not a question of putting into execution in the territory of Mozambique conventions recently concluded with England, but merely of profiting by stipulations agreed upon in the treaty of 1891 between Great Britain and Portugal. President Kruger was, therefore, informed that the legality of the incident was not to be questioned at Pretoria.

[Footnote 20: Times Military History, Vol. IV, p. 364 ff.]