Neutral Rights and Obligations in the Anglo-Boer War Part 7

THE GENERAL.--On the fourth of January the senior naval officer at Aden had reported to the English admiralty that the German vessel _General_, another East African mail steamer, was under detention there upon strong suspicion and was being searched.[19] The German Government at once entered a strong protest and demanded in rather brusque terms "that orders be given for the immediate release of the steamer and her cargo, for that portion of her cargo which has already been landed to be taken on board again, and for no hindrances to be placed in the way of the ship continuing her voyage to the places mentioned in her itinerary."

Count Hatzfelt, the German representative in London, continued: "I am further instructed to request your Excellency [the Marquis of Salisbury]

to cause explicit instructions to be sent to the Commanders of British ships in African waters to respect the rules of international law, and to place no further impediments in the way of the trade between neutrals."[20]

[Footnote 19: Ibid., p. 6.]

[Footnote 20: Ibid., p. 8.]

To the form and imputations of this request the British Government took exception, and the situation appeared ominous for a time. Instructions had been issued, however, that unless the _General_ disclosed contraband after a summary search it was undesirable to detain the ship since she carried the mails. The report of the naval officer at Aden disclosed the fact that he had boarded and detained the ship at that place. The ground for his action was that he had been informed that a number of suspicious articles were on board for Delagoa Bay, including boxes of ammunition stowed in the main hold, buried under reserve coal. An inspection of the manifest had shown several cases of rifle ammunition for Mauser, Mannlicher and sporting rifles consigned to Mombasa, but this consignment was believed to be _bona fide_. Other suspected articles on the manifest were wagon axles and chemicals and at the bottom of the hold was a consignment of food for Delagoa Bay, with boilers and heavy machinery stowed on top of the reserve coal. The _General_ carried besides a number of Flemish and German pa.s.sengers for Delagoa Bay, in plain clothes but of "military appearance," some of whom were believed to be trained artillerymen. It was suggested that this last doubt could be cleared up only by a search of the private baggage of the persons suspected, but it was not considered by the British Foreign Office that there was "sufficient evidence as to their destination to justify further action on the part of the officers conducting the search."[21]

[Footnote 21: Ibid., p. 22; see also pp. 10, 17, 21.]

On the seventh the _General_ was released, but was not able to sail until the tenth, a delay due to the labor of restowing her cargo, which was done as quickly as possible. The crew of the English ship _Marathon_, a.s.sisted by one hundred coolies, having worked day and night after the arrival of the ship on the fourth, completed the search on the sixth but were unable to complete the restowal until the morning of the tenth.

THE JUDICIAL ASPECTS OF THE SEIZURES.

In the discussion which occurred during the detention, and which was continued after the release of the three German ships, the a.s.sertions made by the British and German Governments brought out the fact that English practice is often opposed to Continental opinion in questions of international law.

On the fourth of January the German Amba.s.sador in London had declared that his Government, "after carefully examining the matter" of the seizure of the _Bundesrath_, and considering the judicial aspects of the case, was "of the opinion that proceedings before a Prize Court were not justified."[22] This view of the case, he declared, was based on the consideration that "proceedings before a Prize Court are only justified where the presence of contraband of war is proved, and that, whatever may have been on board the _Bundesrath_, there could have been no contraband of war, since, according to recognized principles of international law, there cannot be contraband of war in trade between neutral ports."

[Footnote 22: Sessional Papers, Africa, No. I (1900), C. 33, p. 6; Hatzfelt to Salisbury, Jan. 4, 1900.]

He a.s.serted that this view was taken by the English Government in the case of the _Springbok_ in 1863 as opposed to the decision of the Supreme Court of the United States sitting as a prize court on an appeal from the lower district court of the State of New York.[23] The protest of the British Government against the decision of the United States court as contravening these recognized principles, he said, was put on record in the Manual of Naval Prize Law published by the English Admiralty in 1866, three years after the original protest. The pa.s.sage cited from the manual read: "A vessel's destination should be considered neutral, if both the port to which she is bound and every intermediate port at which she is to call in the course of her voyage be neutral,"

and "the destination of the vessel is conclusive as to the destination of the goods on board." In view of this declaration on the part of Great Britain toward neutral commerce Count Hatzfeldt contended that his Government was "fully justified in claiming the release of the _Bundesrath_ without investigation by a Prize Court, and that all the more because, since the ship is a mail-steamer with a fixed itinerary, she could not discharge her cargo at any other port than the neutral port of destination."[24]

[Footnote 23: This case, it will be remembered, was _not_ decided on the ground of the contraband character of the goods in the cargo but because of the presumption that the ultimate intention of the ship was to break the blockade established over the Southern States. This well founded suspicion, based upon the character of the cargo as tending to show that it could be intended only for the forces of the Southern Confederacy, led to the conclusion that a breach of blockade was premeditated. This presumption no doubt was correct and in this particular case the decision of the court was probably justified, but the course of reasoning by which the conclusion was reached was generally considered a dangerous innovation in international relations. It has been recently again a.s.serted that the decision was not based upon the accepted rules of evidence. Supra p. 24. For a clear statement of the latter view, see Atherley-Jones, Commerce in War, p. 255.]

[Footnote 24: Sessional Papers, Africa, No. I (1900), C. 33, p. 6; Hatzfeldt to Salisbury, Jan. 4, 1900.]

In his reply to the German note Lord Salisbury thought it desirable, before examining the doctrine put forward, to remove certain "errors of fact in regard to the authorities" cited. He emphatically declared that the British Government had not in 1863 "raised any claim or contention against the Judgment of the United States' Prize Court in the case of the _Springbok_" And he continued: "On the first seizure of that vessel, and on an _ex parte_ and imperfect statement of the fact by the owners, Earl Russell, then Secretary of State for Foreign Affairs, informed Her Majesty's Minister at Washington that there did not appear to be any justification for the seizure of the vessel and her cargo, that the supposed reason, namely, that there were articles in the manifest not accounted for by the captain, certainly did not warrant the seizure, more especially as the destination of the vessel appeared to have been _bona fide_ neutral, but that, inasmuch as it was probable that the vessel had by that time been carried before a Prize Court of the United States for adjudication, and that the adjudication might shortly follow, if it had not already taken place, the only instruction that he could at present give to Lord Lyons was to watch the proceedings and the Judgment of the Court, and eventually transmit full information as to the course of the trial and its results." He a.s.serted that the real contention advanced in the plea of the owners for the intervention of the British Government had been that "the goods [on board the _Springbok_] were, in fact, _bona fide_ consigned to a neutral at Na.s.sau;" but that this plea had been refused by the British Government without "any diplomatic protest or ... any objection against the decision ... nor did they ever express any dissent from that decision on the grounds on which it was based."[25]

[Footnote 25: Ibid., p. 18; Salisbury to Lascelles, Jan. 10, 1900.]

This a.s.sertion is fairly based upon the reply of the English Government to the owners on February 20, 1864. Earl Russell had expressly declared that his government could not interfere officially. "On the contrary,"

he said, "a careful perusal of the elaborate and able Judgment, containing the reasons of the Judge, the authorities cited by him in support of it, and the important evidence properly invoked from the cases of the _Stephen Hart_ and _Gertrude_ (which her majesty's government have now seen for the first time) in which the same parties were concerned," had convinced his Government that the decision was justifiable under the circ.u.mstances.[26] The fact was pointed out that the evidence had gone "so far to establish that the cargo of the _Springbok_, containing a considerable portion of contraband, was never really and _bona fide_ destined for Na.s.sau, but was either destined merely to call there or to be immediately transhipped after its arrival there without breaking bulk and without any previous incorporation into the common stock of that Colony, and then to proceed to its _real destination_, being a _blockaded port_."[27] The "complicity of the owners of the ship, with the design of the owners of the cargo," was "so probable on the evidence" that, in the opinion of the law advisers of the Crown, "there would be great difficulty in contending that this ship and cargo had not been rightly condemned." The only recourse of the owners was consequently the "usual and proper remedy of an appeal"

before the United States Courts.

[Footnote 26: Sessional Papers, Miscl., No. I (1900), C. 34, pp. 39-40; Russell to Lyons, Feb. 20, 1864.]

[Footnote 27: Ibid. Italics our own.]

The next point that Count Hatzfeldt made was not so squarely met by Lord Salisbury, namely, that the manual of the English Admiralty of 1866 expressly declared: "A vessel's destination shall be considered neutral, if both the point to which she is bound and every intermediate port at which she is to call in the course of her voyage be neutral." And again, "The destination is conclusive as to the destination of the goods on board." Count Hatzfeldt contended that upon this principle, admitted by Great Britain herself, Germany was fully justified in claiming the release of the ship without adjudication since she was a mail-steamer with a fixed itinerary and consequently could not discharge her cargo at any other port than the neutral port of destination.[28]

[Footnote 28: Sessional Papers, Africa, No. I (1900), C. 33, p. 6.]

The only reply that Lord Salisbury could make was that the manual cited was only a general statement of the principles by which British officers were to be guided in the exercise of their duties, but that it had never been a.s.serted and could not be admitted to be an exhaustive or authoritative statement of the views of the British Government. He further contended that the preface stated that it did not treat of questions which would ultimately have to be settled by English prize courts. The a.s.sertion was then made that while the directions of the manual were sufficient for practical purposes in the case of wars such as had been waged by Great Britain in the past, they were quite inapplicable to the case which had arisen of war with an inland State whose only communication with the sea was over a few miles of railway to a neutral port. The opinion of the British Government was that the pa.s.sage cited to the effect "that the destination of the vessel is conclusive as to the destination of the goods on board" had no application. "It cannot apply to contraband of war on board a neutral vessel if such contraband was at the time of seizure consigned or intended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy's country."[29]

[Footnote 29: Ibid., pp. 18-19. Salisbury to Lascelles, Jan. 10, 1900.]

Lord Salisbury then cited Bluntschli as stating what in the opinion of the British Government was the correct view in regard to goods captured under such circ.u.mstances: "If the ships or goods are sent to the destination of a neutral port only the better to come to the aid of the enemy, there will be contraband of war and confiscation will be justified."[30] And, basing his argument upon this authority, he insisted that his Government could not admit that there was sufficient reason for ordering the release of the _Bundesrath_ "without examination by the Prize Court as to whether she was carrying contraband of war belonging to, or destined for, the South African Republic." It was admitted, however, that the British Government fully recognized how desirable it was that the examination should be carried through at the earliest possible moment, and that "all proper consideration should be shown for the owners and for innocent pa.s.sengers and all merchandise on board of her."[31] It was intimated that explicit instructions had been issued for this purpose and that arrangements had been made for the speedy transmission of the mails.

[Footnote 30: "Si les navires ou marchandises ne sont expedies a destination d'un port neutre que pour mieux venir en aide a l'ennemi, il y aura contrebande de guerre, et la confiscation sera justifiee." Droit Int. Codifie, French translation by Lardy, 1880, 3d Ed., -- 813. One of the two cases cited in support of this opinion is that of the _Springbok_, but in --835, Rem. 5, the following statement is made: "Une theorie fort dangereuse a ete formule par le juge Chase: 'Lorsqu'un port bloque est le lieu de destination du navire, le neutre doit etre cond.a.m.ne, meme lorsqu'il se rend prealablement dans un port neutre, peu importe qu'il ait ou non de la contrebande de guerre a bord.'"]

[Footnote 31: Sessional Papers, Africa, No. I (1900), C. 33, p. 19; Salisbury to Lascelles, Jan. 10, 1900.]

The German Government, agreeing for the moment to put to one side the disputed question of trade between neutral ports in general, nevertheless insisted that since a preliminary search of the _Bundesrath_ had not disclosed contraband of war on board there was no justification for delivering the vessel to a prize court. The suggestion was made that future difficulty might be avoided by an agreement upon a parallel of lat.i.tude down to which all ships should be exempt from search. And although it was not found possible to reach an exact agreement upon this point, orders were issued by Great Britain that the right of search should not in future be exercised at Aden or at any place at an equal distance from the seat of war and that no mail steamers should be arrested on suspicion alone. Only mail steamers of subsidized lines were to be included, but in all cases of steamers carrying the mails the right of search was to be exercised with all possible consideration and only resorted to when the circ.u.mstances were clearly such as to justify the gravest suspicion.[32]

[Footnote 32: Ibid., pp. 19-22.]

It is interesting to note in the positions taken by the German and English Governments with regard to the theory of ultimate destination and continuous voyages a wide divergence of opinion. The British Government apparently based its contention upon the decision of the United States Supreme Court in the case of the _Springbok_ in 1863, namely, that a continuous voyage may be _presumed_ from an intended ultimate hostile destination in the case of a _breach of blockade_, the contraband character of the goods only tending to show the ultimate hostile intention of the ship. But the English contention went further than this and attempted to apply the doctrine to contraband goods ultimately intended for the enemy or the enemy's country by way of a neutral port which, however, was not and could not be blockaded. The German Government contended on the other hand that this position was not tenable and apparently repudiated the extension of the continuous voyage doctrine as attempted by England.

In the end the immediate dispute was settled upon the following principles: (1) The British Government admitted, in principle at any rate, the obligation to make compensation for the loss incurred by the owners of the ships which had been detained, and expressed a readiness to arbitrate claims which could not be arranged by other methods. (2) Instructions were issued that vessels should not be stopped and searched at Aden or at any point equally or more distant from the seat of war.

(3) It was agreed provisionally, till another arrangement should be reached, that German mail steamers should not be searched in future on suspicion only. This agreement was obviously a mere arrangement dictated by the necessity of the moment, and was not such as would settle the question of the extent to which the doctrine of continuous voyages might be extended in dealing with contraband trade or with alleged traffic of this character.

Count Von Bulow, the German Chancellor, speaking before the Reichstag with reference to the seizures of the German mail steamers said: "We strove from the outset to induce the English Government in dealing with neutral vessels consigned to Delagoa Bay, to adhere to that theory of international law which guarantees the greatest security to commerce and industry, and which finds expression in the principle that _for ships consigned from neutral states to a neutral port, the notion of contraband of war simply does not exist_. To this the English Government demurred. We have reserved to ourselves the right of raising this question in the future, in the first place because it was essential to us to arrive at an expeditious solution of the pending difficulty, and secondly, because, in point of fact, the principle here set up by us has not met with universal recognition in theory and practice."[33]

[Footnote 33: Sessional Papers, Africa, No. I (1900), C 33; p. 25, Jan.

19, 1900. Italics our own.]

Summing up what in the opinion of the German Government corresponded most closely with the general opinion of the civilized world, the Chancellor then declared: "We recognize the rights which the Law of Nations actually concedes to belligerents with regard to neutral vessels and neutral trade and traffic. We do not ignore the duties imposed by a state of war upon the ship owners, merchants, and vessels of a neutral state, but we require of the belligerents that they shall not extend the powers they possess in this respect beyond the strict necessities of war. We demand of the belligerents that they shall respect the inalienable rights of legitimate neutral commerce, and we require above all things that the right of search and of the eventual capture of neutral ships and goods shall be exercised by the belligerents in a manner conformable to the maintenance of neutral commerce, and of the relations of neutrality existing between friendly and civilized nations."[34]

[Footnote 34: Ibid., p. 25.]

This doctrine, namely, that "for ships consigned from neutral states to a neutral port, the notion of contraband simply does not exist," clearly defined the contention of Great Britain that contraband which "at the time of seizure" was "consigned or intended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy's country," is liable to seizure and that both ship and cargo may be confiscated.[35] It also denied the English contention that "provisions on board ... destined for the enemy's Government or agents, and ...

also for the supply of troops or ... especially adapted for use as rations for troops" may be seized as contraband.[36]

[Footnote 35: Ibid., p. 19; Salisbury to Lascelles, Jan. 10, 1900.]

[Footnote 36: Ibid., p. 16; Admiralty to Harris, Jan. 8, 1900.]

Count Von Bulow summarized the action of the German Government by saying: "We demanded in the first place the release of the steamers....

In the second place we demanded the payment of compensation for the unjustified detention of our ships and for the losses incurred by the German subjects whose interests were involved.... Thirdly, we drew attention to the necessity for issuing instructions to the British Naval Commanders to molest no German merchantmen in places not in the vicinity of the seat of war, or at any rate, in places north of Aden....

Fourthly, we stated it to be highly desirable that the English Government should instruct their Commanders not to arrest steamers flying the German mail flag.... Fifthly, we proposed that all points in dispute should be submitted to arbitration.... Lastly, the English Government have given expression to their regret for what has occurred.

We cherish the hope that such regrettable incidents will not be repeated. We trust that the English naval authorities will not again proceed without sufficient cause, in an unfriendly and precipitate manner against our ships."[37]

[Footnote 37: Speech in Reichstag, Jan. 19, 1900.]

The Chancellor at the same time set forth certain general propositions as a tentative system of law to be operative in practice, a disregard of which in the opinion of the German Government would const.i.tute a breach of international treaties and customs:

(1) "Neutral merchant ships on the high seas or in the territorial waters of the belligerent Powers ...are subject to the right of visit by the warships of the belligerent parties." It was pointed out that this was apart from the right of convoy, a question which did not arise in the cases under discussion. The proposal was not intended to apply to waters which were too remote from the seat of war and a special agreement was advocated for mail ships.

"(2) The right of visit is to be exercised with as much consideration as possible and without undue molestation.

"(3) The procedure in visiting a vessel consists of two or three acts according to the circ.u.mstances of each case; stopping the ship, examining her papers, and searching her. The two first acts may be undertaken at any time, and without preliminary proceeding. If the neutral vessel resists the order to stop, or if irregularities are discovered in her papers, or if the presence of contraband is revealed, then the belligerent vessel may capture the neutral, in order that the case may be investigated and decided upon by a competent Prize Court.

"(4) By the term 'contraband of war' only such articles or persons are to be understood as are suited for war and at the same time are destined for one of the belligerents." "The cla.s.s of articles to be included in this definition," it was intimated, "is a matter of dispute, and with the exception of arms and ammunition, is determined, as a rule, with reference to the special circ.u.mstances of each case unless one of the belligerents has expressly notified neutrals in a regular manner what articles it intends to treat as contraband and had met with no opposition.

"(5) Discovered contraband is liable to confiscation; whether with or without compensation depends upon the circ.u.mstances of each case.