Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

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.