[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 passage 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.]
The consensus of opinion among European Powers was that the landing of troops at Beira and the passage by rail to Rhodesia with the consent of Portugal constituted a breach of neutrality on the part of the latter. The opinion was freely expressed that the British Government not only placed a strained interpretation upon the only basis for her action, the treaty of 1891, but that even upon this interpretation she possessed no real servitude over the territory used by her for warlike purposes. The only claim of justification advanced by the British Government which would appear at all tenable rests upon the statement of Calvo: "It may be that a servitude of public order, or a treaty made antecedently to the war, imposes on a neutral State the obligation of allowing the passage of the troops of one belligerent." "In such a case," Calvo concludes, "the fulfilment of the legal obligation cannot be regarded as an assistance afforded to that belligerent and a violation of the duties of neutrality."[21]
[Footnote 21: Baty, Int. Law in South Africa, p. 73, quoting Calvo. But Calvo calls attention to the fact that this is his own "exception to the general rule," in support of which he cites no authorities and only one precedent—that of the passage of foreign troops across the Canton of Schaffhausen in 1867 by virtue of a prior treaty between Switzerland and the Grand Duchy of Baden. Obviously no general conclusion can be drawn from the conduct of a neutralized state, such as Switzerland. The general rule, not the exception, is sought in determining international rights. Droit international, 3d Ed., III, §2347.]
Basing his argument largely upon this authority, Mr. Baty asserts that Calvo approves the granting of passage where this privilege has been secured by previous treaty. But the following statement which he cites from Calvo, taken in connection with the rule given above, would appear to deny this conclusion: "During war neutrals may oppose, even by force, all attempts that a belligerent may make to use their territory, and may, in particular, refuse one of the belligerents a passage for its armies to attack the enemy; so much the more so, inasmuch as the neutral who should allow a passage of the troops of one belligerent would be false to its character and would give the other just cause of war."[22]
[Footnote 22: Int. Law in South Africa, p. 73. This quotation is slightly misleading, but even as used it clearly denies the English claim.]
What Calvo says is: "Tous les publicistes sont d'accord pour admettre que le territoire d'une nation constitue une véritable propriété … le territoire neutre doit être à l'abri de toutes les entreprises des belligérants de quelque nature qu'elles soient; les neutres ont le droit incontestable de s'opposer par tous les moyens en leur pouvoir, même par la force des armes, à toutes les tentatives qu'un belligerant pourrait faire pour user de leur territoire."[23] He also calls attention to the fact that Grotius, Wolff and other authors held that a belligerent, "dont la cause est juste peut, pour aller à la rencontre de son ennemi, traverser avec ses armées le territoire d'une nation neutre."[24] But his statement of the modern rule is conclusive: "Par contre, Heffter, Hautefeuille, Manning et d'autres auteurs modernes se sont avec juste raison élevés contre des principes dans lesquels ils entrevoient la négation implicite des droits et des devoirs stricts de la neutralité. A leur yeux, la nation neutre qui consent au passage des troupes de l'une des parties belligerantes manque à son caractère et donne à l'autre partie un juste motif de lui déclarer la guerre."[25]
[Footnote 23: Calvo, §2344.]
[Footnote 24: Ibid., §2345.]