In its reply to the Portuguese dispatch the Transvaal reasonably protested that the treaty in question had not been made public and that no notice of it had been received by the Republic at the outbreak of war.[41] It was pointed out that this being the case the treaty could not be applied even if it granted the right contended for by England. And even stronger was the Transvaal argument that in no case after war had begun could such a treaty be applied by a neutral State to the disadvantage of third parties. The fact of neutrality had suspended the working of the agreement. The action of Portugal, it was justly alleged, put her in the position of an enemy instead of a neutral.
[Footnote 41: Ibid., p. 367, note.]
The Transvaal contention would appear to be fully warranted. In the light of modern international law the action of England in sending troops through neutral Portuguese territory against a nation at peace with Portugal was based upon a flagrant misreading of a purely commercial treaty. The action of the Portuguese Government in allowing this to be accomplished was a gross breach of the duties incumbent upon a neutral State in time of war.
CHAPTER III.
CONTRABAND OF WAR AND NEUTRAL PORTS.
During the war the question of blockade could not arise for the reason that neither the Transvaal nor the Orange Free State possessed a seaport. Lorenzo Marques being a neutral Portuguese possession could not be blockaded by the English. General Buller, commanding the British land forces in South Africa, had indeed urged that such a declaration be made, but it was realized by Great Britain that such a step was not possible under the laws of war.[1] More stringent measures, however, were taken to prevent the smuggling of contraband through Delagoa Bay, a transaction which the English alleged was an everyday occurrence. A number of neutral merchantmen bound for this port were seized, but the difficulty experienced by England was her inability to prove that the goods on board were really intended for the enemy, or that the men shown as passengers were actually proceeding to the Transvaal as recruits for the Boer forces in the field.
[Footnote 1: Sessional Papers of the House of Commons, Royal Commission on the War in South Africa, Appendices to Minutes of Evidence being C. 1792 (1903).]
On October 18 the ship Avondale Castle had been arrested by the English gunboat Partridge and ordered to return under escort to Durban. The British cruiser Tartar there took over £25,000 in gold which, it was alleged, had been intended for the Transvaal Government. It was found, however, that the gold was consigned to the Delagoa branch of the Transvaal Bank from the Durban branch of the same institution. The allegation against the consignment, it was considered by the prize court, did not sufficiently contaminate the shipment since the destination was proved to be a neutral one and the point of departure an English port. In February the gold was returned to the Bank of Durban because the ultimate destination of the consignment did not warrant the presumption that it was enemy's property.
In November a French steamer, the Cordoba, was hailed by the British cruiser Magicienne. The Cordoba refused to recognize the signal to halt seventy miles out from Lorenzo Marques and was brought to by a blank shot. Her papers, however, failed to show any guilt on her part and she was allowed to proceed to her port of destination, Lorenzo Marques.
These seizures indicate the feeling of suspicion which was prevalent in England that apparently innocent descriptions in the bills of lading of steamers arriving at Lorenzo Marques concealed contraband of war. The question was raised whether the English commanders should not be ordered to open packing cases and the like and not examine merely the manifests in order to furnish evidence which would warrant the confiscation of the goods and possibly the ships carrying contraband, should such be found on board. The Council of the British and Foreign Arbitration Association sent a resolution to the English Government and to that of Portugal which declared: "This association most earnestly and emphatically protests against the permission granted by Portugal to the Boers of the Transvaal to make of Lorenzo Marques an emporium for the collection of arms and ammunition against Great Britain with whom the king of Portugal is at peace … thereby … enlarging the sphere of the present carnage in South Africa."[2]