Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

[Footnote 4: Sessional Papers of the House of Commons, Correspondence respecting the Seizure of the British Vessels "Springbok" and "Peterhof" by United States Cruisers in 1863, Miscl. No. I (1900), C. 34]

[Footnote 5: Sessional Papers of the House of Commons, p. 39.]

This case is often cited as containing an application of the doctrine of "continuous voyages" to contraband per se. But it seems that the primary question was not one of contraband. The guilt of the ship lay rather in the intention, presumed upon the evidence, that a breach of an actual blockade was ultimately designed. The Supreme Court in reviewing the decision of the lower court said: "We do not refer to the character of the cargo for the purpose of determining whether it was liable to condemnation as contraband, but for the purpose of ascertaining its real destination; for we repeat again, contraband or not, it could not be condemned if really destined for Nassau, and not beyond, and, contraband or not, it must be condemned if destined to any rebel port, for all rebel ports are under blockade."[6] In other words, the decision was upon presumption and not upon the evidence in the case; upon the presumption that a breach of blockade was premeditated and not upon the ground that the cargo was contraband. The fact that the cargo was of a character which did not seem likely to be incorporated into the stock in trade of the Nassau population gave the judges whatever justification there was for the presumption that the goods were intended to be transshipped without breaking bulk. A recent English writer, Mr. Atherley-Jones, who criticises this decision of the Supreme Court of the United States as a verdict based upon the principle of the expediency of the moment and not upon the usual rules of evidence, admits that if a vessel sails with the intention of violating a blockade there is no question of the character of the port from which she sets out but insists that there is no necessity in such a case to apply the doctrine of "continuous voyages," If it can be proved, he says, that she is going to a blockaded port, it does not matter whether she is going to a neutral one or not, but it must be made clear that she is going to a blockaded one. He points to the fact that suspicion can never prove this apart from the ship's papers, the admission of the ship's company and the situation and course of the vessel. His view of the case is that the Supreme Court as well as the lower courts of, the United States "accepted well founded surmise as to a vessel's destination in lieu of proof," and he adds, "the danger of such a departure needs no further comment."[7]

[Footnote 6: Op. cit., p. 45.]

[Footnote 7: Commerce in War (1907), p. 255.]

The first position taken by Great Britain to support her right of seizure of foodstuffs bound for Delagoa Bay seems to have been based upon this departure of the Supreme Court of the United States in the case of the Springbok in 1863. It was found, however, that this basis of justification would not be acceptable to other Powers generally nor to the United States when the doctrine of "continuous voyages" was given such an application as practically to include foodstuffs as contraband. Without the taint of contraband there could be no justification even upon the Springbok decision as a precedent, since there was no blockaded port in question. In the seizure of American goods which were being conveyed by British ships there was the possibility of a violation of a municipal regulation which forbade British subjects to trade with the enemy.

But the charge of trading with the enemy to gain plausible ground necessarily carried with it the further presumption that the ultimate intention was that the foodstuffs should reach the Transvaal by a later stage of the same voyage.

With reference to the arrest and detention of German mail steamers bound for Delagoa Bay, the English Government found the attempt to substitute possibly well-grounded suspicions for facts no more acceptable to third Powers than the assumption with regard to foodstuffs had been, if the emphatic statements of the German Government indicate the general opinion upon the subject of the carrying of analogues of contraband and unneutral service in general.

GERMAN SEIZURES. BUNDESRATH, HERZOG AND GENERAL.

THE BUNDESRATH.—It was reported to the English Government by Rear Admiral Sir Robert Harris, on December 5, 1899, that the German East African mail steamer Bundesrath had sailed from Aden for Delagoa Bay. He informed his Government that ammunition was "suspected but none ascertained;" that the Bundesrath had on board "twenty Dutch and Germans and two supposed Boers, three Germans and two Australians believed to be officers, all believed to be intending combatants, although shown as civilians; also twenty-four Portuguese soldiers."[8] On the twenty-ninth of the same month the Bundesrath was taken into Durban, about three hundred miles from Lorenzo Marques, under the escort of the British cruiser Magicienne. The German Government demanded the immediate release of the steamer upon the assurance made by the Hamburg owners that she carried no contraband. Great indignation was expressed in Hamburg, and a demand was made in the Chamber of Commerce that measures be taken to insure the protection of German commercial interests. A diplomatic note was sent by Germany protesting against the action of England. Lord Salisbury's reply on the part of his Government was that the Bundesrath was suspected of carrying ammunition in her cargo, and that it was known that she had on board a number of passengers who were believed to be volunteers for service with the Boers. He added, however, that no official details had been received other than those contained in the cable announcing the fact that the ship had been captured.[9] The German consul at Durban protested against the ship's being brought in there as prize, and his Government reiterated its request that she be released at once since she carried no contraband. The detention of a mail ship, it was asserted, interfered with public interests in addition to the loss which was inflicted upon the owners of the vessel.