Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

[Footnote 38: For. Rel., 1900, p. 586.]

The United States was ready to admit that there might have been cause for the seizure and detention for the purpose of examination before a prize court upon the suspicion of trading with the enemy. But the decision of the judges seemed to indicate that such a suspicion was not founded upon facts which could be produced before the courts. The vessels were released upon the ground that they had not in fact traded with the enemy nor intended to do so except with the express or implied permission of the British Government. In view of the causes put forward for the seizures and of the reasons stated by the authorities for the subsequent release of the ships it would seem that the cargoes, "except in so far as contraband might have been involved would have the same status as though found aboard British ships trading between neutral ports where there was no question of a belligerent in the neighborhood of the port of detention."[39] The prize court did decide that there was no question of contraband involved, and the American representative pointed out the fact that the seizures not having been made or justified on account of contraband goods, the only effect of the British decision would seem to be either that Great Britain possessed the right to seize neutral and non-contraband goods aboard British vessels trading between neutral ports, or else the American owners of such cargoes would be entitled to full compensation for their damages.

[Footnote 39: For. Rel., 1900, p. 611; Hay to Choate, May 24, 1900.]

Lord Salisbury in his reply attempted to correct what he considered the misapprehension which underlay the statement of alternatives, namely, that neutral and non-contraband goods were not free in British bottoms between neutral ports, or else full compensation must be made to the owners for their seizure. It was asserted that the British Government had neither exercised nor claimed any such right as that which was indicated, nor had they seized neutral and non-contraband goods. He declared that the goods were not seized. Their passage to Lorenzo Marques was merely interrupted, and by this interruption they were detained only to the extent that their being on board the ship which had been arrested made their detention unavoidable. It was further alleged that had the prize court held that the arrest of the ships was not justified they would "presumably have awarded damages against the captors of the ships and the damages would presumably have been so calculated as to enable the ship to meet the claims of merchants arising out of the unjustified interruption of the voyage."[40] The fact was alleged that the court had not so held and that it appeared that the ships should, therefore, bear the consequences of the arrest and meet the merchants' claims. By the law of the flag under which the ships sailed they could not carry goods destined for the enemy. If they shipped such goods they should bear the consequences. Among those consequences was the delaying of the goods until such time as they could be placed on a ship that could legally carry them on to their original port of destination.

[Footnote 40: For. Rel., 1900, p. 618; Salisbury to Choate, July 20, 1900.]

The result of such a decision is apparent. The American goods, in the words of Mr. Hay, were "as inaccessible to their owners as if they had been landed on a rock in mid-ocean," since no steamers not belonging to British lines plied between the ports of Cape Colony and Delagoa Bay. But there seemed little chance of securing a revision of Great Britain's decision, which was based upon the principle that she might deal with English subjects and with English ships in accordance with the law of the flag under which those ships sailed. Mr. Hay, therefore, only endeavored to secure every possible guarantee for American interests involved, but incidentally emphasized the view that, although England might use her own as she saw fit she must show just ground for all injuries suffered by innocent American shippers. Instructions were sent to Mr. Hollis, the United States consul at Lorenzo Marques, that he should investigate the seizures and make every effort to protect the property of American citizens, and later he was urged to ascertain the facts concerning the detention of American flour on board the ships arrested by Great Britain.[41]

[Footnote 41: For. Rel, 1900, p. 538; Hay to Hollis, Dec. 28, 1899.]

It soon developed that freight had been prepaid and that the drafts drawn against the various shipments from New York would be protested for non-payment by the parties on whom they had been drawn at Delagoa Bay.[42] Consequently the title to the property in such cases was vested in the American shippers, and they urged their Government to see that their interests were protected against what they considered an undue extension of belligerent rights against ordinary neutral trade from one neutral port to another. Mr. Hay pointed out the obvious injustice of the goods being in the prize courts with the vessel, even granting that the ship as a common carrier of international commerce had violated the law of its flag, on the remote possibility of having carried for the enemy. He insisted that, although the shippers might be required to furnish invoices and bills of lading, they should not be sent to the prize court for their property. Lord Salisbury, however, contended that the prize court had complete control of the situation, and that any neutral shippers who were innocent could secure the release of their goods only by applying to the court with the proper evidence of ownership. The injustice of the vigorous enforcement of this rule of prize law was obvious, and the demand was made that the goods should be released by order of the proper British law officer and not be left to the mercy of the prize court.[43] It was urged that since the ships had been seized because of a violation of the municipal law of Great Britain, for trading with the enemy, and since the seizure and detention of the flour and other goods was only incidental to the seizure of the ships, the flour, to which no such offense could be imputed, could not under the circumstances be admitted to be subject to capture because not contraband of war. Upon these grounds prompt restitution to the American owners was demanded.[44]

[Footnote 42: For. Rel, 1900, p. 540; Toomey to Hay, Jan. 3, 1900.]

[Footnote 43: For. Rel, 1900, p. 543; Choate to Hay, Jan. 5, 1900.]