Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

The attitude which Great Britain had assumed with reference to the different seizures was generally considered a menace to neutral commercial interests should the British position be accepted as a precedent for similar cases that might occur. The danger of such a precedent had been realized by Secretary Hay and throughout the negotiations he had dwelt upon the fact that while the protection of American interests was the end immediately sought, the principles which underlay the disposition of the particular cases were of the greater importance.

Lord Roseberry, too, called attention to the danger of the precedent should England determine to treat foodstuffs in general as contraband of war. It was pointed out, however, that in the seizures of foodstuffs near Delagoa Bay the question of contraband did not necessarily arise, since all trade with the enemy, even in articles the most innocent, was forbidden under heavy penalty. The seizure of certain classes of foodstuffs as of a contraband character did not of necessity involve the principle of treating all foodstuffs as contraband of war. The English view was that it had long been recognized that a belligerent might discriminate between foodstuffs obviously intended for the commissariat of an army in the field and foodstuffs which might be properly imported for the use of the non-combatant population.

The consensus of opinion, however, seems to be that while there may be reasonable ground for including tinned or canned meats and the like in the former category, flour naturally belongs to the latter class, and it has been pointed out that neither the British Government nor any other has the power of treating what it pleases as contraband without reference to the prize court, with which alone the decision rests. The prize courts of all countries have held at different times that foodstuffs under certain circumstances are contraband, as, for instance, where they are intended for the supply of a belligerent garrison as well as in less obvious cases, but any decision which considered foodstuffs generally as contraband would be disquieting to all neutral interests.

One writer has asserted that such an innovation would not be alarming to Great Britain as long as she remained predominant at sea, since the more effectual her sea power were declared to be in preventing sustenance from going over sea to her enemy the better it would be for English predominance. It is believed by this writer that during the existence of this supremacy at sea she would be able to protect the passage of general foodstuffs from foreign countries to her own ports. He concludes, however: "Of course if we lose our predominance at sea it is another matter. But then, è finita la Musica."[59]

[Footnote 59: Thos. Gibson Bowles, Jan. 4, 1900. For. Rel., 1900, p. 546.]

The acceptance of the principle that foodstuffs are contraband of war, it need hardly be said, is not even a remote probability except under very exceptional circumstances where they are for the immediate supply of the enemy's army or navy, and in most cases of this kind they can usually be confiscated as enemy's property without a direct implication of a distinctly contraband character. In other words, the use for which they are intended may give reasonable ground for the conclusive presumption that they are for the enemy's immediate supply, whether the title to property in them vests in the enemy or in some other agency, and the last question is always to be decided by the prize court of the particular country which has made the seizure. The decision should be based upon a careful examination of the evidence which is submitted to the court, and not presumed from the fact that the political power has exercised the belligerent right of visit, search and detention. The final decision of confiscation rests with the prize court.

By way of recapitulation it may be pointed out that the goods seized or detained by the English authorities in South African waters were shipped by American merchants and manufacturers, many of them on regular monthly orders to alleged reputable merchants in Lorenzo Marques, Delagoa Bay, in Portuguese territory. Certain consignments were intended for alleged reputable firms in Johannesburg, South African Republic. The articles composing the cargoes of the ships were of the general character of foodstuffs, chiefly flour, canned meats, and other food materials. Lumber, hardware and various miscellaneous articles generally considered innocent in character were also included. There was a consignment of lubricating oil to the Netherlands South African Railway, the latter company held to be the property of the Transvaal Government, and a like consignment to the Lorenzo Marques Railway, a Portuguese concern. At first the seizures which occurred at points between Cape Colony and Delagoa Bay were supposed to have been made on account of contraband. Later Great Britain declared that the ships had been seized because of the violation of a municipal ordinance forbidding British subjects to trade with the enemy. The Mashona, Beatrice and Sabine were British ships sailing under the English flag. The Maria was a Dutch vessel sailing under the flag of Holland, but was supposed by the English authorities to have been under charter to an English firm. In the latter case the ship would have been liable to the English law, but for the mistake the owners of the ship as well as the owners of the cargo were indemnified by the English Government. The seizure of the cargoes of the British ships was declared to have been merely an unavoidable incident of the seizure of the alleged guilty ships. Compensation was made to American shippers by the purchase of the goods. The consignment of oil to the Netherlands South African Railway was confiscated as enemy's property.

The views of Great Britain and the United States were divergent with reference to the principle of treating foodstuffs as contraband. Rather as an obiter dictum the former declared: "Foodstuffs with a hostile destination can be considered contraband of war only if they are supplies for the enemy's forces. It is not sufficient that they are capable of being so used; it must be shown that this was in fact their destination at the time of the seizure."[60]

[Footnote 60: For. Rel., 1900, p. 555.]

The United States declared that the validity of the right to seize goods on the ground of contraband could not be recognized "under any belligerent right of capture of provisions and other goods shipped by American citizens in the ordinary course of trade to a neutral port."[61]