The doctrine of "continuous voyages" was by the Declaration of London, Art. 30, recognised in the case of "absolute," but by Art. 35 was stated to be inapplicable to the case of "conditional" contraband.
Sir,—Questions of maritime international law which are likely to give rise not only to forensic argument in the prize Courts which we have established at Durban and at the Cape, but also to diplomatic communications between Great Britain and neutral Governments, should obviously be handled just now with a large measure of reserve. Lord Rosebery has, however, in your columns called upon our Government to define its policy with reference to foodstuffs as contraband of war, while several other correspondents have touched upon, cognate topics. You may perhaps therefore be disposed to allow one who is [159]responsible for the Admiralty Manual of the Law of Prize, to which reference has been made by your correspondent "S.," to make a few statements as to points upon which it may be desirable for the general reader to be in possession of information accurate, one may venture to hope, as far as it goes.
Of the four inconveniences to which neutral trading vessels are liable in time of war, "blockade" may be left out of present consideration. You can only blockade the ports of your enemy, and the South African Republics have no port of their own. The three other inconveniences must, however, all be endured—viz. prohibition to carry "contraband," prohibition to engage in "enemy service," and liability to be "visited and searched" anywhere except within three miles of a neutral coast, in order that it may be ascertained whether they are disregarding either of these prohibitions, as to the meaning of which some explanation may not be superfluous.
1. "Carriage of contraband" implies (1) that the goods carried are fit for hostile use; (2) that they are on their way to a hostile destination. Each of these requirements has given rise to wide divergence of views and to a considerable literature. As to (1), while Continental opinion and practice favour a hard-and-fast list of contraband articles, comprising only such as are already suited, or can readily be adapted, for use in operations of war, English and American opinion and practice favour a longer list, and one capable of being from time to time extended to meet the special exigencies of the war. In such a list may figure even provisions, "under circumstances arising out of the particular situation of the war," especially if "going with a highly probable destination to military use"—Lord Stowell in the Jonge Margaretha (1 Rob. 188); cf. Story, J., in the Commercen (1 Wheat. 382), the date and purport of which are, by the by, incorrectly given by "S." It would be in accordance with our own previous practice and with Lord Granville's [160]despatches during the war between France and China in 1885, if we treated flour as contraband only when ear-marked as destined for the use of enemy fleets, armies, or fortresses. Even in such cases our practice has been not to confiscate the cargo, but merely to exercise over it a right of "pre-emption," so as to deprive the enemy of its use without doing more injury than can be helped to neutral trade—as is explained by Lord Stowell in the Haabet (2 Rob. 174). As to (2), the rule was expressed by Lord Stowell to be that "goods going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful"—Imina (3 Rob. 167); but innovations were made upon this rule during the American Civil War which seem to be demanded by the conditions of modern commerce, and might well be followed by a British prize Court. It was held that contraband goods, although bona fide on their way to a neutral port, might be condemned, if intended afterwards to reach the enemy by another ship or even by means of land carriage—Bermuda (3 Wallace); Peterhoff (5 Wallace). A consignment to Lorenzo Marques, connected as is the town by only forty miles of railway with the Transvaal frontier, would seem to be well within the principles of the Civil War cases as to "continuous voyages."
2. The carriage by a neutral ship of enemy troops, or of even a few military officers, as also of enemy despatches, is an "enemy service" of so important a kind as to involve the confiscation of the vessel concerned, a penalty which, under ordinary circumstances, is not imposed upon carriage of "contraband" property so called. See Lord Stowell's luminous judgments in Orozembo (6 Rob. 430) and Atalanta (ib. 440). The alleged offence of the ship Bundesrath would seem to be of this description.
The questions, both of "contraband" and of "enemy service," with which our prize Courts must before long have to deal, will be such as to demand from the Judges a competent knowledge of the law of prize, scrupulous fairness [161]towards neutral claimants, and prompt penetration of the Protean disguises which illicit trade so readily assumes in time of war.
Your obedient servant,
T. E. HOLLAND
Oxford, January 2 (1900).