Chapter IV: Trading with the Enemy (1)

Almost contemporaneously with the German-English controversy with reference to the restrictions which might legitimately be put upon German mail steamers Great Britain and the United States became involved in a lengthy correspondence.

Various articles of the general nature of foodstuffs were seized upon ships plying between New York and Delagoa Bay. It developed later that the seizures were justified by England not upon the ground of the guilt of carrying contraband _per se_, but because an English municipal regulation was alleged to have been violated by English subjects in that they had traded with the enemy. But the fact was incontrovertible that the port of destination as well as that of departure was neutral. The burden of proof under the circumstances rested upon the captor to show that goods innocent in themselves were really intended for the enemy. Consequently the line of justification which was set up involved not merely an extension of the doctrine of continuous voyages, but an application of this much mooted theory that would show an ultimate intention to trade with the enemy.

The offense of trading with the enemy is not a new one in international law. In 1799 Sir William Scott, afterwards Lord Stowell, sitting upon the case of the _Hoop_, which is perhaps the leading case upon the subject, declared that all trading with the enemy by the subjects of one State without the permission of the sovereign is interdicted in time of war[1]. It was pointed out that, according to the law of Holland, of France, of Spain and as a matter of fact of all the States of Europe, "when one state is at war with another, all the subjects of the one are considered to be at war with all the subjects of the other and all intercourse and trade with the enemy is forbidden." This principle has been accepted in the United States as one of the conditions of warfare. Wheaton declares: "One of the immediate consequences of the commencement of hostilities is the interdiction of all commercial intercourse between the subjects of the States at war without the license of their respective Governments."[2]

[Footnote 1: 1 C. Rob. 200.]

[Footnote 2: Elements of International Law, Dana Ed. (1866), §309 et seq.]

In England a declaration of war is equal to an Act of Parliament prohibiting all intercourse with the enemy except by the license of the Crown. The penalty of such illegal intercourse is the confiscation of the cargo and of the ship engaged in such trade. The instructions are emphatic upon the point: "The commander should detain any British vessel which he may meet with trading with the enemy unless, either: (1) He is satisfied that the master was pursuing such trade in ignorance that war had broken out, or, (2) The vessel is pursuing such trade under a license from the British Government."[3]

[Footnote 3: British Admiralty Manual of Naval Prize Law (1888), §38.]

When a vessel is bound for a belligerent port it appears that the burden of proof is thrown upon the ship's captain to show that goods so shipped are not intended for the enemy. In the case of the _Jonge Pieter_ (1801) goods purchased in England were shipped for an enemy port but were seized by a British cruiser under the right of a belligerent. It was attempted to be set up that the goods belonged to citizens of the United States, but in the absence of documentary proof condemnation was decreed on the ground of hostile ownership.[4]

[Footnote 4: 4 C. Rob. 79; other cases bearing upon the subject are: the _Samuel_ (1802), 4 C. Rob. 284 N; the _Nayade_ (1802), 4 C. Rob. 251; the _Franklin_ (1805), 6 C. Rob. 127; see also Kent's Commentaries, Vol. I, p. 87; Halleck, International Law (1878), Vol. II, p. 130; Moore, Digest of Int. Law, Vol. VII, p. 534; White, L.Q. Rev., Vol. 16, p. 407.]

The decisions in these cases as well as the general opinion of the past had shown what the British view was, namely, that all trading with the enemy is absolutely forbidden to British subjects upon the outbreak of war. But in the controversy between the English Government and that of the United States with reference to foodstuffs bound for Delagoa Bay on board English ships the argument set up by the British authorities was not generally considered well founded, since little more than suspicion was produced as evidence to show that any of the ships really intended to trade with the enemy. There was no dissent from the established rule that trading with the enemy on the part of the subjects of the belligerent States is prohibited. But those nations whose citizens or subjects suffered loss by the enforcement of the English law were not satisfied that the English ordinance had been violated either in deed or by intent.

Soon after war had begun it was known that the English authorities would scrutinize closely any transactions of British ships, or of ships leased by English firms, which had dealings in a commercial way with the warring Republics. On November 24 the Official Imperial Gazette of Berlin had published the following note: "According to official information British subjects are forbidden by English law to have any trade or intercourse with the South African Republic and the Orange Free State, or with the subjects of these two states, within their territories, during the continuance of the present state of war."[5] Because of this prohibition, it was pointed out, all goods sent by English ships and intended for the South African Republic or the Orange Free State and ships of war, even in cases where the goods were not contraband of war, might be legally detained by the British authorities. Attention was called to the fact that this measure might also be applied to goods destined for ports in the neighborhood of the seat of war and not belonging to Great Britain. German commercial circles were warned that they should consider whether under the circumstances it was not to their interest to avoid using British ships for transporting goods to South Africa during the war.

[Footnote 5: London Times, Nov. 24, 1899, p. 7, col. 4.]

Notwithstanding this announcement, toward the close of December the British Foreign Office stated that information had reached the Secretary of State for Foreign Affairs which showed that it was not generally known that trading with the enemy was unlawful. The English view of the restrictions upon British subjects was thus pointed out: "British subjects may not in any way aid, abet, or assist the South African Republic or the Orange Free State in the prosecution of hostilities, nor carry on any trade with, nor supply any goods, wares or merchandise to either of those Republics or to any person resident therein, nor supply any goods, wares, or merchandise to any person for transmission to either Republic, or to any person resident there, nor carry any goods or wares destined for either of the Republics or for any person resident therein."[6] It was further declared that these restrictions applied to all foreigners while they were on British territory, and that all persons, whether British subjects or foreigners, who might commit any of the prohibited acts would be liable to such penalty as the law provided.

These municipal restrictions obviously made illegal on the part of English subjects and of strangers temporarily resident upon British soil all commercial acts, from one country to the other, all buying and selling of merchandise, contracts for transportation, as well as all operations of exchange, or the carrying out of any contract which would be to the advantage of the enemy. A time-honored English maxim declares: "_Est prohibitum habere commercium cum inimicis."_

[Footnote 6: British and Foreign State Papers, vol. 92, p. 383. Notice ... warning British Subjects against trading with the enemy, London, December 22, 1899.]

When Great Britain attempted to enforce these recognized prohibitions against trading with the enemy it was found difficult to show that the suspected ships had in reality had dealings with the public enemy or with its agents. The ships were not bound for a hostile port nor for a blockaded one, but for a neutral harbor which was not even contiguous to either the Transvaal or Orange Free State. Other Governments, although ready to admit that it was competent for England to forbid her own subjects to trade with the enemy, were not willing to allow their respective subjects to suffer the loss of goods which had been shipped in good faith. The character of the goods apparently excluded the idea of contraband of war, and the ships themselves, since they were bound from neutral ports to a neutral port, appeared to be acting in good faith.

THE SEIZURES. MARIA, MASHONA, BEATRICE, AND SABINE.

THE MARIA.--As early as September 6, 1899, the _Maria_, a Dutch ship, had touched at Cape Town on her way to Delagoa Bay with a cargo consisting largely of flour, canned meats and oats shipped from New York[7]. She was allowed to proceed after a short detention by the British authorities although goods in her cargo were plainly marked for the Transvaal. It was realized under the circumstances that there was no ground for the detention of ship or cargo, and in view of the fact that no war was in progress at the time, the detention of the vessel even for a short period would appear to have been unjustifiable. The _Maria_ called at Port Elizabeth, whence she cleared for Delagoa Bay. On October 29 she put in for coal at Durban, three hundred miles from Lorenzo Marques, and was boarded by the commander of the English ship _Tartar_. The _Maria's_ captain was willing to be visited and searched without protest. According to the official report, "no guard was placed on her," and "the agents were willing to land all the contraband."[8] The commander of the _Tartar_ informed them that if this were submitted to the vessel need no longer be detained. When the _Maria_ had been brought in and no contraband was discovered by the search, the agents of the ship protested against the landing of that portion of the cargo consisting of flour and other goods which they considered innocent, but spoke of the vessel, it was alleged, as belonging to a British company called the "American-African Line." The commander of the English cruiser pointed out to them that British subjects could not under the Governor's proclamation trade with the enemy, and mentioned the warning in a local customs notice as the penalty for "vessels which carried contraband of war or goods of whatever nature the real destination of which was the enemy or their agents in neutral ports."[9]

[Footnote 7: For. Rel., 1900, p. 529.]

[Footnote 8: For. Rel., 1900, p. 575.]

[Footnote 9: For. Rel., 1900, p. 575.]

The _Maria's_ cargo included a consignment of lubricating oil as well as a miscellaneous consignment of light hardware. Part of the cargo was seized and part merely "detained." The consignment to the Netherlands South African Railway, a thousand cases of lubricating oil, eighty-four cases of picks, twenty cases of handles, was seized as enemy's property, since there was sufficient evidence, it was thought, to show that these goods belonged to the railway company, the consignees, and not to the New York shippers, the consignors. This opinion was held on the ground that the Netherlands South African Railway was owned by the South African Republic.

All of the Delagoa Bay cargo including the flour and other foodstuffs was landed and the _Maria_ put to sea. But on November 3 the authorities at Durban were instructed by the British Foreign Office that foodstuffs were not to be treated as contraband, and the captain of the British cruiser _Philomel_ warned the customs that the flour should no longer be detained. It was released and measures were at once taken for reshipping it on the British steamer _Matabele_, when it seems for the first time to have occurred to the customs authorities that the flour might thus find its way to Pretoria by means of an English ship. According to the official report: "It was then provisionally detained again. But on it being found that the flour was _bona fide_ a part of the _Maria's_ cargo the agents and all parties concerned were told that no further restrictions would be placed on the shipment, but it was at the same time pointed out that the flour was going direct to the enemy. The Governor's proclamation against trading with the enemy was then studied in connection with the above-mentioned permission, with the result that agents, shippers, and shipowners all refused to ship or carry the flour and nobody would have anything to do with it," although no objection was made by the naval authorities to the cargo being forwarded to its destination.[10]

[Footnote 10: For. Rel., 1900, p. 575.]

For the detention of the _Maria_ her owners, upon the protest of the Netherlands Government, were awarded £126 sterling as indemnity. The consignment of flour "detained" at Durban was purchased by the English Government at the price it would have brought at Delagoa Bay on November 2, the day on which it would presumably have reached there had no interruption occurred.[11]

[Footnote 11: For. Rel., 1900, p. 610.]

It was pointed out in the report upon the case that the _Maria_ was undoubtedly a Dutch ship and that her agents had introduced an element of confusion in the dealings with her by speaking of her as belonging to a British company. It was therefore admitted that possibly some of the goods were removed on the erroneous supposition that she was a British ship and could not lawfully carry them. Had she been a Dutch ship leased by a British firm her liability would appear to have been as great as if she had been a vessel owned by British subjects. Had she belonged to a British company she would have been a British ship, and it would have been unlawful for her to carry for the enemy.

THE MASHONA.--On December 5, 1899, the _Mashona_, clearing from New York for Delagoa Bay, was seized by the British cruiser _Partridge_ near Port Elizabeth, seven hundred and fifty miles from Lorenzo Marques, and taken into Table Bay, but later to Cape Town as prize on the charge of trading with the enemy. Consul-General Stowe reported the capture, and informed the Department at Washington that the _Mashona_ carried five thousand tons of general cargo, including seventeen thousand bags of flour for the Transvaal by way of Delagoa Bay. Foreseeing the probability that the _Mashona_ would be brought into Cape Town as prize, Mr. Stowe inquired: "Is foodstuff such as flour, contraband? Being a British ship has the British Government a right to seize?"[12]

[Footnote 12: For. Rel., 1900, p. 529; Stone to Cridler, Dec. 6, 1899.]

Counsel for the original American shippers upon the _Mashona_ stated that the cargo was of the character of general merchandise and was destined "for neutral citizens domiciled in neutral territory." It was pointed out in the prayer of the owners of this portion of the cargo that while the British Government might be justified in seizing her own vessels, it appeared that the British naval authorities were illegally jeopardizing the property of American citizens in that the vessel seized was "under contract to deliver to the persons named in the invoices the merchandise therein specified, none of which is contraband of war."[13]

[Footnote 13: For. Rel., 1900, p. 530; Hopkins and Hopkins to Hay, Dec. 12, 1899.]

One portion of another shipment was on account of a Delagoa Bay firm, the other on account of a London one. With reference to the goods consigned to the latter firm the American shippers were unable to say what their ultimate destination might be, but in regard to the shipment to Delagoa Bay they were positive that the consignees were a firm doing a large local business in Lorenzo Marques. To the best of their knowledge it was a German firm whose members were not citizens either of the Transvaal or of the Orange Free State. They showed that the goods were sold on four months' time dating from November 3, and consequently that their loss would fall upon the original shippers, who were citizens of the United States. The fact was pointed out that additional merchandise amounting to five thousand dollars had been purchased for the Delagoa Bay firm, with a view to immediate shipment, but would have to be held up and probably lost because of a situation which amounted to a blockade declared by Great Britain over a neutral port, an act which in the end would compel all firms in Lorenzo Marques to cease buying American goods.[14]

[Footnote 14: For. Rel., 1900, pp. 530-533; Flint Eddy and Co. to Hopkins and Hopkins, Dec. 9, 1899, and Hopkins and Hopkins to Adee, Dec. 15, 1899.]

It was alleged by the captors that the ship's papers were not in proper form, and that besides the flour and other foodstuffs she carried a consignment of lubricating oil for the Netherlands South African Railway. This consignment was held to be enemy's property since it was considered that the railway belonged to the Transvaal, the specific charge against the ship being that of trading with the enemy. The fact that a consignment of flour was billed to a Lorenzo Marques firm but labelled "Z.A.R." created a conclusive presumption, it was thought, that the flour was intended for the Transvaal, although its owners claimed that the consignment was not destined for the belligerent Republic but for local consumption at Lorenzo Marques.[15]

[Footnote 15: For. Rel., 1900, pp. 538-539, 561.]

Both the cargo consigned to the Transvaal and the vessel herself were claimed as lawful prize. The cargo, it was contended, was unprotected since it was enemy's property, and the vessel, by trading with the enemy, had violated a regulation which rendered it confiscable. Against this it was urged that the consignees were hostile only by reason of domicile, and that neither the owners of the ship nor the captain had any intention to trade with the enemy. So far as intention was concerned, it was shown that the captain had intended to pass a bond at Algoa Bay, one of the ports of call, undertaking not to deliver the goods at Delagoa Bay without the permission of the proper authorities. The three judges of the Supreme Court of Cape Colony sitting as a prize court came to different conclusions. The Chief Justice held that the cargo should be condemned but not the ship. One opinion was that neither ship nor cargo should be condemned; the third that both ship and cargo should be condemned. There were thus two justices to one for condemning the cargo and two to one against the condemnation of the ship. The cargo was consequently condemned and the ship released.[16]

[Footnote 16: Decision at Cape Town, March 13, 1900, reported in Cape Times, March 14, 1900.]

Different views were also held by the judges with reference to the condemnation of the goods aboard the _Mashona_. The Chief Justice held that the intention of the captain to alter the destination of the goods was sufficiently established to prevent their condemnation. The other justices dissented on this point. They held that the goods should be regarded in prize law as the property of residents of the Transvaal, and that such ownership did not seem possible of denial. In their opinion there was sufficient reason for condemning the goods since they were enemy's property captured on the high sea in a non-neutral ship.

This view obviously implied that an enemy character was impressed upon persons resident in the Transvaal not by nationality but merely by domicile. England's proclamation had in fact forbidden trade with the enemy or with those resident upon enemy territory. In other words, those residing in hostile territory were regarded as enemies when there was a question of trading with the enemy. The same principle was applied when there was a question of property in goods which were on their way to the enemy's territory, a view which would seem reasonable since even the _de facto_ Government of a hostile region could possess itself of goods which had been allowed to enter its territory.

With regard to the question of condemning the ship the Chief Justice held that there was not sufficient evidence to warrant confiscation. He cited the case of the _Hook_,[17] which was condemned in 1801, but held that the case of the _Mashona_ was not on all fours with the conditions of that decision. He took the view that the case of the _Mashona_ was more nearly analogous to the cases of the _Minna_ and the _Mercurius_,[18] and consequently declared for the restoration of the ship.

[Footnote 17: I.C. Rob., p. 200; Moore, Digest of Int. Law, Vol. VII, p. 534.]

[Footnote 18: The _Minna_ (Edwards 55, n.; Roscoe, English Prize Cases (1905), p. 17, note) was restored by Sir William Scott in 1807 on the ground that her voyage was _contingent_ not _continuous_. The ship had been captured on a voyage from Bordeaux, destined ultimately to Bremen, but with orders to touch at a British port and to resume her voyage if permitted. The _Mercurius_ (Edwards 53; Roscoe English Prize Cases (1905), p. 15) was restored by the same judge in 1808 on the ground of an "_honest intention_" to procure a license before trading with the enemy.]

One justice concurred on the main point at issue, namely, that there appeared to be "sufficient proof in the present case of an honest intention to pass a bond at Algoa Bay not to take the goods to Delagoa Bay except with the permission of the proper authorities.... The presumption of an intention of trading with the enemy, arising from the fact that the ship was carrying enemy's goods consigned to Delagoa Bay and destined for the enemy's country, is entirely rebutted by the conduct of all the parties interested in the ship. The claim for the restitution of the ship must consequently be allowed."[19]

[Footnote 19: Decision at Cape Town, March 13, 1900, Chief Justice, Mr. Justice Buchanan concurring.]

One justice dissented from this opinion and argued that "as soon as war broke out, it became the duty of the master to decline to convey any goods which, from the papers in his possession, appeared to be the property of enemy consignees." It was contended by this justice that "his contract of affreightment could not be fulfilled" in any event, and he should have been aware of this fact. Further, it was urged that there was not convincing evidence to "establish that there was no intention on the part of the master of the ship to trade with the enemy, except with the permission of the proper authorities. In the circumstances, such a defense must be established by very clear proof; ... although there is no reason whatever to impute any disloyal intention, or _mala fides_, ... the proof of non-liability on this ground has not been made out." On the contrary, it was insisted, in this dissent from the leading opinion, "there seems to be an absence of proof that it was not the intention ... to deliver these goods to the consignees unless prevented from doing so by some competent authority; and this cannot be regarded as equivalent to proof that [the master] intended to apply for and obtain a license before engaging in intercourse which, in the absence of the license, was of an unlawful character. From the moment this ship left New York harbour ... she was liable _stricto jure_ ... to seizure and condemnation; as she was still without a license when seized, _stricto jure_ the liability remains."[20]

[Footnote 20: Decision, March 13, 1900; Mr. Justice Lawrence dissenting.]

The fate, however, of the ship itself was of interest to third parties only in so far as its disposition involved the rights of neutrals whose goods were on board. Great Britain's action in seizing her own ships, or ships chartered by her own subjects, had the effect of placing a virtual blockade upon a neutral port, for few but English ships carried for the Transvaal or Orange Free State, a fact which bore with especial hardship upon American shippers. The "detention" of all Delagoa Bay cargoes in British bottoms, provided a few articles were found consigned to the Transvaal, was a practice which was indignantly protested against by all neutral shippers upon English vessels. The injustice which this practice worked was forcefully brought home to the United States by an apparent disregard of the property rights of innocent neutrals in the seizure of two other ships at about the same time as that of the _Mashona_.

THE BEATRICE.--This ship, also clearing from New York, was reported in December, 1899, to have been compelled by the English naval authorities to discharge all of her Delagoa Bay cargo into lighters at East London, some six hundred miles distant from Lorenzo Marques. It was pointed out by the New York shippers in their protest addressed to Secretary Hay at Washington that, according to the terms of the American and African bill of lading, the steamship line was thus relieved of any further responsibility, since the goods were at the risk and expense of the consignees after leaving the ship's side.[21]

[Footnote 21: For. Rel., 1900, p. 533, Norton and Son to Geldart, Dec. 14, 1899.]

The shipments had been made, many of them on regular monthly orders, to Portuguese and other firms in Lorenzo Marques. The policy of insurance did not cover war risks, and the company holding the insurance declared that it was not responsible for any accident which might occur while the merchandise was lying in lighters or hulks at a port of discharge which had been forced upon the ship by the English authorities.[22] That portion of the cargo of the _Beatrice_ which was shipped from New York consisted of large consignments of flour, canned goods, and other foodstuffs, but included also a consignment of lubricating oil as well as a miscellaneous assortment of light hardware, but none of the articles shipped were of a contraband character in the usual meaning of that term. Part of the flour was branded Goldfields and part was labelled Johannesburg, although the whole consignment was marked Delagoa Bay. The American shippers averred that although they regularly sold flour to merchants engaged in trade in various parts of South Africa they "had never sold flour with direct or ulterior destination to the South African Republic, by re-sale or otherwise." They made affidavit that all of their sales had been made for the ordinary uses of life, and that "since the war had broken out they had made no sales of flour to merchants or others in the South African Republic."[23]

[Footnote 22: According to the terms of sale, on time, the shippers pointed out the obvious fact that unless the goods were delivered, the Delagoa Bay consignees as well as others would refuse to honor the drafts drawn upon them for the amount of the purchase. Consequently the loss would fall upon the American shippers should Great Britain persist in turning aside innocent consignments from their neutral port of destination.]

[Footnote 23: For. Rel., 1900, p. 565; Choate to Salisbury, Jan. 13, 1900.]

The reason assigned in the official report of the English authorities for their action in regard to the _Beatrice_ was that she "contained large quantities of goods, principally flour, destined for the South African Republic, which the customs authorities at East London required should be landed at that port." Since the cargo was stowed in such a manner as to make it impossible to land goods destined for the Republic without also discharging goods intended for Portuguese East Africa, it was alleged that the master and agents of the ship preferred to land the whole of the cargo at East London, where it was stowed by the customs. But it was admitted that the removal of large quantities of the goods so landed had been permitted from time to time "for the purposes of local and _bona fide_ Portuguese consumption." The consignment to the Netherlands South African Railway was held to be enemy's property since it was considered that the railway was owned by the Republic. The specific reason assigned for the arrest of the steamer was "that the _Beatrice_ being a British ship, was by carrying goods destined for the enemy's territory, illegally engaged in trade with the enemy in contravention of Her Majesty's proclamation of December 27, 1899."[24] The vessel sailed for Calcutta in ballast on December 11, 1900.

[Footnote 24: For. Rel., 1900, p. 574; Salisbury per Bertie to Choate, Jan. 26, 1900. This proclamation was not retroactive in the sense that it established a new prohibition, but was merely explanatory of an accepted restriction upon trade with the enemy by British subjects. Supra, p. 116.]

THE SABINE.--On February 22 the last of the ships clearing from New York for South African ports was reported to have been seized at Port Elizabeth, seven hundred and fifty miles from Lorenzo Marques. The _Sabine_ was also a British ship with Mossel Bay, Algoa Bay, and Durban among her ports of call, and carried shipments aggregating thirty to forty thousand dollars in value made by New York merchants to these ports, all of which are in British territory. But in addition to the allegation which had been brought against the _Maria_, _Mashona_, and _Beatrice_, of trading with the enemy, it was suspected that the _Sabine_ was carrying actual contraband of war. The latter suspicion, however, was not pressed, although the authorities who stopped and examined the ship upon the specific charge of violating a municipal law asserted that the _Sabine's_ "papers were not in proper form and that goods were found on board which, though shipped to ports this side were marked to persons residing in Boer territory." The case was viewed by the English Government "as a very suspicious one under municipal law, but, as the evidence was not very complete, they gave the vessel the benefit of the doubt."[25] After a short detention both ship and cargo were released.

[Footnote 25: For. Rel., 1900, pp. 594-595.]

The news of the reported seizures aroused considerable popular feeling in the United States. In the Senate a resolution was introduced which, as finally amended, read: "Whereas it is alleged that property of citizens of the United States not contraband of war has been lately seized by the military authorities of Great Britain in and near Delagoa Bay, South Africa, without good reason for the same, and contrary to the accepted principles of international law; and, Whereas it is alleged that property of citizens of the United States is now unjustly detained by the military authorities of Great Britain, in disregard of the rights of the owners of the same; therefore, Resolved by the Senate of the United States, That the President is hereby requested to send to the Senate, if not, in his opinion incompatible with the public interests, all information in possession of the State Department relating to the said alleged seizure and detention, and also to inform the Senate what steps have been taken in requesting the restoration of property taken and detained as aforesaid."[26]

[Footnote 26: 56 Cong., 1 Sess., Jan. 17, 1900, Record, Vol. 33, Pt. 1, pp. 895, 900.]

The final clause of the resolution as at first introduced was stricken out after a discussion as to whether the Secretary of State should be "_directed_" or the President be "_requested_" to furnish the desired information. It was realized that the language of the expunged clause, "and whether or not the Department has informed the proper British authorities that, if said detention is persisted in, such act will be considered as without warrant and offensive to the Government and people of the United States," was neither diplomatic in its tone nor warranted by the circumstances. Amicable negotiations were still in progress, and those negotiations were concerned with a discussion of the very question which would thus have been decided in the affirmative by the Senate, namely, that the seizures had been contrary to the principles of international law. Consequently the resolution only declared that it was "alleged" that Great Britain had departed from the strict principles of international law, and it was not intimated that her persistence in such acts would probably require a resort to more forcible measures than mere protest on the part of the United States.

A motion had been made that the resolution be referred to the Committee on Foreign Relations, where it was hoped by certain members of the Senate that it would die a natural death, an end which would have been deserved under the circumstances, since the event to which the resolution referred was then in the course of diplomatic consideration and nothing had indicated that the State Department would not be able to secure protection for the interests of all citizens of the United States as neutrals during a recognized belligerent contest. An unsettled question of international law was at issue between Great Britain and the United States, and was being dealt with as fast as official information reached the British Foreign Office from the scene of the occurrences which were alleged to have been in contravention of established principles. Flour or any other foodstuff might or might not be contraband of war according to the particular circumstances of the case. As a general rule products like flour shipped from a neutral State are not contraband, but it is always a question of fact whether the immediate destination of such flour is for hostile purposes, namely, the sustenance of a belligerent army. If flour or foodstuffs generally were so destined they became contraband of war for the particular case.

Not less than twenty thousand barrels of flour had been shipped by citizens of the United States upon the three steamers, _Maria_, _Mashona_, and _Beatrice_, and the proposer of the resolution insisted that the Senate was entitled to know in what manner the rights of the United States were being asserted in view of the obvious hardship which _bona fide_ neutral shippers had thus suffered. He urged that the seizure of property of citizens of the United States by one of the belligerents was "a thing which profoundly affects the American people; it affects every corn grower, every wheat farmer, the owner of the cattle upon a thousand hills, the mill man, the middleman, everybody who is interested in producing and exporting the products of the farm and the field is interested in this question and is entitled to know what has been done in this case."[27]

[Footnote 27: Hale of Maine, 56 Cong., 1 Sess., Rec., Vol. 33, Pt 1, p. 896.]

It is to be hoped that the Senator's constituents read this speech in the next morning's papers, for otherwise it must go down in history as a burst of eloquence wasted upon unhearing ears. Had he been able to pass his resolution so worded as to "_direct_" the Secretary of State to throw open the entire files of the Department's foreign correspondence for the Senate's inspection, instead of merely "_requesting_" the President to furnish such information as the Senate desired "if not, in his opinion, incompatible with the public interest," the result would have been practically the same. In either event the President would have controlled the situation, since he can not be compelled to furnish information to the Senate when he considers it incompatible with the public interest to do so. The only power possible to be exercised by the Senate over the Executive in such a case is that of impeachment. And should impeachment be possible or advisable the process could be carried through as well with the words, "if not, in his opinion, incompatible with the public interest," _out_ of a resolution as with those words _in_ such a formal request of the Senate.[28]

[Footnote 28: Teller of Colorado, 56 Cong., 1 Sess., Record, Vol. 33, Pt. 1, p. 898.]

As a rule it is unwise for the Senate to interfere while negotiations are pending between the Executive Department and foreign Governments over any question which is at issue. Should a resolution "_requesting_" information upon any subject be deemed necessary, it should obviously be addressed to the President and, merely for the sake of courtesy, with the usual _caveat_. It should not be "directed" to the Secretary of State, for that official stands in a different relation to the legislative department from that of the secretaries of any of the other departments. The Secretary of State is not required by law to report to Congress as are all the other Cabinet officers. He has been exempted from that requirement for the reason that his duties are mainly diplomatic. Negotiations carried on with foreign Governments upon matters of a delicate character might involve serious embarrassments if during their pendency the successive steps were reported to Congress.[29] The power of the President in consultation with the Secretary of State to deal with foreign Governments at least up to the last moment and final consent of the Senate has made it possible for the United States to preserve a fairly uniform foreign policy. For despite the repeated changes of administration and of domestic policies the general foreign policy has been closely modeled upon the expedient course of absolute neutrality laid down by Washington. Were it a practical requirement of the Constitution that all foreign correspondence upon any important question should be at once laid before the Senate, it is reasonable to suppose that few treaties or important conventions would finally be ratified. In a question of international law such as that under discussion between the Governments of Great Britain and the United States, it would have been extremely unwise during the negotiations for the Senate to interfere in any way with the regular course of diplomatic intercourse between the two Governments.

[Footnote 29: Platt of Connecticut, 56 Cong., 1 Sess., Record, Vol. 33, Pt 1, p. 899.]

In the end the Hale Resolution was agreed to, but nothing came of it, for the State Department found the English Government not unwilling to make an equitable settlement for the losses which citizens of the United States had incurred as a result of the seizures of British ships carrying American goods from New York to Delagoa Bay.

THE LEGALITY OF THE SEIZURES.

While the fruitless discussion had been in progress in the Senate Secretary Hay had been dealing with the question in such a manner as to safeguard all American interests, but at the same time with a full consideration of the necessity for protesting against any undue extension of belligerent rights. Immediately following the seizure of the British ships clearing from New York with American goods on board he had requested a prompt explanation. In his instructions to Ambassador Choate he said: "You will bring the matter to the attention of the British Government and inquire as to the circumstances and legality of the seizures."[30] And later, Mr. Choate was further instructed to ascertain "the grounds in law and fact" upon which the interference with apparently innocent commerce between neutral ports was made, and to demand "prompt restitution of the goods to the American owners if the vessels were seized on account of a violation of the laws of Great Britain, as for trading with the enemy; but if the seizure was on account of the flour ... the United States Government can not recognize its validity under any belligerent right of capture of provisions and other goods shipped by American citizens to a neutral port."[31] Mr. Hay pointed out the fact that the American shippers had produced evidence intended to show that the goods were not contraband in character, and should this prove to be true prompt action was to be requested on the part of Great Britain in order to minimize as far as possible the damage to neutral goods.

[Footnote 30: For. Rel., 1900, p. 534; Hay to Choate, Dec. 21, 1900.]

[Footnote 31: For. Rel., 1900, pp. 539-540; Hay to Choate, Jan. 2, 1900.]

The position taken by the English Government was indicated on January 10 in a note handed to Mr. Choate: "Our view is that 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 their seizure."[32] Lord Salisbury verbally added that the British Government did not claim that any of the American goods were actual contraband, but that the ships had been seized on a charge of trading with the enemy, and it was intimated also that "an ultimate destination to the citizens of the Transvaal, even of goods consigned to British ports on the way thither, might, if the transportation were viewed as one continuous voyage, be held to constitute in a British vessel such a trading with the enemy as to bring the vessel within the provisions of the municipal law."[33] He asserted that the offense was cognizable by a prize court alone, but admitted that "if the owners of the cargoes, being neutrals, claim that they are innocent, the cargoes should not be condemned with the ship but should be delivered over to them."[34] He suggested that the ordinary course would be that the owners should claim the cargoes in the prize court, where the cases would be considered and properly dealt with on their merits.[35] The owners would be requested, he said, to prove that they were the _bona fide_ owners by submitting bills of lading and invoices to the court. It was intimated that the American flour which had been removed from the ships was not detained in any way but was perfectly open to the owners to make whatever arrangements they pleased for its immediate removal. If they considered themselves aggrieved by the action of the English authorities in causing the flour to be landed it was of course open to them to take such proceedings against the persons concerned as they were advised might be appropriate under the circumstances.[36]

[Footnote 32: For. Rel., 1900, p. 549; Salisbury per Choate to Hay.]

[Footnote 33: For. Rel., 1900, p. 609; Hay to White, March 20, 1900, citing Choate's despatch of April 26, 1900.]

[Footnote 34: For. Rel., 1900, p. 549.]

[Footnote 35: See Story, Manual of Naval Prize Law (1854), pp. 46-71, where the practice in such cases before prize courts is stated; in other portions of the work the claims made by innocent or interested parties are considered.]

[Footnote 36: For. Rel., 1900, p. 549, Salisbury, speaking with special reference to the _Mashona_ and _Maria;_ Choate to Hay, Jan. 10, 1899.]

Mr. Choate at once retorted that in such a case the United States would very probably send the bill to the British Government. The fact was pointed out that the operation of the English law did not lessen the obligation incumbent upon Great Britain to restore the goods to their _bona fide_ neutral owners or to the neutral consignees. Although the permission had been given to the owners to come and take their goods at the ports of detention, short of the original port of destination, this permission could not be considered as discharging the obligation to restore the goods. The representative of the United States insisted that nothing short of delivery at their port of consignment would fulfill the English obligation in a commercial sense such as to give the goods the value intended. It was clearly shown that under the application of the English municipal law the goods in question became as inaccessible to their owners for all the purposes of their commercial adventure "as if they had been landed on a rock in mid-ocean."[37] In his criticism of the English position, Mr. Choate said: "The discharge from the vessel and landing short of the port of destination and failure to deliver at that port, constitute wrongful acts as against all owners of innocent cargoes."[38] And he pointed out the inconsistency of the position since it was not claimed that any but British subjects could be guilty of any violation of the English prohibition against trading with the enemy. He was accordingly instructed to insist that the obligation rested upon the British Government to indemnify the neutral owners and make good to them all damages and loss sustained by the treatment to which they had been subjected.

[Footnote 37: For. Rel., 1900, p. 585; Choate to Salisbury, Feb. 6, 1900.]

[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.]

[Footnote 44: For. Rel., 1900, p. 543; Choate to Salisbury, Jan. 4, 1900.]

The view of the Department was that nothing seemed to justify the seizure of the American goods, for to all intents and purposes they were _seized_ although it was considered by Great Britain that they had merely been _detained_ as an incident of the seizure of the ships on which they were carried. Since the flour was sold delivered at Delagoa Bay it was therefore the property of the United States shippers until the obligation of delivery was fulfilled irrespective of the drafts made against it on Delagoa Bay. Upon the return of these drafts unpaid the flour was left in a critical position even if released.[45]

[Footnote 45: For. Rel., 1900, p. 548; Toomey to Hay, Jan. 10, 1900.]

It was clearly shown that the flour had been sold in the regular course of business as for a number of years past, shipments being made of so many bags each month to their regular users who anticipated their ordinary requirements. The consignees, it was urged by the American shippers, were reputable merchants in Delagoa Bay, and the consignments were not of an unusual character but were a part of the ordinary commerce with the East coast.[46] It was admitted that certain of the consignments had been to residents of Johannesburg, but it was at the same time asserted that the consignees were legitimate flour merchants who were not contractors for the Transvaal Government at the time the purchases were made.[47]

[Footnote 46: For. Rel., 1900, p. 567; Choate to Salisbury, Jan. 15, 1900.]

[Footnote 47: For. Rel., 1890, p. 584. Affidavit of A.J. Toomey, President of the Penn. Milling and Export Co., Jan. 23, 1900.]