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), Sec.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), Sec.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.]
