PUBLIC RECORD OFFICE
Reference :-
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BEPLEC.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
(B.) With special reference peculiar circumstances of the hostilities:
whose
to the
present
5. Can a neutral vessel, whose destination is either a neutral or a British port-but cargo contains contraband of war with an ulterior hostile destination to the Transvaal or Orange Free State, which can only be renched by transhipment and by overland conveyance through neutral or British territory-lawfully be detained by Her Majesty's ships of war, either on the high seas or in British territorial waters ?
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also liable to condemnation. We are, how- ever, not aware of any instance in which this offence has been held to have been committed when the destination of the vessel was to a neutral port, on the ground that the ultimate destination of the goods was liable.'
We are disposed to think that it may be committed under these circumstances, but the point is not covered by authority, so far as we know.
We should point out that this question is probably of practical. importance only as far as contraband of war is concerned.
As regards such goods as are contraband of war, we think that they should be brought in for adjudication along with the vessel, whether found on the high seas or in British waters.
To guard against misapprehension we should add that we have assumed that it is not intended to exercise the absolute right to confiscate the private property of in- dividual enemies under all circumstances.
(B.) 5. In answer to this question we think it best to repeat the opinion* already given by us on the subject of seizure on the high seas or in British waters, which is as follows :—
"1. After the outbreak of war, a mer- chant-vessel belonging to a neutral State waters of the belligerent nations, and, if may be visited on the high seas or in the
longing to the enemy, may be seized and found carrying contraband of war be- carried into port for adjudication before a Prize Court.
"It depends on the circumstances whether the ship, as well as the cargo, is liable to condemnation. The fact that the contraband is consigned to a neutral port will not affect this liability.
"2. Where a neutral vessel carries con- traband of war belonging to a neutral it is, primá jacie, not liable to seizure if it is consigned to a neutral port. It would not be liable to seizure if bonâ fide consigned to the neutral port for the purpose of being sold there, even if the purchaser would resell to the enemy. This was the view asserted by this country in the case of the Springbok during the American Civil War.
**
We think that it would be liable to seizure though belonging to a neutral, if it was to be delivered at a neutral port to the agents of the enemy to be forwarded for use by him, or if it was at the time of seizure intended to be sent on from the neutral
• See No. 230▲.
6. Whether goods, of whatever nature, consigned to enemy individuals in the Transvaal or Orange Free State, are not, if once landed in British territory after the outbreak of hostilities, liable to seizure as being the property of one belligerent in the territory of the other?
7. Whether, if the answer to the previous question he in the affirmative, enemy goods on a British merchant-vessel coming into British territorial waters after the outbreak of hostilities, may not technically be liable to seizure on the vessel while she is within the territorial waters, on the ground that in this case the ship, as well as the water on which she is floating for the time being, is British territory ?
8. Having regard to all the circumstances of the case, and to the answers which you may return to the foregoing questions, has it now become, in your opinion, incumbent on, or desirable for, Her Majesty's Govern- ment to issue any publie Notice or Proflama- tion on the subject of the establishment of Prize Courts or otherwise, beyond the Proclamation (G), of which a epy is inclosed, issued by Her Majesty's High Commissioner in South Africa on the
9. These questions are framed with a view of ascertaining what is the strict measure of the legal rights possessed by
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port to the enemy-in other words, if its. ultimate destination at the time of seizure was the enemy's country. This case, how- ever, may raise questions of much difficulty and delicacy, and the rules of international law upon it cannot be said to have been finally settled.
"3. We think, as above stated, that the contraband would still be liable to seizure though consigned to a neutral port, if this was merely a step on the way to a belligerent destination.
"No visit or seizure can be made in the territorial waters of a neutral Power.
If the Portuguese can be induced to prevent Lourenço Marques being made an emporium for traffic in contraband, it may obviate the occurrence of troublesome questions with neutral Powers as to such consignments.'
6. The answer to this question' is in the affirmative, subject to the following ob- servations :-
The general right to seize enemy's private property in the other belligerent's country is in practice obsolete, and we cannot advise its exercise except in the case of goods suitable for use in war. Trade with the enemy will, of course, not be allowed. The goods cannot be forwarded to the enemy's country. If there is any reason to believe that the goods are really the property of the hostile Government the right of seizure, should, of course, be exercised.
7. The fact that the British vessel is navigating territorial waters makes for this purpose no difference, The treatment must be the same as if she were found with the goods on the high seas.
If, however, the vessel were lying in port, in a place which, if it were in England, would be considered as within the body of the country, we think that different con- siderations might apply, and that the goods might be seized just as if they were on land. This last point, however, is new, and we are not aware of any authority upon it.
8. We think that a Proclamation warning Her Majesty's subjects against trade with the Transvaal or Orange Free State would he desirable.
9. With reference to the instructions contained in the letter from the Foreign Office to the Colonial Office of the 2ård
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PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
Her Majesty's Government, and how far action already taken, or to be taken in the future by them, can be justified by such doctrines of naval prize, or other inter- national or semi-international law as can at present be described as established and generally accepted.
Lord Salisbury will, however, be much obliged if, in dealing with the matters specifically raised in these questions, you will also be good enough to offer such additional observations and suggestions as you think will be useful in dealing with ⚫the whole subject.
Royal Courts of Justice,
October 26, 1899.
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October, 1899, we suggestions:
make the following
(a.) If the British Commander satisfies himself that the destination is to a British port, no further steps need be taken. The authorities at the port can see that the goods are not forwarded to the enemy.
(b.) The search can in no case be made in the waters of a neutral Power.
(c.) It is not necessary that the vessel should be taken to a port where there is a Prize Court. It is enough if she is taken to British port; proceedings may then be taken in any Prize Court having jurisdic-
tion.
(d.) Food-stuffs are contraband only if destined for the supply of the enemy's forces.
By way of general observation we have only to aid that, having regard to the novel and difficult questions of international law which might arise with neutral Powers, we would again urge the expediency, if it be possible, of avoiding the exercise of the right of search of neutral vessels by securing the performance by Portugal of her undertaking with reference to Lourenço Marques. That undertaking, if carried out, prevents all arms and munitions of war from reaching the enemy. The term "munitions of war, we think, may include supplies of food for the enemy's forces. But even if Portugal refuses to take this view as to food-stuffs,
We
submit for consideration whether, having regard to our relations with other Powers, and the great interest which this country has in the free importation of food-stuffs in time of war, it is desirable to stop and take in for condemnation neutral vessels carrying food-stuffs to Lourenço Marques.
RICHARD E. WEBSTER. ROBERT B. FINLAY.
29677.
SIR,
No. 236.
(SOUTH AFRICA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice,
October 26, 1899.
WE were honoured with your commands signified in Mr. F. Graham's letter H. C. to of the 25th instant, stating that he was directed by you to transmit to us the " accompanying copies of telegrams received from the High Commissioner for South Africa Gov. of 25/5/99. and the Governor of Natal, with reference to the question of compensation to private Natal to individuals in the latter Colony for losses occasioned by hostilities between Her Majesty's 8. of S., Government and the Government of the South African Republic.
4/10/99. Gov. of
That in his telegram of the 25th May, 1899, the High Commissioner reported that Natal to he had received information from the Governor of Natal that the inhabitants in the S. of 8., northern districts of that Colony were becoming anxious at the warlike preparations of 4/10/99. the Government of the South African Republic on the border, and that his Ministers H. C. to were asking for some assurance that the support of Her Majesty's Government would be 8/1099. given to Natal in the event of hostilities. That Sir A. Milner added that he had telegraphed to the Governor of Natal as follows :-" You can tell Minister from me that it is out of the question that Her Majesty's Government should tolerate any invasion of Natal. I think such an event highly improbable, but if it occurred Natal would be defended with whole force of the Empire and redress exacted for any injury to her." That he further expressed the hope that Her Majesty's Government would endorse his message, and that by telegram on the 28th May you expressed your approval of it.
That at the beginning of the present month the Governor of Natal reported in his telegrams of the 4th instant that the President of the Mooi River Farmers' Association bad inquired whether the Imperial Authorities would compensate Natal Colonists for losses incurred through hostilities with the Transvaal, and that the Prime Minister had consulted him as to whether an attempt should be made to defend Newcastle if it were attacked before troops could be sent up. That to the first inquiry he stated that he had replied that if Natal should be attacked it would be defended by the whole force of the Empire, and that redress would be exacted for any injury done to Natal or to Her Majesty's loyal subjects in the Colony due to such attack, or, in other words, in the sense of the High Commissioner's telegram to him of the 25th May, but with the addition of the last sentence. That with regard to Newcastle he said that he had felt constrained, after consulting the General Officer Commanding, Natal, to advise that, until the General Officer Commanding, Natal, was in a position to send up necessary troops, no attempt should be made to defend the town, and that he had stated that if the town should be taken ample reparation would be exacted for any pecuniary loss that individual citizens or the town might sustain.
That the High Commissioner, in his subsequent telegram of the 6th instant, reported that he had received a further communication from the Governor of Natal, stating that the Mayor of Newcastle had inquired whether he was to understand that, in the event of property being destroyed in the district, the Government would guarantee full compensa- tion; that the Prime Minister had replied that it was a question for the Imperial Government; that the terms of the High Commissioner's telegrain did not justify him in going beyond the assurance already telegraphed; that he thought some more definite assurance would do good, but that it was necessary to guard against bogus claims, and that the terms would have to be carefully worded.
That the High Commissioner added that he did not see that Her Majesty's Govern- ment could go further than the pledge contained in his telegram of the 25th May and the Secretary of State's reply of the 28th May, but that he would be glad of instructions on the point.
That Mr. Graham was to refer us to our opinion of the 17th August last, with reference to certain claims for compensation for losses incurred by various persons in
• No. 225.
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