N
C.O.885
14
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIL-
9
rice or provisions generally in the two cases seems to me to have been so wide and general in their application that it was an undue interference with the trade of neutrals, and could not in any intelligible sense be said to be an aiding of the hostile forces.
On the other hand, when the circumstances of this particular war, in which the whole of the Orange Free State is in arms against us, and the mobility of its forces dependent, in a great mensure at all events, upon the extent to which they can get supplies of provisions, it appears to me that within the narrowest view of what is or is not contraband of war, provisions, under these circumstances, and in respect of this particular war are, to use Mr. Hall's phrase, "as noxious as arms," and I should have thought their destination, with reference to the ordinary course of trade at Lourenço Marques, not difficult to establish.
I am therefore of opinion that if I am right as to the question of fact, which I have assumed for the purpose of my last observation, the carrying of provisions to Lourenço Marques, for the purpose of consumption in the Orange Free State, is an act of aiding and assisting the enemy to a degree which, in any view of international law, justifies the prohibition of such supply.
I do not desire to express any opinion adverse to that of the Law Officers, speaking generally, because I observe that in answer to the first question the Law Officers assume that if in fact, the destination of “food-stuffs" at the time of seizure was simply for the enemy's forces, they would be contraband of war. But there is an observation made on p. 1 of the printed matter. B 5. 1, apparently quoted from some former opinion, which contains what I think is an erroneous limitation. On the fifth line of that paragraph the words occur "helonging to the enemy." I think these words must have slipped in by an oversight. If the goods are contraband of war, and are destined to reach the enemy, it matters not at the time of seizure who is the proprietor
thereof.
With respect to Question 6. I am not certain that the Law Officers have quite understood the application of the question. I understand it to mean to refer to goods landed in British territory, and consigned to enemies either in the Orange or Transvaal States. It seems to me that such goods can properly he seized-they form part of a trading with the enemy through British territory, and though in their answer the Law Officers say trade with the enemy will of course not be allowed, the practical question with which the Cape authorities have to deal is the question of what is to be done with goods landed in British territory and consigned to the two Republics. To seize such goods, even although consigned to private individuals, I think is not obsolete in practice, since the landling of them in British territory for the purpose of being conveyed to the eneiny, is a trade operation which, I think, properly subjects them to
seizure.
I agree generally with the answers of the Law Officers, but I have designedly confined myself to dealing with the strict law raised by the questions, and do not express any opinion as to the policy indicated by them.
With respect to the question arising as to the importation of cyanide of potassium, it will depend, I think, upon the same grounds as those upon which the United States treated cotton as contraband of war. I presume the article in question is intended for and used in the extraction of gold, and is therefore more nearly allied to the obtaining money for the Transvaal Government than cotton was for the Confederate States. The principle, therefore, which should be applied must depend upon the facts which do or do not raise the same question as I have already treated of in respect of the supply of "food-stuffs."
HALSBURY.
House of Lords, November 9, 1899.
31293.
SIR,
No. 240.
(SOUTH AFRICA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice,
9th November, 1899. WE were honoured with your commands signified in Mr. Bertram Cox's letter of the 31st ultimo, stating that he was directed by you to forward for our consideration the Draft of an Order in Council prepared in the Colonial Office for the purpose of providing for the government of North-Western Rhodesia - Barotziland.
That the following was a brief statement of the circumstances which had rendered it desirable to pass a fresh Order in Council in the terms in which it had been drawn.
That Barotziland lies within the sphere of the operations of the British South Africa Company, and in 1890 a concession was obtained by them from Lewanika, the King of the Barotzi, giving them extensive commercial rights over the whole of his country, including the right to dig for gold in return for an annual payinent; that it was also stipulated that a British Resident should be sent up to live at Lialui, the capital, and that it was expressly stated in the concession that the King regarded himself as under British protection.
That the country was accordingly claimed as being within the sphere of British influence, and the Anglo-Portuguese Treaty of 1891 (Article IV.), in fixing the boundary between the British and the l'ortuguese possessions in Western Central Africa, laid down that the Barotzi Kingdom should remain within the British sphere. That in anticipation of a final delimitation of the western boundary of Barotziland, which was liable to involve a reference to arbitration, a modus vivendi line was arranged in 1893, fixing the Upper Zambesi and Cabompo Rivers as the provisional boundary. That repeated requests were made by Lewanika for a British Resident, but that it was not before 1897 that an officer was sent up by the British South Africa Company in that capacity with instructions from the Foreign Office, under which Department all matters relating to the British sphere north of the Bechuanaland Protectorate and of the Zambesi had hitherto been controlled. That up to the present the Africa Order in Council of 15th October, 1889, had been the sole instrument under which jurisdiction could legally be exercised in Barotziland, east of the modus vivendi line, but that Order, which allowed of the exercise of jurisdiction in cases between white persons only, appeared to be no longer sufficient, seeing that it was reported that a number of white persons were likely to proceed to Barotziland, and particularly to the eastern portion of it, the Mushu Kulumbwe country, for the purpose of obtaining concessions from subordinate native chiefs, and that it was certain that unless further administrative powers were assumed on behalf of the British Government a state of lawlessness would ensue which it was most desirable to prevent.
That Lewanika had agreed to grant to the British South Africa Company, whom he accepted as representing the British Government, administrative rights to deal with all cases between white men and natives, as well as between white men only.
•
That it had, therefore, been decided to pass a further Order in Council of 9th May, 1891 (under which jurisdiction was assumed over the Bechuanaland Protectorate and the country now designated as Southern Rhodesia, which were then in circumstances in most respects similar to those now obtaining in Barotziland), but subject to provisions by which the British South Africa Company would nominate the officers to be employed, and would
the cost of administration.
pay
That the adoption of this arrangement, by which the British Government and the High Commissioner for South Africa would remain directly responsible for the adminis tration of Barotziland, had been considered by the Foreign Office to be essential, in view of the susceptibilities of the Portuguese Government, which regarded the British South Africa Company with a considerable amount of distrust, and that the arrangement must continue, at any rate, until the exact line to be fixed as the western boundary of Barotzi- land had been finally determined.
That Mr. Bertram Cox was also to explain that all communication with Barotziland took place southwards by way of Bulawayo or Palapye, and it had, therefore, been agreed
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