R
17129.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
GENTLEMEN,
No. 26A.
(SOUTH AFRICA )
FOREIGN OFFICE to LAW OFFICERS.
Foreign Office, March 16, 1900.
I HAVE the honour to inform you, by direction of the Marquess of Salisbury, Carriage of that his attention has been drawn to the terms in which the question of the carriage Enemy
Military of Enemy Military Persons by the vessels of a neutral State is treated in "A Manual
Persons by of Naval Prize Law," by Professor T. E. Holland-a work which, as you are aware, Neutral was issued by authority of the Lords Commissioners of the Admiralty, and supplied by Vessels. them for the use of officers of Her Majesty's navy in time of war.
The Manual lays down (section 88) that “ a Commander should detain any Neutral Vessel which is being actually used as a transport for the carriage of soldiers or sailors by the Enemy:" (section 89) that "the vessel should be detained, although she may have on board only a small number of Enemy Officers, or even of Civil Officials, sent out on the public service of the Enemy and at the public expense;" (section 91) that "It will be no excuse for carrying Enemy Military Persons that the Master is ignorant of their character:" and (section 95) that "The penalty for carrying Enemy Military Persons is the confiscation of the Vessel and of such part of the Cargo as belongs to her Owner."
It will be convenient to consider what other writers on International Law have said on the subjects thus dealt with by Professor Holland.
Heffter, for instance (" Le Droit International de l'Europe;" 4" édition Française; augmentée et annotée par F. Heinrich Geffeken, 1883, pp. 395-97) observes that there can be no doubt that the voluntary transport by a neutral de soldats, matelots, ou autres hommes destinés au service militaire d'un belligérant' authorizes the seizure and confiscation of the carrying vessel and its cargo as far as that cargo is connected with the hostile object of the voyage."
Ortolan (as quoted by Calvo) expresses the opinion that "a neutral vessel which carries' des gens de guerre for a belligerent State loses its character of neutrality, and may be treated just like a belligerent."
Calvo ("Le Droit International Théorique et Pratique;" 4th edition, 1888; vol. V., pp. 74-78) also considers that the carrying vessel may be seized and confiscated, and the men on board made prisoners.
Wheaton ("Elements of International Law; "edited, with Notes, by R. H. Dana; 8th edition, 1866, pp. 630-59) lays it down that "a neutral vessel which is used as a transport for the enemy's forces is subject to confiscation if captured by the opposite belligerent." He also expressly adds: nor is it material in the judgment of the Prize Court whether the master be ignorant of the character of the service on which he is engaged."
In his notes to the above work, Dana quotes several cases bearing on this point, and says that the following doctrines may be deduced from them :-
"1. If a vessel is in the actual service of the enemy as a transport, she is to be condemned.
"2. If a vessel is not in the enemy's service, still, if the master knowingly takes for the enemy's Government, or its Agents, persons or papers of such a character and destination that the transporting of them under the neutral flag is an actual belligerent service to the State, it is an unneutral act, which forfeits the vessel. If he avers ig. norance of the character of the persons or papers, all the circumstances are to be con- sidered, for the purpose of determining not only the truth of his averment, but whether his ignorance, though real, is excusable. He is bound to a high degree of diligence in such cases, and, if the circumstances fairly put him on inquiry, which he does not pro- perly pursue, he will not be excused.
Bluntschli ("Le Droit International Codifié;" 3rd edition: Paris, 1881, p. 474) is of opinion that neither the troops nor the officers of a belligerent may be carried by a neutral, and that this applies to small numbers as well as to large, and to volunteers
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