CO885-(13-15) — Page 658

PUBLIC RECORD OFFICE

Reference :-

C.O.885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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Many of the points which are raised in them have been dealt with either wholly or in part in the Reports and advice which you have tendered to this Depart- ment and the Colonial Office and Admiralty respectively, but Lord Salisbury thinks that it will be convenient, not only to Her Majesty's Government and to the various Departments concerned, but to yourselves, if you will be good enough to deal with them collectively in the form in which they are now submitted.

(A.) Generally:

1. In what circumstances and to what extent can food-stuffs with a hostile destina- tion be considered as contraband of war?

2. Whether, and, if so, in what circumstances and on what grounds can goods in their nature contraband of war lawfully be removed by the local police, or customis or other authorities, from a neutral vessel in British territorial waters; or whether in any case where such neutral vessel is stopped and searched for contraband of war, either on the high seas or in the territorial waters of either belligerent, the goods alleged to be contraband must not to be left on board, and the vessel and cargo taken in for adjudication before a duly constituted Prize Court?

3. Can goods the property of, or consigned to enemy individuals, and whether such goods be (a) in their nature contraband, and (B) not contraband of war, lawfully be detained when found on a neutral vessel in British territorial waters?

4. Can goods, such as are mentioned in the previous question, lawfully be detaine. when found on a British vessel in British territorial waters?

(B.) With special reference to the peculiar circumstances of the present hostilities:

3. Can a neutral vessel, whose destination is either a neutral or a British port-but whose cargo contains contraband of war with an ulterior hostile destination to the Transvaal or Orange Free State, which can only be reached 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?

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 of the belligerents in the territory of the other?

7. Whether, if the answer to the previous question be in the affirmative, enemy's 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 those 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 Government to issue any public Notice or Proclamation on the subject of the establishment of Prize Courts or otherwise, beyond the Proclamation (G), of which a copy is inclosed, issued by Her Majesty's High Commissioner in South Africa on the 12th October last?

These questions are framed with a view of ascertaining what is the strict measure of the legal rights possessed by 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 and international 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 allitional observations and suggestions as you think will be useful in dealing with the whole subject.

GENTLEMEN,

FOREIGN OFFICE to LAW OFFICERS.

I have, &c.,

FRANCIS BERTIE.

Foreign Office, October 23, 1899.

WITH reference to my other letter of this day's date respecting the treatment of contraband of war, I have the honour, by direction of the Marquess of Salisbury, to transmit to you the draft of a letter which has been addressed to the Colonial Office on the subject.

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In view of the large amount of munitions of war and food-stuffs which, as Her Majesty's Government are informed, is being carried to the Portuguese port of Lourenço Marques, and the ultimate destination of which is undoubtedly the Transvaal and the Orange Free State, it became necessary at once, and before awaiting your Report, to issue provisional instructions as to the action to be taken in the matter by the British Naval authorities.

I have the honour to request you to take the inclosed draft into your consideration in connection with my other letter of this day's date, and to favour Lord Salisbury with your opinion as to what modifications, if any, should be made in the instructions which have been provisionally issued.

I have, &c.,

REPORT BY

LAW OFFICERS.

FRANCIS BERTIE.

We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to

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REPORT-

(A.) Generally:

In what circumstances and to what extent Can food-stuffs with a hostile destination be considered as contraband

of war ?

2. Whether, and, if so, in what cir- cumstances and on what grounds can goods in their nature contraband of war lawfully be removed by the local police, or customs, or other authorities from à neutral vessel in British territorial waters; or whether in any case where such neutral vessel is stopped and searched for contraband of war, either on the high seas or in the territorial waters of either belligerent, the goods alleged to be contraband must not be left on board, and the vessel and cargo taken in for adjudi- duly constituted Prize cation before Court?

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3. Can goods the property of or con- signed to enemy individuals, and whether such goods be (a) in their nature con- traband, and (B) not contraband of war, lawfully be detained when found on a neutral vessel in British territorial waters ? 4. Can goods such as are mentioned in the previous question lawfully be detained when found on a British vessel in British territorial waters ?

That, (A) 1. Food-stuffs 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 desti- nation at the time of seizure.

We submit, for consideration, that any extension of the doctrine of contraband as applied to food-stuffs would not be for the interests of this country.

2. In every case in which goods supposed to be contraband are found on board a neutral vessel, the goods should be left on board, and the vessel and cargo taken for adjudication before a Prize Court. Such goods cannot be lawfully removed from the neutral vessel, even though she is in British waters.

3. The neutral flag covers the goods not being contraband of war even while the vessel is navigating British waters; and they cannot be detained. If the goods are contraband, the vessel with its cargo should be brought in for adjudication.

4. As regards private property of in- dividuals of the enemy's State not being contraband of war, it would be liable to be detained when found on a British ship, navigating British territorial waters, only in cases in which it would be liable to seizure if the ship were on the high seas. It would be liable to seizure in both these cases if the vessel were trading with the enemy, an offence which renders the vessel

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