CO885-(13-15) — Page 659

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

to the

present

5. Can a neutral vessel, whose destination is either a neutral or a British port-but whose

contains contraband of war Cargo 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?

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 us follows :—

"1. After the outbreak of war, a mer chant-vessel belonging to a neutral State may

be visited on the high seas or in the waters of the belligerent nations, and, if 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, primâ jacie, not liable to seizure if it is consigned to a neutral port. It would not be liable to seizure if bonê 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. 230A.

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 be 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 públic Notice or Proclaum- 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 energy'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 course, not be allowed. The enemy will, of 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 be desirable.

9. With reference to the instructions contained in the letter from the Foreign Office to the Colonial Office of the 23rd

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C.O.885

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