the restrictions which might legitimately be put upon German mail steamers Gr

as alleged to have been violated by English subjects in that they had traded with the enemy. But the fact was incontrovertible that the port of destination as well as that of departure was neutral. The burden of proof under the circumstances rested upon the captor to show that goods innoc

cted in time of war[1]. It was pointed out that, according to the law of Holland, of France, of Spain and as a matter of fact of all the States of Europe, "when one state is at war with another, all the subjects of the one are considered to be at war with all the subjects of the other and all intercourse and trade with the enemy is fo

1: 1 C.

International Law, Dana

ion of the cargo and of the ship engaged in such trade. The instructions are emphatic upon the point: "The commander should detain any British vessel which he may meet with trading with the enemy unle

miralty Manual of Naval

n the case of the Jonge Pieter (1801) goods purchased in England were shipped for an enemy port but were seized by a British cruiser under the right of a belligerent. It was attem

1802), 4 C. Rob. 251; the Franklin (1805), 6 C. Rob. 127; see also Kent's Commentaries, Vol. I, p. 87; Halleck, Inter

eference to foodstuffs bound for Delagoa Bay on board English ships the argument set up by the British authorities was not generally considered well founded, since little more than suspicion was produced as evidence to show that any of the ships really intended to trade with the enemy. There was no dissent f

course with the South African Republic and the Orange Free State, or with the subjects of these two states, within their territories, during the continuance of the present state of war."[5] Because of this prohibition, it was pointed out, all goods sent by English ships and intended for the South African Republic or the Orange Free State and ships of war, even in cases where the goods were not contraband of war, might be le

n Times, Nov. 24,

aid, abet, or assist the South African Republic or the Orange Free State in the prosecution of hostilities, nor carry on any trade with, nor supply any goods, wares or merchandise to either of those Republics or to any person resident therein, nor supply any goods, wares, or merchandise to any person for transmission to either Republic, or to any person resident there, n

cts, from one country to the other, all buying and selling of merchandise, contracts for transportation, as well as all operations of exchange, or the carry

and Foreign State Pap

tish Subjects against

ecember 2

blockaded one, but for a neutral harbor which was not even contiguous to either the Transvaal or Orange Free State. Other Governments, although ready to admit that it was competent for England to forbid her own subjects to trade with the enemy, were not willing to allow their resp

IA, MASHONA, BEAT

ria called at Port Elizabeth, whence she cleared for Delagoa Bay. On October 29 she put in for coal at Durban, three hundred miles from Lorenzo Marques, and was boarded by the commander of the English ship Tartar. The Maria's captain was willing to be visited and searched without protest. According to the official report, "no guard was placed on her," and "the agents were willing to land all the contraband."[8] The commander of the Tartar informed them that if this were submitted to the vessel need no longer be detained. When the Maria had been brought in and no contraband was discovered by the search, the agen

For. Rel.,

For. Rel.,

For. Rel.,

frican Railway, a thousand cases of lubricating oil, eighty-four cases of picks, twenty cases of handles, was seized as enemy's property, since there was sufficient evidence, it was thought, to show that these goods b

mer Matabele, when it seems for the first time to have occurred to the customs authorities that the flour might thus find its way to Pretoria by means of an English ship. According to the official report: "It was then provisionally detained again. But on it being found that the flour was bona fide a part of the Maria's cargo the agents and all parties concerned were told that no further restrictions would be placed on the shipment, but it was a

For. Rel., 1

emnity. The consignment of flour "detained" at Durban was purchased by the English Government at the price it would have bro

For. Rel., 1

It was therefore admitted that possibly some of the goods were removed on the erroneous supposition that she was a British ship and could not lawfully carry them. Had she been a Dutch ship leased by a British firm her liability

wn as prize on the charge of trading with the enemy. Consul-General Stowe reported the capture, and informed the Department at Washington that the Mashona carried five thousand tons of general cargo, including seventeen thousand bags of flour for the

, 1900, p. 529; Stone t

d out in the prayer of the owners of this portion of the cargo that while the British Government might be justified in seizing her own vessels, it appeared that the British naval authorities were illegally jeopa

00, p. 530; Hopkins and Hop

enzo Marques. To the best of their knowledge it was a German firm whose members were not citizens either of the Transvaal or of the Orange Free State. They showed that the goods were sold on four months' time dating from November 3, and consequently that their loss would fall upon the original shippers, who were citizens of the United States. The fact was pointed out that addi

Eddy and Co. to Hopkins and Hopkins, Dec. 9, 189

nemy's property since it was considered that the railway belonged to the Transvaal, the specific charge against the ship being that of trading with the enemy. The fact that a consignment of flour was billed to a Lorenzo Marques firm but labelled "

r. Rel., 1900, p

e ship nor the captain had any intention to trade with the enemy. So far as intention was concerned, it was shown that the captain had intended to pass a bond at Algoa Bay, one of the ports of call, undertaking not to deliver the goods at Delagoa Bay without the permission of the proper authorities. The three judges of the Supreme Court of Cape Colony sitting as a prize court came to diff

at Cape Town, March 13,

March 1

was sufficiently established to prevent their condemnation. The other justices dissented on this point. They held that the goods should be regarded in prize law as the property of residents of the Transvaal

resident upon enemy territory. In other words, those residing in hostile territory were regarded as enemies when there was a question of trading with the enemy. The same principle was applied when there was a question of prope

the Hook,[17] which was condemned in 1801, but held that the case of the Mashona was not on all fours with the conditions of that decision. He took the view th

. 200; Moore, Digest of In

nuous. The ship had been captured on a voyage from Bordeaux, destined ultimately to Bremen, but with orders to touch at a British port and to resume her voyage if permitted. The Mercuriu

goa Bay except with the permission of the proper authorities.... The presumption of an intention of trading with the enemy, arising from the fact that the ship was carrying enemy's goods consigned to De

at Cape Town, March 13,

uchanan c

t of the master of the ship to trade with the enemy, except with the permission of the proper authorities. In the circumstances, such a defense must be established by very clear proof; ... although there is no reason whatever to impute any disloyal intention, or mala fides, ... the proof of non-liability on this ground has not been made out." On the contrary, it was insisted, in this dissent from the leading opinion, "there seems to be an absence of proof that it was not the intention ... to delive

March 13, 1900; Mr. Just

tral port, for few but English ships carried for the Transvaal or Orange Free State, a fact which bore with especial hardship upon American shippers. The "detention" of all Delagoa Bay cargoes in British bottoms, provided a few articles were found consigned to the Transvaal, was a practice which was indigna

ast London, some six hundred miles distant from Lorenzo Marques. It was pointed out by the New York shippers in their protest addressed to Secretary Hay at Washington that, according to the terms of the

00, p. 533, Norton and Son

ce which was shipped from New York consisted of large consignments of flour, canned goods, and other foodstuffs, but included also a consignment of lubricating oil as well as a miscellaneous assortment of light hardware, but none of the articles shipped were of a contraband character in the usual meaning of that term. Part of the flour was branded Goldfields and part was labelled Johannesburg, although the whole consignment was marked Delagoa Bay. The Ameri

goa Bay consignees as well as others would refuse to honor the drafts drawn upon them for the amount of the purchase. Consequently the loss wou

1900, p. 565; Choate to S

rging goods intended for Portuguese East Africa, it was alleged that the master and agents of the ship preferred to land the whole of the cargo at East London, where it was stowed by the customs. But it was admitted that the removal of large quantities of the goods so landed had been permitted from time to time "for the purposes of local and bona fide Portuguese consumption." The consignment to the Netherlands South African Railway wa

mation was not retroactive in the sense that it established a new prohibition, but was merely exp

, all of which are in British territory. But in addition to the allegation which had been brought against the Maria, Mashona, and Beatrice, of trading with the enemy, it was suspected that the Sabine was carrying actual contraband of war. The latter suspicion, however, was not pressed, although the authorities who stopped and examined the ship upon the specific charge of violating a municipal law asserted that th

For. Rel., 190

rica, without good reason for the same, and contrary to the accepted principles of international law; and, Whereas it is alleged that property of citizens of the United States is now unjustly detained by the military authorities of Great Britain, in disregard of the rights of the owners of the same; therefore, Resolved by the Senate of the United States, That

ss., Jan. 17, 1900, Record,

ted in, such act will be considered as without warrant and offensive to the Government and people of the United States," was neither diplomatic in its tone nor warranted by the circumstances. Amicable negotiations were still in progress, and those negotiations were concerned with a discussion of the very question which would thus have been decided in the affirmative by the Senate, namely

the interests of all citizens of the United States as neutrals during a recognized belligerent contest. An unsettled question of international law was at issue between Great Britain and the United States, and was being dealt with as fast as official information reached the British Foreign Office from the scene of the occurrences which were alleged to have been in contravention of established principles. Flour or any other foodstuff m

being asserted in view of the obvious hardship which bona fide neutral shippers had thus suffered. He urged that the seizure of property of citizens of the United States by one of the belligerents was "a thing which profoundly affects the American people; it affects every corn growe

ne, 56 Cong., 1 Sess., Re

d of merely "requesting" the President to furnish such information as the Senate desired "if not, in his opinion, incompatible with the public interest," the result would have been practically the same. In either event the President would have controlled the situation, since he can not be compelled to furnish information to the Senate when he considers it incompatible with the public

Colorado, 56 Cong., 1

, p.

t officers. He has been exempted from that requirement for the reason that his duties are mainly diplomatic. Negotiations carried on with foreign Governments upon matters of a delicate character might involve serious embarrassments if during their pendency the successive steps were reported to Congress.[29] The power of the President in consultation with the Secretary of State to deal with foreign Governments at least up to the last moment and final consent of the Senate has made it possible for the United States to preserve a fairly uniform foreign policy. For despite the repeated changes of administration and of domestic policies the general foreign p

Connecticut, 56 Cong.,

, p.

sh Government not unwilling to make an equitable settlement for the losses which citizens of the United States

ITY OF TH

he matter to the attention of the British Government and inquire as to the circumstances and legality of the seizures."[30] And later, Mr. Choate was further instructed to ascertain "the grounds in law and fact" upon which the interference with apparently innocent commerce between neutral ports was made, and to demand "prompt restitution of the goods to the American owners if the vessels were seized on account of a violation of the laws of Great Britain, as for trading with the enemy; but if the seizure was on

, 1900, p. 534; Hay to

1900, pp. 539-540; Hay

e Transvaal, even of goods consigned to British ports on the way thither, might, if the transportation were viewed as one continuous voyage, be held to constitute in a British vessel such a trading with the enemy as to bring the vessel within the provisions of the municipal law."[33] He asserted that the offense was cognizable by a prize court alone, but admitted that "if the owners of the cargoes, being neutrals, claim that they are innocent, the cargoes should not be condemned with the ship but should be delivered over to them."[34] He suggested that the ordinary course would be that the owners should claim the cargoes in the prize court, where the cases would be cons

., 1900, p. 549; Salis

; Hay to White, March 20, 1900, citin

For. Rel., 1

the practice in such cases before prize courts is stated; in other portions

ry, speaking with special reference to the Mas

goods. The representative of the United States insisted that nothing short of delivery at their port of consignment would fulfill the English obligation in a commercial sense such as to give the goods the value intended. It was clearly shown that under the application of the English municipal law the goods in question became as inaccessible to their owners for all the purposes of their commercial adventure "as if they had been landed on a rock in mid-ocean."[37] In his criticism of the English position, Mr. Choate said: "The discharge from the vessel and landing sh

1900, p. 585; Choate to

For. Rel., 1

d permission of the British Government. In view of the causes put forward for the seizures and of the reasons stated by the authorities for the subsequent release of the ships it would seem that the cargoes, "except in so far as contraband might have been involved would have the same status as though found aboard British ships trading between neutral ports where there was no question of a belligerent in the neighborhood of the port of detention."[39] The prize court did decide tha

., 1900, p. 611; Hay t

ssage to Lorenzo Marques was merely interrupted, and by this interruption they were detained only to the extent that their being on board the ship which had been arrested made their detention unavoidable. It was further alleged that had the prize court held that the arrest of the ships was not justified they would "presumably have awarded damages against the captors of the ships and the damages would presumably have been so calculated as to enable the ship to meet the claims of merchants arising out of the unjustified interruption

1900, p. 618; Salisbury t

upon the principle that she might deal with English subjects and with English ships in accordance with the law of the flag under which those ships sailed. Mr. Hay, therefore, only endeavored to secure every possible guarantee for American interests involved, but incidentally emphasized the view that, although England might use her own as she saw fit she must show just ground for

, 1900, p. 538; Hay to

ip as a common carrier of international commerce had violated the law of its flag, on the remote possibility of having carried for the enemy. He insisted that, although the shippers might be required to furnish invoices and bills of lading, they should not be sent to the prize court for their property. Lord Salisbury, however, contended that the prize court had complete control of the situation, and that any neutral shippers who were innocent could secure the release of their goods only by applying to the court with the proper evidence of ownership. The injustice of the vigorous enforcement of this rule of prize law was obvious, an

, 1900, p. 540; Toomey

, 1900, p. 543; Choate

1900, p. 543; Choate to

merely been detained as an incident of the seizure of the ships on which they were carried. Since the flour was sold delivered at Delagoa Bay it was therefore the property of the United States shippers un

, 1900, p. 548; Toomey

ignees, it was urged by the American shippers, were reputable merchants in Delagoa Bay, and the consignments were not of an unusual character but were a part of the ordinary commerce with the East coast.[46] It was admitted that certain of

1900, p. 567; Choate to S

l., 1890, p. 584. Aff

n. Milling and Expor

nd Company were the agents of the firm in the Republic, and that the Bristol firm had shipped on the same steamers on which American goods were carried. A.J. Toomey, President of the Pennsylvania firm, in alleging these facts pointed out that he mentioned only what was well known in shipping cir

, 1900, p. 589; Toomey

of proving their ownership, which he insisted would involve costs and damages for the detention and possible deterioration in value.[49] It was intimated that aside from the pecuniary features of the situation it was of primary importance to insist upon the principles involved, with a view to preventing an extension of belligerent rights to the detriment of all neutral commerce in time of war. Emphasis was therefore placed upon the point that evidence must be shown that the goods were really for the supply of

1900, p. 566; Choate to S

1900, p. 578; Choate to S

erself relieved of any responsibility for indemnity or direct loss assumed by the shippers, or for any indirect loss for which the shippers might have to compensate the buyers on account of the diversion and detention. It was the opinion of the United States that the mere release of the flour to qualified owners did not meet the obligation in

he owners reasonably, since the latter were entirely innocent and had depended upon the usual rights and immunities of neutral shippers in time of war. The fact was pointed out that the situation was causing an uncertainty and hesitancy in business circles which was detrimental to all American interests. Although a number of the consignments were being delivered at Delagoa Bay, presumably by English ships, it was alleged that the seizures and the unforeseen attitude of Great Britain had compelled all later shipments to go by way of Hamb

, 1900, p. 582; Toomey

, 1900, p. 540; Hay to

e American representative urged that it would be advisable for all American shippers who were interested to agree to sell upon the same terms with a view to securing an arrangement which would include all neutral American proper

, 1900, p. 551; Choate

ut emphasized the point that the alleged owners must prove their title to ownership beyond a doubt as an essential condition of the arrangement, since the Government could not incur the risk of paying one man only to have another appear later and prove that he was the real owner

r. Rel., 1900, p

e the court to prove the title to their property.[55] Such a requirement, it was realized, would have led to difficulties of an almost unsurmountable character under the circumstances. Claimants would have had to submit evidence showing a bona fide American citizenship and an actual title to the ownership of the goods at the time they were seized. Within the rules of prize jurisdiction

., 1900, p. 579; Choat

circumstances such inability on the part of the American consignor could be legally imputable to the act of the British Government in making the seizure. The question might also have arisen where an agent had bought for the Transvaal Government on credit, so that the title passed when the goods went on board and the goods were discovered to have been contraband, whether an American shipper might not appear to have been privy to the real character of the purchases. In such a case the United States Government could hardly have championed the cause of a party who had shipped contraband. A prize court is filled with pitfal

have retained a lien on the goods. But in any case as a rule the title of the absolute owner prevails in a prize court over the interests of a lien holder, whatever the equities between consignor and consignee may be.[56] Consequently the

fred, Blatch. Prize Cas

Law, Engl. Ed.

d be made against those who entered into or became responsible for the execution of the contract for the delivery which they failed to perform, and the assumption that such damages could be sustained at law would depend on the terms of the contract of carriage. The English Government, however, did not admit that it was in any way liable f

900, pp. 604-605; Salisbur

tical cases until occasion had called them into actual existence. The problem which had been before the Department of State was, not to force Great Britain to declare herself finally upon broad questions of international law, nor to express the final attitude of the United States upon questions which were not immediately at issue, but to meet the demands of American shippers and secure their immediate interests by some equitable agreement with Great Britain. The arrangement agreed upon

the Netherlands South African Railway, an allegation of

ated that the goods had been legally detained and that it was open for the owners to come and take them upon proof of ownership before the prize court. It was pointed out that the fact that none but British ships ran between Cape Colony and Delagoa Bay, although an unfortunate circumstance, was one which could hardly be held to be a fault of the English Government. The enforcement of the English law was the right of Great Britain no matter upon whom the inconvenience might ha

18; Salisbury to Choate, July 20, 1

accepted as a precedent for similar cases that might occur. The danger of such a precedent had been realized by Secretary Hay and throughout the negotiations he had dwelt upon the fac

ly arise, since all trade with the enemy, even in articles the most innocent, was forbidden under heavy penalty. The seizure of certain classes of foodstuffs as of a contraband character did not of necessity involve the principle of treating all foodstuffs as contraband o

ish Government nor any other has the power of treating what it pleases as contraband without reference to the prize court, with which alone the decision rests. The prize courts of all countries have held at different times that foodstuffs under certain circ

g sustenance from going over sea to her enemy the better it would be for English predominance. It is believed by this writer that during the existence of this supremacy at sea she would be able to prote

on Bowles, Jan. 4, 1900.

ation of a distinctly contraband character. In other words, the use for which they are intended may give reasonable ground for the conclusive presumption that they are for the enemy's immediate supply, whether the title to property in them vests in the enemy or in some other agency, and the last question is always to be decided by the prize cour

ter were also included. There was a consignment of lubricating oil to the Netherlands South African Railway, the latter company held to be the property of the Transvaal Government, and a like consignment to the Lorenzo Marques Railway, a Portuguese concern. At first the seizures which occurred at points between Cape Colony and Delagoa Bay were supposed to have been made on account of contraband. Later Great Britain declared that the ships had been seized because of the violation of a municipal ordinance forbidding British subjects to trade with the enemy. The Mashona, Beatrice and Sabine were British ships sailing under the English flag. The Maria w

r dictum the former declared: "Foodstuffs with a hostile destination can be considered contraband of war only if they are supplies for the enemy's force

For. Rel., 1

traband could not be recognized "under any belligerent right of capture of provisions and oth

For. Rel., 1

Claims for redress for the non-delivery of the cargo appear to be a matter for settlement between such claimants and the ship which undertook to deliver. British subjects who owned goods on board, having no right to trade with the enemy, are not in the same position as fo

or Foreign Affairs, speaking in House of Commo

: "An ultimate destination to citizens of the Transvaal even of goods consigned to British ports on the way thither, might, if viewed as one "continuous

For. Rel., 1

ports ... the port authorities may presumably, and are assumed to be bound to, prev

For. Rel., 1

uestions of international law involved in the seizures of flour and foodstuffs generally were not answered by the final arrangement between the Governments concerned. In his Message to Congress in 1900 President McKinley deplored

e; (2) that a belligerent may detain neutral goods and divert them from their destination on a reasonable susp