Robert Granville Campbell

“ It was the duty of the central Government to prevent as far as possible any abuse of the privileges which the laws of war allowed to the belligerents. "A Government is justly held responsible for the acts of its citizens," said Justice McLean of the United States Supreme Court, speaking of the Canadian insurrection of 1838. And he continued: "If this Government be unable or unwilling to restrain our citizens from acts of hostility against a friendly power, such power may hold this nation answerable and declare war against it." ”

“ In his message to Congress, in 1899, three months after the war began, President McKinley had been able to declare: "This Government has maintained an attitude of neutrality in the unfortunate contest between Great Britain and the Boer States of Africa. We have remained faithful to the precept of avoiding entangling alliances as to affairs not of our direct concern. Had circumstances suggested that the parties to the quarrel would have welcomed any kindly expression of the hope of the American people that war might be averted, good offices would have been gladly tendered." ”

“ But opposed to the correct attitude of the Government, popular feeling was manifested in different ways. A committee of ladies in Paris made a direct appeal to the French people. They declared: "We are not biased enemies of the British Nation ... but we have a horror of grasping financiers, the men of prey who have concocted in cold blood this rascally war. They have committed with premeditation a crime of lèse-humanité, the greatest of crimes. May the blood which reddens the battle-fields of South Africa forever be upon their heads.... Yes, we are heart and soul with the Boers.... ”

“ In England a declaration of war is equal to an Act of Parliament prohibiting all intercourse with the enemy except by the license of the Crown. The penalty of such illegal intercourse is the confiscation 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 unless, either: (1) He is satisfied that the master was pursuing such trade in ignorance that war had broken out, or, (2) The vessel is pursuing such trade under a license from the British Government." ”

“ We recognize the rights which the Law of Nations actually concedes to belligerents with regard to neutral vessels and neutral trade and traffic. We do not ignore the duties imposed by a state of war upon the ship owners, merchants, and vessels of a neutral state, but we require of the belligerents that they shall not extend the powers they possess in this respect beyond the strict necessities of war. ”

“ It is pointed out that the distinction between a person when considered as contraband and goods or despatches is that "the person cannot be forwarded like a thing." Thus in the case of a person holding a through ticket, the ticket is merely a facility, but it must depend upon the person whether he will use it, and consequently, where the passenger is booked only to a neutral port, he "cannot constructively be considered as bound for a belligerent destination until he is actually bound for one." ”

“ Had the Transvaal, recognized in war as a belligerent, become an independent State as the result of that war, such claims would doubtless have been honored and compensation been made upon equitable grounds. Had the opponent of Great Britain in the war been one of the recognized powers of the world such a use of territorial waters could not have been permitted without an effective protest having been made by the State which was injured. The Republics, however, were treated at the close of the war as conquered territory and their obligations taken over by the British Government. ”

“ In making his plea directly to the President, Pearson asserted that at the port of Chalmette, a few miles below New Orleans, a British post had been established; that men and soldiers had been assembled there and were daily engaged in warlike operations not only for the renewal and augmentation of military supplies, but for the recruitment of men. He alleged that no concealment was made of the facts as he had stated them; that although the English officers did not appear in uniform war was actually being carried on in behalf of the British Government from the territory of the United States. ”

“ The district judge in delivering the opinion declared that there was nothing in the principles of international law or in the terms of the Treaty of Washington, to which an appeal had been made, to prevent the citizens of a neutral state from selling supplies of war to a belligerent. The court went on to discuss the right of private citizens to sell supplies to belligerents, but did not enter upon the question whether or not the United States had permitted the British Government to make use of its ports and waters as a base for the purpose of the augmentation of its military supplies. ”

“ It is shown that even if the doctrine of continuous voyages is denied as having any validity, it may still be held that "the goods and the knowingly guilty ship are liable before reaching the neutral port if that port is only to be a port of call, the ultimate destination of the ship as well as of the goods being a belligerent one." ”

“ Our view is that foodstuffs 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. ”

“ Every person who, within the territory or jurisdiction of the United States, begins, or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince, state, colony, district or people, with whom the United States are at peace, shall be deemed guilty of a misdemeanor, and shall be fined not exceeding $3,000, and imprisoned not more than three years. ”

“ There is no longer a common temple for civilized states. Our house is divided against itself and is falling asunder. Peace reigns everywhere save on the banks of the Vaal, but it is an armed peace, an odious peace, a poisoned peace which is eating us up and from which we are all dying. ”

“ There seems little certainty as to the exact circumstances under which a belligerent may treat foodstuffs as contraband, although it is generally admitted that under certain conditions such goods may be so considered. On the other hand doubt is expressed by many writers upon international law as to whether it is ever possible to treat as contraband of war such articles as are necessary for the sustenance of a people. ”

“ The tendency in modern times, however, is to treat horses as only conditional contraband. The only reason that they were not expressly declared contraband in the Anglo-Boer contest was the character of the war. Had the Transvaal been able to issue an authoritative declaration and insure respect for it by a command of the sea, horses and mules would have been considered technical contraband as in fact they were actual contraband, being nothing if they were not "warlike instruments." ”

“ During the controversy between the English and German Governments with reference to the seizure of the three German ships, Professor T.E. Holland, the editor of the British Admiralty Manual of Prize Law of 1888, declared: "The carriage by a neutral ship of troops, or of even a few military officers, as also of enemy despatches, is an enemy service of so important a kind as to involve the confiscation of the vessel concerned, a penalty which under ordinary circumstances, is not imposed upon the carriage of contraband property so called." ”

“ The English view of the restrictions upon British subjects was thus pointed out: "British subjects may not in any way 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, nor carry any goods or wares destined for either of the Republics or for any person resident therein." ”

“ Early in 1901 a proceeding in equity had been instituted in a federal court in New Orleans for the purpose of enjoining the shipment of horses and mules from that port to Cape Colony. The bill was filed by private individuals who alleged that they had property in the Transvaal and Orange Free State which was being destroyed by the armies of Great Britain, and that these armies were able to continue their work of destruction only by means of the supplies of horses and mules which were shipped from the port of New Orleans. ”

“ As a general rule products like flour shipped from a neutral State are not contraband, but it is always a question of fact whether the immediate destination of such flour is for hostile purposes, namely, the sustenance of a belligerent army. If flour or foodstuffs generally were so destined they became contraband of war for the particular case. ”

“ Baty in the same breath says: "There can be such a thing as a military road across neutral territory. The German Empire has such a road across the canton of Schaffhausen, and there used to be one between Saxony and Poland. But it seems very questionable whether the roads indicated by the treaty of 1891 were not simply commercial, and not for the purposes of war at all." [35] And this English writer reluctantly admits, "The treaty has, therefore, to be pressed very far to cover the grant of an overland passage for troops from Beira inland." ”

“ But he continues, "If the right of way is merely contractual, then the fulfillment of the promise to permit it must be taken to have become illegal on the outbreak of war and the treaty cannot be invoked to justify the grant of passage." It is asserted that in the former case where a real servitude, a right in rem, was possessed, to stop the use of the road would be analogous to the seizure by a neutral of a belligerent warship to prevent its being used against the enemy. ”

“ What Calvo says is: "Tous les publicistes sont d'accord pour admettre que le territoire d'une nation constitue une véritable propriété ... le territoire neutre doit être à l'abri de toutes les entreprises des belligérants de quelque nature qu'elles soient; les neutres ont le droit incontestable de s'opposer par tous les moyens en leur pouvoir, même par la force des armes, à toutes les tentatives qu'un belligerant pourrait faire pour user de leur territoire." ”

“ The first class is always liable to capture and confiscation, but with regard to the second class no unanimity of opinion exists. Disputes always arise as to what articles, though not necessarily of direct applicability to hostile uses, may nevertheless be considered contraband of war. This question is especially difficult of solution with reference to foodstuffs when seized on their way to a belligerent in neutral bottoms. ”