The attitude of the European powers was generally observant of the requirements of neutrality in so far as governmental action could be proved. Th frequent charges which Great Britain made that the Transvaal was recruiting forces in Europe were not proved against the States from which the recruits came. The numbers in the parties which perhaps actually joined the Boer forces were not large, and no formidable fitting out of an expedition or wholesale assistance was proved against any European government.
Germany, the power most nearly in touch with the Transvaal in South Africa with the exception of Portugal, early declared the governmental attitude toward the struggle. The German consul-general at Cape Town on October 19, 1899, issued a proclamation enjoining all German subjects to hold aloof from participation in the hostilities which Great Britain at that time had not recognized as belligerent in character. If insurgency be recognized as a distinct status falling short of belligerency, this was perhaps such a recognition, but it was in no sense an unfriendly act toward Great Britain. It was merely a warning to German subjects as to the manner in which they should conduct themselves under the circumstances. It did not recognize the Boers as belligerents in the international sense, but it warned German subjects that a condition of affairs existed which called for vigilance on their part in their conduct toward, the contestants. Later, when the British Government announced that the war would be recognized retroactively as entitled to full belligerent status, Germany declared the governmental attitude to be that of strict neutrality in the contest. An attempt of the Boers to recruit in Damaraland was promptly stopped by the German officers in control, who were ordered to allow neither men nor horses to cross the border for the purposes of the war. All German steamship lines which held subventions from the Government were warned that if they were found carrying contraband they would thereby forfeit their privileges. Stringent orders were also given by the different German ship companies to their agents in no case to ship contraband for the belligerents. The attitude assumed by the German Government was not entirely in accord with the popular feeling in Germany. On October 5 a mass-meeting at Goettingen, before proceeding to the business for which the conference was called, proposed a resolution of sympathy for the Boers: "Not because the Boers are entirely in the right, but because we Germans must take sides against the English."[1] But despite popular sentiment, the position which had been taken by the Government seems to have been consistently maintained.
[Footnote 1: London Times, Weekly Ed., Oct. 5, 1899, p. 626, col. 2.]
In June, prior to the outbreak of war, President Kruger had been advised by the Dutch Minister for Foreign Affairs that the Transvaal should maintain a moderate attitude in the discussion of the questions at issue with the British Government. The German Government, too, had advised the Republics to invite mediation, but at that time President Kruger declared that the moment had not yet come for applying for the mediation of America. The United States, it was considered by both Holland and Germany, could most successfully have undertaken the role of mediator from the fact that England would have been more likely to entertain proposals of the kind coming from Washington than from a European capital.
In December, 1900, Count Von Buelow, the German Imperial Chancellor, speaking of the neutral attitude of Germany, declared that when President Kruger later attempted to secure arbitration it was not until feeling had become so heated that he was compelled to announce to the Dutch Government that it was not possible to arrange for arbitration. The German Government, it was declared, regarded any appeal to a Great Power at that time as hopeless and as very dangerous to the Transvaal. The German and the Dutch Governments each believed that President Kruger should not have rejected the English proposal then before him for a joint commission of inquiry.[2] The German Government had nothing for which to reproach itself in regard to the outbreak of war or with reference to the fate of the Republics. "Of course there are certain lengths to which we could not possibly go. We could not, in order to prevent the door from being slammed, let our own fingers be crushed between the door and the hinges; that would not have helped the Boers and would only have harmed ourselves,--and when the war had broken out it was impossible for us, in view of the general situation of the world and from the standpoint of German interests as a whole to adopt any attitude except that of strict neutrality."[3] Continuing, Count Von Buelow pointed out the fact that the policy of a great country should not at a critical moment be governed by the dictates of feeling, but should be guided solely in accordance with the interests of the country, calmly and deliberately calculated.
[Footnote 2: The German Chancellor seems slightly in error in assuming that the Transvaal rejected the English proposal for a joint inquiry. It will be remembered that immediately following the Bloemfontein Conference President Kruger had drafted a law considerably modifying the Transvaal demands in the conference, and later submitted the proposals of August 19, which he alleged had been" induced "by their implied acceptance on the part of the British agent. When these proposals lapsed from the fact of their non-acceptance by the British Government, he declared that he was ready to return to the discussion of the proposed joint commission of inquiry and was met by the English assertion that the condition of affairs no longer warranted a discussion of the original proposal for such a commission, and that Great Britain would have to formulate new demands to meet the altered conditions. The outbreak of war had forestalled these demands.]
[Footnote 3: Speech in Reichstag, London Times, Dec. 11, 1900, p. 5, col. 1.]
The possibility of mediation with Germany in the role of mediator was shown to have been made conditional upon the acceptance of such a step by both the parties to the contest, as otherwise it would not have been mediation but intervention, with the ultimate possibility of the exercise of force for the purpose of stopping the hostilities. Intervention of that kind, involving the idea of coercion, was never considered by the German Government because of the general situation of the world and of special German interests. The idea of anything other than entirely peaceful and friendly intervention was not entertained by any power in considering the situation in South Africa. The German Chancellor declared that "even those Powers which academically ventilated the idea of peaceful mediation invariably and expressly laid stress upon the fact that they had no thought or intention of forcing England to accept peace against her will." He asserted that the possibility of mediation was thus excluded since the preliminary condition of such a course was the consent of both parties to the conflict.
Count Von Buelow also called attention to the fact that the gentlest form of diplomatic inquiry made by the United States had been rejected by the English Government "officially and categorically in the most distinct manner possible." And speaking officially, he continued, "We therefore did what we could as a neutral Power and without imperilling direct German interests in order to prevent the outbreak of war. In particular we acted in the most straightforward manner toward the governments of the South African Republics inasmuch as from the first and in good time we left them in no doubt regarding the situation in Europe and also regarding our own neutrality in the event of war in South Africa. In both these regards we made matters clear to the two South African Republics and did so in good time."[4] The Chancellor seems to have fairly defined the position maintained by the German Government throughout the war, although popular feeling often clamored for official action in behalf of the Boers.
[Footnote 4: Speech in Reichstag, Dec. 10, 1900.]
A similar course was pursued by the French Government despite the fact that in France popular sympathy was more strongly in favor of the Transvaal than was the case in Germany. No official action, however, was taken which could involve France in complications in view of the declared neutral attitude assumed at the beginning of the war. The administration at Paris ordered the prefects throughout the country to have removed from the official minutes the resolutions of sympathy for the Boers which had been adopted by the provincial councils. 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 lese-humanite, 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.... We admire them because old men and young women, even, are all fighting like heroes.... Alas! to be sure, there is no more a France, nor yet an America.... Ah! Ideal abode of the human conscience, founded by Socrates, sanctified by Christ, illuminated in flashes of lightning by the French Revolution, what has become of thee? 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."[5] Such hysterical outbursts in France were not taken seriously by the Government, and the feeling which inspired them was possibly more largely due to historic hatred of England than to the inherent justice of the Boer cause.
[Footnote 5: London Times, April 2, 1900, p. 5, col. 5.]
The Ninth Peace Conference, which was in session at Paris in the fall of 1900, without expressly assuming the right of interfering in the affairs of a friendly nation further than to "emphatically affirm the unchangeable principles of international justice," adopted a resolution declaring that the responsibility for the war devastating South Africa fell upon that one of the two parties who repeatedly refused arbitration, that is, it was explained, upon the British Government; that the British Government, in ignoring the principles of right and justice, in refusing arbitration and in using menaces only too likely to bring about war in a dispute which might have been settled by judicial methods, had committed an outrage against the rights of nations calculated to retard the pacific evolution of humanity; that the Governments represented at the Hague had taken no public measures to ensure respect for the resolutions which should have been regarded by them as an engagement of honor; that an appeal to public opinion on the subject of the Transvaal was advocated and sympathy and admiration were expressed for the English members of the conference.[6]
[Footnote 6: London Times, Oct. 3, 1900, p. 3, col. 3.]
The usual French attitude toward Great Britain was expressed in these resolutions, but the conference was not prepared to go so far as to adopt a resolution proposed by a member from Belgium expressing the hope that the mistake of depriving the Republics of their independence would not be committed, and favoring an energetic appeal to the powers for intervention. The resolution was rejected by a large majority on the ground that it would be impolitic and naturally irritating to England and without much probability of favorable results being attained.
When the delegation of the Boers which was sent to appeal to the European Powers for action in behalf of the Republics reached Paris in July, 1900, the attitude of the French Government was not altered, nor were the envoys encouraged to hope for intervention. They were received by the President but only in an informal and unofficial manner when presented by Dr. Leyds. When they reached Berlin in August neither the Emperor nor the Chancellor was in the city and consequently the visit had no official significance, but in St. Petersburg a more favorable reception awaited them. The Official Messenger announced on August 26 that Dr. Leyds had been received in audience by the Czar. This statement, coming as it did from the official organ of the Foreign Office, seemed to signify a full recognition of the accredited character of the delegation, and Dr. Leyds was referred to officially as "Minister of the South African Republic."[7] With the exception of the British Minister, he was received by all of the diplomatic corps, a courtesy which the members could not well have denied him, but as to practical results the mission to Russia amounted to nothing.
[Footnote 7: London Times, July 26, 1900.]
On their return to Germany the envoys received no official notice. The secret instructions which they had opened only upon reaching Milan were supposed to have contained certain communications which had been exchanged between the Governments of the Transvaal and Great Britain but which it was alleged had not been published in the Blue Books. This assertion of sinister motives on the part of Great Britain exerted little influence upon foreign governments in Europe. The delegation realized the impossibility of securing the interference of a concert of Powers or of any one State against the wishes of England. The mission of the Boers had been doomed to failure from the beginning.
The action of the Queen of Holland in receiving the delegation was generally understood as not of an unneutral character but as inspired by sympathy for a kindred people and a willingness to mediate though not to intervene. It was recognized that no nation whose interests were not directly concerned could afford to persist in offers of mediation in view of the fact that Great Britain had already intimated to the United States that such an offer could not be accepted. Although Holland refused to intervene, the attitude assumed by the Dutch Government in other respects caused severe criticism in England. The chief circumstance which confirmed the opinion that Holland as a neutral State had not displayed a proper attitude at Lorenzo Marques was the fact that after the visit of the envoys of the Transvaal the Hague Government had sent a man-of-war to the island of St. Helena, which was being used as a prison for the Boers who were transported from South Africa. This proceeding was viewed by England as officious from the fact that foreign men-of-war were not usually received at that port. Popular feeling saw in the despatch of the man-of-war an unfriendly act which might easily have led to difficulty. But the incident, aside from the benevolent character which Holland had given to the enforcement of her neutrality laws throughout the war, had no significance in international law. It was generally considered, however, that the feeling which England manifested with regard to the visit of the cruiser gave some ground for the suspicion that the British Government might have had something to conceal at St. Helena.
The general attitude of Germany, France and Russia toward the Boer mission was guided by a policy of strict adherence to the neutral obligations assumed at the beginning of the war. These Powers in their official statements all followed such a course, realizing that it was demanded by a sound foreign policy. They considered the idea of intervention out of the question, although friendly interest for the Boers and for the peaceful purpose of their mission was evident.
From the beginning of the war the active duties of neutrality had fallen upon Portugal, since neither the Transvaal nor the Orange Free State possessed a seaport. Fifty miles of railway separated the Portuguese harbor of Lorenzo Marques in Delagoa Bay from the Transvaal border, and from this point the road continued to Pretoria. Lorenzo Marques being neutral could not be blockaded, but, being neutral, it was the duty of the Portuguese Government to observe the laws of neutrality. Great Britain alleged that a constant stream of supplies and recruits passed over the Portuguese border to aid the Boer armies. The difficulty on the part of the English Government, however, was to prove that the goods were in fact on their way to a belligerent destination or that small parties of men were in reality organized bands of recruits for the fighting forces of the enemy. It was asserted that the manner in which Portugal performed her neutral obligations, demanding an absolutely impartial treatment of both belligerents, made Delagoa Bay and the port of Lorenzo Marques more valuable to the Republics than would have been the case had they actually been in their possession.
The efficiency of Portugal's performance of neutral duties varied during the war. As early as August 25, before negotiations had been broken off between the Transvaal and Great Britain, the Portuguese Governor at Lorenzo Marques refused to permit two cargoes of Mauser ammunition to land because it was consigned to the Transvaal. The ammunition was transferred to a Portuguese troop ship, and the Governor assigned as sufficient reason for his action the fact that Great Britain had urged the measure upon the Portuguese authorities. He stated that orders had been received from Lisbon that guns and ammunition for the Transvaal should not be landed until further notice from the Portuguese Government. The Transvaal strongly protested against this act as a breach of a treaty between the two Governments in which by Article VI the Portuguese Government was prohibited from stopping ammunition intended for the Transvaal, but upon representations by England might stop ammunition on its way to any English colony. The opinion in the Transvaal was that the act on the part of Portugal and Great Britain constituted an act of war, in that peaceable negotiations were still pending, a view which seems fully warranted since Portugal possessed no right to treat any traffic as contraband before war had begun. A petition was circulated at Pretoria advising the Government to discontinue negotiations pending with England looking to a peaceful settlement of the issues between the two Governments. Although this step was not taken, the protestations made by the Transvaal seem to have had their effect upon the Portuguese authorities, for upon the outbreak of war the banks at Lorenzo Marques continued to accept Transvaal coin, and after the first flurry caused by the transition from peace to war the Transvaal notes were accepted at their face value.
By the middle of December the English Government had begun to view the condition of affairs at the port of Delagoa Bay and the town of Lorenzo Marques with grave dissatisfaction. It was publicly alleged that Lorenzo Marques was nothing more nor less than a base from which the Transvaal obtained everything that it needed. Further than this, it was declared that the town was the headquarters of Transvaal agents of every description who were in daily communication with their Government and with Europe. The English authorities felt themselves helpless to prevent the importation of machinery and other material required for the mines which were worked by the Transvaal Government. Even explosives for the government factory and actual ammunition reached the Transvaal by way of Lorenzo Marques because of the inability of the English cruisers to make a thorough search of foreign vessels bound for a neutral port and professedly carrying foodstuffs. British shippers alleged that while they were prohibited from trading with the enemy foreign shippers were reaping the profits and materially aiding in the prolongation of the war.
It later developed that the apparent neglect on the part of Portugal to observe a strict watch over the character of goods allowed to pass through to the Transvaal was not entirely due to the governmental attitude at Lisbon. It seems that the Dutch consul at Lorenzo Marques had taken over in the way of friendly offices the interests of the Orange Free State as well as those of the Transvaal. It was also ascertained that the consul of Holland was the manager of the local agencies for a number of steamboat companies, among them the Castle Packet Company, the African Boating Company, the British India, and the British and Colonial Steam Navigation Company. Only one English company had put patriotism before profit and transferred its agency from the Dutch consul upon the outbreak of war.
The British Government was also handicapped by the fact that local British banks accepted the drafts issued by the Transvaal and Orange Free State. The Transvaal dies of 1899 and 1900 had been seized by the English, but despite this fact the coins issued with the date of the dies of 1897 and 1898 were freely used by the local English banks.[8] This unpatriotic action on the part of British subjects controlling the banks made easy the work of the Boer forwarding agents; it was alleged, and the fact seemed pretty well authenticated, that the Dutch consul, Mr. Pott, facilitated this work by allowing contraband to be landed at night. Such articles thrown into half-laden trucks upon the railway often reached the Transvaal without detection. Cases labelled "candles" were hoisted in without pretense of examination. It was alleged also that guns and fifty tons of shells had been landed in December under the very noses of two British warships, and that wholesale smuggling was going on with the connivance of a nominally neutral consular agent.
[Footnote 8: London Times, Weekly Ed., Jan. 12, 1899, p. 20, col. 4.]
Under the protests of the British Government, however, orders arrived from Lisbon which revived an old law requiring all persons leaving Portuguese territory to obtain passports signed by the Governor-general. The applicants were required to give guarantees through their respective consuls that they were not going to the Transvaal for the purpose of enlisting. The Portuguese authorities took the matter in hand, and persons attempting to go without passports were promptly sent back. The customs authorities began a stricter watch over the Transvaal imports, and on January 19 seized as contraband three cases of signalling apparatus consigned to Pretoria.[9]
[Footnote 9: London Times, Weekly Ed., Jan. 19, 1900, p. 36, col. 3.]
It was claimed, however, that of the imports of £30,500 to Delagoa Bay during December there had been forwarded to the Transvaal goods valued at not less than £31,000. And it seemed evident to England, despite the more stringent port regulations, that the number of foreigners daily entering the Transvaal by way of Lorenzo Marques was far in excess of the number which would be desirous of going to Pretoria for peaceful purposes. Mr. Pott, it was still alleged, was acting as the head of a Boer organization for facilitating the entrance of men desiring to enlist with the Boer forces. He was consequently cautioned in January by the Portuguese Governor that if he recruited for the Boer forces or was detected doing anything inconsistent with the neutral obligations of Portugal, a request would be made to the Netherlands Government to have him transferred to another field. The Portuguese authorities at the same time began a closer supervision of the persons who were allowed to enter the Transvaal from Portuguese territory. The previous restriction that passports be signed by the respective consuls of persons leaving for Transvaal territory was considered insufficient, and the consuls of the different countries represented at Lorenzo Marques were informed that they must personally guarantee that the applicants whom they endorsed were not military men, and were not proceeding to assist the Boer forces in the field.
These restrictions, while giving evidence of Portugal's efforts to see that the neutrality of the port was respected, did not satisfy the English authorities. The latter still alleged that no doubt existed as to the fact that Lorenzo Marques was being used by Boer agents as a recruiting station for the Transvaal forces. It was asserted that large numbers of "men of military stamp" landed daily at Lorenzo Marques from all parts of Europe, and were allowed to proceed to the Transvaal for the purpose of either actually enlisting with the Boers or working the government mines. It was alleged, too, that a number of these newcomers were "smart looking men," evidently officers. The majority, however, were of a low class, mostly penniless adventurers. On February 2 the report was made to the English authorities that twenty of the better sort, many wearing riding boots and carrying field glasses, had left Lorenzo Marques for the Transvaal, and as tending to throw suspicion upon the purpose of their journey, a Transvaal detective was "most assiduous" in his attentions to them.[10] The influence of the consul of Holland largely defeated all efforts to stop entirely the imperfect fulfillment of the duties of neutrality incumbent upon the port.
[Footnote 10: London Times, Weekly Ed., Feb. 5, 1900, p. 84, col. 2.]
At other places any attempts to convey prohibited goods into the Transvaal were summarily stopped. Arms and ammunition which the Boers attempted to land at Inhambane were seized by the Portuguese customs authorities on the ground that they were consigned under a false description. The consignment was not a large one and the attempt was evidently made as an experiment. This incident, too, indicates the extremity to which the Transvaal authorities had been reduced by the increased watchfulness at Lorenzo Marques, for the distance from the port of Inhambane to the Transvaal could be covered only by native carriers and required fourteen days for the trip. The difficulties in evading the customs surveillance at Lorenzo Marques had also been increased by the fact that most of the steamship companies which had at first employed the Dutch consul as their agent had later relieved him of this duty. But, notwithstanding the continued protests by England, the Hague Government seemed reluctant to take any official notice of the evident partiality of its consular agent. With reference to the English protests the Administration took the view that while acting as the representative of the Transvaal and Orange Free State during the war Mr. Pott was only fulfilling the duties incumbent upon him in this triple capacity.
As the war progressed, although the administration of the customs at Lorenzo Marques was made more efficient, this improvement was inversely proportional to the successes of the Boer forces in the field. Under the circumstances it was almost impossible for England to prove that actual governmental support had been given to any scheme for augmenting the military forces of the Transvaal, but the whole manipulation of the customs seemed to be controlled by a weak administration not too scrupulous in seeing that an impartial view was taken of the situation. The failure of the Boers to attain their ends in the field did more to improve the efficiency of the administration of the customs than the protests of England. It seems unquestionable that the resources of the Transvaal had induced the Portuguese authorities at Lorenzo Marques to display toward the Boers an attitude which, according to obsolete ideas, was termed benevolent neutrality. But as the Boer hopes declined the Portuguese authorities increased their vigilance, and in the end went as far in favor of England as they had previously gone in their benevolent attitude to the Republics. Passengers arriving by German and other steamers were refused passports upon the instance of the British consul where there was a strong suspicion that they were entering the Transvaal for purposes hostile to Great Britain.
Portugal, too, refused to accept the offer of the Transvaal to advance the amount required of the Lisbon Government by the Beirne Arbitration Award.[11] The Portuguese Government, in courteously declining the offer, stated that the amount had already been provided. Great Britain, who already held a preemptive title to Delagoa Bay, was also ready to advance the money, but was denied this privilege by Portugal.
[Footnote 11: London Times, Weekly Ed., April 20, 1900, p. 244, col. 2.]
By August, 1900, it had become evident that the Boer hopes of bringing the war to any sort of favorable conclusion were doomed to failure. On August 4 all the customs officials at Lorenzo Marques were dismissed and their places filled by military officers, and a force of twelve hundred men was sent out from Lisbon two days later. The Portuguese frontier was put under a strong guard and all Boer refugees who arrived were summoned before the Governor and warned against carrying on any communications with the Transvaal Government or with the Boer forces still in the field. Notice was given them that if they were detected in such transactions they would be sent out of Portuguese territory and the right of asylum denied them. And in the further performance of her neutral duties at such a time Portugal assumed an entirely correct attitude.
In September three thousand Boers evacuated their position along the frontier and surrendered to the Portuguese Governor. They were lodged in the barracks at Lorenzo Marques and later, to prevent any disturbance in the town that might be caused by their presence, were removed to the Portuguese transports lying in the harbor. The Governor gave notice to the English commander who had occupied the position evacuated by the Boers that all the Transvaal troops which had surrendered were being guarded and would not be allowed to rejoin the Boer forces still in the field. A number of the refugees agreed to surrender to the British commander as prisoners of war upon the stipulation that they would not be sent out of the country, and thus better terms were obtained than by those captured in the field. Others who surrendered to Portugal were transported by Portuguese ships to Lisbon, land being assigned them in the country where they were given permission to settle.
In other respects, also, during the later phases of actual warfare, Portugal maintained a correct attitude. Especially was this attitude noticeable with reference to the investigation of the conduct of the Dutch consul at Lorenzo Marques. In spite of the protests of Great Britain and of Portugal as to his unneutral attitude he had been continued in his position. But on December 7, 1900, the strain to which the relations between the two Governments had been put reached the breaking point. The Dutch Minister, Dr. Van Weede, withdrew from Lisbon and at the same time the Portuguese Minister at the Hague, Count de Selin, returned to Lisbon.
The reason for this technical breaking off of friendly relations was explained on December 11. A member of the Second Chamber at the Hague, M. Van Bylandt, questioned the Minister for Foreign Affairs as to the cause of the difficulties between the two Governments. M. Beaufort, in his explanation of the situation, stated that as early as November 17, 1899, the Dutch Government had been informed that it would be necessary for the Lisbon authorities to cancel the exequatur of Mr. Pott as consul at Lorenzo Marques. This cancellation of the agent's credentials, it was alleged, was deemed necessary on account of irregularities with reference to the transshipment of contraband of war from Lorenzo Marques to the Transvaal. It was further represented to the Dutch Government that the consul under suspension had made an improper use of his position as the acting consular agent for the Free State and the Transvaal; he had taken advantage of the consular privileges accorded him at Lorenzo Marques as the representative of a neutral Power at a neutral port; the courteous communications made by the Portuguese Government prior to the final withdrawal of his exequatur had not received from the Hague Government the attention they deserved; every opportunity had been given the Dutch Government to take the initiative in the matter by merely recalling their agent, but this step had not been taken.
M. Beaufort admitted that this had been the attitude of the Portuguese Government, but asserted that he had not cared to suspend Mr. Pott without an inquiry, and for this purpose had merely granted him leave of absence for three months. This action, he said, had not been favorably received in Lisbon, and he had therefore thought it necessary to warn the Portuguese Government that the withdrawal of the consul's exequatur would be considered an unfriendly act. But notwithstanding the warning, the consul's credentials had been cancelled by the Lisbon Government. As a consequence of this act M. Beaufort had requested the Dutch Minister at Lisbon to come to the Hague that he might take part in a personal interview with the consul under suspension. Later, M. Beaufort stated that the specific incidents upon which Mr. Pott's conduct had been arraigned were the illegal importation of heliographic apparatus for the Transvaal artillery and a wrongful grant of passports in his dual capacity as consular agent for Holland and the Republics.[12]
[Footnote 12: London Times, March 1, 1900, p. 5, col. 3.]
In the end diplomatic relations were resumed between the two Governments. Holland, after an investigation of the charges against her consul, acquiesced in the action of the Lisbon Government. But the incident served to demonstrate the fact that the Government at Lisbon was aware of the inefficient manner in which the duties of neutrality had been enforced at Lorenzo Marques by the port administration.
From this time on to the close of the war the Portuguese Government displayed greater care in asserting the neutral character of the port. By placing the town under military supervision this purpose was more surely attained, and the only other charge made against Portugal for the failure to perform a neutral duty came from the Transvaal Government, an allegation of a more serious character than any that had been advanced by the English Government. The grounds upon which Portugal granted a privilege of war to one of the belligerents under protest from the other have not been made so clear as the reasons which led to her apparent dereliction of duty at Lorenzo Marques. This incident placed the Portuguese Government in an unfavorable light with regard to its duty in the full and impartial performance of the obligation of neutrality. British troops were allowed to pass across Portuguese territory in order to reach belligerent British territory commanding the Transvaal position on the north. From Rhodesia, the nominal objective point in this movement of troops, the Transvaal might be conveniently invaded from the north, as it was already attacked on the south.
Early in the war the British South Africa Company, a chartered company which was responsible for the administration of the Rhodesian Government, became apprehensive as to the fate of this section of the country should the Boers decide to invade it. Troops had been raised in Rhodesia for the war but were employed outside the colony. It was asserted that this fact had left the province in such an unprotected state that, aside from the fear of a Boer invasion, a Kaffir uprising was imminent.
Mr. Chamberlain had refused to send forces into Rhodesia in December upon the ground that troops could not be spared. But it was finally arranged to send five thousand mounted men, some of them to be enlisted in Rhodesia and all of them to be furnished outside of England. Before the end of January, 1899, a commander had been appointed from the English army, and it was expected that the forces would be upon the borders of Bechuanaland by the end of May.
Difficulty at once arose with reference to the right of passage of these troops, military stores, and in fact a full equipment for warlike purposes. There was not much choice of routes. Those through the Transvaal and through Bechuanaland were closed. The only route left was through the port of Beira. This course necessitated the passage of belligerent troops across two hundred miles of neutral territory controlled by Portugal as territorial sovereign. Beira, situated about four hundred and fifty miles north of Lorenzo Marques, bears nearly the same relation topographically to British Mashonaland and to British Rhodesia that Delagoa Bay does to the Transvaal and the Orange Free State. A railway nearing completion formed an almost continuous route from Beira to Salisbury in Rhodesia, and once in the latter province troops would be in a position to invade the Transvaal.
Under ordinary circumstances it would have been a distinct breach of neutrality on the part of Portugal to allow the passage across her territory of the troops of one of the belligerents, since the obvious destination could only be the country of the other belligerent, with whom she was on friendly terms. Portugal had granted to England in 1896 the right of passage for a field force to be used against the natives in Mashonaland.[13] But that was a case of warfare against a savage tribe, and was not to be considered as a reliable precedent for similar action against a civilized State such as the South African Republic.
[Footnote 13: Times Military History of the War in South Africa, Vol. IV p. 365]
The principles of the international law of modern times leave little or no doubt as to the proper course for a neutral to follow in such a case. Oppenheim says: "In contradistinction to the practice of the eighteenth century, it is now generally recognized that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over his territory. And it matters not whether a neutral give such permission to one of the belligerents only, or to both alike."[14] And Lawrence points out that "It is now acknowledged almost universally that a neutral state which permits the passage of any part of a belligerent army through its territory is acting in such a partial manner as to draw down upon itself just reprobation." The permission given of necessity "to further a warlike end" is "therefore inconsistent with the fundamental principle of state neutrality." "These considerations," he says, "have influenced practice during the present century, and the weight of modern precedent is against the grant of passage in any case."[15]
[Footnote 14: International Law (1906), Vol. II, p. 345]
[Footnote 15: Principles of International Law, p. 526. The older writers differed from this view. Grotius maintained the right of passage, even by force; Vattel practically agreed with Grotius that it might be taken by force, but contended that it should be asked and force used only under extreme necessity, or when the refusal was unjust; Wheaton denied that the right of passage was a "perfect right" and consequently could not be enforced against the will of the neutral; Hall, International Law (1880), Sec.219, points out that more recent writers take an opposite view, namely, that a grant of passage is incapable of impartial distribution. See also Wheaton, International Law, Sec.427; Vattel, Droit des gens, III, Sec.110; Calvo, Droit international, 3d Ed., III, Sec.Sec.2344-2347.]
Mr. Baty, who has made a careful study of the precedents upon the subject, states that while "writers vary in their treatment of the question" of the passage of troops over neutral territory, "the modern authorities are all one way."[16] He points out that the jurists of the first half of the nineteenth century, with the possible exception of Klueber, were "unanimous in following" Grotius and Vattel, and allowing neutrals to permit belligerents passage as long as they did it impartially. But since the middle of the century a total and violent change in the opinion of authors has operated. Every modern author holds that passage is now a benefit which must be refused absolutely, and not offered impartially.[17]
[Footnote 16: International Law in South Africa, p. 71.]
[Footnote 17: Ibid., p. 73.]
[Footnote 18: Times Military History of the War in South Africa, Vol. IV, p. 369]
In February the Transvaal Government had attempted to bring troops into Rhodesia by way of Portuguese territory. Portugal had promptly sent out forces to prevent such an evasion of Portuguese neutrality and had guarded the railway bridges along the line to Rhodesia. And in March Great Britain had met with a refusal to allow a large quantity of foodstuffs, mules, and wagons to be landed at Beira for the purpose of transportation to Rhodesia. Nevertheless, on April 9, General Sir Frederick Carrington landed at Cape Town under orders to proceed immediately to Beira.[18] He was to use transports put at his disposal by his government for the purpose of collecting a full equipment for his command of five thousand men to be mobilized at Beira, and from that port was to enter Rhodesia. This province was then to be made the base for an expedition against Pretoria in concert with the English forces advancing from the south.
It is undoubted that the laws of neutrality demanded of Portugal not only an impartial treatment of both belligerents, as the earlier writers held, but an absolute prohibition against such a warlike expedition by either of them, as unanimously held by all the more recent authorities. At the time English public expression contended that absolute equality of neutrality was not incumbent upon independent States in the performance of their neutral duties. English writers spoke of a "benevolent neutrality" as possible, and cited such cases as that in 1877, when Roumania, before taking an active part in the war against Turkey, permitted Russian troops to march through her territory; and the incident which occurred during the Neuchatel Royalist insurrection in 1856 when the Prussian Government requested permission to march through Wurtemberg and Baden "without any idea of asking those states to abandon their neutrality, or assist Prussia against Switzerland."
It was alleged upon the authority of such precedents that the privilege of passage for troops might be granted by Portugal to England without a breach of neutrality really occurring. Portugal would be merely giving her neutrality a benevolent character towards one of the belligerents, which it was asserted she was perfectly entitled to do, a view of the situation which is too obsolete in the light of modern times to need criticism. Although public opinion throughout Europe is usually hostile to England when she is at war, the general condemnation of the proposed use of neutral territory seems therefore to have been well founded in this particular case.
The Cabinet at Paris refused to entertain any question or debate on the proposed passage of English troops through Portuguese territory. On April 11, however, a discussion of the subject occurred in the Chamber of Deputies in which two interpellations were announced by the President. One of these questioned the Government as to what steps had been taken to protect French interests in Mozambique; the other had reference to the proposed passage of English troops inland from Beira. M. Delcasse said that the Chamber did not feel that the Government should discuss a current question of international law, but he pointed out the fact that France with the other Great Powers had declared her neutrality at the beginning of hostilities. He added, however, that it was not the part of France to guarantee the neutrality of others. One member asserted that the proposed act would be a distinct violation of her neutral duties by Portugal. Another declared that Europe, by concerted action, should prevent such a flagrant violation of neutrality during a war in which a small nation was already contending against great odds; that France, surrounded by neutral nations, could not afford to see such a precedent established and should appeal to Europe to join with her in protesting.
Although such concerted action as was proposed by the different members was improbable, and although the proposals may have been dictated by the usual French bias in situations where English interests are at stake, these opinions indicate pretty well the real sentiment in Europe at the time.
The Transvaal Government formally notified Portugal that the passage of British troops and munitions of war through Beira would be considered in the Transvaal as tantamount to hostile action. Nevertheless, on May 1, the Chamber of Deputies at Lisbon rejected an interpellation made by one of its members to question the action of the Government with reference to the privilege which Great Britain sought. The Minister for Foreign Affairs, however, stated that the Transvaal Government had not ordered the Portuguese consul to leave Pretoria. He denied emphatically that any incident whatever had followed Portugal's notification to the Transvaal. When further interrogated, the Minister declared that the English troops had been granted permission to use the railway inland from Beira upon the plea of treaty rights already possessed by Great Britain. No power, he asserted, had protested except the South African Republic. It was promised that the Government would later justify its action in granting the permission by producing the documents showing the right of England to the privilege, but it was not considered convenient at that time to discuss the question.[19]
[Footnote 19: London Times, April 21, 1900, p. 7, col. 3.]
The protest of the Transvaal against the alleged breach of neutrality on the part of Portugal was without effect, and this was the only means the Republic had of declaring itself. To have entered upon hostile action against Portugal at that time would have had only one result, the stoppage of all communication with the outside world by way of Delagoa Bay. The British forces were sent into Rhodesia, and though the subsequent part they played in the war was not important the purpose of the expedition was admitted. It was to cut off any possibility of a retreat northward into British territory by the Boer forces which were being driven back by the English advance upon Pretoria. The British military plan was that General Carrington should march with his forces and reach Pretoria from the north at the same time that General Roberts reached that point from the south.[20] Thus, the end for which the troops were to be used was not to quell an insurrection of the natives in Rhodesia, as was alleged, but to incorporate the expedition into the regular campaign of the war against the Republics. This being the case, the contractual grounds upon which the English Government claimed the right of passage should have been beyond question in order to furnish a justification for Portugal or for England in what is viewed by international law writers of the present day as a distinct breach of neutrality. When the expedition was sent out the statement was made that England was merely availing herself of existing treaty rights, but it was felt necessary to add that the action was not illegal as was that of the Boers in making Delagoa Bay their virtual base earlier in the war. And on May 31, in legalizing the proceeding, the Cabinet at Lisbon also felt impelled to say that the Portuguese Government had not become an instrument of British ambition; that it was not a question of putting into execution in the territory of Mozambique conventions recently concluded with England, but merely of profiting by stipulations agreed upon in the treaty of 1891 between Great Britain and Portugal. President Kruger was, therefore, informed that the legality of the incident was not to be questioned at Pretoria.
[Footnote 20: Times Military History, Vol. IV, p. 364 ff.]
The consensus of opinion among European Powers was that the landing of troops at Beira and the passage by rail to Rhodesia with the consent of Portugal constituted a breach of neutrality on the part of the latter. The opinion was freely expressed that the British Government not only placed a strained interpretation upon the only basis for her action, the treaty of 1891, but that even upon this interpretation she possessed no real servitude over the territory used by her for warlike purposes. The only claim of justification advanced by the British Government which would appear at all tenable rests upon the statement of Calvo: "It may be that a servitude of public order, or a treaty made antecedently to the war, imposes on a neutral State the obligation of allowing the passage of the troops of one belligerent." "In such a case," Calvo concludes, "the fulfilment of the legal obligation cannot be regarded as an assistance afforded to that belligerent and a violation of the duties of neutrality."[21]
[Footnote 21: Baty, Int. Law in South Africa, p. 73, quoting Calvo. But Calvo calls attention to the fact that this is his own "exception to the general rule," in support of which he cites no authorities and only one precedent--that of the passage of foreign troops across the Canton of Schaffhausen in 1867 by virtue of a prior treaty between Switzerland and the Grand Duchy of Baden. Obviously no general conclusion can be drawn from the conduct of a neutralized state, such as Switzerland. The general rule, not the exception, is sought in determining international rights. Droit international, 3d Ed., III, Sec.2347.]
Basing his argument largely upon this authority, Mr. Baty asserts that Calvo approves the granting of passage where this privilege has been secured by previous treaty. But the following statement which he cites from Calvo, taken in connection with the rule given above, would appear to deny this conclusion: "During war neutrals may oppose, even by force, all attempts that a belligerent may make to use their territory, and may, in particular, refuse one of the belligerents a passage for its armies to attack the enemy; so much the more so, inasmuch as the neutral who should allow a passage of the troops of one belligerent would be false to its character and would give the other just cause of war."[22]
[Footnote 22: Int. Law in South Africa, p. 73. This quotation is slightly misleading, but even as used it clearly denies the English claim.]
What Calvo says is: "Tous les publicistes sont d'accord pour admettre que le territoire d'une nation constitue une veritable propriete ... le territoire neutre doit etre a l'abri de toutes les entreprises des belligerants de quelque nature qu'elles soient; les neutres ont le droit incontestable de s'opposer par tous les moyens en leur pouvoir, meme par la force des armes, a toutes les tentatives qu'un belligerant pourrait faire pour user de leur territoire."[23] He also calls attention to the fact that Grotius, Wolff and other authors held that a belligerent, "dont la cause est juste peut, pour aller a la rencontre de son ennemi, traverser avec ses armees le territoire d'une nation neutre."[24] But his statement of the modern rule is conclusive: "Par contre, Heffter, Hautefeuille, Manning et d'autres auteurs modernes se sont avec juste raison eleves contre des principes dans lesquels ils entrevoient la negation implicite des droits et des devoirs stricts de la neutralite. A leur yeux, la nation neutre qui consent au passage des troupes de l'une des parties belligerantes manque a son caractere et donne a l'autre partie un juste motif de lui declarer la guerre."[25]
[Footnote 23: Calvo, Sec.2344.]
[Footnote 24: Ibid., Sec.2345.]
[Footnote 25: Ibid., Sec.2346.]
Mr. Baty, without reaching any definite conclusion in the matter, admits that the point to be decided in any case is not so much the fact that there is an antecedent treaty, as the nature of that treaty. He says, "If it granted a real right of way of the nature of a right in rem there is no reason why the way should be stopped against troops any more than why a purchaser of territory should be debarred from using, it as a base of military operations." But he points out, "If the treaty only created a right in personam the case is different." In the latter case it is obvious that the power which claims the way depends entirely on the promise of the territorial power for the exercise of that advantage. "In such a case," he concludes, "it may well be that the performance of its promise by the territorial power becomes unlawful, on the outbreak of war between the promiser and a third party."[26] For international purposes the true test is, "Could the power claiming the right of way, or other servitude, enforce its claims during peace time by force, without infringing the sovereignty of the territorial power?" Mr. Baty's opinion is that "if it could, and, if the servitude is consequently a real right," the promisee might use its road in time of war, and the owner of the territory would be "bound to permit the use, without giving offense to the enemy who is prejudiced by the existence of the servitude."[27] 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. In the case where the treaty grants the so-called right in personam, a merely contractual or promissory right exists, and the exercise of the right would be analogous to the sale of a warship to a belligerent by the neutral granting the permission stipulated in the treaty. Mr. Baty is of the opinion that while the belligerent might have "a right in rem to the ship so far as the civil law was concerned," it would have only a "quasi-contractual right in personam against the state in whose waters it lay, to allow it to be handed over." Obviously, the performance of that duty, to hand over the vessel, "would have become illegal when hostilities broke out."[28]
[Footnote 26: Int. Law in South Africa, p. 74.]
[Footnote 27: Ibid., p. 74.]
[Footnote 28: Ibid., p. 75.]
We have seen in previous pages that the consensus of opinion among international law authorities of modern times is that a neutral should in no case whatever allow the use of its territory for the purposes of a belligerent expedition against a State with which it is upon friendly terms. But granting the contention made by Mr. Baty that such a thing as a real servitude may exist in international relations, let us examine the stipulations in the treaty of June 11, 1891, by which it has been alleged this right was secured to England.
If the British Government possessed a right in rem, then to all intents and purposes it owned the road internationally, in war as well as in peace, for all the uses to which a road is usually put, namely, that of transporting all kinds of goods, warlike or peaceable. If England only possessed a right in personam, this right was a valid one in times of peace and for the purposes stipulated by the terms of the treaty, but became void in time of war, and, being purely personal in character, depended upon the promise of the State through which the road passed. In the former case it would be a "right of way" in peace or in war. In the latter case it would be merely a "license to pass," for the granting of which Portugal would have to show valid reasons in view of her neutral duties.
The parts of the treaty which may by any possibility apply to the case are Articles 11, 12, and I4.[29]
[Footnote 29: British and Foreign State Papers, Vol. 83, pp. 27-41, Treaty between Great Britain and Portugal, defining the Spheres of Influence of the two Countries in Africa, signed at Lisbon, June 11, 1891, ratifications exchanged at London, July 3, 1891.]
A portion of Article 11 reads: "It is understood that there shall be freedom for the passage of the subjects and goods of both powers across the Zambesi, and through the districts adjoining the left bank of the river situated above the confluence of the Shire, and those adjoining the right bank of the Zambezi situated above the confluence of the river Luenha (Ruenga), without hindrance of any description and without payment of transit dues."[30]
[Footnote 30: Ibid., p. 34]
The only applicable portion of Article 12 says: "The Portuguese Government engages to permit and to facilitate transit for all persons and goods of every description over the water-ways of the Zambezi, the Shire, the Pungwe, the Busi, the Limpopo, the Sabi and their tributaries; and also over the land ways which supply means of communication where these rivers are not navigable."[31]
[Footnote 31: British and Foreign State Papers, Vol. 83, p. 36.]
The only other clause of the treaty which bears on the case is a portion of Article 14: "In the interests of both Powers, Portugal agrees to grant absolute freedom of passage between the British sphere of influence and Pungwe Bay for all merchandise of every description and to give the necessary facilities for the improvement of the means of communication."[32]
[Footnote 32: Ibid., pp. 39-40. Italics our own.]
It is obvious that Article 14 could not apply to anything more warlike than "merchandise" being transported from Pungwe Bay, where Beira is situated, to the British sphere of influence. It is admitted by Mr. Baty that Article 12 is inapplicable to any routes other than the water-ways specified and the land routes and portages auxiliary to them. It is also admitted that the only other stipulation that might apply, Article II, "obviously applies to the territory far to the north, and concerns the question of access to British Central Africa."[33]
[Footnote 33: International Law in South Africa, p. 76.]
Mr. Baty, however, contends that it was not a new right, that of passage through Portuguese territory, but was one created by this treaty. Upon the supposition that if the right still existed in times of war it must have been by virtue of Article II, he says, "The question arises, 'Was it such a grant as could be valid in war time?'"[34]
[Footnote 34: Ibid., p. 76.]
It should be remembered that Mr. Baty has concluded that Calvo asserts the possibility of a neutral, without violating its neutral obligations, allowing a belligerent to pass troops over neutral territory for the purpose of attacking a State which is on friendly terms with the Government granting the privilege. Mr. Baty asserts that a real easement existed in favor of England if she might "force her way along" the routes stipulated in the treaty, "without going to war with Portugal," But he says this interpretation is always "subject to the consideration, that the terms of the treaty do not seem to contemplate the use of the road as a military road at all," a conclusion which would seem to settle the question, and deny that any shred of justification existed for the use to which neutral territory was put in time of war. But Mr. 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."[36]
[Footnote 35: International Law in South Africa, p. 77.]
[Footnote 36: Ibid., p. 76.]
The conclusion reached by Mr. Baty is far more favorable to England than the circumstances of the case warrant. "One may regret," he says, "that the British Government should have found it necessary to place a somewhat strained interpretation on a treaty which, even then did not give them in anything like clear terms, an absolute servitude of the kind contended for."[37]
[Footnote 37: Ibid., p. 77.]
Such a conclusion is misleading in the first place because the British Government was contending for a right which was not recognized among independent nations at the time the treaty was formed; in the second place, granting that ancient authorities may have declared the possibility of such a right existing in time of war, the stipulations of the treaty itself are the strongest argument against the interpretation used by England. Hall has pointed out that, "When the language of a treaty, taken in the ordinary meaning of the words, yields a plain and reasonable sense, it must be taken to be read in that sense."[38] The only reasonable sense in which the stipulations of the British-Portuguese treaty of 1891 could be taken was that of a purely commercial agreement. The spirit of the treaty, the general sense and the context of the disputed terms all seem to indicate that the instrument considered only times of peace and became absolutely invalid with reference to the transportation of troops in time of war. The authority already cited says, "When the words of a treaty fail to yield a plain and reasonable sense they should be interpreted by recourse to the general sense and spirit of the treaty as shown by the context of the incomplete, improper, ambiguous, or obscure passages, or by the provisions of the instrument as a whole,"[39]
[Footnote 38: International Law (1880), p. 281.]
[Footnote 39: Hall, Int. Law (1880), p. 283.]
Unquestionably the provisions of the instrument as a whole yield but one meaning. The treaty is not broad enough to sustain the passage of troops in time of war. Nor would there seem to be any plausibility in the claim that certain mutual explanations exchanged between the two Governments at the time of the signing of the treaty gave tenable ground for the fulfilment of such a right as that which was granted by Portugal.
The words of the Portuguese notification to the Transvaal condemn the action of Portugal rather than justify the proceeding in view of the requirements of the neutrality of the present day. This communication read: "The Portuguese Government has just been informed that in accordance with the mutual explanations exchanged in the treaty of 1891 with regard to the right of moving troops and material of war through the Portuguese territory in South Africa into English territory and vice versa, the British Government has just made a formal demand for all troops and material of war to be sent through Beira to the English hinterland. The Portuguese Government cannot refuse the demand and must fulfill a convention depending on reciprocity, a convention which was settled long before the present state of war had been foreseen. This agreement cannot be regarded as a superfluous support of one of the belligerent parties or as a violation of the duties imposed by neutrality or indeed of the good friendly relations which the Portuguese Government always wishes to keep up with the Government of the South African Republic."[40] The fact that the assent of the Portuguese Government was obtained only after ten weeks of pressure brought to bear upon the Lisbon authorities would seem to indicate that intrigue is more potent in international relations than accepted precedent.
[Footnote 40: Times Military History of the War in South Africa, Vol. IV, p. 366, note.]
In its reply to the Portuguese dispatch the Transvaal reasonably protested that the treaty in question had not been made public and that no notice of it had been received by the Republic at the outbreak of war.[41] It was pointed out that this being the case the treaty could not be applied even if it granted the right contended for by England. And even stronger was the Transvaal argument that in no case after war had begun could such a treaty be applied by a neutral State to the disadvantage of third parties. The fact of neutrality had suspended the working of the agreement. The action of Portugal, it was justly alleged, put her in the position of an enemy instead of a neutral.
[Footnote 41: Ibid., p. 367, note.]
The Transvaal contention would appear to be fully warranted. In the light of modern international law the action of England in sending troops through neutral Portuguese territory against a nation at peace with Portugal was based upon a flagrant misreading of a purely commercial treaty. The action of the Portuguese Government in allowing this to be accomplished was a gross breach of the duties incumbent upon a neutral State in time of war.
