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as jurymen, the Public Meetings Act, or the abuses of the Liquor Laws.
That all of these and many other grievances are either breaches of the spirit of the Convention, or matters which (to use Mr. Westlake's phrase) made the political “situation intolerable," it is difficult to dispute. When the war is over, we shall, perhaps, have a clearer appreciation of this fact than we have at present.
J. M. G.
Contraband of War.
Of the many questions of International Law brought into prominence by the present South African War, perhaps the most important affecting neutrals, owing to the geographical position of the Boer Republics, is that of Contraband of War. As Portugal is the only neutral country which is coterminous with the Transvaal and Free State (regarding them as one), and the Portuguese port of Delagoa Bay is both geographically and commercially the natural means of communication between the Transvaal and outside, it is obvious that the nature of the trade which goes to this port is one of great importance to both belligerents, and that the neutral country which owns it is under a more than usually strict obligation to them as regards its use. Being a neutral port, Great Britain cannot blockade or seize it, nor can her warships interfere with any neutral ships carrying cargo to that destination unless that cargo can be considered as contraband of war. Two questions accordingly arise in this state of circumstances : (1) What articles going to Delagoa Bay can be treated as contraband ? (2) What are the duties of Portugal in respect of contraband articles when landed at that port?
As regards the first point, the two essentials of contraband are (a) a hostile destination ; (b) a nature applicable to
The fact that the destination of the articles is primarily a neutral port (as must of necessity be the case with shipments intended for the Transvaal) does not prevent their being considered as contraband if they are going with a certain or highly probable destination to military use (e.g. to a hostile fleet in a neutral port), on the authority of Lord Stowell and Story ; but there is no doubt that the rule of the British Prize Courts has been that the destination of the ship is conclusive of the destination of the goods on board her, and that if the destination of the vessel be neutral, the destination of the goods on board her must be considered neutral, notwithstanding it may appear from the ship's papers or otherwise that the goods themselves have an ulterior hostile destination to be obtained by transhipment, overland conveyance, or otherwise. The only exception to this is in the case of a continuous voyage, i.e. one where a ship is destined ostensibly to a neutral port, while she really intends, after touching or even landing and colourably delivering over her cargo there, to proceed with the same cargo to an enemy's port, when her destination is considered hostile throughout. This rule was applied originally by British Courts to cases of neutral ships engaged in a colonial trade of a belligerent which was not open to them in time of peace, and the cargo was confiscated if the ship was actually in delicto, i.e. on her direct voyage to the hostile port, although Lord Stowell also held that where contraband has been carried on a distant outward voyage with false papers and false destinations, the return cargo, being proceeds of the outward cargo, is liable to condemnation. The American Courts during the American Civil War extended this doctrine of continuous voyage to any case where goods of a contraband nature were in transit from one neutral port to another, if it could be inferred that at the latter they were intended to be transhipped for a hostile port or to be conveyed by land or sea to hostile territory for the use of hostile forces; although an English Court, in a case on a policy of insurance
on goods so condemned by the American Courts, held they were not contraband. This doctrine has been adversely criticized, notably by Sir Travers Twiss in 1877, in this Magazine (4th series, iii. 31), but while perhaps it might operate harshly if not kept within due limits, it seems to be in accordance with the spirit of Lord Stowell's decisions, and to be a principle which may fairly and justly be applied in a case like the present, where the one belligerent has no seaports, and the ordinary rule would allow it to draw its supplies of war unchecked through the avenue of a neutral port. It will not be surprising if the British Government adopts the American view under these circumstances.
The nature of the cargo carried in the neutral ship is the next consideration. With regard to munitions of war, such as ammunition, guns, saddles, horses, etc., there can be no doubt at the present day that any Prize Court would condemn them if intended for the enemy; but the question of provisions which has been raised by the recent seizure of flour is one which has given rise to much controversy among jurists, and difference of practice between nations. Lord Stowell, however, and Story both state the modern established rule to be that, generally, provisions are not contraband, but may become so under circumstances arising out of the particular intention of the war or the condition of the parties engaged in it (The Jonge Margaretha, 1 C. Rob. 194; The Commercen, 1 Wheat. 391). The treaty between the United States and Great Britain in 1794 bears out this view, although the joint commission for settling claims under this head between the two nations gave full indemnity to owners of American provision cargoes, destined for French ports not invested, which were brought in by British cruisers under the Orders in Council. In 1885, during her war with China, France declared that she would trcat as contraband shipments of rice destined for any port
north of Canton, on the ground of the pressure which this would put on the noncombatant Chinese population as well as its army; but Great Britain refused to recognize this as binding, and no case arose to test it. Corsistently with our general practice, the better course in the present case would seem to be to treat as contraband only such food-stuffs going to Delagoa Bay as are not consigned thither in the ordinary course of trade so as to become part of the stock of the country: and the decision of the Government to treat as contraband only such food-stuffs as are shown by the ship's manifesto to be intended for the enemy is politic as not extending beyond the previous British and American practice. As regards persons going to join the Boer service when found in neutral ships, the best practicable rule seems to be that, if the neutral ship is not exclusively or chiefly employed in carrying them, and they have not contraband with them, they are not of the nature of contraband, and neither they nor the ship can be detained.
As regards the transport of contraband through Portuguese territory to the Transvaal, it may be said to be the duty of Portugal, at any rate, to prohibit this officially, in the same way as during the Franco-German War of 1870, Switzerland refused to allow Alsatians enlisted for the French army, though travelling without arms or uniforms, to pass through her territory, and England prohibited vessels from sailing from her ports with coal directly consigned to the French fleet in the North Sea ; and also to warn her subjects to abstain from so doing, as Prussia did in the Crimean War with regard to contraband passing through to Russia. Official laxity which will enable acts of this kind to become a practice would be a breach of neutrality, as virtually allowing neutral territory to be made a base of operations for one belligerent; and the reported decision of Portugal not to
allow any foreigner to pass from its territory into the Transvaal without an official permit is a sign that she recognizes her duty in this respect.
The reported refusal of the German Government to allow the sale of munitions of war in its territory to either belligerent is, in principle, a more correct view of the obligations of neutrality than that held by Great Britain and the United States, which allow sale of contraband to both belligerents, from “a leaning to the freedom of commerce ;" but the practical result is the same.
The decision of the House of Lords in De Nicols v. Curlier brings our law into line with the view supported by the balance of authority among jurists, and the tendency of former English and Scotch decisions with regard to the question of the effect which a change of domicile has upon the personalty of a husband acquired in that new domicile, where there was no express marriage contract regulating the property of the husband and wife. Two domiciled French persons married in France, and afterwards came to England. The husband became naturalized and died, leaving a large fortune acquired in England, and by a will made in English form made provision for his wife and only child, a daughter. The wife claimed that by French law she was entitled to half the movable property acquired in England. Kekewich, J., held in her favour, and was reversed by the Court of Appeal, which held that such aster-acquired property was governed by the law of the actual domicile of the husband, but his decision has now been restored by the present judgment.
The view of the Court of Appeal had the weight of Story's approval and the support of some American decisions; but the