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]