[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