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this subject, that the views of the United States Government, as expressed in Your Excellency's note, are generally in accord with those which have been held and acted upon from time to time by His Majesty's Government. With reference, however, to the statement made in paragraph 7 as to the attitude of Great Britain in 1870 in regard to coal, I would observe that Her late Majesty's Government refused in that year to permit vessels to sail with coal to the French fleet, not merely because they held that the character of the coal depended upon its destination, but because they held that steamers engaged to take out cargoes of coal to the French fleet in the North Sea would be in reality acting as storeships to that fleet.
It is, however, right that I should add that in the altered conditions of modern maritime warfare and the ever increasing importance of the part played therein by coal, His Majesty's Government propose to submit the whole question to careful and exhaustive examination at an early date, with the question of determining whether and in what respects the British rules, as hitherto acted upon, are in need of revision.
In these circumstances His Majesty's Government do not propose to make any formal protest at the present stage against the Russian declaration in so far as the question of coal is concerned. They have, however, already entered a protest against the treatment of foodstuffs as absolutely contraband, and they have pointed out that they observe with great concern that rice and provisions will be treated as unconditionally contraband, a step which they regard as inconsistent with the law and practice of nations.
In that protest it was stated that His Majesty's Government does not contest that in particular circumstances provisions may acquire a contraband character, as, for instance, if they should be consigned direct to the army or fleet of a belligerent, or to a port where such fleet may be lying, or if facts should exist raising the presumption that they are about to be employed in victualing the fleet or forces of the enemy. In such cases it is not denied that the other belligerent would be entitled to seize the provisions as contraband of war, on the ground that they would afford material assistance toward the carrying on of warlike operations.
They could not, however, admit that if such provisions were consigned to the port of a belligerent (even though it should be a port of naval equipment) they must, on that ground alone, be of necessity regarded as contraband of war.
In the view of His Majesty's Government the test appeared to be whether there are circumstances relating to any particular cargo to show that it is destined for military or naval use.
His Majesty's Government further pointed out that the decision of the prize court of the captor in such matters, in order to be binding on neutral states, must be in accordance with recognized rules and principles of international law and procedure.
They therefore felt themselves bound to reserve their rights by proSECRETARY HAY ON RUSSIAN POSITION.
testing at once against the doctrine that it is for the belligerent to decide that certain articles or classes of articles are, as a matter of course and without reference to the considerations above referred to, to be dealt with as contraband of war regardless of the well-established rights of neutrals; nor would they consider themselves bound to recognize as valid the decision of any prize court which violated these rights, or was otherwise not in comformity with the recognized principles of international law. I have, etc.,
LANDSDOWNE. The position of Great Britain was also clearly stated in a communication to the British representative in Russia:
It has been held by this country, and our officers have been so instructed, that the term “contraband of war” includes only articles having belligerent destination and purpose. Such articles have been classed under two heads
1. Those that are primarily and ordinarily used for military purposes in time of war, e. g., arms and munitions of war, military material, etc.; articles of this kind being usually described as absolutely contraband.
2. Those that may be, and are, used for peaceful or warlike purposes according to circumstances; such articles being usually described as conditionally contraband. (Marquess of Lansdowne to Sir C. Hardinge, August 10, 1904. Parliamentary Papers, Russia, No. 1 (1905), ,
On August 30, 1904, the United States Government made known to its ambassador at St. Petersburg its position on certain questions relating to contraband. The letter is as follows: No. 143.]
DEPARTMENT OF STATE,
Washington, August 30, 1904. His Excellency ROBERT S. McCORMICK, Etc.,
St. Petersburg. Sir: I have the honor to acknowledge the receipt of your No. 176, of the 10th instant.
The Department has carefully considered the note of the Russian minister of foreign affairs, dated July 27 last, a copy of which is inclosed with your dispatch, with reference to the decision of the prize court in the case of the steamship Arabia, containing American cargo, seized by the Russian naval forces and sent to Vladivostok for adjudication.
As communicated to you by the minister the decision of the court was “that the steamer Arabia was lawfully seized, that the cargo, composed of railway material and flour, weighing about 2,360,000 livres, destined to Japanese ports and addressed to different commercial houses in said ports, constitutes contraband of war;
that the cargo bound for Japanese ports should be confiscated as being lawful prize.”
In communicating the said decision the minister observed, in response to the request of this Government for the release of the noncontraband portion of the cargo, that the question could only be decided through judicial channels on the basis of a decision of the prize court.
This is the first authentic information which the Department has received of the precise grounds on which the prize court decided to confiscate the railway material and flour in question. The judgment of confiscation appears to be founded on the mere fact that the goods in question were bound for Japanese ports and addressed to various commercial houses in said ports. In view of its well-known attitude it should hardly seem necessary to say that the Government of the United States is unable to admit the validity of the judgment, which appears to have been rendered in disregard of the settled law of nations in respect to what constitutes contraband of war. If the judgment and the communication accompanying its transmission are to be taken as an expression of the attitude of His Imperial Majesty's Government, and as an interpretation of the Russian imperial order of February 29 last, it raises a question of momentous import in its bearing on the rights of neutral commerce.
The Russian imperial order denounces as absolutely contraband of war telegraph, telephone, and railway materials, and fuel of all kinds, without regard to the question whether destined for military or for purely pacific and industrial uses.
Clause 5, article 10, of the imperial order denounces as contraband of war “all articles destined for war on land or sea, as well as rice, provisions, and horses, beasts of burden, and others (autres) capable of serving a warlike purpose, and if they are transported on account of or to the destination of the enemy.”
The ambiguity of meaning which characterizes the language of this clause, lending itself to a double interpretation, left its real intendment doubtful. The vagueness of the language, used in so important a matter, where a just regard for the rights of neutral commerce required that it should be clear and explicit, could not fail to excite inquiry among American shippers who, left in doubt as to the significance attributed by His Imperial Majesty's Government to the word “enemy”-uncertain as to whether it meant “enemy government or forces” or “enemy ports or territory”—have been compelled to refuse the shipment of goods of any character to Japanese ports. The very obscurity of the terms used seemed to contain a destructive menace, even to legitimate American commerce.
In the interpretation of clause 10 of article 5, and having regard to the traditional attitude of His Imperial Majesty's Government, as well as to the established rule of international law, with respect to goods which a belligerent may or may not treat as contraband of war, it seemed to the Government of the United States incredible that the SECRETARY HAY ON RUSSIAN POSITION.
word “autres" or the word “l'ennemi” could be intended to include, as contraband of war, food stuffs, fuel, cotton, and all “other” articles destined to Japanese ports, irrespective of the question whether they were intended for the support of a noncombatant population or for the use of the military or naval forces. In its circular of June 10 last, communicated by you to the Russian Government, the Department interpreted the word “enemy" in a mitigated sense, as well as in accordance with the enlightened and humane principles of international law, and therefore it treated the word “enemy,” as used in the context, as meaning “enemy Government or forces” and not the “enemy ports or territory."
But if a benign interpretation was placed on the language used, it is because such an interpretation was due to the Russian Government, between whom and the United States a most valued and unbroken friendship has always existed, and it was no less due to the commerce of the latter, inasmuch as the broad interpretation of the language used would imply a total inhibition of legitimate commerce between Japan and the United States, which it would be impossible for the latter to acquiesce in.
Whatever doubt could exist as to the meaning of the imperial order has been apparently removed by the inclosure in your dispatch of the note from Count Lamsdorff, stating tersely and simply the sentence of the prize court. The communication of the decision was made in unqualified terms, and the Department is therefore constrained to take notice of the principle on which the condemnation is based and which it is impossible for the United States to accept, as indicating either a principle of law or a policy which a belligerent State may lawfully enforce or pursue toward the United States as a neutral.
With respect to articles and material for telegraphic and telephonic installations, unnecessary hardship is imposed by treating them all as contraband of war, even those articles which are evidently and unquestionably intended for merely domestic or industrial uses. With respect to railway materials, the judgment of the court appears to proceed in plain violation of the terms of the imperial order, according to which they are to be deemed to be contraband of war only if intended for the construction of railways. The l'nited States Government regrets that it could not concede that telegraphic, telephonic, and railway materials are confiscable simply because destined to the open commercial ports of a belligerent.
When war exists between powerful States it is vital to the legitimate maritime commerce of neutral States that there be no relaxation of the rule-no deviation from the criterion--for determining what constitutes contraband of war lawfully subject to belligerent capture, namely, warlike nature, use, and destination. Articles which, like arms and ammunition, are by their nature of self-evident warlike use are contraband of war if destined to enemy territory; but articles which, like coal, cotton, and provisions, though of ordinarily innocent, are capable of warlike use, are not subject to capture and confiscation unless shown by evidence to be actually destined for the military or naval forces of a belligerent.
This substantive principle of the law of nations can not be overridden by a technical rule of the prize court that the owners of the captured cargo must prove that no part of it may eventually come to the hands of the enemy forces. The proof is of an impossible nature, and it can not be admitted that the absence of proof, in its nature impossible to make, can justify the seizure and condemnation. If it were otherwise all neutral commerce with the people of a belligerent State would be impossible; the innocent would suffer inevitable condemnation with the guilty.
The established principle of discrimination between contraband and noncontraband goods admits of no relaxation or refinement. It must be either inflexibly adhered to or abandoned by all nations. There is and can be no middle ground. The criterion of warlike usefulness and destination has been adopted by the common consent of civilized nations after centuries of struggle in which each belligerent made indiscriminate warfare upon all commerce of all neutral States with the people of the other belligerent, and which led to reprisals as the mildest available remedy.
If the principle which appears to have been declared by the Vladivostok prize court and which has not so far been disavowed or explained by His Imperial Majesty's Government is acquiesced in, it means, if carried unto full execution, the complete destruction of all neutral commerce with the noncombatant population of Japan; it obviates the necessity of blockades; it renders meaningless the principle of the Declaration of Paris set forth in the imperial order of February 29 last that a blockade in order to be obligatory must be effective; it obliterates all distinction between commerce in contraband and noncontraband goods, and is in effect a declaration of war against commerce of every description between the people of a neutral and those of a belligerent State.
You will express to Count Lamsdorff the deep regret and grave concern with which the Government of the United States has received his unqualified communication of the decision of the prize court; you will make earnest protest against it and say that the Government of the United States regrets its complete inability to recognize the principle of that decision and still less to acquiesce in it as a policy. I have the honor to be, sir, your obedient servant,
John Hay. The American ambassador on September 21 sent the following reply: No. 186.]
St. Petersburg, September 21, 1904. Sir: I have the honor to confirm my cablegram of the 19th with reference to the attitude of the Russian Government on the subject of contraband of war and to transmit to you a copy of a memorandum