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 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.

What 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 Lansdorff, 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 contraband of war only if intended for the construction of railways. The United 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 relaxa

tion 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 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 into 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 [etc.]

JOHN HAY

160

The Secretary of State (Hay) to the Diplomatic Representatives Accredited to the Governments Signatories to the Acts of the Hague Peace Conference of 1899 1

1

[Extract]

WASHINGTON, October 21, 1904.

SIR:

Should His Excellency invite suggestions as to the character of the questions to be brought before the proposed second peace conference, you may say to him that, at this time, it would seem premature to couple the tentative invitation thus extended with a categorical programme of subjects of discussion. It is only by comparison of views that a general accord can be reached as to the matters to be considered by the new conference. It is desirable that in the formulation of a programme the distinction should be kept clear between the matters which belong to the province of international law and those which are conventional as between individual governments. The final act of The Hague conference, dated July 29, 1899, kept this distinction clearly in sight. Among the broader general questions affecting the right and justice of the relation of sovereign states which were then relegated to a future conference were, the rights and duties of neutrals, the inviolability of private property in naval warfare, and the bombardment of ports, towns, and villages by a naval force. The other matters mentioned in the final act take the form of suggestions for consideration by interested governments.

The three points mentioned cover a large field. The first, especially, touching the rights and duties of neutrals, is of universal importance. Its rightful disposition affects the interests and wellbeing of all the world. The neutral is something more than an on-looker. His acts of omission or commission may have an influence-indirect, but tangible-on a war actually in progress; whilst on the other hand he may suffer from the exigencies of the belligerents. It is this phase of warfare which deeply concerns the world at large. Efforts have been made, time and again, to 1 Foreign Relations, 1904, pp. 10–13.

42179-34- -34

formulate rules of action applicable to its more material aspects, as in the declarations of Paris. As recently as the 28th of April of this year the Congress of the United States adopted a resolution. reading thus:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That it is the sense of the Congress of the United States that it is desirable, in the interest of uniformity of action by the maritime states of the world in time of war, that the President endeavor to bring about an understanding among the principal maritime powers with a view of incorporating into the permanent law of civilized nations the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerents. Approved, April 28, 1904.

Other matters closely affecting the rights of neutrals are the distinction to be made between absolute and conditional contraband of war, and the inviolability of the official and private correspondence of neutrals.

I am [etc.]

161

JOHN HAY

The Secretary of State (Hay) to the Ambassador in Russia

(McCormick)1

WASHINGTON, January 13, 1905.

No. 177
SIR:

It seems superfluous to argue that the recognition by His Imperial Majesty's Government of the principle that foodstuffs and other articles of dual use consigned directly to a merchant in an open port are not contraband of war would be completely nullified by nevertheless treating the goods as absolutely contraband for want of proofimpossible to be made by the claimants that the goods consigned might not ultimately reach the military or naval forces of the enemy. Count Lamsdorff's statement that the Russian Government "would be compelled to take such steps as would be necessary to prevent supplies of any character ultimately intended for the use of the enemy from reaching their destination," would be unobjectionable if the steps contemplated were an effective blockade of the ports of the enemy; but it is obvious that the extensive object sought could be 1 Foreign Relations, 1905, pp. 744–748.

practically, completely, and lawfully accomplished in no other way. If the cargo were condemned on the ground that the neutral claimant had not offered proofs that no part of the cargo could eventually reach the enemy's forces, it would override the universal presumption in favor of innocence by demanding impossible proofs. If proof were required on the part of the neutral claimant to show that the cargo was destined only to pacific uses, to what extent must he adduce proofs? Must he show that none of the cargo would eventually reach the enemy's forces? If proof so comprehensive be wanting, would the whole cargo be condemned? If it were not shown by the captor that the consignee was an agent or contractor of the enemy's government, must proof be offered by the claimant that he will not sell to one who is such agent even though the purchaser might conceal his agency? The law of nations affords no answer to these questions, and it must therefore be presumed that it does not authorize any seizure and condemnation on the mere ground of the possibility of supplies reaching the military or naval forces of the enemy.

The criterion of decision in such cases was laid down by Lord Stowell, an eminent authority, in the case of the Jonge Margaretha (1 Robinson):

But the most important distinction is whether the articles were intended for the ordinary uses of life or even for mercantile ships' use, or whether they were going with the highly probable destination to military use. Of the matter of fact, on which the distinction is to be applied, the nature and quality of the port to which the articles were going is not an irrational test. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. On the contrary, if the great predominant character of a port be that of a port of naval military equipment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place and although it is possible that the articles might have been applied to civil consumption; for it being impossible to ascertain the final application of an article ancipitis usus, it is not an injurious rule which deduces both ways the final use from immediate destination.

The same judge, in the case of the Neptunus (3 Robinson), which involved a miscellaneous cargo taken on the voyage from Cronstadt to Amsterdam, decided that a portion of the cargo consisting of tallow should be restored to the claimant on the ground of its destination to Amsterdam, a great mercantile port as well as a port of naval equipment, and likewise decided that a portion of the cargo consisting of sailcloth should be condemned, on the ground that Amsterdam was a port both of great mercantile and military equipment.