The same criterion of decision is enounced by Kent, Halleck, and other authoritative publicists-that if the port be a general commercial one, it is presumed that the articles are intended for civil use, but if the great predominant character of the port is that of a port of naval equipment, it will be presumed that the articles were going for military use, and that the presumption of innocence exists in all cases when they are destined to a commercial port. The Department deeply regrets to observe the disposition of His Imperial Majesty's Government to treat coal as absolutely contraband of war-a policy apparently inconsistent alike with the true and permanent interests of the United States and Russia. If this treatment were to be sanctioned by the law of nations, it would vastly increase the burdens and difficulties of maritime warfare for either of these states, inasmuch as the necessary corollary of the principle is, that neutral states could no more allow a belligerent ship to take coal in its ports than to take munitions of war. If coal is to be treated as absolutely contraband by belligerents, it must be so regarded by neutrals. The treatment must be equal, impartial, uniform, and constant-it could not be admitted as an exception-and therefore a neutral state could not, if the principle were admitted, permit the coaling of a belligerent ship in its ports without the most flagrant and culpable breach of neutrality. While the treatment of coal as absolutely contraband might seem to be to the temporary advantage of His Imperial Majesty's Government, yet, in the actual situation in which they are placed, it would, as a principle, work to the permanent and very serious disadvantage both of Russia and the United States, whether they should happen to be at peace or war with other nations. Nor could the United States Government acquiesce in the treatment of raw cotton as absolutely contraband of war. While that product may enter to some extent into the manufacture of explosives and military clothing, the quantity of it used for such purposes is so far out of proportion to its uses in the arts of peace that the recognition of its treatment as absolutely contraband would, in principle, justify the same treatment of all forms of iron and steel, as well as wood, wool, all kinds of fuel, and all other materials which could be used in the manufacture of guns, carriages, or any other article of potentially military use, and would, therefore, be destructive of virtually all commerce of neutral states with the noncombatant population of belligerents.... I am [etc.] JOHN HAY 162 The Secretary of State (Root) to the Delegates to the Hague Peace Conference of 1907 (Choate, Porter, Rose, Hill, Davis, Sperry, Buchanan) 1 GENTLEMEN: WASHINGTON, May 31, 1907. 6. You will maintain the traditional policy of the United States regarding the immunity of private property of belligerents at sea. On the 28th of April, 1904, the Congress of the United States adopted the following resolution: 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. This resolution is an expression of the view taken by the United States during its entire history. Such a provision was incorporated in the treaty of 1775 [1785] with Prussia, signed by Benjamin Franklin, Thomas Jefferson, and John Adams, and it was proposed by the United States as an amendment to be added to the privateering clause of the Declaration of Paris in 1856. The refusal of the other powers to accompany prohibition of privateering by such a provision caused the Government of the United States to refuse its adherence to the declaration. The Congressional resolution was in response to the recommendation of President Roosevelt's message to Congress in December, 1903, quoting and enforcing a previous message by President McKinley in December, 1898, which said: The United States Government has for many years advocated this humane and beneficent principle, and is now in a position to recommend it to other powers without the imputation of selfish motives. Whatever may be the apparent specific interest of this or any other country at the moment, the principle thus declared is of such permanent and universal importance that no balancing of the chances of probable loss or gain in the immediate future on the part of any nation should be permitted to outweigh the considerations of common benefit to civilization which call for the adoption of such an agreement. In the First Peace Conference the subject of the immunity of private property at sea was not included in the programme. Consideration of it was urged by the delegates of the United States and was supported by an able presentation on the part of Mr. Andrew D. White. The representatives of several of the great powers declared, however, that in the absence of instructions from their Governments they could not vote upon the subject; and, under the circumstances, we must consider that gratifying progress was made when there was included in the final act of the conference a resolution expressing— The wish that the proposal which contemplates the declaration of the inviolability of private property in naval warfare may be referred to a subsequent conference for consideration. The subject has accordingly been included in the present programme and the way is open for its consideration. It will be appropriate for you to advocate the proposition formulated and presented by the American delegates to the First Conference, as follows: The private property of all citizens or subjects of the signatory powers, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas, or elsewhere by the armed vessels or by the military forces of any of the said signatory powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said powers. 7. Since the code of rules for the government of military operations on land was adopted by the First Peace Conference there have been occasions for its application under very severe conditions, notably in the South African war and the war between Japan and Russia. Doubtless the powers involved in those conflicts have had occasion to observe many particulars in which useful additions or improvements might be made. You will consider their suggestions with a view to reducing, so far as is practicable, the evils of war and protecting the rights of neutrals. As to the framing of a convention relative to the customs of maritime warfare, you are referred to the naval war code promulgated in General Orders 551 of the Navy Department of June 27, 1900, which has met with general commendation by naval authorities throughout the civilized world, and which, in general, expresses the views of the United States, subject to a few specific amendments suggested in the volume of international-law discussions of the Naval War College of the year 1903, pages 91 to 97. The order putting this code into force was revoked by the Navy Department in 1904, not because of any change of views as to the rules which it contained, but because many of those rules, being imposed upon the forces of the United States by the order, would have put our naval forces at a disadvantage as against the forces of other powers, upon whom the rules were not binding. The whole discussion of these rules contained in the volume to which I have referred is commended to your careful study. You will urge upon the Peace Conference the formulation of international rules for war at sea and will offer the Naval War Code of 1900, with the suggested changes and such further changes as may be made necessary by other agreements reached at the conference, as a tentative formulation of the rules which should be considered. 8. The clause of the programme relating to the rights and duties of neutrals is of very great importance and in itself would furnish matter for useful discussion sufficient to occupy the time and justify the labors of the conference. The various subjects which the conference may be called upon to consider are likely to bring out proposals which should be considered in their relation to each other, as standing in the following order of substantial importance: (1) Provisions tending to prevent disagreements between nations. (2) Provisions tending to dispose of disagreements without war. (3) Provisions tending to preserve the rights and interests of neutrals. (4) Provisions tending to mitigate the evils of war to belliger ents. The relative importance of these classes of provisions should always be kept in mind. No rules should be adopted for the purpose of mitigating the evils of war to belligerents which will tend strongly to destroy the right of neutrals, and no rules should be adopted regarding the rights of neutrals which will tend strongly to bring about war. It is of the highest importance that not only the rights but the duties of neutrals shall be most clearly and distinctly defined and understood, not only because the evils which belligerent nations bring upon themselves ought not to be allowed to spread to their peaceful neighbors and inflict unnecessary injury upon the rest of mankind, but because misunderstandings regarding the rights and duties of neutrals constantly tend to involve them in controversy with one or the other belligerent. For both of these reasons, special consideration should be given to an agreement upon what shall be deemed to constitute contraband of There has been a recent tendency to extend widely the list of war. articles to be treated as contraband; and it is probable that if the belligerents themselves are to determine at the beginning of a war what shall be contraband, this tendency will continue until the list of contraband is made to include a large proportion of all the articles which are the subject of commerce, upon the ground that they will be useful to the enemy. When this result is reached, especially if the doctrine of continuous voyages is applied at the same time, the doctrine that free ships make free goods and the doctrine that blockades in order to be binding must be effective, as well as any rule giving immunity to the property of belligerents at sea, will be deprived of a large part of their effect, and we shall find ourselves going backward instead of forward in the effort to prevent every war from becoming universally disastrous. The exception of contraband of war in the Declaration of Paris will be so expanded as to very largely destroy the effect of the declaration. On the other hand, resistance to this tendency toward the expansion of the list of contraband ought not to be left to the neutrals affected by it at the very moment when war exists, because that is the process by which neutrals become themselves involved in war. You should do all in your power to bring about an agreement upon what is to constitute contraband; and it is very desirable that the list should be limited as narrowly as possible. I am [etc.] 163 ELIHU ROOT The Acting Secretary of State (Adee) to the Chairman of the Delegation to the Hague Peace Conference of 1907 (Choate)1 [Telegram] WASHINGTON, July 30, 1907. Secretary Root telegraphs with approval of the President the following answer to your request for instructions. "We prefer as better adapted to secure practical relief for neutral commerce limitation of contraband by specific enumeration as indicated in our general instructions rather than attempt at entire abolition which would probably give rise to very serious and doubtful questions. Our delegates should, however, be at liberty to vote for entire abolition with reservation that such abolition shall not be deemed in any way or degree to increase the duties resting upon neutral States to prevent their citizens from helping belligerents.2 Root." 1 File No. 40/406. ADEE 2 On Sept. 18, 1907, the following message from the Secretary of State was cabled to the chairman of the delegation: "I approve endorsing abolition of conditional contraband." (File No. 40/470.) |