No. 258.

Mr. Morton to Mr. Bayard.

No. 737.]

Sir: I have the honor to send herewith two copies of the French Yellow Book on Chinese affairs, which was laid before the Chambers. It contains diplomatic correspondence of a highly interesting character with reference to a disputed point of international law, namely, whether rice, which is used as a breadstuff by the Chinese, can be considered as contraband of war.

[Page 364]

It was only on the 20th of February last that the French Government resolved to take the important step of notifying the foreign powers that hereafter rice shipped in neutral bottoms to certain Chinese ports would be treated by her as contraband of war. This rigorous measure was resorted to, Mr. Ferry explains, because of a decided change in the attitude of the British Government. Up to January 23 that Government had not considered the French and the Chinese in a state of belligerence, as defined by international law, and therefore the foreign enlistment act was not applicable to either. But on the date named the British cabinet resolved that hereafter this act should be enforced; this obliged the French to declare themselves belligerents, which was done by a circular dated January 24, followed shortly after by the declaration making rice contraband of war.

The political and legal grounds for taking such an important and grave measure are fully discussed in the documents published in the Yellow Book. Mr. Ferry quotes the authors which have written on the subject; states the principles governing the case, as he understands it, recalls many precedents, amongst which he does not omit the one furnished by Great Britain and the United States at the end of the last century, and shows that the position now assumed by France is supported by English precedents as well as by English statesmen and writers. The aim of his argument is to establish that there are two kinds of contraband of war, one which is made so by the very nature of the articles themselves, such as arms and ammunition; the other, which derives its contraband character from the destination of the articles and the circumstances of the case, such as coal and provisions.

There is no fixed rule for the classification of the articles belonging to this class. Each belligerent must be left to determine for itself the articles which it considers as contraband; but in so doing it is expected that it will affix this character only to the articles which can be used by the enemy for its defense, or of which the privation would bring about its submission. It is undeniable that Mr. Ferry makes a strong case, particularly when he reminds the neutral Governments that it would have been lawful for France to blockade the Chinese ports where she desires to prevent the importation of rice, which course would be much more damaging to the commerce of the world at large than the one he has adopted.

You will see, nevertheless, that the British Government has objected to the course taken by France, and that Denmark and Sweden and Norway have likewise protested. Germany, Austria, Spain, Portugal, and Holland have quietly acquiesced in the measure.

The present state of the matter seems to be as follows, the French Government has stated that the legality of the seizures of rice made by its cruisers will be submitted for final decision to the French prize courts sitting at Paris, and the British Government has tacitly accepted this concession with the understanding, however, that the decisions of these courts may become the subject of ulterior diplomatic action.

I inclose herewith a copy of Lord Granville’s note to Mr. Wadding-ton, of February 27, 1885, stating his objection to the action of the French Government, and a translation of Jules Ferry’s replies to these objections, dated March 7 and March 13.

I have, &c.,

[Page 365]
[Inclosure 1 in No. 737.]

Lord Granville to Mr. Waddington.

I have the honor to acknowledge the receipt of your excellency’s notes of the 20th and 24th instant, in the former of which you announce that, in view of the conditions under which war with China is now being carried on, it is the intention of the Government of the French Republic to treat rice generally as contraband of war, and in the latter that only those cargoes of rice which are destined for Chinese ports to the north of Canton will be so treated, but that those haying destination for Canton and the southern Chinese ports will be allowed to pass freely.

I regret to have to inform you that Her Majesty’s Government feel compelled to take exception to the proposed measure, as they cannot admit that, consistently with the law and practice of nations and with the rights of neutrals, provisions in general can be treated as contraband of war.

Her Majesty’s Government do not contest that under particular circumstances provisions may acquire that character, as, for instance, if they should be consigned directly to the fleet of a belligerent or to a port where such fleet maybe lying, and that facts should exist raising the presumption that they were about to be employed in victualing the fleet of the enemy.

In such case it is not denied that the belligerent would be entitled to seize the provisions as contraband of war, on the ground that they would enable warlike operations to be carried on. But Her Majesty’s Government cannot admit that if such provisions were consigned to the port of a belligerent (even though it should be a port of naval equipment), they could, therefore, be necessarily regarded contraband of war.

In the view of Her Majesty’s Government the first appears to be whether there are circumstances relative to any particular cargo, or its destination, to displace the presumption that articles of this kind are intended for the ordinary use of life, and to show prima facie, at all events, that they are destined for military use. No such qualification, however, is contained in the announcement made by your excellency in respect of the destination of the rice, or of the purposes to which it is intended to be applied.

I have, therefore, the honor to state to your excellency that Her Majesty’s Government cannot assent to the right of the Government of the French Republic to declare rice generally to be contraband of war if carried to any port north of Canton.

I beg to add that Her Majesty’s Government could not, under any circumstances, acquiesce in that portion of your excellency’s note in which it is stated that the notification in question will take effect from the 26th instant, as many vessels laden with rice may have already commenced their voyage.

[Inclosure 2 in No. 737.—Translation.]

Mr. Ferry to Mr. Waddington.

You were good enough, on the 28th of February, to transmit to me a copy of the reply of the English Government to the notification which you were instructed to present to it, of our intention to consider rice as an article of contraband of war in our present conflict with China.

In this reply the chief of the foreign office does not contest that, in addition to articles which by their nature constitute contraband of war, there may be others, as food and provisions, to which in exceptional cases the same qualifications may be extended in consequence of their destination and of their utility to the belligerents. Lord Granville is of opinion, however, that such an extension can only be admitted in special cases, determined by particular circumstances, of which he is careful to indicate the nature, and cannot be declared in a general manner.

The doctrine which, in addition to the contraband of war by nature, admits the contraband of war by destination, has been professed by England for a long time past. Thus, the attorney-general, at the sitting of the House of Commons on the 30th of March, 1854, being called upon to speak on this subject, after having acknowledged that the determination of articles of contraband of war was one of the most difficult and complicated questions of international law, expressed himself as follows:

“In general contraband of war may be classed under the two categories following: first, articles which, by their nature, serve directly the purposes of war, as arms and [Page 366] ammunition; second, articles which are susceptible to serve indirectly the purposes of war in permitting the continuation of hostilities, as provisions.

Being obliged by imperious necessity to apply this doctrine we were well founded in thinking that we should not meet with objections as to the principle on the part of the English Government. The only point upon which we are at divergence is the appreciation of the circumstances which would authorize us in classing rice amongst articles of contraband. Even in this respect we had reason to think that no divergence of views would arise between England and ourselves. It seems that, up to the present time, British statesmen themselves have abstained from specifying the circumstances which authorize belligerents to effect the seizure of goods accidentally qualified as contraband of war, as coal, for instance.

Such was especially the attitude of Mr. Gladstone at the sitting of the House of Commons on the 22d July, 1870, when he was led to quote in support of his opinion an official letter of Lord Malmesbury, dated the 18th of May, 1859, and which contained the following passage:

“I should declare that the proclamation of Her Majesty does not specify, and could not in reality specify, what articles are or are not contraband of war, and that the passages relating to the contraband of war have not for object to prevent the exportation of coal or any other article, but simply to caution the subjects of Her Majesty, that if they transport for the use of one of the belligerents articles reputed as contraband of war, and that their property should be seized by one of the belligerents, the Government of Her Majesty will not take upon itself to intervene in their favor against a war capture (saisie de guerre) or against its consequences. I should add that the tribunal of captures (court of prizes) of the country which has effected the seizure is competent to judge,” &c.

More recently, in the month of May, 1877, Mr. Burke confirmed this view in declaring that articles other than arms and ammunition “which can in certain cases be employed for military operations, have been considered as contraband of war, according to their destination and other circumstances, of which the council of captures is judge.”

The particular circumstances under which hostilities against China are being proceeded with, have induced us to take the decision, in consequence of which Lord Granville has thought fit to present reservations. These circumstances, of which we are the best judges, I have not here to recall. I have already had occasion to point out to you that the importation of rice for the alimentation of the Chinese population and army, does not permit us to authorize its transport to the north of China under penalty of depriving ourselves of one of the most powerful measures of coercion at our disposal. We could attain this object without stopping neutral vessels on the high seas, by declaring the blockade of Chinese ports open to foreign commerce; but a measure of this kind would have had for the commerce of neutral parties disastrous consequences, to which we should be repugnant to expose friendly powers.

We have thought that it would be more advantageous for all to allow foreign traders to continue their peaceful commerce in the China seas, with the sole exception of the commerce in rice, and it seems to us that in the state of international right (droit des gens) upon the subject, nothing should prohibit us from attaining the double object that we have in view: injure as much as possible the enemy, and as slight as possible neutrals, in declaring that rice shall be treated by us as an article of contraband of war. Moreover, the final decision, conformably to the opinion of Lord Malmesbury and of Mr. Burke, shall belong, if need be, to the council of captures sitting at Paris, which will not fail to take into consideration all the circumstances which may be put forward in favor of the owners of the cargoes seized.

I beg you to have the goodness to make use of the preceding suggestions in replying to the note of Lord Granville of the 27th of February.

[Inclosure 3 in No. 737.—Translation]

Mr. Ferry to Mr. Waddington.

Sir: The indications contained in my letter of the 6th instant, gave us an opportunity of establishing that our resolution to treat rice as contraband of war is only a conformity with the doctrines supported by statesmen of the United Kingdom up to a very recent date. It sets forth at the same time the conclusion that in the present conditions of our conflict; with China the determination which we have taken is less prejudicial to neutral commerce than other measures to which we could have legally had recourse.

[Page 367]

To these considerations you may add another, which accords with the order of ideas taken as a standpoint by Lord Granville in his communication of the 27th of February. The Government of Her Majesty is of the opinion that to attribute to provisions the character of contraband of war, the essential point is to know whether circumstances exist which show that these articles are not only destined for the ordinary uses of life, but that they are intended for a military use.

Taking this point of view even, you will recall that most cargoes of rice exported from the southern Chinese ports towards the north, the very same whose imminent expedition was notified to us by Admiral Courbet a few weeks since, represent the amount of the tax in kind or tribute that the governors of the provinces send every year to the court of Peking.

It is known, besides, that the soldiers of the Chinese imperial armies receive a part of their pay by portions of rice, and that the tribute of the provinces is precisely affected to this use. It may be said, therefore, that the circumstances alluded to in the communication of Lord Granville are thus combined, and that the cargoes of rice forwarded from the southern ports destined for a military use, besides which they can be considered as state property of the enemy and susceptible of capture in consequence. Under these circumstances, at all events, the Government of the Queen will admit that there is no reason why rice should not be treated as contraband of war, and it will have no difficulty in acknowledging that the care of appreciating, according to the circumstances, the legality and the consequences of the seizures which may be effected, belongs exclusively to the council of captures.