No. 295.

Mr. Kasson to Mr. Bayard .

No. 245.]

Sir: I have followed with peculiar interest the European discussion relating to the French declaration making rice contraband of war.

The greater number of the European powers, so far as I have observed, have failed to avow their position on this question. England, however, found her navigation and commercial interests so much involved that her Government appears to have protested against the doctrine. At the risk of duplicating the information already on the files of the Department, I inclose herewith a printed summary of the Anglo-French views of the question, deeming it worthy of preservation in the files of important international questions.

But more especially I beg your attention to the importance of the principle involved in this declaration, as it concerns our American interests. We are neutrals in European wars. Food constitutes an immense portion of our exports. Every European war produces an increased demand for these supplies from neutral countries. The French doctrine declares them contraband, not only when destined directly for military consumption, but when going in the ordinary course of trade as food for the civil population of the belligerent government. If food can be thus excluded and captured, still more can clothing, the instruments of industry, and all less vital supplies be cut off on the ground that they tend to support the efforts of the belligerent nation. Indeed, the real principle involved goes to this extent, that everything the want of which will increase the distress of the civil population of the belligerent country may be declared contraband of war. The entire trade of neutrals with belligerents may thus be destroyed, irrespective of an effective blockade of ports. War itself would become more fatal to neutral states than to belligerent interests.

The rule of feudal times, the starvation of beleaguered and fortified towns, might be extended to an entire population of an open country. It is a return to barbaric habits of war. It might equally be claimed that all the peaceful men of arms-bearing age could be deported, because otherwise they might be added to the military forces of the country.

[Page 412]

The United States and other countries have hitherto refused to recognize coal as contraband of war, indispensable as it is to the equipment of war steam cruisers, because its chief use is for peaceful objects. But this French doctrine goes far beyond that.

Although the Franco Chinese war is ended, there is always danger that this precedent will be again adopted in the heat of another war unless resisted by energetic protests in the interests of neutral trade and of humanity itself. Its adoption indeed would practically nullify the advantages of neutrals intended to be secured by the Paris declarations of 1856.

I have, &c.,

JOHN A. KASSON.
[Inclosure in No. 245.]

Anglo-French debate on rice as contraband of war.

It would be well for this country if, out of all recent negotiations with respect to foreign affairs, we had come with as much credit as we have done in the case of the correspondence with the French Government, respecting the recent hostilities in China. Our Government have been in the right from first to last; they may claim to have been throughout neither too punctilious nor too yielding. The decision of the French Government to treat rice as contraband of war may have become of much less importance since the conclusion of peace between France and China. But the French Government have not withdrawn their declaration to that effect.

In the latest communication from M. Waddington on the subject he declares that the importance of rice as an article of food for the Chinese population and army prevents his Government allowing its free entrance into the north of China. The announcement of this policy was made only on the 20th of February last, and there has not been sufficient time to develop fully the inconvenience which this prohibition is calculated to produce. The action of the French Government would establish a precedent which might be of untold consequence in future wars. Our Government, to do them justice, took up a distinct position as soon as the intention of the French Government was known, and they have consistently stuck to a sound principle.

Lord Granville contended that there is a presumption that articles of food are destined for general use, and that it is incumbent on a belligerent to displace this, and to show at least prima facie that they are intended for military purposes. M. Waddington draws his arguments in favor of a different view exclusively from English authorities. He cites, among other authorities, the opinions of Mr. Gladstone and the attorney-general, Sir Robert Collier, expressed in 1870, to the effect that it rests with the prize court of the country which makes a seizure to determine what articles are contraband of war; and he adds, that if any difficulty arise the prize court sitting in Paris will take into consideration all the circumstances. Lord Granville’s answer is natural and conclusive:

“Her Majesty’s Government do not contest the general correctness of the view taken by the Government of the Republic, to the effect that it is for the prize court to decide, in the first instance, on the legality of the seizure; but any such decision, to be binding on neutral Governments, must be in accordance with the rules and principles of international law; but Her Majesty’s Government feel themselves bound to reserve their rights by protesting at once against the doctrine that it is for the belligerent to decide what is and what is not contraband of war, regardless of the well-established rights of neutrals.”

We shall be curious to know what rejoinder can be made to this just observation. In international law, so called, authority can be got for almost any proposition, however violent or startling. All nations, England not excluded, have too much molded their practices and doctrines in accordance with their interests. They have thought much less about being consistent than about what would be advantageous to themselves.

Probably M. Waddington’s legal advisers or assistants could pick out of the mass of loose matter, vaguely designated as international law, passages which seemed to bear out his alarming contention. But the balance of authority, from the dawn of international law to our own time, is wholly against the indefinite and almost unlimited significance given to contraband by M. Ferry’s Government. No doubt it is quite impossible to enumerate exhaustively all the articles which fall within this category. They vary according to the nature of the operations of belligerents. Commodities [Page 413] which are chiefly serviceable in peace may become useful and even essential in war, and as such may be fairly designated as contraband.

France has always hitherto insisted, and there is much to be urged in favor of the view, that the commerce of neutrals should be restricted as little as possible, and that the tendency of belligerents to swell the list of contraband articles should be resisted. The last controversy on the subject was in 1870. Prince Bismarck then sought to convince our Government that coal exported from England to France fell within this category, inasmuch as it might be designed for the use of French cruisers. The French Government wholly repudiated this contention. Our Government then took up a middle position, contending that coal was contraband or not, according to its destination.

To-day the parts are reversed, and M. Waddington, contends for a degree of stringency of which in actual warfare there has been no example. The difficulty which both Governments have experienced in conducting the correspondence about rice has arisen from their own expressions, a little too unguarded and unqualified on former occasions. In 1870 the French Government used arguments which, if well-founded, now put M. Waddington out of court; and with reference to the same dispute the attorney-general employed in the House of Commons language which furnishes M. Waddington with almost his only plausible reasons. Had the latter made more extensive researches than he seems to have done he might, perhaps, have found in English state papers expressions as much in favor of his view as those which he quotes.

Apart from so-called authorities, the question scarcely admits of serious argument. It would be an intolerable hardship to neutrals that commerce of an essentially pacific character should be restricted, and that a large civil population should be deprived of food because a portion of the supply might go to feed soldiers or sailors. Are non-combatants to be starved because perchance combatants may be injured also? We all recognize the right of the prize courts of belligerents to decide, within well-known limits, what seizures are legitimate. Probably no one, however, until M. Waddington formulated the claim, thought of maintaining that neutrals were bound to acquiesce in such a decision, though given in violation of the recognized principles of international law.

In regard to a second point of difference disclosed in this correspondence, our Government appear to be right. To owners of ships and insurance companies it was obviously of great consequence to know whether vessels which sailed with contraband of war prior to the date at which the French Government announced their intention of exercising the right of search were liable to capture. M. Ferry admitted no relaxation in favor of such vessels; liability to seizure accrued, he contended, at the time when belligerents officially announced their intention to exercise the right. Lord Granville’s remonstrance seems very fair. The French Government, for reasons of their own, advisedly abstained from making a declaration of war, and in consequence our Government did not issue, as a warning to English subjects, the usual proclamation of neutrality.

It seems harsh and unfair that ship-owners or shippers of cargo who, in reliance on this state of things, dispatched cargoes should be affected by a notice which they had no reason to expect when the vessels were laden and put to sea. A third point of some interest is raised in the correspondence, and as to it, also, Lord Granville appears to be in the right.

The French Government claimed, at a time when there was no declaration of war, to establish what is called, in singularly infelicitous language, a “pacific blockade” of the island of Formosa, and to capture English vessels which attempted to force the lines. Lord Granville disputed, and, as we think, rightly, this somewhat novel contention. While ready to admit that a state of war existed in Chinese waters, and that belligerents and neutrals alike ought to accept the consequences, he objected to English vessels being liable to seizure in a time of peace. A study of the correspondence will excite very mixed feelings.

It is satisfactory to observe that the English Government have throughout the negotiations upheld sound principles; but to us, who may at any time be in the position of France, it is not satisfactory to find that in regard to elementary questions of international law deep-seated differences of opinion should exist. It is only too plain that it is useless to try to reconcile what writers and statesmen have said; they have, in fact, said generally what interest dictated.

Of the various forms of charlatanism, one of the most shallow is that which assumes that somewhere there exists a perfect system of international law. It is still inchoate, and to a remarkably large extent in a fluid and uncertain state. But, having regard to pronounced tendencies, we must, whether for our advantage or disadvantage, look forward to the prospect of neutrals claiming and enjoying larger rights than belligerents have been in the past disposed to accord them.