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.
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.
[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.
