Mr. Hay to Mr. McCormick.

No. 143.]

Sir: I have the honor to acknowledge the receipt of your dispatch, No. 176, of the 10th instant.

The Department has carefully considered the note of the Russian minister of foreign affairs dated July 27, last, a copy of which is inclosed with your dispatch, with reference to the decision of the prize court in the case of the steamship Arabia, containing American cargo, seized by the Russian naval forces and sent to Vladivostok for adjudication.

As communicated to you by the minister, the decision of the court was—

that the steamer Arabia was lawfully seized; that the cargo, composed of railway material and flour, weighing about 2,360,000 livres, destined to Japanese ports and addressed to different commercial houses in said ports, constitutes contraband of war; * * * that the cargo bound for Japanese ports should be confiscated as being lawful prize.

In communicating the said decision the minister observed, in response to the request of this Government for the release of the non-contraband portion of the cargo, that the question could only be decided through judicial channels as the basis of a decision of the prize court.

This is the first authentic information which the Department has received of the precise grounds on which the prize court decided to confiscate the railway material and flour in question. The judgment of confiscation appears to be founded on the mere fact that the goods in question were bound for Japanese ports and addressed to various commercial houses in said ports. In view of its well-known attitude, it should hardly seem necessary to say that the Government of the United States is unable to admit the validity of the judgment, which appears to have been rendered in disregard of the settled law of nations in respect to what constitutes contraband of war. If the judgment and the communication accompanying its transmission are to be taken as an expression of the attitude of His Imperial Majesty’s Government and as an interpretation of the Russian imperial [Page 761]order of February 29, last, it raises a question of momentous import in its bearing on the rights of neutral commerce.

The Russian imperial order denounces as absolutely contraband of war telegraph, telephone, and railway materials, and fuel of all kinds, without regard to the question whether destined for military or for purely pacific and industrial uses.

Clause 5, article 10, of the imperial order, denounces as contraband of war—

all articles destined for war on land or sea, as well as rice, foodstuffs, and horses, beasts of burden and others (autres), capable of serving a warlike purpose, and if they are transported on account of or to the destination of the enemy.

The ambiguity of meaning which characterizes the language of this clause, lending itself to a double interpretation, left its real intendment doubtful. The vagueness of the language, used in so important a matter, where a just regard for the rights of neutral commerce required that it should be clear and explicit, could not fail to excite inquiry among American shippers who, left in doubt as to the significance attributed by His Imperial Majesty’s Government to the word “enemy”—uncertain as to whether it meant “enemy government or forces,” or “enemy ports or territory”—have been compelled to refuse the shipment of goods of any character to Japanese ports. The very obscurity of the terms used seemed to contain a destructive menace, even to legitimate American commerce.

In the interpretation of clause 10 of article 6, and having regard to the traditional attitude of His Imperial Majesty’s Government, as 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 [Page 762]which it is impossible for the Unitted 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 to be 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 relaxation 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 [Page 763]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.