Mr. McCormick to Mr. Hay.
St. Petersburg, September 29, 1904.
Sir: With reference to the Department’s several cablegrams and instructions concerning the rights of owners to present evidence before the court of admiralty on the hearing of appeal in their respective cases, I have the honor to inform you that British owners, with the cooperation of their embassy, have already placed their cases in the hands of counsel here in order that the latter may acquaint themselves with the details in the respective cases and prepare a proper presentation and arguments well in advance of the time when the admiralty court will sit.
In the British cases the attorney will be the counsel of the British embassy, assisted by Mr. Passover, whose position as an authority on international law is well known in St. Petersburg.
I have no personal knowledge of Mr. Passover’s qualifications, but he has been highly spoken of to me by Sir Charles Hardinge, the British ambassador, and his retention would be an advantage to those who may require legal services, especially as Mr. Passover has a thorough knowledge of English. It seems to me that arrangements should be made in advance for a proper and strong presentation of the cases of our citizens as has been done in the case of British subjects, as such presentations can not be without effect, notwithstanding the fact that the character of the judgment to be rendered will be in some sense a foregone conclusion.
It appears now that the special commission appointed to consider the decisions of the Vladivostok prize court, and the rules under [Page 771] which these decisions were rendered, gave no attention to other than section 10 of article 6 of these rules, leaving out of consideration therefore all articles not specifically enumerated therein, such as coal, alcohol, naphtha, and other fuel, as well as cotton and materials for the installation of telegraph and telephone lines and for the construction of railways.
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I have represented to Count Lamsdorff that the telephone is to-day an article of household use so generally availed of as to be classed among ordinary necessities, and as the same character of supplies are required to a certain extent for the construction of telegraph lines, these supplies should also fall under the classification of conditional contraband of war. I have also represented to his excellency that cotton, being one of our chief products ranking with breadstuffs in its importance, to place it on the absolutely contraband list, works a hardship which would not be lightly endured by the agricultural class who raise it any more than by the merchants through whose hands it passes to the cotton mills of Japan, there to be converted into clothing as necessary to the people as the food into which is converted American flour.
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I shall lose no opportunity to further impress upon Count Lamsdorff, as I have done in accordance with your instruction, “how vital to the legitimate commerce of the United States, how vital to the legitimate commerce of all neutral states at this time 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, by their nature of self-evident warlike use,” and how vital it is that the decision of the appeal court be governed by this rule.
I have, etc.,