The Secretary of State to Ambassador McCormick.

No. 177.]

Sir: The Department has given careful consideration to the views of Count Lamsdorff, reported in your cablegram of September 17 last and in your dispatch No 186 of September 21,a with respect to contraband of war.

The positions taken by Count Lamsdorff, as thus reported by you, are that—

Articles of dual use addressed to private individuals in the enemy’s country are not necessarily exempt from seizure and confiscation, as such persons might be employed as the agents or contractors of the military or naval authorities;

that—

To unconditionally accept as noncontraband all merchandise not universally accepted or described in their rules as such would open the door to contractors in Japan to import [Page 745] foodstuffs and other merchandise without limit for account of the Japanese Government—that is, on account of or in destination of the enemy—that the Russian Government could not but consider as contraband a cargo of flour consigned to a port at which was quartered a large body of troops, and that extending this principle the ultimate destination of the cargo had to be taken into consideration although its direct consignment might be to a merchant in an open port;

that—

Nobody would be so naive as to consign merchandise not prima facie contraband, although intended for the enemy, to the destination of the enemy, substituting therefor a middleman in the shape of a merchant in the open port;

that—

They would be compelled to take such steps as would be necessary to prevent supplies of any character ultimately intended for the use of the enemy from reaching their destination;

and that—

Coal and cotton were held to be absolutely contraband.

In Count Lamsdorff’s note, a copy of which is inclosed in your dispatch, the minister says that—

It is only articles enumerated in section 10 of Article VI—horses and beasts of burden excepted—which have been recognized as conditionally contraband of war.

The articles referred to are described in section 10, Article VI, as follows:

In general, everything intended for warfare on land or sea; also rice, foodstuffs, horses, beasts of burden, and other animals which may be used in time of war, whenever they are transported for account of or in destination for the enemy.

It therefore appears that only rice and foodstuffs are to be deemed as conditionally contraband, while horses and beasts of burden mentioned in section 10, all kinds of fuel, such as coal, naphtha, alcohol, and such like, mentioned in section 8, and telegraph, telephone, and railway materials, mentioned in section 9 of the same article, are all to be considered as absolutely contraband.

In the memorandum accompanying Count Lamsdorff’s note the minister says:

The American notes relative to the seizure of the steamships Calchas and Arabia treated simultaneously the questions of principle and fact. * * * Down to the moment of the revision of the decrees of the Vladivostok court by the superior court, reclamations having relation to questions of fact are beyond the competence of the Imperial ministry of foreign affairs. * * * In that which concerns questions of principle the ambassador of the United States was seasonably advised that a special commission, convoked by supreme order to the Imperial ministry of foreign affairs and presided over by Mr. De Martens, has submitted to a thorough examination the question of the interpretation of section 10, Article VI, of the order of the 29th of February upon contraband of war. The conclusions of this commission have been brought to the knowledge of the Russian cruisers and of the prize tribunals in order to be taken into due consideration by them in the future.

The Department is unadvised as to what the conclusions of the special commissioners were, and, consequently, has no information as to what instructions, if any, have been given by His Imperial Majesty’s Government to the Russian cruisers and prize tribunals, and can only interpret its attitude in the light of the statements of Count Lamsdorff above mentioned.

It is unquestionably true that a merchant in an open port to whom a cargo of goods of dual use was consigned might be, in fact, an agent or contractor of the Japanese Government, and that the prize court might, therefore, treat such cargo as absolutely contraband of war, the same as if it had been shipped directly on account of the Japanese [Page 746] Government. But it would seem to be contrary to the rules of prize law and to the practice of prize courts to seize and condemn or detain the cargo, either on mere suspicion, or without evidence to show that the consignee was in fact an agent or contractor of the Japanese Government, or simply because the cargo might possibly be disposed of by the consignee in the course of trade and eventually reach, in whole or in part, the Japanese military or naval forces. The opinion expressed in the case of the ship Resolution (2 Dall., United States Supreme Court Reports) was that—

If in this case the papers on board affirm the ship and cargo to be such property as is not prize, there must be an acquittal unless the captors are able by a contrariety of evidence to defeat the presumption which arises from the papers and can show just ground for condemnation.

It seems superfluous to argue that the recognition by His Imperial Majesty’s Government of the principle that foodstuffs and other articles of dual use consigned directly to a merchant in an open port are not contraband of war would be completely nullified by nevertheless treating the goods as absolutely contraband for want of proof—impossible to be made—by the claimants that the goods consigned might not ultimately reach the military or naval forces of the enemy. Count Lamsdorff’s statement that the Russian Government “would be compelled to take such steps as would be necessary to prevent supplies of any character ultimately intended for the use of the enemy from reaching their destination,” would be unobjectionable if the steps contemplated were an effective blockade of the ports of the enemy; but it is obvious that the extensive object sought could be practically, completely, and lawfully accomplished in no other way. If the cargo were condemned on the ground that the neutral claimant had not offered proofs that no part of the cargo could eventually reach the enemy’s forces, it would override the universal presumption in favor of innocence by demanding impossible proofs. If proof were required on the part of the neutral claimant to show that the cargo was destined only to pacific uses, to what extent must he adduce proofs? Must he show that none of the cargo would eventually reach the enemy’s forces? If proof so comprehensive be wanting, would the whole cargo be condemned? If it were not shown by the captor that the consignee was an agent or contractor of the enemy’s government, must proof be offered by the claimant that he will not sell to one who is such agent even though the purchaser might conceal his agency? The law of nations affords no answer to these questions, and it must therefore be presumed that it does not authorize any seizure and condemnation on the mere ground of the possibility of supplies reaching the military or naval forces of the enemy.

The criterion of decision in such cases was laid down by Lord Stowell, an eminent authority, in the case of the Jonge Margaretha (1 Robinson):

But the most important distinction is whether the articles were intended for the ordinary uses of life or even for mercantile ships’ use, or whether they were going with the highly probable destination to military use. Of the matter of fact, on which the distinction is to be applied, the nature and quality of the port to which the articles were going is not an irrational test. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. On the contrary, if the great predominant character of a port be that of a port of naval military equipment, it shall be intended that the articles were going [Page 747] for military use, although merchant ships resort to the same place and although it is possible that the articles might have been applied to civil consumption; for it being impossible to ascertain the final application of an article ancipitis usus, it is not an injurious rule which deduces both ways the final use from immediate destination.

The same judge, in the case of the Neptunus (3 Robinson), which involved a miscellaneous cargo taken on the voyage from Cronstadt to Amsterdam, decided that a portion of the cargo consisting of tallow should be restored to the claimant on the ground of its destination to Amsterdam, a great mercantile port as well as a port of naval equipment, and likewise decided that a portion of the cargo consisting of sailcloth should be condemned, on the ground that Amsterdam was a port both of great mercantile and military equipment.

The same criterion of decision is enounced by Kent, Halleck, and other authoritative publicists—that if the port be a general commercial one, it is presumed that the articles are intended for civil use, but if the great predominant character of the port is that of a port of naval equipment, it will be presumed that the articles were going for military use, and that the presumption of innocence exists in all cases when they are destined to a commercial port.

The Department deeply regrets to observe the disposition of His Imperial Majesty’s Government to treat coal as absolutely contraband of war—a policy apparently inconsistent alike with the true and permanent interests of the United States and Russia. If this treatment were to be sanctioned by the law of nations, it would vastly increase the burdens and difficulties of maritime warfare for either of these states, inasmuch as the necessary corollary of the principle is, that neutral states could no more allow a belligerent ship to take coal in its ports than to take munitions of war. If coal is to be treated as absolutely contraband by belligerents, it must be so regarded by neutrals. The treatment must be equal, impartial, uniform, and constant—it could not be admitted as an exception—and therefore a neutral state could not, if the principle were admitted, permit the coaling of a belligerent ship in its ports without the most flagrant and culpable breach of neutrality. While the treatment of coal as absolutely contraband might seem to be to the temporary advantage of His Imperial Majesty’s Government, yet, in the actual situation in which they are placed, it would, as a principle, work to the permanent and very serious disadvantage both of Russia and the United States, whether they should happen to be at peace or war with other nations.

Nor could the United States Government acquiesce in the treatment of raw cotton as absolutely contraband of war. While that product may enter to some extent into the manufacture of explosives and military clothing, the quantity of it used for such purposes is so far out of proportion to its uses in the arts of peace that the recognition of its treatment as absolutely contraband would, in principle, justify the same treatment of all forms of iron and steel, as well as wood, wool, all kinds of fuel, and all other materials which could be used in the manufacture of guns, carriages, or any other article of potentially military use, and would, therefore, be destructive of virtually all commerce of neutral states with the noncombatant population of belligerents. Cotton is one of the principal products of the United States. The crop for the year 1904 exceeds 12,000,000 bales. Its exportation from the United States is one of the principal items of its foreign commerce. [Page 748] To Japan alone the exportation of raw cotton during the periods specified were as follows:

Raw cotton.

Bales. Pounds. Value.
Year ending December 31, 1903 83,434 44,651,240 $4,510,580
Eleven months ending November 30, 1904 63,338 33,461,739 3,753,361

In view of the foregoing His Imperial Majesty’s Government can not fail to perceive the deep concern with which the United States would view the establishment of precedents and the recognition of a principle which would work such disastrous consequences to its legitimate commerce with neutral states. According to the view of the United States Government expressed herein, and in its circular of June 10a and its instructions of August 30b and September 1c last, the seizure and condemnation of neutral ships and goods on the broad grounds enunciated by Count Lamsdorff would necessitate a radical change in the law of nations and in the procedure of prize tribunals, and would, if generally adopted, inflict incalculable injury upon great producing and exporting countries, like Russia and the United States, who are vitally concerned in the maintenance of the rights of legitimate commerce with the peoples of belligerent states.

You will express to Count Lamsdorff the deep gratification with which the President has received his assurances—in keeping with the firm and traditional friendship between the two governments—that in the future there will be less ground of complaint, and that it is far from the desire of His Imperial Majesty’s Government to place any obstacles in the way of legitimate commerce with Japan.

You will communicate the substance of this instruction to Count Lamsdorff.

I am, etc.,

John Hay.