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On the same day the Department of State sent the following telegram to the Governments of Russia and Japan, communicating its purport to the other powers interested:
The answer of the Russian Government is viewed as responsive to the proposal made by the United States as well as by the other powers, and this Government will have pleasure in communicating it forthwith to the Governments of China and Japan, each of which has already informed us of its adherence to the principles set forth in our circular proposal.
I am, sir, etc.,
NEUTRAL COMMERCE IN ARTICLES CONDITIONALLY CONTRABAND OF WAR.
DEPARTMENT OF STATE,
Washington, June 10, 1904.
To the Ambassadors of the United States in Europe.
GENTLEMEN: It appears from public documents that coal, naphtha, alcohol, and other fuel have been declared contraband of war by the Russian Government.
These articles enter into general consumption in the arts of peace, to which they are vitally necessary. They are usually treated not as "absolutely contraband of war," like articles that are intended primarily for military purposes in time of war, such as ordnance, arms, ammunition, etc., but rather as "conditionally contraband "that is to say, articles that may be used for or converted to the purposes of war or peace, according to circumstances. They may rather be classed with provisions and food stuffs of ordinarily innocent use, but which may become absolutely contraband of war when actually and especially destined for the military or naval forces of the enemy.
In the war between the United States and Spain the Navy Department, General Orders, No. 492, issued June 20, 1898, declared, in article 19, as follows: "The term contraband of war' comprehends only articles having a belligerent destination." Among articles absolutely contraband it declared ordnance, machine guns, and other articles of military or naval warfare. It declared as conditionally contraband "coal, when destined for a naval station, a port of call, or a ship or ships of the enemy." It likewise declared provisions to be conditionally contraband "when destined for the enemy's ship or ships, or for a place that is besieged."
The above rules as to articles absolutely or conditionally contraband of war were adopted in the Naval War Code, promulgated by the Navy Department, June 27, 1900.
While it appears from the documents mentioned that rice, food stuffs, horses, beasts of burden, and other animals which may be used in time of war are declared to be contraband of war only whe they are transported for account of or in destination to the enemy, yet all kinds of fuel, such as coal, naphtha, alcohol, are classified along with arms, ammunition, and other articles intended for warfare on land
The test in determining whether articles ancipitis usus are contraband of war is their destination for the military uses of a belligerent. Mr. Dana, in his Notes to Wheaton's International Law, says: "The chief circumstance of inquiry would naturally be the port of destina
tion. If that is a naval arsenal, or a port in which vessels of war are usually fitted out, or in which a fleet is lying, or a garrison town, or a place from which a military expedition is fitting out, the presumption of military use would be raised, more or less strongly according to the circumstances."
In the wars of 1859 and 1870 coal was declared by France not to be contraband. During the latter war Great Britain held that the character of coal depended upon its destination, and refused to permit vessels to sail with it to the French fleet in the North Sea. Where coal or other fuel is shipped to a port of a belligerent, with no presumption against its pacific use, to condemn it as absolutely contraband would seem to be an extreme measure.
Mr. Hall, International Law, says: "During the West African Conference, in 1884, Russia took occasion to dissent vigorously from the inclusion of coal amongst articles contraband of war, and declared that she would categorically refuse her consent to any articles in any treaty, convention, or instrument whatever which would imply its recognition as such."
We are also informed that it is intended to treat raw cotton as contraband of war. While it is true that raw cotton could be made up into clothing for the military uses of a belligerent, a military use for the supply of an army or garrison might possibly be made of food stuffs of every description which might be shipped from neutral ports to the nonblockaded ports of a belligerent. The principle under consideration might, therefore, be extended so as to apply to every article of human use which might be declared contraband of war simply because it might ultimately become in any degree useful to a belligerent for military purposes.
Coal and other fuel and cotton are employed for a great many innocent purposes. Many nations are dependent on them for the conduct of inoffensive industries, and no sufficient presumption of an intended warlike use seems to be afforded by the mere fact of their destination to a belligerent port. The recognition, in principle, of the treatment of coal and other fuel and raw cotton as absolutely contraband of war might ultimately lead to a total inhibition of the sale, by neutrals to the people of belligerent States, of all articles which could be finally converted to military uses. Such an extension of the principle by treating coal and all other fuel and raw cotton as absolutely contraband of war, simply because they are shipped by a neutral to a nonblockaded port of a belligerent, would not appear to be in accord with the reasonable and lawful rights of a neutral commerce.
I am, gentlemen, etc.,
Mr. Loomis to Mr.
DEPARTMENT OF STATE, Washington, September 23, 1904.
SIR: In connection with the Department's instruction of August 8 last (inclosing copies of the circular of June 10, 1904), on the subject
a Same instruction, mutatis mutandi, to all American diplomatic representatives.
of neutral commerce in articles conditionally contraband of war, I inclose herewith for your information and the legation's files a copy of an instruction to the American ambassador at St. Petersburg protesting against the interpretation given by the Russian Government and the Vladivostok prize court to the imperial order of February 29 last, relating to contraband of war.
I am, sir, etc.,
B. F. LOOMIS,
Mr. Hay to Mr. McCormick.
Sir: I have the honor to acknowledge the receipt of your No 176 of the 10th instant.
DEPARTMENT OF STATE, Washington, August 30, 1904.
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 steamer Arabia, containing American cargo, seized by the Russian naval forces and sent to Vladivostock 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 noncontraband portion of the cargo, that the question could only be decided through judicial channels on 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 the 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 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
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, provisions, 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 5, 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.
Whatever 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 Lamsdorff, 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 which it is impossible for the United 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 selfevident 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 overriden by a 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 unto 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 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.,
DESIGNATION OF THE DIPLOMATIC AND CONSULAR SERVICE AS "AMERICAN" INSTEAD OF "UNITED STATES.”
DEPARTMENT OF STATE, Washington, August 3, 1904.
To the American Diplomatic and Consular Officers.
GENTLEMEN: I have to inform you that hereafter in correspondence and in printing official stationery and in cutting new seals for the diplomatic and consular service the adjective used shall be "American" instead of " United States." Stationery so modified will be furnished by the Department upon requisition from time to time as the supply at the various offices may become exhausted. It is desired that the seals and coats of arms with which your offices are now supplied shall continue to be used as long as they may be serviceable, when they will be replaced with new ones on which the word "American" shall have been substituted for "United States."
I am, gentlemen, etc.,
ALVEY A. ADEE,
DEPARTMENT OF STATE, Washington, November 28, 1904.
To the American Diplomatic and Consular Officers.
GENTLEMEN: Referring to the circular of August 3, 1904, in regard to the use of "American" instead of "United States," I have to inform you that when acting in your notarial capacity you should describe yourselves as officers (secretary of legation, consul-general, etc.,) "of the United States of America," and not as "American officers.
It is necessary when attesting papers to be used in the various States that you should describe yourselves as you are designated in the statutes from which you derive your notarial powers.
I am, gentlemen, etc.,