Mr. McCormick to Mr. Hay.

No. 144.]

Sir: With reference to my No. 141 of May 21, transmitting a copy of the Law Bulletin No. 65, in which was published the ukase of His Majesty the Emperor making cotton contraband of war, I now have the honor to inform you that, in response to an inquiry from me, the additional information has been furnished that the ukase applies to raw cotton and cotton waste.

I have, etc.,

Robert S. McCormick.

Neutral commerce in articles conditionally contraband of war.

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 [Page 731] for military purposes in time or 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 when 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 or sea.

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 destination. 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 [Page 732] 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, your obedient servant,

John Hay.