Hall, Int. Law 4th ed. 1895), § 245, pp. 687–690; (5th ed.) 661–664. February 20, 1885, the French Government notified foreign powers that, "in view of the conditions under which the war with China is being actually conducted," it had determined to exercise the right. of considering and treating rice as contraband of war. On the 24th of February this notice was modified by the statement that shipments of rice intended for Canton or the southern Chinese ports might freely pursue their course, but that shipments bound to ports north of Canton would "be declared interdicted and treated as contraband of war." Mr. Frelinghuysen, who was then Secretary of State of the United States, merely acknowledged receipt of these notifications, but instructed the American minister at Peking that the United States reserved the question as to foreign rice going to China in American ships. Lord Granville, British foreign secretary, however, in a note to M. Waddington, of February 27, 1885, declared that the British. Government could not admit that provisions could be treated as contraband of war merely because they were consigned to a belligerant port. The British Government, said his lordship, did not deny that provisions might acquire a contraband character under particular circumstances, as if they should be consigned directly to the fleet of a belligerant or to a port where such fleet was lying, but that there must, in any event, be "circumstances relative to any particular cargo, or its destination, to displace the presumption that articles of this kind are intended for the ordinary use of life, and to show prima facie, at all events, that they are destined for military use," before they could be treated as contraband. M. Ferry, French minister of foreign affairs, writing to M. Waddington, on March 7, 1885, suggested that, as the Chinese troops received a part of their pay in rice and as taxes and tributes were paid in the same article, the cargoes of rice forwarded from southern to northern ports might be considered as destined for military use and that they might also be treated as state property of the enemy subject to capture. M. Roustan, French min., to Mr. Frelinghuysen, Sec. of State, Feb. 20 "I have followed with peculiar interest the European discussion relating to the French declaration making rice contraband of war. "The greater number of the European powers, so far as I have observed, have failed to avow their position on this question. England, however, found her navigation and commercial interests so much involved that her Government appears to have protested against the doctrine. At the risk of duplicating the information already on the files of the Department, I inclose herewith a printed summary of the Anglo-French views of the question, deeming it worthy of preservation in the files of important international questions. "But more especially I beg your attention to the importance of the principle involved in this declaration, as it concerns our American interests. We are neutrals in European wars. Food constitutes an immense portion of our exports. Every European war produces an increased demand for these supplies from neutral countries. The French doctrine declares them contraband, not only when destined directly for military consumption, but when going in the ordinary course of trade as food for the civil population of the belligerent government. If food can be thus excluded and captured, still more can clothing, the instruments of industry, and all less vital supplies be cut off on the ground that they tend to support the efforts of the belligerent nation. Indeed, the real principle involved goes to this extent, that everything the want of which will increase the distress of the civil population of the belligerent country may be declared contraband of war. The entire trade of neutrals with belligerents may thus be destroyed, irrespective of an effective blockade of ports. War itself would become more fatal to neutral states than to belligerent interests. "The rule of feudal times, the starvation of beleaguered and fortified towns, might be extended to an entire population of an open country. It is a return to barbaric habits of war. It might equally be claimed that all the peaceful men of arms-bearing age could be deported, because otherwise they might be added to the military forces of the country. "The United States and other countries have hitherto refused to recognize coal as contraband of war, indispensable as it is to the equipment of war steam cruisers, because its chief use is for peaceful objects. But this French doctrine goes far beyond that. "Although the Franco-Chinese war is ended, there is always danger that this precedent will be again adopted in the heat of another war, unless resisted by energetic protests in the interests of neutral trade. and of humanity itself. Its adoption indeed would practically nullify the advantages of neutrals intended to be secured by the Paris declarations of 1856." Mr. Kasson, min. at Berlin, to Mr. Bayard, Sec. of State, Apr. 23, 1885, "I concur in the reasoning and conclusion of Mr. Kasson." (Report of Dr. "I beg to report that in my judgment the Government of the United States should concur in the position taken by Earl Granville, in the accompanying correspondence, that rice can not as a general rule be regarded as a contraband of war. Rice in all parts of the civilized world is a common article of food, and to many classes of persons almost indispensable for the purposes of diet; while in oriental states it is so essential to the sustenance of the community that to seriously and arbitrarily diminish the supply would be to inflict incalculable distress. It is true that we can conceive of cases in which rice destined for the specific use of an army in the field or a cruiser on the high seas may become contraband. But to pronounce it contraband, in a general sense, would destroy the limitations of contraband altogether. If rice is contraband, everything is contraband, and neutral commerce in time of war, already sufficiently oppressed, would be subjected to an additional burden, which would be intolerable." Report of Dr. Francis Wharton, Solicitor of the Department of State, to The provision in the instructions issued by the United State to its naval forces in 1898, during the war with Spain, which classed provisions among things that were only "conditionally" contraband, and stated that they were liable to seizure only "when actually destined for the enemy's military or naval forces," was incorporated in Stockton's Naval War Code, issued by the Navy Department in 1900. This code has since been withdrawn, but, as it is understood, not for any reason connected with this subject. See, also, Hall, Int. Law (4th ed.) § 245, pp. 687-690; (5th ed. ), 661–664. In the early stages of the Boer war a question arose between the United States and Great Britain as to the seizure of various articles shipped at New York, some of them on regular monthly orders, by American merchants and manufacturers on the vessels Beatrice, Maria, and Mashona, which were seized by British cruisers while on the way to Delagoa Bay. These articles consisted chiefly of flour, canned meats, and other food stuffs, but also embraced lumber, hardware, and various miscellaneous articles, as well as quantities of lubricating oil, which were consigned partly to the Netherlands South African Railway, in the Transvaal, and partly to the Lourenço Marques Railway, a Portuguese concern. It was at first supposed that the seizures were made on the ground of contraband, and with reference to this possibility the Government of the United States, on January 2, 1900, declared that it could not recognize their validity "under any belligerent right of capture of provisions and other goods shipped by American citizens in ordinary course of trade to a neutral port." It soon transpired, however, that the Beatrice and Mashona, which were British ships, and the Maria, which, though a Dutch ship, was at first supposed to be British (S. Doc. 173, 56 Cong. 1 sess. 16), were arrested for violating a municipal regulation forbidding British subjects to trade with the enemy, the alleged offense consisting in the transportation of goods destined to the enemy's territory. The seizure of the cargoes was declared to be only incidental to the seizure of the ships. As to certain articles, however (particularly the oil consigned to the Netherlands South African Railway in the Transvaal), an allegation of enemy's property was made; but no question of contraband was raised, and it was eventually agreed that the United States consul-general at Cape Town should arrange with Sir Alfred Milner, the British high commissioner, for the release or purchase by the British Government of any American-owned goods, which, if purchased, were to be paid for at the price they would have brought at the port of destination at the time they would have arrived there in case the voyage had not been interrupted. In the course of the correspondence, Lord Salisbury thus defined the position of Her Majesty's Government on the question of contraband: "Food stuffs, with a hostile destination, can be considered contraband of war only if they are supplies for the enemy's forces. It is not sufficient that they are capable of being so used; it must be shown that this was in fact their destination at the time of the seizure." Mr. Hay, Sec. of State, to Mr. Choate, ambass. at London, tel., Jan. 2, "Referring to your letter of the 8th ultimo, and to subsequent correspondence, on the subject of the restrictions on British ships carrying freight to Delagoa Bay, I have now to inform you that in a telegram dated the 3rd instant the United States ambassador at London reports that British ships are at liberty to carry to Delagoa Bay any goods not destined for the enemy, but that at present the railroad inland from Komatipoort is largely required for military purposes and that therefore it is doubtful whether private goods destined for places in the Transvaal can for the moment be forwarded.” (Mr. Hill, Assist. See. of State, to Messrs. Arkell and Douglas, Nov. 5, 1900, 248 MS. Dom. Let. 681.) March 7, 1904, the Russian Government officially declared that all the articles embraced in the 6th article of the regulations, including coal, were regarded as unconditionally contraband, and that, as to the articles embraced in section 10 of that article, the Imperial Government reserved the right to supplement the list by the addition of other things, if, in the circumstances of the war, it should judge it indispensable to forbid their conveyance "to Japan or to Japanese armed forces.” March 19, 1904, the Journal de Saint-Pétersburg published a French translation of the instructions to commanders of Russian men-of-war, extending the contraband list. By these instructions there was included, under the name of "food stuffs," in section 10, all kinds of grain, fish, fish products of various kinds, beans, bean oil, and oil cakes; and, under the head of articles intended for warlike purposes, on land or sea, machinery and parts of machinery intended for the manufacture of cannon, small arms, and projectiles. June 1, 1904, Lord Lansdowne instructed Sir C. Hardinge, British ambassador at St. Petersburg, that his Majesty's Government observed" with great concern that rice and provisions will be treated as unconditionally contraband, a step which they regard as inconsistent with the law and practice of nations." His Majesty's Government, said Lord Lansdowne, did not contest "that, in particular circumstances, provisions may acquire a contraband character, as for instance, if they should be consigned direct to the army or fleet of a belligerent, or to a port where such fleet may be lying; " but that his Majesty's Government could not admit "that if such provisions were consigned to the port of a belligerent (even though it should be a port of naval equipment) they should therefore be necessarily regarded as contraband of war." The true test appeared to be "whether there are circumstances relating to any particular cargo to show that it is destined for military or naval use." The protest of the British Government was renewed by Lord Lansdowne on the 10th of August. Parl. Papers, Russia, No. 1 (1905), 9, 11. |