*

soil over which the United States had rights of sovereignty, not merely by constitutional title, but by the law of nations and by the law of war. It is not needful, nor do I, therefore, say whether cotton purchased in the Confederacy during the war would be liable to seizure as contraband if found on a neutral ship. I propose to strictly construe belligerent rights on the high seas; but the cotton, which is the subject of the present claim, placed as it was by its owners, the present claimants, under what you properly state to be the strict surveillance' of the Confederate authorities, was, to the eye of the United States Government when it sought to reclaim the region where such cotton was stored, as much the proper subject of belligerent seizure as would have been a park of artillery."

Moore's Digest, vol. vi, pp. 693, 694; For. Rel. 1887, pp. 1006, 1108, 1015. There is no need to dwell for long upon the recent addition by Russia of cotton to her list of contraband goods. We are told that her declaration to that effect refers "only to raw cotton suitable for the manufacture of explosives, and not to cotton yarns or tissues." It is difficult to see how the raw cotton destined for the manufacture of explosives is to be distinguished from the raw cotton destined for the manufacture of shirtings or pocket-handkerchiefs. We in England certainly have no good ground for protesting against the capture of what is intended to be made into a most terrible instrument of warfare. In the Admiralty Manual of Naval Prize Law the ma terials for ammunition are ranked along with ammunition in the list of goods absolutely contraband. If Russia means to seize and confiscate no cotton except that which she can prove to be on its way to a Japanese military or naval workshop, there to be manufactured into a powerful explosive, neutrals have no cause of complaint against her. But in that case her recent declaration seems superfluous; for the "Rules" issued by the Imperial Government on February 28 enumerated "explosives and materials for causing explosions" among the articles then declared to be contraband. Moreover, gun-cotton itself was mentioned in them under its scientific name of pyroxylin. Thus the completed article and the substances from which it is made were already penalised, when the recent declaration against raw cotton was published on the 6th of May. It may be that nothing more was intended than to remove every possibility of doubt by making a perfectly explicit statement. But, if that were so, the object in view was not attained, for the explanation itself required to be explained immediately. The term " raw cotton" is quite general. As it stands it includes all the lint which comes from the bolls of the cotton plant. A diplomatic gloss declares that only such of it as is suitable for the manufacture of explosives is intended. If we add that it must be destined to be so manufactured. as well as suitable for the purpose, we have reduced the declaration to proper limits. The action of Russian cruisers and Russian courts should be carefully watched, to make sure they do not step beyond its terms thus interpreted. As long as these are observed, no illegal hardship will be inflicted on neutral trade. But the moment they are overstepped a branch of innocent commerce which is specially important in the Far East is subjected to a most unwarrantable interference. The conciliatory action of Russia with regard to

the cruisers of her Volunteer Fleet (see pp. 205-218) gives reason to hope that neutral susceptibilities will be considered in other

matters.

in

The attempt to quote the action of the United States Government in the great American Civil War, in order to justify Russian action, supposing it to have been directed against cotton in general is singularly unfortunate. In the summer of 1861 the Confederacy took full advantage of the fact that practically the whole of the world's supply of cotton was grown in the Southern States. The sale of it was put under severe restrictions so as to secure the greater part of the crop for the government. It was then used to supply the means for the purchase abroad of ships, arms, and ammunition. Agents of the authorities at Richmond shipped thousands of bales to Liverpool, where it was sold at a high price, and the proceeds drawn against to pay for warlike stores. In these circumstances the Northern generals did not treat cotton as private property, exempt by the laws of war from seizure and destruction. Instead, they burned all they could find in their invasions of Southern territory, and there can be no doubt they were justified in regarding it as a war-supply of the enemy, and therefore subject to whatever severities they thought fit to employ. Their government went further, and declared cotton to be contraband of war. There are grave doubts of the legality of this extreme step; but we may point out that, even assuming it to have been perfectly correct, it affords no justification for proclaiming all raw cotton to be contraband now, the present state of the war in the Far East. If the soil of Japan grew a large part of the raw materials for the cotton looms of Europe, if the Government of Japan had possessed itself of most of the crop, and if the armaments and warlike stores of Japan were purchased by the proceeds of the sale of the bales so held, then indeed the two cases would be sufficiently similar for the first to be a valuable precedent. But, as things are, there is not the slightest resemblance between them. Japan grows no cotton. She imports from the United States what she requires for her manufactures. Even if the conditions were reversed, and Russia followed the example of the United States by declaring all cotton to be contraband, strong arguments would be forthcoming to show that the declaration could not be justified by International Law. Cotton belonging to the Japanese Government, and found voyaging in Japanese ships, would, of course, be subject to capture as enemy property. But if it were found in neutral ships, could it be captured as contraband? In the first place, there would be no belligerent destination, for by the suppositions on which we are arguing, the cargoes would be on their way to some neutral manufacturing country. In the second place, cotton is harmless in itself and could only be seized as representing specie. Can it be maintained that the law of nations recognises these substitutions of one thing for another in order to turn innocent into noxious goods? We have already seen to what lengths the process may be carried (see p. 165). At one time the argument runs:-Rice equals money; money, when the property of the state, is contraband; therefore rice, when the property of the state, is contraband. At another time it is:-Cotton equals money; money, when the property of the state, is contraband; therefore cotton, when the

propery of the state, is contraband. And so we may go on and on, jauntily resolving into contraband one article after another that has in itself little or no connection with warlike uses, and at each step inflicting some fresh disability on neutral trade. Equations are very useful in mathematics. In International Law they look like unmitigated nuisances. It is submitted that the claim of the United States to regard cotton as contraband in 1861 was wanting in legal justification; and that any similar claim which Russia may make in the present war would be still more unlawful. In all probability no such claim has been made or will be made. The very different statement that raw cotton "suitable for the manufacture of explosives" will be deemed contraband of war may be allowed to pass with the reservations already set forth.

Lawrence, War and Neutrality in the Far East, pp. 168-174.

As regards raw cotton, it is asserted that in 1861, during the Civil War, the United States declared it absolute contraband under quite peculiar circumstances, since it took the place of money sent abroad for the purpose of paying for vessels, arms, and ammunition. But this assertion is erroneous. Be that as it may, raw cotton should not, under ordinary circumstances, be able to be considered absolute contraband. For this reason Great Britain protested when Russia, in 1904 during the Russo-Japanese War, declared cotton in general as contraband; Russia altered her standpoint and declared cotton conditional contraband only.

Oppenheim, vol. 2, pp. 487-488; Taylor's Treatise on International Public Law (1901). sec. 662; Moores' Digest, Vol. VII, sec. 1254; Holland, Letters to the Times upon War and Neutrality (1909), pp. 108-112.

Before the Declaration of London

controversial whether or no

declared contraband.

* * *

Oppenheim, vol. 2, pp. 485-486.

*

* it was in especial cotton could conditionally be

"So, also, as regards raw cotton, which by Imperial Order on the 21st April was declared to be absolute contraband of war. Your Excellency may not be aware that British India is by far the largest importer of raw cotton into Japan, the quantities imported in 1901 and 1902 being more than double those imported from the United States of America or from any other country, while the value of raw cotton sent to Japan from India in each of the above-mentioned years amounted to nearly 40.000.000 roubles, and one-half of the total value of all the cotton imported into Japan. The quantity of raw cotton that might be utilized for explosives would be infinitesimal in comparison with the bulk of the cotton exported from India to Japan for peaceful purposes, and to treat harmless cargoes of this latter description as unconditionally contraband would be to subject a branch of innocent commerce, which is especially important in the Far East. to a most unwarrantable interference.”

Sir C. Hardinge, British ambassador to Russia to Count Lamsdorf, Russian Foreign Minister, October 9, 1904.

CONTRABAND NOT TO INCLUDE ARTICLES FOR EXCLUSIVE USE OF SICK AND WOUNDED AND FOR USE OF VESSEL IN WHICH FOUND, HER CREW AND PASSENGERS DURING VOYAGE-REQUISITIONING OF FIRST-NAMED CLASS.

Likewise the following may not be treated as contraband of

war:

(1) Articles serving exclusively to aid the sick and wounded. They can, however, in case of urgent military necessity and subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30. (2) Articles intended for the use of the vessel in which they are found, as well as those intended for the use of her crew and passengers during the voyage.-Declaration of London, Article 29.

The articles enumerated in article 29 are also excluded from treatment as contraband, but for reasons different from those which have led to the inclusion of the list in article 28.

Motives of humanity have exempted articles exclusively used to aid the sick and wounded, which, of course, include drugs and different medicines. This does not refer to hospital ships, which enjoy special immunity under the convention of The Hague of the 18th October, 1907, but to ordinary merchant vessels, whose cargo includes articles of the kind mentioned. The cruiser has, however, the right, in case of urgent necessity, to requisition such articles for the needs of her crew or of the fleet to which she belongs, but they can only be requisitioned on payment of compensation. It must, however, be observed that this right of requisition may not be exercised in all cases. The articles in question must have the destination specified in article 30that is to say, an enemy destination. Otherwise, the ordinary law regains its sway; a belligerent could not have the right of requisition as regards neutral vessels on the high seas.

Articles intended for the use of the vessel, which might in themselves and by their nature be contraband of war, may not be so treated; for instance, arms intended for the defense of the vessel against pirates or for making signals. The same is true of articles intended for the use of the crew and passengers during the voyage; the crew here includes all persons in the service of the vessel in general.

Report of committee which drafted Declaration of London.

Objects necessary for the defense of the crew and ship are not considered contraband of war unless the vessel has made use thereof to resist being stopped, or to resist visit, search or seizure.

Institute, 1882, pp. 51, 52.

Merchantmen frequently carry a gun and a certain amount of ammunition for the purpose of signalling, and, if they navigate in parts of the sea where there is danger of piracy, they frequently carry a certain amount of arms and ammunition for defence against an attack by pirates. It will not be difficult either for the searching belligerent man-of-war or for the Prize Court to ascertain whether or no such arms and ammunition are carried bona fide.

Oppenheim, vol. 2, pp. 493–494.

If the quantity of the Goods of a Contraband character does not exceed that which may be required for the use of the Vessel and her Crew, the Vessel is not to be detained.

Holland, p. 18.

Ships of war and merchant-vessels of the enemy are subject to confiscation as prizes, as well as all articles on board, except

(1) Such as are intended for the private use of the crew or passengers;

* **

Russian Regulations, 1895, Article 10.

Those of such articles [contraband of war] which really constitute the armament and provisions of a vessel of a neutral nationality are exempted from confiscation.

Russian Regulations, 1895, Article 13.

Among the articles enumerated in Articles 13 and 14 [contraband of war], those which from their quantity and nature are clearly to be regarded as intended for use of the ship which carries them shall not be included in the category of articles which are contraband of war. Japanese Regulations, 1904, Article 18.

Further as not to be regarded contraband of war are the following:

1. Articles and materials which serve exclusively for the care of the sick and wounded, provided, however, that in case of urgent military necessity, they may be requisitioned for use upon payment therefor, if they have the destination set forth under 29.

2. Articles and materials which are intended for the use of the ship on board which they are found, or for the use of the crew or passengers of the ship during the voyage.

German Prize Rules, 1909, Article 28.

You will not consider as contraband of war arms and munitions exclusively intended for the defence of the ship and in the quantity permitted by custom, unless it has been made use of to resist the search.

French Naval Instructions, 1912, ́sec. 30.

Section 46, French Naval Instructions, 1912, is substantially identical with Article 29. Declaration of London.

The personal effects of the passengers and crew shall also not be seized.

Turkish Regulations, 1912, ch. 1, art. 1.