As a result of Naval War College discussions in 1903, changes were suggested in the War Code of 1900.1 To the statement that a neutral vessel should be exempt from capture except when carrying contraband or endeavoring to evade a blockade was added the clause "or guilty of unneutral service." In the statement about the effectiveness of a blockade was included the expression that "Blockade is a measure of war between belligerents."

PRESIDENT ROOSEVELT ON IMMUNITY

In President Roosevelt's message to Congress, December 7, 1903, he called attention to McKinley's recommendation of immunity of private property at sea, stating that he cordially renewed the recommendation.2 Roosevelt advocated this "as a matter of humanity and morals," and considered it anachronistic that private property should be respected on land but not at sea. He thought it should be borne in mind that shipping represented, internationally speaking, a much more generalized species of private property than was the case with ordinary property on land, in that it was much less apt to belong to any one nation. Under the existing system of corporate ownership the flag of a vessel often differed from the flag which would mark the nationality of the real ownership and money control of the vessel; and the cargo might belong to individuals of yet a different nationality. Much American capital was invested in foreign ships, and among foreign nations it often happened that the capital of one was largely invested in the shipping of another. In conclusion, Roosevelt stated that as a practical matter it might "be mentioned that while commerce destroying may cause serious loss and great annoyance, it can never be more than a subsidiary factor in bringing to terms a resolute foe." This was well recognized by all of our naval experts. The fighting ship, not the commerce destroyer, "is the vessel whose feats add renown to a nation's history, and establish her place among the great powers of the world."

THE RUSSO-JAPANESE WAR

In a circular of June 10, 1904, to the diplomatic representatives in Europe, Secretary of State Hay stated that from public documents it appeared that coal, naphtha, alcohol, and other fuel had been declared contraband of war by Russia. Hay considered that these articles entered "into general consumption in the arts of peace," to which they were vitally necessary; that they were usually treated not as absolutely contraband like articles intended primarily for military purposes in time of war, but rather as conditionally

3

1Document 156, p. 505. 2 Document 157, p. 506. Document 158, p. 507.

contraband like articles that might be used for or converted to the purposes of war or peace, according to circumstances; and that they might rather be classed with provisions and foodstuffs of ordinary innocent use, but which might become contraband of war when actually destined for enemy military or naval forces.

The Secretary called attention to the fact that in the war between the United States and Spain the general orders of June 20, 1898, declared as conditionally contraband "coal, when destined for a naval station, a port of call, or a ship or ships of the enemy." He also mentioned that this rule was included in the Naval War Code of 1900. 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. When coal or other fuel was shipped to a belligerent port, to condemn it as absolutely contraband seemed an extreme measure.

Hay was also informed that it was intended to treat raw cotton as contraband of war. While it was true that raw cotton could be made 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 all foodstuffs shipped from neutral ports to nonblockaded ports of a belligerent. He thought the principle might therefore be extended to apply to every article of human use which might be declared contraband simply because it might ultimately become in any degree useful to a belligerent for military purposes.

Secretary Hay stated that coal and other fuel and cotton were employed for a great many innocent purposes. Many nations were dependent on them for the conduct of inoffensive industries, and no sufficient presumption of an intended warlike use seemed 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 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 these articles as absolutely contraband, simply because they were shipped by a neutral to a nonblockaded belligerent port, did not appear to be “in accord with the reasonable and lawful rights of a neutral commerce." Secretary of State Hay, in an instruction of August 30, 1904,1 discussed the Russian prize court decision in the case of The Arabia, condemning as contraband of war railway material and flour destined to various commercial houses in Japanese ports.

'Document 159, p. 509.

Hay stated that the American Government could not concede that railway materials were confiscable simply because destined to the open commercial ports of a belligerent. When war existed between powerful states, it was vital to legitimate maritime commerce of neutral states that there should be no relaxation of the rule for determining what constituted contraband of war, namely, warlike nature, use, and destination. Articles such as arms and ammunition were of self-evident warlike use and were contraband if destined to enemy territory. Articles such as coal, cotton, and provisions, though ordinarily innocent, were capable of warlike use. These were not subject to capture and confiscation unless shown by evidence to be actually destined for belligerent military or naval forces.

Secretary Hay felt that this substantive principle of the law of nations could not be overridden by a technical rule of the prize court that owners of the captured cargo must prove that no part of it might eventually reach enemy forces. The proof was of an impossible nature, and it could not be admitted that the absence of such proof could justify 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 Secretary said that the established principle of discrimination between contraband and noncontraband goods admitted of no relaxation or refinement. It must be either inflexibly adhered to or abandoned by all nations. There could be no middle ground. The criterion of warlike usefulness and destination had been adopted by the common consent of civilized nations after centuries of struggle in which each belligerent made indiscriminate warfare upon all neutral commerce with its enemy.

Hay concluded that if the principle which appeared to have been declared by the Russian prize court was carried into full execution, it meant the complete destruction of neutral commerce with the noncombatant population of Japan. It obviated the necessity for blockades and rendered meaningless the principle of the Declaration of Paris that a blockade in order to be obligatory must be effective. It obliterated all distinction between commerce in contraband and noncontraband goods. Finally, the decision was "in effect a declaration of war against commerce of every description between the people of a neutral and those of a belligerent State."

In an instruction of January 13, 1905, to the Ambassador in Russia,1 Hay stated that it seemed superfluous to argue that recognition by the Russian Government of the principle that foodstuffs and other articles of dual use consigned directly to a merchant in an

1 Document 161, p. 514.

open port were not contraband of war, would be completely nullified by treating the goods as absolutely contraband for want of proof by the claimants that the goods might not ultimately reach enemy military or naval forces. Hay considered that the Russian Government's statement that it "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 enemy ports. It was obvious that the extensive object sought could be 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 enemy forces, it would override the universal presumption in favor of innocence by demanding impossible proofs.

In the same instruction Hay stated that the Department of State deeply regretted the disposition of the Russian Government to treat coal as absolutely contraband of war-a policy apparently inconsistent with the true and permanent interests of the United States and Russia. If this treatment were sanctioned by the law of nations, it would vastly increase the burdens and difficulties of maritime warfare for either country, inasmuch as the necessary corollary of the principle was that neutral states could no more allow belligerent ships to take coal in their ports than to take munitions of war. If coal was treated as absolutely contraband by the belligerents, it must be so regarded by neutrals. Therefore, a neutral state could not, if the principle were admitted, permit the coaling of a belligerent ship in its ports. While the treatment of coal as absolutely contraband might seem to be to the temporary advantage of the Russian Government, yet Hay thought it would work to the permanent and serious disadvantage of both Russia and the United States, whether they should happen to be at peace or war with other nations. Hay also stated that the United States could not acquiesce in the treatment of raw cotton as absolutely contraband of war, even on the ground of use in the manufacture of explosives. The recognition of its treatment as such would justify the same treatment of all forms of iron and steel, wood, wool, and all other materials which could be used in the manufacture of articles of potentially military use, and would therefore "be destructive of virtually all commerce of neutral states with the noncombatant population of belligerents."

CONGRESSIONAL RESOLUTION FAVORING IMMUNITY

The Congress of the United States, in a resolution of April 28, 1904, expressed the opinion that it was desirable for the President to endeavor to bring about an understanding among the principal

maritime powers with a view of incorporating into the permanent law of civilized nations "the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerents." This resolution was communicated on October 21, 1904, to American representatives accredited to governments signatories to the acts of the Hague Conference of 1899.1

INSTRUCTIONS TO DELEGATES TO THE SECOND HAGUE CONFERENCE

On May 31, 1907, the Secretary of State instructed the American delegates to the second Hague Conference that they were to "maintain the traditional policy of the United States regarding the immunity of private property of belligerents at sea." Their attention was called to the Congressional resolution of 1904, which Secretary Root stated was an expression of the view taken by the United States during its entire history. Root mentioned that this resolution was in response to the recommendation of President Roosevelt in 1903, renewing that of President McKinley in December, 1898. The principle of immunity was of such "permanent and universal importance that no balancing of the chances of probable loss or gain in the immediate future on the part of any nation should be permitted to outweigh the considerations of common benefit to civilization which call for the adoption of such an agreement."

Secretary Root mentioned that the first Hague Conference had expressed a wish that the subject might be referred to a subsequent conference for consideration. The delegates were to present the proposition of the United States exactly as it had been presented in the letter of the American delegation of June, 1899.

The delegates were referred to the Naval War Code of June 27, 1900, for the forming of a convention relative to customs of maritime warfare. Root said this code had met with general commendation by naval authorities throughout the world and that it in general expressed the views of the United States, subject to a few specific amendments suggested by the Naval War College in 1903. The order putting this code into force had been revoked by the Navy Department in 1904, not because of any change of views as to the rules it contained, but because many of those rules, imposed upon the American forces by the order, would have put them at a disadvantage against the forces of other powers, upon whom the rules were not binding. The delegates were to urge upon the Conference the formulation of international rules for war at sea and were to offer the Naval War Code of 1900, with the suggested changes, as a tentative formulation of the rules which should be considered.

1 Document 160, p. 513.

2 Document 162, p. 517.