Contraband of War
Sir,—I fear that the mercantile community will hardly profit so much as the managers of the Atlas Steamship Company seem to expect by the information contained in their letter which you print this morning. It was, indeed, unlikely that the courteous reply of the Assistant Secretary of State at Washington to the enquiry addressed to him by the New York agents of the company would contain a declaration of the policy of the United States with reference to contraband of war. The threefold classification of “merchandise” (not of “contraband”) quoted in the reply occurs, in the judgment of the Supreme Court in the well-known case of the Peterhoff (5 Wallace, 58), but it is substantially that of Grotius, and has long been accepted in this country and in the United States, while the Continent is, generally speaking, inclined to deny the existence of “contraband by accident,” and to recognise only such a restricted list of contraband as was contained in the Spanish decree of April 24 last.
The questions upon which shippers are really desirous of information (which they are, however, perhaps not likely to obtain, otherwise than from decisions of prize Courts) are of a less elementary character. They would like to know what articles ancipitis usus (“used for purposes of war or peace according to circumstances”) will be treated by the United States as contraband, and with what penalty the carriage of such articles will be visited—i.e. whether by confiscation or merely by pre-emption.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, May 9 (1898).
The four letters which next follow also relate to the two classes of contraband goods, with especial reference to the character attributed to foodstuffs, coal and cotton.
On foodstuffs, see the Report of the Royal Commission on the Supply of Food, &c., in Time of War, 1905. Cf. also infra., pp. 174, 176, 177. They were placed by the unratified Declaration of London, Art. 24, in the class of conditional contraband; as is also coal. By Art. 28 of the Declaration, raw cotton was enumerated among the articles which cannot be declared contraband of war.
The suggestion in the letter of February 20, 1904, that certain words quoted from the Japanese instructions had been mistransmitted or misquoted was borne out by the Regulations governing captures at sea, issued on March 15, 1904, Art. 14 of which announces that certain goods are contraband “in case they are destined to the enemy’s army or navy, or in case they are destined to the enemy’s territory, and from the landing place it can be inferred that they are intended for military purposes.”
The letters of March 10 and 15, 1905, will sufficiently explain themselves. The accuracy of the statements contained in them was vouched for by Baron Suyematsu, in a letter which appeared in The Times for March 16, to the effect that: “In Japan the matters relating to the organisation and procedure of the prize court, and the matters relating to prize, contraband goods, &c., are regulated by two separate sets of laws.... The so-called prize Court law of August 20, 1894, and amendment dated March 1, 1904, which your correspondent refers to, are the provisions relating to the former matters. The rules regulating the latter matters—viz. prize, contraband goods, &c., are not comprised in them. The rules which relate to the latter matters, as existing at present, are consolidated and comprised in an enactment which was issued on March 7, 1904.... Under the circumstances I can only repeat what Professor Holland says... in other words, I fully concur with the views taken by the Professor.”
The distinction between articles which are “absolutely contraband,” those which are “conditionally contraband,” and those which are incapable of being declared contraband was expressly adopted in Arts. 22, 24, and 28 of the unratified Declaration of London of 1909, as to which, see the comment at the end of this section, as also the whole of Section 10.