Cotton as Contraband of War
Sir,—The text of the decision of the Court of Appeal at St. Petersburg in the case of the Calchas has at length reached this country, and we are thus informed, upon the highest authority, though, perhaps, not in the clearest language, of the meaning which is now to be placed upon the Russian notification that cotton is contraband of war.
This notification, promulgated on April 21, 1904, was received with general amazement, not diminished by an official gloss to the effect that it “applied only to raw cotton suitable for the manufacture of explosives, and not to yarn or tissues.” It must be remembered that at the date mentioned, and for some months afterwards, Russia stoutly maintained that all the articles enumerated in her list of contraband of February 28, 1904, and in the additions to that list, were “absolutely” such; i.e. were confiscable if in course of carriage to any enemy’s port, irrespectively of the character of that port, or of the use to which the articles would probably be put. It was only after much correspondence, and the receipt of strong protests from Great Britain and the United States, that Russia consented to recognise the well-known distinction between “absolute” and “conditional” contraband; the latter class consisting of articles useful in peace as well as for war, the character of which must, therefore, depend upon whether they are, in point of fact, destined for warlike or for peaceful uses. This concession was made about the middle of September last, and it was then agreed that provisions should be placed in the secondary category (as was duly explained in the Petersburg judgment in the case of the Arabia on December 14) together with some other articles, among which it seemed that raw cotton was not included.
The final decision in the Calchas case marks a welcome change of policy. Cotton has now followed foodstuffs into the category of “conditional” contraband, and effect has so far been given to the representations on the subject made by Mr. Hay in circular despatches of June 10 and August 30, 1904, and by Sir Charles Hardinge, in a note presented to Count Lamsdorff on October 9 of the same year.
The question had become a practical one in the case of the Calchas. On July 25 this vessel, laden with, inter alia, nine tons of raw cotton for Yokohama and Kobe, was seized by a Russian cruiser and carried into Vladivostok, where, on September 18, the cotton, together with other portions of her cargo, was condemned as absolutely contraband. The reasons for repudiating this decision, and the notification to which it gave effect, were not far to seek, and it may still be worth while to insist upon them. As against Russia, it is well to recall that, from the days of the Armed Neutralities onwards, her traditional policy has been to favour a very restricted list of contraband; that when in 1877, as again in 1900 and 1904, she included in it materials “servant de faire sauter les obstacles,” the examples given of such materials were things so immediately fitted for warlike use as “les mines, les torpilles, la dynamite,” &c.; and that what is said as to “conditional contraband” by her trusted adviser, Professor de Martens, in his Droit International, t. iii (1887), pp. 351-354, can scarcely be reconciled with her recent action.
But a still stronger argument against the inclusion of cotton in the list of “absolute” contraband is that this is wholly without precedent. It has, indeed, been alleged that cotton was declared to be “contraband” by the United States in their Civil War. The Federal proclamations will, however, be searched in vain for anything of the kind. The mistake is due to an occasional loose employment of the term, as descriptive of articles found by an invader in an enemy’s territory, which, although the property of private, and even neutral, individuals, happen to be so useful for the purposes of the war as to be justly confiscated. That this was so will appear from an attentive reading of the case of Mrs. Alexander’s Cotton, in 1861 (2 Wallace, 404), and of the arguments in the claim made by Messrs. Maza and Larrache against the United States in 1886 (Foreign Relations of U.S., 1887). A similarly loose use of the term was its application by General B.F. Butler to runaway slaves who had been employed on military works—an application of which he confessed himself “never very proud as a lawyer,” though “as an executive officer, much comforted with it.” The phrase caught the popular fancy, came to be applied to slaves generally, and was immortalised in a song, long a favourite among negro children, the refrain of which was “I’se a happy little contraband.”
The decision of the Court of St. Petersburg in the case of the Calchas, so far as it recognises the existence of a conditional class of contraband, and that raw cotton, as res ancipitis usus, must be treated in accordance with the rules applicable to goods belonging to that class, has laid down an unimpeachable proposition of law. Whether the view taken by the Court of the facts of the case, so far as they relate to the cotton cargo, is equally satisfactory, is a different and less important question, upon which I refrain from troubling you upon the present occasion.
I am, Sir, your obedient servant,
T. E. HOLLAND
P.S.—It may be worth while to add, for the benefit of those only who care to be provided with a clue (not to be found in the judgment) through the somewhat labyrinthine details of the question under discussion, a summary of its history. The Russian rules as to contraband are contained in several documents—viz. the “Regulations as to Naval Prize” of 1895, Arts. 11-14; the “Admiralty Instructions” of 1900, Arts. 97, 98, and the appended “Special Declaration” as to the articles considered to be contraband (partly modelled on the list of 1877); the “Imperial Order” of February 28, 1904, rule 6 (this Order keeps alive the rules of 1895 and 1900, except in so far as they are varied by it); the “Order” of March 19, 1904, defining “food” and bringing machinery of certain kinds into the list of contraband; the “Order,” of April 21, 1904, bringing “raw cotton” into the list; and, lastly, the “Instructions” of September 30 and October 28, 1904, recognising, in effect, a class of “conditional” contraband, placing foodstuffs in this class, as also, ultimately, other objects “capable of warlike use and not specified in sections 1-9 of rule 6.”
T. E. H.
Temple, July 1 (1905).