CORRESPONDENCE. CIRCULARS. PROTECTION OF PANAMAN INTERESTS BY CONSULAR OFFICERS OF THE UNITED STATES. Mr. Hay to Mr. DEPARTMENT OF STATE, Washington, January 19, 1904. SIR: I inclose for your information copy of a circular instruction to the consular officers of the United States, including those in the -, directing them to discharge, in representation of Panaman interests until consular officers are appointed by that Government, and so far as may be permitted by the Government of -, the duties ordinarily devolving upon consu the lar officers. To the Consular Officers of the United States: GENTLEMEN: Upon the request of the Government of Panama you are instructed to use your good offices in representation of the interests of the Republic of Panama and its citizens until consular officers are appointed by that Government. You will be expected to discharge, so far as may be permitted by the Government to which you are accredited, the duties ordinarily devolving upon consular officers. In this connection your attention is called to paragraphs 174 and 453 of the Consular Regulations in relation to your standing under the instruction herein issued. The tariff of fees prescribed for services rendered by you under this instruction is as follows: For the certification of a manifest, 5 pesos. For a bill of health, 2 pesos. All fees collected for services performed by you for Panama are to be retained. A copy of every paper and document certified should be transmitted a Same instruction, mutatis mutandi, to all diplomatic representatives of the United States. FR 1904 M- -1 1 to the minister for foreign affairs at the city of Panama, and a separate report of all such fees should be rendered to this Department quarterly, the said returns to be plainly indicated as services performed for Panama, both upon the face of the return and on the indorsement thereof. Your signature in your official capacity on all papers executed for Panama should be followed by the words "In charge of the interests of Panama." I am, etc., HERBERT H. D. PIERCE, Third Assistant Secretary. NEUTRALITY OF CHINA IN THE WAR BETWEEN RUSSIA AND JAPAN. Mr. Hay to Mr. DEPARTMENT OF STATE, Washington, February 20, 1904. SIR: After several days of conversation and correspondence with the representatives of the powers interested in Chinese affairs, the following note was sent, February 10, to the Governments of Russia, Japan, and China, and a copy of it was transmitted to all the powers signatory of the protocol of Peking, requesting each of them to make similar representations to Russia and Japan: You will express to the minister of foreign affairs the earnest desire of the Government of the United States that in the course of the military operations which have begun between Russia and Japan the neutrality of China and in all practicable ways her administrative entity shall be respected by both parties, and that the area of hostility shall be localized and limited as much as possible, so that undue excitement and disturbance of the Chinese people may be prevented and the least possible loss to the commerce and peaceful intercourse of the world may be occasioned. On the 13th of February the following answer was received from the Japanese Government, addressed to the American minister in Tokyo: In response to your note of the 12th instant on the subject of the neutrality of China during the existing war, I beg to say that the Imperial Government, sharing with the Government of the United States in the fullest measure the desire to avoid, as far as possible, any disturbance of the orderly condition of affairs now prevailing in China, are prepared to respect the neutrality and administrative entity of China outside the regions occupied by Russia as long as Russia, making a similar engagement, fulfills in good faith the terms and conditions of such engagement. On the 19th of February the following answer was received from the Russian Government: The Imperial Government shares completely the desire to insure tranquillity of China; is ready to adhere to an understanding with other powers for the purpose of safeguarding the neutrality of that Empire on the following conditions: Firstly. China must herself strictly observe all the clauses of neutrality. Secondly. The Japanese Government must loyally observe the engagements entered into with the powers, as well as the principles generally recognized by the law of nations. Thirdly. That it is well understood that neutralization in no case can be extended to Manchuria, the territory of which, by the force of events, will serve as the field of military operations. This instruction, mutatis mutandi, sent to all diplomatic representatives of the United States. On the same day the Department of State sent the following telegram to the Governments of Russia and Japan, communicating its purport to the other powers interested: The answer of the Russian Government is viewed as responsive to the proposal made by the United States as well as by the other powers, and this Government will have pleasure in communicating it forthwith to the Governments of China and Japan, each of which has already informed us of its adherence to the principles set forth in our circular proposal. I am, sir, etc., JOHN HAY. NEUTRAL COMMERCE IN ARTICLES CONDITIONALLY CONTRABAND OF WAR. DEPARTMENT OF STATE, Washington, June 10, 1904. To the Ambassadors of the United States in Europe. GENTLEMEN: It appears from public documents that coal, naphtha, alcohol, and other fuel have been declared contraband of war by the Russian Government. These articles enter into general consumption in the arts of peace, to which they are vitally necessary. They are usually treated not as "absolutely contraband of war," like articles that are intended primarily for military purposes in time of war, such as ordnance, arms, ammunition, etc., but rather as "conditionally contraband "—that is to say, articles that may be used for or converted to the purposes of war or peace, according to circumstances. They may rather be classed with provisions and food stuffs of ordinarily innocent use, but which may become absolutely contraband of war when actually and especially destined for the military or naval forces of the enemy. In the war between the United States and Spain the Navy Department, General Orders, No. 492, issued June 20, 1898, declared, in article 19, as follows: "The term 'contraband of war' comprehends only articles having a belligerent destination." Among articles absolutely contraband it declared ordnance, machine guns, and other articles of military or naval warfare. It declared as conditionally contraband "coal, when destined for a naval station, a port of call, or a ship or ships of the enemy." It likewise declared provisions to be conditionally contraband "when destined for the enemy's ship or ships, or for a place that is besieged." The above rules as to articles absolutely or conditionally contraband of war were adopted in the Naval War Code, promulgated by the Navy Department, June 27, 1900. While it appears from the documents mentioned that rice, food stuffs, horses, beasts of burden, and other animals which may be used in time of war are declared to be contraband of war only when they are transported for account of or in destination to the enemy, yet all ́kinds of fuel, such as coal, naphtha, alcohol, are classified along with arms, ammunition, and other articles intended for warfare on land or sea. The test in determining whether articles ancipitis usus are contraband of war is their destination for the military uses of a belligerent. Mr. Dana, in his Notes to Wheaton's International Law, says: "The chief circun.stance of inquiry would naturally be the port of destina tion. If that is a naval arsenal, or a port in which vessels of war are usually fitted out, or in which a fleet is lying, or a garrison town, or a place from which a military expedition is fitting out, the presumption of military use would be raised, more or less strongly according to the circumstances." 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. Where coal or other fuel is shipped to a port of a belligerent, with no presumption against its pacific use, to condemn it as absolutely contraband would seem to be an extreme measure. Mr. Hall, International Law, says: "During the West African Conference, in 1884, Russia took occasion to dissent vigorously from the inclusion of coal amongst articles contraband of war, and declared that she would categorically refuse her consent to any articles in any treaty, convention, or instrument whatever which would imply its recognition as such." We are also informed that it is intended to treat raw cotton as contraband of war. While it is true that raw cotton could be made up 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 food stuffs of every description which might be shipped from neutral ports to the nonblockaded ports of a belligerent. The principle under consideration might, therefore, be extended so as to apply to every article of human use which might be declared contraband of war simply because it might ultimately become in any degree useful to a belligerent for military purposes. Coal and other fuel and cotton are employed for a great many innocent purposes. Many nations are dependent on them for the conduct. of inoffensive industries, and no sufficient presumption of an intended warlike use seems 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 of war 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 coal and all other fuel and raw cotton as absolutely contraband of war, simply because they are shipped by a neutral to a nonblockaded port of a belligerent, would not appear to be in accord with the reasonable and lawful rights of a neutral commerce. I am, gentlemen, etc., JOHN HAY. Mr. Loomis to Mr. (a) DEPARTMENT OF STATE, Washington, September 23, 1904. SIR: In connection with the Department's instruction of August 8 last (inclosing copies of the circular of June 10, 1904), on the subject a Same instruction, mutatis mutandi, to all American diplomatic representatives. of neutral commerce in articles conditionally contraband of war, I inclose herewith for your information and the legation's files a copy of an instruction to the American ambassador at St. Petersburg protesting against the interpretation given by the Russian Government and the Vladivostok prize court to the imperial order of February 29 last, relating to contraband of war. I am, sir, etc., B. F. LOOMIS, (Inclosure.) Acting Secretary. No. 143.] Mr. Hay to Mr. McCormick. DEPARTMENT OF STATE, Washington, August 30, 1904. Sir: I have the honor to acknowledge the receipt of your No. 176 of the 10th instant. The Department has carefully considered the note of the Russian minister of foreign affairs, dated July 27 last, a copy of which is inclosed with your dispatch with reference to the decision of the prize court in the case of the steamer Arabia, containing American cargo, seized by the Russian naval forces and sent to Vladivostock for adjudication. As communicated to you by the minister, the decision of the court was "that the steamer Arabia was lawfully seized; that the cargo, composed of railway material and flour, weighing about 2,360,000 livres, destined to Japanese ports and addressed to different commercial houses in said ports, constitutes contraband of war; * * that the cargo bound for Japanese ports should be confiscated as being lawful prize." In communicating the said decision the minister observed, in response to the request of this Government for the release of the noncontraband portion of the cargo, that the question could only be decided through judicial channels on the basis of a decision of the prize court. This is the first authentic information which the Department has received of the precise grounds on which the prize court decided to confiscate the railway material and flour in question. The judgment of confiscation appears to be founded on the mere fact that the goods in question were bound for Japanese ports and addressed to various commercial houses in said ports. In view of the well-known attitude, it should hardly seem necessary to say that the Government of the United States is unable to admit the validity of the judgment which appears to have been rendered in disregard of the settled law of nations in respect to what constitutes contraband of war. If the judgment and the cominunication accompanying its transmission are to be taken as an expression of the attitude of His Imperial Majesty's Government, and as an interpretation of the Russian imperial order of February 29 last, it raises a question of momentous import in its bearing on the rights of neutral commerce. The Russian imperial order denounces as absolutely contraband of war telegraph, telephone, and railway materials, and fuel of all kinds, without regard to the question whether destined for military or for purely pacific and industrial uses. 66 Clause 5, article 10, of the imperial order denounces as contraband of war all articles destined for war on land or sea, as well as rice, provisions, and horses, beasts of burden, and others (autres) capable of serving a warlike purpose, and if they are transported on account of or to the destination of the enemy." The ambiguity of meaning which characterizes the language of this clause, lending itself to a double interpretation, left its real intendment doubtful. The vagueness of the language, used in so important a matter, where a just regard for the rights of neutral commerce required that it should be clear and explicit, could not fail to excite inquiry among American shippers, who, left in doubt as to the significance attributed by His Imperial Majesty's Government to the word enemy "-uncertain as to whether it meant "enemy government or forces," or enemy ports or territory "-have been compelled to refuse the shipment of goods of any character to Japanese ports. The very obscurity of the terms used seemed to contain a destructive menace even to legitimate American commerce. 66 66 |