prima facie contraband and sufficient to war rant holding it for the decision of a prize court. Even if consigned to private firms, the burden of proof that it is not intended for the Government rests upon the con signor and consignee. If it can be proved that it is intended for non-combatants it will not be confiscated. Small consignments of foodstuff in mixed cargoes will be con sidered presumptively to be regular trade shipments and will not be seized as contra band."1 On August 16 the British Government ad dressed a strongly-worded protest to the Russian Government against the Russian view of contraband, as also against the sink ing of neutral merchantmen by Russian warships. In respect to contraband, Great Britain pointed out the distinction between conditioned and absolute contraband, and "with regard to foodstuffs consigned to a belligerents' port," it was maintained that "proof is necessary that the goods are in tended for the belligerent's naval or mili tary forces before they can be considered as contraband." * On August 18, 1904 the United States Government protested vigorously against the confiscation of American flour and rail way material on board the Arabia. Secre tary Hay, after remarking that the "judg ment of confiscation appears to be founded on the mere fact that the goods in question were bound for Japanese ports and ad dressed to various commercial houses in said ports," observed that "in view of its well-known attitude, it should hardly seem 'From the New York Times for August 7, 1904. 'See London Times (weekly ed.) for August 26, 1904. The British position in respect to food stuffs was thus stated by Lord Salisbury at the beginning of the Boer War: "Foodstuffs with a hostile destination can be considered contraband of war only if they are supplied for the enemy's forces. It is not sufficient that they are capable of being so used; it must be shown that this was, in fact, their destination at the time of seizure."
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." After calling attention to the ambiguity of the Russian Imperial Order of February 28, in respect to the word "enemy," s Mr. Hay thus explained the attitude of the United States in respect to telegraphic, tel ephonic and railway material: "With respect to articles and material for telegraphic and telephonic installations, un necessary hardship is imposed by treatingthem all as contraband of war—even those articles which are evidently and unquestion ably intended for merely domestic or indus trial uses. With respect to railway mater ials, the judgment of the court appears to proceed in plain violation of the terms of the imperial order, according to which they are to be deemed to be contraband of war only if intended for the construction of railways. The United States government regrets that it could not concede that telegraphic, tele phonic and railway materials are confiscable simply because destined to the open com mercial ports of a belligerent." This great master of International Laand Diplomacy then proceeds to furnish an explanation of the nature of contraband which we may accept as authoritative: "When war exists between powerful States it is vital to the legitimate maritime commerce of neutral States that there be no relaxation of the rule—no deviation from the criterion—for determining what consti tutes contraband of war, lawfully subject to belligerent capture, namely, warlike nature, use and destination. Articles which, like arms and ammunition, are by their nature of self-evident warlike use are contraband 'See note cited above.
