Some Questions of International Law. of war if destined to enemy territory; but articles which, like coal, cotton and provi sions, though ordinarily innocent, are capable of warlike use, are not subject to capture and confiscation unless shown by evidence to be actually destined for the mili tary or naval forces of a belligerent. "This substantive principle of the law of nations can not be overridden by a techni cal rule of the prize court that the owners of the captured cargo must prove that no part of it may eventually come to the hands of the enemy forces. The proof is of an impos sible nature; and it cannot be admitted that the absence of proof, in its nature impossi ble to make, can justify the seizure and con demnation. 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 established principle of discrimina tion between contraband and non-contrabimcl goods admits of no relaxation or re finement. It must be either inflexibly ad hered to or abandoned by all nations. There is and can be no middle ground. The criter ion of warlike usefulness and destination has been adopted by the common consent of civilized nations, after centuries of strug gle, in which each belligerent made indis criminate warfare upon all commerce of all neutral States with the people of the other belligerent, and which led to reprisals as the mildest available remedy." The logical results of the new Russian doctrine are thus summarized: "If the principle which appears to have been declared by the Vladivostok prize court and which has not so far been dis avowed or explained by his Imperial Majes ty's Government is acquiesced in, it means, if carried into full execution, the complete destruction of all neutral commerce with the non-combatant population of Japan; it obvi
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ates the necessity of blockades; it renders meaningless the principle of the declaration of Paris set forth in the imperial order of February 29 last, that a blockade in order to be obligatory must be effective; it obliter ates all distinction between commerce in contraband and non-contraband goods; and is in effect a declaration of war against com merce of every description between the people of a neutral and those of a belliger ent State." And he closes with the following protest on the part of the United States : "You will express to Count Lamsdorff the deep regret and grave concern with which the government of the United States has received his unqualified communication of the decision of the prize court; you will make earnest protest against it and say that the government of the United States regrets its complete inability to recognize the prin ciple of that decision, and still less to ac quiesce in it as a policy. I have the honor to be, sir, your obedient servant, '• JOHN HAY." ' In her reply of September 16 to the Brit ish protest on the subject of contraband, Russia is reported as having informed the British Government that the Russian Gov ernment had "agreed to view as of a con ditionally contraband character foodstuffs and fuel,2 and that supplementary instruc tions had been issued to the Russian naval commanders and prize courts, calling" at tention to the misinterpretation which had been placed upon the (Russian) prize regula'The Hay note or protest of August 30, 1904, which will take rank as one of the best and most authoritative utterances on the law of contraband, has, so far as I am aware, been published in full by only one American newspaper—the Washing ton Star, September 22. 1904. For an excellent .summary, see the New York Sun for September 21, 1904.
There appears to be some doubt as to wheth er the Russian reply is specific or satisfactory in respect to fuel. The question of the contraband character of coal was not directly raised by the Russian prize court decisions.
