New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1904-03-02
CONTRABAND.


No better rule for determining what goods are
and what are not contraband OF war has proba-
bly,, ever been made than that made by John
Marshall when he was Secretary OF State Just
before he became Chief Justice OF the Supreme
Court Of the United States 1t is a valuable
thing TO recall ut the present time Here 1t is:
II the circumstances and the cargo and its
destination show unequivocally that its appli-
cation must be 20 military purpos-s materials
TT for both peace and may assume the
character of contraband: but IL those cirCum-
stances AFFORD solid ground for the opinion that
the suspected materials are designed only for
the ordinary purposes OF the nation. then there
can be no just motive for interrupting a com
merce which ought 10 be pronounced lawful.
This principle would seem 10 mark the bounda-
ries OF the conflicting rights OF neutral and bel
ligerent powers: for neutrals have right 10
carry on their usual commerce. and beIligerents
have a right 10 prevent them from supplying
the enemy with instruments OF war.
That is the rule formulated by one who was
both diplomat and jurlst. II covered tho case
at that time. and lis principles ore so general
that they should equally cover the present case.
II is true that conditions Of war have greatly
changed I'm the more than a century since those
words were uttered. But the principles have
not changed. In 1900 timber was widely held
TO be contraband Of war because It was used
for ship building. and fints were contraband
because they were essential parts 81 firearms
because II is an essential supply OF wnrships
and so iron and steel may similarly be held. II
would have seemed rs absurd 10 make coal con-
traband in 1900 IL would 10 make hnts con-
traband now. But while I'm 1900 shipbuildng
timber was held 10 be contraband. light wood
work obviously intended for house furnishing
was not SO to-day iron and steel intended for
battleship construction or equipment are contra
band, but It would be absurd to put carpet
tacks or milk pans under that ban.
Marshalrs principle has ever since its enun-
citation formed the guiding rule Of our govern
ment in dealing with the subject. There arc
three classes Of goods to be considered. One
comprises those that are intended exclusively
for warlike purposes. They are always contra
band. The second comprises those that could
not be used for warlike purposes. They are
never contraband The third consists Of goods
that may be used for either peaceful warlike
purposes. Their character under the law de-
ponds upon the circumstances Of the concrete
case. The Russian rule declaring telegraph and
telephone material to be invariably and with
out exception contrahand appears, therefore, q
he in conflict with the principle laid down by
Marshall and consistently maintained by This
country. There can be no doubt that apparatus
for a military field telegraph or telephone sys-
TEN would be contraband of war. But it would
seem 10 be equally certain that supplies for n
telephone system in the city OF Toxic or in the
city OF ST. Petersburg would not be contra
band. In the one case the application Of the
supplies would evidently be TO military puT-
poses, just as much as powder and ball. In
the other the materials would be designed only
for the ordinary purposes Of the nation, and
there could be no just motive for interrupting
the commerce In them.
1t is in the light Of this principle that tho
question Of cable communication between Japan
and Guam will doubtless be considered. Would
such a cable be designed for military purposes
exclusively or chiefly, or for the ordinary pur-
poses of the nation? The presumption seems to
be strong that it would he for the latter. Japan
has no military ally on this side OF the Pacific
or anywhere in the world that she needs TO
communicate with, nor is she menaced by the
advance of a hostile feet OF which she needs TO
be warned. She.has command of the sea be-
tween her own shores and the Asian continent
and thus has access TO continental lines Of COM
municatlon. 1t does not appear, therefore, that
any important military end would or could be
served by such cable communication, while, on
the other hand, her enormous commercial inter-
ests IN America would be greatly served by IT,
To deny the right Of cable communication be-
tween Japan and America would seem to be
not unlike denial of the right Of mail communi-
cation, the latter being an extreme TO which no
nation is likely TO 60 save in case Of effective
blockade 1t is true that n neutral may not
carry in the mails such belligerent dispatches
arc in their nature contraband. Mr.. Field in
his proposed International Code suggested the
rule: Documents are contraband when they are
official communications from or TO officers Of
"a hostile nation and fitted TO subserve the pur-
poses OF the war. but not otherwise" That is
just rule, and the possibility of its applica-
ton 20 telegraphic cable service might well be
considered before denouncing the laying OF n
cable ms breach of neutrality. IL would be
such breach doubtless, 20 permit cable
landed on a neutral coast TO be used for the