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No, 239A.

(SOUTH AFRICA,)

MEMORANDUM BY THE LORD CHANCELLOR.

Is commenting on the opinions of the two Law Officers, it must be borne in mind that they were asked by the form of the questions submitted to them that they would be good enough to offer such additional observations and suggestions as they might think would be useful in dealing with the whole subject.

And it is further necessary to observe that with reference to the main question upon which doubts suggest themselves, namely, the question of how far food-stuffs may become contraband of war, so much depends upon the circumstances of the concrete case that it is difficult, if not impossible, to give an abstract definition of the circumstances, which may make food-stuff's contraband of war,

Lord Stowell at the commencement of the century laid down what I believe to be the true rule that generally food-stuffs were not contraband of war, but might become so in circumstances arising out of the particular situation of the war, or the conditions of the parties engaged in it."

I think Mr. Hall has very accurately pointed ont, the tendency of modern opinion and the reason for it in the following passage :-

"Detention of provisions is almost always unjustifiable, simply because no certainty can be arrived at as to the use which will be made of them; so soon as certainty is in fact established, they, and everything else which directly and to an important degree contributes to make an armed force mobile, become rightly liable to seizure. They are not less noxious than arms; but except in a particular juncture of circumstances their noxiousness cannot be proved."†

The United States in the civil war with the Confederacy regarded and acted upon the theory that cotton was contraband of war on the ground that cotton was used as money during that contest; and M. Waddington in 1885, in a letter dated the 10th March, 1885, expresses himself thus :-

"The doctrine which admits that besides contraband of war by nature there may also be contraband of war by destination has been long professed in England. Thus the Attorney-General, having occasion to speak on this subject in the House of Commons on the 30th March, 1854, after having recognized that the definition of what articles are contraband of war was one of the most difficult and complicated questions of international law, expressed himself as follows:-

Contraband of war may in general be classed as follows in two categories

"1. Articles which, by their nature, are of direct use in war, such as arms and- ammunition.

2. Articles which may be of indirect use in war, by permitting a continuation of hostilities, such as provisions.'

"'"

One must further remark that inasmuch as in international law there is no absolute Tribunal which can be applied to as settling doubtful questions, each nation in turn has adopted its own view on this question, and has not always been consistent with itself.

Both this country and the United States have maintained inconsistent theories.

of war.

In 1793 and 1795 the English Government seized all provisions bound to a French port, and,

as I have pointed out, so late as 1885 the French Minister insisted on the right of his country to treat all rice imported into such a country as China as contraband The truth is, as I have said, each country in turn has applied the doctrine to its own interests at the time. But it is fair to observe that in what seems at first sight only the decision of a party to a quarrel in his own favour, there is a principle to be found which may reconcile apparently inconsistent.contentions, and gives a good practical reason which runs through all the opinions from Bynkershoek downwards, namely, whether the supply of provisions is, in truth, an act of aid to the hostilities being carried on, and such as will, in truth, assist the armies of the enemy.

I take two extreme cases to illustrate what I mean: the act of the English Government in 1793 and the contention of M. Waddington in 1885. The supply of

• No 235B.

† Hall's "International Law," 4th edition, pp. 689, 690,

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