No. 115.

Mr. Bayard to Mr. Smithers.

No. 428.]

Sir: I have received Mr. Young’s No. 650, of February 14 last, and have to approve his instruction to Mr. Wingate, consul at Foo-Chow, intimating that in view of our friendly relations with both China and France a consular officer should be careful to avoid doing anything, even in an informal manner, that might be regarded as a violation of the strictest neutrality.

As illustrating further our position in such cases, I herewith inclose for your information a copy of an instruction lately addressed to our consul-general at Shanghai touching the sale of vessels by American citizens in China.

I am, &c.,

[Inclosure in No. 428.]

Mr. Bayard to Mr. Stahel.

No. 25.]

Sir: On the 19th ultimo you telegraphed to the Department inquiring “Can Americans sell steamers to Chinese?” You were answered to the effect that the inquiry was too vague to admit of intelligent examination.

On March 20 you repeated the inquiry in a modified form, “Can American steamers here be sold to Chinese?”

The question is still too obscurely presented to admit of a, reply by telegraph covering the different cases which it presents. There are alternative aspects to each fundamental point covered by your inquiry, thus:

Are the steamers in question registered vessels of the United States plying between our ports and those of China, or are they foreign-built vessels in Chinese waters, which have become the property of citizens of the United States through bona fide purchase?
Are the owners of the steamers residing within or without the jurisdiction of China?
Is it proposed to sell them to the Chinese Government, or to individual subjects of China?
Are they to be employed as regularly-enrolled vessels of war, or as privateers under Chinese commission issued to individuals, or as Government transports, or as merchant vessels in legitimate trade with unblockaded ports, or as blockade runners?

Any given combination of these points would involve a distinct application of international law thereto.

Assuming that the owners of the steamers are within Chinese jurisdiction, as the steamers appear to be, judging from your second telegram, the intervention of the consular officers of the United States would be required in case of sale to aliens, to cancel the papers under which the steamers now bear our flag. If they are regularly registered vessels the registry is to be destroyed and one-half of it sent to this Department. If they are foreign built and owned by American citizens, the certified bill of sale allowed under paragraph 340 of the Consular Regulations of 1881 should be canceled by the consul; and if the new transfer should take place at another consulate than that at which the original purchase of the vessel was recorded, official correspondence between the two consulates would be needed to effect such cancellation.

It would, however, be manifestly improper for any official of the United States to take part in the transfer of a steamer, or of any property whatever, for a warlike purpose, to a belligerent towards whom the United States maintained a position of neutrality.

If, however, the proposed transaction should be clearly and positively determined to be wholly pacific, and not intended in any way directly or indirectly to favor the employment of the vessel for or in aid of any hostile purpose, the intervention of the consul to cancel the existing documents of the vessel would not violate any international obligation on the part of this Government. The utmost discretion and the [Page 171] most evident and positive proof of the legitimacy of the transfer would, however, be necessary, and in case of doubt, however remote, It would be the consul’s duty to decline to intervene in the transaction.

Your inquiry is susceptible of still another aspect, for you may have desired to know whether you were under any obligation to prevent the transfer of American-owned steamers to the flag of China, whether with pacific or with hostile intent. In any case where the ultimate object of the transfer is or may appear to be hostile, and where consular intervention is necessary to effect a valid transfer, the withholdment of such intervention would be the limit to’ which a consul could go to prevent such unlawful change of ownership. But if the legalization of the sale should be unnecessary, there would be no international obligation on the consul to prevent the seller from alienating his property, nor would any preventive means appear to be within the consul’s reach, in such a manner as to impute responsibility to him for failure to employ them. The consul would have no more control, and consequently no more responsibility, in the case of transfer of the American vendor’s property by private contract and simple delivery within Chinese jurisdiction, than in the case of a private contract on the part of the same vendor to lend his personal aid to either belligerent. In either case, the party alienating his property or his services does so at his own risk and peril.

This instruction, although covering only a part of the hypothetical field embraced in your inquiries, may serve to guide you in whatever specific case may be presented; but if you should be in doubt on any point involved, precise instructions will be given to you thereon.

A copy of this instruction will be sent to the United States legation at Peking for its information.

I am, &c.,