I have declined to answer this question specifically, but I have held that,
under the facts communicated to me, Messrs. Russell & Co. were acting
contrary to the treaty.
I inclose herewith a copy of my answer, which I submit to you for
approval.
[Inclosure in No. 263.]
Mr. Denby to Mr.
Kennedy.
Sir: I have the honor to acknowledge the
receipt of your dispatch No. 20, of date November 26, 1886. In the
absence of any statute construing or enforcing the second article of the
treaty of 1880, it is very difficult to define accurately what acts are
prohibited to be done by citizens of the United States. In a
communication to Congress of date May 19, 1886, the honorable Secretary
of State uses this language:
“The intent of the treaty is clear that no American citizen in China
shall engage in or knowingly aid others to carry on the opium
traffic.”
I shall not undertake to answer specifically the question pat, “Is the
storage of opium by an American firm forbidden under Article II of the
treaty of 1880?”
In advance of Congressional legislation it would not be proper for me to
declare what acts are prohibited. It is sufficient to decide questions
based on actual facts existing and communicated to me.
The facts admitted here are that Mr. Grieg, an Englishman in the
employment of Messrs. Russell &, Co., deals in opium. He stores it
in their godown and ho pays them “a commission from its storage.”
Without deciding whether storage of opium by an American under all
circumstances is prohibited, I incline to the opinion that storage in a
warehouse owned, kept, and used by an American to carry on his own
business is prohibited. Should I sustain the view that Messrs. Russell
& Co. take of the treaty I would be practically deciding that every
American in China can lawfully fill his warehouses with opium on
storage, take care of it and protect it, insure it, maintain an action
for its possession, and do every act relating to it that any
warehouseman may do.
It seems to me that such a state of things would be contrary to the
treaty. It is true that storing an article is not literally importing
it, buying, selling, or transporting it; but there would be neither
buying, selling, importing, nor transporting an article unless it could
be stored for safe-keeping. The greater must be taken to include the
less.
Let it be distinctly understood that I do not intimate that an American
may not lawfully lease a portion of his godown, or that the lessee may
not carry on any business therein which is not prohibited by the law of
China or by international law. What I hold is that an American may not
use his godown, which he uses and occupies for the transaction of his
own business, for the purpose of storing opium therein.
Your second question is, “Is the receipt of commissions for such storage
an infraction of Article II?”
The receipt of pay for storage would neither add to nor take from the act
itself its illegal character. If the opium were stored gratuitously the
act would still be wrongful. The violator of law can not shield himself
against the consequences of an illegal act by the plea that he did it
without reward. If pay is charged for storage it is a circumstance
tending to characterize the transaction as an ordinary matter of
business.
You will please send a copy of this dispatch to the United States consul
at Foochow, and communicate its contents to Messrs. Russell & Co. I
am satisfied that this distinguished and honorable firm had no intention
to knowingly do any act contrary to the treaty. They have construed its
terms strictly, while I have looked at its true intent and meaning.
The whole matter will be communicated to the honorable Secretary of State
for his decision.
I am, etc.,
