No. 169.
Mr. Denby
to Mr. Bayard.
Peking, May 14, 1887. (Received June 27.)
Sir: I have the honor to offer the following observations on the objection of the Chinese minister to the third section of the anti-opium law, as stated in your dispatch No. 177, of date March 23, 1887.
The first clause of said section simply enacts the existing treaty, adopting almost the language of Article 2 of the treaty of 1880, page 828, volume 22, United State Statutes at Large. The second clause provides inadvertently for a double pecuniary fine. The third clause gives jurisdiction to the consular courts.
The fourth clause provides for the confiscation of the opium therein above described, and its forfeiture to the United States for the benefit of the Emperor of China, proceedings to that end to be had before the judicial authorities of the United States in China.
I presume the objection of the Chinese minister is directed to the fourth clause. I agree that the clause is antagonistic to the fourteenth article of the treaty of 1858, if opium is “a contraband article of merchandise.”
Under the said article contraband merchandise is to be dealt with exclusively by the Chinese Government. But it has never been admitted by my predecessors, and is distinctly disaffirmed by me, that a citizen of the United States can be tried for any offense and personally punished except by his own consul.
I submit to you the propriety of advising the consuls not to entertain any action in rem having for its object the confiscation of opium, but on the contrary to disregard the said fourth clause of the third section.
The ground for this ruling would be that the said clause is in conflict with the treaties. This course of action would relieve the mind of the Chinese minister from any apprehension of interference with the local laws of China.
Opium held in violation of the act of Congress would still receive no protection at the hands of the authorities of the United States. The [Page 212] question of confiscation “for the benefit of the Emperor of China” would be left with the Chinese authorities, where it belongs. The personal penalties for a contravention of the act would still be enforced.
I have, etc.,