Mr. Denby, chargé, to Mr. Gresham.
Peking, October 5, 1894. (Received November 19.)
Sir: I have the honor to report that the British ship Pathan, which cleared from New York on or about the 15th of July for Hongkong, China, and Japan, was seized near the Pescadores, in the Formosa Channel, on the 22d ultimo, by the Chinese cruiser Nan-sheng.
The Pathan was loaded with a valuable cargo of American cotton goods, consigned to Shanghai, and with locomotives and railroad materials consigned to native firms in Japan. In addition she had $45 worth of revolvers and some cartridges, consigned to a foreign firm in Japan. The Chinese were warned from Singapore of the existence of these contraband goods upon her and this led to her seizure. She was taken into the port of Kelung, in Formosa, and held there, subject to the orders of the Chinese Government, which desired, before coming to any decision as to her disposal, to search her fully. The situation was complicated by a report that the steamer herself had been sold to Japan while in mid-ocean.
On the 29th ultimo I received a telegram from the United States consul-general at Shanghai informing me that a large part of the Pathan’s cargo was consigned to American firms and asking that measures be taken to protect it. I at once went to the Yamên and asked that, whatever disposition shall be made of the ship and contraband goods found upon her, the neutral cargo consigned to American merchants be properly delivered to them. The Yamên replied that their action with regard to the ship would depend upon the result of the inquiry as to her ownership, whether English or Japanese, but they undertook in any case to order the delivery to the Shanghai consignees of the cargo not seized as contraband.
This case suggests some interesting questions. By the declaration of Paris of 1856 enemy’s property in neutral ships can not be captured except being contraband of war. This, however, only holds good as between subscribers to the declaration. China is not, while Japan is, among them. The conclusion seems inevitable that China is therefore at liberty to search neutral ships and seize all Japanese property, whether contraband or not, found thereon, while Japan can only exercise such right against neutrals who have not given their adhesion to the declaration of Paris.
If this view be correct, all the cargo of the Pathan, whether contraband of war or not, consigned to Japanese firms, may properly be confiscated, and it was not necessary to allege the existence of contraband upon her to justify her detention and search. These remarks apply to all other ships. In short, it seems that if neutral powers should allow to China the full exercise of her belligerent rights it would be legally possible for her to effect the entire destruction of Japan’s foreign commerce. Should she see fit to issue letters of marque to privateers for this purpose, she would be at liberty to do so.
The Chinese Government has never announced an intention to exercise the right of search upon the high seas against neutral ships bound for Japan, and, under your instructions, I have carefully avoided the subject in interviews or correspondence with the Yamên. Their action in the case of the Pathan, however, is a direct assertion of the right. In this action the British authorities have so far acquiesced. The ship has been allowed to proceed to Shanghai under bond, but it is not [Page 70] known to what terms the British and Chinese Governments will eventually come concerning her detention and search.
I have, etc.,