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.
[Inclosure in No. 428.]
Mr. Bayard to Mr.
Stahel.
Department of State,
Washington, April 14,
1885.
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:
- (1)
- 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?
- (2)
- Are the owners of the steamers residing within or without the
jurisdiction of China?
- (3)
- Is it proposed to sell them to the Chinese Government, or to
individual subjects of China?
- (4)
- 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
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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.,
