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"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 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 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.”
Mr. Bayard, Sec. of State, to Mr. Stahel, consul at Shanghai, Apr. 14, 1885, For. Rel. 1885, 170, enclosed with Mr. Bayard to Mr. Smithers, acting minister to China, No. 428, April 20, 1885, id.
These vessels had been previously sold to citizens of the United States by Chinese. (President Arthur's annual message of 1884, and §§ 323, 324, supra.)
"The distinction between fitting out and arming ships of war for the service of a belligerent, which is not permissible, and selling to such belligerent ships to be converted into men-of-war and munitions. of war, which is permissible, may be thus explained: It is not indictable for a gunsmith to sell a pistol to a party who may use it unlawfully, even though the vendor may have reasons to suspect the object of the purchase. It would, however, be unlawful for the gunsmith to join in arranging a machine by which a specific unlawful purpose is to be achieved. It is not unlawful, in other words, to be concerned in preparations which will not, unless diverted by an independent force, produce a violation of law. It is, however, unlawful to be concerned in putting in actual operation dangerous machines. He who is concerned in fitting out and arming a man-of-war for the purpose of preying on the commerce of a friendly state, or of attacking its armed ships or ports, is as much concerned in the attack as he who
takes part in manufacturing and planting a torpedo in a frequented channel is responsible for the mischief done by the torpedo. This distinction has been already asserted in the cases which rule that it is an indictable offense to be concerned in counseling and aiding a specific attack, but not an indictable offense to be concerned in selling arms by which such attack is to be made."
Wharton, Int. Law Digest, III. 525.
During the civil war in Chile in 1891 the Peruvian Government detained at Callao the steamer Mapocho, of the South American Steamship Company, which the company intended to place at the disposal of President Balmaceda by virtue of the company's contract with the Chilean Government. The steamer was capable of transporting 3,000 soldiers. The agents of President Balmaceda made every effort to secure the departure of the vessel from Callao, but the Peruvian Government detained it there till the close of the The case is fully detailed in the report of the Peruvian foreign office for 1891, page 20.
Mr. Elmore, Peruvian min. of for. aff., to Mr. Dudley, Am. min., July 23, 1898, enclosed with Mr. Dudley to Mr. Day, Sec. of State, July 21, 1898, MS. Desp. from Peru.
"In January of the present year the Chilean Congress is reported to have refused to accept a very high price offered by an American firm for six war ships, doubtless believing that the ships were destined for either Russia or Japan. A new, though cognate, question has, however, been raised by the sale of certain German liners to Russia, which forthwith, after rechristening, commissioned them as armed cruisers. If these vessels were, as is alleged, subsidized by their own Government, with a view to their employment by that Government in case of need, it has been urged with much force that they practically form part of the reserve of the imperial German navy, and that, therefore, Germany being neutral, they could not be lawfully sold to a belligerent. It would seem that the opinion of the law officers to which Mr. Balfour alluded in August, 1904, was not given with reference to precisely the facts above stated."
Holland, Neutral Duties in a Maritime War, April 12, 1905, Proceedings of the British Academy, II. 2.
2. SALE OF CONTRABAND.
(1) BY PRIVATE PERSONS.
"Our citizens have been always free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal disarrangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent powers on their way to the ports of their enemies. To this penalty our citizens are warned that they will be abandoned, and, that even private contraventions may work no inequality between the parties at war, the benefit of them will be left equally free and open to all."
Mr. Jefferson, Sec. of State, to the British min., May 15, 1793, 5 MS. Dom. Let. 105; Am. State Papers, I. 69, 147; 3 Jefferson's Works, 558, 560, See a pamphlet entitled "The Supplies for the Confederate Army. How they were obtained in Europe and how paid for." By Caleb Huse, Major and Purchasing Agent. C. S. A., Boston. Press of T. R. Marvin & Son, 1904.
"The purchasing within, and exporting from the United States, by way of merchandise, articles commonly called contraband, being generally warlike instruments and military stores, is free to all the parties at war, and is not to be interfered with."
Hamilton's Treasury circular of Aug. 4, 1793, 1 Am. State Papers, For.
Belligerents may come into the territory of a neutral nation and there purchase and remove any article whatsoever, even instruments of war, unless the right be denied by express statute. If, however, the object of such an act be to impede the operations of either belligerent power, and to favor the other, it is a violation of neutrality.
Lee, At. Gen., 1796, 1 Op. 61.
In the correspondence between Mr. Pickering, Secretary of State, and Mr. Adet, minister of France, in 1796, while it was agreed on both sides that horses are contraband of war, it was maintained correctly by Mr. Pickering, in opposition to Mr. Adet, that the only means of redress in such cases by the offended belligerent was the
seizure of such contraband on the high seas, or in his own country, and that the government of the country of exportation was not required by international law to prohibit such exportation.
Mr. Pickering, Sec. of State, to Mr. Adet, Jan. 20, and May 25, 1796, 1
"It was contended on the part of the French nation, in 1796, that neutral
"In both the sections cited [110 and 113, Vattel] the right of neutrals to trade in articles contraband of war is clearly established; in the first, by selling to the warring powers who come to the neutral country to buy them; in the second, by the neutral subjects or citizens carrying them to the countries of the powers at war, and there selling them."
Mr. Pickering, Sec. of State, to the minister of France, May 25, 1796,
The Government of the United States can not undertake to punish its own citizens for disposing in another country of contraband articles in violation of the laws of such country. "Neither
our own laws, nor, as is believed, those of any foreign country, make provision for the enforcement of the penal laws of another country, the general rule being that the laws of every nation are competent to vindicate their own authority."
Mr. Clay, Sec. of State, to Mr. Obregon, Mexican min., Apr. 6, 1827, MS. Notes to For. Legs. III. 345. See, on this topic, Whart. Crim. Law, §§ 271 et seq.
"In pursuance of this policy, the laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war or take munitions of war or soldiers on board their private ships for transportation; and although in so doing the individual citizen exposes his property or person to some of the