No. 152.
Mr. Williams to Mr. Fish.
Legation of
the United States,
Peking, September 3, 1874.
(Received October 29.)
No. 57.]
Sir: Since my dispatch of the 22d ultimo (No. 55)
was sent to the Department nothing decisive has taken place between the
Chinese and Japanese ministers in this city in reference to the Formosan
question. There have been long and excited discussions between them, but I
suppose the chief reason for delay has been the appointment of a new envoy
from Yedo, who comes with full instructions. The interval has been
diligently occupied by both parties in mustering their forces in readiness
for the coming strife; and the people on the coast are becoming enthusiastic
in the affair, owing very much to the circulation of two or three native
newspapers. Yet my strong belief is that the Peking government does not
relish or desire the struggle, and is ready to take any measures to restrain
the tribes in Formosa from repeating their violence, if the Japanese will
leave.
[Page 305]
I am so confident that you have been informed of every important particular
connected with the arrest and discharge of General Le Gendre, by the consuls
at Amoy and Shanghai, that I shall not repeat what they have written about
it. Mr. Seward has sent me a copy of his dispatch No. 797, in relation to
it, and I only refer to it in this place in explanation of the following
short extract from a reply sent him on the 31st ultimo:
In view of the whole question, and the difficulty of finding
witnesses to prove charges against General Le Gendre of having
violated the neutrality act, I think you could hardly have done
otherwise than discharge him. To send him to Japan for trial would
have also been attended with the same difficulty of proving the
charges or of getting the attendance of witnesses. The arrest has,
however, had its effect in showing the Chinese our desire to carry
out treaty stipulations.
I, however, inclose copies of the protest of Mr. Go Sheki, acting Japanese
consul at Amoy, with Mr. Henderson’s reply, and my dispatch to him upon it,
(June 1, 2, and 3,) and General Le Gendre’s protest, (inclosure 4,) in order
to facilitate reference to them. These protests involve one or two points in
international law which, so far as I can learn from Wheaton, have not been
prominently brought forward in treatises on the subject.
In Europe, where Turkey is the only power under the restraint of the
ex-territoriality law, there has been no risk of one of her envoys being
interfered with as he went over the continent by entering into the limits of
a nation where the same ban prevailed, and, therefore, the question of the
status and privileges of her diplomatic agent in the territories of the
other could not arise. Neither would it enter into her view to appoint as
her envoy anybody beside one of her own subjects to represent her abroad,
and especially in a state subject to the same disabilities, and this would
prevent this point of his immunities coming up.
In General Le Gendre’s case, it has happened that the Japanese consul claims
for him immunity against the jurisdiction of his own national authorities,
simply on the ground of his enjoying the privileges of a diplomatic agent.
This protest states, for the first time to my knowledge, that General Le
Gendre was “His Imperial Japanese Majesty’s special commissioner in China,”
but no such announcement was made by the Mikado’s government to the United
States legation in Japan before he left that country. None of the Japanese
officials in China have informed this legation or the United States consuls
of the appointment, and it seems to me that this act of courtesy was
necessary as a preliminary to his being accepted as a commissioner by the
Chinese officials. General Le Gendre came to Peking last year as one of
Soyeshima’s suite, but that subordinate position was altogether different
from the present one claimed for him. But whatever his own national
authorities might say or claim in the premises, I think that until he had
presented his credentials, and been acknowledged by the Chinese government
as a diplomatic officer, he could not be considered as such by any one. No
Japanese official had informed the Chinese authorities, so far as I know,
that he had been sent on a diplomatic mission by the Mikado, and his
pretended national character could not be claimed in immunity of arrest by
the United States consul.
* * * * * * *
In view of all these things, I conclude that the protest of Mr. Go Sheki is
entitled to no weight, and that he had no grounds for making it. To allow
its propriety in any degree would allow the Japanese government the right to
employ American citizens in China to carry on its
[Page 306]
hostile operations against the peace of this country.
It would compel American consuls to see their countrymen plotting in China
against its government, and disregarding the obligations of treaty without
the power vindicating the dignity and position of the United States.
In his protest General Le Gendre lays great stress on the fact that as he was
engaged by the Japanese government in accordance with Article X of the
American treaty, before it invaded Formosa, or committed any hostile act,
and with the permission of the United States minister in Japan, he is,
therefore, to obey all its orders during those hostilities. That article
allows the Japanese government to engage American citizens in the United
States (and elsewhere, too, I infer) in any lawful capacity, but his
deduction that such an engagement carries with it permission to break a
treaty-right is fallacious. To say, in addition, as he does in the same
paragraph, referring to the neutrality act, that he is beyond its
application because when he accepted his present task he was without the
jurisdition of the United States, is even still more so, for neither in
China nor Japan can he place himself without that jurisdiction.
It seems to me that his protest shows throughout a singular misconception of
the application of the laws he quotes. Article X is brought forward to
release himself from United States jurisdiction in China, because he had
been engaged by the Japanese before they had committed any hostile act
within Chinese territory, and because this article was a law before the act
of Congress of June, 1860, and therefore is paramount to it. But in my view
there is no difference between being engaged while Japan is at war with any
power in amity with the United States, and afterward engaging in active
hostilities after entering her service because she ordered it. The plain
intent of the proviso is to restrain American citizens from aiding Japan in
any military or naval capacity at any time or place out of her own
territory; and a subsequent state of war must work the same disability that
an actual state would have done at the time of engagement.
General Le Gendre has rather altered the meaning of the proviso by changing
the phraseology, but I do not suppose he intended to do so in any degree. It
reads: “Provided, That ho articles that are
contraband of war shall be exported [from the United States], nor any
persons engaged to act in a naval or military capacity, while Japan shall be
at war with any power in amity with the United States.” He quotes it, “that such person shall not be engaged to act,”
&c., in order, apparently, to fortify his inference as to the time of engagement, and prove that subsequent
hostilities could have no retrospective action in invalidating his freedom
to serve the Japanese in a war against China.
His remark, that the act of 1860 was framed chiefly because “some American
adventurers, notably Ward and Burgevine, had taken an active part in the
troubles between the Chinese government and the Taiping rebels, Burgevine
having given his aid on both sides,” is erroneous. When the act was framed
in 1860, the proceedings of General Ward were hardly known in the United
States, and Burgevine’s career was from 1863 to 1865.
Even if he is correct in assigning this reason for inserting the clause in
section 24, that it referred primarily to civil wars, his deduction, that
the stipulation in the prior treaty with Japan overrides it, is unsound, for
as soon as a person engaged in the service of Japan leaves that country and
arrives in this, he comes under the operation of the treaty with China. He
cannot quote the treaty with one belligerent to do wrong to the other, by
breaking its treaty, and that with China should
[Page 307]
be paramount, according to General Le Gendre’s
reasoning, for it is the oldest of the two. He is so taken up with, his
postulate, that a prior engagement with Japan justifies a subsequent wrong
to China, that he is unconscious of the incongruity.
Speaking of the act of 1860, and the prior obligation of the treaty of 1858,
he adds, “I say that the law of 1860 never could have been understood by its
framer to apply to Japan, and that it was never intended that it should.” I
should have thought that, knowing that the framers of the act had the treaty
of Japan before them, the general would have been led to doubt his own
reasoning in his own favor, and concluded that they intended to define the
limits of Article X, and restrain American citizens from doing what he and
Mr. Cassell and Mr. Wasson are now doing.
Some persons have questioned whether taking the whole scope and wording of
the neutrality act of 1818 into consideration, which indicate that it was
apparently designed only for cases within the terrritory of the United
States, and that at the time it was passed, the question of exterritoriality
was nearly unthought of, and not found in treaties, its provisions are
applicable to these eastern countries. The sixth section contains the
clauses which seem to link the act with proceedings like those of Mr.
Cassell; but in this, it has been asserted, the intent of the framers by
using the word “jurisdiction” was plainly to include shipboard, and not
foreign countries like China where Americans then were not living under
their own laws. However, I do not regard the exception as a good one, and as
Congress has not since passed an act such as the objectors deem necessary to
cover the more modern circumstances, I think Mr. Henderson was right in
quoting the act when addressing General Le Gendre. No one can assert that
its general scope is inapplicable to present circumstances in maintaining
the neutrality of the United States; and that is the main point.
I have entered into this analysis of General Le Gendre’s protest, because it
has attracted the attention of the community, and the newspapers have rather
taken his side. In it he says nothing upon the point, whether war exists
between China and Japan, for I suppose if he proved that there was no war,
he would at once infer that people might reasonably ask what was he doing
here as a special commissioner. One of the most labored articles in his
favor says, speaking of engaging Americans before the war and retaining them
now, “That in such a case it would no more be permitted to the United States
to deny the right to Japan to retain in her service, while war is going on,
the American citizens engaged before the war commenced, than it would be to
demand of Japan the return of the arms, ammunition, and vessels of war,
bought before the expedition to Formosa was fitted out, but used after its
departure.” This would doubtless be true enough if there was no treaty with
China involving obligations to prevent American citizens doing this very
thing.
In regard to the discharge of General Le Gendre, I have only to add that, in
the absence of direct proof of his having violated the acts quoted by Consul
Henderson, and the very great difficulty of procuring witnesses in China or
Japan, I think that Mr. Seward acted properly in discharging him.
I have, &c.,
[Page 308]
[Inclosure 1 in No. 57.]
Gosheki to Mr.
Henderson.
His
Imperial Japanese Majesty’s Consulate,
Amoy, August 11, 1874.
Sir: I have been informed that the Hon. Charles
W. Le Gendre, a citizen of the United States, who was engaged by the
Japanese government, through the United States minister in Japan, in
December, 1872, in conformity with the terms of article 10 of the treaty
of 1858 between Japan and the United States, and now His Imperial
Japanese Majesty’s special commissioner in China, was, on the 6th day of
August, 1874, forcibly taken before your court by United States marines,
landed for that purpose from the United States steamship Yantic, upon
unknown charges, and in virtue of a warrant issued by you while he was
in Amoy on his way to Foo-Chow and Shanghai on business connected with
his mission; that on the day following the Hon. Charles W. Le Gendre was
against his will again brought before your conrt; that he is now
forcibly detained by you at this port and rendered unable to discharge
the duties intrusted to him by His Imperial Japanese Majesty; that he
has already notified you that he yielded only to force, which he was
unable to resist, in suffering the violence and detention to which he is
now being subjected in Amoy; and that he has strongly protested against
these proceedings:
Now, therefore, I, Gosheki, His Imperial Japanese Majesty’s acting consul
at Amoy, find it my duty to myself to protest, which I hereby do, in the
most formal and solemn manner, against this act of violence toward His
Imperial Japanese Majesty’s special commissioner as being a manifest
infraction of the rights of nations, and contrary to the privileges and
immunities which public commissioners enjoy in civilized countries.
I have, &c.,
[Inclosure 2 in No. 57.]
Mr. Henderson to
Gosheki.
United
States Consulate,
Amoy, August 10,
1874.
Sir: I have to acknowledge the receipt of your
communication of yesterday, in which you complain of my action in
arresting Mr. C. W. Le Gendre, a citizen of the United States, who you
say is sent to China as a special commissioner of His Imperial Japanese
Majesty the Emperor of Japan.
Although I have received no official notice of the establishment, or
recognition of a Japanese consulate at this port, I will state for your
information that on the 6th instant Mr. Le Gendre was arrested by me in
the United States consulate upon the charge of advising, aiding, and
abetting an expedition in hostility to the government of China, in
violation of the laws of the United States and their treaty with China,
and was at the time informed by me that I was acting under instructions
from the United States legation at Peking.
I will add that I know of no provision in the treaty between Japan and
the United States permitting citizens of the latter country to accept or
exercise any position under the former which is inconsistent with their
prior obligations to obey the laws of their own country, or so long as
they remain its citizens, whereby they may deprive their government of
its jurisdiction over them either in Japan or China.
The tenth article of our treaty to which you refer does not, even for a
lawful purpose, authorize the employment by the government of Japan of
citizens of the United States to engage in her diplomatic service, and
even if it did under the treaty they would still be amenable to the laws
of the United States.
However, I will forward your dispatch to the legation for decision and
instructions.
I am, &c.,
[Inclosure 3 in No. 57.]
Mr. Williams to Mr.
Henderson.
Legation of the United States,
Peking, August 31,
1874.
Sir: I have received your two dispatches of the
10th and 13th instant (Nos. 10 and 11,) both relating to the arrest of
Charles W. Le Gendre, and inclosing copy of a protest
[Page 309]
from Gosheki, acting Japanese consul at
Amoy, against this arrest, and your reply to him.
You have, in your answer to Mr. Gosheki, clearly stated the grounds of
your action; and the reference he makes in his protest to the engagement
of General Le Gendre, in Japan, in December, 1872, and his subsequent
appointment by that government as special commissioner to China, has no
strength or validity in neutralizing your jurisdiction over him. General
Le Gendre is still an American citizen, and if you have reason to
believe that he is violating the laws of the United States, or the
treaty with China, while within your jurisdiction, you have no need to
refer to any Japanese authority in taking all proper measures to
restrain him.
The tenth article of the treaty between Japan and the United States
relates particularly to the engagement of American citizens in a
military or naval capacity, and does not speak of diplomatic service, as
you observe in your answer; but neither in one nor other of these
capacities can any American citizen in China be allowed to aid or abet a
hostile expedition against its government as long as the United States
is at peace with it. Still there is an apparent difference in the nature
and objects of the two callings, and more caution and evidence are,
perhaps, required before proceeding against one in an ostensibly
peaceful employment than one whose profession is warlike, and his
surroundings more or less hostile.
If it was found after arrest that no proof of having violated treaty
obligations was produced, or not enough to detain the prisoner, he
should be discharged; but if was not competent for the Japanese consul
to ask for the charges, as General Le Gendre was not under his
jurisdiction, and Japanese law could not interfere.
I conclude further, that there was no infraction of the rights of nations
in your acts, nor anything in them “contrary to the privileges and
immunities which public commissioners enjoy in civilized countries,” as
Mr. Gosheki expresses it. The case is no doubt a singular one, but the
Japanese government will clearly understand that their employment of
American citizens does not remove such persons from the paramount claim
of their own national laws, wherever those laws reach. Neither does an
engagement in either of the above-mentioned callings by the Japanese
government, when there was no hostile expedition started against China,
authorize American citizens to engage further in active hostilities
under the Japanese flag, and screen themselves by their previous
obligations to serve their employers, as releasing them from their duty
to keep the peace with China, while within her limits.
I am, &c.,
[Inclosure 4 in No. 57.]
Protest of C. W. Le Gendre against Ms arrest by the
United States consul at Amoy, August 7, 1874.
Selected by the government of Japan to come to Southern China, and
represent it here on a mission of peace as its special commissioner, I
solemnly protest against the violence used toward me by the authorities
of the United States at Amoy, in depriving me of my liberty, and
forcibly and against my will bringing me before them, in virtue of a
warrant, in which, in violation of all principles of law, no mention of
the offense or crime of which I must necessarily be accused is
mentioned.
My quality as a United States citizen, and my connection as such with the
Japanese government, while the latter is engaged in carrying out a
scheme of pacification within the boundaries of aboriginal Formosa,
cannot be invoked (as it may ultimately be) by the United States
authorities in justification of their act, for the very nature of the
duties which I have come here to perform entitles me to certain
privileges and immunities which both China and western powers are bound
to respect; and by depriving me of my liberty, while thus vested with
this character, this court has committed toward Japan an unfriendly act,
which that country cannot fail to resent, and which, in the course of
time, the United States, in their well-known policy of justice, will
certainly regret.
While as a public officer of Japan, I turn my eyes toward the United
States and protest against the wrong which I am now made to suffer, and
for which I claim redress as a citizen of these same United States, I
feel deeply grieved for the error which I believe has been committed
here by this court. This error is the more apparent when we come to
consider the different circumstances under which the American
authorities might have been placed in their relations with me in my
double capacity as Japanese officer and United States citizen. I will
suppose the worst case; that is, that the late
[Page 310]
action of Japan in aboriginal Formosa constituted
an act of war against China, or, as some have called it, a war without
declaration.
It must be remembered that I was engaged by the Japanese government long
before the Formosa mission started. Now, the treaty of 1858 between the
United States and Japan says that Japan shall have the
right to engage in the United States * * * naval and military men * * * to enter its
service, * * * provided that such persons
shall not he engaged to act in a naval or military capacity while
Japan may he at war with any power in amity with the United
States, and I do not think that this proviso prohibits Japan
from employing American citizens to act in a military or naval capacity
who have been engaged before” Japan went to war. Neither does the act of
Congress passed April 20, 1818, commonly called the “neutrality;” law
for, when I accepted my present task under the Japanese government, I
was without the jurisdiction of the United States.
Now we come to the act of 1860. In passing this act the object of
Congress was to arm the ministers and consuls of the United States in
China, Japan, and Siam with certain powers that would enable them to
carry into effect the treaties with those powers, for which purpose
previous jurisdiction was insufficient. It provides that “it shall be
competent for each of the said ministers to issue all manner of writs to
prevent the citizens of the United States from enlisting in the military
or naval service of either of the said countries, to make war upon any
power with whom the United States are at peace or in the service of one
portion of the people against any other portion of the same people, and
he may carry out his power by a resort to such force as may at the time
be within his reach belonging to the United States.”
However stringent this law may appear at first sight, it can have but
very little bearing upon the case at issue. It is, it is true, a law of
the United States, binding, so far as it goes, upon all American
citizens. But the treaty of 1858 between Japan and the United States is
also a law of the United States. Mr. Wheaton says: “Under the
Constitution of the United States, by which treaties made and ratified
by the President, with the advice and consent of the Senate, are
declared to be the supreme law of the land, it
seems to be understood that the Congress is bound to redeem the national
faith thus pledged, and to pass the laws necessary to carry the law into
effect.” (Wheaton’s International Law, section 226, page 339.) Now, we
have seen that, by the terms of the treaty of 1858 between Japan and the
United States, persons who retain the character of citizens of the
United States and are in the service of Japan may, without blame to
themselves or Japan, serve that country in a war begun after their
entering the service. If so, how could Congress, which was bouud under
the Constitution to legislate for the purpose of carrying into effect
the terms of the treaty, pass a law that would virtually set at naught
the provisions of this same treaty? In vain would we agree that the law
of 1860 applies to United States citizens and not to Japan. It is beyond
question that Japan can claim certain privileges from the United States
under the terms of the treaty of 1858. If, by depriving United States
citizens of a certain proportion of their liberty in their relations
with Japan and her people, either or both are debarred from enjoying
these privileges, and if the enactment of the law of 1860 is the means
of doing this, I say that the law of 1860 never could have been
understood by the framers thereof to apply to Japan, and that it was
never intended that it should. Now, we must not forget that the law of
1860 was framed chiefly because some American adventurers, notably Ward
and Burgevine, had taken an active part in the troubles between the
Chinese government and the Tai-Ping rebels, Burgevine having given his
aid in turn to both sides. Congress was anxious to prevent, by
legislation, the recurrence of such proceedings, not only in China, but
in all the countries where it was likely they might again take place,
and, to prevent all possible transgression of the law, this body
extended the prohibition from enlistiug in the service of contending
parties in cases of civil wars among those nation’s to entering the army
or navy of either of those countries while at war with some power with
whom the United States have treaties of peace and amity. In what relates
to China or Siarn, neither of which has such a clause in her treaty as
the one referred to above, this law can be carried out, but it cannot be
legally enforced in the case of Japan. It could be, however, were the
law to be embodied in a new treaty, but it has not been so embodied,
and, until it has been, it cannot affect or modify the treaty of 1858
without the express consent of Japan in every case. In the present
instance we must infer that this consent has not been given from the
fact that, contrary to the stipulations of the law of 1860, but in
accordance with the terms of the treaty of 1858, an American was engaged
by the government of Japan to serve in connection with the Formosa
mission previous to a declaration of war against either the aborigines
of the island or the Chinese Empire, and the provisions of this same
treaty can be invoked by both Japan and the citizens of the United
States in justification of their acts in all the courts where the laws
of the United States are enforced.
CHS. W. LE GENDRE.
Amoy, August 7,
1874.
