No. 435.
Mr. Fish
to Mr. Bingham.
Washington, June 6, 1874.
Sir: Referring to your Nos. 76 and 78, dated respectively the 22d and 24th of April last, relating to an expedition which the Japanese government propose to send to Formosa, I have to state that the twenty-fourth section of the act of 1860, referred to in your No. 76, is probably intended to authorize a minister in countries where rights of extraterritoriality are granted to the United States, to exercise the powers conferred upon the President by the 8th section of the neturality-act of 1818, as well as the power or some of the powers possessed by the courts under that act.
To constitute an offense under either of the acts, there must be a purpose of carrying on war with a power with which the United States are at peace, and the offender must contemplate taking part as a belligerent. The engaging in the transportation of troops, or the dealing in arms and munitions of war, do not come within the classes of acts which are made penal by the statute of 1818.
While it is to be desired that the international duties of the United States towards belligerent nations should be enforced in the East as strictly as they would be enforced in the West, on the other hand it is not desirable to put any unnecessary restriction on the freedom of American commerce or the liberty of American citizens to use their talents in the service of oriental nations. Unless there were either an existing war between China and Japan at the time of the enlistment of the Americans referred to, or an immediate purpose of war with reference to which the enlistments were made, the enlistments were no violation of the international duties of the United States nor of the laws of the United States.
The Department fully confides in your discretion and does not deem it necessary to give you any further instructions on the subject.
I am, &c.,