No. 142.
Mr. Williams to Mr. Fish.

No. 34.]

Sir: In Mr. Low’s dispatch, No. 221, of 10th January, 1873, he sets orth the disadvantages and complications likely to arise from permitting [Page 255] citizens of the United States to enter the military and diplomatic service of Japan; and in your reply of 3d April, you state that the Department has no authority, by law, to prevent them from entering the service of a foreign power. Referring to these two letters, I have now to relate the particulars of a conversation which took place at the interview referred to in my last, which bear upon this point.

With curious inconsistency, the Chinese officials brought forward the employment of American officers and ships by the Japanese in their descent upon Formosa, as a violation of the spirit of Article I of the treaty of Tien-tsin, when they had not themselves deemed that act to amount to a declaration of war. How can the United States permit her citizens to help and direct Japanese troops, they asked, when this article provides that if another nation acts unjustly or oppressively toward China, she will try to bring about an amicable arrangement between them? Even if it was not so stated in the article, this permission, in their view, involved a complicity in those acts of injustice or oppression which its spirit was intended to adjust, if not restrain. To this I replied, that it was fairly implied in the spirit of the article that the United States must be the judge, in a measure, of the nature of those acts here called unjust or oppressive; it was never designed that she should interfere until she knew the facts and reasons for them, and could do so intelligently. The wording of the article involved a full hearing of the matter at issue; and it was hardly applicable in the present instance, as they admitted that they had received nothing from the Japanese government in explanation of their intentions. I then inquired if Soye-shima had not discussed the matter with them when he was in Peking last year? They answered that he had said nothing to them about his government sending a force to occupy any part of Formosa, and they would not admit that he had discussed the question of the wrongs suffered by Japanese subjects at the hands of the savages there. But it is generally known that there was considerable talk upon these points at that time, and Mr. Low’s dispatch (No. 264) of June 13th conveys the impression that the Japanese embassador had then stated his grievance, and the redress he proposed to take if the Chinese refused to do anything.

They then inquired if, in the event of hostilities arising between China and Japan, Americans who were engaged in the ranks of the enemy should be killed by Chinese troops, what notice would be taken of it by their own Government?

I answered that all Americans who entered the military service of the Japanese did so at their own risk, and that the American Government would take no notice of their death under such circumstances 5 all persons composing a hostile force could only be regarded as enemies by China.

They did not pursue their inquiries in this direction. * * * I referred them to the translation of Wheaton’s work for an authoritative explanation upon the usages in such cases in western lands 5 but both of us felt, no doubt, that those usages are much modified by the principle of exterritoriality found in our treaties, particularly in military operations.

The employment of our citizens in peaceful pursuits, or even to aid in the suppression of a rising of their own subjects, was referred to by them as of a different character from the same persons engaging in active hostilities against them on behalf of Japan; and they would have admitted the same principle when applied to their employing foreigners against Japan. Their objection showed that they had thought [Page 256] over this point; and it has its force; but there was no discussion, and it was evident that they had no wish to pursue it.

I have nothing to add to the remarks of Mr. Low in the dispatch above cited, which can strengthen them. This principle of self-government to foreigners was granted by the Chinese in the face of an overpowering force, and when they had had no practical experience, almost, of its nature and results. During the Taiping rebellion, all foreigners who aided the rebels took their own risks, and made very little noise about their doings. When Burgevine was captured in 1865, the fact that he had once been a trusted officer in the service of the imperialists, and had left them to join the rebels, led me to allow him to remain a prisoner until instructions were received. Mr. Seward replied, that upon a just conviction, he might be left in the hands of the Chinese, adding, “but this is to be understood to rest upon our own consent, upon the grounds of national honor, and not from Chinese right under treaty stipulations.” (See my dispatch No. 3, and Mr. Seward’s No. 7, of 6th November, 1865.)

I infer that the implied freedom of action to Americans to enter the military service of other nations, in that there is no law to prevent them, had primary reference to service in Christian nations, and when thus employed by those nations, allegiance to their own ceases. But does not this doctrine of ex-territoriality materially alter the nature of this service? There is no provision that I know of contemplating the naturalization of an American citizen in Japan or China; and it is understood here that foreigners in these countries cannot change their national character, and claim the protection of another country.

If an American citizen enters the military service of the Japanese, and another enters the same service in China, it is to be supposed that the rulers of both countries engaged these men to help them fight, if necessity required; but if they are to be led against nations with whom the United States are at peace, they are bound to refuse to serve, and to leave the flag thus employed. But supposing they refuse to desert it, and they appear in arms against each other, one under the Chinese and one under the Japanese flag, we have the spectacle of our countrymen fighting on behalf of two non-Christian governments, each side claiming the protection of its own country against the wrong-doing of its employers while trying to do all the harm they can to the opposing nation. It appears to me that this is not at all unlikely to take place within a few months, if the Japanese pursue their aggressive policy in Formosa.

Mr. McLane’s decree of December 5, 1834, making it a misdemeanor to light for or against the Emperor of China within his dominions in case of rebellion, is still in force; but I do not know whether a similar one has been issued in Japan. This decree was effectual in restraining an attempt made about the time of its publication to aid the Canton government to destroy banditti near that city; but no conviction was ever made under it during the Taiping rebellion. I think, however, it had no little moral effect in deterring many from joining the irnperialists, though after Ward’s force became famous, and fie was killed, Mr. Burlingame applied to have Burgevine put in command of the force, thus neutralizing the decree in effect.

The British government requires that previous permission be obtained before its subjects can enter the Emperor’s military service.

It is very desirable, if Mr. McLane’s decree conflicts with the implied liberty to our countrymen of entering the military service of the Japanese or Chinese, which the absence of an actual prohibition seems to involve, that instructions be given in time. At present it seems to do so. [Page 257] Your dispatch of April 3, 1873, refers to General Le Gendre alone, who is not now in the employ of the United States, and was free to accept the offer made to him. This I told the Chinese officials, when they complained that American officers were employed against them; but in respect to Lieutenant-Commander Douglass Cassell and Major Wasson, who, I believe, are still in our Navy and Army, I answered them verbally, that as yet there were no hostilities existing, and consequently these officers were not doing anything at which China could complain.

It is highly probable that, if the Japanese carry out their designs upon Formosa and Corea, as shadowed forth in Mr. De Long’s dispatches Nos. 302 and 309, active hostilities will arise in this part of Asia, which will almost certainly involve us in their issues and conduct. I may be pardoned, therefore, for bringing this question of employing our countrymen on either side to your notice, after what Mr. Low has written.

International law, which is applicable to western nations in times of war, has not been well defined in its application to these oriental powers, and their rulers are in constant perplexity how far they can go. We all wish to encourage them in utilizing foreign skill, science, and integrity in acquiring and applying our arts and improvements for their advantage; and as soon as they become expert in their new powers they are not unlikely to employ them to overcome their enemies.

* * * * * *

I am, &c.,