No. 147.
Mr. Fish to Mr. Williams.

No. 174.]

Sir: Referring to your dispatch, No. 34, and to your conversation with certain Chinese officials, in relation to the late expedition of the Japanese against the natives of Formosa, I have to reply that the instruction contained in the dispatch of April 8 was confined to the particular case then referred to, and to a time of peace. Your efforts to detach the citizens of the United States who were engaged in the expedition referred to are approved.

You state in your dispatch that you had informed certain officials in this conversation that the Americans entering into the military service of China or Japan did so at their own risk, and that the Government would take no notice of their death under such circumstances. Your answer goes further than the Department feels justified in approving.

In case such American citizens should be killed in battle in the ordinary course of civilized warfare no notice would be taken thereof; but the United States will expect that no unusual or inhuman punishment be inflicted upon any of its citizens who may be taken prisoners, but that they shall be treated according to the accepted rules of civilized warfare.

Where the exercise of a commission or the enlistment in a foreign service is not prohibited by law, the fact that a war arises between the country in whose service a citizen of the United States may be and another nation, with which the United States are at peace, does not, in the opinion of this Department, create an obligation “to refuse to serve or to leave the flag thus employed.”

Such fact is of not infrequent occurrence. Citizens of all nationalities were engaged on both sides during the rebellion, and such has frequently been the case with European nations.

I fail to perceive that the doctrine of exterritoriality affects the question of the rights of citizens of the United States to engage in the service of foreign powers when not prohibited by law, or that it becomes unlawful because of the engagement being made with a non-Christian power. China has not infrequently availed herself of the services of Americans, as in the case of Ward and Burgevine, and it is not for her to take exception against this Government that it refuses to interfere to prevent its citizens from entering into foreign military service which may not be prohibited by law.

It is believed by this Department that the provisions of the act of June 22, 1860, afford ample power to the ministers of the United States to issue proclamations, or writs, and even to resort to force, in case of a [Page 301] violation of its provisions, and it is believed that these powers conferred upon the minister will prove sufficient in these cases.

This Department is officially informed by the Secretary of War that Mr. Wasson, said to be attached to the expedition against the natives of Formosa, has not been in the service of the United States since July 1, 1872.

I am, &c.,