No. 152.
Mr. Williams to Mr. Fish.

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.

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.

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.

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.