No. 175.
Mr. Cadwalader to Mr. Seward.
Washington, Nov. 2, 1874.
Sir: Your dispatch, No. 811, with its inclosures in reference to the arrest of General Le Gendre, late consul at Amoy, informing the Department of the proceedings taken, and of his final discharge from custody, has been received, and read, in connection with your 797 and Mr. Henderson’s Nos. 42 and 44, with careful attention.
As the Department has had occasion in late dispatches, addressed to yourself and to the ministers of the United States in China and Japan, to refer to the questions arising out of the participation of citizens of the United States in the late expedition against the natives of Formosa, reference is had thereto for the general views therein expressed, confining the present dispatch to the particular case now presented.
The dispatches which have been received leave the Department without information upon several points; but from the facts now in its possession, the position of the case appears to be as follows: About December, 1872, General Le Gendre entered the Japanese service, but the precise nature of his employment does not clearly appear. He was reported to have entered in some capacity connected with the foreign office, although it is stated by you that he has acted as a “military adviser.” Having taken part in the organization of the expedition about to proceed to Formosa, he was detached through the efforts of Mr. Bingham, and the expedition departed without him. That he has taken any further part in it, directly or indirectly, does not appear, and he is reported as arriving in China, having gone from Yokohama to Hong-Kong, thence to Swatow and Amoy. On his arrival at the latter place [Page 349] instructions were asked by Mr. Henderson, who stated that he was presumed to be on his way to Formosa.
In answer to his request instructions were given by you to Mr. Henderson to arrest him, and he was arrested at Amoy upon the 6th of August. He thereupon filed a protest in the consular court, alleging, among other things, that the warrant on which he was held contained no mention of any offense, and insisting that his entry into the Japanese service was lawful and permitted by the treaty, and that his continuance therein was not in violation of any law of the United States. At his request he was forwarded to Shanghai, and on his arrival, pursuant to the suggestion of Mr. Williams, and by your direction, was discharged from custody. These appear to be the facts as they have been communicated to the Department concerning the arrest.
Many considerations have been advanced by you, tending to show the animus of General Le Gendre toward the Chinese, and the object of his original employment and his visit to China, but all such are, at the most, argument or conjecture.
General Le Gendre was a citizen of the United States who had rendered patriotic and valuable services to his Government, who had lately held the very consulate in which he was arrested, and was represented to be attached to an important mission from the Mikado to the Emperor of China.
On all these grounds a criminal proceeding should not have been commenced against him without grave cause, and only for an offense to substantiate which ample evidence existed. In judging of the legality of this arrest, and of the propriety of his discharge from custody, it is necessary to know precisely the charges and the evidence at hand to support them. Upon these vital points the dispatches in possession of the Department give almost no information.
Exhibit No. 8, attached to your No. 811, being a form of warrant not filled out, and unsigned, is probably intended as a copy of the general form of the warrant on which the arrest was made.
It contains no charge of the commission of any particular offense, no statement of any facts based on which the warrant had been issued, and no mention of any complaint or information having been made. It is true that Mr. Henderson, in his letter of the 10th of August to the acting Japanese consul, states that “General Le Gendre was arrested by me in the United States consulate, upon a 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 in his No. 10, to Mr. Williams, a copy of which was forwarded with his No. 42, to the Department, he states that he has arrested him for aiding the Japanese armed forces in the invasion of the island of Formosa, and these are the only approaches to any distinct statement of a charge.
The offense in each case here referred to is indefinite; no designation is made of the time or place when or where it is alleged to have been committed, and no allegation of the citizenship of the offender, or statement of the particular facts or legal provisions making the act an offense.
By the provisions of the act of 1860, as appears by sections 2 and 7, power is given to the consuls of the United States in China to arraign and try citizens of the United States charged with offenses against law which shall be committed in China, and such provisions are substantially the same in the Revision. (See §§ 4084, 4087.)
It is recognized in general as a part of the jurisprudence of this country, that offenses shall be tried where committed.
[Page 350]In conformity also with the established course of judicial proceedings in the United States, and, as is believed, with the regulations governing similar cases in China, to authorize the issue of a warrant it is necessary that the person against whom the warrant is issued should be charged with an act, or series of acts, making an offense known to the law. The accused also has a right to know, and should be informed of, this particular offense charged against him.
So far as the Department can therefore learn, none of these requisites were complied with in this case.
The consular officers of the United States appear to have acted, as perhaps is necessary, as both prosecutors and judges, but it does not appear that any clearly-defined offense known to the law has been charged against General Le Gendre, or communicated to him or to the Department.
But, apart from the question that no particular offense seems to have been charged, it does not appear that any offense was charged as having been committed within the consular jurisdictions of Shanghai or Amoy, or of the empire of China, but precisely the opposite appears.
The expedition in question was organized in Japan, sailed from Japan without General Le Gendre, and no further connection with it is shown on his part.
The offense in advising, aiding, or abetting the expedition or the invasion, therefore, if offense there was, was committed in a foreign country, outside of the jurisdiction of the consular courts of China.
Further reference to the merits of the case seems not to be required, and the Department refrains from discussing the question whether, in view of all the facts presented to the Department, General Le Gendre had committed any offense either in China or Japan, or whether he had violated the provisions of the act of 1860, or the neutrality act of the United States.
It may, however, safely be said that, in the light of the information forwarded to the Department, serious doubt exists on these questions.
It seems proper further to say, that to have sent General Le Gendre to Japan for trial, as appears to have been proposed, because it was doubted whether a case could be made against him in China, would have been an act beyond the power of a consul of the United States.
A prisoner illegally arrested, or where no offense can be brought home to him, is entitled to his discharge.
He can be sent to another country to be tried only in compliance with treaty provisions for extradition. No such delivery could be made to any authority in Japan.
For all these reasons, and upon the facts as reported, the Department is forced to the conclusion that the arrest of General Le Gendre was without warrant of law, and cannot receive its approval. Had the arrest been the act of a foreign power, it is apprehended that it would have been the ground for energetic action on the part of the United States.
Referring to such parts of your dispatch as relate to the action of the Japanese, the nature of the expedition, and the connection of General Le Gendre with it, and which contain arguments to show his desire and intention to aid the Japanese in hostility to China, it is not perceived that they present evidence of any criminal act on which to sustain an arrest and committal.
I am, &c.,
Acting Secretary.