No. 439.
Mr. Fish
to Mr. Bingham.
Washington, July 29, 1874.
Sir: Referring to your dispatch No. 78, in which, you seek instructions upon the various questions arising out of the participation of citizens of the United States in the late expedition against Formosa, and of the employment of an American vessel, I have to inform you that your proceedings to detach the citizens of the United States and the steamer New York from the expedition are approved. You are referred to the instructions already given by this Department on this question. The act of June 22, 1860, affords ample authority to the ministers of the United States to issue writs and proclamations to prevent the citizens of the United States from enlisting in the military or naval service of China or Japan to make war upon any foreign power with whom the United States are at peace, or in insurrectionary movements; and, should a warning or proclamation prove ineffectual, the minister is authorized to resort to such force as may be within his reach belonging to the United States, to accomplish the purpose.
It is believed by the Department that the powers conferred upon the minister of the United States by this act will prove sufficient in these cases.
The representatives of the Government will take every means to prevent [Page 693] any violation of these provisions of law, and it is believed that in most instances no actual resort to force will be required.
Your response to the representation of General Le Gendre, that the act of 1860 was unconstitutional, is approved. No officer of the Government is made a judge of the constitutionality of an act of Congress; and all acts are to be deemed constitutional until the question be legally decided otherwise.
This Department has been officially informed by the Secretary of War that Mr. Wasson, who was attached to the expedition against Formosa, above referred to, has not been in the service of the United States since July 1, 1872.
I am, &c.,