No. 108.

Mr. Bayard to Mr. Young.

No. 407.]

Sir: A telegram concerning the service of citizens of the United States as pilots on French vessels of war in Chinese waters was received from you on the 9th instant in the following words:

Chinese object American pilots French men-of-war. Shall I forbid such service?


To this the following reply was sent March 10:

Although well disposed, we cannot forbid our citizens serving under private contract at their own risk. Not prohibited by statutes or cognizable by consuls.

The obligation of a neutral Government to prevent its citizens from joining in hostile movements against a foreign state is limited by the extent to which such citizens are under its jurisdiction and by the municipal laws applicable to their actions. Hence, a citizen outside of such jurisdiction may not be controlled in his free acts, but what he does is at his own risk and peril. If he offer his services to a combatant, that is a matter of private contract which it may be equally improper for his own Government to forbid or protect, and such service in legitimate war is not contrary to international law.

In China, however, foreign powers have an extraterritorial jurisdiction, conferred by treaty. This jurisdiction is in no wise arbitrary, but is limited by laws, and is not preventive, but punitory. If a citizen of the United States in China commit an offense against the peace of China, it is triable in the consular courts. Section 4102 of the Revised Statutes provides that “insurrection or rebellion against the Government of either of those countries [i. e., the countries named in section 4083, whereof China is one] with intent to subvert the same, and murder, shall be capital offenses, punishable with death,” &c., the consular court and the minister to concur in awarding the penalty. But the simple act of entering into a private contract to serve either combatant in open warfare would not appear to be triable under this section; and even if it were, this Government would have no rightful power to forbid such service.

It is, of course, understood that this reasoning does not apply to persons in the employ of the Government of the United States. For such persons, while so employed, to perform hostile service for either [Page 161] party would be a breach, alike of discipline and neutral good faith, which the rules of the service would be competent to prevent.

In the interest of good will between nations, it is desirable that citizens of the United States should not take part with either belligerent, or, if they do so, that it should be distinctly known that they thereby act beyond all effective responsibility of their own Government. Your discretion will doubtless show you how far it may be opportune to go in the direction of dissuading any citizen of the United States from taking sides in the present contest, but whatever you may do should be marked with the most obvious impartiality.

I am, &c.,