Mr. Gresham to Mr. Denby, chargé.

Sir: The action of the Government of Japan, in committing the interests of its subjects in China to the care of the diplomatic representative of the United States during the existence of hostilities between [Page 107]China and Japan, renders it expedient that you should be instructed as to the nature of your duties in the delicate situation in which you are thus placed.

The Japanese Government, when it solicited the interposition of our diplomatic representative in China in behalf of Japanese subjects during hostilities, was informed that such interposition would be permitted with the consent of the Chinese Government. Such consent has been given. Moreover, the diplomatic representative of the United States at Tokyo has, at the request of the Chinese Government, and with the consent of the Government of Japan, been charged with the care of the interests of Chinese subjects in the latter country pending hostilities.

The function with which you are thus charged, with the consent of the Government to which you are accredited, is one that calls for the exercise of personal judgment and discretion. It is an unofficial, not an official, function. A minister of the United States can not act officially as the diplomatic representative of another power, such an official relation being prohibited by the Constitution of the United States. But, apart from this fact, the circumstances under which the function in question is to be discharged imply personal and unofficial action. The state of war into which China and Japan have entered is inconsistent with the continuance of diplomatic intercourse between them. Your position is that of the representative of a neutral power, whose attitude toward the parties to the conflict is that of impartial amity. Your interposition in behalf of the subjects of one of them is not to be considered as an act of partisanship, but as a friendly office performed in accordance with the wishes of both parties. This principle you are constantly to bear in mind, in order that, while doing what you can consistently with international law for the protection of the interests of Japanese subjects in China, you may not compromise our position as a neutral.

By consenting to lend its good offices in behalf of Japanese subjects in China, this Government can not assume to assimilate such subjects to citizens of the United States, and to invest them with an extraterritoriality which they do not enjoy as subjects of the Emperor of Japan. It can not assume to hold them amenable to the laws of the United States nor to the jurisdiction of our minister or consuls; nor can it permit our legation or our consulates to be made an asylum for offenders against the laws from the pursuit of the legitimate agents of justice. In a word, Japanese subjects in China continue to be the subjects of their own sovereign, and answerable to the local law to the same extent as heretofore. The employment of good offices in their behalf by another power can not alter their situation in this regard.

On several proper occasions the Government of the United States has permitted its diplomatic and consular representatives to exercise their good offices in behalf of the citizens or subjects of a third power, as in Mexico in 1867 and in the Franco-German war in 1870. For many years good offices have been exercised by our diplomatic and consular representatives in behalf of citizens of Switzerland in China, as well as in other countries, where the Swiss Republic is without such representatives. In this relation it is proper to refer to an instruction of this Department to its diplomatic representative in China, of July 25, 1872, in which the protection to be extended by our minister and consuls to Swiss citizens in that country is defined as follows:

The protection referred to must necessarily be confined to the personal and unofficial good offices of such functionaries. Although when exercised to this extent [Page 108]merely, this can properly be done only with the consent of the Chinese Government, that consent must not be allowed to imply an obligation on the part of a diplomatic or consular officer of the United States in that country to assume criminal or civil jurisdiction over Swiss citizens, or to make himself or his Government accountable for their acts.

But, while you are to act unofficially, you will carefully examine any complaints that may be laid before you in behalf of Japanese subjects, and make such representations to the Chinese Government as the circumstances may be found to warrant; and in all ways you will do what you can, consistently with the principles heretofore stated, for the protection of Japanese subjects in China, and their interests.

I am, etc.,

W. Q. Gresham.