793.94/10012: Telegram

The Ambassador in China (Johnson) to the Secretary of State

635. Embassy received Shanghai’s 487 to the Department13 on August 21 but until Department’s telegram No. 221, September 7, 6 p.m. it did not know that Department had made any reply. Embassy has now asked for and received a copy of Department’s 241, August 17, 7 p.m. to Shanghai. It would appear that Williamson requested and received the advice of the American Consul General at Shanghai in this matter. In so far as I am able to learn, no American adviser employed by the Chinese Government nor any one else has applied to this office for similar advice. I wonder whether it is the Department’s desire that I take the initiative and seek out these men for the purpose of giving them advice, thus actively attempting to persuade them to desist from their work and leave the country.

Section 4090 appears to me to be permissive rather than mandatory in that it states that the duly constituted authorities of the United States “may issue all or any of writs to prevent”. I do not recall that any general writ or decree has ever been issued by the United States Court for China nor have I any knowledge of any action having been sued out against any citizen of the United States under this provision of the statutes under any such writ or decree of the Court.

It seems to me that when citizens of the United States come to me for advice in this matter or unless the United States Court for China issues a writ or decree which specifically defines such service as these men are performing as falling within the meaning of the statute, I would have no warrant on the basis of the existing law for urging them to abandon their occupation and much less for threatening them with punishment.

In view of the already bitter feeling described in my 609 of September 6, 11 a.m.,14 I propose to take no action on my own initiative in this matter unless specifically instructed to do so by the Department.

In any case I would be grateful if the Department would express an opinion in regard to section 4090 of the Revised Statutes particularly as regards the necessity of some preemptory action by the United States Court for China in the form of a writ or decree authorization pending further instructions and specifically defining the method of the term “enlistment with military and naval service” and its application [Page 527]to the type of service these advisers and instructors are performing.

Sent to the Department, repeated to Shanghai.

Johnson
  1. Dated August 15, 3 p.m., p. 520.
  2. Not printed; it made reference to the Ambassador’s telegram No. 585, September 1, 9 p.m., p. 523 (793.94/9922).