793.94/10012: Telegram

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

237. Your 635, September 10, 4 p.m. and Shanghai’s 678, September 9, 9 p.m.16 It is no part of the Department’s desire or intention gratuitously to impose hardships and burdens upon American nationals or to interfere unnecessarily with existing arrangements or commitments to which American nationals and firms are parties; nor do we wish to disturb unnecessarily arrangements which friendly governments may have made in good faith for the carrying on of their legitimate affairs.

In regard to American aviators employed by the Chinese Government before the beginning of the present hostilities, we take account of the fact that the arrangements for such employment of such aviators as instructors were made originally, during a previous Administration, with some assistance by certain agencies of the American Government.

Department’s 241, August 17, 7 p.m., to Shanghai, was sent for guidance of the Consul General in making his reply to an express [Page 529] inquiry by an American national. Department does not ask that you take the initiative toward asking American instructors who may still be in employ of the Chinese Government to desist from their employment as instructors. These nationals, just as all others, come within the purview of the Department’s general effort to bring about evacuation of American nationals from China. If they choose not to respond to the general advice which is being given, the responsibility in that connection will be theirs just as in the case of all other American nationals. They should understand, however, that their Government looks with definite disapproval upon anything in the nature of military service with foreign governments by American citizens, and that there exist statutory provisions (Section 4090, Revised Statutes) relating to the matter of American citizens engaging in military activities in the extraterritorial jurisdiction of China. If any of them are so engaged, you should give definite warning to them that they cannot expect any form of protection from their Government while so engaged.

Two particular objectives of our present policy and course of action with regard to the Far Eastern situation are: (1) To keep this country at peace, (2) To safeguard the lives of American nationals.

It is the Department’s view that in fairness to all concerned it might be helpful for you to make sure that all of the persons under reference whom you can reach be given clear knowledge of their Government’s attitude and views as outlined above. No threats need be made.

With regard to whether Section 4090 is permissive or mandatory, the Department refrains from expressing an official opinion, as the interpretation of that section, were the question to be raised, would naturally devolve upon the United States Court for China. For your information, however, the Department observes that it would appear to be illogical to hold that the power originally conferred on the United States Minister to China and now exercised by the United States Court for China was intended to be merely permissive when consideration is given to the fact that one of the purposes of the power conferred on the Court is to prevent the commission of a capital offense as defined in Section 4102 of the Revised Statutes, namely, insurrection or rebellion against any of the governments referred to in that section which includes the Government of China. Inasmuch as the power of the Court to issue writs to prevent the engagement of citizens of the United States in insurrection or rebellion is coupled with the power “to prevent the citizens of the United States from enlisting in the military or naval service of either of the said countries to make war upon any foreign power with whom the United States are at peace”, and as a failure to exercise that power in a proper case would appear to constitute a disregard of the intent of the neutrality [Page 530] laws of the United States it would seem to be difficult to justify such a failure if the question should be raised by any government against whom the activities of American citizens in China might be directed.

  1. Ante, p. 317.