be paramount, according to General Le Gendre's reasoning, for it is the oldest of the two. He is so taken up with his postulate, that a prior engagement with Japan justifies a subsequent wrong to China, that he is unconscious of the incongruity. Speaking of the act of 1860, and the prior obligation of the treaty of 1858, he adds, "I say that the law of 1860 never could have been understood by its framer to apply to Japan, and that it was never intended that it should." I should have thought that, knowing that the framers of the act had the treaty of Japan before them, the general would have been led to doubt his own reasoning in his own favor, and concluded that they intended to define the limits of Article X, and restrain American citizens from doing what he and Mr. Cassell and Mr. Wasson are now doing. Some persons have questioned whether taking the whole scope and wording of the neutrality act of 1818 into consideration, which indicate that it was apparently designed only for cases within the terrritory of the United States, and that at the time it was passed, the question of exterritoriality was nearly unthought of, and not found in treaties, its provisions are applicable to these eastern countries. The sixth section contains the clauses which seem to link the act with proceedings like those of Mr. Cassell; but in this, it has been asserted, the intent of the framers by using the word "jurisdiction" was plainly to include shipboard, and not foreign countries like China where Americans then were not living under their own laws. However, I do not regard the exception as a good one, and as Congress has not since passed an act such as the objectors deem necessary to cover the more modern circumstances, I think Mr. Henderson was right in quoting the act when addressing General Le Gendre. No one can assert that its general scope is inapplicable to present circumstances in maintaining the neutrality of the United States; and that is the main point. I have entered into this analysis of General Le Gendre's protest, be cause it has attracted the attention of the community, and the newspapers have rather taken his side. In it he says nothing upon the point, whether war exists between China and Japan, for I suppose if he proved that there was no war, he would at once infer that people might reasonably ask what was he doing here as a special commissioner. One of the most labored articles in his favor says, speaking of engaging Americans before the war and retaining them now, "That in such a case it would no more be permitted to the United States to deny the right to Japan to retain in her service, while war is going on, the American citizens engaged before the war commenced, than it would be to demand of Japan the return of the arms, ammunition, and vessels of war, bought before the expedition to Formosa was fitted out, but used after its departure." This would doubtless be true enough if there was no treaty with China involving obligations to prevent American citizens doing this very thing. In regard to the discharge of General Le Gendre, I have only to add that, in the absence of direct proof of his having violated the acts quoted by Cousul Henderson, and the very great difficulty of procuring witnesses in China or Japan, I think that Mr. Seward acted properly in discharging him. I have, &c., S. WELLS WILLIAMS. [Inclosure 1 in No. 57.] Gosheki to Mr. Henderson. HIS IMPERIAL JAPANESE MAJESTY'S CONSULATE, Amoy, August 11, 1874. SIR: I have been informed that the Hon. Charles W. Le Gendre, a citizen of the United States, who was engaged by the Japanese government, through the United States minister in Japan, in December, 1872, in conformity with the terms of article 10 of the treaty of 1858 between Japan and the United States, and now His Imperial Japanese Majesty's special commissioner in China, was, on the 6th day of August, 1874, forcibly taken before your court by United States marines, landed for that purpose from the United States steamship Yantic, upon unknown charges, and in virtue of a warrant issued by you while he was in Amoy on his way to Foo-Chow and Shanghai on business connected with his mission; that on the day following the Hon. Charles W. Le Gendre was against his will again brought before your court; that he is now forcibly detained by you at this port and rendered unable to discharge the duties intrusted to him by His Imperial Japanese Majesty; that he has already notified you that he yielded only to force, which he was unable to resist, in suffering the violence and detention to which he is now being subjected in Amoy; and that he has strongly protested against these proceedings: Now, therefore, I, Gosheki, His Imperial Japanese Majesty's acting consul at Amoy, find it my duty to myself to protest, which I hereby do, in the most formal and solemn manner, against this act of violence toward His Imperial Japanese Majesty's special commissioner as being a manifest infraction of the rights of nations, and contrary to the privileges and immunities which public commissioners enjoy in civilized countries. I have, &c., [Inclosure 2 in No. 57.] Mr. Henderson to Gosheki. GOSHEKI. UNITED STATES CONSULATE, SIR: I have to acknowledge the receipt of your communication of yesterday, in which you complain of my action in arresting Mr. C. W. Le Gendre, a citizen of the United States, who you say is sent to China as a special commissioner of His Imperial Japanese Majesty the Emperor of Japan. Although I have received no official notice of the establishment, or recognition of a Japanese consulate at this port, I will state for your information that on the 6th instant Mr. Le Gendre was arrested by me in the United States consulate upon the charge of advising, aiding, and abetting an expedition in hostility to the government of China, in violation of the laws of the United States aud their treaty with China, and was at the time informed by me that I was acting under instructions from the United States legation at Peking. I will add that I know of no provision in the treaty between Japan and the United States permitting citizens of the latter country to accept or exercise any position under the former which is inconsistent with their prior obligations to obey the laws of their own country, or so long as they remain its citizens, whereby they may deprive their government of its jurisdiction over them either in Japan or China. The tenth article of our treaty to which you refer does not, even for a lawful purpose. authorize the employment by the government of Japan of citizens of the United States to engage in her diplomatic service, and even if it did under the treaty they would still be amenable to the laws of the United States. However, I will forward your dispatch to the legation for decision and instructions. [Inclosure 3 in No. 57.] Mr. Williams to Mr. Henderson. LEGATION OF THE UNITED STATES, SIR: I have received your two dispatches of the 10th and 13th instant (Nos. 10 and 11,) both relating to the arrest of Charles W. Le Gendre, and inclosing copy of a pro test from Gosheki, acting Japanese consul at Amoy, against this arrest, and your reply to him. You have, in your answer to Mr. Gosheki, clearly stated the grounds of your action; and the reference he makes in his protest to the engagement of General Le Gendre, in Japan, in December, 1872, and his subsequent appointment by that government as special commissioner to China, has no strength or validity in neutralizing your jurisdiction over him. General Le Gendre is still an American citizen, and if you have reason to believe that he is violating the laws of the United States, or the treaty with China, while within your jurisdiction, you have no need to refer to any Japanese authority in taking all proper measures to restrain him. The tenth article of the treaty between Japan and the United States relates particularly to the engagement of American citizens in a military or naval capacity, and does not speak of diplomatic service, as you observe in your answer; but neither in one nor other of these capacities can any American citizen in China be allowed to aid or abet a hostile expedition against its government as long as the United States is at peace with it. Still there is an apparent difference in the nature and objects of the two callings, and more caution and evidence are, perhaps, required before proceeding against one in an ostensibly peaceful employment than one whose profession is warlike, and his surroundings more or less hostile. If it was found after arrest that no proof of having violated treaty obligations was produced, or not enough to detain the prisoner, he should be discharged; but it was not competent for the Japanese consul to ask for the charges, as General Le Gendre was not under his jurisdiction, and Japanese law could not interfere. I conclude further, that there was no infraction of the rights of nations in your acts, nor anything in them "contrary to the privileges and immunities which public commissioners enjoy in civilized countries," as Mr. Gosheki expresses it. The case is no doubt a singular one, but the Japanese government will clearly understand that their employment of American citizens does not remove such persons from the paramount claim of their own national laws, wherever those laws reach. Neither does an engagement in either of the above-mentioned callings by the Japanese government, when there was no hostile expedition started against China, authorize American citizens to engage further in active hostilities under the Japanese flag, and screen themselves by their previous obligations to serve their employers, as releasing them from their duty to keep the peace with China, while within her limits. I am, &c., [Inclosure 4 in No. 57.] S. WELLS WILLIAMS. Protest of C. W. Le Gendre against his arrest by the United States consul at Amoy, August 7, 1874. Selected by the government of Japan to come to Southern China, and represent it here on a mission of peace as its special commissioner, I solemnly protest against the violence used toward me by the authorities of the United States at Amoy, in depriving me of my liberty, and forcibly and against my will bringing me before them, in virtue of a warrant, in which, in violation of all principles of law, no mention of the offense or crime of which I must necessarily be accused is mentioned. My quality as a United States citizen, and my connection as such with the Japanese government, while the latter is engaged in carrying out a scheme of pacification within the boundaries of aboriginal Formosa, cannot be invoked (as it may ultimately be) by the United States authorities in justification of their act, for the very nature of the duties which I have come here to perform entitles me to certain privileges and immunities which both China and western powers are bound to respect; and by depriving me of my liberty, while thus vested with this character, this court has committed toward Japan an unfriendly act, which that country cannot fail to resent, and which, in the course of time, the United States, in their well-known policy of justice, will certainly regret. While as a public officer of Japan, I turn my eyes toward the United States and protest against the wrong which I am now made to suffer, and for which I claim redress 23 a citizen of these same United States, I feel deeply grieved for the error which I believe has been committed here by this court. This error is the more apparent when we come to consider the different circumstances under which the American authorities might have been placed in their relations with me in my double capacity as Japanese officer and United States citizen. I will suppose the worst case; that is, that the late action of Japan in aboriginal Formosa constituted an act of war against China, or, as some have called it, a war without declaration. * * to enter its service, * # * * It must be remembered that I was engaged by the Japanese government long before the Formosa mission started. Now, the treaty of 1858 between the United States and Japan says that Japan shall have the right to engage in the United States * naral and military men provided that such persons shall not be engaged to act in a naval or military capacity while Japan may be at war with any power in amity with the United States, and I do not think that this proviso prohibits Japan from employing American citizens to act in a military or naval capacity who have been engaged before Japan went to war. Neither does the act of Congress passed April 20, 1818, commonly called the "neutrality law;" for, when I accepted my present task under the Japanese government, I was without the jurisdiction of the United States. Now we come to the act of 1860. In passing this act the object of Congress was to arm the ministers and consuls of the United States in China, Japan, and Siam with certain powers that would enable them to carry into effect the treaties with those powers, for which purpose previous jurisdiction was insufficient. It provides that "it shall be competent for each of the said ministers to issue all manner of writs 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 power with whom the United States are at peace or in the service of one portion of the people against any other portion of the same people, and he may carry out his power by a resort to such force as may at the time be within his reach belonging to the United States." However stringent this law may appear at first sight, it can have but very little bearing upon the case at issue. It is, it is true, a law of the United States, binding, so far as it goes, upon all American citizens. But the treaty of 1858 between Japan and the United States is also a law of the United States. Mr. Wheaton says: "Under the Constitution of the United States, by which treaties made and ratified by the President. with the advice and consent of the Senate, are declared to be the supreme law of the land, it seems to be understood that the Congress is bound to redeem the national faith thus pledged, and to pass the laws necessary to carry the law into effect." (Wheaton's International Law, section 226, page 339.) Now, we have seen that, by the terms of the treaty of 1858 between Japan and the United States, persons who retain the character of citizens of the United States and are in the service of Japan may, without blame to themselves or Japan, serve that country in a war begun after their entering the service. If so, how could Congress, which was bound under the Constitution to legislate for the purpose of carrying into effect the terms of the treaty, pass a law that would virtually set at naught the provisions of this same treaty? In vain would we agree that the law of 1860 applies to United States citizens and not to Japan. It is beyond question that Japan can claim certain privileges from the United States under the terms of the treaty of 1858. If, by depriving United States citizens of a certain proportion of their liberty in their relations with Japan and her people, either or both are debarred from enjoying these privileges, and if the enactment of the law of 1860 is the means of doing this, I say that the law of 1860 never could have been understood by the framers thereof to apply to Japan, and that it was never intended that it should. Now, we must not forget that the law of 1860 was framed chiefly because some American adventurers, notably Ward and Burgevine, had taken an active part in the troubles between the Chinese government and the Tai-Ping rebels, Burgevine having given his aid in turn to both sides. Congress was anxious to prevent, by legislation, the recurrence of such proceedings, not only in China, but in all the countries where it was likely they might again take place, and, to prevent all possible transgression of the law, this body extended the prohibition from enlisting in the service of contending parties in cases of civil wars among those nations to entering the army or navy of either of those countries while at war with some power with whom the United States have treaties of peace and amity. In what relates to China or Siam, neither of which has such a clause her treaty as the one referred to above, this law can be carried out, but it cannot be legally enforced in the case of Japan. It could be, however, were the law to be embodied in a new treaty, but it has not been so embodied, and, until it has been, it cannot affect or modify the treaty of 1858 without the express consent of Japan in every In the present instance we must infer that this consent has not been given from the fact that, contrary to the stipulations of the law of 1860, but in accordance with the terms of the treaty of 1858, an American was engaged by the government of Japan to serve in connection with the Formosa mission previous to a declaration of war against either the aborigines of the island or the Chinese Empire, and the provisions of this same treaty can be invoked by both Japan and the citizens of the United States in justification of their acts in all the courts where the laws of the United States are enforced. CHS. W. LE GENDRE. case. AMOY, August 7, 1874. No. 191.] No. 153. Mr. Fish to Mr. Williams. DEPARTMENT OF STATE, Washington, October 23, 1874. SIR: Referring to your dispatch No. 54, in relation to the case of Walter Jackson, who was charged with the crime of piracy and assault with intent to commit murder on board a British vessel on the high seas, I inclose for your information a copy of an instruction* of this date, addressed by the Department to Mr. George F. Seward, the consul-general of the United States at Shanghai, in reference to this case. I am, &c., SIR: I transmit herewith for your information a copy of dispatch, No. 425, of the 2d instant, addressed by this Department to Mr. George F. Seward, consul-general of the United States at Shanghai, in relation to the arrest of General Le Gendre, late consul of the United States at Amoy, on account of his connection with the Japanese expedition to Formosa. I am, &c., Amoy, June 1, 1874. (Received July 20.) SIR: I have the honor to inform you that through the courtesy of Commander A. Kautz, of the United States steamship Monocacy, last week, I had the pleasure of visiting Liang Kiau Bay, in Formosa, where the Japanese forces are encamped. (See my dispatch No. 28.) We started from Amoy on the evening of the 27th ultimo, and arrived at Takao roads at sundown on the following day, where we had intended remaining over night, but the weather was so stormy we were unable to land, and after lying at anchor some three hours, proceeded down the coast against a strong southwest monsoon, and at daylight next morning anchored at Liang-Kiau Bay. This bay is formed by a small curvation in the shore-line, and affords not the slightest protection against the southwest monsoon. Consequently a heavy sea was breaking upon the shore in front of the Japanese camp, rendering it im* See instruction No. 424 to consul-general at Shanghai. + See infra. |