Protest of C. W. Le Gendre against Ms arrest by the United States consul at Amoy, August 7, 1874.

Protest of C. W. Le Gendre against Ms 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 as 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.

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 * * * naval and military men * * * to enter its service, * * * provided that such persons shall not he engaged to act in a naval or military capacity while Japan may he 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 bouud 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 enlistiug in the service of contending parties in cases of civil wars among those nation’s 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 Siarn, neither of which has such a clause in 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 case. 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.