Wells Williams to Hamilton Fish, September 3, 1874

No. 152. Mr. Williams to Mr. Fish.

Sir: Since my dispatch of the 22d ultimo (No. 55) was sent to the Department nothing decisive has taken place between the Chinese and Japanese ministers in this city in reference to the Formosan question. There have been long and excited discussions between them, but I suppose the chief reason for delay has been the appointment of a new envoy from Yedo, who comes with full instructions. The interval has been diligently occupied by both parties in mustering their forces in readiness for the coming strife; and the people on the coast are becoming enthusiastic in the affair, owing very much to the circulation of two or three native newspapers. Yet my strong belief is that the Peking government does not relish or desire the struggle, and is ready to take any measures to restrain the tribes in Formosa from repeating their violence, if the Japanese will leave.

I am so confident that you have been informed of every important particular connected with the arrest and discharge of General Le Gendre, by the consuls at Amoy and Shanghai, that I shall not repeat what they have written about it. Mr. Seward has sent me a copy of his dispatch No. 797, in relation to it, and I only refer to it in this place in explanation of the following short extract from a reply sent him on the 31st ultimo:

In view of the whole question, and the difficulty of finding witnesses to prove charges against General Le Gendre of having violated the neutrality act, I think you could hardly have done otherwise than discharge him. To send him to Japan for trial would have also been attended with the same difficulty of proving the charges or of getting the attendance of witnesses. The arrest has, however, had its effect in showing the Chinese our desire to carry out treaty stipulations.

I, however, inclose copies of the protest of Mr. Go Sheki, acting Japanese consul at Amoy, with Mr. Henderson’s reply, and my dispatch to him upon it, (June 1, 2, and 3,) and General Le Gendre’s protest, (inclosure 4,) in order to facilitate reference to them. These protests involve one or two points in international law which, so far as I can learn from Wheaton, have not been prominently brought forward in treatises on the subject.

In Europe, where Turkey is the only power under the restraint of the ex-territoriality law, there has been no risk of one of her envoys being interfered with as he went over the continent by entering into the limits of a nation where the same ban prevailed, and, therefore, the question of the status and privileges of her diplomatic agent in the territories of the other could not arise. Neither would it enter into her view to appoint as her envoy anybody beside one of her own subjects to represent her abroad, and especially in a state subject to the same disabilities, and this would prevent this point of his immunities coming up.

In General Le Gendre’s case, it has happened that the Japanese consul claims for him immunity against the jurisdiction of his own national authorities, simply on the ground of his enjoying the privileges of a diplomatic agent. This protest states, for the first time to my knowledge, that General Le Gendre was “His Imperial Japanese Majesty’s special commissioner in China,” but no such announcement was made by the Mikado’s government to the United States legation in Japan before he left that country. None of the Japanese officials in China have informed this legation or the United States consuls of the appointment, and it seems to me that this act of courtesy was necessary as a preliminary to his being accepted as a commissioner by the Chinese officials. General Le Gendre came to Peking last year as one of Soyeshima’s suite, but that subordinate position was altogether different from the present one claimed for him. But whatever his own national authorities might say or claim in the premises, I think that until he had presented his credentials, and been acknowledged by the Chinese government as a diplomatic officer, he could not be considered as such by any one. No Japanese official had informed the Chinese authorities, so far as I know, that he had been sent on a diplomatic mission by the Mikado, and his pretended national character could not be claimed in immunity of arrest by the United States consul.

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In view of all these things, I conclude that the protest of Mr. Go Sheki is entitled to no weight, and that he had no grounds for making it. To allow its propriety in any degree would allow the Japanese government the right to employ American citizens in China to carry on its hostile operations against the peace of this country. It would compel American consuls to see their countrymen plotting in China against its government, and disregarding the obligations of treaty without the power vindicating the dignity and position of the United States.

In his protest General Le Gendre lays great stress on the fact that as he was engaged by the Japanese government in accordance with Article X of the American treaty, before it invaded Formosa, or committed any hostile act, and with the permission of the United States minister in Japan, he is, therefore, to obey all its orders during those hostilities. That article allows the Japanese government to engage American citizens in the United States (and elsewhere, too, I infer) in any lawful capacity, but his deduction that such an engagement carries with it permission to break a treaty-right is fallacious. To say, in addition, as he does in the same paragraph, referring to the neutrality act, that he is beyond its application because when he accepted his present task he was without the jurisdition of the United States, is even still more so, for neither in China nor Japan can he place himself without that jurisdiction.

It seems to me that his protest shows throughout a singular misconception of the application of the laws he quotes. Article X is brought forward to release himself from United States jurisdiction in China, because he had been engaged by the Japanese before they had committed any hostile act within Chinese territory, and because this article was a law before the act of Congress of June, 1860, and therefore is paramount to it. But in my view there is no difference between being engaged while Japan is at war with any power in amity with the United States, and afterward engaging in active hostilities after entering her service because she ordered it. The plain intent of the proviso is to restrain American citizens from aiding Japan in any military or naval capacity at any time or place out of her own territory; and a subsequent state of war must work the same disability that an actual state would have done at the time of engagement.

General Le Gendre has rather altered the meaning of the proviso by changing the phraseology, but I do not suppose he intended to do so in any degree. It reads: “Provided, That ho articles that are contraband of war shall be exported [from the United States], nor any persons engaged to act in a naval or military capacity, while Japan shall be at war with any power in amity with the United States.” He quotes it, “that such person shall not be engaged to act,” &c., in order, apparently, to fortify his inference as to the time of engagement, and prove that subsequent hostilities could have no retrospective action in invalidating his freedom to serve the Japanese in a war against China.

His remark, that the act 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 Taiping rebels, Burgevine having given his aid on both sides,” is erroneous. When the act was framed in 1860, the proceedings of General Ward were hardly known in the United States, and Burgevine’s career was from 1863 to 1865.

Even if he is correct in assigning this reason for inserting the clause in section 24, that it referred primarily to civil wars, his deduction, that the stipulation in the prior treaty with Japan overrides it, is unsound, for as soon as a person engaged in the service of Japan leaves that country and arrives in this, he comes under the operation of the treaty with China. He cannot quote the treaty with one belligerent to do wrong to the other, by breaking its treaty, and that with China should 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, because 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 Consul 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.,