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While the Department appreciates the earnestness and sincerity of your purpose, and approves of the vigilance manifested by the representatives of the Government in enforcing the laws for the maintenance of the neutrality of this Government and of its citizens, in case of war between other powers with which the United States may be at peace, or in case of insurrection within the jurisdiction of a friendly power, care should be observed that the representatives of the Government do not themselves transcend the limits of the laws, or assume powers not granted to them.

Your notification of the 16th of June, of which a copy accompanies your dispatch, is open to many of the objections stated in my No. 409 to Mr. Seward, accompanying my No. 20 to you, to the notification therein referred to.

It threatens "arrest and trial for violation of the laws of neutrality." Neutrality implies the existence of a state of war.

This Government is not advised of the existence of war between China and Japan. If such condition exists, and a notice or proclamation be called for and justified, it should itself be impartial and warn against unlawful aid to either party belligerent, and not threaten penalties only against those who may transgress on one side.

The Department is not in possession of the authority by which you issue the notification of June 16, "by instruction from Hon. S. Wells Williams, United States chargé d'affaires, Peking."

In the instruction No. 409 the power of the minister in Japan or in China to issue writs in maintenance of the neutral obligations of this Government was referred to, and the exclusiveness of that power in the minister was noticed.

I am, sir, &c.,

No. 170.

HAMILTON FISH.

No. 184.]

Mr. Fish to Mr. Williams.

DEPARTMENT OF STATE,

Washington, September 8, 1874. SIR: Referring to my No. 179, I transmit herewith for your information and guidance a copy of a dispatch of July 11, 1874, from J. J. Henderson, esq., our consul at Amoy, transmitting a copy of a proclamation issued by him on the 16th of June, 1874, and correspondence relative to the participation of citizens of the United States in the Japanese expedition to Formosa, and a copy of my reply of the 4th instant, No. 21.

I am, &c.,

HAMILTON FISH.

No. 186.]

No. 171.

Mr. Fish to Mr. Williams.

DEPARTMENT OF STATE,

Washington, September 12, 1874.

SIR Referring to your dispatch of July 7, No. 44, relating to the joint trial at Chifu of persons who attacked Mr. Corbett, an American mis

* See correspondence with Mr. Henderson, ante.

sionary at Chimi, I take pleasure in stating that your course in relation to the matter is regarded by the Department as prudent and fair, and that Mr. Sheppard has the cordial approval of the Department for the firmness and discretion displayed by him in conducting the case.

I am, &c.,

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SIR: The Department has received your dispatch No. 797, dated August 11, 1874, in reference to the arrest of Colonel Le Gendre, late consul at Amoy, and to which is annexed the telegraphic correspondence between Mr. Henderson, consul at Amoy, and yourself upon the question. The Department is not advised of the termination of the proceedings, nor whether General Le Gendre has been held for trial, or what course has been finally adopted.

It does not clearly appear to the Department that a state of hostilities exists between China and Japan, nor is the Department precisely informed that General Le Gendre had actually accompanied the expedition to Formosa, nor whether he had committed any act within the jurisdic tion of the consul at Amoy, or of any other consulate, for which he could be arrested and brought to trial, nor is the Department advised of the precise offense charged against him, and for which the arrest was made. In the absence of information on these points, and particularly in the absence of information concerning the precise charge made against General Le Gendre, and the proof supporting it, and of the authority to make the arrest, the Department withholds its approval and any expression of opinion. It is therefore desired that a full statement upon all these particular points be furnished, with details of the various steps and present position of the case.

The Department has had occasion to refer to these general questions growing out of the Formosa expedition in a late dispatch.

I am, &c.,

No. 173.

J. L. CADWALADER,

Acting Secretary.

No. 420.]

Mr. Cadwalader to Mr. Seward.

DEPARTMENT OF STATE, Washington, October 20, 1874. SIR: The Department has received and read with interest your No 798, in reference to telegraphs in China, and your efforts in that direction, and to which you attach a correspondence between yourself and several consuls, with a draft of a proposed agreement between the provincial authorities at Foochow and the Northern Telegraph Company. The Department approves your general efforts and the general efforts of the consuls of the United States in China to promote the establishment of telegraph lines, and the general policy of inducing the author

ities to favor and not oppose such work. As to the particular advantage to accrue to the Chinese or to other governments by granting concessions to any particular company or individuals, or as to the form of agreements in such cases, the Department, being without information, withholds any expression of opinion.

The Department has full confidence, however, that, in dealing with this subject, general public considerations will be considered as superior to the advantage of any particular corporation or body.

I am, sir, &c.,

JOHN L. CADWALADER,
Acting Secretary.

No. 174.

No. 424.]

Mr. Cadwalader to Mr. Seward.

DEPARTMENT OF STATE, Washington, October 23, 1874. SIR Referring to the case of Walter Jackson, and to your dispatch. 800, of August 27, with your correspondence with Mr. Williams and with the colonial secretary at Hong-Kong on the subject, as attached thereto, I have to say that this Department has again considered the questions submitted in the light of all the facts now presented by you. It appears that Walter Jackson was charged with piracy and assault on board the Satsuma, a British vessel, that he escaped from Hong-Kong, was arrested upon a telegram at Shanghai, and as a citizen of the United States claimed your protection; that you thereupon detained him, and in answer to the demand for his rendition, made by the Hong-Kong anthorities, informed them that you would consider a request for his delivery, but stated that you were under no obligation to deliver him except in accordance with the rules for extradition of criminals as settled by treaty between the two governments. The Hong-Kong government, learning that Jackson was a citizen of the United States, forthwith declined to proceed further against him, and afterward submitted to you a copy of an opinion of the attorney-general concerning your action in the matter.

The simple question, therefore, is, had you a right to detain a fugitive from British justice at Hong-Kong, found within your consular jurisdiction, or to deliver him up under the extradition treaty between this country and Great Britain? Other questions doubtless arose in your correspendence with Mr. Williams, but that is the important and vital point. In the opinion of the Department, no doubt can exist on this question. The extradition treaty between Great Britain and the United States entitles the British authorities to demand the rendition of persons charged with the commission of the particular crimes mentioned in the treaty, within the jurisdiction of Great Britain, who shall seek an asylum or be found within the territorial limits of the United States, upon a compliance with the provisions of the treaty and of the law to enforce such provisions.

In the case of Walter Jackson all the elements were wanting except the offense charged against him, and extradition proceedings were entirely inapplicable to the case.

Upon the facts shown by you he had escaped from Hong-Kong into the jurisdiction of a foreign country, from which, in the absence of any treaty of extradition, there was no power to return him.

In this view, therefore, all discussion with the colonial authorities at Hong-Kong looking to the rendition of fugitives from British justice who have taken refuge within your consular jurisdiction is inadmissible. The authorities of Hong-Kong seem to concur entirely in this opinion, as shown in their action, declining to make any demand for Jackson, although invited to do so.

Hong-Kong being British territory, the Department does not wish to be understood as holding the converse of the proposition, or as assuming that, in a proper case, the authorities of the United States could not demand the extradition of a fugitive from the justice of the United States who had there sought and found an asylum.

Apart from all questions of extradition, if Jackson was, as represented, a citizen of the United States, and had been arrested and claimed your protection, it was doubtless your duty to interfere in his behalf and to investigate his case. If he had been illegally arrested, it was proper that through your efforts he should be set at liberty. Such action would be proper in any case.

The objection to your proceedings in this case is not that you interfered in his behalf, but that you proposed to deliver him to the HongKong authorities under the extradition treaty, or by means of such proceedings, to be tried for an offense committed against Great Britain.

Such part of your correspondence with Mr. Williams as refers to jurisdiction over persons on board ships in the waters of China is not referred to, as having no necessary bearing in the questions here discussed. I am, &c.,

J. L. CADWALADER.

No. 175.

No. 425.]

Mr. Cadwalader to Mr. Seward.

DEPARTMENT OF STATE, Washington, Nov. 2, 1874. SIR: Your dispatch, No. 811, with its inclosures in reference to the arrest of General Le Gendre, late consul at Amoy, informing the Department of the proceedings taken, and of his final discharge from custody, has been received, and read, in connection with your 797 and Mr. Henderson's Nos. 42 and 44, with careful attention.

As the Department has had occasion in late dispatches, addressed to yourself and to the ministers of the United States in China and Japan, to refer to the questions arising out of the participation of citizens of the United States in the late expedition against the natives of Formosa, reference is had thereto for the general views therein expressed, confining the present dispatch to the particular case now presented.

The dispatches which have been received leave the Department without information upon several points; but from the facts now in its possession, the position of the case appears to be as follows: About December, 1872, General Le Gendre entered the Japanese service, but the precise nature of his employment does not clearly appear. He was reported to have entered in some capacity connected with the foreign office, although it is stated by you that he has acted as a "military adviser." Having taken part in the organization of the expedition about to proceed to Formosa, he was detached through the efforts of Mr. Bingham, and the expedition departed without him. That he has taken any further part in it, directly or indirectly, does not appear, and he is reported as arriving in China, having gone from Yokohama to HongKong, thence to Swatow and Amoy. On his arrival at the latter place

instructions were asked by Mr. Henderson, who stated that he was presumed to be on his way to Formosa.

In answer to his request instructions were given by you to Mr. Henderson to arrest him, and he was arrested at Amoy upon the 6th of August. He thereupon filed a protest in the consular court, alleging, among other things, that the warrant on which he was held contained no mention of any offense, and insisting that his entry into the Japanese service was lawful and permitted by the treaty, and that his continuance therein was not in violation of any law of the United States. At his request he was forwarded to Shanghai, and on his arrival, pursuant to the suggestion of Mr. Williams, and by your direction, was discharged from custody. These appear to be the facts as they have been communicated to the Department concerning the arrest.

Many considerations have been advanced by you, tending to show the animus of General Le Gendre toward the Chinese, and the object of his original employment and his visit to China, but all such are, at the most, argument or conjecture.

General Le Gendre was a citizen of the United States who had rendered patriotic and valuable services to his Government, who had lately held the very consulate in which he was arrested, and was represented to be attached to an important mission from the Mikado to the Emperor of China.

On all these grounds a criminal proceeding should not have been commenced against him without grave cause, and only for an offense to substantiate which ample evidence existed. In judging of the legality of this arrest, and of the propriety of his discharge from custody, it is necessary to know precisely the charges and the evidence at hand to support them. Upon these vital points the dispatches in possession of the Department give almost no information.

Exhibit No. 8, attached to your No. 811, being a form of warrant not filled out, and unsigned, is probably intended as a copy of the general form of the warrant on which the arrest was made.

It contains no charge of the commission of any particular offense, no statement of any facts based on which the warrant had been issued, and no mention of any complaint or information having been made. It is true that Mr. Henderson, in his letter of the 10th of August to the acting Japanese consul, states that "General Le Gendre was arrested by me in the United States consulate, upon a charge of advising, aiding, and abetting an expedition in hostility to the government of China, in violation of the laws of the United States and their treaty with China," and in his No. 10, to Mr. Williams, a copy of which was forwarded with his No. 42, to the Department, he states that he has arrested him for aiding the Japanese armed forces in the invasion of the island of Formosa, and these are the only approaches to any distinct statement of a charge.

The offense in each case here referred to is indefinite; no designation is made of the time or place when or where it is alleged to have been committed, and no allegation of the citizenship of the offender, or statement of the particular facts or legal provisions making the act an offense.

By the provisions of the act of 1860, as appears by sections 2 and 7, power is given to the consuls of the United States in China to arraign and try citizens of the United States charged with offenses against law which shall be committed in China, and such provisions are substantially the same in the Revision. (See §§ 4084, 4087.)

It is recognized in general as a part of the jurisprudence of this country, that offenses shall be tried where committed.

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