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The function with which you are thus charged, with the consent of the Government to which you are accredited, is one that calls for the exercise of personal judgment and discretion. It is an unofficial, not an official, function. A minister of the United States can not act offi. cially as the diplomatic representative of another power, such an official relation being prohibited by the Constitution of the United States. But apart from this fact the circumstances under which the function in question is to be discharged imply personal and unofficial action. The state of war into which Japan and China have entered is inconsistent with the continuance of diplomatic intercourse between them. Your position is that of the representative of a neutral power, whose attitude toward the parties to the conflict is that of impartial amity. Your interposition in behalf of the subjects of one of them is not to be considered as an act of partisanship, but as a friendly office performed in accordance with the wishes of both parties. This principle you are constantly to bear in mind, in order that, while doing what you can consistently with international law for the protection of the interests of Chinese subjects in Japan, you may not compromise our position as a neutral.
By consenting to lend its good offices in behalf of Chinese subjects ir. Japan, this Government can not assume to assimilate such subjects to citizens of the United States, and to invest them with an extraterritoriality which they do not enjoy as subjects of the Emperor of China. It can not assume to hold them amenable to the laws of the United States or to the jurisdiction of our minister or consuls, nor can it permit our legation or consulates to be made an asylum for offenders against the laws from the pursuit of the legitimate agents of justice. In a word, Chinese subjects in Japan continue to be the subjects of their own sovereign, and answerable to the local law to the same extent as heretofore. The employment of good offices in their behalf by another power can not alter their situation in this regard.
On several prior occasions the Government of the United States has permitted its diplomatic and consular representatives to exercise their good offices in behalf of the citizens or subjects of a third power, as in Mexico in 1867, and in the Franco-German war in 1870. For many years good offices have been exercised by our diplomatic and consular representatives in behalf of citizens of Switzerland in China, as well as in other countries where the Swiss Republic is without such representatives. In this relation it is proper to refer to an instruction of this Department to its diplomatic representative in China, of July 25, 1872, in which the protection to be extended by our minister and consuls to Swiss citizens in that country is defined as follows:
The protection referred to must necessarily be confined to the personal and unoffi. cial good offices of such functionaries. Although when exercised to this extent merely this can properly be done only with the consent of the Chinese Government, that consent must not be allowed to imply an obligation on the part of a diplomatic or consular officer of the United States in that country to assume criminal or civil jurisdiction over Swiss citizens, or to make himself or his Government accountable for their acts.
But, while you are to act unofficially, you will carefully examine any complaints that may be laid before you in behalf of Chinese subjects, and make such representations to the Japanese Government as the circumstances may be found to warrant; and in all ways you will do what you can, consistently with the principles heretofore stated, for the protection of Chinese subjects in Japan and their interests. I am, etc.,
W. Q. GRESHAM.
Mr. Uhl to Mr. Dun.
DEPARTMENT OF STATE,
Washington, September 1, 1894. SIR: I have to acknowledge receipt of yours of the 31st of July, with which was inclosed copy of your instruction to the United States consuls in Japan to use their good offices to protect Chinese subjects in Japan.
Mr. Gresham's telegraphic instruction, sent to you on the 29th ultimo and confirmed in mine of the 31st ultimo, will suggest to you the proper limitation to be set to the exercise of the unofficial good offices of our consuls as the representatives of a friendly power and not as charged with Chinese consular functions. I am, etc.,
EDWIN F. UHL,
Mr. Dun to Mr. Gresham.
LEGATION OF THE UNITED STATES, Tokyo, Japan, September 1, 1894. (Received Sept. 22.) SIR: On the 27th ultimo I received from Mr. Jernigan, United States consul-general at Shanghai, a telegram to the effect that two Japanese, accused by the Chinese authorities of being spies, were at that time in his consulate; that the alleged spies were boys; that they had been students at Shanghai for three years, and that they had papers in their possession such as any intelligent boys might have. Mr. Jernigan requested me to act promptly in behalf of the accused young men.
I felt that it was difficult for me to do anything in the matter. However, I called at the foreign office here and ascertained that the young men in question were, as stated by Mr. Jernigan, students, and was assured by Mr. Hayashi, vice-minister for foreign affairs, that they were entirely guiltless of the offense charged. At Mr. Hayashi's request, I telegraphed to Mr. Jernigan to wire me the names of the young men, and also telegraphed to Mr. Denby that the young men were not spies, and asked him if the Chinese Government would not postpone action in the matter until his father, Minister Denby, arrived, stating that he was expected here on September 2. I have the honor to inclose reading of my telegram to Mr. Denby herewith.
I have since ascertained that I was misinformed as to Minister Denby's movements, and that he will not reach Japan at the time named in my telegram.
I also have the honor to inclose copy of a statement prepared by Mr. Yenjiro Yamada, late of the Japanese consulate-general at Shanghai, in regard to the two young men. I have sent a copy of this statement to Mr. Jernigan for his information.
It seems that the young men accused of being spies are students in a commercial school established some years since at Tokyo, with a branch at Shanghai, the object of which was to impart a knowledge of the commerce of China and Japan and to promote the trade relations between the two countries. I have, etc.,
(Inclosure 1 in No. 157.—Telegram.]
TOKYO, August 27, 1894. Japanese at the consulate, Shanghai, are not spies. Your father is expected here September 2. Won't Chinese Government postpone action until arrival?
[Inclosure 2 in No. 157.-Statement.]
AUGUST 29, 1894. The two Japanese, Kusuuchi and Fukuhara, who were arrested under suspicion of being spies, have been living in Shanghai for the past four years for the purpose of studying the Chinese language, and at the same time of investigating into the trade. It appears that last spring they made a visit to Hankow and one of them, i. e., Kusuuchi, also to Soochow, in order to study commercial transactions, but they went to no other part of the interior.
They have been wearing Chinese costumes since about a year and a half ago, but this is a very common habit among young business students in China for the reason that they can thus secure many facilities in learning the language and commercial intercourse with the natives. They do so also because they have very limited means, and they can live more economically by adopting Chinese customs. Besides these there are no other special objects in view for wearing Chinese costumes.
Mr. Gresham to Mr. Dun. No. 128.]
DEPARTMENT OF STATE,
Washington, September 22, 1894.. Sir: Your dispatch of the 1st instant, relative to your efforts to secure the release of two Japanese boys, under arrest at Shanghai, charged as spies, has just been received.
In exercising your good offices in Japan in behalf of Chinese subjects there you act unofficially and not officially. In this new relation you and our consuls in Japan do not sustain to China and Chinese subjects the relation which the Chinese minister and consuls in Japan sustained to them. This will appear clear enough, I think, from my instructions of August 29 and September 1, respectively, and the inclosed copy of an instruction of the 18th instant to our chargé d'affaires at Peking.
The Chinese minister here agreed that the two alleged Japanese spies should not be tried until Colonel Denby returned to China. I am, etc.,
W. Q. GRESHAM.
Mr. Dun to Mr. Gresham. No. 181.]
LEGATION OF THE UNITED STATES, Tokyo, Japan, October 23, 1894. (Received November 13.) SIR: I have the honor to acknowledge the receipt of your instrnction of the 22d ultimo relative to the two Japanese boys under arrest at Shanghai charged as spies.
* See page 117.
In connection with the last paragraph of your instruction, in which you inform me that the Chinese minister at Washington “ agreed that the two alleged Japanese spies should not be tried until Colonel Denby returned to China," I regret to say that the young men in question were executed at Nankin on the 8th instant, before the colonel bad reached Shanghai. I have, etc.,
Mr. Adee to Mr. Dun.
DEPARTMENT OF STATE,
Washington, November 1, 1894. SIR: I inclose herewith for your information and the files of the legation copy of a dispatch of the 30th ultimo, sent to Mr. Denby, United States minister at Peking, in regard to the arrest of two Japanese spies at Shanghai and their delivery into the custody of the Chinese author ities. I am, etc.,
ALVEY A. ADEE,
CONSULAR JURISDICTION OVER CIVIL SUITS-CASE OF GEORGE W.
Mr. Dun to Mr. Gresham.
LEGATION OF THE UNITED STATES,
(Received January 19, 1894.) SIR: On the 14th instant I received information from His Imperial Japanese Majesty's minister for foreign affairs to the effect that one Lake, a citizen of the United States, had been deported from Nagasaki, Japan, in conformity with Article vii of the treaty of 1858 between the United States and Japan; that the said Lake having returned to Nagasaki without permission in January of the present year, W. H. Abercrombie, esq., United States consul at that port, had informed the Japanese authorities of Nagasaki Ken that the said Lake was an outlaw, and that he (the United States consul) had withdrawn from him the official protection of the United States, and that the said Lake was therefore no longer subject to the jurisdiction of the United States consular courts in Japan, but was in all cases subject to Japanese jurisdiction. I was further informed that Mr. Abercrombie's action in this matter did not accord with Article vir of the treaty as interpreted by His Imperial Japanese Majesty's department for foreign affairs, and I was requested, in case my views concurred with those of the department for foreign affairs, to take such action as I might deem proper to rectify what was by them considered an error in judgment on the part of Mr. Abercrombie. I at once telegraphed to Mr. Abercrombie (see first telegram embodied in inclosure 1) to the effect that, having received this information from the department for foreign affairs,
1 See page 119.
I advised him under concluding paragraph of Department instruction No. 158, Foreign Relations, 1879, page 698, “that American consuls can in no case refuse jurisdiction over American citizens.”
On the 15th instant I received from Mr. Abercrombie the telegram from him embodied in inclosure 1, and on the same day I sent him in reply my second telegram, embodied in inclosure 1. On the 18th instant I mailed to him my dispatch (inclosure 1) No. 26, of date the 18th instant, embodying copies of the above-mentioned telegrams, and giving him at some length my opinion in regard to the correct interpretation of Articles vi and viI of the treaty.
On the 20th instant I received from Mr. Abercrombie a dispatch, dated the 16th instant, a copy of which and its inclosures I have the honor to inclose herewith, giving a history of the case of G. W. Lake from the time of his deportation in 1871 and of his (Mr. Abercrombie's) action in the matter since Lake's return to Nagasaki in January, 1893, and inclosing a copy of the correspondence between the Japanese authorities at Nagasaki and himself in connection with Lake's return.
On the 21st instant I visited the foreign office, and had an interview with Mr. Mutsu, His Imperial Japanese Majesty's minister for foreign affairs, relative to the matter under consideration.
I frankly expressed to Mr. Mutsu the same views, in substance, in regard to jurisdiction that I had sent as an opinion to Mr. Abercrombie in my dispatch of the 18th instant. Mr. Mutsu said that he fully concurred in the opinion that the Japanese authorities could not, under the treaty, assume jurisdiction over an American so long as he was recog. nized as a citizen of the United States, and he informed me that instructions had been sent to the Japanese authorities at Nagasaki not to take jurisdiction at this time over Lake. But, he said, this man Lake is in Japan in violation of the stipulations of Article VII of the treaty, and it is in the expectation that the obligation implied by those stipulations will be fulfilled by the United States that the Japanese Government has sent those instructions; and that, in case the United States authorities should continue to refuse to exercise jurisdiction over Lake, a contingency that he did not anticipate, he could not say that in such case the Japanese Government would not regard him as a man without a country, and assume jurisdiction over him accordingly.
I informed Mr. Mutsu of the communications I had made to Mr. Abercrombie, and expressed my conviction that that gentleman would exercise jurisdiction, but that I would again telegraph to him strongly advising him to do so; and that in case Mr. Abercrombie should find himself unable to act in accordance with the opinion I had expressed I should submit the matter by telegraph to my Government for instruc-tions. In consequence of this interview I telegraphed, on the 21st instant, Mr. Abercrombie (inclosure 3) to the effect that the Japanese authorities would not interfere with' his exercising jurisdiction over Lake, and that I strongly advised him to do so. On the same day I received a telegraphic reply inclosure 4) from Mr. Abercrombie, saying that he would assume jurisdiction as advised.
It seems to me clear that Mr. Abercrombie's action in this matter has been dictated by an erroneous construction of the treaty of 1858, of the laws of the United States, and of the instructions from the Department.
That an American citizen not beyond the reach of lawful authority, and entirely subject to any penalty that that authority may lawfully impose, can be declared an outlaw appears to me to be in conflict with