SIR: The Department is in receipt of your dispacth, No. 766, of June 23, ultimo, referring to Mr. Henderson's No. 32, and inclosing copies of your correspondence with him concerning the assistance asked of him by the Chinese authorities in reference to the expedition to Formosa. By the same mail Mr. Henderson's No. 32, containing a copy of his notification to the Americans said to be engaged in the expedition, was received. In your letter to Mr. Henderson you pronounce the final clause of his notification not sufficiently stringent, and refer to the provisions of the act of 1818. A copy of Mr. Henderson's notification is annexed.* While this Department agrees that it is the obligation of this Government promptly and effectively to punish offenders against the law who may be American citizens, whether in China, or in Japan, or elsewhere wherever the laws of the United States may be enforced, at the same time there must be some actual violation of law to justify an interference. The Government does not attempt to impose restrictions upon individual enterprise or commercial ventures of American citizens which involve no violation of law. An examination of Mr. Henderson's notification shows it to have been issued in his official capacity as consul, on a complaint made to him by the Chinese authorities. It is addressed to all citizens of the United States, who are commanded to at once withdraw, and thereafter abstain from, all enterprises unfriendly to the Chinese government. It declares that any citizen of the United States who shali refuse to comply therewith, or who shall offend against its provisions, shall forfeit the protec tion of the United States. This Department is at a loss to discover the power or right of the consul to issue a proclamation or notification of this character. Under the provisions of the act of 1860, authority is given to the ministers of the United States in China and Japan "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 foreign 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 [the minister] may carry out this power by a resort to such force as may at the time be within his reach belonging to the United States." This is an extraordinary power, conferred upon the minister alone, in a certain emergency, and within fixed limits. It is conferred upon him in consequence of the extraterritorial rights reserved in the countries named in the act to the citizens of the United States. The power is given to the minister alone, and is not shared by the consul. But the notification of Mr. Henderson is his own act, issued by him as a consul of the United States, upon a general complaint made to him by the Chinese government. As a warning and caution to his country men, it was a prudent and commendable notice, and, so far as it was a * See inclosure 3 in Mr. Henderson's dispatch No. 32, ante. mere notice and caution, it is approved. But it goes much further; it is much more than a warning. In it the consul not only assumes the prerogative of the minister, but proceeds to decide in advance what acts will constitute an offense, and affixes a punishment. Apart from the question of the power of the consul to issue such a notification in any case, it is apprehended that the notification in question, being addressed to all citizens of the United States, and commanding all to withdraw and abstain from all enterprises unfriendly to the Chinese government, might affect citizens of the United States lawfully employed by the Japanese. This Department is not advised as to the precise facts concerning the employment of each of the American citizens said to be engaged in Japanese service. Many citizens of the United States are understood to be employed in various capacities in the civil service of Japan, and it may be difficult to establish a standard to determine how far, or whether any, or which of the acts, which they may be called upon to perform in the appropriate discharge of their several engagements, may or may not be deemed friendly or unfriendly by another power. Acts and enterprises of a government may be deemed by another power to be unfriendly, and yet fall short, very far short, of acts of war, or of compromitting the neutrality of the state by which they are done. The erection by a state of a fortification, or the construction of a road, may be (in fact each has been) regarded as an unfriendly act, by another power. But this will scarcely justify, certainly it will not require a third power to enjoin its citizens under severe penalties from taking employment, much less from completing engagements into which they have already entered, and lawful at the time when entered into, in such erection or construction. This Government does not feel called upon to admit that an engagement by one of its citizens to enter into the military service of Japan, or of another foreign power, made in time of peace, when no war or hostile demonstration is in process or in contemplation, is not a valid contract or that it is repugnant to law. Where the engagement is made in time of peace and hostilities are not in contemplation, there seems to be no distinction in the lawfulness of a contract for civil or for military service. Should a war afterward be declared, or an insurrection break out, there seems to be no good reason why such contract, valid at its inception, should not be performed, even though a new contract of the same nature could not at the time legally be made. If the contract for service be legal it cannot be that the person so contracting can escape the burdens and dangers incident to the employment, when his services are most needed, by declaring his foreign nationality. Should he desert, or refuse to obey orders, he would doubtless be exposed to the punishment which, by the laws of all countries, attend desertion and insubordination. Should he form part of an expedition making a hostile attack, or an invasion into the territories of a country with which that in whose service he had become enlisted has become involved in a war subsequent to his enlistment, he joins in such attack or invasion, not as an American citizen, but as a soldier in the army of one of the belligerent nations; and the United States would take no notice, as against the attacked or invaded party, should he be killed in battle in the ordinary course of civilized warfare, and, in case of his being taken prisoner, would not exact more in his behalf than that no unusual or inhuman punishment be inflicted upon him, and would only watch and require that as a prisoner of war he be treated according to the accepted rules of civilized warfare. It is apprehended therefore that no citizen of the United States, regularly enlisted in the service of Japan in time of peace, without reference to any intended act of war, and without anticipating any hostilities, could be punished according to the laws of the United States, and that he could not by any law of the United States, upon the commencement of hostilities, be compelled to abandon the service into which he had entered, or be punished for a refusal to do so. Foreigners enlist in the military service of nearly every power. During the late rebellion in this country very many foreigners of very many different nationalities took service, not only in the Union Army, but in that of the rebellion, and no remonstrance was made to the governments of which they were subjects, nor was their service in the insurgent army deemed a cause of complaint by this Government. China herself has employed the services of Americans in her army, and whether against a foreign enemy or an insurrection seems to make no distinction in principle or in law, saving that our own act of 1860 alike forbids our citizens enlisting in the military or naval service of either of the powers named in the act, to make war upon any foreign 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. Ward and Burgevine (both Americans) were in the Chinese military service. China did not regard their service as illegal or improper, or in violation either of public law or of treaty obligations. It is believed, although of this I have no certain information, that the military service of China, at this time embraces a number of Europeans, and possibly some Americans. The act of 1860 appears to have been passed to supply certain apprehended defects in the law of 1818, as applicable to Japan and China, and to provide remedies which, on account of remoteness, could not be furnished by the President under the then existing statutes. While the Department is not prepared to say that the law of 1818 may not be in force in China and Japan, in its application to citizens of the United States within those countries, it is believed that the law of 1860 will, in most cases, supply a sufficient remedy. Your course in advising Mr. Henderson to avoid accepting the invitation of the viceroy, as explained in Mr. Henderson's telegram, is approved. No benefit could result from the intervention of the consul; and it is quite apparent that the Chinese government was ready to obtain the countenance and assistance of an officer in the service of the United States in enforcing its general demand that the Japanese should quit Formosa. Such matters are entirely foreign to consular duties. A copy of this dispatch, as it relates to these general questions, has been forwarded to Mr. Henderson and to the minister of the United States in Japan, and the chargé d'affaires in China, for their information severally. I also inclose herewith an extract of an instruction sent to Mr. Williams, No 174,* under the date of the 29th July last. I am, &c., HAMILTON FISH. No. 798.] No. 165. Mr. Seward to Mr. Cadwalader. UNITED STATES CONSULATE-GENERAL, Shanghai, August 27, 1874. (Received October 12.) SIR: I have the honor to hand to you herewith a copy of a letter which I have received from the manager of the Great Northern Telegraph Company, together with Mr. De Lano's letter therein referred to, and an English copy of the agreement between the company and the authorities of the Fohkien province for the establishment of a telegraphi between Foochow and Amoy. I hand you also copy of a letter addressed by me to Mr. Sheppard, at Tien-tsin, and Mr. Lord, at Ningpo, in regard to telegraphs. The present moment is opportune to urge these matters upon the Chinese, and I am using my best efforts to do so here and to encourage our several consuls to do the same thing. I cannot too highly commend the action of Mr. De Lano in the case of the Foochow and Pagoda anchorage telegraph and the Foochow and Amoy line. You will understand that we are all actuated in these matters by a sincere desire to do what we can to promote the interests of civilization and humanity in this vast empire. There is no American company in the field; and we are perhaps stronger in speaking for the Danes than we could be in speaking for ourselves. Ln. 1569. I am, &c., GEORGE F. SEWARD. [Inclosure 1 in No. 798.] Mr. Dreyer to Mr. Sewara. GREAT NORTHERN TELEGRAPH COMPANY, SIR: I beg to submit to you copy of a letter received yesterday from Mr. M. M. De Lano, United States consul at Foo-Chow, and also copy in English and Chinese of the agreement referred to in the same letter. I do this in the intention of having your assistance in bringing the matter before such of the Chinese officials, and in such manner as you deem most likely to have influence and wisdom enough to see the advantages to China in adopting the agreement. I shall not enter upon any details, as the document actually speaks for itself. If you think that the agreement is fair and likely to be approved of by other Chinese anthorities, say for lines from Shanghai to Nankin, from Shanghai to Tien-tsin and Peking, or between Ningpo and Hankow, or from there to Shanghai, I beg you to make use of it for furthering the establishing of these lines, this company being willing to carry out these lines without delay, if the permission through such an agreement can be procured from the local authorities concerned. With the trust that you wil use the most expedient means to advocate this matter, which is of like interest to all foreigners in China, I have, &c., [Inclosure 2 in No. 798.] Mr. De Lano to Mr. Dreyer. DREYER. FoocHow, August 22, 1874. MY DEAR SIR: I have in a former letter informed you that on the 1st day of the present month I received the assent of the provincial authorities here to the erection of a telegraph-line from this port to Amoy, overland, by the company which you rep resent. On the 4th and 5th of the month one of the members of the "Tung Lan Chu” (foreign trade committee) came to my office to introduce a wan-yuan, or deputy, who had in the mean time been appointed to go over the route to Amoy in company with a representative of your company, to make the preliminary survey and sketch of the route on which the proposed telegraph-line should be erected. I introduced the said deputy to your agent, Mr. Henningsen, and it was agreed by and between them that on the arrival of the company's engineer from Shanghai, arrangements should be at once concluded for the immediate survey of the proposed route. Two or three days later your engineer arrived here, when I arranged for him an interview with the Taotai and other officials, on which occasion I myself accompanied Mr. Hoffmeyer and Mr. Henningsen, taking my own interpreter with me. At this interview all the details of an agreement were arranged substantially as contained in a copy herewith inclosed, which agreement was to be signed by Mr. Henningsen on behalf of the company and by the foreign trade committee as the proper representatives of the provincial officials. It was not thought essential that this agreement should be executed before the survey should be commenced. Accordingly a second deputy was appointed, and on the 19th instant they started in company with Mr. Hoffmeyer and a large escort of attendants and coolies to make the preliminary survey, all in strict accordance with the terms agreed upon and contained in the inclosed copy of agreement. On yesterday I sent the written agreement to the yamen for examination and approval by the Tung Lan Chu, preparatory to its execution and signature, when I was informed that the imperial commissioner, Shen Pau Cheu, had written to the provincial official (the viceroy) to say that the Foochow and Amoy telegraph line would be built by the Chinese government in accordance with the advice of Mr. Giguel, already submitted to the central government. I was further informed that the viceroy had replied to Shen that he had closed with the Great Northern Company to erect the line, and that by the terms of his agreement the authorities would get the use of his line for government purposes free of charge with the option of buying it at pleasure, and he advised that the agreement be carried out. However, the committee declined to sign the agreement pending further instructions; but in the mean time the party are proceeding with the survey. I submit the foregoing statement to you, leaving it to yourself to determine what shall be done in the matter, but I shall continue my efforts in the company's behalf, trusting that the provincial officials will be able to override the propositions of Mr. Giguel and assert their right to manage the affairs of their province independently of Shen. I am sure the officers with whom I have negotiated in the matter are much annoyed at the turn things have taken, and charge the whole blame on Giguel. They believe that if the facts were reported in the interest of your company to the central government, Shen might be instructed to step aside and the viceroy instructed to carry out the arrangement made with the company. They say also that Shen may withdraw from his project on the receipt of the viceroy's letter. I give you also a Chinese version of the agreement, so that you may have it at hand in case you decide upon any action at Peking. Trusting the project will yet turn out favorable to your company, I am, sir, &c., M. M. DE LANO. [Inclosure 3 in No. 798.] Copy of an agreement. The high provincial authorities at Foochow, in the province of Fohkien and Empire of China, having already granted unto the Great Northern Telegraph Company of Denmark, permission to erect an electric telegraph line, overland, between the provincial city of Foochow and the city of Amoy, both in the province of Fohkien it is necessary, in order that a perfect understanding may be had in the matter, that all the stipulations agreed upon by the Chinese authorities and the representatives of the telegraph company be clearly stated in the form of an agreement, and made a matter of record. 1st. The Chinese authorities agree on their part that as soon as the representative or engineer of the telegraph company aforesaid shall signify his readiness to commence the survey and location of the said telegraph line, they, the Chinese authorities, will appoint two deputies, having official rank, to accompany the said telegraph company's representative from Foochow to Amoy aforesaid, and assist him in the survey of the route; the line to be erected along the route selected and agreed upon by the said deputies and the company's engineer. But it is understood that the line shall not pass through the large cities along the route, nor shall the telegraph-poles be put up in the public roads so as to obstruct travel, nor in the people's fields without their conseut, neither shall any graves or tombs be interfered with. The Chinese authorities agre |