Mr. Gresham to Mr. Denby, chargé.
Washington, October 30, 1894.
Sir: I have to acknowledge the receipt of dispatch of the 1st of September, from our chargé at Peking, in relation to the delivery of [Page 120] the two alleged Japanese spies at Shanghai into the custody of the Chinese authorities.
As it is probable that you have already received the formal instructions of the Department in regard to the exercise of good offices in behalf of Japanese subjects in China, pending the war between that country and Japan, it is not necessary, in replying to the present dispatch, to amplify the views previously expressed on that subject.
In dealing with the case of the alleged spies at Shanghai, it has not been the purpose of the Department to prejudge any question that might arise in any other war than that now existing between China and Japan. The stipulations in the treaties between those countries on the subject of jurisdiction are reciprocal. As you will learn by the instructions of the Department heretofore sent to your legation, the Japanese Government, on the 4th of August, two days after the publication in the official gazette of its declaration of war against China, issued an imperial ordinance in which it was declared as one of the first results of the state of war that Chinese subjects in Japan should be wholly subject to the jurisdiction of the Japanese courts.
After the alleged spies at Shanghai were delivered over to the Chinese authorities, a report was published in the newspapers to the effect that they had been immediately beheaded. Referring to this report, the secretary of legation and chargé d’affaires ad interim of Japan in this city made, on the 5th of September, a statement which was published by the press on the following day, in which it was declared that the delivery of the two suspected Japanese into the hands of the Chinese authorities was entirely in conformity with the Japanese interpretation of the authority and power of neutral consuls. A copy of this statement is herewith inclosed. On the 10th of September a further statement from the same quarter, on the same subject, was published; a copy of this statement is also inclosed.
While holding that under the particular circumstances the alleged spies were not subject to the jurisdiction of the consul-general of the United States, and could not be given asylum by him, I took proper measures to prevent any summary action by the Chinese authorities, and, as the Department is at present advised, no such action was taken. When I informed the Chinese minister of the views of the Department touching the authority of the consul-general, I requested that the prisoners should not be tried until the return of the minister of the United States to his post. This specific time was suggested, as it afforded ample opportunity for investigation and deliberation. The Chinese minister agreed to my suggestion, and at once telegraphed to his Government in regard to our understanding.
I have no reason to suppose that this understanding has not been kept. On the 9th of October, more than a month after the first report of the execution of the alleged spies, the consul-general at Shanghai telegraphed to the Department that they were alive and had been well treated. I had already been assured by the Chinese minister of this fact, and he has also given me an assurance within the last few days of the groundlessness of the more recent report of their execution. The Department observes the statement made by our charge that it never was his intention ultimately to refuse to give up the alleged spies, and appreciates the solicitude he felt to secure every possible guarantee of just and humane treatment for them; and it is gratifying to believe that the Chinese authorities have exhibited due appreciation of the circumstances.
This Government would be glad to see an arrangement made between [Page 121] China and other interested powers which should define the jurisdictional rights of the foreign settlement at Shanghai, with respect to crimes charged to have been committed therein in time of war, as well as in time of peace. Whether China would be willing to yield her jurisdiction in respect to subjects of a belligerent charged with offenses against the laws of war, maybe doubtful. It is not supposed that any of the French subjects to whom the dispatch of our legation refers as having been brought before the Russian consul at Shanghai for hearing, during the Tonquin war, were charged with offenses of that character. However this may be, the consuls of the United States in China, as has been pointed out in prior instructions of the Department, have never been invested with power to exercise jurisdiction over the citizens or subjects of another nation.
The Department had repeatedly so held, even in respect to citizens of Switzerland, who have for many years been under the protection of our ministers and consuls. It may also be noticed that Hall, in his recent work on Extraterritoriality in the East adverts to the fact that, while what is known as the doctrine of assimilation has prevailed in Turkey and certain other countries, the British orders in council touching consular jurisdiction in China do not purport to authorize the exercise of such jurisdiction by British consuls except in the case of British subjects.
I am, etc.,