Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1890
Mr. Swift to Mr. Blaine.
Tokio , February 16, 1890. (Received March 17.)
Sir: On the 7th instant, the day of the closing of the mail by which my dispatch No. 88, dated February 5, 1890, concerning the excise duty upon “Scott’s Emulsion” was sent to you, I received from Viscount Aoki, His Imperial Japanese Majesty’s minister of state for foreign affairs, a paper purporting to be a précis of the interview upon that subject which took place at the foreign office on the 23d ultimo, giving Viscount Aoki’s version thereof. It was also accompanied by a separate note with English translation, a copy of which I herewith inclose. The note and précis arrived, however, after my dispatch was substantially made up and too late to inclose with it.
Upon examining the précis, a copy of which is herewith inclosed, I found that my part of the conversation had been misunderstood, or at least misinterpreted in certain particulars, which, though not material to the question, were yet, as I considered, deserving of correction. The corrections were made in a “memorandum” which I prepared and sent to His Excellency on the 10th instant, a copy of which is herewith inclosed. [Page 587] You will observe that Viscount Aoki’s version of his own statements agrees with my own upon the main point, namely:
- First. That His Imperial Japanese Majesty’s Government has levied an internal or excise as well as a license tax upon the article of American production known as “Scott’s Emulsion;”
- Second. That they do this under a construction of the treaty which, they hold, permits it; and
- Third. They thus claim that, without violating the treaty, they may do the same with respect to kerosene oil, tobacco, or any other article of American production whenever they are so disposed.
This I regard to be all that is material to the question submitted to you for instructions in my dispatch above named.
As I have already given my reasons for considering this position to be violative of the treaty and practically in subversion of it, I will not add any further remarks, but submit the matter upon my former statement.
I have, etc.,
Viscount Aoki to Mr. Swift.
Tokio , the 6th day, the 2d month, the 23d year of Meiji (February 6, 1890).
Sir: I have the honor to acknowledge the receipt of Your Excellency’s note bearing date the 24th ultimo, in which you inclose for my examination and approval a memorandum of our interview of the day previous.
In view of the statement contained in your note, to the effect that, in the event you heard no objection from me before the departure of the next mail, you would assume that your understanding and recollection of the conversation as set forth in the precis was substantially correct and that you should forward it to your Government, I feel compelled to draw your attention to the fact that the note and précis did not reach this department until half past 1 o’clock in the afternoon of the 28th ultimo, that is, not until some time after the mail succeeding the date of your note had actually been closed in Tokio.
Apart from the question of the immediate disposition made by you of the précis, I beg to say that His Imperial Majesty’s Government would not, under any circumstances, regard themselves as excluded by the fact that they had from any cause been prevented from replying to a communication within a specified period, unless, indeed, they had themselves consented to the limitation of time. And this reservation, permit me to add, is all the more important in the present instance, as I am reluctantly compelled to withhold my adhesion from Your Excellency’s précis.
Immediately after your departure from this department on the 23d ultimo, Mr. Miyaoka, who was present at our interview, prepared, in pursuance of instructions from me, a full and complete record of our conversation. Instead of attempting to point out specifically the particulars in which my understanding of what occurred at the interview is at variance with your recollection of the same incidents, I beg to inclose herewith a copy of Mr. Miyaoka’s précis, with the remark that it has my approval. I can not, however, permit myself to pass over this branch of the subject without expressing surprise at the remarks attributed to me in Your Excellency’s précis, to the effect that I stated that I could not take into account what the American people might feel or think, and that the rights and interests of Japan alone were the subject of my concern. I have no recollection whatever of making use of any such declaration, and I now frankly avow that if words bearing any such construction had escaped from me during the interview they would have been contrary to my own sentiments andofposed to the sentiments of His Imperial Majesty’s Government.
In deference to Your Excellence’s expressed disinclination to discuss the merits of the question of the right of the Imperial Government to impose an internal tax upon imported licensed medicines, I shall, of course, refrain from presenting to you those important considerations upon which the decision of the Imperial Government was predicated. His Imperial Majesty’s Government value too highly the friendship and good opinion of the United States to permit the Cabinet at Washington to remain in [Page 588] ignorance of those considerations, and I shall consequently deem it my duty to communicate to the Government of the United States on the subject through His Imperial Majesty’s legation at Washington.
It is, however, proper for me to correct several misapprehensions of fact under which you labor. The present action of the Imperial Government implies no departure from the construction of the treaty between our respective Governments which had always previously prevailed. On the contrary, the law complained of only went intooferation 7 years ago, and, whenever any questions have arisen under it or under similar statutes, the rulings of His Imperial Majesty’s Government have been uniform and in harmony with the present decision. The Imperial Government have not picked out an article of American production upon which to essay a new interpretation of their treaties. It was certainly intended that the law should be universal in its application, and if, as you assert, articles falling within the purview of the enactment have escaped taxation, it was an error of the tax officers of the Government, which will without delay be rectified.
I avail, etc.,
His Imperial Majesty’s Minister for Foreign Affairs.
Précis of an interview at the ministry of foreign affairs, Tokio, January 23, 1890, in reference to the right of the Japanese Government to levy a license and excise tax upon a licensed medicine known as “Scott’s Emulsion of Cod-liver Oil.”
There were present: Their Excellencies Mr. Swift, United States minister, and Viscount Aoki, His Imperial Japanese Majesty’s minister of state for foreign affairs. Mr. Miyaoka acted as interpreter.
Mr. Swift opened the conversation by calling attention to Viscount Aoki’s note of the 17th instant. He had sought this interview, he said, in order to ascertain the extent to which the Japanese Government claimed the right to carry the principle of taxing internally imported goods. He was anxious to know, he continued, whether he was correct in assuming that the Japanese Government claimed the right to place excise taxes upon all goods imported from the United States.
Viscount Aoki, in replying to Mr. Swift’s inquiry, expressed a disinclination to discuss the question in the comprehensive sense in which it was propounded. He, however, pointed out to Mr. Swift that a special law existed by virtue of which certain internal taxes were imposed on licensed medicines. That law was, in the opinion of the Japanese Government, he said, equally applicable to licensed medicines imported from abroad. He added, in the same connection, that the Japanese Government claimed the right to make all necessary administrative regulations concerning the health and safety of the people, and finally, after being pressed by Mr. Swift for an answer to his question, Viscount Aoki declared that the Japanese Government were of the opinion that under existing treaties they still had the right to place certain internal taxes upon goods imported from abroad.
Mr. Swift observed that “Scott’s Emulsion” was in itself but a trifling matter. The general construction which the Japanese Government were now endeavoring to introduce into their treaties was of much more serious importance. It seemed to him that the Japanese Government were trying to overthrow the interpretation of their treaties which had prevailed for 30 years, and it looked to him, he said, as though they had picked out an article of American manufacture upon which to make the first attempt. If, he continued, he should write details of this matter to Washington—and he expressed his intention to do so—the Government and people of the United States would think that the Japanese Government had imposed upon their friendship, and they would naturally conclude that their friendly policy was disadvantageous to them. Mr. Swift concluded by referring to the treaty of 1878 as evidence of the kindly feeling manifested by the United States towards Japan.
Viscount Aoki expressed a conviction that a nation lost nothing by maintaining a friendly attitude towards other states, and he would, he said, regret exceedingly if Mr. Swift’s report concerning the action of the Japanese Government in this matter created at Washington the impression which he (Mr. Swift) had predicted that it would. He was, he added, fully aware of the cordial and friendly relations which had always existed between the Governments and people of Japan and the United States, and he well knew that it was the desire of the Imperial Government to perpetuate those relations. It was consequently a source of regret for him to learn, as he had just done, that Mr. Swift labored under the impression that the Japanese Government had picked out an article of American manufacture upon which to experiment [Page 589] in the matter of taxation. He assured Mr. Swift that the Japanese Government have no desire whatever to make any discrimination. In a question of this kind the Japanese Government could not regard at all the place of production or manufacture. Had “Scott’s Emulsion” been manufactured in England or Germany, instead of America, Viscount Aoki was positive it would have been subjected to exactly the same tax as is now imposed.
Mr. Swift desired to know if any articles imported from countries other than America were subject to an excise tax.
Viscount Aoki replied that he had no general report from the department of home affairs, but he happened to have a special report which mentioned that a licensed medicine called the “Pain Killer” was taxed in the manner complained of by Mr. Swift.
Mr. Swift observed that the “Pain Killer” was also an American preparation, and he again invited Viscount Aoki to indicate a single medicinal preparation imported from some other country—Germany, for instance—upon which an excise tax was levied.
Viscount Aoki repeated his former statement on the subject, to the effect that he was not in possession of a general report from the department of home affairs. He reminded Mr. Swift that the licenses were granted, and the taxes assessed and collected, by the local officials. This fact, he thought, would account for the absence of more explicit information on the subject, and it would also explain any conflicting practices that might exist indifferent parts of the country. Viscount Aoki volunteered to obtain the desired information from the local authorities if Mr. Swift desired it.
Mr. Swift said he had no desire to possess such information. He contented himself with declaring that in levying an excise tax upon goods imported from the United States the Japanese Government violated their treaty engagements.
Viscount Aoki was unable to concur in thisofinion, as he thought the Japanese Government had not surrendered the right to impose the tax in question.
Mr. Swift called attention to article in of the treaty of 1858. He thought, he said, that that article had been overlooked by the Japanese Government. It provided that Japanese might freely sell any article sold to them by Americans. He had, he added, consulted other gentlemen belonging to the diplomatic corps, and they had all united in declaring that they had never before heard of the construction that the Japanese Government now seek to put on their treaties.
Viscount Aoki denied that the Japanese Government had prohibited the sale of “Scott’s Emulsion.” They had only exercised their right to levy an internal tax upon that article in common with other licensed medicines—both domestic and foreign.
Mr. Swift said that Viscount Aoki’s last observation was only a repetition of the statement contained in the note under discussion. What he wished to know, he said, was whether Japan claimed the right to levy an additional tax ou imported goods, and, if they did, whether they claimed that the right of internal taxation extended as well to general merchandise, such, for instance, as kerosene and tobacco.
Viscount Aoki had no doubt as to the abstract right of Japan to impose the tax in question on kerosene or tobacco, but, as a matter of fact, he said, Japan had made no attempt to impose the duty. Kerosene was under the law free from internal taxation, while the only internal impost on tobacco was a manufacturer’s tax, so that imported tobacco was free after paying the customs duty.
Mr. Swift was anxious to know if the Japanese Government claimed that they had the right to enact a law at any time imposing an internal tax on imported goods.
Viscount Aoki replied in the affirmative, and in that connection he recalled Mr. Swift’s attention to the fact that in 1888 the finance minister issued a notification modifying the system that had previously been in vogue of calculating dutiable values for customs purposes. That action was a departure from the preexisting practice, but it elicited no protest from the treaty powers.
Mr. Swift was able to perceive a distinction between the two cases. He did not think that the action of the minister of finance was violative of the treaty. But he was unable to discover any reason why the Japanese Government might not tax internally kerosene and all other articles imported from the United States if their contention concerning “Scott’s Emulsion” was correct.
Viscount Aoki replied that the law determined what articles should pay internal taxes, and, while under existing statutes several articles were subject to excise, he believed that licensed medicines were the only articles that were taxed that were imported.
Mr. Swift was unable to discover why the Japanese Government desired to revise their treaties if the right of taxation which they now claimed was unqualified.
Viscount Aoki pointed out that there were other questions involved in the subject of treaty revision. The Japanese Government, he maintained, had no desire to levy [Page 590] an internal tax on kerosene. Had they deemed such a course good policy, of course it would have been absurd to discuss customs duties in connection with treaty revision.
Mr. Swift wished it understood that he was not referring to the intention or desire of the Japanese Government. He was dealing solely with the question of right, and he again asked if, in contemplation of their treaties, the Japanese Government claimed the right—apart from their intention to exercise the right—to impose an internal tax on duty-paid imports.
Viscount Aoki again replied in the affirmative.
Mr. Swift thereupon expressed the conviction that Japan had by her treaties surrendered the right. He then referred to the “likin” tax, which was collected in China, and expiessed the opinion that the stipulations in the treaty of 1858, on the subject of taxation, were inserted in order to prevent Japan from levying a likin tax.
Viscount Aoki agreed with Mr. Swift as to the intention of the treaty. Likin, he pointed out, was a transit tax, and Japan had, he was satisfied, waived her right to levy any tax in connection with transportation upon imported goods; but the express qualification, in his opinion, implied the right to impose other taxes.
Mr. Swift, on the other hand, thought that if Japan was debarred from levying likin she was equally prohibited from instituting any kind of excise tax upon duty-paid imports.
Viscount Aoki adhered to his former construction of the treaty provision concerning the question of taxation upon transportation. It was clear to his mind that Japan had surrendered her right in regard to transit taxes, but he could not admit that the surrender applied to other kinds of taxes. So long, he said, as Japan makes ho distinction between domestic and imported goods in the matter of taxation, he was unable to perceive what valid objection could exist.
Mr. Swift based his objection upon the fact that the claim was violative of the treaty. He should, he declared, report this matter to his Government and inform them that Japan had violated her treaty. He thought it unfortunate that in her endeavor to get rid of her treaties Japan should select the United States, a power that had invariably manifested its friendly feeling for Japan, upon which to begin the experiment.
Viscount Aoki denied that the Japanese Government had any such intention as that attributed to them by Mr. Swift, and he thought that the history of Japan’s foreign relations and the manner in which she had in good faith fulfilled onerous treaty stipulations proved the contrary. Besides, if Japan had been actuated by the motives which Mr. Swift attributed to her, she would hardly have raised the issue upon a matter of such trivial importance as the imposition of an excise tax upon a medicinal preparation.
Mr. Swift thought the Japanese Government knew exactly what they were attempting to accomplish. He repeated that Japan was violating her treaties, and he again declared that he was of the opinion that she was doing so in order to get rid of her engagements.
Viscount Aoki said that it was apparent that they had reached a point in the discussion where they could no longer agree; he therefore suggested that future arguments be reduced to writing. If, he continued, Mr. Swift would address him on the subject, he (Viscount Aoki) would reply, and in that way he hoped they might be able to arrive at a common understanding.
Mr. Swift declined to adopt the suggestion. He was satisfied, he said, that Japan had violated her treaty, and it only remained for him to communicate with his Government on the subject.
Viscount Aoki acknowledged the right of Mr. Swift to communicate with his Government in any sense he saw fit. If Mr. Swift declined to discuss the question, he (Viscount Aoki) had nothing more to say.
Mr. Swift expressed his intention of preparing a précis of the interview, and he added that he would send a copy of it when completed to Viscount Aoki for examination and approval.
Viscount Aoki replied that he should be happy to receive the précis.
This terminated the interview.
Tokio , the 23st month, 23d year of Meiji (January 23, 1890).
Mr. Swift to Viscount Aoki.
Tokio , February 10, 1890.
Viscount: I herewith transmit to you a memorandum, in which I take the liberty of calling your attention to and correcting what seems to me to be certain misinterpretations of my part of the conversation that took place on the 23d of January last, concerning the matter of the excise tax on the article known as “Scott’s Emulsion,” which misinterpretation, I have no doubt, was unintentional and the result of natural difficulties of translation.
I avail myself, etc.,
Memorandum.
Mr. Swift has the honor to acknowledge the receipt of His Excellency Viscount Aoki’s précis of the interview which took place at the ministry of foreign affairs January 23, 1890, in reference to the right of the Japanese Government, under existing treaties, to levy a license and excise tax upon an article of American production known as “Scott’s Emulsion.”
And, while satisfied in the main with His Excellency’s version of the affair, which he, Mr. Swift, considers to be upon all material points substantially identical with his own précis furnished on the 23d of January, 1890, yet, nevertheless, upon certain matters immaterial to the principal question he finds that some inaccuracies, especially as to remarks attributed to Mr. Swift on that occasion, have found their way into the memorandum, doubtless owing to the misunderstanding on the part of the interpreter of the language actually used by Mr. Swift.
As to the words purporting to have been used by His Excellency Viscount Aoki, Mr. Swift has no doubt that they are accurately set forth in the précis made at the foreign office, and where the two differ will, of course, accept the statement of His Excellency as correct.
In several places the précis of His Excellency Viscount Aoki records Mr. Swift as expressing anofinion as to what his Government would think of the action taken by the Government of Japan in the construction now placed upon the treaties, and especially that the United States Government would think that the Japanese Government “had imposed upon its friendship.”
Mr. Swift at no time ventured to express or intimate anofinion as to what his Government would think of the matter, nor as to the impression his report of the treaty construction would create at Washington. Mr. Swift expressed a fear that more or less of his countrymen, especially those engaged in commerce with Japan, would think that the Japanese Government had selected the United States for the initiation of a new and unexpected construction of the treaties, and would feel aggrieved with consequent results.
The following language, attributed to Mr. Swift in His Excellency Viscount Aoki’s précis, leads him to think that he was not understood by the interpreter, as it is certainly inaccurate, namely:
“Mr. Swift based his objection upon the fact that the claim was violative of the treaty. He should, he declared, report the matter to his Government and inform them that Japan had violated her treaty. He thought it unfortunate that in her endeavor to get rid of her treaties Japan should select the United States, a power that had invariably manifested its friendly feeling for Japan, upon which to begin the experiment.”
All of this being immaterial to the main point, Mr. Swift would not consider it of sufficient importance to call for correction, but for the general tone of disrespect to the Japanese Government which the language imports, a disrespect Mr. Swift is very far from feeling, and which would, under the circumstances, have been improper for him to express if he had entertained such feelings.
The same inexactness occurs in attributing another speech to Mr. Swift, namely:
“Mr. Swift thought the Japanese Government knew exactly what they were attempting to accomplish. He repeated that Japan was violating her treaties, and he again declared that he was of the opinion that she was doing so in order to get rid of her engagements.”
[Page 592]Mr. Swift disclaims the use of these expressions or of anything capable of such a meaning.
He did give it as hisofinion that the excise duty upon “Scott’s Emulsion” was in violation of the treaty, and that the ruling of Viscount Aoki in his note No. 4 of January 17, extending the ruling to all American productions, if put into force, would lead to further violations of it. He also said that His Excellency Viscount Aoki’s ruling was a new and unexpected construction placed upon the treaties, and that he regretted that an article of American production had been chosen upon which to make the initial application of the new doctrine, giving for his regret the reasons above named.
He did not at any time “declare that he would report to his Government that Japan had violated her treaty;” nor did he intimate that his intention to report the facts of the case to his Government was the result of anything other than the regular and ordinary discharge of his duties in reporting this in common with all other transactions of his legation. He did not at any time use any such expression as that “the Japanese Government knew exactly what they were attempting to accomplish,” nor “that Japan was endeavoring to get rid of her treaties,” nor “violating them in order to get rid of her engagements.”
Mr. Swift said nothing tending to impugn the motives or question the sincerity or integrity of His Imperial Majesty’s Government in the construction of the treaty. What he did say was that, in hisofinion, the construction was new; that it was a reversal of a construction long acquiesced in; and that he, Mr. Swift, thought it to be violative of the language and intent of the treaty. But he did not, either expressly or by implication, suggest that the Japanese Government thought it to be a violation of the treaty.
It is true that Mr. Swift declined to discuss the question of treaty construction, but he gave as a reason for refusing that, until he could ascertain the views of his Government, he did not feel at liberty to do so. Mr. Swift did not pretend to know what his Government would think; in fact, at the outset of the interview he announced that he wished to inquire as to the exact position of the Japanese Government, in order that he might, as it was his duty to do, correctly report that position to his own Government.
From the précis of His Excellency Viscount Aoki, it appears that he suggested to Mr. Swift that it was apparent that they had reached a point in the discussion where they could no longer agree, and that, in future, arguments be reduced to writing, etc.
Mr. Swift has no doubt that Viscount Aoki useel precisely that language, though he, Mr. Swift, does not remember to have had it translated to him or to have understood it.
He will, however, cheerfully follow the suggestion, and, should further discussion be found necessary, which he can only determine after hearing from his Government, he will foliow that plan so far as it can conveniently be done.
Tokio , February 10, 1890.