Mr. Herod to Mr. Hay.

No. 269.]

Sir: I have the honor to call the Department’s attention to Article XXIV of the treaty of commerce and navigation between France and Japan signed at Paris August 4, 1896, the first sentence in the first paragraph of which reads as follows:

Le présent Traité ne produira ses effets que trois ans au moins après la signature.

It will thus be seen that the French treaty can not come into operation prior to August 4 of this year, eighteen days after the date (July 17) fixed for the operation of the American treaty in common with that agreed upon by the other powers which have in recent years concluded treaties with Japan. In consequence, citizens of France will continue, under the old and now existing treaty of October 9, 1858, to enjoy the privileges of consular jurisdiction up to August 4 and, after July 17 and up to August 4, when their new treaty comes into force, will secure, under the most-favored-nation clause in the old treaty, all rights of residence, commerce, and navigation guaranteed to citizens and subjects of other powers under the provisions of their treaties, whereby consular jurisdiction is abolished. In other words, French citizens will from July 17 to August 4 enjoy all the rights of other foreigners in matters relating to navigation and commerce, and, in addition, extraterritoriality and freedom from taxation by Japan.

In view of the concise nature of Article XVIII of the American treaty of November, 1894, which provides that on July 17 next consular “jurisdiction shall absolutely cease and determine,” and the fact that our most-favored-nation clause relates only to matters of navigation and commerce, I realize that a claim for the continuance of consular jurisdiction up to August 4 could not be maintained. On the other hand, Article XIV referred to does guarantee to citizens of the United States most-favored-nation treatment in all that concerns commerce and navigation, and if French citizens are up to August 4 to be free from taxes of all kinds levied by the Japanese Government, I am of the opinion that American citizens should enjoy equal “privileges, favors, and immunities.”

If my opinion coincides with that of the Department, I have the honor to request instructions authorizing me to claim at the proper time all privileges of trade and navigation that will be enjoyed by French citizens after July 17 and up to August 4, 1899.

That the date for the operation of the French treaty differs from that fixed upon in Japan’s other engagements is due to the carelessness of the Japanese negotiator at Paris. Since the ratification of [Page 468] the treaty Japan has tried ineffectually to have the date changed to July 17.

I have, etc.,

Joseph R. Herod.