Memorandum by the Consul General at Tokyo (Garrels)44

This morning Mr. Matsudaira of the Treaty Division of the Foreign Office called to discuss with the undersigned certain matters relating to the proposed Consular Treaty between Japan and the United States. He brought with him a printed copy of the Treaty between the United States and Poland which the Foreign Office is evidently using as a basis for drafting their proposed treaty.

The particular point at issue comes under Article IV of the Polish-American Treaty and is as follows:

“Consular officers, nationals of the State by which they are appointed, shall be exempt from arrest except when charged with the commission of offenses locally designated as crimes other than misdemeanors and subjecting the individual guilty thereof to punishment.”

It appears that the Polish Treaty has been submitted to the Ministry of Justice for their opinion and they have requested the Gaimusho to secure an interpretation of what “crimes other than misdemeanors” consist. I explained that under the terms of the treaty as quoted above this would probably depend from the American viewpoint upon the laws of the States in which the alleged crime was committed. However, that, according to the United States code a crime other than a felony was a misdemeanor and that a felony was defined as a crime, the punishment for which was death or imprisonment for over one year. According to Bouvier’s Law Dictionary and Webster’s Standard Dictionary, the general practice of the American states was to consider as felonies all crimes involving as punishment either death or imprisonment in the State penitentiary.

Mr. Matsudaira’s main point, however, was not to discover how Japanese officers would be treated in the United States, but what immunities could be claimed by American consular officers in Japan. For instance, the Justice Ministry had inquired as to whether the above-quoted treaty provisions, if adopted, would exempt consular officers from arrest for taking pictures in a fortified zone. I replied that I should personally believe that it would depend upon the applicable provisions and penalties of Japanese law, that I thought that objection would not be raised to the Japanese Government’s adopting the definition of “crime” and “misdemeanor” adopted by our own Federal Government and that consequently if the violation of the fortified zone law by the taking of pictures carried a penalty [Page 1065] of over a year in jail it could be considered as a crime other than a misdemeanor and consequently consular officers could be arrested for such an offense.

Mr. Matsudaira requested a list of crimes which would be considered felonies. I furnished him with a list taken from the U. S. Code and Webster’s dictionary.

  1. Unsigned copy transmitted to the Department without covering despatch; time of receipt not indicated.