811.5034 (China) American Radio Service/54: Telegram

The Secretary of State to the First Secretary of Embassy in China (Smyth), at Peiping

159. Your 349, October 1, 11 a.m., American Radio Service.

1. The Department is in accord with your recommendations and [Page 924] desires that Tientsin be instructed accordingly. In view of the flagrant illegality of seizure of American-owned property, Tientsin and if need be the Embassy should press for its immediate return.

While the French authorities apparently seek to excuse delivery of property to Japanese on ground of duress, the Department considers that the French action also involves clearly violation of American rights and desires that Fletcher formally protest such violation.

2. For consideration in future similar cases. While the Department does not of course desire to interfere in any way with the appropriate judicial functions of American consular officers, it suggests that from the point of view of policy it is desirable, in cases having important political implications and in connection with which other means may be available, to avoid taking formal judicial action. It is also suggested that, in cases in which the time element is not urgent, the Consul at Tientsin may wish, if he has any doubts as to the propriety of judicial action or the form which such action should take, to consult the Embassy at Peiping with a view either to obtaining the Embassy’s informal advice or to discussing with the Embassy whether the circumstances are such that it would seem advisable to seek advice from the United States Court for China or the United States District Attorney.

Sent to Peiping. Repeated to Chungking and Tientsin. Peiping please repeat to Tokyo.