an amicable adjustment of the matter very difficult, and I therefore sought an interview with the Marquis Visconte Venosta, the minister of foreign affairs, during which I handed him in person the communication I had addressed to him and explained to him fully what had occurred in the case of Mileo. I then impressed upon him the desirableness of his giving his own personal attention to the subject rather than committing the preparation of a reply to my note to anyone else. I also suggested to him that, as it was of the class of cases in which prompt action was desirable, he might possibly see his way to secure the release of Gardella as a matter of courtesy to a friendly nation, while reserving for future discussion and adjustment by treaty or otherwise all the questions of right involved. I called his attention to the provisions of our treaty of September 20, 1870, with Austria-Hungary on the subject as showing that in contending for the extreme views presented in Mileo's case Italy was isolating herself from the other military nations of Europe. His excellency listened with great interest to all I had to say, expressed his warm appreciation of my coming directly to him before the controversy had a chance to become acute, and said that he would give the whole subject his personal and very careful attention. He dwelt especially upon the possible value of my suggestion of releasing Gardella as an act of courtesy without any waiver of the rights of Italy as probably enabling the subject to be discussed more dispassionately and at greater leisure. Trusting the course I have pursued will meet your approval, I have, etc., WAYNE MACVEAGH. No. 210.] Mr. Olney to Mr. Mac Veagh. DEPARTMENT OF STATE, Washington, November 12, 1896. SIR: Referring to your No. 209, of the 22d ultimo, and the Department's No. 207, of the 6th instant, I have to acknowledge the receipt of your No. 212, of the 26th ultimo, in regard to the case of Vittorio Gardella, an Italian by origin, who, leaving his native land in infancy, emigrated to the United States, resided here many years, became naturalized, and, returning to Italy on a brief visit, leaving his family at his residence in the United States, has been arrested and drafted into the Italian army. Your action in bringing the matter personally to the attention of the Italian minister of foreign affairs is commended and the result awaited. I am, etc., RICHARD OLNEY. No. 220.] Mr. Mac Veagh to Mr. Olney. EMBASSY OF THE UNITED STATES, Rome, December 11, 1896. (Received Dec. 24.) SIR: Referring to my dispatches No. 209, of October 22, 1896, and No. 212, of October 26, 1896, and your replies No. 207, of November 6, 1896, and No. 210, of November 12, 1896, you will be glad, I am sure, to know that I have succeeded in securing the release of Vittorio Gardella from military service here. His discharge is in the form of a grant of unlimited leave, and of course does not formally waive the contention so strenuously insisted upon heretofore by this Government, but it releases a citizen of the United States who, according to our view of the present public law of civilized nations, is not liable to compulsory military service in the Italian army, and is, therefore, so far as the present case is concerned, entirely satisfactory. The dispatch of the Marquis Visconte Venosta, minister of foreign affairs, is as follows: The soldier, Vittorio Gardella, to whom your excellency's esteemed note of the 19th October, 1836, makes reference, was born in 1861 in Neirone-Chiavari, of Italian father, and acquired the American citizenship in 1884-that is, after he had reached manhood. Under the circumstances he has no doubt lost his Italian citizenship by virtue of article 11, second paragraph, of the Italian civil code, but he remains nevertheless liable to military service in the Kingdom, according to the peremptory provisions of the following article 12. He was therefore regularly enlisted and sent to the service. I have the honor, however, to inform your excellency that, in view of his exceptional condition of the privileges which by the amendments which are expected to be made to the law regulating the levy applicable to persons residing abroad when enlisted, and of the interest which your excellency takes in Mr. Gardella, the royal minister of war has provided that in an exceptional way Mr. Gardella be sent on an unlimited leave in advance. I have, etc., WAYNE MACVEAGH, Mr. Olney to Mr. MacVeagh. No. 219.] DEPARTMENT OF STATE, SIR: The Department has been gratified to learn from your No. 220, of the 11th instant, of the discharge of Vittorio Gardella, a naturalized American citizen of Italian origin, from the military service of Italy by a grant of unlimited leave. I am, etc., RICHARD OLNEY. INDEMNITY TO HEIRS OF ITALIAN SUBJECTS KILLED AT WALSENBURG, COLO.' No. 129.] Mr. Olney to Baron Fava. DEPARTMENT OF STATE, EXCELLENCY: I have the honor to state, having regard to previous correspondence upon the subject, that the act of Congress approved June 8, 1896, entitled, "An act making appropriations to supply defici encies in the appropriations for the fiscal year ending June 30, 1896, and for prior years, and for other purposes," contains the following provision for the payment out of humane consideration, and without reference to the question of liability therefor To the Italian Government for full indemnity to the heirs of three of its subjects who were riotously killed, and to two others who were injured, in the State of Colorado by residents of that State, ten thousand dollars. I inclose a check of the Chief of the Bureau of Accounts and disbursing clerk of the Department of State for the sum of $10,000; also receipt in duplicate, which I shall be glad to have you sign and return to this Department. Accept, etc., RICHARD OLNEY. I See Foreign Relations 1895, Part II, pp. 938-956. JAPAN. RECIPROCAL PROTECTION OF PATENTS, TRADE-MARKS, AND LEGATION OF THE UNITED STATES, Tokyo, Japan, September 14, 1896. (Received Oct. 6.) SIR: I have the honor to call your attention to Articles XVII and XXI, and the protocol to Article XVII, of the treaty of trade and commerce lately concluded--April 4, 1896-between Germany and Japan, relating to trade-marks and patents. Translations made at this legation of the articles referred to above are inclosed herewith. You will observe that Article XVII provides that subjects of either contracting country shall have in the territory of the other the same rights as the citizens of that territory in regard to protection for inventions, patterns, models, trade marks, etc., provided they observe the conditions imposed by the law of the land. The protocol to Article XVII provides that, in either of the contracting countries, protection with regard to inventions, patterns, models, trade-marks, etc., must be accorded to subjects of the other country as soon as the conditions imposed by the law of the land have been fulfilled. Article XXI fixes the date when the treaty shall take effect, how long it shall hold good, how it may be terminated, and provides that Article XVII of the present treaty shall take "effect from the date of the exchange of ratifications, and, unless otherwise agreed upon by the contracting parties, shall remain in effect until the other articles of the treaty lose their force." The protection accorded to German subjects under the articles cited above are reciprocal. It uppears to me that under the most-favored-nation clause of our treaty with Japan American citizens are, subject to the same terms and conditions, entitled to the same privileges and protection in regard to trade-marks, patents, etc., that the new German-Japanese treaty secures in Japan to German subjects. The new treaty is silent in regard to the question of jurisdiction in the event of infringement of Japanese patent or trade-mark laws by German subjects, but, in the absence of express stipulations to the contrary, it must be inferred that the German consular courts in Japan will continue to exercise jurisdiction over German subjects in this regard, as well as in all other cases, both civil and criminal, until those courts are abolished under the provisions of the new treaty, which will take effect not earlier than July 17, 1899. It is true that any protection or privilege granted to a German subject under the patent or trade-mark laws of Japan could be canceled in the event of infringement of those laws by the individual, but further than this a German subject resident in Japan can be justiceable only by the German consular courts for any infringement of Japanese law. The question of jurisdiction is, however, in my opinion, of very little practical importance. It is not at all likely that any American or European will ever attempt to infringe the patent or trade-mark laws of Japan. They will come here seeking protection for their own patents and trade marks, and not to infringe upon the rights of Japan in this regard. Within the very short time that will elapse before the new treaties come into operation Japan will hardly offer sufficient inducement for foreigners who might otherwise be so disposed to infringe her patent and trade-mark laws. Owing to the disturbed state of the Japanese cabinet since the resignation of Marquis Ito, I have deemed it best to refrain, until after the reorganization of that body, from speaking to the minister for foreign affairs in regard to Japan's disposition to extend to American citizens, under the same terms and conditions, the same rights and privileges in regard to patents, trade marks, etc., that are secured to German subjects under the new German-Japanese treaty. I have no reason to believe, however, that Japan will have any unwillingness to extend these rights and privileges to American citizens, for, it appears to me, we are clearly entitled to them under the most-favored-nation clause of our existing treaty with Japan. As this question is one of very considerable importance to American citizens, I shall be glad if you will instruct me on the following points: In the event of Japan's willingness to extend to American citizens the rights and privileges referred to herein on the same terms and conditions as they have been granted to German subjects, can reciprocal rights and privileges be granted under the laws of the United States to Japanese? I assume that, in the event of Japan's notifying my Government in writing that she is prepared to extend to Americans the rights and privileges granted to Germans by treaty, she will expect in return a written assurance of some kind of reciprocal treatment of Japanese by the United States. In such event, would an exchange of notes between the two Governments be sufficient, or would a more formal agreement, in the form of a convention, be necessary? When the new cabinet is formed I shall seek an interview with His Imperial Japanese Majesty's minister for foreign affairs in order to ascertain from him the disposition of his Government in regard to granting to American citizens the rights and privileges referred to in this dispatch. I shall, however, refrain from committing my Government in any way in the matter until instructions are received from you. I have, etc., EDWIN DUN. [Inclosure 1 in No. 410.] With the exception of Article XVII, the present treaty shall take effect-not, however, before the 17th day of July, 1899-one year from the time when His Imperial Japanese Majesty's Government shall have given notice to the Government of His Majesty the Emperor of Germany and King of Prussia of its desire to put said treaty into effect. The treaty shall hold good for twelve years from the date of its taking effect. It shall be the right of either of the contracting parties, at any time after the lapse of eleven years from the date of the taking effect of this treaty, to notify the other of its intention to annul said treaty, and twelve months after such notice this treaty shall be absolutely and null and void. Article XVII of the present treaty shall take effect from the day of the exchange of ratifications, and unless otherwise agreed upon by the contracting parties, shall remain in effect until the other articles of the treaty lose their force. ARTICLE XXII. The present treaty shall be ratified, and the ratifications exchanged in Berlin as soon as possible. [Inclosure 2 in No. 410.] ARTICLE XVII. The subject of either contracting country shall have, in the territory of the other, the same rights as the citizens of that territory in regard to protection for inventions, patterns (inclusive of trade samples) and models, trade-marks and factory stamps, firms and names, provided they observe the conditions imposed by the law of the land. Protocol to Article XVII.—It has been agreed that in either of the contracting countries, protection with regard to inventions, patterns (inclusive of trade samples) and models, trade-marks and factory stamps, firms and names, must be accorded to subjects of the other country as soon as the conditions imposed by the law of the land have been fulfilled. Moreover, the contracting parties reserve the conclusion of a special treaty covering their mutual relations in regard to the protection of patents, samples, and trade-marks, and will, in good time, enter into negotiations in this regard. The Japanese Government, furthermore, declares its intention of joining the International Convention at Berne in regard to copyrights and inventions (Urheberrecht), intellectual property, before the abolition of German consular jurisdiction in Japan. No. 370. Mr. Olney to Mr. Dun. DEPARTMENT OF STATE, Washington, November 12, 1896. SIR: I have received your No. 410, of September 14, 1896, in regard to the treaty of trade and commerce concluded April 4, 1896, between the Governments of Japan and Germany, relative to trade-marks and patents. In view of the provisions of that convention you add: It appears to me that under the most-favored-nation clause of our treaty with Japan, American citizens are, subject to the same terms and conditions, entitled to the same privileges and protection in regard to trade-marks, patents, etc., that the new German treaty secures in Japan to German subjects. The disturbed state of affairs in Japan since the resignation of Marquis Ito has prevented you from bringing the subject to the attention of the minister for foreign affairs, with a view to ascertaining the dispo sition of the Japanese Government to extend to American citizens, under the same terms and conditions, the same rights and privileges in regard to patents, trade-marks, etc., as are secured to German subjects under the new Japanese-German treaty. You say you have reason to believe that there will be no unwillingness on the part of Japan to accord these rights and privileges to our citizens who, in your judgment, "are clearly entitled to them under the most-favored nation clause of our existing treaty with Japan." Hence you inquire, in expectation of Japan's willingness to concede the rights and privileges of which you speak, upon the same terms and conditions as they have been granted to German subjects, "can reciprocal rights and privileges be granted, under the laws of the United States, to Japanese?" |