Papers relating to the foreign relations of the United States, 1929, Volume II

711.933/48: Telegram

The Secretary of State to the Minister in China (MacMurray)

Washington, August 1, 1929—11 a.m.

254. Your 368, May 9, 5 p.m. I desire that you submit to the colleagues who cooperated with you, for their confidential consideration, the following draft of a reply to the Chinese Government’s note of April 27. This draft appears to meet the various requirements from the viewpoint of the United States more satisfactorily than that submitted in your telegram. The Department understands from London’s 129, May 27, noon, that the British Government is of the opinion that identic notes should be avoided in view of Chinese susceptibilities, an opinion in which the Department concurs. The Department believes therefore that in discussing the matter with your colleagues you should state that your Government is inclined to make this the text of its reply and would be prepared to forward it to the Chinese Government simultaneously with the forwarding of replies in similar tenor by the representatives of the other Governments concerned if a time can be agreed upon. The Department believes that early action is desirable. For convenience of reference, the paragraphs in the text herewith are numbered.

1. I have the honor to acknowledge the receipt of the Chinese Government’s note of April 27 in which there are expressed the desire that the United States should relinquish the further exercise of extraterritorial jurisdiction over its citizens in China and the hope that the American Government will take this desire into immediate and sympathetic consideration.

2. I am directed by my Government to state that it is prepared to give sympathetic consideration to the desires expressed by the Chinese Government, giving at the same time, as it must, due consideration to the responsibilities which rest upon the Government of the United States in connection with the problem of jurisdiction over the persons and property of American citizens in China. My Government has in fact for some time past given constant and sympathetic consideration to the national aspirations of the people of China and it has repeatedly given concrete evidence of its desire to promote the realization of those aspirations in so far as action of the United States may contribute to that result. As long ago as the year 1903, in Article 15 of the Treaty concluded in that year between the United States and China, the American Government agreed that it would be prepared to relinquish the jurisdiction which it exercised over its nationals in China “when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in so doing.” As recently as last year, the American Government gave very definite evidence of its desire to promote the realization of China’s aspirations by concluding with the Government of China on July 25, 1928, a treaty by which the two countries agreed to the cancellation of provisions in earlier treaties whereby China’s authority in reference to customs duties on goods imported into China by American nationals had been restricted.

3. The exercise by the United States of jurisdiction over its citizens in China had its genesis in an early agreement that, because of differences between the customs of the two countries and peoples and differences between their judicial systems, it would be wise to place upon the American Government the duty of extending to American nationals in China the restraints and the benefits of the system of jurisprudence to which they and their fellow nationals were accustomed in the United States.

4. My Government deems it proper at this point to remind the Government of China that this system of American jurisdiction, as administered by the extraterritorial courts, has never been extended by the United States beyond the purposes to which it was by the treaties originally limited. Those purposes were the lawful control and protection of the persons and property of American citizens who have established themselves in China in good faith, in accordance with the terms of the treaties and with the knowledge and consent of China, in the normal development of the commercial and cultural relations between the two countries. The United States has never sought to extend its sovereignty over any portion of the territory of China.

5. Under the provisions of the Treaty of 1844⁹⁵ and other agreements concluded thereafter which established that system, American citizens have lived and have carried on their legitimate enterprises in China with benefit both to the Chinese and to themselves. They have engaged extensively in cultural and in commercial enterprises involving large sums of money and extensive properties, and, as your Government has so graciously indicated in the note under acknowledgement, there has grown up and existed between the peoples and the governments of the two countries a friendship that has endured. The American Government believes that this condition of affairs has been due in large part to the manner in which the relations between the two peoples have been regulated under the provisions of these agreements the existence of which has assured to the lives and property of American citizens in China the security so necessary to their growth and development.

6. For the safety of life and property, the development and continuance of legitimate and beneficial business depend in the last resort, in China as elsewhere, upon the certainty of protection from injury or confiscation, by a system of known law consistently interpreted and faithfully enforced by an independent judiciary. Where such protection fails, the life and liberty of the individual become subject to the constant threat of unlawful attack while his property suffers the ever-present danger of confiscation in whole or in part through arbitrary administrative action. To exchange an assured and tried system of administration of justice, under which it is acknowledged that life and property have been protected and commerce has grown and prospered, for uncertainties in the absence of an adequate body of law and of an experienced and independent judiciary would be fraught with danger in both of the foregoing respects.

7. My Government has instructed me to say that the statement of the Minister of Foreign Affairs of China, telegraphed to the Press of the United States on July 26, to the effect that “all foreign interests in China purely for legitimate purposes will be duly respected,” has been noted by it with pleasure as indicating that the Government of China has not failed to appreciate the value to its foreign relations of the factors above-mentioned. My Government bids me add that it is therefore persuaded that the Government of China will concur in its belief, based as it is upon the facts set forth in succeeding paragraphs, that the sudden abolition of the system of protection by its extraterritorial courts in the face of conditions prevailing in China today would in effect expose the property of American citizens to danger of unlawful seizure and place in jeopardy the liberty of the persons of American citizens.

8. The Chinese Government has on several occasions during recent years expressed the desire that the Powers relinquish the exercise of extraterritorial jurisdiction over their citizens. In the note under acknowledgment reference is made to the position taken at the Washington Conference. It will be recalled that in pursuance of the Resolution adopted at that Conference, there was created a commission to inquire into the present practice of extraterritorial jurisdiction in China and into the laws and the judicial system and the methods of judicial administration of China, and that, under date of September 16, 1926, that commission made its report. This report contained an account of the conditions then prevailing in the judicial system of China as well as a number of recommendations carefully suggested as indicating the changes and improvements which would be necessary before there would be adequately developed a system of known law and an independent judiciary capable of justly controlling and protecting the lives and property of the citizens of foreign countries doing business in China. Your Government will recall that the Commission on Extraterritoriality which made these recommendations was composed of representatives from thirteen countries including both China and the United States, and that its recommendations, thoughtfully and reasonably conceived, were unanimously adopted and were signed by all of the Commissioners.

9. Because of its friendship for the Chinese people and its desire, to which allusion has been already made, to relinquish as soon as possible, extraterritorial jurisdiction over its own citizens in China, my Government has followed with attentive consideration this entire subject including particularly the progress which has been made in carrying out its recommendations since the rendition of this report. It fully appreciates the efforts which are being made in China to assimilate those western juridical principles to which your Government has referred in its note. But it would be lacking in sincerity and candor, as well as disregardful of its obligations towards its own nationals, if it did not frankly point out that the recommendations aforesaid have not been substantially carried out, and that there does not exist in China today a system of independent Chinese courts free from extraneous influences which is capable of adequately doing justice between Chinese and foreign litigants. My Government believes that not until these recommendations are fulfilled in far greater measure than is the case today will it be possible for American citizens safely to live and do business in China and for their property adequately to be protected without the intervention of the Consular Courts.

10. In conclusion, my Government has directed me to state that it observes with attentive and sympathetic interest the changes which are taking place in China. Animated as it is by the most friendly motives, and wishing as far as lies within its power to be helpful, the American Government would be ready, if the suggestion should meet with the approval of the Chinese Government, to participate in negotiations which would have as their object the devising of a method for the gradual relinquishment of extraterritorial rights either as to designated territorial areas or as to particular kinds of jurisdiction, or as to both, provided that such gradual relinquishment proceeds at the same time as steps are taken and improvements are achieved by the Chinese Government in the enactment and effective enforcement of laws based on modern concepts of jurisprudence.⁹⁶

For your information, a copy of this text is being sent to the American Embassy, London, for communication to the British Foreign Office. A copy will also be made available to the French Government.

Please repeat to Toyko requesting Embassy to communicate copy of draft informally and confidentially to Foreign Office.

Stimson

95. Miller, Treaties, vol. 4, p. 559.
96. On August 10, 1929, the Acting Secretary of State in a note to the Chinese Minister, in acknowledgment of his note dated May 2, stated that he was enclosing “a copy of a note in reply which is being sent to your Government by the American Minister to China under date August 10, 1929” (711.933/45). This note was the same as that telegraphed on August 1.