I wish to thank you for your kindness in furnishing me with a copy of the
proposals of His Majesty’s Government for dealing with the question of
extraterritoriality in China.32 I enclose, in the form of an Aide
Mémoire, the comments which the Department has to make upon
these proposals and which you will wish to communicate to your
Government. Copies of both memoranda will be telegraphed to our Legation
at Peking. As you will observe from this comment, we have informed the
Government of China that we are prepared to enter into negotiations,
“when convenient to the Chinese Government,” which shall 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 of
laws based on modern concepts of jurisprudence.
I may say that we desire to cooperate with and work with the other
Governments in this matter and desire to be informed of progress made by
the other Governments in any negotiations which they may undertake as we
shall endeavor at all times to keep the other interested Governments
informed of what progress we may make.
This Government has already had conversations with the Chinese Minister
here in Washington on the subject, although no definite progress has
been made. We therefore feel that we must continue such conversations
here, if the Chinese Government so desires.
For the information of your Government, I enclose a copy of a draft of a
proposal which we are considering for possible presentation to the
Chinese Minister here in connection with these conversations.34 You will note that the
idea upon which it is based is that of applying Chinese law in American
courts in China after such laws have been examined by a commission to be
set up. This is one of several possible proposals which we have under
consideration.
[Enclosure]
The Department of
State to the British
Embassy
Aide Mémoire
Careful consideration has been given to the Aide
Mémoire left by the British Chargé with Mr. Johnson on
November 18, 1929, and the Department of State has the following
comments to make in regard to the principles which in the opinion of
His Majesty’s Government should govern any attempt to discover a
solution of the problem of the abolition of extraterritoriality.
1. The American Government is happy to find itself in agreement with
His Majesty’s Government in the view that “the abolition of
extraterritoriality must be a gradual and evolutionary process, and
the extent of the initial modifications that can be made in the
present system and the rate of subsequent progress must be
determined by the extent to which the Chinese Government accept this
proposition and the nature of the safeguards that they may be
willing to erect at each stage of the process.”
In its note to the National Government of the Republic of China of
August 10, 1929 the American Government stated that it 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.” And again on
November
[Page 637]
1, 1929 the
American Government restated its position concluding with the
following:
“However, assuming that the Chinese Government has not failed
to take into consideration the main points set forth in my
note of August 10, and desiring as far as possible to meet
the wishes of the Chinese Government, my Government is
prepared to enter into negotiations, when convenient to the
Chinese Government, which shall have as their object, as
indicated in the concluding paragraph of my note of August
10, ‘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.’”
2. The American Government finds itself disposed to concur in the
objections raised by His Majesty’s Government to the proposal that
extraterritorial jurisdiction be dealt with by geographic areas. It
agrees that there is better chance of success in dealing with the
matter by categories of cases but feels that it may be that in the
course of any negotiations that may take place it may be desirable
to discuss both principles.
In dealing with the question by categories of cases the American
government concurs in the belief of His Majesty’s Government that
the method of transfer of jurisdiction should be in the general
order (1) civil cases, (2) criminal cases and (3) personal status
matters.
3. The American Government is giving consideration to the question of
the possibility of applying Chinese law progressively to
controversies involving American citizens as defendants through the
instrumentality of the American consular courts and the United
States Court for China. This suggestion was made by the Commission
on Extraterritoriality. The American Government agrees with His
Majesty’s Government that this method would help to bring to the
attention of the Chinese Government the necessity of adopting codes
and of making them universally applicable throughout China.
4. The American Government agrees with the view of His Majesty’s
Government that in applying the principle of transfer by categories
of cases the most that can be envisaged as practicable in the near
future is the transfer of jurisdiction in civil cases. This
Government finds it somewhat difficult, however, to understand how
this is to be accomplished and still pursue the policy outlined in
paragraph eight of the Aide Mémoire of His
Majesty’s Government, namely, that suits between British subjects
should continue to be heard in British courts. The American
Government since February 23, 1927 has not been insisting upon the
right of American citizens
[Page 638]
to be represented in Chinese courts by American consular officers
thus putting into effect the recommendation of the Commission on
Extraterritoriality on that point and is urging its citizens to take
their cases into the modern courts of China. Thus if there is to be
any further step in regard to American civil cases it must be in the
direction of placing such cases within the jurisdiction of the
modern Chinese courts.
5. The American Government concurs with the view of His Majesty’s
Government that if and when jurisdiction in any class or classes of
civil cases is to be transferred to a Chinese Court it would appear
to be more satisfactory that that court should be a modern court
officially organized under the existing system of judicial
administration and properly staffed, rather than a special court
created to meet the situation.
6. The American Government agrees with the views of His Majesty’s
Government that it will be necessary to examine carefully the
Chinese codes before any decision can be reached in regard to the
transfer of any class of cases subject to such codes.
7. The American Government is happy to find itself generally in
agreement with the views expressed by His Majesty’s Government in
regard to the question of safeguards. While it is not as yet
prepared to commit itself to any particular view in regard to the
employment by the Chinese Government of foreign judges, the question
is being considered.
8. The views of His Majesty’s Government in regard to suits between
British subjects have been discussed in connection with paragraph
four. The American Government would like to be further enlightened
in regard to this question.
9. The American Government would be interested in any suggestions
that His Majesty’s Government may have to make looking to the
protection of foreign shipping and the question of the enforcement
of Chinese taxation.
10. The American Government feels doubt with regard to any attempt to
distinguish between types of criminal cases feeling that abuses are
likely to be perpetrated to as great an extent in petty cases as in
others. Consideration is being given, however, to this
suggestion.
11. The American Government agrees with His Majesty’s Government that
the administrative aspect of extraterritoriality will need careful
consideration and would welcome any suggestions that His Majesty’s
Government may have to make as to the nature of the stipulations
that should be included in any understanding intended to protect
aliens against domiciliary visits and vexatious inspections made for
the purpose of collecting taxes and enforcing regulations.
Washington, December 4,
1929.
