711.933/215
Memorandum by the Assistant Secretary of State (Johnson)
The Chinese Minister came to see me this afternoon, at my request, at 3:30.35a After some discussion of conditions in China, from which [Page 643] it appeared that the Minister either had very little information as to precise posture of affairs or was unwilling to be very definite on the subject, I thanked Doctor Wu for his letter of December third and for the enclosed memorandum attached thereto covering the various developments in the progress of judicial reform during the last twelve months. Referring to this memorandum I stated that it was very evident that the National Government of China was making strenuous efforts to put into effect new and modern codes of law and procedure but that it was equally evident that the progress in this matter was necessarily slow because of the magnitude of the task and that the codes were very new and untried. I expressed interest in the courts that were charged with the task of interpreting and enforcing these codes. The Minister handed to me the attached additional memorandum setting forth statistics as to the number of courts and their relation one to the other.
I told the Minister that I was not without some concern as to the freedom with which these courts were permitted to function and carry out their heavy responsibility of protecting property and property rights. I pointed out to him that information which was coming to us from China indicated to me that these courts were not only faced with the natural difficulties due to the unfamiliarity of the lawyers with the law and the functions of the court, but that apparently they were suffering from interference by the Government itself. I pointed out that during recent months our information was that in the area of Central China alone there had been nearly half a hundred instances where the private homes of American citizens and buildings owned by them had suffered from forced occupation by troops under orders of the Government itself without any apparent recourse on the part of the sufferers to any authorities that could give relief. I stated that the amount of destruction of property in these cases was very sad and very great, that in nearly every case the soldiers while occupying these buildings, not satisfied with peaceful occupation, had proceeded to remove first the contents of the house and then to remove the woodwork, windows, doors and even roofs. I said I brought the matter up at this time because I felt that it indicated only too clearly that there was little evidence of ability on the part of the Chinese to give adequate protection to American property through their courts and under codes when the military authorities acting under order of the Government were so regardless of the rights of the civilian population. I added that there was evidence that the civilian authorities of the Government desired to protect American citizens against such invasion of their rights but that there was also undisputable evidence that the military were not only contemptuous of civilian rights but were also contemptuous of the authority of the [Page 644] civil administration over them, paying no attention whatever to proclamations, order[s] or promises given by the civil authorities.
The Minister stated that he was quite aware of this situation; that he himself had suffered in this regard because he had been present in Nanking and had given promises and orders but that his work was made difficult by the fact that the foreigners would be absent from their houses even after they were vacated and it was hardly possible for them to keep the military out of vacant houses.
I stated that it seemed to me that this was increased evidence of what I was saying, namely, that the military were not inclined to pay the slightest regard to the rights of a civilian. I said that it seemed to me that this was a new phase of life in China, that I recalled very distinctly that during a long stay in Hunan,36 during which time the Chinese military were constantly moving here and there in the warfare that was then going on, that seldom, in fact I could not remember a case where the private property of American citizens had been occupied by the military, which fact led me to believe that a new spirit prevailed—a spirit that possibly was encouraged by those in authority. I said that we were very anxious to work out with the Chinese some process whereby these extraterritorial rights could be gradually done away with according to an arrangement involving progress on both sides. To begin with, we felt that we would like to see the new codes and the new courts in operation for a while in order that the Chinese people and American citizens living among them might become accustomed to this new regime that was beginning and acquire confidence in it and those putting it into operation.
The Minister stated that we had not been so anxious in the case of Turkey; that in that matter we had accepted the situation although even codes had not been perfected.
Doctor Hornbeck reminded the Minister that the situation in Turkey was not quite the same as the situation in China; that in Turkey there was a stabilized government, highly centralized, exercising its authority throughout the land; that at least there was confidence in the ability of this government to exert its authority wherever necessary, while in China at the present moment the Government was not stabilized nor was it able to exercise its authority over the military.
The Chinese Minister did not pursue this question further, but stated that, after all, each country had a right to make its laws to suit its own people; that it was not a question of making laws for aliens and that the alien came of his own volition and if he did not like what he found or the customs that prevailed, he could very properly go somewhere else.
[Page 645]I reminded the Minister that American citizens had not gone to China under Chinese law, that they had gone there under the protection of their own law, which they understood and were accustomed to, and what the Chinese were asking Americans to do now was not to accept something they had known or they had voluntarily accepted, but something that was unknown to them—unknown even to the Chinese themselves, and that it was only reasonable that a transition period should be arranged for during which both peoples could prepare for the change. I pointed out to the Minister that for something like fifty or sixty years American citizens had lived in China and had done business in China without extraterritorial rights; that during this time the Chinese Government had isolated them in factories in Canton, had not permitted them to venture into the interior, had denied them any position of equality before the courts of the land under Chinese law and that numerous times had subjected them to mass attack in the attempt to hold the whole group of Americans responsible for the shortcomings of one individual, in accordance with ancient Chinese laws; that so contrary was this treatment to the usual treatment accorded to aliens that great dissatisfaction arose and constant conflict occurred and that extraterritoriality was arranged for in the first treaties with the Chinese as a means of settling these conflicts and making it possible for the two peoples in their legitimate relations of trade to live in peace and without disturbing one another. I pointed out that under this system of extraterritoriality, commerce and business had thrived; that Americans had gone to China to live and to carry on their trade, to invest money and to engage in cultural undertakings. I reminded him that during this period the friendship between the Chinese and Americans had grown and that not a little of this was due to the fact that the extraterritorial provisions of the treaties made it possible for these peoples to live in peace. I stated that in view of this situation, it was quite evident that American citizens had not gone to China to live under Chinese law and that now they were facing the necessity of a change and it was only fair to them and to the Chinese themselves that this change should be gradual, or brought about in such a way that there should be no interruption of this friendly intercourse.
I stated that Americans were disturbed in their minds and uncertain as to the ability of Chinese courts to take over the task of protecting them and their rights against injustice, not only because of the widespread disrespect for such rights on the part of the military, but also because of the occurrence of the Sheng37 case in Shanghai, which indicated that the National authorities without any legal process [Page 646] had determined to expropriate the private estate of a family that had been established in Shanghai as a family trust for the use of the family and also for charitable purposes.
The Minister stated he had very little information regarding the Sheng case, except what he had seen in the paper, and he understood from the press that the Government was proceeding on the ground that Sheng Kung Pao during the Manchu regime had acquired his fortune by speculation and that, therefore, this money should revert to the state. I told the Minister that it was not so much the reason why the state had acted in the matter that concerned me or concerned Americans in China, but the method that was pursued. In other words, the whole matter had been handled apparently as an administrative matter, without any process of law, even such as that which seemed to be required under the new codes which the Chinese were now so industriously promulgating.
I stated that this Government was very seriously interested in discussing some plan whereby it could proceed step by step with similar steps taken by the Chinese in relinquishing its jurisdiction over its citizens in China; that one of the first steps that should be undertaken, it seemed to me, was to accustom our citizens to the new codes and to their enforcement. I said that it occurred to me that a very proper and right contribution to this period would be for us to apply Chinese law to the adjudication and settlement of controversies among Americans through the instrumentality of existing American judicial tribunals in China. I said that such a step would result, in my mind, in bringing these codes definitely and concretely to the attention of American citizens. It would enable them to adjust their affairs to the new law that was coming into force. It would enable them to understand the spirit behind that law and all of this would be going on at the same time the Chinese people themselves were becoming accustomed to that law through the operation of their own courts. I stated that such a proposal recommended itself to me considerably further because it would enable our courts to cooperate with the Chinese courts more closely than they had been able to cooperate in the past, working as they were in the same medium.
The Chinese Minister asked me whether there was any similar case where foreign law had been enforced by a court alien to that law. I said I could not at the moment think of any. The Minister stated that so far as he knew, the only example of such enforcement by a court of an alien was to be found in the enforcement of municipal law by the courts. He said he thought such a proposition was impossible of fulfillment. He asked me whether this was not a proposal similar to that made by the British some three years ago to the Chinese Government. I said I thought it was. He said at that time he [Page 647] had made up his mind that it could not be operated and pointed out that it would be very difficult, if not impossible, for an American judge who had no knowledge of Chinese to enforce and interpret a code in the Chinese language, especially where it was very difficult to make authoritative translations. He further pointed out the difficulty that American lawyers would have in understanding the law and stated that it appeared to him to be wellnigh impossible for American courts to inform themselves of the judgments of the Chinese courts. I said that naturally it would be a difficult proposition to handle, but that nevertheless I felt it was a procedure that could be taken on and tried. I asked him to give the matter further and sympathetic thought before he turned it down completely. This he promised to do.