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

711.933/238

Memorandum by the Assistant Secretary of State (Johnson)

[Washington,] December 17, 1929.

The Chinese Minister called today. I told him I had read with interest his comments upon my proposal that one method for accustoming the peoples of our two countries to the change that was proposed would be for the two countries to agree to the enforcement of Chinese law through the instrumentality of American courts in China. I stated that I regretted that he seemed to think that this was impossible; that I for my part did not feel that it was as impossible as he stated.

The Minister stated that he felt his arguments were quite conclusive. He referred to the fact that the time was getting short and that we had made little progress and to the fact that the Secretary had stated that he hoped we would find some basis for an understanding, and stated that although he had had no proposals to make in the beginning, he now had a proposal which he would like to offer me and he then read the attached memorandum to me, which he asked me to consider. I told him I would give it every consideration and try to give him my comments on it later.

I pointed out to him that there seemed to be some inconsistency between the first and second paragraphs as the first paragraph placed all American nationals in China under the jurisdiction of Chinese laws and courts after January 1, 1930, while the second paragraph provided for the establishment of certain special courts at Canton, Hankow, Shanghai, Tientsin and Harbin. I asked him what the purpose of these special courts was. He said his proposal was based on a proposal that had been made by the Dutch Minister at Peking. He said his idea was that the special courts at these places would have jurisdiction in those special places, that he had not considered that it was necessary to make similar provision in the other ports or in ports voluntarily opened for trade.

I remarked further that in the paragraph providing for a twenty four-hour period within which suspected individuals should be handed over for investigation, that this seemed to apply to the special court area and not to other places in China. The Minister said he believed the law was universal in China. I said I did not think so as it had not been the case for those arrested in connection with the raid on the Soviet Consulate at Harbin.⁴⁰ They had been held for a considerable time before they were told of the charges against them or given an opportunity to prepare their case.

The Minister stated that he felt that paragraph 7 represented a great concession as it permitted the trial outside of China of cases between Americans and guaranteed the execution of the decisions of such trials in China.

The Minister was very much pleased with the idea of legal advisers rather than foreign judges in these courts, pointing out that the legal advisers would have a very real function to perform, whereas a foreign judge in the Chinese court would be a minority of one in a group and in case he was overruled, would have no record of his opinion.

I told the Minister I would give consideration to his proposals and let him know our attitude later.

N[elson] T. J[ohnson]

[Annex]

The Chinese Legation to the Department of State

Memorandum

(1) Beginning with January 1, 1930, all American nationals in China to be subject to the jurisdiction of Chinese laws and courts.

(2) Special courts to be established at Canton, Hankow, Shanghai, Tientsin and Harbin. They are to have jurisdiction as courts of first and second instance over civil and criminal cases arising within their several jurisdictions with Americans as defendants. The Supreme Court shall be the final court of appeal.

(3) The Special Courts to be organised according to the Law for the Organisation of the Judiciary, and to have as Presidents, Presiding Judges, Judges, and Procurators persons possessing good knowledge and long experience of the law. The names, qualifications, and salaries of such officers to be announced publicly.

(4) The Chinese Government to appoint a certain number of well known foreign jurists as Legal Advisers of whom one to three to be assigned to each of the Special Courts. The names and qualifications of such Advisers to be announced publicly.

(5) The Legal Adviser to have access, whenever desired, to all the documents and evidence of the case though he is not to participate in the trial. The Judge in chargé of a case, before rendering judgment, to request the Legal Adviser to present a written opinion, to which due consideration is to be given by the Judge while retaining his independence of judgment.

(6) Where an American is arrested on suspicion of having committed a crime in the jurisdictional limits of a Special Court, he is to be delivered to the Special Court for investigation within twenty-four hours, exception being made only in the case of holidays.

(7) Civil cases in which both parties are Americans may, if desired, be tried by an American court situated outside Chinese territory and the judgments will be given effect to where execution through Chinese courts is needed, unless such judgments are inconsistent with the judgments of Chinese courts or are contrary to public policy.

(8) Except paragraph 1, the provisions of the above paragraphs may be revised or repealed at any time on and after January 1, 1932.

40. May 27, 1929; see pp. 192–197.