Papers relating to the foreign relations of the United States, 1930, Volume II

711.933/264

The Department of State to the Chinese Legation⁵⁴

undated

an outline of possible provisions, for purposes of discussion without present commitment, january 23, 1930

Article I

Other than as modified by the provisions of this Agreement and the Annex thereto, after January 1, 1930, American citizens in China shall be subject to the jurisdiction of the modern Courts of Justice (Shen P’an T’ing) through which judicial orders may issue in accordance with law and established procedure.

American citizens shall not be subject to the jurisdiction of magistrate’s courts or military courts and shall be subject to the jurisdiction of police courts only in the manner set forth in the Annex to this Agreement.

While the several modern courts now established in China may take jurisdiction for the purpose of the issuing of judicial process looking to the establishment of a “prima facie” case in any case involving an American citizen, such cases shall be brought to trial only before the modern courts established at Harbin, Mukden, Tientsin, Shanghai, Hankow, Chungking, Canton and Yunnanfu, at each of which places there shall be created a special bench for the trial of foreigners.

The geographical divisions for which these several designated courts shall function as courts of first instance for the trial of foreigners shall be determined upon grounds of practicability of access, following consultation between the American and the Chinese Governments.

Article II

A Special Court of Appeals for trying appeal cases involving foreigners shall be established at Nanking. Appeals shall lie from this Appeal Court to the Supreme Court of China, which shall establish a special bench for the hearing of appeal cases involving foreigners.

Article III

The Chinese Government agrees to take immediately into its service for such period as it may consider necessary, not being less than five years from the date of the signing of this Agreement, a number of legal counselors or jurisconsults who shall be selected and engaged as officials of China by the Chinese Government from a panel of legal experts nominated by the Permanent Court of Arbitration at The Hague. In addition to preparing the panel of nominees, the Permanent Court of Arbitration shall recommend the amount and the conditions of payment of the salaries of the legal counselors to be thus selected by the Chinese Government. The panel shall be selected by the Court from lists prepared by the law associations of the several countries concerned, the Court’s nominations and the final selection by the Chinese Government to be made with particular regard to the merit and standing as jurists of the several nominees. China and each of the foreign countries interested shall have equal representation on this body of legal counselors as finally appointed by the Chinese Government. These legal counselors shall serve under the Minister of Justice and shall be stationed at Shanghai, from which place they may be deputed by the Ministry of Justice, as occasion requires, for service, during the hearing of cases involving foreigners enjoying extraterritorial rights, in those modern courts especially designated for the trial of such cases. It shall be the duty of these legal counselors to observe, without interfering in the performance by the judges of the courts of their duties, the workings of those modern courts in which cases involving foreigners enjoying extraterritorial rights are heard or brought to trial, and to forward to the Minister of Justice such reports as the legal counselors may consider necessary, furnishing simultaneously to the Legation concerned copies of such reports. In addition, these legal counselors shall receive directly all complaints to which the administration of justice in civil, commercial or criminal matters, the execution of sentences, or the manner of application of the law, may give rise, and at the request of any of the interested parties shall bring such complaints to the notice of the Minister of Justice with a view to ensuring the observance of the provisions of Chinese law. However, in those cases in which the law invoked is in its nature markedly divergent from the general concepts of western jurisprudence, the legal counselors may suggest to the Ministry of Justice some modification in the application of the law in question, in order that conflicts in national judicial usages may be gradually reconciled and that foreign as well as Chinese litigants shall, for a transition period, have recourse to legal procedure not markedly unfamiliar to them.

Similarly, these legal counselors will be authorized to receive such complaints as may be caused by domiciliary visits, search or arrests; moreover, immediately following any domiciliary visits, search or arrests affecting foreigners enjoying extraterritorial rights in any judicial district, the local representative of the Minister of Justice shall notify the nearest consul of the nationality of the foreigner concerned, as well as the legal counselor who shall be most accessible in point of time. The local representative of the Minister of Justice shall, in such cases, be authorized to correspond directly with the Consul concerned and with the legal counselor, through the medium of which officials all matters affecting foreigners enjoying extraterritorial rights shall be referred to the higher authorities of the Governments concerned.

Article III–A

For a period of five years following the signing of this Agreement, the United States, through its diplomatic and consular officers in China, whenever in its discretion it deems it proper so to do in the interest of justice, by means of a written requisition addressed to the judge or judges of the court in which such case is pending, may evoke any case pending in any Chinese court, except the Supreme Court, in which an American citizen or a person, corporation, company or association entitled to the protection of the United States is defendant or accused.

Such case shall then be transferred to said consular official or to the United States Court for China for adjudication, and the jurisdiction of the Chinese Court over such case shall thereupon cease. Any case so evoked shall be disposed of by said consular official or by the United States Court for China in accordance with the laws of the United States properly applicable, except that as to all matters coming within the scope of Codes or Laws of the Republic of China regularly promulgated or in force, the texts of which have been communicated to the American Legation in Peiping, the rights and liabilities of the parties shall be determined by Chinese law.

For the purpose of trying such cases and of executing any judgments which may be rendered therein, the jurisdictions of the American consular officials in China and of the United States Court for China are continued.

Should the American Government, within a reasonable time after the promulgation of the various Codes, Laws and Ordinances, perceive any objection to such Codes, Laws and Ordinances, the Chinese Government will endeavor to meet such objections.

Article IV

In regard to all judicial processes affecting foreigners, the Chinese Government is most desirous that the transition from foreign to Chinese jurisdiction shall be free from vexatious misunderstandings and, with a view to obviating such misunderstandings, will make immediately effective the specific terms of agreement set forth in the Annex to this Agreement.

Article V

The Chinese Government declares that the Chinese Courts will ensure to American citizens in China, both as regards person and property, protection in accordance with international law and the principles and methods generally adopted in other countries.

Article VI

This Agreement shall not be interpreted as modifying such arrangements as may be in force in international settlements and foreign concessions in China which provide for the operation of courts, for the issuance of deeds to property or for taxation.

Article VII

In all cases in which title to real property in China is established by evidence of title customary in the locality concerned, such titles shall be permitted to rest undisturbed, and no title to property in China held by an American citizen shall be qualified or conditioned in consequence of any stipulations of this Agreement.

Article VIII

Private houses, vessels, business premises and other properties owned or leased by American citizens shall not be entered forcibly or be searched unless warrants in each case have been issued by the competent judicial authority with guarantees against abuse.

Article IX

It shall be open to American citizens and organizations freely to enter into agreements for the settlement of civil or commercial controversies by arbitration and, when called upon to do so, the Courts of Justice shall take judicial cognizance of such agreements and shall enforce the awards made in pursuance thereof unless, in the opinion of the competent court, the award is contrary to public order or good morals.

Article X

American citizens and organizations operating commercial vessels in Chinese coastal waters and on Chinese waterways in conformity with the treaties in force shall not be subject to discriminatory treatment nor shall the vessels or other property of such companies be subject to restraint or requisition without legal warrant.

Article XI

In all matters for which provision is made in this Agreement (Treaty) citizens of the United States shall enjoy in China all of the rights enjoyed by the nationals of the country most favored in such respects and they shall not suffer treatment in any manner discriminatory as compared with citizens of the Republic of China or of any other country.

Article XII

Except as modified in this Agreement existing treaties between the United States and China shall remain in force.

ANNEX

In response to requests that have been formulated, and on the occasion of the conclusion of an agreement for the relinquishment by the American Government of extraterritorial jurisdiction over American citizens in China, the Chinese Government, animated by a desire to dissipate any concern entertained by American citizens in China because of their lack of familiarity with the new codes of law about to be applied to them hereafter, and desirous of placing American citizens more particularly in possession of the dispositions taken in their behalf by legislation and otherwise by the Chinese Government, addresses this present declaration to the American Government for notification to American nationals resident in China, such decision to serve as an annex to the Agreement about to be concluded in reference to the abolition of extraterritorial jurisdiction over American citizens in China:

1

With respect to judicial matters, all judgments given by former Courts—even if they have not been executed—are considered as definitely settled and in no case may be reviewed; also all definitive judgments rendered by the former Courts must be executed. In short, all suits terminated under the old judicial system are considered as definitively settled and may not again be opened.

All legal actions to which an American citizen or organization is a party as plaintiff or defendant pending at the time when this Agreement is signed by the representatives of the two Governments shall continue in the same tribunals until final adjudication and execution of judgment. All cases pending before the American consular officials in China and before the United States Court for China at the time of the ratification of this Agreement shall take their usual course before such officials until such cases have been finally disposed of, and the jurisdiction of the American consular officials and of the United States Court for China shall remain in full force for this purpose. In connection with such cases pending before the American consular officials and the United States Court for China, the Chinese authorities shall, upon request by the American authorities concerned, lend their assistance in all matters pertaining to the cases designated.

All cases in which action shall be instituted subsequently to the date of the exchange of ratifications of this Agreement, shall be entered and decided in the Chinese Courts, whether the cause of action arose before or after the date of said exchange of ratifications.

2

Police courts shall have jurisdiction over American citizens only in matters of minor importance which are not punishable by detention or imprisonment or by fines in amount of more than five dollars. In the event that a police court shall properly have found an American citizen guilty of an offense within the court’s jurisdiction, such American citizen shall have the option of paying a fine or upon written application, of submitting to detention at the rate of one day’s detention for each dollar of the fine imposed, such detention to be in accordance with the provisions of section 12 hereinunder.

3

A national of the United States arrested in flagrante delicto for an act which is termed a misdemeanor or a crime may not be kept under arrest or detention for more than twenty-four hours without being brought before the competent judicial authority for hearing.

Except in cases of flagrante delicto, no national of the United States shall be arrested or imprisoned without an order emanating from the competent judicial authority.

4

The Chinese Government has in contemplation a set of generous regulations governing release on bail, which release shall be granted in every instance except in cases of crimes punishable by death or imprisonment for life. In all cases, the sum demanded for bail shall be reasonably proportionate to the degree of this misdemeanor. In cases of minor offenses, release on bail shall always be ordered, unless this entails danger to public safety or unless such provisional release is calculated to impede the investigation of the case. When a person appeals from a sentence, the same facilities for release on bail as mentioned above shall be granted him until the sentence of the Appellate Court shall have been handed down.

5

American citizens shall not be arrested or subjected to limitation of their individual liberty for the purpose of provisionally safeguarding civil debts other than in those cases where the execution to be carried out on the debtor’s goods actually in China would appear to be subject to serious danger from an act of the debtor, or where it is not possible to safeguard the execution by any other means.

6

The Chinese Government agrees to take immediate steps to make available to American citizens a form of legal protection equivalent to that provided by a writ of habeas corpus under American law.

7

In matters of personal status, that is, all matters relating to marriage, conjugal rights, divorce, judicial separation, dower, paternity, affiliation, adoption, capacity, majority, guardianship, trusteeship and interdiction; in matters relating to succession to personalty, whether by will or on intestacy, and to the distribution and settlement of estates; and in matters of family law in general, it is agreed between the two Governments that as regards American citizens in China, the American courts and/or American consular officers in China will alone have jurisdiction.

The present stipulation does not affect the special attributions of consuls in matters of status in accordance with international law or special agreements which may be concluded, nor the right of Chinese courts to request and receive evidence in regard to matters attributed by the provisions of this agreement to the competence of the national tribunals or authorities of the parties concerned.

By way of exception to the first paragraph of this Article, the Chinese modern courts shall also have jurisdiction in the matters referred to therein, if all the parties to the case submit in writing to the jurisdiction of the said courts.

8

An American citizen appearing before a Chinese court as party to a civil or criminal action shall have full freedom to employ an interpreter and/or legal counsel of his own or other nationality to represent him before the Court, and such counsel and interpreter shall have the same rights and privileges as Chinese lawyers and interpreters appearing before the Court. Hearings shall be in the Chinese language, but the Court shall take measures to ensure that such English and Chinese translations are made as may be necessary for an understanding of the proceedings by all parties to the case.

9

Since, according to Chinese law, Court proceedings are, in general, and in all but exceptional cases, open to the public, the parties interested in a suit or in the welfare of the litigants shall have the right to be present as spectators, in all but exceptional cases, without, however, having the right to take active part in the trial in any way whatsoever.

10

In all suits, criminal as well as civil, the judgments of the court shall be drawn up in writing and shall set forth the considerations of law and of fact on which they are based. Parties to a suit or persons authorized by them, shall, upon payment of the usual official fees for such copy, have the right to obtain certified copies of the testimony and judgment in any case.

11

All questions relating to security for costs, to the execution of sentences, to the service of judicial and extra-judicial decrees, to commissions rogatoires, to orders for the payments of costs and expenses, to free legal assistance, and to imprisonment for debt, are left to be regulated by special conventions between China and the United States of America.

12

The Chinese Government is continuing its measures to ameliorate the condition of its prisons so that they may be in conformity with modern requirements.

Meanwhile, nationals of the United States condemned to detention or imprisonment shall be detained or imprisoned only in modern detention houses or prisons where the health of prisoners is safeguarded by the provision of adequate detention quarters, food, heat, light and sanitation in accordance with modern standards of prison accommodation. American prisoners under detention at places where there are no modern detention houses or prisons, shall not be detained in old style prisons or detention houses, but shall be accorded special treatment as to place of confinement, food, heat, light and sanitation as provided in modern prisons. The Chinese authorities shall take steps promptly to effect the transfer of such prisoners to one of the several existing modern prisons designated, after consultation between the American and Chinese Governments, as places suitable for the incarceration of American prisoners.

When for any reason whatsoever an American citizen is detained or imprisoned by the Chinese authorities, it shall be the duty of such authorities immediately to inform the nearest American Consul of the detention or imprisonment of the American citizen, and the Chinese authorities shall permit free communication between the Consul and the prisoner.

13

Nationals of the United States who have been arrested and imprisoned shall have the right, in conformity with prison regulations, to communicate with the nearest American Consul, and the Consuls or their representatives shall be permitted to visit American prisoners, upon conforming to prison regulations. The Chinese authorities will immediately transmit such communications from American prisoners to their Consuls or to other persons whom the prisoners may elect to address.

54. Memorandum of January 23, 1930, by the Chief of the Division of Far Eastern Affairs (Hornbeck) attached to file copy states: “The original of this material for study was handed to the Chinese Minister by Mr. Hornbeck on January 23, 1930, with the express statement that it was not to be taken as a definite offer on the part of the American Government but was to be regarded as material for study. Mr. Hornbeck stated that he thought it should not be expected that any definite offer will be made until after the return of the Secretary of State from the London Conference.” The Secretary of State was absent from Washington from January 7 to April 29, 1930, for the London Naval Conference (see vol. i, pp. 1 ff.). A copy of this document was handed to the Counselor of the British Embassy on January 25.