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

793.003/290½

The Chinese Minister (C. C. Wu) to the Chief of the Division of Far Eastern Affairs (Hornbeck)⁶⁰

undated

Memorandum

Personal observations of Mr. Wu on the Draft Agreement and Annex proposed on January 23, 1930. These observations are not yet complete owing to present lack of available material.

Article I

The exemption of American nationals from the jurisdiction of Magistrates’ Courts and Military Courts can probably be agreed to.

The restrictions placed on the jurisdiction of the Police Courts, however, seem too wide. It is hoped that a formula may be worked out and submitted shortly.

The limitation of trial jurisdiction to the eight District Courts (by District Courts are meant the modern courts of first instance) seems not only unnecessary but might well be a hardship and an inconvenience to American nationals, considering the extent of territory in China. It is suggested that all District Courts should have the same jurisdiction, for trial as well as for judicial process, but an American defendant may under certain conditions request transfer of jurisdiction from the local District Court to one of these, say, eight Courts which will have Special Chambers to deal with cases where Americans are defendants. This suggestion would seem to accomplish the desired object without the objections attaching to the original proposal.

Article II

The creation of a Special Court of Appeals would involve serious difficulties as it would mean a radical change in the Chinese system of courts. Considerable opposition may also be expected from the Provinces. According to the present system, appeal in major cases lies from the District Court to the Provincial High Court. It is suggested that Provincial High Courts, at least those which may be expected to have many cases having foreigners as defendants, should have Special Chambers to deal with such cases and that appeal in such cases should go from District Court to the Provincial High Court.

The Supreme Court of China in the large majority of cases decides cases without a hearing because the appeals are on questions of law and the arguments of counsel are submitted in writing and if a new trial is necessary the lower court is ordered to conduct it. Such being the case a Special Chamber in the Supreme Court is unnecessary.

Article III

With regard to the selection of legal counselors, nomination by the Permanent Court of Arbitration at The Hague seems impracticable since that Court is merely a panel of arbitrators who are called to perform their functions only when two disputant Governments nominate them. There seems to be no necessity for such cumbersome procedure if the qualifications of the counselors be clearly stipulated. The Chinese Government can then make the actual selection. It seems wise that the question of the nationality of the counselors should not be emphasized. Their function is not to defend the interests of their nationals but to see justice done irrespective of nationality.

The legal counselors are to observe only those cases in which Americans are defendants.

Article III–A

The principle of evocation is highly objectionable to the Chinese and bids fair to die of desuetude even in Siam where it originated. As all the other provisions of this proposed Agreement and Annex are intended to give confidence to American nationals in China there seems to be no object in resorting to this method which is both redundant for Americans and disagreeable to the Chinese.

Additional Article

With reference to the provisions in the Agreement and Annex that are restrictive in nature, e. g. Special Chambers and Legal Counselors, a time limit, say, two years, should be inserted.

60. Handed to the Chief of the Diviison of Far Eastern Affairs by the Chinese Minister on February 6, 1930, together with a covering note dated February 6, 1930 (not printed).