793.003/1
The Chargé in China (MacMurray) to the Secretary of
State
Peking, August 9,
1918.
[Received September
18.]
No. 2184
Sir: I have the honor to refer to a
communication, under date of July 16th last, with which Mr. Charles
Denby, special assistant to the Department of State, enclosed a
memorandum embodying a suggestion that the foreign courts of all
nationalities conducted under the system of extraterritoriality in
China be abolished, and that China be urged to establish courts of
her own with jurisdiction over cases in which foreigners are
parties.
I venture to comment that this suggestion, although perhaps not
realizable in the immediate future, would nevertheless seem to
indicate a stage of development towards which Chinese and foreign
residents alike should find it advantageous to strive. While it is
true that the present administration of justice in China is not such
as would warrant the inclusion of foreigners under its jurisdiction;
and while it is further unfortunately true that the Chinese are in
general apathetic and unresponsive to any suggestion of improvement,
it may nevertheless be urged that this apathy is itself the result
of the hopelessness with which they regard any possibility of
obtaining the right to be entrusted with any responsible share in
the administration of their laws where foreigners are concerned; I
believe it is the fact that, in the case of this and of certain of
the other limitations upon their sovereignty, imposed by the older
treaties, the feeling of even the more ambitious Chinese is that the
attitude of foreign nations, and particularly of Japan, has been
such
[Page 675]
as to warrant no hope
that a betterment of conditions through the efforts of China would
receive the sympathy and cooperation of the powers.
If this belief be correct, there is at least an explanation, if not a
justification, of the rather short-sighted view which the Chinese
are too generally inclined to take towards the international
obligations thus imposed upon them—the view that such restrictions
upon their freedom of action should not only be jealously guarded
with a view to preventing any undue enlargement of the privileges
already conceded, but should whenever possible and by all available
means be contested, evaded, and rendered nugatory. It is at least to
be hoped that the proposal by our Government of a plan devised to
allow them a fuller share of responsibility in dealing with foreign
interests would encourage in the Chinese the broader and more
far-sighted view, that only by deserving it can they entitle
themselves to the enjoyment of fuller rights than have hitherto been
allowed them. It was, of course, by a patient devotion to this ideal
that Japan rid itself of extraterritoriality.
More recently, and under circumstances that, though less conspicuous,
are perhaps even more remarkable by reason of the comparative
smallness of the state concerned, Siam has in its more important
international relations (i. e., with Great Britain and France)
almost completely done away with the restrictions of
extraterritoriality. As the Department is aware, this result has
been accomplished largely through the influence of two American
advisers, the late Mr. Edward Strobel, and Mr. Jens I. Westengard,
who, under conditions which in many respects were analogous to those
now prevailing in China, were able to bring the Siamese Government
to the realization that by scrupulous observance of all the
obligations imposed upon them, and by sedulous improvement of their
legislation and judicial administration, they would eventually put
themselves in a position to claim the sympathy and assistance of the
powers with which their relations had hitherto been continually
irritated by the attempt of Siam to minimize those obligations. The
result was that save for certain safeguards, which are scarcely
onerous to the Siamese, the jurisdiction over subjects of Great
Britain and of France has been almost wholly rendered over to Siam,
under a system not fundamentally different from that which Mr. Denby
suggests as eventually possible in the case of China.
Although fully realizing the preoccupation of the Department, and
feeling some hesitancy in urging consideration of a matter which may
for the present be deemed somewhat academic, I venture to urge that
the matter is one which is at least worthy of consideration; and I
venture further to suggest that if this view is in any degree shared
[Page 676]
by the Department, it
would be advisable to consult Mr. Westengard (whose address is
understood to be the Harvard Law School, Cambridge, Mass.) with a
view to ascertaining his judgment upon a proposal which so closely
resembles the plan which he brought to a successful realization in
Siam.
I have [etc.]
[Enclosure]
The Special Assistant to the Department of
State (Denby) to the Secretary of State
Dear Mr. Secretary: I enclose herewith
a memorandum making a suggestion of a somewhat radical character
in regard to the exercise of extraterritorial jurisdiction in
this country. I beg you to give this matter your sympathetic
attention as it is of vital interest to us here, and one of the
great steps we can take to complete the post war program for the
United States. This idea is my own, if [is?] entirely original in its present form and I want
the American Government to have the benefit of it, and to this
end I urgently recommend that you take it up at once with the
Chinese Minister at Washington in a tentative way in order that
to America may attach the credit and advantage of having first
approached the Chinese Government in this sense.
Faithfully yours,
[Subenclosure]
Memorandum of the Special
Assistant to the Department of State
(Denby)
The time has not yet arrived to abolish extraterritoriality in
China. Extraterritoriality as applied to citizens of the United
States was established by the Treaty of Wang-Hea, signed in
1844,5 Article[s]
XXI and XXV of which read as follows:
Article XXI
“Subjects of China who may be guilty of any criminal act
towards citizens of the United States shall be arrested
and punished by the Chinese authorities according to the
laws of China, and citizens of the United States who may
commit any crime in China shall
[Page 677]
be subject to be tried and
punished only by the Consul or other public functionary
of the United States thereto authorized according to the
laws of the United States; and in order to the
prevention of all controversy and disaffection, justice
shall be equitably and impartially administered on both
sides.”
Article XXV
“All questions in regard to rights, whether of property
or person, arising between citizens of the United States
in China shall be subject to the jurisdiction of, and
regulated by the authorities of their own Government;
and all controversies occurring in China between the
citizens of the United States and the subjects of any
other Government shall be regulated by the Treaties
existing between the United States and such
Government[s] respectively, without interference on the
part of China”.
By the American Commercial Treaty signed at Shanghai in 19036 provision was made to abolish extraterritoriality
at some proper time. Article XV of this Treaty reads as follows:
“The Government of China having expressed a strong desire
to reform its judicial system and to bring it into
accord with that of Western nations, the United States
agrees to give every assistance to such reform and will
also be prepared to relinquish extraterritorial rights
when satisfied that the state of the Chinese laws, the
arrangements for their administration, and other
considerations warrant it in so doing.”
It is evident that China has not yet established her right under
our Shanghai Treaties to call upon us to abolish
extraterritoriality, but there are growing evidences that
extraterritoriality, as at present administered, is a barrier to
our relations with China, and is a handicap to the Chinese
themselves in their attempt to establish autonomous government
free from foreign control. The extraterritorial provisions in
the treaties which the foreign powers have imposed upon China
were intended to protect the foreigner from the entire conflict
between their ideas of legal administration and our own; above
all to protect the foreigner from the possible animus of Chinese
authorities against a litigant because of his nationality.
Undoubtedly this purpose has been served and without this system
foreign residence in China would have been impossible. The
advantages of the system are manifest; the disadvantages were
not foreseen at the time that treaties were put into effect. In
the early days of the commercial intercourse of foreigners with
the Chinese the foreign merchant’s life was his own, he was
quite content with his own little world, with his race course
and his club. He conducted his business in a commercial house to
which the Chinese
[Page 678]
customers in general had a limited access, and he conducted his
business through his compradore, which person was his link with
the Chinese world. He felt no necessity to learn the Chinese
language, nor, in fact, to familiarize himself with the market
with which he was dealing. To compensate himself for this
deficiency, however, he had the protection of his own laws and
the sanctity of his own national concession in some treaty port.
The requirements, however, of modern business in China have
changed all this. The young men of the great foreign firms, such
as the British-American Tobacco Company, the Standard Oil
Company and others find it necessary to go widely throughout the
country. They are, in fact, breaking down the barriers which
were heretofore highly prized by the foreign merchants and we
now find these barriers which protected us from Chinese ill
treatment in fact obstacles in the way of our intercourse with
them. We do not get at the market nor do we get at the people.
The missionaries have long outgrown this and in their
intercourse with the Chinese the treaty port concession has lost
its value. They have learned the Chinese language, they have
mixed freely with the people; they have secured through treaty
the right to secure land elsewhere than at treaty ports, and
have, in fact, occupied the anomalous position of Foreigners
resident throughout the Republic remote from any court that
could bring them to trial for their misdeeds or for the
settlement of their civil controversies. This is a lesson to the
foreign interests in general that extraterritoriality while a
protection is at the same time a distinct limitation on the
activities of foreigners in this country. The Japanese have not
been slow in finding this out. They reason with justice that if
they can keep the foreign world chained to the principle of
extraterritoriality, Chinese tariff and economic subjection they
thus limit the foreign activity and leave it free to the
Japanese to place themselves outside these restrictions. By
reason of racial and linguistic similarity the Japanese have, in
fact, readier access to the Chinese people than the foreigner
can ever hope to have. They are profiting thereby to enter the
markets of China freely and as it goes on there will be less and
less doubt that they are gainers by what we have considered our
own protective measures.
It is not probable that conditions in China at the present time
would justify the abolition of extraterritoriality and the
committing of foreigners and their rights to Chinese courts;
something, however, can be done towards this end. It might be
indicated to the Chinese Government that the United States
contemplated with some concern the time when extraterritoriality
could be abolished; that the United States Government recognized
that the Chinese could never learn to administer justice in
cases where foreigners were
[Page 679]
involved without some experience in that
administration, and that the United States Government proposed
to lay before China some plan by which a gradual abolition of
extraterritoriality could be accomplished.
We have in China at this date large interests such as the Foreign
Maritime Customs, the Salt Gabelle, with its collection of
enormous revenue, the railways with their semiforeign
administration, all of which are conducted upon the (principle
that the Chinese is to be used as far as possible but that his
activities are to be controlled by supervising foreign
administration.
It is, therefore, proposed by the undersigned that the United
States Government approach the Chinese Government with the
proposition that a Ministry of Justice shall be established with
a prominent jurist at the head of the same; that this Ministry
should be charged with the duty of establishing local courts
throughout the Chinese Republic; that the appointees of these
courts should be in some cases foreigners with Chinese, and in
some cases Chinese alone; that in all cases during the operation
of this plan an appeal should lie from the Courts of first
instance to a superior court which foreign officials would
control. In this way all the Consular Courts with their natural
bias in favor of their own nationalities could be abolished. We
would inspire in the Chinese some sentiment of self-respect, and
above all we could train them in their relations with foreigners
so that eventually they would be able to conduct not only their
own legal procedure but other functions of their government in
their relations with foreigners.
The machinery of such an organization would not be complicated as
compared with the Customs Service, the railways and the Salt
Administration. It would not be necessary in the first instance
to establish a great number of courts; the system could be
allowed to grow, the sites of the Courts, the methods of
procedure, etc. could be modified by experience and there is
much reason to believe that in the course of a few years such a
reliable machinery of justice could be built up as to justify us
in turning the whole system over to the Chinese themselves.
In view of the fact that the Power which first offered to China
some such plan as above outlined will receive its warm
gratitude, it is recommended that the Minister of China at
Washington be at once approached along these lines; that the
above project be more carefully elaborated and that in time a
convention be made with China to put it into effect. The
advantages of the system are so manifest that no determined
opposition need be feared from other Treaty Powers. The United
States, England and France are all recognizing the restrictions
they are under in their relations with
[Page 680]
the Chinese by reason of their
extraterritoriality. Commerce would profit by the innovation.
China would be more widely thrown open to foreign intercourse,
educational and missionary establishments would gather a new
impetus and our political influence over the Chinese would be
greatly widened. This seems the proper time to introduce this
reformation. There will be much adjustment after the war, and
this project might well be one feature thereof, free from any
taint of selfishness or commercial gain. This idea is submitted
now so as to gain for it a place in the affairs of China which
will become subjects of post war negotiation. Now is the time to
lay it before the Chinese and to secure their provisional
acceptance of it.
Charles Denby
Peking, July 16, 1918.
