Papers Relating to the Foreign Relations of the United States, 1926, Volume I

893.512/485: Telegram

The Secretary of State to the Minister in China (MacMurray)

Washington, December 29, 1926—4 p.m.

311. Your 644, December 28, 6 P.M. Following is text of reply to British memorandum left with me December 24 by British Ambassador, now under consideration and subject to changes. I desire your comment.

“On June 24, 1925, the Chinese Government addressed identic notes to the Powers asking for revision of existing treaties.⁹⁷ On September 4, 1925, the American Legation at Peking, acting under the instructions of this Government, informed the Chinese Foreign Office⁹⁸ that it was prepared to consider the Chinese Government’s Proposal for the modification of existing treaties in measure as the Chinese authorities demonstrated their willingness and ability to fulfill their obligations and to assume the protection of foreign rights and interests safeguarded by the exceptional provisions of those treaties. In that note the Government of the United States stated that it sympathized with the feeling of the Chinese Government that the tariff schedules attached to the various treaties beween China and the other Powers had become a severe handicap upon the ability of China to adjust its import tariffs to meet the domestic economic needs of the country. It stated that this matter had received consideration at the Washington Conference and that it was the belief of the Government of the United States that the most feasible method for dealing with the question was by the constant and scrupulous observance of the obligations undertaken at that Conference. The Chinese Foreign Office was informed that the Government of the United States was then ready to appoint its delegates to the Special Conference on China’s tariff matters provided for in the treaty of February 6, 1922, and was furthermore willing, either at that Conference or at a subsequent time, to consider and discuss any reasonable proposal that might be made by the Chinese Government for a revision of the treaties on the subject of the tariff.

The Government of the United States duly appointed its delegates to attend this Special Conference which was called by the Chinese Government to meet in Peking on October 26, 1925.⁹⁹ Its delegates were instructed not only to carry out the letter and spirit of the Washington Treaty respecting China’s customs tariff but, as indicated in the above note, to discuss any reasonable proposal that might be made by the Chinese Government for a general revision of the treaties on the subject of the tariff.

Shortly after the opening of the Conference and on November 3, 1925, the American delegation proposed¹ that the Conference at once authorize the levying of a surtax of two and one-half percent on necessaries, and, as soon as the requisite schedules could be prepared, authorize the levying of a surtax of up to five percent on luxuries. Our delegates furthermore announced that the Government of the United States was prepared to proceed at once with the negotiation of such an agreement or agreements as might be necessary for making effective other provisions of the Washington treaties of February 6, 1922. They affirmed the principle of respect for China’s tariff autonomy and announced that they were prepared then to negotiate a new treaty that would give effect to that principle and which should make provision for the abolition of likin, for the removal of tariff restrictions contained in existing treaties and for putting into effect of the Chinese National Tariff Law.

On November 19, 1925, the Committee on Provisional Measures of the Conference adopted the following resolution:²

‘The Delegates of the Powers assembled at this Conference resolve to adopt the following proposed article relating to tariff autonomy with a view to incorporating it, together with other matters, to be hereafter agreed upon, in a treaty which is to be signed at this Conference.

The Contracting Powers other than China hereby recognize China’s right to enjoy tariff autonomy; agree to remove the tariff restrictions which are contained in existing treaties between themselves respectively and China; and consent to the going into effect of the Chinese National Tariff Law on January 1st, 1929.

The Government of the Republic of China declares that likin shall be abolished simultaneously with the enforcement of the Chinese National Tariff Law; and further declares that the abolition of likin shall be effectively carried out by the First Day of the First Month of the Eighteenth Year of the Republic of China (January 1st, 1929).’

Continuously from the beginning of the Conference our delegates and technical advisers collaborated with the delegates and technical advisers of the other Powers, including China, in an effort to agree upon a tariff schedule which it was estimated would yield to China all the additional revenues she would require to begin the abolition of likin, to pay interest and ultimately to retire her unsecured and inadequately secured debts, foreign and domestic, and for her administrative expenses.

The Chinese delegation declared that China would endeavor, with the means at her disposal, to see to it that definite arrangements would be made for the unsecured and inadequately secured debts of the Central Government, foreign and domestic, so that all payments of principal and interest on them might be duly and promptly met. It was recognized that a condition precedent to the reestablishment of China’s credit and the necessary rehabilitation of her railroads must be the funding of her unsecured and inadequately secured debts.

Shortly after the substance of a tariff schedule had been agreed upon, the then existing Government disappeared. The delegates representing the foreign Powers, however, continued their efforts to reach an agreement among themselves on the subjects under discussion at the Conference. Ultimately, there being no Central Government of China, the delegates of the foreign Powers met on July 3, 1926, and issued the following statement:

‘The Delegates of the foreign Powers to the Chinese Customs Tariff Conference met at the Netherlands Legation this morning. They expressed the unanimous and earnest desire to proceed with the work of the Conference at the earliest possible moment when the Delegates of the Chinese Government are in a position to resume discussion with the foreign Delegates of the problems before the Conference.’

The Government of the United States was ready then and is ready now to proceed with the program of the Special Conference as indicated in the identic note of September 4, 1925, and in the statement of its delegates at the Conference on November 3, 1925, and as reiterated in common with the delegates of the other Powers in the statement of July 3, 1926, just quoted. The Government of the United States is nevertheless prepared to consent to the immediate imposition of the surtaxes provided in the Washington Treaty of February 6, 1922, as a preliminary step even before the resumption of negotiations.

Resolution No. 5, adopted at the Washington Conference on December 10, 1921,³ provided for the constitution of a Commission, composed of one representative from each of the Powers having extraterritorial treaties with China. This Commission was to inquire into the present practice of extraterritorial jurisdiction in China and into the laws and judicial system and the methods of judicial administration in China with a view to reporting to the Governments of the several Powers its findings of fact in regard to these matters and its recommendations as to such means as it might find suitable to improve the existing conditions of the administration of justice in China and to assist and further the efforts of the Chinese Government to effect such legislation and judicial reforms as would warrant the other Powers in relinquishing, either progressively or otherwise, their respective rights of extraterritoriality. An additional resolution provided that China should have a representative under the Commission, and that China was prepared to cooperate with the work of the Commission and afford every possible facility for the successful accomplishment of its tasks.

In the identic note of September 4, 1925, above referred to, the Government of the United States expressed the hope that the Commission might be able to begin at an early date its investigation of the existing conditions of the administration of justice in China and to make a report which would serve as a basis for recommendations to be made in pursuance of the resolution, for the purpose of enabling the Governments concerned to consider what, if any, steps might be taken with a view to the relinquishment of the extraterritorial rights.

The Commission convened in Peking on January 12, 1926, and concluded its labors by a report signed by all of the Powers, including China, on September 16, 1926.⁴ The report was divided into four parts: Part 1—the present practice of extraterritoriality in China; Part 2—the laws and judicial system; Part 3—administration of justice, and Part 4—recommendations. The Chinese Commissioner stated, ‘By signing this report my approval of all of the statements contained in parts 1, 2 and 3 is not to be implied.’ He made no reservation as to part 4, which contained the recommendations.

The United States has always regarded the system of extraterritoriality in China as a modus vivendi, necessary for harmonious relations between China and the Powers until the evolution of the laws and legal conceptions of China should render it unnecessary.

In the treaty between the United States and China dated October 8, 1903,⁵ the Government of the United States agreed to give every assistance toward the attainment by the Chinese Government of its expressed desire to reform its judicial system and to bring it into accord with that of Western nations, and declared that the United States was prepared to relinquish its extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration and other considerations warranted it in so doing.

One of the recommendations of the Commission is that the administration of justice with respect to the civilian population in China must be entrusted to a judiciary which shall be effectively protected against any unwarranted interference by the executive or other branches of the Government, whether civil or military. Another of the recommendations is that prior to the reasonable compliance with all of the recommendations of the Commission, but after the principal items thereof have been carried out, the Powers concerned, if so desired by the Chinese Government, may consider the abolition of extraterritoriality according to such progressive scheme (whether geographical, partial or otherwise) as may be agreed upon.

Many of the recommendations of the Commission are in accord with the fixed policy of the Government of the United States. As soon as a Government of China is established which demonstrates its ability to insure peace and security to its people in the legitimate pursuit of their affairs, the Government of the United States will be prepared immediately to enter into negotiations for the relinquishment of its extraterritorial control over its citizens in China.

The Government of the United States has watched with sympathetic interest the nationalistic awakening of China and welcomes every advance made by the Chinese people toward reorganizing their system of Government.

During the difficult years since the establishment of the new regime in 1912, the Government of the United States has endeavored in every way to maintain an attitude of the most careful and strict neutrality as among the several factions that have disputed with one another for control in China. Continuing its policy of non-interference in the internal affairs of the Chinese people, the Government of the United States awaits anxiously the day when a Government will appear in China which will be prepared to negotiate in China’s behalf concerning the many questions outstanding. This Government wishes to deal with such a Government and the people of China in a most liberal spirit. It holds no concessions in China, enjoys no special privileges, and has never manifested any imperialistic attitude toward China. All that the United States desires is that its citizens be given equal opportunity with the citizens of the other Powers to reside in China and to pursue their legitimate occupations without special privileges, monopolies or spheres of special interest or influence.[”]

Kellogg

97. See telegram No. 247, June 24, 1925, from the Chargé in China, Foreign Relations, 1925, vol. i, p. 763.
98. Ibid., p. 831.
99. See note of Aug. 19, 1925, from the Chinese Minister, ibid., p. 839.
1. See telegram No. 4, Nov. 4, 1925, from the Minister in China, ibid., p. 875.
2. See telegram No. 6, Nov. 19, 1925, from the American delegation, ibid., p. 881.
3. Foreign Relations, 1922, vol. i, p. 289.
4. See pp. 966 ff.
5. Malloy, Treaties, 1776–1909, vol. i, p. 269.