793.003 C 73/297

The American Commissioner on Extraterritorial Jurisdiction in China ( Strawn ) to the Secretary of State

No. 10

Sir: I have the honor to report the activities of the Commission on Extraterritoriality in China during the period April 5, 1926 to April 16, 1926.

Since my report of April 5, No. 9,52 the Commission has been waiting for the Chinese Government to provide means of communication for the proposed tour of investigation. As reported in my letter (No. 7) of March 12,52 the trips to Taiyuanfu and Kalgan, planned for the last two weeks of March, were abandoned because of inability to reach those points.

It was then planned to leave Peking on April 9, conduct an investigation at Tientsin and sail for Shanghai, via Chefoo, on April 13. At Shanghai the party was to be divided into two groups, one [Page 972] going up the Yangtze as far as Hankow, visiting Soochow, Wushih, Nanking, Anking, Nanchang, Kiukiang and Changsha. The other party was to go from Shanghai to Canton, returning via Swatow, Amoy and Foochow. There has been no train service between Peking and Tientsin for the last three weeks. A part of the time motors have been employed but those are not now permitted to run. Therefore, the trip by sea was abandoned. Later Dr. Wang (the Chinese member of the Commission) suggested he might arrange for a train trip from Peking to Hankow. However, by reason of military activities this has become impossible. I have called a meeting of the Commission for this morning to consider whether we should not give up all idea of traveling and proceed to the preparation of our report. It would seem that the patience of the Commissioners is exhausted in waiting for the Chinese Commissioner to arrange transportation, which in the present circumstances, cannot be done.

Speaking for myself, I believe that the very full reports we have from our Consuls in all parts of China give as accurate information about conditions as we would have were we to visit the several places, and that we can proceed just as understandingly to the preparation of our report. Of course, if before the report is completed it is possible to make any trips that will be a subject for consideration by the Commission.

. . . . . . . . . . . . . .

Notwithstanding the disaffection of the Canton Provinces and the fact that there is now no Government in China and conditions are generally chaotic, I can see nothing else for us to do but proceed with the preparation of the report as directed by the Washington Resolution. Some of the Commissioners have taken the position that the action of the Canton Government, above referred to, constitutes a violation by China of the letter and spirit of the Washington Resolution. You will recall that in the “Additional Resolution” adopted at Washington54 it was stated that China was prepared to co-operate in the work of the Commission and to afford it every possible facility for the successful accomplishment of its tasks. This she has not done by failing to afford transportation and also in the positive action taken by the Canton Government.

However, I do not believe that the majority of the Commission will refuse to go on with the report.

The contents of the report have not yet been discussed, but nevertheless, from such informal conferences as I have had with some of the Commissioners, I shall attempt to make the following forecast of the general purport of the report:

[Page 973]

The following admitted facts preclude the possibility of the surrender by the several Powers of their extraterritorial rights guaranteed them by their several treaties with China:

1.
The absence of a Central Government in China, recognized as such by the several Provinces;
2.
Complete and arbitrary control of every department of governmental activity by the militarists who are constantly warring among themselves;
3.
Absence of laws enacted by a duly constituted authority subject to repeal only by that authority;
4.
Absence of competent and trained judges, free from all outside influences, political and military;
5.
Chaotic condition of the finances of China, with no provision for the payment of adequate compensation to the judiciary.

In view of these fundamental facts, the surrender by the several Powers of their extraterritorial rights at this time not only would put in jeopardy the lives and property of their nationals residing in China, but also would be prejudicial to the Chinese themselves and would postpone the time when the Chinese people may realize their ambition to have complete autonomy in juridical matters.

Some of the Powers have repeatedly expressed a desire to surrender their extraterritorial rights in China when the state of Chinese laws, the arrangements for their administration and other considerations warrant them in so doing. Therefore, as an evidence of good faith, and as an expression by the Powers of sympathy with the ambition of the Chinese people to enjoy complete autonomy in the administration of justice, the Powers might make the following recommendations looking toward the eventual abolition of their extraterritorial rights. These recommendations are divided into two sections, the first section should be put into effect as soon as possible and the second, as soon as the conditions named therein have been fulfilled.

First Section of Recommendations

I. That the Powers take all necessary steps to make applicable to their nationals in China, and cause to be administered in their extraterritorial and/or consular courts, such drafts of laws and ordinances as have been exhibited to and approved by the Commission

(Enumerating laws that have been so approved)

provided, however, that the provisions of such laws and ordinances as have been adversely criticized by the Commission shall not be applied in the extraterritorial or consular courts. And further provided that where the laws and ordinances fail to provide for questions of law that may arise, then in such cases the law of the nationality of the defendant shall be applicable.

[Page 974]

II. That each of the extraterritorial Powers immediately (if such condition does not now exist in its judicial system in China) establish a court of final appeal in China in order that there may be no appeal beyond the territorial limits of China.

III. That after the Chinese Government has established model prisons or detention houses, managed and supervised in accordance with the rules and regulations concerning prisons and prisoners, in the following places—Shanghai, Canton, Hankow, Tientsin, Harbin and Peking, or other treaty ports, all foreigners sentenced to terms of imprisonment by the extraterritorial or consular courts, either in accordance with Chinese or foreign law, shall serve their sentences in these prisons or detention houses, provided, however, that persons sentenced to terms of imprisonment of one year or more shall be sent, at the expense of the Chinese Government, to the First Model Prison at Peking, to serve such sentence, and provided further, that the Consular or Diplomatic Officers of the nationals concerned shall at all times be free to visit such prison, upon due notice being given the Commissioner for Foreign Affairs where the prison or detention house is situated, or to the Wai Chiao Pu in Peking. The Chinese authorities shall at all times permit such visitation.

IV. That foreigners sentenced to death by the extraterritorial or consular courts be executed by strangulation, in accordance with the Chinese law, or by hanging, in the presence of a representative of the Power concerned.

V. That the extraterritorial Powers refuse protection of every nature to persons of Chinese race who by reason of birth or naturalization are citizens or subjects of such Powers and who return to China to live, unless such person, after a residence of six months in China, have obtained from the Chinese Ministry of the Interior, a denaturalization certificate in accordance with the provisions of the Law of Nationality (Chinese). Article XII, paragraph 1, number 4, and paragraph 3 and Articles XIV, XV and XVI.

VI. That the practice of granting asylum to political or other offenders, in the foreign concessions or settlements and on foreignowned property, except the general right of asylum which is recognized under International Law, be abandoned, and that such persons who seek asylum in the foreign concessions and settlements, or on foreign-owned properties, be surrendered upon a warrant of the proper Chinese authorities, countersigned by the local Commissioner of Foreign Affairs.

VII. That all extraterritorial practices which have no basis in the treaties or special grant of the Chinese Government, be abandoned.

VIII. That in the case of civil claims and criminal complaints of extraterritorial nationals against Chinese and non-extraterritorial nationals, it is recommended that all such cases be tried in the so-called New courts of China, viz., District Courts, High Courts and the Supreme Court, and their corresponding procuratorates, instead of being tried in the Magistrates’ Court, in the presence of, or jointly with consular representatives as is now the practice, provided, however, that a foreign consular representative of the Power concerned may be present in the court room as a visitor.

[Page 975]

Second Section of Recommendations

I.
That the conditions created in the First Section of Recommendations continue in force until the extraterritorial Powers, jointly or severally, decide the conditions precedent to the institution of the system outlined in the Second Section of Recommendations have been fulfilled.
II.
That China, during the period the conditions created by the First Section of Recommendations are in force, undertake to remedy the defects enumerated at the outset under the heading “Admitted Facts”.
III.
That China, during the period the conditions created by the First Section of Recommendations are in force, undertake to establish a system of special sections of the District Courts and High Courts, together with special sections of the procuratorates attached to those Courts, at the places and in the manner described in a detailed description to be attached to the report as Appendix A.
IV.
That China agree to extend the special system of courts mentioned in No. Ill above to all foreigners in China, provided the foreign non-extraterritorial Powers consent.
V.
That China secure, at an early date, the services of the necessary number of foreign counsellors required under the special system of courts mentioned in No. Ill above, to assist in the institution of that system.
VI.
That China establish at Peking a National Law School for the training of men for judicial service, especially for the trial of foreigners.
VII.
That China, in respect to matters of taxation, control of corporations, military service, military levies, and requisitions, land holdings, and a few other special matters, undertake to carry out the recommendations contained in Appendix B to be attached to the report.
VIII.
That when China has put into effect the recommendations aforesaid, she will so inform the extraterritorial Powers who shall, jointly or severally, proceed to abolish their extraterritorial and consular courts so that all foreigners in China may be made amenable to the jurisdiction of the Chinese law.

Of course, the recommendations will be preluded by a succinct statement of facts justifying the conclusion at which the Commission arrives.

The foregoing is a brief outline of what seems to us might be the basis of a report. We have not submitted our suggestions to any of the other Commissioners. They may not agree with us. You will, therefore, regard what I have attempted to outline as purely tentative. If you have any criticism to offer I shall be pleased to hear from you at your early convenience.

At a meeting of the Commissioners held this morning it was decided to abandon efforts to travel because the Chinese can afford us no facilities. We are to meet again on April 28th, at which [Page 976] time the evidence is to be concluded and we are then to proceed immediately with the preparation of the report in the expectation that we can conclude it on or before May 15th. Meanwhile, if there is a possibility of travel the final draft of the report may be correspondingly deferred.

I enclose herewith copies of the Minutes of the meetings held on April 1, 1926 and April 10, 1926, together with correction sheets for previous meetings.56

I have [etc.]

Silas H. Strawn
  1. Not printed.
  2. Not printed.
  3. Second additional resolution, Foreign Relations, 1922, vol. i, p. 291.
  4. None printed.