793.003 C 73/314: Telegram

The Chargé in China ( Mayer ) to the Secretary of State

412. With reference to 411, September 16, 3 p.m.63 Following from Strawn:

“The following is a summary of the report of the Commission on Extraterritoriality in China, signed September 16 by all of the Commissioners of the participating powers, China included.

The report consists of the following sections: Introductory remarks; part 1, present practice of extraterritoriality; part 2, laws and judicial and prison system of China; part 3, administration of justice in China; part 4, recommendations.

Part 1 is an historical outline of the system of extraterritoriality followed by a detailed exposition of the working of that system in the foreign courts, then a description of the procedure in mixed cases in Chinese courts. Reference is made to the multiplicity of courts and diversity of laws, to the inaccessibility of consular courts, to the inadequate training of the personnel of consular courts, to the difficulties connected with appeals, to the immunity of foreigners from Chinese municipal regulations, to the conflict of laws relating to the nationality of persons of Chinese origin, to the irregular protection sometimes extended to Chinese persons and interests, to the absence of extradition arrangements, to the difficulties arising from asylum for Chinese on foreign premises and also to the restrictions upon foreign travel, trade and residence in the interior. Part 1 also contains 12 memoranda prepared by the foreign Commissioners individually, giving full details of their respective judicial systems in China.

[Page 980]

Part 2 consists of a detailed exposition of the subject with the comments of the Commission with respect to what it considers are the shortcomings in the laws and in the judicial and prison systems. The laws are dealt with under the following main headings: those relating to (1) criminal matters; (2) civil matters; (3) commercial matters; (4) miscellaneous laws. The description of the judicial system comprises an exposition of the outline of the courts, administrative jurisdiction in juridical matters, the mixed courts, the transition courts, magistrate courts, special courts, military courts, the administrative court, police tribunals, appointment of Judicial officials, rank and salaries of judicial officials, disciplinary punishment of judicial officials, lawyers, costs and general observations. The prison system is discussed under the headings of: (1) administration and officials; (2) regulations concerning prisons; (3) general observations.

Part 3 deals with the general administration of the laws and judicial system as distinguished from the theoretic treatment of their content in part 2. This section opens with certain general remarks on the Government in which it is pointed out that in the past decade there has been increasing disorder in China with a corresponding decrease in the authority of the Central Government, that there has been continual civil warfare for the past 3 years, that since the Commission has been sitting Peking has been assailed and the Commission’s tour of investigation delayed 6 weeks, that the Legislative branch of the Government has also suffered disorganization, that the parliaments and other representative bodies have been ephemeral and contributed little to the legislation of China, that therefore the making of laws has necessarily largely fallen into the hands of executive officials who have been more or less under the influence of the military. As a result of this disorganization, the lines between the executive, legislative, and judicial branches tend to become obliterated. The Government treasury has been depleted so that funds are at times lacking to pay police and judicial officials. The uniformity of the legal and judicial systems is being impaired because of the independent laws and courts established in areas not recognizing the Central Government and the extension and perfection of the new legal and judicial systems are being retarded. Attention is then drawn to the interference by the military authorities with the administration of justice.

Several cases of military interference are then cited, among them being the following: The execution of the Chief Justice of the High Court of Shantung, the execution of “Little” Hsü,64 the execution of the Chinese editor Shao Piao-ping in April, the issuance of orders in June for the beheading of the speculators in military notes, the execution in August of the Chinese editor, Lin Pai-shui, the execution at Mukden of the speculators in the Fengtien paper notes, the Ostroumoff65 case and certain other cases. This section then deals with such matters as interference by the civil authorities, lack of universal application of the laws of China, illegality in the granting of bail, torture of prisoners and illegal methods of execution, the [Page 981] insufficient number of modern courts and trained judicial officials, lack of financial support of the judiciary, unsatisfactory condition in magistrate courts, police tribunals and miscellaneous complaints.

Part 4 is as follows:

“The committee, having completed their investigation[s] and having made their findings of fact as set forth in parts 1, 2, and 3 of this report, now make the following recommendations:

The Committee are of the opinion that, when these recommendations [shall] have been reasonably complied with, the several powers would be warranted in relinquishing their respective rights of extraterritoriality.

It is understood that, upon the relinquishment of extraterritoriality, the nationals of the powers concerned will enjoy freedom of residence and trade and civil rights in all parts of China in accordance with the general practice in intercourse among nations and upon a fair and equitable basis.

Recommendations

I.
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.
II.
The Chinese Government should adopt the following program for the development of the existing legal, judicial and prison systems of China:
1.
It should comply with the provisions of parts 2 and 3 of the whole report relating to the laws and to the judicial police and prison systems, with a view to making such amendments and taking such action as may be necessary to meet the observations there made.
2.
It should complete and put into force the following laws: (1) Civil code; (2) commercial code, including negotiable instruments law, maritime law and insurance law; (3) revised criminal code; (4) banking law; (5) bankruptcy law; (6) patent law; (7) land expropriation law; (8) law concerning notaries public.
3.
It should establish and maintain a uniformity for the regular enactment, promulgation and rescission of laws, so that there may be no uncertainty as to the laws of China.
4.
It should extend the system of modern courts, modern prison[s] and modern detention houses with a view to the elimination of the magistrate courts and of the old-style prisons and detention houses.
5.
It should make adequate financial provisions for the maintenance courts, detention houses and prisons and their personnel.
III.
It is suggested that, prior to the reasonable compliance with all the recommendations above mentioned but after the principal items thereof have been carried out, the powers concerned, if so desired by the Chinese Government, might consider the abolition of extraterritoriality [according to such progressive scheme] (whether geographical, partial or otherwise) as may be agreed upon.
IV.
Pending the abolition of extraterritoriality, the Governments of the powers concerned should consider part 1 of this report with a view to meeting the observations there made and, with the cooperation of the Chinese Government wherever necessary, should make certain modifications in the existing systems and practice of extraterritoriality as follows:
1.
Application of Chinese laws. The powers concerned should administer, so far as practicable, in their extraterritorial or consular courts such laws and regulations of China as they may deem proper to adopt.
2.
Mixed cases and mixed courts. As a general proposition mixed cases between nationals of the powers concerned as plaintiffs and persons under Chinese jurisdiction as defendants should be tried before the modern Chinese courts (Shen P’an T’ing) without the presence of a foreign assessor to watch the proceedings or otherwise participate. With regard to the existing special mixed courts, their organization and procedure should, as far as [the special conditions in] the settlements and concessions warrant, be brought more into accord with the organization and procedure of the modern Chinese judicial system. Lawyers who are nationals of extraterritorial powers and who are qualified to appear before other [the] extraterritorial or consular courts should be permitted, subject to the laws and regulations governing Chinese lawyers, to [Page 982] represent clients, foreign or Chinese, in all mixed, cases. No examination would [should] be required as a qualification for practice in such cases.
3.
Nationals of extraterritorial powers, (a) The extraterritorial powers should correct certain abuses which have arisen through the extension of foreign protection to Chinese as well as to business and shipping interests, the actual ownership of which is [wholly] or mainly Chinese. (b) The extraterritorial powers which do not now require compulsory [periodical] registration of their nationals in China should make provision for compulsory registration at definite intervals.
4.
Judicial assistance. Necessary arrangements should be made in regard to judicial assistance (including commissions rogatoires) between the Chinese authorities and the authorities of the extraterritorial powers themselves, e. g.: (a) All agreements between the foreigners and persons under Chinese jurisdiction which provide for the settlement of civil matters by arbitration should be recognized, and [the] awards made in pursuance thereof should be enforced by the extraterritorial or consular districts [courts] in the control [case] of persons under their jurisdiction and by the Chinese courts [in the case of] persons under their jurisdiction, except when in the opinion of the competent court the decision is contrary to public order or good morals. (b) Satisfactory arrangements should be made between the Chinese Government and the powers concerned for the prompt execution of judgments, summonses, and warrants of arrest or search, concerning persons under Chinese jurisdiction, duly issued by the Chinese courts and certified by the competent Chinese authorities and vice versa.
5.
Taxation. Pending the abolition of extraterritoriality, the nationals of the powers concerned should be required to pay such taxes as may be prescribed in laws and regulations duly promulgated by the competent authorities of the Chinese Government and recognized by the powers concerned as applicable to their nationals.’

The Chinese Commissioner affixed his signature to the whole report under the following statement: ‘By signing this report my approval of all the statements contained in parts 1, 2 and 3 is not to be implied.’ It is to be noted that the Chinese Commissioner made no reservation with respect to part 4 containing the recommendations.

With regard to the question of the privity of the report, the majority of the Commissioners are of the opinion that the report is for the official information of their respective Governments and that the Commissioners have no authority to make the report public. Therefore no information concerning the contents of the report has been given out in Peking.”

Mayer
  1. Not printed.
  2. Hsü Shu-cheng, a prominent military leader.
  3. Boris G. Ostroumoff, Russian general manager of the Chinese Eastern Railway.