393.1141 W 58/5

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

No. 213

Sir: The Department has received your despatch No. 197 of October 8, 1925, in regard to the International Mixed Court at Shanghai. You stated that it is the general impression in China that the International Mixed Court in Shanghai is a survival of the earlier procedure provided by the treaties for the settlement of “mixed cases”, as, for instance, in the last sentence of Article XXIV of the [Page 1028] Chinese-American Treaty of 1844 and in Article XXVIII of the Treaty of 1858, which stipulates that such controversies “shall be examined and decided conformably to justice and equity by the public officers of the two nations acting in conjunction”; that it is true that the same treaties provide that criminal jurisdiction shall be vested in the courts of the offender’s nationality; but that it was not until Article IV of the Chinese-American Treaty of 1880 came into effect that the present status of the Assessor as an official who is merely “permitted to attend the trial” was inaugurated.

Your observations on this subject have been read with interest. The Department is of the opinion, however, that this theory in regard to the origin of the International Mixed Court is incorrect and that the view that the Sino-American Treaties of 1844 and 1858 conferred a judicial status on American Assessors in Chinese courts has never been held by this Government. For an exhaustive discussion of this subject you are referred to a report prepared in 1879 by Minister George F. Seward in regard to extraterritoriality in China (Foreign Relations, 1880, pages 145167) and also to Minister W. J. Calhoun’s comprehensive instruction No. 571 of June 12, 1911, to the Consul General at Shanghai regarding the case of Ginn and Company versus The Commercial Press in the International Mixed Court, a copy of which was enclosed with the Legation’s despatch No. 268 of June 22, 1911.19 On page 6 of Minister Calhoun’s instruction above referred to, which was based on Minister Seward’s report, he correctly stated that “the basic principle underlying the foregoing treaties (that is, the Sino-American Treaties of 1844 and 1858), which has been reaffirmed and continued in all subsequent treaties, is to the effect that when a foreigner has a civil claim against a Chinese subject, he must appeal for satisfaction, through his consul, to the Chinese authorities, who are to settle and adjust the same; in other words, the jurisdiction over such claims is purely Chinese.” Referring on pages 7 and 8 of the same instruction to the establishment of the International Mixed Court Minister Calhoun correctly stated that this court did not originate directly from the terms of any treaty, but was the result of an arrangement or agreement between the authorities of China, Great Britain and the United States, as evidenced by the rules of the court which were promulgated in 1869.20 For a further expression of the Department’s views on this subject you are referred to instruction No. 869 of March 24, 1925.19

I am [etc.]

For the Secretary of State:
Joseph C. Grew
  1. Not printed.
  2. British and Foreign State Papers, vol. xciv, pp. 793 ff.
  3. Not printed.