Memorandum by Mr. J. V. A. MacMurray, the Minister to China12

With regard to the demand that the United States consent to a revision of the so-called “unequal treaties” with China, we have taken the logical position that we are prepared to negotiate with any group fairly representative of China.

Although this position is logical and perhaps inevitable, there is a tendency on the part of the Chinese to construe it as a tactical position for the purpose of delaying the issue indefinitely, inasmuch as there is no immediate prospect of the emergence of a governmental authority capable of assuming and fulfilling international obligations in behalf of China.

In order to meet a criticism which reflects upon the good faith of our policy, it may be possible for us to go rather more than half way, and to initiate an effort to find some mode of procedure by which at any rate a partial revision could be effected.

To this end, the Minister at Peking might be definitely instructed as to the concessions that this Government would be willing to make, and authorized to use his endeavors through informal discussions with the several factions in China, in the hope of persuading them to act together for the purpose of establishing a committee or other group of negotiators who would be jointly authorized and empowered for the purpose by all factions.

In order to keep faith with the other powers jointly interested in the treaty status, and to avoid arousing an antagonism that would tend to defeat our purpose, it would be advisable to have the American Minister privately and confidentially inform his colleagues, of the several interested nationalities, of the main outlines of the project. It would, however, handicap him considerably in the effort to bring matters to the point of negotiation, if any public announcement were made of our intentions in the matter. The chances of success in such a project are relatively slight at best; but the hope of accomplishing anything positive would rest largely upon the possibility of his dealing with the matter in a wholly private and informal way with the several factions involved, without any such publicity as would virtually compel the various factions to treat the proposal as a matter of rivalry among themselves.

As to the subject matter of the arrangement contemplated, there are really only two matters of considerable consequence in which the American Government is interested,—restrictions upon the tariff duties leviable by China and the system of extraterritoriality jurisdiction.

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Of these two matters that of extraterritoriality is ruled out by the fact that the Chinese have not yet such laws or judicial organization as would enable them to assume the function of dispensing justice where foreigners are the defendants. It is therefore premature to consider the abandonment of extraterritoriality; and in view of the importance which that subject has artificially been made to assume as a political slogan among the Chinese, it would be dangerous to broach the subject in any way at this time.

The subject matter of the proposed partial revision should therefore be confined to the question of tariff restrictions. What took place at the Peking tariff conference in 1926 virtually imposes upon us a moral even though not a legal obligation to concede on January 1, 1929 autonomy with respect to tariffs; and even though this moral obligation should be questioned it remains a fact that the Chinese so regard it and will almost surely insist upon this concession. If within the next fifteen months we are to confront such a claim on the part of the Chinese which we are not for our part prepared to resist, there would be everything to gain and nothing to lose if we were able to assure ourselves in advance that the tariff increases made by the Chinese would not come into effect with such abruptness as to dislocate trade and that above all there should be an assurance that American trade would be protected from discriminatory treatment.

It would be wholly impossible to get any effective provision for the abolition of likin or for the regulation of inland taxation upon goods after importation or before exportation. It is exceedingly doubtful whether, during the comparatively brief interval to elapse, it would be intrinsically worth while, or possible without unduly complicating and delaying the prospective negotiations, to provide for the application, in the meanwhile, of any tariff such as that upon which agreement was reached among the various experts at the tariff conference in 1926.

The whole purpose in view might in fact be met by a document incorporating, with a few modifications, the provisions of Article VII of the American treaty with Siam signed December 16, 1920 (Malloy’s Treaties, 2829–31),13 together with certain clauses from Article I of that treaty. The provisions suggested would be substantially as follows:

Notwithstanding the provisions to the contrary contained in any of the treaties now in force as between the United States of America and China, the United States of America recognizes that as from January 1, 1929 the principle of national autonomy should apply to China in all that pertains to the rates of duty on importations and exportations of merchandise, draw-backs and transit and all other [Page 365] taxes and impositions; and subject to the condition of equality of treatment with other nations in these respects, the United States of America agrees to assent to increases by China in its tariff to rates higher than those established by existing treaties,—on the further condition, however, that all other nations entitled to claim special tariff treatment in China assent to such increases freely and without the requirement of any compensatory benefit or privilege.

The citizens of each of the high contracting parties shall not be compelled, under any pretext whatever, to pay any internal charges or taxes other or higher than those that are or may be paid by native citizens and subjects. They shall be exempt in the territories of the other from compulsory military service either on land or on sea, and from all contributions imposed in lieu of personal military service, and from all forced loans or military exactions or contributions.

While it must be acknowledged that in the present state of affairs in China it is scarcely possible to hope for success in the endeavor to get the factions to cooperate even for the purpose of obtaining an agreement so obviously to the advantage of the Chinese people, it would seem that the effort is worth making, not only for the sake of the advantages that would accrue from success, but also for the sake of the more satisfactory tactical position which we would occupy with respect to the question of the “unequal treaties” even in the event that the effort to negotiate should prove unsuccessful.

  1. Temporarily in the United States.
  2. Foreign Relations, 1921, vol. ii, p. 867.