The Consul General at Shanghai (Cunningham) to the Secretary of State

No. 6178

Sir: I have the honor to enclose herewith a copy of a self-explanatory letter addressed by the Shanghai Consulate General to the Commissioner of Foreign Affairs63 concerning the citizenship of Mr. Char Wei Yuen (W. Y. Char),64 a citizen of the United States, born in the Hawaiian Islands of Chinese parents. While the statements contained in the enclosure herewith explain the citizenship status of Mr. Char as interpreted by this office, there are still other facts which should be reported in order that the Department may have a fuller knowledge of the case upon which to base its instructions in this and other similar cases which may arise from time to time.

On the afternoon of June 4, 1927, at the close of a baseball game, Mr. Char Wei Yuen is said to have assaulted a Chinese citizen named Jui Hsoh-hsien. The assault was apparently a serious one, since the injured party is reported to be still confined to his bed after a lapse of almost two years, although there is some question as to the genuineness of the allegations of his relatives on this point. The complaint against Mr. Char was filed, not in the United States Court for China but in the Provisional Court, the complainant alleging that Mr. Char was a citizen of China. Shortly after the filing of the complaint, [Page 514] the question of citizenship arose and the Commissioner of Foreign Affairs was informed by this office that Mr. Char was an American citizen. Mr. Char, however, voluntarily submitted to the jurisdiction of the Provisional Court, because foreign lawyers are not allowed to appear in the Provisional Court on behalf of Chinese citizens in purely Chinese cases and because Mr. Char apparently desired to take advantage of the fact that as a lawyer of Chinese race he might appear on behalf of Chinese citizens. It is also believed that he, as well as his American partner, Mr. H. D. Rodger, thought that the case would be treated lightly and had no idea that at a later date complications such as have arisen would arise. The case finally came on for trial and Mr. Char was fined $300.00 on October 12, 1928. The complainant, however, was not satisfied and filed an appeal. The Appellate Court apparently considered the matter more serious and changed the sentence, on February 8, 1929, to three months imprisonment. Just prior to the judgment of the Appeal Court, but after it had ordered his detention, Mr. Char appealed to this Consulate General for assistance on the ground that he was an American citizen. Before, however, taking any steps to protect Mr. Char, he was required to execute an affidavit, a copy of which is attached hereto,65 to the effect that he had done nothing to expatriate himself. Although this office realized that Mr. Char had been trying to take advantage of his dual nationality, it did not feel that these facts, in the absence of any proof that he had actually taken an oath of allegiance to China, could relieve it of extending protection. There were several reasons why this stand was taken. In the first place, the Commissioner of Foreign Affairs was informed on May 22, 1928, while the case against Mr. Char was pending in the Provisional Court, that he was an American citizen. In the second place, Mr. Char was residing in the International Settlement of Shanghai, where the complainants could easily have brought action in the United States Court for China. In the third place, to have withdrawn protection from Mr. Char would have created a precedent which could in the future be cited by the Chinese authorities as our recognition of the right of the Chinese Government to assume jurisdiction over all persons of Chinese race who might be American citizens. Every opportunity was given to the Commissioner of Foreign Affairs and to the President of the Appeal Court to produce proof of the fact that Mr. Char had committed an act of expatriation under American Law, but they failed to take advantage of the opportunity. It was also suggested to the President of the Appeal Court that Mr. Char be granted bail pending some agreement [Page 515] as to his citizenship status but this suggestion was also refused. Under the circumstances, this office had no alternative but to request the Police authorities of the International Settlement to release Mr. Char, since he was an American citizen. This request the police complied with as is the usual custom in Shanghai when a Consul of an extraterritorial power makes such a request.

I am also enclosing herewith, for the Department’s information, copies of two letters dated March 18, 1929, and April 11, 1929, which were received by this office from Dr. George Sellett, the United States District Attorney,66 in which he sets forth his views on this case. The gist of Dr. Sellett’s views is that the United States Court for China and the Provisional Court have concurrent jurisdiction over Mr. Char and that, since the Provisional Court first took jurisdiction, it should be the Court to try the accused. This office, however, disagrees with Dr. Sellett’s views principally on the ground that, under the system of extraterritoriality existing in China, every American citizen, regardless of the question of dual nationality, is subject only to the jurisdiction of the Courts of the United States functioning in China so long as the citizen has not expatriated himself and so long as he resides in a place set aside by the treaties as places of residence and trade in China.

Although Dr. Sellett held a contrary opinion to that of this office, he agreed to prosecute Mr. Char, but so far has been prevented from doing so because of the refusal of the aggrieved Chinese party to cooperate in the prosecution. As can be seen from the letter addressed to the Commissioner of Foreign Affairs, a copy of which was mentioned above as an enclosure herewith, the Chinese authorities are again being requested to instruct the complainant to cooperate with Dr. Sellett in order that Mr. Char can be prosecuted. It is doubtful, however, if they will do so and the question arises as to what should be done in the premises. Two alternatives present themselves, either to let the matter drop entirely as far as the American authorities are concerned, since the Chinese complainant refused to come forward to assist in the prosecution, or to hand Mr. Char over to the Provisional Court to be dealt with by that Court as a Chinese citizen.

Since the citizenship status of all American citizens of Chinese race who reside in China is involved in this case, the instructions of the Department are requested for future guidance.

I have [etc.]

Edwin S. Cunningham
  1. Not printed.
  2. Also known as Zia Wei Nyoen.
  3. Not printed.
  4. Neither printed.