893.05/183: Telegram
The Minister in China (MacMurray) to the Secretary of State
1005. Shanghai’s despatch No. 6164 of September 30th. Following has now been received from Cunningham enclosing copies of a reply from Commissioner to enclosure of [sic] despatch under reference and of the Consulate General’s reply thereto, the latter having been delivered to Commissioner during an interview on the subject:8
“… At this interview an unsuccessful effort was made to convince the Commissioner that the American consular official had the right to try cases jointly with the Chinese judge. The Commissioner even refused to return pending cases to the Provisional Court for retrial.
Inasmuch as the particular circumstances which gave rise to this issue was the Chinese judge’s refusal in open court to permit Mr. Stevens to put relevant questions to the appellant’s representative or to put such questions for him at his request, the Legation will realize the very weak position in which American interests would be placed if this right, which is apparently provided for in both the Sino-American treaties and the Josselyn protocol of 1917,9 is abandoned. [Page 716] It is believed therefore that this question should be referred to the Department by telegraph if possible in order to ascertain if it desires this office to continue to maintain the attitude it has taken or to concede the Chinese contention.
… On October 29, 1929, the consular body[’s] Provisional Court committee decided that the Senior Consul should send a protest to the Commissioner for Foreign Affairs against his refusal to permit the consular representatives of the several powers to sit jointly with the Chinese judges of the Appeal Court of his bureau. It is not believed however that this protest will cause the Commissioner to withdraw from the position he has taken.
The pertinent part of the Mixed Court rendition agreement on the question at issue is article 5 of that agreement…
The crux of the dispute lies in the interpretation of the phrase ‘Acting with the consul concerned according to the treaties’, that is, does the consul sit in accordance with the pertinent clauses of the treaty between his Government and China or does he have the right through the most-favored clause to evoke the most-favored-nation treatment? This office has all along tried, though unsuccessfully, to maintain the latter interpretation which I am sure is the correct one since I participated in the drafting of that article.
While, on account of the ambiguous phraseology of article 3, there may be some grounds for conflicting interpretations as to the position of the consular representative in the Appeal Court there can be none in that part of the article which provides for the return of cases to the Provisional Court for retrial. The Legation therefore might deem it advisable, pending receipt of the Department’s instruction, to protest to the Ministry of Foreign Affairs on account of the refusal of the Commissioner to return them and thus permit the interests of justice to be served.”
Telegraphic instructions respectfully requested.
- Telegram in three sections.↩
- Omissions throughout as indicated in the original telegram.↩
- Protocol of agreement between the Consul General at Tientsin and the Chinese Commissioner for Foreign Affairs for Chihli Province, October 24, 1917. The Legation in China and the Chinese Foreign Office subsequently confirmed the protocol, with modifications, and it was applied to other parts of China as a result (893.102 T/12). The agreement dealt with the right of an American assessor to sit in a Chinese court in cases where the plaintiff is an American.↩