893.05/208: Telegram
The Chargé in China (Perkins) to the Secretary of State
1152. Following from Jacobs and Bucknell dated December 14, 11 p.m.:
“Following is text of the remarks of foreign delegates handed to the Chinese delegates today which constitute a summary of the Chinese position in regard to the court in Shanghai as well as the position of the Legations’ delegates which, pending further instructions, we do not feel able to depart from.
“Our detailed comments with particular regard to those points which are beyond the scope of our existing instructions will be telegraphed tomorrow.
‘The foreign delegates have taken careful note of the objections brought forward by the Chinese delegates to their amendments to the Chinese proposal and have carefully discussed them with a view to discovering how far they could meet them after due consideration of their own instructions. The result of this meeting of the foreign delegates is that they are now prepared to state their final position in regard to the Chinese objections which they cannot depart from in any of the major issues without further instructions from their respective Legations. It is perhaps unnecessary to go into all the various grounds [apparent omission] this position is based, it being sufficient to state that it has been arrived at as a result of a study of the present constitution of the International Settlement at Shanghai including its capital regulations and bylaws, as well as the fact that they are not, under their instructions, authorized to discuss or in any way to alter existing treaty obligations.
1. Land Regulations and Bylaws.
The Chinese delegates have stated that they could not apply the land regulations and bylaws of the International Settlement until they were regularized by promulgation of a Chinese law embodying their principles.
The regulations and their bylaws constitute the charter of the International Settlement at Shanghai to which the Chinese Government has agreed, and the foreign delegates are not prepared to consider any proposal that would allow the validity of such land regulations and bylaws of the International Settlement in any way to be called into question.
2. Scope of Jurisdiction.
The Chinese delegates have stated that they consider the scope of the proposal of the foreign delegates in respect to territorial jurisdiction too wide, particularly as regards the inclusion of municipal roads.
The foreign delegates are not prepared to decrease the jurisdiction of any court to be established in the International Settlement as compared with the jurisdiction of the present Provisional Court.
[Page 728]3. Appealing.
The Chinese delegates stated that they desire to introduce the regulation for appealing provided for by Chinese law and that they were prepared to recommend the establishment of a branch High Court in the Settlement provided that the Supreme Court would be the final Court of Appeal. The Chinese [foreign?] delegates are prepared to recommend to their respective Legations that there be a branch of the High Court in Shanghai which will act as an appeal court, final appeal, at least in cases in which no foreign representative is entitled to sit, being [apparent omission] to the Supreme Court at Nanking in accordance with existing Chinese law and procedure, provided always that there will be consular representation in both the District Court and in the High Court from the inception through all the stages of hearing to the final execution of all cases falling within the categories mentioned in their amendments including mixed cases, and further provided that there will be [apparent omission] with the object of adjusting possible friction between the exemplification [sic] and the judging in the Settlement.
4. Procurator system.
The Chinese delegates have insisted upon the introduction of the procurator system in the Settlement as a part of the judicial system of China.
The foreign delegates are not prepared under any circumstances to admit introduction into the International Settlement of the procurator system since this would in fact lead to a conflict of authority which it is their object to avoid.
5. Future Laws and Regulations of China.
The Chinese delegates have refused to consider the suggestion of the foreign delegates that future laws and regulations be communicated to the diplomatic body.
The foreign delegates consider it vital for the successful functioning of the court that notice of two months be given to the diplomatic body of any laws and regulations before such laws and regulations can become applicable in the District Court in Shanghai.
6. Consular Representatives.
The Chinese delegates have stated that they are opposed in principle to any foreign officials participating in the proceedings of the court and will not agree to such participation except possibly in cases in which the Municipal Council is itself the complainant. They have specifically refused to admit such representatives in mixed cases, either criminal or civil.
The foreign delegates are compelled to insist that there must be a specified list of cases involving the peace and order of the Settlement in which the consular authorities must reserve the right to send a representative, as well as in cases in which the extra-Settlement authorities are concerned with persons residing or found in the International Settlement; in cases in which the Municipal Council is plaintiff or complainant; and finally in cases in which foreigners in accordance with their treaty rights may be so represented.
7. Form of Consular Representation.
The Chinese delegates have stated that they could not under any circumstances agree to any consular representation unless the judges’ [platform] was reserved for the judges themselves.
[Page 729]The foreign delegates must insist that a consular representative be present in the court to sit with the judge in the general category of cases under discussion and that he must be accorded a position due his rank which must be on the same [platform] within reasonable distance of the judge.
8. Scope of Consular Representation.
The Chinese delegates have stated that the scope of the powers of the consular representatives as proposed by the foreign delegates is most destructive to the Chinese character of the court.
The foreign delegates must insist that the consular representatives have the right to watch proceedings at every stage of the case from its inception to its close on appeal, including execution, and in mixed cases to examine and cross-examine witnesses with the consent of the judge and in all such cases to record in the record their objections on any irregularities and matters of jurisdiction. In order to avoid friction and to settle any difficulties that may arise, they must insist upon some method by which complaints from the president of the court and the police or those embodied in protests contained in the record from the cases may be effectively dealt with.
9. Judicial Police.
The Chinese delegates have proposed the introduction into the Settlement of judicial police apart from the municipal police. The foreign delegates cannot agree to the introduction into the Settlement of a separate body of police, and must insist that the judicial police assigned pressure [sic] be detailed by the municipal police to serve under the direction of and be responsible to the president of the court since any other system would in fact lead to a conflict of authority which it is their object to avoid.
10. Duplication of Court Processes.
The Chinese delegates insist that all [sic] processes of the court those for service on foreign property must be transferred immediately without recourse or reference to any other authority.
The foreign delegates are unable, in view of existing treaty provisions, to acquiesce in the suggestion of the Chinese delegates that the procedure for countersigning processes of the court for service on foreign premises be abolished.
11. Prisons.
The Chinese delegates proposed the appointment by the Chinese Government of a Chinese superintendent of prisons in the Settlement responsible solely to the Chinese Government.
Because of the conflict of authority in the Settlement which would thus be created, the foreign delegates cannot agree to the appointment of a Chinese superintendent of prisons.
12. Clerical Staff.
The Chinese delegates insist that the Chinese Government shall appoint as clerk a Chinese without reference to the consular or municipal authorities of the Settlement but agree that the funds of the court shall be deposited in a Chinese bank or banks within the Settlement and that any surplus after the expenses of the court are met will be used for judicial purpose, not necessarily confined to the District Court.
The foreign delegates must insist that some form of foreign representation on the clerical staff of the court be devised in order to insure the proper administration of finances and to facilitate the access of foreign litigants to the court.
[Page 730]13. Judgements of Former Mixed Courts.
The Chinese delegates have taken the position that the present Provisional Court agreement was never recognized as binding by the National Government and, therefore, refuse to provide that judgements of the former Mixed Court validated by that agreement shall be recognized as valid and executed if necessary by other Chinese courts.
The foreign delegate[s] must insist upon the recognition of the validity of judgements of the former Mixed Court, since without such a provision not only would it be impossible to execute those judgements, but all judgements of the former Mixed Court extending over a period of sixteen years would become capable of being set aside and reopened.
14. Foreign Lawyers.
The Chinese delegates stated that they would be unwilling to admit foreign lawyers to practice in the court under any circumstances, except in criminal cases in which the Municipal Council itself is the complainant, since they desired [to] protect the Chinese legal profession.
The foreign delegates must insist that foreign lawyers shall enjoy at least the same rights as under the present agreement, except that such lawyers should be subject to the Chinese regulations governing the disciplinary punishment of lawyers.
15. Rules of 1902 Defining Respective Jurisdictions.
The Chinese delegates have objected to the recognition in the new agreement of the provisions of the rules of 1902 defining the jurisdictions of the Mixed Court of the International and French Settlements.
The foreign delegation [delegates?] insist that the new agreement must contain some definition of the respective jurisdictions as provided in the 1902 agreement.’
Text of foreign delegates’ amendments to the Chinese proposal referred to in document above quoted will be telegraphed as soon as possible.”
- Telegram in twelve sections.↩