893.05/213: Telegram
The Chargé in China (Perkins) to the Secretary of State
1173. My 1172, December 20, noon. The following is the joint telegram mentioned in my telegram under reference:
“The following is the joint view of the interested Heads of Legation on the fifteen points contained in the statement handed by the foreign delegates to the Chinese delegates on December 14th and the Chinese reply thereto:
1. Land Regulations and Bylaws.
The foreign delegates should seek to find a formula under which the Chinese Government would undertake to reenact the land regulations and bylaws by some blanket legislation, it being understood that the present regulations and bylaws continue valid in the meantime.
2. Scope of Jurisdiction.
The heads of Legation understand this point is still open to discussion.
[Page 737]3. Appeals.
The Heads of Legation are of the opinion that every effort should still be made to arrange that cases in which there is consular representation should be finally disposed of in the Settlement courts. Should a deadlock on this point continue, they reserve their final decision for later consideration. They suggest that it might be possible to place some limitation on the nature of the cases which can be appealed to Nanking, i. e., by limiting such cases to those involving a certain sum or penalty or involving some important new judicial principle.
4. Procurator System.
The Heads of Legation are prepared in the last resort to agree to the Chinese proposal subject to the general observations: The political cases in which the procurator is to function must be clearly defined and it must be understood that at least a preliminary hearing will be held in the Settlement court before the arrested person is handed over to provincial authorities outside. It is understood that the powers of the procurator to issue warrants do not extend to extraterritorial nations. The above views are subject to any further arguments that the municipal authorities may submit against the proposal.
5. Future Laws and Regulations.
The interested Heads of Legation are prepared to accept an undertaking that no new legislation will be enforced until the lapse of a specified period, say two months, after its promulgation in the government Gazette. The foreign authorities would in practice have to reserve to themselves in some form the right to object to the enforcement of any legislation prejudicial to the maintenance of peace and order.
6, 7, and 8. Consular Representation, Its Form and Scope.
The interested Heads of Legation understand that while the foreign delegates insist on consular representation in (a) law and order cases, (b) extradition cases, (c) Municipal Council cases, (d) mixed cases, the Chinese object to (b) and (d). As regards (b), the Heads of Legation consider that every effort should be made to retain these but as the matter mainly concerns the protection of Chinese against their own authorities they are not prepared to insist on it in the last resort. As regards (d), the British and Netherlands representatives are prepared to give up mixed cases; the American representative is prepared to give them up in practice, while, for technical treaty reasons, retaining in theory the right to send an observer; the French representative is unable without specific instructions to abandon this treaty right and will have to make a reservation on the question of principle. As regards the form of consular representation, it is agreed that Chinese proposal is unacceptable. It is, however, suggested that compromise should be sought along the lines of giving the observer a special place in court apart from the bench and not in the body of the court and stipulating that, while he would not have the right to examine witnesses or interfere actively in the proceedings, he should be empowered to hand in written remarks to the judge before judgment is delivered and to ask for and secure adjournments, during which he may confer with the judge. It is also essential that there should [Page 738] be some machinery for recording of protests (which need not necessarily be made public in open court or in the press) against judgments and for the solution of any possible conflict between judiciary and executive which might result.
9. Judicial Police.
The Heads of Legation regard insistence on the views of the foreign delegates as essential but they understand that an impasse has not yet been reached on this point.
10. Countersigning of Court Processes.
The Heads of Legation understand that this point is still open. On the assumption that there is no interference with the present system by which municipal police furnish the judicial police, they are prepared in the last resort to make concessions on this point provided the principle of immunity of extraterritorial premises from entry by Chinese officers, except under countersigned warrants, is safeguarded.
11. Prisons.
The Heads of Legation understand that this point is still open, but they consider that it should, if necessary, be possible to devise some face-saving forms under which there would be a nominal Chinese superintendent or inspector of prisons, say, by accepting the appointment of the president of the court concurrently to such a post.
12. Clerical Staff.
The Heads of Legation endorse the views of the foreign delegates, but consider that some formula might be found under which there would be Chinese and foreign representation on the clerical staff working side by side on the lines of the Customs, Postal, and Salt offices.
13. Judgments of Former Courts.
The Heads of Legation regard insistence on views of foreign delegates as essential.
14. Foreign Lawyers.
The Heads of Legation approve the views of the foreign delegates and consider that foreign litigants should have the right to employ foreign lawyers on the terms proposed.
15. Rules Defining Jurisdictions.
The Heads of Legation consider that the respective jurisdictions of the courts of the French and International Settlements should remain as defined in the rules of June 28, 1902, in view of the shortness of time and the danger of unilateral action by the Chinese on January 1st (see telegram from Shanghai Senior Consul to Senior Minister [of] December 18th32). The interested Heads of Legation are instructing their respective delegates to act on the above recommendations as though they were instructions unless they are informed of objection on the part of their respective Governments before midday December 24th (Tuesday).”