893.05/225: Telegram
The Chargé in China (Perkins) to the Secretary of State
18. Legation’s 1173, December 20, 3 p.m.
1. After continued discussions with the Chinese delegates, the foreign delegates again sought the instructions of the interested Heads of Legation in a joint telegram December 29, 5 p.m., to which joint reply was sent January 1, 8 p.m. Since the further instructions given in the joint reply are deemed to be within the meaning of the original instructions approved by the Department in its 426, December 21. 9 p.m., the Legation will not transmit the texts of this joint telegram above mentioned unless the Department so desires but will summarize seriatim the fifteen points under discussion.
2. Points 1, 2, and 3. Foreign delegates indicated belief that satisfactory agreement could be reached.
Point 4. Chinese desire to enlarge scope of procurator’s activities to include all cases covered by first ten chapters of part 2 of the revised criminal code, and all cases arising in inquests, but agree procurator would not prosecute when the police or private parties instituted prosecution. Foreign delegates believe Chinese will recede from their position if firm stand is taken. Legations approved delegates’ recommendation but stated issue is not one which should be forced.
Point 5. Chinese refused to agree to 2 months’ delay after promulgation of new laws before these are enforced in the court and refuse to permit reference in agreement to the right of foreign powers to object to legislation considered prejudicial to peace and order. Legations suggested a unilateral declaration by Chinese that new laws will be promulgated a reasonable period before enforcement and unilateral declaration on foreign side reserved [, reserving?] the right to [Page 745] object to enforcement of any law prejudicial to the maintenance of law and order in the Settlement or preferably that all reference to the application of Chinese laws be omitted.
Points 6, 7 and 8. Chinese position is that foreign representatives may be allowed in (a) criminal cases in which the Municipal Council is complainant and (b) criminal cases directly affecting peace and order of the Settlement. Regarding mixed cases, Chinese refuse to admit direct reference to extraterritoriality or existing treaty rights but are willing to attempt to find an indirect formula making clear that new agreement does not affect treaty rights. Chinese state consular representative will be called observer and will represent the powers now represented at the conference, and must be a lawyer or a jurist and must have knowledge of Chinese law, without which qualification the court will not accept him, the court to have the right to reject observers who do not abide by the provisions of the agreement on the subject of consular representation. Observer to be given a special seat, perhaps higher than the lawyers but lower than the bench, on the right-hand side of the judge between the bench and [the] lawyers. His functions are to observe the trial in the court. He will not be allowed to make any utterances or remarks in open court, interrogate witnesses, or, outside the court, to make known in public his opinions with regard to the case but he may present his views to the judge in judgments on matters of procedure and jurisdiction. In case of differences of opinion between judge and observer, differences to be put on record, and opinion of observer brought to the attention of higher court in case of appeals. Legations stated they were prepared in the last resort to accept the Chinese definition of scope of representation that is to be confined to criminal cases.
They suggested solution regarding treaty reservations in connection with mixed cases should be sought along the lines of unilateral declaration of existing rights in connection with this and other points in the agreement, declaration to be made either jointly or individually by the powers concerned and separately from, but with reference to, the agreement. Legations are prepared to accept in principle the proposals in regard to form of consular representation but observe that all reference to particular powers to be represented by consular observers should be omitted or that formula be found covering powers signatory to the new agreement, and leaving door open for adherence of such others as Chinese may conclude similar arrangements with. Legations consider enumeration of detailed restrictions on observers’ functions to be derogatory and prefer affirmative definition of what these functions shall be. Heads of Legation insist that qualifications of observers must lie with the foreign authorities concerned, leaving to [Page 746] discretion of delegates the wording defining seating accommodations and functions of observer.
Point 9. Chinese agree judicial police to be detailed by Municipal police but insist on distinctive uniforms, that they take orders solely from the court, be paid by the court, and that they be Chinese, except that anyone may be detailed upon request of the president of the court. Apart from judicial police, Chinese insist upon separate body of process servers not belonging to municipal police, to be appointed by the court to serve its processes but not to make arrests or forcibly enter premises without assistance of judicial police. Legations replied that they had no objection to distinctive uniforms but, subject to further observation of delegates after consultation with the council, they do not favor introduction of the court’s own process servers. No comment on other items under this head pending receipt of further opinions of delegates. Agreement provides consultation with the council.
Point 10. Chinese propose omitting this from agreement, to be taken care of in the preamble by some indirect formula without specific reference to treaty rights. Legations replied they had no objection to having this point dealt with separately from the agreement and suggested that if necessary formula might be found in the form of unilateral declaration.
Point 11. Chinese concede that there may be, in addition to Chinese superintendent appointed solely by Chinese Government in every prison, a foreign assistant superintendent appointed by the Chinese Government, these two officers to select entire prison staff, not necessarily from municipal police. The foreign delegates reserved opinion pending consultation with Municipal Council.
Point 12. Chinese refuse to include in agreement any undertaking to employ any foreigner on clerical staff but remarked that for the sake of convenience the Chinese authorities might employ three or four foreigners of their own selection. Foreign delegates considered it would be dangerous to agree to the Chinese demands. Legations concurred and considered this point must be insisted upon, further consideration as to possibility of compromise to be given if other points are satisfactorily disposed of and this one remains outstanding.
Point 13. Chinese are prepared, in exchange of notes, to place judgments of Mixed, Provisional and new Courts on the same footing as regards validity. Legations concurred on the understanding that the point proposed means that judgments in question are indisputably valid.
Point 14. Chinese state foreign lawyers will be admitted (a) in cases in which Municipal Council is plaintiff or complainant; (b) in [Page 747] all cases in which a foreigner is party, provided foreign lawyers can only represent Municipal Council or foreign parties. Police may send foreign lawyers to act as prosecutor[s] in criminal cases which they bring before the court. Chinese further propose municipal or foreign lawyers be limited to those already practicing in Shanghai, these lawyers to apply for certificates from Ministry of Justice in accordance with Chinese regulations and to be subject to Chinese regulations defining discipline of lawyers. Foreign delegates recommend Chinese proposal be considered acceptable only in the event that (a) provision is made for new lawyers, and (b) application of qualified lawyer to Ministry of Justice will be purely pro forma. Legations concurred, leaving to discretion of delegates whether to insist on (a). They suggested attention be drawn to provisions of Sino-German37 and Sino-Austrian38 treaties on this point.
Point 15. Chinese stated that though contrary to Chinese law they could agree to statics quo pending definite arrangement with authorities of French special agreement.
Additional points:
Point 16. Chinese stated every modern Chinese court has a place for storing confiscated articles which belong to the state such as opium, arms, et cetera. Legations did not comment but stated they presumed storage of confiscated arms in the court would not be likely [garbled groups] endangering the peace and order of the Settlement.
Point 17. Chinese refuse include in agreement a clause definitely safeguarding treaty rights. Legations pointed out this has already been dealt with and added that new agreement cannot abrogate existing treaty provisions and that it seems unnecessary and challenging to say so.
Point 18. Foreign delegates inquired if new court would include registration bureau for land and documents such as may under Chinese liberal construction exist in District Courts. The Chinese stated this question had not been considered.
3. British Legation requests copy of the above be handed British Embassy for transmission to Foreign Office in London.
- Telegram in eleven sections.↩
- Agreements between Germany and China regarding the restoration of the state of peace, signed at Peking, May 20, 1921; League of Nations Treaty Series, vol. ix, pp. 271, 288, 289.↩
- Treaty of commerce between China and Austria, signed at Vienna, October 19, 1925; ibid., vol. lv, pp. 9, 21.↩