893.05/236: Telegram

The Chargé in China (Perkins) to the Secretary of State

48. Legation’s 47, January 15, 3 p.m. Following from Jacobs at Nanking:

“January 15, noon. Personal for Perkins from Jacobs. I concur in Bucknell’s January 14, 4 p.m. After further consultation with Council I desire to add the following with which Bucknell agrees.

1. Procurator. Even the partial introduction of the procurator makes it more necessary than ever to eliminate all hearing in camera and to require preliminary hearing in open court be given persons found in the Settlement who are wanted by the residing authorities before they are handed over.

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2. While in Shanghai during the past three days Garstin, Groenman, Koechlin,88 Toussaint89 and myself discussed with Arnhold and Fessenden90 the Council’s position vis-à-vis our negotiations.

During these discussions (confidential) the British, French and Dutch delegates attempted, in my opinion, to persuade the Council to adopt a less liberal attitude than it had previously taken, especially in regard to the procurator, the French delegate being particularly aggressive on the point. Fessenden’s views reiterated, Arnhold said very little, my views remaining unchanged and were substantially as follows: In order to prevent friction, between the municipal authorities and whatever Chinese judicial forum may be established in the Settlement, the following points must get careful attention in the new agreement, failing which incidents are certain to arise which may easily lead to the necessity of intervention on the part of the powers:

Judicial police under municipal supervision;
The right of the Council to be represented and heard in court by counsel in any case in which the interests in the Settlement are involved;
No person found in the Settlement to be handed over to outside authorities without a preliminary hearing at which the Council may be represented and heard;
Complete control by the Municipal authorities of prisons in the Settlement; and
The unqualified application in the courts of the land regulations and bylaws in spite of any similar provisions that may exist or hereafter exist in Chinese law.

3. With regard to the procurator, Fessenden would prefer to see him eliminated altogether but he does not see any great danger in permitting the procurators to hear inquests and to prosecute in criminal cases concerning the security of the Settlement, provided the abovementioned points are safeguarded.

4. With regard to (c) above, Fessenden stated that it was not the Council’s desires to protect real criminals wanted by the outside authorities but that the Council did desire to protect the Chinese civic and economic life of the Settlement which is so closely interlocked with foreign interests …

5. With regard to (d) above, Fessenden stated that the Council alternatively had no objection to handing over Chinese prisoners convicted of crimes under the criminal code for incarceration in Chinese prisons outside of the Settlement.

6. Bucknell and I are convinced that the above points, in addition to others already conceded, taken as a whole constitute the irreducible maximum of concessions which we can recommend for your approval. We believe, regardless of the position of other representatives which in some respects is more unyielding than the above, that an agreement along these lines would satisfy the Council and would reasonably protect the peace and order of the Settlement. The time has now come in negotiations when you must envisage the failure of the [Page 321] present negotiations in the event the Chinese definitely refuse to accept an agreement along the lines indicated. An expression of your views with particular reference to the last point is considered absolutely necessary to define our future course of action.”

Legation’s comment will follow.

  1. Telegram in five sections.
  2. British, Netherlands, and French Consuls General at Shanghai.
  3. Representing the French Legation in China.
  4. Chairman and Director General of the Council.