893.05/247: Telegram

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

79. Legation’s 71, January 21 [23], 3 p.m.

1. Following dated Shanghai, January 23, 1 p.m.

“Confidential from Jacobs and Bucknell: Following is a joint telegram sent through the British Consulate General here to the French Minister as Senior Minister but without any comment of Sir Miles Lampson who has left for Hong Kong on urgent private business:

‘At 28th full session on January 21st text of a draft agreement and attached notes, which was telegraphed on January 21st to the American Legation, was concurred in by Chinese and foreign delegates subject to approval by their respective authorities and, further, subject, so far as the foreign delegates are concerned, to reservations in regard to clauses relating to procurator and process servers. At the close of the session the chief Chinese delegate manifested unreasonable impatience at prospect of delay which I think involved some [of] our Legations and even suggested that we should press for a reply within 48 hours. We pointed out that this was impossible and that we had all along made it clear that we should have to refer final text to our Legations, [Page 326] who in turn might have to refer to their respective Governments.

Our comments follow below:

  • Article 1. No comment.
  • Article 2. As regards future laws, we tried to carry on alternative instructions mentioned in part [point] 5 of the Legation’s joint telegram of January 1st,98 but the Chinese insisted on reference in the agreement to Chinese laws without any starred statement in the agreement or elsewhere that a reasonable period must elapse between the promulgation and enforcement of future laws.
  • Article 3. No comment.
  • Article 5. In view of insistence of Chinese and of Legation’s joint instructions of January 1st, point 4, we could not say that we refused the procurator altogether, but we have limited his powers as far as we could. It will be noted however that in addition to the right of prosecution in certain cases, even under chapter 7 of part 2 of the criminal code, the Chinese insist upon the right of the procurator to express his views in court in all criminal cases. We informed the Chinese that we could not recommend the latter point to our Legations since it appears to us to give the Chinese Government through the procurator undue influence over the judges in judicial proceedings in which the municipal police prosecute.
  • Article 6. It is admitted that this article lacks precision but this results from an attempt to find a compromise between conflicting views. For instance we tried to limit the handing over of Chinese to those cases where the crime had been committed outside the Settlement but the Chinese declined to accept such a limitation (which they said was contrary to Chinese law) in spite of warning of possible future trouble should any attempt be made to hand over to the extra-Settlement authorities a Chinese charged with commission of an offense in the Settlement. As regards preliminary investigations the formula arrived at is the maximum concession the Chinese would agree to make, but, since the chief Chinese delegate verbally assured us that the Municipal Council could be represented in such proceedings in accordance with article 8, this formula is not entirely unsatisfactory.
  • With regard to process servers the arrangement arrived at goes beyond the Legation’s joint instructions of January 1st, point 9. Some of the delegates felt that this was necessary if we were ever to induce the Chinese to agree to a tentative draft while others thought that we were going too far and felt, with the Chairman of the Council, that an independent body of process servers would lead to abuses. As a result [of such?] divergence of opinion we informed the Chinese that all the delegates could not recommend to their Legations the appointment of process servers independently of the Municipal Council.
  • Article 7. The Chinese delegates in agreeing to this article asked us to recommend to the Municipal Council that a substantial lump-sum [Page 327] be set aside for the construction by the Chinese authorities of a modern prison outside the Settlement. We replied that although it was not within our province to make such recommendation we would mention their request to our Legations. We also pointed out that the Municipal Council was now contributing to the upkeep of the provisional court a considerable sum in the form of fines under the land regulation[s] and bylaws which under article 14 of said regulations properly belongs to the Council.
  • Article 8. Since the provision in paragraph 2 is the quid pro quo secured for giving up the consular observer who had access to the judge in chambers we feel that the restriction placed upon the Council’s lawyer which prevents him from pleading orally is too narrow. Although it permits the Council to know what is going on, it does not permit the publicity denied by [to?] the Council.
  • Article 9. No comment.
  • Article 10. The Chinese seem set on having the agreement signed and in force on or about February 1st, but we feel that this does not allow the residents of the Settlement and the Council time to make their necessary adjustments.

Exchange of notes:

  • Paragraph 1. No comments.
  • Paragraph 2. French delegation reserved their adhesion to this paragraph as at present worded.
  • Paragraph 3. It will be noted from this paragraph when taken together with article 6 that the control exercised by the Municipal Council over the judicial police has become dangerously attenuated and may be a source of embarrassment to the Council unless the Chinese authorities administer the new courts strictly in good faith.
  • Paragraph 4 to 8. No comment.

Unilateral declaration in the text telegraphed to the American Legation. We have attempted to give effect to the Legation’s instructions relating to unilateral declaration given in their joint telegram of January 1st, points 5, 6, 7 and 8. As the Chinese delegates stated that, [while they?] could not prevent the powers concerned from making unilateral declaration, they were not concerned therewith. We did not therefore communicate to them its terms in full and they indicated that if it were addressed to the Chinese delegates they might not be in a position to receive it.

French delegation has said they insisted that this declaration must be in the form of a written note joined to the agreement.

Foreign delegates are still in Shanghai and should there be any further instructions for them they will be grateful if they can be addressed to Shanghai.’”

For the Chargé d’Affaires ad interim:
  1. Telegram in eight sections.
  2. See telegrams No. 1173, December 20, 1929, and No. 18, January 4, 1930, from the Chargé in China, Foreign Relations, 1929, vol. ii, pp. 736 and 744.