893.05/240: Telegram

The Acting Secretary of State to the Consul General at Shanghai ( Cunningham )

Following for Perkins as Department’s No. 37: Your 69, January 22, 11 a.m., as corrected in subsequent telegrams.

1. (a) Paragraph 1. The Department conditionally authorizes the American delegates to sign, on behalf of the American Chargé d’Affaires ad interim, the Agreement set forth in your 69, January 22, 11 a.m., as corrected in your 70, January 22, 6 p.m., and 77, January 24, 6 p.m.1 The conditions upon which Department’s authorization is predicated follow:

(b) After the second sentence of Article 2 insert the following sentence or a sentence providing an equivalent safeguard, “The Land Regulations and By-Laws of the International Settlement shall be changed only with the assent of the parties signatory to this Agreement”.

(c) Article 8. If any Chinese laws or regulations exist that would exclude from practice in the new courts of the International Settlement foreign lawyers having extraterritorial status, the Department believes that it would be highly desirable to obtain from the Chinese [Page 330] delegates consent to amend this sentence so as to obviate possibility of the exclusion from practice of foreign lawyers having extraterritorial status. The wording of the last paragraph of Article 8 makes possible the inference that such lawyers who apply for certificates authorizing them to practice in the new courts will be required to divest themselves in part of their extraterritorial status. In order to obviate this possibility the Department believes it is highly desirable to make changes in phraseology so that the passage in question shall read “and shall conform to Chinese laws and regulations controlling the practice of law, including those governing disciplinary punishments of lawyers”.

(d) Note from foreign delegates to Chinese delegates, Item 1. The Department infers that this passage is intended to bring about the following situation: the new courts will have jurisdiction over Chinese and non-extraterritorial foreigners in the International Settlement and over extra-Settlement roads, while the two categories of mixed cases described when arising outside the Settlement will be tried in Chinese courts likewise outside the International Settlement. If this inference is correct, the Department approves Item 1. The Department does not, however, understand the Legation’s comment “Even though we are maintaining consular representatives”.

(e) The first of the conditions listed above is the only one which the Department considers of fundamental importance.

2. Department was on the point of despatching a telegram with the above content on January 25, when it received seriatim the Legation’s telegrams 79, January 25, 11 a.m., 80, January 25, 1 p.m., and 84, January 25, 3 p.m., containing additional comments by the delegates. The Department has now studied these telegrams. While there is nothing in the later messages that leads the Department to alter its views as set forth in Paragraph 1 above, the Department suggests that you consult with the American Minister.

3. Your telegram of January 28, noon, received.

Cotton
  1. Latter two not printed.