Papers Relating to the Foreign Relations of the United States, 1930, Volume II

711.933/276

Memorandum by the Chief of the Division of Far Eastern Affairs (Hornbeck)

[Washington,] February 26, 1930.

Dr. Wu came in by appointment. After several outstanding minor questions were disposed of, Mr. Hornbeck referred to Dr. Wu’s request of a few days before that the discussion of the subject of extraterritoriality be resumed at an early date. Mr. Hornbeck said that study had been given to the memorandum presented by Dr. Wu under date February 6. In reply, a memorandum had been prepared. (Note: This memorandum was read to Dr. Wu and a copy was given him. A copy is attached.)

Dr. Wu said that he noted the statement that a new draft of a possible plan was to be prepared. Did that mean that the material given him on January 23 would be entirely discarded? Mr. Hornbeck replied that those materials as a setup would be discarded, just as a particular architect’s sketch might be discarded and the draftsman prepare an entirely new sketch, but that doubtless many features which had appeared in previous sketches would be worked into the new sketch.

Mr. Hornbeck said that he thought Dr. Wu might be interested in examining before he left a very rough sketch of a portion of what might be made the starting point for a new plan. (Note: Mr. Hornbeck gave Dr. Wu certain pages, copy attached.)

Dr. Wu said that he was leaving for The Hague on February 28. He did not know how long he might be away, but hoped that it would be for not longer than approximately five weeks. He hoped that if a new sketch were ready it might be communicated to him at The Hague.

S[tanley] K. H[ornbeck]

[Annex 1]

The Chief of the Division of Far Eastern Affairs (Hornbeck) to the Chinese Minister (C. C. Wu)

[Washington,] February 26, 1930.

Personal observations of Mr. Hornbeck in relation to memorandum covered by Dr. Wu’s personal note of February 6, 1930.

1. It is noted that Dr. Wu’s memorandum is headed “Personal observations of Mr. Wu on the Draft Agreement and Annex proposed on January 23, 1930”. By way simply of reminder, it should be pointed out that the materials handed by Mr. Hornbeck to Dr. Wu on January 23 were submitted on Mr. Hornbeck’s responsibility as materials for study; they did not constitute a proposal; and they were not to be regarded as in any respect a commitment.

2. It is believed that it might be practicable to arrange that all District Courts have trial jurisdiction; but if this were agreed to it would seem that the conditions under which American defendants may be accorded transfer of jurisdiction from the local District Court to a Special Court or a Court with Special Chambers be specified.

3. It might be possible to arrange that appeals be heard by the Provincial High Courts, provided that in those Courts there be established Special Chambers to deal with cases wherein American citizens are involved. Further information with regard to the method of procedure of the Supreme Court of China will be welcomed.

4. The provisions of Article III of the materials submitted on January 23 were designed to obviate dictation on the part of the American Government in connection with the naming of legal counselors. If it be preferred that the agreement entered into “clearly stipulate” the qualifications of the legal counselors and other specifications with regard to them, this could probably be arranged. Safeguards should be devised to ensure against pressure which might be brought to bear upon the Chinese authorities to appoint an undue or preponderant number of legal counselors or judges of any one nationality.

5. The principle of evocation was brought into the set-up under discussion for the reason, principally, that it was felt that this particular set-up was so liberal that without such a safeguarding provision it would be impracticable even to give it consideration. Mr. Hornbeck personally is not disposed to emphasize the inherent importance of such a provision; but as an item in this particular set-up of a possible plan, this provision must be regarded as one of considerable importance.

6. It is not believed that a time limit of two years could be agreed to. Dr. Wu will remember that in the course of conversations heretofore held, Mr. Hornbeck has made reference to the Chinese Government’s own indication of dates in connection with the second period in the prescribed program of China’s political reorganization; also that in the draft of the definite proposal submitted to Dr. Wu on December 21 (and in a somewhat amended form on December 28)⁸⁰ definite intimation was given of the American Government’s view with regard to one period at least of time. Reference is now made to the statements made in the concluding paragraphs of the American Government’s notes of August 10 and November 1.⁸¹

7. Further consideration will be given to the comments made by Dr. Wu, but in view of Dr. Wu’s definite objection to the principle of evocation, and in the light of consideration which has been given to this set-up since January 23, it is Mr. Hornbeck’s feeling that it is desirable at this stage to consider this set-up rejected. It is believed that substantial portions of it may be made use of for another set-up which will be prepared.

[Annex 2]

The Department of State to the Chinese Legation

Material for Study. No Commitment

I

Upon the signing of this Agreement definite steps shall be taken toward effecting the relinquishment by the United States of the right of extraterritorial jurisdiction by the American Government over American citizens in China. A commission shall be established at the earliest possible moment, which shall consist of two commissioners chosen by the Chinese Government, two commissioners chosen by the American Government and one commissioner chosen by these four who shall be a national of a third Power. This commission shall be appointed within two months after the exchange of ratifications of this Agreement and shall be charged with the examination of the civil laws and legal regulations which have been regularly promulgated by the National Government of the Republic of China and effectively and regularly applied in Chinese courts in relation to civil cases. After such examination, the commission shall designate those laws and regulations which it considers as conforming to modern concepts of jurisprudence, and such civil laws and regulations shall be applicable to American citizen who, in civil cases brought under these designated laws and regulations, shall, other than as provided by this Agreement, be subject to the jurisdiction of modern courts of justice ( ) through which judicial orders may issue in accordance with law and established procedure.

American citizens shall not be subject to the jurisdiction of Magistrate’s courts, military courts or police courts. While any of the several modern courts now established in China may take jurisdiction for the purpose of the issuing of judicial process looking to the establishment of a prima facie case in any civil case involving an American citizen, such case, upon the request of the American citizen interested, shall be brought to trial before one of the modern courts established at Harbin, Mukden, Tientsin, Shanghai, Hankow, Chungking, Canton or Yunnanfu, at each of which places there shall be created a special bench to hear cases involving American citizens. However, in the absence of any specific request from the American citizen concerned in a civil case, such case may be brought to trial before the modern court normally having jurisdiction over civil cases.

In the modern courts designated for the trial of cases involving foreigners at each of the eight cities named above, there shall be created a special bench for the trial of foreigners, this to consist of a Chinese judge and a foreign judge, the latter to be appointed by the Chinese Government from a panel of jurists supplied by the Hague Court of Arbitration. The foreign judge shall hear the case and shall render decision jointly with the Chinese judge, and the powers of the two shall be co-extensive.

In view of the fact that a considerable part of China’s laws have not as yet been codified and enforced in Chinese courts, it is contemplated that the extent of jurisdiction in civil cases, as ordinarily determined by the special commission referred to in the first paragraph of this Article, shall be increased as new codes are elaborated and enforced and as the number of effectively functioning modern courts becomes sufficient to cope with an increase in jurisdiction. The matter of increases in jurisdiction shall be dealt with by a commission appointed in the manner referred to in paragraph one above.

It is further contemplated that after a period of three years, in which the workings of the special benches have been carefully observed, the matter of the extension of Chinese jurisdiction over American citizens in criminal cases shall receive further attention, the action to be taken in this respect to be determined in the light of experience of the working of the present provisions.

II

Appeals from the decisions of these special benches in the courts of first instance, designated above, shall lie to the Provincial High Courts in accordance with established procedure, except that there shall be created a similar special bench in the appeal court. Should there be a deadlock between the Chinese and foreign judges in the court of first instance, the matter shall be referred to the special bench of the Provincial High Court concerned and in the event of a deadlock between the judges of this appeal court the case shall then be transferred to the Supreme Court of China for decision.

III

The Chinese Government agrees to take immediately into its service for such period as it may consider necessary, not being less than five years from the date of the signing of this Agreement, a number of foreign judges who shall be selected and engaged as officials of China by the Chinese Government from a panel of legal experts nominated by . . . . . . . . In addition to preparing the panel of nominees, the . . . . . shall recommend the amount and the conditions of payment of the salaries of the legal counselors to be thus selected by the Chinese Government. The panel shall be selected by the . . . . . from lists prepared by the law associations of the several countries concerned, the . . . . . nominations and the final selection by the Chinese Government to be made with particular regard to the merit and standing as jurists of the several nominees. China and each of the foreign countries interested shall have equal representation on this body of foreign judges as finally appointed by the Chinese Government. These judges shall serve under the Minister of Justice and shall normally be stationed at Shanghai, from which place they may be deputed by the Ministry of Justice, as occasion requires, for service, during the hearing of cases involving foreigners enjoying extraterritorial rights, in those modern courts especially designated for the trial of such cases. It shall be the duty of these judges to sit with the Chinese judges on the special benches described in Articles I and II both to hear all evidence and to render joint judgment with the Chinese judge with whom they sit and with whose powers as judge the powers of the foreign judges shall be exactly coextensive in respect to any cases before the court. These foreign judges shall be free from arrest or molestation because of any of their official acts, and the Chinese Government shall make special provision to ensure the payment of their salaries, travel allowances, and any other remuneration which shall be determined at the time when such foreign judges are appointed as Chinese judicial officials.

[Washington,] February 21, 1930.

80. See Foreign Relations, 1929, vol. ii, pp. 657 and 664.
81. See telegram No. 254, August 1, 1929, to the Minister in China and telegram No. 958, November 4, 1929, from the Minister, ibid., 1929, vol. ii, pp. 596 and 616.