I am to inform you that no negotiations whatever took place on this
subject until the conversations in January reproduced in the enclosure
to this letter, when, as you will see Dr. Wang-Pu presented a written
skeleton of the Chinese plan to which Sir M. Lampson responded by
presenting on February 3rd a memorandum based on that the text of which
was communicated by me to Mr. Johnson on November 18th last. A copy of
the memorandum presented to Dr. Wang-Pu was given at the same time to
Mr. Johnson88 who
informed Sir M. Lampson that the United States Government were
submitting a communication through the Chinese Minister in Washington
embodying the principle of foreign legal advisers and not co-judges. By this time however the presentation of the
State Department’s outline of possible provisions of agreement to the
Chinese Minister on January 23rd, without any previous warning which
might have enabled His Majesty’s Government in the United Kingdom to
make any necessary adjustments in their policy, had, in His Majesty’s
Government’s view, led to its being impossible to negotiate with any
prospect of success for the safeguards abandoned in the outline, and
indeed attempts to secure such safeguards may now merely give rise to
friction and to agitation directed against the power concerned. The
Foreign Office state that the new situation thus created is now under
discussion with Sir M. Lampson and that as soon as a definite decision
as to His Majesty’s Government’s future course is reached, it will be
communicated to the Government of the United States.
I should perhaps here say that the above was written before you had
informed me, and I had reported to the Foreign Office, that you were
convinced that Dr. Wang-Pu could not on February 3rd have had knowledge
of the contents of the outline of possible provisions of agreement of
January 23rd.
In the meantime, while the decision to be taken is being discussed with
His Majesty’s Minister, Mr. Henderson desires me to explain developments
to you and I shall be grateful if you will inform me when it would be
convenient for me to call on you.
[Enclosure]
The British Embassy
to the Department of State
Aide-Mémoire
1. Sir M. Lampson had his initial discussion with the Chinese
Minister for Foreign Affairs in Nanking on January 9th. The Minister
for Foreign Affairs brought up the question of extraterritoriality,
and it was agreed to hold an informal exchange of views before any
formal meeting with experts.
2. The Minister for Foreign Affairs sketched out his plan, saying it
had already been put in in London. It provided for the adoption of
the geographical method, for total abolition, for special courts in
five specified areas to which all foreign defendants might have
their cases brought, these courts to have a foreign element.
3. Sir M. Lampson explained to the Minister for Foreign Affairs that
he could only at present deal with general principles, that if these
could be agreed upon the moment might come when they might usefully
have a technical committee to study the details of their
application. Sir M. Lampson’s first principle must be that of
gradual abolition of extraterritoriality: any progress would be
difficult unless that were admitted. Elaborating this theory, His
Majesty’s Minister reminded Dr. Wang-Pu of the offer of January
192789 and classified into three classes the
cases to which His Majesty’s Government in the United Kingdom
adhered: next, he said, would come the question of safeguards. But
he might say at once that His Majesty’s Government were, as a result
of great study, opposed to the geographical method.
4. As regards the foreign element which Dr. Wang had said the special
courts should have, His Majesty’s Minister gathered that foreign
advisers were contemplated and then only (if he had understood
[Page 396]
correctly) in criminal
cases. He reminded Dr. Wang again of His Majesty’s Government’s
classification and put it to him that negotiations between His
Majesty’s Government and the National Government would be immensely
facilitated if he would agree to foreign judges. Dr. Wang-Pu hinted
that this might be possible if His Majesty’s Government gave up
criminal jurisdiction as well. Sir M. Lampson said this was quite
out of the question. To the Minister for Foreign Affairs’ direct
enquiry whether it was His Majesty’s Government’s idea to retain
consular courts in China for certain classes of cases, His Majesty’s
Minister replied “Most certainly, yes.”
5. Finally Sir M. Lampson obtained from Dr. Wang-Pu an undertaking to
send his plan in writing so that he might see how far it might be
possible to see where His Majesty’s Government and the National
Government differed and where it might be possible to build upon his
plan, and it was agreed to hold another informal meeting before
formal discussions with experts in attendance were begun.
6. Sir M. Lampson warned Dr. Wang-Pu several times during the
conversation against trying to hurry matters too much. His Majesty’s
Government were desirous of helping him, but the British were by
nature slow and cautious movers, and in his own interests Dr.
Wang-Pu must not open his mouth too wide. For example neither His
Majesty’s Government, British Parliament nor people would tolerate
surrender at present of criminal jurisdiction.
7. At a second interview, on January 10th, Dr. Wang-Pu supplied Sir
M. Lampson with a written skeleton Chinese plan, the text of which
was as follows:—
- “1. Beginning from the 1st January, 1930, all British
subjects in China shall obey its laws, ordinances and
regulations duly promulgated by the central and local
Governments of China.
- “2. All British subjects in China shall be subject to
the jurisdiction of Chinese modern courts.
- “3. In district courts in Canton, Hankow, Shanghai,
Tientsin and Harbin and in high courts having appellate
jurisdiction over such district courts a special chamber
shall be established for exclusively dealing with civil
and criminal cases in which a British subject is the
defendant.
- “(The territorial jurisdictions of special chambers
need not correspond with the territorial jurisdictions
of courts to which they belong, but they cannot be too
wide.)
- “4. The chief judge of a special chamber shall be the
president of the court to which the chamber belongs.
Other judges of special chamber as well as its
procurators shall be selected from among legal scholars
with training of a long duration. Their names, ranks and
salaries together with their past experiences will be
made known to the public.
- “5. To each special chamber shall be attached a
certain number—say one to three—of legal advisers who
shall be selected by the Chinese Government from among
foreign well-known legal experts and whose names,
together with their past experience, will be made known
to the public.
- “6. The legal adviser shall not in any way participate
in trial of cases, but in courts of first and second
instance he may; have access to the file of the
proceedings and present in writing his views on legal
questions.
- “The judges shall give due consideration to the views
thus expressed by the legal adviser, but may always
render their decisions independently of such
views.
- “7. Any British subject arrested by the police on
suspicion of having committed a crime shall, within
twenty-four hours after arrest, exclusive of holidays,
be sent to the nearest court for trial.
- “8. The arrangement regarding special chambers and
legal advisers shall terminate after a period of two
years.”
8. This seemed similar to an outline which was communicated to His
Majesty’s Government in London on November 25th and of which the
Secretary of State was informed in Sir E. Howard’s note No. 667 of
December 21st,91 except that the proviso that cases
between nationals of the same country might be heard outside China
had been omitted (because, as the Minister for Foreign Affairs
explained, a similar proviso in the case of Turkey had not worked in
practice) and in its place the Chinese Government proposed to enact
a law covering arbitral awards as between all nationals in
China.
9. Sir M. Lampson told Dr. Wang-Pu that provision for arbitration was
one of His Majesty’s Government’s points and that he welcomed the
Chinese Government’s intentions. As to the written proposals, he
must study these carefully, but he noticed at once that criminal
jurisdiction was included. That he could not in any circumstances
admit, and here he read to Dr. Wang-Pu the second paragraph of the
memorandum enclosed in the letter addressed to Mr. Johnson by His
Majesty’s Chargé d’Affaires on November 18, 1929. Sir M. Lampson
next turned to the offer of judicial advisers and repeated that His
Majesty’s Government desired to have foreign judges. Finally Dr.
Wang-Pu asked if Sir M. Lampson could give him a rough skeleton just
as he had done of His Majesty’s Government’s ideas of a satisfactory
agreement. His Majesty’s Minister said he would see if this were
possible under his instructions and he sought authority to
crystallize the pith of the plan as given in the above mentioned
memorandum in a written communication to the Chinese Foreign
Minister.
10. The above reproduces fully Sir M. Lampson’s reports of his
discussions with Dr. Wang-Pu up to February 3rd.
[Page 398]
11. In the meantime His Majesty’s Minister had received no
instructions on this subject of extraterritoriality additional to
the telegram of November 2nd containing His Majesty’s Government’s
plan, except on January 9th when a telegram in the following sense
was despatched to him:—
The absolute exclusion of the subject of taxation from the scope of
the present negotiations would in all probability prove to be
impossible.
It was really a question of Chinese law whether proceedings for
non-payment of taxation were regarded as criminal or civil, but
irrespective of whether such jurisdiction was criminal or civil in
character, the question of its transfer to Chinese courts could be
considered on its merits.
In the first place, a very clear definition would be necessary of
what constituted legal taxation for the payment of which British
subjects were to be held liable. It would probably prove necessary
now to go beyond the terms of the 1927 offer in this connection and
include municipal and other taxation for local purposes. Mr.
Henderson therefore suggested that in cases of national taxation
British subjects should only be legally liable to pay a tax which
satisfied the conditions of the 1927 offer; in the case of local
taxes, the tax must have been sanctioned by the central Government
in addition to being non-discriminatory.
In both cases a defined procedure for promulgation and notification
would be necessary. In the case of municipal taxation, an effort to
secure recognition of the principle that the proceeds of such taxes
could only be spent on public purposes within the area in which they
were levied, might be desirable. That the Chinese Government should
expressly recognize the validity of special taxation agreements such
as those made with the Kailin Mining Administration was a further
stipulation which seemed advisable.
Taxation cases might be considered as one of the subjects in regard
to which jurisdiction might be transferred to Chinese courts
provided adequate safeguards could be secured, as long as what
constituted legal taxation could be defined with a considerable
degree of certainty. But without such a definition it would hardly
be possible to agree to such a transfer of jurisdiction. In this
connection, it was important that the procedure for assessment
should be satisfactory and that it should be known in what Chinese
courts it was proposed that disputes as to assessments etc. should
be decided. Acceptance of anything in the nature of administrative
tribunals for this purpose would presumably be difficult. An
intermediate stage in which British courts would enforce Chinese
taxation was a possibility which should not be lost sight of, but if
assessment were entirely in the hands of Chinese officials or
tribunals, this would not be of much value.
[Page 399]
12. On January 15th Sir M. Lampson was authorized to give to Dr.
Wang-Pu in a written communication the pith of His Majesty’s
Government’s plan already referred to and after his draft had been
approved on January 20th, he communicated it to Dr. Wang-Pu at their
next interview on February 3rd. The text of this document is as
follows:—
“The abolition of extraterritoriality must be a gradual and
evolutionary process, and the extent of initial
modifications that can be made in the present system and
rate of subsequent progress must be determined by the extent
to which the Chinese Government accept this underlying idea
and the nature of the safeguards that they may be willing to
erect at each stage of the process.
- “2. Such progressive abolition should follow method of
transfer of jurisdiction by subjects in general order of
(i) civil cases, (ii) criminal cases, and (iii) personal
status cases.
- “3. The most that they92 can envisage in the
near future is (i) civil cases and that there should be
no general transfer of criminal jurisdiction until
experience gained of administration of civil
jurisdiction demonstrates that criminal cases can also
be safely transferred.
- “4. The civil jurisdiction to be transferred must be
limited to those classes of cases in regard to which
codes have been promulgated and actually put into
operation.
- “5. Jurisdiction in transferred cases can only be
entrusted to such modern courts as are efficiently
organized and adequately staffed.
- “6. The extent of transferred jurisdiction might thus
be widened as and when the new codes are promulgated and
enforced and the number of suitable modern courts is
increased. In the meantime, however, His Majesty’s
Government are prepared to repeat the offer made by them
in January 1927 that Chinese law should be progressively
applied in British courts in China.
- “7. Adequate safeguards in administration of justice
must be furnished with special reference to (a) protection against
administrative interference with courts by military and
other non-judicial authority; (b)
protection against unreasonable and irregular taxation,
against oppressive methods of assessing or levying taxes
and against all exactions enforced by the executive
authority without due process of law; (c) protection against interference with
liberty of subject and against domiciliary visits and
vexatious inspection of premises, factories, etc., and
against arbitrary interference with shipping. These
safeguards should, in the view of His Majesty’s
Government, take the form, inter
alia, of judges of foreign nationality employed
by Chinese Government in Chinese courts to which
jurisdiction over British subjects may be progressively
transferred; of right of foreign litigants to be
represented by foreign lawyers of their own choice, and
by some system of evocation.
- “8. Suits between British subjects would continue for
the present to be heard in British courts.
- “9. His Majesty’s Government consider it desirable
that arbitral awards in cases between British subjects
and other foreigners and Chinese should be recognized
and enforced by Chinese courts.”
[Page 400]
Dr. Wang-Pu made the following comments indicating points of
divergence from the Chinese point of view:
He observed that even in regard to civil cases His Majesty’s
Government appeared to contemplate only limited and conditional
transfer of jurisdiction and on being referred to paragraph 4 he
said that promulgation of all codes excepting those relating to
personal status was practically completed. He enquired what was
meant by the words “satisfactory to both Governments” and did not
seriously demur when Sir M. Lampson said that we would of course
have to examine the codes.
Referring to paragraph 8, Dr. Wang-Pu expressed disappointment at the
British reservation of cases between British subjects for British
courts in China; the Chinese Government aimed
at abolition of all foreign courts on Chinese soil.
Referring to paragraph 7 he said that any system of foreign co-judges
would be difficult for the Chinese Government to accept. When Sir M.
Lampson explained that this was the cardinal point in the British
plan in connection with safeguards he said that without committing
his legal colleagues or his Government, he would like to enquire
whether, if China agreed to the employment of foreign co-judges, His
Majesty’s Government would agree to surrender criminal jurisdiction.
Sir M. Lampson said that he had no authority to discuss such a
suggestion beyond possibly going part of the way to meet them by
surrendering certain classes of minor criminal cases such, for
instance, as those relating to gambling and gaming. He urged
strongly the advantages of the co-judge plan, but Dr. Wang-Pu
insisted that China could not consider it except
in return for surrender of criminal jurisdiction.
The next point Dr. Wang-Pu took up was that of His Majesty’s
Government’s desire for abolition by gradual and evolutionary
process as opposed to China’s demand for immediate abolition. This
he explained was clearly a question of dates. China could never
accept so indefinite an arrangement as that envisaged in the third
paragraph under which any transfer of criminal jurisdiction might be
indefinitely delayed. Sir M. Lampson argued at length that the
system must prove itself, that the degree and efficiency of the
safeguards introduced must rule the rate of progress and that
British fears must first be proved by actual experience to be
groundless. Dr. Wang-Pu insisted that there must be fixed dates for
the various stages, including (as Sir M. Lampson had introduced the
point), say, rights of evocation in criminal cases for a certain
number of years. China was prepared to consider a worse arrangement
than Turkey secured but could not possibly accept worse terms than
Siam. He suggested, in illustration of his theory of dates, the
transfer of civil jurisdiction on July 1st and criminal jurisdiction
on January 1st next. Sir M. Lampson refused to follow him on to this
ground.
[Page 401]
Reverting to foreign co-judges and foreign counsellors Dr. Wang-Pu
said in reply to Sir M. Lampson’s enquiry that if His Majesty’s
Government could not see their way to considering the former plus transfer of criminal jurisdiction, there
remained the Chinese plan for employment of the latter, who he
explained in reply to Sir M. Lampson’s further enquiry, would be
selected from the best foreign jurists available and added (when
pressed) that they might very likely be chosen with the assistance
of the Hague Court and engaged on a contract basis for two years or
whatever time limit might be fixed. He suggested foreigners should
be satisfied with men of the calibre of Judge Feetham.93
Discussing the question of safeguards with special reference to
taxation, he expressed his agreement with the desiderata of His
Majesty’s Government as formulated in paragraph 7, which he said
were as necessary for China as for the foreigner. Sir M. Lampson
explained British fears in regard to enforcement of arbitrary and
unreasonable taxation by local courts if the protection of
extraterritoriality were withdrawn and Dr. Wang-Pu said that he felt
sure that the point could be covered by special clauses limiting
taxation to that levied under national enactments by the due process
of law. Sir M. Lampson said that His Majesty’s Government should
require very specific safeguards in this respect, including
provision against unfair assessment in case of levies such as
municipal taxes and should want to examine the laws under which
particular taxes would be enforced.
At the conclusion of the interview Sir M. Lampson enquired whether he
was to take Dr. Wang-Pu’s observations as considered comments on the
British plan. Dr. Wang-Pu replied in the affirmative and referred
especially to the “hypothetical question” he had put as to whether,
if China agreed to employ foreign co-judges, His Majesty’s
Government would surrender criminal as well as civil cases.
Before this interview on February 3rd His Majesty’s Minister gave to
the United States Minister a copy of His Majesty’s Government’s
plan. Mr. Johnson informed Sir M. Lampson that the Government of the
United States were submitting a communication through the Chinese
Minister at Washington embodying the principle of foreign legal
counsellors, and not co-judges. Sir M.
Lampson expressed to Mr. Johnson the fear that His Majesty’s
Government might find the ground cut from under their feet on this
point.
Washington, March 4, 1930.
