793.003/330
The Chief of the Division of Far Eastern Affairs (Hornbeck) to the British Chargé (Campbell)
My Dear Mr. Campbell: I acknowledge the receipt of your confidential letter of March 4 and the confidential aide-mémoire of the same date enclosed therewith.
It has been proved very helpful to us to have the information given in these communications.
If I may be permitted to comment, I should like to repeat what I have on several occasions said to you, that the Department desires that, in the handling of this question, there be cordial cooperation among the governments concerned, with frank exchanges of views and information as it is our belief that this will best facilitate the attainment of the common objective sought. We have felt that the British Foreign Office attributed to the paper given by me to the Chinese Minister on January 23 more importance than that paper possessed and that the Foreign Office was unduly apprehensive with regard to the effect of the conversations between the Chinese Minister and myself upon the situation. That paper could not properly be described as the State Department’s outline of a possible agreement. The American Government has not abandoned the policy indicated in its communications to the Chinese Government of August 10 and November 1. The American Government does not expect to make an agreement in which extraterritorial rights will be given up immediately, unconditionally and without safeguards. It is our belief that the Chinese Minister well understands our point of view in regard to these and related matters.
May I request that you convey to the Foreign Office an expression of our appreciation of the information given in the aide-mémoire under acknowledgement. From the statements made therein, it is my understanding that the discussions between Sir M. Lampson and the Chinese Minister for Foreign Affairs began on January 9; that the Minister for Foreign Affairs gave an outline of the Chinese Government’s ideas, and that Sir M. Lampson in reply gave an outline of the ideas of the Foreign Office; that Dr. Wang talked of special courts and foreign advisers; that Sir M. Lampson talked of foreign judges and the retention of criminal jurisdiction; that on January 10 Dr. Wang supplied Sir M. Lampson with a written copy of a “Chinese [Page 414] plan” (of which you have been so good as to give us a text); that this was similar to an outline which had been communicated to His Majesty’s Government in London on November 25, but with certain changes; that Sir M. Lampson stated that he could not contemplate surrender of criminal jurisdiction and repeated an expression of His Majesty’s Government’s desire that there be foreign judges; that on January 9 the Foreign Office had sent to Sir M. Lampson an instruction on the subject of the manner in which the subject of taxation might be treated; that on February 3 Sir M. Lampson communicated to Dr. Wang the text of an outline of His Majesty’s Government’s plan (of which you have been so good as to give us a copy); that this provided for (1) abolition of extraterritoriality by a gradual and evolutionary process, with safeguards, (2) transfer of jurisdiction by subjects in general order of civil cases, criminal cases, and personal status cases, (3) transfer in the near future of civil cases only, (4) restriction to those classes with regard to which codes have been formulated and actually put into operation, (5) transfer only to such modern courts as are efficiently organized and staffed, (6) further transfer as and when the new codes are promulgated and enforced and the number of suitable modern courts increased, with progressive application of Chinese law in British courts in China, (7) adequate safeguards with special reference to protection against interference by military and nonjudicial authority and against unreasonable and irregular taxation and against oppressive methods of assessing or levying taxes and against exactions enforced without due process of law and against interference with liberty of subject and domiciliary visits and vexatious inspections and against arbitrary interference with shipping, and that there should be judges of foreign nationality in Chinese courts to which jurisdiction over British subjects may be progressively transferred, and that foreign litigants should have the right to be represented by foreign lawyers, and that there should be some system of evocation, (8) suits between British subjects should continue for the present to be heard in British courts, and (9) arbitral awards in cases between British subjects and other foreigners and Chinese should be recognized and enforced by Chinese courts. We note that Dr. Wang stated that promulgation of all codes excepting those relating to personal status was practically completed and that he did not seriously demur when Sir M. Lampson said that British authorities would of course have to examine the codes; that Dr. Wang said that the Chinese Government aimed at abolition of all foreign courts on Chinese soil; that Dr. Wang said that any system of foreign co-judges would be difficult for the Chinese to accept and that he inquired whether, if China agreed to the employment [Page 415] of foreign co-judges, His Majesty’s Government would agree to surrender criminal jurisdiction; that Sir M. Lampson urged strongly the advantages of the co-judge plan, and that Dr. Wang insisted that China could not consider it except in return for the surrender of criminal jurisdiction. We note the discussion of the subject of dates and that when Dr. Wang suggested the transfer of civil jurisdiction on July 1 (1930) and criminal jurisdiction on January 1 next (1931) Sir M. Lampson refused to follow him. We note the further discussion of the question of foreign co-judges and foreign counselors. We note that Dr. Wang expressed his agreement with the desiderata of His Majesty’s Government as formulated in the paragraph (7) dealing with the subject of safeguards, and Dr. Wang’s admission that this was as necessary for China as for the foreigner, and Dr. Wang’s affirmation that he felt that there might be special clauses limiting taxation to that levied under national enactment by due process of law. We note the return to the question of off-setting employment of foreign co-judges against surrender of criminal jurisdiction. We note the statement that before his interview with Dr. Wang on February 3 Sir M. Lampson had given to the American Minister a copy of His Majesty’s Government’s plan, and the statement that 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 counselors (Note: you of course realise that the “Government of the United States” was not “submitting a communication”), and we note that 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.
It is my understanding now that through you and through the American Embassy in London, the British Foreign Office has since been more correctly informed as to the nature of the materials for study informally given by me to the Chinese Minister on January 23. The American Minister to China has also been informed, and he has been in communication with Sir M. Lampson. I think it may be assumed that the British Foreign Office and Sir M. Lampson now understand the American Government’s position.
In continuing its study of the matter of extraterritoriality in China, the Department has given and will continue to give careful consideration to the views and the information which, on behalf of your Government, you have been so good as to communicate.
Yours sincerely,