793.003/332: Telegram
The Minister in China (Johnson) to the Acting Secretary of State
226. 1. My 213, March 22, 3 p.m. Following in paragraph 3 is complete text of draft which British Minister and I have drawn up to submit to our respective Governments for use in discussions between Washington and London with a view to finding a draft concrete proposal on the subject of extraterritoriality which might be simultaneously though individually laid before the Chinese by the two Governments.
2. British Minister and I propose on Monday12 to inform French Minister of the result of our consultations and later to inform other interested Ministers.
3. [Draft agreement:]
“The United States Government having declared their willingness that January 1, 1930, should be regarded as the date upon which the process of Government [gradual?] abolition of the extraterritorial rights of American citizens in China shall in principle have commenced, the Chinese Government will, with a view to enabling American citizens during the period of transition to familiarize themselves with Chinese laws and judicial procedure, immediately communicate to the United States Government all Chinese codes actually promulgated and enforced, together with authorized translations thereof.
The following agreement for the transfer of jurisdiction over American citizens in China from the United States to the Chinese Courts shall come into effect upon the exchange of ratifications which shall take place one year after the Chinese Government shall have promulgated and actually put into operation all the principal Chinese codes in conformity with modern concepts of jurisprudence and communicated them, together with authorized translations thereof, to the American Legation in China including the civil, commercial, criminal, and other primary codes.
[Page 419]In the meantime the United States Government will forthwith take steps to apply as far as practicable in the United States Courts in China all such Chinese laws, ordinances and regulations as shall have been promulgated and enforced and communicated with translations to the American Legation in China.
Article 1. Transfer of jurisdiction.
Except as otherwise provided by this agreement, American citizens in China will as from the date of the exchange of ratifications of this agreement be subject to the jurisdiction of the modern Chinese law courts with rights of appeal and in accordance with the modern codes of law and procedure. They shall not, however, be subject to the jurisdiction of the police courts, except in the case of minor offenses not punishable by detention or imprisonment or fines exceeding $10, nor to the jurisdiction of the magistrates courts, nor to that of military courts or courts or tribunals of any kind other than the regular modern law courts of China. From the inception of all legal proceedings, both civil and criminal, until the conclusion thereof, including the hearing of all cases in court, the assistance of duly qualified American or other foreign or Chinese lawyers and interpreters will be permitted.
Article 2. Establishment of special chambers in the high and district courts.
In the district courts in Harbin, Mukden, Peiping, Tientsin, Tsingtau, Shanghai, Nanking, Hankow, Chungking, Canton, Foochow and Yunnanfu, and in the high courts having appellate jurisdiction over such district courts, special chambers shall be established for dealing with civil and criminal cases in which an American citizen is the defendant or the accused. (The territorial jurisdictions of the special chambers to be determined in accordance with the practicability of access by agreement between the United States and the Chinese Governments.) All cases involving American citizens as defendants or accused, wherever resident, shall be tried only before these special chambers, which will also be for cases in which American citizens are involved as plaintiffs or complainants originating within the ordinary jurisdiction of the courts to which the special chambers are attached.
The chief judge of a special chamber shall be the President of the Court to which the chamber belongs. Other judges of the special chamber as well as its procurators shall be selected from among legal scholars with training and experience of a long duration. Their names, ranks and salaries will be made known to the public. To each special chamber shall be attached legal advisers who shall be selected by the Chinese Government from a list of foreign legal experts nominated by the Hague Permanent Court of International Justice and appointed in accordance with conditions of service and salary recommended by the said court. It is understood that a legal adviser need not permanently reside at the port in which the special chamber of the district court to which he is assigned is established and furthermore that there shall be a thoroughly flexible and practicable system of administration of assignments in order to ensure efficiency and economy in the employment of the said legal advisers. As far as may be practicable a legal adviser of American nationality will assist [Page 420] at the trial of cases involving American citizens as defendants or accused.
The legal advisers will observe the working of the special chambers of the district courts and high courts in question and shall have access to the files of the proceedings and may present their views to the judges who will give due consideration to the views thus expressed by the legal advisers. It will be the duty of the legal advisers—to forward to the Minister of Justice such reports as they may consider necessary, and copies of these reports, in cases concerning American citizens, will simultaneously be forwarded to the American Legation in China. The legal advisers will be authorized to receive complaints to which the administration of justice may give rise, with a view to bringing such complaints to the notice of the Minister of Justice in order to ensure the strict observance of the provisions of Chinese law. Similarly the legal advisers will be authorized to receive any other complaints including such as may be caused by domiciliary visits, requisitions or arrests, et cetera. In all cases in which American citizens are involved as defendants or accused, a legal adviser shall sit as one of the judges hearing the case in both the district and high courts, and the concurrence of the legal adviser to any judgment or order will be necessary for its validity.
The special chambers above referred to shall be established and the legal advisers shall be appointed and installed in office before the exchange of ratifications of this agreement.
Article 3. Guarantees in regard to taxation and the operation of courts.
With regard to the transfer of jurisdiction over American citizens in China from the United States to the Chinese courts, the Chinese Government declares as follows:
That American citizens will only be liable for the payments of such nondiscriminatory Chinese taxation as is authorized under the legally enacted and duly promulgated laws, ordinances and regulations of the Central, Provincial and Municipal governments of China, the texts and the translations which shall first be communicated to the American Legation in China;
That American citizens will be protected against all illegal taxation and irregular exactions and against all exactions sought to be enforced by Executive Departments without due process of law;
That municipal taxation will only be enforced against American citizens in accordance with duly authorized municipal regulations sanctioned by the Central Government of China and that the proceeds of such municipal taxation will only be expended on relevant purposes within the municipal areas in question and that American citizens will be protected against unfair or oppressive methods of assessing or levying such taxation;
That the Chinese courts will ensure to the persons and property of American citizens due protection in accordance with international law and the general practice of nations; and
That the Chinese courts assuming jurisdiction over American citizens will be kept strictly immune from administrative or other interference by any military or nonjudicial authority.
Article 4. Rights of evocation.
The United States Government through American diplomatic or consular officers in China, whenever in their discretion they deem it [Page 421] proper so to do in the interest of justice, may by means of a written requisition addressed to the competent Chinese authorities including the judge or judges of the court in which such case is pending evoke any case pending in any Chinese court in which an American citizen is defendant or accused. Such case will then be transferred to the competent American authorities for adjudication and Chinese jurisdiction in the case will cease. In these evoked cases the rights and liabilities of the parties will be determined by Chinese laws so far as they have been regularly promulgated and enforced and communicated to the American Legation in China. For dealing with evoked cases the jurisdiction of the United States Courts in China will continue; and the Chinese authorities will lend any assistance requested by the American authorities in this connection.
Article 5. Arrest, imprisonment and trial.
American citizens may not be arrested, detained or imprisoned except upon order formally issued by a modern law court specifically citing by title and section of the law under which, and the offense for which, such arrest is made, save when caught in the act of misdemeanor or crime. They shall within 24 hours after arrest, exclusive [of] legal holidays, be brought before the nearest modern law court competent to deal with the case for hearing. If there is no competent modern court which can be reached within this space of time any American citizen thus arrested will be brought before the nearest competent modern court with the least possible delay.
Any American citizen arrested or otherwise detained shall be permitted to communicate immediately with the nearest American Consular officer and he shall be afforded all possible facilities to that end. American consular officers or their representatives shall be permitted to visit any arrested American citizen in prison or in the premises in which he may be detained.
American citizens under detention or sentence of imprisonment will only be detained or imprisoned in modern prisons or in other premises suitable for their detention where they may be visited by American consular officers or their representatives as occasion may demand.
It is understood that any American citizen sentenced to imprisonment for a period of not more than one year will be permitted on written application of his own to convert such sentence into a pecuniary fine at the rate of one dollar for every day’s imprisonment.
Immediate release on bail will be granted to any American citizen arrested in every instance except the case of crimes punishable by death or imprisonment for life, the amount of bail being reasonably proportionate to the offense alleged. Such facilities for release on bail will be granted to appellants until the sentence of the appellate court is given. American citizens shall not be subject to imprisonment for debt. If however execution on the debtor’s goods actually in China appears subject to serious dangers by the act of the debtor or if execution cannot be safeguarded by other means he may be detained in the manner provided for such cases under Chinese law.
All trials of cases involving American citizens will be open to the public and all persons interested in the hearing or in the examination of the accused may be present as spectators.
Article 6. Reservation of personal status matters.
American citizens in China will not be amenable to Chinese jurisdiction in all matters of personal status, namely all questions relating to [Page 422] marriage, conjugal rights, divorce, judicial separation, dower, paternity, affiliations, adoption, capacity, majority, guardianship, trusteeship, and interdiction and in all matters relating to succession to personalty whether by will or on intestacy and the distribution and winding up of estates and family law in general.
Article 7. Arbitration.
The Chinese courts will recognize agreements entered into by American citizens between one another and with other foreign nationals and with Chinese citizens for the settlement of civil or commercial controversies by arbitration and will enforce awards made in pursuance thereof unless contrary to public order or good morals.
Article 8. Titles to real property.
The Chinese Government agrees that titles to real property held by American citizens in China shall be regarded as indefeasible and shall remain undisturbed by the provisions of this agreement. All legal Chinese land transfer fees leviable under regular Chinese legislation as provided in article 3 will, where properly payable under such legislation, be paid by American citizens on account of land transactions in the future. But no demands will be made by the Chinese authorities for the payment of such land transfer fees on transfers of land to or from American citizens in the past and titles to land held by American citizens will not be changed [called?] in question on account of non-payment of such transfer fees in the past.
Article 9. Reservation of settlements and concessions.
It is understood that this declaration is not applicable in foreign-controlled settlements and concessions in China where the existing judicial arrangements affecting American citizens shall remain unchanged until modified by mutual agreement between the Governments concerned. It is, furthermore, understood that this agreement is not applicable within a radius of 50 li from the present customshouse at Shanghai.
Article 10. Immunity of American citizens and their property and shipping from [apparent omission] illegal searches, expropriations and remains [requisitions?].
The public buildings and private residences of American citizens in China and their warehouses and business premises and factories together with all their accessories, articles and properties shall be respected and shall not be subjected to any prerequisition search or inspection and the books and correspondence relating to their commercial transactions shall not be seen except as specifically provided for in non-discriminatory legislation legally enacted and duly promulgated. In no event shall premises occupied by American citizens be forcibly entered except upon a warrant formally issued by a modern law court specifically citing by title and section of the law under which action is authorized. American citizens in China will not be subjected directly or indirectly to any form of military service or to any tax or presentation [levy?] imposed as a substitute for military service or to military requisitions or contributions of any kind nor will they be compelled to subscribe directly or indirectly to any public loan or any other form of forced levy.
The property of American citizens in China may not be expropriated or the use of it denied to them even temporarily except for reasons of public interest recognized by law as such and in return for [Page 423] fair compensation to be had in advance. No expropriations, without public notice being previously given.
American commercial vessels in Chinese ports or coastal waters or rivers will not be subject to restraint or to any form of commandeering, requisition, inspection or search nor such vessels be boarded by Chinese police, military or other armed authority unless by agreement with the captain of the vessel except upon a warrant formally issued by a modern law court specifically citing by title and section the law under which action is authorized. American commercial vessels will not be compelled to carry Chinese troops whether armed or unarmed or Chinese military supplies without the permission of the owner expressed through the captain of vessel.
Article 11. American companies, firms, partnerships and corporations incorporated or organized in accordance with American law operating in China shall be entitled to all the rights and privileges enjoyed by American citizens under this agreement including the rights enjoyed in Chinese courts whether as plaintiffs, complainants or defendants. It is understood that such American companies, firms or corporations and their branches, agencies or representatives will not be subject to discriminatory treatment and will only be taxed in proportion to the amount of capital actually employed in China or in respect of the profits and revenues which they have actually earned [in China?].
Article 12. Understanding regarding pending cases.
It is understood that after the transfer of jurisdiction over American citizens in China from the United States to Chinese courts, as provided for in this agreement, suits terminated under the former American juridical system shall not be reopened and that judgments rendered by former United States courts shall be executed; that suits pending in the United States courts at the time of the exchange of ratifications of this agreement shall continue until the execution of judgment in the said courts, the jurisdiction of which will remain in full force for this purpose; and that the Chinese authorities will lend any assistance requested by the American authorities in this connection.
Article 13. Rights of residence and trade.
(It is understood that as from the date of exchange of ratifications of this agreement American citizens will enjoy the right without restriction to reside, trade and own property throughout China).
Article 14. Nondiscriminatory treatment for American citizens.
In all matters for which this agreement provides, American citizens shall enjoy all the rights enjoyed by the nationals of the country most favored in such respects and shall not suffer discriminatory treatment in regard to taxation, judicial, or any other matters concerned, as compared with citizens of China or the nationals of any other country.
Article 15. Existing treaties to remain in force.
Except as modified in this agreement, the existing treaties between the United States and China shall remain in force.
Article 16. Ratification and duration.
Agreement to be ratified, to come into force upon exchange of ratifications and thereupon binding for ten years”.