793.003/361
The Secretary of State to the Minister in China (Johnson)
Sir: Referring to the Department’s instruction No. 96 of April 28, 1930, and to subsequent telegraphic exchanges between the Department and the Legation concerning the revision of the draft prepared by you and the British Minister in reference to a plan for the gradual relinquishment of extraterritorial jurisdiction in China, there are enclosed for your information, copies, in duplicate, of the draft as revised to June 4, 1930.35 This draft is based on the draft of April 9,36 a copy of which was transmitted to you under cover of the Department’s instruction of April 28, and includes a number of amendments based upon the suggestions made in your telegram No. 304 of May 3, 2 p.m., as well as certain changes suggested by the British Government in a letter addressed to the Department by Mr. Campbell of the British Embassy under date of May 16. Copies of this letter and its enclosure are enclosed,37 together with a copy of the Department’s reply of today’s date.38
A comparison of the new draft with the draft of April 9 will show deletions from the earlier draft as follows:
- 1.
- The penultimate paragraph of Article 1 which provided that the spoken and written languages to be used in the special courts for the trial of American citizens should be both English and Chinese. The Department agreed with your view and that of the British Minister as expressed in section “e” of your telegram No. 304, May 3, 2 p.m., and the deletion has been made accordingly.
- 2.
- Certain words of the first sentence of the third paragraph of Article 2 as follows: “which to this end shall be both in English and Chinese”. These words referred to the files of the proceedings of the special courts and their deletion was made necessary by the deletion of the penultimate paragraph of Article 1 referred to above.
- 3.
- The second to sixth paragraphs, inclusive, of Article 5 in the April 9 draft, which referred to the arrest, detention and trial of American citizens. The provisions in these deleted paragraphs were included in the earlier draft with a view to safeguarding American citizens in those comparatively rare cases in which purely temporary detention in civil cases might appear warranted as necessary to prevent the removal of bank deposits, merchandise, et cetera, in litigation. The Department after further consideration decided that the adoption of these provisions would in all probability be followed by abuses in application, and the paragraphs in question have accordingly been [Page 447] deleted. In this connection you are referred to the notification contained in the Department’s telegram No. 164 of May 3, 3 p.m., to the Legation.39
Among the additions made to the April 9 draft, the following are brought particularly to your attention:
- 1.
- The addition to the third paragraph of the preamble of a
stipulation in regard to the time when the agreement may be
ratified as follows:
“and when the National Government shall have demonstrated its ability to give effect throughout China to the terms of this agreement.”
- 2.
- The addition to Article 16 in reference to ratification and
duration of the proposed agreement of a provision in regard to
future consideration of the matter of the relinquishment of
criminal jurisdiction as follows:
“After a period of not less than five years from the date of ratification of this agreement, in which period the workings of the special courts trying civil cases involving American citizens have been carefully observed, especially in reference to the demonstrated freedom of the courts from administrative interference by the military and/or other non-judicial authorities, the matter of the extension of Chinese jurisdiction over American citizens in other than civil cases shall receive further consideration, the action to be taken in this respect to be determined in the light of experience of the actual working out of the present provisions regarding civil cases.”
While this paragraph might properly constitute a separate article in the draft, it is believed that its inclusion under the heading which you have suggested for the final paragraph will render somewhat less conspicuous this provision which, dealing as it does with one of the chief points at issue, will in all probability be strongly opposed by the Chinese.
Throughout the present draft, the term “national of the United States of America” has been substituted for the term “American citizen” which has been used in previous drafts when referring to nationals of the United States.
The several amendments of the April 9 draft made in response to your telegram No. 304 of May 3, 2 p.m., and/or to the British Embassy’s letter of May 16 have not been specifically referred to in this instruction but, for your convenience in reference, all alterations made in the draft of April 9 have been indicated in the enclosed draft by underscoring in red ink.
Copies of the revised draft are being supplied to the American Ambassador in London and to the British Ambassador here for their information. [Page 448] An extra copy of the draft is enclosed for transmittal at your discretion to your British colleague.
The Department invites any comments and suggestions which at this stage you may feel moved to make.
I am [etc.]
- Not printed; for final text of agreement handed to the Chinese Minister October 28, see p. 472. Changes from the June 4th draft are noted in telegram No. 375, October 29, to the Minister in China, p. 480.↩
- Ante, p. 426.↩
- Supra.↩
- Dated June 10, 1930, infra.↩
- Not printed; see telegram No. 113, May 3, to the Ambassador in Great Britain, p. 439.↩