793.003/361
The Chief of the Division of Far Eastern Affairs (Hornbeck) to the British Counselor of Embassy (Campbell)
Dear Mr. Campbell: Referring further to your letter of May 16 and enclosure suggesting certain amendments to the State Department’s revision of draft plans earlier considered for the gradual relinquishment of extraterritoriality, the receipt of which was acknowledged in my letter of May 24,40 I desire to make the following comments:
The enclosure with your letter contains suggestions of the British Foreign Office for certain amendments and you state that the Foreign Office would be glad to learn whether these are acceptable to the State Department. In reply, I may say that the Department is favorably disposed toward such amendments with the exception of the suggested amplification of Article 9 to provide for the exemption from the application of any extraterritoriality agreement of areas within fifty li from the present customs houses at Tientsin, Hankow and Canton. The suggestion for this amendment, as an amendment suggested by the British Foreign Office, was transmitted to the Department in a telegram sent by the American Minister on May 3 from Nanking. However, by reference to the first sentence of the third paragraph of your letter of May 16, it appears that the Foreign Office and Sir Miles Lampson now look upon such a proposal as one among the possible proposals which “may be somewhat too unpalatable to the Chinese.” The Department is of the same view and is inclined to believe that Article 9 as drafted in the Department’s revised draft transmitted to you under cover of my letter of April 17 is probably as satisfactory a proposal, in reference to Shanghai and foreign administered areas, as might be presented to the Chinese with the hope that it would be accepted by them. The American Government would not be able to make proposals with regard to Tientsin, Hankow and Canton; but the Department realizes that the British Government might with warrant wish to make some proposals with regard [Page 449] to areas at those ports, especially Tientsin, similar to the proposal which the American Government favors making in reference to Shanghai.
The verbal changes suggested in the two pages of memoranda enclosed with your letter seem acceptable to the Department, and changes in accordance therewith have been made in the Department’s “working copy” of the draft.
In the second sentence of the third paragraph of your letter under acknowledgment, you request the “views of the Department on the proposal put forward by Sir M. Lampson to insert in Article 1 a provision for the future transfer by agreement of criminal jurisdiction.” It is assumed that this refers to a proposal which has been made in correspondence between Sir M. Lampson and the Foreign Office. The Department has not had from any source an indication of the suggested terms of such a provision. I should be pleased to have, if possible, information indicating the possible text of such a proposal.
With regard to the penultimate paragraph of the revised draft of Article 1, which provides that the spoken and written languages used in the special courts for the trial of cases involving American citizens shall be Chinese and English, the Department is in full agreement with the view of the Foreign Office that this stipulation should be deleted and in the “working copy” of the draft now under consideration by the Department the paragraph in question has been deleted.
The final paragraph of your letter refers to the matter of the relinquishment of criminal jurisdiction in exchange for provisions for evocation and for foreign co-judges. It is noted that, whereas in the earlier conversations between Sir M. Lampson and Dr. C. T. Wang (as set forth in your Embassy’s aide-mémoire of March 4) the British Minister maintained that the relinquishment of criminal jurisdiction was out of the question, the British Government is inclined to share the view now held by Sir M. Lampson that criminal jurisdiction should be relinquished in exchange for provisions for evocation and for foreign co-judges to function in cases involving British subjects. The Department’s view of the general situation and problem is now substantially as it was as expressed to you in my letter of April 17. It is remembered, however, that the British Minister has informed the American Minister that Wang Chung-hui has stated positively that he will not agree to the appointment of co-judges; it is understood that Sir M. Lampson has quoted Wang as saying “any other guarantee but that”; and, the apparent attitude of Dr. C. T. Wang in regard to this same proposal, as reported by Sir M. Lampson, was mentioned in my letter of April 17.
[Page 450]In the concluding sentences of your letter you state that the British Government is prepared to take “at any rate in the first instance, the same stand as the United States Government” in asking for criminal jurisdiction, evocation and co-judges, and that the Foreign Office has asked you to call the attention of the State Department to the danger that in the attempt to keep in line with each other while differing as to the relative desirability of retention of criminal jurisdiction and of obtaining a provision for co-judges, the British and the American Governments stand a chance of losing both. I can assure you that the Department has not failed to apprehend that possibility. It will be remembered that, with reference to the draft now under consideration, as with reference to all previous drafts, the Department has indicated that what it has put forward is tentative; also, that in conversations and in written communications I have informed you, from the outset, of the Department’s doubt whether it can be considered likely that the Chinese can be persuaded to assent to the principle of evocation or to provision for co-judges. Confronted as we are with the difference in emphasis between the British and the American Governments, and with indications, such as have been referred to above, of substantial objection on the part of the Chinese to the idea of co-judges, I do not see what better we can do than include in our drafts all three of these measures, hope to propose all three to the Chinese, and thereafter, when the Chinese reaction shall have given us more light as to the possibilities, shape our courses accordingly.
I am sure that you will realize, both from what has been said above and by reference to previous communications, that, among the three proposals, we here attach most importance, value and likelihood of acceptance by the Chinese being considered, to the proposal for retention of criminal jurisdiction.
Note is made of your reference to the desire of the Foreign Office for information in regard to the procedure which the Department proposes to adopt when the final version of the draft is ready. The best I can do at this time by way of reply is to say that the Department is giving consideration to that question.
There are enclosed for your information, a copy of the draft as revised to date,41 together with an excerpt from the Department’s despatch transmitting copy of the revised draft to the Legation.
Yours sincerely,