Memorandum by Mr. Joseph E. Jacobs of the Division of Far Eastern Affairs

The Chinese Minister called at the Department this morning and made to Mr. Hornbeck and Mr. Jacobs observations in explanation and amplification of the Chinese counter proposals as sent by Dr. Wu to Mr. Hornbeck on December 7, 1930, substantially as follows:

In opening his remarks, Dr. Wu stated that the Chinese counter proposals of December 7, 1930, followed more closely the text of [Page 490] certain informal data on the subject handed to him “without commitment” by Mr. Hornbeck early in February, 1930,78 than the text of our draft proposals of October 28, 1930.

With regard to Article I, Dr. Wu stated that, while no reference had been made to Magistrates Courts or Military Courts, the exemption of Americans from such courts was provided for in the Article by the clause “they (Americans) shall be subject only to the jurisdiction of the modern courts of justice.” He stated that the Chinese Government also desired, if possible, to limit to more serious cases the right to request a change of venue to the special chambers mentioned in the Article, thus eliminating what under Chinese law are called “minor cases.” He further stated that the territorial jurisdiction of the modern courts of justice which are to assume jurisdiction over Americans had not been defined because the Chinese Government did not care to limit itself in the treaty in regard to this matter; the Chinese Government might be prepared, however, to make a unilateral declaration on the subject.

The matters having been brought to his attention by Mr. Hornbeck and Mr. Jacobs, Dr. Wu stated that he thought the word “may” in the second line of the second paragraph of Article I should be “shall” and that the word “having” in the ninth line of the second paragraph of Article I should be “have.”

With regard to the employment of legal counsellors, Dr. Wu stated that the Chinese Government desired to have a free hand in their appointment and that it also desired to employ Chinese as well as foreigners in this capacity.

Dr. Wu stated that the Chinese Government was opposed to the provision for evocation and had omitted provision therefor from its counter proposals.

Dr. Wu then referred to a provision in the data handed him by Mr. Hornbeck in February, 1930, which provided that existing arrangements in the Settlements and Concessions were to be continued. He stated that this matter had puzzled his Government since there were a number of practices existing in the Settlements which it desired to change. He mentioned two such practices, namely, the question of the issuance of consular title deeds (Tao Chi) and the question of taxation of Chinese in the Settlements. Dr. Wu did, however, intimate that the Chinese Government might be prepared to continue the present status of the Settlements and Concessions as long as the administrative and municipal control thereof was in the hands of foreigners.

With regard to Article V, Dr. Wu stated that the Chinese Government had in contemplation a new land law and he intimated that, while [Page 491] it was prepared to recognize the rights of Americans in immovable property already legally acquired, some of these holdings might be questioned.

With regard to Article VIII, Dr. Wu stated that, while American citizens were given the most-favored nation treatment, it was also to be noted that citizens of the United States as well as other foreigners in China would be denied the right to invoke certain provisions of Chinese law. In other words, all foreigners were to be on an equal footing among themselves but not on an equal footing with Chinese.

With regard to Article X, Mr. Hornbeck pointed out that it would never be possible for this Government to agree to a provision requiring the ratification within three months of the treaty in which it appeared.

With regard to Annex I, Dr. Wu stated that the three-month period for the winding up of all cases pending in the American courts in China might not be considered rigid. In reply to an inquiry by Mr. Jacobs, Dr. Wu stated that he thought the words “final and definitive,” in the fourth line of Annex I meant final and definitive according to American law.

With regard to Annex II, Dr. Wu pointed out wherein Americans would be exempted from certain provisions of the police offenses code in respect to detention in a first offense.

With regard to Annex V, Dr. Wu stated that if we insisted upon the application of American law in personal status cases, the Chinese Government preferred that the trials in such cases should take place outside of the territorial borders of China.

With regard to Annex VI, Dr. Wu stated that the interpreters referred to therein were to be employed by the court.

With regard to Annex VIII, Dr. Wu stated that the Chinese Government did not want to specify any special treatment for foreign prisoners.

Upon inquiry made by Mr. Hornbeck in regard to the nature of the two additional Articles in the counter proposals handed to the British Minister, Dr. Wu stated that he was not even aware that those counter proposals contained two more Articles than the ones presented to us.

Mr. Hornbeck thereupon stated that Dr. Wu had given us a good deal to think about. Dr. Wu assented.

The conversation turned to the question of “eggs” concerning which Dr. Wu has been conferring with the Department, and shortly ended.

J[oseph] E. J[acobs]
  1. See document of January 23, 1930, p. 363.