793.003/475: Telegram
The Minister in China (Johnson) to the Secretary of State
1050. Following from the Minister at Nanking:
“December 15, noon. Department’s 428, December 11, 5 p.m. Article 1 of counterproposals handed to British Minister reads as follows:
‘Beginning from January 1, 1930, British subjects in China shall be subject to the duly promulgated laws, ordinances and regulations in China and, other than as modified by the provisions of the present treaty and the annex thereto, they shall be subject to the jurisdiction of the modern Chinese law courts, with rights of appeal and in all other respects in accordance with law and established procedure.
Any of the modern courts already established or to be established in future in China may exercise jurisdiction in any civil or criminal cases where a British subject is defendant or accused.
In the district courts in Harbin, Shenyang, Tientsin, Shanghai, Hankow, Chunking, Canton and Kunming (Yunnanfu), and in the provincial high courts having direct appellate jurisdiction over such district courts, special chambers shall be established for dealing with cases involving British subjects as defendants or accused, which fall within the ordinary jurisdiction of the courts to which such special chambers are attached.
Any of those cases involving British subjects as defendants or accused, which originate within the ordinary jurisdiction of the courts other than those mentioned in the preceding paragraph, may, upon the written request of the defendant or accused made before trial begins, be transferred for adjudication, after the necessary preliminary steps, if any, having been taken, to the special chamber nearest to the court within whose jurisdiction the case originates.’
First four sentences of article 2 of British draft ending ‘conditions necessary’ are practically identical with the same four sentences of article 3 of American draft. British article 2 concludes with ‘the legal counselors will be authorized to receive observations regarding the administration of justice in civil or criminal matters with a view to bringing such observations to the notice of the Minister of Justice. Similarly the legal counselors will be authorized to receive any observations regarding discontinuing visits, requisitions or arrests.’
[Page 493]Article 3 of British counterproposals identical with article 4 of American.
Article 4 of British counterproposals reads as follows: ‘British subjects in China shall be liable for the payment of such nondiscriminatory taxes or imposts as may be prescribed in the laws, ordinances and regulations of the central, provincial and municipal governments of China.’
Article 5 of British:
‘Except in cases of flagrante delicto, British subjects in China shall not be arrested, detained or imprisoned without an order emanating from the Chinese judicial authorities.
A British [subject?] arrested in flagrante delicto for an act which is punishable under the criminal code or other criminal laws shall, within 24 hours after arrest, exclusive of holidays, be brought to the competent Chinese court for appropriate action.’
Article 6 of British counterproposals reads as follows: ‘All rights in immovable property legally acquired and held by British subjects in China shall be recognized as valid in accordance with Chinese law and shall remain under the treaty subject to the exercise of the rights of eminent domain by the Chinese Government.’
Article 7 of the British counterproposals is practically identical with Article 6 of the American.
Article 8 of the British counterproposals reads as follows: ‘British subjects in China shall not be subjected to any form of military service or to any tax or levy imposed as a substitute for military service or to military requisitions or contributions of any kind, nor shall they be compelled to subscribe to any public loan or other form of forced levies, provided that Chinese citizens in British territories shall enjoy similar exemptions.’
Article 9 of British counterproposals reads as follows: ‘Upon application being made by the interested party or parties, the Chinese courts will recognize agreements entered into by British subjects between one another or with other foreign nationals or with Chinese citizens for the settlement of legal or commercial controversies by arbitration and will enforce awards made in pursuance thereof unless, in the opinion of the competent court, the award is contrary to public order or government morals or is vitiated on other grounds recognized by the general principles of law.’
Article 10 of British counterproposals is identical with article 14 [8?] of the American.
Article 11 of British counterproposals is identical with article 9 of the American.
Article 12 of the British counterproposals is the same as article 10 of American except that provision for term of five years is not the same.
First sentence of section 1 of annex of British counterproposals reads: ‘All cases which have been finally and definitely settled in the consular or other courts in China before the coming into force of this treaty shall not be reopened, and all final judgments or decisions rendered in such cases shall be executed by the Chinese courts upon the request of the interested party or parties, unless they are considered detrimental to the sovereignty of China.’ The rest of this section is the same as the American.
[Page 494]Section 2 of annex of British counterproposals reads: ‘The chief judge of any of the special chambers provided in article 1 of this treaty 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 thorough training and practical experience and with a broad knowledge of the general concepts of modern jurisprudence.’
Section 3 of annex of British counterproposals is the same as section 2 of the American, while sections 4, 5, 6 and 7 are the same as the corresponding sections in the annex to the American counterproposals.”
- Telegram in eight sections.↩