793.003/503a: Telegram

The Secretary of State to the Ambassador in Great Britain (Dawes)15

16. Department’s No. 334, December 31, 1 p.m.,16 last paragraph, and your No. 3, January 2, 6 p.m.

Department has prepared a new set of proposals, a copy of which is being mailed to you,17 in regard to which the Department desires that you inform the British Foreign Office.
For convenience of reference, the numbering of articles is being retained as in the draft of October 28.18
The three principal changes are the deletion completely from draft of October 28 of the provisions of Article 4, for evocation, and the provisions of Article 13, for the opening of all of China to foreign residence and trade; and a complete revision of Article 9 in regard to the jurisdiction to be retained by the United States.
Other changes as compared with the draft of October 28 have been made, in order to define more clearly the safeguards which we are seeking. They are substantially as follows:

Preamble: First paragraph now provides for publication and communication of Chinese laws; second paragraph of old draft, which provided for application of Chinese law in American courts, has been deleted, in view of the proposed limitation of jurisdiction of those courts; and third paragraph now merely provides for coming into effect of new treaty upon exchange of ratifications.

  • 1st Article: The jurisdiction of the Chinese police courts is enlarged to include cases involving fines not exceeding $15; also some changes in phraseology.
  • 2d Article: Nomination and selection of legal advisers is left to the Chinese Government without reference to the Hague Court; also some changes in phraseology.
  • 3d Article: All clauses relating to taxation and expropriation of property are now included in this article. Provision has been added for enforcing fiscal legislation against American nationals by instituting actions in the competent courts only.
  • 4th Article: Blank.
  • 5th Article: Remains the same in substance but with changes in phraseology.
  • 6th Article: This has been revised to permit jurisdiction of the Chinese courts, applying as far as possible American law, in those cases in which persons subject to Chinese jurisdiction are directly interested.
  • 7th and 8th Articles: Remain in substance the same.
  • 9th Article: Now reads: “The United States of America shall no longer exercise civil jurisdiction over its nationals in China except within a radius of 10 miles from the present Custom Houses in the treaty ports of Shanghai, Tientsin, Hankow, Canton and Harbin. The judicial and administrative jurisdiction which the United States of America now exercises over its nationals in China shall continue to be exercised by the United States of America in other than civil matters but subject to the provisions with regard to minor offenses specified in Article 1 of this treaty.”
  • 10th Article: Remains the same except that provision in regard to expropriation of property has been transferred to 3d Article.
  • 11th Article: Remains in substance the same.
  • 12th Article: Contains a new provision to prevent the bringing of suits in regard to acts which shall have taken place prior to the contemplated date on which the Chinese courts shall assume jurisdiction over American nationals for which acts at the time of commission they were not liable according to the laws of the United States but for which they might be liable according to Chinese law.
  • 13th Article: Blank.
  • 14th to 17th Articles, inclusive: Remain in substance the same.
With regard to the view of the China Association in reference to civil cases, as reported in the third paragraph of your telegram under reference, Department believes that the retention of civil jurisdiction in the areas named in Article 9 of our new draft will give ample safeguard in that connection. The statement which you quote indicates that 60 per cent of extraterritorial cases arise in Shanghai alone.
Department believes that it will be advantageous if American and British Governments both submit, but separately, at an early date, new sets of proposals on the lines of our new draft under reference. If the Chinese Government should show inclination to negotiate treaties on the basis of these similar but separate proposals, negotiations might proceed with reasonable chance of success. If they decline, a possible alternative course might be, thereafter, to [Page 721] communicate, jointly or separately, statements of the maximum concessions which it is felt can be made. Ultimately, if the Chinese Government should declare the indicated maximum concessions unacceptable, a situation would be faced which could be dealt with only according to the circumstances then prevailing, since action would necessarily have to depend to a large extent on position taken by and overt acts of Chinese authorities.
Department requests a full and frank expression of the views of the Foreign Office, and would hope that we may be in position within a few days to submit new proposals, substantially as above outlined, to the Chinese Minister here and to continue our negotiations.
You will observe that in the draft under reference we are giving support to the British effort to preserve extraterritorial rights in treaty ports named; also that we still present the ideas both of retaining criminal jurisdiction and appointing legal advisers. You should inquire whether, as between criminal jurisdiction and legal advisers as per this draft, the Foreign Office wishes to make any new comments in regard to relative importance.
  1. Repeated (beginning with par. No. 1) to the Minister in China in telegram No. 20, January 20, 1931, 11 a.m.
  2. Foreign Relations, 1930, vol. ii, p. 504.
  3. Instruction No. 640, January 20, 1931; not printed.
  4. Foreign Relations, 1930, vol. ii, p. 472.