793.003/550: Telegram
The Secretary of State to the Consul General at Nanking (Peck)
12. For Minister Johnson: Department’s 10, March 11, 6 p.m.65
(1) On March 7 the British Ambassador handed the Department a third-person note together with a memorandum which contained the “substance of instructions” sent to the British Minister in China.
The British Government in the note expresses its “trust that the policy laid down in these instructions will meet with the agreement of the United States Government” and its hope that you will be instructed in the same sense by this Government. It is indicated by the memorandum’s contents that the British Government is ready ultimately to concede practically everything save jurisdiction in the Shanghai International Settlement, on condition that the Chinese give their assent to certain legal safeguards.
(2) It is assumed by the Department that Lampson either will have shown you a text of his instructions or will have acquainted you with their tenor. For this reason the Department is not quoting the text or summarizing the contents of the memorandum in this telegram.
(3) The British memorandum is being carefully studied by the Department. While the Department is not in entire accord with the principles therein laid down or the procedure therein outlined, it would be willing to give up both evocation and co-judges and to yield the rights, first, of civil and, second, of criminal jurisdiction, on the condition that the Chinese are ready at the same time to agree (a) to satisfactory formulas providing specified legal safeguards as to functions and powers of legal advisers, taxation, rights in immovable property, and criminal procedure as to arrest, imprisonment, bail, and trial, and (b) to exemption of certain areas at the China treaty ports of Shanghai, Tientsin, Canton, and Hankow (Shanghai being regarded as the most important). It is the view of the Department that any definite commitments in principle on our part to specified concessions would be highly dangerous and should be avoided unless the Chinese on their part reciprocally and simultaneously make definite [Page 756] commitments to specified arrangements. For example, take the history of the resolution which was adopted at the Peking Tariff Conference on November 19, 1926 [1925].67 Accordingly, it is felt by the Department that discussion of any concessions which the Chinese propose be made by this Government beyond those proposed in the hitherto prepared American drafts, should be conducted on a “no commitment” and conditional basis and that, whenever there is mention of American concession or concessions, it should be indicated that these may be made only in return for Chinese concessions regarding provisions for which this Government is asking.
In the light of your recent telegrams and of other information from China and of recent conversations with the Chinese Minister here, the Department now doubts that either C. T. Wang or C. C. Wu has discretion relating to the points of co-judges, criminal jurisdiction, and reserved areas, and the Department inclines to the belief that arriving at a noncommitment accord with C. T. Wang would be the procedure most likely to dissolve what amounts to a deadlock. Such accord would comprehend the maximum concessions which we would be prepared to make, along with the concessions acceptable from the Chinese in return, and this accord could be submitted to the ultimate Chinese authorities for the purpose of effecting a reconsideration of the restrictions which (apparently) govern the Ministry for Foreign Affairs.
The Department is not persuaded that the necessity to surrender everything except jurisdiction at Shanghai should be considered at this time as a probable eventuality and believes that, while thinking about what may be the maximum American concessions, there should be kept in mind provisions of such phraseology and scope as are calculated to safeguard general foreign interests, thereby enlisting the support and approval of other powers, particularly of France and Japan. Thus, thought should be given, for instance, to the whole port of Shanghai, taking up the problem of “greater Shanghai” instead of merely the International Settlement.
(4) It is noted by the Department that in the memorandum of the British Government the latter attaches the greatest importance to a variety of specified points. While concurring, the Department notes no inclusion among these points of legal guarantees respecting rights acquired in immovable property, and these should also be made the subject of legal safeguards.
(5) Considering the above and likewise the restrictions apparently placed upon C. C. Wu here by the Chinese Government with reference to what the Minister may discuss, you will be guided by the following [Page 757] course of action which the Department has decided upon:
In reply to Wu’s statement of February 20, the Department on March 11 communicated to him a statement the text of which was telegraphed you in Department’s 10, March 11, 6 p.m. From the above you will note that the Department expects you to begin discussions with C. T. Wang in a further effort to bring about a modification of the position taken by him and his Government as to co-judges, criminal jurisdiction, and excluded areas.
(6) A careful study of the Department’s instruction No. 374, January 19,68 will be of assistance to you. The Department has, after further study and in deference to the British Foreign Office views, revised the draft therein as follows: (a) Article 2 of the January 19 draft has been deleted, and article 2 of the October 28 proposals has been restored; (b) article 6 of the January 19 draft has been deleted and article 6 of the October 28 proposals restored; (c) the text of article 9 has been altered to read:69 “The surrender, as provided in this treaty, of the jurisdiction of the courts of the United States of America in China shall not apply within a radius of 10 miles from the present Custom Houses in the treaty ports of Shanghai, Tientsin, Hankow and Canton.”; (d) a text for article 13 has been drafted to read:69 “Whenever and wherever the United States of America shall have completely surrendered extraterritorial jurisdiction over its nationals in China, the nationals of the United States of America shall then, if they do not already possess such rights under existing treaties, be entitled to reside, travel, trade and own property.”
You may find this draft, thus amended, helpful, though it need not be used as a proposal.
Should the principle of legal advisers acting as co-judges be given up, the text of article 2 in the January 19 draft should be found helpful. As to article 6 relating to personal status matters, if the new Chinese Civil Code regarding such matters can be shown to be substantially similar to those found in western European national civil codes, and if the Chinese Government would undertake in personal status cases involving Americans to have these provisions always applied, the Department would be willing to concede complete jurisdiction in these matters to the Chinese courts. The Department would also expect, in such an event, however, that the Chinese Government would grant to the American consular officers the same rights regarding the administration of estates as are accorded usually in most countries to consular officers.
(7) The decision whether you are to proceed alone or simultaneously or jointly with Sir Miles Lampson is left to your discretion. [Page 758] You will confer and cooperate with him, on the basis of association, not of alliance. In your discretion you may take with reference to proposed concessions such initial and intermediary positions as you may find advisable, but you will stop short of any surrender respecting legal safeguards as above outlined or the principle of excluded areas.
(8) At least five advantages are believed to be offered by this course of action: First, this course avoids the hazard inherent in an attempt by us to effect a definite transfer of negotiations during which we might be informed by the Chinese of the deadlock of our negotiations; second, this course enables you, without full powers being issued, to enter into Nanking discussions quasi negotiation; third, this course enables you to collaborate closely with Lampson, who seems at this stage to be confronted with the same problem facing us, namely, to persuade the Chinese to relax with reference to their extreme demands; fourth, this course enables this Government to continue to act in cooperation with, though independently of, the British; and, fifth, this course leaves this Government, in case the Nanking efforts fail, in a position still to resume the negotiations in Washington.
(9) You should discuss with Lampson this plan of action in as much detail as you may choose and should give C. T. Wang a copy of the statement handed on March 11 to C. C. Wu here, thereupon proceeding as outlined above.
The Department should be kept fully informed.
- Not printed; it quoted statement handed to Chinese Minister on March 11, p. 751, and concluded as follows: “Take no action until receipt of your instructions which will follow.” (793.003/551)↩
- For text of resolution, see telegram of November 19, 1925, from the American delegation at Peking, Foreign Relations, 1925, vol. i, p. 881.↩
- Not printed.↩
- Quotation not paraphrased.↩
- Quotation not paraphrased.↩