793.003/611: Telegram
The Minister in China (Johnson) to the Secretary of State
[Paraphrase]
- (1)
- My April 19, 2 p.m., and April 19, 4 p.m. Regarding the amendments and the new drafts which I communicated therein, I have the following comments to make.
- (2)
- Transfer of jurisdiction. In this section, second sentence of paragraph (2), the amendment is self-explanatory and appears to me to improve the text.
- (3)
- Legal counselors. The first amendment is merely an addition of “expropriations” to the list of causes which are subject to the jurisdiction of legal counselors. The second amendment places the phrase “in chambers” after the word “observation[s]”. This was done at the British Foreign Office’s suggestion, in view of the usage of this term in British court practice.
- (4)
- Arrest, imprisonment, detention, bail, etc. All of this is new matter and is predicated, as the Department will note, upon the relinquishment of criminal cases. Please see, in this connection, my March 30, 11 a.m., paragraph (1).3 Lampson has informed me that the British Foreign Secretary has handed to the Chinese Minister in Great Britain an aide-mémoire which outlines the conditions under which the British Government would give up extraterritorial rights. This states virtually that the British Government would be ready to yield jurisdiction in criminal cases if the Chinese Government will concede the reservation of the Shanghai, Tientsin, Hankow, and Canton areas from the jurisdiction of Chinese courts. Lampson felt justified, under these circumstances, in taking up this article with C. T. Wang. The draft referred to London without commitment on Lampson’s part is the result of these discussions. In this draft the 5th paragraph contains new matter in regard to payment of a fine in lieu of imprisonment.
- (5)
- Arbitration. The change in paragraph (1), it will be noted by the Department, makes the agreement apply to arbitration agreements entered into anywhere. While the amendment to paragraph (3) is an improvement, the Department will surely note that as the text of this article stands at present all reference to reciprocal treatment has been dropped. The letter attached in explanation of section 2 of this [Page 801] article specifically states the Chinese law which is excluded from this article’s provisions.
- (6)
- Rights in immovable property. The Department will observe that as it now stands this article retains the paragraphs in regard to the temporary occupation of the property of British subjects if adequately compensated. See in this connection my March 28, 4 p.m., paragraph (9). Lampson tells me that the British Foreign Office is undecided as to this point and is inclined still to believe it should be retained as part of the text. Lampson and I hold the same views as reported in paragraph (9) of my March 28, 4 p.m. A new paragraph extends to this kind of complaint the provisions of articles on Special Chambers and legal counsellors.
- (7)
- Military service, forced loans, etc. The Department will note that the reciprocal provision has been placed at the end of the paragraph.
- (8)
- Companies. To me the new wording of this paragraph seems to be an improvement over the old, especially in regard to the reciprocal provision, which is on a most-favored-nation basis.
- (9)
- Nondiscriminatory treatment. The Department will note this paragraph has been made reciprocal, with reciprocity on a most-favored-nation basis.
- (10)
- Shipping. Until the recent conversations the Chinese have been averse to discussing at all paragraph on shipping. This draft resulted from the last discussion Lampson had and does not represent the British Foreign Office’s views. The text appears acceptable to me, though I am not certain the British Government will accept it.
- (11)
- Lampson informs me that he has agreed tentatively to delete the second sentence of the paragraph on legal counselors (see my March 28, 10 a.m., paragraph 6, and March 28, 4 p.m., paragraph (5)) and to place it in an attached declaration. Deletion of the second paragraph of this declaration is, I am also informed, being considered (see my March 28, 10 a.m., paragraph 7), in which case an alternative assurance would replace it in the form of an agreed minute that one legal counselor at least will be British. The Chinese, I understand, already are preparing regulations to employ legal counselors and in fact have made a list naming the men they intend approaching with an offer of employment as such. Lampson and I have not been able to find out how many legal counselors the Chinese propose to employ, though the British Minister has heard a report of their intention to employ 5. This number appears to us to be inadequate for the 10 Special Chambers in the agreement. However, this is all rumor. There is the question whether or not assurances should be obtained from the Chinese that they will employ British and/or American [Page 802] nationals as legal counselors. In the text as it now stands there is nothing to give any such assurances. The Chinese evidently desire the deletion of the provision which requires the British legal counselor to be present at the trial of cases in which British subjects are involved. In discussing with Lampson the importance of this provision, I pointed out in general that, assuming an American legal counselor were not available at the time a case involving an American should come on for trial, it would be regrettable if the case had to be put off until such a counselor should become available. I expressed the view that it would be better for the case to proceed with the presence of a legal counselor of some other nationality than to have no legal counselor at all or delay.
- (12)
- Lampson discussed the reserved areas with C. T. Wang, but found the latter unwilling to make any concessions or to go beyond what he did in the conversation I reported in my March 30, 11 a.m. The offer (see paragraph 34 of this telegram) was renewed by Dr. Wang, but Lampson said this was unsatisfactory, and he insisted upon the exclusion of all four areas. He gave Wang a copy of the British aide-mémoire, handed to the Chinese Minister in London, to support his position. Lampson is uncertain about the next step. There remains to be mentioned the question of the term of the agreement.
Johnson