793.003/758
Memorandum by Mr. Joseph E. Jacobs of the Division of Far Eastern Affairs
In view of the comments contained in Mr. Ward’s84 memorandum of July 3, 1931,85 on the draft of the Treaty between China and the United States in regard to extraterritoriality prepared by Mr. Weigh, Third Secretary of the Chinese Legation, and Mr. Jacobs of the Far Eastern Division of the Department, of June 27, 1931, revised as of July 2, 1931, Mr. Weigh and Mr. Jacobs met again on the morning of July 7, 1931, to make some changes in their draft. Arranged in the order in which Mr. Ward’s comments appear in his memorandum referred to, these changes are as follows:
(1) Preamble: Mr. Ward suggested the substitution of the words “providing for” for “effecting”. Mr. Jacobs and Mr. Weigh decided to re-draft entirely the clause in which the word “effecting” appears. The clause in question now reads “… have resolved to conclude a Treaty for the purpose of readjusting matters relating to the jurisdiction in China over nationals of the United States of America, …” In discussing this re-draft with Mr. Ward he informed Mr. Jacobs that he preferred this re-draft to his suggestion.
(2) Article I: Transfer of Jurisdiction: Mr. Ward suggested that the expression “nationals of the United States shall in China” be [Page 889] changed to read “nationals of the United States in China shall”. After discussing this suggestion, Mr. Jacobs and Mr. Weigh decided to leave the draft unchanged, that is, as first quoted. Mr. Ward stated to Mr. Jacobs orally that he had no objections to this expression remaining as it stands in the draft of June 27.
(3) Article V: Arrest, Imprisonment, Detention and Bail: Mr. Ward suggested a revision of the fifth paragraph of this Article in regard to bail. Mr. Weigh and Mr. Jacobs finally agreed upon a draft of this paragraph which is a rearrangement of the draft suggested by Mr. Ward as follows:
“Unless the court has reasonable and good grounds to believe that nationals of the United States of America who may be arrested or detained will flee from justice if application for bail be granted, such nationals shall be granted immediate release on bail upon application therefor except when such nationals have been duly charged according to law with the commission of a crime or crimes punishable by death or imprisonment for life in which cases bail may be granted or denied in the discretion of the court. The amount of bail shall be reasonably proportionate to the offense alleged. Such facilities for release on bail shall be granted to appellants until the sentence of the final Appellate Court is given.”
(4) Article XII: Companies: Mr. Ward suggested that the word “trade” be used instead of the word “business”. Mr. Weigh and Mr. Jacobs made this change in their draft.
(5) Article XVIII: Non-Discriminatory Treatment: Mr. Ward suggested a revision of the last paragraph of this Article as follows:
“Reciprocally, in all matters for which the present Treaty provides, nationals of China shall be accorded in the United States of America or in its territorial possessions subject to the provision of applicable laws, treatment in no way discriminatory as compared with the treatment accorded to nationals of any other country.”
Mr. Weigh in discussing the above again stated, as he did on July 2, 1931 in conversation with Mr. Jacobs, that his Government wanted complete non-discriminatory treatment for Chinese in the United States. He added that he was not in a position to accept anything less and that he would prefer to leave our draft of Article XVIII as it originally stood with only the first paragraph in regard to nondiscriminatory treatment of American nationals in China. It was agreed, therefore, to leave their draft of Article XVIII as it originally stood with the one paragraph referred to. It is of interest to note in this connection that the provision of the Sino-British draft in regard to non-discriminatory treatment for Chinese is applicable to the United Kingdom only and not to the Dominions.
(6) Exchange of Notes in Regard to Immovable Property: Mr. Ward suggested that the provisions of this note be incorporated in [Page 890] Article VIII of the Treaty which relates to rights in immovable property. As the point raised by Mr. Ward has already been discussed and as the British negotiators have agreed to the present arrangement, Mr. Weigh and Mr. Jacobs decided to allow this provision to remain in the exchange of notes. As the exchange of notes is to be published simultaneously with the Treaty, it is believed that our rights will be safeguarded.
(7) Exchange of Notes in Regard to Personal Status Matters: Mr. Ward called attention to the fact that the reference to Article XV in this note should be to Article XIV. This was a typographical error and has been corrected.
Mr. Ward also suggested that the American negotiators might consider the insertion in the exchange of notes of a provision that American products in China shall be subject to non-discriminatory treatment. As this was entirely new matter, Mr. Weigh did not want to attempt drafting anything in regard to it. His position was the same as that which he took in regard to Mr. Jacob’s request that a provision be made in an exchange of notes in regard to the mutual protection of trademarks, copyrights and patents in China and in the United States, namely, that the matter should be discussed at Nanking with the Minister for Foreign Affairs.
While going over their draft of June 27, 1931, Mr. Weigh and Mr. Jacobs made a few changes in punctuation and several minor changes in phraseology. The entire draft as revised has, therefore, been retyped as of July 14, 1931.