The Department of State to the British Embassy16

The Department of State has received from the British Ambassador in Washington an informal memorandum dated December 23, 1931,17 giving the gist of instructions sent by his Government to the British Minister to China in regard to extraterritoriality and making inquiry (1) in regard to the views of the American Government as to the danger that extraterritoriality may be disregarded in China after January 1, 1932, and (2) whether the American Government would be prepared to adopt an attitude similar to that of the British Government in resisting an attempted enforcement of the Nanking Government’s Mandate of May 4, 1931, in regard to the exercise of jurisdiction over foreigners in China on and after January 1, 1932.

The Department notes that the British Government is not prepared at the present time to complete its negotiations with China in regard to extraterritoriality; also that the British Government is prepared, by such measures as are open to them, to resist attempt, if and when made, by the Chinese authorities to enforce the Mandate of May 4, 1931.

The views of the Department with regard to the questions referred to above are given below.

It is doubted whether there will exist in China, by January 1, 1932, or for some time thereafter, either at Nanking or elsewhere in China, a central Government sufficiently well established to deal effectively with the question of extraterritoriality either by negotiation or by unilateral action along the lines of the enforcement of the Mandate of May 4, 1931. In view of the gravity of the Sino-Japanese situation, any central Government that may exist in China will in probability follow the course of least resistance—which will be to do nothing fundamental about extraterritoriality for the time being.

In view, however, of the fact that the Nanking Government issued instructions some months ago to some, if not all, of the provincial governments of China, in regard to the taking over of jurisdiction over foreigners in China on and after January 1, 1932, it is not unlikely that a case may arise somewhere in China involving an extraterritorial [Page 928] foreigner, either as a defendant in a civil case or as accused in a criminal case, in which the local authorities, acting under the instructions referred to, may attempt to take jurisdiction. It is believed, therefore, that if and when the question of the enforcement of the Mandate of May 4, 1931 does arise, it will arise in that manner.

If this estimate of the situation is correct, the central Chinese Government existing at the time will be confronted with a situation which will require a decision on its part as to whether it will attempt to support the local authorities or will instruct them to hand the foreigner involved over to his own authorities. On the other hand, the extraterritorial power whose national is involved (and probably all extraterritorial powers) will be faced with a situation which will require a decision as to whether this assumption of jurisdiction by the local Chinese authorities is to be resisted and how.

With regard to the attitude which the central Government of China may take under such circumstances, this will depend largely upon the strength of that Government and upon the difficulties with which it may be confronted at the time. It is impossible, therefore, at this time to predict what its attitude will be.

With regard to the attitude which the American Government would take in the event that one of its nationals happens to be the first involved in a case arising under the Mandate of May 4, 1931, it is believed that the American Government would find it necessary to lodge a vigorous protest both with the local authorities and with the national Government of China against this violation of the treaty rights of American nationals in China. If such protest should not result in the handing over of the American national to the American authorities, the question of what further steps are to be taken to enforce American treaty rights will necessarily depend upon the situation existing at the time and, to a certain extent, upon the attitude of the other principally interested extraterritorial powers, as the Department appreciates the importance of similarity of attitude toward this subject on the part of such powers.

  1. Handed to the British Ambassador on December 29, 1931.
  2. Not printed.