693.11245/34
The Chinese Acting Minister for Foreign Affairs (Wang Ching-wei) to the American Minister in China (Johnson)59
Sir: I have the honor to acknowledge the receipt of your formal note of February 10th, concerning the Rules of 1868 which provide for joint investigation in cases of confiscation and fine by the Customs authorities. You stated that you are unable to accept the interpretation of the 1928 Treaty advanced by this Ministry and must again file a protest.
I have the honor to refer to this Ministry’s formal notes dated January 13 and September 26, 1933,60 in which you were informed of the position of the Chinese Government in this regard. I now have the honor again to make clear to you that the Chinese Government considers that the abolition of the Rules of 1868 is the a priori consequence of its interpretation of the Sino-American Treaty of 1928.
The spirit of the Sino-American Treaty of 1928 was mainly to extend to China the right of complete tariff autonomy. Such right of complete autonomy decidedly covers not only the fixing of tariff rates and collection of revenue, but, of course, also includes confiscations and fines which constitute one of administrative rights of the Maritime Customs for the purpose of stopping secret traffic and smuggling. Otherwise, if joint action with foreign countries in cases of confiscation and fine were still necessary, how could it be called complete autonomy?
The term “related matters” mentioned in Article 1 of the said Treaty, as mentioned in your formal note, refers to the condition that each of the High Contracting Parties shall enjoy in the territories of the other treatment in no way discriminatory as compared with the treatment accorded to any other country. The Chinese Government, in regard to prevention of smuggling, fines, confiscation and other matters concerning Customs revenue, has no other obligations but to accord the several Treaty Powers equal treatment. After tariff autonomy became effective the Chinese Government, in dealing with [Page 584] confiscations and fines and particularly in the fixing of tariff rates, has in all cases accorded the several countries equal treatment. Thus China has performed its treaty obligation, and there is really no ground for unfavorable criticism.
Furthermore, your note states: “the Treaty of 1928 cannot be interpreted as implying the relinquishment by the United States of its rights under the treaties and related agreements with respect to jurisdiction over the property of American nationals”.
I have the honor to state that confiscations and fines are administrative rights of the Maritime Customs and have no relation at all to extraterritorial rights. Before the Sino-American Treaty of 1928 was concluded, the Chinese Government itself indeed had long ago had a right to take action in regard to activities of foreign merchants engaged in secret traffic or smuggling. Even in the treaties concluded between China and the several countries, there are provisions explicitly recognizing such right. For example, in Articles 3, 10, 14, 20, and 33 of the Sino-American Treaty of Wang-Hea of 1844,61 Articles 14, 19, 21, and 23 of the Sino-American Treaty of Tientsin of 1858, and Articles 37, 38, 39, 40, 45, 46, 47, 48 and 49 of the Sino-British Treaty of Tientsin of the same year, all clearly provide that the Chinese Government itself has the right to take action in regard to secret traffic or smuggling and any other activities violating the Customs regulations. It is thus clear that at the time when there was no complete autonomy in respect of Customs tariff, the Chinese Government, so far as administrative rights of the Maritime Customs were concerned, already had the right under the treaties to dispose of the property of foreign merchants. Now since complete autonomy has been restored to Chinese Customs tariff, all rules which conflict with the principle of autonomy naturally come under the category of those which of course ought to be abrogated, and certainly need not wait until after the United States has relinquished its rights with respect to jurisdiction over the property of American nationals.
Your note also states: “nor does the Treaty confer on the Maritime Customs Administration any greater authority over American nationals and their property than was exercised by that Administration before the Treaty became effective.”
Since the Chinese Government has now acquired complete tariff autonomy in accordance with the Sino-American Treaty of 1928, it is of course usual in fact and in principle that the administrative right of the Maritime Customs should be greater than it was before this Treaty was concluded, and there is no need to argue about it.
[Page 585]On the basis of the above-mentioned reasons, the Chinese Government is unable to recognize the protest and reservations made by you.
I have the honor to make this reply for your information.
Concurrently Acting Minister for Foreign Affairs of the Republic of China
—Seal of the Ministry of Foreign Affairs—