893.05/381: Telegram

The Minister in China (Johnson) to the Secretary of State

450. Reference Shanghai Senior Consular circular number 213–L–1 June 2, 1934, and Legation’s despatch number 2982 of September 13th now en route to Department17 concerning Chinese courts in International Settlement at Shanghai. The Legation’s despatch encloses translations of individual formal notes addressed by the Foreign Office on August 18th and 29th to the Legations of the several powers signatory to the Shanghai court agreement18 protesting action of the Municipal Council in returning to the special District Court certain summonses issued by that court or by the procurator against Chinese detectives of the International Settlement police on complaints charging them with false accusations, et cetera, and in one case of bodily harm as a result of third-degree police measures. Foreign Office note of August 18th alleged that the Police Department intercepted the summonses and that the Council returned them to the court without any explanation. Chinese court and Foreign Office on basis of article 6 of court agreement protest this action and insist the summonses be served by judicial police or the process servers. Foreign Office note of August 29th states that on August 17th and 22nd the Police Department of the Council addressed communications to officers of the judicial police of the court stating that in view of the fact that there was no preliminary inquiry prior to the issuance of the summonses and as the question of private criminal prosecutions against members of the Municipal Police was under discussion by the consular authorities, the police could not permit the accused detectives to attend the Chinese court in response to the summonses. The Foreign Office insists that Municipal Council has no right to question issuance of summonses whether or not there has been preliminary inquiry and that criminal prosecution against members of International Settlement police in no way differs from other private criminal prosecution.

2. At special consular body meeting on September 12th, Senior Consul Cunningham pointed out desirability of Shanghai Municipal Council informing District Court of legal basis for Council’s position in the matter.

3. On September 19th, the secretary of the Council addressed the president of the District Court referring to the failure of conversations to reconcile the differences of opinion and setting out the principles [Page 611] upon which the Council bases its attitude in the matter. He pointed out that in the last few months a serious situation has arisen from the issue by the court of summonses without prior investigation against members of the police alleged to have committed offense in the course of arrest and trial of persons accused of serious crime and that the charges have generally been brought at the instance of persons accused and their associates on whose evidence in several cases police officers have been convicted in the court without being allowed to cross-examine the witnesses against them, to bring witnesses in their defense or to obtain independent testimony. Letter further pointed out that the court has held that members of Municipal Police are not public officers and has thus deprived them of the protection provided by article 26 of Land Regulations and by article 17 and 35 of Chinese Criminal Law. The letter contends that article 15 [24?] of Land Regulations authorizes the establishment of a police force and that under article 26 the members of that police force as agents and officials of the Council were granted immunity from personal action in respect of acts done in the execution of their duty under the Land Regulations. The letter of the Council then states as follows:

“The Council as a corporate body can act only through its executive officers or agents and their acts, whatever their nationality may be, are specifically brought within the sole jurisdiction of the Court of Consuls and no action can therefore be brought against any officer of the Council in his personal capacity until it has been decided that he was not acting under the direction of the Council and that the act complained [of] was not done bona fide for the purpose of executing Land Regulations. Subject to the over-riding jurisdiction of the Court of Consuls it is for the Council to investigate to find whether the act complained of was in fact committed and whether it contravened or exceeded or was done without the instruction of the Council.

If the act complained of was so committed then the Council will itself prosecute the offender before the court; if, however, the Council is satisfied to the contrary that officer personally is not subject to any action and any aggrieved party has the remedy provided by the Land Regulations of proceedings against the Council in the Court of Consuls.

In the event of any doubt arising as to the construction of or powers conferred by the Land Regulations it is provided by regulation 28 that the same must be consulted upon and settled by the foreign consuls and local Chinese authorities and not by any unilateral interpretation by either the court or the Council neither of which is a party to the Land Regulations or to the court agreement.

The Council cannot accept the contention contained in your despatch that it has committed a breach of any of the stipulations of the court agreement. There is nothing in that agreement that affects the protection granted to public officers of the Council acting within the scope of their instructions. On the contrary article 2 stipulates that due account should be taken of the Land Regulations and bylaws of the International Settlement. In further statements I would refer [Page 612] you to the note of February 17, 1930,19 supplemental to the agreement from which it must be inferred that the termination of the agreement were not to affect or in any way invalidate the land regulations or bylaws or be considered prejudicial to the maintenance of peace and order within this area.

The Council has no desire to shield any member of the police force who is guilty of any improper conduct and follows the practice of prosecuting members of its own police in cases where investigation discloses that an offense has been committed. The Council’s investigation is neither final nor arbitrary as any aggrieved party has the right to invoke jurisdiction of the Court of Consuls.”

4. In his despatch of September 17th to Legation, copies of which have been mailed direct to Department,20 the Consul General at Shanghai states that an admission that the Chinese court may summon employees of the Council to answer charges for alleged offenses committed in the discharge of their duties strikes at the very foundation of the municipal organization; that if Chinese contention is admitted it is doubtful whether the Municipal Council administration can continue; and that recent protests from the Chinese Court constitute a definite, possibly premeditated attempt to undermine the administration of the International Settlement.

5. Consular body has referred matter to Senior Minister and the several Consuls have reported to their Legations with the request that the Legations take action to support the Municipal Council in its position as enunciated in its letter of September 19th to the president of District Court.

6. British Legation has consulted with this Legation and proposes to suggest through Senior Minister that the several Legations concerned reply to the two formal notes from the Foreign Office refraining from any discussion of the detailed legal aspects of the case but briefly summarizing the position of the Shanghai Municipal Council and expressing general agreement with the considerations advanced therein. Reply would further point out that the Legations can find no provision with [of?] court agreement which withdraws from Chinese police and other servants of the Council the immunity conferred on them as “public police officers” under article[s] 17 and 35 of the Chinese Criminal Code and under the criminal action regulations; and that as regards the maintenance of justice the Legation is confident that the Municipal Council will at all times institute the fullest inquiry into any allegations that may be made against the Council’s employees and if found necessary will bring the matter before the court. Failing such action by the Council any aggrieved party may sue the Council before the Court of Consuls.

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7. After careful study this Legation is of the opinion that it is necessary that the Shanghai Municipal Council be supported in its stand and I therefore request authorization to make reply to the Foreign Office’s formal protests along the general lines indicated above provided the other Legations are prepared to do likewise.21

For the Minister:
  1. Telegram in five sections.
  2. Not printed.
  3. Signed February 17, 1930, Foreign Relations, 1930, vol. ii, p. 333.
  4. Foreign Relations, 1930, vol. ii, p. 339.
  5. Not printed.
  6. The Department in its telegram No. 325, October 10, 8 p.m., replied: “Department approves and authorizes you to reply as proposed in paragraph 7.”