693.00244/14: Telegram

The Chargé in China ( Gauss ) to the Secretary of State

33. Legation’s 552, December 3, 11 a.m.92

The question of the enforcement of the customs preventive regulations in the International Settlement at Shanghai appears to be reaching solution whereby enforcement will be provided against non-extraterritorial foreigners and Chinese under judicial processes in a manner which will be acceptable to the Council and to the Consular Body.
Promulgation of the customs preventive regulations appears to the Legation to represent definite effort of the Chinese Government to abrogate the rules of 186893 by unilateral action. The regulations give officers of the customs wide inquisitional and punitive powers without any judicial supervision or review. In addition to the penal provisions the Department’s attention is particularly invited to articles 1 and 2 providing for the search of premises and persons without warrant, article 5 providing for seizure of property no longer in the customs custody, article 23 providing for inspection of books of importers and articles 27 and 28 providing for withdrawal of customs facilities under certain circumstances. Appeal from rulings of the Commissioner of Customs is to a Customs Penalty Board composed of officers of the Customs Administration. Regulations governing this board have now been promulgated and there is no provision for open or public hearing before a disinterested tribunal.
The British Minister states that the rules of 1868 have never been binding upon British subjects in China because they were never adopted by the British Government and are contrary to the established British judicial procedure in China. He cannot, therefore, reserve British rights under those rules, but he has addressed an informal letter to Wang Ching-wei94 bringing to his attention some of the objections to the regulations raised by British shipping interests and making a general reservation of treaty rights as they may be [Page 791] infringed by the operation of the law. He has also requested authorization from his Government to make formal general reservations of treaty rights.
The French Minister is prepared to make formal reservation of all rights under the treaties and under rules of 1868.
The Legation does not believe that any useful purpose would be served by citing to the Foreign Office the particular provisions of the regulations which may operate as an infringement of American treaty rights. It believes, however, that we should make a formal general reservation of our rights under the treaties and under the rules of 1868 until amended by mutual agreement, and the Department’s authorization to do so is requested.95
  1. Not printed.
  2. Foreign Relations, 1868, pt. 1, p. 527.
  3. Chinese Acting Minister for Foreign Affairs.
  4. Department’s authorization was granted in telegram No. 19, January 24, 6 p.m. (693.00244/14). On February 4, the Chargé addressed a note, No. 860, to the Chinese Acting Minister for Foreign Affairs, reserving American rights under the treaties and related agreements, as they might be affected by the operation of the Customs Preventive Regulations (693.00244/16).