811.5034 (China) Eastern Publishing Co./27
The Secretary of State to the Consul General at Shanghai (Gauss)
Sir: With reference to your telegram No. 233 of May 19, 5 p.m., the Department has reviewed the correspondence in regard to the Eastern Publishing Company and has given careful consideration to the statements of fact and of your opinion and official position based thereon which are contained in the telegram under reference.
The Department concurs in the view that the activities in which Mr. Max Granich, the owner of the Eastern Publishing Company, is engaged in China should not receive any encouragement or support from this Government. However, it does not seem to the Department, all available evidence being considered, that the circumstances of this case warrant any qualification or departure from the position taken in the Department’s telegram No. 230 of July 30, 1932, 2 p.m.,34 in regard to the Searchlight Publishing Company.[Page 690]
Inasmuch as the Eastern Publishing Company appears to be an American firm and as the confiscated magazines appear to be the property of that firm, it follows that the property is subject exclusively to American jurisdiction and that the confiscation of the property by the Chinese authorities is an unwarranted invasion of American jurisdiction and a violation of our treaties with China.
The correctness of that conclusion would not seem to be affected by the fact that the property in question was deposited with the Chinese postal authorities for transmission or by the fact that the seizures were made by censors operating under the National Military Commission.
While the publication under reference does not appear to be legally objectionable under the laws of the United States and does not therefore warrant judicial action by the American authorities in China, the Department nevertheless desires to cooperate in every reasonable way with the Chinese authorities toward preventing the publication and distribution in China by American nationals of material which could reasonably be regarded by those authorities as offensive to the Chinese Government or people and therefore prejudicial to friendly relations between the United States and China. The Department therefore would not be disposed to raise objection to the adoption by the Chinese authorities of such reasonable administrative measures as may be available to prevent the circulation and distribution of the magazine under reference, such as a denial of postal facilities or any other facilities under the exclusive control of the Chinese authorities, provided, however, that any action which the Chinese authorities might take for the accomplishment of this purpose would not include any assumption of jurisdiction over an American national or his property.
This is the position taken by the Department in the case of Searchlight Publishing Company and is based on the distinction between diplomatic protection which may be granted or withheld in the discretion of the President and the treaty rights of extraterritoriality to which American nationals have a legal claim, which are not within the authority of this Department to disregard.
If the Chinese authorities should attempt to confiscate future issues of the publication under reference, you should be guided by this instruction in protesting seizure, and in endeavoring to effect the return of any property seized to the American owner. You may in your discretion inform the appropriate Chinese authorities of the Department’s position as set forth hereinbefore and request their cooperation in making that position effective.
Very truly yours,