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

No. 2441

Sir: With reference to my telegram no. 663 of April 15, 5 p.m., in regard to the commercial treaty to be negotiated between the United States and China, I have the honor to enclose for the confidential information of the Department, copy of a memorandum submitted to me by Third Secretary Freeman of the Embassy …

. . . . . . . . . . . . . .

Of special interest is the proposal that the treaty shall provide for Americans the same rights as nationals of China in regard to patents, trademarks, and copyrights. Mr. Freeman did not see the article of the treaty but his informant stated directly what the treaty provided on the subject.

[Page 1016]

The reference to the activities of missionary organizations is also of interest; also the comment on coastal trade.

There was, however, no discussion on or reference to the subject of trading rights of foreign nationals—on the commercial aspects of the treaty which are of vital importance to American interests.

I have suggested in my telegram to the Department that we get on with the drafting of our treaty, in order that such draft may be presented in the near future.

It appears from Mr. Freeman’s memorandum that the Ministry of Justice was instructed to hasten its examination of the Foreign Office draft. As we know that Dr. Wei Tao-ming is shortly to return to his post as Ambassador at Washington, it is likely that the Foreign Office wishes to complete the examination of the draft in order that it may be carried back by Dr. Wei.

I have, from time to time, had some casual conversation with the Director of the Treaty Department of the Foreign Office, in regard to the treaty work on which he is engaged, and have known from him that studies were being made for the new Sino-American commercial treaty; but, heretofore, nothing has come to us to suggest what the Chinese draft would cover.

Needless to say, the Embassy hopes that the source of Mr. Freeman’s information will be carefully protected.

Respectfully yours,

C. E. Gauss

Memorandum of Conversation, by the Third Secretary of Embassy in China (Freeman)

On April 13, … of the Ministry of Justice called to see me to ask whether he might have the loan for a few days of Hyde’s International Law. He said that he was engaged in checking the draft of the proposed commercial treaty with the United States and wished to look up several questions. He also discussed the Chinese equivalent of “misdemeanor” as used in our treaties. I expressed interest in the fact that he was engaged in checking a draft treaty with the United States, whereupon he asked whether I had yet seen it; I replied that I had not, but was of course much interested in it. He suggested that I drop in at his office this morning and he would show me the draft. Wishing to pick up the 2 volumes of Hyde’s International Law at that time, I accepted the invitation and called on him this morning. … told me then that he had been informed that the draft he was examining was secret, and he could not show it to me; but he nevertheless brought out the Chinese and English texts of the draft in my presence and I had the opportunity to observe two articles [Page 1017] closely in addition to discussing other aspects of the treaty in a general fashion—all at his instance and with no urging from me. The points as I recall them may be summarized as follows:

Article II compares almost word for word with paragraph 3, Article I of our treaty with Liberia;19 namely, “The nationals of each High Contracting Party shall enjoy freedom of access to the courts of justice of the other on conforming to the local laws, as well for the prosecution as for the defense of their rights, and in all degrees of jurisdiction established by law.” Nothing is said about having rights equal to nationals or nationals of the most-favored nation.
Another article appeared to be almost identical with Article II of our consular convention with Liberia,20 exempting consular officers from arrest except when charged with crimes other than misdemeanors, requiring consular officers to serve as witnesses in criminal cases and suggesting that officers should voluntarily give testimony at trials in civil cases though not demanding such testimony.
The same rights as nationals are guaranteed in regard to patents, trademarks, copyrights, etc.
In response to a question … stated that the treaty would not restrict Chinese coastal trade to Chinese vessels alone, although I could get no information as to whether such rights would be restricted by the most-favored-nation clause.
… stated that consular officers would be deemed qualified to act as administrators of estates of nationals who had died intestate and that the estates would be administered in accordance with the laws of the state or territory where deceased had had legal residence.
He also stated that, under the new treaty, missionary organizations would be permitted to establish and conduct churches, hospitals, schools, etc., in any part of China. In answer to a question with regard to the existing regulations which prohibit foreign missions from operating primary schools, … responded that those regulations were old and would be superseded by the provisions of the new treaty, thus permitting missionaries to operate schools of all classes.
The clause regarding compulsory military service appears to conform more nearly to that in our treaty with Siam exempting nationals of one Party residing in the territories of the other from compulsory service of any kind, rather than the clause in the Liberian treaty permitting drafting if permanent residence has been established and the intention to become naturalized has been declared.
In answer to another question … stated that, as provided in the draft treaty, American nationals would be permitted to travel and reside in any part of China and that they would enjoy the same rights of protection and security as Chinese nationals, rather than a greater degree of protection such as foreign nationals have enjoyed in the past.

I gained the impression from talking with … and from glimpsing the English and Chinese copies of the draft treaty that the [Page 1018] treaty is in almost final form and is practically ready for presentation to our Government authorities. The English text was typewritten, double space, and appeared to number approximately 25 pages. I was told that both the English and Chinese texts had been prepared and approved by the Ministry of Foreign Affairs and that the drafts had been forwarded to the Ministry of Justice for criticism and checking. … stated, however, that he had been given less than a week to make his suggestions and criticisms and that the Ministry of Foreign Affairs was anxious to have the texts returned in the shortest possible time. He also confirmed my impression that the draft was originally written in English and later translated into Chinese, for the Ministry of Foreign Affairs had particularly requested the Ministry of Justice to check the Chinese translation of the English legal terms used.

When questioned as to whether the Chinese Embassy in Washington had already been provided with copies of the draft texts … replied that he did not think so inasmuch as Dr. Wei Tao-ming is now in Chungking.

Fulton Freeman
  1. Treaty of friendship, commerce and navigation signed at Monrovia, August S, 1938, Treaty Series No. 956, or 54 Stat. 1739.
  2. Signed at Monrovia, October 7, 1938, Treaty Series No. 957, or 54 Stat. 1751.