The Department believes, with reference to the United States Army Forces stationed in Tientsin, that it would be preferable to attempt to bring about an improvement of the practice under existing laws and regulations, where such improvement may be required, rather than to attempt to bring about a transfer of jurisdiction from the Army courts martial to the United States Court for China. The Department understands that there are attached to the headquarters of these forces officers trained in the Chinese language and in Chinese customs. Should you feel that desirable cooperation does not now take place between the American military and consular officers at Tientsin in connection with trials involving Chinese interests, it is suggested that you discuss the subject with the Consul General and the officer in command and, in case of necessity, report to the Department, in order that the matter may be taken up with the War Department. With a view, therefore, to effecting a more satisfactory handling of cases involving complaints by Chinese against members of the armed forces of the United States in China, you are requested to issue instructions to all consular officers in China that they shall, in every way that may be possible and appropriate, endeavor to afford assistance and guidance to the officers of the Army, the Navy or the Marine Corps who may be charged with the responsibility for disposing of such cases. I am [etc.] For the Secretary of State: INSISTENCE BY CHINA UPON THE RELINQUISHMENT OF EXTRATERRITORIAL RIGHTS BY THE UNITED STATES AND OTHER POWERS " 711.933/29 Memorandum by the Chief of the Division of Far Eastern Affairs (Hornbeck) of a Conversation With the Chinese Special Representative (C. C. Wu) [WASHINGTON,] January 5, 1929. Dr. Wu called by appointment. Dr. Wu left with Mr. Hornbeck the two memoranda hereto attached, one relating to the annexes to the Italian-Chinese Treaty of November 27, 1928; 28 the other containing Dr. Wu's suggestions with regard to what the Chinese Government might be willing to subscribe to in connection with a treaty providing for the abolition of extraterritoriality on January 1, 1930. The conversation lasted for one hour and twenty minutes and consisted for the most part of a repetition of things which had been said "For previous correspondence concerning extraterritorial rights, see Foreign Relations, 1928, vol. I, p. 398 ff. at previous conversations. Dr. Wu referred to Mr. Hornbeck's request made during the last previous conversation that Dr. Wu draw up for consideration an outline of a plan for the gradual relinquishment of extraterritorial rights and the gradual extension of Chinese jurisdiction over foreigners. He said that, since the last conversation, he had discussed the matter with his Government by cable. He wished to submit a proposal based on the precedent of the plan which had been adopted by Turkey. . . . What the Chinese wanted was a treaty which would abolish extraterritoriality definitely, conclusively, and promptly. He thought that this proposal with regard to "foreign legal counsellors" should suffice. Mr. Hornbeck referred to the provisional and preliminary character of the provisions in the new Chinese-Belgian 29 and Chinese-Italian treaties, there being absent from those treaties any indication of what might be the nature of the plan which the contracting parties agree to work out. Dr. Wu said that he hoped to have a treaty in which the United States would simply give up its extraterritorial rights. Mr. Hornbeck inquired whether Dr. Wu meant by that a treaty under whose terms American interests and nationals would cease to enjoy their extraterritorialized status while that status continued to be enjoyed by nationals of other Powers. Dr. Wu said that such was his meaning. Mr. Hornbeck referred to the conversation held in the Secretary's office shortly after Dr. Wu's arrival in this country,80 in the course of which the Secretary had stated that it would be impossible to consider a proposal of that sort and had explained why. Mr. Hornbeck went on to say that it could not be expected of this or any other government responsible for substantial interests and a large number of its nationals in China that it would agree to place those interests and nationals in a special position (in this case one which they at least would regard as a position of disadvantage) in China. The principle that this Government had been striving for a long time to see made effective in China was the principle of equal treatment and no special positions. It might be assumed that China seeks to have the same principle made effective. Dr. Wu said that certain countries no longer possess such extraterritorial rights. Mr. Hornbeck suggested that the status of German, Russian, Austrian and Hungarian interests and nationals in China had been made what it is by special circumstances and conditions. Suppose that the American or some other Government were to adopt the suggestion which Dr. Wu had just made, could it be assumed that other Powers would welcome the formula as affording a satisfactory solution of 20 Signed at Nanking, November 22, 1928; League of Nations Treaty Series, vol. LXXXVII, p. 287. 30 See telegram No. 338, October 6, 1928, to the Minister in China, Foreign Relations, 1928, vol. II, p. 433. the problem; would they follow the example, thus making for uniformity? Dr. Wu said that they had done so in the case of Turkey and it might be assumed that they would do so in the case of China. The substance of Dr. Wu's proposals up to date may be summarized as follows: 1. The United States and China to conclude a simple treaty containing a provision that extraterritorial jurisdiction on the part of the United States is to terminate on July 1, 1930. 2. An annex to be appended in which China shall declare that she will before January 1, 1930, put into force two new codes, making in force five major codes in all. 3. The Chinese Government to affirm that it will take into its service for a period of three years a number of foreign legal counsellors, who shall be officials of the Chinese Government serving under the Judicial Council and whose duties shall be "to observe, without power of interference," to report to the Judicial Council, to receive complaints regarding the administration of justice, and to make to the Judicial Council suggestions and recommendations. [Annex 1] S[TANLEY] K. H[ORNBECK] The Chinese Legation to the Department of State The Italian Treaty with China signed on 27th November, 1928, and annexes are similar to the Belgian with the exception of the following points: 1. If no agreement is arrived at regarding the detailed provisions before 1 January, 1930, extraterritoriality is to be abolished when all the powers signatory to the Washington Treaty have agreed to its abolition and China has fixed a date therefor; 2. No mention is made regarding the law of personal status. [Annex 2] The Chinese Legation to the Department of State 1. The Chinese Government to take into its service for a period of 3 years a member of foreign legal counsellors, nationals of countries not now enjoying consular jurisdiction in China. 2. These legal counsellors to be Chinese officials serving under the Judicial Council, and stationed at Shanghai, Canton, Hankow, Tientsin, and Harbin. 3. Their duties to be: (a) To observe, without power of interference, the working of Chinese courts and report their observations to the Judicial Council; (b) To receive complaints regarding the administration of justice with a view to bringing them to the notice of the Judicial Council in order to ensure the strict observance of the Chinese law; (c) To make to the Judicial Council such suggestions and recommendations as they may think proper for the improvement of the laws and their administration. 711.933/30 The Assistant Secretary of State (Johnson) to the Chief of the Division of Far Eastern Affairs (Hornbeck) [WASHINGTON,] January 8, 1929. My comment upon the suggestion of Doctor Wu, with regard to the employment of a number of foreign legal counsellors, who apparently will have no powers other than that of observers, who are to report to the Judicial Council on the operation of the Chinese Court, is that this suggestion amounts merely to saying that they will appoint foreigners to serve as employes of the Chinese Government and to take over the duties ordinarily performed by the diplomatic representatives of the foreign countries involved. It will become the duty of our diplomatic representatives, if and when we make a treaty giving up absolutely or gradually our extraterritorial rights, to observe without power of interference the working of Chinese courts, receive complaints from our nationals regarding the administration of justice and bring them to the notice of the Chinese Government in order to insure a strict observance of the Chinese law and also to insure the rendering of strict justice to persons of American nationality. I do not see what advantage this suggestion is to us. 711.933/31 N[ELSON] T. JOHNSON] Memorandum by the Chief of the Division of Far Eastern Affairs (Hornbeck) of a Conversation With the Chinese Special Representative (C. C. Wu) 31 [WASHINGTON,] January 9, 1929. Dr. Wu stated that there had developed at Nanking considerable discussion of the provisions of the newly signed Belgian-Chinese and Italian-Chinese treaties. He had information from a number of sources. There was a considerable amount of expressed dissatisfaction with the terms of these treaties. Under those circumstances it was probably a fortunate thing that a similar treaty had not been negotiated between China and the United States. Mr. Hornbeck said that in view of what Dr. Wu had just said with regard to treaties, he would like to inject a remark with regard to the conversations which had been going on between Dr. Wu and himself, particularly the conversation of January 5. He said that 31 This memorandum is initialed by Assistant Secretary of State Johnson, who also participated in the conversation. Dr. Wu had been endeavoring to persuade him that the United States should conclude with China a treaty under the provisions of which American interests and nationals in China would become divested of their extraterritorial rights regardless of the position of the interests and nationals of other Powers, that is, whether or not extraterritorial rights should continue in force in reference to other countries. Mr. Johnson said that it would seem that there was nothing to be gained by discussing such a proposal: he referred to the statement made by the Secretary, before the conversations in the Division of Far Eastern Affairs began, to the effect that we could not contemplate an agreement which would place American interests and nationals in a position of inferiority to that enjoyed by those of other foreign powers in China. Dr. Wu suggested that it was not a question of "inferiority". Mr. Hornbeck suggested that it need not be discussed in terms of inferiority or superiority but that it would be one of inequality. Mr. Johnson said that it had always been the policy of this Government to insist upon most-favored-nation treatment. Mr. Hornbeck said that, in conformity with that policy, the American Government had endeavored and is still endeavoring to bring about the termination or eradication of such features of unequal treatment or special privilege as survived in China and that he believed the Chinese were committed to the same objective. Dr. Wu said that the whole position of the foreigner in China was one of special privilege. Mr. Hornbeck suggested that, whether or not such was a fact as between foreigners and Chinese, it was necessary to distinguish between national treatment and most-favored-nation treatment; foreigners have never been given in China the rights enjoyed by Chinese; but as among and in reference to foreigners, the United States, at no time seeking special privileges for its own nationals, has always insisted on the enjoyment by its nationals of such rights as are accorded to other foreign nationals. Mr. Johnson reiterated that this Department could not consider a proposal which would provide for placing Americans in a position less favored than that of nationals of the "most-favored" nation. 711.933/33 Memorandum by the Chief of the Division of Far Eastern Affairs (Hornbeck) of a Conversation With the Chinese Special Representative (C. C. Wu) [Extract] [WASHINGTON,] January 10, 1929 Dr. Wu inquired concerning our reaction to the tentative proposal submitted by him during the conversation of January 5. Mr. Horn |