Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 8, 1914

File No. 893.011/16.

Minister Reinsch to the Secretary of State.

[Extract]

No. 255.]

American Legation,
Peking, June 5, 1914.

Sir: In continuation of my despatch No. 211 of May 5, with which I enclosed a memorandum by the Chinese Secretary on the Revised Provisional Constitution, I have the honor to transmit two memoranda: one by the Chinese Secretary, relative to the development of government organization; and one¹³ by the Assistant Chinese Secretary on the personnel of the Advisory Council (Ts’an Cheng Yuan), together with translations of the public documents treated of as published in the local foreign press.* * *

I have [etc.]

Paul S. Reinsch

.

[Inclosure 1—Extract.]

Memorandum by the Chinese Secretary.

American Legation,
Peking, May 30, 1914.

development of government organization.

On May 5, 1914, the Chinese Secretary had the honor to submit a short memorandum with reference to the Constitutional Compact (formerly called the Revised Provisional Constitution) which was promulgated on May 1, 1914, including therein a synopsis of the principal events in the way of governmental development from the outbreak of the Revolution in 1911 up to May 2, 1914, when the President by mandate dissolved the Cabinet.

There is attached to this memorandum a translation of the Constitutional Compact, prepared by Mr. Sao-ke Alfred Sze, Master of Ceremonies in the President’s office; Mr. T. Y. Lo (Lo Chung-i), in the same department; Dr. F. J. Goodnow; and Dr. N. Ariga, the two latter both Legal Advisers to the President. It may be considered, therefore, as the official and authoritative translation.

The following list indicates the more important governmental developments that have taken place since May 2, 1914:

• On May 3, 1914, a Presidential mandate promulgated the organization of the Administrative Council (Chéng Shih T’ang).
• On May 8, 1914, a Presidential mandate promulgated the organization of the Military Council.
• On May 15, 1914, the organization of the Salt Gabelle was promulgated.
• On May 20, 1914, the organization of a Local Constabulary was promulgated.
• On May 23, 1914, the official system for the Provinces was promulgated. On May 24, 1914, the organization of the Advisory Chamber (Ts’an Cheng Yuan) was promulgated.

comment.

The Administrative Council (Chêng Shih Tang).

This body, at the head of which is the Secretary of State (Kuo Wu Ch’ing) with a Senior and Junior Secretary of State to assist him (Tse Ch’êng, Yu Ch’êng), is the office through which the President exercises his powers as Chief Executive. There are in it five bureaus and one department, as follows:

Bureau of Legislation; Bureau of Confidential Affairs; Bureau of Civil Service; Bureau of Accounting; Bureau of Printing and Foundry; Department of General Affairs.

The Military Council (Lu Hai Chun Ta Yuan Shuai Tung Shuai Pan Shih Ch’u; literally, “Office of the Commander-in-Chief of the Army and Navy”).

This Council is composed of the Minister of War, the Chief of the General Staff, the Minister of Marine, an officer or officers of high rank appointed by the Commander-in-chief, i. e. the President, and the Chief of the General Bureau of the Council. It is the organ through which the President exercises his powers as Commander-in-chief of the military and naval forces of the Republic (see Article 23 of the Constitutional Compact).

The Salt Cabelle (Yen Wu Shu).

The Minister for Finance is ex officio the Director General of the Salt Gabelle Department. But the actual departmental chief is nominated by the President. The duties of the Salt Gabelle Department are performed by one department and two bureaus, i. e. the General Affairs Department and the Salt Production Bureau and Salt Conveyance and Consumption Bureau. The functions of the General Affairs Department are supervisory in their nature and those of the two Departments [Bureaus?] are indicated by their names. Article 15 of the Regulations provides for the employment of foreigners in the Gabelle, in the following words: “The Salt Gabelle Department may, for the purpose of transcribing documents and dealing with other matters, employ assistants or hired persons.”

Local Constabulary (Pao Wei T’uan).

This organization, which is composed of citizens, corresponds almost exactly with the militia organization in the United States. It is trained and in time of necessity may be called into requisition. It is recruited and supported locally. It is designed to supplement the provincial police, but may possibly be the beginning of a national conscription system.

Official system for the Provinces (Shêng Kuan Chih).

In this system the commonly accepted Chinese principle of making the superior responsible for everything under his jurisdiction is carried out to its fullest extent. The executive, or territorial, officials created by the system are of three grades: a Provincial Governor (Hsun An Shih), and Intendent of Circuit (Tao Yin) and a District Magistrate (Hsien Chih Shih).

The Governor nominates all the Magistrates in his province and may remove the Tao-yin by impeachment. He may be specially instructed by the Central Government to assume the direction of the finances and legal machinery of the province and be invested with the requisite powers thereto. He has control of all military forces in the province except the regular army and the navy.

The Tao-yin has powers in his circuit almost corresponding to those of the Governor in his, subject, of course, to review.

The Magistrate, again, has similarly wide powers in his district.

The Provincial Bureau of Finance (Ts’ai Chêng T’ing) and the provincial law courts have yet to be established.

The system now inaugurated would seem to a European to leave the way open for a recrudescence, or continuance, of the faults of the provincial administration existing under the Manchu rule, but it is undoubtedly framed on the basic principles to which the Chinese have always been accustomed and under which the Empire attained a prosperity and strength that at present it lacks. The system may, therefore, serve as an efficient transitional expedient until the time when, the country having been reduced to order, trade and industry having been fostered and the revenues of the country having been restored to at least their former amounts, an organized civil service may be created that shall leave less power to the higher ranks of officialdom in the matter of appointing their subordinates; in other words, that shall present less opportunity for a “spoils system”. It is, perhaps, superfluous to call attention to the resemblance between the present system and that obtaining under the monarchical regime.

The Advisory Chamber (Ts’an Chêng Yuan).

This Chamber is composed of between fifty and seventy members, all appointed by the President. From the qualifications as set forth in Article 7 of the Regulations of the Ts’an Cheng Yuan it would appear that the intention is not only to provide the Chief Executive with a body of men capable of giving him expert advice on various matters of public policy, but to enable him to secure in support of his actions the strength of public opinion as represented and influenced by the prestige of men of national reputation. This view is supported by the functions of the Chamber as defined in the Constitutional Compact, in which it is noticeable that the approval of the Chamber is necessary especially in those instances where the President will be called upon to act either in opposition to the will of the Legislature (Li Fa Yuan) or without its expressed consent. For instance, in Article 17, “The President, with the concurrence of the Ts’an Chêng Yuan, may dissolve the Legislature”; in article 20, “... at a time of urgent necessity when the Legislature cannot be convoked, the President, with the concurrence of the Ts’an Chêng Yuan, may issue emergency ordinances having the force of law”; in Article 34 it is stated that the President may, “with the concurrence of the Ts’an Chêng Yuan, withhold promulgation of any bill passed by the Legislature.” Article 2 of the Ts’an Chêng Yuan give it powers in the interpretation of the Constitutional Compact and laws passed in connection therewith, evidently a most important function and designed to strengthen the hands of the President.

Thus in routine matters the Ts’an Chêng Yuan has no part in legislation or government, except that previous to the convocation of the Legislature it fulfills that body’s functions.

One of the most significant duties of the Advisory Chamber is to be the preparation of a draft of the Permanent Constitution for submission to a National Convention, a duty enjoined upon it by Articles 59 and 60 of the Constitutional Compact.

The name “Ts’an Chêng Yuan” has also been translated “Council of State”.

[Subinclosure.]

The Constitutional Compact of the Chung-Hua-Min-Kuo. Translated by Sao-ke Alfred Sze and T. Y. Lo; Translation revised by Prof. Frank J. Goodnow and Dr. N. Ariga.

Peking Daily News, May 20, 1914.]

Chapter I.—The Nation.

Article 1. The Chung Hua Min Kuo is composed of the people of Chung Hua.

Article 2. The sovereignty of the Chung Hua Min Kuo originates from the whole body of the people.

Article 3. The territory of the Chung Hua Min Kuo continues the same as that of the former Empire.

Chapter II.—The Citizens.

Article 4. Citizens of the Chung Hua Min Kuo shall be equal before the law, irrespective of race, rank or religion.

Article 5. Citizens shall enjoy the following rights:

(a) No citizens shall be arrested, imprisoned, tried or punished, except in accordance with statute.

(b) The habitation of any citizen shall not be forcibly entered into or searched, except in accordance with statute.

(c) Within the limits of the statutes, citizens shall have the right to own and enjoy property and to trade freely.

(d) Within the limits of the statutes, citizens shall have the rights of freedom of speech, of writing and publication, and of assembly and association.

(e) Within the limits of the statutes, citizens shall have the right of secrecy of correspondence.

(f) Within the limits of the statutes, citizens shall have the right of abode and of changing the same.

(g) Within the limits of the statutes, citizens shall have the right of religious belief.

Article 6. In accordance with the provisions of the statutes, citizens shall have the right of petitioning the Legislature.

Article 7. In accordance with the provisions of the statutes, citizens shall have the right to institute proceedings in the Courts of Law.

Article 8. In accordance with the provisions of the statutes, citizens shall have the right of petitioning administrative officers and of lodging complaints with the Court of Censors and Administrative Justice.

Article 9. In accordance with the provisions of law and ordinance, citizens shall have the right to attend the examinations for the appointment of officers and to enter the public service.

Article 10. In accordance with the provisions of the statutes, citizens shall have the right to elect and be elected.

Article 11. In accordance with the provisions of the statutes, citizens are subject to the duty of paying taxes.

Article 12. In accordance with the provisions of the statutes, citizens are subject to the duty of performing military service.

Article 13. The provisions made in this Chapter that are not in conflict with the law, ordinances and discipline of the Army and Navy, shall be applicable to persons belonging to said services.

Chapter III.—The President.

Article 14. The President is the head of the Nation and combines in himself all the powers of government.

Article 15. The President shall represent the Chung Hua Min Kuo.

Article 16. The President shall be responsible to the whole Nation.

Article 17. The President shall convoke the Legislature and open, prorogue and close its sessions. The President, with the concurrence of the Council of State, may dissolve the Legislature; in the case of dissolution, new members must be elected and the Legislature convoked within six months from the date of dissolution.

Article 18. The President may initiate legislation and shall lay the estimates before the Legislature.

Article 19. For the promotion of public welfare, for the execution of the statutes, or in pursuance of authority granted by statute, the President may issue or cause to be issued ordinances; but no ordinance shall alter any statute.

Article 20. In order to maintain peace and order, or to avert extraordinary calamities, at a time of urgent necessity when the Legislature cannot be convoked, the President, with the concurrence of the Council of State, may issue emergency ordinances having the force of law; but such ordinances shall be submitted to the Legislature for ratification at the beginning of its next session.

Should the said emergency ordinances be rejected by the Legislature, they shall thereafter be null and void.

Article 21. The President shall prescribe and determine the organization of all offices and shall issue the regulations fixing the duties of officials.

The President shall appoint and dismiss civil and military officers.

Article 22. The President shall declare war [and] conclude peace.

Article 23. The President is the Commander-in-chief of the Army and Navy, and leads the land and sea forces of the Nation.

The President shall determine the organization and the strength of the Army and Navy.

Article 24. The President shall receive foreign ambassadors and ministers.

Article 25. The President makes treaties; but should articles therein provide for any change of territory, or increase the burdens of the citizens, the concurrence of the Legislature shall be required.

Article 26. The President may, in accordance with the provisions of the statute, declare a state of siege.

Article 27. The President may confer titles of nobility, rank, orders and other marks of honor.

Article 28. The President may grant general amnesty, special pardon, commutation of punishment and restoration of rights. In the case of general amnesty the concurrence of the Legislature shall be required.

Article 29. When the President, for any cause, vacates his office or is unable to exercise the powers and functions connected therewith, the Vice President shall act in his stead.

Chapter IV.—Legislature.

Article 30. Statutes shall be enacted by the Legislature composed of members elected by the people.

The organization of the Legislature and the method of the election of its members shall be prescribed and determined by the Constitutional Compact Conference.

Article 31. The competence of the Legislature shall be as follows:

(a) To discuss and pass bills.

(b) To discuss and pass the estimates.

(c) To discuss and pass or approve measures relating to the assumption of public debts, and to the contracting of other liabilities to the charge of the National Treasury.

(d) To reply to inquiries addressed to it by the President.

(e) To receive petitions from the people.

f) To initiate legislation.

(g) To submit to the President suggestions and opinions relating to legislation and other matters.

(h) To raise questions in regard to administration over which doubts have arisen and to request the President to reply thereon. But the President may refuse to reply should he deem it necessary for the matter to be kept in secret.

(i) Should the President make an attempt against the State, the Legislature may institute against him impeachment proceedings in the Supreme Court of Justice, if approved by a majority of three-fourths or over of a quorum of four-fifths or over of the total number of members of the Legislature.

The exercise of the powers mentioned in clauses 1–8 of this article, and articles 20, 25, 28, 55 and 57 shall require the concurrence of a majority of the members present in the Legislature.

Article 32. The annual session of the Legislature shall not exceed four months in duration, but may be prolonged should the President consider it necessary. The President may call an extraordinary session during the recess.

Article 33. The deliberations of the Legislature shall be public, but the members may sit behind closed doors at the request of the President, or as a result of the decision of a majority of the members present.

Article 34. Bills which have passed the Legislature shall be promulgated and enforced by the President.

But if the President shall disapprove a bill duly passed in the Legislature, he may return the bill to the Legislature for reconsideration, with a statement of the reasons of his disapproval. Even in case that the former decision of the Legislature be adhered to by a majority of two-thirds or over of the members present, if the President still maintain that the bill would greatly endanger or harm either the internal administration of the State or its foreign relations, or that there are great and important obstacles in the way of its execution, in such a case the President may, with the concurrence of the Council of State, withhold promulgation.

Article 35. The Speaker and the Deputy Speaker of the Legislature shall be elected from and among the members by a majority of the votes cast.

Article 36. Members of the Legislature shall not be held responsible, outside of the House, for their speeches, debates or for votes cast in the House.

Article 37. Except when discovered in the commission of a crime, or when involved in crimes connected with internal or external troubles, no member of the Legislature shall be arrested during the session without the permission of the House.

Article 38. The Legislature shall prescribe its own rules and procedure.

Chapter V.—The Administration.

Article 39. The President is the chief of the Administration and shall be assisted by one Secretary of State.

Article 40. The affairs of the Administration shall be separately conducted by the Departments of Foreign Affairs, Interior, Finance, War, the Navy, Justice, Education, Agriculture and Commerce, and of Communications.

Article 41. The Heads of the Departments shall manage the Administration of their respective Departments in accordance with laws and ordinances.

Article 42. The Secretary of State, the Heads of the Departments, and Special Delegates representing the President, shall be entitled to sit and speak in the Legislature.

Article 43. The Secretary of State and the Heads of the Departments may be impeached by the Censors and judged by the Court of Administrative Justice, should they violate the law.

Chapter VI.—The Courts of Law.

Article 44. The Courts of Law shall be composed of the law officers appointed by the President.

The organization of the Courts of Law and the qualification of the law officers shall be determined by statute.

Article 45. The Courts of Law, in accordance with the provisions of the statute, shall try and judge all civil and criminal cases. But administrative law proceedings shall be tried and judged according to the law governing the same.

Article 46. The procedure of impeachment cases in the Supreme Court of Justice, as provided for under clause 9 of Article 31, shall be determined separately by statute.

Article 47. In the Courts of Law, trials shall be conducted and judgment shall be rendered publicly. When, however, it is considered that publicity may be prejudicial to peace and order, or to the maintenance of public morality, secrecy may be observed.

Article 48. During his term of office, no officer shall be reduced in salary, nor transferred to another office, nor shall he be deprived of his office except as a consequence of punishment according to statute, or of disciplinary measures entailing dismissal.

Chapter VII.—The Council or State.

Article 49. The Council of State, when consulted by the President, shall deliberate upon important matters of state.

The organization of the Council of State shall be determined by the Constitutional Compact Conference.

Chapter VIII.—Finance.

Article 50. The imposition of new taxes and the modification of the rates of the existing taxes shall be made by statute. The taxes levied at present shall, unless changed by statute, be collected as in the past.

Article 51. The annual receipts and expenditures of the State shall be dealt with in accordance with the provisions of the estimates passed by the Legislature.

Article 52. In order to meet special requirements, there may be included in the estimates appropriations to continue for a certain number of years as a Continuing Expenditure Fund.

Article 53. In order to supply deficiencies in the estimates, or to meet requirements unprovided for in the same, a Reserve Fund shall not be provided for in the estimates.

Article 54. Estimates for the objects of expenditure specified below shall not be rejected or reduced except with the concurrence of the President:

(1) Those appertaining to the legal obligations of the Government.

(2) Such necessary expenditures as may have arisen as the effects of statutes.

(3) Expenditures necessary to carry out treaties.

(4) Expenditures necessary for the organization of the Army and Navy.

Article 55. In case of international warfare or internal disturbance, or under extraordinary circumstances, when the Legislature cannot be convoked, the President, with the concurrence of the Council of State, may make urgent financial appropriations. But he shall request the Legislature for ratification at the beginning of its next session.

Article 56. If the new estimates have not been acted upon, the appropriations of the previous year shall continue in force. The same procedure shall be observed should the adoption of the estimates be delayed after the fiscal year has already begun.

Article 57. The final accounts of the receipts and expenditures of the State shall be audited every year by the Board of Audit, and shall be reported by the President to the Legislature for approval.

Article 58. The organization of the Board of Audit shall be determined by the Constitutional Compact Conference.

Chapter IX.—The Procedure for Drafting the Constitution.

Article 59. The Constitution of the Chung Hua Min Kuo shall be drafted by a Committee established for this purpose.

Members of this Committee shall be composed of ten persons elected by the Council of State.

Article 60. The Draft of the Constitution of the Chung Hua Min Kuo shall be examined and passed by the Council of State.

Article 61. After the Constitution of the Chung Hua Min Kuo has been examined and passed by the Council of State, it shall be submitted by the President to the National Convention for final adoption.

The organization of the National Convention shall be determined by the Constitutional Compact Conference.

Article 62. The National Convention shall be convoked and dissolved by the President.

Article 63. The Constitution of the Chung Hua Min Kuo shall be promulgated by the President.

Chapter X.—Supplementary Articles.

Article 64. Laws and ordinances in force before the enforcement of the Constitutional Compact, so far as they do not come into conflict with the same, shall continue to be valid.

Article 65. The Articles proclaimed on the twelfth day of the second month of the first year of the Min Kuo, regarding the favorable treatment of the Ta Ching Emperor after his abdication of the Throne, and the special treatment of the Ching Imperial Clan, as well as the special treatment of the Manchus, Mongols, Mohammedans, and Tibetans, shall never be modified. The statute on the treatment of the Mongols, which is correlated with the foregoing Articles, shall continue to be effective unless changed by statute.

Article 66. On the proposal of a majority of two-thirds or over of the members of the Legislature, or on the proposal of the President, in either case if approved by a majority of three-fourths or over of a quorum of four-fifths or over of the total number of members of the Legislature, the President shall convoke the Constitutional Compact Conference to amend the Constitutional Compact.

Article 67. Before the Legislature shall have been convoked, its powers and functions shall be assumed and discharged by the Council of State.

Article 68. The Constitutional Compact of the Chung Hua Min Kuo shall take effect as from the date of promulgation, on which day the Provisional Constitution, proclaimed on the eleventh day of the third month of the first year of the Min Kuo, shall become null and void.

13. Not printed.