Office of the Historian

893.05/167: Telegram

The Minister in China (MacMurray) to the Secretary of State

[Paraphrase]
Peiping, September 14, 1929—6. p.m.
[Received September 15—7:13 a.m.]

829. Reference your 277, August 20, 6 p.m.

(1)
The suggestion made in your paragraph (1) was out of the question so long as the Chinese Government refused to give any intimation of the viewpoint from which the Chinese proposed approaching the subject until the representatives of the nations interested had been appointed and had proceeded to Nanking. The insistence of the interested Ministers has, within the past few days, caused the Chinese Minister for Foreign Affairs to indicate the basis upon which he intends conducting the negotiations. As I have a fairly substantial reason for believing that he intends confining the so-called negotiations to a bare, unqualified demand that the Provisional Court be abolished and that there be substituted such judicial arrangements as may be seen fit by the Chinese authorities, I myself do not see how it would be serving any good purpose to attempt having an agenda drawn up in advance by the representatives of both sides.
2.
The recommendations of the deputies mentioned in your paragraph (2) of course constituted a formulation by those officers as a suggestion of maximum terms, with a view to facilitating the details of their work in the court, rather than an attempt by them to offer a solution of the question in its broader aspects.
This the Consuls in Shanghai and the Ministers in Peking well understand, nor need the Department apprehend any disposition of forcing issues with the Chinese authorities on the basis merely of recommendations which were formulated with so limited a purview.
(3)
Regarding the suggestion in your paragraph (3) to the effect that the initiation in Shanghai of a policy to advise American plaintiffs that their suits be filed in modern Chinese courts without the presence of an American official being asked to watch the proceedings might now be advisable, I concur in the judgment of the Shanghai Consul General, whom I consulted in this connection, that so long as the present system exists such a step would be most undesirable, as it would destroy the solidarity of policy maintained by the representatives of the powers which are concerned with the judicial administration of the International Settlement.
(4)
I agree also with the Consul General’s judgment that the scope of negotiations mentioned in your paragraph (4) should be limited to solving Provisional Court problems; the latter are by far the most pressing and are so fraught with possibilities of danger that negotiations to settle them should not be encumbered by other problems of a nature less urgent. While the Chinese are in their present temper, I consider that bringing these other matters unnecessarily to a crisis would in any case be most inopportune.
5.
It having now been made clear that the Chinese authorities seek the Provisional Court’s abolition, not revision, certain of my colleagues and I, hoping to gain the adherence of the other Ministers interested, are endeavoring to formulate a plan of action along these lines:
(a)
Attempting to establish any form of court upon the basis either of the old Mixed Court or of the present Provisional Court is useless because of the bitter feeling involved and the manifest Chinese determination to prevent them functioning efficiently and to make them the means for creating occasions of political attack on the so-called unequal treaties; and I submit most earnestly that attempting to institute negotiations along any such lines would result inevitably in forcing us, however unwillingly, to retreat to our technical rights in the matter and, by reestablishment of the Mixed Court, to revert to the status quo ante.
(b)
The institution at Shanghai of a special judicial system along so-called Siamese lines is the only alternative which gives promise of being acceptable to both Chinese and foreign sides and of reasonably assuring judicial independence and integrity; this would involve a court of first instance and a court of final appeal subject to the Central Government’s jurisdiction and consisting partially (say, to the extent of one-third) of Chinese judges who are of foreign nationality, appointed and paid by the Chinese Government, having the necessary guarantees as to tenure and salary payments; these courts having jurisdiction over all cases whatsoever which involve a Chinese or a nontreaty national as the defendant; one judge of foreign nationality at least sitting in each panel; and no judgment nor judicial act being valid without consent and signature thereto being unanimous.
(c)
It might be well to hold out the hope to the Chinese authorities that the interested powers might consider the success of this experimental model court as eventually justifying the extension of its jurisdiction to the inclusion of cases which involve treaty nationals, at any rate in certain types of cases.
(d)
Even if the Chinese were to reject a proposal along these lines, the mere fact of the foreign powers proposing it in a constructive effort would largely disarm the existing antagonism to the International [Page 698] Settlement’s administration of justice and to extraterritoriality in China at large.
(6)
Your approval is requested for me to proceed, in consultation with my colleagues, along the general lines as indicated under paragraph (5).
(7)
Owing to the direction in which the matter now is developing, I shall not venture to carry out the instruction contained in your 302, September 10, 5 p.m., paragraph (1), unless I am instructed specifically to do so. It will, perhaps, be realized by the Department that, considering the diversity of interest and status created by the differing treaty relationships among the several powers which jointly are responsible for maintaining peace and order in the International Settlement, at best it is a matter of the utmost delicacy and difficulty to bring about even the minimum amount of cooperative action required merely for the maintenance of our position and for the fulfillment of our responsibilities. If I am allowed free action within the scope of the general purposes, as I understand them, of the Department, I venture to submit that I shall be in a much better position to contribute to a constructive solution of this urgent problem than I would be if I were instructed from time to time to take particular action regarding some casual aspect of the matter, the relationship of which to the entire local development of the subject possibly may not have been clarified for the Department.
MacMurray