893.05/209: Telegram
The Chargé in China (Perkins) to the Secretary of State
1161. 1. Following from Jacobs and Bucknell, Nanking:
“December 16, 5 p.m. The following is a joint telegram of the foreign delegates to the interested Ministers at Peiping:
‘At joint meeting of the foreign and Chinese delegates at 5 p.m. on December 14, the chief of the Chinese delegation made the following summary of the Chinese position in regard to the negotiations:
“Of the above points (see text of fifteen points presented to the Chinese delegation on December 14th at 11 a.m., and telegraphed to the American Legation by its delegation on the same date26) we must point out those which [Page 731] we consider of prime importance, and, failing a settlement of which, we do not see how there can be any result to these negotiations.
First. Appeals.
We maintain that every case must go through three trials and; in all other respects must be in strict accord with the usual Chinese procedure.
Second. Consular Representation.
No form of consular representation will be allowed in any mixed cases, civil or criminal, or in those cases in which the extra-Settlement authorities are concerned.
Third. Form of Consular Representation and Its Scope.
We have presented to you our plan today in regard to this question which is the extreme limit to which we can go and which is strictly confidential. This plan (which we consider totally unacceptable) is as follows:
The consular body may send a legal expert who is well versed in Chinese law to the District Court to observe the trial; the observer will be assigned by the court a special seat where lawyers are usually seated. He shall not interrogate witnesses or prisoners, and shall abide by the rules applicable to visitors to the [court.] Where the observer discovers what he believes to be irregularities in procedure or in matters of jurisdiction in respect to the judgments of the court, and where an appeal has been duly filed by the parties concerned, he, the observer, may bring the case to the attention of another legal expert representing the consular body, who, if he deems fit, may present his opinions in writing to the president of the court who shall forward them to the Court of Second Instance. If the observer thinks that the judgment of the Court of Second Instance still leaves room for discussion within the scope as above provided, the legal representative of the consular body, if he deems it fit, may discuss the case with a representative to be appointed by the judicial authorities of the Chinese Government, and the two representatives shall, if they; agree, present a written statement of their opinions to the Court of Second Instance for record. Neither the observer nor the legal representative of the consular body shall be allowed to cause his opinions to be known in the open court or to be published outside the court. Should the observer act in any way contrary to the provisions of this agreement, the court may refuse to allow him to observe any trial.
The opinions of the observer and of the legal representative of the consular body do not in any way affect the validity of the judgments of the court which shall be executed as soon as they become final.
Fourth. Future Laws and Regulations.
We cannot allow ourselves to give notice of laws to be promulgated in the future.
Fifth. Chief Clerk.
The Chief Clerk must be appointed and selected by the Chinese Government of its own accord.”
In addition to the above five points of the Chinese delegates, the foreign delegates feel that there are still other points of equal importance that require reference to their appropriate authorities before negotiations can be continued and they, this morning at 10 o’clock, so informed the Chinese delegation. These points are as follows:
- First. The introduction of the procurator system even if confined to inquests and cases affecting the security of the Settlement which was the extreme concession of the Chinese on this point.
- Second. Any failure expressly to recognize the land regulations and bylaws of the Settlement in the agreement.
- Third. Any restriction of the jurisdiction exercised by the existing Provisional Court, especially as regards extra-Settlement municipal roads.
- Fourth. Countersignature of court processes for service on the property of extraterritorial nationals.
- Fifth. Prisons which must be under the complete control of the Settlement authorities.
- Sixth. Judgments of the former Mixed Court and the existing Provisional Court which must be recognized as valid and executable by other Chinese courts.
- Seventh. Rules in 1902 defining respective jurisdictions between the courts of the French and International Settlements, provision for which must be made.
In regard to the remaining points the Chinese delegates have stated that they might be willing to attempt to meet our views.
A comparison of the original proposal of the Chinese delegation, telegraphed to the American Legation on December 9, 3 p.m.,27 which the foreign delegates informed the Chinese was beyond the scope of their instructions and thus unacceptable for discussion, with the present position of the Chinese delegates, shows clearly that they have come back to their original proposal with slight modifications.
It is evident that the foreign delegates cannot continue negotiations within the scope of their negotiations [instructions?], since the type of court which Chinese are now proposing strikes at the very foundation of the Settlement and certain of the existing treaty rights.
Aside from the question of the scope of their instructions, the foreign delegates feel sure it is highly desirable that they be authorized to discuss with the municipal authorities at Shanghai in a private and confidential manner at least those points which directly affect them.
The chief of the Chinese delegates pointed out in today’s meeting that the agreement would expire on December 31st and alluded to difficulties that might arise in the event no agreement was reached. Since it is clearly impossible to reach and sign an agreement before December 31st, whether the interested Ministers find it expedient to enlarge the scope of their instructions to their delegates or not, those delegates feel that it is impossible to avoid facing the fact that some means should be devised to secure the consent of the Chinese authorities to the continuance of the present agreement without prejudice to the automatic renewal in article 7 thereof.
Pending receipt of instructions, further meetings have been suspended until Thursday, December 19, at 3 p.m.’”
And following dated December 16, 10 p.m.:
“In addition to being in hearty accord with the views expressed in the joint telegram of the foreign delegates of December 16, 10 [5] p.m., we venture to submit our own further views as follows:
- 1.
- In view of the attitude of the Chinese delegates in attempting from the beginning of the negotiations to bring questions which are beyond the scope of our present instructions and which in some instances involve a surrender or direct modification of existing treaty rights and agreements other than the Mixed Court rendition agreement in respect to consular representation, immunity of foreign property from search by Chinese authorities without consular consent, the Settlement land regulations and bylaws, the 1902 rules determining [Page 733] jurisdiction as well as long-established procedure arising therefrom upon which the peace and order of the Settlement depend, we believe that, if our Government intends to discuss the general question of extraterritoriality in the near future, any agreement embodying the surrender or modifications desired by the Chinese on these points cannot but weaken our position in such negotiations by eliminating valuable trading points and place the Chinese in a position to exploit the situation. We further respectfully submit that a surrender on our part in regard to treaty rights might entail the necessity of legislative action before such agreement could become effective for our citizens and thus delay the conclusion of such an agreement.
- 2.
- We feel that the situation has become so complicated that, if it were at all possible, we might have the opportunity of discussing personally with the Legation and, since this is evidently impossible at present, we feel that this opportunity should be given us if the negotiations are for reason postponed for a period sufficient to enable us to come to Peiping and return by rail.
- 3.
- We shall leave for Shanghai tonight to consult with Cunningham and shall return here Wednesday night.28 Since the other delegates are also leaving for Shanghai any reply to the joint telegram in regard to discussing matters with the municipal authorities can be sent there up to and including Wednesday.”