the belief as if China is retaining the police authority over the lands above mentioned, which cannot be said to be of correct interpretation.
From the various provisions above set forth there can be no doubt as to the police authority possessed by Japan as well as by Russia within the railway zone, resembling very much to the "exclusive Settlements" in China.
It is not, however, the intention of the Japanese Government to claim the jurisdiction over the foreigners in the zone above mentioned. Since Manchuria, except the leased Province of Kwantung, belongs absolutely to the Chinese territory, the Japanese Government consider that the foreigners are entitled to enjoyment of the right of Consular jurisdiction as in the other parts of China in virtue of Treaty stipulations. Thus the railway zone in which the Japanese Government have the control of police affairs, while leaving the exercise of judicial authority to the foreign Consuls, may be regarded somewhat similar in its general status to the exclusive Settlement in the Chinese ports, where the control of the police affairs and the judicial administration are placed respectively in the hands of the properly recognized authorities.
It appears, therefore, that the authorized holder of the land in question can enjoy the said control of police affairs in the zone without contravention of the stipulations of Article 3 of the Peace Treaty. It may be noted that the Plenipotentiaries of Japan and Russia declared at the time of the Conference at Portsmouth that the Concession for the construction and exploitation of the Eastern Chinese Railway in Manchuria was not inconsistent with the principle of the open door.
Inclosure 5 in No. 1.
Memorandum respecting the Treaty Rights of American Citizens in China, with special reference to their exercise in the International Settlements or Foreign Concessions within the Cities and Towns opened as places of International Residence and Trade, AMERICAN citizens are at liberty under Treaty rights to frequent, reside, transact business, and secure property for commercial and residential purposes in all the ports or localities of China which are now open, or may hereafter be opened, to foreign residence and trade. Ever since the establishment of Treaty relations with China, it has been consistently held by the United States that these specific rights apply with equal force, whether the property possessed by any of its citizens be situated in an international Settlement or in a foreign Concession belonging to any single Power, or merely within the limits of an opened locality.
The municipalities of the foreign Settlements in China are organized and maintained by the voluntary action of all the foreign residents who are subjects of Treaty Powers and at the same time owners or renters of land in these localities. The right of franchise is generally limited to this class of residents, which constitutes the "municipal body," this "body" in turn electing the municipal Councils which originate the Regulations for the government of the Settlements, and, after they are formally promulgated, enforce them. The above system applies equally to international Settlements and to individual foreign Concessions or places of settlement. In every instance the municipal Regulations or Ordinances are subject to the approval of the Consular Body, a majority of whose members must agree, in an international Settlement, before any legislation can be enforced, while the separate and formal concurrence of each Consul is essential before the measure, as drafted by the Municipal Council and approved by the Consular Body, becomes operative upon his nationals. Upon Concessions belonging to any particular Power the concurrence of the Consul of any second Power is likewise required before his nationals who reside within the limits of the Concession can be subjected to the Regulations proposed by the municipality of such Concession. All the Regulations and Ordinances for the administration of an international Settlement are finally dependent for their operation, at least as to citizens of the United States, upon the sanction of the Minister of this Government in China. The approval of the Legation is also necessary in the case of municipal Regulations enacted by and for any particular foreign Concession, in order to bring Americans under the scope of such Regulations.
American citizens residing in foreign Settlements of China are not subject to any judicial control except that administered by the American Diplomatic and Consular authorities, and, in addition, since 1906, by the officers of the United States' Court for China. Consular and Federal Court enforcement of such police and other Regulations as are promulgated by the foreign municipalities, and subsequently approved by the Consuls and the Minister, has in the past been generally attended with satisfactory results; this action also seems justifiable when one reflects that American citizens residing in the Settlements or foreign localities enjoy, in common with other persons composing these Settlements or residing in these localities, all the rights, privileges, and protection which the Municipal Government affords. Moreover, as citizens of the United States take up their residence in these localities voluntarily, and are given a voice in making the laws, the decision as to the final operation of which rests with their Diplomatic and Consular officers, they may reasonably be held to observe police and other Regulations so far as they are not inconsistent with the rights and duties of a citizen under the Treaties and laws of the United States.
Touching only judicial procedure, and omitting the other legal phases attending American residence in China, no American citizen resident in a Treaty port of China, whether in an international Settlement, or even in a "foreign Concession," can be either arrested, tried, or convicted of any offence, or complained against in a civil action, except by and through the action of the proper Consular officer of the United States, or the proper officer of the United States' Court for China. Whether an American citizen commits a criminal offence, or is amenable to a civil process, even though these offences may be merely infractions of the local municipal Ordinances, which he himself has a voice in enacting and which the Consul and Minister of his country must have approved before their applicability to him was determined, there is no officer of China, or of any other nationality in China, who has jurisdiction, except the above-named officers of the country of the accused. The only warrant or summons an American citizen is required to obey must bear the signature of the Consular officer of the United States, or else the Judge of the United States' Court for China, and should be executed by the United States' Marshal, an officer attached to the Courts of this country in China, or else by an officer temporarily deputised by the Consular officer or by the United States' Court for China for this purpose. In a criminal or civil proceeding before the Consular Court the Consul alone is Judge, and appeals against his decisions lie in the new United States' Court for China.
With reference to the provisions in the comparatively recent Treaties between China and the Powers relative to the opening of the localities to foreign trade, among those particularly worthy of notice is section 12 of Article 8 of the British Treaty of 1902, which contains the stipulations that "the Chinese Government agree to open to foreign trade on the same footing as the places opened to foreign trade by the Treaties of Nanking and Tien-tsin, the following places, namely
"Ch'ansha, in Hunan; Wanhsien, in Szechuan; Nganking, in Anhui; Waichow, (Hui-chow), in Kuantung; and Kongmoon (Chiang-men), in Kuangtung.
"Foreigners residing in these open ports are to observe the municipal and police Regulations on the same footing as Chinese residents, and they are not to be entitled to establish municipalities and police of their own within the limits of the Treaty ports, except with the consent of the Chinese authorities."
The above paragraph is of more than passing interest, in that it is the first provision contained in any Treaty with China which places restrictions upon the hitherto unquestioned right of the various foreign residents in the open ports to join in establishing municipalities and police of their own within the limits of the Treaty ports without giving any concern to or allowing any interference on the part of the Chinese officials in reference to such foreigners.
Article 10 of the Japanese Treaty of 1903, with regard to the opening of Changsha to foreign trade, contains language similar to the last above-quoted paragraph.
In providing for the opening of Mukden and Antung to foreign trade, it is stated in Article 12 of the United States' Treaty of 1903 that---
"The Chinese Government agree that, upon the exchange of ratifications of this Treaty, Mukden and Antung, both in the Province of Shengking, will be open by China itself as places of international residence and trade. The selection of suitable localities to be set apart for international use and occupation, and the regulations for these places set apart for foreign residence and trade, shall be agreed upon by the Governments of the United States and China after consultation together."
Language identical to the above appears in Article 10 of the Japanese Treaty of 1903, which provides for the opening of Mukden and Tatungkow to foreign trade.
These are the first instances of the actual application in Treaties of the new policy
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