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declaration of submission to German jurisdiction has been dispensed with. Moreover, I understand that the German Consul and the German community at Tien-tsin are alike protesting to Berlin against continued adherence to a rule which tends to exclude aliens from the German Concession, while exposing Germans to the risk of being excluded, on analogy, from the British Concession.
Although I am opposed, for the reasons stated above, to retaliation as a settled policy at Tien-tsin, it is obvious that a threat of retaliation might have most salutary results, I have no doubt that the protest now being raised in Tien-tsin is the effect of the retaliatory measures adopted in Hankow. And it may be pointed out here that, as the form of lease under which all land-renters in the British Concession hold their lots contains the following clause :
"Provided also that if the said his executors, administrators, or assigns, shall sublet or demise the said premises, or any part thereof, to any native of China, or to any subject of a foreign State, unless the said foreign subject shall execute a deed binding himself, his assistants or employés, to submit to the authority of Her Majesty's Consul, Vice-Consul, or person duly authorized, in all matters of police or in all civil causes where British subjects are plaintiffs, the said to be approved by Her Majesty's Consul, Vice-Consul, or other person duly authorized, before possession can be given; then in that case the said demise shall become void and of no effect, and the said Consul, Vice-Consul, or person duly authorized, shall be at liberty immediately to re-enter and repossess the said premises in the name and on behalf of Her said Majesty, her heirs, successors, or assigns."
Up to the present time no foreign lessee of land in the British Concession has executed the deed referred to in the above clause, the Consular authorities having been content with a declaration sanctioned by the Consul concerned, that the lotholder would "conform to any local Land Regulations made by His Britannic Majesty's Minister for the peace, order, and government of the British Concession at Tien-tsin." I am not prepared to give an opinion as to whether the execution of such a deed, in cases where the above-mentioned declaration has been accepted in lieu thereof, could now be legally enforced under pain of confiscation; but it is probable that if the Berlin authorities were informed that the British Government contemplated enforcing this clause in all its strictness they might be induced to modify considerably their attitude with regard to British lotholders in German Concessions.
However, no difficulty has yet arisen in Tien-tsin in connection with this matter, and there seems some reason to hope that the German representations now being made to Berlin may prove successful without the necessity of specific threats of retaliation on our part.
Inclosure in No. 1.
I have, &c. (Signed)
W. P. KER.
Acting Consul-General Fox to Sir J. Jordan.
(No. 44. Confidential.) Sir,
Canton, September 3, 1908.
I HAVE the honour to acknowledge the receipt of your despatch No. 29 of the 14th ultimo on the question of the acquisition by subjects of foreign Powers of lots of land situated in British Concessions.
I would premise my remarks on this subject by saying that, until my arrival in Canton three months ago, I had never been stationed in a port where British and foreign Concessions existed, and therefore my views on the point raised in Sir Edward Grey's despatch must of necessity be founded on my short experience in Canton.
Here, as you are aware, there are only two Concessions, the French and the British. Foreigners acquiring lots on the British Concession are required to produce an undertaking from their Consul, not only that they will abide by the conditions of their lease (as regards payment of rent and taxes), but that they will obey "all such Regulations and bye-laws as have been made or sanctioned, or as may hereafter from time to time be made or sanctioned, by His Britannic Majesty's Minister for the peace, order, and good government of the British Concession at Shameen."
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This undertaking differs from the one given at Hankow in that it contains no qualification of the obligation on the part of the Consul to enforce obedience to the Concession's Regulations and bye-laws. I take it that a foreign Consul on Shameen is bound to enforce compliance with any Regulations His Majesty's Government may see fit to make, and punish his nationals for a breach of those Regulations, although they may not exist in his own country, and may even run counter to his own laws.
The arrangement has worked well in practice, and the Chairman of the British Municipal Council, who has been a resident here for nearly twenty years, informs me that he does not remember any serious opposition on the part of foreign lotholders to the exercise of British Consular or municipal authority.
Such objections as there have been have usually proceeded from the German Consul. On one occasion a Chinese, who had committed a theft at the German Consulate, was arrested, examined at the Consulate, and a guard of soldiers was sent for by the German Consul to escort the prisoner to the Namhoi Magistrate's yamên. The matter was at once reported by the police to the Chairman of the Municipal Council, who wrote to the Consul pointing out that the British Municipal police were the proper persons to arrest Chinese on the British Concession, and requesting the Consul to hand the man over to them, when he would be sent into the Chinese authorities for trial. To this the Consul demurred, maintaining that he had a perfect right to deal directly with the Chinese authorities, and stating that he would hand the man over to the Namhoi Magistrate's soldiers as soon as they came to fetch him. The Chairman, who happened to be a particularly energetic upholder of the Council's authority, thereupon sent the foreign Inspector with a detachment of police to the German Consulate, and when the Namhoi's soldiers arrived, and the prisoner was handed over to them, the whole party were promptly arrested and marched off to the police station. The German Consul protested vehemently against this interference with his authority, and threatened to report the case to his Minister in Peking. On second thoughts wiser counsels prevailed, and the matter was allowed to drop.
On a more recent occasion, when two American citizens were fined by the American Consul, at the Council's request, for letting off fire-crackers on the Concession, the German Consul is reported to have said that had they been German subjects the fine would not have been imposed unless he had satisfied himself that the offence against the bye-laws merited punishment by fine, and that, in any case, the proceeds of the fine would accrue not to the Council, but to the German Government.
With this view of a foreign Consul's position in such a case, neither the Council nor myself are able to agree, and I propose, as soon as an opportunity offers, to contest the German Consul's right to refuse to fine for a breach of the bye-laws or to withhold the proceeds when a fine has been imposed.
I have written so far of foreign lotholders' submission to the Regulation and bye-laws of the Concession, a point which, as far as Canton is concerned, would not appear to present any serious difficulties. As regards the larger question of the submission of foreign lotholders to British jurisdiction in all legal matters connected with the land they own on the Concession, I do not, unfortunately, see my way clear at present to offer any definite opinion.
As far as I can gather, our land register of Concession lots is only concerned to know that the persons whose names appear as the owners of lots are the bona fide owners of the lots in question. In the case of a transfer we require proof that the person making the transfer is the registered owner or the legal representative of the owner, and in the latter case, should any doubt arise, we accept a statement from the applicant's Consul that he is empowered to deal with the land. In the same way we recognize the order of a foreign Court appointing a person executor of a will or administrator of an estate, or official receiver of an estate in bankruptcy; and we should, I imagine, in the case of disputed ownership of a Concession lot accept the decision of a foreign Court as to the disposal of the property.
On the other hand, we apparently require that foreign lotholders shall have a legal title to the property according to British law. For instance, we do not register a lot in the name of a firm or partnership, although by German law such registration would be quite valid. Again, a case is now pending where the German executors of a deceased German lotholder have applied to transfer the lot into their own names, they being the partners of deceased. Such a transfer is not, as far as I can gather, valid in English law; it is equally invalid by German law, but here the difficulty can be got over by the appointment by a German Court of a third person as executor. I have submitted this case to the Judge of His Majesty's Supreme Court in Shanghai for his opinion.
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