4
by us will be taken away from us, together with all buildings erected, which will be the property of the administration of the railway and under its disposal, and the rent paid by us will not be returned to us, and we have no right to declare upon this subject any claims or damages.
9. If the lot rented by us shall be required by railway necessities before the expiration of the term of the lease, then such lot we are obliged to free upon the first request of the administration of the railway, and to present any claims or damages to the latter we have no right.
10. All the misunderstandings which might be raised regarding this agreement shall be subjected to the examination according to the court regulations of the frontier
court.
Date
located
(2.)
I, the undersigned,
subject, with the knowledge and approval of my consul, hereby give this note of promise to the Chinese Eastern Railway Company that, obtaining a lease within the alienated area of the Chinese Eastern Railway, which belongs to the company above mentioned, a lot of land, a square of
I am, in accordance with the square sarj. under the No. principles of justice, taking upon myself the duties equally with Russian subjects and subjects of other Powers to submit to all the police, constructural, sanitary, trade, industrial, and other regulations which exist and will be issued by the administration of the railway or by the municipal organs for the leasing of land and owners of trade or industrial enterprises within the territory of the railway, and to pay different assessments and taxes which exist or will be fixed upon in the territory mentioned. In case of non-fulfilment by us of the conditions of this note of promise, the Chinese Eastern Railway Company (according to the infringement), at her discretion, has the right to close the trade or industrial enterprise which belongs to me or to take away from me the lot of land, and the rent paid by me will not be returned to me, and the buildings erected on the lots must be removed within a term given me by the administration of the railway, and I have no right to declare any claims or losses to the railway company which might result by closing upon such conditions my trade or industrial shops, or by taking away my lot and removal of the buildings.
(No. 49.) Sir,
Enclosure 7 in No. 1.
Sir J. Jordan to Acting Consul-General Willis.
Peking, December 14, 1909. IN reply to your despatch No. 62 of the 7th instant, I forward to you herewith copy of a letter which I have addressed to the Russian Minister respecting the terms of the lease to be granted by the Chinese Eastern Railway to Messrs. Samuel Macgregor and Co. This letter will put you in possession of my views on the general question, expressed at some considerable length.
In regard to the particular point raised in your despatch under reply, I concur in your opinion that you are not at liberty, without definite instructions, to counter- sign the leases as demanded by the Russian railway authorities, such a proceeding being tantamount to a formal approval of the conditions laid down in the documents. We cannot, however, object to the firm signing the contracts if they desire to do so, and in view of their evident anxiety to conclude the transaction promptly, I see no objection to your attesting the firm's signature in your capacity of notary public.
This procedure, I understand, has been adopted by French and German firms and by their respective consular officers, and has hitherto been accepted by the Russian authorities as sufficient for their purposes.
I enclose for your confidential information copy of an aide-mémoire recently issued by the Russian Government, together with the reply it elicited from His Majesty's Government. These papers have not yet reached me from the Foreign Office, but were furnished to me by the Russian Minister.
I am, &c.
J. N. JORDAN.
5
Enclosure & in No. 1.
Sir J. Jordan to M. Korostovetz.
My dear Colleague,
Peking, December 13, 1909. IN our friendly discussions about the Chinese Eastern Railway Company's settlements in Manchuria you have frequently asked me to furnish you with a concrete statement of our objections to the company's claims, and I now venture to submit to you a case which will, I think, serve to illustrate my point of view. In doing so I wish to make it clear that I have no intention of dealing generally with the question which has been under discussion between our respective Governments.
The case to which I refer is this: Messrs. S. Macgregor and Co., a British firm who are very large purchasers of beans in Manchuria, desire to lease land at Harbin and other points on the Chinese Eastern Railway on which to erect buildings for the storage of their produce. The conditions on which the railway company is prepared to accede to this request are embodied in a proposed form of lease, or "Note of Promise," copy of which in translation is enclosed herewith. This form of agreement, Messrs. Macgregor and Co. state, has to be entered into with the knowledge and approval of His Majesty's consul, and requires to be countersigned by the latter. If the English version of the document represents correctly the sense of the original I think you will agree with me that it is not one which His Majesty's consul can properly be authorised by his Government to sanction by his counter-signature. Even assuming that the company holds the railway land as a concession from the Chinese Government, an assumption which I do not admit, but only use for purpose of argument, the company is assuming rights which the British Government does not claim in the British concessions at the treaty ports held under perpetual lease granted by the Chinese Government. A subject or citizen of another Power who wishes to hold land in a British concession, gives an undertaking in writing with the official consent of his consul, to conform to the terms of the lease and to observe the municipal regulations. This undertaking, however, is enforceable, not by the British consul, but by the consul of the laud-renter's nationality, and the principle of exterritoriality is fully upheld. Russian subjects in considerable numbers formerly held land on these terms in the British concession at Hankow, and some ten Russian firms, or subjects, I believe, do so still. If I mistake not the land regulations for the Russian con- cession at Hankow contain a reciprocal provision for the admission of foreigners, other than Russians, as purchasers or lessees of laud.
It is therefore the more surprising to find that a railway company proposes to challenge a right which foreigners of all nationalities have always jealously asserted in China-the right of being judged in their persons and property by courts of their own nationality. And here let me remark in passing that it is not a fact, as seems to be implied in the aide-mémoire issued by the Russian Government, of which you kindly gave me a copy, that foreigners are obliged to submit to "règlements et taxes existants" in China. On the contrary, as you are aware, China can impose no municipal taxation of any kind upon foreigners without the consent of their Governments, and the extent to which this principle is asserted is shown by the fact that she has to obtain the assent of the diplomatic body for even a tax upon jinrickshaws, and that at the present moment we are engaged in considering whether she shall be allowed to raise the transfer fees on land from 6 per cent. to
per cent.
9
The conditions to which Messrs. Macgregor and Co. are invited to subscribe are drastic to a degree unknown elsewhere in China, and their rights are liable to be arbitrarily withdrawn at any moment by the railway company. If they are dissatisfied, their only appeal for redress is to the Russian Frontier Court.
I repeat that the railway company's contentions, even assuming its position to be what it is not, the holder of a concession ou the same footing as a concession held by a foreign Government, are not justified by international practice or treaty usage in China.
The railway company must of course be the best judge of its own interests, but it is hard to see how those interests can be served by imposing such severe and, I venture to think, unnecessary restrictions upon traders who are anxious to utilise it as the great artery of communication in North Manchuria.
Pray excuse, my dear colleague, the freedom with which I have offered these observations, and believe, &c.
J. N. JORDAN.
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