56
Excellency,
Inclosure 2 in No. 1.
Mr. Root to Baron Rosen.
Department of State, Washington, April 9, 1908,
THE Government of the United States has given the most considerate attention to the Memorandum received from your Excellency, dated the 4th February, 1908, in regard to the attitude of the American Consul at Harbin concerning the protest of the Chinese Government against the contemplated establishment of municipal administration at Harbin and Hailar by the Chinese Eastern Railway Company. Pains have been taken to ascertain just what has happened at Harbin, and especially what the American Consul at that post has done regarding the matters referred to.
Upon the best information which this Government has been able to obtain, through official reports and otherwise, it is evident that a very disorganized condition exists at Harbin, and that serious difficulty has been experienced in the maintenance of order, and that there have been serious differences of opinion between the Chinese Eastern Railway Company and the foreign residents at that point as to the methods which it was advisable to follow, and it is evident that there is a very great need of some adequate arrangement for the protection of life and property and the maintenance of order. This Government cannot fail to recognize and sympathize with the earnest efforts which have been made to bring about such an arrangement, and the United States desires to aid by every means in its power toward the accomplishment of such a desirable end,
There would seem to be no serious obstacle to the direction of a common effort for such a purpose, since the Governments of Russia and the United States are at one regarding the fundamental principle to be observed as stated in the Treaty of Portsmouth, and as stated by yourself orally in our conference upon the subject in terms which meet the entire acquiescence of this Government, and which include a scrupulous regard for the sovereignty of China, equal opportunity for trade on the part of both and of all nations, and observance of Treaty rights.
This Government cannot doubt that a just application of this rule, so fully and universally agreed to, and a sincere and equally universal desire to accomplish the beneficent object sought, will make the satisfactory solution of the problem certain, however complicated the conditions of the problem may be.
It would seem, however, that the railroad officials of the Chinese Eastern Railway Company and the residents of Harbin, naturally intent upon the settlement of their own business interests, in attempting to formulate an arrangement between themselves, have overlooked some inconsistencies between their proposed arrangement and the rules to which I have referred. This Government cannot resist the conviction that these inconsistencies flow almost inevitably from the initial error of assuming, as the basis of the proposed arrangement for establishing and maintaining order, the railroad grant made by China to the Chinese Eastern Railway Company to construct and manage the railway, dated the 8th September, 1896, instead of taking as the basis of the proposed arrangement the political rights of the residents secured by Treaties between China and the several Powers.
The grant by the instrument of the 8th September, 1896, to the Railroad Company of a right of railroad administration over its own lands could not, even if standing alone, be deemed to carry a right of political administration which would amount to a transfer of sovereign rights; but the same instrument, by the French as well as the Chinese text, contains also an express provision reserving the political jurisdiction over these lands to the Government of China. This view appears to agree entirely with that expressed by the Government of Russia in the Declaration of the Treaty of Portsmouth, that Russia has no territorial advantages, or preferential or exclusive Concessions in Manchuria of such a nature as to impair the sovereignty of China, or which are incompatible with the principle of equal opportunity.
3
The action of the American Consul in Harbin seems to have gone no further than an informal and oral expression of opinion in accordance with this view, and especially with regard to a proposed Ordinance, based upon the Railroad Concession, prohibiting foreigners to trade except upon receiving a licence under the proposed Municipal Government, and a further Ordinance subjecting all foreigners to the criminal jurisdiction of Municipal Courts not of their own nationality, both of which provisions would be a clear infringement upon the sovereignty of China, and a deprivation of the rights which China has secured by Treaty to the United States, under which the citizens of the United States in China are entitled to reside and trade and to be subject only to the jurisdiction of their own extra-territorial Courts.
Fortunately the fact that political authority cannot be derived from the grant to the Railroad Company does not leave the foreign residents in Harbin without opportunity to secure for themselves a method of maintaining order suited to their Western customs and ideas, and the protection of Courts administering their own laws. The sovereignty of China, which all agree exists in Harbin, is subject to the rules of extra-territoriality established by China's own Treaties with the several Powers. On the basis of this extra-territorial jurisdiction, the scope and limits of which are well understood, it would seem practicable to work out in Harbin, as has been done in the other Treaty ports of China, a satisfactory and effective local government.
This course would not merely have the advantage of resting upon a sound basis of unimpeachable right, but following well-understood precedent, would not excite among the people of China apprehensions of infringement upon her sovereignty and misunderstandings as to the purpose of the Powers which, like both the United States and Russia, desire sincerely to preserve that sovereignty intact.
Towards the working out of such a result this Government would be glad to contribute, and to that end will give appropriate instructions to its Representatives in China.
Accept, &c.
(Signed)
ELIHU ROOT.
Inclosure 3 in No. 1.
Mr. Fisher to Assistant Secretary of State, Washington, April 15, 1908.
[See Sir J. Jordan's No. 173, Inclosure 3: Affairs of China, June 15, Section 1.]
Inclosure 4 in No. 1.
Informal Exposé of the Views of the Japanese Government.
[Received from the Japanese Ambassador April 23, 1908.]
ARTICLE 6 of the Eastern Chinese Railway Agreement provides among others as follows:----
“La Société aura le droit absolu et exclusif de l'administration de ses terrains.”
The second paragraph of Article 8 of the same instrument stipulates that the protection of the order and security of the land conceded to the Company for the construction of railways and other purposes connected therewith shall be intrusted to the police guards appointed by the Company.
The Chinese Government have never filed hitherto a protest against the practical observance of the above stipulations.
The last paragraph of Article 3 of the Convention between China and Russia concerning retrocession of Manchuria, provides that the Military Governor shall organize a body of gendarmes for the purpose of maintaining internal order and peace in the districts outside those parts allotted to the Eastern Chinese Railway Company.
Thus it may be plainly inferred that the police authority in the zone allotted to said Company does not belong to China.
Article 5 of the Eastern Chinese Railway Agreement reads as follows:--
"Le Gouvernement Chinois prendra des mesures pour assurer la sécurité du chemin de fer et des personnes à son service contre toute attaque."
The object of the above stipulation is to protect the railways and others against the attack from outside, viz., attack by the Chinese mounted bandits. Accordingly, the above stipulations are in no way in contravention of Article 6 of the same Agreement. The phrase "contre toute attaque" is wanting in the Chinese text, and, consequently, in the translation by Mr. Rockhill, and its absence must inevitably lead to...
į
-
56
Excellency,
Inclosure 2 in No. 1.
Mr. Root to Baron Rosen.
Department of State, Washington, April 9, 1908, THE Government of the United States has given the most considerate attention to the Memorandum received from your Excellency, dated the 4th February, 1908, in regard to the attitude of the American Consul at Harbin concerning the protest of the Chinese Government against the contemplated establishment of municipal administration at Harbin and Hailar by the Chinese Eastern Railway Company. Pains have been taken to ascertain just what has happened at Harbin, and especially what the American Consul at that post has done regarding the matters referred to.
Upon the best information which this Government has been able to obtain, through official reports and otherwise, it is evident that a very disorganized condition exists at Harbin, and that serious difficulty has been experienced in the maintenance of order, and that there have been serious differences of opinion between the Chinese Eastern Railway Company and the foreign residents at that point as to the methods which it was advisable to follow, and it is evident that there is a very great need of some adequate arrangement for the protection of life and property and the maintenance of order. This Government cannot fail to recognize and sympathize with the earnest efforts which have been made to bring about such an arrangement, and the United States desires to aid by every means in its power toward the accomplishment of such a desirable end,
There would seem to be no serious obstacle to the direction of a common effort for such a purpose, since the Governments of Russia and the United States are at one regarding the fundamental principle to be observed as stated in the Treaty of Portsmouth, and as stated by yourself orally in our conference upon the subject in terms which meet the entire acquiescence of this Government, and which include a scrupulous regard for the sovereignty of China, equal opportunity for trade on the part of both and of all nations, and observance of Treaty rights.
This Government cannot doubt that a just application of this rule, so fully and universally agreed to, and a sincere and equally universal desire to accomplish the beneficent object sought, will make the satisfactory solution of the problem certain, however complicated the conditions of the problem may be.
It would seem, however, that the railroad officials of the Chinese Eastern Railway Company and the residents of Harbin, naturally intent upon the settlement of their own business interests, in attempting to formulate an arrangement between themselves, have overlooked some inconsistencies between their proposed arrangement and the rules to which I have referred. This Government cannot resist the conviction that these inconsistencies flow almost inevitably from the initial error of assuming, as the basis of the proposed arrangement for establishing and maintaining order, the railroad grant made by China to the Chinese Eastern Railway Company to construct and manage the railway, dated the 8th September, 1896, instead of taking as the basis of the proposed arrange- ment the political rights of the residents secured by Treaties between China and the several Powers.
The grant by the instrument of the 8th September, 1896, to the Railroad Company of a right of railroad administration over its own lands could not, even if standing alone, be deemed to carry a right of political administration which would amount to a transfer of sovereign rights; but the same instrument, by the French as well as the Chinese text, contains also an express provision reserving the political jurisdiction over these lands to the Government of China. This view appears to agree entirely with that expressed by the Government of Russia in the Declaration of the Treaty of Portsmouth, that Russia has no territorial advantages, or preferential or exclusive Concessions in Manchuria of such a nature as to impair the sovereignty of China, or which are incompatible with the principle of equal opportunity.
The action of the American Consul in Harbin seems to have gone no further than an informal and oral expression of opinion in accordance with this view, and especially with regard to a proposed Ordinance, based upon the Railroad Concession, prohibiting foreigners to trade except upon receiving Municip Government, and a further Ordinance subjecting all foreigners to the criminal a licence under the proposed jurisdiction of Municipal Courts not of their own nationality, both of which provisions would be a clear infringement upon the sovereignty of China, and a deprivation of the rights which China has secured by Treaty to the United States, under which the citizens
3
of the United States in China are entitled to reside and trade and to be subject only to the jurisdiction of their own extra-territorial Courts.
Fortunately the fact that political authority cannot be derived from the grant to the Railroad Company does not leave the foreign residents in Harbin without opportunity to secure for themselves a method of maintaining order suited to their Western customs and ideas, and the protection of Courts administering their own laws. The sovereignty of China, which all agree exists in Harbin, is subject to the rules of extra-territoriality established by China's own Treaties with the several Powers. On the basis of this extra-territorial jurisdiction, the scope and limits of which are well understood, it would seem practicable to work out in Harbin, as has been done in the other Treaty ports of China, a satisfactory and effective local government.
This course would not merely have the advantage of resting upon a sound basis of unimpeachable right, but following well-understood precedent, would not excite among the people of China apprehensions of infringement upon her sovereignty and misunder- standings as to the purpose of the Powers which, like both the United States and Russia, desire sincerely to preserve that sovereignty intact.
Towards the working out of such a result this Government would be glad to contribute, and to that end will give appropriate instructions to its Representatives in China.
Accept, &c.
(Signed)
ELIHU ROOT.
Inclosure 3 in No. 1.
Mr. Fisher to Assistant Secretary of State, Washington, April 15, 1908.
[See Sir J. Jordan's No. 173, Inclosure 3: Affairs of China, June 15, Section 1.]
Inclosure 4 in No. 1.
Informal Exposé of the Views of the Japanese Government.
[Received from the Japanese Ambassador April 23, 1908.]
ARTICLE 6 of the Eastern Chinese Railway Agreement provides among others -as follows:----
“La Société aura le droit absolu et exclusif de l'administration de ses terrains.”
The second paragraph of Article 8 of the same instrument stipulates that the protection of the order and security of the land conceded to the Company for the construction of railways and other purposes connected therewith shall be intrusted to the police guards appointed by the Company.
The Chinese Government have never filed hitherto a protest against the practical observance of the above stipulations.
The last paragraph of Article 3 of the Convention between China and Russia concerning retrocession of Manchuria, provides that the Military Governor shall organize a body of gendarmes for the purpose of maintaining internal order and peace in the districts outside those parts allotted to the Eastern Chinese Railway Company.
Thus it may be plainly inferred that the police authority in the zone allotted to said Company does not belong to China.
Article 5 of the Eastern Chinese Railway Agreement reads as follows:--
"Le Gouvernement Chinois prendra des mesures pour assurer la sécurité du chemin de fer et des personnes à son service contre toute attaque."
The object of the above stipulation is to protect the railways and others against the attack from outside, viz., attack by the Chinese mounted bandits. Accordingly, the above stipulations are in no way in contravention of Article 6 of the same Agree- ment. The phrase "contre toute attaque" is wanting in the Chinese text, and, -consequently, in the translation by Mr. Rockhill, and its absence must inevitably lead to
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