these principles (international rights) in terms sufficiently explicit." Consequently, the wording was changed to meet the views of the other foreign Governments.
At present, although the French Concession is still under the control of the Government of France, "men of other nations may reside or own property therein and could not be interfered with by the French authorities." (China in Law and Commerce, p. 202.)
The French have a Municipal Council and police force of their own, and a Mixed Court with Regulations independent of those of the international Settlement. There are Rules to define the jurisdiction of the international and French authorities, which Rules were drafted by the Consular Body and approved by the Diplomatic Body at Peking.
(As of possible interest in this connection, there follow a few remarks regarding the Settlements at Amoy and Ningpo.)
Japanese Concession at Amoy.
Mr. Conger reported to Mr. Hay on the 20th January, 1899, that the Japanese Government were negotiating for large Concessions of foreshore and other lands at Amoy, which, "if successful, will virtually put a stop to all contemplated moves on the part of our Government.'
The Department thereupon telegraphed to the American Consul at Amoy instructing him to "remonstrate against any interference with, or discrimination against, any legitimate American rights."
On the 24th May, 1899, Mr. Hay cabled to Mr. Conger as follows :-
"Acting Consul at Amoy, having asked whether to oppose Japanese Concession, was telegraphed (9th March) to remonstrate against discrimination or interference with legitimate American interests. This was intended to prevent possible transfer of existing American rights to Japanese administration. He has not been instructed to ask an American Concession, but if China is disposed to grant separate Concessions at Amoy, we should expect no less consideration than other friendly Powers."
On the 1st September, 1889, the Concession was signed by the Japanese Consul at Amoy and the local Taotai and Acting Provincial Treasurer. houses owned by the individuals within the Concession were to be purchased by the Japanese when wanted at a price to be agreed upon with the Chinese Commercial Committee. The Concession has a very limited area, and was not conspicuous on account of its desirability, and apparently the United States' Government saw no reason for further protest.
Ningpo.
The Treaty of Peace of 1858 between France and China, Article 10, recites the fact that the French are able to lease houses and shops at the open ports, and to establish churches, hospitals, &c.
It continues:-
"Dans ce but l'autorité locale, après s'être concertée avec le Consul, désignera les quartiers les plus convenables pour la résidence des Français et les endroits dans lesquels pourront avoir lieu les constructions précitées."
In 1862 the French Consul at Ningpo attempted to obtain a French Concession. The British and American Consuls protested on the 13th January, 1862, announcing that a certain tract of land should from this date "be opened and considered as the foreign site."
They reserved to themselves the right "to make and establish such rules and regulations as the future necessities of the Settlement may render necessary, such regulations to be in conformity with the provisions of the respective Treaties with the Imperial Government of China."
At this stage the matter appears to have been dropped.
Mr. Burlingame to Mr. Seward, 18th April, 1863, writes that he supported the American Consul at Ningpo in the protest on the broad ground that “it was our right to buy and sell and live in any part of any Treaty port."
Turning now to the subject of the informal exposé of views which his Excellency the Japanese Ambassador left with the Secretary of State on the 23rd April, 1908, the recently promulgated Regulations of the railway municipality at Harbin, viewed in the light of the principles above enumerated, will be seen to be quite inconsistent in many respects with settled principles.
Page 9
The territory appertaining to the railway at Harbin and other points would have to be considered in any case either as a "Settlement or as a leased territory (where, as in the case of Tsingtau or the Liaotung Peninsula, the power of administration has been conceded, and third Powers have not based upon the reservation of sovereignty to China the claim to retain the exercise of extra-territorial jurisdiction), or else would have to be considered a Concession for business purposes, such as any other Railway or Mining Concession.
The foregoing discussion effectively disposes of the case if Harbin be considered a **Settlement."** That it is a "leased territory" has never been and could not seriously be alleged. If it be an ordinary business Concession, of course no political authority whatever would vest in the concessionnaire.
The status of Harbin would seem to have some of the elements both of a "Settlement" and of a business Concession.
Adverting to the French text of the contract of 1898 between the Chinese Government and the Russo-Chinese Bank, which is the Concession under which the original Chinese Eastern Railway was built and exists to-day, it is to be observed that the land which is the subject of the provisions of Article 6 thereof is precisely:-
"Les terrains réellement nécessaires pour la construction, exploitation, et protection de la ligne, ainsi que les terrains aux environs de la ligne, nécessaires pour se procurer des sables, pierres, chaux," &c.
The second paragraph of Article 6 reads :----
"La Société aura le droit absolu et exclusif de l'administration de ses terrains."
As to the meaning of this word "administration," it seems very worthy of remark that in English the word "administration is quite commonly used of all sorts of business administration, while the same word in French and the equivalent word in the Chinese version of the contract are still more commonly used of business and non-governmental administration. Indeed, the French word "administration" is so very commonly used of business management that its absolute meaning in a given case would be wholly determined by the context.
A reading of the whole contract deprives the second paragraph of Article 6 of all semblance of referring to a political administration. While the first paragraph of Article 5 says:--
"Le Gouvernement Chinois prendra des mesures pour assurer la sécurité du chemin de fer et des personnes à son service contre toute attaque,"
more suggestive is the third paragraph of the same Article, which says:—
Cas criminels, procès, &c., sur le territoire du chemin de fer devront être réglés par les autorités locales d'après les stipulations des Traités."
It is thus clear that this contract was for the establishment of a business enterprise, and it is very difficult to read into it any context from which the use of the word in a political sense could be inferred.
In pursuance of a Treaty provision, and by the action of the Chinese Government, Harbin was opened to international residence and trade, and this fact alone raises the various questions of the status and rights of foreigners in the whole city. When the presence of foreigners at Harbin makes local municipal arrangements necessary, it is quite clear, from the principles illustrated above, that no authority can be imposed upon foreigners at Harbin by any single foreign Government, and that any measures found necessary must have the consent of their Government before being applicable to the citizens or subjects of any Power. Indeed, the Chinese Government would not have the right, even if it had the desire, to delegate to any other Government authority within Chinese territory over the citizens or subjects of a third Government, and so destroy the extra-territorial and other Treaty rights of the nationals concerned.
Any analogy between the situation at Harbin and what has been called an "exclusive Settlement" must, it would seem, rest not upon any provision of this contract between the Chinese Government and the Russo-Chinese Bank, but only upon the actual circumstances, namely, the fact that a number of foreigners of various nationalities are living in a city which is open to international residence and trade.
Page 59
8
these principles (international rights) in terms sufficiently explicit." Consequently, the wording was changed to meet the views of the other foreign Governments.
At present, although the French Concession is still under the control of the Government of France, "men of other nations may reside or own property therein and could not be interfered with by the French authorities." (China in Law and Commerce, p. 202.)
The French have a Municipal Council and police force of their own, and a Mixed Court with Regulations independent of those of the international Settlement. There are Rules to define the jurisdiction of the international and French authorities, which Rules were drafted by the Consular Body and approved by the Diplomatic Body at Peking.
(As of possible interest in this connection, there follow a few remarks regarding the Settlements at Amoy and Ningpo.)
Japanese Concession at Amoy.
Mr. Conger reported to Mr. Hay on the 20th January, 1899, that the Japanese Government were negotiating for large Concessions of foreshore and other lands at Amoy, which, "if successful, will virtually put a stop to all contemplated moves on the part of our Government,'
The Department thereupon telegraphed to the American Consul at Amoy instructing him to "remonstrate against any interference with, or discrimination against, any legiti- mate American rights."
On the 24th May, 1899, Mr. Hay cabled to Mr. Conger as follows :-
"Acting Consul at Amoy, having asked whether to oppose Japanese Concession, was telegraphed (9th March) to remonstrate against discrimination or interference with legitimate American interests. This was intended to prevent possible transfer of existing American rights to Japanese administration. He has not been instructed to ask an American Concession, but if China is disposed to grant separate Concessions at Amoy, we should expect no less consideration than other friendly Powers."
On the 1st September, 1889, the Concession was signed by the Japanese Consul at Amoy and the local Taotai and Acting Provincial Treasurer. houses owned by the individuals within the Concession were to be purchased by the It was agreed that the Japanese when wanted at a price to be agreed upon with the Chinese Commercial Committee. The Concession has a very limited area, and was not conspicuous on account of its desirability, and apparently the United States' Government saw no reason for further protest.
Ningpo.
The Treaty of Peace of 1858 between France and China, Article 10, recites the fact that the French are able to lease houses and shops at the open ports, and to establish churches, hospitals, &c.
It continues:-
"Dans ce but l'autorité locale, après s'être concertée avec le Consul, désignera les quartiers les plus convenables pour la résidence des Français et les endroits dans lesquels pourront avoir lieu les constructions précitées."
In 1862 the French Consul at Ningpo attempted to obtain a French Concession. The British and American Consuls protested on the 13th January, 1862, announcing that a certain tract of land should from this date "be opened and considered as the foreign site."
They reserved to themselves the right " to make and establish such rules and regulations as the future necessities of the Settlement may render necessary, such regulations to be in conformity with the provisions of the respective Treaties with the Imperial Government of China."
At this stage the matter appears to have been dropped.
Mr. Burlingame to Mr. Seward, 18th April, 1863, writes that he supported the American Consul at Ningpo in the protest on the broad ground that “it was our right to buy and sell and live in any part of any Treaty port."
Turning now to the subject of the informal exposé of views which his Excellency the Japanese Ambassador left with the Secretary of State on the 23rd April, 1908, the recently promulgated Regulations of the railway municipality at Harbin, viewed in the
9
light of the principles above enumerated, will be seen to be quite inconsistent in many respects with settled principles.
"}
The territory appertaining to the railway at Harbin and other points would have to be considered in any case either as a "Settlement or as a leased territory (where, as in the case of Tsingtau or the Liaotung Peninsula, the power of administration has been conceded, and third Powers have not based upon the reservation of sovereignty to China the claim to retain the exercise of extra-territorial jurisdiction), or else would have to be considered a Concession for business purposes, such as any other Railway or Mining Concession.
The foregoing discussion effectively disposes of the case if Harbin be considered a **Settlement." That it is a "leased territory" has never been and could not seriously be alleged. If it be an ordinary business Concession, of course no political authority whatever would vest in the concessionnaire.
The status of Harbin would seem to have some of the elements both of a "Settle- ment" and of a business Concession.
Adverting to the French text of the contract of 1898 between the Chinese Govern- ment and the Russo-Chinese Bank, which is the Concession under which the original Chinese Eastern Railway was built and exists to-day, it is to be observed that the land which is the subject of the provisions of Article 6 thereof is precisely:-
"Les terrains réellement nécessaires pour la construction, exploitation, et protection de la ligne, ainsi que les terrains aux environs de la ligne, nécessaires pour se procurer des sables, pierres, chaux," &c.
The second paragraph of Article 6 reads :----
"La Société aura le droit absolu et exclusif de l'administration de ses terrains."
"
As to the meaning of this word "administration," it seems very worthy of remark that in English the word "administration is quite commonly used of all sorts of business administration, while the same word in French and the equivalent word in the Chinese version of the contract are still more commonly used of business and nou- governmental administration. Indeed, the French word "administration" is so very commonly used of business management that its absolute meaning in a given case would be wholly determined by the context.
A reading of the whole contract deprives the second paragraph of Article 6 of all semblance of referring to a political administration. While the first paragraph of Article 5 says:--
"Le Gouvernement Chinois prendra des mesures pour assurer la sécurité du chemin
de fer et des personnes à son service contre toute attaque,"
more suggestive is the third paragraph of the same Article, which says:—
Cas criminels, procès, &c., sur le territoire du chemin de fer devront être réglés par les autorités locales d'après les stipulations des Traités."
It is thus clear that this contract was for the establishment of a business enterprise, and it is very difficult to read into it any context from which the use of the word in a political sense could be inferred.
In pursuance of a Treaty provision, and by the action of the Chinese Government, Harbin was opened to international residence and trade, and this fact alone raises the various questions of the status and rights of foreigners in the whole city. When the presence of foreigners at Harbin makes local municipal arrangements necessary, it is quite clear, from the principles illustrated above, that no authority can be imposed upon foreigners at Harbin by any single foreign Government, and that any measures found necessary must have the consent of their Government before being applicable to the citizens or subjects of any Power. Indeed, the Chinese Government would not have the right, even if it had the desire, to delegate to any other Government authority within Chinese territory over the citizens or subjects of a third Government, and so destroy the extra-territorial and other Treaty rights of the nationals concerned.
Any analogy between the situation at Harbin and what has been called an "exclusive Settlement" must, it would seem, rest not upon any provision of this contract between the Chinese Government and the Russo-Chinese Bank, but only upon the actual circumstances, namely, the fact that a number of foreigners of various nationalities are living in a city which is open to international residence and trade.
59
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