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I have therefore no difficulty in coming to the conclusion that it would be unwise to adopt the proposed system in place of one which has worked smoothly for so many years.
(No. 12.) Sir,
I have, &c. (Signed)
W. P. KER.
Inclosure 3 in No. 1.
Consul-General Fraser to Sir J. Jordan.
Hankow, February 4, 1909. IN reply to your despatch No. 6 of the 30th January, I have the honour to report on the points raised by Dr. Kriege as follows :---
As regards mortgages the regulations of this Concession stipulate that all charges by way of mortgage shall, within one month of execution, be registered by the parties or their duly authorized representatives at this office. In the case supposed by Mr. Hurst of A, the alien owner of a lot, mortgaging it to C, an alien of another nationality, it would be C's business to make sure that the mortgage was valid under A's law, and this office would register the mortgage and iuform any intending mortgagee or purchaser of the lien on the lot. I have similar mortgages registered at this moment, and in case the mortgagee wishes to foreclose, the mortgagee's Consul would be applied to, if necessary, to order him to transfer the lot or sell it by auction so as to satisfy the claim. My duty would consist simply in witnessing and recording the change of ownership, and in case the new owner were an alien, obtaining the consent of His Britannic Majesty's Legation, and the usual Consular guarantee required by the proviso in our form of title deed.
The mortgagee remaining subject to his own Consular jurisdiction, no question of inforcing a judgment would arise; at most I should be called on to back a summons or warrant for service or execution.
Were the German proposal adopted, the mortgagee would have to comply with the provisions of an alien law and execute his mortgage in an alien language; and in case of default on his part he would have to plead in an alien Court in a foreign tongue, and, of course, be liable to any penalty, including imprisonment, that that Court chose to impose in order to inforce its decisions.
The balance of convenience to the landholders would hardly seem to be in favour of the latter arrangement.
As to execution of judgments in general, the sole requisite in a British Concession is that the summons or warrant for securing the appearance of the alien before his own authorities shall first be backed by this Office; and such backing would never be refused in the case of any but Chinese, and then only in case there were good reason to suspect the bond-fides of the plaintiff or prosecutor.
The same objections as pointed out with reference to mortgages exist against the surrender to a Concession authority of jurisdiction in inforcing the observance of its municipal regulations by aliens. If the alien and his authorities cannot be trusted to carry out their undertaking to observe such regulations, the better course would be to annul the proviso added to our original title deed, by which alien ownership is permitted. It is manifest that the German proposal would, in case of failure to pay rates and taxes on the part of an absent alien lot-holder, drive us to resort to confiscation of his holding, the very step which Dr. Kriege deprecates, since our jurisdiction over him is to be strictly limited. Moreover, the German proposal would tend to inter- national friction, since aliens would be prone to suspect the Concession Consul of unduly insisting upon the strict letter of the Concession regulations, whereas, under the present system, they feel sure their full rights will be vindicated by their own authority, through whose hands all complaints of disobeying the rules must pass. An additional complication would be the difficulty of keeping apart breach of a municipal regulation and such criminal act as assaulting the police when trying to compel appearance before the Concession Consul.
With reference to the question of "hypothee" on the German system, and the fear that the Court of a foreign mortgagor might not always enforce the same, the mortgagee is usually in a position to obtain such terms as he deems requisite, and, as stated in a former report, this Office does not insist on the usual British or any other form of mortgage indenture being used.
The German proposals would, as far as I can see, afford no more help towards
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the avoidance of the difficulties brought to your notice in my Intelligence Report for the September Quarter of 1908 (p. 5), than is given under our present system; but the raising of this question might, I submit, lead to the consideration of the framing of a uniform set of municipal rules for securing order, cleanliness and health, which the Diplomatic Body might make binding on all foreigners residing in, or visiting, foreign Concessions in China.
I have, &c. (Signed)
(No. 13.) Sir,
Inclosure 4 in No. 1.
Acting Consul-General Fox to Sir J. Jordan.
E. H. FRASER.
Canton, February 11, 1909. I HAVE the honour to acknowledge the receipt of your despatch No. 7 dated the 30th January, asking for an expression of my views on the subject of the proposed modification of jurisdiction in the British and German Concessions in China.
As far as Canton is concerned I can see no good reason for changing the present system, which has now been in force for nearly fifty years, either in our own interests or in the interests of German residents on the Concession,
As regards the enforcements of bye-laws and regulations the interests of the Concessions are protected by the undertaking given by all foreign lot-holders to abide by them, and I have been unable to discover any case where a foreign Consul has refused to compel his nationals to comply, when requested to do so by the Municipal or British Consular Authorities.
Therefore the "right to evict" referred to by Dr. Kriege has never, so far as I am aware, been exercised on this Concession.
As regards land tenure our rights are protected by the fact that all titles to land in the Concession are registered in the British Consulate, and no transfer of land or mortgage of the same can be made without the knowledge and consent of the British Consul.
We do not allow, for instance, the transfer of a Concession lot to a Chinese subject, and we require that all mortgages shall be registered within one month of execution.
From the point of view of British interests, therefore, which I take to be our first consideration, no real advantage would be gained by the extension of our jurisdiction to foreigners in Canton. On the other hand I cannot see that alien residents on the Concession, the Germans for instance, have anything to complain of
They enjoy full extraterritorial rights in all criminal and civil matters, and the special regulations and bye-laws of the Concession can only be enforced with their Consul's consent and in his Court.
Dr. Kriege's assertion that "a judgment of a foreign Consular Court can only be enforced in a Concession settlement by an application to the Consular Court of the Concession Power" does not, as far as I am aware, apply to Canton.
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Both summonses and warrants, judgments in civil suits, and punishments in criminal cases can be issued or inflicted by a foreign Consul without any reference to this Consulate, unless the assistance of the municipal police is required to carry his orders into effect when, of course, the order in question must be "backed " by the British Consul.
It is only when Chinese subjects on the Concession are concerned that we insist on preliminary proceedings, prior to their being handed over to the Chinese authorities, being taken by a foreign Consul in the British Court.
These proceedings are seldom, however, of a formal nature, and the attendance in Court of a foreign Consular officer is hardly ever required.
With regard to land tenure, although we insist on titles to land being registered in accordance with English lawwe do not, for instance, allow Concession lots to be held in the name of a firm or unregistered Company-the orders of foreign Courts, in the case of deceased estates, bankruptcy, &c., are accepted as authority for disposal of the property, provided always that the order of the Court is not contested by a claimant to the property or creditor of the estate.
Money has been borrowed on mortgage by most of the German landholders on the Concession at various periods, usually from British subjects, in a few cases froin Germans.
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