Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress

Lord Stanley to Earl Cowley

No. 156.]

Foreign Office, April 22, 1867.

My Lord: Since the receipt of M. Drouyn de Lhuys’s letter to your excellency of the 6th of June, 1866, of which a copy was enclosed in Mr. Fane’s despatch No. 8, of the 7th of that month, her Majesty’s government have consulted the British authorities in China and the law officers of the Crown in this country on the subject of the regulations proposed to be established for the government of the French settlement at Shanghai, and I have now to state to your excellency that with the exception of the 16th article of those regulations her Majesty’s government are not disposed to offer any objection to their enforcement.

Her Majesty’s government agree with Sir Edmund Hornby, the judge of the British supreme court in China and Japan, a copy of whose remarks I enclose, that a fusion of the French settlement with the English one is now impracticable; and that, with one exception, if the French regulations are acted upon in accordance with the views expressed in M. Drouyn de Lhuys’s letter, neither those foreigners who may have established themselves within the French limits, nor their authorities residing without those limits will have any cause to complain of them.

It may be convenient, however, before I proceed further, to make some general observations on the facts as they present themselves.

By the treaties of Nanking, Hoo Nan Chol and Tientsin, the Emperor of China has ceded to her Majesty absolute jurisdiction over her subjects commorant or being wheresoever in the imperial dominions.

Whatever be the character of the grants made by the Emperor of China to France with respect to their occupation of territory south of the Yong Tzee (Kiong,) it is subsequent in date to the concession made in England by one at least of the treaties above referred to. It was not, therefore, competent to the Emperor of China to make any concession to France which would intrench upon this previously granted privilege, whatever authority over his own subjects the Emperor might think fit to concede to France.

Certain territory on the north and south sides of creeks called Yong Kin Tong and Lorchow formed by affluents of the great arteries of China the Yong Tzee (Kiong,) were permitted by the Emperor of China to be rented by Europeans for the purposes of a commercial establishment, the Emperor retaining as lord of the soil the dominium eminens and receiving rent from the European occupiers.

It soon became necessary that some authority should control the European renters. The English led the way in forming a committee to be elected by the majority of renters, but intended to be composed of all Europeans who were to institute and pay a police force for keeping order within these districts. The subjects of the United States of North America, of Prussia, and of Holland, appear to have heartily co-operated in this scheme, though the American consul always maintained that at present no binding legal validity could be given to the resolutions of this committee.

It appears, however, that a general sense of the usefulness of their resolutions has at present supplied the place of positive law.

The French, however, insisted on placing the executive authority in the hands of their consul general, who claimed a right to nominate on behalf of the French occupation or site, the members of the committee.

Two-thirds of the French occupation or site were inhabited by English and other foreigners, and the object of the French consul was to confine to French hands the exercise of authority over French subjects, an object which a free election would obviously have defeated. Eventually the French consul referred the matter to his government, which issued a certain “Réglement d’organisation municipale de la concession Française en Shanghae,” which put an end to all notion of a fusion between the English, American, and French settlements and a common municipal government elected by land renters. It was quite competent to the French to adopt this system of separate municipal government under the control of their consul so far as the French subjects were concerned, but it was not competent to the French government to assume or exercise thereby any personal jurisdiction over the subjects of other states resident or commorant on the French occupation or site or on any other part of the Chinese territory, inasmuch as those subjects had obtained by treaty with the lord of the soil the right of exemption from all jurisdiction but that of their own state.

The 16th article of the réglement was so expressed as to lead to the conclusion that the French government claimed such jurisdiction within the limits of their “concession.” M. Drouyn de Lhuys has however distinctly disclaimed any such intention on the part of the French government, which, however, claims the right of keeping order within their limits and maintaining that the Chinese government has assigned exclusively to them as sole lessees the land inclosed in those limits and all authority over it.

The import of this 16th article and the manner in which it should be modified were treated of by M. Drouyn de Lhuys in his letter to which I have alluded, and have formed the subject of much discussion in China, where strong objections have been pressed against it by the British, American, and Prussian authorities.

Mr. Drouyn de Lhuys, speaking of the modification, introduced at Paris into the draught of regulations as originally sent from China, says: “Les étrangers habitant la concession Française ne cessent pas d’être justiciables de leurs juges nationaux même pour les simples contreventions de police et de, et continuent ainsi de jouir de la plenitude des droits qui leur sont assurés par les traités;” and the French consul general at Shanghae, in a letter to his English and American colleagues of the 17th of September last, of which I enclose a copy, says that he was prepared, subject to the approval of his government to agree “que le constable, porteur du warrant, au lieu d’être obligé d’aller le faire viser au consulat de France, se rendit simplement auprès du chef de la police municipale Française pour le finirde lui donner un agent chargé de l’accompagner, et au besoin de lui prêter assistance pour assurer l’execution du warrant dont il serait porteur;” and further “que les consuls eussent l’option ou d’envoyer contresigner leurs warrants au consulat général de France, ou de l’addresser simplement au chef de la police Française pour qu’un agent accompagnat leur constable;” and lastly “que les agents Anglais ou Americains ne fussent pas estreints à cesobligations du moment ou un détenu s’échappant de leurs mains tout près des limites de la concession Française se réfugierait sur cette dernière, et que l’agent put prendre sans coupson prisonier sans recourir auparavant à des formalités’ qui pourraient non seulement â l’arrestation, mais peutêtre l’empêcher totalement.”

The French consul general, as the result of these admissions, proposed another form of words for the, 16th article, which, however, does not seem to have been agreeable to his colleagues, who proposed an amendment which the French consul general appears to have objected to. This counter proposition is presumed to be contained in the paper of which a copy is enclosed; and it appears to her Majesty’s government that if the article were altered in accordance with the spirit of this paper no further objection need be made to it; and they would be equally satisfied if the French government should admit that the article is to be interpreted in harmony with it.

The most satisfactory course would indeed be that as set forth in the paper which is enclosed. The French government should admit that they make no claim of right to interfere with the regular warrants issued by the competent authority of the other treaty powers, the latter agreeing, as a matter of courtesy, to have their warrants sanctioned by the French authorities; but her Majesty’s government will be prepared to accept the arrangement proposed by the French government on the distinct understanding that its acceptance does not involve an admission by her Majesty’s government of any right on the part of the French authorities to interfere with regular warrants issued by competent authorities of the British government or any admission of territorial right in France to the French settlement at Shanghae.

Your excellency will communicate a copy of this despatch to the Marquis de Mortstier, and her Majesty’s H. M. R. E. at Washington and at Berlin will be instructed to make a similar communication to the government to which they are accredited.

I am, &c,

STANLEY.

His Excellency the Earl Cowley, G. C. B., &c., &c., &c.

Papers accompanying copy of Lord Stanley’s despatch No. 156, of April 22, 1867, to Earl Cowley, copies of which must be in the American State Department:

1. French consul general Viscount Brénier de Montmorand to Messrs. Seward and Winchester, Shanghae, September 17, 1866, (see the following No. 2.)

2. Hon. W. H. Seward to Mr. Burlingame, State Department, Washington, March 25, 1867.

3. Baron V. Gerolt to Mr. Seward, Prussian legation, Washington, March 11, 1867.

4. Mr. Seward to Baron V. Gerolt, State Department, Washington, March 25, 1867.

[Memorandum.]

Projet Seward and Winchester.

The consul general of France agrees to withdraw Article XVI of the réglement pending the approval of his government, and it being admitted that there is no claim of right to interfere with the execution of regular warrants issued by the competent authorities of the other treaty powers, the consuls of the United States. Prussia and England are willing, in view of the foregoing, as matters of. courtesy and convenience, either to send their warrants to the French consulate general to be countersealed, or to direct the officer charged with their execution to exhibit the same to the superintendent of police in all cases where the doing so shall be possible without defeating the execution of the warrant.

I have read, according to your wish, the despatch of M. Drouyn de Lhuys with reference to the organization of a municipal system in the French concession, and also the rules which have been published under which that system is to be inaugurated. I agree with the French minister in thinking that a fusion of the two settlements is impracticable, and I am not surprised that the French government should decline to sanction the suggestion.

Whatever may have been expedient and practicable years ago in the infancy of the settlement, when the Chinese first set apart the three sites for the residence of French English, and American, it is out of the question now to expect the French, after years of separate organization, to merge themselves and nationality; for that would be the result in any such cosmopolitan scheme. Practically and on a small scale it is asking them to commit quoad Shanghae an act of political suicide. But apart from the reasons so clearly and frankly given by M. Drouyn de Lhuys, in which I entirely concur, I think that the ideas of the people of the two countries upon questions of judicial and executive administration are so essentially different that any attempt to include them under one system would end in failure, and in failure the more to be regretted because it would be the result of jealousy and wounded susceptibilities.

I have also read the “réglemens.” They seem to me, without exception, unobjectionable, and although they will require elaboration, yet, if they are acted upon, and the details of administration which will be necessary are devised in the spirit of and in accordance with the views expressed by M. Drouyn de Lhuys in the despatch to which I have referred, I do not think that exception ought to be taken to them either by those foreigners who have for their own purposes thought fit to buy property or to reside within the limits of the French concession, or by their national authorities.

The 16th article, however, is objectionable. It assumes to limit the action of foreign authorities over their own subjects on what is, by the clear statement of the French minister himself, Chinese soil. If, as cannot be doubted, the proper authorities of all the treaty powers have full power according to their own laws to summon, arrest, or otherwise put in force their consular or judicial sentences against their own subjects anywhere in China without asking for or requiring the permission of the Chinese authorities, it certainly does not lie within the province of any foreign authority to limit the exercise of this power. The assumption of such a right by a foreign power involves an idea which M. Drouyn de Lhuys distinctly repudiates of territorial sovereignty. It says in fact, “no other power shall exercise authority over any one on this particular bit of soil, and if it seeks to do so it must first get the permission of the French authority.”

The French Emperor could say no more with reference to France, but as the French concession is no more France than the English concession is England, such a power ought not to be assumed. It trenches on the rights secured to other nations by treaty. It limits the privileges conferred by treaties and excepts a certain portion of Chinese soil quoad French subjects resident upon or resorting to it, from the exclusive jurisdiction which in China the authorities of every treaty power have over their own subjects. This I submit it is not competent for a foreign power to do. But while I object to the insertion of such an article in any edict, code or regulation by which one power seeks to provide for the government of its own subjects in China, as for the maintenance of good order within the limits set apart by the Chinese government for the residence of such subjects, I recognize fully the value of a mutual understanding between the executive officers of the different treaty powers that they should agree to act in accordance with the spirit of this article. But there is a great difference between a mutual agreement, come to in the practical interests of good order and to prevent collision between subordinate authorities, and the enunciation of a law by one power affecting the rights and privileges of other powers; and I would therefore suggest that the French government should be asked to alter this article to something like a direction to the French consul general “to arrange with the authorities of the treaty powers for the execution of all warrants of arrest for the seizure of goods or the enforcement of judgments and sentences against their respective subjects resident within the limits of the French concession, such arrangements to be reciprocal and in the sole interests of good order, and for the purpose of avoiding all possibility of collision between the subordinate officers of the different authorities.” Each warrant might be simply countersealed with the seal of the French or English cousulate, as the case might be; but the actual execution of the warrant should be left to the officers of the authority issuing it. With this exception I see no objection to the réglemens. They seem to me to be formed in a spirit of fairness to foreign subjects, who it must be borne in mind have voluntarily located themselves within the French concession, or, to use another form of expression, on that portion of the soil of China upon which the French government have implicitly undertaken (in consideration of the privileges conferred by treaties) to preserve order and good government. This order and good government is to be maintained according to French ideas of what they both consist in, and no foreigner has any right, in my humble judgment, to question their propriety. If the French infringe on the rights of the sovereign of China, it is for him to remonstrate, and, except as such infringement may affect ourselves or our rights, not for us. Moreover neither the French nor the English nor the American governments, (?) looking at the practical interpretation which necessity, expediency and events have obliged each of them to give to the treaties with China, are in a position to take up the quarrel, if indeed any exists or is likely to exist on the part of the Emperor of China; for each one of them has more or less and from pure necessity infringed his strict rights and assumed powers never directly conferred or naturally arising out of treaty stipulations. In this respect the mote in the eye of our French friends is not so very much larger than the beam in our own eye.

E. HORNBY.

Nagasaki, August 14, 1866.