No. 26.

Mr. Low to Mr. Fish

No. 51.]

Sir: By the terms of the French treaty of 1858 with China, the time has how arrived for its revision, in case one or both parties demand it. A few months since the chargé d’affaires of France gave formal notice that it was the intention of his government to demand a revision, the particular points of which would be made known at the proper time.

In communicating these facts to me verbally, Count Rochechouart appeared to be anxious to enlist the aid and support of all the treaty powers, so far as practicable, to the end that such modifications of the old concessions might be made, and such new ones obtained as would prove beneficial to all countries having intercourse and commercial relations with China.

Before committing myself to any definite course of action, I asked, as a preliminary step, that he would give me, in writing, a short memorandum of the alterations he thought necessary and practicable, that I might be able to consider the matter intelligently, and, if necessary, communicate with my Government, with a view to asking instructions. He accordingly addressed me a note, in which these points are briefly stated, a translation of which I beg to inclose herewith.

In the conversation referred to, I was informed that, prior to the rejection by the British government of the convention of 1869, an agreement had been come to between France and England, by which joint action would be taken in the matter of treaty revision under and by virtue of the stipulation contained in the French treaty.

What effect the war and the overthrow of the government of the empire may have upon such an arrangement, if made, you can judge of better when this reaches you than I can at this moment.

In order that you may be in possession of my views, based upon the best information I have been able to gather, I beg, most respectfully, to offer some suggestions upon the several points raised by the French chargé d’affaires.

First. The question of audience.

In my opinion, it is unwise to raise or discuss this question until the Emperor attains his majority. The government of the empire being the same now that it has been since diplomatic relations were established at Peking, and as all foreign governments have, up to this time, waived the right of audience because of the Emperor’s minority, this course should be continued until a valid reason can be assigned for a change. An earnest attempt to effect a change now would be likely to result in injury instead of benefit.

It would, I think, be quite impossible for the regency to enter into any engagement by which the Emperor would feel bound to grant audience to the foreign representatives at any fixed date in the future. It is doubtful if the Emperor would consider himself bound by such a contract, if made; and any attempt of the kind by Prince Kung and his associates would arouse all the hostile reactionary forces in the capital and in the provinces to resist the innovation.

In considering the propriety of insisting upon this point now, an estimate should be made of the advantages or disadvantages likely to result from an immediate change in the government, and also of an entire change in the personnel of the Foreign Office.

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If a solution of the problem be insisted upon now, and the Chinese conclude that there is no way of evading or postponing the matter, it would result, undoubtedly, in the immediate setting aside of the regency and bringing forward the young Emperor, a youth scarcely fifteen years of age, to assume the duties and responsibilities of sovereign de facto; thus throwing upon him the responsibility of acceding to, or refusing to comply with, the demand. What he would do under such circumstances cannot be conjectured with any certainty.

From the meager knowledge we have of this youth and his surroundings, I infer that he is being trained, in the mode pointed out by Confucius, by tutors who have seen little and know less of foreigners or their relations. It is altogether likely that the views and feelings of these people would, if known by us, be considered anti-progressive and reactionary, and their influence with the Emperor could not be otherwise than harmful.

Their opinions would be sought as a guide instead of those of Prince Kung and the members of the Foreign Office, and when a difference of opinion occurred, the former would outweigh the latter. And, besides, there are to be found in China, as in every other country, men anxious to obtain place and power, who would resort to every kind of artifice and intrigue to supplant the present officials in the good opinion of the Emperor, the result of which, if successful, would be to displace Prince Kung and his associates, and fill their places by new men, conceited and supercilious, ignorant of their duties and obligations. It would require a war and years of experience to teach them what the present officials have already learned.

In view of these considerations, I would advise patience on the part of all foreign governments. It is the part of wisdom to hold fast to the men now in power, until more mature years will insure a sounder judgment to guide the young Emperor, when he emerges from his seclusion to assume the responsibilities of an actual sovereign.

There will be no loss of dignity by continuing for a few years longer the course pursued for the last ten; and besides, if the question be postponed until the Emperor becomes of age, according to his own laws and customs, there will then be a distinct and definite ground for making the claim without regard to treaty, which will be recognized as valid by the civilized world. It will also furnish a plausible excuse, if one is needed, for conceding to a demand which can no longer be postponed or resisted.

But while arguing in favor of postponement, I am entirely opposed to abandoning or giving it up without a struggle.

When the time comes for the Emperor to assume his duties de facto, whether it be sooner or later, my opinion is clear and decided that it will be the duty of all foreign governments to demand for their representatives the same rights, privileges, and courtesies that were accorded to the diplomatic representatives of China, when they visited the courts and capitals of Europe and America; and in case of peremptory refusal, I should not hesitate to advise the withdrawal of legations from Pekin, and a resort to such other measures as might be found necessary to enforce a compliance with the demand.

If it is expected that the plan now inaugurated shall be carried out—treating China as one nation, and the imperial government as the only responsible power—it is absolutely necessary that the rights, privileges, and immunities of the diplomatic corps, customary in all civilized and enlightened countries, shall be recognized by the supreme authority of China.

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No one thing would do more to disabuse the minds of the people of their absurd pretensions of superiority over all other peoples, and of the divine right of the Emperor to “rule all nations, whether within or without.” Nor do I believe that a firm demand, made at the appropriate time by all the treaty powers, will meet with a refusal.

There will be no need of elaborate regulations in regard to the forms and ceremonies. A simple declaration to the effect that the usual forms customary in the United States and Europe shall be observed would be ample.

Second. The right to place salaried consuls at any point, either on the coast or in the interior, and that any place where such a consul resides shall be open to foreign trade.

This is a loose proposition, and one that never will be assented to by the Chinese government unless driven by force into submission. Indeed, it is doubtful whether, in the interest of foreigner or native, it ought to be. If M. Rochechouart means that when France or any one treaty power chooses to place a consul at any point other than those already open to trade, the place shall be considered open to the residence and trade of all countries having treaties with China, which contain the “favored nation” clause, whether they have consuls or not, does not seem clear. If such is a correct interpretation of his meaning, (and I think it is,) the demand is unjust.

The Chinese government having, by treaty, yielded jurisdiction over the persons of all foreign residents upon its soil, so that it cannot punish them even by fine, it is obligatory upon all treaty powers to provide a mode of punishing their citizens and subjects for infractions of treaty and regulations, and it is but a simple act of justice and good faith that their laws should be made effective for this purpose.

I regret to be compelled to say that a due observance of this portion of treaty obligations has been too much neglected by nearly all foreign governments, of which the Chinese have just cause of complaint. The United States have done as well or better than most governments, (England excepted;) at the same time, candor compels me to say that we have not performed our duty; and if Congress could see clearly the anomalous condition of things where ex-territoriality is claimed and exercised, as is the case here, I feel quite sure there would be no delay or hesitation in providing, through a more perfect consular system, the means of carrying out honestly and in good faith our part of treaty engagements. But if we have failed in part to do our duty, France has done worse. She has salaried consuls at Canton, Foo-chow, Shanghai, Hankow, and Tientsin only, while at Swatow, Amoy, Ning-po, Ching-kiang, King-kiang, Che-foo, Newchwang, and on the Island of Formosa, there are either merchant consuls or none at all. Generally at these ports last named France is entirely unrepresented. It is true that the trade of France is small, amounting only to one per cent. of the aggregate, and, therefore, expensive consular establishments at all the ports may appear to the government quite unnecessary. But if her trade will not justify the expense of consuls at the ports already open to trade, what plausible argument can be urged in favor of sending salaried consuls to other points? England might, with some propriety, urge such a point, but with France the case is entirely different. Nor would France or any other country be likely to agree to keep continuously salaried consuls at such points, in case the demand was acceded to. The selection of any point in the interior for trade would be an experiment, and experience might prove its inutility for the purpose. In case the consul should be withdrawn, would the place where he resided be closed to trade? With such an [Page 92] understanding in the beginning there would be little inducement for a permanent outlay of capital by merchants in order to test the question fairly, in which case it would rest with peddlers, and not merchants, to determine the eligibility of such points for foreign trade.

I see so many objections to such a treaty provision, and so many chances of its proving a delusion and a snare, that, unless the proposition can be more definitely defined, I should not be inclined to favor it.

If the exact truth could be ascertained, it would be found, I expect, that the whole idea of the French chargé in this scheme is the better protection of the French missionaries; and were it possible to obtain the concession asked for, these additional consuls would be, to all intents and purposes, agents of Roman Catholic missionaries. Their official positions and influence would be used to sustain missionary claims and assumptions, some of which have been described in a former dispatch. So far as trade is concerned, it may well be questioned whether the presence of French consuls in the interior would not prove a damage instead of a benefit.

Third. The right to navigate by steam all water-courses that will float a vessel drawing ten feet or more. This, if put in some more definite form, of which it is susceptible, would be a great advantage to foreign trade, and a benefit to China. If granted it would open the Yang-tsze River about three hundred miles above Hankow, and possibly the river Han and the Poyang Lake. The former would be quite certain, but of the latter there would be some doubt. Our scanty information hardly justifies a decided opinion upon the question of the navigability of the interior water-courses of this country, their maximum and minimum depth of water, &c.

The carrying trade is one of the most important interests to foreigners, and any concession which will increase it will prove of great value to foreign commerce, and also be a benefit to the natives. The Chinese merchants avail themselves of steam transportation because of its greater speed and certainty, and less risk. This the officials begin to see and appreciate also. An illustration of this may be seen in the fact that during the year 1870 a considerable portion of the tribute rice and grain, which comes from the provinces annually to Peking, was brought in foreign vessels and steamers to Tien-tsin. This is the first experiment of the kind made by the government. It proved so satisfactory that it is expected a much larger quantity will be transported in this way during the present year.

The interests of foreign merchants are chiefly imports and exports of merchandise, and carrying trade on the coast and in the interior. Up to this time the latter is confined to the river Yang-tse from Shanghai to Hankow, and the Pei-ho to Tien-tsin. Beyond these three branches of trade there is little in which the foreign merchant can compete with the native. Experience proves that the Chinese will do most of the local and internal trade, and it is quite according to reason that it should be so. Among themselves there is a credit system, regulated by law and custom, and thus rendered quite safe. As between natives and foreigners, it would be hazardous to the latter; and, besides, the expenses of a native merchant are so trifling that he can conduct a business successfully upon profits that would be ruinous to a foreigner.

In my opinion the extension of trade by steamers, particularly inland, is, on the whole, the most important of all the schemes that are put forward for “opening up” China, and one that is open to less objections than any other. It is even more important to American merchants than the extension of the import trade, and will continue to be until [Page 93] the cotton manufactures of the United States can compete with those of Great Britain. If any additional privileges can be obtained in the direction indicated, it is worthy of an earnest effort to try and obtain them.

Fourth. A mixed court for the trial of civil and even criminal cases. Several years since the experiment of a mixed court for the trial of offenders accused of petty offenses was inaugurated at Shanghai. It was hoped that experience would prove its adaptability for the trial of grave offenses, so that ultimately ex-territoriality might be given up. Its success thus far, I regret to say, does not warrant any extension of its jurisdiction, or the establishment of similar ones elsewhere.

The laws, customs, and forms of legal procedure, in the United States and England, are so radically different from those of China, that the attempt to form a mixed code for the trial of criminal offenders appears to me entirely impracticable. Even if the Chinese would consent to it, neither England nor the United States could do so with due regard to the welfare of their own people. In our country a person accused of crime is, in law, considered innocent until proved guilty; in China the reverse appears to be the rule. In the United States and England the guilt of the accused must be proven by competent witnesses; in China the accused is examined by the magistrate touching his guilt or innocence, and, in order to get at the truth, law and custom sanction the application of torture for the purpose of extorting truthful confessions. So barbarous are the forms of Chinese law and justice that I should dislike very much to see American citizens charged with crime brought before a court in which any trace of the criminal law and justice of China could be found.

There may not be such radical differences between French and Chinese law and mode of procedure, and for these two countries it may be possible to arrange a mixed code or a mixed court; but so far as the United States are concerned, the thing is practically impossible until this government and this people are much further advanced in our form of civilization.

Fifth. A mixed commission to manage and expend the revenue derived from “tonnage dues.”

By this is meant, I presume, that the Chinese government shall place the revenue derived from this source in the hands of a mixed commission composed entirely of foreigners, to be expended in such manner as may seem proper.

It is claimed, with justice, that the revenues derived from this source shall be exclusively devoted to building and maintaining light-houses, light-ships, and buoys, and the removing of obstructions to navigation, although there are no stipulations in the present treaties expressly saying that it shall be done. No practical step was taken in the matter until after all the indemnities to foreign nations were paid up; and as the United States were receiving a portion of this as well as all other revenues collected of their trade, on account of the indemnity due, it was difficult to take any step in urging the light-house matter upon the Chinese. I presume Great Britain and France were similarly situated, but of this I am not certain.

In 1867, this whole matter was placed in the hands of the inspector general of customs, who has had the entire management of it up to the present time. Several new light-houses have been built under his direction, and others are being constructed in England, or are on their way out. Whether all is being done that can be, with the means applicable for the purpose, or not, I am not aware. I am satisfied, however, that [Page 94] a good start has been made in a systematic and proper manner, and, unless it can be shown more clearly than I think it can be that Mr. Hart is not doing his duty faithfully, I should prefer to let the matter remain in his hands rather than intrust it to a commission.

The revision of the “three or four articles,” for the purpose of making them plainer, in which France alone is interested, refers, I presume, to the discrepancy in reference to the rights of missionaries, particulars of which were sent in my dispatch No. 40. In that matter no advice or aid of other nations will be asked or accepted if offered.

It is but natural that France should not desire to open the tariff to revision. The only thing in the trade in which that nation is interested is silk. The basis upon which the present tariff was arranged and settled was an average of five per cent. ad valorem. A specific duty was agreed upon for several things, silk among the number. The increase of the value of this article since the tariff was made has, however, reduced its rate of duty to about one-half of the rate agreed upon as equitable; hence it is for the interest of the French to let the tariff question remain without any disturbance.

To sum up the whole matter, there is nothing in the present scheme, as indicated by the French chargé, for treaty revision, in which the United States has any interest, or which would prove of any material advantage, except the extension of inland steam navigation. The audience question and the protection of French missionary interests are the only questions in which France has any special interest. The other claims are put forward to enlist the sympathy and aid of other countries in the revision, hoping by their aid to gain concession, which would add to her prestige and political advantage in this part of the world.

I have, &c.,

FREDERICK F. LOW.

[Translation.]

M. le Ministre: You have expressed a desire to know the demands which I have engaged my government to make from the Chinese government when the treaty of 1858 is revised. I have no objection to satisfy you, for I believe that the alterations are indispensable, and I shall be happy to learn that the other governments allied with China have decided also to demand them.

I place the solution of the question of the audience with the Emperor first, and the arranging a treaty of etiquette regulating the details of our official life in a manner honorable to our governments and to ourselves.

Second. I demand that we shall have the right to place salaried consuls wherever we judge proper, and that those cities where consuls reside shall also be opened to foreign trade.

Third. I demand the right to navigate with steamers all water-courses which will float a vessel drawing at least ten feet.

Fourth. I demand that a mixed code shall be adopted, by which commercial and civil cases, and even criminal, too, which may arise between the French and Chinese, shall be judged.

Fifth. Lastly, I demand that some change shall be made in the application of the tonnage dues. It would be well if the management of these revenues were intrusted to a mixed commission, as is the case almost everywhere else in the East.

In some things, relating to France alone, I ask that a clearer interpretation shall be adopted of three or four articles in our treaty, in the meaning of which there is some confusion. The motives which have led me to these conclusions are rather too long to be explained now, and, moreover, are all contained in a report which I addressed to my government on the 1st of July, a knowledge of which I am quite sure it would give most willingly. I may add, however, that if I have said nothing about the tariff, it is because I think it is now very liberal, and that it would be impossible, without injustice, [Page 95] to force the Chinese to reduce it more, and that to raise this question is to run a risk of exposing one’s self to counter demands as equivalents.

Receive, sir, the expression of my devoted regards, and high consideration.

ROCHECHOUART.