Mr. Burlingame to Mr. Seward
No. 69.]
Legation of the United States,
Peking,
May 21, 1864.
Sir: I have the honor to forward the letter and
circular (marked A and B) of Sir Frederick Bruce, in relation to the
jurisdiction claimed by his government over leased ground at the ports.
You will remember that in my despatch No. 36 I gave a history of my
efforts against all pretensions of jurisdiction [Page 380] over persons or territory under the name of
concessions, and stated the accord at which I had arrived with my
colleagues, and especially with Sir Frederick Bruce, who wrote the very
able letters which I sent you against the whole doctrine of concessions.
I am happy to say that my colleagues have been sustained in their views
by their respective governments. But it seems that a British consul, in
one at least of the new ports, either not understanding the doctrine, or
believing that it did not apply to spaces of land leased by the British
government, undertook to exercise jurisdiction in defiance of it over
leased land. This led to another full and frank exchange of views on the
subject between Sir Frederick and myself, terminating in the request to
which this letter is an answer, and in his sending forth the circular
annexed, in which the non-concession doctrine is made to apply to leased
as well as other lands.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward,
Secretary of State, &c., &c.,
&c.
A.
Sir Frederick Bruce to Mr. Burlingame
Sir: In reply to the request of your
excellency for information as to the jurisdiction her Majesty’s
consuls are entitled to exercise over persons inhabiting lots
situated within the limits of ground leased by the British
government at the ports, I have the honor to enclose a copy of a
circular addressed by me on this subject to her Majesty’s consuls. I
may mention that this expedient was suggested by a desire to avoid
the state of things which has grown up at Shanghai. The land in the
foreign quarter at that place being bought direct from the Chinese
proprietor, no conditions have been made binding on the purchasers.
The consequence has been a large influx of Chinese tenants in the
midst of the foreign population and the destruction of the
exclusively foreign character which it was of importance to have
preserved for the foreign settlements. It was also considered
advisable, from the experience we had previously had of land
difficulties, to secure a footing at once at the newly-opened
ports.
But I need not say that any pretensions to exercise jurisdiction over
foreigners residing within these limits are totally unfounded, and
that her Majesty’s government would not approve of these leases
being extended so as to keep land unoccupied, and thereby interfere
with the trading privileges of other nations.
I have the honor to be, sir, your excellency’s most obedient, humble
servant,
Hon. Anson Burlingame,
Minister Plenipotentiary of the United States
in China.
B.
[Circular.]
Sir Frederick Bruce to her Majesty’s consuls in China
Sir: I am anxious to prevent
misapprehension as to the jurisdiction that may be claimed by
British authorities within the limits of settlements formed at the
ports of China on land leased by her Majesty’s government for the
[Page 381] purposes of trade. The
lease to the British government gives no jurisdiction over the
territory itself. The land remains subject to the sovereignty of
China, and no further jurisdiction can be exercised over British
persons and property within it than can be exercised over them at
any open port where there has been no special lease of land for
their benefit. For the authority exercised in her Majesty’s name is
derived from the treaties with China, and is not affected in any way
by the grant of a lease. The conditions of the subleases have been
drawn up, in some cases, so as to confine the sale of lots to
British purchasers exclusively, with power to the consul to re-enter
should these conditions be infringed. There is no objection to
conditions of this nature, provided that the land so leased does pot
exceed what is required for the bonafide accommodation of British
traders. But if a larger tract is taken than will be sufficient to
meet the demands of the trade that may reasonably be expected to
spring up, it is not desirable to insist on such conditions, for it
would be a harsh proceeding towards the Chinese, and one
inconsistent with that friendly consideration for the general
interests of trade which Great Britain, in her dealings with China,
has been careful to show, to keep any considerable tract well suited
for trade unoccupied and out of the foreign market. Where the number
of British commercial establishments is not likely to be large, or
where the prospects of a remunerative trade are uncertain, it has
been found advisable not to prohibit the sale of lots to foreigners
other than Chinese. And this relaxation is for the interests of
British subjects and of trade generally, because a man is more
likely to buy land and build on it, as an experiment, when he has a
wider area of purchasers to whom, if he finds no sufficient opening
for his trading speculations, he may dispose of his property. In the
latter case it has been attempted to remedy the evils of a mixed or
imperfect authority by calling upon the foreign purchaser to execute
a deed binding himself to submit to British jurisdiction in police
cases, and in questions arising out of the clauses of the lease. To
such a deed, however, there exist insuperable objections. According
to the laws of most countries a man cannot, without the permission
of his government, withdraw himself from his natural and submit to a
foreign authority, and the attempts by the consul to exercise any
such jurisdiction might lead to serious protests on the part of
other governments; moreover, her Majesty’s government has not
empowered her agents in China to accept any such jurisdiction over
foreigners or Chinese, and it is not expedient or politic to advance
any such claim. The subjects of other nations, if entitled to buy
lots, must be dealt with exclusively by their national consuls, if
they are subjects of treaty powers; and if they are subjects of
non-treaty powers, it is for the Chinese government to devise a
means of making them obey the law. Her Majesty’s consuls acquire no
valid rights over them by reason of their living on a lot leased
from the crown, or in virtue of any engagement they may personally
enter into. Should there be an attempt to exercise jurisdiction over
a foreign lessee against his will, the legality of the proceeding
could not be sustained.
I am aware that this instruction may lead to some inconveniences; but
if it is found necessary to apply a remedy, care must be taken that
the remedy be one that is consistent with the principles herein laid
down.
Your obedient servant,
Her Majesty’s Consuls in China.
