Lord Stanley to Earl Cowley
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.[Page 196]
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 [Page 197] 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,
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.