Sir Rutherford Alcock to Mr. Winchester
Sir: I have received your despatches, Nos. 62 and 82, of the 20th July and 20th October, the first transpitting the revised code of law regulations so long under discussion, and the second enclosing copy of a communication from the chairman of the committee of land renters in reply to my despatch, No. 44, of the 16th July last, inviting an expression of opinion as to the views it embodied.
To your despatches, together with their enclosures, I have given the careful consideration which the importance of the subjects discussed, the object to be attained, and the pains and labor bestowed by the council in their reply well entitle them. And before proceeding to the examination of the principal points brought forward in the several documents, I may state, generally, that, with one exception, which I will specify more particularly hereafter, I concur in the views so. well and temperately advocated by the chairman in his reply to you of the 17th October. I trust, therefore, the time is now approaching when the main object [Page 446] of the council—the adoption of a practical scheme of municipal government for one of the largest and most important cosmopolitan settlements in the east—may be secured.
It may not be possible to give it all the symmetry and completeness of like institutions in the western hemisphere; but that it should be effective for all municipal objects is more essential than theoretic perfection in its constitution. Considered in the abstract, and apart from all circumstances of the case, any municipal scheme for the government of a mixed population in Chinese territory, not emanating from and controlled by the Chinese executive, must be considered irregular and not without danger, as a precedent, to the injury of the government of the country. But such matters are not to be judged theoretically, and in this common sense tells us that what is wanted is not to establish an abstract principle, but to provide substantially against constantly recurring danger and difficulties of a plain and tangible nature. And the fundamental principle of any effective scheme of municipal government for a settlement within the Chinese dominions, with a mixed population of foreigners and natives, is so plain and indisputable, and rests upon so broad a basis of treaty rights and international law, that we may hope a close adherence to it will solve all difficulties.
By the exterritorial clause in the several treaties with western powers, no subjects of these in Chinese territory are justiciable or amenable to any jurisdiction but that of their own authorities. So in like manner no foreign power can claim jurisdiction or authority over Chinese subjects, unless such power be expressly delegated by the Emperor of China.
It follows, necessarily, from these principles, that no municipal regulations or government can be operative upon the subjects of the different nationalities which have not the authority and sanction of law given by the state to which they severally owe allegiance; and when, as at Shanghai, Chinese and foreigners of many nationalities are mixed together and dwell within the same limits, it is essential that the consent of all be obtained to make such regulations generally obligatory or binding.
To obtain this cousent, by which a delegated power within certain limits may be given to an executive council or committee, is, therefore, the first step towards any practical scheme of municipal government.
That this delegation should give the right to tax, and the power, by legal process before competent authority, to enforce payment on all residents, without exception and whatever their nationality, is the second.
Whatever else may be required or held desirable is matter of administrative detail rather than of principle, and of subordinate importance.
Hitherto there has been a vital defect in the want of this common consent among western powers, and hence the inability complained of by successive municipal administrations to give effect to the votes of the land renters and the most necessary measures for the peace, order, and sanitary state of the settlement on the banks of the Hwangpo. This state of affairs has been indefinitely prolonged by the hopes entertained of establishing one administration, as contemplated in the regulations of 1853, for the whole of the foreign settlements. The decision of the French government, recently promulgated against any fusion of the quarter lying south of the Yang-king-pang, and which has practically been exclusively under a French régime for a long period, removes one great cause of embarrassment and delay, in so far as the municipal scheme for all north of that boundary is concerned. Two different and independent municipal administrations may very well exist side by side for different settlements, in good harmony and without conflict of jurisdiction, if the first principles already adverted to be carefully adhered to. And the several governments may in their discretion accept different systems of municipal administration for their respective subjects on opposite sides of the Yang-king-pang without prejudice to these or to their own exterritorial rights of jurisdiction as defined by treaties and the law of nations.
In agreeing to differ, so far as mere forms or modes of attaining the same object are in question, a perfect accord, not otherwise attainable, may be secured. M. Brenier de Montmorand, the French consul general, indicates this conclusion, I think, in his memorandum attached to the minutes of a meeting of the consular corps, at Shanghai, on the 12th July, where he reserved his vote generally on the land regulations until his colleagues could intimate their concurrence in those established by his government for the settlement on the other side of the Yang-king-pang. A reciprocal interchange of consent to two codes applying to different settlements or quarters by the western powers, with the concurrence of the government of the Emperor of China as territorial sovereign, offers a ready means of terminating all further discussion or delay, except in so far as well-founded exception may be urged against any particular wording or provision of the said regulations.
I propose, therefore, at once to transmit the present revised code of land regulations to her Majesty’s chief secretary of state for foreign affairs, in concert with my colleagues, the representatives of the United States of America, Prussia, and Russia, who will adopt a similar course, with a recommendation of approval, and the interchange between the several treaty powers of such formal acceptance as shall render them, with the concurrence of the Emperor of China, binding and obligatory on all over whom they severally have jurisdiction.
The question of such interchange, in regard to the French réglement recently published, has already been referred, in like manner, in accord with M. de Bellonet, the chargé d’affaires of H. I. M the Emperor of the French.
In reference, therefore, to the first and most essential step towards their final adoption, [Page 447] nothing further remains to be done either at Shanghai or here. The consent of the Chinese government cannot be officially asked while their acceptance by the treaty powers is in suspense, but I see no reason to anticipate any serious difficulty in that quarter.
As regards the expediency of any effort to obtain a charter of incorporation, I agree with the chairman that, provided the required powers to levy taxes and give effect to the land regulations generally be obtained, it matters little whether this be done by the formal sanction of the several treaty powers, giving them the force of laws, or by an instrument of a more high-sounding title; and under the circumstances it may be well to proceed with the formal sanction of the land regulations as a basis, without raising any further question tending to prolong discussion.
Before Concluding, it is fit that I should advert to the various suggestions offered in regard to certain secondary, and, in some sense, complimentary measures which the committee of land rents consider more or less essential to the satisfactory working of their scheme of municipal government under the revised code of regulations.
These may be summed up under four heads:
1. The appointment of a Chinese magistrate to preside over the mixed court, with sole jurisdiction over the native population in the settlement.
2. The establishment of an effective river police at the cost of the Chinese, and the extension of municipal jurisdiction over the stream.
3. A substitute for the tax hitherto levied, as “wharfage dues,” to be provided either by the payment of a contribution from the imperial customs at Shanghai, equivalent to one-tenth of one-per cent, on the value of all goods which pass the foreign department in the customs at the port, or to be levied in addition to the present maritime dues if sanctioned by the treaty powers.
4. The admission of a Chinese element into the municipal council.
In reference to the first of these suggestions I am happy to state that preliminary negotiations with the government here have already prepared the way for its adoption. The expediency of such an appointment has been fully recognized, and it only remains to arrange the best means of meeting the additional expense, and certain administrative details in regulating his relation to the Taotai as his superordinate.
The second proposition involves greater difficulty, both in principle and practice. The council desire an extension of jurisdiction beyond the low-water line over the river. This is precisely what the French appear to have claimed with manifest confusion and conflict of jurisdiction. It has already formed the subject of complaint and remonstrance, as fraught with injury to the common interest. If a foreign municipal jurisdiction within the settlements, over all the residents, meets with serious obstacles from the diversities of nationalities, and the many anomalies inseparable from it exercise in such a community, the extension of a similar rule over a Chinese inland water and a great river-course, with its constantly changing occupants and traffic, would obviously be attended with still greater difficulties, and be open to far more serious objections. No treaty has taken from the Emperor of China, or given to any foreign power, as far as I am aware, jurisdiction over the river-courses of his empire. The exterritorial clause no doubt is operative as regards subjects of treaty powers in the waters of China, as on shore, but even these privileges are subject to considerable limited ex necessitate rei in regard to ships and goods afloat. The right to protect the customs revenue is inseparable from the control of the ports and rivers where trade is carried on, the maintenance of a fairway for ships of all nations, and the establishment of harbor regulations, which must be equally obligatory upon all. Chinese, as well as foreigners, owe duties which devolve upon the government of China, and can scarcely be fitly delegated to a municipal council of foreigners, even with a Chinese element. And if not to one, still less to two, occupying conterminous settlements on the banks of a river on which there is an enormous traffic both native and foreign. Indeed, the more the question of river jurisdiction is examined, the more insurmountable appear the objections to any pretension to its delegation. It might not be impossible to devise a concurrent instead of a conflicting jurisdiction to be exercised by two municipal councils of cosmopolitan character; but the arguments against the expediency and the general policy of such an arrangement, assuming it to be practicable, with the free consent of the Emperor of China, are too strong and unanswerable for any proposition to that effect to be entertained,
The Chinese government have been in a great degree relieved, partly by the force of circumstances beyond control, and partly by the desire of the foreign communities settled in the country, from obligations and duties in respect to the maintenance of peace, order, and good government in the foreign settlements, which undoubtedly belong to the territorial sovereign. But there are not wanting those well versed in the history of foreign relations with China and the Chinese people, who, looking at the questions from an international point of view, and with the light of past experience, contend earnestly that every step in this direction has been an injury to the Chinese government, and a mistake as regards the true interests and position of foreigners within the dominions of the Emperor. Whatever may be the amount of truth in this conclusion, the extension of the same principle, taking out of the hands of the legitimate authority the jurisdiction of the ports and rivers to transfer it, with all its onerous obligations and duties, to a continually shifting and irresponsible council of [Page 448] foreigners, can hardly be viewed otherwise than as a proceeding of doubtful wisdom, and in the highest degree inexpedient.
A more effective assertion of rightful jurisdiction on the part of the Chinese government, and a better organized river police, in competent hands, in connection with the imperial customs, would, on the other hand, be so obviously a gain, both to Chinese and to foreigners, that no insurmountable obstacle to the adoption of measures to that end should be anticipated. If anything could raise such obstacles, it would be the pretension of any municipal council in foreign lands to extend their jurisdiction from the shore to the water way. The duty and the expense both fitly belong to the territorial sovereign; and I believe neither the one nor the other can be delegated to any second power, without grave prejudice to all concerned.
The third proposition, to provide a substitute for wharfage or town dues, difficult of collection, and open to cavil, if not to serious objection, as being in effect a tax on trade not contemplated or sanctioned in the treaties, deserves serious consideration. If the Chinese government can be induced to take a large view of their obligations towards the foreign community, which has itself and for so many years supplemented the proper action of the Emperor at an enormous annual cost, they will hardly object to the principle on which such a proposal rests.
Nevertheless it is not to be overlooked that this is a proposal at one step to saddle the Chinese government with the whole cost of the large police establishment hitherto maintained by the foreign community, aided by taxes on the Chinese population within their limits. Whether the sum required be paid out of the customs revenue, or any other source, it amounts to the same thing, and the Chinese government, if called upon to make such payment, might well require not only controlling power in the constitution and management of the police force, but an account of all taxes levied upon Chinese subjects for municipal purposes, together with a determining voice both in the amount raised and its application.
There is a middle course open to both parties, however, not unworthy of consideration. Looking to the small and fractional nature of the tax now sought to be raised by wharfage dues for police purposes, and the uniformity and fairness of its incidents, the ease with which it would be collected by the customs, and lastly the benefit in common to be derived from its application, the several treaty powers might willingly consent to allow such minute addition to be made to the maritime duties now levied by treaty either at Shanghai alone, or wherever a majority of the foreign residents desired it at the other open ports, and this I will take upon myself to recommend.
As regards the fourth and last of these supplementary measures, the admission of a Chinese element into the council to represent the rights alike of the territorial sovereign and the natives located in the settlement, and subject to taxation in consequence, there can be no doubt that many advantages would result from its adoption. It is calculated to facilitate the collection of taxes on the native inhabitants without entailing an absolute veto or power of refusal on the part of the Chinese member of the council. In lieu of this it might be determined that in the event of a protest on his part there should be a right of appeal to the foreign representatives at Peking and the government, before any new levy, when opposed, could be carried into effect. It might possibly prepare the way for a commutation of all imperial taxes to a fixed rate for all natives located within the limits of the foreign settlement, which the municipal administration might furnish the means of collecting, without expense to the government, thus assuring them a certain revenue and without the costs of collection. This would more effectually remove many existing grounds of complaint, as to excessive or exceptional taxation applied to the Chinese domiciled in the foreign settlements, than any other course, however legislatively guarded from abuse.
You will transmit a copy of this despatch to. the chairman of the committee of land renters for their information, and assure them of my earnest desire, in concert with the representatives of other treaty powers, to secure the successful working of their matured scheme for improved municipal government. Your obedient servant,
C. A. Winchester, Esq., &c., &c., &c., Shanghai.