[Inclosure in No. 2787.]
Mr. Denby to
Mr. Jernigan.
Legation of the United States,
Pekin
,
July 30, 1897
.
Sir: I am in receipt of your dispatch No.
358, of the 19th instant, wherein you make some observations
touching the rights of foreigners at Hangchow and Soochow.
As to the ports mentioned, we derive our rights under the
favored-nation clause from the recent Japanese treaties by virtue of
which they were opened.
If the settlement of our rights depended on the original Shimonoseki
treaty there would be little doubt as to the proper solution of the
questions involved.
Article VI, subclause 1, of that treaty provides:
1. The following cities, towns, and ports, in addition to
those already opened, shall be opened to the trade,
residence, industries, and manufactures of Japanese subjects
[Page 72] under the same
conditions and with the same privileges and facilities as
exist at the present open cities, towns, and ports of China:
- (1)
- Shashih, in the province of Hupeh.
- (2)
- Chungking, in the province of Szechuan.
- (3)
- Soochow, in the province of Kiang-su.
- (4)
- Hangchow, in the province of Chekiang.
The contention of the foreigner has always been that under analogous
treaty stipulations the towns and cities named, respectively, were
opened to trade and residence, although this result has not always
happened, owing to the establishment of settlements near certain
cities and the gradual abandonment of the cities as places of
residence. This has occurred at Fuchau, and practically wherever
there is a concession. For this treaty see Chronicle and Directory,
1897, page 105.
We will now look at the treaty of commerce and navigation made with
Japan July 21, 1896, page 359, same book.
Article IV of that treaty reads as follows:
Japanese subjects may, with their families, employés, and
servants, frequent, reside, and carry on trade, industries,
and manufactures, or pursue any other lawful avocations in
all the ports, cities, and towns of China which are now or
may hereafter be opened to foreign residence and trade. They
are at liberty to proceed to or from any of the open ports
with their merchandise and effects and within the localities
at those places which have already or may hereafter be set
apart for the use and occupation of foreigners. They are
allowed to rent or purchase houses, rent or lease lands, and
to build churches, cemeteries, and hospitals, enjoying in
all respects the same privileges and immunities as are now
or may hereafter be granted to the subjects or citizens of
the most-favored nation.
I understand that it is under this last clause that China claims that
the right to buy land is restricted “within the localities at those
places which have already or may hereafter be set apart for the use
and occupation of foreigners,” and the right to rent and build,
etc., is also confined to such localities.
The first and last clauses of the Article IV cited are not
inconsistent or repugnant. The former grants the rights of residence
in all the towns and cities that are opened, with the broadest right
of trade, etc., and the latter grants the same rights to the
localities especially set apart to foreigners.
There is no language in the last clause qualifying the former
clause.
How can a person reside and carry on business in a place in China
unless he can either buy or rent a house? All the treaties granted
the right of residence and of renting and buying land in the ports
opened to foreign commerce. (See Art. XII, treaty of 1858, United
States with China.)
It seems to me, therefore, that we must take the ground that the
second paragraph of Article IV is simply cumulative.
As the rights accruing from what is called a “concession” had not
been specifically stated, the last clause, defining such rights, was
added.
On the general question of foreign right of residence in cities
opened to trade, it may be said that to-day foreigners reside and do
business in the native cities of Chungking, Ichang, Chinkiang, Wuhu,
Kiukiang, and Peking, though it is not technically open to foreign
trade.
For various reasons it will take some time to settle these questions.
In order that we might not appear to waive any right, I deem it best
to instruct you to protest against the Soochow proclamation.
In the matter of the residence of the insurance agent at Hangchow, I
must insist that he has the right to reside in the city. I hope,
however, that he will be prudent and that he will avoid any occasion
for a riot.
[Page 73]
I have informed the Yamên that I will not consent to the expulsion of
the American from Hangchow, and that the question will be submitted
to my Government as soon as I can learn the grounds on which it
claims the right to exclude foreigners from Hangchow.
I am, sir, etc.,
