The circumstances of the question which had regard to the right of
residence at Soochow and Hangchow, two of the cities recently opened to
foreign residence under the treaty of Shimonoseki, of April, 17, 1895
(printed in Foreign Relations, 1895, pp
200–203), had been
presented in your previous dispatches, Nos. 2785, 2787, and 2789, and
were made the occasion of an exhaustive examination by the Solicitor of
this Department, with the conclusion that the circumstances would not
warrant insistence by this Government upon a contention for the
unrestricted residence of American citizens outside of those foreign [Page 77] concessions, unless the
privilege claimed by them be claimed for and conceded to the subjects of
Japan or of other nations, in which event this Government would be in a
position to claim it under the operation of the most favored nation
clause. This conclusion is reached by the necessary correlation of the
relevant article of the treaty of peace of April 17, 1895, with article
4 of the later China-Japan treaty of commerce and navigation, signed at
Pekin, July 21, 1896 (a copy of which was transmitted to the Department
with Minister Dun’s dispatch No. 430, dated Tokyo, December 2, 1896).
The comprehensive views expressed by you in your letter to
Consul-General Jernigan of July 30, 1897 (of which copy accompanied your
No. 2787), appear to have rested upon your cumulative interpretation of
the latter fourth article of 1896.
It now, however, appears from your No. 2794, of August 30, 1897, that you
have independently reached the views here entertained as to the
doubtfulness of the construction which you had theretofore placed on the
Shimonoseki treaty. A copy of the opinion of the Solicitor is,
therefore, inclosed for your information.
It is presumed that, in view of Japan’s action in not claiming for
Japanese subjects privileges of residence outside of foreign concessions
in the recently opened treaty ports, and of the reported disinclination
of Great Britain and other powers to raise such issue in regard to their
subjects, you will have appropriately modified your instruction to the
consul-general, reported in your No. 2785 of July 28 last, whereby you
directed him to enter protest with the Chinese authorities at Soochow
against their proclamation forbidding Chinese to sell land to foreigners
outside of the foreign concession at Soochow, where the case is the same
as at Hangchow.
[Inclosure in No. 1514.]
The Solicitor of the Department of State to the Assistant Secretary.
Department of State, Solicitor’s Office,
Washington, November 23, 1897.
In re the question whether Americans are entitled to reside at large
in the city of Hangchow, China, or whether said right of residence
and doing business is restricted to a certain district of said city,
the following view of the law is respectfully submitted:
Article 14 of the treaty of 1858 between the United States and China
provides that the citizens of the “United States are permitted to
frequent the ports and cities of Canton [and others named] and any
other port or place hereafter by treaty with other powers or with
the United States opened to commerce, and to reside with their
families and trade there.”
Article 6, clause 1, of the treaty of peace between China and Japan,
concluded at Shimonoseki, April 17, 1895, provides:
China makes in addition the following concessions:
The following cities, towns, and ports, in addition to those
already opened to the trade, residence, industries, and
manufactures of Japanese subjects, 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.
- Hang chow, in the province of Chekiang.
[Page 78]
Article 4 of the treaty of commerce concluded between China and Japan
July 21, 1896, provides:
Japanese subjects may with their families, employees, and
servants frequent, reside, and carry on trade, industries,
and manufactures, or pursue any other lawful vocations 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 and 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 land 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.
In a note dated July 28, 1897, addressed to Minister Denby, the
Tsung-li Yamên asked that instructions be issued to have the office
of the American Life Insurance Company removed from the city of Hang
Chow, stating that “at Hang Chow, in addition to the Japanese
settlement, a large tract of land has been set apart at the Hung
Chien Bridge as a trading place for foreigners; that the said
American has established in violation of treaty an office in said
city; that the trading port has been fixed and decided on; it is
situated at Hung Chien Bridge.* * * The land has been filled in,
roads made, police have been employed, and the banks of the river
repaired;” that this has been done for the purpose of treating
foreigners kindly, and giving them due protection in their business;
that foreign settlements are not a dwelling place for both Chinese
and foreign merchants, that they are separated, and hence peace and
quiet prevail among them) that a foreign settlement has been marked
off and limits defined at said bridge, and that said life insurance
company should open its office within the limits of said settlement;
that of foreign trading ports Shanghai is the oldest, over 50 years
old; that foreign merchants have never established hongs in the city
of Shanghai; that under the last clause of article 4 of the treaty
of commerce the right of American citizens is restricted within the
localities at those places which have already or may hereafter be
set apart for the use and occupation of foreigners.
Minister Denby’s contention is, first, that the said Shimoneseki
treaty confers upon American citizens the right to reside and trade
in cities opened by the Shimoneseki treaty pursuant to article 14 of
the said treaty of 1858; second, that the said commercial treaty
between China and Japan confers the same right; that article 4
distinctly confers that right, and the latter clause thereof grants
the same right in the localities which may be set apart for the use
and occupation of foreigners, and the latter clause is simply
cumulative, as all the old treaties contain the same right; that by
said article 6 the right of residence is guaranteed in cities which
are opened to trade in all treaties made between China and foreign
powers$ that the right of residence is allowed in many cities of
China, among which several are specified by name by Mr. Denby.
The only issue of fact made between Minister Denby and the Tsung-li
Yamên is the assertion of the Yamên that in the foreign trading
ports foreign merchants have never established hongs in the city of
Shanghai, which is cited as an example, and the contrary assertion
by Mr. Denby that this right of residence is allowed in many cities
of China, among which he names Ching Hiang, Kiukiang, and several
others.
For the purpose of considering this question the statement of fact
made by Minister Denby is accepted as the correct one.
[Page 79]
CONSIDERATIONS.
Under the most-favored-nation clause of the treaty of 1858 citizens
of the United States are entitled to frequent and reside at any port
open to commerce by treaty with any power. The solution of the
question, therefore, depends on the construction—on the extent and
limitation—of the concession made in the two treaties between Japan
and China. By the treaty of peace the concession is limited to “the
same conditions and with the same privileges and facilities as exist
at the present open cities, towns, and ports of China.” Mr. Denby
says that “the right of residence is allowed in many cities of
China.” But whether such residence arises by bare license, or as a
mere matter of grace, or by strict treaty right, is not shown, and
in the absence of such specific information it does not seem prudent
to predicate the construction of the treaty by reference to such
fact.
The question seems to be complicated by further provisions in article
6 of the treaty of peace, not mentioned in the package of
correspondence of Mr. Denby. It provides:
All treaties between Japan and China having come to an end,
in consequence of war, China engages, immediately upon the
exchange of the ratifications of this act, to appoint
plenipotentiaries to conclude, with the Japanese
plenipotentiaries, a treaty of commerce and navigation and a
convention to regulate frontier intercourse and trade. The
treaties, conventions, and regulations now existing between
China and European powers shall serve as a basis for the
said treaty and convention between Japan and China. From the
date of the exchange of the ratifications of this act until
the said treaty and convention are brought into actual
operation the Japanese Government, its officials, commerce,
navigation, frontier intercourse and trade, industries,
ships, and subjects shall in every respect be accorded by
China most-favored-nation treatment.
Then follows the above-quoted provision, beginning: “China makes, in
addition, the following concessions,” etc. The article concludes as
follows:
In the event additional rules and regulations are necessary
in connection with these concessions, they shall be embodied
in the treaty of commerce and navigation provided for by
this article.
It would seem that article 6 of the treaty of peace, by which the
concessions are granted, in effect provides for the making of
further rules and regulations in that behalf; and therefore article
6 is to be construed in connection with article 4 of the subsequent
treaty of commerce. The first clause of this article grants to
Japanese subjects the right to reside and carry on trade in the said
city. But the last clause of that article restricts the right to and
“within the localities at those places which have already or may
hereafter be set apart for the use and occupation of foreigners.”
Considering together the two treaties between Japan and China, it
would seem that the Japanese subjects were clearly intended to be so
restricted, since any other construction would make the last clause
meaningless. But it may be said that while this restriction might
operate against the subjects of Japan, it would not operate against
the citizens of the United States, inasmuch as the treaty of 1858
contains no such restriction, and therefore, whenever such ports are
opened by treaty between China and any other nation, the concession
takes place under the treaty of 1858 in an unrestricted form.
But is that a fair and reasonable construction?
Clause 1 of article 6 of the treaty of peace grants to Japanese
subjects the treatment of the most favored nation. And this article
stipulates [Page 80] expressly for the
future conclusion between the contracting parties of a treaty of
commerce and navigation, the basis of which should be the treaties,
conventions, and regulations now subsisting between China and
European powers, and stipulates ad interim for the
most-favored-nation treatment of Japanese subjects. Did Japan,
therefore, in the final treaty—in the treaty of commerce and
navigation—surrender the most-favored-nation treatment which she
obtained by the treaty of peace? If she did not (and it is presumed
that she did not), then other nations, under the most-favored-nation
clause, take the concessions subject to the same restrictions as
Japan. If, on the other hand, they take without restrictions, then
Japan also enjoys without restrictions; which would render
meaningless the last clause of article 4 of the treaty of commerce.
If, however, Japan is bound by the restriction made in said article,
it would seem that the delimitation of the concession to Japan
measures and delimits it to other nations.
The contention that the said last clause is merely cumulative would
seem inadmissible, since it violates a leading canon of
construction, that the instrument be so construed as that all parts
of it shall have a meaning; which would be the case if the last
clause simply qualifies and restricts the generality of the
preceding grant.
The motive for the provision exists in reasons of domestic policy,
thus making the Chinese contention an apparently reasonable one.
* * * * * * *
Respectfully submitted.
W. L. Penfield,
Solicitor.
