Mr. Conger to Mr. Hay.
Pekin China, December 11, 1899.
Sir: Complying with Department’s instructions No. 205 of August 25 last, requiring a report showing what the other powers are doing in regard to the Chinese ports leased to foreign powers, and particularly as to the jurisdiction of foreign consuls therein, I have the honor to report that I have conferred with the English, German, Russian, French, Spanish, Netherlands, and Japanese ministers upon the subject, and all of them, except the Japanese, agree that the control over all of these leased ports has, during the existence of the lease, passed as absolutely away from the Chinese Government as if the territory had been sold outright, and that they are as thoroughly under jurisdiction of the lessee governments as any portion of their home territory, and their consuls, accredited to China, would not attempt to exercise jurisdiction in any of said ports.
The Japanese claim that sovereignty is too important a matter to pass thus with a lease, and say that China can, if she wishes, surrender jurisdiction over her own people, but they do not agree that these lessee governments shall or can exercise jurisdiction over other foreigners in the leased territory. However, no case has yet arisen for them to test the matter.
The German treaty quoted in the memorandum prepared in the consular bureau for the Solicitor is authentic, and that with the Russians is substantially correct, except as to the provision in Article IV, providing for handing Chinese criminals over to the nearest Chinese official. The Russian legation informs me that that provision is not correctly translated, and that construing it in connection with Article VIII of the treaty of 1860 they have the right and do try Chinese for crimes committed against Russians; but I am unable to procure a copy of the treaty.
I trust that with these, our own, and other published treaties with China the Solicitor may be able to arrive at a satisfactory decision.
Since these ports have practically passed from the control of an uncivilized people to civilized, the paramount reasons for exercising extraterritorial jurisdiction no longer exists; besides, such jurisdiction is at best expensive, unsatisfactory, and undesirable, except as an absolute necessity.
[Page 386]As to general or ordinary consular jurisdiction, the Department knows better than I do the objections to consuls exercising, or attempting to exercise, jurisdiction in a country to which they are not accredited.
Awaiting with interest the decision of the solicitor,
I have, etc.,