The inclosed memorandum, prepared by the Solicitor of this Department,
will acquaint you with the view here entertained of the general subject,
with the conclusion that, the intention and effect of China’s foreign
leases having apparently been the relinquishment by China during the
term of the leases and the conferment upon the foreign power of all
jurisdiction over the territory, such relinquishment and transfer of
jurisdiction would seem also to involve the loss by the United States of
its right to exercise extraterritorial consular jurisdiction in the
territories so leased, while, as you remark, as these territories have
practically passed into the control of peoples whose jurisprudence and
methods are akin to our own, there would seem to be no substantial
reason for claiming the continuance of such jurisdiction during the
foreign occupancy or tenure of the leased territory.
As a corollary to this view, which from your statement appears to be held
by all the powers, with the exception of Japan, the ordinary consular
functions prescribed and defined in the intercourse of the Christian
powers among themselves could obviously not be exercised within the
leased territory by a consul of the United States stationed in
neighboring Chinese territory without some express recognition of his
official character, by exequatur or otherwise, on the part of the
sovereign into whose control the territory has passed by lease for the
time being. This point is not touched upon in your report, and it can
only be inferred that the other Western powers will be found to
entertain substantially the same view. If you find them to be of a
similar opinion, you will, as by direction of the Secretary of State,
inform Mr. Goodnow that, upon investigation made and consideration given
to the subject, the United States consuls in districts adjacent to the
foreign leased territories are to be instructed that they have no
authority to exercise extraterritorial consular jurisdiction or to
perform ordinary nonjudicial consular acts within the leased territory
under their present Chinese exequaturs.
It remains to be determined in what manner the interests of American
citizens in such leased territories are to be watched over and, in case
of need, protected by the agencies common in the intercourse of
civilized powers. Those interests, often situated in the interior,
remain for the most part under the same Chinese surroundings as
heretofore, [Page 387] the superior
control of the lessee power being manifested through native agencies and
by way of influence rather than by direct administration. Under such
circumstances, the United States can not be expected to forego the use
of all the customary agencies of intercourse in behalf of its citizens
and their property and commerce. It is presumed the other governments
represented in China feel in the same way their responsibility to watch
over their own citizens or subjects found within any leased territory
not under their own national flag.
It will be well, therefore, for you to take suitable occasion to confer
with your British, French, German, and Russian colleagues with a view to
ascertaining their opinions as to the manner of exercising the ordinary
consular powers and functions within the leased territories by the
nearest and most conveniently situated United States consul in China,
and also as to the ordinary guaranties and administration of justice in
the respective leased territories, for it is obviously desirable that
consular jurisdiction should not cease except when replaced by some
sound and effective judicial resort according to civilized methods. It
should not be difficult to come to some general understanding in this
regard by which the most available consul in each case should present to
the proper authority of the leased territory credentials establishing
his competence to discharge therein consular functions on behalf of the
United States, whereupon some appropriate form of recognition could
issue. Some such arrangement seems much to be preferred to the present
anomalous procedure whereby any matter affecting an American citizen or
interest in a foreign leased territory has to find its way to Pekin,
there to be discussed between yourself and the diplomatic representative
of the lessee government, and by the latter in turn with the territorial
authority.
[Inclosure.]
Memorandum of the Solicitor of the
Department.
consular jurisdiction at chinese
ports leased to foreign powers.
The following are the existing provisions of treaty with China upon
which our consular jurisdiction in that country is based:
treaty of 1844.
Article XXI.
Subjects of China who may be guilty of any criminal act toward
citizens of the United States shall be arrested and punished by the
Chinese authorities according to the laws of China; and citizens of the United States who may commit any
crime in China shall be subject to be tried and punished only by
the consul or other public functionary of the United States,
thereto authorized, according to the laws of the United
States. And in order to the prevention of all controversy
and disaffection, justice shall be equitably and impartially
administered on both sides.
Article XXIV.
If citizens of the United States have special occasion to address any
communication to the Chinese local officers of government, they
shall submit the same to their consul, or other officer, to
determine if the language be proper and respectful, and the matter
just and right; in which event he shall transmit the same to the
appropriate authorities for their consideration and action in the
premises. In like manner, if subjects of China have special occasion
to address the consul of the United States, they shall, submit the
communication to the local authorities of their own Government, [Page 388] to determine if the
language be respectful and proper, and the matter just and right; in
which case the said authorities will transmit the same to the consul
or other functionary for his consideration and action in the
premises. And if controversies arise between citizens of the United
States and subjects of China, which can not be amicably settled
otherwise, the same shall be examined and decided conformably to
justice and equity by the public officers of the two nations acting
in conjunction.
Article XXV.
All questions in regard to rights, whether of
property or person, arising between citizens of the United
States in China, shall be subject to the jurisdiction of, and
regulated by, the authorities of their own Government. And
all controversies occurring in China between citizens of the United
States and the subjects of any other government shall be regulated
by the treaties existing between the United States and such
governments, respectively, without interference on the part of
China.
treaty of june 18, 1858.
Article XI.
All citizens of the United States of America in China, peaceably
attending to their affairs, being placed on a common footing of
amity and good will with the subjects of China, shall receive and
enjoy for themselves and everything appertaining to them, the
protection of the local authorities of government, who shall defend
them from all insult or injury of any sort. If their dwellings or
property be threatened or attacked by mobs, incendiaries, or other
violent or lawless persons, the local officers, on requisition of
the consul, shall immediately dispatch a military force to disperse
the rioters, apprehend the guilty individuals, and punish them with
the utmost rigor of the law.
Subjects of China guilty of any criminal act toward citizens of the
United States shall be punished by the Chinese authorities according
to the laws of China; and citizens of the United
States, either on shore or in any merchant vessel, who may
insult, trouble, or wound the persons or injure the property of
Chinese, or commit any other improper act in China, shall be
punished only by the consul or other public functionary thereto
authorized according to the laws of the United States.
Arrests in order to trial may be made by either the Chinese or the
United States authorities.
Article XXIV.
Where there are debts due by subjects of China to citizens of the
United States, the latter may seek redress in law, and on suitable
representations being made to the local authorities, through the
consul, they will cause due examination in the premises and take
proper steps to compel satisfaction. And if citizens of the United
States be indebted to subjects of China, the latter may seek redress
by representation through the consul or by suit in the consular
court; but neither Government will hold itself responsible for such
debts.
treaty of november 17,
1880.
Article IV.
When controversies arise in the Chinese Empire
between citizens of the United States and subjects of His
Imperial Majesty, which need to be examined and decided by
the public officers of the two nations, it is agreed between the
Governments of the United States and China that such cases shall be tried by the proper official of the
nationality of the defendant. The properly authorized
official of the plaintiff’s nationality shall be freely permitted to
attend the tried and shall be treated with the courtesy due to his
position. He shall be granted all proper facilities for watching the
proceedings in the interests of justice. If he so desires, he shall
have the right to present, to examine, and to cross-examine
witnesses. If he is dissatisfied with the proceedings, he shall be
permitted to protest against them in detail. The law administered
will be the law of the nationality of the officer trying the
case.
By the leases made by the Chinese Government of Weihaiwei, Kiaochow,
and Port Arthur, to Great Britain, Germany, and Russia,
respectively, the jurisdiction of China over
the territories leased is relinquished during the terms of the
leases.
In the case of Weihaiwei, leased to Great Britain, it is expressly
provided that “within the territory leased Great Britain shall have
sole jurisdiction.”
In the lease of Kiaochow to Germany, it is provided that China shall
have no voice in the government or administration of the leased
territory, but that it shall be [Page 389] governed and administered
during the whole term of the lease by Germany; that Germany
is at liberty to enact any regulation she desires for the government
of the territory. Chinese subjects are allowed to live in the
territory leased, under the protection of the German authorities,
and there carry on their business as long as they conduct themselves
as law-abiding citizens. Provision is made for the surrender to the
Chinese authorities of fugitive Chinese criminals taking refuge in
the leased territory. The Chinese authorities are not at liberty to
send agents into the leased territory to make arrests. The lease
declares that China “retains her sovereignty over
this territory.”
In the lease of Port Arthur to Russia it is provided that the control
of all military forces, as well as of the civil
officials in the territory, shall be vested in one high
Russian official; that all Chinese military forces shall be
withdrawn; that the Chinese inhabitants may remain or go, as they
choose; that if they remain, any Chinese charged with a criminal
offense shall be handed over to the nearest Chinese official to be
dealt with. (Mr. Conger says that the Russian legation informs him
that this last provision is not correctly translated, and that,
construing it in connection with article 8 of the treaty of 1860,
the Russian Government has the right and does try Chinese for crimes
committed against Russians.) This lease is expressly declared on the
understanding that it “shall not prejudice China’s
sovereignty over this territory.”
As it is expressly stipulated in the leases that China retains sovereignty over the territory leased, it
could doubtless be asserted that such territory is still Chinese territory and that the provisions of
our treaties with China granting consular jurisdiction are still
applicable therein. But in view of the express relinquishment of
jurisdiction by China, I infer that the reservation of sovereignty
is merely intended to cut off possible future claims of the lessees
that the sovereignty of the territory is permanently vested in them. The intention and effect of
these leases appear to me to have been the relinquishment by China,
during the term of the leases, and the
conferring upon the foreign power in each case of
all jurisdiction over the territory. Such relinquishment
would seem, also, to involve the loss by the United States of its
right to exercise consular jurisdiction in the territories leased.
And, as Mr. Conger suggests, as these territories have practically
passed from the control of an uncivilized people to civilized, there
would seem to be no substantial reason for continuing to exercise
such jurisdiction.
All of the powers, with the exception of Japan, have acquiesced in
this view, and their consuls accredited to China will not attempt to
exercise jurisdiction in any of the leased territory.
Office of the Solicitor (F. V.), January 27, 1900.
