Mr. Adee to Mr. Rockhill.
Washington, August 3, 1901.
Sir: I have to aknowledge the receipt of your No. 116, of June 13 last, transmitting copies of the correspondence exchanged between the representatives of the powers and the Chinese plenipotentiaries concerning the carrying out of the terms of Article VII of the joint note, providing for the erection of a defensible diplomatic quarter in Pekin within the limits of which the Chinese were not to reside. You request the views of the Department oh the following points:
- 1.
- Will the United States Government credit the Chinese Government on the amount of the indemnity with the amount paid by it to its expropriated subjects within our section of the quarter, or does it wish to buy directly from the owner?
- 2.
- Does the Government wish that a formal cession should be made by China to it of the ground comprised in our section of the diplomatic quarter?
- 3.
- What disposition do you wish made of the land within our section not necessary for legation purposes?
Your dispatch speaks of “the legally vested rights of foreign private owners with in the limits (of the legation) being of course recognized.”
The Department is not sure that it understands what “vested rights of foreign private owners” are referred to. If any such right had legally vested prior to the siege they should be respected, but Pekin not being a treaty port where foreigners might purchase land at will, the Department is in doubt whether the rights above mentioned are supposed rights of foreigners in land purchased during the siege of the legations. If such rights are meant the attitude of the Department in relation thereto is indicated in its previous instructions.
Your dispatch states that—
the Chinese Government has agreed to cede the rights of occupancy of all the ground owned by it or its subjects within the limits indicated to the powers collectively, to form a defensive diplomatic quarter, undertaking, furthermore, to compensate its subjects whom (whose property) it may have to expropriate for that purpose.
Such agreement for compensation by the Chinese Government would exonerate this Government from such obligation, and no deduction on that account would need to be made from the indemnity agreed upon.
In reading the inclosures with your dispatch the Department does not find any express undertaking by the Chinese Government to compensate its subjects whose property it may expropriate. While this demand was made by the foreign envoys, the answer does not appear to be fully responsive to the demand so as to constitute a clear acceptance, [Page 242] and its acceptance can only be deduced from the tenor of the notes preceding the demand coupled with the answer thereto, and which, taken altogether, may perhaps be considered as a constrained acceptance.
This is a question of agreement or of interpretation which should be settled by the envoys with the representatives of the Chinese Government. If the cession of this property is made on the grounds asserted by the envoys, not as a conquest, but as a security against future attacks, it would seem to exclude the idea of reimbursing the Chinese Government, either for the cession of its property or for payments made for the expropriation of the property of its subjects for such purpose. But if, on the other hand, the result of such interpretation should be to leave incumbent upon the powers the duty of making compensation to China for sums paid by it for the expropriation of the property of its subjects, the amount thereof which would be payable to China on account of the cession of the property of its subjects to this Government may be credited on the share of the indemnity which would come to the United States, and the amount thus credited should, on final distribution by the United States, be deducted from the share which would come to it, as distinguished from and so as to leave unimpaired the share which comes to it in trust for private claimants.
For the present no disposition should be made of any land “within our section not necessary for legation purposes.” You may send a chart to the Department, showing the figure and area of the land above ceded as above indicated, and showing the portion and quantity thereof to be used for United States legation purposes, and showing the residue and its quantity available for other purposes. If the residue can properly and advantageously be used in connection with legation purposes it should be reserved for such uses, present or future. If not, and if it is proposed and there is an opportunity to make other disposition of it, all the pertinent facts in connection with such disposition and use should be reported to the Department, to aid in its determination of the question of the right and advisability of its disposition. The decision of this question may ultimately largely turn on the form of the instrument of cession. And it is advisable that the Chinese Government make a formal instrument of cession of rights of perpetual occupancy, in accordance with the tenor of the arrangement between its representatives and the envoys. The form of this instrument should be carefully guarded, to avoid hampering limitations and restrictions upon the disposition and uses of any of the property ceded. If the property is ceded for legation purposes purely it may raise a serious question as to the right of revision to the Chinese Government, or of well-grounded interference by it with any attempt to make any disposition of the property foreign to the object of the cession.
It would be more convenient for the Government of the United States to take title to all the property by direct grant from the Chinese Government, leaving to it the precedent duty of expropriating the property of its subjects. This may be done unless it will conflict with the views and arrangements made by the envoys.
I am, sir, etc.,
Acting Secretary.