File No. 2648/10–13.
The Secretary of State to Chargé Fletcher.
Washington, February 12, 1908.
Sir: I have to acknowledge the receipt of your dispatch No. 790 of November 29 last, inclosing two copies of the translation of the Revised Mining Regulations of China, together with a synopsis thereof prepared by you.
You state that many of the provisions of the regulations are antagonistic to foreign enterprise and treaty stipulations; that the British minister has already entered formal objections to the regulations; that the Russian minister has asked his Government for instructions; that the French and German legations will likely offer objections following the general lines of the British note; and that the Japanese legation has as yet taken no action, but has, presumably, referred the matter to its Government.
After a careful reading and consideration of these regulations, the department has reached the conclusion that they are of such character as to justify a vigorous diplomatic protest on the part of this Government. Besides being unreasonably restrictive and prejudicial to the industrial development of China itself, some of these regulations violate the spirit, if not the letter, of our treaty stipulations with China.
Articles 49, 60, 61, and 62 are inconsistent with our extraterritorial rights in China. Article 49 places the foreigner under the control of the Chinese authorities and declares that the head office may order work stopped, and that any consequent loss must be sustained by the “mining merchants,” but that “the foreign consuls and ministers can not be allowed to interfere.”
Article 60 provides that when a foreigner has any monetary litigation with Chinese or other foreigners not members of the mining concern, the “matter must be settled in accordance with Chinese law without partiality, and if there is no precedent in Chinese records for any such case the usage and law of the countries concerned may be consulted and applied to assist the Chinese law.”
Article 61 is offensively worded in the clause which threatens withdrawal of mining privileges as a penalty for any miscarriage of justice as administered by a consul and viewed from the standpoint of the local authorities.
In article 62 appeal is allowed by foreigners, in matters pertaining to mines, to the head office, the provisional judge, the viceroy, or to the board of agriculture and commerce, “but the consul or minister must not interfere.”
The restrictive tendency of the regulations appears particularly in articles 5, 10, 24, 25, 26, 28, 29, 54, and 59. Article 59 requires that the status of foreign merchants entering into partnership with the Chinese, with the necessary bonds, “must be certified to by the consul of the nationals concerned, with the declaration that they are in accordance with the regulations,” etc. It is doubtful whether our consular regulations permit of the issue of such a certificate.
On the whole, it seems to the department that the revised regulations are absolutely unreasonable and that their enforcement would interfere with our long-established treaty rights in China.
[Page 176]Accordingly, the following telegram was sent to you on the 3d instant, which I now confirm.1
I am, etc.,
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