761.93/203
The Chinese Minister of Foreign Affairs (W. W. Ten) to the Dean of the Diplomatic Corps in China (Pastor)33
The Ministry has had the honor to receive the note of November 18th34 and to consider it.
There is really no inconsistency between the measures taken by China at this time with regard to the Russians in China and the declarations contained in the note of October 22d.
[Page 780]Civil and criminal cases involving Russians ought undoubtedly, in conformity with the treaties, to be examined by the Consular Courts, but China has now ceased to recognize the Russian Consuls in their official capacity. As there are, therefore, in consequence of this withdrawal of recognition, no persons capable of fufilling the function above mentioned, China cannot do otherwise than assume provisionally the performance of the duties connected with the examination of civil and criminal cases involving Russians in China. This measure is also a practical solution, natural in the situation which has arisen.
So far as concerns Russian courts in the territory of the Chinese Eastern Railway, their establishment was at the time an arbitrary act on the part of the Russians, who never obtained the consent of the Chinese Government; these courts are not based on the contract for the construction of the Chinese Eastern Railway and are not comprised within consular jurisdiction derived from treaties. Such a contravention of treaty stipulations constituted an act infringing the sovereign rights of China. Consequently, and even before the suspension of recognition of the Russian Minister and Consuls in their official capacity, the president of the Board of Directors of the Chinese Eastern Railway, as well as the local authorities, had on several occasions brought up before the Russian Consulate the question of abolishing these courts. Thus a decision was already reached in this question a long time ago and the present measure was in no way a result of the suspension of recognition. This measure and the suspension of recognition are questions quite distinct and the reasons for each entirely clear.
The Chinese Government indeed considers with the most serious attention Russian affairs; the last special mission of the Vice Minister of Justice to Harbin, undertaken in order to familiarize himself with the local situation, had for its object the protection of Russian interests in China. That is why the territory of the Chinese Eastern Railway was made a Special Area and special courts were established in it. The District Court, as well as the Court of Appeals and the Local Branch Courts (Local Courts), may employ foreigners in the capacity of “counsellors” (tzu-yi) and “inquisitors” (tyau-ch’a yuan); both are allowed to assist in the Local Courts in the examination of cases which are purely Russian. Foreign lawyers have, besides, the right to plead in the special courts above named in the capacity of counsel, whilst Russian notaries public are authorized to continue, as hitherto, the exercise of their functions. So far as concerns the application of Russian laws, they are certainly to be applied so long as they are within the limits of the Law Governing the Application of Foreign Laws in China, promulgated by the Chinese Government, It was, therefore, not necessary to mention [Page 781] this point in the Regulations Governing the Organization of the Courts.
So far as concerns the question of the infringement by the Chinese authorities at Tientsin of the administrative powers of the Council of the Russian Concession, permission had already been given for the provisional maintenance of all the rules governing the activity of this Council, the Official of the Ministry of Foreign Affairs (t’chp’ai yuan) having naturally, in his capacity of exercising the functions of the Russian Consul, the right of supervisory control in all affairs. Thus the assertion contained in your note concerning the infringement of the administrative powers of the Municipal Council is probably based on a misunderstanding. It appears besides that the obligation of the authorities to fulfill the duties with which they are charged has not been taken into consideration.
So far as concerns passports, documents and other like matters, these ought naturally to be within the jurisdiction of the officials fulfilling the duties of the Russian Consuls. These matters will of necessity be dealt with thoroughly in conformity with the regulations originally adopted by the Russian Consuls in the interest of Russians resident in China, and so that the interests of foreigners having relations with the Russians will not, it is well understood, be injured. The Ministry prays that no apprehension be entertained on this point.
The Ministry will be obliged to make the following explanations with reference to the modifications proposed by the Diplomatic Corps:
- 1.
- With regard to the Municipal Councils of the Concessions, an order has already been issued that they should continue to function as formerly on the basis of the regulations in force. With regard to the police, which are charged with the maintenance of local order and tranquility, the Chinese Government must, of course, in conformity with legal principle, assume the necessary responsibility; but the competency of the Municipal Councils within the limits established for municipal administration will nevertheless in no way be affected.
- 2.
- So far as concerns the various judicial courts in the process of being organized in the Special Area of Manchuria and the localities where they are to be established, all these new institutions are organized for the convenience of Russians, following the example of the former Russian Courts, notwithstanding the fact that they had never been recognized by China. Moreover, several former judges in the various Russian courts have been retained as counsellors or inquisitors, and it is intended to continue making similar appointments. Certain Russians have in like manner been named [Page 782] to fill the functions of secretaries and interpreters. Seventeen persons have already entered upon these duties and it is intended to continue making appointments to like posts.
- 3.
- The former Russian notaries public have all been authorized to continue to exercise their functions.
Attaching a serious importance to Russian affairs, the Ministry has already established a Commission for the study of Russian affairs (Eh-shih yon-chu hui), in the personnel of which have been included the most important officials of the various departments of the Ministry and persons familiar with Russian affairs, the ex-Minister to Russia, Mr. Liu Ching-jen having been put at the head of this Commission. In the offices of the Commissioners of Foreign Affairs of the localities having a considerable Russian population, as for instance Hankow and Hailar, persons of Russian nationality have already been engaged in the capacity of counsellors. It is intended, moreover, to continue similarly to engage counsellors for like employment in other localities as well.
The points respecting which reply has been made relate in the highest degree to the domain of the internal administration of the Chinese Government. In cases wherein the various Russian organizations in China desire to express their opinion, they are at liberty to present it to the Commission for the study of Russian Affairs at the Ministry; and the Chinese Government will not fail to examine such expression of opinion with the greatest attention. With regard to the convocation of a Mixed Conference this would, considering the great number of Russian political parties, lead not only to complications resulting in many difficult questions, but would constitute a matter affecting the sovereign rights of China. The Chinese Government considers it impossible, therefore, to accede to it and trusts that the Diplomatic Corps will understand the situation.
As to the appointment of counsellors and inquisitors for the courts, this is a matter within the province of the judicial department of the Government and such persons must be named, conformably to the requirements of law, by the Ministry of Justice in accord with the general principle of the independence of the judiciary. As to the appointment of Russian counsellors to be attachéd to the offices of the Commissioners of Foreign Affairs, this is a matter within the province of the executive department and these appointments must therefore be supervised by the Ministry for Foreign Affairs.
In general, in all cases concerning the interests of foreign subjects, the Chinese Government, as has already been said, will act with the greatest circumspection in order that these interests may not in any case or in any way be injured. The Ministry repeats its previous [Page 783] request, namely, that complete confidence be entertained respecting the sincerity with which the Chinese Government has cautiously acted in this matter.
With regard to the various questions concerning Russians, the Chinese Government will, in conformity with the decree promulgated by the President of the Republic, protect the interests of Russians and will aid them in their difficulties without ceasing to elaborate measures corresponding to the circumstances and in accordance with the requirements. It merits in this respect a complete confidence, and the Ministry ardently desires that this be taken into consideration by the Diplomatic Corps. In connection with political changes taking place in Russia, several hundred thousand defeated Russian soldiers and Russian refugees sought asylum on Chinese territory along the whole length of the frontier, at Hsinkiang, in the provinces of Kirin and of Heilungkiang, at Hailar, and at other places. China, in this time when she cannot cope with the famine ravaging the northern provinces, could, as a matter of fact, refuse them all access to its territories. Moved, however, by humanitarian sentiments, it accords all of them assistance, takes them in charge, transports them and undergoes consequently very considerable material loss.
The Ministry has, besides, the honor to state to the Diplomatic Corps the following: The Russians are attacking our frontier territories, are oppressing Chinese citizens resident in Russia, are confiscating goods of Chinese merchants, and are committing generally other actions of this sort too numerous to mention. The impossibility of observing treaty engagements has also for a long time been manifested on the side of Russia. China, on the other hand, taking into consideration the difficulties to which the Russians are a prey, and observing an attitude profoundly amicable toward Russia, has not only not terminated, because of what is set forth above, her engagements, but on the contrary has acted in such a way that the Government and population have assumed a new undertaking involving serious obligations. Such a fact has no parallel in other countries, but exists only in China. The Diplomatic Corps having made certain proposals concerning Russian affairs, the Ministry begs it to put itself in the place of China and in that light to contemplate attentively the matters set forth above.
In conveying to you the above, Mr. Dean of the Diplomatic Corps, I have the honor to ask that you will be so good as to inform all the foreign ministers hereof.