127.3/20

The Vice Consul in Chargé at Chungking (Spiker) to the Secretary of State

No. 58

Sir: In reference to the Department’s mimeographed instruction of October 30, 1922, File 127.3, concerning “Relations Between Consular [Page 753] Officers and Other Officers of the United States Government in China”, I have the honor to enclose herewith copies of this Consulate’s letter of December 30th, 1922, to the commanders of the U.S.S. Palos and Monocacy,70 in which the first, and a part of the second paragraph of the Department’s mimeographed instruction refererd to, was quoted for the information of the commander of the U.S.S. Monocacy who had made friendly personal inquiry at this Consulate as to his right to attempt to secure settlement at Wanhsien of a civil claim of the Standard Oil Company of New York against a Chinese firm. This case had been pending before the Wanhsien authorities for a number of months, and as the Standard Oil Company had not been able to obtain a definite judgment because of the corruption of the Wanhsien Magistrate who had been backed by the military authorities at Wanhsien, the matter had been finally referred to this Consulate, which thereupon requested an appeal trial before the Chungking Commissioner for Foreign Affairs.

The Commander of the Monocacy was of the opinion that Article 720, b and 876 of the Naval Regulations gave him power to perform consular functions relative to the settlement of civil cases in ports where there is no American consular officer stationed, and as this Consulate held strongly to the reverse view, Lieutenant Commander Nielson in his letter dated January 9th, 1923,70 referred the question to Rear Admiral W. W. Phelps, Commander of the Yangtze Patrol Force for instructions.

Lieutenant Commander G. W. Simpson, commanding the U.S.S. Palos and senior American naval officer present, in his weekly report of January 15th, 1923, to the Commander of the Yangtze Patrol Force concurred in the opinion of Commander of the Monocacy in the following words:

“Mr. Spiker, American Vice Consul in Chargé at Chungking, furnished the Commanding Officer with a copy of ‘Relations between consular officers and other officers of the United States Government in China’, the original of which was addressed to the Commanding Officer, U.S.S. Monocacy, in response to a letter of inquiry on this question from Commanding Officer, Monocacy, to the U.S. Vice Consul in Chargé. The Commanding Officer, further read the reply of the Commanding Officer, Monocacy, and heartily concurs in it.”

The paragraphs in the Naval Regulations referred to as authority by Lieutenant Commander Nielson read as follows:—

“Article 720b. In the absence of a diplomatic or consular officer of the United States at a foreign port, the commander in chief, as senior officer present, has authority to communicate or remonstrate with foreign civil authorities as may be necessary.

Article 876. The commanding officer of a ship shall carefully note [Page 754] and conform to the instructions laid down in Section 3, Chapter 18 of these regulations.” (Consulate’s note: Section 3 refers to “Intercourse with Foreigners” and contains the above article 720b.)

The interpretation of these regulations by the commanders of the Palos and Monocacy was not shared however by the Commander of the Yangtze Patrol Force, copy of whose self-explanatory letter of January 22, 1923 to the Commander of the Monocacy, is enclosed herewith.

The relations between this Consulate and the American naval officers present, have been most pleasantly harmonious, both officially and personally, and the case referred to above was referred to Rear Admiral Phelps by Lieutenant Commander Nielson with a view to obtaining a definite ruling upon what appeared to Lieutenant Commander Nielson to be a conflict in the regulations governing the respective duties of consular and naval officers. The reply of Rear Admiral Phelps appears to definitely answer the inquiry, and is accordingly transmitted to the Department for its information and comment.

I have [etc.]

C. J. Spiker
[Enclosure]

The Commander of the American Yangtze Patrol Force (Phelps) to the Commanding Officer U.S.S. “Monocacy” (Nielson)

Subject: Naval Officers and Consular duties.

1. On 18 January, 1923, the Force Commander is in receipt of a report from the Monocacy dated 9 January, 1923, from which is extracted the following:—

“The Commanding Officer (Monocacy) requested information from the American Vice Consul (Chungking) regarding the above subject, after an incident which occurred in Wansien between the Standard Oil Company and a Chinese. The incident was the collection of a debt due the Standard Oil Company for which judgment had been granted in Chungking and also in Wanhsien. It seems that the Chinese, who owed the money, refused to pay it and, in this refusal, he was protected by the Chinese general and of course his appointee, the city magistrate.

The Commanding Officer volunteered his services to obtain a settlement of the indebtedness, but was requested to take no action for the reason that the Standard Oil Company’s representative did not wish to draw the gunboats into any controversy, unless it were of a military character.”

The Monocacy thinks that the action of the Standard Oil Company’s representative was no doubt questionable.

[Page 755]

The reply of the American Vice Consul Chungking simply quoted a pronouncement of the State Department dated 30 October, 1922, received by him 23 December, 1922, as follows:

“In order that there may be no confusion as to the representative capacity of consular officers in China, the State Department has deemed it advisable to define, by the present instruction, the relation of consular officers to those of the United States Court for China and those of other branches of the United States Government in China.

The Consular Officers’ position is both representative and administrative, and it is to him that the Chinese authorities look as the responsible American authority in the Consular district; to him that Americans are to apply in any controversy with the Chinese or with the nationals of other governments. In the affairs of the international settlements, in the protection of American interests and in caring for the welfare of American citizens, it is the Consul General or the Consul who must represent the United States Government and the Minister at Peking.”

The Monocacy lays the situation before the Force Commander thinking that the consular instructions do not conform to Navy instructions found in Regs. Arts. 720 (b) and 876; that our duties regarding the protection of lives and property are clearly defined but in matters of civil affairs the naval and consular instructions apparently do not agree; and requests instructions in the premises in order that no trouble may result between the Consular Body and the Naval Force, when the latter is carrying out its duties and when the performance of these duties may be taken, by the Consular and Diplomatic Body, as an unauthorized assumption of authority on the part of the Navy.

2. On 30 September, 1922, the Force Commander addressed a letter (600–2716) to the Robert Dollar Co. and the American West China Navigation Co. (jointly) and furnished copies to the Palos and Monocacy. The following is quoted from this letter:—

“If we can conclude that those Szechuanese who heretofore drew fortunes and livelihood from the River naturally bitterly resent the surrender of these “their rights” by treaty negotiated by an authority they have never recognized, shall we not expect them to show their resentment by primitive and savage attacks when added thereto the foreign steamers sink their junks and drown their people? Doubtless the Szechuanese mind sees only the steamers to blame. These primitive minds would not be able to reason that any junk could be to blame, although we know that in an admiralty court the contrary decision would often be rendered. And here it is appropriate to recognize the difficulty the native has of appealing to law. Treaty gives us extraterritorial rights. That means that the claim of a native against an American is taken to an American judicial officer. Where there is an American Consul he acts as such. In his absence if there is an American gunboat, that power rests in the Senior Naval Officer. In the absence of both there is no court of [Page 756] appeal. This is the situation along most of the river, and it will continue until the government judges that the situation requires more consuls and more gunboats. And the river folks can not go up river to Chungking with their appeals. At least they will not do it. So it is believed just to say that the natives have much on their side of the situation.”

It is quite possible, from the too broad language used by the Force Commander above, that the Commanding Officer Monocacy felt justified in interpreting the Regulations as vesting broad civil powers in the Naval Officer in the absence of a Consul. The Force Commander, discussing above the right of a native to make claim against an American merchant ship for damage or sinking, had in mind that, in the absence of a Consul, the Naval Officer might have the complaint of the native laid before him. The Naval Officer is not vested with the power to settle the suit at law, as might be understood from the language used by the Force Commander.

3. The following is the Mission of this Force:—

“To protect the lives, property and legitimate interests of American citizens within the geographical limits of the Patrol. Such protection should normally be afforded by representations to the appropriate Chinese officials, but Force will be used when considered necessary by the Patrol Commander (Senior Officer Present). The cultivation of good relations with the Chinese people will assist in the accomplishment of the mission and raise the prestige of the United States.”

The essential parts of this mission are underscored. The parts not underscored are in the nature of admonitions as to the courses of action to be followed in accomplishing the mission.

Regulations, Chapter 18, Section 3, Art. 717–728. Intercourse with Foreigners, and Art. 876–879, lay down also, and set limitations upon, the courses of action to be followed by a Senior Officer Present.

Article 726 calls upon the Senior Officer Present to “protect all merchant vessels and advance the commercial interests of this country”

Thus the idea of protection dominates in the mission of the Force, in the mission laid down in the Naval Regulations to govern every Senior Officer Present, and in the State Department’s mission of the Consular Officer. But the protection to be afforded by the Navy implies direct action by the display of force, that to be afforded by the Consular Officer implies indirect action by the pressure of the power and prestige of the American government on native authority.

4. I do not think there need be thought to be a conflict between the mission of the Consul and the mission of the Naval Officer. [Page 757] Rather I think that their missions are harmonious. Just as the State and Navy Departments work side by side and support one another, so the Consul and the Naval Officer are to work side by side each supporting and helping the other in his work towards a common end. Article 718 of the Regulations implies this coordination while maintaining the independence of both.

5. The use of the Navy to protect the lives, property and legitimate interests of American citizens implies that there exists a lawless menace to those American rights which the local authorities are incapable of suppressing.

Article 720 (b) lays it down that

“In the absence of a Consular Officer at a foreign port the Senior Officer Present has authority to communicate or remonstrate with foreign civil authorities as may be necessary.”

I think that an existing necessity to remonstrate with foreign authorities as contemplated in this regulation implies some lawless act impending or committed, and does not mean to include a remonstrance looking to the satisfaction of a judgment of indebtedness won by an American against a native. On a small scale, this would be in principle a display of naval force in the collection of a debt. American precedent is against this. I refer to the strong objections raised by President Roosevelt’s administration against the attempt of the combined naval forces of some European powers to collect debts from Venezuela in 1902.71

Continuing to examine how far the Navy should protect (display force for) the legitimate interests of American citizens, we note that the State Department lays it down that it is to the Consul “that Americans are to apply in any controversy with the Chinese.”

6. I think the deduction is unmistakable that a controversy between an American and a Chinese, such as the situation giving rise to this problem, is a matter to be settled, not by the Senior Naval Officer Present but by the Consul of the district. I think that this policy is not only sound and expected by the State Department to be followed, but that it also both holds up the hands of the Consul and strengthens his prestige. Also, since the aim of this Force is at present to diminish an ill-will that has grown out of economic controversies we ought to have the best success along this line if we ourselves keep from getting involved in any such economic controversy as the situation presented. Furthermore, it seems to me that we Naval Officers can best help the Chinese, if we set the example of refusing to display force to settle economic controversies (and this is not the same as displaying force to suppress lawlessness [Page 758] growing out of economic controversies). One of the things the Chinese need to learn is to be led to the civil authorities to settle justiciable matters, to be led away from the idea that the military autocrat is the arbiter of their controversies.

7. The Commanding Officer Monocacy does well to conference [confer] freely with the Consul. In so doing we will operate to strengthen Consul’s hand and his prestige in his district. In so doing the naval officer will discover, in the exercise of a sound discretion, what course of action should be followed, in any economic controversy likely to be brought to his notice, that will best lend support to the standing of the Consul among the Chinese and among our own nationals, and thereby increase the Consul’s power to exact that protection his mission calls upon him to afford. But the essential thing to guide us in any situation is always to refer back to our Mission, and to realize clearly that the Navy comes into action under its mission primarily when the lives, property and legitimate interests of American citizens are menaced by the failure of the native authorities to afford protection or by their wilful disregard of our rights.

8. The Force Commander desires to make it clear that his decision herein must be taken to refer only to the problem arising in the concrete situation presented by the Commanding Officer Monocacy. Like all problems arising under a mission, each must have its own Estimate of the situation worked out to a sound decision as to what is the best course of action to pursue for the particular situation under consideration. This point ought to be stressed, because the Force Commander does not want anything herein to operate to stifle the initiative of the gunboat captains in the execution of their mission.

W. W. Phelps

Rear Admiral
  1. Not printed.
  2. Not printed.
  3. See Foreign Relations, 1903, pp. 417 ff.