Our Rights in China
THE rights of an American citizen in China are very different from those which he enjoys in most foreign countries. They are derived from our treaties with China, and indirectly from treaties between other countries and China by virtue of the most favored nation clause in our own treaties, from imperial edicts, from international law, and, finally, from laws enacted by Congress in pursuance of our treaties with China. The most important of these rights are the right to lease land and reside at certain places which have come to be called “ treaty ” or “ open ” ports, although many of them are inland; the right of exterritoriality ; the right to travel, under passport, throughout the country for business or pleasure; the right to navigate the inland waters ; the right to import goods upon the payment of a duty prescribed by treaty ; the right to trade with the Chinese people and employ them in any service ; the right to build and operate manufactories at the treaty ports, including the right to import machinery ; and the right to propagate Christianity. While the merchant is not permitted to lease land and reside inland, the right of missionaries to do so is now well established. This remarkable anomaly is due to the fact that a French missionary, who was employed as an interpreter, surreptitiously introduced into the Chinese text of the supplementary treaty of 1860 between France and China the following clause, “ It is, in addition, permitted to French missionaries to rent and purchase land in all the provinces and to erect buildings thereon at pleasure.” This clause was not discovered by the Chinese government until it was too late to disavow it without losing face. The French missionaries promptly acted upon the right thus secured, and the English and American missionaries did not hesitate to claim the same right under the most favored nation clause. Subsequently the Chinese government, under pressure from the powers, formally acknowledged the right of missionaries of all nationalities to reside inland for the purpose of propagating Christianity.
The right of exterritoriality exempts the foreigner from the jurisdiction of the Chinese courts. One of our citizens in China can be prosecuted only in the United States consular court of the district. On the other hand, if he wishes to prosecute an Englishman, either civilly or criminally, he must institute proceedings in the English court. Chinamen within the foreign settlements are prosecuted by foreigners in a mixed court presided over by a mandarin, who has a foreign associate as an adviser.
At most of the important treaty ports, the foreigners reside in what is termed a foreign settlement. At Shanghai, for example, a tract of a few square miles just outside the walls of the native city is set apart for the residence and control of the foreigners of all nationalities. Within this tract the foreigner may lease land from the native owners ; build his residences, offices, warehouses, factories, and wharves; establish roads, parks, and recreation grounds ; do business with the native merchants, and live free of any control by the Chinese government. Contrary to the original design, the natives have come into the settlement, until now there are over two hundred thousand of them who have voluntarily submitted themselves to the jurisdiction of the municipal government. The foreign city of Shanghai is divided into the French, English, and American settlements, or concessions. The French maintain a separate municipal organization, which is not very successful. Most Frenchmen at Shanghai live and do business in the English settlement. The English and American settlements are under one municipal organization. The American settlement, or concession, is so called simply because the first settlers in that part of the foreign city happened to be Americans. It has no separate legal existence, and our government has never claimed any special jurisdiction over it. The American consulate is in the English settlement, which, in a legal sense, is no more English than American. The government of the settlement is vested in the consular representatives of the foreign powers, in a municipal council elected by the land renters, and in the land renters assembled in town meeting. The ultimate executive and judicial authority is in the foreign consuls. The municipal council is an administrative board, and has charge of the police, roads, parks, and waterworks. It collects the municipal taxes, and is the trustee of the municipal property. The legislature of the little republic is the annual town meeting of the land renters. It votes the annual tax levy and passes ordinances. In the scope of its authority and the character of its procedure, it is remarkably like the town meeting of our New England states. The municipality has a constitution, or charter, prosaically called Land Regulations. This charter derives its authority from the joint sanction of the Chinese government and the foreign powers. It is obvious that Shanghai is not an ordinary colony. It is not governed from Washington, London, or Berlin. It falls little short of being an independent constitutional republic, and constitutes a capital illustration of the inherited capacity of our race for local self-government. Although the government owes its character to the early English and American settlers, it is thoroughly cosmopolitan. Every foreign land renter has a vote in the town meeting and is eligible to municipal office.
At most of the important treaty ports there is a municipal government resembling that at Shanghai. These cosmopolitan, self-governing communities constitute a serious obstacle to any thoroughgoing partition of China. They have an international status which cannot well be changed without the joint consent of the powers. Germany may claim Shantung as her sphere of influence, but she would hesitate long before attempting to exercise jurisdiction over the American and English residents of Chefoo. England claims the Yangtze valley as her sphere of influence, but any attempt on her part to exercise jurisdiction over the large Russian population at Hankow would mean war. The existence of these little commonwealths where the great bulk of the foreign trade is carried on, and where immense sums of money have been permanently invested, is the best guarantee we have that there will be no actual partition of the empire. The great centres of foreign trade in China are fixed, and they are fixed at places over which all the Western powers exercise a joint jurisdiction, and in which trade is conducted on terms of perfect equality. This immutable fact is a better insurance against discriminating duties than any possible paper guarantee. Spheres of influence may be claimed and ports leased, but the great centres of foreign trade will remain at Shanghai, Canton, Hankow, and Tientsin.
The commercial and property rights of our citizens at the treaty ports have not been very seriously threatened by the recently acquired spheres of influence and leaseholds, but they are so important in themselves and in their vital relation to the larger problem of the future political integrity of China that Secretary Hay was wise in seeking to safeguard them by specific assurances.
The following is the general declaration of policy to which our government, in what has come to be known as the Open Door Correspondence, sought the assent of all the powers interested in China : —
“ First, that it will in no wise interfere with any treaty port or any vested interest within any so-called ‘sphere of interest ’ or leased territory it may have in China.
“ Second, that the Chinese treaty tariff of the time being shall apply to all merchandise landed or shipped to all such ports as are within such sphere of interest (unless they be free ports), no matter to what nationality it may belong, and that duties so leviable shall be collected by the Chinese government.
“ Third, that it will levy no higher harbor dues on vessels of another nationality frequenting any port in such sphere than shall be levied on vessels of its own nationality, and no higher railroad charges over lines built, controlled, or operated within its sphere on merchandise belonging to citizens or subjects of other nationalities transported through such sphere, than shall be levied on similar merchandise belonging to its own nation transported over equal distances.”
Great Britain, Italy, and Japan gave their unqualified assent to this declaration. The replies of France, Germany, and Russia are given below in full. It will appear that while the replies of France and Germany are satisfactory, that of Russia is vague and evasive. All the assurances were made conditional upon the assent of the other powers. However unsatisfactory the Russian reply may be, it was regarded by our government as a substantial assent, and sufficient to make the assurances of the other powers operative.
REPLY OF FRANCE.
MY DEAR AMBASSADOR, — I find your note awaiting me on my return. The declarations which I made in the Chamber on the 24th of November last, and which I have had occasion to recall to you since then, show clearly the sentiments of the government of the Republic. It desires throughout the whole of China, and, with the quite natural reservation that all the powers interested give an assurance of their willingness to act likewise, is ready to apply in the territories which are leased to it, equal treatment to the citizens and subjects of all nations, especially in the matter of customs duties and navigation dues, as well as transportation tariffs on railways.
I beg you, my dear ambassador, to accept, etc. DELCASSÉ.
REPLY OF GERMANY.
BERLIN, February 19, 1900.
MR. AMBASSADOR, — Your Excellency informed me, in a memorandum presented on the 24th of last month, that the government of the United States of America had received satisfactory written replies from all the powers to which an inquiry had been addressed similar to that contained in your Excellency’s note of September 26 last, in regard to the policy of the open door in China. While referring to this, your Excellency thereupon expressed the wish that the imperial government would now also give its answer in writing.
Gladly complying with this wish, I have the honor to inform your Excellency, repeating the statements already made verbally, as follows : As recognized by the government of the United States of America, according to your Excellency’s note referred to above, the imperial government has from the beginning not only asserted, but also practically carried out to the fullest extent in its Chinese possessions absolute equality of treatment of all nations with regard to trade, navigation, and commerce. The imperial government entertains no thought of departing in the future from this principle, which at once excludes any prejudicial or disadvantageous commercial treatment of the citizens of the United States of America, so long as it is not forced to do so, on account of considerations of reciprocity, by a divergence from it by other governments. If, therefore, the other powers interested in the industrial development of the Chinese Empire are willing to recognize the same principles, this can only be desired by the imperial government, which in this case upon being requested will gladly be ready to participate with the United States of America and the other powers in an agreement made upon these lines, by which the same rights are reciprocally secured.
I avail myself, etc. BÜLOW.
REPLY OF RUSSIA.
MINISTRY OF FOREIGN AFFAIRS.
December 18-30, 1899.
MR. Ambassador,—I had the honor to receive your Excellency’s note dated the 8th-20th of September last, relating to the principles which the government of the United States would like to see adopted in commercial matters by the powers which have interests in China.
In so far as the territory leased by China to Russia is concerned, the imperial government has already demonstrated its firm intention to follow the policy of the “ open door ” by creating Dalny (Ta-lien-wan) a free port; and if at some future time that port, although remaining free itself, should be separated by a customs limit from other portions of the territory in question, the customs duties would be levied, in the zone subject to the tariff, upon all foreign merchandise without distinction as to nationality.
As to the ports now opened or hereafter to be opened to foreign commerce by the Chinese government, and which lie beyond the territory leased to Russia, the settlement of the question of customs duties belongs to China herself, and the imperial government has no intention whatever of claiming any privileges for its own subjects to the exclusion of other foreigners. It is to be understood, however, that this assurance of the imperial government is given upon condition that a similar declaration shall be made by other powers having interests in China.
With the conviction that this reply is such as to satisfy the inquiry made in the aforementioned note, the imperial government is happy to have complied with the wishes of the American government, especially as it attaches the highest value to anything that may strengthen and consolidate the traditional relations of friendship existing between the two countries.
I beg you to accept, etc.
The primary object of our government in the recent correspondence was to conserve our existing treaty right of importation and trade. At the present time we have by treaty the right to import goods and trade upon terms of entire equality with every other nation. While the right of importation and trade is limited to the treaty ports, our goods pass, through Chinese agencies, to every part of the country. No nation has any peculiar trade privileges or immunities. The tariff on imports is fixed, not by legislative enactment or royal edict as in Western lands, but by treaty, and the treaties which China has entered into with the several powers establish uniform rates. On practically all the dutiable goods the rate is five per cent ad valorem. Inasmuch as this is fixed by treaties, the Chinese government cannot alter it at will, nor can it grant any special privileges, owing to the existence of the most favored nation clause in all the treaties. It is apparent, therefore, that our trading privileges in China do not resemble those which we enjoy in other countries. They are in the nature of vested rights, which cannot be abrogated or impaired at the will of China so long as she exercises sovereignty over her present territory. China is not a full sovereign state. The treaties which were forced upon her by war materially limit her sovereignty and make her, in a very real sense, the ward of the Western powers. The rights of the powers in China are by treaty joint and equal, and hence any assertion of exclusive rights may be opposed by the other powers as a matter of strict right. Conceding that China might defeat these treaty rights directly by voluntarily ceding portions of her territory, can she do so indirectly by leases for long terms of years, while retaining the ultimate sovereignty ? Are our treaties with China operative within the territories recently leased to England, Germany, France, and Russia ? These were the grave questions which our government was anxious to have definitely settled, and so far as our commercial rights are concerned, the outcome of the recent correspondence is all that could be desired. It is to be observed, however, that the political and property rights of our citizens residing in the leased territories remain unsettled.
It was feared by our government that Russia, Germany, and France might, in the future, impose discriminating duties on our goods at the ports recently leased to them by China. It was to guard against this contingency that Secretary Hay asked for more specific declarations of policy than the vague diplomatic assurances which had already been given voluntarily. It is no detraction from the merit of Secretary Hay’s achievement to point out that the powers had already disavowed an illiberal policy within their leaseholds, and that our commercial rights have not been greatly enlarged. The readiness with which the assurances were given is evidence that the powers have yielded nothing they wished to retain or thought they had a right to retain. The strongest considerations of expediency impelled the powers acquiring leaseholds to adopt a liberal policy therein. It would be commercially suicidal to adopt an illiberal policy at Talien-wan and Kiao-chou so long as the neighboring ports of Newchwang and Chefoo are open to all on equal terms. Their recent assurances are in the nature of solemn promises to continue a preëxisting policy, and a recognition of our treaty rights. We may now rest assured that our treaty rights will not be destroyed or impaired by alienations of Chinese sovereignty under the guise of leases or spheres of influence. We have acted out of abundance of caution and wisely forestalled possible future complications. This, we may be sure, was the main object of Secretary Hay.
It was a brilliant stroke of diplomacy to seek an international guarantee of equal rights at a time when, owing to recent avowals of liberal intention, the powers could not well refuse without blazoning their insincerity. A possibly temporary policy of equal rights has been made permanent and placed under the highest sanction. The content of the agreement is far less important than the fact of its existence. For the first time the great powers have come together, and partly defined their relations to one another in China. This was a signal triumph for American diplomacy, and a happy augury for that future concert of action which is indispensable if the integrity of China is to be maintained and a war over its partition averted. Secretary Hay bas not solved the Chinese problem, but he has rendered its solution far easier by securing from the powers a full acknowledgment that China ought not to be exploited to the exclusive advantage of any single power or combination of powers. In the negotiation of the Hay-Pauncefote treaty, our Secretary of State showed himself a broad-minded statesman. In the present correspondence he shows himself a clever diplomat as well.
There is danger that the scope and effect of the correspondence will be misunderstood, and wrongly regarded as a final solution of the Chinese problem. The real danger to American interests does not lie in the establishment of spheres of influence nor in the leasing of ports ; it lies in the actual partition of China and the assumption of full sovereign rights by the partitioning powers. The recent action of our government was mainly precautionary and conservatory. Excepting the assurances of equal railroad rates, and the establishment of Chinese custom houses in the leased territories, we have acquired nothing we might not have demanded as a matter of strict right under our treaties. We have received no assurances against the actual partition of China. We did not ask Russia for equality of trading privileges in the event of her acquiring the full sovereignty over Manchuria. Our government wisely refrained from taking the dangerous position that our treaty rights forbid the absolute alienation of Chinese sovereignty, or stand in the way of a thoroughgoing partition of the empire. No responsible statesman would urge us to take any such stand alone. We have not undertaken to guarantee the integrity of the Chinese Empire. That is a matter for international agreement.
The present anti-foreign outbreak is certain to mark a new era in our relations with China. We have necessarily joined the other powers in protecting foreign life. It was a call of humanity compelling us to ignore every consideration of political expediency. We could not limit our action to the direct defense of our own citizens. The peril was common to all foreigners, and could be effectively met only by joint action. When order is restored a conference of the powers will undoubtedly be called to determine the future international status of China. Inasmuch as the United States, Great Britain, and Japan will have a controlling voice in the conference we may be sure that a partition of the empire will not be seriously considered. China must be strengthened and reformed under foreign direction and control so that she may discharge her international obligations and no longer be a menace to the peace of the world by reason of her weakness. We must be insured against a recurrence of present conditions, and a mere money indemnity would be inadequate. An exasperating experience of more than half a century has proved conclusively that any promise of administrative reform made by the government at Peking will be nullified by the obstruction of the local officials from whom there is no practical appeal for the foreigner. The requisite security for foreign life and enterprise in China can be attained only by means of drastic administrative reforms initiated from without. The government at Peking does not desire reforms, and its tenure is so insecure that it could not introduce them if it desired. The mandarins cannot be expected to destroy a system upon which they thrive; and the people at large are ignorant, indifferent, unpatriotic, and without any inherited capacity for concerted political action. The extreme decentralization of the political system has destroyed all national feeling.
The attitude of our government in any conference that may be called is foreshadowed by the Open Door Correspondence. The general policy of the administration was admirably expressed in the note of Ambassador Choate to Lord Salisbury: —
“It is the sincere desire of my government that the interests of its citizens may not be prejudiced through exclusive treatment by any of the controlling powers within their respective spheres of interest in China, and it hopes to retain there an open market for all the world’s commerce, remove dangerous sources of international irritation, and thereby hasten united action of the powers at Peking to promote administrative reforms, so greatly needed for strengthening the imperial government and maintaining the integrity of China, in which it believes the whole Western world is alike concerned.”
Here is the key to the whole situation. The fundamental need of China is administrative reform ; and this can be accomplished only under foreign compulsion and supervision. Without it the political integrity of China cannot be maintained, nor can foreign trade largely increase. The difficulty lies in determining the extent and mode of such foreign control. For many years the customs service has been managed by foreigners with the cordial approval of the Chinese government. Recently the postal service was voluntarily placed under the same management. Here is a precedent which might well be followed by the powers in compelling China to place her military and internal revenue systems under the general management of foreigners. The army must be reorganized so that it may be an effective police force for the protection of foreign life and property. The internal revenue system must be reorganized in order to free foreign trade from unlawful exactions. The powers will be inclined to demand these reforms unconditionally. To the mind of the present writer, it would be far wiser to secure the consent of the Chinese government by offering adequate compensation in the form of an international guarantee, for a term of years, of the neutrality of Chinese territory. This would save the face of the Chinese government, and secure its consent and coöperation. It would do far more. It would preserve the balance of power in the Far East, avert war, and open up China to the vivifying influences of Western civilization without violating the integrity of her territory or destroying the ancient fabric of her civilization.
The United States is admirably qualified to take the lead in such a movement. We are on friendly terms with all the powers concerned, and the disinterestedness of our motives would be universally conceded. The present administration has won the approval of the American people, the gratitude of the Chinese government, and the respect of the European powers, by its bold championship of equal commercial rights in China. We have assumed a leadership in the solution of the Chinese problem which it is fitting we should not willingly resign without a final success. The note of Ambassador Choate quoted above shows that our government is already committed to the policy of joint action. It would be exceedingly gratifying if such action should be agreed upon in a congress of the powers sitting at Washington.
Mark B. Dunnell.