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(Art. 19). The electorate meets at least once a year,
and as often as necessary, at the notice of the consuls, to
hear the reports of the past year, to consider the budget
for the next year, and to authorize taxation and assess-
ment (Art. 9). The municipal council is vested with
the executive power of the municipality. It elects its
own chairman and vice-chairman (Art. 21) and appoints
committees out of its own members, "for all or any of
the purposes wherein they were empowered to act"
(Art. 23). The municipal council can be sued only
through the "Court of Consuls" established at the be-
ginning of each year bv the whole body of treaty consuls
(Art. 27).

The judicial power over foreigners is vested in extra-
territorial consular courts, and the judicial power over
the Chinese, or the mixed cases where the Chinese are
defendants, is vested in the mixed courts. "No arrests
can, as a general rule, be made except upon the warrant
of the proper court, and in case of the mixed court
countersigned by the Senior Consul. Since 1911 the
execution of mixed court summons and warrants has been
intrusted to the municipal police." '-

The landholding in concessions and settlements, again,
varies with different localities. In concessions, such as
Hankow, foreigners obtain their titles to land from their
consuls and must register their deeds with their own con-
sulates. i:t The Chinese are not supposed to hold land,
but in practice they do so under the name of foreigners. 14



CONCESSIONS AND SETTLEMENTS 313

In the international settlement of Shanghai foreigners
must acquire the land from the original owner, taking
from him the title deed and the tax receipts. Through
their own consulates they must then apply to the Chinese
land office for new title deeds. Three copies of the new
title deed are required, one to be deposited with the con-
sulate, one to be kept by the new owner, and one to be
filed with the Chinese land office, whose seal gives the
final validity. 1 " Further, they are not to acquire fee
simple title deeds, but can hold land in perpetual leases.
In the ports voluntarily opened by China, they must reg-
ister their deeds with the Chinese authorities and are
not allowed to acquire a lease for a term longer than
thirty years. 18

The legal status of concessions and settlements has
become quite definite and determined. Although under
the municipal control of the consul or the council, the
area is still considered Chinese territory, over which
China's sovereignty remains unsurrendered. What for-
eigners acquire thereby is the delegated power of mu-
nicipal administratoin, while the reserved powers lie intact
with the sovereign grantor. For example, it is stipu-
lated : 1T

"His Majesty the Emperor of China, being of the
opinion that, in making concessions to the citizens or
subjects of foreign Powers of the privilege of residing
on certain tract-, (if land, or resorting to certain waters
of that empire for purposes of trade, he has by no means
relinquished his right of eminent domain or dominion
over said land and waters, hereby agrees. ... It is

further agreed that, if any right or interest in any tract

of land in ( hina has been or .shall hereafter be granted
by the Government of China to the United States or their

citizens for purposes of trade or commerce, that grant
shall in no event he construed to divest the Chinese au-
thorities of their right of jurisdiction over persons and



314 IMPAIRMENTS OF SOVEREIGNTY

property within the said tract of land, except so far as
that right may have been expressly relinquished by

treaty."

Exercising the unsurrendered jurisdiction, the Chinese
Government exacts an annual land tax on the concessions
from the Powers; and collects land tax from foreigners
holding real estate in the settlements. Again, as an ex-
ercise of sovereignty, she maintains her judicial tribunals
in the concessions and settlements. In the case of for-
eigners, she delegated the power to the consuls by the
grant of extra-territorial jurisdiction; in the case of
Chinese, she establishes native courts or mixed courts for
the trial of cases in which the Chinese are defendants.

Again, as incident to her sovereignty, China reserves the
power to declare neutrality of these concessions and set-
tlements in time of war, allowing, however, the right of
self-defense in case of a hostile attack. As an illustra-
tion, it is provided: 18

". . . No such concession or grant shall be construed to
give to any Power or party which may be at war or hos-
tile to the United States the right to attack the citizens
of the United States or their property within the said
land or waters, and the United States, for themselves,
hereby agree to abstain from offensively attacking the
citizens or subjects of any Power or party or their prop-
erty with which they may be at war on any such tract
of land or waters of the said empire. But nothing in
this Article shall be construed to prevent the United
States from resisting any attack by any hostile Tower or
party upon their citizens or their property."

Further, as territorial sovereign, China may take what-
ever measure regarding the concessions and settlements
in time of war as are necessary for her own safety. She
may close the ports for military necessity, whatever may
be the number of foreign settlements and concessions
located therein. To deny the territorial sovereign of this



CONCESSIONS AND SETTLEMENTS 315

right of self-defense is to deny her of the right of inde-
pendence and self-preservation. It is to be understood,
however, that as soon as the military necessity has dis-
appeared, closure, or any other measure of self-defense,
must be forthwith removed. Thus, in the Sino-French
War of 1885, China closed Canton where there were
foreign settlements or concessions, which was acquiesced
in by the Powers. Subsequently, after the war, the
United States, while protesting against the delayed re-
moval of the obstructions, nevertheless admitted the right
of China to take due measures of self-defense.

"It is unquestionable that a belligerent may, during
the war, place obstructions in the channel of a belligerent
port, for the purpose of excluding vessels of the other
belligerent which seek the port either as hostile cruisers
or as blockade-runners. . . . But while such is the law,
it is equally settled by law of nations that when war ceases
such obstructions . . . must be removed by the territorial
authorities." 10

Besides, because of the unsurrendered sovereignty, the
Chinese residing in the concessions and settlements are
still under obligation to render allegiance to the Chinese
Government. While in a limited sense they are under
the jurisdiction of the municipal council or consul, in
consequence of which they are not liable to arrest by
Chinese authorities except with the consent of the consul
or council, it is nevertheless decided that, except in the
respects wherein China has by treaty or otherwise dele-
gated her power of jurisdiction to the local government,
they are still under the jurisdiction of the Chinese Gov-
ernment. For instance, in 1862, the Shanghai taotai
attempted to levy an impost upon the Chinese in the
British settlement and asked the cooperation of the
British consul. The latter refused to cooperate, but the
British Minister repudiated the refusal and conceded the
request, saying:



316 IMPAIRMENTS OF SOVEREIGNTY

"The Taotai is entitled to levy taxes as he pleases;
and as long as he merely seeks to impose taxes on per-
sons resident in the concession, which are paid by those
in the city or suburb, I see no reason for objecting to it,
at a time when it is our inter. ell as that of the

Chinese that the Government shall not be deprived of its
resources."

This view was supported by Earl Russell, who added:

"The lands situated within the limits of the British
settlement are without doubt Chinese territory, and it
cannot reasonably be held that the mere fact of a resi-
dence within these limits exempts Chinese subjects from
fulfilling their natural obligations." 20

In addition, the grant being by lease or voluntary reser-
vation for the residence and trade of foreigners, there is
the implied condition or obligation on the part of for-
eigners to use the settlements or concessions only under
the condition of quiet enjoyment. Should the foreign
communities at any time prove to be inimical to the
welfare and safety of the sovereign grantor, the terri-
torial sovereign can abate the nuisance or impose due
restraint. To deny him this right is to deprive him, not
only of the right of self-defense, but also the right
of a landlord or territorial sovereign and to place the
interest of the concessions and settlements above the
paramount well-being of the territorial sovereign.

Thus, in view of the unsurrendered sovereignty, and,
to some extent, jurisdiction of China over the conces-
sions and settlements, the observation can be ventured
that the self-governing or independent municipalities
located therein possess no more power than the mere
delegation of purely local, corporate, and municipal pow-
ers and functions. They are to attend to police, sani-
tation, roads, and other local and administrative func-
tions of a municipal government. But they are not politi-



CONCESSIONS AND SETTLEMENTS 317

cal bodies, nor do they act as agents of the territorial
sovereign, except when the territorial sovereign wishes
to make them so. In short, their powers are delegated,
and hence limited, and subject to strict construction ; and
are for local, corporate and municipal purposes, and not
for political and governmental purposes. Supporting this
view, the following instructions given by the foreign rep-
resentatives at Peking, on Augut 6, 1863, to the rate
payers of the Shanghai settlements clearly show the
powers as well as the limitations of the municipal gov-
ernment.- 1

"1. That whatever territorial authority is established
shall be derived directly from the Chinese Gov-
ernment, through the rate payers' ministers.

"2. That such shall not extend beyond simple munici-
pal matters, roads, police, and taxes for municipal
objects.

"3. That the Chinese not actually in foreign employ,
shall be wholly under the control of Chinese offi-
cers, as much as in the Chinese city.

"4. That each consul shall have the government and
control of his own people, as now; the municipal
authority simply arresting offenders against the
public peace, handing them over, and prosecuting
them before their respective authorities, Chinese,
and others, as the case may be.

"5. Their shall In- a Chinese element in the municipal
system, to whom reference shall be made, and as-
sent obtained to any measure affecting the Chinese
residents."

Recent developments in regard to the concessions and
settlements also deserve our attention. Upon tin- sever-
ance of diplomatic relation with Germany on March 14,
1917, tlic Chinese Government availed itself of the oppor-
tunity and tool: over the German concessions in Tientsin
and Hankow. Two wee!:-, later, on March 28, 1917, the
Ministry of the Interior coininunicated to the Ministry of



318 IMPAIRMENTS OF SOVEREIGNTY

Foreign Affairs the rules of procedure governing the as-
sumption of control of the German concessions. 22 The
concessions were recognized as special areas, and Bureaux
for the Provisional Administration of the Special Areas
were created. A Chief of Bureau was appointed for
each of the special areas on the recommendation of the
Ministry of Interior, "to control police and other admin-
istrative affairs therein and also to carry out police and
other administrative measures" (Art. 1). The original
municipal council of the area was, under the direction
of Chief of the Bureau, to deal with all matters pertain-
ing to self-government, but "resolutions passed at a rate
payers' meeting of the municipality shall not be enforced
without the approval of the chief of the Bureau" (Art. 2).

Simultaneously with the declaration of war on Ger-
many and Austria-Hungary on August 14, 1917. the
Government Gazette (August 14, 1917) promulgated the
regulations governing the Bureaux for the municipal
administration of the German concessions at Tientsin and
Hankow and the Austrian concessions at Tientsin. 23 The
Provisional Bureaux were changed to Bureaux for the
municipal administration of the special areas. Each
bureau is to have a chief, who, under the supervision
of the Governor of the province, attends to the police
and administrative functions of the municipality. The
matters relating to foreign relations, however, are to be
dealt with in conjunction with the special commissioner
of foreign affairs for the province (Art. 1). "Regula-
tions promulgated by the chief of the Bureau must be
submitted by the Governor to the Ministry of the Inte-
rior for approval" (Art. 4). Thus, it is to be observed
that the recovered concessions are placed under the rule
of the Municipal Bureaux for the Special Areas, which
in turn are under the direction of the Ministry of the
Interior.

Further, as China terminated all relations with the
old Czar regime of Russia by the Presidential mandate



CONCESSIONS AND SETTLEMENTS 319

of September 23, 1920, 2 * and as she did not extend her
recognition to soviet Russia, she likewise availed herself
of the opportunity and took over the Russian concessions.
The Chinese commissioner for foreign affairs takes the
place of the Russian consul in the municipal government,
but the municipal council is to remain as before. That
is, the municipal government of the Russian concessions
remains as of old, with the exception that the Chinese
commissioner for foreign affairs steps into the shoes of
the Russian consuls. "The existing administrations,"
stated the Waichiaopu, "will be maintained with the mu-
nicipal councils functioning as heretofore. It is not the
intention of the Chinese Government to alter the status
of the concessions, Chinese control amounting only to
the commissioner of foreign affairs taking the place of
the Russian consul (as Chairman of the Municipal Coun-
cil), that is to say. the powers and privileges formerly
exercised by the Russian consul will be transferred to
the Commission of Foreign A Hairs. . . . The main ques-
tion, that of the continued functioning of the Municipal
Councils, has never been in doubt." 25 It is thus seen that
the policy is to take over the control of the Russian con-
cessions, only as a trustee, pending the establishment of
a stable government in Russia which will be recognized
by China and the other Powers. "The Government con-
tinues to emphasize that there will be as little interfer-
ence as possible with the present administrations of those
concessions, and that it is merely .acting as a trustee on
behalf of a future Russian Government recognized by
China and the other Powers with which China was re-
cently associated in war.'

We cannol conclude this discussion without pointing
out the advantages and disadvantages of the concessions
and settlements with a view to their eventual restoration
to China. It musl he observed that they have been in
some ways beneficial tu the Chinese people. First, the}-



320 IMPAIRMENTS OF SOVEREIGNTY

have supplied an example to the Chinese as to how to
administer a municipal government which will promote
the welfare and happiness of the inhabitants. Situated
as they are at the door of the Chinese nation, they are,
in many cases, real object lessons to the Chinese people
in municipal administration. Second, they have been not
infrequently the zones of safety for the common people
suffering from internal disorders. For example, during
the Taiping Rebellion, thousands of Chinese flocked to
the Shanghai settlements for safety. Again, in the recent
disorders during and following the Revolution of 1911,
they have often served as fortresses of Chinese life,
liberty and property.

Despite these advantages, their existence results in
serious disadvantage to the Chinese Government, and,
in some ways, to the Chinese people. First, while the
Chinese constitute the bulk of the inhabitants and con-
tribute by far the largest share of the revenue of these
municipalities, they are yet denied the right of representa-
tion in the municipal council. This is generally so, with
the sole exception of the Kulangsoo International Settle-
ment, where the municipal council has a Chinese delegate
appointed by the local Chinese authority. In the SI
hai International Settlement, the Chinese composing
ninety-five per cent of the residents, have no r |
tion whatever in the municipal council, but are only
granted the privilege of having an advisory committee
elected annually by the Chinese commercial bodies.' It
is not unreasonable to state that the existing situation is
tantamount to taxation without representation.

Second, while China has never surrendered her sov-
ereignty, and has only granted or delegated the powers of
municipal government for local and corporate purposes,
and not for political and governmental, her sovereignty
IS much impaired and infringed, u d her administration is
much obstructed by the practices and claims of the con-
cessions and settlements. The Chinese residing therein



CONCESSIONS AND SETTLEMENTS 321

cannot be arrested except with the consent of the consul,
or in the case of the Shanghai International Settlement,
of the senior consul ; and in the case of Chinese connected
with foreign firms, consent must be obtained of the con-
sul of the Power to whose nationality the firm belongs.
Chinese fugitives from justice cannot be arrested save
with the concurrence of the authorities of the concessions
or settlements. Chinese residents, even when no foreign
interests are involved, must be tried in the mixed court.
In the case of the Shanghai International Settlement,
the foreign assessor not only attends the proceedings,
but virtually acts as judge, trying and deciding the case.
Though parts of Chinese territory, Chinese troops are
not permitted to pass through these concessions or settle-
ments. "This assertion of exclusive authority and the
power has made each concession virtually *un petit etat
dans l'etat' to the impairment of China's rights as terri-
torial sovereign." 28

In view of these serious disadvantages, the Chinese
Government, through its delegation at the Paris Peace
Conference, declared its desire for the restoration of the
foreign concessions and settlements. 20 It proposed that
the powers should enter into negotiations with China for
the return of these areas, and, to obviate the objections
of vested interests, it further suggested that the re
tion should take place "at the end of five years from
the date of such arrangement."

'lie consummation of the measure, however,

the Chinese Government proposed four immediate changes
in order to remove certain unsatisfactory features in con-
nection with the foreign concessions and settlement

follows :

"1. The Chinese citizens shall have the righl to own

land in .all tl tlS and settlements under the

same conditions as for¬Ђ



322 IMPAIRMENTS OF SOVEREIGNTY

2. That Chinese citizens residing in the concessions
shall have the right to vote in the election of members
of the municipal councils and to be elected thereto ;

3. That warrants issued and judgments delivered by
competent Chinese courts outside the concessions shall
be executed in the concessions, without being subject to
any revision whatsoever by the foreign authority

4. That in no foreign concessions shall a foreign as-
sessor be allowed to take part in the trial or decision of
cases wherein Chinese citizens alone are concerned." no

It is manifest that the Chinese Government is deter-
mined to recover these concessions and settlements. To
this end, on the one hand, it has recovered the German
and Austrian concessions, and has also temporarily taken
over the control of the Russian concessions pending the
coming negotiations with the recognized government of
Russia. On the other hand, it has expressed its earnest
desire to recover the other foreign concessions and settle-
ments as manifested in the claims made public at the
Paris Peace Conference, ft is hoped that the rapid
progress of the Chinese Government in municipal ad-
ministration will soon secure the restoration and recovery
of the foreign concessions and settlements, so that this
phase of the impairment of China's sovereignty may be
remedied.



NOTES TO CHAPTER XIX

1. State Papers, Vol. 31, p. 132



Online LibraryMingchien Joshua BauThe foreign relations of China: a history and a survey → online text (page 25 of 39)