Diplomatic Body to Prince Kung, November 17, 1882

Diplomatic Body to Prince Kung.

To his imperial highness Prince Kung, and their excellencies the ministers of the Tsung-li yamên:

On the 10th of November, 1879, the representatives of Austria-Hungary, Belgium, Denmark, France, the German Empire, Great Britain, Italy, the Netherlands, Peru, Russia, Spain, and the United States had the honor to forward to his imperial highness Prince Kung, and their excellencies the ministers of the Tsung-li yamên a note, in which, while enumerating a certain number of subjects to which, for one reason or another, they considered themselves entitled to demand attention, they expressed the hope that a joint consideration of the points mentioned would bring about a satisfactory understanding.

In consequence of this note and further pourparlers and arrangements ever since May, 1880, Sir Thomas Wade and Mr. Von Brandt have been engaged in negotiations with the Tsung-li yamên, referring more especially to trade inwards and outwards, without, however, arriving at any practical result.

This would be in itself sufficiently to be deplored, but in the course of the negotiations pretentions have been put forth by the ministers of the yamên which claim the earnest attention of the undersigned, and render it necessary for them to leave no-doubt to the members of the yamên of the impression produced by them on their minds and the consequences which an attempt of the Chinese Government to put into practice the theories thus professed would undoubtedly entail.

The theories to which on the one or the other occasion the Tsung-li yamên has given expression may be shortly summarized thus: That foreign merchants had not the right to trade in native produce, but were only allowed to buy it for purposes of exportation, and that foreigners at the open ports were only allowed to trade, but not to follow industrial pursuits.

With regard to the second point the reading of several of the treaties concluded with China is clear and precise.

Articles VII of the French treaty of 1858, VI of the German treaty of 1861, and XI of the Belgian treaty of 1865, state expressly that the subjects of these powers shall be allowed to exercise commerce and industry at the open ports.

The ministers of the yamên attempt to do away with this stipulation by pretending that the Chinese term of kung tso, used for “industry,” signifies only that Chinese and foreigners may reciprocally employ either foreigners or Chinese as assistants or laborers at their own option and desire.

The Chinese term, as explained in the dictionary edited by the order of His Imperial Majesty’s ancestor, does certainly not bear out this statement; on the other hand, the right to hire and use Chinese for all lawful purposes is guaranteed to foreigners by other articles of the above-mentioned treaties, viz, Article XI of the French treaty and Article IX of the German treaty. It is, however, not necessary to refer to these, articles or to discuss the signification of the Chinese term employed, as the French treaty, as well as the German one, contains in Articles III and V the stipulation that in case of divergencies in the interpretation of the different texts the French text shall be considered as the original one.

Your imperial highness and your excellencies will certainly have no difficulty in convincing themselves that the French expression, “se livrer au commerce et à l’industries,” has not the signification which the yamên attempts to give to it, but means, so far as the term “à l’industrie” goes, that the subjects of the two powers, and therefore those of all the treaty powers, shall have the right, within the/limits of the open ports, to establish all kinds of industrial enterprises and to work them.

With regard to the first point, the pretensions of the yamên that foreigners are bound to export, the treaties are equally clear. On paying the same inland charges-as the native pays the foreigner is at liberty to trade in native produce where and howsoever he likes, subject only to the stipulations contained in the treaties, and the duties fixed by them or subsequent mutual agreements. The obligation to export exists only for goods brought to the port under transit pass, and it has been introduced in this case to protect the native-owned goods which have not had the benefit of transit passes against the disadvantage which would result to their owners from such a discrimination. This is the view borne out by the treaties and professed by the Tsung-li yamên itself until a short time ago.

The undersigned, therefore, though animated by the earnest wish to remove the subjects of complaints existing on both sides, and willing either to agree themselves to or to recommend for the acceptance of their respective Governments any fair proposals which may tend to this end, must protest most energetically against the attempt made by the Tsung-li yamên to dispute and contest the clearest stipulations of the treaties; they cannot accept any interpretation of their provisions tending to create for the foreign merchant in China a position which would leave him an agent for the importation of foreign and exportation of native goods, but would forbid him all other commercial and industrial pursuits, even within the narrow limits of the open ports.

This pretension on the part of the ministers of the yamên is so much more strange, as not only Chinese subjects enjoy in other countries all the rights which the yamên attempts to deny to foreigners in China, though expressly stipulated for by the treaties, but, as the Chinese Government themselves in their negotiations with foreign Governments claim for their subjects the enjoyment of these advantages, not as a favor but as a right.

Your imperial highness and your excellencies will allow the undersigned to make use of this opportunity to draw their attention to some other facts, which, unless remedied, are likely to create serious difficulties.

For a short time past provincial authorities have on more than one occasion granted monopolies to persons or companies, and as a consequence of these grants have used means which, in some instances, must be characterized as illegal to protect the persons or companies so favored. The Tsung-li yamên, when appealed to on this subject, has answered that the action taken by the Chinese authorities was the same as that used by foreign Governments in granting patent rights.

This statement is evidently based upon a misunderstanding of the case. Patent rights are granted by foreign Governments to persons making a new invention or inventing an improvement to something existing already; they are granted under special legislation by an office created for the purpose by the central Government, and only after a careful and searching investigation into the professed invention by competent persons.

No objections would be raised by the undersigned if a similar institution were introduced in China, provided it offered the necessary guarantees which legislation, the supervision of the central Government, and the scientific and practical efficiency of the persons composing the patent office alone can give, but the undersigned would not feel themselves in a position to recognize or respect so-called patents issued by provincial authorities without these guarantees.

The steps taken, however, by some of the provincial authorities, and complained of by the undersigned, cannot be ranged under patent rights, but must be classed as monopolies, i. e., measures which, with the exception of certain monopolies reserved to the Government similar to the salt monopoly in China, are never resorted to by foreign Governments.

It is not the business of the undersigned to meddle with the internal administration of China. They may regret that the Chinese Government, instead of trying to foster trade and industry by giving them full liberty and by protecting them against official interference and exactions, crushes every attempt at developing the internal resources of the country by loading the new branch of industry or commerce with duties and taxes, or preventing the people from following it by granting a monopoly to a few, officials or speculators; the undersigned may regret this state of things, but they have not to interfere in these questions. Where their right of protesting against the measures taken by the provincial authorities begins, is when the lawful interests of foreigners are violated by open or secret attempts on the part of Chinese officials to prevent Chinese from associating themselves with foreigners in commercial or industrial undertakings, under pretext that monopolies have been granted by provincial authorities for the extent of the whole Empire.

The undersigned beg to call the attention of his imperial highness and their excellencies to this state of things, and to the results which must inevitably follow, not only from such interference with trade and industry, under which the Chinese people themselves will suffer most, but also from the usurpation of rights belonging to the central Government only by provincial authorities.

When in 1867–’68 the Chinese mission was dispatched to the treaty powers, it was instructed by the Chinese Government to demand that questions referring to the execution of the treaties and the interests of foreigners generally, should in future not be settled with the provincial authorities, but by a direct appeal to the central Government and by negotiations with the Tsung-li yamên.

The justice of this demand was recognized in principle by the Governments of the treaty powers, and ever since the epoch mentioned the representatives of the treaty powers, as well as these latter themselves, have faithfully observed the rule so laid down. But the undersigned cannot but draw the attention of his imperial highness Prince Kung and their excellencies to the fact that, not only in the course of the current business, engagements taken by the Tsung-li yamên with reference to questions having arisen in provinces are not always carried out by the provincial authorities, but that the attempts of these latter to arrogate to themselves such rights as can properly belong only to the throne, make the position of the representatives of the treaty powers accredited to His Imperial Majesty a very difficult and delicate one, and one which urgently demands redress and attention.

While reiterating to his imperial highness and to their excellencies the expression of their sincerest wishes that the pourparlers which Mr. Von Brandt shall continue to have with the yamên on the question of trade outwards, and those on trade inwards, for which they depute on their part, in the place of Sir Thomas Wade, Her Britannic Majesty’s chargé d’affaires, the Hon. T. Grosvenor, will lead to a speedy understanding on both questions, they beg to draw the earnest attention of his imperial highness and their excellencies to the considerations which they have had the honor to lay before them in this note.

The undersigned seize this opportunity to renew, &c.

[Signed by members of the diplomatic body at Peking.]