Memorandum on the suggested revised land regulations and bye-laws., January 22, 1866

Memorandum on the suggested revised land regulations and bye-laws.

A reference to the causes which have suggested a revision of the land regulations, and the objects which it endeavors to attain, may perhaps be useful.

The origiual land regulations were framed under the authority vested in the superintendent of trade by an order in council of the 13th of June, 1853, and this order in council was passed under the authority conferred on her Majesty by two acts of Parliament, i. e. the 5 and 6 Vict., ch.80, and the 6 and 7 Vict., ch. 94.

So far as British subjects are concerned, every rule for their good government in China emanates under the above order in council, or rather now under the China and Japan order, 1865, from the superintendent of trade. He, alone, can make laws for the purpose of ensuring such good government, and no rules are binding on British subjects in. China, except such as he has directly imposed or sanctioned.

For the purposes of this memorandum it must be assumed that the representatives of France and the United States of America acted under some similar authority conferred upon them by their respective governments; for, independently of the fact that they were parties to the land regulations, it must be presumed that the governments of these two countries, and indeed the governments of other countries having trading relations with and establishments in China, have not neglected to provide for the good government of their subjects residing in or resorting to China.

The source of the authority under which the land regulations were framed being clear, the next point to ascertain is whether at the present moment they are sufficient to provide for the good government of the settlement. If they are not, the same authority that sanctioned them can sanction others more applicable and better adapted to the purpose.

By the tenth section of the land regulations the British superintendent of trade and the representatives of France and the United States of America (these three countries being then the only three powers having treaties with China) made provision “for the making of roads, building public jettees and bridges and keeping them in repair, cleansing, lighting and draining the settlement generally, and establishing a watch or police force,” these being then the most obvious pressing wants of the community.

They also empowered the foreign consuls to call annually a meeting of the land renters to devise means of raising the necessary funds for these purposes, giving to the land renters permission to declare an assessment on land and buildings and to affix dues, which for want of a better name were called “wharfage dues,” on all goods landed at any place within the limits, and they also empowered the same body to appoint a committee to levy the rates and dues, to apply the funds and to sue defaulters.

It will be seen, then, that under this section the chief objects of municipal government were intended to be provided for, and in the calling together of the land renters to declare an assessment and impose dues, and the appointment of an executive committee to levy and apply the funds raised, the essential forms of municipal government were adhered to.

The land renters were to derive means for raising funds for the purposes of building roads, jettees and bridges and keeping them in repair; for providing for the health of the settlement, and for the security of life and property within it; and a committee of them was to take on itself the task of collecting the taxes and enforcing payment from defaulters, and of applying them when collected; in other words, that which the Crown in England confers on bodies, of individuals by charters of incorporation for municipal purposes, the British superintendent of trade, and the ministers of France and the United States, conferred, within certain limits, on the foreign land renters of Shanghai by these land regulations.

Time and experience now show that these regulations do not provide sufficiently for the good government of the settlement; more funds are required than can justly be raised by an assessment on land and buildings, and by the imposition of mere wharfage dues on the goods landed within the limits. No departure, however, from the original rules is asked.

The “purposes” mentioned in the section referred to have extended themselves—that is to say, a greater number of roads, jettees and bridges are required, more funds are necessary to maintain and repair them, and more efficient and extensive means of cleansing, lighting and draining the settlement, in other words providing for the health of the settlement, are absolutely necessary. The natural increase of the settlement in population and extent not only necessitates all these additional means, but also necessitates more efficient means of providing for the security of life and property within it: and the land renters are simply acting in conformity with the object which induced the British superintendent of trade and the ministers of France and the United States to direct the consuls to convene an annual meeting of them, when they do devise additional means of raising funds for the extended “purposes,” mentioned in the tenth section.

If the authority of the British superintendent of trade and of the French and American ministers was sufficient to provide for the making of one road and jettee for cleansing, lighting and draining, and for establishing a police force to watch one-tenth of the settlement, it is clear that the same authority is sufficient to make further provisions of the same nature when imperatively demanded by the increase of the population.

In the same way, the authority that convened an annual meeting of land renters to raise funds sufficient for the then purposes, can convene them in order to raise funds for present purposes, and the same authority that could properly raise one tax, can also raise others, provided that the “purposes” for which the funds are required, as well as the application of the. funds themselves, are within the scope of the authority, which is only limited by the provision to provide for the “peace, order, and good government of the foreign residents within the settlement.”

It has then to be seen whether the suggested revised land regulations are anything more than an extension of the old regulations, whether they have any different source from those framed in 1854, and whether they assume or confer any rights or any powers inconsistent with the limit imposed of providing for the “peace, order and good government of foreigners within the settlement.”

It may here, be mentioned that the chief judge of her Majesty’s supreme court, in his judgment in the case of “Keswick and others v. C. Wills and another, “alluded expressly to the wide significance and meaning to be attached to the words,” peace, order and good government, “and to the power and authority they conferred, illustrating their interpretation by that which has been given to them in colonial charters, under which laws have been enacted, taxes levied and a variety of other useful and necessary measures of government provided.

If it be true that these words do possess the value attributed to them, then it is clear that the moment the necessity is demonstrated, for further provision being made for the good government of the settlement, the authority that made the old regulations can make the new.

The scheme of revised land regulations contemplates simply the provision of an authority to be derived directly from the representatives of the powers having treaties with the Emperor of China, to which the assent of the imperial commissioner through a diplomatic medium should be obtained.

It does not seek to invest either the rate payers, or the executive council to be elected by them, with any original or self-emanating powers. It distinctly records in the preamble the source of the power prayed for, and all the rate payers and their executive council seek for is the continuance of the delegated power of self-government, originally conferred on them.

It is the anxiety of the land renters to avoid even a suspicion of a desire to arrogate for themselves, or for others who shall in future act with them, powers or authority which their position on a foreign soil does not entitle them to claim, that has induced them to retain the old form of the land regulations, in preference to framing a scheme of municipal government more artistic and complete in form. They have willingly abandoned the idea of asking for a charter of incorporation, in which the sources and extent of the powers vested in them should appear clothed in legal phraseology, and in that completeness of form which should characterize every perfect system of self-government, for the less artificial form in which the revised land regulations are now submitted for approval and sanction. In so doing, they desire to afford evidence of the spirit in which the revision has been made, and of the sole object in view, namely, providing for the peace, order and good government of the settlement, under the authority of the diplomatic and consular authorities of the various foreigners residing within it; they themselves acting, not by virtue of any assumed or original power, but simply as delegates of these officials.

In submitting then these revised resolutions for the approbation and consent of the ministers of the powers having treaties with China, and for that of the imperial commissioners, the land renters desire that it should be borne in mind that the cost of defraying the expenses of the government of the settlement is borne exclusively by the residents within it, and by dues levied on goods, which are landed or shipped within its limits, neither the national authorities of the foreign residents, nor the local authorities of the Chinese residents, contributing one farthing towards the budget of expenses; and not only is this true, but the residents within the settlement, by providing and paying for a police Force sufficient for the security of life and property, are on the one hand performing an obligation which the government of China has by treaty taken upon itself, but which it is powerless to fulfil, and on the other obviating the necessity of foreign governments incurring the odium and cost of insisting on the performance of an obligation on the part of those who have solemnly undertaken a task beyond their powers of performance.

It will be seen also, that throughout the scheme no attempt has been made to interfere with, still less to diminish the authority of the different consuls over their countrymen. The whole executive or rather co-executive power remains where it has been since the opening of the port, in the hands of the consular authorities, and they alone, in all cases of fine or imprisonment, can enforce the performance of the rules or punish their infraction. In short, the principle which pervades the whole land regulations as revised, as well as the by-laws annexed to them, may be briefly described as a delegation by those to whom the mission of providing for the peace, order, and good government of the settlement is confided, of so much of their authority as consists in the provision and application of the funds, necessary for the purpose, to those persons from whose pockets the money comes, and who are most nearly interested in its economical and efficient application.

On this principle, also, a variety of provisions, which under a more perfect system would have naturally formed part of the regulations themselves, have been thrown into the form of by-laws, which can be altered or varied, without it being necessary, on every occasion, to amend the regulations themselves.

It would have been easy to have framed a general clause, under which most of these by-laws might have been included, but it was deemed more advisable to be explicit, and to leave as little as possible to inference, thus substituting specific for general powers.

Only one other point remains, to which it may be as well to advert:

In what way do the revised land regulations affect the Chinese and foreigners?

The same argument which demonstrated the identity in principle of the revised regulations with those passed in 1854, and which established that they are but an extension to meet the wants occasioned by the increase of the settlement, is applicable to show that they are not more prejudicial to the interest of either Chinese or foreigners than those which received the sanction of the three foreign ministers, and of the imperial commissioner.

Indeed, the provisional clause, sec. 14, of the old regulations, which provides for the issuing of further rules, shows distinctly that all the parties to them contemplated the extension which has now become necessary; and it would not only be too late now, but most unfair for either Chinese or foreigners, to take advantage of the present suggested revised regulations to object to the principle involved in the old regulations, and to which all parties then assented.

It is not to be supposed that those foreign governments which in 1854 had not treaties with China, and who, from their not being there represented, did not sign the land regulations passed in that year, would now repudiate on the part of their subjects, who are or may become resident in the settlement, their liability to contribute their quota to its revenue, or to conform themselves to the rules which have been framed for, and upon which depends its good government. Such a supposition would be a reflection on the good faith of foreign governments and be a slur on those of their subjects who have acquired land or have become resident within the settlement, and participated in all the advantages which the system of self-government sanctioned by the regulations has produced. Having voluntarily domiciled themselves in a place where certain laws and regulations prevailed, they are upon every principle of equity, and what may be not inaptly termed comity, bound to conform themselves to them.

Indeed, as a matter of strict law, the land regulations embody in themselves the terms upon which the Emperor of China, being the lord of the soil, has admitted foreigners at that time limited in strictness to the nationalities of the three treaty powers, to reside on the land set apart for their use; and all other foreigners, who. with the sanction of their governments as evidenced by the appointment of consular officers to look after their interests, have located themselves in the settlement, have, by the fact of their residence, bound themselves to conform to these terms, in the same manner as the subjects of the three treaty powers conform to them.

The advantages conferred on all future treaty powers by what is commonly known in diplomatic language as “the most favored nation clause,” and under which foreign nations have actually availed themselves of the privilege of trading and residence, carry with them also the obligations which the original treaty powers themselves incurred, amongst the most important of which was the implied undertaking, in exchange for the privilege of exclusive jurisdiction, to make due provision by necessary laws and regulations for the good government on Chinese soil of foreign residents.

By most, if indeed not by all, systems of laws, the obligations incurred by treaties form part of the municipal law of all countries, and it is thus, even where express enactments are wanting, that the foreign consular authorities in China have power and jurisdiction over their country men in this country; power to consider the laws and regulations existing on the spot where the nationalists reside as binding on them by the fact of their residence, and jurisdiction to enforce their observance.