Projet Seward and Winchester., August 14, 1866

Projet Seward and Winchester.

The consul general of France agrees to withdraw Article XVI of the réglement pending the approval of his government, and it being admitted that there is no claim of right to interfere with the execution of regular warrants issued by the competent authorities of the other treaty powers, the consuls of the United States. Prussia and England are willing, in view of the foregoing, as matters of. courtesy and convenience, either to send their warrants to the French consulate general to be countersealed, or to direct the officer charged with their execution to exhibit the same to the superintendent of police in all cases where the doing so shall be possible without defeating the execution of the warrant.

I have read, according to your wish, the despatch of M. Drouyn de Lhuys with reference to the organization of a municipal system in the French concession, and also the rules which have been published under which that system is to be inaugurated. I agree with the French minister in thinking that a fusion of the two settlements is impracticable, and I am not surprised that the French government should decline to sanction the suggestion.

Whatever may have been expedient and practicable years ago in the infancy of the settlement, when the Chinese first set apart the three sites for the residence of French English, and American, it is out of the question now to expect the French, after years of separate organization, to merge themselves and nationality; for that would be the result in any such cosmopolitan scheme. Practically and on a small scale it is asking them to commit quoad Shanghae an act of political suicide. But apart from the reasons so clearly and frankly given by M. Drouyn de Lhuys, in which I entirely concur, I think that the ideas of the people of the two countries upon questions of judicial and executive administration are so essentially different that any attempt to include them under one system would end in failure, and in failure the more to be regretted because it would be the result of jealousy and wounded susceptibilities.

I have also read the “réglemens.” They seem to me, without exception, unobjectionable, and although they will require elaboration, yet, if they are acted upon, and the details of administration which will be necessary are devised in the spirit of and in accordance with the views expressed by M. Drouyn de Lhuys in the despatch to which I have referred, I do not think that exception ought to be taken to them either by those foreigners who have for their own purposes thought fit to buy property or to reside within the limits of the French concession, or by their national authorities.

The 16th article, however, is objectionable. It assumes to limit the action of foreign authorities over their own subjects on what is, by the clear statement of the French minister himself, Chinese soil. If, as cannot be doubted, the proper authorities of all the treaty powers have full power according to their own laws to summon, arrest, or otherwise put in force their consular or judicial sentences against their own subjects anywhere in China without asking for or requiring the permission of the Chinese authorities, it certainly does not lie within the province of any foreign authority to limit the exercise of this power. The assumption of such a right by a foreign power involves an idea which M. Drouyn de Lhuys distinctly repudiates of territorial sovereignty. It says in fact, “no other power shall exercise authority over any one on this particular bit of soil, and if it seeks to do so it must first get the permission of the French authority.”

The French Emperor could say no more with reference to France, but as the French concession is no more France than the English concession is England, such a power ought not to be assumed. It trenches on the rights secured to other nations by treaty. It limits the privileges conferred by treaties and excepts a certain portion of Chinese soil quoad French subjects resident upon or resorting to it, from the exclusive jurisdiction which in China the authorities of every treaty power have over their own subjects. This I submit it is not competent for a foreign power to do. But while I object to the insertion of such an article in any edict, code or regulation by which one power seeks to provide for the government of its own subjects in China, as for the maintenance of good order within the limits set apart by the Chinese government for the residence of such subjects, I recognize fully the value of a mutual understanding between the executive officers of the different treaty powers that they should agree to act in accordance with the spirit of this article. But there is a great difference between a mutual agreement, come to in the practical interests of good order and to prevent collision between subordinate authorities, and the enunciation of a law by one power affecting the rights and privileges of other powers; and I would therefore suggest that the French government should be asked to alter this article to something like a direction to the French consul general “to arrange with the authorities of the treaty powers for the execution of all warrants of arrest for the seizure of goods or the enforcement of judgments and sentences against their respective subjects resident within the limits of the French concession, such arrangements to be reciprocal and in the sole interests of good order, and for the purpose of avoiding all possibility of collision between the subordinate officers of the different authorities.” Each warrant might be simply countersealed with the seal of the French or English cousulate, as the case might be; but the actual execution of the warrant should be left to the officers of the authority issuing it. With this exception I see no objection to the réglemens. They seem to me to be formed in a spirit of fairness to foreign subjects, who it must be borne in mind have voluntarily located themselves within the French concession, or, to use another form of expression, on that portion of the soil of China upon which the French government have implicitly undertaken (in consideration of the privileges conferred by treaties) to preserve order and good government. This order and good government is to be maintained according to French ideas of what they both consist in, and no foreigner has any right, in my humble judgment, to question their propriety. If the French infringe on the rights of the sovereign of China, it is for him to remonstrate, and, except as such infringement may affect ourselves or our rights, not for us. Moreover neither the French nor the English nor the American governments, (?) looking at the practical interpretation which necessity, expediency and events have obliged each of them to give to the treaties with China, are in a position to take up the quarrel, if indeed any exists or is likely to exist on the part of the Emperor of China; for each one of them has more or less and from pure necessity infringed his strict rights and assumed powers never directly conferred or naturally arising out of treaty stipulations. In this respect the mote in the eye of our French friends is not so very much larger than the beam in our own eye.