PROPOSED ESTABLISHMENT BY THE CHINESE EASTERN RAILWAY COMPANY OF A MUNICIPAL ADMINISTRATION AT HARBIN.

Memorandum from the Russian Embassy.

IMPERIAL EMBASSY OF RUSSIA,

Washington, February 4, 1908.

The Chinese Government has just lodged a protest both with the imperial Russian authorities and the American and Japanese consuls at Harbin against the contemplated establishment, by the Eastern Chinese Railway Co., of a municipal administration at Harbin and Hailar. While the Japanese consul is favorably disposed toward that reform, the consul of the United States, taking the Chinese side of the question, appears to disapprove of the land grants being put under the administration of the railway. This attitude of the American consul is all the more incomprehensible, as it appears from the exchange of views on this point between the minister of Russia and the representative of the United States at Peking that the Federal Government has not yet taken' a determined stand regarding the Russian administrative measures in those ports and that the consul is acting upon his own initiative.

Now, the Imperial Government is of opinion that in this matter the railway company is but exercising rights which belong to it under the concession granted by China for the construction of the railroad track. The measure under consideration has, furthermore, no other object than that of regulating living conditions on the territory granted to the railway and merely meets the requirements of the population, including the foreigners, whose rights are in nowise affected by the establishment of a municipal administration.

This is the reason why the Imperial Government entertains the hope that the Federal Government will share its views on this question and will be good enough to send suitable instructions to its representatives at Peking. It would be especially desirable that the consul of the United States at Harbin be directed to declare, in reply to the Chinese communication, that his Government does not wish to meddle in this matter.

File No. 4002/45-46.

No. 851.]

Chargé Fletcher to the Secretary of State.

[Extract.]

AMERICAN LEGATION,

Peking, February 25, 1908. SIR: I have the honor to inclose copy of a note received to-day from the Wai-wu Pu, referring to inauguration by Russia of the municipal council at Harbin, China's protest against the same, the Russian minister's reply to the protest, and quoting at length the rejoinder of the Wai-wu Pu.

I have, etc.,

HENRY P. FLETCHER.

No. 392.]

[Inclosure Translation.]

The Prince of Ch'ing to Chargé Fletcher.

FOREIGN OFFICE,

Peking, February 25, 1908. YOUR EXCELLENCY: The various foreign ministers in Peking have called at the office of the board of foreign affairs on different occasions of late to inquire about the municipal administration of Harbin by the railway authorities, and I therefore have the honor to transmit to your excellency the following exposition of this affair:

In the twelfth moon of last year (January, 1908) a telegram was received from the viceroy of Manchuria to the effect that a municipal council had been established by Russia for the administration of the railway territory at Harbin; that the members of this council were to be elected; and that the various foreign consuls in Harbin were to be given the right to vote.

Upon receipt of this telegram my board sent a dispatch to his excellency, Mr. Pokotilow, the Russian minister, asking him to give the necessary instructions that this new order of things might cease and the municipal regulations be canceled.

A reply was subsequently received from his excellency, Mr. Pokotilow, to the effect that, according to Article VI of the Chinese Eastern Railway agreement, the railway company has an absolute and exclusive right of administrating its lands. Consequently the institution of municipal rule by the railway company at the various places where they have acquired territory is in no way contrary to Article VI of the agreement and the rights acquired thereby.

My board thereupon sent a further communication to the Russian minister objecting to the position taken by him in the following terms:

The words, "land required by the company," as used in Article VI of the agreement, mean only the land actually required for the use of the railway. Thereon the company may erect any buildings and may establish a telegraph line, worked by the company, for the company's use; but as regards the matter of protection of the land and maintenance of the peace thereon, the authority for that rests in the hands of the Chinese officials, as witness Article V of the same agreement, which plainly stipulates that "the Chinese Government will take measures for the protection of the line and of the men employed thereon"; and, further, "all crimes and law suits arising on the land of the company will be dealt with by the local officials in accordance with the treaty."

From this it may be seen that the authority to administer the land rests entirely with China. There can be no doubt about it whatever. Therefore the action of the railway company in instituting municipal administrations at any of the various places on the line is evidently a usurpation of China's sovereignty, and it is absolutely impossible for the board of foreign affairs to recognize their rights in so doing. It becomes my duty to send the above extracts from our records in order that you may be informed of the matter and acquaint the American consuls at Harbin and other places with the situation. A necessary dispatch.

File No. 4002.

The Secretary of State to the Russian Ambassador.

DEPARTMENT OF STATE, Washington, April 9, 1908. EXCELLENCY: The Government of the United States has given the most considerate attention to the memorandum received from your excellency, dated February 4, 1908, in regard to the attitude. of the American consul at Harbin concerning the protest of the Chinese Government against the contemplated establishment of municipal administration at Harbin and Hailar by the Chinese Eastern Railway Co. Pains have been taken to ascertain just what has happened at Harbin and especially what the American consul at that post has done regarding the matters referred to.

Upon the best information which this Government has been able to obtain, through official reports and otherwise, it is evident that a very disorganized condition exists at Harbin, and that serious difficulty has been experienced in the maintenance of order, and that there have been serious differences of opinion between the Chinese

Eastern Railway Co. and the foreign residents at that point as to the methods which it was advisable to follow, and it is evident that there is a very great need of some adequate arrangement for the protection of life and property and the maintenance of order. This Government can not fail to recognize and sympathize with the earnest efforts which have been made to bring about such an arrangement, and the United States desires to aid by every means in its power toward the accomplishment of such a desirable end.

There would seem to be no serious obstacle to the direction of a common effort for such a purpose, since the Governments of Russia and the United States are as one regarding the fundamental principle to be observed, as stated in the treaty of Portsmouth and as stated by yourself orally in our conference upon the subject, in terms which meet the entire acquiescence of this Government and which include a scrupulous regard for the sovereignty of China, equal opportunity for trade on the part of both and of all nations, and observance of treaty rights.

This Government can not doubt that a just application of this rule, so fully and universally agreed to, and a sincere and equally universal desire to accomplish the beneficent object sought will make the satisfactory solution of the problem certain, however complicated the conditions of the problem may be.

It would seem, however, that the railroad officials of the Chinese Eastern Railway Co. and the residents of Harbin, naturally intent upon the settlement of their own business interests, in attempting to formulate an arrangement between themselves, have overlooked some inconsistencies between their proposed arrangement and the rules to which I have referred. This Government can not resist the conviction that these inconsistencies flow almost inevitably from the initial error of assuming, as the basis of the proposed arrangement for establishing and maintaining order, the railroad grant made by China to the Chinese Eastern Railway Co. to construct and manage the railway, dated September 8, 1896, instead of taking as the basis of the proposed arrangement the political rights of the residents secured by treaties between China and the several powers. The grant by the instrument of September 8, 1896, to the railroad company of a right of railroad administration over its own lands could not, even if standing alone, be deemed to carry a right of political administration which would amount to a transfer of sovereign rights; but the same instrument, by the French as well as the Chinese text, contains also an express provision reserving the political jurisdiction over these lands to the Government of China. This view appears to agree entirely with that expressed by the Government of Russia in the declaration of the treaty of Portsmouth-that Russia has no territorial advantages or preferential or exclusive concessions in Manchuria of such a nature as to impair the sovereignty of China or which are incompatible with the principle of equal opportunity.

The action of the American consul in Harbin seems to have gone no further than an informal and oral expression of opinion in accordance with this view, and especially with regard to a proposed ordinance, based upon the railroad concession, prohibiting foreigners to trade except upon receiving a license under the proposed municipal government, and a further ordinance subjecting all foreigners to

the criminal jurisdiction of municipal courts not of their own nationality, both of which provisions would be a clear infringement upon the sovereignty of China and a deprivation of the rights which China has secured by treaty to the United States, under which the citizens of the United States in China are entitled to reside and trade and to be subject only to the jurisdiction of their own extraterritorial

courts.

Fortunately, the fact that political authority can not be derived from the grant to the railroad company does not leave the foreign residents in Harbin without opportunity to secure for themselves a method of maintaining order suited to their western customs and ideas and the protection of courts. administering their own laws. The sovereignty of China, which all agree exists in Harbin, is subject to the rules of extraterritoriality established by China's own treaties with the several powers. On the basis of this extraterritorial jurisdiction, the scope and limits of which are well understood, it would seem practicable to work out in Harbin, as has been done in the other treaty ports of China, a satisfactory and effective local government.

This course would not merely have the advantage of resting upon a sound basis of unimpeachable right, but, following well-understood precedent, would not excite among the people of China apprehensions of infringement upon her sovereignty and misunderstandings as to the purpose of the powers which, like both the United States and Russia, desire sincerely to preserve that sovereignty intact.

Toward the working out of such a result this Government would be glad to contribute, and to that end will give appropriate instructions to its representatives in China.

Accept, etc.,

File No. 4002/110.

ELIHU ROOT.

Memorandum from the Russian Embassy.

IMPERIAL RUSSIAN EMBASSY,
Washington, June 9, 1908.

According to a telegram received April 26, last, by his excellency, Mr. Iswolsky, from the Russian consul general at Harbin, the United States consul at that place not only continues to maintain his original protest against the establishment of a municipal government at Harbin, but appears to be resolutely hostile in general to the exercise of administrative rights by the railroad and to the whole order of things which has been established for a long time in that locality.

Considering the Russian settlement of Harbin as a port open to foreign commerce, and taking the Portsmouth treaty as his basis, Mr. Fisher refuses to recognize the rights of a private company to exercise administrative authority over foreigners, and protests against the election to the municipal council of two members representing the railroad company, as well as against placing the municipal administration under the control of this company; he also categorically refuses to have any dealings with the municipal administration through the railroad company, as mentioned. According to him, the only authority who could act as intermediary in such a case is the consul general of Russia, who ought, in his opinion, to be at the head of the

municipal administration as representative of the Russian Government independent of the railroad.

The American consul will likewise not admit that the Russian judicial and police authorities are to be permitted to conduct the preliminary proceedings in judicial actions in which the defendants are foreigners, nor to make searches in the houses of such foreigners, who are under the jurisdiction of their consuls, or, in default of such, of the territorial Chinese authority. He also considers that the police have no right to demand that foreigners be provided with passports. Deeming it illegal for foreigners to be compelled to sign a written pledge to submit to the regulations and taxes established by the municipal administration and by that of the railroad, Mr. Fisher declares that he can not lend his support to these institutions in this matter, and would even consider himself obliged to refuse his protection to American citizens who had undertaken such a pledge in writing.

Without entering upon a substantial discussion of the questions raised by the United States consul at Harbin, the Imperial Government can not refrain from stating that the uncompromising views of Mr. Fisher are not in conformity with the conciliatory tone which has characterized the exchange of views on this question between the two governments.

The Imperial Cabinet would consequently be glad to know to what extent the stand taken by the American consul at Harbin corresponds with the views of the Federal Government on this question.

File No. 4002/110.

Memorandum to the Russian Embassy.

DEPARTMENT OF STATE,
Washington, July 2, 1908.

The Government of the United States has taken due note of the memorandum, dated June 9, 1908, from the Imperial Russian Embassy, protesting further against the action of the American consul at Harbin, China, in the matter of the establishment of a municipality by the Chinese Eastern Railway Co. at that place, and setting forth in detail the scope of the jurisdiction which this company proposes to exercise over foreign and Chinese residents within the railway lands. The memorandum also states that the Imperial Cabinet would be glad to know to what extent the stand taken by the American consul corresponds with the views of this Government on the subject.

The Government of the United States would greatly regret to find that its consul has taken any course which was not in conformity with the conciliatory tone which has characterized the exchange of views between the Governments of Russia and the United States on the questions which have arisen at Harbin; moreover, if it should be found the consul had so acted, his attitude would be altogether inconsistent with the sentiments which actuate the Government of the United States.

A careful and thorough inquiry will be prosecuted, and although the hope is entertained that the complaint of the Russian Government is the result of some misunderstanding, the Government of the United States, upon the full ascertainment of the facts, will not fail to take such a course as is consistent with its strong desire to render assistance toward aiding in the maintenance of order in Harbin, which