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high road of trade between their territories in this region and those of China, and their merchants were settled in it. It was a necessary base for oper ations against Kashgaria, if these were projected. It was an open country on their side, but on the side of China defended by mountain barriers. The Russians accordingly occupied it, asserting, what was doubtless true, that its disordered state was intolerable to them. They made haste, however, to declare to China that they would restore the territory to her whenever she should be in a position to reoccupy it.
The suppression of the central or Taiping rebellion, which began in 1852, in the province of Kwangtung in the south, had controlled for more than ten years a large part of the lower valley of the Yangtse River, had taken, in fact, possession of the most fertile and populous portion of the empire, occupied the ancient capital of Nanking, and threatened the northern capital, occurred in 1862–64. The imperial arms were then carried into the southwest and northwest; Yunnan and Kweichow were first reduced to order, and then Kansuh, and in 1876–77 the recong
est of Ili was undertaken. It seemed to many that the Chinese had undertaken, in this last direction, more than they were likely to accomplish. Yakoob Khan was a ruler who had conquered his possessions by the sword, and had consolidated his conquest by an administration so able that it had attracted attention throughout Asia. He had won his title of Ahbat el Ghazi, defender of the faith, by repeated evidences of devotion to his religion. He was the central figure of Mohammedan politics, whose summons might be expected to rally Mohammedan influence tbroughout the whole northwest.
The operations in China, however, went forward with a celerity begot of the experience of many years of bitter warfare, and a certainty that must have seemed ominous from the outset to the conqueror of Kashgaria. In less than two years the arms of China were victorious from the one end to the other of his dominions, the conquerer had perished, and his children and grandchildren were in flight.
Such was the situation at the beginning of 1879. The ancient territory of the empire, saving the encroachments of Russia of earlier years, and Kuldja, had been reconquered, and the victorious Chinese were on the borders of Kuldja, eager, to all appearances, to reassert by arms the rule of the empire as against that of Russia.
It was under these circumstances that the now degraded minister, Chung How, was sent to St. Petersburg. His duty undoubtedly was to arrange for the reoccupation of Kuldjá by China. We cannot know here the details of his negotiation, but it has become certain that Chung How did not find his task an easy one. The occupation of Kuldja had extended over so many years that the obligation of Russia to return it to the Chinese might well have seemed to have lapsed by the efflux of time. Russian conquests had been pushed forward meanwhile, and possession of Kuldja may have become a matter of more importance in consequence. It is believed that the foreign office was steadfast in the determination to fulfill the pledge, but that the military party opposed the retrocession with great energy. It is probably true that certain difficulties in the way of retrocession had grown up in the years of Russian domination. Their merchants would have moved in and established themselves, and many refugees from Kashgaria, under Yakoob, and other surrounding districts during the period of disturbance, and during the period of Chinese reoccupation, would have flowed in upon them. All of these may have had reason to dread the return of the Chinese rule, and ap
pealed to Russia not to destroy their asylum. In the main the more conciliatory councils appear to have prevailed.
It is not easy to define the policy of Russia towards China, but it is evident that it should be friendliness and respect. She has contermi. nous boundaries with China from Central Asia to the Pacific. She is consolidating conquests over the petty states of the center. She has room for the gratification of her ambition in developing the empire which she has already conquered, and which lies immediately before her. A struggle with China under such circumstances would be unnecessary and unwise.
I am inclined to think that these considerations are accepted as conclusive by the experienced statesmen of St. Petersburg, and that it was in part the general policy of the state, and in part disbelief that China would show vigor enough to reconquer lli, which led to the promise to return Kuldja.
To the military party, however, such retrocession would have seemed portentous of disaster. It would be attributed in Central Asia to a fear of China, and would break down the prestige of their arms. It would give away territory very valuable for military purposes.
It is not singular that under these circumstances a middle course was adopted by Russia. I am not able to place before you now the text of the treaty agreed upon by Chung How, but it appears that Russia retains under it, a considerable part of the territory of Kuldja, as much as three-tenths, according to native reports. It is significant that the territory retained lies along the Tien-shan range, commands the passes into Kashgaria, and embraces not a small part of the river land of the whole province. It may be that, regarded from the point of view of military mnen, Russia holds fast to the most valuable portion of the district. Of this, however, I am not well informed.
The treaty, it would appear, stipulates that China shall pay an indemnity of about two and a half millions of dollars to Russia, in part for the indemnification of merchants, and in part for supplies furnished to China by the Russians, it may be for the expense of the occupation. Certain trading privileges are accorded to Russian frontier merchants.
When word reached here that Chung How had made the treaty it seemed to the members of the diplomatic services that he had gone very far in the direction of conciliation, not, perhaps, if regard should be had for the exigencies of the case, but certainly from the point of view of Chinese statesmen.
Upon examination of the spirit in which the members of this government would have received the news of Chung How's stipulations with Russia, it becomes evident that they are full of danger for him. He had given away, as it would appear to Chinese statesmen, a portion of the national domain, and he has done this during the minority of the Emperor.
It is almost incredible that a Chinese statesman, trained to regard individual responsibility as inseparable from every public act, should have gone so far without positive authority from the government. It is well known that Chung How was in constant communication with the foreign office by telegraph, and the inference is strong from this fact and from the extreme caution which has marked his career, that he believed himself empowered to do what he did.
I have said that the Chinese troops on the boundaries of Kuldja bave seemed anxious to reoccupy that district, It would appear now that their commander, the viceroy of Kansuh, Tso Chung Tang, one of the very ablest of Chinese statesmen, has not been pleased that his great successes in Ili should be detracted from by a failure to rectify completely the frontier, and that he has assailed Chung How's treaty with vehemence, going so far as to prefer against him the charge of high treason.
We come now to conditions which no one among the foreign representatives appears to understand. Is it really the foreign office which is on trial, or is it true that Chung How has exceeded his instructions ? Is it a movement which has regard to the given question only, or is it a stroke of policy on the part of the conservative and reactionary party, based upon a doubtful act of the Yamên, which may be considered to represent the more progressive element in the state? Or, may it not be, after all, a sagacious movement on the part of the Yamên itself, so directed as to draw the whole government into the discussion, and to demonstrate that Chung How has really done as well as could have been expected ?
Without attempting to wade into the depths of the political waters of this capital, I incline to the opinion that the result, however it may af fect individuals, will be the rejection of the treaty. I do not regard this as certain, but it does appear probable. If such shall prove to be the case, the further progress of the affair may take either one of two courses, which will not, at least for the moment, threaten an attempt to solve the difficulty by force of arms. It may be that the Chinese will, in such case, send another mission to Russia, or seek further recourse through the Russian legation here, or through negotiations to be conducted by Tso Chung Tang on the frontier. Or it may be that they will content themselves by rejecting the treaty, and by protesting against the failure of Russia to discharge her promise to return the territory in question.
If I am right as to Russian policy, that government will not long allow the question to disturb her relations with China.
There is an obvious way out of the difficulty, that of demanding a larger indemnity and of yielding up the rest of the territory in consideration of the increased sum paid. The Chinese may not like the alternative, but they will not like the alternative of war, and they may either accept such a proposal or content themselves by leaving the question open to be dealt with at some later moment, when the situation may be more favorable for its solution.
It is said that the conclave of high officials created by the decree which I quoted in beginning this dispatch, is now in session, but it is not certain that this is the case, nor easy to predict when their work will be completed. There has been no other such conclave since I have been resident here; but they are a part of the Chinese system of government, although very infrequently called into existence. I have, &c.,
GEORGE F. SEWARD.
Mr. Seward to Mr. Erarts. No. 561.
LEGATION OF THE UNITED STATES,
Peking, January 15, 1880. (Received March 15.) Sir: Having great confidence in the good judgment of General Stahel, and knowing that his experience in the management of mixed cases
both in China and Japan has given him practical acquaintance with the subject, I sent to him, unofficially, copies of the memoranda on procedure in mixed cases between our people and subjects of China, and asked his views. He has responded under date of December 10, and I have now the honor to place his letter before you. I have, &c.,
GEORGE F. SEWARD,
[Inclosure in No. 561.)
Mr. Stahel to Mr. Seward.
HioGo, December 10, 1879. MY DEAR MR. SEWARD: I have received your two memoranda, and I congratulate you on the able manner in which yon deal with the subject. You have clearly shown that by the treaties ample provision is made for a kind of “mixed court,” where an official assessor of plaintiff's nationality shall sit and have a voice, judgment, however, to be finally given by the presiding officer, who must be of defendant's nationality.
If this arrangement were carried out in practice it would undoubtedly accomplish mueh toward alleviating the natural apprehensions of a plaintiff when suing in the court not of his nationality, toward a careful, dignified, and impartial trial, and toward a cordial acceptance of the principle of extraterritoriality, and I think it would generally insure right decisions, and go far to mitigate the bitterness of feeling which frequently, and sometimes with apparent good reason, regards decisions against the plaintiff by the court of the opposite nationality as foregone conclusions and denials of justice.
But to carry out this very desirable arrangement effectively, both nations ought to appoint official assessors for this special purpose, whose qualifications and integrity should be unquestionable. It is impossible that consuls, however irreproachable, should fulfill this duty in addition to their ordinary duties.
Any other kind of mixed court than these (I agree with you) is impracticable. For the first thing courts involve is a code of laws, and mixed courts would involve a mixed code, the successful and intelligent construction of which, in our present condition of knowledge as to Chinese and Japanese methods and principles of justice, or in any knowledge we are likely to gain of them during this generation, would be a task which would fail even our ablest men, and is probably impracticable.
Far better than any such attempt would be a suitable provision for carrying out the treaty stipulations now existing, and securing the presence, at every trial, of an official assessor of plaintiff's nationality with rights and powers to make his presence effective toward securing an equitable decision according to the laws of defendant's nation; and the importance of this is at least as great in civil as in criminal matters, for it is in the adjudication of civil cases that injustice is now more frequent.
I think the proposals which you make are very appropriate and entirely practicable. But permit me to suggest that No. 3, on page 11 of your memorandum of date the 4th of October, should make it imperative on the consul (at plaintiff's demand) to sit as assessor.
Any interference of the consul with the magistrate's procedure (except, of course, in protection of his own national) would probably work only harm, and should not be allowed. In practice, and with the exercise of the tact you urge, repulsive measures for exacting truth would rarely be resorted to in presence of the foreign official.
The general rule that justice should be done according to the law or practice of the court sitting should be scrupulously adhered to, otherwise advantage of the interference will surely be taken to defeat justice. It must not be forgotten that Asiatic ideas on these points radically differ from ours; that we cannot change these ideas during a sitting of court, and that there undoubtedly exists a strong and perfectly natural prejudice on the part of the Chinese and Japanese officials of all classes in favor of their own nationals and against foreigners, which tends against the obtainment of justice, even under favorable circumstances. Yours, &C.,
Ir. Seward to Mr. Evarts.
LEGATION OF THE UNITED STATES,
Peking, January 16, 1880. (Received March 15.) SIR: Recurring to my various letters in regard to the Shanghai har: bor rules, and more particularly to my dispatch No. 544, with which I sent to you a copy of a code of sixteen rules for that part of the harbor which is above the foreign anchorage, I have now the honor to hand to you a note which Prince Kung has addressed to the several foreign representatives, stating that the rules of 1878 will be put in operation at once for the district opposite the foreign settlements (the foreign anchorage) and the new rules for the district above the settlements (the native anchorage).
This adjustment of the matter appears to me entirely satisfactory, and I have no doubt that it will meet the views of other members of the diplomatic body.
In the matter of the control of harbors our troubles arise, not because the authorities endanger our interests by discriminations in favor of their own people, nor by cutting off privileges necessary for the free use of their harbors, but because no adequate measures have been adopted for their conservancy. At Shanghai any one owning a front lot has been able to make a pier or wharf or to fill up the foreshore almost uncontrolled. The serious deterioration of the harbor has resulted as a matter of course.
It has been my object, in view of such facts, to impress upon the ad. ministration, both at Shanghai and here, the fact that it is their interests which are mainly involved, and that responsibility for the care of the harbor devolves properly upon them.
I shall request the consul general to give the local authorities cordial support in the administration of the harbor rules, new and old, so soon as I learn that my colleagues will take the same course. I have, &c,
GEORGE F. SEWARD.
TInclosure in No. 563.)
Prince kung to Mr. Seward. Prince Kung, chief secretary of state for foreign affairs, herewith makes a communication.
In the matter of the rules for the conservation of the harbor at Shanghai, Mr. Holcombe, secretary of the legation of the United States, came to this office December 7, 1879, to inquire of the ministers whether they had anything to propose regarding the enforcement of the rules adopted in January, 1878, or anything to suggest which they might desire to communicate to the diplomatic body, &c,
The ministers handed to Mr. Holcombe a draft of sixteen new rules which provide for the conservancy of the Upper Whangpoo River, above the foreign concessions, and place this part of the river under the jurisdiction of a harbor office and a deputy, requesting Mr. Holcombe to communicate them to the diplomatic body for its information.
I beg leave now to remark that the Whangpoo is a river under the sovereignty of China. Lying beside the foreign concessions, it must still be held to be outside of those concessions. In reference to section II 'of the rules adopted in January, 1978, which stipulates that “the authority and control of the harbor master, as hereinafter defined, extend to that part of the river opposite to the city, the suburbs, and the toreign settlements, and to that part of Loochow Creek between the settlements, &e,*