see how an ultimate conflict between the despoilers could have been avoided. And in such an issue what of the share of the United States? It has always professed a peculiar aversion to harpy nations; but in the exhaustion of a civil war it could not have either restrained or joined the harpies if it would. The partition of China meant then, as it would mean to-day, the end of equal opportunity for foreign commercial states, and America would have been compelled to retire empty-handed. With no ulterior purpose beyond that of a common benefit, Mr. Burlingame's manhood and urbanity gained more, in the most selfish estimate, for his country than could have derived from any other policy.1

A few topics may be taken from his published correspondence during his residence in China as illustrations of Mr. Burlingame's diplomatic activities. In the spring of 1863, he protests against the attempt of a French consul at Ningpo to acquire the concession of a part of the city for the French Government. This was a method of filching property and control from Oriental

1 "The foreign ministers," says Mr. H. N. Lay, at that time inspectorgeneral of the Chinese customs service, "met frequently at the house of Mr. Burlingame as upon neutral territory, and there we discussed over our cigars Chinese policy past and present, and in our stroll, which usually closed the afternoon's confab, the policy that should be pursued in the future was the constant theme." ("Our Interests in China," p. 40.)

governments then in vogue. It was a favourite claim among foreigners in China that in such concessions the Europeans could exercise jurisdiction not only over their nationals, but over the Chinese, an assumption which naturally would inspire competition between the stronger and more ambitious powers as to which of them could secure the most without seeming to impinge overtly upon the rights of others. The possibilities of friction from this source were serious. Upon Mr. Burlingame's representations to the Tsung-li Yamên and to his colleagues the disruptive character of such proceedings was recognised, the Chinese officials encouraged to resist such aggressions, and the newly arrived French minister persuaded to repress the efforts of his consul. To establish the principle, he obtained from Mr. Bruce in the following year the publication of a circular to the British consuls defining the limits of British jurisdiction over leased territory in China, a declaration of the first importance in creating a precedent for rulings under extraterritorial control.2 The settlement of Shanghai, at present the most important European community in Asia, received during his term of service its charter of mu

1 "United States Diplomatic Correspondence," 1864, part I, p. 851. 2 Ibid., 1865, part III, p. 380.

nicipal government, based upon the principles propounded by the foreign ministers as follows: That whatever territorial authority is established shall be derived directly from the Imperial Government; that it shall not extend beyond simple municipal matters; that Chinese not actually in foreign employ shall be wholly under the control of their own officials; that each consul shall have the government over his own nationals, the municipal police simply arresting offenders and handing them over to the proper authorities; that a reference shall be made to the Chinese element in the municipal system in measures affecting them.1

It was recognised in this outline that the jurisdiction covering cases between natives and foreigners under extraterritoriality was imperfect. In such an untried branch of jurisprudence, however, the ablest lawyers of Christendom were disposed to await the results of experience. In 1879, under Mr. G. F. Seward as United States minister, the subject of mixed courts was thoroughly discussed, and a general policy adopted in accord with that initiated by his predecessor, which has continued to the present. Chinese law courts provided no adequate rem

1 Ibid., 1864, part I, p. 857. The first international agreement covering the control of this municipality seems to have been that of July 5,

edies in settlement of claims against Chinese debtors, nor would they allow the presence of foreigners as parties, witnesses, or attorneys; a consul, therefore, had usually to instruct the Chinese magistrate as to the proper judgment, despite the treaty provision that the decision be made by the judge of the defendant's nationality. From this practice arose the system of mixed courts at present in operation, based upon the international tribunals in Egypt as examples, but deemed at that time impracticable for China.1

Mr. Burlingame's concern in the incident known as that of the "Lay-Osborn Flotilla,' was only that of a mediator, but his tact and the close personal friendship he had cemented with the British minister enabled him to bring the Chinese to an amicable agreement in an embarrassing matter, where under less amiable guidance a rupture might have ensued. An Englishman, Horatio Nelson Lay, the first inspector-general of the imperial customs service, was allowed to order a number of gunboats to be constructed in England for a Chinese coast patrol against pirates and smugglers. He greatly exceeded his instructions in executing the

1 F. E. Hinckley, "American Consular Jurisdiction in the Orient," 1906, p. 159. Mr. Hinckley was the first, so far as I know, to call the co-operative policy one and the same thing as the " more recently called open-door policy."

order, and in 1863 the Chinese found themselves confronted by a fleet of eight powerful steamers, in charge of English officers and crews, who were engaged to man them for a term of four years, to serve only under their English commanders and receive pay through Mr. Lay's hands. The Chinese naturally declined to ratify an arrangement which actually involved an abdication of sovereignty in their own country. But in refusing to accept them, the vessels remained a menace to the peace of the Far East, either from pirates who might obtain them for use off the China coast, or for those feudal nobles in Japan who were upon the verge of rebellion, or for agents of the American Confederacy in Asia who were on the lookout for just such swift cruisers as these to prey upon American shipping. Mr. Burlingame, conscious of the gravity of the crisis, and quickened by the risk to his own country, advised the Chinese, "1st, to give their reasons fully for not ratifying the offensive articles of the agreement; 2d, to thank the British Government and Captain Osborn for what they had done for them; and 3d, that inasmuch as there was a misunderstanding between them and their agent which could not be reconciled, they should request the British minister to have the flotilla returned to England