Citation
Sovereignty of China over Annam, and International Law

Material Information

Title:
Sovereignty of China over Annam, and International Law
Creator:
Fergusson, Thomas Tierney, 1818-1891 ( Author, Primary )
Fergusson, Thomas Tierney (fl 1861), trader ( contributor )
Place of Publication:
Chefoo
Publisher:
[s.n.]
Publication Date:
Language:
English

Subjects

Subjects / Keywords:
亞洲 -- 越南
亚洲 -- 越南
Châu Á -- Việt Nam
Spatial Coverage:
Asia -- Vietnam
Coordinates:
16 x 108

Notes

General Note:
This publication is referenced by: Miller, Robert Hopkins. United States and Vietnam. p.136.
General Note:
Thomas Tierney Fergusson founded the trading firm of Fergusson & Co in 1861 following the establishment of a treaty port at Chefoo [Yantai]. Until 1889 he traded alone but then went into partnership with John Pender Wake. According to Frances Wood, author of No dogs and not many Chinese: Treaty port life in China 1843-1943 , "Chefoo was never much of a trading port, with only four foreign trading firms (three of them British) active in 1891, shipping beancake, vermicelli, peanuts, silks, hairnets, lace and fruits." During his time in Chefoo Fergusson was a staunch supporter of the Catholic St Mary's Church and of the Catholic Mission there. Fergusson went on leave to England in 1889, dying there unexpectedly, on 22nd November 1890. The firm Fergusson & Co continued under new ownership for a number of years but Fergusson's property was managed through agents in China, first by his widow, Anna Fergusson and, after her death, in 1908 by his daughter Anne Marie Madeleine, wife of Admiral Sir Charles Henry Coke. During Lady Coke's life the property was sold off in various lots, the last being sold in 1940.

Record Information

Source Institution:
SOAS University of London
Holding Location:
Special Collections
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
MS 380715 ( SOAS manuscript number )

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Full Text
Sovereignty of China over Annam,
and International Law.
By THOMAS FERGUSSON
CHEFOO.




Sovereignty of China over Annam,
and International Law.
The pertinacity with which the Marquis Tseng ’has been
urging a claim of suzerainty over Annam on behalf of the
Chinese Government, has given the question of its validity a far
greater importance than it had when first mentioned in the nego-
tiations with the French Republic.
It now seems to have been made such a vital element in
the discussion between China and France regarding the latter’s
occupation of Tonquin, that “ coute qui coute” it cannot be
abandoned without a complete capitulation of the Peking Cabinet’s
position in the controversy,’ and it may therefore be reasonably
concluded that there is more involved in holding out for the
admission of Chinese claim of suzerainty over Annam, than
appears on the surface of the dispute ; and that instead of its
being a particular question limited to the relations between China
and one of her tributary states, it is of much greater magnitude,
and implies an important principle to be contended for as a
precedent for establishing an international legal controlling power
for China over all the neighbouring states that are her tributaries,
and over which she has claimed a similar suzerainty. It is
not merely Annam, but Nepaul, Thibet, Corea, Liuchiu, Burmah,
Siam, and Cambodia, and the whole of the Indo-China and Malay
peninsula, which is thus being prospectively adjudicated, as being
territorially subject to China by virtue of similar suzerainty, so that
in due time, and when it seems opportune to the Chinese Govern-
ment, all the treaties made by these states with foreign powers
may be repudiated and declared invalid, on the ground that, as
vassals of China, they have had no right to make treaties with
other nations, without the consent of the Emperor, just as it
is pretended regarding the treaties of Annam with France, because
China denies to Annam the right to make such a treaty as incom-
patible with her suzerainty over that state. It is not a mere
question between China and France that is being agitated, it
concerns Great Britain, the United States, Germany, Japan, and
other nations, for all the treaty relations of these powers with
the so-called tributary states of China, depend, in the eyes of
China, on the solution "of the question of Chinese suzerainty
over Annam. They are all considered by China as belonging
to the same category of vassal states, and should the territorial
dependence of Annam on China be once established as the out-
come of Chinese claim of suzerainty, the same principle will be
applied sooner or later to them all, and their treaties with other
nations will be cancelled, should China feel disposed to do so.


2
It may be possibly alleged that China would never attempt
to cast a doubt over the validity of all her other tributary states’
treaties with foreign nations, but no such forbearance since her
revendication of Kuldja and Kashgar can now be depended on
should China deem it advantageous to do so ; and the wisest
course to be adopted under the circumstances is to provide
against such contingency by rendering it now impossible for
China ever to legally carry out such projects of extending her
territorial authority. China knows full well that the first step
towards such purpose being carried out is to contrive a legal
title for demanding- submission from her tributaries ; and the
suzerainty claim as developed in the case of Annam as a bar
to its independent right of making treaties, is intended evidently,
to furnish such title.
The publicists who have lately started the thesis of how far
China is to be considered as a. factor in Eastern Asian politics,
and who have purposely given exaggerated descriptions of her
military resources, point out the future extension of the Chinese
Imperial authority over all her former tributary states which are
hereafter to be reacquired by force of arms, as Kashgar has
been, and the papers contributed by Sir Rutherford Alcock to
“Macmillan's Magazine” in September, 1874, on “The future
of Central Asia” and to the “Fortnightly” for May, 1876, on
“ China and its foreign relations ” point out the ambitious projects
of China for one day recovering all the territories that she has
on her list of vassals.
It therefore becomes necessary to institute a critical scrutiny
into the legality of Chinese title and claim of suzerainty over
Annam, and to examine what the Chinese and Annamese docu-
ments say about it, and then what is its real significance
according to international law.
The first evidence for consideration as shedding light on the
subject is that of Mr. George Jamieson, H.B.M’s. Consul at
Kiukiang. This erudite scholar is mentioned by Sir H. S. Maine,
at page 224 of his “ Dissertations on Early Law and Custom,”
London, 1883, as “one of a group of earnest enquirers who are
investigating ‘Chinese social phenomena on the spot,’” and his
statement may thus be deemed deserving of credit. He has
given us the result of his learned studies on the “Tributary,
Nations of China” in Vol. XII. No. 2 of the “ China Review,”
for September and October, 1883, pages 94-109, and for what
he asserts he gives as his authority the official publication of
the Chinese Government, called the “Ta Tsing Hwei Tien,” or
the laws of the present dynasty, the substance of several chap-
ters of which he has translated into English. The conclusion
he arrives at from his investigations regarding these nations
is—“ in no case does the relationship between them and China
“ appear to have arisen from an act of conquest or even from
“an international compact or convention. Nor was any com-


3
“ pulsion used in keeping as tributaries those that had been once
“ recognised even in the case of Corea and Liuchiu, whose
“ relations with China were far more intimate than those of any
“ other of those states, the kings do not appear to have invari-
“ bly sought investiture. This neglect on their part does not
“ appear to have called forth any remonstrance from China, which
“ simply left them alone when they did not wish to come. Two
“ revolutions occurred in Annam, in both of which the reigning
“king, though formally invested by China, was deposed without
“ an effort being made by her on behalf of her protege. So
“ wars appear to have taken place on more than one occasion
“ between Burmah and the kingdom known as Nan Chang, a
“ territory occupied by the Laos tribes, but there is no indica-
“ tion of China having exercised or attempted to exercise her
“ authority as common suzerain of the two to enforce peace.
“ The inference is that the relationship of suzerain and vassal
“ was, as far as legal phraseology may be applicable to such a
“state of affairs, a relationship at will merely. It was begun
“ at will, continued at will, and therefore it would follow ter-
“ minable at will. Neither side had pledged itself to do anything
“ in regard to the other, and consequently could not be regarded
“ as guilty of any breach of contract to conform any longer to
“ the traditional usage.
“ The attitude taken up by the Chinese Government some
“years ago in regard to Corea when replying to the United
“ States Minister that that country was free to act as she chose
“ both internally and externally, and that Chinese Ministers had
“ not been wont to interfere, was in truth the traditional position
“ of China vis a, vis of all her tributaries. In regard to Annam,
“ therefore, it is probable that if either she had been a non-border
“ state, or if France had been out of the question, she would
“ have been allowed to break off the relationship without demur
“ had she wished to do so. With us suzerainty seems necessarily
“ to imply some sort of control over foreign relations. In China,
“ till recently there were no foreign relations to speak of, so
“the question of the control of tributaries in their dealings with
“foreign powers never came to an issue. Hence the unprepared
“ and dubious state of mind in which China finds herself, both
“ in regard to Annam and Liuchiu. Neither on the side of the
“ suzerain or vassal is there any clear ‘ perception of what the
“ rights and responsibilities of the situation amount to.’ ”
Besides this lucid exposition by Mr. Consul Jamieson, of the
general question of suzerainty over China’s tributary states, there
is an equally valuable narrative with special reference to Annam,
in the “ Histoire des relations de la Chine avec l'Annam,”
Vietnam by Mr. G. Deveria, of the French Legation at Peking,
Paris, 1880 ; in which the author has also used the collection of
official documents that have been published by the Chinese
Government, and from which he traces the relations of Annam
with China from the period when the Ming Imperial dynasty


+
became for a time the master of Annam by conquest in A.D.
1407 to the present period, and which historically confirms
Mr. Jamieson’s views above given. It appears from Mr. Deveria’s
work that the Chinese did not long enjoy their newly-acquired
dominion over Annam, for in 1428 an Annamite noble named
Le-loi, refusing to be subservient to China, took up arms to free
his country from the yoke of the invaders, and the same year
was proclaimed King at the Eastern capital of Annam, the
present Hanoi. There is no mention of investiture of this
sovereign by the Emperor of China; and until 1544, or for more
than one hundred years after Annam had asserted her political
independence of China, the kingdom of Annam seems to have
tranquilly existed without any attempt on the part of China to
reconquer it. In the year 1544 a native chief named Mac-
dang-dung, revolted against the reigning King Le-duy-hue,
whose authority ovei' the northern portion of his territory had
become enfeebled, but in 1573, a prince of the royal sovereign
family named Le-duy-dam, subdued the partisans of Mac, and
he recovered the whole kingdom of his fathers except the pro-
vince of Caobang, on the Chinese frontier, over which Mac,
by falsely representing to the Chinese Emperor that the
Annamese Royal family of Le was extinct, obtained his nomi-
nation of Major General of Annam. This King Le-duy-dam,
died in 1600 and then a civil war broke out between the two
factions Nguyen and Irinh, who had helped to subdue the Macs,
so that the royal authority at that time was insufficient to
recover Caobang from the Chinese protege who had retained
it. In 1662, however, on the conquest of China by the Manchus,
the King of Annam, Le Thau Tong Nguyen, submitted himself
by letter to the Emperor, and began to send a three-yearly
tribute. He died in 1663, and his son, Le Nguyen Tong Muc,
was the first King who received royal investiture from China in
1666, and to shew the value he set on this formality the year
afterwards he took by surprise his lost province of Caobang
from the Chinese protege Mac, and forced him to fly into
Yunnan, and though the Chinese Emperor ordered him to
restore Caobang, he reconquered it in 1672 and definitively
annexed it to his kingdom, in spite of China having previously
conferred it on its own nominee. He then changed the period
of sending tribute to China from every three to six years, and
China having acquiesced to this arrangement, he died in 1674.
His successor died in 1682 without having had the investiture;
from this date to 1761, the Kings of Annam received investiture,
some one year, others two years-after their succession. One
Le Hieu Tong, who succeeded his uncle in 1740, only received
investiture in 1761, or after reigning 21 years without it. It
was this King who endeavoured to extricate himself from the
etiquette in receiving the royal investiture that had been sub-
mitted to by his predecessors, and the Chinese Imperial decree
that was published with reference to this act of insubordination
is pretty clear proof of the immaterial insignificance of the
ceremony as conferring any real authority on the sovereign of


5
Annam. A translation of this decree is given by Mr. Deveria,
page 14:—“The King Le Hieu Tong is the legitimate heir to
“ the throne of Annam, and therefore we have sent him our
“ officials to confer on him from us the royal investiture. It
“ was only after provoking reprimands from our envoys that he
“ resigned himself to conforming to the prescribed etiquette.
“ The manners of this prince, are primitive, it is therefore
“ natural that his attitude on this occasion has not been
“ satisfactory.”
This was all that the Chinese suzerain had to say to the
demurrer of his vassal to perform the ceremony of prostration,
or personal homage, and it discloses its real unimportance.
Then came the civil war at the end of the 18th century, which
lasted till Le Cheu Tong fled to China, and asked for assistance
to regain his throne. Two Imperial armies invaded Annam,
and restored Le Cheu Tong, but one of the pretenders to the
throne, Nguyen Hue, retreated to the South of Annam, and the
Emperor recalled his troops to China, and in 1789, before they
could all leave. Annam, they were attacked by this same Nguyen
Hue and driven out of the country, with the old King Le Cheu
Tong, who died in Peking in 1792. The usurper, however,
before Le’s death, made his peace with the Emperor Kieu Lung,
and received the usual investiture in Hanoi in December 1789,
although the previously-invested King was still alive. He died
in 1792, and when his son asked for investiture in 1793, the
Emperor issued a decree in which the relations between China
and the Annamese nation were shewn to be greatly estranged
from those of a vassal. It states as follows :—“ The Government
“ of the Nguyen family being of recent date, and a certain
“ agitation reigning amongst the populations of Annam, which
“ is all the more alarming that the youth of the King is a
“ subject of disquiet, considering that all the royal troops are
“ in the hands of Ngo-Van-So who entirely controls them, and
“ as it is important under such circumstances to be prepared
“ for all dangerous eventualities, the Emperor charges the Viceroy
“ of Yannan and Kweichow to place the southern frontiers of
“ the Empire in a state of defence." This would hardly have
been required, had Annam been a real vassal of China, instead of
which China expected Annam to attack her on her southern frontier.
There was another revolution against the reigning invested
family led by Nguyen phunocanh, and a descendant of a former
reigning family, who, supported by the King of Siam, took
Hue, the capital, and having overthrown the actual sovereign,
founded the present reigning dynasty of Annam, and received
investiture from the Chinese Emperor Kia Tsing. It was this
sovereign who took the name of Gia Long, and who sent his
son Canh Dzue to France, to conclude the treaty with Louis XVI.
of 28th November, 1787, by which he obtained the assistance
of French military officers, with whose aid he recovered all his
territories, including Tonquin, and over which he proclaimed
himself sovereign.


6
It was not till after the signature of the French treaty in
1862, that his successor Tuduc, the then reigning King, was
able to assert his sway over all his dominions and without any
assistance from China. It is a notable circumstance connected
with this sovereign Tuduc, that though he received investiture
from the Emperor of China, he was quite willing to forego
such ceremony unless the imperial envoy came to Hue, his
residence, to perform it, instead of at Hanoi, where it had
usually taken place on previous occasions. No record of the
French treaty of 1862 having been submitted by Tuduc to the
Chinese Emperor exists, and it is also a notable fact that the
treaty with France of 1874 was not even communicated by
Tuduc to China, until six years after its signature, and then it
was not submitted as a duty to his suzerain, but merely as a
pretext for asking assistance against the French.
From the above historical documents, narratives of both Chinese
and Annamese, it would therefore appear that since 1407 China
has never interfered as a Sovereign in the affairs of Annam.
The succession to the throne, the administration and promulga-
tion of laws in Annam have all taken place without China being
consulted. The relations of suzerain and vassal between the
two countries have not been in the past those of supreme political
control and submissive obedience on either side, and there is
thus no historical precedent for the present claim of China’s
suzerainty over Annam in the sensethat its national independence
and sovereign rights have merged into the supreme dominion
of the Chinese Emperor, by mutual consent or otherwise.
It now remains for consideration how far the recognised
principles of international law on state rights are in accordance
with the sovereign independence of Annam, arid its right to
independently conclude treaties with other nations. The prin-
ciples of Grotius and Vattel on this subject are well known,
and fully bear out the political sovereign independence of Annam,
though tributary to China.
It is to more recent authors however whose testimony is within
the spirit of modern international legislation that reference is
here made. John Austin, in his “lectures on jurisprudence, or
the philosophy of positive law,” London, 1873, Lecture VI, page
226, writes thus in elucidation of the subject:—The notions of
sovereignty and independent political society may be expressed
concisely thus :—“ If a determinate human superior not in the
“ habit of obedience, to a like superior, receives habitual obedience
“ from the bulk of a given society, that determinate superior is
“ sovereign in that society, and the society (including the superior)
“ is a society political and independent.”
“ The generality of the given society must be in the habit of
“ obedience to a determinate and common superior whilst that
“ determinate person, or determinate body of persons, must not be


7
“ habitually obedient to a determinate person or body. It is the
“ union of that positive with this negative mark which renders
“ that certain superior sovereign or supreme, and which renders
“ that society (including that certain superior) a society political
“ and independent.”
Austin illustrates this at page 228 by the following passage.
“ A feeble state holds its independence precariously, or at the
“ will of the powerful states to whose aggressions it is obnoxious,
“ and since it is obnoxious to their aggressions, it and the bulk
“ of its subjects render obedience to commands which they
“ occasionally express or intimate. But since the commands and
“ the obedience are comparatively few and rare, they are not
“ sufficient to constitute the relation of sovereignty and sub-
jection between the powerful states and the feeble state with
“ its subjects. In spite of those commands, and in spite of that
“ obedience, the feeble state is sovereign and independent, or in
“ spite of those commands and in spite of that obedience, the
“ feeble state and its subjects are an independent political society,
“ whereof the powerful states are not the sovereign portion.
“Although the powerful states are permanently superior, and
“ although the feeble state is permanently inferior, there is neither
“ the habit of command nor a habit of obedience on the part of
“ the latter. Although the lattei' is unable to defend and main-
“ tain its independence, the latter is independent of the former
“ in fact or practice.”
If the above principles about sovereignty are applied to solve
the question whether China legally possesses a substantial sove-
reignty over Annam such as she claims as a bar to its independence
on which the right of making treaties is based, it will bp evident
that the Chinese claim cannot stand such a test, and must there-
fore be disallowed.
Another celebrated modern international jurist, Bluntschli, in
his “Droit international codifie,” Paris, 1874., takes the same
general view of sovereign states, and at page 92, after treating on
the relations between suzerain and vassal, and after shewing that
the different states of Germany, though formerly vassals of the
Holy Roman Empire, had their rights acknowledged by the treaty
of Westphalia to conclude alliances with foreign powers, he
makes a remarkable statement which is specially applicable to the
relations of Eastern powers with vassal states. “ Inasmuch as
“sovereignty tends to unity, such distinctions between vassal
“ sovereignty and sovereign sovereignty, cannot subsist long.
“ History shows us the truth of this principle. During the middle
“ ages a quantity of vassal states existed both in Europe and Asia.
“ To-day they have nearly all disappeared, because they have been
“ transformed into sovereign states, or have been absorbed by more
“ powerful states. International law ought to keep account of
“ their development—it ought to respect it, it ought not to contri-
“ bute to retard it by seeking to perpetuate the unsustainable
11 formalities of an antiquated jurity.”


Those who are continually asserting that China has a sub-
stantial sovereignty over Annam, would do well to reflect on
these opinions of modern international jurists.—The terms
suzerain and suzerainty have been used by the Chinese envoys
in Europe and by their foreign adherents in China, without their
taking the trouble to ascertain their real significance, or in the
hope that by dint of using them in wrong sense, they may at
last be admitted to mean what neither history nor international
law warrants. Possibly they may have been used as a blind to
cover designs that the Chinese Government is loth to avow; and
the exaggerated claims of suzerainty may have been made to
cover t?he desire to keep foreigners from approaching the Chinese
land frontiers, and so retain its isolation on that side. Although
such a question does not come directly within the limits of the
present paper, it cannot be more appropriately terminated than
by showing what is thought by a British statesman of such
attempts to prevent free land communication with the Chinese
Empire. Sir Rutherford Alcock, in the article in “ Macmillan’s
Magazine,” already referred to, thus characterises such policy.
“ If the Chinese Government continues to show a determina-
“ tion to close all access to her western and southern territories—
“across the Himalayas through Nepaul or Sechuen to Thibet —
“ or by the route from the Assam valley into the Mishmi
“ country which communicates with Batang, a dependency of
“ the rich and fertile province of Szechuen, and is equally bent on
“barring road to Yunnan, an old established trade route, or by
“ any other more easy road, why should Great Britain submit to
“such restrictive and injurious policy? Existing treaties may
“ not give such rights, but international law and usage amongst
“ civilized nations acknowledge no absolute right of exclusion.
“ On the contrary, any act of this kind is justly regarded as an
“ evidence of enmity, if not an over tact of hostility, and the nation
“ deliberately adopting such policy must bear the responsibility,
“ and accept all the consequences.”





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