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Extraterritoriality in China

Published online by Cambridge University Press:  04 May 2017

Harold Scott Quigley
Harold Scott Quigley*
Affiliation:
University of Minnesota
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Extract

Among the subjects tentatively suggested by the Government of the United States in September, 1921, to the governments invited to participate in a conference on “ Limitation of Armament” and on “ Pacific and Far Eastern Questions” was that of the application of the principles that might be decided upon in questions relating to China to the territorial and administrative integrity of that state. When the Committee on Pacific and Far Eastern Questions took up the general discussion of matters within its purview, the expressions of high intention toward China on the part of the different interested Powers were so unanimous that it was deemed advisable to draw up immediately a statement of principle embodying these sentiments. At the first meeting of the committee the Chinese delegation had presented a group of statements of principle, of which the first reads: “ The Powers engage to respect and observe the territorial integrity and political and administrative independence of the Chinese Republic,” and the fifth as follows: “ Immediately or as soon as circumstances will permit, existing limitations upon China's political, jurisdictional and administrative freedom of action are to be removed.”

Type
Research Article
Information
American Journal of International Law , Volume 20 , Issue 1 , January 1926 , pp. 46 - 68
Copyright
Copyright © American Society of International Law 1926

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References

1 Conference on the Limitation of Armament (Washington, 1922), p. 10.

2 Same, pp. 866-868.

3 Same, pp. 889-890.

4 Conference on the Limitation of Armament, p. 148.

5 Same, p. 1624.

6 Same, p. 938.

7 Same, pp. 932-6.

8 Same, pp. 1642-1646. The text of the resolution is printed in the Supplement to this Journal , Vol. 16, pp. 76-77.

9 In the treaty of Friendship, Amity and Commerce between China and Sweden, of July 2,908, occurs the article: “ However, as China is now engaged in reforming her judicial system it is hereby agreed that as soon as all other treaty Powers have agreed to relinquish their extraterritorial rights, Sweden will also be prepared to do so.” MacMurray, J. V. A.,Treaties and Agreements with and concerning China, 1894-1919 (New York, 1921), I, p.45. In the Treaty of Amity between China and Switzerland, dated June 13, 1918, an attached declaration provides: “When China shall have improved her judicial system,Switzerland shall be ready with the other treaty Powers to give up the right of consular jurisdiction in China.” MacMurray's Treaties, II, p. 1430.

10 T. R. Jernigan, China in Law and Commerce (N. Y. 1905), p. 194. See Liu Shih-Shun,Extraterritoriality, its Rise and its Decline (New York, 1925), pp. 49-50.

11 Article VI. Cited in Morse, H. B., The Trade and Administration of China, 3rd ed. (Shanghai, 1921), p. 201 Google Scholar.

12 H.B. Morse, Trade and Administration, p. 201.

13 Work cited, p. 194.

14 Morse, H. B., International Relations of the Chinese Empire (Shanghai, 1910), I, pp.44-45 Google Scholar.

15 H.B. Morse, International Relations, I, p. 64.

16 Latourette cites an exception of 1687, in which a Chinese official suggested that anEnglish sailor accused of injuring a Chinese should be punished by his own countrymen. In The History of Early Relations between the United States and China (New Haven, 1917), p.42, n. 161. Following Sir George Staunton, some writers have stated that the rule followed in China was that of sending foreigners accused of crimes not capitally punishable to their own countries for punishment. But Dr. Koo has shown that Staunton's own translation of the criminal code (Ta Tsing Lu Li), taken as a whole, does not support the conclusion drawnfrom an isolated paragraph. Status of Aliens in China (New York, 1912), pp. 123-6.

17 koo, Status Of Aliens, Ch. IX; H. B.Morse, International Relations, I, Ch. V.

18 koo, Status Of Aliens, Ch. IX.

19 koo, Status Of Aliens, pp. 133-7.

20 Great Britain simply acted under the Order in Council of 1834, establishing a court atHongkong in 1843. See Koo, pp. 135-145.

21 The dates were: Russia, 1689, revised in 1858 and 1860; Great Britain, 1843, revised in 58 and 1876; United States, 1844, reaffirmed in 1858 and revised in 1880; France, 1844,reaffirmed in 1858; Sweden and Norway, 1847, revised as to Sweden in 1908; German CustomsUnion, 1861; Denmark, 1863; The Netherlands, 1863; Spain, 1864; Belgium, 1865;Italy, 1866; Austria-Hungary, 1869; Peru, 1874; Brazil, 1881; Portugal, 1887; Japan, 1896;Mexico, 1899; Switzerland, 1918. Hertslet's China Treaties (London, 1908), I, passim.For Sweden and Switzerland, MacMurray, J. V. A., Treaties, I, pp. 744-5; II, p. 1430.

22 China Year Book, 1921-2, p. 699.

23 China Year Book, 1925, p. 783.

24 China Year Book, 1921-2, p. 625.

25 China Year Book, 1921-2, p. 626.

26 China Year Book, 1924, p. 1194.

27 Hertslet's China Treaties, I, pp. 237-8; 380-1; 404-5.

28 The clause is applicable, apparently to the extent of conferring the right. This was attested by the treaty of 1919 between China and Bolivia which contained a most-favorednationclause. It was necessary for Bolivia to waive extraterritorial rights in a subsequent exchange of notes. China Year Book, 1925, p. 608. But the most-favored-nation clause does not carry a definition of extraterritorial procedure. And the case of the Sino-Chilean treaty furnishes rather weak evidence against the first statement in this note. The treaty,entered into in 1915, contained a most-favored-nation clause but no grant of extraterritorial rights. The honorary Chilean consul in Shanghai attempted to take jurisdiction over a Chinese claiming Chilean citizenship, but his right to do bo was denied by the Chinese Government and failed to be sustained by the diplomatic body, whence his failure.

29 Hertslet's China Treaties, I, pp. 76, 562.

30 Article XXV of the Treaty of Whampoa.

31 This statement of M. Padoux, Adviser for a number of years to the Bureau of Audit of the Chinese Government and an authoritative publicist on Chinese affairs, was contained in a letter to the Peking Leader, published in that paper on Aug. 20,1925, pp. 6,8. Obviously,opinions haye differed as to what constitutes most-favored-nation treatment in the matter of extraterritorial jurisdiction. M. Padoux's statement directly contradicts that of Dr. Koo Status of Aliens, pp. 176-7) as far as the latter applies to civil cases: “ It may, therefore,be stated as a rule that mixed cases between Chinese and foreign subjects in China are heard and determined by the authorities of the defendant's nation, an officer of the plaintiff's nation being entitled to watch the proceedings, and examine and cross-examine witnesses, and,if dissatisfied with the judgment rendered, protest against it in detail.”

32 The foreign population in China in 1923 was 324,947, of which 201,704 were Japanese,856 Russians, 14,775 British, 9,356 Americans, 3,424 Portuguese, 3,361 French and 2,233 Germans. The total population in China of the states which in 1918 did not possess extraterritorial rights was, in 1923, 443. Of these 400 were Swiss, who secured the rights in 1918.China Year Book, 1925, p. 30.

33 Koo, Status of Aliens, pp. 205-211; China Year Book, 1921-1922>, pp. 621-2.

34 China in Law and Commerce, pp. 200-201.

35 Consul Bailey to Secretary Seward, Sept. 15, 1879, Foreign Relations, 1879, p. 229.

36 Portugal has 8, Belgium 6, Italy 5, Denmark 1, The Netherlands 1, Spain 1, Switzerland 1.

37 Koo V. K. W., Status of Aliens, pp. 181-2.

38 Act of June 30, 1906, in Hinckley, FrankE., American Consular Jurisdiction in the Orient (Washington,1906), pp. 219-223.

39 Willoughby, W. W., Foreign Rights and Interests in China (Baltimore, 1920), pp.44-51 Google Scholar.

40 Lobingier C. S.,Extraterritorial Cases (Manila, 1920)>.

41 In August, 1925, the Chinese Minister of Justice declared that the Shanghai Mixed Court had no legal foundation. Peking Leader, Aug. 20,1925, p. 1.

42 Morse, International Relations, II, p. 134. He says further: ‘ ‘ The consular assessor is a party to the judgment in every case—in police cases because of the interest of the foreign community, and in suits between Chinese because the Chinese official, with his traditional methods of enforcing judgments, must not be admitted to an unfettered jurisdiction within the ‘ area reserved for foreign trade and residence.’ ” See also Couling, S., Encycl. Sin. Shanghai, 1917), p. 378. Mayers, Treaties, etc., gives the rules for the mixed court, as revised in 1869, on pp. 236-7. Barton, Sydney, “ The Shanghai Mixed Court,” in Chinese Social and Political Science Review, Vol. V, pp. 31-41.

43 Willoughby, , Foreign Rights and Interests, pp. 62-4 Google Scholar.

44 Barton, Sydney, article cited, pp. 36, 37.

45 Same, pp. 38-39.

46 “ Extraterritorial Jurisdiction in China,” 4 Mich. Law Rev., pp. 345-6.

47 HinckleyF. E., American Consular Jurisdiction in the Orient, pp. 159-160. Mr.Hinckley appears not to take note of the differentiation in procedure pointed out by Padoux and previously dealt with in this article.

48 Authoritative statements of the defects in extraterritoriality in China are plentiful.Among them may be suggested: Hart, Sir Robert, “ Proposals for the better Regulation of Commercial Relations,” found as Appendix D in Morse, International Relations, II, pp.6-461; Willoughby, W. W., Foreign Rights and Interests, pp. 67-87; Willoughby, W. W.,China at the Conference (Baltimore, 1922), pp. 114—120; A. Nachbaur, Ed., L'ExterritorialiU en Chine (Peking, 1925), passim (also presents an argument by G. Padoux favorable to extraterritoriality); Tan, S. H. and others, “ Exterritoriality in China,” reprinted from Chinese Students' Monthly, Sept., 1925; Tyau, M. T. Z., “ Exterritoriality in China and the Question of its Abolition,” British Year Book of International Law, 1921-23, pp. 133-149; statement of “ Questions for Readjustment submitted by China to the Peace Conference,”in China Year Book, 1921-2, pp. 726-9

49 Quoted by Bishop: “ Extraterritoriality in China,” Chinese Social and Political Science Review, Vol. V (a), Sept., 1920, p. 175.

50 Article cited, p. 177.

51 Ohlinger G. “ Extraterritorial Jurisdiction in China,” 4 Mich. Law Rev., p. 348.

52 Williams, B. H. “ The Protection of American Citizens in China: Extraterritoriality, ” this Journal ,Vol. 16, Jan. 1922, pp. 48-52 Google Scholar.

53 KuoMr. Y. K. quotes James Lorimer's quotation from Professor Flint: “ There is probably not a single moral precept in the Christian Scriptures which is not substantially also in the Chinese classics.” Article on “ Some Observations on Chinese Legal History,” in Chinese Social and Political Science Review, Vol. V (a), Dec. 1920, p.258.

54 MChang, Y. C., , “ The Chinese Judiciary, ” in Chinese Social and Political Science Review,Vol. II, Dec. 1917, p. 82 Google Scholar.

55 Chinese Supreme Court Decisions (Peking, 1920), p. 1.

56 MChang Y. C., “ The Chinese Judiciary,” p. 78.

57 Ta Tsing Lu Li (Laws of the Tsing Dynasty). Largely but not wholly penal law.

58 Wang Chung-hui, “ Revision of the Chinese Criminal Code, ” 13 111. Law Rev., 219-33.The Provisional Criminal Code was published in English in 1919. It may be found in theChina Year Book, 1921-2, pp. 372-420. The Second Revised Draft of 1919, published in English in the Chinese Social and Political Science Review, Vol. V (1919), pp. 144-168, and 0-295, has not been placed in effect.

59 Published in English at Peking in 1919.

60 China Year Book, 1925, pp. 596-8.

61 Art. 283.

62 Art. 286.

63 M China Year Book, 1921-2, pp. 654-7.

64 Conference, etc., p. 938.

65 Quigley, H. S., “ Some Aspects of China's Constitutional Problem, ” in Political Science Quarterly, Vol. 39, Jan. 1924, pp. 189-200;Google Scholar also “ The New Break-up of China,” in North American Review, Vol. 222, Sept.-Nov. 1925, pp. 102-112.

66 The Law of the Organization of the Judiciary was published in English in Peking, and is available in China Year Book, 1912, pp. 326-344. It was promulgated in 1910. It provided for four grades of courts, the lowest of which was abolished in 1914.

67 The number given in the China Year Book, 1925, is 58 (p. 602).

68 Chang, Y. W. “ The Chinese Supreme Court,” Chinese Social and Political Science Review, Vol. VIII, Jan., 1924, pp. 59-60 Google Scholar.

69 China Year Book, 1925, p. 600.

70 For the laws of its organization, jurisdiction and procedure, see China Year Book, 1925,pp. 609-614.

71 Chinese Social and Political Science Review, Vol. V, (a), Dec., 1920, pp. 309-313.

72 China Year Book, 1924, pp. 880-883.

73 China Year Book, 1921-2, pp. 740-741.

74 China Year Book, 1921-2, pp. 638-644.

75 Letter of M. Pergament, professor of civil law at the University of Leningrad, temporary legal adviser to the Soviet Embassy, Oct. 7,1925.

76 Peking Leader, May 12, 1925, p. 2.

77 Japan Weekly Chronicle, Aug. 20, 1925, p. 230.

78 The Chinese delegation to the Versailles Conference gave the number of modem prisons then in operation as 41, distributed throughout all the provinces.

79 Ohlinger G., article cited, p. 348.