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Published online by Cambridge University Press: 15 March 2021
The Shanghai Municipal Council (SMC), which was mainly controlled by British residents in the treaty port of Shanghai, and protected by the British Foreign Office, came under serious challenge from the Guomindang (GMD) (the rising Nationalist Party of China) from 1927 onwards. The Shanghai Municipal Police (SMP)—an imperial police force with powers to arrest, prosecute and detain—was forced to collaborate with the GMD, and practice unlawful arrest, extradition and re-indoctrination of Communist suspects and convicts. This resulted in the erosion of state powers and the management of prisons. This article argues that the dismantling of British colonialism began to take place in Shanghai during the inter-war period at the expense of some English legal conventions, as demonstrated by SMP violations of existing legal practices and humanitarian commitments. Second, it also suggests that English judicial conventions had an unintended impact on some Chinese civilians, who were keen to safeguard their rights during their detention and trial in and beyond the Shanghai Legation. This article, therefore, offers a new periodisation of British decolonisation and a re-examination of colonial legacy in East Asia.
This article was adapted from an MPhil dissertation submitted to Lingnan University in Hong Kong in 2015. The author wishes to thank Prof. Robert Bickers, Dr Lars Laamann, Dr Mark Hampton, Dr Shuk-wah Poon, Dr Catherine Ladds, Dr Huei-min Sun, Dr James Fellows, Dr Simon Case, Mr Ho-shing To for their valuable advice and guidance.
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23 Lee, ‘Law and Local Autonomy’, pp. 290–292; Cassel, Grounds of Judgment, p. 180.
24 Whewell, ‘British Extraterritoriality in China’, pp. 218–219.
25 For example, they were also entitled to draft some new procedural terms and took part in small prison reforms. See Lee, ‘Law and Local Autonomy’, pp. 224–226.
26 Ibid., pp. 218–219; G. D. Musso, The Mixed Court at Shanghai: Rules of Procedure. S.l.: s.n, 19--?, EM980/293121, (A primary source held at the Archive and Special Collections, SOAS library, University of London), pp. 1–5.
27 Lee, ‘Law and Local Autonomy’, pp. 218–219.
28 Ibid., pp. 222–223.
29 Stephens, Order and Discipline in China, p. 85.
30 Sun, Zhidu yizhi, p. 125; Stephens, Order and Discipline in China, p. 45.
31 Ibid., pp. 95–99; Lee, ‘Law and Local Autonomy’, pp. 217–226.
32 Stephens, Order and Discipline in China, p. 47.
33 Sun, Zhidu yizhi, pp. 123–128.
34 Bickers, Britain in China, pp. 131–137.
35 SMC, Report for the Year 1928 and Budget for the Year 1929 (Shanghai, 1929), p. 1; SMC, Report for the Year 1930 and Budget for the Year 1931 (Shanghai, 1931), pp. 16–21.
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38 Hsia, The Status of Shanghai, pp. 180–181; Shi M. D. (ed.), Shanghai zujie zhi [Record of the Shanghai International Settlement] (Shanghai, 2001), pp. 286–293.
39 ‘Consular committee's revision of modified Chinese proposal of 2 July 1926’, “Rendition of Shanghai Mixed Court”, FO 371/11686, The National Archives [TNA], Kew; Shi (ed.) Shanghai zujie zhi, pp. 286–293.
40 Hsia, The Status of Shanghai, p. 181.
41 ‘Sifa guanxia wenti’ [The controversy over the issue of jurisdiction] in Shanghai zujie wenti [The controversy over the Shanghai International Settlement], (ed.) Wu Z. Y. (Taipei, 1981), p. 175; ‘Article 3, agreement relating to the Chinese Courts in the International Settlement at Shanghai’, Shanghai Provisional Court Agreement, 17 February 1930, FO 676/317, TNA, Kew.
42 Hsia, The Status of Shanghai, p. 181.
43 R. Feetham, Report of the Hon. Richard Feetham, to the Shanghai Municipal Council, vol.1 (Shanghai, 1931), pp. 223–224.
44 G. W. Swire, ‘The Possibilities of the Shanghai Negotiations, 14 April 1932’, “Avon papers”, p. 3 Cadbury Research Library (CRL), University of Birmingham; ‘Report on situation in China, 9 May 1932’, 5308, “Avon papers”, p. 4 (CRL). Many Westerners never believed that the judiciary modernised by the GMD was competent to make independent and unbiased judgements. Some of them even argued that the Chinese courts at the Settlement would be very likely to favour the Chinese, especially those associated with the GMD, when disputes took place between Chinese people and Western settlers. Hence, the survival of the SMP in the Settlement's judiciary not only prevented the GMD from directly apprehending the men they wanted, but it also affected how the suspects were charged and tried.
45 ‘Article 1, consular committee's revision of modified Chinese proposal of 2 July 1926’, “Rendition of Shanghai Mixed Court”, TNA; Hsia, The Status of Shanghai, pp. 74–75, 182.
46 Ibid.
47 Chinese Criminal Code and Special Criminal and Administrative Laws (Shanghai, 1935), articles 103–186; ‘Agreement relating to the Chinese Courts in the International Settlement at Shanghai’, “Shanghai Provisional Court Agreement”, 17 February 1930, TNA; ‘Rendition agreement of the Shanghai Special District Court’, Shanghai zujie wenti (The problem of the Shanghai International Settlement), (ed.) C. Y. Wu (Taipei, 1981), p. 264.
48 Inspector W. H. Widdowson, Police Guide and Regulations (Shanghai, 1938), pp. 171–175, 466–469; R. Bickers, Empire Made Me: An Englishman Adrift in Shanghai (London, 2003), p. 65. The SMP modelled itself on London's Metropolitan Police in the drafting of its practices and its structure.
49 ‘Interview with Dr von Kiebtner on 30 December 1929’, “Shanghai gonggong zujie gongbuju zongbanchu youguan jingwu chu guanyu kelai na boshi fabiao guanyu guomin dang zhengfu he Jiang Jieshi dui Shanghai zujie taidu de tanhua de baogao, 1929–30” [A report prepared by the SMP concerning Dr Kiebtner's comments on the attitude of the Nationalist Government and Chiang Kai-shek towards the International Settlement, 1929–30], pp. 1–3, U1-6-22, Secretariat Files of the SMC, Shanghai Municipal Archives [SMA]. Unlike their Chinese counterparts, the SMP had no power to punish, arrest and detain a man on the basis of mere suspicion, disregarding whether a charge had been made against the man.
50 Widdowson, Police Guide and Regulations, p. 466.
51 O. Kathryn, ‘British and US Anticommunism Between the World Wars’, Journal of Contemporary History 53 (2018), pp. 107–108; M. Louro, ‘The Johnstone Affair and Anti-Communism in Interwar India’, Journal of Contemporary History 53 (2018), pp. 59–60; D. Lowry, ‘The Impact of Anti-communism on White Rhodesian Political Culture, ca.1920s–1980’, Cold War History 7 (2007), pp. 170–172.
52 Bickers, Empire Made Me, pp. 245–246.
53 ‘A letter written from S. Yada—a staff member of the Japanese consulate general Shanghai—to K. J. McEuen—Commissioner of Police, Shanghai, 11 July 1925’, “Chinese Bolsheviks' activities in the General Strike”, I.O.6350, SMP Special Branch Files, RG 263, National Archives and Records Administrations [NARA], Washington D. C; Criminal Investigation Department, ‘Report on strike 18 February 1925’, “Mixed court proceeding against strikers”, I.O.6023, SMP Special Branch Files, NARA, Washington D. C; Detective Sergeant Andrews, ‘Report on the labour unrest during the month of February 1925, 2 March 1925’, “Mixed court proceeding against strikers”, NARA SMP, Police Daily Report, 25 July 1925, U1-1-1146, (Shanghai, 1925), SMA.
54 P. Tizon, ‘Report on Mixed Court proceedings against strikers, 25 March 1925’, “Mixed court proceeding against strikers”, NARA.
55 Widdowson, Police Guide and Regulations, p. 466; Musso, The Mixed Court at Shanghai, pp. 1–5, SOAS library.
56 A. K. R. Kiralfy, The English Legal System (London, 1990), pp. 140.
57 Musso, The Mixed Court at Shanghai, pp. 1–5, SOAS library.
58 ‘Arrest of Hu Cheh-chiao, alleged Communist & Chinese dispatch warrants - Commissioner of Police (1927), 5 July 1927’, “Shanghai gonggong zujie zongbanchu guanyu gongchan dangyuan de yindu wenti 1927–8”, [The controversy concerning the extradition of Communists, 1927–8], U1-3-3313, Secretariat Files of the SMC, SMA.
59 SMP, Police Daily Reports, U1-1-1155, (Shanghai, 1927), p. 251, SMA; Xu E. C., Wo he gongdang zhandou de huiyi [My struggle with the Communists] (Taipei, 1953), p. 189.
60 ‘Deputy Commissioner (Crime), Execution of warrants’, “The Dah Doong Printing Shop No. F.A. 612 Yu Yuen Road. Copy of court proceedings - sheet No. 6 Re Mr. T. S. Lea appeared for the police”, D2754, SMP Special Branch Files, RG 263, NARA, Washington D. C.
61 Widdowson, Police Guide and Regulations, p. 466; Kiralfy, The English Legal System, pp. 141–142. In spite of the importance of the police's obligation to protect the public, police constables are lawfully given wider powers of arrest only when someone is suspected of being about to commit a crime, or having committed an offence serious enough to warrant arrest such as possession of offensive weapons, or offences carrying a minimum of a five-year sentence.
62 “Youguan Gu Shunzhang deng po'an jingguo” [The report concerning the arrest of Gu Shunzhang and his colleagues], 276/7435. (A primary material held at the library of the Ministry of Justice Investigation Bureau in Xindian, Taipei).
63 Wang S. C., ‘Zhou fei enlai da mousha zhenban ji’ [The report concerning the murder organised by Zhou Enlai, Jinri dalu [Mainland China today], 20 July 1954, p. 75; Xu, Wo he gongdang zhandou de huiyi, p. 166.
64 Musso, The Mixed Court at Shanghai, pp. 1–5, SOAS library; The Code of Criminal Procedure of the Republic of China and the Court Agreement Relating to the Chinese Courts in the International Settlement of Shanghai, China (Shanghai, 1936), pp. 28–29.
65 Feetham, Report of the Hon. Richard Feetham, pp. 223–224; The Chinese Criminal Code and Special Criminal Administrative Laws (Shanghai, 1935).
66 T. P. Givens, ‘Prosecutions of the bookstores selling anti-government literature, 22 October 1932’, “Raid on Kwung Long Bookstore, 18 Chekiang Road, re sale of communistic books. Accountant Lee Soh Ming arrested”, D4224, SMP Special Branch Files, RG 263, NARA, Washington D. C.
67 Ibid.
68 Widdowson, Police Guide and Regulations, p. 466; The Code of Criminal Procedure of the Republic of China, pp. 25–26.
69 Montgomery, ‘Report on execution of Shanghai Special District Court Warrant No. 1611 at 518 Foochow Road, 5 February 1931’, “Prosecution of bookstores re sale of Communist books”, D1939, SMP Special Branch Files, RG 263, NARA, Washington D. C.
70 Shenbao [Shanghai Times], 4 February 1931; The Code of Criminal Procedure of the Republic of China, pp. 24–25.
71 ‘“B” Division, Bubbling Well Police Station, Crime Diary, 7 September 1931’, “Report - arrest of Lieu Ping and eight others on 7 September 1931, the Dah Doong Printing Shop No. F.A. 612 Yu Yuen Road. Copy of court proceedings - sheet No. 6 Re Mr. T. S. Lea appeared for the police”, NARA.
72 Shenbao, 11 November 1932.
73 Widdowson, Police Guide and Regulations, p. 467; A. Kotenev, Shanghai: Its Mixed Court and Council: Materials Relating to the History of the Shanghai Municipal Council and the History, Practice and Statistics of the International Mixed Court, Chinese Modern Law and Shanghai Municipal Land Regulations and Bye-laws Governing the Life in the Settlement (Shanghai, 1925), p. 325.
74 The Code of Criminal Procedure of the Republic of China, pp. 33–34.
75 F. Wakeman, Policing Shanghai, 1927–37 (Berkeley, 1995), p. 175.
76 SMP, Police Intelligence Reports, U1-1-1188, (Shanghai, 1932), pp. 117–120, SMA; ‘“D” division, Kashing Road Police Station, SMP Crime Diary, 16 October 1932’, “Case against Chien Tou Seu”, D4131, SMP Special Branch Files, RG 263, NARA, Washington D. C.
77 ‘Telegram sent to Chiang Kai-shek by Wu Xingya, Yiban ziliao minguo ershi yinian (qi)’, [Ordinary information-1932 (7)], 11211, 002-080200-00059-133, 16 October 1932, Chiang Kai-shek Collections, Academia Historia, Taipei.
78 ‘Extract of proceedins in Shanghai Special District Court for 17 October 1932’, “Case against Chien Tou Seu”, NARA.
79 Ibid.
80 ‘Arrest of Chen Tou-seu and other important Communists - Work of Staff of Special Branch, 13 November 1932’, “Case against Chien Tou Seu”, NARA.
81 Shenbao, 30 November 1935.
82 Ibid., 10 July 1936.
83 Widdowson, Police Guide and Regulations, pp. 171–175.
84 Musso, The Mixed Court at Shanghai, pp. 3–4, SOAS library.
85 Ibid., pp. 1–5.
86 ‘Arrest of alleged communist: Non-handing over to Chinese Authorities without proper despatch warrants’, “Shanghai gonggong zujie zongbanchu guanyu gongchan dangyuan de yindu wenti”, SMA.
87 C. Bayly and T. Harper, Forgotten Wars: Freedom and Revolution in Southeast Asia (Cambridge, 2007), pp. 207–278.
88 A. Kotenev, Shanghai: Its Mixed Court, pp. 239–240. According to Anatol Kotenev (a Russian interpreter of the former Mixed Court), “the Court's jurisdiction was localised strictly to a Treaty territory, which in its very substance was neutral as a portion of land set aside for the residence of foreign merchants, peaceful traders, but not politicians and belligerents”.
89 ‘Report on the visit to Shanghai of Sir Miles Lampson in Foreign Office Confidential Print copy of despatch dated 5 June 1929 from Sir Miles Lampson at the British Legation in Peking to Sir Austen Chamberlain at the Foreign Office in London’, FO 405/262, no. 60, Shanghai Political and Economic Reports, vol. 16, (ed.) R. Jarman (Slough, 2008), p. 350.
90 North-China Herald, 13 August 1927; SMP, Police Daily Reports, U1-1-1155, pp. 139–140 SMA.
91 Kotenev, Shanghai: Its Mixed Court, p. 240; ‘Suggest re charges in rendition agreement in Chinese courts in the settlement and French Concession, 1929’, “Chinese courts in the settlement and French Concession”, I.O. 7245, SMP Special Branch Files, RG 263, NARA, Washington D. C.
92 ‘Letter written to E. S. Fessenden by E. I. M. Barret on 16 November 1928’, “Shanghai gonggong zujie zongbanchu guanyu gongchan dangyuan de yindu wenti”, 1927–8, SMA; Kotenev, Shanghai: Its Mixed Court, p. 241.
93 ‘Dispatch written to Under-Secretary of State for the Colonies William Ormsby-Gore by from Commissioner of Weihaiwei Reginald Johnston, 17 December 1927’, “Extradition of Communists from Weihaiwei”, FO 228/3908, TNA, Kew.
94 Shenbao, 12 September 1933.
95 Ibid., 19 September 1933.
96 Ibid., 18 June 1935.
97 Feetham, Report of the Hon. Richard Feetham, pp. 186–189.
98 SMP, Police Daily Reports, U1-1-1155, p. 176, SMA; Feetham, Report of the Hon. Richard Feetham, pp. 190–191.
99 ‘Letter written from E. I. M. Barret to Acting Secretary of the SMC on 21 November 1928’, “Shanghai gonggong zujie zongbanchu guanyu gongchan dangyuan de yindu wenti”, 1927–8, SMA.
100 Ibid.
101 ‘Chinese courts in the settlement and French Concession, 1929’, “Chinese courts in the settlement and French Concession”, NARA.
102 Ibid.
103 ‘Letter written from Commissioner of Police R. M. J. Martin to officers i/c Police Stations, 27 March 1931’, “Assistance to SPSB to arrest two suspected Communists. Tsang Ong Lai, Au Sai Ts”, D4745, SMP Special Branch Files, RG 263, NARA, Washington D. C. It was said that when a Communist is arrested, the policemen had to report the case without delay to the Special Branch. In the event of any doubt as to subsequent procedure, the matter would be referred to the Divisional Officer or to the officer who was in charge of the Special Branch.
104 J. Fellows, ‘Colonial autonomy and Cold War diplomacy: Hong Kong and the case of Anthony Grey, 1967–9’, Historical Research 89 (2016), pp. 567–587.
105 Bickers, Britain in China, p. 115.
106 S. K. Fung, Diplomacy of Imperial Retreat: Britain's South China policy, 1924–31 (Hong Kong, 1991), pp. 172–173.
107 ‘Foreign Office Confidential Print copy of dispatch dated 5 June 1929 from Miles Lampson to Austen Chamberlain’, FO 405/262, Shanghai Political and Economic Reports, vol. 16, (ed.) R. Jarman (Slough, 2008), pp. 349–350.
108 According to the definition of Commissioner Barrett, this man should be classified as a bona fide resident as he had been resided at the Settlement for more than six months at that time.
109 ‘Extract of proceedings in Shanghai Special District Court for Saturday, 2 May 1931’, “Arrest of Lee Sau Chi on a charge of propagating communism and his extradition”, D2316, SMP Special Branch Files, RG 263, NARA, Washington D. C.
110 Ibid.
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112 Ibid., 7 August 1938.
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118 Ibid., pp. 70–71.
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126 ‘Dispatch written from R. J. Ryan to J. R. Jones, 1 February 1933’, “Shanghai gonggong zujie gongbuju zongbanchu guanyu Jiangsu gaodeng fayuan dier fenyuan xingqi yiman de gongchan dangyuan de chuli”, U1-3-4309, Secretariat Files of the SMC, SMA.
127 Hu H. (ed.) Zhonggong dangshi renwu zhuan [Biographies of the Chinese Communist], vol. 13 (Xian, 1992), p. 328.
128 Xu J. X., ‘Xilao douzheng jishi’, Shanghai qingyunshi ziliao, p. 22.
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131 Ibid.
132 Shanxi fanxing yuan gaikuang [The overview of the Shanxi Reformatory], pp. 15–16.
133 Lin L., ‘Yige baogui de jiaoxun fanxing yuan de shenghuo saomiao’ [A valuable lesson: The portrait of the life inside the reformatory], Shelian Mengbao [The Newspaper of Social Alliance], no. 26–27, D2-0-2020-32, p. 33, SMA.
134 Ibid.
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139 L. Fraser, ‘Report on military attaché's recent tour to Nanjing and the South’, “Military Attache's tour of South China”, 1 August 1935, FO 371/19289, TNA, Kew.
140 Shenbao, 18 December 1932; ibid., 7 April 1933.
141 Ibid., 5 February 1933; ibid., 5 April 1933.
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144 Bickers, Empire Made Me, pp. 185-186. Bickers leaves the treatment of Chinese reactionaries largely untouched when he briefly elucidates how the SMP's prosecution powers in the mid-1920s were challenged by fervid Chinese nationalism in armed and violent cases, as well as in relation to offences connected to labour unrest.
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