EXTRATERRITORIALITY IN CHINA1

BY CHARLES DENBY

Formerly in the American diplomatic and consular service in China.

At the Conference on the Limitation of Armaments at Washington in 1921 one of the subjects considered at the request of the Chinese delegation was a proposal that the Western Powers give up their extraterritorial rights in China. This led to the adoption by the conference at its ninth meeting on November 29th of a declaration that the Western nations "are prepared to relinquish extraterritorial rights when satisfied that the state of Chinese laws, the arrangement for their administration and other considerations warrant them in doing so." This was doubtless a great gratification to the Chinese delegates, but the foreigner in China may have experienced less satisfaction at the menace therein involved to a system which tens of thousands of foreign residents in China regard as the sine qua non of their welfare. It was resolved by the Conference to give effect to this declaration by establishing "a commission to inquire into the present practice the laws and judicial sys

of extraterritorial jurisdiction in China tems and the methods of judicial administration in China," that this commission should be constituted within three months after the adjournment of the conference and should submit within one year of its first session its recommendations for legislation.

This promising start was not followed up; no commission was appointed, it being recognized even by the Chinese Government itself that China was not sufficiently advanced in judicial reform to justify so early an investigation. It was then suggested, after a conference with the Chinese Foreign Office, that the proposed commission should be ready to confer on November 1, 1924. This proposal still lacks approval of some of the Powers. There are, therefore, to be no immediate steps towards the abolition of foreign jurisdiction in China. As China, however, continues the revision of her legal code, it is probable that the Powers in the not distant future will be called upon to give their resolution effect.

No opinion can be formed in advance as to how well China eventually may meet the views of the Western Powers. Should the matter be up for decision today there could be only one verdict from an impartial observer of Chinese legislative and judicial conditions, and that would be that it would

1 The words "exterritoriality” and “extraterritoriality” have no definitely agreed upon difference of meaning. There has been a tendency to use the former as connoting the privileges of ambassadors and their suites and the latter as connoting jurisdiction under treaty privileges as in China. In this article the form extraterritoriality will be used except where the form exterritoriality appears in quotations.

be criminal injustice to foreigners in China and an unfriendly service to China herself to place foreigners and their property under Chinese law. The fear expressed by Americans who have a stake there is that the conclusion in this matter may not be determined by an impartial observer. So mixed up with altruism, sentimental philanthropy and unsound commercial views is the American attitude towards China that the interest of those really concerned, the American business men, risk to be sacrificed to homemade considerations of international equity.

It is not surprising that this fear should be entertained. It is natural to think that a free country should rule every person who resides within its confines and should have the right to say that if one does not like its laws he need not go there. Also it is a natural sentiment for Americans to feel that the American Republic ought to be the first to recognize as an equal her sister Republic across the Pacific. These are fine sentiments and they would grace a Fourth of July oration in any town of the Middle West, but they do not commend themselves to those who have reason to be apprehensive of results.

There are few items in our relations with China that are less understood in America and more misrepresented than this question of extraterritorial jurisdiction. China has frequently denounced the system and foreign critics have often expressed their wonder that America, patron of self-determination, could hesitate to withdraw it. An investigation into the history of the doctrine, however, may change the conception that it was imposed on an unwilling China, that it was a new and onerous burden for that country, and that only virtuous feelings could be gratified by its abolition.

Let us consider what extraterritoriality is as a principle of international law; how it came to be applied in China by the United States; how it was received by the Chinese Government of that day and how it has operated in the more than eight decades since the first American envoys put it into their treaty.

In general terms extraterritoriality denominates "certain immunities from the application of the rule that every person is subject for all acts done within the boundaries of a state to its local laws." In China in particular this system indicates the treaty privilege under which foreign consular jurisdiction has been there established and which operates to remove citizens of the treaty Powers from control of Chinese laws and officials and to place them under the protection of the laws of their respective nations. The main idea involved in extraterritoriality in China is that the defendant's nationality is in all cases to determine the law to be applied to the case and the judge to apply it.3 For example, an American in China can only be prosecuted for a crime or pursued as a defendant in a civil action before an American court. Similarly for all other nationalities. If an American wishes to 2 Encyclopædia Britannica, article "Exterritoriality."

3 C. T. Piggott, Consular Jurisdiction and Residence in the Far East.

proceed against a Chinese it must be before a Chinese court, or in the case of an Englishman or a Frenchman before an English or French court, etc., etc. The purpose of this is plain. It is to extend to foreigners in China the protection of their own laws. The reason for it was that Chinese laws and their method of enforcement were repugnant to the sense of equity of foreign Powers.

So deep in the minds of those accustomed to orderly government is the conception that the laws of a government should cover all within its territory that, when foreigners first went to China to trade it was accepted that China's laws should be applicable to them. This was particularly marked in the case of the Americans. The radical difference between Chinese and American laws, if understood at the time, might have shown this to be impracticable. The main principle of Chinese law is the doctrine of responsibility. Some one must be made answerable for every unlawful deed; the lower official is responsible to the higher, the higher official is responsible to the Emperor.

A theft is committed in a village; the village is held responsible, jointly and severally, and with the village its tipao, the official head. A commits suicide on B's doorstep; B is held responsible. The Yellow River bursts its banks; the Governor of Honan begs the emperor to deprive him of his titles, since he is responsible. A bankrupt absconds; his family are held responsible in body and estate. A shopman strikes a blow and goes into hiding; his employer is held responsible for his appearance. A province is overrun by rebels; its governor is held responsible. A murder is committed in a town; the magistrate of that town is held responsible for the discovery and arrest of the murderer, for getting up the case for the prosecution, for trial and judgment, and for the execution of the guilty man; to fail in any one of these responsibilities may well lead to his being cashiered. The result is that nothing which occurs goes unpunished; if the guilty person cannot be found, convicted and punished, then the responsible person must accept the consequences— father, family, employer, village magistrate, or viceroy.4

The effect of this was in practice that for every crime there must be a victim of justice, and it did not much matter whether or not this victim was guilty; any victim would be better than none, and he might be a person who had no responsibility whatever. There were several striking incidents of the carrying into practice of this feature of Chinese law against foreigners. In the year 1821 at Whangpoa near Canton an Italian sailor on the American ship Emily was charged with having killed a woman in a boat alongside by accidentally dropping a jar overboard. The Chinese demanded delivery of the accused for trial and, after some proceedings, directed only to conviction, the accused was strangled by order of the tribunal. Similar instances involving British, French, Portuguese and other foreigners occurred from time to time. This might have opened the eyes of the American Government to the advisability of demanding an impartial hearing officially of H. B. Morse, International Relations with the Chinese Empire, p. 114.

those accused of crime, but the Americans for years consistently held the attitude that while they were in the waters of China they were bound to submit to her laws.

The fact is that in the pre-treaty days of foreign intercourse with China, trade was the only consideration. Foreigners sacrificed all personal considérations to secure permission to trade. The Chinese thus became convinced not only that foreigners would submit to any treatment if their trade were not interrupted, but that foreigners were themselves utterly refractory to reason. Mr. Morse in the work above cited, quotes from a Chinese writer of early times the Chinese maxim in dealing with foreigners, namely: "The barbarians are like beasts and not to be ruled on the same principles as Chinese. Were one to attempt to control them by the great maxims of reason it would tend to nothing but the greatest confusion. The ancient sovereigns well understood this and accordingly ruled barbarians by misrule. Therefore to rule barbarians by misrule was the true and best way of ruling them."

The foreign traders at Canton were in fact subjected to humiliating regulations. They were treated as wayward children under constraint and their daily life was controlled by arbitrary rules. As one writer expressed it, they lived in comfort "in a gilded cage." They were not allowed to have women or arms in their quarters; they could not borrow or lend money; Chinese, in order not to degrade themselves and their country, were forbidden to act as their servants; they could not row for pleasure on the river, nor go for walks unaccompanied by Chinese guardians; they were forbidden to use sedan chairs, the usual Canton vehicle, etc., etc. But so essential was it for purposes of trade to keep on good terms with the officials that this treatment was accepted and a powerful weapon thus put into Chinese hands: a threat to cease trading was an effective answer to every remonstrance.

As the early American officials became aware of the above maxim and its method of application, it is not surprising that when, under foreign guns, China was brought into treaty relations with the Western Powers and led to admit their physical superiority, jurisdiction over American citizens in China was reserved. Accordingly, when Caleb Cushing, first American Minister to China, signed the first Chinese-American treaty at Wang-hea on July 3, 1844, extraterritoriality was made a provision thereof under the following two articles:

Article XXI

Subjects of China who may be guilty of any criminal act towards citizens of the United States shall be arrested and punished by the Chinese authorities according to the laws of China, and citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the Consul or other public functionary of the United States authorized according to the laws of the United States; and in order to the prevention of all controversy and dissatisfaction justice shall be equitably and impartially administered on both sides.