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ernments will be prepared to make official diplomatic representations. In this respect the promise of the American State Department goes beyond the traditional practice of the Department prior to Mr. Taft's administration. It will be noted that the support pledged is not limited to diplomatic support. It may mean, therefore, complete support of any kind necessary to protect the operations of the consortium. Such an interpretation would, of course, include military support. That an American Secretary of State is competent to commit the Government to such an undertaking in behalf of private contracts has been denied by Secretaries Marcy and Day, as above set forth.
There apparently is no intention of official participation in the securing of loans for the consortium; but in the event of competition the goverments will lend the support of their diplomatic representatives. To this extent, the action of the State Department under the new consortium will be comparable to the diplomatic support exerted by Mr. Taft's administration to secure American participation in the Hukuang Railway Loan.
To the appointment of foreign officials in China for purposes of supervision, which became such an objectionable feature under the old consortium as to lead to American withdrawal, the concurrence of the State Department has been given in advance in the correspondence and diplomatic notes of Mr. Lansing leading up to the formation of the new consortium. A measure of control to prevent the abuse of this dangerous expedient is retained by the requirement in the agreement with the bankers that they will follow the policies outlined by the Department of State and submit the terms and conditions of each loan for the approval of the Department. It will be recalled that the negotiations of the American group in the old consortium were carried on with the approval and under the direction of the Department of State, but the department, representing only one of a partnership of six, found itself entangled in embarrassing political negotiations from which it was only extricated by an inglorious withdrawal from the whole transaction.
A few months after the new consortium was formed another change of administration took place in Washington, and on March 10, 1921, the representatives of the American group addressed a letter to the new Secretary of State, inquiring if the policy of the Department in encouraging American interests in the assistance of China through the operations of the international consortium was in accord with his views and received his approval. The letter stated that the operations of the consortium are in no way designed to interfere with the private initiative of Americans or other nationals in China, that it does not propose to undertake any mercantile, industrial or banking projects, but plans only to help China in the establishment of her great public utilities, such as the build
ing of her railways, canals, etc., thereby assisting in stabilizing China economically and financially, and making that field a safer one for the initiative of our citizens in private enterprises in commerce, industry, etc.
In reply, Secretary Hughes, on March 23, 1921, informed the American group that the principle of this cooperative effort for the assistance of China has the approval of this Government, which is hopeful that the Consortium constituted for this purpose will be effective in assisting the Chinese people in their efforts towards a greater unity and stability, and in affording to individual enterprises of all nationalities equality of commercial and industrial opportunity and a wider field of activity in the economic development of China."
THE PROTECTION OF AMERICAN CITIZENS IN CHINA:
BY BENJ. H. WILLIAMS
THE ORIGIN OF EXTRATERRITORIALITY IN CHINA
The most important single step taken by the western powers in protecting their nationals in China was the acquisition of extraterritoriality. This withdrew them from the jurisdiction of Chinese law and placed them under the laws and tribunals of the home country. As there is at the present time a great deal of discussion as to whether these rights should be withdrawn it may be worth while to glance for a moment at the reasons for the origin of the system, and this may in turn enable us to judge better whether the conditions which gave rise to it have as yet passed away.
Prior to the intercourse of western nations with China the system of extraterritoriality had existed in certain other oriental countries, dating back to the exemptions allowed under the Greek Emperors at Constantinople. But when the western nations came in contact with China they found there no willingness to allow immunities from the Chinese law. China had gone through a period of legal evolution similar in this respect to that of the European nations but earlier in date. The Chinese law, like that of the West, had become territorial, and all within the Emperor's domain were subject to his jurisdiction. The Chinese Penal Code provided: "In general, all foreigners who come to submit themselves to the government of the Empire, shall, when guilty of offenses, be tried and sentenced according to the established laws."'2
It is true that in the case of the Russian relations along the northern border it was provided by treaty as early as 1689 that where the subjects of one country should commit offenses in the other they should be taken across the border for punishment. At Canton, however, where the greater part of the trade with the West was carried on, the strict territoriality of the law prevailed. During the early period the Chinese took jurisdiction over all criminal cases, including those where Europeans were concerned.
1See Frank E. Hinckley, American Consular Jurisdiction in the Orient, Washington, D. C., 1906; Philip Marshall Brown, Foreigners in Turkey, Princeton, N. J., 1914.
2 Sir George Thomas Staunton, Penal Code of China (a translation), London, 1810, Sec. XXXIV, p. 36.
The Terranova case illustrates the methods used by the Chinese in compelling the surrender of an accused foreigner. During September, 1821, while the American ship Emily was at Canton, a member of the crew, Francis Terranova, an Italian by birth, was accused of causing the death of a Chinese woman. She was selling fruit in a small boat alongside the Emily; and the sailor, whether by accident or design, dropped an earthen jar overboard, striking her upon the head and causing her to fall into the water and drown. The Chinese authorities immediately demanded that Terranova be surrendered to them. The captain of the Emily refused to deliver him, but instead placed him in confinement on the boat. After negotiations it was agreed that he should have a fair and impartial trial by a Chinese magistrate on board of the Emily. The trial was accordingly held, but compared with American standards of justice it was exceedingly unfair to the accused. The defendant was adjudged guilty and request was made that he be sent ashore for execution. During the negotiations which followed this demand the Americans are reported to have said: “We are bound to submit to your laws while we are in your waters, be they ever so unjust. We will not resist them."4
The Americans refused to surrender the prisoner, stating however that they would make no resistance should the Chinese come aboard and take him. Upon receiving this answer the local authorities arrested the security merchant and linguist of the Emily and placed them in close confinement in Canton. The American trade was ordered to be stopped, and the merchants were forbidden to supply the ship with provisions. After a week, during which time the American traders experienced great inconvenience, Terranova was surrendered. A second trial was held at Canton at which no foreigners were allowed to be present. The accused was found guilty and strangled to death within twenty-four hours at the public execution grounds in Canton. His body was then returned to the Emily. From this it may be seen that the Chinese claimed jurisdiction over foreigners within their territory and used vigorous methods to enforce their claims.
OBJECTIONS OF FOREIGNERS TO THE CHINESE JURISDICTION
Submission to Chinese jurisdiction was, however, revolting to foreigners on account of certain obnoxious features of the Chinese law and procedure, which may be described as follows:
8Staunton, supra., p. 517, setting forth an edict demanding the surrender of an accused European at Macao See also Peter Auber, China, an Outline, London, 1834, p. 85; Hosea Ballou Morse, The International Relations of the Chinese Empire, London, 1910, Vol. 1, p. 100.
North American Review, Vol. 40, p. 66, giving the account of an eye-witness to the trial.
Severity and Cruelty of Punishments According to the Penal Code there were several gradations of punishments varying with the seriousness of the crime. These, in brief, consisted of death by slicing, decapitation and strangulation; transportation for life or a term of years, often combined with penal servitude; whipping with the bamboo; and wearing the cangue, or a square wooden frame around the neck. This was a system of severe penalties and humiliations without any idea of reformation except through fear and force. There is evidence that the actual administration of the law was by no means as severe as the written code would indicate. There were a number of reasons for mitigation of punishment and for exceptions in particular cases, so that the nominal and outward form of the law lost much of its severity in the actual application. It is doubtful if, on the whole, the Chinese penalties were any more severe than those in force in England at the beginning of the nineteenth century. Yet nevertheless the impression among foreigners was that the Chinese law was full of cruel and unusual punishments, and this had much to do with creating a demand for extraterritoriality.
Bad Conditions in Chinese Prisons
The prisons were not used for confinement as punishment after crime, but rather for the detention of the accused and oftentimes of the accuser and witnesses while awaiting the trial. They were ordinarily in a filthy and unhealthful condition. The prisoners were huddled together in single enclosures. Overcrowding was common. Cases of skin infection were frequent; and conditions in general were favorable to the propagation of disease. Samuel Wells Williams estimated that the number of those who died in prison was twice as great as the number of those dispatched by the executioner. He mentions that 200 deaths were reported for the Cantonese prisons in 1826 and 117 in 1831.5
Administration of Justice by Executive Officers
Until recently there has been no separate judiciary in China. The judicial system has been in the hands of the administrative officials. The District Magistrate, who presided over the court of first instance, was also Sheriff, Tax Collector, Overseer of the Public Roads, Registrar of Lands, Famine Commissioner, Officer of Education, Coroner and Prosecuting Attorney. The administrator must be a man of energy and vigorous action in upholding the majesty of the law. The rights of the state in the punishment of crime must loom larger in his mind than the rights of the
58. Wells Williams, The Middle Kingdom, New York, 1883, Vol. I, p. 514.
6See T. R. Jernigan, China in Law and Commerce, New York, 1905, p. 35; J. Thomson, The Land and the People of China, London, 1876, p. 248.