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individual. Accordingly it would be useless to expect a judicial attitude or a disposition to apply the law in a scientific manner. Furthermore the widely known corruption of the Chinese officials naturally made the westerner averse to submitting himself to their jurisdiction. Proceeds from tax collection, presents, rewards for connivance with criminality, exactions of all kinds went to make up the compensation of the under-paid official; and it was well known that bribery often controlled the decision in a case at law.

Torture and Prejudice against the Accused

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Foreigners shrank from submission to trial by Chinese tribunals because of the methods of torture to extort testimony which were common at that time. In cases where the Magistrate believed the witness to be testifying falsely or where he refused to answer a question it was customary to apply the instruments of torture. Torture was also quite universally applied upon the person of the accused. Although presumed to be guilty no penalty could be inflicted without a confession. To obtain this confession the accused was subjected to torture. The following account of an eye-witness illustrates this procedure. The accused was compelled to kneel upon chains. His hands were fastened behind his back and tied to a stake held by two policemen. He was evidently in agony, and each time he swerved to relieve the pain he was brought back to position with a blow upon the head. His cries for mercy brought forth only the answer: "Suffer or confess. How repugnant such practices were in the eyes of the foreigners can readily be seen when it is remembered that in England and America not only was the accused protected against torture but he could not even be compelled to testify against himself.

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The Doctrine of Responsibility

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The Chinese law held the group for the acts of the individual. The family was held for the acts of its members. This is well illustrated by a case occurring as late as 1900 in which two Chinese, who had become citizens of the United States and were residing in Honolulu, committed a political offense against the Chinese Government. Being unable to reach the offenders in Honolulu the Chinese officials proceeded by fine and imprisonment against the families of the two men in China.10

The doctrine of responsibility was likewise applied to foreigners as a group. If a Chinese was killed by a foreigner the Chinese officials held the foreigners of that nationality to account, demanding that they should

7Thomson, op. cit., p. 248; Alabaster, Notes and Commentaries on Chinese Crim

inal Law, London, 1899, p. 17; Morse, op. cit., Vol. I, p. 112.

SW. C. Milne, Life in China, quoted in S. W. Williams, op. cit., Vol. I, p. 508. Auber, op. cit., p. 56; Alabaster, op. cit., p. LXX.

10 U. S. Foreign Relations, 1902, p. 244.

surrender some one for execution, to render a life for a life. This was their attitude in the case of the Lady Hughes11 in 1784, in the Terranova incident of 1821,12 and in the case of the Topaze of the same year.13

Prejudice of the Chinese against Foreigners

The official class of Chinese looked upon the men of other nations as barbarians and, in a measure, without the pale of the law. "The barbarians are like beasts, and not to be ruled on the same principle as citizens. Were anyone to attempt controlling them by the great maxims of reason, it would tend to nothing but confusion. The ancient kings well understood this, and accordingly ruled barbarians by misrule; therefore to rule barbarians by misrule is the true and best way of ruling them."'14 In 1836 a complaint made to the British Foreign Office concerning conditions in China asked, among other things, that British subjects be entitled to the protection of Chinese laws, "such as they are." "Why the foreign residents of China should be regarded as without the pale of all governmental laws," the memorial continued, "it is difficult to understand; but such is the fact; for while the Chinese Government has adopted the principle that it is right to control them without laws, no foreign power affords any protection to the residents here. ''15

It was for these reasons that the principal western nations demanded and secured from China the immunities from Chinese law and jurisdiction commonly referred to as extraterritoriality, which constitute an important divergence from the principles practiced by the western nations in their dealings with one another. Great Britain was the first to secure this concession by treaty provision. This was obtained as a result of the war with China of 1839-42. Although the matter was not mentioned in the Treaty of Nanking, which concluded the war, it was nevertheless provided for in the supplementary treaty signed in 1843. The United States following this lead obtained the inclusion of extraterritoriality in the Treaty of 1844.

The provisions as set forth in the Treaty of 1844 between the United States and China, and as later amplified by the Treaty of 1880, constitute a full and explicit statement of the privileges of extraterritoriality, and may be summarized as follows:

1. American citizens who are accused of crime in China are subject to trial and punishment by the authorized American tribunal according to the laws of the United States.

118. W. Williams, op. cit., Vol. II, p. 451; Auber, op. cit., p. 183; Morse, op. cit., Vol. I, p. 102.

12 North American Review, Vol. 40, p. 67.

13 Morse, op. cit., Vol. I, p. 105.

14 Father Premare's translation of the Confucian commentator Su Tung-po, quoted in Morse, op. cit., Vol. I, p. 112, and S. W. Williams, op. cit., Vol. II, p. 450.

15 Chinese Repository, Vol. V, p. 334.

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2. Controversies between citizens of the United States and China may be settled by suit brought in the tribunal of the defendant's nationality according to the law of the defendant's nationality. An official. of the plaintiff's nationality may be present.

3. Disputes between citizens of the United States in China are subject to the jurisdiction of the United States.

4. Controversies between citizens of the United States and citizens or subjects of any other government shall be regulated by the treaties existing between the United States and such government.

SOME DEFECTS IN EXTRATERRITORIALITY

When China declared war against Germany and Austria the treaty rights of those countries were abrogated and the right of extraterritoriality was taken from them. China has refused to restore those advantages, and in the trade agreement which was signed with Germany on May 20, 1921, it was provided that the life and property of the nationals of either power traveling or residing within the territory of the other shall be under the jurisdiction of the local courts. Furthermore, in September, 1920, China withdrew recognition from the Russian Government. This left the Russians in China without any official representatives; and their cases must now be tried before Chinese officials, acting in place of the Russian consular tribunals. These steps toward the abolition of extraterritoriality have given China the hope that in the near future the entire system may be done away with. Indeed it was with such a hope that the representatives of the Chinese Republic, when presenting their case at the Peace Conference at Paris in 1919, requested, among other things, that extraterritoriality should be abolished.

In connection with this request it is necessary to discuss, first, what are the disadvantages that are claimed against the system; and secondly, whether the laws of China show promise of becoming sufficiently in accord with western standards of justice to be acceptable for the government of foreigners in that country.

Before examining the facts, however, it may be pointed out that there are strong reasons for expecting an indifferent administration of the law under a system of extraterritoriality. A crime is an offense against society which society must punish. An aroused public opinion gives vigor to the enforcement of the law, demands adequate police protection and jail facilities and upholds the hands of the judiciary. With public opinion awakened the machinery of the law will operate smoothly; but when the public slumbers an inevitable inertia results. Under a system of extraterritoriality the injured society is powerless to apply punishment to foreigners who offend against it. Foreign officials must pass judgment upon them. There is no aroused public sentiment urging the foreign government to a vigorous enforcement of its laws. An indifference results, which is only

increased by the element of racial prejudice. From this point of view it appears that extraterritoriality, however necessary it may have been, has a fundamental weakness, and that the true and normal system of criminal punishment is that which has grown up with the system of international law in the West under which the courts of a country have jurisdiction over all crimes committed within the territorial boundaries.

After extraterritoriality had been in operation for fourteen years in China the American Minister, Mr. Reed, roundly condemned the failure to punish adequately Americans who were guilty of crime in that country. He said: "We extort from China 'ex-territoriality,' the amenability of guilty Americans to our law, and then we deny to our judicial officers the means of punishing them. There are consular courts in China to try American thieves and burglars and murderers, but there is not a single jail where the thief or burglar may be confined. Our consuls in this, as in many other particulars, have to appeal to English or French liberality, and it often happens that the penitentiary accommodations of England and France are inadequate to their own necessities, and the American culprit is discharged. I consider the exaction of 'ex-territoriality' from the Chinese, so long as the United States refuse or neglect to provide the means of punishment, an opprobrium of the worst kind. It is as bad as the coolie or the opium trade.

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This early experience has been corroborated by a number of opinions since that date. In 1864 Minister Burlingame wrote to the State Department in regard to the execution of one Buckley for the murder of a Captain McKennon: "Such men as Buckley had so long escaped punishment that they had come to believe that they could take life with impunity. The United States authority was laughed at and our flag was made the cover for all the villains in China."'1 The next year Samuel Wells Williams, Chargé d'Affaires, wrote: "Cases have already occurred in China of aggravated manslaughter, and even of deliberate killing of the natives by foreigners, whose crimes have been punished by simple fines or mere deportation or short imprisonment; while foreigners strenuously insist on full justice when life is taken by the natives, or maiming with intent to kill. ’’18

In 1871 Mr. Seward, Consul-General at Shanghai, wrote: "It would be difficult to say that the extraterritorial system is not often productive of injustice to the Chinese. A few years ago the Viceroy at Nanking, in presenting a case on behalf of some poor boat people, whose vessel had been sunk by a foreign steamer, declared that the frequency of such accidents had so aroused the people along the river that he feared they would

16Sen. Doc. 30, 36th Cong., 1st sess., p. 355.

17U. S. Foreign Relations, 1864, Part 3, p. 400. 18Ibid., 1865, Part 2, p. 454.

endeavor to make reprisals should the foreign courts continue to refuse redress. ''19

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In 1876 Sir Robert Hart, Inspector General of the Imperial Maritime Customs, in speaking of the defects of extraterritoriality, commented as follows: "Chinese complain that foreigners assault Chinese with impunity; that what China calls murder is invariably excused or made manslaughter by foreign courts; that where Chinese law prescribes death the offending foreigner is sentenced to only a short imprisonment; and that, while the foreigner insists that Chinese shall be punished with death where foreign life has been lost, he, on his side, expects China to accept a small sum of money in lieu of a death punishment where Chinese life is lost.''20

In 1883 a riot against foreigners occurred in Canton and a large amount of property was destroyed. The feelings of the people had been aroused by the killing of a Chinese by a British subject while the latter was in an intoxicated condition. There was great fear on the part of the Chinese that the culprit would either be released or escape with a trifling punishment. While they were in this state of mind another Chinese was killed by a Portuguese watchman; and then the trouble broke loose.21

A case occurring in 1904 will further illustrate the indifference of foreigners to crimes committed against the Chinese. In September of that year in Canton an unoffending Chinese of good standing in the community was seized by a group of drunken sailors and thrown into the water, where he was drowned. All of the witnesses subsequently examined, both foreign and Chinese, testified that the crime had been committed by American sailors. Mr. Conger, the American Minister, Mr. Rockhill, his successor, and the American Consul-General at Canton considered that the identity of the culprits as Americans had been established. But no one was ever brought to justice for the offense. A great deal of intense feeling was aroused in Canton on account of the crime; and the native and foreign press was very caustic in commenting on this apparent breaking down of justice. The native press in particular contrasted the indifference of the American enforcement of the law in this case with the unusual energy displayed in demanding redress for crimes committed against foreigners by Chinese. The American Government finally paid an indemnity of $1,500 to the family of the murdered man.22 But the feeling was only partially allayed; and in the case of the Lienchou murders a year later, when five Americans were killed, the Canton correspondent of the North-China

19U. S. Foreign Relations, 1871, p. 170.

20 Morse, op. cit., Vol. II, p. 457.

21U. S. Foreign Relations, 1884, p. 46 et seq.

22U. S. Foreign Relations, 1905, p. 112; North-China Herald, Vol. 73, pp. 960, 1015.

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