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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 As there is at the present time a great deal of discussion as to whether these rights should be withdrawn it may be worth while to glance for a moment at the reasons for the origin of the system, and this may in turn enable us to judge better whether the conditions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

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.

over all criminal cases, including those where Europeans were concerned.

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.


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:

3Staunton, 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.

4North 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.

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 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 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

?Thomson, op. cit., p. 248; Alabaster, Notes and Commentaries on Chinese Criminal Law, London, 1899, p. 17; Morse, op. cit., Vol. I, p. 112.

8W. 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 citi

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.

11S. W. Williams, op. cit., Vol. II, p. 451; Auber, op. cit., p. 183; Morse, op. cit., Vol. I, p. 102.

12North 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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