selves by arbitration or through the guilds. Where the state had no concern in the matter the individual litigant took as few risks as possible. Another factor was the complacency with which the Chinese regarded themselves and their empire. China was indifferent to foreigners to the verge of hostility, but once having admitted them she was not troubled by the fear that to accord them exemption from Chinese law would be interpreted as a derogation from her world-circling authority. While customarily the Chinese have dealt with their own civil disputes in private, criminal matters have gone before the district magistrates and have passed, if sufficiently important, through a lengthy series of courts of appeal. This distinction in their own legal practice the Chinese carried over into their early relations with foreign merchants. All cases in which a Chinese appeared either as plaintiff or as defendant were justiciable in a Chinese court.14 The first trade agreement between the English East India Company and the Hoppo at Canton recognized the jurisdiction of the company's agents over their own English servants only. These arrangements indicate the recognition of a juridical distinction between cases involving foreigners only and cases in which both Chinese and foreigners were involved. But in practice civil disputes between Chinese and foreigners, as well as between foreigners only, were handled privately. The advantage held by the Chinese merchants in their ability to cut off the profitable trade, was so considerable as to preclude the necessity of recourse to the courts. On the other hand, the Chinese at Macao and Canton retained a jealous control over criminal cases, even those in which all the parties were foreigners.16 Not until the second decade of the nineteenth century did the Portuguese perfect the right of applying their own law to their own subjects. It is to be noted that the Chinese attitude as to the southern ports, where foreigners were comparatively numerous, was the reverse of that respecting the Russian border, where reciprocity prevailed. The issue of jurisdiction arose out of offenses committed by foreign sailors against Chinese nationals, as the result of which, in four instances, foreigners were condemned to death by strangulation. In three of these cases there was no doubt at all, in the fourth very little doubt, that the men put to death had caused the death of the Chinese; the issue in all cases was the 14 Morse, H. B., International Relations of the Chinese Empire (Shanghai, 1910), I, pp. 44-45. 1 Morse, H. B., International Relations, I, p. 64. 1 Latourette cites an exception of 1687, in which a Chinese official suggested that an English sailor accused of injuring a Chinese should be punished by his own countrymen. In The History of Early Relations between the United States and China (New Haven, 1917), p. 142, n. 161. Following Sir George Staunton, some writers have stated that the rule followed in China was that of sending foreigners accused of crimes not capitally punishable to their own countries for punishment. But Dr. Koo has shown that Staunton's own translation of the criminal code (Ta Tsing Lu Li), taken as a whole, does not support the conclusion drawn from an isolated paragraph. Status of Aliens in China (New York, 1912), pp. 123–6. justification of the penalty, since the foreign claim was that the deaths were caused by accident or in self-defense. In a number of other instances, in all but one of which the foreigners involved were British, demands for the surrender of accused persons were refused. In 1834 an Order in Council, which was in accordance with a British statute though contrary to international law, provided for the establishment of a court with criminal jurisdiction at Canton, but the "Instructions" to the newly appointed Superintendent of Trade advised him to postpone the institution of the court and to impress British subjects with the duty of obedience to Chinese law. The only occasion upon which the court was convened was that of August, 1839, for the trial by jury of a number of seamen who had been concerned with a riot in which Chinese life and property had been destroyed. This instance may be taken as the first formal evidence of the determination to assume extraterritorial jurisdiction in criminal matters. Surveying the record, one notes the following facts on the foreign side: (1) the incidents of a serious nature were remarkably few and the foreigners implicated were not merchants but sailors; (2) the only foreigners who ventured to deny Chinese jurisdiction were the British, who could rely upon the East India Company until its monopoly was abolished in 1833, and even the company did not refuse flatly to surrender persons charged with capital offenses until after 1784; (3) the principal objections to Chinese jurisdiction were (a) that the law of homicide was not sufficiently discriminating, (b) that in dealing with foreigners the existent discriminations in the law were not observed, (c) that the penalties provided by law were too severe and that torture was used to obtain confessions of guilt, (d) that the principle of vicarious responsibility was applied, (e) that the courts were corrupt.17 On the Chinese side it appears: (1) that a large proportion of the foreigners misunderstood Chinese law and procedure; (2) that in general the penalties were no more severe than in European countries; (3) that torture was not applied to foreign litigants; (4) that decisions involving foreigners were given in accordance with Chinese law. 18 From foreign charges and Chinese defense it emerges that the essential point of disagreement, from which foreigners actually had suffered, was the Chinese law of homicide, which made it possible to inflict the death penalty for killing in an affray though intent could not be proved. With this factor was associated the rule of vicarious responsibility, to be applied personally, which the Chinese had sought to apply to foreigners without success. The foreign feeling that the Chinese officials were likely to discriminate in favor of their own people and that their judgments were subject to purchase was general. Consequently it was a natural act for foreign governments to seek rights of extraterritoriality which were of long standing in European history 17 Koo, Status of Aliens, Ch. IX; Morse, H. B., International Relations, I, Ch. V. 18 Koo, Status of Aliens, Ch. IX. and were being exercised in Mohammedan countries, when China's military weakness had been demonstrated by the Opium War. 3. THE ESTABLISHMENT OF EXTRATERRITORIALITY Evidence has been presented by Dr. Wellington Koo, that an understanding was reached between the British and Chinese plenipotentiaries at Nanking for the recognition of British jurisdiction.19 This understanding was formulated in the "General Regulations" of 1843, between Great Britain and China, by which the persons of each, accused of crime, were to be tried by judges and in accordance with the law of their respective countries.20 The American treaty of Wanghia, drafted by Caleb Cushing, elaborated the terms of the rights and the French treaty of Whampoa stated them succinctly. The restriction of foreign jurisdiction to criminal cases was due to the lack of concern regarding civil matters, which had caused no difficulties up to that time. However, jurisdiction was provided over civil cases between foreigners, while the consuls were authorized to deal jointly with the Chinese authorities in mixed civil cases which the parties were unable to settle between themselves or through consular mediation. In practice, civil matters in which British or American nationals were defendants had come to be heard by the consuls when in 1876 the Chefoo convention gave formal basis for the widened jurisdiction to the British, and in 1880 the treaty of Peking recognized it for Americans. Extraterritorial jurisdiction in China was secured by nineteen states, sixteen of which continue to exercise it. In the chronological order of treaty establishment these states were: Russia, Great Britain, the United States, France, Sweden and Norway, German Customs Union, Denmark, The Netherlands, Spain, Belgium, Italy, Austria-Hungary, Peru, Brazil, Portugal, Japan, Mexico and Switzerland." The right has not been granted anew since 1899, save in the one instance of Switzerland. 4. RELINQUISHMENT BY CERTAIN POWERS The Chinese Government, in declaring war upon Germany and AustriaHungary in 1917, abrogated the extraterritorial rights of those states. It is noteworthy that the Treaties of Versailles, St. Germain and Trianon, while 1 Koo, Status of Aliens, pp. 133–7. 20 Great Britain simply acted under the Order in Council of 1834, establishing a court at Hongkong in 1843. See Koo, pp. 135–145. "The dates were: Russia, 1689, revised in 1858 and 1860; Great Britain, 1843, revised in 1858 and 1876; United States, 1844, reaffirmed in 1858 and revised in 1880; France, 1844, reaffirmed in 1858; Sweden and Norway, 1847, revised as to Sweden in 1908; German Customs Union, 1861; Denmark, 1863; The Netherlands, 1863; Spain, 1864; Belgium, 1865; Italy, 1866; Austria-Hungary, 1869; Peru, 1874; Brazil, 1881; Portugal, 1887; Japan, 1896; Mexico, 1899; Switzerland, 1918. Hertslet's China Treaties (London, 1908), I, passim. For Sweden and Switzerland, MacMurray, J. V. A., Treaties, I, pp. 744–5; II, p. 1430. " China Year Book, 1921-2, p. 699. specifically renouncing a number of rights in China, make no mention of extraterritoriality. However, the Sino-German agreement of May 30, 1921, provides for Germany's surrender of the right.23 Russia lost her extraterritorial jurisdiction in China in consequence of the revolution, although China continued to recognize the authority of Russian consuls until 1920. The Soviet Government itself announced, in 1920, its intention of surrendering extraterritorial and other rights in China.24 On September 23, 1920, President Hsü Shih-chang suspended the extraterritorial rights of Russia 25 and on May 31, 1924, China and Russia entered into a treaty whereby the Soviet Government consented to relinquish the rights.26 5. CLASSIFICATION OF EXTRATERRITORIALITY PROVISIONS The sixteen states which still retain extraterritorial jurisdiction in China may be divided into three classes, in accordance with the extent of the rights conferred in their respective treaties. In all cases, of course, the rule regarding suits between aliens and criminal trials between Chinese and aliens is that the court of the defendant's nationality shall have jurisdiction. The variations arise regarding the use of assessors in mixed cases and the treatment of mixed civil cases. One group may be constituted of Brazil, Mexico and Japan. The treaties of these countries place the nationals of the contracting parties exclusively under the jurisdiction of their own courts.27 The rule of exclusive jurisdiction is fully applied, so that no foreign assessor or arbiter is entitled to appear in a Chinese court before which a Brazilian, Mexican or Japanese is a plaintiff, or vice versa. All three of these countries have made their treaties with China subsequently to those of Great Britain and the United States; consequently it may be assumed that they do not regard the most-favored-nation clause as applicable in the matter of extraterritoriality." 28 The second group is composed of two states, Great Britain and the United States, which alone possess by specific treaty clauses and as the result of common practice the right of being represented by assessors at trials in 23 China Year Book, 1925, p. 783. 24 China Year Book, 1921-2, p. 625. 25 China Year Book, 1921-2, p. 626. 26 China Year Book, 1924, p. 1194. 27 Hertslet's China Treaties, I, pp. 237-8; 380-1; 404-5. 28 The clause is applicable, apparently to the extent of conferring the right. This was attested by the treaty of 1919 between China and Bolivia which contained a most-favorednation clause. It was necessary for Bolivia to waive extraterritorial rights in a subsequent exchange of notes. China Year Book, 1925, p. 608. But the most-favored-nation clause does not carry a definition of extraterritorial procedure. And the case of the Sino-Chilean treaty furnishes rather weak evidence against the first statement in this note. The treaty, entered into in 1915, contained a most-favored-nation clause but no grant of extraterritorial rights. The honorary Chilean consul in Shanghai attempted to take jurisdiction over a Chinese claiming Chilean citizenship, but his right to do so was denied by the Chinese Government and failed to be sustained by the diplomatic body, whence his failure. Chinese courts in which their nationals are plaintiffs.29 This right is reciprocal, but has not been exercised by the Chinese. The last group is the largest, as it includes all the other states enjoying extraterritorial rights. The provisions followed by these countries are those copied from the Treaty of Wanghia and subsequently discarded or, rather, separately interpreted by the United States and Great Britain. According to them, criminal cases are heard without assessors, while civil matters are dealt with according to justice and equity by the foreign consul and the Chinese official jointly.30 The settlement is one by mediation or arbitration, a method more in line with Chinese practice than that of the strict application of law by a regularly constituted court. Regarding the practice of the fourteen states which have entered into this type of arrangement, M. G. Padoux recently has written: The erroneous view about the existence of a uniform extraterritoriality system comes from the fact that many persons imagine that the provisions of the Chefoo treaty have superseded all former provisions, because they are said to be an interpretation of the words "joint jurisdiction" used in the treaties of the Powers of the third group. But the Powers of the third group have never concurred in that interpretation. Since the signature of the Chefoo treaty they have continued to apply the procedure of joint jurisdiction by the consul and the competent Chinese authority, and the Chinese authorities have concurred in the application of that procedure. It is true that under the clause of the most favored nation some Powers might have requested China to apply the provision of the Chefoo convention to their own nationals, but it is doubtful whether their request would have been justified, and the fact is that they never made such a request.31 6. ABSENCE OF PROTÉGÉS The protégé fiction, by which a national of a state not enjoying extraterritorial rights was enabled in some countries to invoke as defendant the jurisdiction of another state's consuls, never has obtained in China. Nationals of such states have been rare in that country and the necessity of protection has been met through the tender of good offices.32 Russia and * Hertslet's China Treaties, I, pp. 76, 562. 30 Article XXV of the Treaty of Whampoa. "This statement of M. Padoux, Adviser for a number of years to the Bureau of Audit of the Chinese Government and an authoritative publicist on Chinese affairs, was contained in a letter to the Peking Leader, published in that paper on Aug. 20, 1925, pp. 6, 8. Obviously, opinions have differed as to what constitutes most-favored-nation treatment in the matter of extraterritorial jurisdiction. M. Padoux's statement directly contradicts that of Dr. Koo (Status of Aliens, pp. 176–7) as far as the latter applies to civil cases: "It may, therefore, be stated as a rule that mixed cases between Chinese and foreign subjects in China are heard and determined by the authorities of the defendant's nation, an officer of the plaintiff's nation being entitled to watch the proceedings, and examine and cross-examine witnesses, and, if dissatisfied with the judgment rendered, protest against it in detail." "The foreign population in China in 1923 was 324,947, of which 201,704 were Japanese, 85,856 Russians, 14,775 British, 9,356 Americans, 3,424 Portuguese, 3,361 French and 2,233 |