Shih Shun Liu

Its Rise and Its Decline







Notes by the Author

Notes by John Zube




In Turkey and the Levant, as has been seen above, the concession of capitulatory rights to foreigners may be ascribed to various factors. The union of Mohammedan law and religion, the desire of Islam to invite foreign commerce, and, above all, the existence of long-established custom and usage have all contributed to perpetuate the system of consular jurisdiction in the Mohammedan world.

A different story, however, must be told of the establishment of extraterritoriality in the Far East. There, religious differences did not necessitate a special jurisdiction, the motive of foreign intercourse was by no means persistent, and the force of custom was distinctly averse to the assertion of judicial competence by foreign magistrates.

As is well known, Confucianism and Buddhism, the dominant systems of philosophy and religion in the Far East, make no discriminating distinctions between the native and the alien. They teach tolerance and indulgence to all alike. For this reason, the peculiar situation to which the Mohammedan religion gave rise in regard to the unbeliever did not exist in Eastern Asia.

In the matter of world intercourse, the Far East is noted for its excessive indifference. Vast empires lived in a state of splendid isolation for countless ages, and had it not been for the insistence of the foreign merchant - an insistence often amounting to open violence - it is difficult to speculate how soon the East would have waked up to the need of contact with the Occident. Thus, it is not within the realm of possibility that the countries of the East could have been disposed to induce Western nations to trade with them by extending such special privileges as those of consular jurisdiction.

When we come to the consideration of custom as a motivating force in bringing about the establishment of extraterritoriality in the Far East, a preponderance of the evidence leads us to a conclusion different from that reached in connection with the Capitulations of the Ottoman Empire and the Levant. With the possible exception of Japan [1], the assertion of territorial jurisdiction was quite general in the more important countries of Asia prior to the introduction of extraterritoriality in the nineteenth century. Let us examine the prevailing practice of the pre-conventional period in Siam and in China.

Siam had exercised complete jurisdiction over foreigners prior to the year 1664, when a treaty with the Dutch United East India Company, dated August 22, provided that cases of grave crime committed by Dutch merchants were to be disposed of by the Company's chief according to Dutch law [2].
In 1685, M. de Chaumont, heading an embassy from France, negotiated two treaties with Siam, one on religious and the other on commercial matters. The first, dated December 10, granted the French request for a special "mandarin" empowered to hear and judge all cases involving Christian converts, with the proviso that the mandarin must refer such matters to one of the judges of the king of Siam before passing sentence [3]. The second treaty, dated December 11, 1685, is as yet unpublished, but is referred to by a writer on foreign jurisdiction in Siam, according to whom "the second treaty of M. de Chaumont provided for the adjudication by the captain of the Compagnie des Indes Orientales of cases between French alone and of cases of theft or any other offense committed by them, and for the joint competence of the captain and the Siamese judges in cases, civil or criminal, between the merchants and others not French" [4]. Mr. James also mentions another treaty between France and Siam, dated December 11, 1687, which contained stipulations on extraterritorial jurisdiction. The principal officer of the company was to have complete civil and criminal jurisdiction over those in the employ of the company regardless of their nationality. If one of the parties was not in the service of the company, the case was within the competence of the king of Siam, but the principal officer of the company was to sit in the court and to have a definite voice in the determination of the case, after taking an oath to judge according to right and justice [5].

Later practice, however, was directly contrary to the spirit of these treaties. In the treaty of June 20, 1826, between England and Siam, it was expressly provided that " Should a Siamese or English merchant have any complaint or suit, he must complain to the Officers and Governors, on either side; and they will examine and settle the same according to the established Laws of the place or Country, on either side" [6]. In the first American treaty with Siam, dated March 20, 1833, it was likewise provided that "Merchants of the United States trading in the Kingdom of Siam shall respect and follow the laws and customs of the country in all respects" [7].

Prior to the definitive establishment of the extraterritorial system in Siam in the middle of the nineteenth century, therefore, the most recent practice was on the side of subjecting the foreigner to the local laws and jurisdiction. Thus, after a careful study of the early period, a competent writer comes to this conclusion: "While the treaties of the seventeenth century undoubtedly contained the germs of an exterritorial system, they had long since become obsolete and inoperative, and it is not, therefore, too much to say that in 1855 exterritoriality was unknown in Siam" [8].

Before China entered into formal treaty relations with the European nations, it had been customary for her to assume over all foreigners resident within her territory a measure of protection and control commensurate with her own sovereignty and independence. The idea of personal law was never conceded by the Chinese Government, until it was forced upon it by treaty. "The Chinese notion of territorial sovereignty and jurisdiction," observed Dr. Wellington Koo, "as entertained, though at times vaguely, by the officials of the Empire in the early days, was not essentially different from that which is maintained by modern international jurists" [9]. (*A) Up to the middle of the nineteenth century, this principle was tenaciously adhered to, so that even on the eve of the Opium War, when Captain Elliott, British Superintendent of Trade at Canton, questioned the subjection of opium smugglers to penalties laid down by Chinese law, Commissioner Lin asked him this pertinent question: "How can you bring the laws of your nation with you to the Celestial Empire?" [10] (*B)

To be sure, there were exceptions to the claim on China's part to territorial jurisdiction over the foreign residents. Mention has already been made of the grant of an exemption from the local laws to the Arabians at Canfu in the ninth century. But from all later evidence, this tradition seems to have been forgotten and fallen into disuse long before the formal introduction of extraterritoriality into China. It could not have constituted an authoritative precedent, inasmuch as it was a mere unilateral grant, and could have been revoked at the pleasure of the grantor. As a matter of fact, no claim to special jurisdiction appears to have ever been entertained by any Power on the basis of this early grant.

Another important exception to the Chinese rule of territorial jurisdiction was the series of treaties entered into with Russia. Article 4 of the Treaty of Nipchu or Nerchinsk, 1689, provides: "If hereafter any of the subjects of either nation pass the frontier and commit crimes of violence against property or life, they are at once to be arrested and sent to the frontier of their country and handed over to the chief local authority for punishment" [11].
The "Treaty of the Frontier," signed at Kiakhta in 1727 [12], and the Supplementary Treaty of Kiakhta, signed in 1768 [13], contained similar provisions relative to the suppression of brigandage and other disturbances along the coterminous frontiers. These treaties are regarded by some writers as constituting a recognition of the principle of extraterritoriality in China [14]. As a matter of fact, however, nothing of the kind was intended. Being reciprocal in nature, the whole arrangement was merely a temporary expedient to facilitate the administration of the frontiers on the part of the two Governments, which, as Dr. Koo points out, "far from establishing the principle of extraterritoriality, seems to have involved nothing more than an application, in exceptional circumstances, of the principle of personal law, which is found in the criminal jurisprudence of substantially all civilized nations to a greater or less extent" [15].

Quite in keeping with her territorial sovereignty, China had always asserted a complete control over the foreign residents. This is illustrated unequivocally by the insistence on the exercise of criminal jurisdiction [16]. Section 34 of the Penal Code, in force before the introduction of extraterritoriality, provided: "In general, all foreigners who come to submit themselves to the government of the Empire (*C), shall, when guilty of offences, he tried and sentenced according to the established laws" [17]. Instances abound in which the rule was applied with an uncompromising uniformity and strictness. Space does not allow a detailed examination of them all, and for this the reader is referred to other authoritative accounts [18].

One interesting fact, however, must be pointed out at this juncture. In the assertion of territorial jurisdiction, the Chinese Government received the unconditional submission of some Powers, such as the United States. When the well-known case of Terranova was being tried in 1821, the American merchants made this remark to the Chinese authorities: "We are bound to submit to your laws while we are in your waters, be they ever so unjust. We will not resist them" [19]. (*D)

In another instance, not only was open confession made of the customary American obedience to Chinese law and jurisdiction, but the responsibility was laid on the Chinese Government for prosecuting violations of her territorial sovereignty. During the first quarter of the nineteenth century, British naval authorities were in the habit of searching American vessels for deserters. After a fruitless demand for the surrender of certain seamen taken on one of these occasions, a meeting was held by the Americans in 1805, as a result of which a formal representation was drawn up and signed by the consul and twenty-seven other Americans and addressed to the governor of Canton. After reciting the facts of the controversy, the letter continued:

The undersigned further respectfully represent to Your Excellency that the citizens of the United States have for many years visited the city of Canton in the pursuit of honest commerce, that their conduct during the whole period of intercourse has been regulated by a strict regard and respect for the laws and usages of this Empire, as well as the general law of nations, and that by their fidelity in trade, and their peaceable demeanor, the most perfect harmony, confidence, and good understanding has ever been maintained between the subjects of this country and the citizens of the United States, from which has flowed a very extensive and rapidly increasing commerce, mutually advantageous and honorable to both parties.
That by the ancient and well-established laws and usages of all civilized nations, the persons and property of friendly foreigners within the territory and jurisdiction of a sovereign and independent Empire, are under the special protection of the Government thereof, and any violence or indignity offered to such persons or to the flag of the nation to which they belong, is justly considered as done to the government within whose territory the outrage is committed.
That by the same law of nations, the civil and military agents of the government are strictly prohibited from assuming any authority whatever within the territory of the other, nor can they seize the person of the highest state criminal, who may have eluded the justice of their own [20].

Nothing can be more explicit than these voluntary admissions, and as one reads them to-day, one is struck by the radical departure from them when, a generation later, far-reaching limitations were imposed on the operation of territorial jurisdiction in China. The reason for the change will be dealt with shortly; for the present, it is sufficient to note that it is not to be sought in the force of custom. With the exception of Japan, the Powers of Eastern Asia, prior to the middle of the nineteenth century, assumed their territorial jurisdiction and were not in the habit of granting to foreigners extraterritorial privileges.

Just as the above considerations cannot explain the rise of extraterritoriality in the Far East, so the differences of civilization between the Orient and the Occident give no clue to the explanation. It is recognized by all that the countries of the Far East had attained a high degree of civilization long before the system of extraterritoriality was established there. Claims to special treatment could hardly have been advanced by the Westerners on this ground, and they were not advanced. Even Caleb Cushing, who regarded the extension of extraterritoriality to non-Christian peoples as a rule of international law, refuted the argument of civilization. "Europeans and Americans," he said, " had a vague idea that they ought not to be subject to the local jurisdiction of barbarian Governments, and that the question of jurisdiction depended on the question, whether the country was a civilized one or not; and this erroneous idea confused all their reasonings in opposition to the claims of the Chinese (*E); for it is impossible to deny to China a high degree of civilization, though the civilization is, in many respects, different from ours" [21].

Failing to find the original justification of the extraterritorial regime in the Far East in any of the circumstances enumerated above, we have but one alternative left, i. e., to seek an explanation in the alleged deficiency of the Oriental legal systems. Rightly or wrongly, there lurked in the hidden nooks of every Western mind a vague notion that Oriental jurisprudence could not possibly be in keeping with Western ideas of justice, and that an Occidental would certainly do violence to his dignity and pride by rendering obeisance to a deficient judicial regime. (*F) That this was the dominant state of mind, of which the Europeans in the Far East were possessed, is evidenced by a number of facts.

In spite of the vigorous attempts made by the Chinese Government to assert its territorial sovereignty, there was an equally strong tendency on the part of the nationals of some foreign Powers, especially of Great Britain, to set Chinese law and. jurisdiction at defiance [22]. The reasons given for their resistance center around the imperfections of the Chinese legal system [23]. The justice or injustice of these contentions is of no concern to our present study [24]; what we aim to ascertain is whether the foreign governments were conscious of the same reluctance to enjoin compliance with the laws of China.

Writing in 1836, Sir George Staunton, although he deprecated the proposals then made for aggressive hostilities with China in order to force on her certain concessions [25], and although he advocated the treatment of China on a footing of equality with the other Powers [26], admitting the defectiveness of her judicial system. "The Chinese laws," he declared, "as specially applied, and endeavored to be enforced, in cases of homicide, committed by foreigners, are not only unjust, but absolutely intolerable. The demand of blood for blood, in all cases, without reference to circumstances, whether palliative or even justifying, is undoubtedly an intolerable grievance" [27].

The remarks of Sir George are of greater interest and importance when we recall that it was he who was instrumental in framing and introducing to the House of Commons, in 1833, a set of resolutions, looking, inter alia, to the glaringly illegal measure of establishing a British court of justice on Chinese soil without the consent of the territorial sovereign. In the body of the resolutions, complaint was again made against the unsatisfactory state of Chinese laws. The pertinent section reads:

That, lastly, the state of the trade under the operation of the Chinese laws in respect to homicides committed by foreigners in that country, calls for the early interposition of the Legislature, those laws being practically so unjust and intolerable that they have in no instance for the last forty-nine years been submitted to by British subjects; great loss and injury to their commercial interests accruing from the suspension of trade in consequence of such resistance, and the guilty as well as the innocent escape with impunity; and that, it is, therefore, expedient to put an end to this anomalous state of law by the creation of a British naval tribunal upon the spot, with competent authority for the trial and punishment of such offences [28].

The resolutions failed of adoption, but in their stead a bill was introduced on July 1, 1833, under the title of "an act to regulate the trade to China and India," which was adopted by both Houses and became an act of Parliament on August 28, 1833. Article 6 authorized the creation of a British court of justice with criminal and admiralty jurisdiction for the trial of offenses committed by British subjects in China [29]. (*G) In pursuance of this act, a number of Orders in Council were issued on December 9, 1833, bringing the legislation into effect [30]. But although the machinery was thus set up for the administration of justice by Great Britain in China - a machinery that had no legal sanction at all, inasmuch as it was not consented to by China (*H) - yet as a matter of fact, the powers assumed were never actually exercised, due partly to the vigorous resistance of the Chinese and partly to the hesitancy on the part of the British authorities themselves [31].

In 1838, a new bill was introduced by Lord Palmerston, suggesting the establishment of a court in China, with even larger powers than those authorized by the act of 1833, for the new bill contemplated a court with civil as well as criminal and admiralty jurisdiction [32]. On this bill a long debate ensued in the House of Commons, with Lord Palmerston defending it and Sir James Graham taking the opposite side. The arguments advanced by the former were again in accord with the indictments made by the British merchants against the legal System of China [33]. Due to the lack of support and the general opposition to the bill, Lord Palmerston stated that he had "no objection to postponing it until the next session," whereupon the bill was withdrawn [34].

The record of the British attempts to introduce extraterritorial jurisdiction into China by means of legislative enactment prior to the Opium War was, therefore, one of failure and disappointment to their sponsors. In the midst of an obstinate resistance to the assertion and exercise, on China's part, of her rightful territorial sovereignty, there was not lacking an enlightened public opinion, which, while crying against certain imperfections in the operation of Chinese laws, insisted upon a strict regard for the rules of international law [35]. (*I)

It was only after the termination of the Opium War in 1842 that extraterritoriality was formally introduced into China by a treaty premised upon her independence and sovereignty. For this treaty the bitter controversy of the previous decade between the Chinese and British authorities on the question of jurisdiction undoubtedly prepared the ground, and it is only in this light that we have dealt briefly with the events of this period. No matter what is to be said of the accusations of the foreign merchants and governments against Chinese jurisprudence, the important fact for us to note in this connection is that such accusations were made and were influential in contributing to the establishment of extraterritoriality in China [36].

Later developments in the history of extraterritoriality in China throw still more light on the relation between a defective judicial system and the establishment of foreign jurisdiction in the Orient. Ever since the opening of the present century, treaties have been concluded by China with foreign Powers, which, while granting them extraterritorial rights, embody at the same time promises for their abandonment on condition that certain reforms were carried out [37]. From these stipulations one can hardly resist the logical inference that judicial deficiency has been at the very foundation of the installation of the extraterritorial system in the Far East.

In Siam, as in China, the principal ground on which the European claim to extraterritorial jurisdiction was originally based seems to have been the discrepancy between European and Siamese laws. This statement finds its corroboration in official pronouncements as well as in treaty provisions. In the Memorandum prepared by the British Minister in Siam, in 1909, explanatory of the origin and modification of British jurisdiction in Siam, it is said:

By the Anglo-Siamese Treaty of 1855 full extra-territorial privileges were guaranteed to British subjects in Siam. Comparatively little being then known concerning Siamese laws and customs, it was considered necessary by the British negotiators that British subjects for their security should be placed under the sole jurisdiction and control of their consular authorities [38].

Again, when Japan first obtained her extraterritorial rights in Siam, by virtue of the treaty of February 25, 1898, the protocol granting the said rights provides:

1. The Siamese Government consent that Japanese officers shall exercise jurisdiction over Japanese subjects in Siam, until the judicial reforms of Siam shall have been completed, that is, until a Criminal Code, a Code of Criminal Procedure, a Civil Code, ... a Code of Civil Procedure, and a Law of Constitution of the Courts of Justice will come into force [39].

The necessary implication of this provision is, of course, that at the time of the conclusion of the treaty, Siamese laws were imperfect, because of which, extraterritorial jurisdiction was conferred on Japan over her own nationals.

The treaties which Corea [40] had with the Western Powers granting extraterritoriality to them all embodied provisions for its abandonment upon the completion of Corea's legal reform. A representative provision to this effect is that contained in the protocol attached to the British treaty of November 26, 1883:

I. With reference to Article III of this Treaty, it is hereby declared that the right of extraterritorial jurisdiction over British subjects in Corea granted by this Treaty shall be relinquished when, in the judgment of the British Government, the laws and legal procedure of Corea shall have been so far modified and reformed as to remove the objections which exist to British subjects being placed under Corean jurisdiction, and Corean Judges shall have attained similar legal qualifications and a similar independent position to those of British Judges [41].



In the Far East, extraterritorial rights have been enjoyed by foreign Powers in China, Japan, Corea, Siam, Borneo, Tonga and Samoa. The earliest grant of such rights made by China to Great Britain was contained in the supplemental treaty of July, 1843 [42]. The first treaty entered into by Japan was that of March 31, 1854, with the United States [43], but it included no provision regarding extraterritorial jurisdiction. Of all the European treaties the Russian, dated January 26/February 7, 1855, appears to have contained the earliest germs of extraterritorial jurisdiction in Japan [44]. In Corea, Japan was the first foreign Power to secure extraterritorial rights [45]. The formal establishment of extraterritoriality in Siam dates from the treaty of April 18, 1855, with Great Britain [46]. The United States and Great Britain have enjoyed extraterritorial rights in Borneo since the middle of the last century [47]. Before the Tonga Islands fell under the protection of Great Britain, various Powers obtained title to rights of jurisdiction in that country. The first treaty containing a specific grant of this nature was that with Great Britain, dated November 29, 1879 [48]. Finally, in Samoa, the United States, Germany and Great Britain enjoyed extraterritorial rights [49] before the islands were divided up between Germany and the United States in 1899 [50].

The provisions of the above-mentioned treaties respecting extraterritorial jurisdiction may be divided into four categories: (1) jurisdiction in cases between natives exclusively; (2) jurisdiction in cases between foreigners of the same nationality; (3) jurisdiction in cases between natives and foreigners; and (4) jurisdiction in cases between foreigners of different nationalities.

(1) In civil and criminal cases between natives exclusively, it is generally implied and, in some instances expressly provided, that the native authorities should administer justice according to their own laws and usages without interference on the part of the foreign representatives [51].

(2) Cases, civil or criminal, between foreigners of the same nationality were placed under the exclusive jurisdiction of their own officials, to be decided according to their laws and usages, without interference on the part of the native authorities [52]. In Borneo, the procedure laid down by the British treaty of November 26, 1856, differs somewhat from the general practice observed in the countries of the Far East. According to this treaty, crimes committed by British subjects - the treaty does not specify the nationality of the victims, nor does it state whether this makes any difference - should be tried and adjudicated jointly by the British consular representative and "an officer chosen by His Highness." In civil disputes between British subjects, the same authorities should have jurisdiction, but "according; to the customs of Borneo" [53].

(3) In mixed cases, the principle actor sequitur forum rei was generally adopted [54], that is to say, that the plaintiff should follow the defendant into his court. Crimes committed by the natives against the nationals of a Treaty Power should be tried and punished by the native authorities according to their own laws, and crimes committed by the nationals of a Treaty Power against the natives, by the consular representatives of the defendant's nationality according to the latter's laws and customs [55]. In civil matters of this nature, the self-same rule was applied [56]. The procedure laid down by the treaties was briefly as follows: In all civil cases between natives and foreigners, the consul was charged with the duty of hearing the complaint on either side and of settling it amicably without causing litigation. In case of failure to placate the parties, the consul should have recourse to the assistance of the local authorities, that they might together examine into the merits of the case and decide it equitably [57]. Subsequently, the joint competence of the consul and the local authorities was brought into accord with the rule embodied in the principle actor sequitur forum rei by an interpretative provision to the effect that "the case is tried by the official of the defendant's nationality, the official of the plaintiff's nationality merely attending to watch the proceedings in the interest of justice," and that "the law administered will be the law of the nationality of the officer trying the case" [58]. The privileges of the "assessor", i.e., the officer of the plaintiff's nationality watching the proceedings of a mixed civil case, were described in the Sino-American treaty of November 17, 1880, as follows:

The properly authorized official of the plaintiff's nationality shall be freely permitted to attend the trial, and shall be treated with the courtesy due to his position. He shall be granted all proper facilities for watching the proceedings in the interests of justice. If he so desires, he shall have the right to present, to examine, and to cross-examine witnesses. If he is dissatisfied with the proceedings, he shall be permitted to protest against them in detail [59].

It is a lamentable fact that in the case of some countries, as in that of China, the foreign assessor, instead of stopping with the treaty right of attending to watch the proceedings in the interests of justice, has gradually arrogated to himself the rôle of the principal magistrate [60]. What is equally an unjustifiable violation of treaty is the usurpation by the foreign Powers in 1911 of the Shanghai International Mixed Court, which will be treated of later [61].

(4) In civil and criminal cases between foreigners of different nationalities, the jurisdiction is said to be regulated by the treaties between the foreign Powers concerned, and no interference on the part of the territorial sovereign is allowed [62]. In actual practice, no such treaties have ever been entered into, but the settled rule is again that embodied in the principle actor sequitur forum rei.



Notes by the Author (^)

[1] "The Shogun's government, in the beginning of the seventeenth century, left the Portuguese, Spanish, English, and Dutch traders to their own law. This privilege, which was granted to them by letters-patent, was held at the pleasure of the Shogun, and was liable to be annulled. The Japanese, however, were more familiar with the idea of personal than of territorial law; and when, in a later age, they formed treaty relations with the West, they seem not to have insisted upon the principle of territoriality. Harris states that, when he proposed that Americans should be subject to the jurisdiction of their consuls, 'to my great and agreeable surprise this was agreed to without demur.' " Hishida, The International Position of Japan as a Great Power (New York, 1905), p. 133. The entry from Harris's diary is quoted from Griffis, Townsend Harris (Boston and New York, 1895), p. 124.

[2] Records of the Relations between Siam and Foreign Countries in the 17th Century, vol. ii, p. 66.

[3] Art. 5, Dumont, op. cit., vol. vii, pt. ii, p. 120.

[4] James, ''Jurisdiction over Foreigners in Siam," American Journal of International Law (hereafter referred to as A. J. I. L.) vol. xvi, p. 588.

[5] Art. 5, Journal of the Siam Society, vol. xiv, pt. ii, p. 32.

[6] Art. 6, State Papers, vol. xxiii, p. 1156.

[7] Art. 9, Malloy, vol. ii, p. 1628

[8] James, A. J. I. L., loc. cit., p. 589.

[9] The Status of Aliens in China (New York, 1912), p. 47.

[10] Sargent, Anglo-Chinese Commerce and Diplomacy (Oxford, 1907), pp. 75-76.

[11] China. The Maritime Customs. Treaties, Conventions, etc., between China and Foreign States (hereafter referred to as China, Maritime Treaties) 2nd ed., Shanghai', 1917, vol. i, p. 6.

[12] Art. 10, ibid., p. 36.

[13] Art. 10, ibid., p. 62.

[14] See, e. g., Morse, International Relations of the Chinese Empire (London, New York, etc., 1910-18), vol. i. p. 60; Trade and Administration of the Chinese Empire (London, New York & Calcutta, 1908). p. 181. In the latter place, the author declares, "Here, then, for one to two centuries before the first of the treaties with any of the maritime powers, we have the principle of extraterritoriality accepted.. ."

[15] Koo, op. cit., p. 53.

[16] In civil matters, the Chinese courts had little occasion to exercise jurisdiction over disputes between Chinese and foreigners, these being usually settled by direct negotiations between the parties concerned and by arbitration. Cf. Morse, International Relations, vol. i. p. 96.

[17] Geo, Staunton, Penal Code of China (London, 1810), p. 36.

[18] Morse, op. cit., vol. i, pp. 100-107; Koo, op.cit., pp. 50-55.

[19] North American Review, vol. xl, p. 66.

[20] Dennett, Americans in Eastern Asia (New York, 1922), pp. 81-84. Passage quoted is on p. 84.

[21] Mr. Cushing to Mr. Calhoun, Sep. 29, 1844, U.S. Sen. Doc. no. 58, 28 th Cong., 2d Sess.

[22] For specific cases see Koo, op. cit., pp. 68-79.

[23] Ibid., pp. 79-95; Morse, op. cit., vol. i, pp. 109 et seq.

[24] Dr. Koo gives an excellent critical account of these reasons in the section of his work just referred to.

[25] Remarks on the British Relations with China and the Proposed Plans for Improving Them (2nd ed., London, 1836).

[26] Ibid., p. 20.

[27] Ibid., p. 18. It must be pointed out that the last assertion is grossly inaccurate. See Koo. op. cit., pp. 80-84.

[28] Hansard, Parliamentary Debates, 3rd ser., vol. xviii, p. 700.

[29] 3 & 4 Will. IV, c. 93. The act does not state where the court was to sit, but from the context the general intention was to set it up on Chinese soil. (*G)

[30] State Papers, vol. xx, pp. 260, 262.

[31] See Koo. op. cit., p. 109.

[32] Journal of the House of Commons, vol. xciii, p. 476.

[33] Dr. Koo gives a critical review of the arguments on both sides, op. cit., pp. 114-30.

[34] Hansard, op. cit., 3rd ser., vol. xliv, p. 751.

[35] In the debate of the House of Commons on July 28, 1838 on the bill looking toward the establishment of a British court in China, Mr. Hawes said that "he had carefully looked over the papers, the noble Lord [Palmerston] had laid before the House, and he could not discover in them the smallest trace of the smallest consent on the part of the authorities of China to the jurisdiction proposed to be given by the noble Lord. He wished to ask the noble Lord, whether the authorities of China recognized this interference with their laws?" Ibid., p. 744. Another speaker, Sir James Graham, while approving a part of the bill felt that consistently with the whole course of British policy, with international law and past experience, it would be unadvisable to pass the remainder of the bill, including the part on the creation of a British court in China. Ibid., p. 751. 'When the House went into committee on the bill, Mr. Hawes again rose to move its omission, saying that there could be no objection to the establishment of a court for the trial of offenses committed by British subjects, but protesting against the court's interfering with an independent power like China. Ibid., p. 752. On account of this opposition, the bill was withdrawn on Lord Palmerston's own motion.

[36] It is to be admitted that there were some irregularities in the administration of justice in China at the time; but, to say the least, they were unduly exaggerated. Cf. Koo, op. cit., pp. 79-95.

[37] Treaty with Sweden, July 2, 1908, art. 10, MacMurray, Treaties and Agreements with and concerning China, 1894-1919 (New York, 1921), vol. i, 1908/11, p. 745; treaty with Switzerland, July 13, 1918, Declaration, ibid., vol. ii, 1918/8, p. 1430.

[38] Parliamentary Papers, 1909 [cd. 4646], Siam, no. 1 (1909), p. 7.

[39] State Papers, vol. xc, p. 70.

[40] Although Corea was at first a vassal state to China, she was fully independent in her relations with the foreign Powers, and the latter were regulated hy Corea's own treaties. In 1870, the American Minister at Peking wrote to his government: "Corea is substantially an independent nation. To he sure, it sends tribute to China annually, but from the information I am able to obtain, the tribute is sent rather as a quid pro quo for the privilege of trading with the Chinese than as a governmental tribute." Mr. F. F. Low to Mr. Fish, July 16. 1870, U.S. For. Rel., 1870, p. 362. This opinion was later confirmed by a statement of the Chinese Foreign Office, dated March 28, 1871, to the effect "that although Corea is regarded as a country subordinate to China, yet she is wholly independent in everything that relates to her government, her religion, her prohibitions, and her laws; in none of these things has China hitherto interfered." Ibid., 1871, p. 112.

[41] State Papers, vol. Ixxiv, p. 105. Cf. U. S., May 22, 1882, art. 4. Malloy, vol. i. p. 336; Germany, Nov. 22, 1883, Protocol, State Papers, vol. lxxiv, p. 649; Russia, June 25/July 5, 1884. Protocol, ibid., vol. lxxv. p. 527; China. Sep. 11, 1899, art. 5. ibid., vol. xcii. p. 1049; Belgium, March 23, 1901, art. 3. § 11, ibid., vol. xciv, p. 541; and Denmark, July 15, 1902, art. 3, § 11, ibid., vol. xcv, p. 172.

[42] Art. 13 of General Regulations, China, Maritime Treaties, vol. i, p. 383. Other Powers which had extraterritorial treaties with China are the United States (July 3, 1844. arts. 21, 25, Malloy, vol. i. pp. 202, 203; June 8, 1858, arts, II, 27, ibid., pp. 215, 220; Nov. 17. 1880, art. 4, ibid., p. 240), France (Oct. 24, 1844, arts. 25. 27, 28, China, Maritime Treaties, vol. i, pp. 785, 786; June 28, 1858, arts, 35, 38, 39, ibid., pp. 831, 833). Norway and Sweden (March 20, 1847, arts. 21. 25, ibid. pp. 56, 58), Russia (June 1/13. 1858, art. 7, ibid., p. 88), Germany (Sep. 2, 1861, arts. 35, 38, 39, ibid., vol. ii, pp. 132, 133, 134), Denmark (July 13, 1863, arts, 15, 16, 17, ibid., pp. 318-319), the Netherlands (Oct. 6, 1863, art. 6, ibid., p. 343), Spain (Oct. 10, 1864. arts. 12-13, ibid., p. 364), Belgium (Nov. 2, 1865, arts. 16, 19, ibid., pp. 11, 12), Italy (Oct. 26, 1866, arts. 15-17, ibid., pp. 408-9). Austria-Hungary (Sep. 2, 1869. arts. 38-40, ibid., p. 473), Peru (June 26, 1874, arts. 12-14. ibid., 804-5), Brazil (Oct. 3, 1881, arts, 9-11, ibid., pp. 818-9), Portugal (Dec. 1, 1887, arts. 47, 48, 51, ibid., pp. 291, 292), Japan (July 21, 1806, arts. 20-22, ibid., pp. 611-2), Mexico (Dec. 14. 1899, arts. 13-15, ibid., pp. 840-1), Sweden (May 24, 1908, art. 10, Mac Murray, Treaties, vol. i, 1908/11, p. 744), and Switzerland (July 13, 1918, Declaration annexed, ibid., vol. ii. 1918/8, p. 1430). The provisions of these treaties will be summarized presently. The German treaty was abolished by a Presidential Proclamation of Aug. 14, 1917, making a declaration of war against Germany and Austria-Hungary, ibid., 1917/7, p. 1363, and by the treaty of May 20, 1921, art. 3, China Year Book, 1921-22, p. 739. The same Presidential Proclamation also abrogated China's treaty with Austria-Hungary. The Treaty of St. Germain, Sep. 10, 1919. which concluded peace between China and Austria, does not mention extraterritorial rights. The Mexican treaty was denounced by the Mexican Government on Nov. 11, 1920, State Papers, vol. cxiv. p. 878.
In this connection, the doubtful case of Chile may he mentioned.
According to article 2 or the treaty of Feb. 18, 1915, the Diplomatic and Consular Agents of Chile and China "shall enjoy the same rights, privileges, favors, immunities, and exemptions as are or may be conceded to the Diplomatic and Consular Agents of the most favored Powers.'' MacMurray, op. cit., vol. ii, p. 1190. No specific mention is made of the grant of extraterritorial rights. Whether this is implied in article 2 or not is not certain. But inasmuch as the same article appears in the British treaty of 1858 (art. 7), which makes express provision for extraterritorial jurisdiction in other parts of the same agreement, it is reasonable to infer that the article comprehends only the ordinary privileges and immunities of diplomatic and consular agents which are sanctioned by international law, and does not ipso facto carry with it an exceptional right such as that of extraterritoriality. In order to lay claim to the latter in China, it is, in the author's opinion, essential that the claimant should be able to invoke an express treaty provision to that effect, the omission of which in the agreement of 1915 would seem to imply the denial of the right to Chile. "Even if there were commercial treaties with other countries," says Hinckley, "containing most-favored-nation clauses, such clauses would probably not extend the extraterritorial exemption ... The substantial fact is that China has continuously maintained her jurisdiction sovereignty, excepting as specifically abrogated by treaty." Hinckley, "Extraterritoriality in China," American Academy of Political and Social Science, Annals, vol. xxxix, p. 97. Recently, an attempt was made by the Chilean consul at Shanghai to exercise jurisdiction over a Chinese claiming Chilean nationality. The claim was made on the basis of the most-favored-nation clause referred to. The Chinese Government having refused to entertain the Chilean point of view, the Chilean consul appealed to the Diplomatic Corps at Peking, which seems to have espoused the cause of Chile. The Chinese Government, however, still regards it as an open question. The diplomatic correspondence on this subject has not yet been made available, but whatever may have been the facts involved, the assertion by Chile of extraterritoriality in China on the basis of a most-favored-nation clause would be contrary to established usage in that country. That this is so is further shown by the notes exchanged between China and Bolivia, also a South American Republic, in 1919, to the effect that the most-favored-nation clause embodied in the new treaty between the two countries should not affect the question of extraterritoriality. See Chapter X.

[43] Malloy, vol. i. p. 996.

[44] Art. 8 of this treaty provides that criminals should be judged according to the laws of their own country. State Papers, vol. lvii, p. 1055. Other Powers which had extraterritoriality treaties with Japan were the United States (June 17, 1857, art. 4. Malloy, vol. i, p. 909; July 29, 1858, art. 6, ibid., p. 1033), Great Britain (Aug. 26, 1858, arts. 4-6, State Papers, vol. xlviii, p. 30), France (Oct. 9, 1858, arts. 5-7, ibid., vol. 1, p. 402), Portugal (Aug. 3, 1860, arts. 4-6, ibid., vol. lix, p. 510), Prussia (Jan. 24, 1861, arts. 5-6, ibid., pp. 520-1), the Netherlands (Nov. 9, 1855, arts. 2-3, ibid., vol. xlvii, p. 1087), Switzerland (Feb. 6, 1864, arts. 5-6, ibid., vol. liv, pp. 513-4), Belgium (Aug. 1, 1866, arts. 5-6, ibid., vol. lix, p. 557), Italy (Aug. 25, 1866. arts. 5-6, ibid., p. 866), Denmark (Jan. 12, 1867, arts. 5-6, ibid., vol. lxii, p. 292), Sweden and Norway (Nov. 11, 1868. arts. 5-6, ibid., vol. lxi, p. 561), Spain (Nov. 12, 1868, arts. 5-7, ibid., vol. lviii, p. 197), Austria-Hungary (Oct. 18, 1869, arts. 5-6, ibid., vol. lix, p. 531), Hawaii (Aug. 19, 1871, art. 4. ibid., vol. lxii, p. 1013), China (Sep. 13, 1871, arts. 8-9, China, Maritime Treaties, vol. ii. p. 510), and Peru (Aug. 21, 1873, art. 6, State Papers, vol. lxiii, p. 54). These treaties were superseded by the treaties concluded by Japan with the various Powers between 1804 and 1899. See Chapter X.

[45] Treaty of Feb. 26, 1876, art. 10, State Papers, vol. lxvii, p. 533. Other Powers which enjoyed extraterritorial rights in Corea prior to 1910 were China (Sep. 11, 1899. art. 5, China, Maritime Treaties, vol. ii, p. 867), the United States (May 22, 1882, art. 4, Malloy, vol. i. p. 336), Great Britain (Nov. 26, 1883, art. 3, State Papers, vol. lxxiv, p. 87), Germany (Nov. 26, 1886, art. 3, ibid., p. 634), Russia (June 25/JuIy 7, 1884, art. 3, ibid., vol. lxxv, p. 511), Italy (June 26, 1884, art. 3, ibid., p. 310), Austria-Hungary (June 23, 1892, art. 3, ibid., vol. lxxxiv, p. 121), Belgium (March 23, 1901, art. 3, ibid., vol. xciv, p. 540), and Denmark (July 15, 1902, art. 3, ibid., vol. xcv, p. 171). These treaties came to an end when Corea was annexed by Japan in 1910. See Chapter V.

[46] Art. 2, State Papers, vol. xlvi, p. 139. Other Powers which had similar treaties with Siam were the United States (May 29, 1856, art. 2, Malloy, vol. ii, p. 1630), France (Aug. 15, 1856, arts. 8-9, State Papers, vol. xlvii, p. 997), Denmark (Mar 21, 1858, arts. 9-10, ibid., vol. i, p. 1077), Portugal (Feb. 10, 1859, art. 6, ibid., vol. lxxii, p. 111), the Netherlands (Dec. 17, 1860, art.. 9, ibid., vol. lviii, p. 266), Prussia, etc. (Feb. 7, 1862, arts. 9-10, ibid., vol liii, p. 745), Sweden and Norway (May 18. 1868, arts. 9-10, ibid., vol. lxix, p. 1139), Belgium (Aug. 29, 1868, arts. 9-10, ibid., vol. lix, p. 409), Italy (Oct. 3, 1868, art. 9, ibid., vol. lx, p. 775), Austria-Hungary (May 17, 1869, arts 9-10, ibid., vol. lxi, p. 1312), Spain (Feb. 23, 1870, arts. 6-7, ibid., p. 484), and Japan (Feb. 25, 1898, Protocol, art. I, ibid., vol. xc, p. 70). The United Slates abolished her extraterritoriality in Siam conditionally by the treaty of Dec. 16, 1920, while Great Britain, France, and Denmark subsequently agreed to a substantial curtailment of their judicial rights in Siam. See Chapter X.

[47] U.S., June 23, 1850, art. 9, Malloy, vol. i, p. 132; Great Britain, Nov. 26, 1856, State Papers, vol. lxv, p. 1170.

[48] Art. 3, ibid., vol. lxx, p. 10. Other Powers which enjoyed extraterritorial rights in Tonga were the United States (Oct. 2. 1886, art. 12, Malloy, vol. ii, p. 1784) and Germany (Nov. 1, 1876, art. 9, Reichsgesetzblatt, 1877, p. 521). After Tonga became a protectorate of Great Britain, the German and American Governments were deprived of their extraterritorial privileges there. See Chapter VIII.

[49] U.S., Jan. 17, 1878, art. 4, Malloy, vol. ii, p. 1575; Germany, Jan. 24, 1879, art. 7, State Papers, vol. lxx, p. 244; Great Britain, Aug. 28, 1979, arts. 4, 5, ibid., p. 134.

[50] See Chapter V.

[51] Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 8; Portugal, 1859, art, 6; the Netherlands, 1860, art. 9; Italy, 1868, art. 9.

[52] China: U.S., 1844, art. 25; 1858, art. 27; Great Britain, 1858, art. 15; France, 1844, art. 27; 1858, art. 39; Sweden and Norway, 1847, art. 25; Germany, 1861, art. 39; Denmark, 1863, art. 15; the Netherlands, 1863, art. 6; Spain, 1864, art. 12; Italy, 1866, art. 15; Austria-Hungary, 1869, art. 40; Peru, 1874, art. 14; Brazil, 1881, art. 11; Portugal, 1887, art. 47; Japan, 1896, art. 20; Mexico, 1899, art. 15; Sweden, 1908, art. 10.
Japan: Great Britain, 1858, art. 4; France, 1858, art. 5; Portugal, 1860, art. 4; Prussia, 1861, art. 5; Switzerland, 1864, art. 5; Belgium, 1866, art. 5; Italy, 1866, art. 5; Denmark, 1867, art. 5; Spain, 1868. art. 5; Germany, 1869, art. 5; Austria-Hungary, 1869, art. 5; China. 1871, art. 8.
Corea: Great Britain, 1883, art. 3; Germany, 1883, art. 3; Russia, 1884, art. 3, Italy, 1884, art. 3; Austria-Hungary, 1892, art. 3; Belgium, 1901, art. 3; Denmark, 1902. art. 3.
Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 8; Portugal, 1859, art. 6; the Netherlands, 1860, art. 9; Italy, 1868, art. 9.
Borneo: U.S., 1850, art. 9.
Tonga: U.S., 1886. art. 17.
Samoa: U.S., 1878, art. 4; Great Britain, 1879, art. 4.

[53] State Papers, vol. lxv, p. 1170.

[54] See, e. g., China-Mexico, 1899, art. 14, which provides: "As a general rule, every civil or criminal suit instituted in China between the subjects or citizens of the two Contracting Parties shall be tried according to the laws and by the authorities of the country to which the defendant or accused belongs."

[55] China: Great Britain, 1843, Gen. Reg., art. 13; 1858, art. 16; U.S., 1844. art. 21; 1858, art. 11; France, 1844, art. 27; 1858; art. 38; Sweden and Norway, 1847, art. 21; Germany, 1861, art. 38; Denmark, 1863, art. 16; the Netherlands, 1863, art. 6; Spain, 1864, art. 13; Belgium. 1865, art. 19: Italy, 1866, art. 16; Austria-Hungary, 1869, art. 39; Peru, 1874, art. 13; Brazil. 1881, art. 10; Portugal, 1887, art. 48; Japan, 1896, art. 22; Mexico, 1899, art. 14; Sweden, 1908, art. 10.
Japan: the Netherlands, 1858, art. 5; U.S., 1857, art. 4; 1858, art. 6; Russia, 1858. art. 14; Great Britain, 1858, art. 5; France, 1858, art. 6; Portugal, 1860, art. 6; Prussia, 1861, art. 6; Switzerland, 1864, art. 6; Belgium, 1866, art. 6; Italy, 1866, art. 6; Denmark. 1867, art. 6; Sweden and Norway, 1868. art. 6; Spain, 1868, art. 7; Germany, 1869, art. 6; Austria-Hungary, 1869, art. 6.
Corea: U.S., 1882, art. 4; Germany, 1883, art. 3; Russia, 1884, art. 3; Italy, 1884, art. 3; Austria-Hungary, 1892, art. 3; Belgium, 1901, art. 3; Denmark, 1902, art. 3.
Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 9; Denmark, 1858, art. 10; Portugal, 1859, art. 6; the Netherlands, 1860, art. 9; Prussia, 1862, art. 10; Sweden and Norway, 1868, art. 10; Belgium, 1868, art. 6; Italy, 1868, art. 9; Austria-Hungary, 1869, art. 10; Spain, 1870, art. 7.
Borneo: Great Britain, 1856.
Tonga: Great Britain, 1879, art. 3; U.S., 1866, art. 12.
Samoa: U.S., 1878, art. 4; Great Britain, 1879, art. 4. In Samoa, the Germans had a special system, whereby the German authorities in Samoa and the Samoan judges exercised a joint jurisdiction over penal matters. See the German treaty, 1884, art. 4, State Papers, vol. lxxv, p. 508.

[56] China: Japan, 1896, art. 21; Sweden, 1908, art. 10.
Japan: Austria-Hungary, 1869, art. 5.
Corea: All the treaties referred to in the preceding note.
Siam: Portugal, 1859, art. 6; the Netherlands, 1860, art. 9.
Borneo: U.S., 1850, art. 9.
Tonga: Great Britain, 1879, art. 3 (d) ; U.S., 1886, art. 12.
Samoa: Great Britain, 1879, art. 5.

[57] China: Great Britain, 1843, Gen. Reg., art. 13; 1858, art. 17; France, 1844, art. 25; 1858, art. 35; Russia, 1858, art. 7; Germany, 1861, art. 35; Denmark, 1863, art. 17; Spain, 1864, art. 14; Belgium, 1865, art. 16; Italy, 1866, art. 17; Austria-Hungary, 1869, art. 38; Peru, 1874, art. 12; Brazil, 1881, art. 9; Portugal, 1887, art. 51; Mexico, 1899, art. 13.
Japan: Great Britain, 1858, art. 6; France, 1858, art. 7; Portugal, 1860, art. 5; Belgium, 1866, art. 5; Italy, 1866, art. 5; Denmark, 1867, art. 5; Sweden and Norway, 1868, art. 5.
Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 8; Denmark, 1858, art. 9; Prussia, 1862, art. 9; Sweden and Norway, 1868, art. 9; Belgium, 1868, art. 9; Italy, 1868, art. 9; Austria-Hungary, 1869, art. 9; Spain, 1870, art. 6.
Samoa: U. S., 1878, art. 4.
Art. 8 of the Sino-Japanese treaty, Sep. 13, 1871, provided that in questions where subjects of both parties were concerned, the complainant should address a petition to the consul of the accused, who should acquaint the local authorities, the latter being charged with the duty of investigating the case, arresting offenders, and recovering debts. State Papers, vol. lxii, p. 322.

[58] China: Great Britain, 1876, sec. ii (3).
Corea: U.S., 1882, art. 4; Great Britain, 1883, art. 3; Germany, 1883, art. 3; Russia, 1884, art. 3; Italy, 1884, art. 3; Austria-Hungary, 1892, art. 3; Belgium, 1901, art. 3; Denmark, 1902, art. 3.
Siam: Portugal, 1859, art. 6.

[59] Art. 4, Malloy, vol. i, p. 240. Cf. China-Britain, 1876, sec. ii (3) and all the Corean treaties referred to in the preceding note.

[60] Hinckley, "Extraterritoriality in China," Am. Acad. of Pol., and Soc. Science, Annals, vol. xxxix, p. 97.

[61] See Chapter X

[62] China: U.S., 1844, art. 25; 1858, art. 27; France, 1844, art. 28; 1858, art. 39; Sweden and Norway, 1847, art. 25; Germany, 1861, art. 39; Denmark, 1863, art. 15; Spain, 1864, art. 12; Italy, 1866, art. 15; Austria-Hungary, 1869, art. 40; Peru, 1874, art. 14; Brazil, 1881, art. 11; Japan, 1896 art. 20; Mexico, 1899, art. 15; Sweden, 1908, art. 10.



Notes by John Zube (^)

(*A) The wording reveals the Chinese nationalist speaking. Chinese territorial empire building simply goes further back and much of the relevant literature was destroyed. The same development from exterritorial autonomy and personal law to territorial domination is likely to have occurred in China as well, but it is no longer documented. - J.Z., 1.1.05.

(*B) Incomprehension among bureaucrats for freedom alternatives is nothing new. To resist drug addition is the responsibility of the drug addicts - unless they choose to live in a community of addicts. - J.Z., 1.1.05.

(*C) What is still to be proven is here assumed to already exist, in the very wording: "who come to submit themselves to the government of the Empire"! - J.Z., 1.1.05.

(*D) One prejudiced person agreeing with another proves nothing for the justice of a case. Those really agreeing to accept a territorially determined law system are, naturally, acting within their rights. - J.Z., 1.1.05.

(*E) "The" Chinese is also an unjustified generalization - J.Z., 1.1.05.)

(*F) How many Chinese declarations of individual rights have you come across so far? I have not yet seen even one! - J.Z., 1.1.05.

(*G) Soil has no nationality. Only persons can have it, if they want it. If it is imposed upon them, then it is not a genuine nationality, either. - J.Z., 1.1.05.

(*H) Only individuals and voluntary associations can give a genuine consent! - J.Z., 1.1.05.

(*I) International law does not really deserve this name as long as it is based on the wrong premises and fallacies of territorialism, rather than upon individual rights and liberties. - J.Z., 1.1.05.


[Home] [Top]