The Continental Monthly, Vol. 4, No. 5, November, 1863 online

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soil of China. Twenty Japanese filibusters were boiled to death in the
streets of Ningpo, by order of an envoy of their country, who then
(1406) happened to be in Peking. All their intercourse with foreigners
seemed to confirm Chinamen in the belief that the barbarians were in
their dispositions like wild beasts, unamenable to reason, and to be
treated accordingly.

With feelings of mutual mistrust and hostility, commerce was long
conducted by Europeans and Chinese at Canton. The question of foreign
exemption from local jurisdiction only came up for discussion in cases
of homicide; but in every instance the Chinese insisted on their right
to punish the murderer. Foreign resistance to the claim was based only
on the unwillingness of the Chinese to distinguish between killing by
accident, in self-defence, or from malice. In the Chinese code such
distinctions exist; but life for life was the inexorable demand when a
native was slain by a foreigner; it was not, however, so much jealousy
of foreign jurisdiction, as a desire of revenge, that actuated them, as
was shown on many occasions. Whenever foreigners tried and executed one
of their number for a murder of a Chinaman, the mandarins and people
were satisfied. It was the practice of the local authorities to make a
representation to the emperor to the effect that such trials and
executions were in obedience to their orders, the foreigners being their
submissive agents. The real difficulties occurred when an accidental or
extenuating homicide took place, or where there was insufficient proof
of the guilt of the accused. The condign punishment of those convicted
did not meet the requirements of the Chinese authorities. They seized,
and held as hostages, countrymen of the murderer, and demanded blood for
blood, seeking not justice but revenge. The object was explicitly
expressed by the emperor Kienlung, in an edict (1749): 'It is incumbent
to have life for life, in order to frighten and repress the foreigner.'

Four years subsequent to the issuing of the edict of Kienlung, the
Canton local government memorialized the emperor to disallow to
foreigners the privilege of appeal, when sentenced to death. Except in
times of insurrection no Chinaman can be executed until his death
warrant is signed by the emperor. In compliance with that memorial,
foreigners, guilty of homicide, were outlawed. It was formally announced
that 'The barbarians are like beasts, and not to be ruled on the same
principles as citizens. Were any to attempt controlling them by the
great maxim 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 way of
ruling them.' It suited the purpose of European residents at Canton to
descant upon the arrogance and inhumanity of the Chinese, as manifested
by proceedings based upon those hostile edicts, while the provocations
which explained and extenuated them were studiously concealed.

Considered apart from the misdemeanors of foreigners, the measures of
the Chinese authorities justified the appeal to arms by the nation,
whose interests were chiefly concerned in commercial dealings with that
empire. The supremacy claimed by the Chinese over all countries
occasioned frequent altercations between the mandarins at Canton and the
English officers who were in charge of the East India Company's factory
in that city. Hostile collisions were, however, comparatively
unfrequent, owing to the authority exercised over all British subjects
by the East India Company, that body having authority to deport any of
their countrymen who acted disorderly. Their proceedings in that way
gave a tone to the entire foreign community, and as intercourse was
restricted to a single port, where the people were jealous, and
mandarins vigilant, murderous affrays did not often take place; yet,
when they did occur, the Chinese were resolute in claiming jurisdiction
in each instance. In cases of assault, pecuniary recompense always
satisfied the complainant; and in business transactions mutual
confidence in each other's integrity rendered official intervention

Thus, except in cases of homicide, the foreign claim of exemption from
local jurisdiction was tacitly admitted, and no inconvenience followed.
But where life was lost, even when both the murderer and his victim were
foreigners, the right to try and execute the guilty was contended for,
and in some cases admitted. Kienlung's demand of 'life for life' was
always made, an innocent victim being not less acceptable than the real
culprit. On one occasion (1772), when a Chinaman was killed in the
Portuguese settlement of Macao, an Englishman, demanded by the Chinese,
whom the Portuguese admitted to be guiltless, was by them given up, and
by the Chinese strangled, to meet the claim of life for life. No regard
was had for those who by accident caused loss of life. In 1780 a native
was killed by the firing of a salute from an English vessel. The
mandarins decoyed the supercargo and held him as a hostage until the
gunner was delivered up. The innocent cause of the calamity was given up
under a promise from the mandarins that he should have a fair trial, and
that his life should not be endangered. He was immediately strangled. In
1821 an Italian sailor, in the service of an American merchantman, was
the indirect cause of the death of a China boatwoman, who was by the
side of his vessel. Trade was stopped until the poor man was delivered
up; the committee of American merchants, in the examination of the
sailor, protested against its irregularity. In sending the prisoner to
be strangled, they said, 'We are bound to submit to your laws, while in
your waters; be they ever so unjust, we will not resist them.' A
plausible reason for a culpable act. They should have allowed the trade
to stop, and quit the Chinese waters, rather than become parties to the
murder of the Italian.

The abrogation of the monopoly of the East India Company, and the rapid
extension of the illicit traffic in opium, caused a great influx of
foreigners into China, who often forced their way to ports where
intercourse was prohibited; these were among the causes which prepared
the way for the war with Great Britain; but the question which
precipitated that war, was one touching Chinese jurisdiction over
contraband merchandise, smuggled into the empire in defiance of the
efforts of the Chinese authorities to keep it out. Opium, the bane of
their race, was stored up in the foreigners' vessels in Chinese waters.
To obtain possession of the fatal drug, they placed the foreigners in
duresse. The opium war followed, and next the treaty of Nanking, which
secured all that Britain desired, save the legalization of the opium

Neither in the treaty of Nanking, nor the supplementary treaty, was the
concession of exemption of British subjects from local Chinese
jurisdiction formally expressed. Security to British subjects was
guaranteed, while the British Government stipulated that they should
keep a ship of war at each port 'to restrain sailors on board the
English merchant vessels, which power the consuls may also avail
themselves of, to keep in order the merchants of Great Britain and her

That the Chinese regarded the principle of extraterritoriality as having
been conceded, was shown by their ready assent to the insertion in the
American treaty of a clause formally abdicating sovereignty to that
extent. Our treaty says: 'Subjects of China, who may be guilty of any
criminal act toward citizens of the United States, shall be arrested and
punished by the Chinese authorities, according to the laws of China; and
citizens of the United States, who may commit any crime in China, shall
be tried and punished by the consul or other public functionary of the
United States.' Provision was made for joint action between American and
Chinese officials in certain cases. It was also stipulated that there
should be no interference by the Chinese in any misunderstanding that
might arise between Americans and people of other foreign countries.

In the third treaty - that negotiated by the French - foreign exemption
from Chinese law was yet more explicitly declared: 'Every Frenchman, who
harbors resentment or ill will toward a Chinese, ought first to inform
the consul thereof, who will again distinctly investigate the matter,
and endeavor to settle it. If a Chinese has a grudge against a
Frenchman, the consul must impartially examine and fully arrange it for
him. But if any dispute should arise, which the consul is unable to
assuage, he will request the Chinese officer to coöperate in arranging
the matter, and having investigated the facts, justly bring the same to
a conclusion. If there is any strife between French and Chinese, or any
fight occurs in which one, two, or more men are wounded, or killed by
firearms, or other weapons, the Chinese will, in such cases, be
apprehended and punished, according to the laws of the Central Empire;
the consul will use means to apprehend the Frenchmen, speedily
investigate the matter, and punish them according to the French law.
France will in future establish laws for their punishment. All other
matters, not distinctly stated in this paragraph, will be arranged
according to this, and greater or lesser crimes committed by the French,
will be judged according to French law.'

China, stunned by the blows so unexpectedly inflicted by the barbarians,
whom she despised and thought herself able to exterminate, made no
resistance to the demands made for extraterritoriality. As a Chinaman
does not hesitate to commit suicide when excited and alarmed, so
Taukwang quietly acquiesced in terms which were fatal to the
independence of his empire. When, subsequently, the English demanded
from the Siamese similar conditions, those people, although feeble and
servile, could not easily be made to brook the degradation. Sir John
Bowring, who negotiated the treaty with that state, says, in his Kingdom
and Prospects of Siam, 'The most difficult part of my negotiation was
the emancipation of British subjects from subjection to Siamese
authority.' Who can wonder? The emancipation of the guests required for
its complement the disfranchisement of the host! The fact that the
Siamese were aware of the nature of the concession affords hope that
they will succeed in averting some of its mischievous consequences.
Subsequently the Siamese made the same concession to Americans, thus
abrogating our former self-stultifying stipulation.

Mr. Urquhart, in his work on Turkey and its Resources, expresses the
opinion that the Ottoman empire and the Barbary States have acted
unwisely in exempting resident Franks from jurisdiction; on which Mr.
Cushing, who negotiated our treaty, remarked, when attorney-general of
the United States: 'It may be unwise for them; but it will be time
enough for them to obtain jurisdiction over Christian foreigners, when
these last can visit Mecca, Damascus, or Fez as safely and freely as
they do Rome and Paris, and when submission to local jurisdiction
becomes reciprocal.' When have Mohammedans or Pagans refused submission
to rulers in Christian lands? As regards China, Christian travellers
enjoy the same immunities there that are accorded to them in Europe or
America - they are safe and free; it is not easy, therefore, to frame a
valid reason for extraterritorial practice in that empire.

No less a jurist than John Quincy Adams, in a lecture on the British war
with China, delivered before the Massachusetts Historical Society
(December, 1841), pronounced the cause of Britain 'righteous.' Mr.
Adams, however, proceeded on the assumption that the real matter at
issue was whether the assumption of Chinese supremacy should be admitted
or not. He regarded the opium question as a mere incident in the
controversy, and entirely overlooked the other question at issue, viz.,
the independence of China.

Let us now observe the operation of the extraterritorial policy. Besides
Canton, four other ports were opened for trade, and the grant is made to
England of full sovereignty of the island of Hongkong, commanding the
entrance of the Pearl or Canton river. If the Chinese had been able to
restrict its concession to the three treaty powers, England, United
States, and France, the baneful consequences might have been easily
controlled, for these countries immediately empowered their consuls to
exercise jurisdiction over their respective countrymen. In one respect,
Congress fully met the demands made upon the country by the position
which we with others had assumed in China. Laws sufficiently stringent
were enacted for the government of our citizens in that empire; but the
consular system, that was inaugurated to meet the new order of things,
was so defective, as to render those laws nearly inoperative. The
salaries attached to these offices being totally inadequate, competent
persons could not be induced to accept appointments; or when accepted,
they were relinquished as soon as the incumbent became fully qualified
by experience for the discharge of consular duties. Having to act as a
magistrate, some knowledge of law was requisite; and having peculiar
diplomatic duties to perform, considerable knowledge of Chinese polity,
history, and customs was needed. The consequence was, as regards
Americans, such a lax administration of justice that our disorderly
countrymen were not subject to due restraint; and as American offenders
easily eluded apprehension, or escaped punishment, lawless British
subjects often found it advantageous to claim to be American citizens,
insomuch as to cause irreparable damage to American character and
influence. When the ports were first opened for trade, no people were
regarded with as much favor as our countrymen; but since that period we
have lost ground, and our influence has been greatly impaired through
those causes.

The British consular system was made a service, its members being fairly
remunerated and induced to make their occupation the profession of their
lives; consequently the Government has at all times competent and
reliable servants. British consuls, moreover, in their magisterial
capacity were a terror to evil doers, the means placed at their disposal
for repressing the unruly were ample; while the American consul, being
unprovided with interpreters, and ignorant of the language, having no
constable or marshal, clerks or assistants of any kind, and having no
place wherein to confine a criminal, often failed to inspire respect.

It was, however, from the subjects of non-treaty powers that China was
destined to suffer most from her concession of extraterritoriality. Men
of every clime and nation claimed exemption from her laws. Vagabonds,
whose government had no consular authority to restrain them, boldly
defied the local authorities, becoming a law unto themselves. Lawless
adventurers from the gold regions of Australia and California personated
those nationalities; and the bewildered Chinese often despaired of
success in distinguishing even the names of the nationalities they were
called to encounter. When discharging consular duties in Ningpo, the
mandarins frequently consulted us, soliciting information on this
subject; they were apprehensive of offending one government or another,
while seeking to afford protection to their own people.

One disastrous result of the war with England was the discovery by the
Chinese of the impotency of their rulers. No sooner had the lawless
among them seen the ease with which a few foreigners dictated terms to
the hitherto formidable mandarins, than they took to the sea as pirates.
In a short space of time the coast became so infested by these
marauders, that Chinese junks dared not put to sea without being under
the convoy of a foreign, square-rigged vessel. A lucrative business soon
sprang up in convoying. A foreign merchantman would sail in company with
a fleet of junks, and by his presence intimidate the Chinese pirate.
Gradually this business was monopolized by the Portuguese; the proximity
of their Chinese possession, Macao, enabled them to fit out lorchas, or
coasting sloops, which, being manned largely by Manilla men, were able
to serve as a cheap and effective navy for the Chinese mercantile
marine. Enjoying exemption from all control, these armed, irresponsible
lorchamen early began to dictate terms to the Chinese mariners, and in a
few months the unfortunate Chinaman was puzzled which to avoid, the
piratical junk or the buccaneering lorcha, the extortions of the latter
being as damaging as the robberies of the former. He was no more at
liberty to decline the protection of a Portuguese convoy, on the terms
which the foreigner saw fit to impose, than to refuse the demands of the
professed pirate.

The Chinese pirates, finding their occupation so much interfered with by
their foreign rivals, turned their attention to the poor fishermen, whom
they mercilessly plundered. Foreign protection was invoked; and the
protection of this important branch of industry was committed to the
unprincipled lorchamen. When junkmen and fishermen discovered that the
extortions of the foreigner were damaging as the exactions of the native
pirate, they tried to make terms with the latter; but it was too late.
It was no longer optional with them to accept or refuse protection.
Black mail was levied upon all with the method and certainty of a
revenue service. This was not effected without violence and bloodshed;
but of this there were none to take cognizance. The outrages were
perpetrated at ports or off coast, where there were no consuls. Hence
anarchy reigned at all points beyond the precincts of the consular

It is the nature of such a condition of things to extend; and it was not
long before the lawless foreigners, chiefly Portuguese, but with a
mixture of English, Americans, and all other nationalities, carried
their depredations to the villages on the islands and mainland. Robbery
and murder at sea were succeeded by like crimes on land. Whole villages
were reduced to ashes; the men butchered, and the women violated; some
being carried on board the lorchas and held to ransom. Chinese officials
were slain on attempting to resist the corsairs. Much of our surgical
practice in China was due to these piracies and forays.

Adventurers, who could not command a lorcha, fitted up native boats, and
hoisting some foreign flag, carried on like depredations in the
estuaries and rivers. Others went so far as to open offices in the small
towns for the sale of passes, which boats crossing from headland to
headland were compelled to show, in order to escape from greater
exactions when under way. Not a small part of the wrongs thus
perpetrated were by natives attired in foreign habiliments and under
foreign direction. Such was the fear entertained of foreigners, that a
bold and unscrupulous man could do anything with impunity. Take the
following occurrence as an illustration: At the mouth of the Ningpo
river is a small village of salt makers, at which the salt commissioner
stations a deputy. This officer, after having been cruelly beaten, was
driven away by the Portuguese, who issued a proclamation authorizing
their employés to collect the salt gabel in the name of the Portuguese

It is proper to remark that the transition from the protective to the
piratical character of the lorchas was owing in some measure to the
fatuous procedure of the mandarins themselves toward a formidable body
of pirates, whose submission they purchased by conferring ranks and
emoluments on the chiefs, and by giving employment to the whole fleet,
constituting them guardians of the coast. In transforming the wolves
into shepherds, a change of occupation was not attended by a change of
character. In their new capacity as legalized fleecers, they came into
collision with those of Macao; and what they lost as convoyers, they
aimed to gain as pirates.

A general massacre of the Portuguese at Ningpo, by the Cantonese
pirates, served to mitigate the evil by calling the attention of the
English and Portuguese authorities to the anarchy which drew much of its
support from Hongkong and Macao. The Portuguese were subjected to
greater restraint, and a greater degree of order was thereby secured.

It is not easy to estimate the evil effects upon China of the possession
of Hongkong and of Macao by the Portuguese. They are like corroding
ulcers in her side. Imagine Bermuda and Nassau just off Sandy Hook, with
every conceivable facility for smuggling into the port of New York;
suppose the contraband traffic to be fatal to the health and morals of
our citizens, as well as prejudicial to our revenue, and then
extraterritorial privilege giving immunity to many of the foreigners'
misdeeds; and the difficult position of Chinese authorities will be
partially appreciated.

It was in part a question of jurisdiction that led to the second war
with England - the 'lorcha' war. But for the assumption, on the part of
the British, that the Chinese were in a measure a subjugated people, or
not in possession of full sovereignty, they could not have again invaded
China with any show of reason.

On the breaking out of hostilities there was a general demand, on the
part of all mercantile powers, for the entire and unrestricted opening
of the Chinese empire to all foreigners. At that juncture we felt called
upon to remonstrate against such injustice toward an unoffending
country. In a series of articles, published in the _North China Herald_,
we attempted to show that an unqualified compliance with the demands of
chambers of commerce and the press would be inimical to foreign no less
than to Chinese interests: 'With one voice Christian nations demand the
entire opening of China, and an extension of commercial advantages,
regardless of Chinese rights in the matter. I believe that these rights
cannot be infringed with impunity. China, it is true, must succumb
before a requisite force; but the real difficulties of the aggressors
will only then commence. Let us consider the consequences of an
unconditional compliance with the demands of foreigners. You shall see
the horrid barbarities, which have devastated the coast, reënacted in
the interior. You shall see the adventurers, who shoot down Chinamen
with no more malice or compunction than they shoot a pheasant, go
further and travel faster than consul, merchant, or missionary. Murder,
robbery, rape, and the like, will be common wherever the arm of
authority is unfelt. Up her far-reaching rivers, along her interminable
network of canals, on the surface of her broad lakes, through her every
navigable water-course, China will be infested by desperadoes from all
lands, scattering misery in every valley and throughout the great plain.
Then will follow the assassination of the peaceful traveller; massacres,
foreign intervention, blockades and wars, and the lasting impediments to
commerce and civilization which these disorders engender.'

We proposed, as a check to the evil, a system of passports, limiting the
privilege of travel or residence beyond consular ports to responsible
persons - to those who could give some guarantee that the privilege
should not be abused. Lord Elgin and Baron Gros, the allied
plenipotentiaries, accepted the plan, and proposed it to the imperial
commissioners. It is said that the commissioners eagerly seized the
proposition, as, after the capture of Tien-tsin by the allied forces,
they saw that submission was inevitable, yet durst not propose to the
emperor unconditional acquiescence with the conquerors' demands, and
represented the proposed passport system as a condition which they had
imposed upon the barbarians. Thus they were empowered to negotiate the
treaty of Tien-tsin, which averted a battle between that port and
Peking, which neither party felt itself quite ready to commence.

About a dozen additional ports, some in the heart of the empire, are now
open to the foreigner, and extraterritoriality obtains throughout the
vast region subject to the sway of the Son of Heaven - which, with other
corresponding causes, seems to be effecting the dismemberment of that
hoary empire. The regimen to which the oldest of nations is subjected,
is fast placing it in the condition of the 'sick man' of the Bosphorus.

As an evidence of the aggressive character of the foreigner, and of the
desire of rendering extraterritoriality a means of subjugation, examine
the claims set up within the past few months by mercantile interests.

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Online LibraryVariousThe Continental Monthly, Vol. 4, No. 5, November, 1863 → online text (page 13 of 20)