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similar reciprocal privileges. So, in the very first treaty
— that of Nerchinsk with Russia in 1689, — reciprocal con-
cessions of extraterritoriality were granted (Art. 2). 4
Again, in the Treaty of 1727, similar concessions of re-
ciprocal extraterritoriality were provided (Art. 10), 5
which were, however, altered and amplified by the sup-
plementary treaty of 1768, minutely stipulating the pro-
cess of arrest and delivery of criminals."

Even in the Treaty of Kouldja in 1851, which took
place about a decade after the Maritime Powers had
exacted the privilege of extraterritoriality from China,
the arrangement was still for a reciprocal concession of
extraterritoriality (Art. 7 ) .' And it was not until 1858,
when Russia sought concessions similar to those accorded
to the Maritime Powers under the aegis of the British and
French arms, that Russia secured the same privilege of
extraterritoriality as were enjoyed by the maritime pow-
ers (Art. 7)." Likewise, in the Treaty of Commerce and
Navigation with Japan in 1872, the privilege of extra-
territoriality was not granted unilaterally, but a recipro-
cal concession thereof was made (Art. 9).' Audit was not

until Japan had defeated < hina in the War of 1894-5 that

she obtained privileges of extraterritoriality such as were
enjoyed by the Maritime Powers, in the Treaty of Shi-



288 IMPAIRMENTS OF SOVEREIGNTY

monoseki in 1895, the grant of the most favored nation
treatment was made (Art. 6), 10 which naturally included
the privilege of extraterritoriality. In the subsequent
Treaty of Commerce and Navigation in 1896 the privi-
lege was specifically .stipulated (Art. 20). n Similarly
in the Treaty of Amity and Commerce with Korea in
1899, despite the fact that the other Powers had prac-
tically enjoyed extraterritorial privileges for about half
a century, Korea was given, not the privilege of extra-
territoriality as enjoyed by the other Powers, but the
reciprocal concession of extraterritorial jurisdiction (Art.
5). 12 Thus the thesis can be ventured that, prior to the
advent of the Maritime Powers, China was accustomed
to the practice of reciprocal concessions of extraterritorial
jurisdiction in her relations with neighboring Oriental
states, and, as we shall see presently, that the privilege
of extraterritoriality as now enjoyed by the Powers un-
ilaterally was originated by the Maritime Powers.

As the Maritime Powers arrived (particularly Great
Britain), the history of extraterritoriality turned a new
leaf. They insisted on the enjoyment of the privilege, and
yet at the same time, relying upon the superiority of their
own civilization, would not consider the idea of recipro-
cating the same. Thus, China insisted on the assertion
of territorial jurisdiction over these "barbarians," whereas
the Maritime Powers resisted and claimed exemption.
Relating the instances of this conflict, J. B. Moore
wrote: 13

"When crimes had been committed there by foreigners
other than Portuguese, the Government had never failed
to assert its jurisdiction to seize the accused if accessible
on land, and to demand his surrender if on board of a
ship. The claim of surrender had sometimes been suc-
cessfully resisted, and some times acquiesced in. In
1780, a French seaman, who killed a Portuguese seaman
in one of the hongs of Canton, was delivered up to the
local authority, by whom he was tried, convicted, and ex-



CONSULAR JURISDICTION 289

ecuted. In 1784 the gunner of an English merchant ship,
who, in firing a salute, had killed a Chinese, was given
up and executed. . . . Captain Elliott, of the British
navy, however, at an early stage of the controversy be-
tween his Government and that of China, refused to give
up some English sailors who were charged with homi-
cide."

Supporting this firm position, as early as 1833, a Brit-
ish Court of Justice for China was proposed and passed, 14
the carrying out of which, however, was unsuccessful.
Again, in 1838, the same measure was proposed in the
House of Commons: 15 "with even greater power and
jurisdiction." l8 This was, however, withdrawn on ac-
count of strong opposition in the House. And, despite
these repeated efforts, it was not until after the Opium
War that England obtained the privilege.

In the Treaty of Nanking in 1842, there was no spe-
cific mention of the grant of extraterritoriality, but in
the subsequent general regulations governing British trade
at the five ports of Canton, Amoy, Foochow, Ningpo, and
Shanghai, concluded on October 8, 1843, the first pro-
vision of the concession of extraterritoriality appeared. 17

"Whenever a British subject has reason to complain of
a Chinese, he must first proceed to the consulate and state
his grievance; the consul will thereupon inquire into the
merits of the case, and do his utmost to arrange it ami-
cably. In like manner, if a Chinese have reason to com-
plain of a British subject, he shall no less listen to his
complaint, and endeavor to settle it in a friendly man-
ner. If an English merchant have occasion to address
the Chinese authorities, In- shall send such address through
the consul, who shall see that the language is becoming;
and if, otherwise, will dired it to he changed, or will re-
fuse to convey th< If, unfortunately, any dis-

DUtes take place of such a nature that the consul can-
not arrange them amicably, thin he shall request t!

sistance of a Chinese officer, that they may together ex-



290 IMPAIRMENTS OF SOVEREIGNTY

amine into the merits of the case, and decide it equitably.
rding punishment of English criminals, the English
Government will enact the laws necessary to attain that
end, and the consul will be empowered to put them in
force; and regarding the punishment of Chinese criminals,
these will be tried and punished by their own laws, in the
way provided for by the correspondence which took place
at Nanking, after the concluding of the peace" 18 (Art.
13).

In the subsequent Treaty of 1858. which confirmed the
Treaty of Nanking and abrogated the supplementary
treaty and the general regulations of trade, the substance
of which was incorporated in the treaty in question (Art.
1), the above provision was consequently likewise abro-
gated, but its substance was embodied in the following
Articles: 19

"Article 15. All questions in regard to rights, whether
of property or person, arising between British subjects,
shall be subject to the jurisdiction of the British author-
ities.

"Article 16. Chinese subjects who may be guilty of
any criminal act toward British subjects shall be ar-
rested and punished by the Chinese authorities accord-
ing to the laws of China.

"British subjects who may commit any crime in China
shall be tried and punished by the consul, or other public
functionary authorized thereto according to the laws of
Great Britain.

"Justice shall be equitably and impartially adminis-
tered on both sides."

The British having thus set the precedent, the United
States obtained a similar privilege by the Treaty of
Wanghia, July 3, 1X44-' (Arts. 21 and 25). Similarly,
Prance obtained the same concession by the Treaty of
\\ hampoa, October 24, 1844 » (Arts. 25, 17. 28).

Following France came the other powers which ob-



CONSULAR JURISDICTION 291

tained the privilege of extraterritoriality by their respec-
tive treaty stipulations, as follows:

Norway and Sweden, March 20, 1847 (Arts. 21, 25

29)22

Russia, June 13, 1858 (Art. 7). 23
Germany, September 2, 1861 (Arts. 34, 35, 38, 39). 2
Denmark, Julv 13, 1863 (Arts. 15, 16, 17) r 5
Netherlands, October 6, 1863 (Art. 6).- 6
Spain, October 10, 1864 (Arts. 12, 13, 14). 27
Belgium, November 2, 1865 (Arts. 16, 19, 20). 28
Italy, October 26, 1866 (Arts. 15, 16, I7)r°
A i stria-Hungary, September 2, 1869 (Arts. 38, 39,
40). 30

Peru, June 26, 1874 (Arts. 12, 13, 14). 31

v/au October 3, 1881 (Arts. 9, 10, ll). 32
Portugal, December 1, 1887 (Arts. 47, 48, 51 ). 33
Japan, July 21. 1896 (Arts. 20, 21, 22). 34
Congo Free State, Julv 10, 1898 (Art. I). 35
Mexico, December 14, 1899 (Arts. 13, 14, 15 ). 36
Sweden, July 2, 1908 (Art. 10). 37
Chile, February 18, 1915. 38
Switzerland, June 13, 1918. 30 - 40

Passing from this brief sketch of extraterritoriality in
China, we now come to the exercise of extraterritorial
jurisdiction as it cxi>ts in China. Willi respect to the
extent of extraterritorial jurisdiction, certain principles
can be deduced from the treaty provisions stipulating the
extraterritorial privilege. If the dispute is wholly of
Chinese parties in which no foreigners are involved, the
jurisdiction belongs exclusively t Chinese courts, and
the ca^- should be settled according to the ( hinese law
and procedure. If a controversy is between the
parties of tin- -aim- treat] Po . tr enjoying the privi-
■ :traterritoriality, the jurisdiction lies exclusively

with the consular and other courts established by the

treaty Power in question, and the case i - to be settled

according to the law and procedure of that State. It the



292 IMPAIRMENTS OF SOVEREIGNTY

case is between the nationals of two or more treaty Pow-
er- enjoying the privilege of extraterritorial jurisdiction,
the jurisdiction lies, not with the Chinese courts, but
with the authorities of the States concerned in accordance
with agreements they have made covering such cases.
If the controversy is between the parties of the non-
treaty Power and the treaty Power, the jurisdiction is
determined by the nationality of the defendant ; if he is
of the treaty Power, the jurisdiction is in the courts of
the treaty Power in question ; if of the non-treaty Power,
the jurisdiction is in the courts of China; if the parties
are all of non-treaty Powers, the jurisdiction lies wholly
in Chinese courts. If, however, a controversy is between
the Chinese and the nationals of the treaty Power, the
general principle governing such cases is that the juris-
diction goes with the nationality of the defendant. In
other words, "the plaintiff follows the defendant into
the court of the latter's nation." 41

Thus it may be observed that extraterritorial juris-
diction follows the person of the national. In other words,
it is personal, and follows the nationals wherever they
go or reside. It is not alone limited to the settlements
and concessions or treaty ports, where aliens are to reside,
but it extends as far, and as wide, as the nationals go.
It can therefore be said that the extent of the extraterri-
torial jurisdiction is only limited by the realm of the terri-
torial sovereign, or to employ another expression, "it is
co-extensive with the confines of the Empire." * 2

Further, extraterritorial jurisdiction exempts foreign
nationals enjoying the privilege, not only from the ju-
dicial process of local tribunals, but also from the liabil-
ity of search. Their houses or vessels within treaty
ports are immune from search by territorial authorities.
Fugitives from law hiding in these houses or vessels
can be extradited only "on due requisition by the Chinese
authorities, addressed to the British consul." 43 In 1913,
during the second revolution, the Chinese Government



CONSULAR JURISDICTION 293

proposed that under warrants vised by the consul, the
houses and vessels of foreigners should be subject to
search, thus checking any collusion between the Chinese
and foreigners, but the proposal was rejected as being
contrary to treaty rights." Thi< privilege of immunity,
however, is not absolute. It does not mean that the
nationals can so abuse the privilege as to defy the terri-
torial laws or to menace public health or public safety,
in which case the territorial sovereign will have the right
of reasonable restraint.'"'

To these general principles governing the scope and
extent of extraterritorial jurisdiction, there are three spe-
cial exceptions. First, there is the special status of Ko-
reans in Chientao. While they are placed on an equal
footing with the Chinese, they are denied the full privi-
lege of extraterritoriality, and are accorded only a limited
or diminished form of extraterritorial right. Both in
civil and criminal cases, they are subject to Chinese juris-
diction, although the Japanese consular officers may be
present and, in case of injustice, can ask for a new trial.
It is only in the cases concerning the lives of persons
that previous notice must be given to the Japanese offi-
cer (Art. 4). 48

Second, there is the special status of the foreign na-
tionals in Chinese Government service. In general, they
still remain within the extraterritorial jurisdiction of their
own authorities. In particular cases, however, they are
exempted. In acts done in official capacity, they may not
be civilly liable in consular courts; 41 and in criminal
liabilities, they may plead the act oi In civil em-

ployment, when they arc placed under discipline, their
superiors have the authority to enforce obedience. 48 In

military service, by virtue of the necessity of the situa-
tion, they are supposed to have voluntarily waived their

extraterritorial protection and placed themselves under
the jurisdiction of the territorial
Third, there is the special status of the i hinese in the



204 IMPAIRMENTS OF SOVEREIGNTY

employ of foreign nationals. As a rule, they are still
subject i" Chinese jurisdiction just as other Chinese citi-
zens. They are, however, not to be arrested without
notice to the consul of the employer. 01

Apart from these special cases, the extraterritorial
jurisdiction is nevertheless subject to certain limitations.
These are numerous, but it will suffice to mention the
more important ones. Limitations can arise from treaty
provisions. For instance, foreigners violating customs
laws are subject to the confiscation of their vessels and
goods. 52 Limitations can also be founded on interna-
tional law. In accordance with well-established rules
of interpretation, extraterritorial jurisdiction being a dele-
gated power, the unsurrendered power is construed to
remain intact with the territorial sovereign, and any
doubt as to the grant must be absolved in favor of the
territorial sovereign. Under this construction, nationals
of non-treaty powers or of treaty powers enjoying no
extraterritorial privileges are subject to the jurisdiction
of China. Being so, they cannot claim the protection
of the other treat\- powers having extraterritorial privi-
leges, nor can the treaty powers claim the right of pro-
tection. 53 And herein lies an important difference be-
tween the practice of extraterritoriality in Turkey and
other countries of the Levant, and that in China. In
Turkey and other states of the Levant, the treaty Po
are permitted to take under their protection, as proteges,
the nationals of non-treaty Powers, but in China, this
right does not exist. 84

Further, the exemption from the jurisdiction of local
courts does not mean exemption from obedience to local
laws and municipal ordinances. The nationals, while
enjoying extraterritorial rights, are still bound to obey
local ordinances for public health and ord(

In addition, limitations can also arise from statutes
exiling the exercise of extraterritorial jurisdiction. The



CONSULAR JURISDICTION 295

extraterritorial courts, exercising the delegated power and
acting under the direction of the statutes, are subject to
the limitations set by legislation or treaty stipulations.
Even though the act may be within the extent of the
extraterritorial jurisdiction, if it is not included in the
statutes, the extraterritorial jurisdiction is limited to that
extent. 66

Finally, as the extraterritorial jurisdiction is personal,
this fact in itself constitutes an inherent limitation. Con-
sular courts have jurisdiction only over their respective
nationals, and not over any other subjects. Consequently,
they cannot punish Chinese plaintiffs for perjury or con-
tempt of court, nor can they entertain any counter-claim
or set-off, however just it may be.

Having seen the scope and the limitations of extra-
territorial jurisdiction, we now proceed to the extraterri-
torial courts that are vested with the authority to exer-
cise this jurisdiction. In general, all consuls of the
treaty powers are authorized to exercise extraterritorial
jurisdiction, such courts being known as consular
courts. For the purposes of appeal the diplomatic offi-
cials at Peking arc, in the main, empowered to exer-
cise appellate jurisdiction, but in the case of Great Britain,
the British Supreme Court for China was established by
the Order in Council of October 24, 1904, ss and in the
case of the United States, the United States Court for
China was instituted by the Act of June 30, 1906. 69 bruin
His Britannic Majesty's Supreme Court for China, where
more than £500 are involved, further appeal may be taken
to lli\ Majesty in Council, and in other cases, the Su-
preme Court may give leave, as it sees fit, to appeal to
the Privy Council.* From the United States Court for
China, further appeal ran be taken to the United S
Circuit Court of Appeals of the Ninth Judicial Circuit,
and from thence to the Supreme Court of the United
States. 81



296 IMPAIRMENTS OF SOVEREIGNTY

The laws applied in these extraterritorial courts are the
laws of the nations exercising the extraterritorial juris-
diction.

"So long as the laws of the two countries differ From
each other there can be but one principle to guide judicial
proceedings in mixed cases in China, namely, that the
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. If
the officer so attending be dissatisfied with the proceed-
ings, it will be in his power to protest against them in
detail. The law administered will be the law of the
officer trying the case" (Art. 3, Sec. 2, The British Treaty
of Chefoo, 1876).

With respect to procedural law, there is a general agree-
ment that it is the procedural law of the Powers having
extraterritorial jurisdiction that is applied. With ref-
erence to substantive law, however, there is a difference
of opinion. Obviously, foreigners enjoying extraterri-
toriality should be adjudged according to the substantive
law of their own countries; and yet, as they are in duty
bound to obey local laws and municipal ordinances, they
must also be adjudged and punished according to the
substantive law of China. On the one hand, it is there-
fore maintained that 02

"while it may be admitted that justice and fair deal-
ing require that foreigners offending against laws rend-
ered necessary in China, as well as elsewhere, by a right
regard to the safety and convenience of the communi-
ties in which they reside and of the government upon
whose soil they stand, should be punished for their of-
5, it appears difficult to admit the broad proposition
that they arc amenable to Chinese law in the same sense
as natives of China are, or in point of fact, in any sense
which would allow us to assent to the Chinese proposi-
tion."



CONSULAR JURISDICTION 207

On the other hand, it is contended that 63

"with reference to the Treaty Powers themselves, it may
be said that extraterritoriality entitles them to exercise
so much authority over their nationals in China as is
necessary to enforce effectively, by judicial methods, the
laws declared to be in force by the Emperor of China."

Despite this difference of opinion, the law of real
estate as applied in the extraterritorial courts is well set-
tled, "it i.> a fundamental principle of all systems of
jurisprudence that rights of realty should be determined
according to the lex situs." 04 It is consequently decided
that the law governing real estate in China should be the
local law or custom of China. In MacDonald v. Ander-
son, 05 Justice Bourne, delivering the opinion of the Court,
said :

"I hold that the law of China ought to be applied to
the facts of this case. The Court administers the law
of England (1863 Order in Council, Art. 5), but what
is the law of England in regard to immovable property
situated within the dominions of the Emperor of China?
Undoubtedly rights in respect of such property shall be
governed by the lex situs, that is, by the law of China."

In the Chino-Japanese Treaties of May 25, 1915, it
was expressly stipulated that

"mixed civil cases between Chinese and Japanese relat-
ing to land shall be tried and adjudicated by delegates of
both nations conjointly in accordance with Chinese law
and local usage" (Art. 5). 00

Turning to the Chinese side f the subject, the trib-
unals that have jurisdiction over mixed cases between a
Chinese defendant and a foreign plaintiff have been com-
monly known as "mixed courts." As in such eases the
defendants are Chinese, the courts having jurisdiction



298 IMPAIRMENTS OF SOVEREIGNTY

are Chinese courts, and the laws applied are Chinese laws,
both substantive and procedural. A foreign as-
however, as provided in the treaties, is usually permitted
to attend the trial. He is usually a properly authorized
official of the plaintiff's nationality. "He shall be granted
all proper facilities for watching the proceedings in the
interest of justice. If he so desires, he shall have the
right to present, to examine, and to cross-examine wit-
nesses. If he is dissatisfied with the proceedings, he
shall be permitted to protest against in detail." 07

Among the so-called "mixed courts," the Shanghai In-
ternational Mixed Court has developed to be a unique ex-
ception. Originally it was a mixed court established in
the International Settlement of Shanghai, for the trial
of cases where the Chinese are defendants with the at-
tendance of the foreign assessor on behalf of the for-
eign plaintiff. In such cases the approval of the assessor
is necessary to the judgment of the Court. 08 Later, how-
ever, the jurisdiction of the Court was extended to cases
where both or all of the parties are Chinese. While evi-
dently it is contrary to the treaty stipulation which pro-
vides that the foreign assessor can attend only when a
foreigner is the plaintiff, the extension of the jurisdic-
tion is nevertheless maintained on the ground that it is
necessary to have foreign oversight in the case where the
parties are residents of foreign settlements, and that it is
essential for the enforcement of municipal ordinal

Since 1911, the Shanghai International Mixed Court
has assumed a new status. Because of the Revolution
and the temporary collapse of Chinese authority, the
court was taken over by the consular body of Shanghai,
including the prisons attached thereto. 7 " Ever since the
annexation, the court has remained virtually an inter-
national court administered by the consular body of
Shanghai. Negotiations have been carried on for its
restoration, but so far no agreement has yet been
reached. 71



CONSULAR JURISDICTION 299

Before passing from the system of extraterritoriality
as it exists in China, we must observe some unwarranted
practices committed by the Treaty Towers under the aegis
of extraterritoriality and in excess of such jurisdiction,
and sometimes in apparent defiance of China's sover-
eignty. First, there are the foreign post-offices established
in the treaty ports by the Powers. Their establishment
was not sanctioned by treaty stipulations, and conse-
quently it is an infringement on the sovereignty of China.
"They are not established with the consent of China,
but in spite of her. . . . Their establishment materially
interferes with and embarrasses the development of the
Chinese postal service, and is an interference with Chinese
sovereignty." " 2 Besides, there are foreign wireless and
telegraphic installations in China which are there in con-
travention of China's sovereignty.

Second, there are police boxes, or stations, established
by Japan in Manchuria. "Since 1905 the Japanese Gov-
ernment has established and gradually extended police
agencies in Manchuria, notwithstanding the repeated pro-
test of the Chinese authorities. The number of such
agencies, as reported in 1917 by the local authorities of
Fengtien and Kirin Provinces, has reached tv.
seven." n The establishment of these police boxes, or
Stations, has no legal justification. While China has
ted to the maintenance of Foreign police in conces-
sions and settlements either by way of treaty provisions
or "land regulations," she has in no wise ever
her sanction to the stationing of a police force elsewhere
in t! c territory of China. ( Mi the other hand, Japan has



Online LibraryMingchien Joshua BauThe foreign relations of China: a history and a survey → online text (page 23 of 39)