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maintained thai the establishment of police is but a corol-
lary of extraterritorial jurisdiction.™

In reply to this, the Chinese Government conte
that the stationing of police cannot be regarded as a corol-
lary of extraterritoriality, and China has not i
the legitimacy of the measure, but, on the contrary, has

repeatedly lodged protests againsl it"



300 IMPAIRMENTS OF SOVEREIGNTY

Third, there is the maintenance of foreign troops in
China. While there are troops whose presence is -auc-
tioned by treaties, such as the legation guards at Peking
and the Allied guards on the Peking-Mukden Railway,
whose usefulness and raison d'etre, however, has ;
beyond the original purpose of their maintenance, there
are, nevertheless, foreign troops stationed in China en-
tirely unauthorized by law or treaty, and in violation of
China's sovereignty. In Manchuria. Russia and Japan
stationed railway guards on the Chinese Eastern Railway
and the South Manchuria Railway, to which the Chinese
Government has not given assent. 76 Since 1909, Japan
has stationed troops at consulates in such places as
Liutowkow in Fengtien, and Yenki in Kirin, and since
1911 Russia followed suit and put military guards at con-
sulates in such places as Kirin and Yenki. 77 Upon the
outbreak of the Chinese Revolution in 1911. Japan des-
patched troops to Hankow, 800 miles up the Yangtze
Valley and in the very heart of China, and has since
constructed permanent barracks and maintained soldiers
there, despite the repeated protests of the Chinese Gov-
ernment. Upon the pretext of an unfortunate conflict
in 1914 between the Chinese police operating against
bandits at Liaoyuan on the border of Inner Mongolia,
and a company of Japanese troops passing through the
place, Japan despatched troops there, ami notwithstand-
ing the settlement of the case to the satisfaction of
Japan, she has not yet withdrawn her military
Shortly after the outbreak of the World War. Japan
seized the Tsingtao-Tsinan Railway, and. stationing mili-
tary guards along it, compelled the Chinese troops to
withdraw from its vicinity, in spite of the- repeated pro-
of the Chinese Government and in gross violation
of China's sovereignly. At Kashgar in Sinkiang, Russia
iince 1900, maintained ISO soldiers to protect the
Russian postal agency, and Great Britain has, since 1918,
maintained thirty Indian soldiers in the same city. 7 '



CONSULAR JURISDICTION 301

Passing from this brief survey of the practice of extra-
territoriality in China with the unwarranted practices
under its aegis, we will now consider the recent changes
and developments connected with extraterritorial juris-
diction in China. On account of the declaration of war
against Germany and Austria-Hungary in 1917, the
treaties existing between the Central Powers and China
have been abrogated, and with the abrogation the extra-
territorial rights once enjoyed by the Germans and the
Austrians have been duly extinguished. In the case of
Russia, because of the Soviet revolution and the subse-
quent collapse of the old regime, China has terminated
all relations with that regime, by a presidential mandate
of September 23, 1920, 70 withdrawing recognition from
the officials of the old regime and temporarily taking
over the interests of Russia pending the eventual estab-
lishment of a stable government there. During this in-
terim, China is to act as trustee of all Russian interests
in China, and the the extraterritorial rights hitherto en-
joyed by the Russians remain as before. Special courts
are instituted in China for the trial of cases involving
Russians, and Russian counselors are to be employed
to advise on the administration of justice in accordance
with Russian laws.

Having completed our discussion of the history and
practice of extraterritoriality and consular jurisdiction in
China, we will now deal with the defects and disadvan-
tages of the system with a view to its eventual aboli-
tion. Let it suffice to mention the main one- only. The

firsl defect is the conflict of consular duties. Vs consul,
he must protect and promote the interests of lu- na-
tionals. As judge in extraterritorial cases, however, lie
is obliged to observe impartiality and administer jus-

\"t infrequently, either because of bias or .i pre-
ponderance of duties as protector of his nationals' in-
terests, he fails to do justice. "Such a practice is obvi-



302 IMPAIRMENTS OF SOVEREIGNTY

Olisly contrary to the modern principle of the separation
of administrative and judicial functions."" Further,
consuls arc frequently not well versed in law, and be-
cause of this limitation in training are often unable to
administer justice adequately.

The second defect is the diversity of laws applied. The
Chinese apply Chinese law; the British, British law;
the French, French law ; the American, American law.
As a consequence, while the facts may be the same, the
law applied is different and hence the decision varies,
giving rise to the evils of judicial uncertainty and dis-
parity of judgment and punishment. 81

The third defect is the lack of control over the plaintiff
and the witness. The jurisdiction being personal, the
Court has control only over the defendant and the wit-
ness of the defendant's nationality. If, however, the
plaintiff commits perjury or contempt of court, he cannot
be proceeded against. Similarly, if the witness of a na-
tionality different from that of the defendant should
refuse to appear, or, after appearance, should refuse to
testify or commit perjury or contempt of court, the judge
would be powerless in these matters. On the other hand,
should the defendant have a counter-claim or set-off
against the plaintiff, no matter how valid it might be,
the Court would have no jurisdiction over such cases,
it not being permitted to entertain any suit brought against
the plaintiff who is not of his nationality. In such cases,
the defendant will have to resort to the plaintiff's court
for the adjudication of the counter-claim or set-off.

The fourth defect is the difficulty in obtaining evidence
for cases where the foreigner commits a crime in the inte-
rior of China. In accordance with the treaty provision,



"if he be without a passport, or if he commit any offense
against the law, he shall be handed over to the nearest
consul for punishment, but he must not be subjected to
any ill-usage in excess of necessary restraint." 62



CONSULAR JURISDICTION 303

"This rendered into plain language means that a for-
eigner who commit- a rape or murder a thousand miles
from the seaboard is to be gently restrained, and remitted
to a consul for trial, necessarily at a remote point, where
testimony could hardly be obtained or ruled on." 88 In
consequence of this arrangement a foreigner committing
a crime in the interior is to -be brought to the nearest
consul who may be many miles away and the difficulty
connected with obtaining evidence from thousands of
miles away is often tremendous.

The fifth disadvantage is that, under the present sys-
tem of extra-territoriality, so long as it lasts, it is prac-
tically impossible for the Chinese Government to open
up the whole country for foreign trade and residence.
For as long as foreigners carry extra-territorial immu-
nity wherever they go or reside, the Chinese Government
will be hampered in administration and protection. Thus,
foreign trade will be limited to the treaty ports and the
ports voluntarily opened by China, and cannot therefore
grow as rapidly and extensively as otherwise. Put in
another way, extra-territoriality is a real hindrance to
the extension of foreign trade in China.

In view of these serious defects and disadvantages,
the abolition of extra-territorial jurisdiction has become
a growing aspiration of the Chinese Government. Sev-
eral Powers, on their part, have already consented to its
relinquishment pending the judicial reform to be under-
taken by China. Article 12 of the Mackay Treaty of
1902 stipulated:

"China having expressed a strong desire to reform
her judicial system and bring it into accord with that of
W rtern natioi Britain agrees to give every assist-

ance to such reforms, and she will also be prepared to
relinquish her extra-territorial rights when she is satis-
lied that the state of < hine • laws, the arrangements for
their administration, and other considerations warrant her
in so doing." B8



304 IMPAIRMENTS OF SOVEREIGNTY

Similar pledges are also found in Article 15 of the Sino-
American Commercial Treaty of 1903, 00 and in Article 11
of the Sino-Japanese Commercial Treaty of the same
year. 01

The Chinese Government on its part has taken defi-
nite steps toward its eventual abolition. On the one hand,
it has refused to grant the privilege to the states recently
sicking treaty relations. It has been reported that Greece,
Poland, Jugo-Slavia and Czecho-Slovakia were given to
understand that China, in view of judicial reforms re-
cently undertaken or yet in process of adoption, would
not henceforth concede any extra-territorial rights. 02
On the other hand, China has manifested her desire for
the abolition of extra-territoriality. At the Paris Peace
Conference, the Chinese delegation submitted the request
for the relinquishment of extra-territoriality and con-
sular jurisdiction. The request was made that upon the
fulfillment of the following two conditions which the
Chinese Government pledged to fulfill by the end of 1924,
the treaty powers would surrender their extra-territorial
rights :

"1. The proclamation of a Crin.inal, a Civil, and a
Commercial Code, a Code of Civil Procedure, and
a Code of Criminal Procedure.

"2. The establishment of new courts in all the districts
which once formed the chief districts of the old
prefectural divisions, that is to say, in fact, in all
the localities where foreigners reside." 03

Prior, however, to the abolition of extra-territorial
jurisdiction, and to remedy some of the existing evils of
the system, the Chinese delegation requested the imme-
diate assent of the Powers to the two measures :

"1. That every mixed case, civil or criminal, where the
defendant or accused is a Chinese, be tried and
adjudicated by Chinese courts without the presence



CONSULAR JURISDICTION 305

or interference of any consular officer or repre-
sentative in the procedure or judgment.
"2. That the warrant issued or judgments delivered
by Chinese courts may be executed within the con-
cessions or within the precincts of any building
belonging to a foreigner, without preliminary ex-
amination by any consular or foreign judicial
officer." 04

It is thus clear that the Chinese Government is deter-
mined to abolish extra-territoriality and consular juris-
diction in China, and that it is making every effort toward
that end. It is also to be observed that the success of
this measure will benefit not only China by restoring to
her extra-territorial jurisdiction, but also the Powers by
the opening of the whole of China to foreign trade and
residence.



NOTES TO CHAPTER XVIII

1. Fiore's International Law Codified, translated by E. M.
Borchard, p. 208.

2. J. B. Moore, Internatl. Law Digest, Vol. 2, p. 593.

3. Oppenheim, Internatl. Law, 3rd ed., Vol. 1, p. 606.

4. Hertslet's China Treaties, Vol. 1, No. 76, p. 438.

5. Hertslet, ibid., No. 77, p. 445.

6. Hertslet, ibid., VoL 1, No. 7K, p. 447.

7. Hertslet, ibid., Vol 1, No. 79. p. 451.

8. II. rtslet, ibid., Vol. 1. No. 81, p. 459.

9. State Papers. Vol. 62, pp. 322-323.

10. Hertslet. op. cit.. Vol. 1, X-.. -', p. 365.

11. Hertslet, ibid., Vol. l. No. 64, p. 379; State Papers, Vol.
88, pp. 47X-47 1 '. Arts. 20, 21 and 22.

12. Hertslet, ibid., Vol. 1. No. 37, p. 244; State Papers, Vol.
92. p. I'M') el seq.

13. I. I'.. Moore, Internatl. law hi:'. Vol. 2. p. (.44.

14. State Papers, Vol. 20, p. ^^ ["he Status of .Minis
in ( liina, p. '>5 r\ seq.

15. Journal of House of Commons, Vol. 93, p. 476; Koo, op.

cit.. p. 1 12 it si .|

16. [bid., p. 112.

17. St.t, Pa] Vol. 30, p. 398 et seq.; The Shantung I
tion, presented by the (him i Peace Delegation t.> tin- Paris

Conference, 1919, published by tin.- Chinese Natl. Welfare



306 IMPAIRMENTS OF SOVEREIGNTY

Soc, p. 92; Questions for Readjustment, submitted by Cbina to
I Conference, App. 1, p. 35.

18. State Papers, Vol . ;,) .

19. Hertslet, op. cit, Vol. 1, No. 6, p 18 et seq.; State Papers,

r Readjustment, submitted by
Cbina to die Peace Conference, App. 1, p. 35. Also see Art 17.

20. Stan p. 791 et seq., Arts. 21 and 25;
Questions for Readjustment, p. 36, App. 2.

21. Hertslet, op. cit., \ .39, p. 258 et seq.; Questions
for Readjustment, p. 37. App. 3.

22. Hcrtslet, Vol. 1, No. 93, p. 527

23. Hertslet, Vol. 1, No. 81, p. 455 et seq.

24. Hertslet, Vol. 1, No. 56, p. 331 et seq.

25. Hertslet, Vol. 1, No. 38, p. 249 et seq.

26. Hertslet, Vol. 1, No. 70, p. 407 et seq.
17. Hertslet, Vol. 1, No. 91, p. 512 et seq.

28. Hertslet, Vol. 1, No. 34, p. 223 et seq.

29. Hertslet, Vol. 1, No. 60, p. 354 et seq.

30. Hertslet, Vol. 1, No. 33, p. 215 et seq.

31. Hertslet, Vol. 1, No. 71. p. 415 et seq.

32. Hertslet, Vol. 1, No. 35, p. 234 et seq.

33. Hertslet, VoL 1. X". 73, \>. 423 et seq.

34. Hertslet, Vol. 1, No. 64, p. 373 et seq.

35. Hertslet, Vol. 1, No. 36, p. 240 et seq.: Article One pro-
vides that '"all privileges of person, property, and jurisdiction
enjoyed by foreign nations under the Treaties concluded by
Cbina shall from henceforth be granted to the Congo Free
State." If the word "jurisdiction as used herein means to
include extraterritorial jurisdiction, then the privilege is herewith
granted ; otherwise it is not granted.

36. Hertslet, VoL 1. No. 69, p. 399.

37. MacMurray, Treaties and Agreements With or Concern-
ing China, 1908/11; State Papers. Vol. 101, p. 945 et seq.

38. MacMurray, 1915/2.

39. MacMurray, 1918/8.

40. It is reported that Bolivia has recently entered into treaty
relations with China. It is that Greece, Jugo-
slavia, Czecho-SIovakia and Poland have made approach to the
Chinese Government but have been given the understanding that
China will not henceforth grant any extra-territorial jurisdiction.
Sec II. K. Tong's articles, Extra-Territoriality and the New
Nations, Millard's Review, Oct 25, 1919, p. 314 et se. For a summary territorial
jurisdiction, see W. W. Willoughby, Foreign Rights and Inter-
in ( hina, p. 23 et sen.

42. Koo, op. cit., p. 195.

43. Hcrtslet, Vol. 1, No. 6, p. 25, British Treaty of 1858, Art.
21.

44. China, 1914, No. 1, p. 46.



CONSULAR JURISDICTION 307

45. Oppcnhcim, Intcrnatl. Law, Vol. 1, 3rd Ed., p. 570.

46. MacMurray, 1909/10.

47. Tyau, Trcatv Obligations between China and Other States,
p. 43.

48. The Case of Edward Page, U. S. For. Rel., 1881, p. 257;
Koo, op. cit., pp. 194-195.

49. Tvan, op. cit., p. 4.i.

50. The Case of Genl. Bur Up. Cor., 1865, Vol. 2, p.
462; Tyau, op. cit, pp. 43-44; U. S. Citizens in Proposed Attack
on I • Rel, 1874, p. 332,

51. The Case of Chang Chung-Hsuan and Yu Kai-Ping, U. S.
For. Rel., 19(H), pp. 394-4

52. Hertslet, Vol. 1, No. 6, pp. 32-33, Art. 47, 48, 49, British
Treaty of 1858.

53. "U. S. For. Rel., 1909, pp. 68-70; 1910, p. 839.

54. The Case of the New Grenada Citizen, U. S. For. Rel.,

1873, Vol. 1, p. 139; the Case of Japanese Subjects during Chino-
Japanese War, J. B. Morse, Intcrnatl. Law Dig., Vol. 4, pp.
601-603.

55. The Case of Japanese Hunting Regulations, U. S. For.
Rel., 1874, p. 653; the Chinese Circular of 1878, the Tsungli
Yamen to the Chinese Ministers Abroad, U. S. For. Rel., 1880-81,
p. 178.

56. Sir John F. Davis to British Consuls in China, Xov. 22,
1844, Parliamentary Papers, 1847. XXXX, China, No. 795, p. 38;
Koo, op. cit., p. 203 ; Case of Walter Jackson, U. S. For. Rel.,

1874, pp. 338, 347.

57. A. M. Latter, The Government of the Foreigners in
China, 19 Law Quarterly Review, 1903, pp. 316-325; Koo, op.
cit., p. 211.

58. State Papers, Vol. 97, p. 150 et seq.

59. 34 .statu;, s a- Large, p. 814.

60. Cf. W. W. Willoughby, op. cit., p. 35 et seq.

61. W. W. Willoughby, ibid., p. 33 et seq.

62. Seward, American Minister at Peking, to State Depart-
ment, U. S. Foreign Relations, 1880, p. 14').

63. Koo, op. cit., p. 217.

64. W. \V. Willoughby, op. at, p. 4c

65. I . American Consular Jurisdiction in the Orient,
pp. 250-J53 ; W. W. Willoughby. p. cit.. p. 46 et seq.

66. The Sino-Japanesi tions. 1915, p. 56.

67. Art. 4, Sino-Ameri ity, Nov. 17, 1880, Hcrt, No.
98, p.

68. Morse, Trade and Administration of China, p. 200.
Morse, ibid., p. 200 1 1

70. Tin Pro< lamation of I r Body, Nov. 10, 1911,
W. \V. Willoughby, op. < it., pp. mi 61.

71. II. I.. Toi article on the Shanghai Mixed Court and the
Settlement ! m, Millard's Ri .. 15, 1919, p. 445.

11. Minister Conger t Secretary Hay, U. S. For, ReL, 1902,
P J_'5 ; Tyau, op. cit., p. 53.



308 IMPAIRMENTS OF SOVEREIGNTY

73. The Shantung Question, presented hy China to the Paris
Peace Conference, published hy the Chinese Xat. Welfare So-
ciety, 1920, p. 74.

74. Aide M£moire, Japanese Minister to the Chinese Minister
of Foreign Affairs, Oct. 18, 1916, MacMurray, 1917/2; W. W.
Willoughby, op. cit., pp. 83-85.

75. MacMurray, 1917/2; \V. \V. Willoughby, op. cit, p. 86;
The Shantung Question, op. cit, p. 75.

76. For a full statement of the case, see Questions for Read-
justment, Submitted by China to the Peace Conference, p. 4 et
seq.

77. Questions for Readjustment, ibid., p. 6.

78. For a full account of the foreign troops in China, see
Questions for Readjustment, ibid., pp. 4-7.

79. Millard's Review, Oct. 9, 1920, pp. 281-282.

80. Questions for Readjustment, op. cit, p. 16.

81. De Menil Case, U. S. For. Rel., 1909, pp. 55-64; Tyau, op.
cit., p. 55.

82. Hertslct, Vol. 1, No. 6, p. 22, Article 9, British Treaty of
1858.

88. Minister Read to Secretary Cass, 1859, Sen. Doc. No. 30,
Vol. 10, 36th Congress, First Session, pp. 382, 384.

89. Hertslet, Vol. 1, No. 28, p. 182.

90. Hertslet, Vol. 1, No. 100, p. 575.

91. Hertslet. Vol. 1, No. 66, pp. 386-387.

( 'J. H. K. Tong's articles, Extra-territoriality and New Na-
tions, Millard's Review, Oct. 25, 1919, p. 314 et seq.; Has Extra-
territoriality Outlived Its Usefulness, Millard's Review, Dec. 13,
1919, p. 56 et seq.

93. Questions for Readjustment, op. cit., p. 17.

94. Ibid., p. 17.



XIX
CONCESSIONS AND SETTLEMENTS

Passing from extra-territoriality and consular juris-
diction, we now come to another form of impairment of
China's sovereignty, the foreign concessions and settle-
ments. As these terms are often used interchangeably,
it is not safe to attempt to distinguish them, and so
suffice it to state that by concessions and settlements are
meant the areas reserved for foreign residence where
foreign communities, either through their consuls or
their municipal councils, constitute self-governing bodies
politic.

The origin of concessions and settlements dates back
to the opening to foreign trade and residence of the five
parts at Canton, Anioy, Foochow, Ningpo, and Shanghai
in 1842 and to the setting aside of certain reserved areas
for foreign residence and trade as provided in the Sup-
plementary Treaty of 1843 (Art. 7). 1

"The Treaty of Perpetual Peace and Friendship pro-
vrides for British subjects and their families residing at
the cities and towns of Canton, Foochow, A.moy, Ningpo,
and Shanghai, without molestation or restraint. It is
accordingly determined that ground and houses, the rent
or price of which is to be fairly and equitably arranged
for, according to rates prevailing amongsl the people
withoul exaction on either side, shall be set apart by
the local officers in communication with the consul. . . ."

The origin of local self governmenl dates back to the
land regulations made by the treaty powers with a con-
currence of the Chinese authorities. For instance, the
land regulations of 1845 governing the Shanghai settle

309



310 IMPAIRMENTS OF SOVEREIGNTY

ment was made with the approval of the Chinese author-
ity, and gave foreign renters the power and duty "to
build and repair the stone and wooden bridges, keep in
order and cleanse the streets and road-, put up and light
s t r e e t lamps, establish tire engines, plant trees to protect
the roads, open ditches to drain olT the water, and hire
watchman" (Art. 12).-' In the Land Regulations of 1866-
1869 governing the Foreign Settlements of Shanghai,
north of Yangkingpang, the preamble read in part:

"Whereas certain regulations . . . were settled and
agreed upon by the Representatives of England, France,
and the United States of America, ... in communica-
tion with his Excellency Woo, the chief local authority
representing the Chinese Government at Shanghai ; " - A

And as concessions and settlements became recognized
and established self-governing communities, treaty stipu-
lations were provided. For instance. Article 1 of the
protocol between China and Japan respecting Japanese
settlements and other matters 3 reads :

"It is agreed that settlements to be possessed exclu-
sively by Japan shall be established at the towns and
ports newly opened to trade. The management of roads
and local police authority shall be vested solely in the
Japanese consuls."

There are four kinds of concessions and settlements in
China. The first is the concession. It is a reserved area
granted in perpetual lease by the Chinese Government to
the treaty power interested for the residence and trade
of its nationals and with the delegated power to admin-
ister the municipal government thereof, such as the con-
cessions in Hankow and Tientsin. The second kind is
the settlement. It is the reserved area set aside by the
Chinese Government for the residence and trade of
foreigners where they are permitted to organize them-
selves into a municipality for self-government, but it is



CONCESSIONS AND SETTLEMENTS 311

not a lease in perpetuity to the foreign Power concerned,
such as the International Settlement of Shanghai. The
third kind is the settlement in the ports voluntarily
opened by China. It is an area set apart for interna-
tional settlement where the municipal administration is
still in the hands of the Chinese authorities. The fourth
kind is the settlement by sufference. It is "one within
which the residents have acquired without any formal
agreement on the part of the territorial sovereign, the
tacit right to govern themselves as a municipality," 4 such
as the settlement in Chefoo. 6

The local government in the concessions and settle-
ment varies from the rule by the consul of the treaty
power concerned as sole administrator to the government
by a municipal council elected by the rate payers residing
therein. In the Japanese, Belgian, and Italian concessions
of Tientsin, the consul is the sole administrator. ' 7 " 8 In
the French concession of Tientsin, the municipal control
lies in a council composed of the consul as ex-officio
president, and six land owners paying the highest taxes
and three tenants paying the highest rents. In the
British concession of Tientsin, the power is vested in the
consul as de jure' and ex-ofhcio ruler, and in the munici-
pal council elected by a vote of land renters. The British
consul has the power of approval over all actions of the
municipal council, presides over annual and special meet-
ings, and lias jurisdiction in all questions of landed prop-
erty and in which "a non-British European is not
defendant." 10

In the International Settlement of Shanghai, the- local
government is based on the land regulations of L866 1869

as last amended and passed by the I oreign Ministers in

Peking, which with certain modifications constitute the

ruling charter of the Shanghai International settlement. 11

The government is vested in the municipal council con-
sisting of not mure than nine and no less than five coun-



312 IMPAIRMENTS OF SOVEREIGNTY

cilors elected annually by a popular vote of the foreign
land renters and rate payers. The electorate consists of
every foreigner "having paid all taxes due, and being an
owner of land of not less than 500 taels in value, whose
annual payment of assessment on land, or houses, or
both, exclusive of all payments in respect of licenses,
shall amount to the sum of ten taels and upwards, or
who shall be a householder paying on an assessed rental
of not less than 500 taels per annum and upwards . . ."



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