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years. In 191 1 it was further agreed that from the ist day
of January 191 1, 'China shall diminish annually for seven
years the production of opium in China in the same pro-
portion as the annual export from India is diminished ',
and that ' Indian opium shall not be conveyed into any
province in China which can establish by clear evidence
that it has effectively suppressed the cultivation and import
of native opium ', The stipulations of these conventions
have now been fully carried into effect and the opium
traffic as well as opium-smoking has practically come to
an end.

After the recognition of the Repubhc by the foreign
Powers in 191 3, China proceeded to settle the Mongolian
question with Russia. Before 191 1, Russia had obtained
the right of free movement and settlement in Outer



1/6 A Historical Sketch of

Mongolia, but on November 3, 191 2, she signed an agreement
with Mongolia, to the effect that Russia would assist her
to maintain the autonomous regime which she had estab-
lished, as also the right to maintain her national army, and
to admit neither the presence of Chinese troops on her
territory, nor the colonization of her land by the Chinese.
In return, Russian subjects were to enjoy the right to free
residence and movement, to exemption from import and
export dues, and to many commercial, industrial, and
agricultural preferences and advantages. At the instigation
of the Russian Envoy, Mongolia declared her independence
of the Republican Government. Negotiations were opened
between Peking and St. Petersburg, and it was mutuallv
agreed that Russia should recognize the suzerainty of China
over Outer Mongolia and that China should recognize its
internal autonomy. A Conference held in Kiachta in 1915,
in which Mongolia, China, and Russia took part, resulted
in the conclusion of a treaty confirming the Russo-Chinese
agreement and recognizing ' the exclusive right of the
Autonomous Outer Mongolia to attend to all the affairs
of its internal administration, and to conclude with foreign
Powers international treaties and agreements respecting all
qtiestions of a commercial and industrial nature concerning
Autonomous Mongolia ', but denying her the right to
conclude international treaties with foreign Powers respect-
ing political and territorial questions.

The problems that have arisen since the present war will
not be anticipated here, as they will be dealt with in another
chapter. To complete my historical survey of China's
foreign relations, it should be mentioned that apart from
the six Great Powers, Great Britain, France, Russia,
Germany, Japan, and the United States, the principal



China's Foreign Relations 177

events of whose relations with China have been discussed,
all the European Powers have treaty relations with China,
except Turkey and the Balkan States. In Central America,
Mexico is the only treaty State, while in South America,
Brazil, Chili, and Peru have treaty relations with the
Chinese. Curiously, she has not yet opened any diplomatic
relations or had any treaty with Siam or Persia. The
increase of travel and the extension of trade will no doubt
compel China to establish diplomatic and consular agencies
in all civilized states, and it is hoped that the future, unlike
the past, will be glorified by peaceful development and
intellectual co-operation between China and other States
rather than by struggles for territorial and economic
concessions.



18112.13



Exteyritoriality ; Concessions and Settlements

In the treaties between China and Russia signed in
1689, 1727, and 1768, it was agreed that subjects of
either State who should break the frontier bounds or be
guilty of brigandage should be handed over to their
respective officials for punishment. In this stipulation the
principle of exterritoriality is involved, but the right of
exterritoriality was then enjoyed by both parties — 'by Russia
in China, as well as by China in Russia. Moreover, the
treaties were only intended to affect the subjects of the
two Empires on the frontier and not those in the interior.

In the few d-ecades before the Opium War, foreign mer-
chants and missionaries in China were nominally under her
law, but the Chinese authorities, who were contemptuous
of aliens, thought it derogatory from their dignity, if they
were to interfere with disputes between ' outside bar-
barians ', They had no notion that the sovereign rights
of a State included the right of jurisdiction over foreigners
within its dominion ; and they deliberately refused to grant
them any judicial redress. In consequence, the right of
exterritoriality was exercised by foreign Powers on suffer-
ance. On a few occasions, when aliens committed offences
against the safety of the State or the fundamental law of
China, they were punished by Chinese Courts. The
summary jurisdiction, the corporal punishment, and the
filthy prison, which had been characteristic of the Chinese



Exterritoriality ; Concessions and Settlements i yq

judicial administration, were repugnant to Europeans and,
when applied to them, provoked complaints from their
Governments. Moreover, in the absence of a civil, com-
mercial, or industrial code and with the criminal code
harsh and imperfect, it was difficult to expect foreigners to
believe in the infallibility of Chinese judges and submit
themselves to the Chinese Law.

In the General Regulations for the British Trade in the
five ports opened after the Opium War, it was stated that
. provisions would be made for the punishment of English
and Chinese criminals according to the laws of their
respective countries and by their respective officials, but
in the treaty with France of 1844, we find the following
clauses which expressly grant her exterritorial jurisdiction:

' Les Frangaisqui se trouvent dans les cinqports dependront
egalement, pour toutes les difficultes ou les contestations
qui pourraient s'elever entre eux, de la juridiction frangaise.
En cas de differends survenus entre Frangais et etrangers il
est bien stipule que I'autorite chinoise n'aura a s'en meler
d'aucune maniere.'

These articles, with some verbal modifications of no
significance, have been reproduced in the treaties with all
other States, and have now become a general rule governing
litigation between foreigners.

To fulfil its legal obligations, a treaty State establishes
a consular Court in every one of its Consular districts in
China. It is presided over either by the Consul himself
or by some other person or persons duly authorized to
exercise judicial functions. Its jurisdiction extends, first, to
cases in which both parties are compatriots of the Consul,
and, secondly, to cases in which one party is his country-
man, and the other a citizen of another treaty State, provided

N 2



1 80 Exterritoriality ; Concessions; and Settlements

the treaty arrangement? between these two States permit
the case to come under the jurisdiction of this court. In
neither of these two kinds of law-suits have Chinese authori-
ties any power to intervene.

Great Britain, in addition to her Consular Courts in the
various treaty ports, has established a Supreme Court in
Shanghai which is not only a Consular Court for the district
(of Shanghai), ' possessing in all matters, civil or criminal,
an original jurisdiction, concurrent with the jurisdiction
of the several Consular Courts (provincial Courts in the
terminology of the Order in Council of October 24, 1904) ',
but may also ' of its own motion, or upon the report of
a Consular Court, or on the application of any party con-
cerned, require any case, civil or criminal, pending in any
Provincial Court, to be transferred to, or tried in, the
Supreme Court, or may direct in what court and in what
mode, any such Case shall be tried '. The United States
Supreme Court in Shanghai has almost the same power.

The appeal cases from the British Supreme Court are
tried in the Privy Council in London, and those from the
United States Supreme Court in the Federal Court of
California. Other States have no Courts in China except
the Consular, and appeal cases or cases outside their juris-
diction must go directly to the Higher Courts iij- these
respective States — to Saigon in the case of France, and to
Leipzig in the case of Germany.

In mixed civil cases, in which one party is Chinese, the
following rule prevails :

' A British (or any other) subject, having reason to com-
plain of a Chinese, must proceed to the Consulate and state
his grievance. The Consul will inquire into the merits of
the case and do his utmost to arrange it amicably. In like



Exterritoyiidity ; Cuncessiuns cuui Settlements ih'i

manner, if a Chinese lias reason to complain of a British
subject, the Consul shall no less listen to his complaint
and endeavour to settle it in a friendly manner. If disputes
take place of such a nature that the Consul cannot arrange
them amicably, then he shall request the assistance of the
Chinese authorities, that they may together examine into
the merits of the case, and decide it equitably.'

A mixed criminal case is governed by the two
following articles in the Treaty with the United States of
1844:

(i) ' Subjects 6i China (in China), guilty of any criminal
act towards citizens of the United States, shall be punished
by the Chinese authorities according to the laws of China ;

(2) ' and citizens of the United States (in China), either
on shore or in any merchant vessel, who may insult, trouble,
or wound the persons, or injure the property, of Chinese,
or commit any improper act in China, shall be punished by
the Consul or other public functionary thereto authorised,
according to the laws of the United States.'

In practice, in criminal as well as in civil cases, an alien
plaintiff who has a case against the Chinese never goes to
a Chinese Court in the first instance. The usual procedure
followed by him is to go to his Consulate and state his case
to the Consul, who will then approach the local Chinese
authority for a judicial investigation. An officer of the
plaintiff's nationality may attend all cases to watch the
proceedings in the interests of justice, and ' if he be dis-
satisfied with the proceedings, it will be in his power to
protest against them in detail '.

In Shanghai, where a large number of Chinese inhabit
the International and the French Settlements, and where
law-suits are numerous owing to its commercial importance,
a novel experiment has been tried by establishing two mixed



1 82 Exterritoriality ; Concessions and Settlements

Courts, one in each settlement, to try civil and criminal
cases in which the defendant is Chinese. They are each
presided over by a judge appointed by the Chinese Govern-
ment, who has the poAver to decide all cases under his juris-
diction. He is authorized to ' examine Chinese subjects
judicially, to detain them in custody, and to punish them
by putting them in the cage, by flogging, and by other
minor punishments ', but at the trial of a case, he sits with
the Consul (or his deputy) of the foreigner involved in it,
and the case shall be decided ' equitably and impartially
and in accordance with treaties '. If the foreigner has no
Consul in Shanghai, or if his country has no treaty relations
with China, the case will be tried by the Chinese judge
sitting with a foreign assessor, and the decisions taken will
be submitted to the higher local Chinese authority (Taotai)
for further consideration. Over foreigners charged with some
criminal offence but not represented by a Consul, the
mixed Courts exercise original jurisdiction, and the findings
should be ' submitted for the Taotai's approval, who will
consult with some Treaty Power Consul on the subject '.
/Applications for appeal against the decisions of the mixed
Courts shall also be submitted to the Taotai or the Consul
interested in the case.

In law-suits between the Chinese themselves resident
within the settlements, the mixed courts exercise full
jurisdiction. But ' in cases where Chinese subjects are
charged with grave offences punishable by death and the
various degrees of banishment, it will be still for the District
Magistrate of Shanghai to take action '. In neither of
these two kinds of cases have foreign Consuls any power to
intervene. Moreover, * a Chinese criminal escaping to the
foreign settlements can be summarily arrested by the



Exterritoriality ; Concessions and Settlements 183

Chinese Judge of the Mixed Court without warrant from
the District Magistrate or aid from the municipal pohce '.^

So far I have examined the system of exterritoriahty, as
it prevails in China. Let us now discuss its limits and
drawbacks. First, it should be pointed out that although
the rules of International Law which, as already noted,
were unknown to the Chinese officials of a century ago,
require the Sovereign of a fully independent State to exer-
cise jurisdiction over all persons (and their property) within
his dominion, irrespective of their nationality, the grant of
exterritoriality does not involve any concession of sove-
reignty. By this grant, he delegates his supreme rights
over persons not owing permanent allegiance to him to
another State, and the delegation is limited by the extent
to which it is effected. In fact it can hardly be said that
the right of jurisdiction in another State is inherent in the
Sovereign who exercises it. It is exercised by him on behalf
of the territorial sovereign, and is a compromise between
States of different civilization that observe laws and customs
differing in fundamental principles.

That the delegation is limited may be illustrated by a few
articles in the Chinese Customs Regulations. There it is

^ A mixed Court on the pattern of those in Shanghai has been
established at Kulangsham (Amoy), and in 191 1 Russia demanded from
China an establishment of mixed courts for cases between Chinese and
Russians, but the demand, so far, has not been granted. Throughout
the rest of China, the general rule prevails that mixed cases are tried by
the court of the defendants ; and that subjects of non-treaty States
are subject to the full jurisdiction of the Chinese Government. The only
exception to this rule is that of the Koreans who (Japanese subjects),
* residing on agricultural lands within the mixed residence district on the
Chinese side of the Sino-Korcaii boundary ', arc under the jurisdiction
of China because of her historical connexions with the Koreans.



ic>4 Exterritoriality ; Concessions and Settlements

provided that a fine shall be imposed by the Chinese Govern-
ment on the master, supercargo, or consignee of foreign
nationality, ' if he proceeds to discharge the cargo without
a permit from the Chinese customs ' and that ' the goods
so discharged shall be subject to confiscation by the Chinese
Government ' without waiting for the sanction of any
foreign Consul. Foreign vessels entering a port not opened
to trade, or engaged in smuggling or in clandestine coastal
trade, are also subject to confiscation by the Chinese
Government. For the protection of the revenue, and for
the maintenance of peace and order, China has an indis-
putable right to enact laws for all persons within her
dominion, provided the enactment does not contravene
any treaty stipulation. In the opinion of Hall, ' if there is
any doubt as to whether certain powers have or have not
been conferred by the territorial sovereign, the doubt
must be solved in his favour '.^

Exterritoriality is, however, inconvenient to the Treaty
States because it imposes too heavy a burden on their
diplomatic and consular agents. In Peking, the foreign
Ministers have not only to perform duties as representatives
accredited by their Governments to China, but also to
promulgate and enforce laws to govern their nationals in
the country. They examine, judge, and decide cases for
which Consuls or Consular Courts have failed to find
a satisfactory solution, and they are often called upon to
issue instructions or to communicate with the Chinese
Government on questions which would probably never
occur in any other country.''^ Throughout China, the

^ Hall, Foreign Jurisdiction.

^ Such as conflict of jurisdiction between the Consular Courts of
various Powers.



Exteryitoriality ; Concessiuns and Settlements 1 85

foreign Consuls are at once prosecutors and judges as
well as commercial agents of their respective Governments ;
and it is not always possible to expect a person to be equally
qualified in judicial training and in commercial knowledge.
Although the establishment of Supreme Courts in Shanghai
by Great Britain and the United States releases their Consuls
in that locality from some of their judicial duties, it
does not relieve them from the duty of attending the Mixed
Courts; and in theother 74 ports Consuls are the only judicial
officials competent to exercise jurisdiction over foreigners.

Personal considerations apart, the existence of extefri-
toriality is an impediment to foreign trade. China is
reluctant to delegate her sovereign rights and only grants
them under duress. In consequence, she stipulates that
persons not under her jurisdiction should confine themselves
to open ports and not be permitted to reside or trade in
the interior.^ Moreover, as she feels that the increase in
the number of Consular Courts consequent on the increase
of the number of treaty ports would make further encroach-
ments on her sovereign rights, she is determined to oppose
the opening of more ports. These conditions explain the
slow progress of her foreign trade, as it is difficult to extend
it when foreign merchants are not allowed to approach
customers except through agents in treaty ports.

On practical and judicial grounds, exterritoriality is
equally open to objection. The jurisdiction is personal, and
not territorial ; a personal jurisdiction is by its nature
limited. Moreover, Consular Courts have no jurisdiction

^ Foreign merchants are only allowed to travel to the interior under
passports issued by their Consuls and vises by Chinese authorities, but
they must not stay there. Missionaries are, however, treated differently,
and they may erect churches in the interior for their worship.



1 86 Exterritoriality ; Concessions and Settlements

over cases involving a fine of more than a certain sum or
imprisonment of more than, say, six months. For these
cases, a plaintiff, if he is a foreigner, except a British or
an American subject who would go to their Supreme
Courts in Shanghai, would have to enter his suit in a court
in his own country, or in that of the defendant, both of
which may be thousands of miles away. This would cause
delay in judicial redress and interruption to his occupation.
In case the plaintiff is a Chinese, the defendant may be
brought home for trial, but the other party will often be
prevented from attending the case by his financial inability
to travel to a distant country. To a large extent, he has
to rely on mere chance to get his grievance adjusted.
Justice will probably not be denied to the Chinese, but it
is natural that, being ignorant of the final result of his
case, he should cherish the belief that foreign criminals, if
they have once left the shore of China, escape all punish-
ments. Such a state of affairs is not satisfactory. It is
a consolation, however, that so far very few cases have ever
happened in China which require this irksome procedure ;
and that the establishment by Great Britain and the United
States of Supreme Courts in Shanghai has gone a long way
to solve the difficulty, as law-suits concerning Britons and
Americans are more numerous than those concerning
subjects of other States.

As a compromise, exterritoriality is not intended to last
long. Before 1898 Japan was subject to the same dis-
abilities as China, but since then she has denounced
exterritorial jurisdiction. To-day an alien in Japan is
under the law of the territorial sovereign just as if he were
in France or the United States. With its entry into the
present war, the Ottoman Empire also denounced exterri-



Exterritoriality ; Concessions and Settlements i ^y

torial jurisdiction within its dominions. China is now the
only country where this jurisdiction still lingers on, but
in her treaties with Great Britain of 1902 it is already
provided that, ' China having expressed a strong desire to
reform her judicial system and to bring it into accord with
that of Western nations. Great Britain agrees to give every
assistance to such reform, and will also be prepared to
relinquish her extra-territorial rights when she is satisfied
that the state of the Chinese laws, the arrangement for
their administration, and other considerations warrant her
in so doing '. Similar provisions are inserted in her treaties
with Japan and the United States.^

Before the total abolition of exterritorial rights, China
must, first, reform her prisons, which, as they now exist
in most parts of the country, are nothing more than filthy
caves allotting a very limited space to many prisoners.
They should be rebuilt and equipped with modern sanitary
appliances so that, when occasion arises, Europeans could
be detained in them without actual injury to their health.
Secondly, she must be possessed of civil, industrial, com-
mercial, and reformed criminal codes, so that intending
litigants, before they go to Court, may understand their
liabilities and responsibilities by referring their case to
statutes. Justice will then be explicit and will not depend
on the pleasure of judges. The third requisite is that she
must train a large body of judges capable of enforcing and
applying the codes with impartiality and fairness. Codes
are only paper proclamations and, unless administered by
persons of profound knowledge, wide experience, and
incorruptible character, are not a guarantee for any
judicial efficiency. If judges are to concentrate their
^ Article 5.



i(S8 Exterritoriality ; Concessions and Settlements

minds on their judicial duties, they must not be also
executive functionaries, as they have always been in China.

There is no doubt that China will eventually fulfil these
three requisites, as she is already moving rapidly in that
direction, but it is easy to understand that in a country so
vast and so much upset by political instability and financial
chaos, it will take some time to carry out these reforms to
the satisfaction of foreigners. Twenty years may have to
elapse before the total abolition of exterritoriality is accom-
plished. In the meantime some concessions should be made
by foreign Powers in favour of China, so as to expedite her
reforms and to encourage her jurists to recodify her laws
and to improve her system of judicial administration.

The foreign Governments concerned should consider the
proposal that in Peking, Tientsin, Shanghai, and a few other
important towns, where prisons on the European model have
already been established, and the performance of judicial
duty has already been entrusted to qualified judges, the
Chinese Courts should not only exercise jurisdiction over
mixed cases in which the defendant is Chinese, as they do
at the present, but also over mixed cases in which either
party is Chinese, whether as plaintiff or as defendant. For
the first five years, the jurisdiction of the Chinese Courts
should be confined to mixed cases, but if they prove them-
selves efficient, it should be extended at the end of that
period to cases involving foreigners only, whether they are
subjects of one or more States. The Codes to be adminis-
tered should be the Temporary Codes now in force in China.

If, however, the Powers do not see their way to trusting
Chinese judges, it may be conceded by China that in all
cases involving foreigners, whether as plaintiff or defendant,
or both, an assessor or assessors should be appointed by the



Exterritoriality ; Concessions and Settlements 189

Consulates concerned to attend the trial and to advise the
Chinese judges. Their advice would not be binding on
the Chinese, but in case of injustice being done they would
be entitled to complain to the Consul or even to their
diplomatic representatives in Peking. In the event of the
complaint being very serious, the case under trial might be
handed over to the Consulate.

Again, if the Powers are so distrustful of the Chinese judges
as to refuse to consider even this compromise, a further
concession may be made by China. She may suggest that
she should employ foreign judges to sit in her reformed
courts to try cases in which the defendant is not Chinese.


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Online LibrarySih-Gung ChengModern China, a political study → online text (page 14 of 28)