Foreign Privilege in China

THE newly aroused sense of nationality, of feeling that they belong to one common fatherland, which is at present seen to pervade the masses of China, has taken many aspects. Now it seems to be directed against the alien dynasty, now it manifests itself by resentment against local misgovernment, now, notably in 1900, it takes an anti-foreign form; but of any organized movement, sooner or later, the Asiatic instinct of strong government gets the upper hand, and agitation which might devastate the country is kept within restraining banks. The latest development of nationalism in China is the present movement against those privileges reserved for foreigners, to which the native can lay no claim; and foremost among these is the right of extraterritoriality, against which the battle will be long and stoutly contested. It will be well to inquire what it is.

In the earliest times the traveler was protected by no law: the Tyrian voyager along the coasts of the Mediterranean secured only such rights as he could buy or enforce; but he neither carried with him his own law, nor was he entitled to claim the protection of the law of those among whom he sojourned. With the extension of the Roman dominion went the pax Romana also, and every citizen who traveled was under the ægis of the jus Romanum. The principle established was that the Roman elsewhere than in Rome was extraterritorialized, — he was not required to submit to the territorial laws of the “foreign” country, but remained outside them and continued to enjoy the protection of his own laws. As an echo of this privilege we find that in the constitution of A. D. 824, imposed upon the people of Rome by Lothair, acting as vice-gerent for his father Louis the Pious, each inhabitant of the city was required to choose the code, Roman, Frankish, or Lombard, by which he wished to live, and was then judged according to the law selected. The underlying principle is obvious. It was recognized as inequitable that, for example, the Frank, who was entitled by his native law to compound for a homicide by payment of Weregeld, should by the accident of residence in what — though the capital of the empire — was still to him a foreign city, be compelled to pay the penalty of death, — a penalty which from his point of view must appear cruel and vindictive. And while he wished to preserve for himself his own law, he did not wish to impose it on the Roman people or on the Lombards who less than a century before had been masters of the city. The Frank in Rome was fully extraterritorialized, but of Rome the Frank was titular sovereign.

When the West first met the East on equal terms at shorter range than a lance’s length, it was found that their laws were incompatible; that no Venetian or Genoese, the pioneers in commerce in those days, would willingly or could in reason be expected to submit himself to Moslem law, based on the stern requirements of the Koran; and that no follower of the Prophet could yield obedience to a code whose leading exponent was the Pope. There was no thought of requiring either to conform to the law of the other: as between one country of Europe and another the lex loci might be applied ; but to assimilate the legal procedure of two diverse civilizations was the mingling of oil and vinegar. The question was onesided, since no Moslem ever strayed from the fold, and the Padishah settled it offhand by bidding the Giaours judge, control, — and protect, — their own nationals according to their own customs. While the trading states were weak and the Moslem power strong, the imperium in imperio thus created caused no more trouble than the old protection which the Roman citizen carried with him everywhere; but in the course of years the Turkish realm lost its old-time force, the more powerfully organized nations of Europe entered the field, and the obligation of extraterritoriality became a right, claimed by all strong enough to enforce it, enjoyed by all in the comity of nations, and ultimately sanctioned by the Capitulations. These are the charter of extraterritoriality in the Turkish Empire, and in the states now or formally vassal to it.

At first the natural assumption was, that the traveler carried his law with him, in so far as he was entitled to the protection of any law; but by degrees in the history of those countries whose government is based on law and not on the will of the governors, law became paramount, and the law of the locality was never set aside to pleasure a chance visitor. This is now the rule, the Capitulations in Turkey being merely survivals of the middle ages. When the European first came to the Far East, he had no thought that he was entitled to carry his law with him, and submission to the lex loci was merely an incident in his adventurous career, duly provided for in his profit and loss account. The Black Hole of Calcutta was typical of the treatment of the English in India at the time, when once removed from the protection of the British flag; the Portuguese in China enjoyed life, liberty, and the pursuit of happiness only on condition of remaining safely in the tiny peninsula of Macao; and the Dutch in Japan, cooped up in Desima, made money, but were otherwise subject to the whims of the Japanese. At the opening of the nineteenth century the English and Americans resident in China were restricted to the “Factory” or trading post of Canton, privileged for exercise to walk a hundred paces in one direction, and then a hundred paces in the other. They were in general well treated, since the trade so profitable to them was equally profitable to the Chinese, and, so long as they were law-abiding, were not molested, — but law-abiding in the sense of abiding by the law of China. It was irksome to them to have no lawyer to instruct them in the law of the land, to have no fixed and certain law to appeal to, to be doubtful of the application of the law to any particular case, and to have no doubt whatever on the course likely to be followed by the administrators of the law; but this was all an incident of their position, and the rapid accumulation of fortune enabled them to shake the dust of the country from their shoes after a very short stay. So the position was endured, and the lex loci submitted to, — probably, from what we know of the English and American character, with many murmurs, but without overt opposition.

It is no part of my purpose to describe the state of the prisons of China, or the methods by which testimony and confession are elicited, or to demonstrate the insistent need to the Chinese people, of the article in King John’s Magna Charta, “to no freeman will we deny or sell justice.” The incompatibility of laws based on diverse civilizations is nowhere more marked than in China. There no bankruptcy law is possible: if a debtor’s own estate will not suffice to pay his debts, the deficiency must be made good by his father, brothers, or uncles; if a debtor absconds, his immediate family are promptly imprisoned; if the debtor returns, he is put in prison and kept there indefinitely, so long as he can find money for his daily food, until released by payment in full or by death; — this is the law. When, in 1895, Admiral Ting found himself forced to surrender Weihaiwei and his fleet, he committed suicide; by this courageous step, technically dying before surrender, he saved his immediate family — father, mother, sons and daughters — from decapitation, and their property from confiscation, — the penalty when a commander surrenders an Imperial fortress; — this is the law. When in the old days, an English gunner caused the death of a Chinese by firing a salute from a cannon, from which, by oversight, the ball had not been removed, he was seized, tried, and executed; and in 1839, when in the course of a disturbance with English and American sailors at Canton, a Chinese was killed, the authorities demanded that, if the guilty person could not be detected and executed, the whole party should be handed over for execution; — this is the law. Intention is never taken into account. A dollar for a dollar, an eye for an eye, a life for a life, and all for the Emperor and his representatives, — this is the law of China.

The feeling against continued submission to this law and to its arbitrary and inequitable application had been growing; and when the Chinese authorities committed an overt act of aggression in seizing and destroying the property of the English and American merchants at Canton, burning their “Factory,” in which alone, as in a Ghetto, they were permitted to reside, and forcibly expelling them from Chinese soil, the British took up the cudgels and the war of 1842 followed. The movable property destroyed consisted mainly of opium, and consequently the war is in common parlance called the “Opium War.” This is an ill-chosen designation for the Americans, as for the English, since, as the direct result of the war, the American government secured a treaty containing even more favorable terms than the British treaty. In fact the direct cause of the war was the growing sense of the need for better protection to life and property, though behind this was the ground cause of the need for better relations generally. In the words of Dr. Hawks Pott’s Sketch of Chinese History, “The first war with China was but the beginning of a struggle between the extreme East and the West, the East refusing to treat on terms of equality, diplomatically or commercially, with Western nations, and the West insisting on its right to be so treated.”

As has been the rule from the outset, England bore the brunt of the battle in securing the rights of the West; and the privileges secured to her as the result of the war became the heritage of all the Western powers coming later into the field. Equality of treatment was conceded in 1842 on paper; but the execution of the concession in practice left much to be desired, and friction continued . There were, of course, faults on both sides, as is always the case where a bold, aggressive race comes, especially in matters of trade, in contact with a weaker race given to supplement its want of strength by methods of chicanery and indirectness ; but underlying everything were the demand for equality of treatment and extraterritorial rights on the one side, and on the other, a stubborn disinclination to yield either. A second war became necessary, in which the French joined hands with the English; and a second time America and other interested powers came in and secured treaties simultaneous and identical with those signed by the British and French envoys. These treaties, signed independently by Great Britain, France, Russia, and the United States in 1858, by Prussia and the North German Confederation in 1861, and by other powers in later years, are still the charter of liberty of the foreigner resident in China; and in each of them, in addition to a “most favored nation” clause, is contained the stipulation of extraterritoriality.

The earliest treaties with China were made by Russia, whose envoys came by the Siberian route, and whose colonists and armed forces were in constant conflict with the Manchus and the sons of Han on the long frontier of the Amur and in Central Asia. The earliest of these treaties, that of Nipchu (or Nertchinsk) signed in 1689, contains (Art. VI) the following provision: —

If hereafter any of the subjects of either nation pass the frontier and commit crimes of violence against property or life, they are at once to be arrested and sent to the frontier of their own country and handed over to the chief local authority, who will inflict on them the death penalty as a punishment of their crimes.

The treaty of the Frontier (called also the treaty of Kiakhta, at which place the ratifications were exchanged), signed in 1727, contains (Art. X) the following provision: —

Those who pass the frontier and steal camels or cattle shall be handed over to their natural judges [leurs juges naturels], who will condemn them to pay ten times, and for a second offense twenty times, the value of the property stolen ; for a third offense, they shall be punished by death.

The supplementary treaty of Kiakhta, signed in 1768, contains minute stipulations for the arrest and extradition of criminals, but includes this provision: —

The subjects of the Middle Kingdom [China] who shall have committed acts of brigandage shall be delivered, without distinction of persons, to the tribunal which governs the outer provinces, and punished with death; the subjects of the Oros [Russia] shall be delivered to their senate, to undergo the same penalty.

Here, then, from one to two centuries before the first of the treaties with any of the maritime powers, we have the principle of extraterritoriality accepted; the penalties are prescribed by negotiation between the two powers concerned, but the culprits are to be handed over to their own natural authorities, — are to be judged and condemned according to the legal procedure of their native land.

The British treaty of Nanking, signed in 1842, as the result of the war of that year, contained provisions for uniformity of customs duties and equality of treatment for British officials; but the only reference to consular jurisdiction is found in Art. II, to the effect that consuls are “to be the medium of communication between the Chinese authorities and the said merchants, and to see that the just duties and other dues of the Chinese government as hereafter provided for are duly discharged by Her Brittanic Majesty’s subjects.”

The supplementary treaty of Hoomunchai (1843) contains provisions for extradition, but it too makes no provision for extraterritoriality. It was reserved for the United States of America, peacefully following on the sound of the British cannon, to step into the breach, and to supply the one condition which renders it possible for American, English, German, or other merchants to enjoy in quiet the fruits of their trading activity, or for their missionaries to prosecute their holy calling peacefully, and to carry back out of China the life they brought with them, subject to the laws of the land of their allegiance and not of the land of their sojourn. In the treaty of Wang Hiya, signed in July, 1844, Art. XXI reads as follows:

Subjects of China who may be guilty of any criminal act towards 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 subject to be tried and punished only by the Consul or other public functionary of the United States thereto authorized according to the laws of the United States; and in order to the prevention of all controversy and disaffection, justice shall be equitably and impartially administered on both sides.

The French treaty of Whampoa, signed in October, 1844, contained a similar provision that French subjects accused of any crime should be “livrés à l‛action régulière des lois françaises,” adding, however, an enunciation of the principle of extraterritoriality: —

Il en sera de même en toute circonstance analogue et non prévue dans la présente Convention, le principe étant que, pour la répression des crimes et dé1its commis par eux dans les cinq ports, les Français seront constamment régis par la loi française.

This is the principle adopted since that time in all treaty negotiations entered into with China by each one of the treaty powers, which, in the order of the dates of the first treaty with each, are Russia, Great Britain, the United States, France, Belgium, Sweden and Norway, Germany, Denmark, the Netherlands, Spain, Italy, Austria-Hungary, Japan, Peru, Brazil, Portugal, and Mexico.

This is extraterritoriality, secured by two wars and by treaties with seventeen powers, each one of which must consent to its abrogation or modification. By it the foreigner resident in China is subject to no one provision of the law of China, as to either his person or his property, but at all times and in all places is entitled to the protection of his own national law administered by his own national officials. There are no two voices as to the necessity for this right among those resident in China, and the right has been recognized by the various governments as supplying the one condition under which their nationals can remain in that country. In its exercise some abuses have grown up, which may be considered later; but first it is needful to study its practical application.

We all know, or think we know, the ordinary functions of the ordinary consul. Practically they may be reduced to three. He is the commercial agent of his government, and in that capacity must study the commercial possibilities for American traders and manufacturers in the country to which he is accredited, and inform the nation by the reports which he writes. He is a notary public, certifying invoices for the United States customs, and attesting documents signed before him for use in the United States. Finally he is the adviser to Americans sojourning abroad, supplementing their ignorance of foreign laws and customs, and indicating to them the means by which they may be in the position, as to knowledge, which they would occupy in their own country. Coming to China we find the consul performing not only these functions, but many more besides, all of which add to his cares and his responsibilities.

First, by the direct action of the principle of extraterritoriality, he is a police magistrate to try offenses committed by American citizens, civil judge for suits brought against Americans by Chinese, by other Americans, or by foreigners of other nationalities, and criminal judge for more serious crimes committed by Americans, even up to murder in the first degree. From his decisions appeal is difficult. His judgment may be reviewed by the United States Minister at Peking, but this is in no sense a re-trial; and in certain cases an appeal may be taken to the United States Circuit Court, six thousand miles away, in California. His position is the more difficult from the fact that he has to administer, not the law of Massachusetts, or of New York, or even of California, the nearest state, but “American law,” and this generally without the aid of trained lawyers; he must administer the common law unelucidated by any state statutes, and must often give judgments which Solomon would have envied. Besides American law he must have a sufficient knowledge of the lex loci (as in the case of a land suit in which an American is defendant), and instances have been known when his judgment has depended upon the right interpretation of the tenets of the Buddhist religion. With all this he has still to meet another element of difficulty: his instructions from the State Department require him first to bring two suitors to common terms of settlement; and if, after making the attempt, without giving one party a clue to the case of the other, he fails of success, he must then erase from his mind all he has learned in the matter and go on the bench to sit as judge.

Besides requiring him to act as judge, the extraterritorialized position of the foreigner in China places on the consul’s shoulders still another burden of responsibility. Beyond the protection of American law, the American in China is safeguarded by the stipulations of the treaties. These specify — to select a few among the many instances—that customs duties shall be uniform, that inland transit dues (akin to octroi) may be compounded, that Americans may freely rent or charter houses, boats, etc., that they shall not be prevented from preaching the gospel, that the United States Minister may freely and safely reside in Peking. Though sitting as judge when an American is defendant, when an American has a plaint against a Chinese defendant the consul is by law the official advocate in the case, a position presenting some embarrassment in cross suits. When the plaint is against the Chinese government, the consul is the more necessarily an advocate from the need of interpreting and applying the stipulations of the treaties — not only of the American treaties, but, under the “most favored nation” clause, of all the treaties made with China. This makes of him a diplomatic representative, — not merely a representative of the minister at Peking but of the State Department at Washington ; and in this capacity he has to present arguments and bring pressure to bear on the Chinese officials to an extent not sanctioned by procedure in European countries.

In cases of riot and disturbance in a country of weak government, the foreign military and naval forces must be called in to give due protection to their nationals. The consul is the natural diplomatic intermediary with the Chinese officials, and all representations, by way either of persuasion or of ultimatum, must pass through him. It is for him alone to judge when the toga must yield to arms; and, in addition to his other responsibilities, he is the resident civil authority in control of the armed forces of his own country.

By virtue of extraterritoriality, direct action against a foreigner’s person or estate can be taken only through his own consul; and in the case of an arrest for contravention of municipal regulations, it is by him that the prisoner must be tried. The foreign communities are little self-governing and self-taxing republics, each in its square mile or two of territory; but even against their own members those communities cannot act through their own courts, which do not exist. If the municipal police arrest gamblers, let us say, among whom are men of six different nationalities, plaint must be made before six different consular courts, with the result, incidentally, that one culprit may be fined a dollar and another a hundred dollars on the same day for the same offense. The municipal council governing such a community is subject to no legally constituted tribunal, since none such exists of competent jurisdiction; and, being after all only a body of private gentlemen of many nationalities, with no official status, can communicate with the Chinese officials, with whom they have constant and important dealings, only through “their own” consuls. To meet these varying needs of the regularly constituted governing body of these little republics, the consuls take united action, holding deliberative meetings for that purpose, and act by the voice and pen of the “senior consul”—the consul longest in residence; and they appoint certain of their number to constitute a consular court, a tribunal before which the municipal council may be sued. This gives the consul an important part in the municipal control, not only of his own nationals, but of all foreigners in the community.

As we have seen, the consul in Europe is merely a commercial agent of his own government; to this function the consul in China adds those of judge, diplomatic agent, civil authority in control of the military, and has a potent voice in municipal administration. All this arises from extraterritoriality. This remedy for the intolerable situation of the first half of the nineteenth century has now been in force for sixty years, and through it life in China has been rendered possible for the American and other foreigners; without it, during those sixty years, the contention of the Chinese government that none of the outer barbarians should abide on the sacred soil of the Middle Kingdom would have worked its own accomplishment. It is based on force, as was the first occupation of Massachusetts Bay and the progress of the Union from the Atlantic westward to the Pacific, and on manifest destiny, so long as its beneficiaries can compel destiny. It has no logical or moral argument to uphold it; and yet it is a necessity of the case, if the American merchant and the American missionary are to remain in the country; and so long as their stay there is legitimate, so long will extraterritoriality provide them with a buckler in following their lawful occupations.

There are some abuses connected with the practical working of this privilege which call for notice. Not all American missionaries can be trusted to temper zeal with discretion, and to distinguish what is right from what is lawful; nor can all American merchants be trusted to place integrity and honesty on the shelf from which they can most easily be reached down. The question of the missionary can be soon disposed of, since in his error he is at least honest. Not only in the treaty ports, the sole authorized places for foreign trade, is the American covered by his extraterritorialized position, but in every corner of this vast empire in which he may put his foot. When the missionary, far in the interior, many miles from the observing eyes of his consul, transfers a corner of his protecting cloak to his poor Chinese convert, he may be doing what is right, but it is not lawful; and this is the naked fact underlying many an episode leading to a riot. You cannot eradicate from a missionary’s mind the belief that a convert is entitled to justice of a quality superior to that doled out to his unconverted brother; it could not be got out of your mind, nor out of mine, in a similar case. None of us could endure that a protégé of ours should be haled away to a filthy prison for a debt he did not owe, and kept there until he had satisfied, not perhaps the fictitious creditor, but at least his custodians who were responsible for his safe keeping. The case is particularly hard when the claim is not for a debt, but for a contribution to the upkeep of the village temple — the throne of heathendom — or of the recurring friendly village feasts held in connection with the temple — counterparts of Fast Day and Thanksgiving; and when conversion drives its subject to break off all his family ties by refusing to contribute to the maintenance of family ancestral worship and the ancestral shrine, the hardship is felt on all sides — by the missionary, who cannot decline to support his weaker brother in his struggle against the snares of the devil; by the convert, who is divided between his allegiance to his new faith and the old beliefs which made all that was holy in his former life; by the family, who not only regard their recreant member as an apostate, but are also compelled to maintain the old worship with reduced assessments from reduced numbers; and by the people and governors of the land, who may find in such a situation a spark to initiate a great conflagration. No missionary, none of ourselves, could refuse his support in such a case; and yet no missionary with whom I have spoken considers that the support should be given. To a man they think that they must regard in such matters, what is lawful and not necessarily what is right; and with them it is always “ the other fellow ” who does these things.

This contention is more nearly true of American missionaries than of those of some other nationalities, and among them it is almost absolutely true of the older established missionary bodies; but among other nationalities and newer missions interference in cases of “religious persecution,” in suits for debt, and even in criminal cases, is only too common. The strength of a chain is that of its weakest link, and the rights of the missionary in the interior will have to be tested, not by the conduct of the decent majority, but by that of an aggressive minority bent, for one reason or another, on extending their own extraordinary rights to Chinese converts who otherwise must share such justice as is meted out to their fellow subjects. Some day the missionaries will have to decide whether they will be content with protection to their own persons and property, or will lose even that in an attempt to secure to their converts a measure of justice denied to them when heathen.

All this, however, is a small matter when compared with the injury done to foreign reputation by the misuse of extraterritoriality in commercial questions. The treaties have secured to foreigners many privileges denied to Chinese. It is no part of my present purpose to inquire if these privileges are equitable or not; it is enough to say that they will be maintained so long as foreign nations are strong enough to insist on their maintenance, and that among them are rights second only to extraterritoriality as essential conditions for foreign residence in China as she is to-day. Among them are such provisions as the retention by consuls of the control over shipping under their national flag, the levy of uniform customs duties, the registration of land held by foreigners at their consulates, etc. Protection is thus given to foreigners in their daily business, such as Chinese do not enjoy; and it would be unreasonable to expect that no foreigner would be found ready, for a consideration, to lend a corner of his flag to cover the nakedness of the poor Chinaman. Among the foreigners resident in China there is the same proportion of good, bad, and indifferent as among the same class in the home lands, and the malpractice is common; but while the abuse of the flag provides a decent income to many among them, it causes great injury to the legitimate commerce of the countries from which they come, and disorganizes the methods of administration, right or wrong, just or unjust, of the land in which they live. Because an American can take certain goods from one place to another for a hundred dollars in taxes, while it would cost a Chinese twice that sum, provides no reason good in the eyes of the American nation, the American manufacturer, or the legitimate American trader, why the Chinese should be allowed to save half his outgo by the misuse of the American flag. The differential taxation is a matter between the Chinaman and his own government, and is no concern of the American nation; and yet, if an American has lent his name to the transaction, the American consul is bound to intervene to protect the Chinaman’s goods. This is only one example of many in which extraterritoriality is abused to give to Chinese a protection from their own officials to which they could otherwise lay no claim.

Instances have been known where a foreigner with no capital, not a penny, opened branch firms in several places and ran steamers in his name and under his flag, but had no share in the working of the business, and was never heard of — except when it became necessary to call a case out of the Chinese magistrate’s yamen to the foreign consular court. In one instance a small steamer was transferred within a few months, first to the British, then to the French, then to the American, then to the Italian flag, in order to keep her out of the Chinese court to which both the claimants to her ownership were subject; the transfers were frequent because the case was too notorious to be upheld even by the lax methods of China; but the legal machinery was there and was used. Each power professes to wish to stop these abuses, but nothing can be done except by unanimous consent of all the seventeen treaty powers: one recalcitrant power would provide for its nationals a rich harvest from the traffic denied to other foreigners, and it is unlikely that anything will be done, unless the great commercial nations put their foot down and say to the smaller powers, “This shall go no farther.”

These are relatively minor defects, only important in so far as they tend to weaken the arguments of the upholders of extraterritoriality, which, with its concomitant privileges, is to-day, as it has been for sixty years, an essential condition of the residence and business of foreigners in China; and the right will not, and cannot, be abrogated until the foreign powers concerned are unanimous in their opinion that residence in China will be as safe, and protected by guarantees as sound, as in other countries, — or until the growing strength and improved administration of China herself enables her to claim and to maintain the right of governing all within her borders.