To understand the operation of extraterritorial jurisdiction, let us suppose the principle to be applied to ourselves. A European merchant or sailor inflicts corporal chastisement on one of our citizens in Broadway, and the prestige which the foreigner enjoys, precludes interference on the part of bystanders and police. If the New Yorker happens to be desirous of obtaining redress, he must first discover and identify the assailant, and next ascertain his nationality. [A Chinaman, in like circumstances, would find as much trouble in arriving at the truth, as if he were to attempt the investigation of the assailant's pedigree; he knows as little of our nationalities as we do of the forty tribes of Borneo.] Our persevering citizen succeeds at length in lodging a complaint at the consulate of the offender. The consul is perhaps a fellow merchant of the defendant, or head of the firm to which the offender is consigned. The complainant is accommodated with a blundering interpreter, and the case is tried according to the foreigner's code, which, on such occasions, is endowed with more than wonted elasticity. If, contrary to all probability, the foreigner is convicted, the citizen has the satisfaction of seeing the foreign assailant placed in confinement on the consul's premises, or perhaps mulcted to a small amount; and with this administration of justice, he and his country must be content. Who does not see that such an abdication of authority on our part would lead to the perpetration of wrongs that would soon become unendurable, even if we were first to become a broken spirited people? And, considering the arrogance and recklessness of many foreigners in China, and the pusillanimous character of the natives, what can be expected but contempt and aggression on one side, and mistrust and finesse on the other? What but a chronic discontent, wholly incompatible with healthful commerce and peaceful intercourse, can be expected from such a state of things? Consider further that this occurs among a people of the highest antiquity, with a history and a civilization of which they are justly proud; who, in political and moral science, were in advance of Greece and Rome, at a time when those, whom they now designate 'barbarians,' really were so. When our ancestors were half naked savages, the Chinese were a polished literary people. In calling attention to this subject we do so, not less in the interest of our oriental clients than in that of our own lands; for our relations with the empire of China will, with the growth of our power on the Pacific, assume such importance, that good policy demands that we should avoid any course likely to render hostile such a large portion of the human race. Many years ago we deprecated Chinese emigration into California, on the ground that, as prolétaires, they would degrade labor, and leave that State without its most important element of strength; yet to the Chinese, in their own country, we would pursue a conciliatory instead of a domineering course.
Hardly had the Portuguese doubled the Cape of Good Hope, when the Chinese, who had but imperfectly resisted aggression from neighboring countries, began to suffer annoyance from the 'barbarians from the Western Ocean.' At an early day the Portuguese established a factory at the mouth of the river on which Ningpo is situated. The factory became a colony, and the colony a little state. 'At the origin of colonies,' says M. Cochin, 'we find in general two men, a filibuster and a missionary. To go so far, one must have either a devil in his body, or God in his heart. When to these two men is joined a third—a ruler—all goes on well; the first subjugates, the second converts, and the third organizes.' All these went to work in China: as elsewhere, affairs went on well as regards filibuster, missionary, and ruler. Courts of justice, hospitals, seminaries, and military posts were established. Natives joined the colonists in large numbers, adopting the foreign dress, customs, and religion, without a moment's hesitation. If the Chinese had been as few in number as the Aztecs, a Portuguese dominion would soon have arisen in Cathay; but the raids made by the colonists, the slaying of villagers, the violation and carrying off of women, the cruelty and robberies of the Christians, became so intolerable that the whole region was aroused, and the colonists exterminated. From that period Europeans were rigorously restricted to the port of Canton, and the coast enjoyed quiet, except interrupted by an occasional buccaneer, until the present century, when the opium traffic brought violent men to every port.
The Portuguese were not the only sufferers from trespassing upon the soil of China. Twenty Japanese filibusters were boiled to death in the streets of Ningpo, by order of an envoy of their country, who then (1406) happened to be in Peking. All their intercourse with foreigners seemed to confirm Chinamen in the belief that the barbarians were in their dispositions like wild beasts, unamenable to reason, and to be treated accordingly.
With feelings of mutual mistrust and hostility, commerce was long conducted by Europeans and Chinese at Canton. The question of foreign exemption from local jurisdiction only came up for discussion in cases of homicide; but in every instance the Chinese insisted on their right to punish the murderer. Foreign resistance to the claim was based only on the unwillingness of the Chinese to distinguish between killing by accident, in self-defence, or from malice. In the Chinese code such distinctions exist; but life for life was the inexorable demand when a native was slain by a foreigner; it was not, however, so much jealousy of foreign jurisdiction, as a desire of revenge, that actuated them, as was shown on many occasions. Whenever foreigners tried and executed one of their number for a murder of a Chinaman, the mandarins and people were satisfied. It was the practice of the local authorities to make a representation to the emperor to the effect that such trials and executions were in obedience to their orders, the foreigners being their submissive agents. The real difficulties occurred when an accidental or extenuating homicide took place, or where there was insufficient proof of the guilt of the accused. The condign punishment of those convicted did not meet the requirements of the Chinese authorities. They seized, and held as hostages, countrymen of the murderer, and demanded blood for blood, seeking not justice but revenge. The object was explicitly expressed by the emperor Kienlung, in an edict (1749): 'It is incumbent to have life for life, in order to frighten and repress the foreigner.'
Four years subsequent to the issuing of the edict of Kienlung, the Canton local government memorialized the emperor to disallow to foreigners the privilege of appeal, when sentenced to death. Except in times of insurrection no Chinaman can be executed until his death warrant is signed by the emperor. In compliance with that memorial, foreigners, guilty of homicide, were outlawed. It was formally announced that 'The barbarians are like beasts, and not to be ruled on the same principles as citizens. Were any to attempt controlling them by the great maxim of reason, it would tend to nothing but confusion. The ancient kings well understood this, and accordingly ruled barbarians by misrule. Therefore, to rule barbarians by misrule is the true way of ruling them.' It suited the purpose of European residents at Canton to descant upon the arrogance and inhumanity of the Chinese, as manifested by proceedings based upon those hostile edicts, while the provocations which explained and extenuated them were studiously concealed.
Considered apart from the misdemeanors of foreigners, the measures of the Chinese authorities justified the appeal to arms by the nation, whose interests were chiefly concerned in commercial dealings with that empire. The supremacy claimed by the Chinese over all countries occasioned frequent altercations between the mandarins at Canton and the English officers who were in charge of the East India Company's factory in that city. Hostile collisions were, however, comparatively unfrequent, owing to the authority exercised over all British subjects by the East India Company, that body having authority to deport any of their countrymen who acted disorderly. Their proceedings in that way gave a tone to the entire foreign community, and as intercourse was restricted to a single port, where the people were jealous, and mandarins vigilant, murderous affrays did not often take place; yet, when they did occur, the Chinese were resolute in claiming jurisdiction in each instance. In cases of assault, pecuniary recompense always satisfied the complainant; and in business transactions mutual confidence in each other's integrity rendered official intervention unnecessary.
Thus, except in cases of homicide, the foreign claim of exemption from local jurisdiction was tacitly admitted, and no inconvenience followed. But where life was lost, even when both the murderer and his victim were foreigners, the right to try and execute the guilty was contended for, and in some cases admitted. Kienlung's demand of 'life for life' was always made, an innocent victim being not less acceptable than the real culprit. On one occasion (1772), when a Chinaman was killed in the Portuguese settlement of Macao, an Englishman, demanded by the Chinese, whom the Portuguese admitted to be guiltless, was by them given up, and by the Chinese strangled, to meet the claim of life for life. No regard was had for those who by accident caused loss of life. In 1780 a native was killed by the firing of a salute from an English vessel. The mandarins decoyed the supercargo and held him as a hostage until the gunner was delivered up. The innocent cause of the calamity was given up under a promise from the mandarins that he should have a fair trial, and that his life should not be endangered. He was immediately strangled. In 1821 an Italian sailor, in the service of an American merchantman, was the indirect cause of the death of a China boatwoman, who was by the side of his vessel. Trade was stopped until the poor man was delivered up; the committee of American merchants, in the examination of the sailor, protested against its irregularity. In sending the prisoner to be strangled, they said, 'We are bound to submit to your laws, while in your waters; be they ever so unjust, we will not resist them.' A plausible reason for a culpable act. They should have allowed the trade to stop, and quit the Chinese waters, rather than become parties to the murder of the Italian.
The abrogation of the monopoly of the East India Company, and the rapid extension of the illicit traffic in opium, caused a great influx of foreigners into China, who often forced their way to ports where intercourse was prohibited; these were among the causes which prepared the way for the war with Great Britain; but the question which precipitated that war, was one touching Chinese jurisdiction over contraband merchandise, smuggled into the empire in defiance of the efforts of the Chinese authorities to keep it out. Opium, the bane of their race, was stored up in the foreigners' vessels in Chinese waters. To obtain possession of the fatal drug, they placed the foreigners in duresse. The opium war followed, and next the treaty of Nanking, which secured all that Britain desired, save the legalization of the opium traffic.
Neither in the treaty of Nanking, nor the supplementary treaty, was the concession of exemption of British subjects from local Chinese jurisdiction formally expressed. Security to British subjects was guaranteed, while the British Government stipulated that they should keep a ship of war at each port 'to restrain sailors on board the English merchant vessels, which power the consuls may also avail themselves of, to keep in order the merchants of Great Britain and her colonies.'
That the Chinese regarded the principle of extraterritoriality as having been conceded, was shown by their ready assent to the insertion in the American treaty of a clause formally abdicating sovereignty to that extent. Our treaty says: 'Subjects of China, who may be guilty of any criminal act toward citizens of the United States, shall be arrested and punished by the Chinese authorities, according to the laws of China; and citizens of the United States, who may commit any crime in China, shall be tried and punished by the consul or other public functionary of the United States.' Provision was made for joint action between American and Chinese officials in certain cases. It was also stipulated that there should be no interference by the Chinese in any misunderstanding that might arise between Americans and people of other foreign countries.