Struggling with extraterritoriality
What is extraterritoriality? For the specialist in the history of modern China and Japan, the answer is easy: for Westerners during the 19th century, the imagination of East Asian law was horrible enough to create a system where foreigners in these countries did not fall under the local jurisdiction. Western offenders could be arrested by native policemen, but only be tried and punished by their country‘s representatives. This system was established in the course of the Opium Wars in the mid nineteen-hundreds and became part of the Western regime known as the Treaty System. Seemingly one of the well-known developments in history with not much potential for further research.
How much potential for research can be found in such a seemingly well-known field Pär Cassel demonstrates impressively in his Grounds of Judgement. In six chapters he analyses the phenomena of extraterritoriality in its various Sino-Japanese-Western dimensions. After reminding the reader that the legal regime for foreigners in Eastern Asia “emerged as one of the most controversial aspects of the ‘treaty port system’” (p. 5) he points out that this system of consular jurisdiction was far from being an orderly and arranged system, but much more a practice that was shaped through time and circumstances.
Cassel lays the groundwork for the developments by taking an intense look at the Chinese and Japanese legal systems before the Western encounter. Their main characteristic was a “legal pluralism”. Theoretically, the same laws were valid in all Chinese territories. But: there was preferential treatment for certain groups and the Qing Code mainly applied to civil and military officials. The Chinese individual was tied to the state through his household, but on the local level, legal functions were carried out by different groups below the level of the district magistrate. Even before the establishment of the Western presence, the Qing Dynasty had to deal with intercultural conflict: To handle conflicts between the privileged Members of the Banner system and Chinese, the position of the “Judicial Subprefect” lishi tongzhi 理事同知 was established - an experience that became useful when dealing with the Westerners in the 19th century.
The legal order of Tokugawa Japan was even more pluralistic. The bakufu didn‘t even pretend to form a unified legal system, but jurisdiction was largely left to the different domains, altogether 265 by 1865, and also separated different status groups like samurai, or peasants. Given the adaption to social changes, Japan‘s legal system during this period was of “considerable complexity” (p. 31). But while in China, the pluralistic order in many aspects was retained far into the 20th century, Japan experienced a series of quick reforms towards a unified legal system after the Meiji Restoration after 1869.
In dealing with foreign offenders prior to the “Unequal Treaties”, Chinese practice retained its pluralistic character. Qing authorities were quite flexible and in many cases deliberately left the punishment of criminals to foreign authorities. In the Treaty of Kiachta, Qing-China and Russia 1727 agreed that bandits and murderers were tried by whomever caught them and were executed according to each country‘s custom - hanging in Russia and beheading in China (p. 44). The change of the legal situation after the Treaty of Nanjing 1842 was thus much less radical than usually imagined. While from the Western point of view, extraterritoriality was to save the own countrymen from Chinese law, for the Chinese side it only was a mild extension to the existing legal practice. Cassel makes the interesting discovery that while the English version of the Treaty of Nanjing 1858 was quite clear, the Chinese version seems to have been subtly manipulated - making the passage “striking similar to provisions in the Qing code” (p. 59). From an official point of view, extraterritoriality was integrated in the existing legal system.
The same can be said of one the most well-known institutions in Shanghai: the Mixed Court. Set up in 1864, it was responsible for the mixed cases, presided by a Chinese official with a foreign assessor. While for its inventor Harry Parkes, the practice in the Ottoman Empire provided the blueprint, the Chinese coined the Mixed Court gongxie 公廨 - and thus borrowed a term from the Yuan Dynasty and again integrated a seemingly foreign institution into the legal order of the Qing. While many Westerners hoped that the export of Western legal practice and the joint institutions would instigate reforms of the Chinese system, Qing legal pluralism proved its flexibility and its ability to integrate new elements.
In the following chapters, Cassel sheds light on a field that normally escapes Western attention: issues of extraterritoriality between China and Japan. China had been Japan‘s most important trading partner, the Japanese historian Oba Osamu states that “Nagasaki trade was China trade” (p. 87). The Chinese community was under jurisdiction of Chinese commissioners under supervision of the Nagasaki magistrate. When Japan was opened after 1853, foreign presence was established in a series of treaties commonly referred to as the “Ansei Treaties”. The Japanese treatment of the foreign presence at first was similar to the Chinese, consular jurisdiction was integrated into the plural legal system of the Tokugawa. This changed considerably in the Meiji Era, when the foreign jurisdiction became a major issue for the claims to national sovereignty.
Under the new treaty system, the Chinese in Japan were left in an uncertain status which both sides were interested to resolve. In the following negotiations, both sides in many aspects followed the model set be the Western powers, though Qing officials didn‘t merely copy Western thought, but were careful to stick with the Chinese terms. When the Sino-Japanese Treaty of Tianjin was signed in 1871, it established mutual extraterritoriality - and caused a scandal in Japan, as it ran completely opposite to the ambitions of the new government towards a revision of the treaties altogether. The Qing used this treaty to extend the Chinese legal order to Japan, treating the consul like a district magistrate and supply the leaders of the Chinese associations with formal positions. As Cassel shows, Japanese legal reform became an increasing problem in the 1870s and 1880s, as consular jurisdiction was a “moving target”, while the Chinese side was satisfied with the situation and had little interest in the changes that occurred in Japan.
Although Qing-China made remarkable efforts to integrate extraterritoriality and its consequences in its legal system, in the end it became a symbol of Western oppression through the treaty system. While Japan managed to revise large parts of the treaties by the end of the 19th century, in China the remains of the “Unequal Treaties” only were swept away by Communist victory in the civil war and the expulsion of most Western presence after 1949.
With this study, Pär Cassel has shed much new light on an old topic. He demonstrates impressively that extraterritoriality in Eastern Asia was not only bilateral between Western states and China or Japan, but we have to speak of a triangle, where all parties influenced each other’s views and behaviour. Cassel shows brilliant scholarship and makes full use of his interest in law and his language skills. This book is a must-read for students and scholars who want to understand international relations in Eastern Asia in the second half of the 19th century. in Eastern Asia
Cord Eberspaecher, Confucius Institute at the Heinrich Heine University Duesseldorf (eberspaecher@konfuzius-duesseldorf.de)