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Colonial Cases

Newspaper commentary China 1880s

The Aborigines' Friend (London, England), 1 July 1880

...

2.  The other subject which I would bring under notice is the administration of justice at Shanghai, where we and other civilized Powers have establishments on Chinese soil.  Natives accused of crimes are there tried by a "mixed court," composed of a Chinese official and of an assessor of the privileged nation to which that part of Shanghai belongs where the crime was committed. From a glance over the Supreme Court and Consular Gazette of last year, it would seem that ...

 

The North China Herald, 28 October 1880

CONSULAR JURISDICTION.

IT would be difficult to find a better illustration of some of the evils consequent on the present system of Consular jurisdiction, to which the attention of the meeting of the International Law Association at Berne was drawn by Mr. Iriye in his recent paper, than the Burnett abduction case.

   The result of the two trials, which Mr. Burnett has already undergone, can have satisfied neither the accusers, the accused, nor the judge.  The accusers have got their verdict, but it is the verdict of one judge against six assessors; the accused is condemned, although all six assessors found in his favour; the judge finds himself alone in his opinion of the guilt of the accused with his assessors against him in each trial.  No one concerned, not even the lawyers engaged in the second trial, can possibly be pleased with the result.

   The case itself was very simple.  Mr. Burnett, a tide-surveyor at Wenchow, finding his life somewhat wearisome at that scantily-populated port, was anxious for a concubine.  Having resided for a long time in this country and being familiar with its language and customs, and with the very doubtful reputation enjoyed by the occupants of monasteries in this country, he instructed or authorised, it was alleged, his head boatman  to procure a certain nun residing on an island near his quarters.  The head boatman, with the aid of four of his crew, forcibly abducted the nun and brought her to Mr. Burnett's lodgings.  Here, according to her evidence, she was detained against her will for some days, made to subserve his desires, and ultimately returned to her house.  The matter might doubtless have been arranged by a money payment, but that Mr. Burnett himself brought it to the notice of his superior, Mr. Mackay, the person in charge of the Customs'  establishment at Wenchow, who, it was  said, incited the Chinese officials to take the matter up, and Mr. Burnett was charged with forcible abduction of the complainant, a very serious charge, as it is needless to say.

   There being no American Consul at Wenchow, Dr. Lord, a missionary who is also American Consul at Ningpo, was taken to Wenchow in a man-of-war to try the case.  Assessors were chosen from among the officers of the man-of-war, and Dr. Lord found the prisoner guilty, the assessors unanimously dissenting.

   On appeal to Peking, the American Minister found the whole transaction so irregular that he ordered a re=hearing of the case; and Mr. Burnett, already ruined by the loss of his appointment and the gratuity to which he was entitled by his length of service, had to stand his trial again at Ningpo.  The case occupied several days, lawyers were brought at great expense from Shanghai, and witnesses from Ningpo, with the same result as before. Dr. Lord again found the prisoner guilty, while all three assessors, two of them missionaries, and one a merchant, were unanimous in the statement that the charge was not proved.

   Omitting the technical objections, which had naturally no weight with a judge entirely innocent of legal training, we may state the prisoner's defence in a few words.  He asserted that he had no idea that force was necessary to procure the presence of the nun; and he had never authorised force to be used; and the only witness to contradict him was the head boat-man, who had been tortured by the mandarins and kept a prisoner under their supervision up to the very moment of his appearance in the witness box, and who would have made himself liable to severer penalties still had he acknowledged that the employment of force was his own idea entirely. We should have thought that the statement of the witness would, in the eyes of any honourable man, have invalidated his testimony at once; we should have thought that a missionary at least would have found it a good opportunity to shoe the Chinese officials that such behaviour to  a man, who said he only acted on the orders of his superior, could not be tolerated by a civilised judge; and to add to the enormity of the proceeding, the very official who had caused the man to be cruelly beaten was allowed to sit in the Court and intimidate him by his presence during the delivery of his evidence.

     Without going farther into the question of the guilt or innocence of Burnett, we wish to show how strongly this case impugns the existing system of Consular jurisdiction.  It is supposed to be the inalienable right of an Anglo-Saxon to be tried by a jury of his equals at the assize-town nearest to the place where the alleged crime was committed.  But there being no court at all at Wenchow, and not a sufficient number of American residents at Ningpo to form a jury, he had to be tried by a missionary Consul as a judge with a bench of assessors constituted as we have already described.  Surely, if his trial could not be held at Wenchow, he might have been brought to Shanghai, where he would have had the advantage of a legally trained judge, and where the technical points raised by his Counsel would at least have been weighed with the care that some of them must have merited.

   It is obvious that had he had a jury, he must have been acquitted, for all six of the assessors pronounced in his favour.  Much time and expense would have been saved, for we know b y the sad experience of courts-martial how dilatory and costly amateur Courts always contrive to be.  Society in China would have avoided the scandal of seeing three ministers of the Gospel engaged in trying a case so uncongenial to their calling and profession, and substantial justice would probably have been done without the necessity of two separate trials and two appeals to Peking.

   In an able pamphlet published some short time since by Mr. J. J. Henderson, he advocated the appointment of international Courts, such as exist in Egypt, but the difficulty in this course lies in the fact that the interests of Great Britain in China are so much larger than those of all other nations combined, that to be fairly representative, the Courts would have to be almost exclusively English.

   At any rate we may hope that the present case will draw the attention of the United States Government to the undesirability of appointing missionaries as Consuls, or of allowing judicial powers to any representatives of their country who have no had a legal training.

 

The North China Herald, 28 October 1880

EXTRA-TERRITORIALITY.

WHILE so much of the world as can takes holiday in the European summer, there is a large portion that devotes itself to self-improvement.  For them the various congresses hold their annual assemblies; some go to antiquarian meetings, where in fine weather old churches are described, and flirting and lunching divide the time with the reading of papers on antiquities as veracious so that described in the early pages of Pickwick.  The votaries of science flock to the meeting of the British Association for the Advancement of Science, and hear and discuss papers in every branch of philosophy.  The reformers of all things human meet together in a Social Science Congress, where nothing that affects humanity is too small or too majestic for the touch of those who would put the world in leading-strings, could they only find a heedful and teachable generation.

   Among the most valuable is the annual sitting of the International law Association, which is attended by jurists of all nations, anxious to assimilate as far as possible the laws and customs of civilised peoples, and we propose today to draw attention to two of the papers read at the latte sitting, which was held this year at Berne.

   The papers were on the subject of extra-territoriality, or the right of foreign residents in uncivilised countries to be amenable only to their own authorities.  In the Turkish possessions in the Levant under what are known as the capitulations, the extra-territoriality, now subsisting in China and Japan, has long been established; and it was on "The Consular Jurisdiction in the Levant" that Sir Travers Twiss read the former paper.  He showed that this dated from the ninth century, at which time, under the Caliph Haroun al Raschid, the starting-point in this jurisdiction may be assumed to have taken place.  These privileges have been confirmed at successive intervals down to the present day, their chief cause being the impossibility of intermixing Christian and Mahomedan races.  Modern doctrinaires are supposed to be only too anxious to give up these privileges, heedless of the danger to which their nationals are exposed, or rather with the feeling that a man who elects to exile himself to a barbarous nation must there take his chance; but so eminent an authority as Sir Travers Twiss came to the conclusion that in a country where the evidence of a Christian is of no validity, if contradicted by that of a Mahomedan, it would be undesirable to abolish or restrict the jurisdiction of our Consular Courts.

   China, which comes next to Turkey in feeling the irksomeness of extraterritoriality, seems not to have been represented at the Conference, but the question was taken up on behalf of Japan by Mr. Iriye, a Japanese, but a member of the Middle temple, London.  He naturally objected to the way in which his own country is treated.  He argued that the origin of the concession granted to foreigners, the great progress made in his country, the absence of all fanaticism, the power of the central Government, which was felt throughout the whole Empire, and other considerations, pointed to distinct characteristics in Consular jurisdiction in Japan. His contention was that the treaties which gave foreign Powers the right to try their own citizens, laid on them also the duty of punishing them; and he complained that while Japan had filled her part of the bargain, foreign Powers had not been equally honest.

   The Consular judges are many of them palpably incompetent; in cases involving different nationalities, no power exists in the Court of one nation to procure evidence from the subjects of a different nation; and a Japanese, who is plaintiff in a Consular Court and loses his suit, has to appeal to a higher Court on the other side of the world.  Moreover, some Consuls so far strain the treaties as to hold that their nationals are outside the operation of all Japanese laws, criminal, administrative or municipal, and allow them to set at defiance, to the injury of the Japanese Government, such purely administrative measures as game laws and quarantine regulations. 

   He was of opinion that Japan had proved herself sufficiently advanced in modern ways to be allowed jurisdiction over all residents ion her soil whatever their nationality; or that if this was impossible as long as the present treaties existed, foreign Powers should be obliged to institute proper Courts, and no longer outrage the soil by the present maladministration of Consuls' justice.

   As we have already mentioned, there was no Chinaman present to argue for his own country.  We know, however, that the Chinese Government is greatly exercised by the question, and that this very extraterritoriality is one of the stock arguments against the farther opening up of the country.  But whatever may be done in Japan, where at any rate the semblance of a civilised judicial system has been introduced, it is obvious that a great change must come over the Chinese judicature before foreigners can be trusted to its tender mercies. Even the most advanced radical would pause before allowing his fellow-subjects to be taken before Courts in which no lawyers are allowed, in which torture is still employed to extract evidence, and in which it is no secret that the amount of the pecuniary gratification offered to the magistrate is the weightiest element in the formation of the judgment.  It is no doubt galling to a civilisation more ancient than that of Western nations to be treated as too barbarous to be trusted with the lives and property of a small band of settlers who visit the country only for gain; and it is perhaps fortunate for us that in making their treaties our Governments had before them the precedent of the Levant.

   It has been the policy of Japan of late years to receive distinguished foreigners with so much courtesy and attention that they go home declaring that the country is already on a par with Europe and the United States; and Mr. Iriye may possibly before many years see his wishes fulfilled.  China, fortunately for us, has been guided by no such policy, and we may feel assured that it will not be years but decades before the English Supreme Court and the Court-rooms of the various Consulates are closed in Shanghai by the abolition of their jurisdiction.

 

Daily Alta California, 9 January 1881

The queerness of our Consular Courts in China is being discussed in Congress.  The work of improving our diplomatic relations with the Flowery Kingdom has been well begun, and some improvement in the Consular Court system should promptly follow.

 

New Zealand Herald, 13 September 1884

Probably, however, the most striking instance cited by the writers is a narrative supplied by Sir Edmund Hornby, late Chief Judge of the Supreme Consular Court of China and Japan, of the apparition to him one night in 1875 or 1876 of a journalist whom he was in the habit of supplying in advance with written copies of his judgments.

 

North China Herald, 6 April 1888
THE PRESENTATION TO MR. HANNEN.
  On Saturday evening (24th) a farewell entertainment to Mr. Justice and Mrs. Hannen, who are about to leave Japan for some time, was given in the Yokohama Public Hall, . .  .  .  

 

North China Herald, 13 April 1888

  The news was received here by wire on Tuesday morning of the death of Mr. Russell B. Robertson, C.M.G., H.M.'s Consul, and Acting Judge of the British Court, Yokohama.  

 

North China Herald, 28 April 1888
 We understand that Mr. Challoner Alabaster, H.M.'s Consul at Canton, has definitely declined the post of Consul-General at Seoul, Corea, offered to him by Sir John Walsham.  Canton is still a more important post, qua British interests, than Seoul, and we are glad that Mr. Alabaster has elected to stay there.

 

North China Herald, 28 April 1888
HORROBLE SENTENCES IN THE CITY.
WE mentioned some days ago an old prisoner who had levied blackmail on a new prisoner in the Chehsien's jail, and had flogged the new prisoner for refusing to pay, and also a man who was supposed to have informed the Chehsien of these proceedings.

 

North China Herald, 15 June 1888
MISCELLANEOUS.
MR. TARRING ON EXTRATERRITORIALITY.
It is many years now since Come Along, the 'Clinique of Sangre-pur' received from the Mysterious Being he wooed the reply enshrined in Mr. Hopkin's deathless verse:-
  "What tome or treatise can explain
               Thy individuality?
     "I spring from Treaties," murmured back         
                 Extraterritoriality."


North China Herald, 28 October 1888
ARREST OF THE AGENT OF THE HONGKONG AND SHANGHAI BANK IN MANILA.
  News has, we hear, been received in Hongkong of a case of extraordinary highhandedness on the part of the Manila authorities in which the honour of the British nation is concerned. The matter is still before the Spanish Court, and we are not at liberty to write fully about it.  We may, however, without any abuse of confidence and without prejudicing the issue now involved, state the following facts.
  It was brought to the attention of the Manila Government by, it is supposed, a half-caste clerk discharged from the Bank, that the agent was sending cheques to Amoy without being stamped.  The Manila authorities, with the arbitrariness that characterizes all their doings, without much time for consideration and without it would appear, studying their own laws, put the agent Mr. Townsend, under arrest.  They did not, it is true, throw him into the loathsome Manila prisons, but they made him a prisoner in his own house and kept him for about a week in strict surveillance so that he could not move from his rooms.  
  The charge preferred against him was fraud in connection with the stamp duties.  The Agent maintained that the Spanish law did not require him to stamp the Amoy cheques, and there is every reason to believe his contention is right.  At any rate, the Manila Government, owing to steps taken by the British Consul, who, we believe, energetically espoused the cause of his illegally-imprisoned compatriot, released Mr. Townsend from arrest on the 4th inst., without requiring him to give security, the criminal charge against him having been withdrawn.  We hear on good authority that the Spanish authorities were utterly wrong in the action they took, as their withdrawal of the case seems to show they subsequently became aware of themselves.  We hear it is stated that the British Consul is to demand an indemnity for the illegal arrest, but cannot speak with confidence as yet of the action he had taken, or may take.
  It may surprise all but those acquainted with Manila that this affair, occurring at the end of last month, was not known in Hongkong sooner.  But if one remembers that liberty is unknown in Manila, that the press is completely muzzled and that now a practical censorship over telegrams has been established, there is no cause to wonder at the secrecy.
  It is expected that the settlement of the case will be left over till the arrival of the new President of the Audiencia, who is expected to arrive about the 23rd of this month. - China Mail.

 

North China Herald,  May 1889
THE ACTION AGAINST THE HONGKONG AND SHANGHAI BANK IN MANILA.
The Manila correspondent of the Free Press writes: - The affairs of the Hongkong and Shanghai Bank are occupying the mind of the public a great deal.  On Saturday (16th) Jurado and Co. claimed a sum of $320,000 in payment of its claims against the bank, which the Bank refuses to pay.  As soon as the decision was known, all the funds in the bank were seized, so that no transaction of any kind could be carried on.  This state of things went on till Tuesday, when after the bank had deposited, by instruction from their legal advisers, a sum of $320,000, first in the Banco Filipino which sum was afterwards withdrawn, and further deposited in the Casa de Depositos, business was resumed, and the panic created by this disturbance of the ordinary course of business, began to subside.
  The papers again had a rumour, the day before yesterday, that a new claim had been presented to the bank by the same Jurado and Co., for over $800,000, this, however, was contradicted in one of yesterday's papers, which professes to know better than its neighbours, but which continues to say that Jurado and Co. have given notice that they will shortly claim from the Bank $600,000.
  It is very hard that the Bank, (which for the Law here has no personalty, owing, the latter says, to the bank not having complied with all the regulations necessary when establishing itself in Manila) should still be considered so much of a personalty that money can be claimed from it, and that it should be held responsible for the same.
  It is thought very regrettable by many amongst the thinking Spaniards that the Bank should not have taken stronger measures in the beginning, and now some legal men think it would be wiser for the bank to close here and try and get the matter settled in Spain, where, at any rate, the issue would be sooner decided, and where all concerned could be cited by a Court of Law for the discussion of the whole affair. Others again think that the best solution of the difficulty would be for the Bank to make a compromise, and hand over part of the sum demanded by Jurado and Co., and put an end to an annoying business. - But there are so many different versions told of the affair and so many different opinions concerning it that it is almost impossible to arrive at the truth of the story, or the best solution of the difficulty.
  It is thought extremely hard and unfair that the Bank, which was founded here on certain principles according to the advice and approval of well-known and reliable local legal advisers, should now be subjected to all the annoyance and unpleasantness from which it is suffering, having acted throughout with the traditional honour and honesty of a respectable English enterprise.
 

North China Herald, 4 October 1889

MISCELLANEOUS.

THE NEW U.S. CONSUL-GENERAL AT SHANGHAI.

   "Very pleased to give you any information that you think may be of interest," said Consul Joseph A. Leonard to a representative of the North China Daily News,  .  .  . 

 

Daily Alta California, 13 November 1889

THE JAPAN TREATY.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School