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Colonial Cases

Newspaper commentary China 1940-1949

The Courier-Mail (Brisbane, Australia), 18 December 1940

MORE MURDERS IN SHANGHAI.

... The latest victim was a Japanese medical sergeant who was shot in the back, allegedly by a Chinese, while vaccinating another Chinese. ...

Mr. E. Dhooge, 70, legal adviser to the French Municipal Council at Shanghai, was shot dead by a Chinese ... Mr. Dhooge was a judge of the French Consular Court till 1932. ...

 

The Times, 10 April 1941

HELENA DICKINSON MANDELL, deceased, Tientsin; PROBATE.

 

The Sydney Morning Herald, 16 September 1941

RUSSIAN SHOT DEAD IN SHANGHAI.

LONDON, Sept. 13.

The chairman of the White Russian Citizens' Committee, Mr. E. A. Ivanov, was shot dead in the International Settlement at Shanghai this afternoon by two Chinese gunmen.  His predecessor was shot dead by assassins last year.  Mr. Ivanov was a former Judge of the Imperial Russian Consular Court.

 

The Times (London), Tuesday, 12 January, 1943.
CHINA IN THE NEW AGE.
BRINGING TO AN END THE UNEQUAL TREATIES.
A TIMELY DECISION.
From Our Chungking Correspondent.
  The announcement of the British and American decision to relinquish their extraterritorial rights in China will be acclaimed throughout China. The unique rights enjoyed by foreign nationals for the past 100 years have long been felt to be wholly incompatible  with the growing national consciousness of the Chinese and with the professed friendship of the Western Powers.
.  .  .  
  Extraterritoriality, or consular jurisdiction as it is sometimes called, was first secured by treaties concluded with China by Britain, America, and France between 1842 and 1844. It removed the foreign national and his property from the jurisdiction of the Chinese courts and conferred on him the right to be tried or sued only in accordance with his own national laws, by officials of his own nationality, in courts specially set up in China for the purpose.
CRIMINAL LAW.
  Extraterritoriality was originally demanded not for any fear that Chinese courts would favour Chinese nationals to the detriment of the foreigner, but because Western ideas of justice were not entirely in agreement with those of the Chinese, particularly in respect of criminal law. First, it was thought that the scale of punishments as laid down in the Chinese criminal code was in certain aspects much too severe; for example, under the Imperial Government no distinction was made between degrees of murder and manslaughter. The ancient Imperial Mandate unequivocally demanded "Ahjen Tsai" (he who kills must die). Secondly, Westerners were unwilling to agree to the admissibility of outmoded methods of gathering evidence, which included torture and unwarranted disregard of personal rights.
.  .  .  
  Of the original nations enjoying extraterritorial rights, Germany, Austria, and Hungary lost theirs as the result of the last war; Soviet Russia gave up hers voluntarily; Mexico, Portugal, Belgium and Norway have already given notice of relinquishment. Though official ratification by the Netherlands Government is still awaited. Spain and Denmark have enjoyed no extraterritorial rights since the withdrawal of their diplomatic and consular officials from China.
  This leaves Frances, Brazil, and Peru the only nations still enjoying extraterritoriality. The treaties with these last three have expired, but are still operative pending the conclusion of new ones.

[Also mentioned in 'Last Court in Egypt' - see Egypt, Alexandria: "Our court in China have have been closed de jure in 1943, but de facto it had been closed well over a year before that.  The Japanese came in at the very beginning of 1942 and the court completely ceased to function from the time the Japanese came in,"]

 

 

The London Gazette, page 2331.

TUESDAY, 25 MAY, 1943
At the Court at Buckingham Palace, The 22nd day of March, 1943.
PRESENT,
The KING'S Most Excellent Majesty In Council.
WHEREAS by Treaty, grant, usage, sufferance and other lawful means His
Majesty The King has jurisdiction within the dominions of the Republic of China:
And whereas by a Treaty signed at Chungking on the 11th day of January, 1943, His Majesty has undertaken to surrender the jurisdiction aforesaid, and it is expedient to provide for the termination of the said jurisdiction as from the date on which the said Treaty comes into force and such other matters as arise in connexion with the said termination:
  And whereas the Governments of Canada, the Commonwealth of Australia,
New Zealand, the Union of South Africa and of India have requested and consented to the making of this Order as regards those interests with which they are respectively concerned:
  Now, therefore, His Majesty by virtue and in exercise of the powers in this behalf by the Foreign Jurisdiction Acts, 1890 and1913 (53 and 54 Vic. c. 37, and 3 and 4 Geo. V. c. 16) and the Merchant Shipping Act, 1894 (57-58 Vict. c. 60) or otherwise in His Majesty vested, is pleased, by and with the
Advice of His Privy Council to order, and it is hereby ordered, as follows:
-
Article I.
  (1) This Order may be cited as the China Order in Council, 1943. The limits of this Order are the dominions of the Republic of China including places within the limits of the China Kashgar Order in Council, 1920.
  (2) This Order shall take effect on the date of the exchange of ratifications of the Treaty signed on behalf of His Majesty at Chungking on the 11th day of January, 1943. The Secretary of State shall cause a Notice of this date to be published in the London Gazette.
.  .  .  
Article 3.
(1) All courts established under the principal Order shall be closed on the date of the coming into force of this Order and the appointment of the Judge, Assistant Judge, Acting Judge and all officers of the said courts shall terminate on the same date.
(2) The Government of the Republic of China having agreed by an exchange of Notes which is to be considered as integral part of the Treaty signed at Chungking on the nth January, 1943, that The Orders, decrees, judgments and other Acts of any of His Majesty's courts in China shall be considered as res judicata and shall when necessary be enforced by the Chinese
authorities and that any cases pending before any of His Majesty's courts in
China at the time of the coming into force of the Treaty shall, if the plaintiff or petitioner so desires, be remitted to the appropriate courts of the Government of the Republic of China, which shall proceed to dispose of them as expeditiously as possible and in so doing shall, so far as practicable, apply the law which the court of His Majesty "would have applied", the records of the said courts shall be retained in China for not less than ten years after the date on which the Order takes effect and certified copies thereof shall, on the application of any interested party or of the Government of the Republic
of China or any Chinese court having jurisdiction in the matter, be supplied
in accordance with such instructions as may be issued for this purpose by the
Secretary of State.
(3) Nothing in this article shall be deemed to prevent the performance by Consular Officers of His Majesty in China, in accordance with the instructions of the Secretary of State, of such duties and service in connexion with the administration of estates of deceased persons as are permissible under the laws of the Republic of China.
.  .  .  .

 

The Argus (Melbourne, Australia), 1 September 1945

CHINA'S NEW POST WAR TRUST.

Surrender by the Other Powers of Their "Extraterritorial" Rights Removed a Grievance, But Places Great Responsibility in New Hands.

By Reed Porter.

THERE is one New Order of the Pacific which is to remain - despite Japan's defeat.  It affects you and me and every other Briton, American, and Dutchman who may, for business reasons or pleasure, visit China from now on.  Our status in hat country before this war started, and even up to a couple of years ago, was based upon an extraordinary privilege - "extraterritoriality" - a privilege which gave us the right to live in China and yet be subject to our own country's laws, whether we were British, American, Dutch, or any other favoured nation.

That state of affairs no longer exists.  From now on we are all under Chinese law, when in China.  Extraterritoriality has ended with a voluntary gesture on the part of the powers concerned.  China has been accepted into the family of the United Nations on a basis of equality, and her sovereign rights have been restored to her after nearly a century.  Her last cause of complaint has been removed.  It is now up to China to prove herself worthy of the trust which the powers have thus placed in her.

Introduced at the time of the "gun-boat policy," extraterritoriality outgrew its necessity, and desirability, several years ago.  It was an emergency measure ...

The exercise of extraterritorial privileges by foreigners in China created a judicial set-up probably without parallel in the world.  It necessitated the establishment of separate consular courts in each of the treaty ports, with a special set of King's Regulations to be administered.  Great Britain, for example, allowed juries of six instead of the customary 12, the small British population available for jury purposes no doubt causing that change.  Otherwise Court procedure differed little from that at Home, or at any other British centre of justice.  There was always a High Court and Lower Court judge (designated assistant judge), a couple of magistrates officiating in the Traffic Court or for summary actions. 

A judge had to be well up in every branch of the law, for everything from divorce to capital crime came before him.  Twice a year his Honour went on circuit from his base at Shanghai, clearing up court calendars on a round of visits to British courts in the other treaty ports.  Judges of other nationalities did likewise.  Hong Kong was the exception.  There the British Colony administered its own affairs.  However, Hong Kong judges frequently came to Shanghai to sit on Courts of Appeal.

...

The queerest Courts in all the world arose out of the extraterritorial system, when the International Mixed Courts (Shanghai, Tientsin, Hankow, &c.) were created ...

 

The Mail (Adelaide), 8 December 1945

Warlord's Chance.

THE queerest courts in all the world arose out of the extra-territorial system when the international mixed courts (Shanghai, Tientsin, Hankow, &c.) were created to cope with crime and law enforcement involving Chinese within the areas controlled by foreigners.

   China agreed to foreign jurisdiction over Chinese within such areas, but reserved the sovereign right to execute her own countrymen whenever the foreign court rendered such a verdict.

   Condemned prisoners were therefore Black Maria'd into Chinese official hands, a receipt was taken for the prisoner, who was then despatched according to Chinese methods.  That was until one or two supposedly "dead" desperadoes came to light later under the fingerprint system, and inquiries uncovered a lucrative "racket."  Thereafter precautions were taken to see that the executions were carried out as ordered.

   The Civil War period (1920-25) subjected the extraterritorial system to severe strain when battling war lords used the foreign concessions as base headquarters and shelter spots at will.  Clad in mufti, and occupying luxurious suites in leading hotels, it was difficult to interfere without being accused of taking sides in these disputes.  Classic example of this type was provided by Japanese puppet Wang Ching-wei, from 1937 onwards.  This opponent of the Chiang Kai-shek regime, whose official headquarters were in Nanking, established subsidiary quarters in the French Concession (Shanghai), where he converted a large mansion into a citadel and garrisoned it with an abundant supply of puppet troops and  weapons.  He and his men came and went while the French local government stood helplessly by.

PAST AND FUTURE.

IT is important to point out that at no time during the existence of extra-territoriality did the Powers attempt to impose foreign laws upon the Chinese even upon those Chinese who broke the law within the foreign concessions or settlement.

   However, the Chinese civil and criminal code is widely different from our own in many respects, and some alterations are likely to be made as part of the price China is willing to pay for the abolition of the system.

   Basic reasons for the introduction of these special privileges for foreigners living in China were the unsettled state of affairs in that country and the need to inspire sufficient confidence into would-be traders and merchants required to expand the trade which was our reason for forcing open China's ports in the first place.

   The present nationalist Government of China has been in continuous office since 1927, and during those 18 years had evidently satisfied the Powers that it can be trusted to take over control of foreign lives, property, and investments.

   Reversion to Chinese control of the numerous foreign concessions and international settlements, withdrawal of foreign military and naval protection and other evidences of infringement of China's sovereign rights represent a tremendous "face" gain for the Chiang Kai-shek regime.

   Relations between the Nationalist Government and the Western Powers throughout those 18 years have always been harmonious, and while abolition of extra-territoriality was made without undue pressure, this was inevitable, since the Cairo conference, and the gesture became more gracious by being voluntary.

 

The Deseret News, 4 January 1946 [Google News Archive]

ARREST IN SHANGHAI BRINGS CHINA PROTEST TO FRANCE.

SHANGHAI - (AP) - The arrest by French authorities here of an alleged French Nazi and his removal from Shanghai on a French warship drew sharp protests from Chinese already perturbed by France's delay in relinquishing extraterritorial rights in China.

   Dr. Lu Hui-Chun of the Chinese ministry of foreign affairs protested formally to French Consul-General M. J. Filliol, declaring that extra-territoriality had been abolished in China.  He demanded that the French turn their prisoner over to Chinese authorities "to be dealt with by the Chinese judiciary according to law."

   The prisoner in question, Paul Francois Carcopino Tosoli, a Corsican, was charged with transmitting pro-German propaganda from Shanghai.  The French put him aboard the cruiser Emilie Bertin, which departed yesterday for Saigon in the face of last-minute Chinese demands to "stop the boat."

   Dr. Lu in his protest declared that "the French consul-general is to be held responsible for this infringement of Chinese sovereignty, which affects Sino-French relationships."  He said the French consular court here must be closed immediately.

 

The Spokesman Review, 5 Jan. 1946 [Google News Archive.]

FRANCE CLINGS TO CONCESSION.

IMPERIAL DREAMS GUIDE HER COURSE IN CHINA.

By JAMES D. WHITE.

Associated Press Staff Writer.

SAN FRANCISCO, Jan. 4. (AP) - Imperial France is back in the news.

   It develops that France is hanging on to her famous concession in Shanghai.  The reason is that she has not yet negotiated a treaty with China giving up extraterritorial rights in China, as the United States and Britain did in 1943.

   Delay on the point partly may be ascribed to the diplomatic confusion which existed along with the old Vichy regime in France.  This regime did give up France's special rights in China, but to the Japanese-sponsored puppet Chinese regime of Wang Ching-Wei.  The De Gaulle government refuses to recognize this act and insists upon negotiating its own treaty.

Court Still Functions.

   When the Chinese returned to Shanghai after Japan's surrender they took over the former international settlement and allowed the impression to get around that they also took back the big French concession.  But today's dispatches indicate that the French consular court (one of the features of the extraterritorial system) still functions, although the French consul says he will try to limit its activities until a new Sino-French treaty clears the air.

   The question comes up as the Chinese protest the removal on a French warship of a French national charged with pro-German activities during the war.  The French are taking him to Saigon for trial.

   The local representative of the Chinese foreign office, Dr. Lu Hui-chun, has protested this formally and demanded that the French turn the alleged traitor over to the Chinese "to be dealt with by Chinese judicial authorities according to law," and he means Chinese law, not French.  The ship left with him on board. ...

 

The Argus (Melbourne, Australia), 23 March 1946

SHANGHAI BECOMES CHINESE AGAIN.

Jewish, Russian Refugees Flock to Allied Consulate.

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