In what respect were qing china and the ottoman empire similar in the nineteenth century?

Notes

1 See Li Zhaojie ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 22.

2 ‘The Qing state, stretching from the county magistrate at the bottom to the emperor and his Grand Council at the top, was integrated, bureaucratic, and run by a highly educated elite in a large part (but by no means exclusively) chosen through the examination system. At the local level, officials were overworked, understaffed, and embattled, but there was no question that officials were ultimately responsible to Beijing.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 457 (emphasis added).

3 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 164.

4 See Li Zhaojie, ‘ Traditional Chinese World Order’,  Chinese Journal of International Law 1 (2002): 36.

5 In many ways, Confucianism can be considered an apologist philosophy, as it provided the basis for maintaining a remarkably hierarchical and anti-egalitarian social order. For instance, Confucius advocated that: ‘The duties of universal obligation are five and the virtues wherewith they are practised are three. The duties are those between sovereign and minister, between father and son, between husband and wife, between elder brother and younger, and those belonging to the intercourse of friends. Those five are the duties of universal obligation. Knowledge, magnanimity, and energy, these three, are the virtues universally binding. And the means by which they carry the duties into practise is singleness.’ In: Confucius, The Doctrine of the Mean. (University of Adelaide Library, 2008). 20: 8.

6  See Li Zhaojie, ‘ Traditional Chinese World Order, ‘ Chinese Journal of InternationalLaw 1 (2002): 37.

7 Ibid: 39.

8 In Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases: With Historical, Social, and Juridical Commentaries. (Harvard University Press, 1967). 4.

9 On the Treaty of Nerchinsk of 1689 between the Russian and the Chinese Empires, see V. S. Frank, ‘The Territorial Terms of the Sino-Russian Treaty of Nerchinsk, 1689’, Pacific Historical Review 16, no. 3 (1947): 265-270. On the Treaty of Kiakhta of 1727, see generally, Richard Lotspeich, ‘Perspectives on the Economic Relations between China and Russia’, Journal of Contemporary Asia 36, no. 1 (2006): 48–74.

10 See Jianfu Chen, ‘Modernisation, Westernisation, and Globalisation: Legal Transplant in China’, in One Country, Two Systems, Three Legal Orders-Perspectives of Evolution. (Berlin, Heidelberg: 2009). 110.

11 For a detailed account of the Chinese pluralistic internal legal order, see Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012). 15–29.

12 See Derk Bodde and Clarence Morris. Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases: with Historical, Social, and Juridical Commentaries. (Harvard University Press, 1967). Preface.

13  Ibid.

14 This case is taken from Bodde and Morris’ outstanding collection of cases adjudicated during the late Qing Empire. Ibid:  276–278.

15 These are just a few examples inspired by the much wider illustrations provided by Bodde and Morris, ibid.

16 Ibid. This also explains why the majority of contemporary scholars tend to argue that China lacked a formal system of civil law, properly speaking. As a matter of fact, the many officialoffences were indeed redressed through various forms of corporal punishment or detention. See Li Zhaojie, ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 41 –‘Firstly, until the beginning of this century, there had existed no jurisprudential distinction between criminal law and civil law. The written codes as well as decrees addressed mainly matters which would be classified under criminal law and administrative law in the light of modern standard.’ See also George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 303–304: ‘On the other hand, as far as civil cases were concerned, it should be remembered that the Chinese Code was not concerned with private disputes, especially between traders, and these, even where Chinese merchants alone were concerned, were habitually settled by the merchant guilds in accordance with customs of great antiquity.’

17 See Bodde and Morris (1967): supra at 4.

18 Ibid.

19 In Li Zhaojie, ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 40.

20  Ibid.

21 See Benjamin Isadore Schwartz, The World of Thought in Ancient China. (Harvard University Press, 2009). 32. The li is the set of Confucian traditional ritual norms.

22 ‘Before the nineteenth century, Siam, Qing China, and the Ottoman Empire were all complex, compound states in which external boundaries were poorly defined, and near the frontier the use of indirect rule and suzerain tributary relationships with local power holders were common.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’,  Journal of World History 15, n. 4 (2004): 475.

23 See, generally, Hosea Ballou Morse, The Chronicles of the East India Company, Trading to China, 5 Volumes. (Cambridge: Oxford University Press 9, 1926); Kirti N. Chaudhuri, The Trading World of Asia and the English East India Company: 1660–1760. (Cambridge University Press, 2006); Anthony Farrington, Trading Places: The East India Company and Asia 1600–1834. (British Library Board, 2002).

24 On China's involvement in the tributary system and other relations with neighbouring polities, see the essays in John King Fairbank and Ta-tuan Chen, The Chinese World Order: Traditional China's Foreign Relations. Vol. 32. (Harvard University Press, 1968); and, from a different perspective, James Louis Hevia, Cherishing Man from Afar: Quing Guest Ritual and the Macartney Embassy of 1793. (Duke University Press, 1995). 29–56.

25 See Li Zhaojie, ‘Traditional Chinese World Order’,  Chinese Journal of International Law 1 (2002): 26.

26 Zhaojie in particular argues that the tributary system was not merely an hegemonic institution, but a complex set of diplomatic and ritual arrangements, whereby ‘ n addition to the enormous cost for the operation of the [tributary] system, the Chinese emperor's gifts were usually more valuable than the tribute he received.’ Ibid: 55.

27 Liu, however, argues that the early origins of extraterritorial jurisdiction in China go back to the Imperial trade with Russia in seventeenth century. Accordingly, he refers to the Treaties of Nipchu or Nerchinsk concluded in 1689, Article 4 of which stated: ‘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 country and handed over to the chief local authority for punishment.’ Similarly, he invokes the 1727 Treaty of Kiakhta, which allegedly contains extraterritorial provisions for the suppression of brigandage along the borders. See Liu, Shih Shun. Extraterritoriality: Its Rise and Decline (1925). New York: AMS Press, 1969: 37. It is difficult, however, to classify such instruments as institutionalizing extraterritorial consular jurisdiction in the later meaning of the term. In fact, they provided privileges of a reciprocal nature, no consulates were ever mentioned or established and, instead, they seem to have aimed at establishing a sort of ‘extradition system’ for offences committed along the common borders.

28 ‘Relations with the Ottoman Empire offered European powers a model of how to carry on relations with large, non-Christian Eurasian governments. This model was then pressed into use in the Treaty of Nanking that ended the Opium War, which in turn formed the basis for treaties with Siam and Japan.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century,’ Journal of World History 15, n. 4 (2004): 447.

29 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 62; George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 300.

30 See Li Chen, ‘Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the Lady Hughes Controversy in 1784, Law and History Review 27, no. 1 (2009): 1–53; See also Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012) 43; Koo (1912), Ibid: 69.

31 For a detailed description of the factual background of the case, see Peter Auber, China: An Outline of its Government, Laws, and Policy: And of the British and Foreign Embassies to, and Intercourse with, that Empire. (Parbury: Allen and Company, 1834). 181–187.

32 In Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 71.

33 Koo, Ibid: 62 – ‘Alien traders, particularly the British, early began to withdraw themselves, by open defiance, from the operation of the local laws, and that to a considerable degree, they were successful in pursuing their course of sheer contumacy’. For references to similar cases following the Lady Hughes controversy, wherein foreign offenders successfully managed to avoid Chinese adjudication, see Koo, Ibid: 71–79.

34 ‘It was therefore only in homicide cases where the finger of suspicion pointed in the foreigner’s direction that the Canton officials made a claim for surrender.’ In George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 303.

35 See Act of the British Parliament to Regulate the Trade to China and India, 28 August 1833. In British and Foreign StatePapers 1832–1833. H.M. Stationery Office, 1836: 256.

36 See Act of the British Parliament to Regulate the Trade to China and India, 28 August 1833, Ibid. Article VI – ‘And be it enacted that it shall and may be lawful for His Majesty by any such Order or Orders Commission or Commissions as to His Majesty in Council shall appear expedient and salutary to give to the said Superintendents or any of them Powers and Authorities over and in respect of the Trade and Commerce of His Majesty's Subjects within any part of the said Dominions and to make and issue Directions and Regulations touching the said Trade and Commerce and for the government of His Majesty's Subjects within the said Dominions and to impose penalties forfeitures or imprisonments for the breach of any such Directions or Regulations to be enforced in such manner as in the said Order or Orders shall be specified and to create a Court of Justice with Criminal and Admiralty Jurisdiction for the trial of offences committed by His Majesty’s Subjects within the said Dominions and the Ports and Havens thereof and on the high seas within 100 miles of the Coast of China and to appoint 1 of the Superintendents herein before mentioned to be the Officer to hold such Court and other Officers for executing the Process thereof and to grant such Salaries to such Officers as to His Majesty in Council shall appear reasonable.’ (Emphasis added).

37 In Wellington Koo. The Status of Aliens in China. (Columbia University, 1912). 63.

38 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012). 47; George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 307.

39 Keeton, Ibid. See also, Wu Yixiong, ‘The Development and Early Practice of British Extraterritoriality in China before the Opium War’, Historical Research 4 (2006).

40 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012). 57.

41 Ibid.

42 Ibid. See also Henry Dundas. Napier, Field-Marshal Lord Napier of Magdala. (London: E. Arnold & Company, 1927).

43 See Harry Gelber, Opium, Soldiers and Evangelicals: England’s 1840–42 War with China, and its Aftermath. (New York: Palgrave Macmillan, 2004). 11.

44 Cited in Hosea Ballou Morse, ‘The Period of Conflict 1834–1860’, in The International Relations of the Chinese Empire. Vol. 1. (Longmans, Green, and Company, 1910). 142.

45 ‘It was only after the termination of the Opium War in 1842 that extraterritoriality was formally introduced into China by a treaty premised upon her independence and sovereignty.’ See Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 41. See also Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 46–52 ; Pär Kristoffer Cassel, ‘Excavating Extraterritoriality: The “Judicial Sub-Prefect” as a Prototype for the Mixed Court in Shanghai’, Late Imperial China 24, no. 2 (2003): 156 – 182; John Wu, ‘The Problem of Extraterritoriality in China’, in Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969. (American Society of International Law, 1930). Vol. 24: 182-194.  On the Opium War more generally, see Arthur Waley, The Opium War through Chinese Eyes. (Stanford University Press, 1968); Harry Gelber, Opium, Soldiers and Evangelicals: England’s 1840–42 war with China, and its Aftermath. (New York: Palgrave Macmillan, 2004); Peter Ward Fay, Opium War, 1840–1842: Barbarians in the Celestial Empire in the Early Part of the Nineteenth Century and the War by Which They Forced Her Gates Ajar. (UNC Press, 1998); Brian Inglis, The Opium War. (Hodder and Stoughton, 1976); Timothy Brook and Bob Tadashi Wakabayashi, Opium Regimes: China, Britain, and Japan, 1839-1952. (University of California Pr., 2000).

46 See Cassel, Ibid : 49

47 Ibid. On Commissioner Lin, see also Hsin-pao Chang, Commissioner Lin and the Opium War. (Harvard University Press, 1954). Vol. 18.

48 ‘Suppose a man of another country comes to England to trade, he still has to obey English laws; how much more should he obey in China the laws of the Celestial Dynasty?’ Cited in Cassel, Ibid. The translation reported by Liu is: ‘How can you bring the laws of your nation with you to the Celestial Empire?’ In Shih Shun Liu, Extraterritoriality: Its Rise and Decline (New York: AMS Press, 1969). 37.

49 Cassel, Ibid: 50.

50 Treaty of Nanjing (Nanking), 1842. Ratifications exchanged at Hong Kong, 26th June 1843.For the complete text of the treaty, see Inspector General of Customs. Treaties, Conventions, etc., Between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 351. For further reading, see John Ouchterlony, The Chinese War: An Account of all the Operations of the British Forces from the Commencement to the Treaty of Nanking. (Saunders and Otley, 1844); John King Fairbank, ‘Chinese Diplomacy and the Treaty of Nanking, 1842’, The Journal of Modern History 12, no. 1 (1940): 1 – 30; Katherine A. Greenberg, ‘Hong Kong's Future: Can the People’s Republic of China Invalidate the Treaty of Nanking as an Unequal Treaty’, Fordham International Law Journal 7 (1983): 543.

51 See Xinbao Zhang, Commissioner Lin and the Opium War (New York: Norton, 1970): 186.

52 General Regulations, Under Which The British Trade Is To Be Conducted At The Five Ports Of Canton, Amoy, Fuchow, Ningpo, And Shanghai, 1843. For the complete text of the treaty, see Inspector General of Customs. Treaties, Conventions, etc., Between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 338.

53 Article XIII - General Regulations, 1843. Ibid.

54 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 52.

55 See Article XVI. – ‘Chinese subjects who may be guilty of any criminal act towards British subjects shall be arrested and punished by the Chinese authorities according to the Laws of China. British subjects who may commit any crime in China shall be tried and punished by the Consul or other Public Functionary authorized thereto according to the Laws of Great Britain. Justice shall be equitably and impartially administered on both sides.’ Treaty of Tianjin, concluded on 26 June 1858. In: Inspector General of Customs. Treaties, Conventions, etc., between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 404. Compare to Article XVII – ‘A British subject having reason to complain of a Chinese must proceed to the Consulate and state his grievance. The Consul will inquire into the merits of the case, and do his utmost to arrange it amicably. In like manner, if a Chinese have a reason to complain of a British subject, the Consul shall no less listen to his complaint, and endeavour to settle it in a friendly manner. If disputes take place, then he shall request the assistance of the Chinese authorities that they may together examine into the merits of the case and decide it equitably.’ Ibid.

56 Article VIII - ‘The Emperor of China having been graciously pleased to grant to all foreign Countries whose Subjects, or Citizens, have hitherto traded at Canton the privilege of resorting for purposes of Trade to the other four Ports of Fuchow, Araoy, Ningpo and Shanghai, on the same terms as the English, it is further agreed, that should the Emperor hereafter, from any cause whatever, be pleased to grant additional privileges or immunities to any of the subjects or Citizens of such Foreign Countries, the same privileges and immunities will be extended to and enjoyed by British Subjects l but it is to be understood that demands or requests are not, on this plea, to be unnecessarily brought forward.’  Supplementary Treaty Signed By Their Excellences Sir Henry Pottinger And Ki Ying Respectively, On The Part Of The Sovereigns Of Great Britain And China, At The Bogue, 8th October 1843. In Inspector General of Customs. Treaties, Conventions, etc., Between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 393.

57 Article XXI – ‘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 secure the prevention of all controversy and disaffection, justice shall be equitably and impartially administered on both sides’ In Treaty of Wang-Hea Between the United States and the The Ta-Tsing Empire, 1844. See Treaties, Conventions, etc., Between China and Foreign States. Vol. 1, Ibid: 677.

58 The provision on extraterritorial consular jurisdiction read as follows: Article XXVII – ‘Si malheureusement, il s’ élevait quelque rixe ou quelque querelle entre des Français et des Chinois, comme aussi dans le cas où, durant le cours d’ une semblable querelle, ou un plusieurs individus seraient tués ou blessés. soit par des coups de feu soit autrement, les Chinois seront arrêtés pat l’Autorité Chinoise, qui se chargera de les faire examiner et punir, s’il y a lieu, conformément aux lois du pays. Quant aux Français, ils seront arrêtés à la diligence du Consul, et celui-ci prendra toutes les mesures nécessaires pour que les prévenus soient livrés à l’action régulière des lois françaises dans la forme et suivant les dispositions qui seront ultérieurement déterminées par le Gouvernement Français. Il en sera de même en toute circonstance analogue et non prévue dans la présent Convention, le principe étant que, pour la répression des crimes et délits commis par eux en Chine, les Français seront constamment régis par les lois Françaises.’ Treaty of Whampoa between France and China, signed on 24 October 1844. For the original and complete version of the instrument see Treaties, Conventions, etc., Between China and Foreign States. Vol. 1, Ibid: 785.

59 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 55.

60 Ibid.

61 ‘The Treaty of Kuldja gave Russia the right to send consuls to the Chinese treaty ports and provided for mutual extraterritorial rights both for Russians and Qing subjects along the Russo-Chinese border.’ See Cassel, ibid.

62 However, through the ratification of the Shimonoseki Treaty and the Treaty of Commerce and Navigation of 1896, China relinquished extraterritorial rights in Japan while Japan maintained them in China. See Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission Appointed in Pursuance to Resolution v of the Conference on the Limitation of Armaments. Govt. Print. Off., 1926: 9.

63 See Report of the Commission on Extraterritoriality in China, Ibid.

64 ‘Rather than abolishing extraterritoriality, Western states strengthened it in ‘response to non-Western states’ complaints about the “abuses of extraterritoriality” through the revision process.’ In Turan Kayaoğlu Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 153.

65 According to Cassel, the Chinese opposition to extraterritoriality is generally overestimated: ‘It is almost as if nineteenth-century foreign commentators on Chinese affairs acted as ventriloquists of a perceived Chinese resistance to extraterritoriality, reflecting their own anxieties and doubts about the justifiability of a practice that had little foundation in international law.’ See Cassel, Supra: 50. On the contrary, Liu argues that China was very jealous of the territorial application of its laws and extraterritoriality was clearly imposed as a result of the Opium War. See Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969).

66 On the establishment of foreign territorial possessions within the Shanghai area generally, see Linda Cooke Johnson, Shanghai: From Market Town to Treaty Port, 1074–1858. (Stanford University Press, 1995); Arnold Wright, Twentieth Century Impressions of Hong Kong, Shanghai, and Other Treaty Ports of China: Their History, People, Commerce, Industries, and Resources. Vol. 1. (Lloyds Greater Britain publishing Company, 1908); Ernest O. Hauser, Shanghai: City for Sale. (Harcourt, Brace and Co. 1940); Mark Elvin and George William Skinner, eds. The Chinese City Between Two Worlds. (Stanford University Press, 1974); Charles B. Maybon and Jean Fredet. Histoire de la concession française de Changhai. (Plon, 1929); Linda Cooke Johnson, Cities of Jiangnan in Late Imperial China. (Suny Press, 1993).

67 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (York: Oxford University Press, 2012). 63.

68 For a detailed account of the history, establishment, case law and procedure in the Shanghai Mixed Court, see Pär Kristoffer Cassel, ‘Excavating Extraterritoriality: The “Judicial Sub-Prefect” as a Prototype for the Mixed Court in Shanghai’ Late Imperial China 24, no. 2 (2003): 156–182. See also Mark Elvin, ‘The Mixed Court of the International Settlement at Shanghai’, Papers on China 17 (1963): 131–159; Anatol M. Kotenev, Shanghai: Its Mixed Court and Council: Material Relating to the History of the Shanghai Municipal Council and the History, Practice and Statistics of the International Mixed Court. Chinese Modern Law and Shanghai Municipal Land Regulations and By-laws Governing the Life in the Settlement. (Cheng Wen Pub. Co., 1968).

69 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 67.

70 Ibid. See also Edmund Griani Hornby, Sir Edmund Hornby: An Autobiography. (Houghton Mifflin, 1928).

71 See R. J. Forrest’s Second Memorandum to Consul Charles A. Winchester (November 1868). In Foreign Office of Great Britain, Correspondence: 169.

72 See Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844-1942. (Columbia University Press, 2001). 98. See also Teemu Ruskola, ‘Canton is not Boston: The Invention of American Imperial Sovereignty’, American Quarterly 57, no. 3 (2005): 859-884.

73 See Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. (Oxford: Oxford University Press, 2009). 18. For the original source of the study, see Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission appointed in Pursuance to Resolution V of the Conference on the Limitation of Armaments. Govt. Print. Off. 1926.

74  In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). Table 7, 151.

75 Ibid.

76 See Shih Shun Liu, Extraterritoriality: Its Rise and Decline (New York: AMS Press, 1969). 39. It is, however, important to notice that this goes without prejudice to the remarkable exceptions of opinions held by some Western thinkers towards legality in the Far East. Caleb Cushing, for instance, underlined how ‘Europeans and Americans had a vague idea that they ought not to be subject to the local jurisdiction of barbarian Governments, and that the question of jurisdiction depended on the question, whether the country was a civilized one or not; and this erroneous idea confused all their reasoning in opposition to the claims of the Chinese; for it is impossible to deny to China a high degree of civilization, though the civilization is, in many respects, different from ours.’ Cited in Liu, Ibid. On Caleb Cushing, see also Claude M. Fuess, The Life of Caleb Cushing. 2 vols. (New York, 1923); Richard E. Welch, ‘Caleb Cushing's Chinese Mission and the Treaty of Wanghia: A Review’, Oregon Historical Quarterly 58, no. 4 (1957): 328–357.

77 Lassa Oppenheim, International Law. (London: Longmans, Green and Co., 1905). 44.

78 ‘Les Etats ne sont pas égaux entre eux. D'abord, il n'existe aucune égalité de droits entre les Etats civilisés et les états non civilisés ou moins civilisés. Les premiers se gèrent constamment dans leurs rapports avec les seconds comme des supérieurs chargés de la mission de les faire entrer de gré ou de force dans les voies de la civilisation: à cc titre ils s'arrogent envers eux certains droits de direction, de contrôle et parfois d'administration que ceux-ci ne possèdent en aucune façon à leur égard. Entre la condition des uns et la condition des autres, il y a inégalité fragrante et cette inégalité est en la matière la véritable base de leurs relations.’ In Antoine Pillet, Recherches Sur Les Droits Fondamentaux Des Etats Dans L'ordre Des Rapports Internationaux Et Sur La Solution Des Conflits Qu'ils Font Naitre. (Paris, 1899). 6.

79 Association for the Reform and Codification of the Law of Nations. Report of the Fifth Annual Conference Held at Antwerpen. 30 August to 3 September 1877. London: William Clowes and Sons, 1878: 58.

80 Ibid.

81 Association for the Reform and Codification of the Law of Nations. Report of the Seventh Annual Conference held at the Guildhall, London. 11-16 August 1879. London: William Clowes and Sons, 1880.

82 See George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 303 – 304. For a more detailed account of how Western experts perceived the deficiencies of the Chinese legal order in 1926, see Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission Appointed in Pursuance to Resolution V of the Conference on the Limitation of Armaments. Govt. Print. Off., 1926.

83 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 80.

84 See, for instance, the remarks that Sir George introduced to the House of Commons in 1833: ‘That, lastly, the state of the trade under the operation of the Chinese laws in respect to homicides committed by foreigners in that country, calls for the early interposition of the Legislature, those laws being practically so unjust and intolerable that they have in no instance for the last forty-nine years been submitted to by British subjects; great loss and injury to their commercial interests accruing from the suspension of trade in consequence of such resistance, and the guilty as well as the innocent escape with impunity; and that, it is, therefore, expedient to put an end to this anomalous state of law by the creation of a British naval tribunal upon the spot, with competent authority for the trial and punishment of such offences.’ Hansard, Parliamentary Debates, 3rd ser., vol. xviii: 700.

85 William Blackstone, Commentaries on the Laws of England (1765–1769). (Chicago: University of Chicago Press, 1979). 18. Similarly, Walpole argued: ‘Among the grievances which formed the subject of remonstrance and complaint, both in Parliament and out of doors, nothing was more anomalous, more unfortunate, and more indefensible than the criminal code which disgraced the statute-book. During the earlier years of the present century the punishment of death could be legally inflicted for more than 200 offences.’ See Spencer Walpole, History of England. Vol. 2 (London: Samuel Maunder Publisher, 1830). 59.

86 See James Fitzjames Stephen, A History of the Criminal Law of England. Vol. 3. (Macmillan, 1883). 474.

87 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 90.

88 In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge : Cambridge University Press, 2010). 162.

89  Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 459.

90 On the 1911 Republican revolution, see Joseph Esherick, Reform and Revolution in China: The 1911 Revolution in Hunan and Hubei. (Berkeley: University of California Press, 1976); Jean Chesneaux, Marianne Bastid, and Marie-Claire Bergere, China from the Opium Wars to the 1911 Revolution. (Harvester Press, 1977); Edmund S.K Fung, The Military Dimension of the Chinese Revolution: The New Army and its Role in the Revolution of 1911. (University of British Columbia Press, 1980).

91 David Scott, China and the International System, 1840-1949: Power, Presence, and Perceptions in a Century of Humiliation. (SUNY Press, 2008).

92 See Questions For Readjustment. Submitted by China to the Peace Conference. Paris, 1919: 14 - 18. Available at: http://archive.org/details/questionsforread00paririch.

93 See Questions For Readjustment, Ibid: 16

94 Ibid.

95 Ibid.

96 Ibid.

97 Ibid.

98 The document also requested that the powers immediately consent that: (1) ‘Every mixed case, civil or criminal, where the defendant or accused is a Chinese be tried and adjudicated by Chinese Courts without the presence or interference of any consular officer or representative in the procedure or judgment’; and (2) ‘That the warrants issued or judgments delivered by Chinese courts may be executed within the concessions or within the precincts of any building belonging to a foreigner, without preliminary examination by any consular or foreign judicial officer’ Ibid: 17.

99 See Zhang Yongjin, ‘China's Entry into International Society: Beyond the Standard of' Civilization’, Review of International Studies 17, no. 1 (1991): 13.

100 Cited in Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 155.

101 Cited in Robert Thomas Pollard, China's Foreign Relations: 1917-1931. (New York, 1933) 217.

102 ‘The governments of the powers represented in the Conference, except China, should each appoint one member of a Commission having power to inquire into the present practice of extraterritorial jurisdiction in China, and into the laws and the judicial system and the methods of judicial administration of China with a view to reporting their findings of fact in regard to these matters, together with their recommendations as to such means as they may find suitable to improve the existing conditions of the administration of justice in China, and to assist and further the efforts of the Chinese Government to effect such legislative and judicial reforms as would warrant the several powers in relinquishing, either progressively or otherwise, their respective rights or extraterritoriality’. In Resolution V and Additional Resolutions Adopted by the Washington Conference on the Limitation of Armament. December 10, 1921. Ibid.

China expressed its desire to ‘to appoint a representative who shall have the right to sit as a member of the said Commission, it being understood that China shall be free to accept or to reject any or all of the recommendations of the Commission. Furthermore, China is prepared to cooperate in the work of this Commission and to afford to it every possible facility for the successful accomplishment of its tasks.’ However, the Chinese proposal was rejected and the resolution was adopted without amendment. Ibid: 218: 219.

103 Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission Appointed in Pursuance to Resolution v of the Conference on the Limitation of Armaments. Washington Govt. Print. Office, 1926.

104 Ibid.

105 In Turan, Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010), 173.

106 ‘In fact [Chinese laws] have as their basis mandates of the President or orders of the Ministry of Justice, neither of which has, strictly speaking, any legal or constitutional authority to make laws.’ See Report of the Commission on Extraterritoriality in China. Supra: viii.

107 See Report of the Commission on Extraterritoriality in China. Ibid:  Part II and Part III.

108 Pär Kristoffer. Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 177.

109 For a detailed account of the reforms urged by Western powers, see Report of the Commission on Extraterritoriality in China. Supra: Part IV.

110 ’Like some eminent lawyers and jurists of the nineteenth century, with their efforts to justify the development of extraterritoriality, some lawyers became an integral part of twentieth-century imperialism with their efforts to maintain extraterritoriality.’ Kayaoğlu, Supra: 172. Similarly, Gong argues that Western states established the Commission on Extraterritoriality in order to ‘measure’ the Chinese degree of ‘civilization’. He further suggests that the Commission recommended retaining extraterritoriality because the Chinese legal order did not meet the ‘standards of civilization’ of the time. See GerritGong, ‘China's Entry into International Society’. In The Expansion of International Society. (Oxford University Press, 1984). 183.

111 See Wesley R. Fischel, The End of Extraterritoriality in China. (Berkeley: University of California Press, 1952). 170.

112 As already mentioned above, internal political fragmentation and the Japanese occupation paralyzed the negotiations on the abolishment of the ‘Unequal Treaties’, and it was generally thought that the issue would not be discussed until after the conclusion of the war. ‘The question of extraterritoriality in China did not re-emerge in its own right until early in the spring of I942. China had been promised on several occasions in the summers of I940 and I94I by both Britain and America that they would resume negotiations on the matter, but not before peace was restored in the Far East.’ In K. C. Chan, ‘The Abrogation of British Extraterritoriality in China 1942-43: A Study of Anglo-American-Chinese Relations’, Modern Asian Studies 11, no 02 (1977): 266.

113 For a comprehensive account of the diplomatic negotiations preceding the ratification of the Treaties, see K.C. Chan, ‘The Abrogation of British Extraterritoriality in China’ supra: 257–291.

114 Treaty Between The United States And China For The Relinquishment Of Extraterritorial Rights In China And The Regulation Of Related Matters. Signed in Washington, January 11, 1943. In Foreign Affairs Ministry, Zhongwai tiaoyue jibian: 660. See also Wang Dong, China's Unequal Treaties: Narrating National History. (Lexington books, 2005). 93.

115 Sino-British Treaty for the Abolition of Extraterritoriality and Related Rights in China. Signed in Chongqing, January 11, 1943. In Foreign Affairs Ministry, Zhongwai tiaoyue jibian: 589–594. See also Wang, Ibid.

116 Wang Dong, ‘The Discourse of Unequal Treaties in Modern China’,  Pacific Affairs 76, no. 3 (2003): 399.

117 In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 151, Table 7. For further readings on the abolishment of extraterritorial jurisdiction in China, see Quincy Wright, ‘The End of Extraterritoriality in China’, The American Journal of International Law 37, no. 2 (1943): 286-289; Wesley R Fishel, The End of Extraterritoriality in China. (Octagon Books, 1974); John Carter Vincent, The Extraterritorial System in China: Final Phase. (East Asian Research Center, 1970).

118 ‘Later, as the Japanese government and the Allies were clamouring to win the support of the Chinese, extraterritoriality was officially abolished in both the Nationalist and Japanese-occupied areas with great fanfare in early 1943. In the British Embassy in Chongqing, the temporary capital of Nationalist China, representatives from the British and Chinese governments signed a new Sino-British treaty on 11 January 1943, and Wang Jingwei’s pro-Japanese régime soon followed suit with a similar agreement with the Japanese government. However, it was not the Nationalists who would enjoy the fruits of this foreign policy victory, as they would be expelled to the island of Taiwan six years later. Instead, the People’s Republic of China would claim the credit for unifying China under one government exercising full jurisdiction over all its inhabitants.’ In Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012): 179.

119 ‘The latter are regarded as a people with all the virtues and few failings, except weakness, who deserve to be supported by the United States in their efforts to free themselves from the exploitation of the predatory European Powers, among whom, of course this country had been predominant … We have a wider experience of dealings with the Chinese and take a more realistic view. Our interests in China are much greater than those of the United States, we have negotiated many more agreements with the Chinese Government, we have a common boundary in India and Burma, and we have large Chinese communities in our Far Eastern colonies. We know that with all their attractive qualities, their ancient culture and their artistic gifts the Chinese have a shrewd political and commercial sense and are able to look after themselves in these respects.’ Brenan John, in Brenan's Minute on British and American Policy towards China. December I942, FO 371/31627: 28.

120 Ibid.

121 For support to this view, see generally Wang Dong, ‘The Discourse of Unequal Treaties in Modern China’, Pacific Affairs 76, no. 3 (2003): 399–425. See also Wang Dong, China’s Unequal Treaties: Narrating National History. (Lexington books, 2005).

122 ‘With the outbreak of the Pacific war British courts could no longer function in Japanese-occupied China. At the suggestion of the Swiss government, Britain transferred the jurisdiction over British subjects in occupied China to the Swiss consuls.’ In K. C. Chan, ‘The Abrogation of British Extraterritoriality in China 1942–43: A Study of Anglo-American-Chinese relations’, Modern Asian Studies 11, no. 2 (1977): 267.

123 See The Secretary of the State to the Ambassador in the United Kingdom (Winant). Washington, August 27, 1942. In: Foreign Relations of the United States. Diplomatic Papers. Volume China (1942): 282–285. Available at : http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=header&id=FRUS.FRUS1942China&q1=1942%20China.

124 On the role that public consciousness against extraterritoriality played in shaping the U.S. policy towards China, Hull stated: ‘The Department's study of the question of relinquishment of this country's extraterritorial and related rights in China has continued. In this study we have of course taken into account the trend of public opinion in this country. While there has been no strong concerted pressure upon the Government to take action, it has been obvious from editorial comment and from speeches by and letters received from interested persons that popular sentiment in favour of action toward abolishing extraterritoriality is fairly widespread. It is believed that any request by the Chinese Government for abolition would receive strong support in the United States. In the light of this and other factors, we are inclining to the view that, although this is not an entirely opportune moment to take some affirmative steps in the matter, it is doubtful whether any much more favourable occasion is likely to occur in the near future. On the contrary, we might later, because of the natural trends of political thinking in China as well as in this and other countries, find ourselves in a position less advantageous than at the present while the question of initiative is within our control.’ In FRUS 1942, Ibid: 282 (Emphasis added).

125  See Turan, Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 185.

126  See Kayaoğlu, Ibid: 122.

127  See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 175. For further explication of the connection between the abolition of extraterritoriality in Japan and the Chinese legal reforms, see Douglas Robertson, Reynolds, China, 1898–1912: The Xinzheng Revolution and Japan. (Cambridge, MA: Council on East Asian Studies, Harvard University, 1993).

128  Article XII – ‘China having expressed a strong desire to reform her judicial system, and to bring it into accord with that of Western nations, Great Britain agrees to give every assistance to such reform, and she will also be prepared to relinquish her extra-territorial rights when she is satisfied that the state of the Chinese laws, the arrangement for their administration, and other conditions warrant her in so doing’. The Mackay Treaty between China and Great Britain, 1902. The text of the instrument is available at: Inspector General of Customs, ed. Treaties, Conventions, etc., between China and Foreign States. 2nd ed. Vol.1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917 : 557.

129 See Cassel, supra: 175.

130 See Richard S. Horowitz, ‘International Law and State Transformation in China, Siam and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, no 4 (2004): 464; See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 163; Cassel (2012), Ibid.

131  ‘While this has usually been seen as simply an effort to end extraterritoriality by adopting European standards, Jerome Bourgon argues that the abolition of “cruel punishments” drew as much on indigenous movement within Chinese legal scholarship as it did on foreign influences.’ Horowitz, Ibid. On the abolishment of cruel punishments in China, see Jerome Bourgon, ‘Abolishing “Cruel Punishments”: A Reappraisal of the Chinese Roots and Long Term Efficiency of the Xinzheng Legal Reforms’, Modern Asian Studies 27.4 (2003): 851–862.

132  Horowitz, Ibid.

133  ‘In sum, despite various attempts, the late Qing and early republican governments failed to consolidate the central government’s legal hierarchy in China in the 1910s. The failure to institutionalize state law explains why the Chinese were unsuccessful in abolishing extraterritoriality in the 1920s.’ Kayaoğlu, supra: 165.

134  For references on the Republican revolution, see supra: footnote 301.

135  In Julie Lee Wei, Ramon Hawley Myers, and Donald G. Gillin, eds, Prescriptions for Saving China: Selected Writings of Sun Yat-sen (Hoover Press, 1994). 225.

136  Philip C. Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (Stanford University Press, 2001). 29.

137  See Questions For Readjustment. Submitted by China to the Peace Conference. Paris, 1919: 14–18. Available at: http://archive.org/details/questionsforread00paririch

138  Ibid.

139 Such reformist ‘steps’ can be summarized as follows: (1) the adoption of a National Constitution prescribing the separation of governmental powers, assuring both Chinese and foreigners the fundamental rights of life and property and guaranteeing the independence of judicial office; (2) the preparation of five legal codes, namely, the criminal, civil and commercial codes, and the criminal and civil codes of procedure; (3) the drafting other important pieces of legislation, such as the Law for the Organisation of the Judiciary, the Provisional Regulations of the High Courts and their Subordinate Courts, the Ordinance for Commercial Associations and the Regulations for the Court of Arbitration in Commercial Matters; (4) the explicit adaptation of the laws of ‘the most advanced nations’ to the Chinese context; (5) the establishment of a three-tiered hierarchical court system had been established, namely the District Courts, the High Courts or Courts of Appeal, and the Taliyuan or the Supreme Court in Beijing; (6) the complete separation between civil and criminal cases and the publication of all trials and judgments rendered; (7) in criminal matters, the abolishment of corporal punishment in coercing confessions; (8) the establishment of institutions providing modern legal education, as well as examinations regulating access the legal profession; (9) the requirement all the judicial officers of the courts, high and low, received regular legal training, with a large number having studied abroad, and, finally, (10) the successful improvement of the prison and police systems.

140 Admittedly, the following information owes much to Kayaoglu’s accurate research on the subject.

141 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 177-178. On the Guomindang reformist process, see also Philip C. Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared. (Stanford University Press, 2001); Xu Xiaoqun, Klaus Mühlhahn, and Paul R. Katz, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901–1937. (Cambridge University Press, 2008); Meredith P. Gilpatrick, ‘The Status of Law and Law-making Procedure under the Kuomintang, 1925-46’, Far Eastern Quarterly 10, no. 1 (1950): 38–55; Chen Tsung-Fu, ‘Transplant of Civil Code in Japan, Taiwan, and China: With the Focus of Legal Evolution’, National Taiwan University Law Review 6 (2011): 389; Philip Huang, ‘Whither Chinese Law?’ Modern China 33, no. 2 (2007): 163–194; Jianfu Chen, ‘Modernisation, Westernisation, and Globalisation: Legal Transplant in China’. In One Country, Two Systems, Three Legal Orders-Perspectives of Evolution. (Berlin, Heidelberg: Springer, 2009). 110; Randall Peerenboom, China’s Long March Toward Rule of Law. (Cambridge University Press, 2002); Alice E. S. Tay, ‘The Struggle for Law in China’, University of British Columbia Law Review 21 (1987): 561–580; Jianfu Chen, Chinese Law: Context and Transformation. (Martinus Nijhoff Publishers, 2008).

142 See Kayaoğlu, Ibid:  178.

143 Below the Supreme Court were the High Courts, which functioned as an appellate system in the provinces, and the District Courts, which acted as adjudicatory bodies of first instance.

144 Cited in Kayaoğlu, supra.

145 In H. Yang, A History of Chinese Legal Thought. Zhongguo FaliiSixiangshi (1937). Volume 2. (Beijing: Commercial Publishing House, reprinted by Shanghai Publishing House, 1984). 369.

146 ‘The Western Power’s promise to relinquish extraterritorial rights and to assist in law reform along Western lines propelled a concentrated effort to adopt and adapt Western law at the turn of the twentieth century.’ In Jianfu Chen, ‘Modernisation, Westernisation, and Globalisation: Legal Transplant in China’, In One Country, Two Systems, Three Legal Orders-Perspectives of Evolution. (Berlin, Heidelberg: Springer, 2009). 93.

147 See Chen, Ibid. The author emphasizes the continuity between the Chinese early legal reforms, law under Communism and legal globalization today.

148 This process occurred primarily through the settlement of large foreign expatriate communities in Chinese cities, protected by extraterritorial jurisdictional guarantees, and their interaction with the local population.

149 Gerrit Gong, ‘China’s Entry into International Society’, In The Expansion of International Society, ed. Hedley Bull and Adam Watson. (Oxford: Clarendon Press, 1984). 183.

In what respect was Qing China and the Ottoman Empire similar in the 19th century?

How were the Ottoman and Chinese empires similar?

What problems did the Qing Dynasty encounter during the 19th century?

In what ways were the decline of the Chinese and the Ottoman empires similar?