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The Status of Aliens in China

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Wasow / . ajornell Uttimaitg Slihrarg Stljata, New Horh CHARLES WILLIAM WASON COLLECTION CHINA AND THE CHINESE THE GIFT OF CHARLES WILLIAM WASON CLASS OF 1876 1918 Cornell University Library JX 4270.C5K82 3 1924 023 483 369 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924023483369 2 THE STATUS OF ALIENS IN CHINA STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY Volume L] [Number 2 Whole Nnmber 126 THE STATUS OF ALIENS Ha VI KYUIN WELLINGTON KOO, Ph.D., English Secretary to the President of China COLUMBIA UNIVERSITY LONGMANS, GREEN & CO., AGENTS London: P. S. King & SoH 1912 ^ 3+ST Copyright, 1912 BY The Faculty of Political Science of Columbia University, New York TO MY FATHER AND MOTHER WHO HAVE EVER BEEN GENEROUS AND ATTENTIVE IN THE EDUCATION OF THEIR CHILDREN FOR PUBLIC SERVICE THIS MONOGRAPH, THE FIRST FRUIT OF TWENTY YEARS OF SCHOOLING IS GRATEFULLY AND AFFECTIONATELY DEDICATED PREFACE The chapters which are herein presented, with the exception of the concluding one, were originally in- tended to form an introductory part of a treatise on alien claims against China, which is still in the course of preparation. After they were written, however, it was found that they constituted, both as to the substance which they embodied and as to the arrangement of the topics which they included, a fairly complete whole in themselves. It was therefore decided, with the concur- rence of a number of professors in the Faculty of Polit- ical Science at Columbia University, that they might advantageously be left to stand in a separate form by themselves ; hence the appearance of the present volume. In deciding upon this plan of publication I was also influenced by a consideration of the timeliness of the subject to which the studies embraced in this volume are devoted. Commerce, religion, travel and other inter- ests are drawing increasing numbers of foreigners into China, and the question of their precise status, while re- siding or being within her territory, becomes to-day, not only one of enhanced interest, but one of growing practical importance. The multifarious and sometimes complex problems which arise out of their intercourse with the Chinese people depend for their prompt solu- tion primarily upon an accurate knowledge of the rights, privileges and immunities which they are entitled to en- joy under laws and treaties, and of the limitations and re- 129] 7 8 PREFACE [130 strictions, arising from the same sources of sanction, upon such rights, privileges and immunities. The need of this knowledge is all the more pressing by reason of the fact that foreigners in China enjoy judicial extra- territoriality. Although in recent years several mono- graphs have appeared which treat of the position, (gen- erally a few phases of it), of foreigners of a particular nationality in China, I am not aware of any work in existence which considers the status of aliens in China as a class, or from the Chinese point of view. The pres- ent treatise is an attempt in these directions. My profound thanks are due, first of all, to John Bassett Moore, Hamilton Fish Professor of Inter- national Law and Diplomacy in Columbia University, for his sound instruction in the principles of the law of nations, for his inspiring direction in the preparation of this work and for reading over the manuscripts and sug- gesting invaluable corrections, which were without ex- ception accepted and incorporated in the work. I am also deeply indebted to Professor Charles A. Beard, of Columbia University, who very kindly accepted charge of the printing of this monograph after I sailed from New York for Peking, and who made arrangements for the verification of the references, the preparation of the index and the reading of the proof sheets. V. K. WelUington Koo. London, April 16, 1912. CONTENTS PART I THE PRE-CONVENTIONAL PERIOD (A. D. 120-1843) Chapter PACK I. History of the Entrance of Foreigners into China . 13 II. Privileges and Protection of Aliens 18 III. Adoption of THE •' Closed door " Policy 2i IV. A Survey of the Effects of the New Policy 32 V. Organization, Regulation and Protection of Foreign Trade 34 VI. Legal Control over Foreigners 46 VII. Aliens Subject to Chinese Criminal Jurisdiction 49 PART II THE CONVENTIONAL PERIOD (SINCE 1842) VIII. The New Regime S9 IX. Origin of the Extraterritorial Jurisdiction in China ... 62 1. Essence of judicial extraterritoriality and its intricate genesis in China 62 2. General attitude of defiance on the part of aliens in early days towards Chinese authority 63 3. British resistance to the exercise of jurisdiction over them in criminal cases 6S 4. Examination of the reasons assigned for the resistance ... 79 5. Establishment of a British court of justice for China in 1833. 95 6. Proposed British legislation of 1838 112 7. Concession of extraterritorial rights to British subjects at Nanking, 1842 133. 8. British legislation and orders in council of 1843 °^ extra- territorial jurisdiction in China 138 9. Caleb Cushing's theory of extraterritoriality 14& 131] 9 lO CONTENTS [132 X. Protection Under the Extraterritorial Jurisdiction ... 166 1. Criminal matters involving Chinese and aliens 166 2. Civil matters involving Chinese and aliens 17° 3. Cases between aliens .... 178 4. Extraterritorial courts in China '79 5. The law administered to aliens 184 6. Application of their own law advantageous to aliens .... 188 XI. The Extent of the Extraterritorial Jurisdiction .... 193 XII. Limitations of the Extraterritorial Jurisdiction 196 1. Founded on treaty stipulations 196 2. Founded on international law .... 199 3. Founded on statutes 202 4. Founded on policy 203 5. The jurisdiction, primarily personal . 205 6. The jurisdiction, as to criminal matters, punitive, not pre- ventive 212 XIII. Ports and Foreign' Settlements 229 1. Treaty ports 229 2. Ports voluntarily opened by China 250 3. Leased ports - 252 4. Ports of caU 264 5. The legation quarter in Peking 266 XIV. Travel and Passports 268 XV. The Alien Merchant in the Interior of China 277 1. Sale of imported goods in the interior 277 2. Purchase of native produce for shipment to Chinese or foreign ports 278 3. Treaty limitations upon the rights of the alien merchant in the interior 280 4. Conditions under which the alien merchant may operate railways or mines in the interior 282 5. The question of the right of the alien merchant to invest in Chinese joint-stock companies established in the interior. 286 XVI. The Christian Missionary 289 I. Toleration and preaching of Christianity 289 3. Control and protection of missionaries 293 3. Missionaries, as a rule, equally treated with other foreigners. 309 4. Residence and property- holding in the interior 315 5. Prosecution of secular work 334 XVII. Protection of Aliens and Alien Property in General . 336 XVIII. Aliens of Non-treaty Powers 343 XIX. Conclusion 350 Topical Index 357 PART I THE PRE-CONVENTIONAL PERIOD (A. D. 120-1842)' ^ During this period two treaties of peace, boundary, and land trade were concluded between China and Russia, viz., the treaty of Nerchinsk, August 27, 1689, and that of Kiakhta, October 21, 1727, amended by the convention of October 18, 1768. These treaties, however, were very limited in their operation, and did not provide any comprehensive sys- tem of trade intercourse and consular jurisdiction as did those beginning with the treaty of Nanking, August 29, 1842; hence for the purposes of this study, the year 1842 is considered more suitable to mark the commencement of China's broad treaty relations with foreign powers. The French, English, Chinese, Russian and Latin texts of the treaty of 1689 ; the French, Chinese, Russian and Latin texts of the treaty of 1727; and the French and Russian texts of the supplementary conven- tion of 1768 are all found in Treaties between China and Foreign States (Shanghai, 1908), vol. i. CHAPTER I History of the Entrance of Foreigners into China Evidences of the fact abound in Chinese history that the presence of the alien in China dates back to time nearly immemorial. Embassies from the neighboring countries; commercial missions disguised as bearers of tribute; daring explorers on land and at sea; mission- aries of the Sacred Book of Buddha, the Koran and the Bible; and refugees from persecution—these visited the imperial capital or its outlying provinces, lived there and in some cases died there in days as old as written records. Putting aside legendary notices altogether, which make mention of visitors to the Chinese Empire as far back as in the reign of Hwangti (2697 B. C), the Hebrews, for instance, fleeing from persecution in Egypt, began to migrate into the western parts of the Empire long before the beginning of the Christian Era, and established a colony of their own, which still exists to-day in Kaifung Fu, the capital of Honan Province.' In A. D. 120, a little more than two centuries after the first Chinese embassy was despatched to Parthia, the king of Shan, a country southwest of China, sent to the son of Heaven a tribute-bearing mission with musicians and jugglers from Ta-tsin, which is now known to have been the Roman Orient.^ Half a century later, in 166, the repre- ' " Sir J. F. Davis, China (" History of Nations series, 2 vols.), vol. 1, pp. 23-25. ' Professor Friedrich Hirth summarizes the results of his researches 13s] 13 14 THE STATUS OF ALIENS IN CHINA [136 sentatives of Emperor Marcus Aurelius Antoninus ar- rived in Loyang with ivory, rhinoceros horns, and tor- toise shell as presents to the Chinese Throne.' Indeed the Romans would have opened up direct intercourse with China, for once at least, much earlier than they did but for the fact that their missions hitherto accredited to the Chinese Empire had been persistently and successfully obstructed in the progress of their journey by the merchants of Parthia.
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