Evening star. [volume] (Washington, D.C.) 1854-1972, 1939-07-02

Recent startling developments in the
coast cities of China have disclosed I'M
familiar situations. Rights and privileges
of different nations, including our own,
but of which the average citizen knows
but little are found to be menaced, II
not defed. by a foreign invader who
has not even the excuse OF declaration
of war for the presence of armed forces
in the country. Most of these rights are
included in and expressed by the tech
meal term, extraterritoriality.
Extraterritoriality is not new term.
On the contrary, the notion expressed
thereby is very old. For law in its ear
lest stages was not territorial-it was
personal; that is, a person was per-
petually subject to the law and sovereign
of the country in which he was born.
If he left it, that law still followed him,
lust as our income tax law follows the
American citizen wherever he may go.
1t was but gradually that the notion
arose that laws prevail only in the terri
tory of the nation where they originate.
Today, however, laws are mostly terri
torial.
But when foreigners first entered
China, the older notion prevailed and
1t is said that as early as 72O AID.
foreign tribunal existed there which ad-
Indicated controversies between foreign
merchants. Long afterward when for
eien nations made treaties with China,
a provision was often inserted therein
which enabled each power to regulate,
by its own laws. the conduct and per-
sonal and property rights of its nationals
residing there.
U. S. Won Right Decades Ago.
Such a clause (the most complete OF
Its kind appears in the first Chinese
American treaty This was negotiated
bv the distinguished Caleb Gushing OF
Massachusetts, who was sent out to
China by President Tyler as our first
commissioner in 1874. 1t was signed at
q settlement near Macao, in Portuguese
territory, on the eve of our 68th national
anniversary and for nearly 100 years it
has continued to be, for Americans in
habiting or visiting China, Magma
Charta of their liberties and privileges.
For 1T enables them to live there under
their own laws, subject only to their own
courts and officials and without fear OF
oppression or interference by any foreign
government. Such is the practical mean
ing of extraterritoriality. 1t is as II
small section of the United States were
picked up, transported across the Pacific
on magic carpet and set down in China
to continue as before.
Perhaps a word of explanation is need
ed here regarding the concessions
which figure so prominently in connec-
ton with the present crisis. These form
no essential feature of extraordinarily;
In fact, they are wholly territorial and
not personal as we have seen that the
extraterritorial system is. The Chinese,
and formerly the japanese government,
has from time to time granted to for
eign governments (never to individually
certain areas, within or adjoining their
cities, in which the inhabitants will be
subject temporarily to such govern
ments Concessions" resemble leases
rather than grants of personal privilege.
The British concession in Tientsin is
the storm center of the existing lmpasse
because it is the area of British official
activity, although not all Brltons IN
Tientsin live there. The British also
had a concession in Hankow and the
French have one in Shanghai, but 1
have never known of an actual Amer
lean concession although one was Of
fered to our Government, it is said many
years ago.
Hold Power Over Life.
Of course, the system of extraterri-
toriality does not run itself. The nation
which enjoys it must provide the ma
chinery for its operation. To that end
the United States Government long util-
lied it's Consuls in China, each of whom
automatically became a judge in any
proceedings, criminal or civil, in which
an American of his district was de-
PENDANT there. An appeal lay to the
Minister at Picking, who was authorized
to promulgate DEGREES and regulations
for the consular tribunals which for
more than so years were the only ones
to which Americans in China were di-
rectly subject. Their jurisdiction was
extensive. Important civil cases were
thus adjudicated and capital punishment
was occasionally imposed and inflicted.
In knew an elderly American merchant
who quoted one of our Consuls as telling
him, II can hang you" But in that
instance he didn't.
As American interests and population
In China increased, growing demands
were heard for more expert machinery
to care for this unusual situation. Com
missioner (there was no Minister until
1861 Davis wrote in 1850, Those who
have to administer the law under them
(the regulations) are destitute of all legal
requirements" So late as 1904 Consular
Inspector Peirce reported, "At the pres
ent time none of our Consuls in China
is trained lawyer"
Meanwhile, in 1864, the British gov
eminent had established H. B. M.sSu-
preme Court for China and Japan" The
success of that institution led Americans
who were familiar Herewith to labor
for the installation of . similar tribunal
Tor their country.
In 1881 Secretary Blaine, in an opinion
which was transmitted to Congress by
President Arthur, recommended that
men OF legal training should be chosen
tor certain judicial offices, independent
OF the consular system, and the estab-
nshment of a separate system of courts,