Gunboat Justice Volume 2: British and American Law Courts in China and Japan (1842-1943)

Gunboat Justice Volume 2: British and American Law Courts in China and Japan (1842-1943)

by Douglas Clark

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Foreign gunboats forced China, Japan and Korea to open to the outside world in the mid-19th century. The treaties signed included rules forbidding local courts from trying foreigners; or, “extraterritoriality”. Britain and the United States established consular courts in all three countries and, as trade grew, the British Supreme Court for China and Japan and the United States Court for China. These courts for many decades—over 100 years in China—dispensed British and American justice in the Far East. Extraterritoriality had a huge impact, which continues to this day, on how China and Japan view the world. This book tells its history through the fascinating cast of characters both on and before the bench and the many challenging issues the courts faced including war, riots, rebellion, corruption, murder, infidelity, and, even, a failed hanging. Doug Clark, a practicing lawyer who has lived in China, Japan and Korea for over 25 years, has trawled through dusty archives around the world to bring back to life this long-forgotten exotic world.

Product Details

ISBN-13: 9789888273133
Publisher: Earnshaw Books
Publication date: 10/01/2015
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 424
File size: 6 MB

About the Author

Douglas Clark is a lawyer currently practicing in Hong Kong. Originally from Australia, Doug studied Japanese at Nagata Senior High School in Kobe, Japan and Chinese and Chinese law at Fudan University in Shanghai. He also studied Korean for six months in Seoul. Armed with double degree in Asian Studies and Law from the Australian National University he commenced practice as a lawyer in Hong Kong in the mid-1990s. He was then based in Shanghai for 11 years where he set up and was Managing Partner of international law firm Hogan Lovells’ Shanghai office. In 2011, wishing to return to courtroom advocacy he relocated to Hong Kong as a lawyer. Doug is the author of Patent Litigation in China and co-author of Civil Litigation in Hong Kong. He is also the associate producer of the art house movie, “I Really Hate My Job”.

Read an Excerpt

Gunboat Justice British and American Courts in China and Japan (1842 to 1943) Volume 2

Destruction, Disorders and Defiance (1900-1927)

By Douglas Clark

Earnshaw Books

Copyright © 2015 Douglas Clark
All rights reserved.
ISBN: 978-988-8273-13-3


The Boxer Rebellion

The 20th century started very badly for China and the Qing Dynasty. Things got so bad that British Judge Frederick Bourne thought that there may be full out war in China between the foreign powers which if won by one of Britian's rivals could result in the "Chinese being exported as industrial slaves."

While there was no full out war, the disturbances did lead to three major cases – all involving journalists – coming before Bourne in the British Supreme Court for China and Corea. In the first, a newspaper editor was sued for defamation by another editor for alleging reports of a massacre of foreigners in Peking were faked. In the second, the plaintiff in the first case was prosecuted for criminal defamation of the Judge of the newly-established United States Court for China. In the third, Bourne travelled to Korea to try a British journalist for sedition against the Japanese-controlled government of Korea.

Starting in the late 1890s, a rebellion begun by the Boxers, a religious group that claimed to be immune to foreign bullets and weapons, swept Northern China. The Boxers were particularly ferocious in Shantung and Manchuria, driving most foreigners out from remote areas or killing them. The Chinese government supported attacks on foreigners. In June 1900, the Boxers descended on Peking with the slogan "Support the Qing, exterminate the foreigners." The battles resulted in June 1900 in the killing of senior German and Japanese officials.

China declared war on all eight major foreign powers: Great Britain, France, Germany, the United States, Russia, Austria-Hungary, Italy and Japan. From June 1900, Chinese troops laid siege to the foreign legations in Peking where most foreigners had retreated. Given that five years before China had not been able to defend themselves against the Japanese alone, this was foolishness of the greatest degree. The dowager Empress, Cixi, in one of the war councils justified the support of the Boxers on the need to retain the support of the people. She said:

"China has been extremely weak; the only thing we can rely upon is the hearts of the people. If we lose them, how can we maintain our country?"

Kang-I, another high-ranking official, emphasized the anti-foreign feeling by saying:

"When the legations are taken, the barbarians will have no more roots. The country will then have peace."

Needless to say, many other high Chinese officials did not support attacks on foreigners. Provincial governors, including Li Hongzhang in Canton and Yuan Shikai in Shandong as well as the governors in Nanking and Wuhan, all refused to recognise the declaration of war. They reached agreements with the foreign powers that there would be no fighting between their troops and foreigners in areas they controlled. More importantly, Rong Lu the commander in chief of the Beiyang forces in Peking and in charge of the siege of the legations, only attacked half-heartedly. He ordered that blanks be fired and refused to bring up larger caliber cannon.

During the siege, London newspapers, particularly the Daily Mail and Daily Express published lurid accounts of a massacre of the foreigners in the legations. The Daily Mail published a "Massacre Telegram" from its Shanghai correspondents recounting a heroic last stand:

"Towards the end of the third watch, about 5 a.m., the allies had practically defeated the besiegers, who were wavering and were gradually withdrawing when General Tung-fua-siang arrived from the vicinity of Tdien with a large force of Kansu braves. By this time the walls of the Legation had been battered down, and most of the buildings were in ruins from the Chinese artillery fire. Many of the allies had fallen at their posts, and the remaining small band who were still alive took refuge in the wrecked buildings, which they endeavoured to hastily fortify. Upon them the fire of the Chinese artillery was now directed. Towards sunrise it was evident that the ammunition of the allies was running out, and at 7 o'clock, as the advances of the Chinese in force failed to draw a response, it was at once clear that it was at length completely exhausted. A rush was determined upon. Thus standing together, as the Sun rose fully, the little remaining band, all Europeans, met death stubbornly. There was a desperate hand-to-hand encounter. The Chinese lost heavily, but as one man fell others advanced, and finally, overcome by overwhelming odds, every one of the Europeans remaining was put to the sword in a most atrocious manner."

The Daily Express followed with an even more lurid account of a massacre sourced from its correspondent, Henry O'Shea, who was also publisher and editor of the China Gazette in Shanghai.

"The end has come, and the worst horrors have been but too terribly accomplished. Every European in Peking has been massacred by the savage, bloodthirsty miscreants who now represent the supreme authority in China.

"...... The central figure and ringleader in the atrocity was Prince Tuan, who overruled the more moderate party and declared for extermination. It was by his order that the Legations were surrounded and supplies cut off, that they were decimated by incessant fire, bombarded and eventually massacred on the night of June 30 and morning of July 1, the dates originally given by our respondent.

"A last desperate sortie was made by the doomed victims. It is a picture that will live for all time. The horror square led by soldiers and civilians, the hapless women and children in the centre, the last murderous attack by the infuriated Boxers. 'Then the foreigners went mad,' said the courier who brought the story to Sheng. 'They killed the women and children, shooting them with their revolvers instead of using them on the Boxers.' Upon this awful climax, the true inwardness of which we realise with a shudder of fiercest indignation, the curtain went down on a worse tragedy than Cawnpore."

In Cawnpore, India in 1857, the British had been under siege and brutally massacred by Indian troops. As it would turn out, this was no Cawnpore and no tragedy, at least, not for the foreigners. Both stories were complete tissues of lies. Thanks mainly to Rong Lu's lackluster attacks, the legations were able to hold out until they were relieved.

While not a tragedy for foreigners, it was a tragedy for the people of Peking and the people of China.

Peking's position inland meant that gunboats could not come to the rescue of the legations. But on August 4, 1900, a foreign army of over 18,000 men, made up of 8,000 Japanese, 4,800 Russian, 3,000 British, 2,100 American, 800 French, 58 Austrian, and 53 Italian troops set out from Tientsin and made their way very quickly to Peking in 10 days. They arrived on August 14, 1900 to relieve the legations. German troops were also sent to join the attack but did not arrive in time.

After taking Peking, the troops looted the city and massacred the Chinese population. The looting went on for many months, leaving behind a devastated city. Ernest Satow, previously British Minister in Japan who had just been appointed British Minister in China, described his arrival in Peking in October 1900:

"So through the Hatamen and along legation street, which showed terrible marks of devastation. A feeling of profound melancholy took possession of me, such as I have never experienced. It was like entering a city of the dead where the tombs had been thrown down and enveloped in dust."

During the war, the Emperor, Emperess Dowager and all other officials fled Peking. Li Hongzhang was called upon to negotiate with the foreigners. While the capture of Peking could have led to the end of the Qing Dynasty, this did not suit the foreign powers who were more content to continue to carve up China while leaving a weak government in power.

The negotiations for a peace settlement resulted in yet more onerous terms being imposed on China. This included a massive indemnity of 450 million taels (£67.5 million pounds at the time) to be paid over 39 years. The "Boxer Indemnity" was divided up between the foreign powers with Russia and Germany receiving 49% between them. Japan, despite having contributed the largest number of troops and also having seen one of its officials killed, only received 7.7%. Russia, which had occupied Manchuria during the fighting, stayed there despite promises to leave. The result of these negotiations were seen as a great failure in Japan and were one of the principal drivers of Japan's attack on Russia three years later. Payment of the Boxer Indemnity crippled China economically for years to come.

Liar, Liar, the legations were not on fire!

On January 18, 1902, the Shanghai Times published an article reporting on an expose by the Chinese Times in Tientsin of how the famous "Massacre Telegram" came about. The report said that the two temporary correspondents for the Daily Mail, W. Sutterle alias Sylvester, in conjunction with Chesney Duncan had made the story up and sent it to the Daily Mail. "The Daily Express determined to do as well as the Mail or better wired to its Shanghai Correspondent H. D. O'Shea to get a move on or words to that effect."

Then, coming to the crux, the Shanghai Times said:

"So O'Shea then wired as much blood and thunder as his conscience permitted and the Express came out next day with a bigger pack of lies than the Mail."

The Shanghai Times added the caveat that the Daily Mail had published the original telegram it received to show it had been misled. The Express did not do so, so therefore "part or all of lies therefore may be not O'Shea's." The next paragraph all but destroyed this caveat by adding:

"But he is a man who can lie when he tries and he certainly had in this case a chance to 'tell the truth and shame the devil' by wiring a flat contradiction of the massacre or some reassuring message discounting the story instead of which he or his London accomplices told a lie big enough to put the devil in the amateur class."

This was clearly intended to attract a defamation suit. The article ended:

"Now watch for the Shanghai libel case."

O'Shea and Duncan took the bait. Each sued the editor of the Shanghai Times, Mr T.C. Cowen, for defamation. Duncan soon dropped his claim but O'Shea proceeded claiming 15,000 taels in damages.

The trial was heard by Frederick Bourne as Acting Chief Justice and a jury of five. It commenced on June 19, 1902 and lasted four days. Duncan McNeill and F. Ellis appeared for O'Shea and Vernon Drummond and A.M. Latter for Cowen. Cowen's defence was that what had been said about O'Shea was true. There was no doubt that the massacre stories were false. The foreigners had not been massacred. The question to be answered was: had O'Shea sent telegrams to the Daily Express knowing them to be false?

In court, O'Shea said that the Daily Express had used his and other correspondents' materials to prepare their reports and what he had sent, he believed to be true based on information that he had received. He added that "he considered it was the duty of a correspondent to send home what rumours he heard; but at the same time it was his duty to warn his papers at home that these rumours were not to be accepted as news." He suggested that the defendant had published the article about him out of spite because, at the time Cowen had also been a correspondent for the Daily Express and O'Shea had rejected some of his articles.

O'Shea recovered from the archives of the Chinese Telegraph Office 86 telegrams that he had sent. A key problem for the defence was that none of these were a telegram detailing the massacre as reported in the Daily Express on July 16. O'Shea swore that these were all of the telegrams he sent. He added, in cross-examination, that on July 16, he had been informed that the Japanese Consulate in Tientsin had received a telegraph from Baron Onishi that the legation was safe. He had sent a telegram to London to that effect.

In order to deal with the lack of a "smoking gun," the defence called James Ballard, a director and editor of the Shanghai Mercury. Ballard said that he had seen O'Shea at the telegraph office on July 15 writing a long telegram at a desk reserved for correspondents. Ballard said that O'Shea had told him that the report confirmed the massacre in Peking and that Ballard was free to use it. Ballard told O'Shea that he did not believe the report was accurate and did not use it. Not bad evidence, but Ballard had a problem with credibility himself: he was not a member of the Shanghai Club. That may not have been so telling to the jury, but, worse, he had once been a member of the club but had been expelled some years before due to a defamatory article he had written.

In another report, O'Shea reported that the British Consul-General, Sir Pelham Warren, had officially told him he believed that all in the Peking legations had been killed. Given his position, Warren was not expected to give evidence at the trial. Instead, Sir Pelham gave a deposition at a separate hearing. Sir Pelham denied he had ever made such a statement officially, although there had been times when he felt the legations had fallen. He added, interestingly, that he had been in direct telegraphic contact with Yuan Shikai who had been providing him and other Consuls with information about the siege. Yuan had never told him the legation had fallen.


Excerpted from Gunboat Justice British and American Courts in China and Japan (1842 to 1943) Volume 2 by Douglas Clark. Copyright © 2015 Douglas Clark. Excerpted by permission of Earnshaw Books.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents


Volume I White Man, White Law, White Gun (1842-1900),
Introduction – Extraterritoriality: An Extraordinary System,
Part One: The Beginning (1842 to 1865),
Chapter 1 – White Man, White Law, White Gun,
Chapter 2 – Courting the Law: Consuls as Judges,
Part Two: Establishing British Justice (1865 to 1878),
Chapter 3 – The Founder: Sir Edmund Hornby,
Chapter 4 – Establishing the Court,
Chapter 5 – Opening the Court: The First Cases,
Chapter 6 – The Younger Generation: Learning the Ropes,
Chapter 7 – Order Out of Legal Chaos,
Chapter 8 – Bricks and Mortar: A Home for the Court,
Chapter 9 – Reforming the British Courts in Japan,
Chapter 10 – Building the New Japanese Legal System,
Chapter 11 – Mixed Justice in China,
Chapter 12 – The End of an Era: Hornby retires – Goodwin dies,
Part Three: Reorganisation (1878 to 1881),
Chapter 13 – Reorganising the Courts,
Chapter 14 – The Bullion Dollar Question: The Ross Case,
Chapter 15 – The Chinese Challenge,
Chapter 16 – Some Corner of a Foreign Field: The Death of George French,
Part Four: Consolidation (1881 to 1891),
Chapter 17 – Jockeying for Promotion,
Chapter 18 – Chinese Demand Justice,
Chapter 19 – Enlarging Jurisdiction,
Chapter 20 – Japan Demands Change,
Chapter 21 – A New Arrival And A Fond Farewell,
Part Five: Japan Rises – China Falls (1891 to 1900),
Chapter 22 – The Amalgamation,
Chapter 23 – Japan Asserts Itself,
Chapter 24 – Infidelity and Murder in Yokohama,
Chapter 25 – Endings and New Beginnings,
Chapter 26 – A Time for Rejoicing not Revenge,
Chapter 27 – The Full Stop in the Wrong Place: Vale Sir Nicholas,
Conclusion to Volume I,
Volume II Destruction, Disorder and Defiance (1900-1927),
Introduction to Volume II,
Part Six: China Boxed In (1900 to 1905),
Chapter 28 – The Boxer Rebellion,
Chapter 29 – The High Court of Weihaiwei,
Chapter 30 – Ambition Achieved: Wilkinson CJ,
Chapter 31 – 1905: A Year of Change,
Part Seven: The United States Court for China,
Chapter 32 – Taming the Wild East,
Chapter 33 – The Wild East Fights Back,
Part Eight: Dying Dynasties (1906 to 1911),
Chapter 34 – Korea's Hero: Ernest Bethell,
Chapter 35 – The Ricshaw Coolie and the Sampan Man,
Chapter 36 – For Better or Worse,
Chapter 37 – The Law of the Land,
Part Nine: Revolution and War (1911 to 1920),
Chapter 38 – The Republican Revolution,
Chapter 39 – New Roles and New Faces,
Chapter 40 – World War I,
Chapter 41 – Farewells and Promotions,
Part Ten: The Roaring Twenties (1920 to 1927),
Chapter 42 – Bad Behaviour at the Bar,
Chapter 43 – Gun Runners,
Chapter 44 – A Sad Farewell: Lobingier Retires,
Chapter 45 – Rebel with a Cause: Lawrence Kentwell,
Chapter 46 – The Rise of Nationalism,
Chapter 47 – Intermingled Jurisdictions,
Chapter 48 – Recognition, Retirements and Advances,
Chapter 49 – The Dirty DA,
Conclusion to Volume II,
Appendix: Introduction to Vol I,
Volume III Revolution, Resistance and Resurrection (1927-1943),
Introduction to Volume III,
Part Eleven: A New Hope (1927 to 1931),
Chapter 50 – The Rise of China,
Chapter 51 – The Work of Two Men,
Chapter 52 – Extraterritoriality to End,
Part Twelve: The Japanese Empire Strikes Back (1932 to 1941),
Chapter 53 – Major Battles,
Chapter 54 – The Last Judges,
Chapter 55 – Predators,
Chapter 56 – In the Shadow of the Gallows,
Chapter 57 – The Badlands of North China,
Chapter 58 – Dark Days,
Chapter 59 – Live by the Gunboat ...,
Part Thirteen: The End (1937 to 1943),
Chapter 60 – The End of Extraterritoriality,
Chapter 61 – Summing Up,
Postscript – Life After Death,
A note on the writing of this book,
Further Reading and Places of Interest,
Table of Appointments (British courts),
Judges and District Attorneys of the US Court for China,
Appendix: Introduction to Vol I,

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