Justice by Gunboat: Warlords and Lawlords: The Making of Modern China and Japan

Justice by Gunboat: Warlords and Lawlords: The Making of Modern China and Japan

by Douglas Clark

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War, riots, rebellion, sedition, corruption, assassinations, murder, infidelity, and even a failed hanging. These were just some of the many challenges faced by the British and American courts that operated in China, Japan and Korea for close to a 100 years. Established in the mid 19th Century under treaties signed when foreign gunboats forced all three countries to open to the outside world, the foreign courts had the sole right to try their own nationals to the exclusion of local courts. This book unveils the history of this system of extraterritoriality. Based on original research through archives and hundreds of trial transcripts, Justice by Gunboat tells not only the story of the courts and how China and Ja-pan reacted to them but also of the fascinating lives of the judges, lawyers and parties before the courts. Extraterritoriality had a huge impact on the modern development of both China and Japan. For China, the period is now called the “Century of Humilia-tion”; for Japan the same era is celebrated. If you want to understand how both countries view the world - and each other - this book is a must read.A pathbreaking study of an important but long neglected topic, this book is a fascinating read and invaluable resource for anyone with an interest in law, empire and history in modern East Asia. —Dani Botsman, Professor of History, Yale University, Author of Punishment and Power in the Making of Modern JapanA vital read. Here we find a century of foreign judges, lawyers and consuls attempting to control a city that attracted a legion of adventurers, criminals and sharks like no other in history. Gunboat Justice reveals the intersection of Shanghai's formal administration and its dark underbelly. The most important book on Shanghai's history for several decades.—Paul French, author of Midnight in Peking, winner of the Edgar Allan Poe award for best Fact Crime writingFor the first time, we now have a comprehensive, well-informed and humane account of the people and procedures in the British and American courts of East Asia. Doug Clark's book brings that world to life, and restores it to its place in our histories of the era of the ‘unequal treaties'. —Robert Bickers, author of Empire Made Me and The Scramble for China 1832-1914

Product Details

ISBN-13: 9789888422760
Publisher: Earnshaw Books
Publication date: 02/15/2018
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 468
File size: 19 MB
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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 the Gunboat Justice trilogy, 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


White Man, White Law White Gun

Caleb cushing, a noted American diplomat, politician and lawyer, drafted the wording that would be the foundation of almost 100 years of extraterritoriality in China. Cushing, who had been sent by the US President to negotiate a treaty, said that he:

"entered China with the formed general conviction that the United States ought not to concede to any foreign state, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States, unless that foreign state be of our own family of nations, in a word, a Christian state."

Surprisingly, perhaps, given how long extraterritoriality lasted, it took only two short paragraphs to create the system. The paragraphs were Articles 21 and 25 of the Treaty of Wanghsia signed between the United States and China in 1844 to "establish firm, lasting, and sincere friendship between the two nations."

The articles provided that Chinese who committed crimes against Americans in China would be tried in Chinese courts but Americans who committed crimes in China against anyone would be tried by American consuls. All civil claims against Americans would be dealt with by American consuls. Almost identical wording was used in every later treaty signed by China, Japan and Korea granting extraterritorial rights.

Article 21, as far as it dealt with criminal offences by Americans, the treaty provided that:

"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 authorised according to the laws of the United States."

Article 25, dealing with civil claims, read in part:

"All questions in regard to rights, whether of property or person, arising between citizens of the United States in China shall be subject to the jurisdiction of and regulated by the authorities of their own Government."

Cushing had not needed to lead an American fleet or army to China to get the Chinese to sign the Treaty of Wanghsia. The British, two years previously, had already done that for him by convincingly defeating China in the first Opium War of 1839-1842.

China until the 1840s had been a hermit empire. Since the 17th Century, the country had been ruled by the Manchus from Manchuria in the northeast of today's China. The Manchus were foreign rulers of China. They spoke and wrote their own language, wore their own clothes and garrisoned Manchu soldiers in the major cities of China in separate quarters. Chinese men were forced by the Manchus to wear their hair in a long braided ponytail, called a queue. The penalty for not doing so was death.

The Manchus had closed China off to foreign contact. They believed they had no particular need for foreign goods and, in particular, had no desire for the Chinese people to be infected by Western religions or thoughts. They did, however, allow for some limited trade in Canton (Guangzhou) in the far south of China. Foreign traders were restricted to the Canton factory so-called because factors, or agents, were based there. These were warehouses on the Pearl River in Canton. Foreign traders were permitted to deal with a select number of local merchants.

The trigger for Britain's attack on China was a war on drugs. China said "No." Britain had other ideas. Britain was running a huge trade deficit with China and started importing opium from India to even things up. The Chinese, not surprisingly, in 1836, banned its import. Two years later, in 1838, an Imperial Commissioner Lin Zexu started to aggressively suppress the domestic consumption of opium as well as the import of opium by foreigners. British merchants in Canton were blockaded in their factories until they agreed to hand over their opium stocks.

In March 1839, Captain Charles Elliot, the British Superintendent of China Trade, the most senior British official in China, agreed to the Chinese demands. He ordered the merchants to hand over more than 20,000 chests of opium. Elliot told the merchants that the British government would compensate them for their loss. Lin arranged for the opium to be destroyed by being released into ponds near the sea in the town of Humen in southern Guangdong province.

The reaction in Britain was one of outrage. The British government determined that the Chinese must be taught a lesson and dispatched an expeditionary force under the command of Captain Elliot. Elliot first headed north to Tientsin (Tianjin) where he was convinced to return to Macao for negotiations. When he realized the Chinese were prevaricating, he attacked Canton, taking it in May 1841.

Despite this success, when he returned to Macao from Canton, Elliot was dismissed for failing to prosecute the war with China properly. He was replaced by Henry Pottinger. China at the time had no major cities on the coast. Peking was located inland from Tientsin and was impossible to attack without land troops. Pottinger decided instead to attack Nanking, a major inland trading port on the Yangtze River, which controlled the supply of grain to northern China. After easily repelling Chinese counter attacks, they arrived at the walls of Nanking in August 1842 and threatened to bombard the city unless the Chinese agreed to their demands.

The Chinese Emperor in Peking finally realized the British forces were vastly superior to China's. He authorized his officials to negotiate whatever settlement they could. On August 29th 1842 a treaty was signed aboard HMS Cornwallis between Britain and China.

The main terms of the Treaty of Nanking allowed for British merchants to trade with China. It opened five cities, Canton, Amoy, Foochow, Ningpo and Shanghai to foreign trade and allowed British merchants to live in these cities. The cities became known, along with all ports opened under later treaties, as "treaty ports." Hong Kong Island was also ceded to the United Kingdom in perpetuity to serve as a British base in China. China was also required to pay a total of $21 million, a massive sum at the time, as reparations for the war.

The Treaties of Nanking and Wanghsia only opened the treaty ports to trade. They did not give free access to China for British or Americans. Foreigners could only travel short distances inland. Most importantly, foreigners were banned from the Chinese capital, Peking, and were not treated as equals by the Chinese government or officials. Not satisfied with the limitations in the Treaty of Nanking, the British over the years sought to reach a new agreement with China. China consistently rebuffed them.

In 1856, an opportunity came along to force the issue when the Chinese Governor of Canton seized what he believed to be a pirate ship, the Arrow. The British claimed that the Arrow was registered in Hong Kong and had been sailing under a British flag. In fact, its registration had expired. Nevertheless, Harry Parkes, the British Consul in Canton, was determined to teach the Chinese a lesson. Although Canton had been opened to foreign trade the local authorities refused access to the Chinese city. Using the seizure of the Arrow as an excuse, at Parkes' instigation, the British seized a Chinese warship and then attacked Canton. In December 1857, Canton was occupied by a joint British and French force. Early the next year, the fleet sailed to Tientsin where they negotiated and signed treaties with China. America also signed a treaty at the same time. All of these treaties were called the "Treaty of Tientsin" and had similar terms. They were much more detailed than the earlier treaties and gave foreigners far more rights in China.

The treaties loosened the restrictions on travel around treaty ports allowing residents to travel up to 100 li (about 50 kilometres) for a five-day period without restriction and to travel further in the interior with internal passports. The Yangtze River was opened to trade and five more ports were opened to trade. Christian missionaries were allowed to enter China to proselytize.

The Chinese government took responsibility for protecting foreign citizens and their property. Until 1860, no Chinese official or ministry had been directly responsible for foreign affairs. The treaty required the Chinese to nominate a senior official to deal with diplomatic affairs. This resulted in the creation of China's first Ministry of Foreign Affairs the "Tsung Li Kekuo Shiwu Yamen" (Zongli Geguo Shiwu Yamen) or "General Office for Handling Affairs of Foreign Countries" usually shortened in English and Chinese as the "Tsungli Yamen." Foreign countries were given permission to establish legations (one rank below an embassy and headed by a minister) in Peking. China was required to treat foreign representatives on an equal footing. A specific provision stated that the term "barbarian" was not to be used to describe foreigners in official documents.

The signing of the treaties was not, however, to be the end of the matter. In 1859, the British and French returned to exchange ratifications of the treaties in Peking. They were repulsed leading to a war where Britain and France occupied Peking and in reprisal for the capture and killing of British representative travelling under a flag of truce, the British and French looted and burnt to the ground the Summer Palace, or Yuanmingyuan, a massive collection of palaces to the northwest of Peking.

For the next 50 years until the collapse of the Qing Dynasty, the Chinese continued to resist foreign encroachments. This led to wars that China almost always lost and to further unequal treaties.

Japan: The Black Ships

Just like China, Japan had been closed to foreigners since the 17th century. Dutch traders were allowed to trade in Nagasaki at the far western end of Japan in the small fan-shaped manmade island of Dejima.

The Americans took the lead to open up Japan. The negotiations were much easier, assisted in no small part by the clear military successes that the British and French had had in China. The Japanese were, by the 1850s, well aware of the China's defeat in the first Opium War and the overwhelming firepower of foreign ships.

In 1853, Commodore Matthew Perry of the United States Navy sailed into Tokyo Bay leading four ships. He demanded the opening of Japan to foreign trade. Perry left a letter for the Shogun and said he would return in a year's time for the answer. In 1854 he returned with eight ships. The Japanese, knowing they did not have the power to fight the Americans and with the defeat of China in the Opium War in mind, capitulated. The Shogunate, without obtaining the consent of the Emperor, signed the Convention of Kanagawa with the United States opening the ports of Hakodate, in Hokkaido, and Shimoda, in Tokyo Bay, to foreign trade.

From 1856, the US Consul in Japan, Townsend Harris, sought to sign an expanded treaty. In 1858, he was able to get a treaty signed first by literally telling the Japanese "The British are Coming" as the British and French sent a fleet to Japan following the Second Opium War to negotiate treaty rights in Japan. Harris told the Japanese they had better sign up to the "favourable" terms he was offering (which included a ban on importing opium) rather than have the British and French impose their own. The British and French were more than happy to sign treaties along the lines agreed with the United States without the need for war.

The treaties were signed with the Tokugawa Shogunate which had ruled Japan since the early 1600s. The Shogun as the head of the Shogunate was the senior military and political leader in Japan. Above the Shogun was the Emperor, but the Emperor held no true political power. Below the Shogunate, feudal lords, or Daimyo, ruled over their own domains. They were required to show allegiance to the Shogunate, but had substantial power in their own domains.

Not all Japanese or feudal Daimyos accepted the arrival of the foreigners and there was, initially, strong resistance to the treaties based in part on the fact that the Shogunate had signed the treaties without the approval of the Emperor. Two major battles, which the Japanese lost decisively, triggered rapid change in Japan. In 1863, a British citizen, Charles Richardson, was killed near Yokohama by a samurai who was a member of the Satsuma clan from Kagoshima in far Western Japan. When the Satsuma clan refused to punish the offender, seven British naval gunboats were sent to Kagoshima. When negotiations failed, the British ships bombarded the city, all but destroying it.

In 1864, the Choshu clan also from Western Japan, on orders of the Emperor who had directed the foreigners be expelled, closed the Straits of Shimonoseki by shelling any foreign ships seeking to sail through them. The narrow straits are the main routes for ships sailing from Japan through to China. The British, American, French and Dutch navies set out for Shimonoseki and after a short battle landed troops who destroyed the cannon. They then held Shimonoseki to ransom.

Following these defeats, the Choshu and Satsuma clans applied the maxim "if you can't beat them, join them." They sent a number of young men overseas to study, including Hirobumi Ito, who later became one of Japan's leading reformers and statesmen. The Choshu and Satsuma also pushed for a program of opening and westernization. This led to a civil war where the Choshu and Satsuma defeated the Shogunate. The Koumei Emperor who had ordered the expulsion of foreigners died in 1867. In February 1868, in what is now known as the Meiji Restoration, the very young and newly-installed Meiji Emperor issued a proclamation that the Shogun had been given permission to return the governing power to the Emperor. The Emperor then allowed the reformers to establish a new government.

The goal of the new Japanese government was to reform Japan's society, economy and legal system. The old feudal system and classes were abolished. The focus was on reform and the government adopted a hands-off attitude to the treaty ports. By 1875, reform was well under way. All foreign troops left Japan and gunboats were no longer needed to protect foreigners.

These treaties with China and Japan created the rules for extraterritoriality. How did the system work in practice?

Extraterritoriality in practice

In practice, extraterritoriality was a mess. At the beginning there were the teething problems one would expect in setting up a new system. Consuls had to be appointed and consulate buildings leased. That was the easy part.

Once appointed, the new consuls had none of the tools of state to run a legal system. They had no court rooms, no policemen and no prisons. The lack of court rooms could be easily solved. Any room will serve as a court if necessary. The lack of policemen and prisons was a far greater problem. The consuls often did not have police to arrest or prisons to hold criminals leading to weak enforcement of the law. Things improved as communities grew and police forces established in the major treaty ports.

Even after the initial teething periods, the exercise of consular jurisdiction remained fraught with difficulties. The early consuls, in particular, had to be chosen from a very small pool of people. Many countries, but not Britain, for many years appointed merchants living in the treaty ports as consuls. America appointed merchant consuls for the first 10 years but then shifted to political appointments. American consuls were expected to pay themselves from fees they collected. Most importantly, a "consul was never selected for his legal training."

It was not until the late 19th century that the United States sought to professionalize its consular service leading in 1906 to the passing of a consular reorganization law.

Britain from the outset avoided the worst of the merchant consul system by establishing a China Consular Service almost immediately with Henry Pottinger appointing many of the consuls. In the 1860s a system of examinations was introduced for appointing consuls in China, Japan, Korea and Thailand.

Consuls as Judges

Most consuls who tried cases were not lawyers and had no legal training. Because of this justice in the consular courts could be rough. The problem was exacerbated where a young consular officer could be called upon to act as a vice-consul.

British consular officer Ernest Satow, when he first acted as a vice-consul in the 1870s, wrote:

"Fancy me an acting Vice Consul. Such is the truth. It is quite absurd. I did not know how to register a birth till the constable showed me. Now I live in daily terror lest a case should be brought into my court and I am compelled to sit in judgement. Not having the faintest idea of how to preside. To say nothing of complete ignorance of the law."


Excerpted from "Justice by Gunboat"
by .
Copyright © 2017 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.
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