Bargaining with the State from Afar

American Citizenship in Treaty Port China, 1844-1942

Eileen Scully

• Publisher: Columbia University Press
• Year: 2001
• ISBN:
  9780231506311
• Topic: Politica e relazioni internazionali
• Subtopic: Educazione civica e cittadinanza

In the early 1990s, when organizations representing the 2.6 million U.S. nationals living abroad appealed to Congress for their own non-voting representative, the response of one Senator was to dismiss these "moans of the mink-swathed Americans abroad." However, the image of a life of luxury abroad is usually a harsher reality complicated by income taxes, military duty, and legal jurisdiction. What exactly is the obligation of a state toward citizens who live outside its borders?

Bargaining with the State from Afar traces the relationship between the United States federal government and sojourning Americans living in the colonial enclaves of pre-World War II China. This group of Americans was not subject to Chinese law, but rather to an amalgam of laws borrowed from the District of Columbia and other territorial codes, as well as to local ordinances enacted by foreigners themselves. Scully explores U.S. government efforts to police this anomalous zone in the American policy and places the struggle between federal officials and sojourning U.S. nationals in the larger context of changing international law and modern citizenship regimes.

She argues that the American experience with extraterritorial justice in China offers an important new vantage point from which to examine a singular area in the history of modern states. This case study of U.S. consular jurisdiction reveals the legal, political, and cultural process through which modern states have struggled to govern citizens outside their borders. Scully's examination of the U. S. Court for China is one of the first serious analysis of this anomalous institution.

CHAPTER ONE

EXTRATERRITORIALITY IN THE CHANGING WORLD OF THE NINETEENTH CENTURY

This chapter provides the historical and international context necessary to understand the American experience with colonial legal privileges in treaty port China. The “extraterritorial enclave” was an extraordinarily complex space within the American policy, but cannot be appraised solely in those terms. The U.S. grew to great power status in an international system dominated by Western Europe. American laws and practices on nationality, citizenship and extraterritoriality were formulated within the framework of international law, as it was then being codified. Nineteenth-century extraterritoriality in China was largely shaped by the British; so too, the extrality Great Britain brought to China was the product of centuries of diplomacy and trade between Europe and the non-Western world.

In the developing international system of the nineteenth-century, extraterritoriality was an anomaly, an atavistic remnant of personal fealty in an age of territorial nation-states and modern citizenship regimes.¹ The projection by Western governments of legal authority over sojourners into the “barbarous lands” of Asia and the Middle East was the most notable exception to their abandonment of an earlier era’s “vain phantom of unlimited sovereignty.”² At the same time, the fact that national governments could promise—and threaten—sojourners with a continued connection to the home polity beyond the pale of “civilization,” fused imperialism and state-building; a notion of portable, imperial citizenship made Europeans the “shareholders in hegemony” that civitas had made ancient Romans.

There was nothing inherently oppressive or exploitative about extrality. In the ancient world, consular jurisdiction—the predominant form of extrality—arose as a mutual concession among incompatible religious and cultural groups to facilitate trade. However, modern extraterritorial jurisdiction over sojourning nationals in the colonial setting turned upon state-to-state unequal treaties, often forced upon indigenous governments in the wake of lost wars, as was the case in the 1842 Treaty of Nanking opening China, as well as the agreements opening Japan a decade later.³ The crucial differences in the nineteenth-century variant included: the gross disparity of power in the relationship; a shift in Western perceptions of the non-Western world; the greater numbers and diversity of sojourning communities; and the emergence of modern citizenship norms. Together, these factors made extrality an instrument of imperialism, though one that required constant attention and legitimation.

The process set in motion by the 1648 Peace of Westphalia culminated during the 1800s in the modern nation state. This territorially contained, centralized entity became (to quote philosopher John Dewey) a “Person who has a touchy and testy Honor to be defended and avenged at the cost of death and destruction.”⁴ Sojourners were ever more the embodiment of this “national honor,” leading—in an age of expansive global commerce and travel—to more frequent conflict between governments over the activities and status of resident or itinerant foreigners.⁵ Centralizing nineteenth-century governments attempted direct control over these sojourners in “barbarous lands,” displacing charter companies (such as the English East India Company) which had long exercised quasi-sovereign authority. The appropriation of this far-off jurisdiction by increasingly democratic, centralized governments brought into irreconcilable conflict the perceived rights of sojourning nationals, the demands of domestic constituencies, and the metropolitan support required by ever weaker indigenous regimes on the periphery.

In China, most particularly, the “Midas touch” dynamic of modern extrality transformed it into an unstable protection racket requiring ever more metropolitan supervision, maintenance, and self-justification. Through their association with foreigners, treaty port Chinese themselves were able to evade native authority and exactions. Their relatively large numbers, and their adept manipulation of racist nationalism, gave Western sojourners in treaty port China the wherewithal to resist changes in the ethic of citizenship imposed from the center; they challenged metropolitan demands for a mounting percentage of the take and conformance to changing international norms.

As a fuller exploration of these developments, this chapter covers four major topics: the “modernization” of extrality in the eighteenth and nineteenth centuries; changes in the political and legal relationship between central governments and sojourning nationals during the era; the origins of foreign extraterritorial jurisdiction in China; and the complications of policing the protection racket extrality became in nineteenth-century treaty port China.

EXTRALITY: ANCIENT VERSUS MODERN

As its modern beneficiaries never tired of pointing out, extrality was not invented by mid-nineteenth-century Western imperialists. Historically, self-policing among migratory merchants facilitated trade among religiously or culturally incompatible groups. Ancient and premodern societies almost universally had some form of special law and status for visiting nonmembers.⁶ Arabs trading in the southern ports of Tang China (618–907) were permitted special quarters and self-policing.⁷ Early Egypt hosted various colonies of foreigners, including Jews, Bedouins, Phoenicians, and Greeks.⁸

In pointing to ancient precedents, nineteenth-century advocates of Western colonial privileges were disingenuous. These early forms of consular jurisdiction were neither inherently exploitative nor inevitably demeaning to host societies. Typically, the right to communal self-governance turned on unilateral concessions to geographically compact, numerically circumscribed minorities by powerful central rulers, upon whose sufferance resident aliens could be secure in person, property, and belief. The primacy of religious affiliation in the determination of legal status made it self evident to contemporaries that sojourners and migratory merchants could not enjoy the full benefits of local law and membership; at the same time, trade and comity motivated host governments to extend basic protections to visitors, and to provide legal venues for the resolution of civil and criminal cases arising between natives and resident strangers.

The more apposite ancient precedent for understanding nineteenth-century extrality is the privileged status of sojourning Romans in their age of empire. In Rome, where non-citizens far outnumbered citizens, civitas determined rights, duties and amenability to particular laws.⁹ As “shareholders in hegemony,” Roman citizens could appeal from local courts throughout the empire in capital cases.¹⁰ In practice, this tended to preempt litigation and discourage summary justice far from Rome.¹¹ Recall the oft-cited instance of Paul invoking the protection of civitas when arrested by officials at Jerusalem. In contrast to homogeneous, religiously defined mercantile groups, Romans abroad included traders, businessmen, farmers, money lenders, bankers, semiofficials, military units, as well as troublesome individuals pushed from the center.¹² The high-handed attitude of Roman sojourners, such as roving senators wielding legatio libera (diplomatic immunity), and predatory generals of imperial armies, inspired Cicero to complain about “the hatred with which we are regarded by foreign peoples.”¹³

The transformation of accommodationist, equitable consular jurisdiction in Asia and the Mediterranean world into a modern Euro-American variation of Roman imperial citizenship occurred over several centuries.¹⁴ The “capitulations” Westerners enjoyed in Ottoman lands until World War I dated back to the twelfth century. When the Ottoman Turks conquered Constantinopole in 1453, they expanded and regularized a system already in use in the Mediterranean, that of issuing letters of protection to non-Muslim migratory merchants. (The term “capitulations” derives from the capitula, or chapters, in these documents.) Ottoman rulers used the threat of abridgment to compel good behavior and true reciprocity for their own sojourning subjects (including Armenians, Greeks, Slavs, and Jews). One detailed study of the Levantine trade has argued conclusively that Westerners “did not occupy a protected and special position in international law within the Ottoman empire” before 1700. “[T]heir rights and obligations were determined partly by the capitulations, partly by their customary place among other groups and by their ability in any given situation to adapt themselves and make the most of the existing power balance.”¹⁵

The dynamics of the practice had been indelibly altered, however, with the decline of Italian city states and entry into the Mediterranean trade of France, the Netherlands, and England, followed by Russia and Austria. With the French capitulation of 1740, particular agreements became valid beyond the lifetime of the granting sultan, depriving Ottoman rulers of negotiating leverage. Russian and Austrian competition in the 1780s prompted each to assume control over large subject groups within the Ottoman empire through blanket grants of protection; for example, by 1800 there were 200,000 Austrian protégés in Moldavia and 60,000 in Wallachia.¹⁶

Beginning in the late eighteenth century, European governments successively imported into the capitulations concepts and doctrines taking hold in the Western world, such as diplomatic protection, due process, and non-Western inferiority. Prior to this, jurists argued that what put a sovereign beyond the pale of civilized intercourse was a refusal to help strangers in need, such as shipwrecked and stranded sailors. Openness to foreign trade, or full hospitality to resident aliens, did not constitute a litmus test, as a sovereign was thought to have full discretion over such matters. Thus, it was generally held that a government ought to intervene to help its own subject abroad only if the latter had been deprived of the remedies available to locals. Though sojourners did not owe their temporary sovereign the same allegiance and obedience that locals did, they were bound to obey the general laws of a place that had been enacted to preserve social order.¹⁷

In the modern era, however, there was a much wider array of concrete and abstract injuries potentially inflicted upon sojourners. One legacy of the American and French Revolutions was the principle that (white) individuals had basic rights transcending territoriality and government.¹⁸ Thus, to mere physical safety of person and property was added enjoyment of what nineteenth-century Westerners came to think of as the “rights of man.” The chief criterion for determining whether a country was modern, civilized, and thus juridically equal became the safety and liberty of a European who might find himself there.¹⁹

These changing notions marked a more general shift in European views of the non-Western world, from acknowledging differences to asserting cultural superiority. Before, Western Christian states had coexisted with other regional systems, such as Arab-Islamic hegemony; now the European standard of “civilization” emerged as the yardstick of international relations.²⁰ This marked a qualitative expansion of eighteenth-century precepts, and a jettisoning of naturalist beliefs “that a universal international law deriving from human reason applied to all peoples, European or non-European.” Positivist approaches arose that demarcated civilized from noncivilized states. “[I]nternational law applied only to the sovereign states that composed the civilized ‘Family of Nations.’” ²¹ Assimilation into this “society of nations” could come only through westernization, which in turn was to be achieved by acquiescence to treaties, colonization, and tutelage.²²

DIPLOMATIC PROTECTION, NATIONALITY, AND JURISDICTION

These changes had dramatic consequences for the relationship between sojourners and metropoles (i.e. home governments). A regular, accepted practice of extending extraterritorial diplomatic protection to citizens abroad grew up as a legacy of the French Revolution, with its emphasis on the rights of the individual whether at home or abroad.²³ The legitimacy and survival of the modern nation-state became contingent upon its ability to protect members and provide individuals the opportunity to enjoy their “natural rights” wherever they might roam.

Nineteenth-century jurists found a doctrinal basis for modern diplomatic protection in Emmeric de Vattel’s 1758 Law of Nations. One of its most frequently quoted precepts is this: “Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, obligate him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is, safety.”²⁴ This view combined earlier notions that migratory subjects belonged to the sovereign, and more modern theories of social contract, stipulating that state-dispensed protection was the very reason subjects agreed to be governed and circumscribed.

There was a broad effort among states to bring all individuals into evolving citizenship regimes, supplementing birthright membership with ongoing residency requirements, loyalty oaths, and declarations of allegiance at the age of majority.²⁵ Where before, subjects at home and abroad “belonged” to the sovereign through “many supplementary and competing systems,” increasingly entitlement to protection came only by virtue of nationality.²⁶ With the enactment of the Napoleonic Code (1804), nationality became a primary category of individual status and identity. Modern citizenship legislation emerged almost simultaneously in European states in a short period around 1800; the citizen replaced the subject, and his relationship with government became less personal and more abstract.²⁷

Concepts of sovereignty, though of classical origin, now took on a ideological and uniform character. At the start of the nineteenth century, according to David Kennedy, “there were many sovereigns and many types of sovereignty, which overlapped unproblematically.” This was a carry-over from the development of the nation state around diffused authority and franchised soverei...