by Carl Crow
There was much more along the same line, ending with the injunction:
Let the treaty be signed by your own Imperial hand. It shall be signed by mine, by the authority of our great council the Senate.
The listing of all the states of the union, twenty-six at that time, was obviously designed to impress the Chinese and to show them just where they stood with only eighteen provinces, but it did not appear to have that effect. The Chinese official who received the letter kept it three weeks before he acknowledged its receipt and then complimented Cushing on President Tyler’s “respectful politeness and obedience.” The letter was never sent to the Emperor.
Cushing remained and in the end negotiated a very important treaty. It contained few provisions that had not already been included in the British treaty but the brilliant Massachusetts lawyer rewrote the British document and put it in such clear legal phraseology that it was generally accepted as the standard treaty, the basis on which the relations between China and the foreign powers existed for many years. Though the British had secured the recognition of foreign rights in China, they turned to the American treaty for an interpretation of these rights.
* The rhubarb of China is not the garden “pie plant” of America and England, and attempts to grow it in those countries were not successful. Franklin tried to introduce the seeds in America, and at the same time Washington was attempting to grow tea on his Mount Vernon estates. Both experimented with the growing of silk worms.
* In justice to Webster it must be said that some historians contend that he did not actually write this letter, that it was the work of an assistant.
VIII
The protection of the flag
“Beautiful or not, it is my native land.
A relative or not, he is a fellow countryman.”
It is impossible to write very much about China without becoming familiar with the spelling of that long and awkward word “extraterritoriality” commonly shortened to extrality. Divested of its cumbersome legal phraseology it means simply that a foreigner is amenable only to the laws of his own country, and is subject to detention and trial by his own officials and can be sued in a civil action only in his own court. This is one of the most important and the most controversial of the rights secured to foreigners through treaties negotiated with the Chinese government. Although with the growth in national consciousness Chinese leaders have bitterly attacked this as a treaty provision that was forced on them by the superior arms of Western powers, there is no evidence that the Chinese offered any objection to it when it was proposed by Caleb Cushing, who negotiated the first treaty definitely conceding these rights. Cushing not only defined the rights but justified them on what appeared to be high ethical grounds. This justification is based on such curious reasoning that I have never been able to remember just how it ran.
At that time it was not a matter of any great importance. The only foreigners who lived in China were restricted to residence in a small section of Canton, and the Chinese government had no intention of allowing them to increase greatly in number, or to settle in other ports as they later did. The attitude of the haughty Manchu government was one of lofty disdain toward the foreign barbarian and all his works. His presence was tolerated so long as he behaved himself and heeded the solemn injunctions occasionally proclaimed by the august Son of Heaven. If the barbarians would chastise their own evil doers, it would relieve the Manchu officials of unpleasant duties.
For a long time the only Americans who enjoyed the practical benefits of extrality were American sailors who drank too much Chinese whisky in the dives of Canton and engaged in water-front brawls. The British legal mill had about the same kind of grist to deal with, and as was the case with the American consul, the British consul could take care of all the judicial work in the ample spare time he had at his command.
As the center of foreign trade shifted to Shanghai, and that city continued to grow larger and more cosmopolitan, there were many complications that even the brilliant Caleb Cushing probably never anticipated. At Canton practically all business deals were between Chinese and foreigners. As the foreign population of Shanghai increased there were innumerable business transactions between foreigners of different nationalities that were subject to different laws as interpreted by different courts. If an American thought a Frenchman owed him compensation on a contract, he could only determine his legal rights in a French court and according to French law. If the situation were reversed, an American judge weighed the evidence, interpreted it according to the laws of the territory of Alaska and decided what, if anything, the Frenchman had coming to him. The laws of the territory of Alaska were made applicable to Americans living in China rather than the laws of some individual state which might and probably would be changed at each session of the legislature.
Then American business men discovered that by organizing companies and incorporating in some state, their company would automatically fall under the laws and regulations of that particular state. American lawyers looked up the laws of all the states to find which ones would best suit the particular needs of his client. Some curious selections were made. Life-insurance companies were incorporated in a state which does not pry too closely into the affairs of the company. Except for the fact that some of its silver may find its way to China by an indirect route, I don’t think Arizona has any trade with the Far East. I never knew but one man from Arizona who was a resident of China, but a number of Arizona corporations were formed by men who had never been in the state to deal with products as remote from Arizona as from Persia. But for many practical reasons Delaware corporations were the favorites until about twenty years ago when Congress passed the “China Trade Act” which provided for the establishment of special corporations to do business in China. Litigation was about as complicated as it is possible to imagine. Sometimes four or five nationalities were mixed up in a deal that didn’t work out according to plan, and there were complications enough to keep the lawyers profitably employed for years.
With the laws of a dozen countries administered by as many different courts, it was not to be expected that the scales of justice would follow the same model or use the same weights and the idea that justice was blind was placed in the same category as a belief in Santa Claus. The result was that the various national courts have always been graded, in local opinion, as from honest to crooked. There have never been enough of the latter to seriously interfere with the progress of business, but a few tidy little deals have been pulled off by the judges of consular courts of small countries in collusion with some business man of their own nationality. However, crookedness or leniency toward one’s nationals - which amounted to the same thing - carried with it its own penalty. Some courts enjoyed the reputation of being very kindhearted, with the result that credit ratings followed national as well as personal lines. The subjects of the Mikado and citizens of a few of the Latin-American republics were generally rated as preferred cash customers - strictly cash because of the great difficulty in securing a court decision against them no matter how convincing the evidence might be. This does not apply, of course, to some of the great Japanese firms which through the years have built up reputations of a very high character for honesty and fair dealing. They were trusted in spite of their courts, not because of them.
Gambling flourished in the International Settlement for years through the protection of extraterritorial laws. The establishments were always run by the citizens of some European or Latin-American country whose laws did not prohibit gambling. Raids and arrests were futile because according to the statutes of his own country the proprietor of the gambling establishment was a law-abiding citizen. Unfortunately for one of my acquaintances who ran a hospitable and highly profitable roulette establishment, his country changed their laws without advising him; and he had to spend two uncomfortable years in jail. Lotteries flourished in Shanghai for a number of years because they were always run in the name of some national whose country did not prohibit them. For a time it
was a Portuguese lottery and later Spanish. In fact at one time the only business interest that demanded the attention of the Spanish consul general was the Manila lottery. There were constant attempts to suppress lotteries but none of them succeeded. Finally the Chinese government solved the problem by establishing a state lottery so much bigger and better than the others that they faded out of the picture – killed by competition.
Because of the uncertainties of the courts with their mixed and tangled jurisdictions, there was a very small amount of litigation among the foreign devils considering the number and the complications of the business deals in which they engaged. All appear to have followed the Chinese practice of so arranging contracts that in the event of a dispute the matter could be settled without resort to the courts. Most of the important contracts made definite provisions for the settlement by arbitration. Lawyers did most of their work at their desks. There were many of them in Shanghai – American, British, Chinese, Austrian, German, Portuguese, Italian, French, Belgian, Japanese and possibly others. All made a living and some prospered and yet their appearances in court were very infrequent. In fact a good snappy law suit was such an uncommon occurrence that it usually attracted as much attention as a murder trial in a county seat town in America.
One of the early tangles the judges ran into was the fact that witnesses of nationalities other than their own were completely outside their control. An American testifying in a British court might commit the most flagrant and obvious perjury, and the most the British judge could do was to scold him. The judge could not even fine him or send him to jail for contempt. This placed the crooked plaintiff in a highly advantageous position, for he could, under oath, tell any version of the story that suited him while the defendant being in his own court had to weigh his testimony with the penalties for perjury hanging over him.
For more than a decade one of the characters of Shanghai was a white-whiskered Dutchman who dabbled in the local stock market and loaned money at usurious rates. He was a litigious old curmudgeon who was constantly bringing suits against someone and almost constantly losing his suit. When this occurred, he usually gave the court a piece of his mind, calling on heaven and the courtroom spectators to witness the fact that he had been defrauded of his rights by a crooked judge. Under the strict interpretation of the treaties the court attendants could not even lay hands on him and chuck him out. When he was plaintiff in a suit the courtroom was always crowded for the spectators had the chance of witnessing a very unusual spectacle. He was, I suppose, one of the few men who ever stood in a British courtroom and called the bewigged puisne judge a crook and got away with it.
Seeing how easily it could be done, other local litigants began to get sassy with judges who had no power over them, and there was a silly summer season of discourtesy to judges which amused everyone but the judges themselves. The purveyors of contempt finally went too far, and the judges struck back after forming a kind of league for their own protection. The next time a British litigant spoke harshly to the judge of the American court, he was charged with disorderly conduct, found guilty in the British court and given a week in jail in which to reflect on the folly of being rude to judges. This legal stratagem was finally perfected to a point where the judge in the national courts of Shanghai is as free from undeserved insult as judges in other parts of the world.
With justice being dispensed from so many founts it was natural that people should be choosey about the fount they wanted to patronize. This was comparatively easy in the prewar days, when few bothered to get passports. In those days of lax national lines, if an American wanted to avoid what he thought might be an embarrassing interview with Judge Thayer and had made the necessary preliminary arrangements, he might easily escape the penalties to which his American nationality made him liable. He might declare himself to be a Cuban, a Mexican, a Peruvian, or one of several other nationalities whose consular authorities were not inclined to remember the letter of the law when some friend was involved.
For years foreigners traveled over the country without bothering to carry their passports with them. That wasn’t one of the privileges given them by the treaties, but the Chinese officials were not troublesome. If a rascal got into difficulties he would claim any nationality that appeared to offer the easiest way out. Thomas Cook & Sons got my first passport for me. It was as easy as sending for a copy of a mail-order catalogue. With the opening of the motor roads the number of foreigners going out into the country doubled and trebled and quadrupled and the Chinese began to insist on foreigners carrying their passports. The first time I made a houseboat trip after the new regulation came into effect I forgot all about them until ready to get on the boat and my passport was locked in a safe miles away. A British friend loaned me his and I had no trouble. On the same trip another British friend had forgotten his passport and settled matters by flying an American flag which he happened to find in the boat he had rented.
Such free and easy disregard for Chinese regulations didn’t last long for soon thereafter the regulations were strengthened and no one thought of going into the country unless he had his passport and it was in order in every detail. Foreigners could no longer wander about the country incognito for they were very carefully checked. Just a month before the incident at the Marco Polo Bridge I went on a long motorcar trip to the Yellow Mountain and on the way back our car was flagged by a Chinese policeman who handed me a dollar change I had coming to me as I had been overcharged for a passport visa. The authorities had made a record of my car number and knew at all times just where I was.
Marriage provided a legally unassailable method of hopping from the jurisdiction of one court to that of another. It was used with great success about thirty years ago when a new American judge arrived with reform ideas and set to work to carry them out before they had time to lose their vigor through contact with the slothful and sinful life of Shanghai. The situation that spurred him to action arose from the fact that practically all of the girls who entertained gentlemen visitors in their comfortable houses on Soochow and Kiangse roads were from San Francisco. They had, in fact, such a monopoly on the business that a local idiom had come into general use. When one mentioned the term “American girl,” it did not suggest a virginal debutante but a representative of what has been described as the oldest profession in the world. The reason our countrywomen enjoyed this peculiar pre-eminence in their field was largely a matter of transportation. A ticket from San Francisco to Shanghai cost about half as much as a ticket from London, Paris, or any other competitive source of supply. Even without this freight differential in their favor they might have held their supremacy, for they were a comely lot. And they were so fashionably dressed that they set the Shanghai styles for their more respectable sisters whose husbands were employed by the big banks and oil companies. They had no rivals until the marvelously beautiful Singapore Kate irradiated the scene like an Aphrodite in the flesh.
Our reform judge considered none of the aesthetic or economic features of the situation. The American flag floated over every first-class house of prostitution in the city. The girls ostentatiously served free drinks to all callers on the Fourth of July and Washington’s Birthday, eclipsing, it is said, the more formal and austere official celebrations with which they competed. Their Thanksgiving dinners were reputed to be the best in town. It was an open scandal to anyone who wanted to look at things that way, and the judge was prone to view with alarm. Egged on by the parishioners of the Union Church which was located practically in the district, he determined to have the law on them.
All were served with subpoenas charging them with vagrancy and given a warning to leave town before the charges were pressed. If they didn’t leave, it was intimated that the judge would jail the whole kit and boodle of them. Just how he could prosecute as vagrants, girls who not only had money in the bank but a large number of visible supporters, was a legal problem that everyone took a hand at discussing. The general opinion was that he had no right to do it.
But the girls’ legal consultant advised them to take no chances on such a remote and intangible thing as the Bill of Rights when there was such an easy and legally unassailable escape by marrying into another nationality. There were at all times a large number of merchant ships in Shanghai, and in the crews of each were to be found men who were fancy free and had no romantic inhibitions. Representatives of a highly respectable firm of attorneys acted as matrimonial agents and arranged marriages on a cash basis - the brides paying the cash. The value of the husbands depended not on their age or good looks, but on their nationality. Those subjects or citizens of countries that had never displayed any puritanical tendencies were preferred. Prices started at $100 but soon rose to $500 as the sailor bridegrooms learned the tricks of the newest profession in the world. By the time the judge got around to pressing his vagrancy charges there wasn’t an “American girl” left in Shanghai. They had all married husbands of some other nationality who sailed away after the marriage had been consummated. Every bedroom was decorated with a prominently displayed marriage certificate.
It was not until the United States applied the quota to immigrants that any flaw was discovered in this convenient legal subterfuge. Some of the girls - now well past middle age - have never been able to get by the quota and return home and are still in Shanghai.
Germans lost their extrality rights as a result of the first World War, and when they came back to China to build up their shattered fortunes they occupied exactly the same status as Chinese - were subject to Chinese laws and to trial by Chinese judges. The Shanghai Germans organized a kind of mutual insurance society to protect its members against the injustices they might suffer in Chinese courts. Whether or not this society ever paid out any money to its members I have no means of knowing, but I am sure that nothing very alarming developed. All other foreigners watched with an anxious eye to see how the Germans fared and found that they fared extremely well. No German property was confiscated, and no Germans languished unjustly in Chinese prisons, and in a remarkably short time they had regained their old volume of trade and were pushing on to higher levels.