The East And The West

Contents

ESSAY PAGE

I. OUR CONSULAR SYSTEM FOREIGN JURISDICTION IN

COUNTRIES HAVING REGULAR GOVERNMENTS . 1

Introduction

TEE perversion of ideas through the use of vague and false terms, such as policy, expediency, civilisation, military operations, &c., is the chief cause of the inability to distinguish between right and wrong which leads to the rapidly increasing number of little wars in which the cdunfty is involved. These are Becoming so ^frequent, and are so lightly entered upon, th,at disasters have occurred before the country even knew that its troops were engaged. We have forced our presence upon the Japanese, and have compelled them to admit our consular jurisdiction, though its inefficacy to maintain order had been proved by experience : though Sir Rutherford Alcock has exposed its defects in the first chapter of his second volume on Japan, which is probably only a transcript of his official correspondence, no steps appear to be in contemplation for their remedy.

In 1829 M. Abel Remusat inveighed against the practice of Europeans in adopting a different standard of right and wrong out of Europe, following only their own will and

VI INTRODUCTION.

pleasure; but since he wrote the following passage the evil he complained of has immeasurably increased : " A singular race is this European race* The opinions with which it is armed, the reasonings upon which it rests, could astonish an impartial judge, if such an one could be at present found on earth. They walk the globe, showing themselves to the humiliated nations as the type of beauty in their figures, as the basis of reason in their ideas, the perfection of understanding in their imaginations. That is their only measure. They judge all things by that rule. In their own quarrels they are agreed upon certain principles by which to assassinate one another with method and regularity. But right of nations is superfluous in dealing with Orientals."

The necessity of again calling attention to these ills, is the excuse or the justification for the publication of this series of Essays. The fifth of the series does not refer to the above-mentioned subjects; but since the recent startling announcement that Convocation has already taken steps to effect intercommunion between the Church of England and the Eussian Church, its publication is not less opportune.

I

OUR CONSULAR SYSTEM FOREIGN- JURISDICTION IN COUNTRIES HAVING- REGULAR GOVERNMENTS.

FOREIGN jurisdiction, or " extraterritoriality " as it is now sometimes called, is the right ceded by one State to another State of judging by its own officers causes arising amongst its subjects residing in the territories of the State which thus ceded part of its sovereign rights. This subject may be examined under three aspects ; viz. its justice, its expediency, and its practicability.

Foreign jurisdiction is not an abstract right which can be claimed, or which is founded upon any other grounds than the good pleasure of the State which makes this concession or delegation of its rights. Neither has this system any antiquity in its favour. The Civis Romanus, whose memory has been invoked in support of the widest demands

B that could be made in behalf of British, residents in foreign states, enjoyed no such privileges or immunities. His privileges were enjoyed only within the limits of the Eoman Empire, and his position was like that held by the Englishman in India; though, in all probability, it did not quite amount to that, since Englishmen in India claim to be free from the jurisdiction of native magistrates, although appointed under British authority.

The custom of foreign jurisdiction arose from the grant of this privilege made by the Ottoman Sultans.

These grants, or delegations of the right of jurisdiction, were made by the Ottoman Government of its free will and pleasure, at a period of the plenitude of its power, when its greatest neighbour, the German Empire, was its tributary, and before the existence of that of Eussia. This delegation of authority was in accordance with the principles of the Ottoman Government, which had already delegated civil jurisdiction amongst its Christian subjects to the Bishops at the head of the respective Churches. It is often erroneously imagined that these privileges were obtained, nay, even forced from the Ottoman Government, under treaty stipulations, on account of the name by which these privileges are known ; namely, the " capita-

THE TURKISH CAPITULATIONS. 3

lations." This word, however, lias no connexion with the verb "to capitulate;" but is derived from the Italian " capitulazione" having the meaning of headings or sections. At the time that the Ottoman Porte confided to the Christian embassies the power of administering the law to their subjects, this concession was not fraught with injury to the Porte. At that time the number of European subjects who came to Turkey was very small ; those who came were much more under the authority of their Ambassadors and Consuls than can be the case at the present time: the capitulations contained, and still contain, provisions which have been since eluded, which prevented injury accruing to the State from the privileges which it granted. The Christian Kings, also, were more careful that these privileges should not be abused. The celebrated traveller Tavernier mentions that he had deposited a sum of money, as a security for his good behaviour, in the hands of the King's Intendant at Marseilles, before leaving France for Turkey. When the number of foreigners was very small, and was limited to men of worth and respectability, the injury caused by their immunity from subjection to the law of the land was also limited, but the introduction of steam communication and the increase of travelling has entirely altered the circumstances

The treaties, moreover, up to the present time, only sanctioned the establishment in Turkey of wholesale merchants, and did not allow of retail dealers ; for it is known that a clause in a late treaty concluded between Great Britain and the Ottoman Empire, containing words sanctioning retail dealers, does not exist in the original, but was inserted in the translation by an interpreter. Such a practice would bear an ugly name if it came under the cognisance* of an English court of law. The consequences have been two-fold; the foreign shopkeepers pay no taxes to the State in which they live, and are thus in a more favoured condition than the shopkeepers subjects of the country ; they are also in the condition of privileged creditors and privileged debtors : secondly, the following of certain trades by foreigners, under the present system of foreign jurisdiction, renders the administration of justice impossible : all the wine-shops and coffee-houses kept by lonians, Maltese, Greeks, and others, are closed to the police. These wine-shops are the rendezvous of robbers, murderers, and other criminals, who are more secure there than criminals were formerly in the sanctuaries of Alsatia and the Savoy. These abuses have been swept away throughout Christendom; why should Christian Governments wish to maintain them in Turkey in behalf of criminals who

EUROPEAN CRIMINAL POPULATION OF PERA. 5

are not even their own subjects ? for a very large proportion of the scum of Pera and Gralata are only protected subjects ; that is, persons abusively enjoying the immunities of the capitulations. It must be observed here, that when the Porte granted these privileges they were not intended to be applied to her own subjects ; but a very large proportion of the subjects of the European Consuls, in all the countries in which the principle of foreign jurisdiction has obtained, are denationalised subjects of the State which has been deluded into making this fatal concession. The consequences to Turkey of the existence of the European community of Pera and Galata are a large accession of criminal population, a source of demoralisation, deprivation of the power of pursuing the criminals to their haunts, and absence of contribution by this community of their share of the taxes for defraying police expenses caused by themselves.

The Europeans in Turkey not being amenable to the local tribunals construe this immunity into impunity, and claim to do that which none of the inhabitants may do, and also that which is disallowed in all countries. It is but since the last treaty with Great Britain that the Porte has succeeded in excluding gunpowder from amongst those articles which may be freely traded in. Yet in all countries

6 OXJR CONSULAR SYSTEM.

the trade in gunpowder must be subject to government restrictions, whether with reference to the possibility of insurrections or to the danger from fire to life and limb. "Wine and spirits in a strictly Mussulman country, such as Arabia, or in countries such as Siam and Japan, are in the same category, and cannot become lawful objects of importation for the use of the inhabitants. Tet, when compensation was exacted for the sufferers by the Jiddah massacre, one of the claims brought against the Porte was put in by a Greek, not a British subject, for fifty thousand dollars for a wine-and-spirit shop. This shop probably only contained in reality a few bottles of raki and a couple of barrels of wine, of a far less value ; but had it contained the quantity alleged, how can such importation be justified, whilst yearly attempts are made in Parliament by the supporters of the Permissive Bill to check the extension of the sale of spirits and the national vice of drunkenness? It must not be forgotten either, that the calamity at Jiddah was entirely brought on by the drunkenness of the locum tenens of the British Consul, and by his violence in enforcing his own decision of a matter which he should have referred to the Embassy at Constantinople.

The privileges conferred by what are called the capitulations, and by the successive treaties made

FOREIGNERS IN TURKEY. 7

in imitation of them with other States of Asia, were only intended to secure immunity from the summary action of local tribunals: these privileges, though placing foreigners in an exceptional position, were clearly not intended to place them in a position superior to that of the inhabitants of the country. The ancient Ottoman privileges did not, for instance, grant immunity from taxation to a large foreign community, since they not only did not contemplate, but they provided against the permanent settlement of foreigners, such as those who form the inhabitants of Pera and Gralata. These people are designated by the Turks as Vatansiz, or people without a country, and they entirely fulfil the conditions implied by VattePs definition of vagabonds ; viz. people born of parents who have lost their domicile in one country without becoming naturalised in another. They may also be described as without a language, for they speak neither French, Italian, Greek, nor Turkish correctly, and their conversation is usually a mixture of those languages, amusing specimens of which jargon have been given by M. The*ophile Gautier. But those treaties which have reference simply to the action of law-courts and police, have been wrested into the right of disregarding the laws, regulations, and social observances of the countries where those

OUR CONSULAR SYSTEM.

treaties exist. For instance, regulations exist in many European countries which may appear ridiculous to the inhabitants of others, but which they would not be borne out in disregarding : such as the prohibition of smoking near the sentries posted at some of the German Palaces ; of keeping the head covered when the Host is passing ; of whistling or playing on a musical instrument on the Sabbath in Scotland ; of driving down Constitution Hill without the entree ; of driving fast in certain places ; of walking on the grass-plots in the University quadrangles 1 , or in various places of public resort, and the like. Now the extra-territorial treaties do not put foreigners above the law, but simply provide that infractions of the law shall be judged by or in the presence of the Consul. Yet in all the countries where these treaties hold, Europeans seem to make it a business to break through all the regulations, and disregard all the observances which they meet with. In Turkey, for instance, they try to

Francisco Suarez the Jesuit, who wrote in the middle p/ 1500, in his work called "Tractates de Legibus ac Deo Legislatore," insists on the necessity of foreigners respecting the laws of the country in which they may he living, and the examples he gives include usages as well as laws of universal application. He says :

" Moreover it is estahlished from what has been said, that some have not rightly laid down that foreigners are hound to observe these laws only for the sake of avoiding scandal. This, indeed, is

MISCONDUCT OF FOREIGNERS. 9

ride fast past the Sultan's Palace, to keep their umbrellas up on passing in front of it by water : some may perhaps, some day, not dismount from their horses when the Sultan passes them in the street. In 1852, one of the English steamers which used to ply between Gralata and Buyukdereh used sometimes to land passengers at Arnout-Keuy, on a quay belonging to, and in front of one of the Imperial Palaces, then occupied by Ahmed Fethy Pasha, a brother-in-law -of the Sultan. Notice was given more than once to the captain of the steamer to desist from this practice, which was not only a

not true ; since otherwise, if the scandal were removed, they would not be bound by these laws on their own account, or in secret places. It must therefore he said, that granted that if an actual scandal should intervene the obligation would accidentally increase, yet the scandal is not the real foundation of the obligation, but at most it is the occasion or motive which moves the legislator to enact a law, the obligation of which does not cease, even if in a particular case the motive should cease. As if arms were prohibited in such a place or time for the avoiding of broils, and if women were prohibited from adorning themselves in such mode or other, that they may not cause scandal ; and nevertheless, after laws are laid down, the obligation is not so much on account of the scandal, but on their own account by reason of such laws. Therefore it stands in this case, that the necessity of avoiding scandals, and of preserving the good morals of the State, leads to the enacting of laws for all who may be found in such a place ; and therefore, after the law is established, the foreigner is hound to conform to it, not only by reason of avoiding offence, but also on account of the law itself, and due subjection to it, as has been explained." (Lib. iii. cap. 33.)

breach of etiquette, but a positive nuisance, as the steamer blew all its smoke into the palace windows. The captain, however, took no heed of these warnings, and, the very day on which he had received one, came alongside the quay to land his passengers. These were met and opposed by the servants of the Palace : some of the passengers remained discreetly on board and landed higher up ; but others, chiefly British subjects, landed in spite of the opposition, and some of them in the- fray, in which wooden stools from the steamer were used, got their heads a little broken. One would think that they had deserved what they got, and would have been glad to let the matter end there ; and so Colonel Rose, Her Majesty's Charge d' Affaires, thought at first ; but their clamour was so great that he was at length induced to make representations in favour of these disturbers of the peace, and Ahmed Fethy Pasha, in order to save the Porte farther worry, paid a sum out of his own purse to satisfy the claimants, who were some Jew clerks of an English banker. It may be observed by the way, that the plying of the steamer at all was an illegality, as it came under the denomination of coasting trade.

The conduct of the Indian officers and an English woman in a mosque at Cairo a few years ago was another instance of that misbehaviour which is en-

OUTRAGE IN EGYPT BY BRITISH OFFICERS. 11

couraged and brought forth by a sense of imptmity If the Pasha of Egypt had not been present, the consequences to these persons might have been fatal, and an international complication would then have ensued. A court-martial was held upon these officers, but as they were acquitted, they would not have been much discouraged from attempting the same practical jokes upon Her Majesty's Indian subjects, had not Sir Hugh Rose, the Commander-in-Chief, blamed the finding of the Court : they, however, escaped from any ill consequences of their misconduct.

In Siam, Europeans delight in standing on the small wooden bridges over the canals when any of the Ministers or great nobles are passing beneath in their barges, because this is contrary to the observances of the country ; and about the year 1858 some Germans would go and shoot pigeons at one of the temples, though this amusement was forbidden. On one occasion the priests and students sallied forth against the intruders and broke their guns over their backs. They complained to Her Majesty's Consul ; and though it was admitted that they were wrong in shooting the pigeons, the priests had to pay a large doctor's bill for the blows they had given.

In Japan, the murder of Mr. Richardson and the subsequent burning of Kagosima arose from the

12 OUR CONSULAE SYSTEM.

wilful disregard of warnings given, to the effect that a certain road was not to be used during a certain time. Mr. Moss got into trouble, and caused the death of a Japanese officer through his determination to shoot oyer ground where the Europeans had been prohibited from shooting. The French journal "LaPatrie" observed at the time, that foreigners attempting to shoot in Windsor forest, or in the French forests, would at once find themselves within the grasp of the law, and that there was no reason why it should be otherwise in Japan. One of the worst cases of breach of the law is that given in a pamphlet called "Diplomacy in Japan," p. 41, in which Sir Rutherford Alcock, Her Majesty's Consul and Envoy, describes his having trespassed upon private land, not unawares, but in spite of being warned off, and the remonstrances of guardians appointed to keep off intruders. When the head of the community, placed over it to maintain the observance of law, sets such an example, what can be expected of the irresponsible, uneducated persons who form the British community in Japan ? Yet the Japanese Government is made responsible for the consequences which may occur to any European who chooses to wander over the face of the country, and get himself into trouble by his unwarrantable conduct. If it be asked, " Would you have Government abandon its subjects,

TREATMENT OF FOREIGNERS IN RUSSIA. 13

and let them travel at their own risk and peril P" it may be replied : Let them have in Japan the same measure of protection which Her Majesty's Grovernment accords them in Russia, as set forth in the papers presented to Parliament in 1864, relative to the case of Mr. Anderson, who had gone to Poland and got imprisoned on suspicion which was unfounded. He was nevertheless told that he had himself to thank for having gone where he was not wanted, and that Her Majesty's Government declined to interfere in his behalf to secure him compensation for his detention.

The author of the above-mentioned pamphlet on " Diplomacy in Japan " justly observed, that the principle of extra-territoriality is most anti-humanitarian, since it implies that one nation doubts the good faith of another nation. The pretext now usually put forward in support of foreign jurisdiction in certain countries is, that their legislation, and especially their punishments, are barbarous. Taking this ground alone, the capitulations are clearly obsolete in Turkey ; for capital punishment is very rare there, and the prison life is less severe than in many European countries/ The assertion that the law-

" Nothing could exceed my surprise, I may say disappointment, for I had strung my nerves for a trial on going into the Bagnio, to find it by no means a horrible place, but a very quiet,

14 OUR CONSUL AB, SYSTEM.

courts of any country are irregular or venal is not enough to justify the introduction of anarchy and impunity to crime which follows upon a foreign jurisdiction treaty, since this assertion may be made, and is made, in many countries of Europe and America, in which no one would think of proposing to introduce foreign jurisdiction. This accusation, moreover, is frequently brought against the consular courts. Besides which, people who leave their country for their pleasure or profit cannot expect to find all that they leave behind them ; and want of confidence in a foreign law-court is a matter entirely relative and of appreciation, which might, with equal reason, lead Englishorderly-conducted prison. The galley-slaves of Toulon, I positively assert, are one hundred times worse off than the inmates of the Bagnio. The only point of resemblance is in their food, equally bad in each, consisting of a kind of hog-wash, sufficiently nutritious to keep the bones covered : in all other respects they differ. The galley-slaves are chained in gangs, the Bagniotes in pairs. The former must sleep on boards, the latter may sleep on beds. In Toulon dockyard no horses or steam are employed, in order that the culprits may have the harder work. In the Constantinople arsenal the number of sailors on pay, whether tl^ie fleet be in commission or not, is so great that the convicts have scarcely anything to do. The former have not the advantages of religion; within the precincts of the Bagnio are a Mosque, a Greek Church, and a Synagogue. In Toulon there are four or five thousand galley-slaves; in the Bagnio the number rarely amounts to one hundred, for a city containing about half a million of souls, and the chief rogues of the Empire." Admiral Blade's Travels in Turkey, vol. i. p. 105.

ADMINISTRATION OF JUSTICE IN ASIA. 15

men to object to being subjected to the French system, of the judge conducting the prosecution, bullying the accused, and treating him as though his guilt were already proved.

Granting that the punishments of some countries of Asia, such as China, are barbarous and cruel as were those of Europe till a recent date it would have been enough for the purposes of humanity if the foreign jurisdiction treaties had merely stipulated that no European should be subject to corporal punishment or torture, and that capital punishment should only be incurred for murder clearly proved, and limiting the punishments to be inflicted by local tribunals to fine, imprisonment, and banishment : the consul having the right to inspect the prisons and prison diet. It is said that imprisonment in tropical climates is too severe a punishment for Europeans : in those cases, banishment might be substituted for imprisonment : but it may be fairly urged by the Governments of Asiatic countries, that if foreigners come to their country and misconduct themselves, ttey must take the consequences of a climate to which nothing obliged them to expose themselves.

A few extracts from early travellers may not be out of place, as they show that the administration of justice in Asia was not barbarous, though the punishments inflicted may have been severe. At the date at which, some of these were written, justice in Europe was still stumbling blindfold between redhot ploughshares. The following extract is taken from "India in the Fifteenth Century," vol. i. p. 14:

" It is remarkable that the administration of justice in India has been the theme of general admiration from the earliest times. Greek and Roman writers, from Diodorus Siculus downward, have eulogised it ; Marco Polo witnesses on the same side ; and later Arabian authors confirm their favourable testimony. El-Edrisi says, justice is a natural instinct among the inhabitants of India ; and they hold nothing in equal estimation. It is stated that their numbers and prosperity are due to their integrity, their fidelity in fulfilling engagements, and to the general uprightness of their conduct. It is, moreover, on this account, that visitors to their country have increased, that the country flourishes, and that the people thrive in plenty and in peace. As a proof of their adherence to what is right, and their abhorrence of what is wrong, may be instanced the following usage : if one man owes another money, the creditor finding him anywhere, draws a line in the shape of a ring around him. This the creditor enters, and also the debtor of his own free will ; and the latter cannot go beyond it until he has satisfied the claimant : but should the creditor decline to force him, or choose to forgive him, he (the creditor) steps out of the ring. Abd-er-Rezza'k, also, speaking of Calicut, says, Security and justice are so firmly established in this city, that the most wealthy merchants bring thither, from maritime countries, considerable cargoes, which they unload, and unhesitatingly send into the market and bazars, without thinking, in the meantime, of any necessity of checking the account, or of keeping watch over the goods,"

NO DROIT D'AUBAINE IN ASIA. 17

says :

a The mode of procedure against debtors, as described by El-Edrisi and Varthema, and which Marco Polo, before them, states to have seen earned out against the person of the King of Malabar, is confirmed by Hamilton, with slight variation."

Tavernier says, "Travels in Turkey and Persia," Paris, 1676:

ft This was not the only example which I could produce of the good order established in the whole of the East for the preservation of the goods of a foreigner, to however distant a country he may belong, who may happen to die in Turkey, or in Persia, or in India. For if these goods fall into the hands of Mussulmans, they shut them up carefully under lock and key; and they would never touch them until the true heirs of the deceased, clearly recognised as such by authentic proofs, came to claim them. If these same goods come under the direction of the English or the Dutch, they take an inventory of them, and give notice of it to the heirs, to whom, they faithfully remit them ; and I doubt much if, in many parts of our Europe on such occasions, so much sincerity and exactitude is made use of. w

TKe following is from ' ' Relations des Voyages par le^Arabes dans 1'Inde et la Chine, dans le Neuvienie Siecle:"

" A person who wishes to travel from one province to another obtains two papers; one from the governor, the other from the eunuch. The governor's paper serves for the road, and contains the names of the traveller and his suite, with their ages and nationality. Every one who travels in

c

18 OUK CONSULAR SYSTEM.

China, whether a man of the country, an Arab, or any other, cannot dispense with a paper, by which he may be recognised. And the paper of the eunuch mentions the money and property of the traveller ; and that is because there are on the roads people appointed to look into the two papers. And when a traveller passes they write for him, Such a one, son of such a one, arrived here, of such a country, on such a day of the month, in such a year, with such property : so that a man may not lose his money or property. And if a traveller loses anything, or dies, it is known how this happened ; and it is restored to him, or to his heirs after him/'

Ibn Batoutah, In his " Travels," written in 1355, relates that

" It is the custom in China to take the portrait of whoever passes through the country. This is done to so great an extent, that if a foreigner were to commit an action obliging him to fly from China, his portrait is sent to the different provinces j so that search is made, and in whatever place the man represented in the portrait is found, he is arrested."

Ibn Batoutah also mentions the custom of the Chinese of registering all the crew of sea-going junks, and of requiring an exact account of all of them from the master on his return to port. This writer also praises the precautions taken in China for the safety of merchants and travellers, a list of whom is sent on from one station to another, to ascertain the safe arrival of all of them and of their merchandise.

The droit d'aiibaim, which is the contrary of the above-mentioned honesty with regard to the property

OPIUM WAR THE CAUSE OF ANARCHY IN CHINA. 19

of deceased foreigners, was protested against at a very much later date by Vattel and Grotius.

With regard to the expediency f the foreign jurisdiction, it may he said that this system is the chief cause of wars, and that it is inexpedient for any state to incur the risks of war for the sake of securing license and impunity to the criminal class for well-behaved people do not require the intervention of the Consuls. Earl Grey has set forth in the House of Lords, what has been generally admitted, that our war with China, undertaken for the purpose of enforcing the importation of opium, weakened the Government of China, so as to produce the anarchy which now desolates that country. Lord Grey pointed out last session that the foreign jurisdiction was producing the same effects in Japan, by stimulating the license of the European community, who find themselves released from all restraint ; that this trampling upon the self-respect of the Japanese must lead to war ; and that, after much bloodshed and expenditure, we shall perhaps reduce Japan to a state of anarchy like that we have brought about in China. Lord Grey was derided by Ministers, but his words were confirmed before the end of the session by the publication of Sir E. Alcock's requisition for troops, which, he says, may be wanted for service in other parts of Japan. In the meantime, he has called upon the Japanese Government to provide barrack accommodation for these troops. On what footing are these troops coming ? Are they friends or foes ? Is this peace or war ? Has the Japanese Government given permission to land these troops, or are they going without permission? If so, Tby all international law, this is war, and should have been preceded by a Declaration of War by Her Majesty, without which it is filibustering of the most cowardly description ; and Japan is being cajoled into giving admittance to the vanguard of an army of invasion. The proceeding is so far from law and right, that it resembles the caricature of civil war. But though these troops enter Japan by means of a civil request for barrack accommodation, the consequences will most likely be tragical. In sending these troops, what object does the Government propose to itself ? The eight companies which will shortly be in Japan are more than are wanted for a body-guard for the Consul, and too few for any serious military operations. They are enough to cause serious alarm to the whole Japanese nation, and apprehensions of invasion and conquest, followed by an attempt to drive out the intruders. We shall then have become involved in a war with a numerous and brave nation, in a portion of the globe the farthest removed from England a nation which was pros-