Excavating Extraterritoriality: The "Judicial Sub-Prefect" as a Prototype for the Mixed Court in Shanghai

It is fairly well established in Western historiography on China that the early treaty port system in general and extraterritoriality in particular were not simply forced on China by the Western powers, but rather were a product of joint efforts to establish a new modus vivendi. In an essay on the "unequal treaties" and the traditional Chinese tributary system, John K. Fairbank pointed out that "the treaty system in its early decades from 1840s to the 1880s was not merely a device for bringing China into the Western world; it may equally well be viewed as a Qing device for accommodating the West and giving it a place within the Chinese world." ¹

In a similar vein, Joseph Fletcher regarded the treaties with the West as an extension of privileges that had already been conceded to the khanate of Kokand in 1836. By granting Kokand traders extraterritorial rights, the Qing Empire was essentially acquiescing to "a time-honoured custom among Muslim traders," a custom which in the eastern Mediterranean had given rise to the capitulations of the Ottoman Empire in the sixteenth century ² and provided western European powers with an early model for extraterritoriality. The Japanese historian Kuwabara Jitsuo, drew parallels between the treaty port system and the relative autonomy that Arab traders enjoyed in the port-town of Quanzhou during the Song dynasty. ³ Others have pointed at the relative autonomy that foreign traders enjoyed in medieval China and the "equal" treaties that the Qing Empire concluded with Russia in Nerchinsk (1689) and Kiakhta (1727), which regulated border trade between the two empires and provided for the mutual extradition of criminals. ⁴ More recently, historians have given attention to the existence of guilds and their role in the formation of foreign communities in Shanghai after 1843. ⁵

Nevertheless, the Qing legal system furnished other, more immediate precedents to extraterritoriality, precedents that were closer to the treaty ports both temporally and spatially. It is well known that bannermen in general and Manchus in particular enjoyed certain legal privileges under Qing rule, many of which were retained right till the fall of the dynasty. Unlike other ethnic groups—such as Mongols, Miao, or Yao, all of whom lived in the periphery of the Empire—the Manchus lived in the heartlands of "China proper." The preservation of Manchu identity and good relations with the mass of Han Chinese were so vital for the dynasty's survival that specific sub-statutes on the adjudication of Manchu-Han disputes were added to the Qing Code in the early decades of the dynasty.

The existence of this system meant that the rulers of the Qing Empire had experiences to draw upon when they accommodated foreign demands for extraterritoriality and built institutions in order to deal with its problems. Nowhere is the continuity between "traditional" and treaty port institutions more salient than in the case of the Mixed Court in Shanghai. By comparing the Chinese version of the treaty texts with other legal sources, we can observe a direct borrowing and adaptation of long existing Sino-Manchu legal concepts and institutions. The idea of Shanghai as the fountainhead of China's modernization has been so pervasive that most scholarship has ignored the fact that Shanghai existed within the Manchu political order, just like any other city in China. Not far from Shanghai, there were no fewer than four banner garrisons—Jiangning, Jingkou, Hangzhou, and Zhapu—all of which were retained until the end of the Qing dynasty. Indeed, the Qing officials that were experimenting with the local implementation of the "unequal treaties" did not need to look beyond the borders of Jiangsu province to find models for how to deal with this most recent batch of "resident aliens." ⁶

The connection between the treaty port system and indigenous Qing institutions for the management of ethnic conflicts have...