Chapter 2 - Governments of Shanghai
The city of Shanghai is governed by three separate and distinct municipal entities, the International Settlement, the French Concession, and the City Government of Greater Shanghai, the last named exclusively administered by Chinese and including all sections of the city outside of the two foreign settlements.
The original formation of the International Settlement and the French Concession has been touched upon in Chapter One. In this chapter a brief outline of the territorial and political development of the three administrative units of Shanghai will be given.
The City Government of Greater Shanghai, theoretically, controls an area of 320 square miles, including territory on both sides of the Whangpoo river, but it is not all yet under an administrative municipal organization. This great area compares with 12.66 square miles, jointly, for the International Settlement and French Concession.
The first definite boundaries of the Foreign Settlement were determined by an agreement between the British and Chinese, dated September 20, 1846, and enclosed an area of approximately 830 mow, or 138 acres. An agreement of November 27, 1848, increased the area to 470 acres.
Incorporation of the sprawling American Settlement by the agreement reached with the British September 21, 1863, added 1,309 acres, the boundaries having been determined by U.S. Consul George F. Seward and the Chinese on June 25, 1863. Two extensions, through negotiations with the Chinese, added sections of 1,896 and 1,908 acres, respectively, in 1899, bringing the present total area of the Settlement to 33,503 mow, or 5,583 acres.
The original French Concession, under agreement of April 6, 1849, comprised 164 acres, increased by 23 acres on October 29, 1861; 171 acres, January 27, 1900, and, a tremendous gain, 2,167 acres on July 20, 1914, the present total area being 15,150 mow, or 2,525 acres, rather less than one-half of the Settlement area.INTERNATIONAL SETTLEMENT
As at present constituted, executive direction of the government of the International Settlement is vested in the Shanghai Municipal Council. The chief active executive officer is the Secretary General, a salaried official appointed by the Council, a position occupied since April, 1929, by Mr. Stirling Fessenden, an American lawyer and a former Chairman of the Council.
The Council, none of whose members is paid, is now composed of fourteen, including, at this writing, five British, two Americans, two Japanese, and five Chinese, who choose their own Chairman. The foreign members are elected annually by the Ratepayers (taxpayers). The Chinese are chosen by Chinese residents. There is no specification as to the nationalistic cornpiexion of the foreign group, its present composition being the result of what might be termed an "unwritten law." Chinese representation, however, is limited to five members.
"Land Regulations." The basic foundation of the civic government is embodied in a code known as the "Land Regulations," first promulgated by Captain George Balfour, first British Consul, November 29, 1845. This code, which has been subjected to numerous revisions, may be regarded as the Magna Carta or bill of rights of Shanghai, as it defines the boundaries of the Settlement, provides for the acquisition and lease of lands (originally in perpetuity from the Chinese), defines the qualifications of electors, who must be land owners or taxpayers, and otherwise provides a structure for administrative government. One historian says the Land Regulations "formed the basis of subsequent enactments governing the Settlement." It is interesting to note that under the suffrage arrangement the annual vote, determining the executive personnel of the government, does not exceed 2,000.
Control of Legislation. In addition to the annual election of the Councillors, the Ratepayers meet once a year (special meetings may be called by petition) to receive and approve, or criticize, the annual report of the Council, pass the budget for the next year and consider other civic matters, frequently suggesting enactments to be made by the Council.
Thus, in theory, the Ratepayers originate, and the Council executes, but any amendment to the Land
Regulations is subject to international negotiation and to acceptance by the Chinese government; the by-laws of the municipality may be amended or added to by resolution of a special meeting of the Ratepayers and with the approval of a majority of the Consuls and Ministers of the Treaty Powers (now the fourteen foreign nations enjoying extraterritoriality).
International Tenancy. Land privileges in the original Foreign (British) Settlement were at first regarded as applying only to the British, but in 1851, by Chinese authority, merchants of all nations were permitted to build in the Settlement, then administered chiefly by a "Committee of Land Renters."
An elective Municipal Council was authorized and its first meeting was held on July 11, 1854. New Land Regulations, promulgated in that year, were signed by the Consuls of the three original Treaty Powers, Great Britain, France and the United States, thus giving the first suggestion of "International" to the scope of the foreign settlements, although the indication thus given of an amalgamation of French interests was not fulfilled (see "French Concession" in this chapter).
The decision to unite the British and American .settlements was reached at a meeting on September 21, 1863, when land renters of the foreign settlements, except the French, agreed to pool their interests and form "The International Settlement of Shanghai," the Ministers of the Treaty Powers approving this decision, and the actual fusion of territorial interests was consummated in December, 1863, one of the provisions being that the Americans agreed to pay one-half of the policing costs of the new community.
As before stated, there were never any formal negotiations between the Chinese and Americans for the creation of the original "American Settlement," but its boundaries, before incorporation with the British, had been defined by joint agreement of Mr. George F. Seward, the American Consul, and Chinese authorlties in 1863. Consul Seward was one of the first to propose the formation of one government for both settlements, American and British. As historians say, the American Settlement "just growed." Justification for the Settlement, however, may be found in the fact that by treaty China had extended to Americans the same privileges to acquire lands for residence and business purposes as the British and French enjoyed.
Chinese Join Settlement. The Foreign Settlement originally was exclusively for foreigners, but Chinese, seeking refuge during the Taiping Rebellion in the early sixties and subsequent external disorders, were permitted to enter and many remained.
Because of the additional administrative burdens thus imposed it was found necessary to subject these Chinese to taxation but they had no direct representation in local government until 1928 when three Chinese members were added to the Municipal Council and in 1930 the membership was increased to five. The inclusion of Chinese Councillors was a direct outcome of the agitation following the bloody rioting of May 30, 1925 (see Chapter One).
"Free City" Proposed. It is of historical interest, because of the tremendous potential changes it might have made in the destiny of Shanghai, to note that in 1862, during the general chaos created by the Taiping Rebellion, the Municipal Council brought forward a plan to make Shanghai a "free and independent city," not an open port, like Hongkong (British), but in reality a municipal republic, entirely self-governing. The system of suffrage proposed would have given control of the city to propertty owners, both Chinese and foreign.
The foreign Consuls and Ministers, however, took a negative attitude, especially the British representatives. Mr. W. H. Medhurst, British Consul to Shanghai, said: "The territory belongs to the Emperor of China, who merely accords foreign powers, that have entered into treaties with himself, an extraterritorial jurisdiction over their own citizens resident in this port (Shanghai), but retains for himself all authority over his own territory and subjects."
The British Minister to China, Sir Frederick Bruce, was even more emphatic in his opposition. He said: "The English concession at Shanghai is neither a transfer nor a lease of the land in question to the British Crown, the land so acquired remaining Chinese territory."
The International Settlement (considered as a community of identic civic interests and services) is now reaching beyond its boundaries and overflowing into Chinese territory that is under the supreme jurisdiction of the City Government of Greater Shanghai, but in recent years the Chinese authorities have refused further territorial extensions, presumptively in the expectation of the ultimate abolition of extraterritorial privileges.
It should be noted here that the official point of view of the City Government of Greater Shanghai, according to the Feetham Report, is that the International Settlement and French Concession actually form part of the area of the Chinese municipality, though distinguished from other parts of that area as "special areas," and that while the exercise of authority by the Chinese municipal government is subject for the present to practical limitations in respect of these special areas, its bureaux are for certain administrative purposes entitled to exercise direct authority within the Settlements.
Extra-Settlement Roads Congestion has forced foreigners to take up residence along 48 miles of extra-Settlement (outside the Settlement boundaries) roads which have been constructed by the Municipal Council under powers of acquisition granted by the Land Regulations. Two fine parks have also been provided by the Council outside of the Settlement under the same authority. There has been some friction between the Settlement and Chinese authorities over the policing of extra-Settlement roads and the extensions of public utilities.
Administrative functions of the government of the International Settlement, as in all other large modern cities, are executed by departments, such as Health, Public Works, Police, Fire, etc., the chiefs being appointed by the Council.FRENCH CONCESSION
The comparative brevity of this section is not due to editorial neglect, but rather to the fact that the French Concession since its inception has been virtually free from the complexities of governmental development which have marked the history of the International Settlement because of the latter distriet's intricate international composition. Part of its history, also, has already been covered in preceding sections.
The French Concession is also under the management of a Municipal Council, much like the International Settlement, and operates with the usual departments or bureaux for the direct administration of civic business. But there is an important difference in the fact that the resident French Consul General is the supreme local authority, exercising the power of veto over the council's actions. He is answerable only to the French Minister to China and to the French Government.
The Council, of which the Consul General is the President, also includes a Vice President and sixteen Councillors. The Consul General and the Vice President, of course, are French. At this writing the Councillors include nine French, five Chinese and two British subjects.
The Feetham Report of 1931 said: "French Concession, administered by the French Consul General, with the assistance of an advisory body consisting partly of appointed foreign members, and partly of Chinese members chosen by Chinese organizations."
Since that time, there has been a further concentration of local authority in the hands of the Consul General, who now selects all members of the Council.
Original Concession Small. The original French Concession was not larger in area than the present Race Course and Public Recreation Ground of the International Settlement. The development of the French Concession, particularly as a residential district, has been very rapid in the past few years.
Because of congestion in the International Settleinent, many foreigners who conduct their businesses there, have their homes in the French Concession. However, a large and flourishing business district is developing in the Avenue Joffre section.
Union of Settlements Blocked. The French Consul, in concurrence with the British and American Consuls, signed the second code of Land Regulations in 1854, and for a period thereafter, at least in theory, the three foreign settlements were under a rather loosely applied joint administration, to the extent of the provisions of the Regulations.
This action was never ratified by the French Government, however, and in effect the French have always exercised solitary control over their own Concession, which has come to be regarded as French territory. The first French Municipal Council was formed on May 1, 1862, and a Code of Municipal Regulations was published in July, 1866.CITY GOVERNMENT OF GREATER SHANGHAI
The first efforts toward the organization of a municipal form of government in the Chinese-controlled territory adjacent to the French Concession and the International Settlement was made in 1911, following the republican Revolution which overthrew the Manchu Dynasty. Little progress was made, however, until July 7, 1927, when, at the triumphant conclusion of the Nationalist movement, the City Government of Greater Shanghai was formally established.
The government consists of a Secretariat and eight bureaux: Social Affairs, Public Safety, Finance, Public Works, Education, Public Health, Land, and Public Utilities. The chief executive is the Mayor, appointed by the Central Government at Nanking, and the government functions under the direct control of the Executive Yuan of the Central Government without the intervention of any provincial authority.
Progressive Movements. General Wu Te-elen, a distinguished Chinese soldier and political leader, was appointed Mayor on January 1, 1932, and at this writing still occupies the office. His services have been of the highest order. Shortly after he assumed office the Sino-Japanese "undeclared war" broke out and Mayor Wu carried through that difficult period with distinction. To his enterprising leadership goes much credit for the rebuilding of the destroyed Chapei district.
The City Government of Greater Shanghai is constructing a magnificent new civic centre to the northeast of the International Settlement and ambitious plans have been made and are being executed for extensive industrial and port development in the entire area between Woosung and Shanghai, a project the completion of which will do much to relieve the growing pressure on the shipping and commercial facilities of the foreign settlements.PRIVILEGES OF FOREIGNERS
There has been much misunderstanding of the term "extraterritoriality." Briefly defined, in present usage it means a treaty arrangement whereby a nation acquires exclusive jurisdiction, in both civil and criminal matters, over its recognized citizens residing in a foreign country. Thus, for example, if a Chinese sues an American in Shanghai, he must do so in the United States Court. If an American sues a Britisher he must apply to the British court.
Extraterritoriality in China may be said to date from the Treaty of Nanking in 1842, when British consular officials were authorized to arbitrate and settle the differences of their nationals with Chinese. However, there was not a definite statement of the principles of extraterritoriality as they were subseqtientl,y accepted. There was a much clearer and more concise definition of the principles involved in the treaty which the United States negotiated with China in 1844 (see Chapter One).
Favoured Nations. Fourteen foreign nations, signatories to "favoured nations" treaties with China, exercise extraterritorial privileges and rights in Shanghai.
They are the United States, Belgium, Brazil, Great Britain, Denmark, France, Italy, Japan, The Netherlands, Norway, Portugal, Spain, Sweden and Switze,land. These either have their own national courts or Consular courts. For instance, the British in Shanghai have H.B.M. Supreme Court and the Americans the United States Court for China. All other foreign tribunals are Consular Courts, presided over by the Consul Generals of the countries concerned, except in the case of France, Italy, and Japan, by whom judges are especially appointed.
Nations represented in Shanghai which have no extraterritorial rights are Russia, Germany, Austria and Hungary. Nationals of these countries, and other unrecognized foreigners, are subject to the jurisdiction of Chinese courts, of which there are two in the International Settlement. The Shanghai Municipal Council has the right to sue in any court.
Chinese Courts. Chinese residing in the International Settlement are under the jurisdiction of the two Chinese Provisional Courts, the Shanghai Special Area District Court and a "Second Branch" of the Kiangsu Province High Court.
The problem of dealing with Chinese offenders in the Settlement has been a vexatious one, the present system having come into effect in 1930. From 1864 to 1927 there was a Mixed Court for Chinese not resident of their own "Native City." This was originally established for the trial of cases in which foreigners were involved but later came to include cases of all Chinese, whether or no foreigners were involved who came under the jurisdiction of the International Settlement. In the old Mixed Court the Chinese magistrate was assisted, in turn, by foreigners, American, British, and German (before the war, when German extraterritoriality was cancelled).
French Procedure. Broadly speaking, judicial procedure as regards nationals is the same in the French Concession as in the International Settlement. A Britisher or an American, or any other foreigner enjoying extraterritoriality, residing in the French Concession is unquestionably under the jurisdiction of his own court in the International Settlement. The French maintain courts for their own nationals and Chinese courts function in the Concession for Chinese and foreigners who do not possess extraterritorial rights.
In the early days of the International Settlement some of the principal Consulates had their own police forces. Now, however the policing of the foreign settlements is entirely within the hands of the Shanghai Municipal Police and the French Police, each operating exclusively within their own districts, but in cordial and efficient cooperation. The same applies to the two fire departments, and to other civic bureaux.JURISDICTION OF NATIONALS
Court. The United States Court for China was created by Congress, June 30, 1906. It is composed of a judge appointed by the President for ten years, and a district attorney, marshal and clerk whose terms are at the pleasure of the President. This court sits regularly at Shanghai and is required to sit once a year in Canton, Tientsin and Hankow. Prisoners sentenced by this court are sent either to Manila or to the United States.
British Courts. Under the Foreign Jurisdiction Act of 1890 Great Britain established jurisdiction over British subjects in China, exercised by a Satellite Court (set up in Shanghai in 1865) and provincial courts, which covers all criminal and civil matters, including divorce. The British Court usually sits at Shanghai, but can convene at any other place in China. Criminal sentences are executed in China, but there is power to send convicted persons to Hongkong to serve their sentences. Death sentences must be confirmed by H.B.M. Minister to China.
French Courts. The Sino-French treaty of Whampoa, October 24, 1844, provides that French citizens in China are cinder. French jurisdiction. There are seventeen French consular courts in China and judicial functions in Peiping (Peking) are performed by the Legation, Recording to a decree of January 31, 1881. In 1917 a judge was attached to the Shanghai consular court. There is no pubiic Prosecutor attached to the consular courts, the duties of the examining magistrate being performed by the Consul. Criminal cases may be carried to the courts of appeal at Saigon or Hanoi. As a general rule, the laws of France are administered in the French courts in China and there is no appeal from judgments in simple Police cases. An appeal to the Supreme Court is brought before the Court of Cessation in Paris.
Belgium obtained extra-territorial rights in China by the treaty of Peiping (Peking), November 2, 1865. There is no permanent consular court, but a court can be formed when and if required. The administration of justice in the Belgian consular courts in China is subject to the control of the Royal Procurator General at Brussels and appeal may be made to the final court at Brussels. The Belgian Consul in China judges petty offenses and there is no appeal from his decisions. In major criminal cases defendants are sent to Brussels for trial.
Danish Consular Court. Regulations of the Danish Court in China are based upon an act of Parliament of February 15, 1895, and all authority vests in the Danish Consular Court in Shanghai, the Consul General being the consular judge. In civil cases the Danish court of appeal is in Copenhagen and, upon demand, a criminal accused by the Danish Consul in Shanghai. may be sent to the authorities in Denmark.
Italian authorities in China have legally controlled Italian subjects since the conclusion of a treaty at Tientsin in 1866 between China and Italy. The Italian Consul General, his substitute, or his delegate,
may sit as a single judge or preside over the consular court. Italian subjects living in the French Concession or the International Settlement are answerable to the respective municipal by-laws. Italians may be expelled from the consular district by consular decree if their conduct does not harmonize with public peace and order, or for moral or political reasons.
Japan Retains Rights. By the Shimonoseki Treaty of 1896 China relinquished extra-territorial rights in Japan while Japan retained them in China. The Japanese consular official in China is empowered to hear and decide all civil and criminal cases, following the procedure of the courts of Japan. Criminal cases are sent to Japan for trial if the Minister of Foreign Affairs so instructs. Criminal sentences are served in the prison attached to the consulate or, in case of a long term, the prisoner may be sent to Japan.
The Netherlands obtained extra-territorial status for its nationals by a treaty signed at Tientsin, October 6, 1863. In civil and criminal cases the laws of The Netherlands are followed, with some minor exceptions. In commercial cases regard must be given to well established local usages of trade.
Norwegian jurisdiction follows a law of March 29, 1906, and the Norwegian Consul General at Shanghai is the consular judge. If a crime penalty exceeds three years the case must be referred to the courts in Norway and appeal lies with the Supreme Court in Oslo.
Jurisdiction over Portuguese citizens in China is provided by a treaty concluded between China and Portugal in 1887. The laws of Portugal are applied in all cases and the decision is subject to appeal to the high judicial court in Goa, Portuguese India. Criminal sentences are served by exile in Portuguese colonies in Western Africa. These cases have to be sent to the judicial court at Macao. There is no death penalty in Portuguese law.
Spanish Law Observed. The basis of Spanish consular authority in China was established by a treaty of 1864. The Spanish consul forms the consular court and the Spanish law is followed. The Consul takes no note of offenses committed by Spanish subjects in which no arms have been used and which have not resulted in bloodshed. In these cases the Consul proceeds officially, associating with him two Spaniards, or, failing them, two foreigners of repute.
Sweden's consular rights are based on the treaty concluded between Sweden, Norway and China on March 20, 1847. Another treaty between Sweden and China was concluded on July 2, 1908, confirming the special rights acquired by Sweden. Judicial functions are concentrated in the hands of the consular judge, the Swedish law being followed generally although local conditions are taken into consideration. Appeals are made to Stockholm.