Focusing on Britain's colonial legacy to ordinary Chinese people, as well as on British imperial decline in Republican China, this article examines the drastic infringement of the arrest, prosecution and penal powers of the Shanghai Municipal Police (SMP) that took place from the mid-1920s. These legal erosions were reflected in the collaboration between the Guomingdang (GMD) (the Nationalist Party of China) and the International Settlement over the arrests, extradition and attempts to re-educate Communist suspects and convicts during the Nanjing decade. This article accordingly addresses the following questions: In what ways did English legal conventions as practiced in the Shanghai International Settlement—one of China's treaty ports which were opened to foreign trade by the unequal treaties with the Western powers—create obstacles for the GMD when it sought to arrest alleged Communists? How and to what extent was the SMP deprived of its judicial obligations when handling politically sensitive cases? What were the responses of unarmed Chinese asylum-seekers and alleged political offenders to the sedition charges that they faced in the Settlement court system? Where might we locate inter-war Shanghai within the wider periodisation of British colonialism? And in what ways might British colonialism also have been favourable to Chinese people living in the British-controlled Shanghai, in terms of English legal conventions?
In what follows it is argued that the decline of British imperialism in China, which started after the rise of the GMD from 1927, can be seen in terms of SMP powers of arrest, prosecution, and prison management. The Settlement authorities, including the SMP, worked increasingly in concert with the Nationalist government—a newly-established regime that threatened the immediate abolition of all foreign privileges in China—to remould the legal system in the Shanghai International Settlement for the convenience of the GMD, which was also seeking to eliminate its political rivals. In this context, the unlawful arrest of Communists along with other legal transgressions in the Settlement between 1927 and 1937 represented a relinquishment of English legal conventions on the pretext of national safety. Moreover, the treaty port legal system brought an unintended impact on at least some Chinese contemporaries: namely, an enhanced judicial awareness amongst alleged Communists, certain residents in the Settlement, and a number of Chinese intellectuals, who insisted on the judicial empowerment of individuals and argued against what they viewed as biased and unjust treatment in the Settlement's courts.
More broadly, this article also raises the question of how far the decline of the Shanghai International Settlement's judicial powers can be correlated with the wider periodisation of British decolonisation. The nature of the British imperial presence in China shared many similarities with Britain's crown colonies at the high point of Western imperialism, despite differences between these two types of colonial ‘enclave’. As Anne Reinhardt has observed, the formation of ‘semi-colonialism’ in mid-nineteenth century China points to a social setting in China that was similar to what existed in some parts of Britain's formal empire, such as India.Footnote 2 Colonial conceptions of ‘race’, which Reinhardt employs in the case of high-class Europeans and low-grade colonial subjects on board Chinese and Indian steamers, involved the segregation of people in public space based on their ethnicity.Footnote 3 For example, with a view to catering for the needs of Chinese passengers—men who were considered as racially inferior subjects, and separated from their Western counterparts on board—ship compradors had to recruit self-employed passenger attendants called ‘chafang’ (teaboys) who provided a poorer service compared with that given to foreign passengers by Western-style stewards.Footnote 4 Hence, colonial conceptions of race provide one possible way of connecting ‘well-established’ English legal conventions and extraterritoriality in China to the wider context of British imperialism. An extensive array of scholarship regards decolonisation—when referring to the dismantlement of Britain's formal and informal empire—as a post-1945 historical phenomenon. John Springhall, whose work highlights the remarkable strength of colonisers in suppressing widespread revolts throughout different European empires before 1945, has argued that the decline of the British imperial presence in Asia only accelerated once white settlers lost their determination to sustain their racial prestige in the post-Second World War period.Footnote 5 Likewise, Roger Louis, who sheds light on Whitehall policy makers’ attempts to reshape Britain's post-war relations with former colonies on equal terms, has discussed how the beginning of the British Empire's dissolution, led by Clement Attlee from the mid-1940s, finally reached its climax during the administration of Harold Macmillan in the early 1960s.Footnote 6 In contrast to what happened after 1945, the place of the inter-war period within Britain's broader decolonisation process has been less emphasised and largely understudied.
Parallels can thus be drawn between the International Settlement's diminishing judicial autonomy during the inter-war period and the gradual decline of Britain's informal empire in the twentieth century. Discussing how British settlers were forced to compromise with the Chinese authorities in various socio-political respects, Robert Bickers has argued that British decolonisation dates back to the inter-war period when fervid nationalism emerged in mid-1920s’ China.Footnote 7 Increasing Chinese representation in the Hankou British Municipal Council in Wuhan, and Britain's eventual surrender of the Hankou concession to the GMD in 1927, represented early signposts of British imperial decline in East Asia, and marked the beginning of the decolonisation road that ended with the handover of Hong Kong in 1997.Footnote 8 John Darwin, who used to argue that the British and the Settlement authorities became incapable of upholding their interests in China only after Japan's imperial expansion in the late 1930s,Footnote 9 has since reframed his assessment by taking into account the extent to which Britain's extra-territorial rights and tariff concessions were compromised at an earlier date.Footnote 10 Apart from being threatened by the GMD, which wished to abolish extraterritoriality entirely, Britain's imperial presence in East Asia was also endangered by Japanese encroachment into China following Japan's victory in the first Sino-Japanese War in 1895. Studying the correlation between drug traffic and imperial rivalry amongst Japan, Britain and the United States, for example, William Walker has stressed the role of opium and narcotics in facilitating Japan's ambition to counteract Western economic and political influence in China during the late nineteenth and early twentieth centuries.Footnote 11 Indeed, focusing on the diplomatic relations between Britain and Japan, Ian Nish had earlier pointed out the deterioration of the Anglo-Japanese alliance from the 1910s thanks to how Japan's commercial and military expansion that threatened Britain, prompting Britain in turn to attempt in vain to restrain Japanese encroachment.Footnote 12 Bernard Wasserstein, in his exploration of Japanese imperialism's challenge to the Western presence in wartime China, has stated that many foreign expatriates aligned themselves with Japan by handing over their administration and other infrastructure to its military.Footnote 13 Hence, in line with this trend towards re-evaluating pre-war China, this article highlights the significance of inter-war developments for Britain's imperial presence in East Asia. But in addition, it also points to the significance of the British colonial experience for the legal awareness of Chinese people living in the International Settlement.
The role of the English legal system in Britain's colonies and treaty ports has become a controversial and much-debated topic. Highlighting the social stratification in Shanghai, as a result of the criminal injustice in the International Settlement, Emily Whitewell has recently made it clear that the courts not only penalised vagrants who were assumed to impair British prestige based on the concepts of class, race and gender, but also in many cases did not punish those white settlers who were accused of being involved in rape and other sexual offences.Footnote 14 Despite such failings, however, the English judicial system is sometimes considered as having fostered the formation of more egalitarian and liberal societies within the British empire. According to Martin Wiener, ‘English Freedom’, which was represented by the English legal system, was contagious and could never be limited by racial barriers. The principle of the rule of law—a concept considered by many British people as their political ‘birth right’—was also employed by Indians and other non-white subjects to challenge the authority of colonial administrators in anti-imperialist movements.Footnote 15 Wiener has also characterised the British Empire as ‘semi-exclusionary’: the English legal system's ‘tendency to escape the control of its creators’ meant that colonial subjects could take advantage of rights bestowed by English legal convention even in the face of attempts by colonisers to restrict their access.Footnote 16 This article, which echoes Wiener's broader observations, points to how British imperialism, perhaps inadvertently, imbued some Chinese with a legal awareness and provided opportunities to escape the control of the Settlement authorities and the GMD.
Finally, this article, in addition to considering the impact of the British imperial presence, touches upon the issue of treaty port law in China. Literature concerning the English judiciary in China has been largely confined to two aspects. First, the nature and characteristics of Britain's legal exercise has been the focus of scholars who specialise in treaty port law. Examining the triangular relationship between China, Japan and the Western treaty powers, Pär Cassel, for one, has argued that extraterritoriality was not a completely foreign import because it was developed through dialogue and compromise based on local circumstances.Footnote 17 Unlike their Japanese counterparts who largely surrendered their jurisdiction to Western powers in the nineteenth century, Qing officials attempted to uphold China's sovereignty by exerting their influence in the Shanghai Mixed Court, a judicial institution that favoured Europeans. The adaptable character of the extraterritorial legal system, therefore, meant that Western imperialism did not have absolute control over the development of the state-building process in East Asia.Footnote 18 Although extraterritorial laws evolved somewhat differently from British metropolitan-made laws, Emily Whewell, who stresses the malleable nature of law due to Britain's transnational governance, has argued that the treaty port legal system—“part of a jurisdictional web of British legal power that spanned across the region of East Asia and beyond”—was complementary to its counterparts used by British colonial authorities. This overlapping jurisdiction not only authorised British colonial administrators to exercise colonial laws in mainland China, but also allowed British consuls to apply extraterritorial laws within Britain's formal empire.Footnote 19
A second aspect on which much literature regarding the application of the English legal system in China has focussed concerns the impact of these legal practices on the emergence of courts and the legal profession in China from the mid-nineteenth century onwards. For example, Thomas Stephens has examined how the Shanghai Municipal Council (SMC) got rid of Chinese interference and was allowed to fully apply Western jurisprudence within the International Settlement as a result of the power vacuum created by the 1911 Revolution and subsequent confrontations between different warlords.Footnote 20 Sun Huei-min has similarly discussed the impact of Britain's colonial legacy in Shanghai and Hong Kong with respect to the emergence of the lawyer as a profession prior to and after the establishment of the Chinese Republic.Footnote 21 Tahirih Lee, whose work examines how the Mixed Court operated at the Shanghai International Settlement, has argued that this court—a model for Chinese courts and many Chinese legal personnel—carried great significance for China's ongoing judicial development.Footnote 22 Hence, rather than putting the focus on the nature of treaty port laws and the history of the English-style courts in China, as discussed in the above-mentioned literature, this article instead looks at the role of the SMP within criminal procedures that were regulated by the common law system largely derived from England, and at Chinese reactions to decisions taken by the International Settlement's judiciary.
More specifically, what follows is based on an investigation of the infringement of English jurisprudence in Settlement legal procedures specifically involving Chinese Communist suspects, convicts, and their sympathisers, many of whom fled to the foreign settlements to escape the Nationalist government. The first section provides background information on the political factors that constituted the formation of a self-contradictory judicial system in the British-controlled Shanghai Settlement, and how this paved the way for legal conflicts between the Chinese and the Settlement authorities. The following three sections then analyse how prevailing English legal conventions and criminal procedures adopted by the SMP came under sustained pressure from Chiang Kai-shek's administration after 1927. The final section provides some concluding remarks by way of comparisons between the existing literature on English judiciary in nineteenth and twentieth-century China.
The GMD's Takeover of the Shanghai Mixed Court and Its Legal Ambivalence
The legal confrontation between China and the West can be dated back to the establishment of the Mixed Court in mid-nineteenth-century Shanghai. In spite of the enforcement of Chinese laws for Chinese subjects and Qing officials’ participation in cases that involved the Chinese at the International Settlement,Footnote 23 English legal procedures were largely applied in Shanghai's Mixed Court, an extraterritorial court connected to the jurisdictional web existing within the British Empire.Footnote 24 While, by the early twentieth century, court assessors from other treaty powers exerted some influence on the emergence of the International Settlement's judiciary,Footnote 25 British and American assessors had always dominated the implementation of the Mixed Court's legal procedures, which were instituted by the British in line with Anglo-American judicial conventions.Footnote 26 Evidence also shows that procedures of the said court and prison regulations were mainly adapted from those in England.Footnote 27 Moreover, the conduct of SMP officers was governed by British legislation, such as the King's Regulations.Footnote 28 However, the Mixed Court, which came into existence in Shanghai from the 1860s on the basis of the Land Regulations and Byelaws,Footnote 29 was operated jointly by foreign assessors and Chinese magistrates appointed by the SMC and the Qing Court respectively. Conflict between Chinese and Western judicial personnel was frequent because they had to try most of the cases together. With the exception of those associated with purely Chinese civil cases, other hearings touching upon foreign interests or Chinese criminal offences would be attended by both foreign legal personnel and their Chinese counterparts.Footnote 30 Further disagreement could be generated when foreign consuls sometimes directly meddled in those trials that interested them.Footnote 31 As a result, Chinese magistrates—a group of Qing judicial personnel following only the instructions of their superior officers—were involved in repeated confrontation with their foreign counterparts, who largely practiced English legal conventions in local hearings.Footnote 32 It was not until 1911 that these legal conflicts came to a halt when the Settlement authorities took over the Mixed Court completely thanks to the power vacuum created after the Double Tenth Revolution.Footnote 33
The situation worsened when growing Chinese patriotic sentiment in the mid-1920s began to create political tension between the Settlement authorities and the Chinese public. In 1925, the May Thirtieth Incident—a large-scale labour and anti-imperialist movement that led to a fatal police shooting, resulting in Chinese civilian casualties—acted as a catalyst for the repudiation of extraterritoriality in China. Politically, Western expatriates, under the pressure from the British Foreign Office, accelerated the process of localisation in the Shanghai International Settlement.Footnote 34 Between 1926 and 1931, five Chinese members were appointed to the SMC.Footnote 35 In the late 1920s, a senior Chinese police officer even became the first Chinese to be appointed as Assistant Commissioner in the International Settlement's police force.Footnote 36 Increasing Chinese representation in the Settlement authorities and other foreign institutions not only facilitated the GMD's penetration into the International Settlement in the years that followed, but likely affected the Settlement authorities’ decisions and actions in a way perceived to be harmful to Western interests in Shanghai, resulting in antagonism between Westerners and Chinese.
Apart from leading to a restructuring of the political hierarchy in the Settlement, fervid Chinese nationalism also further widened the judicial disparities between China and the West by fostering the Mixed Court's reconstitution which smoothed the GMD's takeover of the Settlement's judiciary. In 1926, the signing of the rendition agreement regarding Britain's partial surrender of the Mixed Court—one of the concessions made by the British authorities to pacify the furious Chinese public after the May Thirtieth Incident—intensified legal controversy in the International Settlement.Footnote 37 The incorporation of the Mixed Court into the court structure established by the GMD created an array of legal amendments that soon exacerbated antagonism between the GMD and Settlement authorities. According to the first clause of the agreement, the Mixed Court was replaced by the Shanghai Provisional Court (SPC), later renamed the Shanghai No.1 Special District Court in 1930.Footnote 38 Apart from being deprived of the power to try cases involving purely foreign interests, the SPC's jurisdiction extended over all civil, criminal and appeal cases in the International Settlement.Footnote 39 Its president and judges were salaried and appointed by the Jiangsu Provincial Government.Footnote 40 Foreign consuls and their deputies, who in many cases had been entitled to try cases together with Chinese magistrates from the late nineteenth century, were now only allowed to record their objections during trials and were forbidden from even watching legal proceedings from 1930 onwards.Footnote 41 As to the legal rules that were applied by the SPC, all Chinese laws and legal procedures, which were applicable in other Chinese courts at that time and subsequently, were to be adopted by it and the body that succeeded it.Footnote 42 This paved the way for the GMD's introduction of harsh sedition acts, which were directed against Communists and political offenders, into the International Settlement's judiciary.Footnote 43 Consequently, the handing-over of the Mixed Court to the GMD authorities sowed the seeds of legal conflict in the Settlement by strengthening GMD control over the Settlement court system, and by favouring its own forthcoming implementation of emergency law codes against its opponents in the International Settlement during the Nanjing decade.
Yet, the key role of the SMP in maintaining the International Settlement's law and order—a fact that contradicted the GMD's desire to seize complete control of the Settlement's judiciary—remained almost unchanged after 1927. In other words, to safeguard the existing interests of foreign settlers and Chinese taxpayers, many aspects of the Settlement's legal empowerment were preserved.Footnote 44 For example, the SMP was not only empowered to arrest any suspect and send them to the court for trial, but it also acted as judicial police executing all summonses, warrants and orders issued by the SPC.Footnote 45 The SMP was similarly authorised to continue managing most of the Settlement's prisons, which were expected to be operated in line with Chinese prison regulations.Footnote 46 As well as being able to arrest and detain suspects and convicts, the SMP retained its power to prosecute but now this happened in the name of the Republic of China rather than the SMC.Footnote 47 Therefore, final decisions and actions regarding arrests, prosecutions and the management of prisons still rested with the British-controlled SMP, and so remained aligned with the English common law system—an adversarial system empowering the police authorities to inquire into crimes and prosecute offenders.Footnote 48 In fact, the police system that operated in the Settlement contradicted the German system that the GMD had adopted.Footnote 49 In contrast to the Public Security Bureau—a police authority that was completely subordinated to the GMD—the SMP had only been subject to the orders of the Mixed Court in addition to the instructions given by the SMC.Footnote 50 Therefore, the main legal controversies after 1927 largely shifted from the control over the Mixed Court to the manipulation of the SMP, which, alongside its management of prisons, was still entitled to arrest and extradite criminals.
Subsequently, the SMP's conventional ways of handling Communist cases would undergo tremendous changes. Apart from being pressured by Chiang Kai-shek, who was keen to eliminate Communists in China following GMD success in the 1927 Northern Expedition, the Shanghai International Settlement was also subject to the influence of many Western countries, such as Britain and the United States, whose task from the 1920s was the eradication of Communism in their own territories or colonies.Footnote 51 For example, Shanghai was one of the pre-war hubs of overseas operations conducted by MI6, Britain's secret intelligence service that was active in many crown colonies including India, Singapore and Hong Kong.Footnote 52 By 1925, echoing trends in the West, the SMP, whose priority was to protect foreign business interests in the Settlement, spared no efforts when it came to establishing ties with foreign communities to check the growth of Communism in Shanghai. The police force not only gathered and shared intelligence on Communist activities with foreign embassies, which stayed in close contact with their own national and business communities in the Settlement, but also gave protection to foreign factories in anti-foreign strikes and demonstrations organised by Communists.Footnote 53 Agitators and suspects who were allegedly involved in these subversive activities, and were arrested and prosecuted by the SMP, would appear in the Mixed Court on charges of riotous behaviour or malicious destruction of property (criminal offences that were contrary to the articles of the Chinese Provisional Criminal Code).Footnote 54 Following GMD promulgation of many new sedition acts that were absent from those applied to the Mixed Court and contradictory to English jurisprudence, the SMP came under pressure to impose harsher punishments on Chinese Communists and civilians, and violated some of the International Settlement's legal conventions. Indeed, the remaining judicial autonomy of the Settlement was threatened by the rise of the GMD as a result of the infractions of legal principles carried out by the SMP when handling Communist cases between 1927 and 1937.
The Infringement of Defendants’ Rights
The first principle that the SMP was supposed to follow under English common law was to safeguard the interests of alleged criminals by acting in accordance with the courts’ issue of police warrants in an arrest or seizure. When we examine the regulations for the use of warrants, we see that the first criterion by which police officers had to abide was to obtain court warrants based on sufficient proof of suspicion related to a charge:Footnote 55 the execution of warrants was constrained by the information about the offences stated in them. The police were required to inform suspects of the nature of the cases against them as shown in the warrants, which in turn specified the names of the alleged criminals and the offences of which they were accused.Footnote 56 The Mixed Court's procedural rules even explicitly stated that a general search warrant would only be granted when the particular details about a house or a place were indicated in it.Footnote 57 Edward Barrett—Commissioner of Police at the International Settlement during the late 1920s—emphatically instructed his colleagues not to offer any assistance to the Chinese authorities seeking to apprehend suspected Communists, unless the GMD had first obtained warrants from the SPC detailing the name and the charge against the accused.Footnote 58 Failure to comply with this regulation would result in the Settlement's refusal to cooperate with the GMD in various operations.Footnote 59 In some cases, a warrant was given a fixed time for its execution, and the police were required to return any unused warrants to the Court if they failed to execute them within a specific timeframe.Footnote 60 Moreover, strict restrictions were imposed on the police even when there seemed to be an urgent need for frontline officers to carry out their operations without obtaining a warrant.Footnote 61 Therefore, the regulations that were applied to the use of police warrants under the English common law system largely protected the interests of defendants, who were entitled to see warrants as early as possible, and were able to challenge the legitimacy of the arrest or the seizure based on whether or not warrants had been properly executed.
Nevertheless, we find that the SMP relinquished its insistence on securing defendants’ rights by ignoring the regulations imposed on it concerning the use of warrants. The violation of this legal principle became more common from the late 1920s with a growing incidence of political kidnapping and murder cases organised by the CCP against its defectors and rivals.Footnote 62 The ineffectiveness of the SMP in checking the spread of violence caused by the confrontation between the GMD and the CCP created a scandal in the International Settlement, forcing the SMP to collaborate with the GMD to suppress Communist activities in Shanghai.Footnote 63 As a result, some SMP policemen began to show disregard for the regulations concerning the use of police warrants. One way in which the SMP infringed defendants’ rights was its arrest of people without showing plausible suspicion.Footnote 64 In 1931, the promulgation of ‘the law governing the punishment of persons who commit acts with intent to injure the Republic’—an ordinance that punished the disseminators of ‘rebellious’ written and spoken words with death or at least ten-year imprisonment—forced the SMP to arrest unarmed Chinese civilians who might just possess or sell literature that the GMD arbitrarily considered as unacceptable and reactionary.Footnote 65 In cases that involved the arrest of bookstore keepers, King S. Kum, a SMP police lawyer, requested that police officers should never prosecute anyone selling ‘reactionary literature’ unless they could prove that the ‘offenders’ knowingly and intentionally propagated doctrines opposed to the ‘People's Three Principles’. He further stressed that staff members’ failure to examine books before these were offered for sale was not sufficient to constitute an offence.Footnote 66 Ignoring Kim's advice, however, Chief Detective Inspector Pat Givens—head of the SMP's Special Branch which was responsible for intelligence matters in the treaty port of Shanghai—ordered his subordinates to execute warrants issued by the Shanghai Special District Court on the instruction of the Chinese authorities.Footnote 67
A second way in which the SMP violated suspects’ rights was its failure to abide by the information contained in warrants.Footnote 68 For example, in late January 1931, the Special Branch, acting on the authority of the search warrants requested by the Public Security Bureau, looked for a suspected Communist called Jiang Naisong at a bookstore located at Foochow Road. Not finding him there, the police instead arrested Ou Laichong, who was the shop assistant temporarily in charge of the bookstore.Footnote 69 However, Ou's arrest, whose name was not stated in the warrant, worried Ru Baoyi, a Chinese police lawyer, because such action contradicted the criminal procedures originally adopted in the Settlement.Footnote 70 In addition to executing a warrant falsely, SMP officers sometimes also carried out their operations with an expired warrant.Footnote 71 In September 1931, some officers executed an expired warrant obtained the previous month in order to search a suspected Communist printing works. In this case, the Special Branch not only refused to return the unused warrant to the Court, but it also postponed the operation for more than two weeks without receiving the Court's approval. The SMP's illegal arrest of bookstore keepers caused a scandal among the Chinese public in the Settlement. For example, the Chinese Taxpayers’ Association, which was an influential private organisation representing the Chinese in the International Settlement, raised serious objections to the SMC concerning its police force's unlawful arrest in a case involving Modern Bookshop Ltd.—a renowned large-scale store whose branches could be found in China's major cities. It was said that the Settlement Police, at the request of the Chinese Security Bureau, illegally arrested Zhang Ziqing—a bookseller allegedly involved in the sale of reactionary literature—without presenting a court warrant. Zhang was detained for a whole day at a police station before the Court decided to dismiss the charge and released him. Stressing the judiciary's importance to the protection of human rights at the Settlement, the Chinese Taxpayers’ Association strongly urged the SMC to act in accordance with formal legal procedure, and hence to prevent the police from abusing their power when making arrests.Footnote 72
Worse still, there were times when SMP officers arrested unarmed Communists without obtaining any warrants. According to English legal conventions, Settlement police were only expected to perform their duties without warrants if they were dealing with cases of felonies (serious crimes that involved violence or were punishable by imprisonment for years).Footnote 73 From the late 1920s, the definition of ‘felon’ was broadened to include political offenders who were charged with threatening the internal and external security of the State (offences punishable by imprisonment for more than a year).Footnote 74 This shift perhaps legitimised SMP arrests in cases associated with unarmed political offenders, such as civilians who would never have been regarded as ‘felons’ under the English common law system.Footnote 75 For example, on 15 October 1932 the SMP and the Public Security Bureau apprehended a number of alleged political offenders whose names were not given in the warrant.Footnote 76 After his arrest, Xie Shaoshan—a Communist who was the only one whose name appeared in it—not only showed his willingness to divulge secret information to Chiang Kai-shek, but also surrendered his former comrades by indicating the locations where they lived.Footnote 77 Xie's betrayal facilitated the arrests of Chen Duxiu—one the founders of the CCP—and six other men on 16 and 17 October. The SMP's failure to present a warrant in its second operation provoked a strong complaint from some of the accused who confessed to being Communists but claimed that they were regarded as criminals simply because they held political opinions at variance with the GMD.Footnote 78 Wang Xiaopu—the seventh accused—protested emphatically to the Court concerning the unjust legal proceeding of his arrest:
There is no warrant for my arrest. The police arrested me on the off chance that I may have been also concerned in the case against the other accused and I have not been given the chance to protect myself. I now speak in order that I may be afforded that opportunity. There is no warrant issued for my arrest.Footnote 79
Eventually, the magistrate failed to make any charges against the accused, in effect acquiescing in the SMP's unlawful arrest based on a nameless warrant. The Shanghai Special District Court then extradited all suspects to the Chinese authorities, though it had jurisdiction over this case in the International Settlement.Footnote 80
By the mid-1930s, the SMP's illegal arrests were taking place in cases that were by no means political. In one drug-trafficking case, SMP detectives, having failed to discover any evidence at a coal-ball making company, took two Chinese males into custody in November 1935 in accordance with a request received from the Chinese authorities. These two men, whose names were entirely different from those stated in the warrants, were released by the Court after being detained for at least one day. It was later reported that the Settlement police involved in this case justified their unlawful action on the sole basis of the insistence of officers belonging to Chinese security units.Footnote 81 In a similar vein, the French Concession Police also cooperated with illegal requests made by the Shanghai Security Bureau. In July 1936, Mr Bao Gang—a Chinese lawyer accused of attempting to rape a woman—was apprehended together with his family members and servants by a detachment of French detectives and Chinese policemen, who did not present any warrants and documents when making the arrest. The Second Special District Citizen Society—a Chinese civilian mutual aid society to which the victim had appealed—lodged an official complaint against the French authorities and urged the police to rectify their mistakes, in order to respect the rule of law in the French Concession.Footnote 82 But as these arrests highlight, from the late 1920s the SMP and the French Concession Police were increasingly infringing the rights of Chinese defendants—especially political offenders sought by the Chinese authorities—by going against the regulations imposed on the police concerning the use of warrants. Some of them also reveal that Chinese Communists and civilians, who firmly believed that they deserved protection from the Settlement's judiciary, struggled against being unlawfully arrested right up to the time when they were extradited to GMD-controlled territory.
The Contravention of the Principles of Prima Facie Case and Political Neutrality
The second principle by which the SMP was supposed to abide under English common law was the need to collect evidence as part of the prosecution process. In criminal cases the burden of proof was always placed on the prosecution. During a trial, the police and prosecution lawyers were supposed to disclose all evidence to defendants, who were presumed innocent until proven guilty.Footnote 83 Prima facie cases had to be established based on sufficient evidence to prove a particular proposition, and the Court would dismiss the charges if judges considered that the prosecution had not demonstrated the burden of proof sufficiently.Footnote 84 Hence, prior to the extradition of any alleged criminals seeking refuge in the Settlement, the SMP and its legal advocates were required to gather and present the necessary evidence before the Court. Before 1928, the Mixed Court would determine whether or not an accused should be convicted based on the certainty and sufficiency of the evidence provided by the prosecution.Footnote 85 When the Chinese authorities requested the extradition of Communist suspects, the SMP had to ensure that appropriate prima facie evidence was shown in court concerning how suspects were involved in Communist activities outside the International Settlement.Footnote 86 Several decades later, the post-Second World War British military authorities in Malaysia, under Mountbatten, likewise stressed the importance of legal procedures when handling cases involving the exile of Malaysian Chinese Communists to China. Mountbatten decided to not hand over these Communists—men who organised strikes and demonstrations in the British Strait Settlement—because he thought it was likely that they would soon be executed by Chinese officials who, he believed, would fail to present any evidence before the courts.Footnote 87
As well as being constrained by evidence collection, the role of the SMP in the prosecution process was subject to the principle of political neutrality—a convention practiced by British concessions in China to safeguard the interests of foreign settlers. The implications of this principle were twofold. First, the Settlement was always a neutral political entity rooted in the treaties signed between China and foreign powers.Footnote 88 Therefore, the implication was that the Settlement's judiciary and its police force should be free from the intervention of Chinese politics. More importantly, the Settlement authorities had an obligation to offer protection to its residents who contributed to the economic prosperity at the Settlement, and so they paid more attention to whether their residents were tried impartially.Footnote 89 Under these circumstances, prima facie evidence was not enough to permit the extradition of Settlement residents.Footnote 90 Instead, the Mixed Court required considerable supporting evidence.Footnote 91 And even when a substantial prima facie case was established, the judiciary and the SMC seldom permitted the unconditional handing over of the accused to the Chinese authorities.Footnote 92 This practice was also seen in the case of alleged Communists residing in Weihaiwei—a British concession in China located in Shandong province.Footnote 93 Reginald Johnston, the British Commissioner to Weihaiwei, was sceptical about GMD requests for the extradition of Communist suspects not simply because the Chinese authorities failed to present convincing evidence, but also because he believed that Chinese officials were barbaric and ‘obeyed no law’. Hence, the Settlement authorities remained neutral when dealing with politically sensitive cases that involved their residents. While the principle of political neutrality may have been rarely seen in parts of the British Empire that fell under the English common law system, one of its objectives in the context of China was to ensure that Settlement residents would receive a fair trial together with humanitarian treatment in prisons managed in accordance with English jurisprudence.
A closer look at developments in interwar Shanghai reveals that the Settlement authorities and the SMP upheld these two principles when handling cases that were not at all politically sensitive, even following the consolidation of GMD power in the 1930s. For example, a merchant who had run a barber shop and bathhouse in the International Settlement for years, Feng Laosi, was charged with selling narcotics in collaboration with teaboys working on board trains, was apprehended and sent to court in September 1932. When the Chinese authorities demanded Feng's extradition, the SMP and its lawyer rejected this request on the basis of a lack of evidence.Footnote 94 After being detained for a few days, Feng was eventually released once the Chinese authorities had failed to present any further proof that could justify the extradition.Footnote 95 As far as non-Communist cases involving Chinese Settlement residents were concerned, the SMP generally spared no effort to secure justice for those Chinese whom it was supposed to protect. Accused of producing counterfeit money, Li Fenglin, a hostel proprietor, was brought before the judge in June 1935. The police lawyer, who stressed that the rest of the accused had failed to recognise Li during his capture, underlined the need to present ample evidence before Li—a resident who had lived at the International Settlement for more than eighteen years—could be handed over to the Chinese police.Footnote 96 In such cases, it would seem, the SMP tried to abide by the principles of prima facie evidence and political neutrality despite the Chinese authorities’ frequent extradition requests.
However, as the SMP came under growing pressure from the GMD, it increasingly no longer adhered to these principles when dealing with the extradition of suspected Communists. The need for prima facie evidence was challenged by Chiang Kai-shek's administration, as it intensified its attempts to eliminate the Communist ‘threat’ from 1927. By the time that the first rendition agreement came into effect, foreign assessors, who were still allowed to watch the proceedings and record their objections at court in the late 1920s, had disagreed with many GMD requests for the extradition of alleged Communists due to insufficient evidence being presented by the Public Security Bureau.Footnote 97 Their objections could sometimes produce the release of the accused, overriding decisions made by the Settlement Court and its superior court, which claimed to be ‘administrative authorities’ instead of independent tribunals.Footnote 98 Possibly frustrated by the slow progress in extraditing their wanted suspects, the Chinese authorities urged the SMP to send alleged Communists to them without undergoing any trial on the grounds that this would enhance the efficiency of the handover.Footnote 99 Fearing noncompliance of its Chinese counterparts over the extradition of criminals wanted by the Settlement, the SMP subsequently acquiesced to GMD demands.Footnote 100 Despite emphatic dissent on the part of the police prosecution solicitor R. T. Bryan,Footnote 101 the Settlement authorities authorised the Commissioner of Police to extradite any alleged criminals who had lived at the Settlement for less than six months.Footnote 102 Later, in 1931, the Commissioner's power to extradite was extended to include divisional and Special Branch officers.Footnote 103
More troubling still, the Settlement's tradition of remaining neutral was also challenged by those British diplomats who wished to appease the GMD. James Fellows has shown how after the Second World War Hong Kong's autonomy was sometimes constrained when Britain's relationship with China was at stake.Footnote 104 A similar dynamic operated in pre-1939 Shanghai, where British settlers and other foreign residents were forced to relinquish some of their legal privileges to Republican China. With a view to safeguarding their economic interests in Shanghai,Footnote 105 it seems that the British authorities were anxious to establish friendly relations with Chiang Kai-shek's administration at the expense of preserving the Settlement's judicial autonomy. Some Whitehall policy-makers even prepared for a gradual transfer of power in the British concessions from Britain to China.Footnote 106 Being aware of the intensification of anti-foreign sentiments being stirred up by the GMD, the British Ambassador to China Sir Miles Lampson visited Shanghai in 1929, and urged the SMC to withdraw the legal protections offered to Chinese residents in the Settlement.Footnote 107 Facing pressure from British diplomats, the SMP—one of the guardians of the Settlement's principle of political neutrality—surrendered Chinese residents targeted by the GMD to the Chinese authorities despite limited evidence being provided. Lee Sau Chi, a book translator and Settlement resident, for example, was found together with some Communist literature during a raid on some alleged Communist premises in 1931.Footnote 108 He was then taken to the Court where the Public Security Bureau presented a number of testimonies claiming that Lee was the chairman of a Soviet committee at Hunan.Footnote 109 Lee was eventually extradited to China on 4 May 1931 with the consent of the SMP's police lawyer.Footnote 110
Although the public's attitude towards the extradition of Chinese Communists remains unknown due to the lack of available sources, we can still see that some Chinese civilians believed that the rule of law should remain in place in cases involving the handover of the Settlement's Chinese political offenders during the Second Sino-Japanese War. In fact, the retreat of the Nationalist government to Central China in 1937 fostered collaboration between the SMP and the Japanese in Shanghai. Possibly pressured by the Japanese authorities, the SMP was said to have directly handed over Chinese suspects—alleged terrorists involved in violent activities against the Japanese—to the Japanese military without bringing them before the Court. In response to this kind of illegal extradition, a Chinese newspaper editorial not only criticised the SMP's arrest of Chinese suspects (political offenders were expected to be executed by the Japanese after their handover), but also questioned whether such extradition cases violated the Settlement's principle of political neutrality and the legal procedure stated in the second rendition agreement.Footnote 111 The Chinese Taxpayers’ Association at the Settlement, for example, expressed its unhappiness by lodging an official protest against the Settlement authorities regarding the unlawful extradition of Chinese suspects to the Japanese military.Footnote 112
As these developments highlight, from the late 1920s onwards with the rise of the GMD, the SMP was not only deprived of its right to investigate political cases based on prima facie evidence, but it was also divested of its neutrality when handling cases involving the Settlement's Chinese residents. Meanwhile, Chinese civilian opposition to unlawful extradition, together with the tactic by alleged Communists of seeking refuge in a supposedly law-abiding foreign concession, reflected a sense of legal awareness on the part of at least some Chinese civilians with respect to the decline of the Settlement's judiciary.
The Decay of Humanitarian Values
A third principle with which SMP needed to comply under English common law was to provide a relatively humanitarian living environment for the prisoners whom they closely guarded. From the late eighteenth century British penal systems had started to change as the needs of prisoners began to be recognised among the public.Footnote 113 Indeed, improving the living conditions in penitentiaries came to symbolise a sense of modernity since it was associated with wiping out the savageness and backwardness of a country.Footnote 114 By the early twentieth century the practice of penal reform had spread to British concessions in China.Footnote 115 In this respect too, the Shanghai International Settlement was influenced by elements of humanitarian thinking in Britain's wider imperial prison management.Footnote 116
According to the SMP's Police Guide and Regulations promulgated in 1938, policemen, who were responsible for the administration of station cells (small detaining rooms that were expected to be kept clean and ventilated), were strictly forbidden from applying physical force to extract information from prisoners during interrogation.Footnote 117 Visiting each prisoner at least every hour, they were also instructed to pay more attention to ill or drunken inmates and to those deemed likely to commit suicide.Footnote 118 As to the management of the Settlement's prisons, the gaols operated by the SMP were subject to humanitarian principles influencing the British authorities and lobby groups from the turn of the twentieth century. Foreign convicts in the Settlement were meant to be imprisoned in accordance with the Shanghai Prison Regulation, promulgated by the British Foreign Office in 1904, which instructed prison authorities to offer humane treatment to their convicts.Footnote 119 Even though Chinese prisoners did not fall under the protection of this regulation, a Britain-based advocacy group called ‘the Howard League for Penal Reform’ pressured the SMC to improve the physical and mental treatment of Chinese prisoners.Footnote 120 As a consequence, the SMC, under pressure from the metropole, made efforts to improve the administration of the prisons in the Settlement. For example, maize and cod-liver oil were allocated to prisoners in order to provide them with adequate nutrition.Footnote 121 A prison hospital was also built to treat patients with medical needs.Footnote 122
Apart from considering prisoners’ physical needs, the SMP was supposed to respect the mental well-being of political prisoners. For example, convicts were entitled to consult a range of literature with very few restrictions. They could borrow books from the gaol library, or alternatively ask the prison authorities to buy the reading materials that they wanted. A convict showed his apparent joy at being allowed access to the philosophical and socialist literature that he anxiously desired.Footnote 123 Political offenders were also permitted to form study groups to discuss the revolutionary theories that interested them. Some Communist prisoners even gave sensitive lectures entitled ‘The nature and missions of Chinese revolutions’, ‘Political economy’ and ‘Materialist dialectics’.Footnote 124 Undoubtedly, criminals held in the Settlement's prisons were deprived of their personal freedom, yet their well-being and even dignity seems to have been ensured by the prison authorities, headed by the SMP.
Nevertheless, by the 1930s, the SMP was assisting the Chinese authorities by transferring Communist convicts in the Settlement to reformatories, which were special penitentiaries established with the aim of changing the beliefs and the behaviours of reactionaries in line with GMD party doctrines. As one of the GMD's measures to eliminate Communism in China, a newly promulgated regulation governing reformatories effectively interfered in the management of the Settlement's prisons by requiring the relocation of non-repentant political offenders and repentant reactionaries alike to the Chinese-operated reformatories.Footnote 125 Even R. J. Ryan, the SMP's police lawyer, cast doubts on the regulations governing these so-called ‘Houses of Reflection’ because they “seemed to be unfair, and to practically deprive Chinese citizens of the rights of free thought and speech”.Footnote 126
Ironically, the SMP from the early 1930s, under GMD compulsion, had no choice but to permit GMD officials to examine political offenders held at the Ward Road Gaol prior to the completion of their sentences. Cao Diqiu, a Communist prisoner there who later became the mayor of Shanghai after the founding of the People's Republic of China (PRC), did not express regret about ‘crimes’ that he had committed and refused to be persuaded to do so when put under pressure by GMD officials.Footnote 127 Holding steadfast to his Communist beliefs, Cao was eventually moved from a Settlement prison to the Suchow reformatory in April 1937. In addition to allowing GMD officials to single out non-repentant Communist convicts, the SMP encouraged repentant convicts to relocate voluntarily to Chinese reformatories by emphasising the benefit of the shortened sentences that prisoners at them enjoyed.Footnote 128 The SMP and the French concession police, for example, even escorted political offenders to railway stations in Shanghai before the latter were put on board trains heading to Chinese territories where various reformatories were located.Footnote 129 In this fashion, the SMP proved very cooperative in handing over political prisoners held in the Settlement to GMD-operated reformatories at the expense of any apparent humanitarian commitments.
Furthermore, the mental torture suffered by political prisoners who underwent the re-education programmes conducted at GMD-operated reformatories severely violated ideals associated with the English legal conventions adopted by the International Settlement. These political re-indoctrination courses themselves arguably represented another form of distress inflicted on convicts. Compulsory lectures on GMD doctrines were given with the aim of remoulding convicts’ thoughts during their detention.Footnote 130 Reformatory staff also organised debates, symposiums and seminars with the clear aim of making a positive case for the GMD control of China;Footnote 131 with topics debated at the Shanxi Reformatory in 1933 including ‘Freedom of thought’, ‘Students should not interfere in politics’ and ‘The urgent need for China to promulgate a Constitution under government tutelage’. Prisoners were not only encouraged into thinking that the mission of unifying China would be accomplished under GMD rule, but they were also asked to consider the detrimental impact of class struggle on the country.Footnote 132 One of the convicts attending these politically-oriented activities went so far as to complain that he was being trained to be an ‘obedient and loyal slave’.Footnote 133 Assessments and quizzes were organised to test whether prisoners felt sufficiently repentant after participating in these different ‘political manoeuvres’,Footnote 134 and GMD instructors would regularly comment on the performance of inmates.Footnote 135 Moreover, political offenders were put under close surveillance at the reformatories. ‘Proper guidance’ would be given to those prisoners whose thinking still appeared to contradict party doctrines.Footnote 136 And they would be incarcerated until reformatory staff believed them to be truly repentant for ‘subverting’ the country.Footnote 137 The psychological suffering experienced by reformatory prisoners supports the conclusion reached by Jan Kiely, who has argued that Chinese penal reform—especially the GMD and the Communist Party's political indoctrination measures that could only result in the emergence of a coercive culture of compliance and compromise—in effect muted the voice of inmates who were forbidden from expressing their genuine feelings.Footnote 138
Imposed political indoctrination in these Chinese reformatories aroused grievance among Chinese communities, particularly those belonging to intellectual circles. Unlike a British military officer who considered these Chinese-style reformatories as useful instruments to stabilise Chinese society,Footnote 139 the Chinese Civil Rights Protection League—a civic society which promoted the protection of citizens’ rights to act, speak and think, and which paid close attention to inmates imprisoned in Chinese penitentiaries—forcefully demanded the abolition of emergency laws and the use of corporal punishment, together with the release of political offenders.Footnote 140 Led by prominent political and intellectual figures such as Madame Sun Yat-sen and Cai Yuanpei (formerly president of Peking University and one of the founders of the Academia Sinica), this Shanghai-based civic society sent representatives to investigate the living conditions of convicts in different Chinese reformatories and prisons, and also actively urged senior Chinese officials to grant political offenders permission to read freely and to treat them according to humanitarian principles.Footnote 141 All the same, GMD prison policies concerning the management of the reformatories deprived Settlement convicts of the right to think, in turn violating the humanitarian expectations of the SMP, a police force that still abided, at least formally, by English legal conventions. Yet by the 1930s, the efforts of particular Chinese politicians and intellectuals to secure justice for political offenders pointed to the emergence of a changing legal awareness amongst certain groups of Chinese civilians.
Conclusion
This article has proposed that British decolonisation in the International Settlement in Shanghai took place at the expense of what remained of the Settlement's legal autonomy. With regards to Britain's broader imperial decline, scholarship in recent decades has centred on the conventional understanding that the process of British decolonisation began after the end of the Second World War when sovereignty was returned to Britain's colonial subjects. Arguably, this is because the term ‘decolonisation’ has tended to be associated with the change of flags in colonies. For example, Raymond Betts has mostly considered Western decolonisation to be political independence, as shown in the handover of Hong Kong to the PRC; in his view, by 1 July 1997 the British imperial presence in Hong Kong was over following the withdrawal of Britain's political superstructures.Footnote 142
This article instead suggests that the beginning of British decolonisation can be dated back to the inter-war period when the International Settlement's remaining judicial autonomy—police powers of arrest, prosecution and managing prisons—was seriously infringed in Shanghai starting in the mid-1920s. While its findings echo Robert Bickers’ reinterpretation of British decolonisation based on the localisation of British political and commercial activities in China,Footnote 143 it has sought to widen the scope of Bickers’ argument by examining the relationship between British decolonisation and the role of the SMP in the Settlement's judiciary, a process that is left largely undiscussed in Bickers’ work.Footnote 144 As some scholars have observed, non-political dimensions can also be useful when assessing whether, or when, former colonial territories are completely decolonised.Footnote 145 In his examination of the judicial system of the white Dominions, Antony Hopkins has argued that these semi-independent polities did not gain their full independence until the 1960s when their courts stopped appealing to the Privy Council based in the United Kingdom.Footnote 146 Likewise, the International Settlement's judiciary can serve as an indicator for evaluating the British imperial presence in Shanghai. From the late 1920s, the British-controlled SMC and its police force, under significant GMD pressure, in practice violated key legal principles when handling the criminal procedures that involved Communist suspects and convicts in the Settlement. Its contravention of English legal principles began with SMP infringement of defendants’ rights, as demonstrated by the police's increasing failure to abide by information contained in warrants or to obtain Court warrants when arresting unarmed alleged Communists. This violation then continued in SMP extradition cases, handing over Chinese residents to the GMD without substantial prima facie evidence. This contravention of English legal norms then reached a final stage when the SMP assisted the Chinese authorities with the relocation of political offenders to GMD-operated reformatories where inhumane methods were used to remould prisoners’ thoughts.
This article's second finding points to the accompanying emergence of changed legal awareness among some Chinese citizens. With regard to the extent that the British imperial presence affected Chinese society, the PRC has viewed extraterritoriality as a threat that endangered China's national sovereignty in the nineteenth and twentieth centuries.Footnote 147 Following the signing of unequal treaties between the Qing court and Western powers in the nineteenth century, Shanghai's treaty port legal system both largely deprived China of jurisdiction over foreign subjects present within its territory, and also applied English legal procedure to cases that involved Chinese people and interests. As a result, it has often been said by Mainland Chinese scholars that China—a country that was placed under the status of a semi-colony—suffered one hundred years of humiliation during the period when extraterritoriality existed.Footnote 148
Rather than examine extraterritoriality's impact on China's politics and diplomacy, Emily Whewell has explored how the treaty port legal system influenced Chinese everyday life. According to her, many Chinese, who were subject to the jurisdiction of the Mixed Court in Shanghai, experienced unequal treatment in trials because of racial, class and gender discrimination.Footnote 149 This article, while recognising extraterritoriality and the English judiciary's association with China's humiliating subjugation to foreign powers, highlights that some Chinese were keen to take advantage of the rights that English legal convention and the International Settlement's judiciary afforded them. Asserting improvement in the rule of the law in the era of China's pursuit of openness, Frank Dikötter has suggested that the modification of law codes and procedures showed China's commitment to foreign-inspired judicial reform.Footnote 150 However, this legal transformation was largely carried out with the aim of strengthening the GMD's control over the judiciary and Chinese society in the International Settlement, and placed less emphasis on the protection of human rights, as explored in this article. Hence, rather than offer a moral judgement on the benefits of English legal conventions, this article has probed the relationship between extraterritoriality and Chinese civilians by considering the impact of treaty port law on legal awareness. Modern legal concepts—such as every reasonable doubt being given to the accused, trying cases based on prima facie evidence, and receiving humanitarian treatment while being detained—originated in large part from the treaty port legal system. Some Chinese, who absorbed these legal ideas in the emerging public space of the interwar years, gradually became aware of the protection of individual rights, and tried to make use of the more ‘lenient’ English legal procedure.Footnote 151
But foreign expatriates and police lawyers were not the only guardians of the Settlement's judiciary when faced with GMD intervention. There were Chinese citizens, including Communists arrested by the SMP, residents in the Settlement and intellectuals, who worked hard to secure impartial criminal procedures in cases in which many Chinese suspects were involved. Their judicial awareness, it could be argued, was made evident in a number of ways: from their complaints about the abusive use of warrants by the police, to their refuge in what was presumed to be the law-abiding, politically neutral, International Settlement, to their demands for the freeing of political offenders. Therefore, it would seem that English judicial conventions, which were undoubtedly introduced in Shanghai primarily for the benefit of Westerners, brought about an unintended colonial ‘legacy’ by fostering confidence in the English judicial system among some Chinese, who then attempted to make good use of these legal practices to prevent evident miscarriages of justice. Indeed, such legal awareness among some Chinese citizens with respect to the arrest of political offenders endorses David Strand's observation concerning the increasing political participation and awareness of non-elite Chinese in Beijing after the May Fourth Movement.Footnote 152
