Law across imperial borders

British consuls and colonial connections on China's western frontiers, 1880-1943

Emily Whewell

• Publisher: Manchester University Press
• Year: 2019
• ISBN:
  9781526140043
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Law across imperial borders offers new perspectives on the complex legal connections between Britain's presence in Western China in the western frontier regions of Yunnan and Xinjiang, and the British colonies of Burma and India. Bringing together a transnational methodology with a social-legal focus, it demonstrates how inter-Asian mobility across frontiers shaped British authority in contested frontier regions of China. It examines the role of a range of actors who helped create, constitute and contest legal practice on the frontier–including consuls, indigenous elites and cultural mediators. The book will be of interest to historians of China, the British Empire in Asia and legal history.

Part I

The Burma-China frontier

Chapter One

Treaty-making and treaty-breaking: transfrontier salt and opium, 1904–11

In 1885, Britain annexed ‘Upper Burma’ as part of British India, an area comprising the central plains and northern region of present-day Myanmar. In order to secure its sovereignty, Britain required not only the compliance of local headmen in parts of Upper Burma, but also legal recognition from Burma’s tributary sovereign: China. After signing the subsequent ‘Convention relating to Burma and Thibet’ (1886), China formally accepted British sovereignty. A further amendment, the ‘Convention between Great Britain and China, giving effect to Article III of 24th July 1886 relative to Burma and Thibet’ (1894), outlined the basis of Sino-British frontier relations. The amendment that followed in 1897 added further provisions for Sino-British economic relations on the frontier and the establishment of British consulates in the neighbouring Chinese province of Yunnan. The treaties provided a framework of legal relations between China and British Burma, but were far from a clear statement of legal rights. Subsequently, Chinese and British officials wrangled over the interpretation of its provisions over the next several decades. The first legal dispute related to the right to seize illegal goods crossing the frontier and the punishment of smugglers. In particular, there were two legal questions. First, were frontier treaties the authoritative legal documents over seizure and punishment rights or were territorial laws inviolable? Second, how did the principle of extraterritoriality fit into these transfrontier legal arrangements of seizure rights on the frontier?

In this chapter, I show how British consuls stationed at Tengyue, situated in western Yunnan on the edge of the Burma-China frontier, were key actors who tried to work out these questions and tensions of law. By highlighting their role, I demonstrate that although Tengyue consuls were initially stationed for political and economic reasons, their continued presence was also due to managing frontier affairs concerning legal issues. Consuls worked with Burmese colonial officials, and petitioned the consular authorities in Beijing and colonial authorities in Rangoon on these legal concerns. They were therefore key legal actors who attempted to work out transfrontier rights between colonial and consular jurisdictions.

An important part of the consul’s role was to balance three considerations: imperial policy aims, what was practical for the frontier, and how provisions of the treaties applied alongside extraterritoriality and territorial law in Burmese territory. The treaties dealt with two main issues. The first was border demarcation, which was an important objective for the Burmese government. A number of scholars have focused on the issue of borders, documenting Sino-British disputes.¹ In many parts of the frontier, there had been few, if any, demarcated borders previously. British officials felt a clear delimitation of their jurisdiction was necessary in the region of winding hills and dense jungle, but Chinese officials often disagreed over their placement.

The other important set of provisions were those regarding commerce. As well as the promotion of Sino-British trade, the treaties outlined the control of the transfrontier trade of salt and opium. These two commodities were of central importance to many frontier communities and their regulation was essential to both British Burma and China. As legal questions pertaining to these two commodities opened up the debate about how to apply law in the frontier, I examine the legal debates that took place between 1904 and 1911. The principal tension was between the frontier treaties and territorial law of Burma and China in relation to the rights of seizure and punishment of smugglers. The former was silent on the rights of punishment other than seizure, whereas the territorial law of China and Burma required the punishment of smugglers. It was also unclear what treaty right either Burma or China had as regards the seizure of whole caravans.

As Eric Tagliacozzo has argued, the movement of illicit transfrontier goods, imperial economic objectives and the creation of borders were inter-related in the China-Burma-Siam frontier.² In this chapter, I show how Tengyue consuls reconfigured their understanding of the relationship between the frontier treaties, territoriality and extraterritorial powers through these cases of salt and opium smuggling. Their understanding of the frontier economy and imperial policy, which dictated peace on the frontier, shaped their legal viewpoints. Transfrontier smugglers and their illicit goods were therefore at the centre of a heated legal contestation between British and Chinese authority, and forced consuls to reformulate ideas about imperial rights in the frontier.

I first detail the establishment of British authority in the region, outlining the British colonial and consular institutions on either side of the frontier. This gives a background to the local imperial actors, the setting and their relations to the frontier. I then examine the Ma Sheng case concerning transfrontier salt and the ensuing debates that centred on the interpretation of the frontier treaty and its amendments. Finally, I examine the Ma Chun opium case that reopened the dispute over the case of Ma Sheng. I demonstrate how the Tengyue consul, Archibald Rose, petitioned for the treaties to be considered the authoritative legal document governing Sino-British relations on the frontier. Although the Burmese government rejected his petition by favouring territorial rights, I show how Rose implemented his ideas about how to resolve the tensions of law within his consular district. This reflected how he shaped his legal practices in relation to both imperial policy and the local conditions of the frontier.

Establishing British legal authority

Following the Treaty of Nanjing (1842), the Treaty of the Bogue (1843) and the Treaty of Tianjin (1858), various towns and cities were opened for British trade and residence. The bilateral treaties also provided the framework for extraterritorial jurisdiction. This allowed British officials to adjudicate in cases where a British subject was a defendant in any case or suit. Opened ports allowed Britain to station consuls to exercise these extraterritorial powers in the locality. Reflecting the importance of maritime trade, most of the places were port-cities or located on an inland river that led to the coast. The name later given to this system of rights – treaty port China – was an accurate reflection of where foreign privileges were exercised and the association with maritime commerce.

By the late nineteenth century, this began to change with the opening of cities and towns for foreign trade in China’s hinterland, alongside the establishment of inland consulates. Following the Chefoo Convention (1876), China allowed British representatives to watch trade in Chongqing, in the western Chinese province of Sichuan, and a later treaty in 1890 opened it as a treaty port.³ The opening of other inland stations demonstrated Britain’s desire to station consuls in the hinterland for economic and political purposes. British merchants and officials envisioned a terrestrial trade connection between British India and the Chinese interior, with British officials also hoping to oversee the development of a lucrative market of local products such as regional teas.⁴ Several missions across the southwestern province of Yunnan and the Burma-China frontier, such as the missions of Edward Sladen in 1868 and 1875, had already provided information on possible trade routes and ethnographical information.⁵

British interest in the Chinese interior was also geopolitical. In an era of intense imperial competition in Asia, a British presence in the Chinese hinterland aimed to limit the increasing influence of other European empires. The rivalry with France was particularly strong in southwest China.⁶ Following the conclusion of the Sino-French war and the Tianjin Accord (1884), France made present-day south Vietnam a French colony, ‘Cochin China’. ‘Annam’, ‘Laos’ and ‘Tonkin’ were French protectorates and the latter two bordered Yunnan. A French presence also extended into China with a consulate in 1889 in Longzhou, located in the southwest province of Guangxi.⁷ From 1898, France also acquired the leased territory of Guangzhouwan on the south coast of Guangdong. In Yunnan, French imperial interests were focused on exploiting mineral resources and establishing transport routes. The construction of the Hanoi-Kunming railway from 1910 thereafter increased France’s economic and political influence.

As Britain annexed Upper Burma, policy-makers therefore aimed to insert a provision for the opening of consulates in Yunnan into a Sino-British treaty and to clarify sovereign claims and transfrontier rights. The subsequent 1886 Treaty (Article XIII) sanctioned the stationing of several consulates. To delineate Burmese claims to lands, the convention stated the necessity of a Delimitation Commission to demarcate a boundary (Article III). The treaty emphasised Britain’s desire to encourage Sino-British transfrontier trade (Articles II and IV). Later the 1894 Treaty fleshed out more precisely political and economic relations between Britain and China on the frontier. More exact border claims were outlined (Articles I–VII), and most items were sanctioned to pass across one side to the other duty free (Article VIII). However, the treaty prohibited the transportation of opium across the frontier in either direction, except small quantities for personal use (Article XI). The importation of salt into China was also prohibited, but duty-free salt could pass from China to Burma through certain trade routes (Articles VIII–XI).

The treaties appeared to clarify the trade relations between Britain and China, but the first priority of the Burmese government was to establish authority on the Burmese side of the frontier. The Commissioner in Mandalay was the central administrative nucleus of Upper Burma forming the top of the administrative hi...

Table of contents

• Cover
• Series Information
• Title Page
• Copyright Page
• Dedication
• Contents
• Figures
• Acknowledgements
• Abbreviations
• Note on Transliteration
• List of British Representatives in Kashgar
• List of Tengyue Consuls
• Introduction
• Part I The Burma-China frontier
• Part II Through the mountains and across the desert: Xinjiang
• Conclusion
• Key terms
• Select bibliography
• Index