47. Immanuel Hsu, op. cit. 126-127» 48. IWSM 2 7:2 5-2 6.
49» Biggerstaff, op. cit. 33»
5 0, Immanuel Hsu, op. cit. 1 3 8.
51. Ma Chien-chung and Ch'en Chi-t'ung in 1878 studied law and negotiation in France. Chung-kuo shih-hsüeh hui, Yang-wu yun-tung (Shanghai, 1 9 6 1) V 207»
Although Elements of International Law was
published and distributed to government circles, the under standing by the Yamen and other officials of international law was still very superficial. For Prince Kung, who
recommended to the court the publication of Wheaton's book, international law was the "practices and precedents" of foreign countries, a collection of the laws and regulations
52
of Western nations. Although they often used the term "international law" and became familiar with certain
technicalities, the general principles of international law and the fact that it consists of customary law and positive law, and is the law in force in modern international society, all seemed unfamiliar to them. They failed utterly to
comprehend the connection of international law with the domestic legal system. At this time nobody in the foreign office really had the basic knowledge of modern jurisprudence required for a full understanding of international law.
Wheaton's book did not clearly state that consular jurisdiction was an infringement of sovereignty, and those Chinese officials who had no systematic understanding of international law and what it was based on, could not have known enough to seek treaty revision. Three basic items - consular jurisdiction, conventional tariff, and the most- favoured nation treatment, seen from the stand-point of
modern international law, made the treaties unequal. Yet China at that time did not fight over these three but over
the audience problem, and over the problem of ministers of foreign countries insisting that they be given the right to reside in Peking.
Most of the Ch'ing officials disliked the treaties not on theoretical grounds but rather because they felt humiliated by the fact that under the pressure of gunboats they had to accept the foreign demands. Rather than being opposed on legal grounds the officials of that time were outraged at the infringement of China's sovereignty by the behaviour of the Powers in China. This foreign threat aroused nationalistic sentiments among these officials, who laid stress on the strengthening of China so that she could defy the Western nations' gunboat diplomacy. In all this there was no question of treaty revision.
Some of those who had studied abroad, like Ma Chien-chung and Wu T ’ing-fang, worked under Li Hung-chang after their return and should have been able to make up for Li's deficiencies in this matter, and to improve China's knowledge ,of international law through their own knowledge
and through contact and discussion with foreign representatives. However, partly because not much use was made of those who
had received foreign legal training, partly because the Powers concentrated their pressure on China rather than
Japan, and especially because those in power like Li Hung-chang and others still did not fully understand international law
and thought that if China's military strength were sufficient everything would be solved, China did not demand treaty
revision.
But what of the knowledge of Chinese diplomats abroad in this respect?
None of the Chinese ministers abroad before 1895 had received any formal education in international law. Restricted by their language capacities, their knowledge of international law was acquired mainly through the Chinese translation of books on the subject. But like their colleagues in China, they failed to achieve a deep understanding of
the modern legal principles underlying international law. Again, many of them mentioned the term 'international law' in memorials and discussions, but these references related rather to technicalities and procedural matters, than to
fundamental questions.
The Chinese ministers' knowledge of the practical side of international law did prevent many diplomatic faux pas, but without a systematic understanding of the reasoning behind the practice, particularly in matters of sovereignty and the territorial principle of legal rights, it was unlikely that the idea of treaty revision and the establishment of a modern domestic legal order could arise. The few ministers who did suggest treaty revision, (Tseng Chi-tse, Ho Ju-chang, and Hsu* Ch'eng-tsu), perhaps impressed by Japan's example, mentioned nothing about the establishment or reform of China's own legal system.
Unlike Japan which had completely adopted Western international law and adhered strictly to it for her own advantage, the Chinese were bound more tightly to their traditional culture and political background and sought instead for means of maintaining the established Chinese patterns of foreign intercourse within the framework of the new international law system. They saw international law as a set of rules to prevent mistakes in diplomacy, and as a means of restricting foreign powers by insisting
53 on strict adherence to treaties.
China's understanding of international law was closely connected with her understanding of the West. As Chinese ministers abroad learned more about Western political systems, they came to realise that a change was necessary in China's attitude to foreign countries: she should no longer regard them as inferior 'barbarians'. The dawning of this concept of the equality of nations in the inter
national society was China's first step towards understanding the basis of modern international relations and international law.
One of the first to appreciate the need for this sort of understanding was Kuo Sung-t'ao, who wrote,
Tseng Chi-tse, Tseng Hui-min kung, 2 : 2 2 - 2 3 ; Immanuel Hsu, op. cit. 2 0 7 ; Ho Ping-ti, op. cit. 1 0 6 - 1 0 7 and Shen Yun-lung, op. cit. 5 2 - 5 7 *
".... the (contact with) the West is clearly different from the states of Liao and Chin .... (the ^est) came to China only for trade, and the competition among the various Western powers like England, France, Russia, and the
United States, is not comparable to the contending nations of the Warring States period. They
(the West) created international law in order to keep faith with each other, laying particular stress on diplomatic friendship, and even
reasoning or arguing with each,other before resorting to military force".
Kuo's ideas were shared by other ministers like Tseng, 55
Hsüeh, Li Shu-ch'ang and many others. Their opposition to the use of force, favouring reliance on international law to deal with Western powers, reflected a more complete understanding of the nature of international law as a force balancing the power of strong countries for the protection of weaker countries.
However, Chinese ministers before 1095> while advocating China's recognition of Western powers as equal, seem to have overlooked a factor which at the time prevented the W'-e stern powers' from regarding China as an equal: that is, China's own underdeveloped legal system. There was almost no mention of domestic legal reform for China. Thus their understanding of modern international relations or international law was crucial to this period because it was,
5 4
.
Kuo Sung-t'ao, Shih-Hsi chi-ch'eng (N.P.1876)
2:3,24.
55» P'eng Tse-i, "Kuo Sung-t'ao chih ch'u-shih Ou-Hsi chi-ch'i kong-hsien" in CSLT Series 1, No. 7» 70«
after all, being used by Western powers in the successful penetration of China.
However, because of their foreign experience, the ministers abroad had a more advanced attitude than authorities in China. On other technical points there had been consider able improvement. When Kuo sung-tao's mission was sent for the first time, the credentials mentioned only the apology, without referring to Kuo's status as resident minister and Liu Hsi-hung's official status, and it took almost a year
to correct this."^ The incidence of this type of mistake had been greatly reduced by 1895»
Of the ministerial appointees after 1895» some 57
had been admitted to the Western bar, some had already had the experience of translations Western international law books into Chinese; and many T'ung-wen kuan graduates had a basic knowledge of international law from their training, and their later experience on mission staffs increased their understanding of foreign languages, helping them to absorb further knowledge of international law.
After 1905 the influence of Chinese translating of Japanese books, and of Japanese translations of Western books, made itself felt. The number of books translated
56.
WSCL 9:22-24, 26-27.57. Wu T'ing-fang was the first Chinese to be admitted