The Treaty of Tientsin specified how such jurisdiction was to be governed:
Signing of the Treaty of Tientsin
Disputes between British subjects would "be subject to the jurisdiction of the British authorities."[3]
For criminal acts,Chinese subjects would be arrested and punished by the Chinese authorities,according to Chinese law. In similar fashion,British subjects tried and punished by the Consul,"or other public functionary authorized thereto",according to British law.[4]
Where a British subject wished to lodge a complaint against a Chinese subject,or vice versa,it had to be presented to the British consul,who would "do his utmost to arrange it amicably." Failing that,"he shall request the assistance of the Chinese authorities,that they may together examine into the merits of the case,and decide it equitably."[5]
In civil matters,Chinese authorities would enforce debts owed by Chinese subjects to British subjects,and British authorities would do likewise for those owed by British subjects to Chinese subjects.[6]
Jurisdiction in the first instance,as well as in matters involving British defendants,was vested in the British consular courts,while in the Shanghai International Settlement,matters relating to criminal acts and debt enforcement involving Chinese defendants were vested in a "Mixed Court" (Chinese:洋泾浜理事公廨;pinyin:Yángjīngbāng lishìgōngxiè,[7] later known as 會審公廨;Huìshěn Gōngxiè).[8] Matters relating to complaints were not considered to be judicial.[7]
Appeals from British consular courts initially went to the Supreme Court of Hong Kong,which gradually became unpopular as British economic activity rose in the Yangtse valley.[9] The establishment of the British Supreme Court for China and Japan[note 1][10] was not challenged from any official quarter in China,as it was seen to be not only a way to more efficiently try matters close to the scene,but also to allow Qing officials to exert direct pressure on British authorities when they were not satisfied with a sentence.[9]
In 1879,reflecting the growing British commercial interests in Japan and the inconvenience of bringing a first instance action in Shanghai,the British Court for Japan was established in Kanagawa (now part of Yokohama) with first instance jurisdiction in Japan.[11] The Court for Japan also heard appeals from consular courts in Japan. Appeals from the Court for Japan were heard by the Chief Justice and Judge of the Supreme Court in Shanghai.
The United Kingdom later obtained extraterritoriality in Korea as a result of the United Kingdom–Korea Treaty of 1883. The court's jurisdiction was subsequently extended there in 1884,but the court's name remained unchanged.[12]
Under the terms of the Anglo-Japanese Treaty of Commerce and Navigation of 1894,Britain gave up extraterritorial rights in Japan with effect from July 1899.[13] The court was renamed the British Supreme Court for China and Corea in 1900.[note 2][14] The Court for Japan officially heard its last case,which had been filed before the end of July 1899,in early 1900.
Under the Japan-Korea Treaty of 1910,Korea was annexed by Japan and Britain automatically lost extraterritorial rights in Korea. The court was,in January 1911,renamed the "British Supreme Court for China".[15]
In the 1920s there were negotiations with China to give up extraterritorial rights. In 1930 and 1931,after the Kuomintang consolidated their rule in China,Britain reached an agreement in principle with the Chinese Foreign Minister to give up extraterritorial rights. The Japanese invasion of Manchuria in 1931 and then Northern China in 1937 put the issue on the backburner. The court effectively ceased to function on 8 December 1941 when the Japanese Navy occupied the court premises at the start of the Pacific War. After nine months' internment,either at home or in the Cathay Hotel (now the Peace Hotel),the judges and British staff of the court were evacuated to Britain aboard the SS Narkunda.[16]
It was,however,only in 1943 during World War II that Britain gave up extraterritorial rights in China under the British-Chinese Treaty for the Relinquishment of Extra-Territorial Rights in China[17] signed on 11 January 1943 and which came into force on 20 May 1943.[18] The United States gave up its extraterritorial rights at the same time. The court therefore had had jurisdiction over British subjects in Korea for 27 years;in Japan for 34 years and in China for 78 years when the court was finally dissolved in 1943.
Court buildings
In Shanghai,the court was housed in the British Consulate compound. From 1865 to 1871 cases were heard using the rooms that had been used by the consular court. In 1871 a dedicated court building to stand at the back of the consulate building facing on to Yuanmingyuan Road was opened. In 1913 the building was expanded to add a police court (on the ground floor) and a second court (on the first floor) immediately south of the main court room. Rooms of similar size were built to the north for consular offices. The building still stands to this day and can be seen from Yuanmingyuan Road.
In other cities,when the judges of the court went on circuit to outlying cities they would generally sit in courts in British consulate buildings but on occasions would use other premises where important cases of great public interest were being heard.
Today the court building is used as an entertainment and dining venue managed by The Peninsula Shanghai Hotel.
Jurisdiction
The court applied the rules of English law and equity to matters in difference concerning:[19]
In China,the court deferred to the Hong Kong Supreme Court in several respects,relinquishing jurisdiction over cases involving British subjects where the matter in question occurred:
within 10 miles (16km) of Hong Kong's borders,[22][23]
or where an offence was committed on a British ship by a British subject in Hong Kong[26]
The court could also decide to refer certain criminal cases involving British subjects to the Hong Kong Court,or to the Sessions Court at Mandalay.[27] Referred cases were tried under English law,[23] instead of Hong Kong law or Indian law.
In 1916,the companies ordinances enacted in Hong Kong[28] were extended to China,and companies that were constituted as a "China Company" thereunder were placed under the jurisdiction of the Court.[29]
In 1920,that part of China that formed part of the British consular district of Kashgar was withdrawn from the Supreme Court's jurisdiction. From that time onwards to 1943,extraterritorial jurisdiction in that region was exercised by the High Court of the Punjab (Lahore High Court),and Indian law applied.[30]
Effective 26 April 1927,the court ceased to have criminal jurisdiction over persons subject to military law in the British and Indian military forces,while on active service,except if the commander of the forces consented to the court having jurisdiction.[31]
The court tried cases of all descriptions,all the time applying English law in China,Japan and Korea,including murder trials before juries,divorce cases,commercial disputes,trademark and passing off claims,habeas corpus applications and cases of petty theft. Some of its cases have been posted online by Macquarie University.[32] Official case reports can be found in the North China Herald which was also the Supreme Court and Consular Gazette. Cases from other consular courts in Shanghai were also published in the North China Herald.
the trial in 1908 of Ernest Bethell,proprietor of the Korean Daily News for sedition against the Japanese Government of Korea[35] as well as a defamation claim brought by Bethell,also in 1908,against the North China Herald;
a habeas corpus application,in 1939,on behalf of 4 Chinese held by British officials in Tianjin but wanted by the Japanese authorities in China for murder;[36] and
the trial,in 1897,in the British Court for Japan of Edith Carew for the arsenic poisoning of her husband in Yokohama.[37][38]
Judges of the court
In its 78 years of existence from 1865 to 1943 the court had 15 full-time judges,including the first Chief Judge,Sir Edmund Hornby,EgyptologistCharles Wycliffe Goodwin;Frederick Bourne,a recipient of thanks from the U.S. President for services rendered;an aristocrat,Havilland de Sausmarez for whom the baronetage of the De Sausmarez Baronets was created;and a recipient of a decoration from the King of Siam,Skinner Turner. The judges came from a variety of places,including from England,Wales,Scotland,Ireland,the British Virgin Islands and South Africa.
Throughout its existence the court had two permanent judges at any one time. From 1865 to 1878 and 1905 to 1943 the senior judge was titled Judge and the junior judge's title was Assistant Judge. Between 1878 and 1905 the senior judge was titled Chief Justice and the junior judge's title was Judge.
In 1878,the position of Crown Advocate was created,being similar to the position of an Attorney General in a colony. The Crown Advocate was not a full-time position in the Foreign Office,but the officeholder received payment for performing his duties. He was allowed to accept cases from private clients that did not conflict with his public role. The six gentlemen who served in this office were:
↑ formally "Her Britannic Majesty's Supreme Court for China and Japan"
↑ formally "Her Britannic Majesty's Supreme Court for China and Corea" (1900-1901) and, later, "His Britannic Majesty's Supreme Court for China and Corea" (1901–1910)
In international law, extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations.
Charles Wycliffe Goodwin (1817–1878) was an English Egyptologist, bible scholar, lawyer and judge. His last judicial position was as Acting Chief Judge of the British Supreme Court for China and Japan.
The Shanghai International Settlement originated from the merger in the year 1863 of the British and American enclaves in Shanghai, in which British and American citizens would enjoy extraterritoriality and consular jurisdiction under the terms of unequal treaties agreed by both parties. These treaties were abrogated in 1943.
The Supreme Court of Hong Kong was the highest court in Hong Kong prior to the transfer of sovereignty of Hong Kong from the United Kingdom to the People's Republic of China in 1997 and heard cases of first instance and appeals from the District and Magisrates Courts as well as certain tribunals. The Supreme Court was from 1976 made up of the High Court of Justice and the Court of Appeal.
Britain had a functioning consular service in Japan from 1859 after the signing of the 1858 Anglo-Japanese Treaty of Amity and Commerce between James Bruce, 8th Earl of Elgin and the Tokugawa Shogunate until 1941 when Japan invaded the British colonial empire and declared war on the United Kingdom.
Foreign concessions in China were a group of concessions that existed during the late Imperial China and the Republic of China, which were governed and occupied by foreign powers, and are frequently associated with colonialism and imperialism.
The United States Court for China was a United States district court that had extraterritorial jurisdiction over U.S. citizens in China. It existed from 1906 to 1943 and had jurisdiction in civil and criminal matters, with appeals taken to the U.S. Court of Appeals for the Ninth Circuit in San Francisco.
The Sino-British Treaty for the Relinquishment of Extra-Territorial Rights in China, or the Sino-British New Equal Treaty, was a bilateral treaty concluded between the British and the Chinese government in Chongqing on 11 January 1943. The formal name of the treaty was Treaty Between His Majesty in Respect of the United Kingdom and India and His Excellency the President of the National Government of the Republic of China for the Relinquishment of Extra-Territorial Rights in China and the Regulation of Related Matters.
Sir Hiram Shaw Wilkinson, JP, DL (1840–1926) was a leading British judge and diplomat, serving in China and Japan. His last position before retirement was as Chief Justice of the British Supreme Court for China and Corea.
Sir Havilland Walter de Sausmarez, 1st Baronet was a judge of various British colonial or consular courts in Africa and Asia, the Ottoman Empire and China. His last judicial position before retirement was as Chief Judge of the British Supreme Court for China. He later served as Bailiff of Guernsey.
In countries outside of its borders, a foreign power often has extraterritorial rights over its official representation. If such concessions are obtained, they are often justified as protection of the foreign religion such as the ahdname or capitulations granted by the Ottoman Sultan to commercial Diasporas residing in the Ottoman Empire. The Sultan did not see this agreement as a bilateral agreement between equals, but merely as acknowledging the nation of foreigners living within his territory and offering them privileges similar to those given to non-Ottoman subjects. However, the European states viewed the ahdname as formal and official and therefore had difficulty enforcing the privileges to their satisfaction on many occasions.
The British Court for Japan was a court established in Yokohama in 1879 to try cases against British subjects in Japan, under the principles of extraterritoriality. The court also heard appeals from British consular courts in Japan. Appeals from the British Court for Japan lay to the British Supreme Court for China and Japan based in the Shanghai International Settlement.
Sir Edmund Grimani Hornby was a leading Italian British judge, with family interests in diamond-rich Antwerp. He was the founder and Chief Judge of both the British Supreme Consular Court at Constantinople and British Supreme Court for China and Japan.
British Weihaiwei or Wei-hai-wei on the northeastern coast of China, was a leased territory of the United Kingdom from 1898 until 1930. The capital was Port Edward, which lay in what is now the centre of Huancui District in the city of Weihai in the province of Shandong. The leased territory covered 288 square miles (750 km2) and included the walled city of Weihaiwei, Port Edward just to the north, Weihaiwei Bay, Liu-kung Island and a mainland area of 72 miles (116 km) of coastline running to a depth of 10 miles (16 km) inland, an area roughly coterminous with the Huancui District of modern Weihai City. Together with Lüshunkou it controlled the entrance to the Bohai Sea and, thus, the seaward approaches to Beijing.
The Treaty between the United States and China for the Relinquishment of Extraterritorial Rights in China was a bilateral treaty signed by the United States and the Republic of China on January 11, 1943. The formal name of the treaty was Treaty Between the United States of America and the Republic of China for the Relinquishment of Extraterritorial Rights in China and the Regulation of Related Matters. It became effective on May 20, 1943, following the mutual exchange of ratifications pursuant to Article VIII.
Sir Skinner Turner was a British judge who served in Kenya, Uganda, Siam and China. His last position was as the Chief Judge of the British Supreme Court for China from 1921 to 1927.
Sir Richard Temple Rennie was a British barrister and judge who served in China and Japan. He was the Chief Justice of the British Supreme Court for China and Japan from 1881 to 1891. He was judge of the British Court for Japan from its creation in 1879 to 1881.
Sir Allan George Mossop was a British judge of South African origin who served in China. He was the Chief Judge of the British Supreme Court for China from 1933 to 1943.
Penrhyn Grant Jones CBE (1878–1945) was a British judge and diplomat who served in China. His last position before retirement was as Assistant Judge of the British Supreme Court for China.
Consular courts were law courts established by foreign powers in countries where they had extraterritorial rights. They were presided over by consular officers.
↑ A book has also been written on this case: Whittington-Egan, Molly (1996). Murder on the Bluff: Carew Poisoning Case. Neil Wilson Publishing. ISBN1-89778452-X.
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