Under the treaties,cases against US citizens were tried in US consular courts,while cases against Chinese nationals were tried in Chinese courts.[2] Consuls had jurisdiction in the following matters:
criminal cases where the punishment for the offense charged did not exceed a $100 fine or 60 days imprisonment,from which there was no appeal;[3]
criminal cases where the punishment for the offense charged did not exceed a $500 fine or 90 days imprisonment,from which an appeal was available to the commissioner of the United States in China;[4] and
civil cases,in which those for damages not exceeding $500 were generally not subject to appeal.[5]
The commissioner had jurisdiction to hear all cases,and could prescribe rules of civil and criminal procedure for the consuls to follow.[6]
The court was established in 1906 by the Act Creating a United States Court for China.[7] The court was similar in structure to the British Supreme Court for China and Corea that had been established in Shanghai in 1865.
The court had only one full-time judge,and those on trial sometimes had to wait months for proceedings. In the 1930s,the law was amended to allow the appointment of special judges,allowing trials to proceed in the judge's absence. Appeals were allowed to the United States Court of Appeals for the Ninth Circuit.[8]
The 9th Circuit Court of Appeals in San Francisco which heard appeals from the US Court for China
The U.S. consular courts in China retained limited jurisdiction,including civil cases where property involved in the controversy did not exceed $500 and criminal cases where the punishment did not exceed $100 in fines or 60 days' imprisonment.[9] The Court exercised appellate jurisdiction over them,as well as,until 1910 when Japan annexed Korea,US Consular Courts in Korea.
Jurisprudence
The court's jurisdiction was given an expansive interpretation:
while the treaty strictly covered only US citizens,the court assumed jurisdiction over US non-citizen nationals who originated from "possessions" (i.e. colonies) such as the Philippines[10] and Guam.[11]
even where the State Department discriminated against Chinese-Americans living abroad in China,the court held that "an American citizen in China,whether residing temporarily or permanently,remains as much under the jurisdiction of his government,its laws and its institutions as if he were residing at home."[12]
it enforced consular title deeds where US citizens held land in trust for Chinese beneficiaries.[13]
in divorce and annulment cases,only the plaintiff had to be an American resident in China:there were no residency or nationality requirements for defendants.[14]
The United States Consulate on the banks of the Huangpu River. The court was in the building on the left from 1911 to 1930
The sources of law drawn upon by the court were quite varied:
Because the court was based outside of the United States,the United States Constitution did not apply;there was no right to a jury trial nor to constitutional due process.[15]
It was also provided that where "the laws of the United States ... are deficient in the provisions necessary to give jurisdiction or to furnish suitable remedies,the common law and the law as established by the decisions of the courts of the United States shall be applied."[16]
The question as to what constituted "common law" led to severe difficulties,because U.S. federal law did not cover many criminal offenses or civil matters (which were normally provided for by U.S. state law). The Ninth Circuit provided a solution to this conundrum in the case of Biddle v. United States,[18] where it was held that the laws of the Territory of Alaska or the District of Columbia were federal law and could be applied by the court.[note 1] As a result,Judge Lobingier would later hold that "there can be no half way adoption of that doctrine;it includes all such laws or none. It cannot logically be restricted to any particular class of acts. It is just as applicable to civil laws as to criminal;just as 'necessary' in respect to corporations as to procedure."[20]
The former Kalee Hotel,the court was located on the 2nd floor from 1930 to 1936
The court prescribed its own rules for procedures to be followed.[21] This was in contrast to the situation in the States,where civil procedure in actions at law (i.e.,most lawsuits for monetary damages) in U.S. federal courts was normally provided for by state law,by virtue of the Conformity Act of 1872,[22] until the promulgation of the Federal Rules of Civil Procedure in 1938.
The United States Congress also passed several statutes conferring specific powers on the court:
An Act to Regulate the Practice of Pharmacy and the Sale of Poison in the Consular Districts of the United States in China,Pub. L.63–262,38Stat.817,enactedMarch 3,1915
Certificate of Clerk of US Court for China bearing the seal of the court
The act establishing the court provided:"The seal of the United States Court for China shall be the arms of the United States,engraved on a circular piece of steel of the size of a half dollar,with these words in the margin 'The Seal of the United States Court for China'". The seal was to be used to seal all writs,processes and other documents issued by the court.
The United States Consulate and Court in Shanghai were occupied by the Japanese on December 8,1941,at the beginning of the Pacific War. The Judge and other staff were interned for 6 months before being repatriated.[24]
Americans continued to enjoy extraterritorial rights in those parts of China not occupied by the Japanese. On January 11,1943,the U.S. and China signed the Treaty for Relinquishment of Extraterritorial Rights in China,thereby relinquishing all U.S. extraterritorial rights. The treaty was ratified by the United States Senate and came into force on May 20,1943. As a result,both the U.S. Court for China and the U.S. Consular Courts in China were abolished. However,their judgments continued to serve as res judicata within China.
The last case before the court was heard in Kunming starting on 14 January 1943. Boatner Carney of the Flying Tigers was prosecuted for manslaughter before Special Judge Bertrand E. Johnson. Carney was convicted of unlawful killing and sentenced to two years imprisonment.[25] He was pardoned 6 months later by President Franklin D. Roosevelt.
Edwin Cunningham,United States Consul General in Shanghai from 1920 to 1935 was admitted to the bar of the court in 1930,but did not practice before the court
↑ Judge Charles S. Lobingier gave detailed evidence on the workings of, and application of law by, the court and extraterritoriality in China to the House Committee on Foreign Affairs in 1917.[19]
References
↑ implemented in An Act to Carry Into Effect Certain Provisions in the Treaties Between the United States and China and the Ottoman Porte, Giving Certain Judicial Powers to Ministers and Consuls of the United States in Those Countries, Pub. L.30–150, 9Stat.276, enacted August 11, 1848
Allman, Norwood Francis (1943). Shanghai Lawyer. McGraw Hill. OCLC582340713. (Republished with annotations and Illustrations as: Shanghai Lawyer: The Memoirs of America's China Spy Master, Earnshaw Books, 2017)
Lee, Tahirih V. (2004). "The United States Court for China: A Triumph of Local Law". Buffalo Law Review. 52 (4). University at Buffalo Law School: 923–1075. SSRN958954.
Lobingier, Charles Sumner (1928). The Decisions of the United States Court for China, 1920-1924, Those Reviewing the Same by the Court of Appeals and Leading Decisions by Other Authorities on Questions of Extraterritoriality. Vol.II. Manila: Bureau of Printing.
Ruskola, Teemu (November 15, 2003). Law's Empire: The Legal Construction of 'America' in the 'District of China'. Annual Meeting of American Society of Legal History. Washington, DC. SSRN440641.
Scully, Eileen P. (2001). Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1842-1942. Columbia University Press. ISBN978-0-231-12109-5.
Walayat, Aaron J. (2021). "China's Alaskan Jurisprudence"(PDF). UC Davis Journal of International and Comparative Law. 28 (1): 43–63.
Wessan, Eric H. (2020). "The United States Court for China". Green Bag 2d. 23 (Summer). The Green Bag: 297–309.
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![The Development Building [zh] on Fuzhou Road. The court was located on the 6th floor of this building from 1936 to 1941. Development Building Shanghai.jpg](http://upload.wikimedia.org/wikipedia/commons/thumb/3/3b/Development_Building_Shanghai.jpg/250px-Development_Building_Shanghai.jpg)
