British Supreme Court for China

From Wikipedia, the free encyclopedia
Jump to: navigation, search
The restored British Supreme Court for China and Japan building

The British Supreme Court for China (formally His Britannic Majesty's Supreme Court for China) was a court established in the Shanghai International Settlement to try cases against British subjects in China under the principles of extraterritoriality.

It was first established as the British Supreme Court for China and Japan (formally Her Britannic Majesty's Supreme Court for China and Japan) in 1865 to hear cases involving British subjects in China and Japan. In 1883, the United Kingdom obtained extra-territoriality in Korea; the court's jurisdiction was subsequently extended to Korea, but the court's name remained unchanged. In 1899, the United Kingdom gave up extra-territoriality in Japan and the court was, in 1900, renamed the British Supreme Court for China and Corea (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)).[1] When Korea became a Japanese colony in 1910, the United Kingdom also lost extra-territorial rights in Korea and the court was, in January 1911, renamed the British Supreme Court for China.[2]

The court also heard appeals from consular courts in China, Japan and Korea and from the British Court for Japan which was established in 1879.[3]

Background[edit]

Signing of the Treaty of Nanking

Britain had acquired extraterritorial rights in China under the Treaty of Nanking in 1842. The United States obtained further extraterritorial rights under the Treaty of Wanghsia which Britain was able to take advantage of under the Most Favoured Nation provision in a Supplemental Agreement to the Treaty of Nanking. Subsequently, under the Treaty of Tientsin signed in 1858 and ratified in 1860 these rights were provided for directly in a Sino-British Treaty. In 1858, Britain obtained extraterritorial rights in Japan under the Anglo-Japanese Treaty of Amity and Commerce. In Korea, Great Britain obtained extraterritorial rights in 1883 under a Treaty of Friendship and Commerce which was signed in Hanyang on 26 November 1883.

Court buildings[edit]

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 Yokohama, the British Court for Japan sat in the British Consulate building. The building was destroyed in the 1923 Great Kanto Earthquake.

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.

Changes[edit]

Japan[edit]

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 (Yokohama) with first instance jurisdiction in Japan. 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. Under the terms of the Anglo-Japanese Treaty of Commerce and Navigation signed in 1894, Britain gave up extraterritorial rights in Japan with effect from July 1899. The Court for Japan officially heard its last case, which had been filed before the end of July 1899, in early 1900. The Supreme Court was renamed the Supreme Court for China and Corea ('Corea' being the contemporary spelling for Korea) in 1900.

Korea[edit]

Under the Japan-Korea Treaty of 1910, Korea was annexed by Japan and Britain automatically lost extraterritorial rights in Korea. The court then became the Supreme Court for China.

China[edit]

In the 1920s there were negotiations with China to give up extraterritorial rights. In 1930 and 1931, after the Kuomingtang 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 9 months internship, 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.[4]

It was, however, only in 1943 during World War II that Britain, together with the United States, gave up extraterritorial rights in China under the British-Chinese Treaty for the Relinquishment of Extra-Territorial Rights in China [5] signed on 11 January 1943 and which came into force on 20 May 1943. 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.

Cases[edit]

Robert Hart, Defendant in von Gumpach v Hart

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 are online at Macquarie University's Colonial Cases[6] website. 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.

Some famous cases included a defamation claim brought by Baron von Gumpach against Robert Hart, the Chief Inspector of Chinese Maritime Customs, which ultimately went to the Judicial Committee of the Privy Council, in 1873, under the name Hart v Gumpach; the trial in 1908 of Ernest Bethell, proprietor of the Korean Daily News for sedition against the Japanese Government of Korea[7] 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;[8] and, the trial, in 1897, in the British Court for Japan of Edith Carew for the arsenic poisoning of her husband in Yokohama.[9]

Judges of the Court[edit]

Sir Edmund Hornby, first Chief Judge

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, Egyptologist Charles 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 it 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.

List of Judges

Crown Advocates[edit]

Nicholas Hannen, First Crown Advocate

From 1878, the position of Crown Advocate was created. This was similar to the position of an Attorney General in a colony. The Crown Advocate was not a full-time employee of the Foreign Office but received payment for acting as Crown Advocate. The Crown Advocate was allowed to accept cases from private clients that did not conflict with his role as Crown Advocate. The 6 gentlemen who served as Crown Advocate were:

Hiram Parkes Wilkinson was the son of Hiram Shaw Wilkinson. Together they served as Crown Advocate for a total of 44 years.

References[edit]

  1. ^ The China and Corea (Supreme Court) Order in Council (1900), London Gazette, March 9, 1900, p1618
  2. ^ The Corea Order in Council, 1911, London Gazette, 27 January 1911, p688
  3. ^ The North China Herald, Shanghai, Saturday, July 29, 1865
  4. ^ Report from Allan Mossop, Judge, to the Secretary of State of Foreign Affairs, dated 24 September 1942 FO369/2719
  5. ^ http://www.fco.gov.uk/resources/en/pdf/treaties/TS1/1943/2
  6. ^ http://www.law.mq.edu.au/research/colonial_case_law/colonial_cases/less_developed/china_and_japan/
  7. ^ North China Herald, 27 June 1908 pp825-828
  8. ^ The Times, 14 August 1939
  9. ^ For the summing up and verdict, see the North China Herald, 12 February 1897, pp259 to 264; A book has also been written on this case, Murder on the Bluff. ISBN 978-1—897784—52—5
  10. ^ Foreign Office List 1877, p119-20
  11. ^ Foreign Office List 1878, p103
  12. ^ Foreign Office List 1881, p98
  13. ^ Foreign Office List 1898, p173
  14. ^ Foreign Office List 1892, p180
  15. ^ Foreign Office List 1900, p130
  16. ^ Foreign Office List 1900, p145
  17. ^ The London Gazette: no. 27308. p. 2856. 26 April 1901.
  18. ^ Foreign Office List 1917, p209
  19. ^ Foreign Office List 1908, p386
  20. ^ Foreign Office List 1943, 352
  21. ^ Foreign Office List 1928, pp424-425
  22. ^ Foreign Office List 1934, p257
  23. ^ Foreign Office List 1932, p304
  24. ^ Foreign Office List 1943, p232
  25. ^ Foreign Office List 1943 p267-8