United States Court for China
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.
Extraterritorial jurisdiction in China was first granted to the United States by the Treaty of Wanghia upon ratification in 1845, followed by the Treaty of Tientsin ratified in 1860. Before the establishment of the United States Court for China, U.S. citizens were tried in the U.S. Consular Courts in China. The United States Court for China was similar in structure to the British Supreme Court for China that had been established in Shanghai in 1865.
Establishment of Court
The U.S. Court for China was established in 1906 and located in the Shanghai International Settlement, with additional sessions held at least annually in the Chinese cities of Canton, Tientsin, and Hankau. 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 for the offense charged did not exceed a $100 fine, 60 days imprisonment, or both. The Court exercised appellate jurisdiction over both the U.S. Consular Courts in China and the U.S. Consular Courts in Korea. The District had only one judge, and those on trial sometimes had to wait months for proceedings.
The Court was supposed to apply United States law in China. This 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). Even worse, U.S. civil procedure in actions at law (i.e., most lawsuits for monetary damages) in U.S. federal courts was also normally provided for by state law from the enactment of the Conformity Act of 1872 to the promulgation of the Federal Rules of Civil Procedure in 1938. Although the "state" (i.e., China) in which the court sat did have its own legal system, there was never any serious consideration given to applying traditional Chinese law in the Court.
The solution that was found to this conundrum was to apply Alaskan law or District of Columbia law, which were deemed to be United States law. Judge 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.
Closing of Court
The United States Consulate and Court in Shanghai were occupied by the Japanese on 8 December 1941 at the beginning of the Pacific War. The Judge and other staff were interned for 6 months before being repatriated. Americans continued to enjoy extraterritorial rights in those parts of China not occupied by the Japanese.
On 11 January 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 in May 1943 and came into force then. 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 very last case before the court was heard in Chungking (Chongqing) 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. He was pardoned 6 months later by President Franklin D. Roosevelt.
Judges of the United States Court for China
- Lebbeus R. Wilfley (1906–1908) - attorney and former Attorney General of the Philippines
- Rufus Hildreth Thayer (1909–1913) - lawyer, law clerk in the US Department of Treasury, assistant to the Librarian of Congress and former Advocate General of the District of Columbia National Guard
- Charles S. Lobingier (1914–1924) - law professor, former Judge of the Philippines Court of First Instance and later member of the U.S. Securities and Exchange Commission
- Milton D. Purdy (1924–1934) - formery city and county attorney, former US Attorney and assistant U.S. Attorney General
- Milton J. Helmick (1934–1943) - former judge and state attorney general for New Mexico
Two individuals were also appointed Special Judges of the Court to try cases when the Judge was not available. They were:
Commissioner of the United States Court for China
- 1918-1923: Ferno Schul
- 1923–1928: Nelson Erroll Lurton (1883–1956)
- 1928–19??: Alexander Krisel (1890–1983)
The following attorneys of note practiced before the court:
- Stirling Fessenden, Chairman of the Shanghai Municipal Council (1923-1929)
- Cornell Franklin, Chairman of the Shanghai Municipal Council (1937-1938)
- Thomas R. Jernigan, former US Consul General in Shanghai
- Act of June 30, 1906, Pub. L. No. 59-403, 34 Stat. 814 (creating a United States court for China and prescribing the jurisdiction thereof).
- Hearings before the Committee on Foreign Affairs, House of Representatives, 65th Congress Sept 27 and 28 and 1 October 1917
- Casement v. Squier, 138 F.2d 909 (9th Cir. 1943) (citing In re Ross, 140 U.S. 453 (1891))
- Judge R. H. Thayer Dies of Apoplexy; Former Jurist of U.S. Court at Shanghai, China, Stricken Suddenly in Kingston, N.Y.; Notable Career in Law; Once Advocate General of the National Guard of the District of Columbia published in the New York Times on July 13, 1917.
- Scully, Eileen P. (2001). Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1842-1942. Columbia University Press. ASIN 0231121091. ISBN 978-0-231-12109-5.
- 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. SSRN 440641.
- Lee, Tahirih V. (2004). "The United States Court for China: A Triumph of Local Law". Buffalo Law Review (University at Buffalo Law School) 52 (4): 923–1075. SSRN 958954.
- Millare, Thomas F. (March 22, 1908). "A United States Court on Foreign Soil: Excellent Results Follow Judge Wilfley's Work in the Establishment of American Law and Jurisdiction in Foreign Concession, Shanghai". New York Times.
- Lobingier, Charles Sumner (1920). Extraterritorial Cases, Including the Decisions of the United States Court for China from Its Beginning, Those Reviewing the Same by the Court of Appeals, and the Leading Cases Decided by Other Courts on Questions of Extraterritoriality. Manila: Bureau of Printing.