United States Court for China

Source: Wikipedia, the free encyclopedia.
United States Court for China
Defunct
LocationShanghai International Settlement
Appeals toNinth Circuit
EstablishedJune 30, 1906
AbolishedMay 20, 1943
United States Court for China
Hanyu Pinyin
Shànghǎi Měiguó Fǎ​yuàn

The United States Court for China was a

U.S. Court of Appeals for the Ninth Circuit in San Francisco
.

Consular courts prior to establishment of court

Extraterritorial jurisdiction in China was first granted to the United States by the Treaty of Wanghia upon ratification in 1845,[1] followed by the Treaty of Tientsin ratified in 1860.

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]

Establishment of court

American Consulate General and US Court for China, Shanghai 1907

The court was established in 1906 by the Act Creating a United States Court for China.

British Supreme Court for China and Corea
that had been established in Shanghai in 1865.

The court was originally headquartered in the American Consulate General building on Huangpu Road in the Shanghai International Settlement, with additional sessions held at least annually in the Chinese cities of Canton, Tientsin, and Hankow. The court moved with the US Consulate when the consulate was moved from its previous premises in the years 1911, 1930 and 1936.

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:

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:

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

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:

Court seal

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.

Imprisonment

McNeil Island Penitentiary in 1937

People who received relatively short sentences for criminal offences were either imprisoned in the Consular Gaol in the consulate or in either

Shanghai Municipal Council. Those serving longer sentences were sent to Bilibid Prison in the Philippines and later from the 1920s were generally sent to the federal penitentiary at McNeil Island in Washington State to serve their sentence.[23]

Abolition

The Development Building [zh] on Fuzhou Road. The court was located on the 6th floor of this building from 1936 to 1941.

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.

Judges

Substantive appointments

List of Judges
Person Term Background
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
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 Former city and county attorney, US Attorney and Assistant U.S. Attorney General
Milton J. Helmick 1934–1943 Former judge and Attorney General of New Mexico

Special Judges

Two individuals were also appointed Special Judges of the Court to try cases when the Judge was not available. They were:

Commissioners

  1. 1918–1920: Nelson Erroll Lurton (1883–1956)
  2. 1920–1923: Ferno J. Schul (1889-??)
  3. 1923–1928: Nelson Erroll Lurton (1883-1956)
  4. 1928–1933: Alexander Krisel (1890–1983)
  5. 1934-1937: William T. Collins (ex-officio as Clerk of the Court)
  6. 1937–1941: Nelson Errol Lurton (1883-1956)

Notable Attorneys

The following attorneys of note were admitted to practice before the court:

  • Thomas R. Jernigan, former US Consul General in Shanghai
    Thomas R. Jernigan, former US Consul General in Shanghai
  • Stirling Fessenden, Chairman of the Shanghai Municipal Council (1923-1929); Secretary-General of the SMC (1929-1939)
    Shanghai Municipal Council
    (1923-1929); Secretary-General of the SMC (1929-1939)
  • Cornell Franklin, Chairman of the Shanghai Municipal Council (1937-1938)
    Shanghai Municipal Council
    (1937-1938)
  • Norwood Allman, Member of the Shanghai Municipal Council (1940-1942)
    Shanghai Municipal Council
    (1940-1942)
  • 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
    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

See also

Notes

  1. ^ 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

  1. Pub. L.Tooltip Public Law (United States) 30–150, 9 Stat. 276
    , enacted August 11, 1848
  2. ^ Ruskola 2008, p. 220.
  3. ^ 1848 Act, s. 8
  4. ^ 1848 Act, s. 9
  5. ^ 1848 Act, s. 11
  6. ^ 1848 Act, s. 5
  7. Pub. L.Tooltip Public Law (United States) 59–403, 34 Stat. 814
    , enacted June 30, 1906
  8. ^ 1906 Act, s. 3
  9. ^ 1906 Act, s. 2
  10. ^ United States v. Scogin, I Extraterritorial Cases 376 (USC-C 1914).
  11. ^ United States v. Osman, I Extraterritorial Cases 540 (USC-C 1916).
  12. ^ In re Robert Lee's Will, I Extraterritorial Cases 699, 710 (USC-C 1918).
  13. ^ Latter, A.M. (1903). "The Government of the Foreigners in China". Law Quarterly Review. 19: 316., at 322
  14. ^ Richards v. Richards, I Extraterritorial Cases 480 (USC-C 1915).
  15. ^ Casement v. Squier, 138 F.2d 909 (9th Cir. 1943)., citing In re Ross, 140 U.S. 453 (1891)
  16. ^ 1906 Act, s.4
  17. ^ a b Ruskola 2008, p. 233.
  18. ^ Biddle v. United States, 156 F. 759 (9th Cir. 1907)., reversing (on other grounds) United States v. C.A. Biddle, I Extraterritorial Cases 84, 87 (USC-C 1907).
  19. ^ Hearings before the Committee on Foreign Affairs, House of Representatives, 65th Congress Sept 27 and 28 and 1 October 1917.
  20. ^ United States ex rel. Raven v. McRae, I Extraterritorial Cases 655, 664 (USC-C 1917).
  21. ^ 1906 Act, s. 5
  22. Pub. L.Tooltip Public Law (United States) 42–255, 17 Stat. 196
    , enacted June 1, 1872
  23. ^ Allman 1943, p. 99.
  24. ^ New York Times, "US Officials kept in Hotel, December 9, 1941 and "Gripsholm brings 1,500 from the Orient" August 26, 1942.
  25. ^ The Daily Herald (Biloxi and Gulfport), Jan 18, 1943.
  26. New York Times
    . July 13, 1917.

Further reading

External links

Legislation

Investigations

US National Archive files