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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.

Contents

  • History 1
  • Establishment of Court 2
  • Closing of Court 3
  • Final Case 4
  • Judges of the United States Court for China 5
  • Commissioner of the United States Court for China 6
  • Notable Attorneys 7
  • References 8

History

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 court was established in 1906 and located in the Shanghai International Settlement. 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.[1]

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.[2]

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 US and China signed a Treaty Relinquishing Extraterritorial Rights. The treaty was ratified in May 1943 and came into force then.

Final Case

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

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

  • Nelson Lurton (1938 and 1941)
  • Bertrand E Johnson (1943)

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)

Notable Attorneys

The following attorneys of note practiced before the court:

References

  1. ^ Hearings before the Committee on Foreign Affairs, House of Representatives, 65th Congress Sept 27 and 28 and 1 October 1917
  2. ^ Casement v. Squier, 138 F.2d 909 (9th Cir. 1943) (citing In re Ross, 140 U.S. 453, 11 S. Ct. 897, 35 L. Ed. 581 (1890)).
  3. ^ http://query.nytimes.com/mem/archive-free/pdf?res=F50E12FB385F157A93C1A8178CD85F438185F9
  • Scully, Eileen P., Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1842-1942 (Columbia University Press, 2001).
  • Ruskola, Teemu, Law's Empire: The Legal Construction of 'America' in the 'District of China'.
  • Lee, Tahirih V., The United States Court for China: A Triumph of Local Law. Buffalo Law Review, Vol. 52, p. 923, 2004; FSU College of Law, Public Law Research Paper No. 243.
  • Article from the New York Times
  • US China Treaty for Relinquishment of Extraterritorial Rights
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