Law's Empire: The Legal Construction of 'America' in the 'District of China'

Abstract

In 1906 the U.S. Congress passed An Act Creating a United States Court for China and prescribing the jurisdiction thereof. The new court, equivalent to a federal district court, assumed civil and criminal jurisdiction over American citizens within the District of China which in turn was coincident with the Empire of China. Appeals from the court were taken to the Ninth Judicial Circuit in San Francisco, with further appeals to the United States Supreme Court in Washington, D.C. Expanding its original mandate, the court eventually construed its jurisdiction to include not only American citizens in the District of China but also American subjects from the Philippines and Guam, and in some cases American citizens who had never even been to China. The law applied by the court consisted of an extraordinary mix of colonial common law as it existed prior to American independence, general congressional acts, the municipal code of the District of Columbia, and the code of the territory of Alaska (parts of which continued being applied in China even after they were repealed in Alaska), to mention only the main sources of the court's jurisprudence. The court had only one judge, and when he was away (either riding circuit in the cities of Hankow, Tientsin, or Canton, or being investigated for official misconduct in Washington), prisoners sometimes had to wait for months for a trial. Indeed, virtually the only federal law that did not apply in the District of China was the United States Constitution: there was no right to a jury trial nor to constitutional due process, for example. This may all sound rather like a chapter from Alice in Wonderland - the kind of befuddled jurisprudence one might expect to emerge from the courtroom of the Queen of Hearts, not from a court of the United States. Yet the above description is in fact a brief summary of the jurisprudence of the American extraterritorial court in Shanghai, known simply and immodestly as the United States Court for China. It operated for several decades, and was not abolished until 1943. Even among its contemporaries, the court was not well known; from time to time, Congress itself forgot about its own creation. Those who became aware of the court's existence were as startled and intrigued as today's observers. A central goal of this Article is to rescue the U.S. Court for China from such oblivion. Although the court was likely the strangest federal tribunal ever constituted by Congress, it remains little known among legal scholars and China specialists alike, both in the United States as well as in China, and its jurisprudential and political significance remain almost entirely unexplored. In addition to its intrinsic historical significance, the court's functioning provides also a window into understanding the interaction between Chinese law and other legal systems. In the end, the story of the U.S. Court for China is part of the much larger, still on-going story of the introduction of Western international law into China. The ultimate ground for the court's stunning jurisdiction lay in the claim that China did not qualify for full membership in the Family of Nations, or Euro-American international society consisting of civilized states identified with their national legal systems.