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Colonial Cases

China and Japan

 

The British, European and United States consular courts which operated in China and Japan did so on the principle of extra-territoriality. That is, they had jurisdiction over their own subjects and citizens who were in the physical area of the courts in locations such as Shanghai and Nagasaki. See Douglas Clark's three volume history of extraterritoriality in China, Japan and Korea: Gunboat Justice: British and American Law Courts in China and Japan (1842-1943), Earnshaw Books, Hong Kong, 2015, referred to at http://www.gunboatjustice.com.  His website also refers to a video of what appears to be a Judge of the Supreme Court, taken in 1928.

See also G.W, Keeton, The Development of Extraterritoriality in China , 2 vols., Longmans, 1928, and Georges Soulié De Morant, Extraterritorialité et Intérêts Étrangers en Chine, Geuthner, 1925, both reviewed by H. Dodwell, (1929) 5(3) Bulletin of the School of Oriental and African Studies 654-655. The most recent thorough studies are P. Cassal, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan, Oxford University Press, Oxford, 2013; and Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire and China, Cambridge University Press 2010. See also N. B. Dennys, The Treaty Ports of China and Japan: A Complete Guide to the Open Ports of Those Countries, , Trübner & chinCo., London, 1867, p. 387; Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844-1942,  Columbia University Press, New York, 2001.

Kayaoglu provides a chart of the dates of British extraterritorial courts, stating that they operated in China between 1833 and 1943, Japan 1856-1899 and Korea 1883-1910. There were six British extraterritorial courts in Japan in the mid-1880, 66 in the Ottoman empire in 1900 and 26 in China in 1926 (Table 1 and note 4 in the introduction).

A clear analysis of the consular courts generally and particularly those of the United tates was published in 1919, when there were fifteen American consular courts in operation in  China:   C.S. Lobingier, American Courts in China, Bar Association Publications, 1919, reprinted  by Bibliolife. This was an Address by the President of The Far Eastern Bar Association. It explained the relationship between territorial and personal jurisdiction, and the interaction of the amateur consular courts and the professional United States Court for China. See also C.M. Bishop, "The American Consular Court System in China" (1922) 8 American Bar Association Journal 223-225.

The following consular court and Mixed Court cases were transcribed from digital copies of newspapers in national libraries around the world.  We also used  manuscript material in the National Archives (U.K.). Most of the archival transcriptions and newspaper transcriptions were made by Peter Bullock, who contributes so much to the Macquarie and Austlii colonial cases projects. His index to volumes 339  and 340 of the National Archives court records is online. A National Archives China index is also online. Other cases were transcribed by Doutlas Clark, barrister, Hong Kong, and by Bruce Kercher. The Douglas Clark transcriptions are noted as by him.

Cases in the archives are usually available in the newspapers as well.

The best judicial discussion of the British courts' jurisdiction in China and Japan is in R. v. Carew, 1897. That is less a case report than a newspaper explanation of the function and power of the courts. See also Hart v. Von Gumpach, 1872 on jurisdiction. On the establishment of the Supreme Court of China and Japan in 1865, see Supreme Court, establishment

The newspapers frequently made valuable  comments on the European and American courts in China and Japan. They are collected together below and on the left hand side of this page, under the heading Newspaper Commentary.

Cases decided in China and Japan are collected together here because the British Supreme Court had jurisdiction over both places. That court had original jurisdiction in Shanghai and appellate jurisdiction from the consular courts elsewhere in China and Japan, as well as Korea. The consuls of the various towns and cities in China and Japan had judicial power. Their commonality lay in the appeal to the Supreme Court, and from there to the Judicial Committee of the Privy Council.

The British were not the only Europeans to hold consular courts in China and Japan. Most of the cases reported here were heard by British courts, though some other European and United States consular courts' cases are also included here. Non-British cases are indicated in the case lists in bold. One noticeable feature of those cases is how common were their legal principles in the typical small commercial or criminal cases in question. A  brief statement of the cause of action is attached to each case record, and to the lists of cases under each year or group of years.

The ultimate mixture of legal principles in any court sitting in Shanghai was most apparent in the Mixed Court. Its establishment and jurisdiction was discussed in two articles in the North China Herald. See also Mixed Court operation and abolition, Thomas B. Stephens, Order and Discipline in China. The Shanghai Mixed Court, 1911-1927, University of Washington Press, Seattle, 1992, and Kelly Hammond, "The Shanghai Mixed Court 1863-1880-colonial institution building and the creation of legal knowledge as a process of interaction and mediation between the Chinese and the British" M. Hist. thesis, Simon Fraser University, 2007. The difficulty in tracing the sources of Mixed Court decisions are discussed here. One example of mixed principles is Evans v. Su Pow Sun, 1895.

The acceptance and rejection of metropolitan legal principles was as much in play in consular courts as in colonial courts  One point frequently in issue concerned the admissibility and credibility of evidence by local people.  The admission of Aboriginal evidence was hotly contested in New South Wales for instance. See R. v. Lamb [1839] NSWSupC 6, which turned on the refusal of Aboriginal testimony. In China it was a case of credibility rather than admissibility. Chinese evidence was admitted, but frequently doubted: see for example R. v. Wilson, 1891. On the other hand, see Hop Kee v. Bidwell, 1880.

From time to time there were suggestions that the western consular courts were biased against Chinese litigants when suiing or being sued by western people and companies. See for example, Tai Wan Wa and Sun Ping San v. Adamson, Bell and Co., 1884. We have completed a quick survey of the results of our reported  litigation between Chinese or Japanese parties and westerners. It covers decisions from  the 1850s to the end of the 1880s. In those years, the western consular courts decided in favour of western parties in 31 cases and in favour of Chinese or Japanese people in 19 cases. This issue deserves further attention, to the kinds of cases, to the possibility of variation between the courts, and to analysis of the Mixed Court decisions.

This site also contains a small section on the non-colonial case law of China, which are kept separately from these quasi-colonial court decisions.

List of Shanghai judges

 

Case list last updated, January 2017.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School