2
“District of China”
Law’s Empire:
The Legal Construction of “America”
in the “District of China”
© Teemu Ruskola
Much will depend upon the behavior of our people who may go into those countries [of the East]. If they endeavor, by an irreproachable integrity, humanity, and civility to conciliate the esteem of the natives, they may easily become the most favored nation; for the conduct of European nations in general, heretofore, has given us a great advantage.[1]
President John Adams
In 1906 the U.S. Congress passed “An Act Creating a United States Court for China and prescribing the jurisdiction thereof.”[2] 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.[3]
The law applied by the court consisted of a mélange 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Columbia, and the code of the territory of Alaska (parts of which continued being applied in China even after they were repealed in Alaska), to mention only the main sources of the court’s jurisprudence.[4] The court had only one judge, and when he was away (either riding circuit in the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.[5]
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.[6] 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.[7] Those who became aware of the court’s existence were as startled and intrigued as today’s observers. Faced with a will probated in the U.S. Court for China, the surrogate of Westchester County, New York, confessed his puzzlement to the Department of Justice (understandably but erroneously assuming that the court operated under its supervision): “I have examined the law as far as I have been able to find it to see what is the jurisdiction of this Court and in what way it is organized or constituted but can find nothing about it.”[8] When a group of high school students learned of the court in their Federal Citizenship Textbook, they wrote to the State Department to learn more about it.[9]
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,”[10] 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.[11] 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.
I will analyze the long and complex history of the introduction of Western international law into China in greater detail elsewhere. However, since that history provides the larger context in which the U.S. Court for China exercised its jurisdiction, I begin by making some historical and conceptual observations of international law’s history in China.
I. Western International Law vs. Sinocentric World Order:
Toward Comparative International Law
As told by international lawyers, the basic outline of the history of international law in China is as simple as it is short: There was no international law in China until its nineteenth-century encounter with the West. However, this basic premise gratuitously privileges Western international law, for China did in fact have a system of regulating relations with surrounding political formations. In the Sinocentric system which prevailed in much of East Asia, an elaborate system of tributary ritual governed the relations between the “Middle Kingdom” (the Chinese term for China) and its neighboring states. Indeed, the Sinocentric worldview regarded China as a universal empire that defined itself against uncivilized “barbarians” at its borders. However, the borders did not constitute a point of absolute exteriority: barbarians who paid (economic and symbolic) tribute could become Sinified and included in the universal Chinese civilization. An elaborate system of tributary ritual regulated relations between the capital of the empire and various political formations at the periphery, with the goal of absorbing even the peripheral peoples into the Sinocentric world order.
This “inter-domainal ritual” can be usefully interpreted as a kind of international law.[12] Just as Western international law served to coordinate relations primarily among the Euro-American “Family of Nations,” so China too had its own Family of Nations, as it were, with its own constitutive norms for this regional regime. This recognition reframes the analysis of the nineteenth-century Sino-Western legal encounter as a meeting between two different world orders, each with its own legal classifications. I will call this mode of analysis “comparative international law.”
The recognition of a Sinocentric system of international law has been impaired in large part by the historic assessment, inherited from nineteenth-century Western international lawyers, that the Chinese worldview was primitive, parochial, and chauvinist. However, viewing the extension of Western extraterritorial privileges to China as the encounter between two world systems with different legal and ritual cosmologies allows us to re-interpret Western (Euro-American) international law as a competing, equally chauvinistic worldview. The Chinese view dealt with cultural difference among peoples by insisting that it could be absorbed: the entire world could be potentially Sinified. Ostensibly, nineteenth-century Western international law declared cultural difference irrelevant: whatever their domestic differences, all sovereign states were juridically equal. Yet, paradoxically, full sovereignty was an attribute only of members of the Family of Nations, the core Western states with “civilized” legal orders. In the end, to make themselves intelligible to nineteenth-century international law, political formations such as China had to represent themselves in terms of Euro-American legal categories.
Viewed from this perspective, the extension of Western extraterritorial jurisdiction into China is not simply another instance of the expansion of (universal) international law into a vacuum, but the collision between two different political and symbolic economies: a Western regime free of trade under international law, on the one hand, and a Sinocentric system of tributary relations organized in a ritual hierarchy, on the other hand. Much of post-War area studies scholarship views the nineteenth-century Sino-Western encounter as a tragic cultural “misunderstanding” by the Chinese of the West, modernity, and law. The alternative perspective of comparative international law recasts this encounter as a contest between two different political and legal cosmologies over just what shape the “modern” world should take.
Indeed, insofar as claiming jurisdiction constitutes the foundational act of asserting the right to legitimate control over territories and populations, the historical extension of Western international law can be analyzed as a cultural and epistemological project seeking to turn the entire globe in a juridical formation consisting of nation-states. In a crucial sense, Western extraterritorial jurisdiction in China served to constitute China as a state in the international legal system while at the same denying it admission into the international legal society into which it was apparently being inducted. Defined broadly, “law” constitutes a central material and symbolic dimension in the non-Western world’s struggle to achieve modernity, with “modernity” itself understood as a cultural project rather than a historical stage. If “the West” has won the cultural and legal contest in several ways, on what terms can China be a full and equal participant in the construction of modernity? Under these conditions, what kind of conceptual space is there for law that is both “Chinese” and “modern”?
Conceptualizing international law’s historic expansion as a problem of comparative international law—the study of the dynamic interaction between different regional systems of international regulation—raises a host of questions the answers to which can only be hinted at here. Yet it is crucial to raise these questions before turning to the immediate subject of this Article, the jurisdiction of the U.S. Court for China. The final significance of the court’s work lies in an appreciation of its historical location at the intersection of two different legal and political orders. Rather than a mere curiosity of legal history, the story of Western extraterritorial privileges in China is a constitutive moment in the rise of modern international law, for the jurisdictional justifications of Western extraterritoriality in China were part of the larger doctrinal apparatus of Western international law that coordinated the colonization of most of the non-Western world by the “Family of Nations.”[13]
At the same time, even though it seems difficult, if not impossible, to discuss the presence of an American court on sovereign Chinese soil in a vocabulary other than that of colonialism, it is important to remember that China as a whole was in fact never colonized by the United States or any other Western power: the West’s extraterritorial legal presence in China was justified by a series of bilateral treaties to which China had given its formal consent. How much difference does this make? Is the U.S. Court for China still a more or less classic case of colonization by the West, served with righteous legal jargon?[14] Given the realities of relative commercial and industrial power, were these rhetorical flourishes simply the Empire’s new clothes, a kind of imperialism in drag?[15]
Any account of the court’s existence must certainly be grounded in an analysis of the global politics of power. However, a nuanced account must consider, at a minimum, a range of different modes and kinds of colonialisms. Undoubtedly, international law has historically served the purposes of colonialism; indeed, colonialism provided the raison d’être of the emergence of modern international law in the nineteenth-century, as a means of coordinating the European struggle for colonial dominions. Does it follow that international law is only, and inevitably, an imperial regime? Indeed, insofar as law is always the hegemonic imposition of one group’s interpretation of the proper organization of social life, is all law in some sense “colonial” or “colonizing”? And if we do grant the term such wide application, wherein lies the utility of “colonialism” as an analytic for understanding law? In this Article, I will not attempt to answer all of these questions, in part because any attempt to place the work of the U.S. Court for China in a larger context should be preceded by a study of the internal logic of the court’s work. How did the court conceive its jurisdiction? How did it justify its presence in China? Analyzing that jurisprudence is the immediate focus of this Article. Without such analysis, any examination of the larger context of legal imperialism will necessarily remain incomplete.
In delineating the jurisprudence of the U.S. Court for China, this Article draws on two volumes of case reports published by the court, entitled Extraterritorial Cases—the most elaborate jurisprudence of extraterritoriality developed by any American judicial institution—as well as on cases appealed to the Ninth Circuit, available in ordinary case reporters. (No case from the U.S. Court for China was ever heard by the U.S. Supreme Court.) In addition, this Article draws on a secondary literature from the 1910s and 1920s on American extraterritorial jurisdiction in China, which provides some preliminary evaluations of the court’s work. Finally, the Article draws also on primary research, conducted in the National Archives, on the records of the U.S. State Department which exercised supervisory control over the court during most of its existence.[16]
The remainder of this Article is organized as follows. To understand the background conditions of the court’s operation, I first describe briefly the genesis of the system of Western extraterritoriality in China that gave rise to the U.S. Court for China (Part II). I then analyze the circumstances of the court’s creation and the two primary missions with which it was charged: bringing law and order to Americans sojourning in China as well as providing a model of rule of law to the Chinese (Part III). Next, I turn to the court’s jurisprudence and evaluate its success in terms of the court’s twin goals (Part IV). I analyze the success of the first mission in terms of the court’s elaborate jurisprudence on who was properly subject to its jurisdiction. It turns out that in the jurisdictional labyrinth of semi-colonial Shanghai, many American citizens were able to evade the laws of both of China and the United States, thus compromising the court’s ability to establish law and order among the American expatriate community. Next, I consider the court’s success in its second task—providing a model of liberal legalism—in terms of what law the court deemed applicable within the District of China. The court constructed a breath-taking patchwork of law which seemed to provide at best a negative example of what most would consider “rule of law.” The final section (Part V) re-considers the temptation to view the court’s work in generally unfavorably light and speculates on the larger theoretical significance of the jurisprudence of the U.S. Court for China, suggesting similarities in law’s imperial aspirations both in China as well as in the United States.