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Law & Humanities WorkshopJune 1-2, 2003

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

1 The Works of John Adams 343-44 (Charles Francis Adams ed., 1851).2 34 Statutes at Large 814 (June 30, 1906). 3 See text accompanying infra notes __-__.

Please Do Not Cite, Quote, or Circulate Without Author’s Permission

“District of China”

continued being applied in China even after they were repealed in Alaska), to mention only the main sources of the court’s jurisprudence.4 The court had only one judge, and when he was away (either riding circuit in the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

4 See text accompanying infra notes __-__.5 See text accompanying infra notes __-__.6 Lewis Carroll, Alice’s Adventures in Wonderland 102-118 (Signet Classic ed.,

2000).7 Eileen P. Scully, Bargaining with the State from Afar: American Citizenship

in Treaty Port China 1844-1942, at __ (2001).8 Letter from Chambers of the Surrogate to Attorney General (forwarded to

Department of State), November 28, 1910, at the National Archives and Records Administration, College Park, MD, in Record Group 59, Department of State, Decimal Files 1910-29 [hereinafter National Archives, RG 59], doc. 172.1.

9 Letter from Humboldt High School to Secretary of State, April 16, 1923, in National Archives, RG 59, doc. 172.6/206. A lawyer in Duluth, Minnesota, who once spent a short while “in the Orient” became so “anxious for more” that once he found out


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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:

about the U.S. Court for China, he pleaded with the White House for an appointment to its bench. Letter from Victor Stearns, Esq. to White House (forwarded to State Department), July 29, 1929, in National Archives, RG 59, doc. 172./795.

10 David J. Bederman, Extraterritorial Domicile and the Constitution, 28 Va. J. Int’l L. 451, 452 (1988).

11 To date, the only substantial scholarly treatment of the court is contained in Elaine Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China 1844-1942 (2001). While Scully’s wide-ranging study provides much fascinating information, as a historian rather than a legal scholar Scully does not focus primarily on the court’s jurisprudence. The sole contemporary treatment of the court in the legal literature is contained in Bederman, supra note __, at 460-74, which focuses on the history of the concept of “extraterritorial domicile.” In addition, Tahirih Lee has explored the court’s jurisdiction in unpublished papers, e.g., U.S. Extraterritorial Courts in the Twentieth Century as a Means of Exercising Jurisdiction in the Pacific, Association of American Law Schools, Annual Meeting, San Francisco, January 2001.


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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

12 For the conceptualization of tributary ritual as a kind of international law, I take as my point of departure James Hevia’s suggestive Cherishing Men from Afar: Qing Guest Ritual and the Macartney Embassy of 1793 (1995).


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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


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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

13 See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law [1870-1960] (2002).

14 See Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int’l L.J. 1, __-__ (1999); Chang Yun-yu, American Imperialism: A Chinese View, 3 Pac. Affairs 278, 279 (No. 3, Mar. 1930) (arguing that American and British imperialism are “not essentially different, . . . the dissimilarity consisting only in the methods employed”); Sally Engle Merry, Colonizing Hawai’i: The Cultural Power of Law (2000).

15 Cf. Edward Said, Culture and Imperialism 282-303 (1993); Lenin, Imperialism: The Highest Stage of Capitalism, supra note __.


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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

16 In 1933, the court was placed, by executive order, under the control of the Department of Justice.


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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.

II. WESTERN EXTRATERRITORIAL PRIVILEGES IN CHINA

Euro-American fascination with China is hardly new.17 Since Marco Polo, China has constituted a mythic market in the Western imagination. Today, the term “emerging market” seems already to have displaced the increasingly quaint concept “developing nation,” as all countries are viewed primarily in terms of their economic potential. China, however, has been an emerging market at least since the nineteenth-century. Marx, for one, declared it the “last new market.”18 Indeed, the origins of American extraterritorial jurisdiction can be traced back to the West’s early eagerness to trade with China.

Below, I trace the origin of Western extraterritoriality to frictions created by the restricted trading system in Canton in early nineteenth century (Section A) and the ensuing Opium War and China’s opening to “free trade” under the so-called “Unequal Treaties” (Section B). I next analyze the announcement of the American Open Door policy which required all Western powers to respect China’s territorial integrity while demanding equal commercial access for all to China’s markets (Section C).

A. The Canton Trade System

From the beginning, Western interest in China as a market was frustrated by official Chinese diffidence. When George III sent his emissary Lord Macartney to China in 1793 to negotiate a trade agreement, the Qianlong Emperor thanked him politely for the Western curiosities presented to him as gifts and then declared, “[W]e have never valued ingenious articles, nor do we have the slightest need of your Country’s

17 See generally Jonathan Spence, The Chan’s Great Continent: China in Western Minds (1998).

18 Marx on China 1853-1860, at __ (Dona Torr ed., 1951). See also V.I. Lenin, Imperialism: The Highest Stage of Capitalism 103-104 (1939) (describing China as “the greatest potential reservoir of profit the world has ever known”).


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manufactures.”19 Subsequently, foreign trade with Westerners was restricted to the single port of Canton.

When British sailors there got in violent trouble with the local inhabitants (as they often did), disputes ensued between the British and Chinese over who had jurisdiction to try British subjects for homicide, for example.20 In 1833, determined to wrest exclusive criminal jurisdiction for cases involving its subjects, Britain enacted legislation to create a British court in Canton.21 This unilateral imposition was squarely “contrary to international law,”22 even by nineteenth-century standards, and in the end the court was convened only once. In the meantime, British subjects in China were advised to attempt to conform to Chinese law.23

China’s jurisdictional resistance to British law was matched by its continuing disinterest in Western goods. The seemingly insatiable European taste for tea, silk and other Chinese goods had been financed for a long time by extractions of silver from Latin America. However, over time the imbalance of fiscal flows grew intolerable. Opium grown in British India promised a brilliant solution to the impasse: here was an item that would create its own demand as soon as it was introduced to the Chinese market. However, given the severe negative side-effects of opium on its subjects, the Chinese government soon banned its importation. In doing so, it appealed to both Queen Victoria’s moral conscience as well as international law in an attempt to persuade the British to agree to the ban—to no avail.24

19 James Hevia, Cherishing Men From Afar: Qing Guest Ritual and the Macartney Embassy of 1793, at 238 (1995).

20 Randle Edwards, Ch’ing Legal Jurisdiction over Foreigners, in Essays on China’s Legal Tradition 222 (Jerome A. Cohen et al. eds., 1980). See also Paul Ch’en, The Treaty System and European Law in China: A Study of the Exercise of British Jurisdiction in Late Imperial China, in European Expansion and Law 83 (W.J. Mommsen and J.A. de Moor eds., 197_).

21 Edwards, supra note __, at 250; Wellington Koo, The Status of Aliens in China 95-112 (1912); 1 Hosea Ballou Morse, International Relations of the Chinese Empire 118 (1910).

22 Harold Scott Quigley, Extraterritoriality in China, 20 Am. J. Int’l L. 46, 50 (1926).

23 Id.; Edwards, supra note __, at 251.24 Lin Zexu’s memo to Queen Victoria, in Fairbanks, China’s Response to the

West.


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B. Consular Justice under Unequal Treaties

As China was drawn into formal trade relations with Western nations, it quickly learned that free trade, as defined by the British, did not necessarily entail the freedom not to trade. China’s refusal to accept “free trade” in opium led directly to the Opium War (1839-1842) and the ensuing century of so-called “Unequal Treaties.” This treaty system, based on bilateral agreements between China and Western states, had three cornerstones. First, it abolished the restrictive trading system in Canton and opened a growing number of other Chinese cities—known as Treaty Ports—for Western trade. Second, on the ground that Chinese law was too “barbaric” to apply to Europeans, Western nations extracted the right of extraterritoriality: their citizens were to be subject only to their own laws, even while on Chinese territory. Third, the treaties contained a Most Favored Nation clause, so that any further privileges extracted by one foreign power would accrue to all.

The United States was among the first of these so-called Treaty Powers in China. After the end of the Opium War and the signing of the Sino-British peace treaty in 1842—the first Unequal Treaty—the United States did not want to be outdone. It sent its own emissary who was charged with negotiating a trade agreement with China “on terms as favorable as those which are enjoyed by English merchants.”25 The resulting Treaty of Wanghia of 1844 secured to the United States both the right to trade at all the new Treaty Ports and the privilege of extraterritoriality—as well as a Most Favored Nation clause.26

Although few seem to have appreciated it at the time, the full implications of Western extraterritoriality were quite phenomenal. One turn-of-the-century author described the system of extra-territoriality as a kind of sentimental “habit” of Western

25 Senate Document No. 138, 28th Congress, 2nd Session, p. 7. See also Ping Chia Kuo, Caleb Cushing and the Treaty of Wanghia, 1844, 5 J. Modern History 34, 34-35 (No. 1, Mar. 1933).

26 Treaty of Wang-Hea, July 3, 1844, U.S.-China, art. II., reprinted in 1 Treaties, Conventions, Etc. Between China and Foreign States 677 (2d ed. 1917). See also Gretchen Harders-Chen, China MFN: A Reaffirmation of Tradition or Regulatory Reform?, 5 Minn. J. Global Trade 381, 384 (1996). In terms of trade, the immediate consequences of the Unequal Treaties remained underwhelming—despite such additional measures as Western powers’ takeover of the Chinese tariff system. China’s tariffs were set at 4%, even while those of Western powers averaged 25%. In addition, Britain took over tariff collection for China and then proceeded to apply the tariffs collected toward the huge indemnities it had demanded of China at the end of the Opium War. In the end, as one historian puts it, the “Chinese maritime customs office became essentially a collection agency for the British.”


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peoples who wished to “carry with them, as far as their rights of law and protection go, a little bit of their come country.”27 Yet, stated more bluntly, by virtue of its treaty with China the United States suddenly obtained “the attributes of sovereignty in China.”28

For more than sixty years, the United States exercised its rights of extraterritoriality by following the model of the European Treaty Powers: it vested its consular representatives in China with the power to adjudicate legal disputes. Under this system of so-called consular courts, the extraterritorial powers in China applied, at various times, the laws of nineteen different national legal systems.29 As one American lawyer in Shanghai complained, the result was “the most cumbersome system of judicature to known to exist in any considerable commercial center in the world.”30 The difficulties of navigating this jurisdictional nightmare no doubt contributed to the problems in delivering American extraterritorial justice in China. However, the scandalously low judicial quality of the diplomats who sat as judges in the American consular courts as at least an equally important factor. Most consular judges had no legal training at all, and one particularly notorious American consul in fact prided himself on not knowing “much law” but being “hell on equity.”31

C. United States’ Open Door Policy, 1899-1900

Despite the humiliations of the Unequal Treaties, China as a whole avoided successfully the fate of outright colonization throughout the nineteenth century. This was largely a result of the intense rivalry among the Treaty Powers.32 However, as the anti-foreign Boxer Rebellion nearly toppled the imperial government of China at the end of

27 A.M. Latter, The Government of the Foreigners in China, 19 L.Q. Rev. 316, 316 (1903).

28 David J. Bederman, Extraterritorial Domicile and the Constitution, 28 Va. J. Int’l L. 451, 465 (1988).

29 The following states had extraterritorial privileges in China (and are listed here in the order in which they obtained those privileges): Great Britain, United States, France, Sweden, Norway, Russia, Germany, Denmark, Netherlands, Spain, Belgium, Italy, Austria-Hungary, Peru, Brazil, Portugal, Japan, Mexico, and Switzerland.

30 T.R. Jernigan, China in Law and Commerce 201 (1905).31 Norwood Allman, Shanghai Lawyer 97 (1943). In more diplomatic language,

the Senate was told in 1850 that American consuls in China were “destitute of all legal requirements.” Senate Ex. Doc. 72, 1st Sess., 31st Cong., Sept. 9, 1850.


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the century, there was an increasing threat that China would in fact be partitioned among the Treaty Powers. The United States, which had remained politically relatively uninvolved in China, came now to China’s defense by announcing, in 1899 and 1900, an Open Door policy for China: all foreign powers were to have equal commercial access, while at the same time they were to respect China’s territorial integrity.33

As a relative late-comer to the scramble for China, the United States much preferred competition on the basis of commercial equality over territorial conquest. The annexation of Hawaii in 189834 and the debate begun in 1901 in the Insular Cases over the disposition of the spoils of the Spanish-American War immediately thereafter provided the implicit backdrop for the Open Door policy.35 A vocal critic of the Open Door, Mark Twain urged simply, “We have no more business in China than in any other country that is not ours.”36 However, President Roosevelt insisted that “untrammeled intercourse” in China would result in “incalculable benefit to the world in general and to the peoples of the East in particular.”37 In any event, it was evident to both critics and supporters that the primary beneficiary of the policy would be the United States. As The Nation observed in 1901, “We do not need to seek an unfair advantage. An open door and no favor infallibly means for the United States . . . the greater share and gain in the commercial exploitation of China.”38

32 As Sun Yat-sen, the father of the Republic of China, observed, China had remained (at least nominally) independent not because the West did not want to colonize it, but because no one nation was able to do so. Sun Yat-sen, San Min Chu I: The People’s Three Principles.

33 The so-called Open Door notes announcing America’s new policy were issued by Secretary of State John Hay in 1899 and 1900. See Jerry Israel, Progressivism and the Open Door: America and China, 1905-1921, at 4-6 (1971). To be sure, President McKinley did plead in private with Hay for a “slice” of China, as if referring to a pizza. Hunt, The Making of a Special Relationship, supra note __, at 182 (quoting McKinley).

34 See generally Sally Engle Merry, Colonizing Hawaii (2000).35 See generally Efrén Rivera Ramos, The Legal Construction of American

Colonialism: The Insular Cases (1901-1922), 65 Revista Jurídica U.P.R. 225 (1996).36 Mark Twain, To My Missionary Critics, 172 N. Am. Rev. 161 (April 1901).37 Id. at 48 (quoting Theodore Roosevelt’s address to Congress).38 72 Nation 368 (May 9, 1901). Bertrand Russell makes the same observation

more critically: “It is quite possible to dominate China without infringing the principle of the Open Door. This principle merely ensures that the domination everywhere shall be American, because America is the strongest Power financially and commercially.”


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Even as the Open Door policy became a political fact, it did not escape the Chinese that the Open Door swung one way only. In contravention of the immigration treaties into which it had entered with China, the United States enacted a series of Chinese Exclusion Laws that barred the Chinese from entering the U.S. and from naturalization. Dismayed at this as well as reports of violence against Chinese laborers in California and elsewhere, the increasingly assertive Chinese merchant classes organized a large anti-American boycott in 1905,39 which swiftly caught the attention of the policy establishment in Washington, D.C. Bad news from China was compounded by a 1905 State Department report which confirmed that American consular courts were plagued by incompetence, inefficiency, and corruption,40 which in turn resulted in increasingly lawless behavior by Americans in China. Furthermore, even though consular jurisdiction was limited by treaty as well as by statute to disputes with American defendants, there were reports of consuls seeking to adjudicate even among Chinese parties. In short, the state of American law in China had become intolerable, and the stage was set for the next phase in the exercise of American extraterritorial jurisdiction in China.

III. “PROGRESSIVE IMPERIALISM”: THE CIVILIZING MISSIONS OF THE U.S. COURT FOR CHINA

When in 1906 the Congress passed an act for the establishment of the U.S. Court for China,41 the idea was unprecedented in American diplomatic and legal history. While the United States exercised extraterritorial rights in a host of other countries as well, only

Bertrand Russell, The Problem of China 179-81 (1922).39 See Marie-Claire Bergère, The Golden Age of the Chinese Bourgeoisie 1911-

1937, at 50 (1989). See also Dorothy Orchard, China’s Use of the Boycott as a Political Weapon, 152 Annals Amer. Academy Pol. & Soc. Sci. 212 (1930).

40 See generally, Pierce, Report on the United States Consulates in the Orient (1904).

41 34 Statutes at Large 814 (June 30, 1906).


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in China was extraterritorial justice to be delivered by a properly constituted judicial tribunal rather than by consular officials. The court was modeled, in many respects, on His Britannic Majesty’s Supreme Court for China, created in 1904 and also located in Shanghai. Indeed, the American and British courts in China—or “for China,” in the more generous formulation entailed in the two courts’ official names—were the only two full-fledged foreign courts operating in China; other Treaty Powers relied on consular courts.

As the high tide of international imperialism coincided with domestic Progressivism in the United States, the motivations of the court’s advocates are best characterized as Progressive imperialism. The imperial aspect was evident in that one of the court’s main tasks was to provide a model of rule of law for the Chinese—a classic colonial mission civilisatrice. What made the court an (at least arguably) progressive institution was the fact that it had also a second civilizing mission: in addition to civilizing the natives, it was charged with civilizing Americans as well, by bringing law and order to the increasingly ill-behaved American expatriate community.42

A. Civilizing the Natives: The White Lawyer’s Burden

For traders, China was a mythic—and largely unrealized—market for goods. For American and European missionaries it was a nearly infinite market for souls.43 For politicians of all stripes, China has been a market for American-style reforms, and

42 My focus is on these two missions is not meant to imply that the court’s supporters may not have had other motivations as well, such as facilitating economic relations between the U.S. and China, for example. However, improving the status of Chinese law as well as American law in China was presumably instrumental in reducing jurisdictional frictions that hampered commercial intercourse between the countries. In any event, American interest in China had never been justified solely, or even primarily, by China’s economic importance to the United States. American trade with China accounted for only 2 %, and the expatriate community in China never numbered more than the population of a small town. Hunt, supra note __, at 302

43 As the journalist Edgar Snow put it indelicately in 1930, the missionary goes to China “to sell the Bible.” Edgar Snow, The Americans in Shanghai, 20 American Mercury 437, 437 (No. 80, Aug. 1930).


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especially so for legal reforms. A key function of the U.S. Court for China was to help fill the perceived legal vacuum in China.44

Congressman Edwin Denby, a missionary’s son and the author of the court’s organic act, envisioned the judge of the U.S. Court as a kind of “an ancillary, unofficial ambassador of the United States,” charged with the promotion of rule of law in China.45

While the right of extraterritoriality might have appeared to be an extraordinary privilege, court’s supporters described it soberly in a rhetoric of America’s “obligations” to China,46

viewing the U.S. Court for China “as the place where the Chinese may come in and receive justice.”47 The Far Eastern American Bar Association likewise emphasized Americans’ “special duty to China.”48 In the extraterritorial regime of the International Settlement, it was said, even Chinese were able to receive “many of the benefits of constitutional government at a time when those benefits cannot be made generally available to the Chinese population in the country at large.”49 Overall, institutions such as the U.S. Court for China were believed to “impress[] upon the Asiatic mind” that Americans “are governed by law and not by an imperial or presidential edict.”50 Quite simply, “the common law of England” was viewed as the great responsibility of English and American lawyers and nothing less than “the great heritage of their race.”51

44 In a related project, entitled “Legal Orientalism,” I explore the history and implications of the oft-stated view that China has no “real” legal tradition.

45 U.S. Court for China, Decennial Anniversary Brochure 13 (1916), in National Archives, RG 59, enclosure to 172./653 (quoting ex-Congressman Denby’s remarks).

46 See, e.g., William S. Fleming, The United States Court for China as an Institution 1 (1921) (“the establishment of judicial machinery by the United States and by other treaty powers with China is the result of obligations which we have undertaken in our treaties with the Chinese government”) (emphasis added).

47 Committee on Foreign Affairs, House of Representatives, 74th Cong., 1st Sess., Report on Hearing on H.R. 7909 (an act to amend the act creating a United States Court for China) (May 14, 1935), at 10.

48 Far Eastern American Bar Ass’n, President’s Annual Report for 1919, at 11-14 (1919), in National Archives, RG 59, 172.6/202 (emphasis added).

49 Judge Feetham Surveys Shanghai: A Digest, 4 Pac. Affairs 586, 609 (No. 7, July 1931).

50 U.S. Court for China, Decennial Anniversary Brochure, supra note __, at 5 (quoting North-China Daily News, June 30, 1916).

51 One German observer compared the arrival of European law in China to “the ‘reception’ of Roman law of the 15th and 16th century in north European countries,” thus subordinating Chinese law expressly to the inevitable progress of European legal


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Indeed, the necessity of (Western) legal reform was implicit in the very system of extraterritoriality, which was justified by the “barbarity” of Chinese law. Self-evidently the price for its elimination was to become “civilized.” And, as Antony Anghie puts it in his description of nineteenth-century international law, “a non-European state was deemed to be civilized if it could provide an individual, a European foreigner, with the same treatment that the individual would except to receive in Europe.”52 Hence, extraterritoriality would be lifted only after it had become redundant and China had become “civilizationally” a replica of Europe and America.53

B. Civilizing Americans in China: Treaty-Port Flotsam

To be sure, as Americans set about constructing their own “America” in China, the enterprise was not simply the white lawyer’s burden. It entailed ultimately the cooperation of all kinds of Americans in China—lawyers as well as missionaries, businessmen, and others.54 Among the institutions created were American Chambers of Commerce, Boy Scouts, an American University Club in Shanghai, a YMCA, as well as a Far Eastern American Bar Association.55 The immediate milieu in which the U.S. Court for China existed in Shanghai was not China, but, in the phrase of the veteran

civilization. Werner Vogel, Modern Chinese Law and Jurisdiction, Pacific Affairs 975, 975. Even missionaries took up the crusade for law reform, with the establishment of the Soochow Comparative Law School, run by the Methodist Episcopal Church in Shanghai. Alison E.W. Conner, Soochow Law School and the Shanghai Bar, 23 Hong Kong L.J. 395, 397 (1993). Even the pragmatist philosopher and self-avowed Sinophile John Dewey believed confidently that the “United States as a nation is the living embodiment of what the young Chinese hope China some day will be.” Israel, Progressivism and the Open Door, supra note __, at 183 (quoting Dewey). For more on Dewey’s views and influence on China, see also Thomas Berry, Dewey’s Influence in China, in John Dewey: His Thought and Influence 199 (1960).

52 Anghie, Finding the Peripheries, supra note __, at 52.53 Cf. 1903 Treaty, art. 3 (on China’s desire to “reform” and the willingness of the

United States to “assist”). 54 Upon visiting China, Bertrand Russell complained that all Americans there were

missionaries, not of Christianity, but of “Americanism,” the values of which he defined as “[c]lean living, clean thinking, and pep.” Bertrand Russell, The Problem of China 221 (1922).

55 See Israel, supra note __, at 101.


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China lawyer Norwood Allman, “America in China”56—the final fruition of the logic of extraterritoriality.

However, as the American community in China grew, it attracted not only law-abiding citizens such as lawyers, missionaries, and Boy Scouts, but also law-breakers of various kinds—or, perhaps more accurately, not all the lawyers, missionaries and Boy Scouts who came to China turned out to be law-abiding. Together with “beachcombers” and other American flotsam that floated onto the shores of Shanghai, they were giving the U.S. an increasingly bad name and, significantly, provided endless ammunition for Chinese critics of American extraterritorial jurisdiction. Given the damage they wrought on U.S. diplomatic prestige in China, a central mission of the U.S. Court in China was to discipline the unruly elements of the American population in China.57

* * *

This, then, is a brief summary of the pre-history of the U.S. Court for China and of its place in the system of Western extraterritoriality in China. The remainder of this Article analyzes the court’s work in light of its twin goals of providing a model of rule of law for the Chinese and establishing law and order among Americans in China.

IV. CONSTRUCTING “AMERICA” IN THE “DISTRICT OF CHINA”:JURISPRUDENCE OF THE UNITED STATES COURT FOR CHINA

How successful was the court in the tasks it faced? I first evaluate the court’s law-and-order mission in terms of its jurisprudence on who was properly subject to its jurisdiction (Part A). I suggest that in the jurisdictional maze of Shanghai, many American citizens were able to evade the laws of both of China and the United States, which severely impaired the court’s ability to establish law and order among the American expatriate community. Next, I consider the court’s success in providing a

56 Norwood F. Allman, America in China, in Shanghai Lawyer, supra note __, at 83.

57 To be sure, protectingAmericans in China was surely also a function of American extraterritorial justice in China, but as Eileen Scully has forcefully argued, the U.S. Court for China was a preeminently disciplinary institution. See generally Scully, supra note __.


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model of rule of law (Part B). I do this in light of the body of law that the court constructed for application within the District of China.

As context for the discussion that follows, it is worthwhile to note that in addition to the several national legal systems, in the city of Shanghai there were also three different municipal governments: one in the French Concession (the French territorial enclave), one in the International Settlement (combining the formerly separate American and British Concessions), and one in the Chinese city, each making and applying, or trying to apply, its regulations to its own residents. Indeed, the U.S. Court for China and its location in Shanghai offer a unique opportunity to consider law’s relationship to the nation-state. How did American law function in this Babel of legal tongues? In these conditions, what was law’s relationship (if any) to national governments? To what extent was Shanghai a “global city” avant la lettre?58

A. To Whom Did American Law Apply in China? The Construction of a “Virtual American Citizenship”

The extraterritoriality provisions of the 1844 Treaty of Wanghia, together with the several revisions of the treaty, set up a system where jurisdiction depended on the defendant’s nationality. A “citizen of the United States” who committed a crime against a “subject of China” was triable “only by the consul or any other public functionary of the United States thereto authorised according to the laws of the United States.” Similarly, “subjects of China” who were “guilty of any criminal act towards citizens of the United States” were to be punished “by the Chinese authorities according to the laws of China.” In civil suits as well, a Chinese plaintiff could sue an American citizen only in an American court, while an American citizen would have to sue a Chinese subject in a Chinese court.59 The agreement was subsequently codified by Congress in the legislation that formally set up a system of American consular courts in China.60 When the U.S.

58 Cf. Saskia Sassen, The Global City: New York, London, Tokyo (1991).59 Treaty of Wanghia, arts. 16, 21, 24-29, supra note __. 60 9 Statutes at Large 276 (1848).


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Court for China was created in 1906, it inherited the principles of consular jurisdiction.61

Other Treaty Powers’ extraterritoriality provisions followed a similar pattern.62

In principle, the system was simple enough, and even had a certain formal symmetry to it: the Chinese could be sued only in Chinese courts under Chinese law, and Americans in American courts under American law. This symmetry, of course, was limited and entirely misleading. The Chinese in America had no equivalent extraterritorial privileges; quite the contrary, they were barred even from entering the country after the enactment of the Chinese Exclusion Laws.

Below, the description of the court’s jurisdiction begins by analyzing first how the court sought to discipline those whose legal status as Americans was not in doubt (section 1). Next, I examine how the court embarked on a re-definition of American citizenship in dealing with individuals whose citizenship was at issue, which in turn resulted in a concomitant expansion of American jurisdiction (section 2). Finally, I describe cases in which the court ultimately abandoned altogether the requirement that all defendants be American citizens, however defined (section 3).

1. Disciplining American Citizens

The foreign enclaves of China were notorious for the gamblers, adventurers, prostitutes and other Treaty Port flotsam that floated onto their shores—or at least this was how less than prosperous Euro-Americans were typically portrayed. Shanghai in particular was famed as the Far East’s capital of sin and vice, or even more pruriently, as “the Whore of the Orient.”63 From the perspective of the American diplomatic service, a key mission of the U.S. Court for China was to discipline this population that was damaging America’s prestige overseas. Indeed, the court started its career by prosecuting Americans in China with a vengeance. Among its first targets were lawyers, prostitutes, and vagrants. Each group is considered below.

a. Lawyers. According to State Department officials, Chinese Treaty Ports were “favorite resorts for adventurous and irresponsible lawyers” who “by reason of their lack

61 An Act Creating a United States court for China and prescribing the jurisdiction thereof, 34 Statutes at Large 814 (June 30, 1906).

62 See generally 1-2, G.W.Keeton, The Development of Extraterritoriality in China (1928); Wesley R. Fischel, The End of Extraterritoriality in China (1952).

63 Gail Hershatter, Dangerous Pleasures: Prostitution and Modernity in Twentieth-Century Shanghai __ n._ (1997).


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of knowledge of the law and lack of character were not fitted to perform the duties of the office of attorney at law.”64 Indeed, by one account, they were “the greatest hindrance to the promotion of decency and virtue that the American missionaries, both men and women, encountered in the Empire.”65 Lebbeus Wilfley, the first judge of the court, took it upon himself to institute a bar examination for admission to the court; of the dismayed eight lawyers who took the exam on its first administration, only two passed,66 and one of the disqualified ones was so enraged by the action that he petitioned for the judge’s removal.67

b. Prostitutes. Prostitutes were the second main object in Judge Wilfley’s clean-up campaign.68 “America” had in fact become synonymous with prostitution in Shanghai; brothels were generally called “American houses,”69 prostitutes were referred to as “American girls,”70 and going to the red light district was described as “going to America.”71 When Judge Wilfley tried to crack down on American “bawdy-house keepers” in Shanghai,72 many of his targets quickly married foreign men, thereby acquiring a foreign citizenship which protected them from prosecution in the U.S. Court for China. As a leading member of the American bar in Shanghai observes, several of the brothel-keepers “jumped [Judge Wilfley’s] jurisdiction by hurried marriages with men of other nationalities, mostly sailors who conveniently sailed away after the ceremony, the

64 Charges Against Judge Lebbeus R. Wilfley and Petition for His Removal from Office, supra note __, at 95-96.

65 Id.66 Id. at 3. The bar exam consisted of sections on criminal law, equity, evidence

and pleading, torts, and contracts, as well as special section on the organic act of the U.S. Court for China. For the exam questions, see id. at 19-24.

67 Id. The petition was rejected as a dishonorable attack on Wilfley’s “fearlessness in stamping out vice and crime in Shanghai,” and Theodore Roosevelt declared the petition “a public scandal” that was “an impeachment of decency” and of Wilfley’s “zeal for the public good.” Id. at 95. [?]

68 Id.69 Id. at 107.70 Eileen Scully, Prostitution as Privilege: The “American Girl” of Treaty Port

Shanghai, 20 Int’l History Rev. 855 (Dec. 1998).71 Allman, Shanghai Lawyer, supra note __, at __. See also Hershatter,

Prostitution and Modernity in Shanghai, supra note __, at __-__.72 See Charges Against Judge Lebbeus R. Wilfley and Petition for His

Removal from Office 16 (1908).


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‘bride’ having paid over a marriage fee which ranged anywhere from one hundred to one thousand Chinese dollars.”73 Put simply, under the law of derivative spousal citizenship, citizenship could be bought and sold in Shanghai.

c. Vagrants. “Vagrants” constituted another early target of the court. Like European colonizers elsewhere, American sojourners in China were invested in maintaining “the illusion of a homogenous white race, affluent, powerful, impeccable, aloof.”74 In the racial economy of Shanghai, for example, there was little room for a Euro-American working class,75 or as one observer noted, “in Shanghai every occidental is supposed to be a gentleman.”76 A 1898 Shanghai editorial put it even more starkly: “[J]ust as a Senator from the Southern American States once declared that most of the pleasure of his trip to Europe was spoiled by the sight of white men doing menial labour, so we wince at the sight of a destitute foreigner.”77

The court was not at all shy about admitting that the elimination of lower-class Americans from China was in fact one of its main aims. The District Attorney for the U.S. Court for China complained to the State Department of “a certain class of unemployed Americans,” whom it had convicted on vagrancy charges. Indeed, the court was quick to point out that while vagrancy was defined as “the idle or dissolute wandering about,” the idle rich “who are under no obligation to work” would not be encompassed in that definition.78

Yet there still remained the problem of what do to with the vagrants after their conviction. Observing that “the presence of American vagrants in China injures our country’s prestige,” the court decided to send them to the Bilibid Prison in Manila. Sending them out of China was viewed as necessary for the reason that vagrants “rather

73 Allman, Shanghai Lawyer, supra note __, at 104.74 Frederic Cooper & Ann L. Stoler, Tensions of Empire, 16 Am. Ethnologist 609

(Nov. 1989). On the racial anxieties of Americans in Treaty Port China, see also Scully, supra note __, at 12; Herbert Day Lamson, Sino-American Miscegenation in Shanghai, 14 Social Forces 573, 580 (May 1936) (linking “the system of extraterritoriality and the sense of being culturally superior” to the racial hierarchy of Shanghai).

75 The partly “indigenized” Portuguese artisans who had lived in Macao for generations constituted the closest thing to a white “middle class” in the Treaty Port economy.

76 Snow, supra note __, at 441.77 Murmurs from Mean Streets, N. China Herald, May 9, 1989, at 789, quoted in

Scully, supra note __, at 89.78 Robert Sexton v. United States, 1 Extraterritorial Cases 180, 194 (1909).


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liked a short term of imprisonment in our American jails where they were well fed, etc.”79

In the Bilibid Prison, in contrast, they would be subject to “mild tho exacting discipline,” all in accordance with the methods of “modern penology.”80 Once the practice was approved,81 in yet another bizarre twist of jurisdictional illogic the Philippines became effectively an American penal colony in which to house all the déclassé U.S. citizens whose presence in China was not deemed to be in America’s diplomatic interest.

2. Redefining “American Citizenship”

At the same as it was seeking to impose stricter standards on how Americans were to behave in China, the court also loosened its definition of who counted as an American in China, at least for the purposes of the court’s jurisdiction. In contested cases, the court tended to take jurisdiction; such was the case with American “subjects” from the Philippines and Guam, Chinese-Americans, and cases concerning leased land held by Americans in trust for Chinese beneficiaries.

a. American “Subjects.” Despite the fact that both the treaties and congressional acts in which its jurisdiction originated limited its jurisdiction to cases involving “citizens of the United States,” the court happily assumed jurisdiction of Filipinos and Guamese, as well. After the Spanish-American War, the Philippines and Guam had become United States “insular possessions,” to use the language of the Insular Cases which sought to clarify their constitutional relationship with the United States, along with that of Puerto Rico. The status of these “insular possessions” was deeply ambiguous; in the words of one commentator, the Supreme Court managed to find, in a single day in 1901, that Puerto Rico was “”in and/or out of the United States in three different ways.”82 However, one thing that was perfectly clear was that the residents of these new insular possessions were not “citizens of the United States,” at least not without further action.83

79 Letter from District Attorney for the U.S. Court for China to Secretary of State, May 10, 1916, supra note __.

80 United States v. Osman, 1 Extraterritorial Cases 540, 543 (1916).81 See 30 Opinions of Attorneys General 462 (1915) (designating Bilibid prison

for the confinement of long-term prisoners sentenced in the U.S. Court for China).82 Juan R. Torruella, The Supreme Court and Puerto Rico 61 (1985). 83 See Gerald Neuman, Strangers to the Constitution: Immigration, Borders,

and Fundamental Law. It is clear that as the U.S. Court went about expanding its jurisdiction over America’s new “subjects,” it was not acting simply carelessly. The U.S.


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b. Chinese-Americans. Just as former, current, and would-be Americans in China were frequently opportunistic about their social and legal identities, so the United States too hedged its bets, unwilling to claim all of its own as American citizens. The status of Chinese-Americans was especially fraught. The State Department worried about their trying to reap the benefits of being Chinese vis-à-vis the Chinese government and the benefits of being American vis-à-vis the U.S. government. The concept of dual nationality was itself viewed as a perversion of true citizenship, the civic equivalent of polygamy.84 In the words of the Solicitor’s Office of the State Department, American-born Chinese who might also be claimed as Chinese citizens “as a rule do nothing for the United States” and therefore “[the U.S.] government would gain nothing but the resentment and ill will of China if we should insist that, although residing in China, they must be subject to the jurisdiction of our courts.”85

Robert Lee was a case in point. He was born in 1868 in St. Louis, Missouri, as the son of a “Chinaman” and an “American woman.”86 He moved to China at the age of twelve with his parents, and he lived in Shanghai and Hankow until his death in 1917. To avoid the risk of expatriation while in China, he had maintained a registration with the American consulate. When the periodic registration again expired in 1915 and “’thru an oversight was not renewed,’” the consulate refused Lee’s new application for registration.87 Lee was told that while the ordinary presumption of voluntary expatriation

Court for China as well as its supervising agency, the State Department, were perfectly aware of the distinction between “citizens” and “subjects.” “[T]here are those like Filipinos and Porto [sic] Ricans who are not full citizens but still subject to American authority,” the court stated in an opinion in which took jurisdiction over a Filipino. United States v. Scogin, 1 Extraterritorial Cases 376, 377 (1914). See also Order of the U.S. Court for China, June 30, 1914, in National Archives, RG 59, 172.6/129; United States v. A Juvenile Offender, 1 Extraterritorial Cases 687, 687 (1918) (“[t]he accused . . . is an American subject, born in Shanghai of Filipino parentage”). For an instance of the court assuming jurisdiction over a defendant from Guam, see United States v. Osman, 1 Extraterritorial Cases 540 (1916). Likewise, in a letter to the State Department regarding several prisoners in Shanghai, the court referred to one of them as an “American subject, a native of the Island of Guam,” while the rest were described as “American citizens.” Letter from District Attorney of the U.S. Court for China to Secretary of State, May 10, 1916, in National Archives, RG 59, 172.6/169.

84 Cf. Scully, supra note __, at __.85 Memorandum by Office of Solicitor, October 9, 1929, in National Archives, RG

59, doc. 893.012/43, at 8.86 In re Robert Lee’s Will, 1 Extraterritorial Cases 699 (1918).87 Id. at 702.


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could be overcome by “sound reasons for remaining abroad,”88 such as “advancing American interests” through missionary activity and business, his business as a “dealer in vermillion and yellow lead” did not overcome that presumption: there was “considerable doubt” as to whether his motivation was “purely for the advancement of American interests” or for selfish pecuniary gain.89

Perhaps more damningly, he was married to “a Chinese woman” who “wears Chinese clothing,” “has not been to the United States and does not associate with the American people.” To be sure, the children were “taught the English language” and wore “European clothing.”90 This, however, was hardly enough to indicate a desire “to return to resume the obligations of citizenship” in the United States.91 Ultimately, the State Department justified the denial of Lee’s registration on its right to refuse protection “to one who has left the United States for permanent residence abroad.”92

In the case of Robert Lee, the State Department was perfectly willing—indeed, eager—to let go of him as an American citizen. However, the U.S. Court for China insisted on taking into account the peculiarities of American extraterritoriality in China: “an American citizen in China, whether residing temporarily or permanently, remains as much under the jurisdiction of his government, its laws and its institutions as if he were residing at home.”93

88 Id. at 703.89 Id. at 704.90 While the State Department’s concern with the clothing of Robert Lee’s wife’s

and that of his children may seem fetishistic, it is noteworthy that the benefits of extraterritoriality were indeed often as much a sartorial as legal achievement; according to a leading historian of Shanghai, Chinese merchants “abandoned their long blue silk robes for jackets and trousers whenever the latter, which were symbols of extraterritorial status, could enhance their prestige or afford them protection.” Bergère, The Golden Age of the Chinese Bourgeoisie, supra note __, at 47. Even the notorious sign in a Shanghai park that proclaimed “No Dogs or Chinese Allowed” contained an qualification: it did not apply to Chinese dressed in Western garb. Leo Ou-fan Lee, Shanghai Modern: The Flowering of a New Urban Culture in China 29 (2000).

91 Id. at 703.92 Id. at 705.93 Id. at 710. Likewise, in a case involving a widowed woman who had acquired

U.S. citizenship through her marriage to an American man, the court struggled to allow her to retain her citizenship after her husband’s death. However, a 1907 law on marital derivative citizenship permitted her to retain her American citizenship only “if she continue[d] to reside in the United States.” 34 Statutes at Large 1229 (1907). The court held simply that, for the purposes of the act, China was not “abroad,” and residency in


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c. American land held in trust for Chinese beneficiaries. Even many local Chinese were able to benefit from the privileges of extraterritoriality by having their land held in trust by American citizens. This was certainly the case in Shanghai. In keeping with treaty restrictions, even the foreigners residing in Shanghai’s International Settlement did not technically own their lands, but rather “leased them in perpetuity.”94

The foreign lessees then recorded their leases in their own consulates, which gave rise to a system of “consular title deeds.” These perpetual leases were not only practically as good as full ownership, but, more importantly, the consular title deeds to which they gave rise could be challenged only in foreign extraterritorial courts; this in turn rendered them “practically indefeasible.”95

One Western observer proudly claimed, “The Chinese have not been slow to learn that the property of a foreigner is in a far more secure position than that of a Chinese.”96

To obtain the benefit of such “practically indefeasible” title, a Chinese landowner in Shanghai could enact “fictitious transfers” of his lands to a foreigner, who would then register the land with his consulate, thus “possessed of that land nominally and to the world as beneficial owner, when he in fact is a bare trustee for the Chinaman.”97 One contemporary describes the system as one where a “Chinaman avail[s] himself of the services of his foreign friends in order to employ their names for his property and enterprises.”98 Indeed, Norwood Allman, one of the doyens of the American bar in Shanghai admitted candidly, “In addition to the ones I own personally, numerous consular title deeds are registered in my name and in the name of my [law] firm.”99

Clearly, this “service” was not a purely humanitarian gesture; it came at the price of a lawyer’s fee. The result of this commodification of citizenship was, effectively, a “market in foreign privilege.”100

“the territory of China” was as good as residency in the United States. In re Dorothy McGhee’s Estate, 1 Extraterritorial Cases 418, 422 (1914).

94 Allman, Shanghai Lawyer, supra note __.95 Latter, supra note __, at 322.96 Id.97 Id.98 Id.99 Allman, supra note __, at 143.100 Scully, supra note __, at 95.


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3. Abandoning the Citizenship Requirement

Yet whether one was an American “citizen” or an American “subject,” one might have thought she was nevertheless beyond the jurisdiction of the U.S. Court for China so long as she stayed out of China. When a woman living in Gettysburg, Pennsylvania was sued for divorce in the U.S. Court in Shanghai, her attorney immediately queried the State Department about the court’s authority to hear a divorce action “against a wife in America who had never been to China.” 101 In response, the State Department simply referred the attorney to the court’s previous holding that “jurisdiction of the respondent’s person was not essential” in a divorce action that did not seek other relief.102 Indeed, the court went even further, as it determined that in divorce actions there was neither a residency nor even a nationality requirement for defendants, so long as the action was solely for a decree of divorce, without property claims; in such cases, only the plaintiff had to be an American.103 The court held it had analogous jurisdiction in actions for the annulment of marriage: such suits could also proceed “regardless of defendant’s nationality.”104

These cases struck the editors of the Harvard Law Review, among others, as creating exceptions “in plain disregard” of the terms of Sino-American treaty provision,105 yet the court’s reasoning was never challenged either on appeal or by the State Department.

* * * *

What sense, if any, can we make sense of the court’s erratic exercise of its jurisdiction? Insofar as the court’s mission was to bring law and order to the American community in China, that mission was severely compromised. Rather than “de-

101 Telegram from Keith & Sheely to Far Eastern Division, Department of State, Oct. 31, 1927, in National Archives, RG 59, Doc. 172.1/86.

102 Telegram from Department of State to Keith & Sheely, [check date], in National Archives, RG 59, Doc. 172.1/86.

103 Richards v. Richards, 1 Extraterritorial Cases 480, 482-83 (1915). 104 Again, the court noted that in an annulment action against a non-U.S. defendant

it could not award relief “as to costs or otherwise.” Ross v. Ross, 1 Extraterritorial Cases 924, 926 (1919).

105 Notes: The United States Court for China, 49 Harv. L. Rev. 793, 793 n.4 (1936).


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criminalizing” Americans, the main effect of the court’s actions was to “de-Americanize” criminals: in response to the threat of prosecution by the U.S. Court for China, American criminals simply assumed other identities and nationalities.106 In the description of the State Department, the jurisdictional competition—or lack thereof—among the several Treaty Powers led to a kind of criminal race to the bottom: “[T]he vice which seems to thrive in the atmosphere of the Orient has long tended to seek shelter under the flag of the country whose administration is the most lax and ineffective.”107 Even the loudly proclaimed triumph of the American anti-prostitution campaign was largely rhetorical: even at the moment of his triumph Judge Wilfley was reduced to celebrating the fact that “[a]t present not a single lewd woman within the jurisdiction of this court admits she is an American.”108

Moreover, not only did the court de-Americanize criminals (admittedly inadvertently, as American citizens sought refuge in other nationalities) but it also effectively Americanized some non-Americans, such as Filipinos and foreign spouses of American citizens. On the one hand, then, the jurisdictional net cast by the court missed many Americans in China, while on the other it also caught many non-Americans. The result, in the end, was a kind of “virtual citizenship”—not citizenship of the United States

106 Especially in the area of criminal law the manipulation of citizenship was an acute concern. A case in point was Edward Ezra—an elusive character who at various times professed citizenships of Turkey, Persia, Spain and the United States. For an appearance of Ezra as a U.S. citizen, see Ezra v. American Sales Corp., 1 Extraterritorial Cases 954 (1920); for more on Ezra, see Tahirih Lee, supra note __, at 50. Another prime example of similar individuals was James “Tientsin” Brown, a man born in the United States but since moving to China a man of many nationalities as he operated on, and beyond, the legal fringes of extraterritoriality in China. See generally Scully, supra note __, at __-__. When, once again, he was charged with gambling in a German consular court, he pleaded American citizenship as defense. Exasperated by the fact that Brown had earlier denied his American nationality twice before U.S. extraterritorial tribunals, the American vice consul general informed German authorities that he had “no objections to the trial of Mr. Brown being held in your consular court.” Letter from American Vice Consul General in Shanghai to German Consul General in Shanghai, January 3, 1905, at the National Archives and Records Administration, College Park, MD, in Record Group 84, Department of State, Records of Foreign Service Posts, Shanghai, Criminal Court Case Files 1879-1912 [hereinafter National Archives, RG 84], Box 5, Document C 124. Indeed, according to the American authorities in the Philippines, who were also familiar with him, “Brown appears to consider himself a citizen of the United States only when it suits his convenience.” Id.

107 Charges Against Judge Lebbeus R. Wilfley and Petition for His Removal from Office, supra note __, at 105.

108 Id. at 16.


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in its ordinary sense, but rather citizenship of “America in China” or “the American community in Shanghai,” or the court’s own, self-defined idea of the relevant community.

Just as the court arrived at an idiosyncratic definition of “citizens of the United States,” so in construing the body of law that would apply to Americans in the District of China it arrived at an equally idiosyncratic definition of the “laws of the United States,” as the following section suggests.

B. What Law Did the Court Apply in China? The Construction of an “AmericanCommon Law of China”

The oath to be taken upon admission to the bar of the U.S. Court for China required members to swear, among other things, that they would not bring suits that were “unjust,” except insofar as the justice of such suits was “honestly debatable under the law of the land.”109 But what was the law of the land? Or, rather, the law of which land was the bar to uphold? At first glance, the answer was deceptively easy: the term “law of the land” referred to the “laws of the United States,” according to both Sino-American treaties110 as well as the court’s organic act.111 In the strange conditions of American extraterritoriality in China, however, even the innocent phrase “laws of the United States” led to extraordinary interpretive difficulties. For example, did it cover only federal legislation passed by the United States Congress, or did it include the common law as well? If so, the common law of which state—or states? Was the United States Constitution applicable in China? Where should the court turn to for procedural rules?

1. Federal Law

At the heart of many of these questions was the court’s irregular place in the American judicial hierarchy. At the most basic level, was it a federal or state court? Obviously—or perhaps not?—China was not a “state” of the United States. In the end,

109 Extraterritorial Remedial Code §15, available as attachment to National Archives, RG 59, doc. 171.2/19.

110 See supra note __ and accompanying text.111 See supra note __ and accompanying text.


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the only thing truly obvious was that the court was sui generis. Some did in fact seek to analogize China (along with the U.S.-occupied Philippines) to a state, at least as far as the organization of the bar was concerned. Chauncey Holcomb, District Attorney for the District of China, explained to the House Committee on Foreign Affairs, “We have a bar association which is a branch of the American Bar Association, just the same as the States of Delaware or New Jersey.”112 The local branch, the Far Eastern American Bar Association, indeed convinced the American Bar Association to amend its definition of “state” so as to include the District of China within it!113

The court itself, however, much preferred to associate itself with the prestige of the federal system. In the preface to the first volume of the court’s case reports, Judge Lobingier described his jurisdiction confidently as “territorially the largest district of our Federal Court system.”114 Elsewhere, he referred to his tribunal—slightly more equivocally—as “a part of the Federal judicial system corresponding in grade mainly to the District Courts.”115 In the opinion of Lobingier’s former district attorney, the judge of the U.S. Court for China was just “a regular district judge”116 (although he did recognize the rather anomalous fact that the judge’s district was “as large as our homeland”).117 The State Department, too, happily referred to the U.S. Court for China as “a regular district court of the United States.”118

112 House of Representatives, Committee on Foreign Affairs, 64th Cong., 2nd Sess., Hearing on S. 4014, Jan. 10, 1917, at 16 (emphasis added).

113 “The word ‘state,’ whenever used in this Constitution, shall be deemed to comprise . . . insular or other possessions of the United States and places over which the United States exercises territorial jurisdiction.” Far Eastern American Bar Association, President’s Annual Report for 1919, at 6, available in National Archives, RG 59, as attachment to doc. 172.6/202. The Far Eastern American Bar Association was established in 1914, and became affiliated with the ABA in 1915. It had three vice presidents—one each for North China, South China, and the Philippines), and in 1916 it had a total of forty-seven members. Decennnial Anniversary Brochure, supra note __, at 46.

114 Editor’s Preface, 1 Extraterritorial Cases iii (1920).115 Charles Lobingier, American Courts in China (1919). Cf. Decennial

Anniversary Brochure, supra note __, at 1 (same description).116 House of Representatives, Committee on Foreign Affairs, 74th Cong., 1st Sess.,

Hearing on H.R. 7909, May 14, 1935, at 13. 117 Id. at 7.118 House of Representatives, Committee on Foreign Affairs, 64th Cong., 2nd

Sess., Hearing on S. 4014, Jan. 10, 1917, at 3 (statement of director of consular service).


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Nevertheless, all these claims about the court’s utter ordinariness were belied by Judge Lobingier’s efforts on behalf of legislation that would “expressly” confer on him “the powers of a judge of the district court of the United States.”119 The Ninth Circuit indeed declined deliberately to address the status of the court. The China Trade Act, the sole piece of congressional legislation passed specifically for application in China, provided that, for its purposes, the term “Federal district court” included the U.S. court for China.120 Confronted with a dispute under the Act, in dicta the Ninth Circuit merely “assum[ed], without deciding,” that the U.S. Court for China was “a court of the United States.”121

Of course, the court was like a federal court in that any definition of the law it was charged with applying—“the laws of the United States”—undoubtedly included general legislation enacted by the United States Congress. However, this body of law was largely irrelevant to the lives that Americans lived in China; they married, divorced, entered into contracts and breached them, embezzled, raped, murdered, wrote wills and died, and the Congress had had very little to say about such matters. Judge Lobingier himself acknowledged that although his court derived “its entire authority from the Federal Government,” it nevertheless exercised “much of the jurisdiction commonly possessed by a state court.”122 The court’s main problem from the beginning was that the only body of law to which it had an unquestionable claim—general acts of Congress—was simply irrelevant to the disputes that were typically brought before it.123

In fact, an early draft of the bill for the U.S. Court for China described the court expressly as a “district court”; however, this characterization was left out of the final bill. See Message from the President of the United States, Senate Doc. 95, 58th Cong., 3rd Sess., Jan. 13, 1905

119 Senate, Committee on Foreign Relations, 64th Cong., 1st Sess., Report No. 101 on S. 4014, Feb. 3, 1916, at 20.

120 China Trade Act, § 2(d).121 Smith v. American Asiatic Underwriters, Federal Inc., U.S.A., 127 F.2d 754,

755 (9th Cir., 1942). Cf. United States v. Chapman, 14 F.2d 312 (W.D. Wash. 1926) (considering the U.S. Court for China a district court for the purposes of removal of a criminal suspect for trial).

122 In re Corrigan’s Estate, 1 Extraterritorial Cases 717, 721 (1918).123 As Lobingier complained of federal law, it “deal[s] with the subjects (mostly of

public law) not directly affecting the ordinary American citizen residing in this part of the world.” Lobingier, American Courts in China, supra note __, at 11.


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2. Common Law

Fortunately, Congress had apparently anticipated the potential inadequacy of federal legislation in the conditions of China. In setting up the court, it had provided that where “the laws of the United States . . . are deficient in the provisions necessary to give jurisdiction or furnish suitable remedies, the common law and the law as established by the decisions of the courts of the United States shall be applied.”124 The good news was that this provision did indeed provide Americans in China with rights based in common law—those of “property, succession, the contract, which constitute the stable matter of ordinary life.”125 The bad news was that this was an archaic common law frozen in a much earlier time. Given that each state had developed its own common law since separation from England, the U.S. Court for China determined that “the common law” as a singular body of law had to refer to the common law of England as it existed in American colonies “at the date of the transfer of sovereignty.”126

The result may have been logically satisfying, but in practical terms it was perfectly monstrous to be “living in the twentieth century and attempting to apply the laws of the seventeenth [sic] century,”127 in the words of one eminent Shanghai lawyer.128

Tellingly, the only monstrosity he perceived was the temporal disjunction—not the fact of applying American law in China, so long as it was state-of-the-art American law.

124 U.S. Court for China Act, § 4. [Cf. consular courts—Rev. Stat. § 4085.]125 7 Opinions of Attorneys General 503 (Sept. 19, 1855). 126 United States v. Biddle, 1 Extraterritorial Cases 84, 87 (1907)¸ aff’d in Biddle

v. United States, 156 F. 759, 762 (9th Cir., 1907) (the common law applicable in the U.S. Court in China is “the common law in force in the several American colonies at the date of the separation from the mother country”).

127 House of Representatives, Committee on Foreign Affairs, Hearing on H.R. 17142, March 11, 1908 (statement of Stirling Fessenden, Esq.). See also Lobingier, American Courts in China, supra note __, at 17 (quoting Fessenden’s similar statement of the result in Biddle).

128 Equally importantly, the decision rest on factually incorrect premises. Under Swift v. Tyson, which would not be overruled by Erie for another several decades, there did indeed exist a body of federal common law, which the court failed to acknowledge. Some federal guidance in criminal matters arrived subsequently in the form of a federal criminal law when Congress enacted the Federal Penal Code. For application of the Federal Penal Code in China, see, e.g., United States v. Diaz, 1 Extraterritorial Cases 784 (1918); United States v. LeClair, 1 Extraterritorial Cases 414 (1914). Yet the Code was far from comprehensive and, of course, provided no coverage at all outside of criminal law.


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3. Laws of Alaska and District of Columbia

Functionally, then, the U.S. Court for China was left with the hybrid task of serving as a federal court and a state court—yet as far as the latter role was concerned, its misfortune was to be a state court without a state. The solution devised by Judge Wilfley in the leading case was to borrow the municipal code of the District of Columbia and the territorial code of Alaska.129 To be sure, this still left room to argue about whether the two codes were laws of the United States, in terms of their territorial applicability, but as congressional statutes they were certainly laws enacted by the United States.130 Equally importantly, since neither the District of Columbia nor the Territory of Alaska enjoyed the rights of full self-government, these congressional codes covered also what would ordinarily have been state law matters.131

The solution was certainly clever, yet it seemed to ignore entirely what Congress could possibly have intended in passing the D.C. and Alaska codes. Legislative intent, however, did not rank high among the court’s preferred methods of statutory construction. “Congress may enact a law for a limited area under its exclusive jurisdiction, such as Alaska or the District of Columbia” and that law may “by its terms . . . have no force whatever outside of such area”; yet, the court held, so long as the law was

129 Biddle, 1 Extraterritorial Cases at 124-26. Biddle extended the congressional defined criminal law of Alaska and the District of Columbia to China; subsequently, United States v. Kavanaugh accomplished a similar extension of their civil law. 1 Extraterritorial Cases 317.

130 The court’s position was in fact later followed by the Supreme Court; in 1915, it held that the Philippine tariff act, passed by Congress but applicable only to the Philippines, was “a law of the United States.” Gsell v. Insular Collector, 239 U.S. 93 (1915).

131 Wilfley’s solution was perhaps necessary, yet legislative history indicates that Congress had in fact considered authorizing the application of D.C. laws in China but finally rejected the idea. A 1905 draft of the China court bill directed the court to apply “the laws of the United States and the laws of the District of Columbia not in conflict therewith,” with the obvious implication that “the laws of the District of Columbia” were not encompassed in the phrase “the laws of the United States.” Message from the President of the United States, Senate Doc. 95, 58th Cong., 3rd Sess., Jan. 13, 1905, at 3. The impetus for making D.C. laws applicable in China seems to have come from consular inspector Pierce. See Pierce, supra note __. The decision to drop the reference to D.C. laws from the final bill suggests that they were thus not intended to be included in the mandate of the U.S. Court for China.


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both necessary and suitable for the purposes of its extraterritorial jurisdiction China, it was the law in China.132 Quite simply, any “pertinent act of Congress” was held to be in force in the District of China “regardless of the limits within which it was originally intended to apply.”133

This holding had staggering implications. In one bold stroke, it got the court out of “the wilderness of colonial common law,” as the leading Shanghai lawyer Stirling Fessenden put it.134 After a dearth of applicable law, the U.S. Court for China was suddenly awash in an excess of law. As a dismayed member of the House Committee on Foreign Relations summed up the situation, “any law enacted from the foundation of the United States Government up to the present time that the court thinks applicable is applicable”135—regardless of whether such act had been originally passed for the U.S. as a whole, or for Washington, D.C., Alaska, the Philippines, or any other federal territory. In short, the court’s holding resulted in an explosion—or perhaps more properly an implosion—of American law into China: all federal law applicable anywhere in the United States and its territories was now potentially the law in China.

However, this meant that the court was now faced with the novel problem of choosing among this exhilarating excess of law. When the House Foreign Relations Committee protested the broad judicial discretion this entailed, Judge Lobingier disingenuously denied the need to resort to any discretion at all: “the policy of the court has been to apply every act that could be applied, and it has not seemed desirable to exclude anything that seems to have any bearing on the conditions [in China] at all.”136

To be sure, just as Judge Lobingier seemingly never confronted a case over which he 132 United States v. Allen, 1 Extraterritorial Cases 308, 311 (1914). The sole

qualifications for “a law of the United States” to be applicable in China were that it had to be also both “necessary” for the exercise of the court’s extraterritorial jurisdiction (which was the case with almost every law, at least in Judge Lobingier’s opinion) as well as “suitable” for the conditions of China. On their own terms, most laws were not suitable to China; for one thing, almost invariably they contained references to government organs and officials that did not even exist in the District of China. The court brushed such objections aside summarily. Where a statute might refer to a D.C. “workhouse,” an institution absent in China, the court would simply substitute the Shanghai American “prison” as the most closely analogous institution.

133 United States v. Osman, 1 Extraterritorial Cases 540, 544 (1916). 134 Decennial Anniversary Brochure, supra note __, at 24.135 House of Representatives, Committee on Foreign Affairs, 65th Cong., 1st Sess.,

Hearing on S. 4014, Jan. 10, 1917, at 10 (Henry Cooper, Wis.). The bill under consideration, seeking to codify the law applicable in the U.S. Court for China, was never passed.


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didn’t want to take jurisdiction,137 so he never appeared to come across a law that he didn’t want to apply in China.138 Yet this hardly eliminated the need for judicial discretion, however. For example, which law should the court apply when legislation for the various territories was in conflict? Or if a special act, say, for Alaska conflicted with a general congressional statute, which should govern?

The court developed two basic conflicts principles. First, when two special acts (i.e., federal laws of limited territorial application) conflicted, the later enactment was to control over the earlier one.139 Second, in a conflict between a special act and a general one, however, the general act was to take precedence.140 As between the codes for the District of Columbia and for the territory of Alaska—the two main sources of law for the U.S. Court for China—the latter should have controlled over the former. In the opinion of Judge Lobingier, “much of the District of Columbia legislation is inherited from colonial Maryland and is therefore antiquated,” which was the very infirmity the court was trying to avoid.141 Besides, Lobingier noted, D.C. legislation was enacted for an urban community whose life was “complex” and “advanced.”142 Therefore, it was “ill adapted to conditions in a country like China”—those conditions being, by implication,

136 [ ] at 13 (emphasis added). Doctrinally, the test of a law’s applicability to China had three elements: (1) was it “a law of the United States” (i.e., a congressional enactment); (2) was it “necessary” for the court’s to exercise of extraterritorial jurisdiction in China (as defined in Sino-American treaties); and (3) was it “suitable” for adoption in China. See, e.g., United States v. Allen, 1 Extraterritorial Cases 309, 311 (1914).

137 See infra note __ and accompanying text.138 Referring to his exceedingly broad interpretation of the Biddle doctrine—

blessed by the Ninth Circuit— which opened the door for the application of even “special acts” of Congress in China, Judge Lobingier maintained that “there can be no half way adoption of that doctrine: it includes all such laws or none. It is just as applicable to civil laws as to criminal; just as necessary in respect to corporations as to procedure.” United States Ex Rel. v. McRae, 1 Extraterritorial Cases 655.

139 See, e.g., Cavanagh v. Worden, 1 Extraterritorial Cases 365, 371 (1914); Way Cheong & Co., Ltd. v. Methodist Episcopal Church Mission, 2 Extraterritorial Cases 490 (1923).

140 See, e.g., Ezra v. Merriman, 1 Extraterritorial Cases 809 (1918). 141 House of Representatives, Committee on Foreign Affairs, 65th Cong., 1st Sess.,

Hearings on H.R. 4281, Sept. 27, 28 and Oct. 1, 1917, at 55.142 Id.


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simple and primitive.143 In contrast, “the Compiled Laws of Alaska afford a fairly modern and up to date piece of legislation,” and, besides, they were designed for “a primitive, frontier community” and thus seemed “far more suitable and workable” for China.144 Apparently, then, D.C. legislation was both too old and designed for such a highly developed community as to be inappropriate for China; the laws of Alaska were preferable because they were more modern and suitable for primitive conditions.145

By whatever leap of logic Judge Lobingier arrived at his preference for the laws of Alaska, those laws did not necessarily always take precedence over legislation for the District of Columbia, either—except when they did. In the muddled legal universe of the District of China, observers could not agree on what was, even in theory, the jurisdiction’s primary source of law; some claimed it was the D.C. code,146 while others believed it was the territorial code for Alaska.147 This was no wonder, considering the patchwork of law the court created. Not only were its choices often inconsistent, in terms of preferring D.C. legislation in one area of law and Alaska law in another, but the court felt free to mix-and-match even within an area of law. For example, although D.C.

143 Id.144 Id.145 No matter that this contradicted the court’s stated preference for a later act over

an earlier one. See note __ supra and accompanying text. As Lobingier explained elsewhere,

as between the Alaskan and Columbian Codes, both enacted by the same Congress, the former, which is a few months earlier, having been drafter for a sparsely settled, frontier community, is on the whole, better suited to conditions in China than the latter, tho each contains desirable features not found in the other.

Lobingier, supra note __, at 14. [But cf. American Trading Co. v. Steele, 272 F. 774, 781 (9th Cir., 1921) (“conceding, without deciding, that the Alaska Code is controlling in the United States Court for China . . .).

146 Notes: The United States Court for China, supra note __, at 794 (“District of Columbia [legislation] . . . now forms the principal source of law for the Court for China”).

147 House of Representatives, Committee on Foreign Affairs, 65th Cong., 1st Sess., Hearings on H.R. 4281, Sept. 27, 28 and Oct. 1, 1917, at 7 (Judge Lobingier arguing that “not only the lawyers in the courts but businessmen and litigants—prospective litigants at least—have settled down to the proposition that the[] Alaska laws are the principal ones”).


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law applied to divorce generally,148 the court nevertheless applied the law of Alaska to determine the parties’ residence for purposes of divorce.149

In any event, the awareness of either D.C. or Alaska law remained strangely elementary in the District of China—despite the court’s boasts of being home to the “most valuable library of federal legislation” outside of the United States. Consider, for example, the following urgent query that the District Attorney cabled to the State Department, “Please ask District Attorney, District of Columbia, and telegraph answer what provision of law available to prosecute for throwing rock and breaking window in private building.”150

The laws of Alaska experienced some especially strange twists. For example, once the court had declared that the federally enacted corporation law of Alaska was available for the creation of American corporations in China, the court then insisted that Alaskan corporation law would remain valid in China even after it was repealed in Alaska.151 Thus, the corporation law of Alaska continued to live on as a ghostly presence

148 Cavanagh v. Worden, 1 Extraterritorial Cases 365, 371 (1914) (“Of the two Acts of Congress . . . prescribing grounds for divorce, that relating to the District of Columbia, as the latest expression of legislative opinion, will naturally be applied here if the two are in conflict.”)

149 House of Representatives, Committee on Foreign Affairs, 64th Cong., 2nd Sess., Hearing on S. 4014, Jan. 10, 1917, at 18. The House Committee on Foreign Affairs was quite stunned by this:

MR. COOPER: You mean by that that [the judge] uses the code of Alaska, so far as the residence requirement is concerned, and then applies the code of the District of Columbia for the rest of it?

MR. HOLCOMB: That is very well known, sir.MR. COOPER: It may well be known. You mean that the judge selects

what he thinks is the best to be administered?MR. HOLCOMB: That is all he has to go by.

Id. at 19.150 Telegram from District Attorney of U.S. Court for China to Secretary of State,

June 19, 1926, in National Archives, RG 59, doc. 172.006/57.151 United States Ex Rel. v. McRae, 1 Extraterritorial Cases 655 (1917).

Essentially, the court argued that to hold otherwise would permit the citizens of Alaska to repeal legislation applicable to the District of China and thus, effectively, legislate outside its territorial limits. While the U.S. Court for China might have been thought sympathetic to the possibility of extraterritorial legislation, in the case of Alaska it found such a result “monstrous” and, accordingly, held that Alaskans were empowered the repeals laws of the Territory of Alaska only insofar as those laws applied to them, not


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in China, long after its demise in Alaska.152 In response to this absurd situation, the Congress passed the 1922 China Trade Act, a special law applicable only in China, for the creation of American corporations for the purpose of doing business in China.153

(When the court still refused to let Alaskan corporation die, a 1925 amendment made it perfectly clear that from thereon the China Trade Act was to be the only law under which American businesses were to incorporate in China.154)

Finally, it is also noteworthy that even after the court had selected a law and found it both “necessary” and “suitable,” in the requisite sense of the terms, it then declared itself free to ignore the penalties prescribed by the otherwise applicable law. The court admitted soberly that “the case must be exceptional where one part of a statute is applicable and the other not.”155 However, the court adverted to “obvious difficulties” that would arise given that “the penalties fixed for similar offenses in the [codes of Alaska and District of Columbia] differ from each other.”156 The court never explained what these “obvious difficulties” were; seemingly, either one or the other code would have been applicable in a given case, and the penalty would likewise have been governed by the same code. Yet, breathlessly, the court held that the applicable section of the code of Alaska

anyone else.152 Id.153 China Trade Act, supra note __. 154 Amendment to China Trade Act § 29 (“Hereafter no corporation for the

purpose of engaging in business within China shall be created under any law of the United States other than the China Trade Act.”). Apart from Congress’s concern about the state of Alaskan law in China, there were several other attempts as well—all of them unsuccessful—to define more precisely just which “laws of the United States” the court was supposed to be applying. As early as 1908, Congress had considered improving “the code of laws governing the conduct of the United States court for China” by directing it to apply the laws of California. H.R. 21922, 60th Cong., 1st Sess. See also House of Representatives, Committee on Foreign Affairs, Report No. 1662 (Report on H.R. 21922), May 12, 1908. Judge Lobingier himself pushed for a bill that would have codified his preferred (and ultimately discretionary) mix of laws: making Alaska the primary source of law in China, while the District of Columbia code would continue to apply in cases where the laws of Alaska were “deficient.” H.R. 4281, 65th Cong., 1st Sess. See also House of Representatives, Committee on Foreign Affairs, Hearings on H.R. 4281, Sept. 27, 28 and Oct. 1, 1917, at 55.

155 United States v. Grimsinger, 1 Extraterritorial Cases 282 (1912).156 Id. at 286.


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leaves the fixing of penalties for criminal offenses committed within this extraterritorial jurisdiction to the discretion of trial officers. For that reason it is not believed that the Court is bound by the penalties prescribed in [the codes of Alaska and District of Columbia].157

Almost as an afterthought, the court noted that “while the penalties fixed in these codes are not binding on this Court they may well be utilized as guides and treated with great respect.”158 The court was thus at least permitted to follow the law, even if it was not required to do so.

4. United States Constitution

But how did such practices comport with the Constitution? Indeed, the court’s declaration that it was free to mete out whatever penalties it preferred was hardly the only constitutionally suspect practice in which it engaged. According to Chauncey Holcomb, a District Attorney for the District of China, “If a man is arrested and locked up when the Judge happens to be away, sometimes we have to keep that man locked up for six months waiting for trial.”159 The judge might be away for several reasons. For one thing, he was required by statute to hold sessions at least once a year in Hankow, Tientsin, and Canton. This was indeed roughly equivalent to a New York judge being required to take his court periodically to Boston, Chicago, and San Francisco, and the demands of such travel could result in lengthy absences from the court. Moreover, when the U.S. constituencies in Shanghai were unhappy with the justice they received in the U.S. Court for China, they often exploited diplomatic and political avenues and took their grievances to the Washington, D.C. During the hearings on the petition for Judge Wilfley’s removal, for

157 Id. Construing the language in the section of the Alaska statute that provided for an element of discretion in determining the penalty, the court not only forced a reading of the language that that made the discretion limitless in the District of China, but it then claimed that “this definite and specific language . . . disclos[es] the intent of Congress that the fixing of penalties for the punishment of crimes in this extraterritorial jurisdiction should be at the discretion of the trial officer.” Id. at 285 (emphasis added). The appeal to legislative intent is spurious, considering how implausible it is that any member of Congress would have foreseen that the code of Alaska would eventually be applied in China as well.

158 Id.159 Committee on Foreign Affairs, House of Representatives, 74th Cong., 1st Sess.,

Report on Hearing on H.R. 7909, May 14, 1935, at 7.


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example, the court did not sit for nearly a year, and, likewise, when Judge Lobingier went to Washington, D.C. to address charges made against him, the court’s work came to a halt.160 Tellingly, though, such situations were perceived as commercial crises for Americans in China, not constitutional ones.161

However, the dubious process delivered by the court reflected a larger failure of constitutional dimensions, rather than merely its own moral and constitutional ability. As early as 1891, the Supreme Court had announced, in an appeal from a consular court in Japan, “By the Constitution a government is ordained and established ‘for the United States of America,’ and not for countries outside of their limits.”162 Quite simply, the Court held, “The Constitution can have no operation in another country.”163 Thus, despite the fact that every other federal law in force in the United States and its territories (and even some laws that had been repealed) was exportable to China, the supreme law of the land clung tenaciously to American soil.164

160 [Scully] See generally The Third Attack on the United States Court for China: Press Comments on the Outcome (1923).

161 During the hearings on Judge Lobingier’s misconduct, American Consul General described the conditions in Shanghai as “deplorable”: “Creditors of American firms are unable to collect when suit is necessary. Business firms are not inclined to deal with American firms because of the absence of facilities for enforcing contracts should such be necessary.” All in all, this was “a serious matter from a commercial standpoint.” Letter from American Consul-General in Shanghai to Secretary of State, June 22, 1922, in National Archives, RG 59, doc. 172/684.

162 In re Ross, 140 U.S. 453, 464 (1891).163 Id. The Insular Cases also established the doctrine that, even within the United

States, the residents of unincorporated territories enjoyed a lesser degree of constitutional protection; for example, a conviction without an indictment or without a unanimous jury in the annexed islands of Hawaii did not violate the U.S. Constitution. Hawaii v. Mankichi, 190 U.S. 197 (1903).

164 In re Ross is no longer good law, and the contemporary debates are now about the precise extent to which the Constitution applies extraterritorially. See, e.g., Bederman, supra note __; C.M.A.. McCauliff, The Reach of the Constitution: American Peace-Time Court in West Berlin, Notre Dame Law. 682 (1980); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217 (1992); A. Mark Weisburd, Due Process Limits on Federal Extraterritorial Legislation, 35 Colum. J. Transnt’l L. 379 (1997). As a modern commentator puts it, “living in China was deemed to be American enough to permit an extraterritorial domicile, but not American enough to allow the Constitution to apply.” Bederman, supra note __, at 474. Caleb Cushing, the man who negotiated America’s very first extraterritoriality treaty in 1844 and who subsequently became U.S. Attorney General, did in fact believe that under the regime he had helped create, the Constitution would apply in China as well, and he


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In any event, the court was firmly of the opinion that various aspects of due process were not only not required by the Constitution but would have been entirely undesirable. For example, Judge Lobingier was confident that he could do perfectly without the assistance of juries—allowing them in China “would not be wise”—and he assured Congress that “there is no popular demand for anything of the sort.”165 The latter claim at least was false. Those wary of powers of the judge of the U.S. Court for China constantly complained of the lack of juries as a check on his power. They noted poignantly that even the British Supreme Court for China had jury trials,166 while in contrast the American judge was entrusted with a kind of despotic power “consistent with the practice under the barbarous system obtaining in China, against which we were attempting to guard when we demanded our extra-territorial jurisdiction.”167 One member of the American bar in Shanghai even described the procedure of the court as a “star-chamber proceeding.”168 Even the less-than-radical Associated American Chambers of Commerce of China insisted that, at a minimum, the court should adopt a system in which the judge sits with lay assessors in cases that would ordinarily be entitled to a jury trial.169

indicated so in an opinion he gave in 1855. 7 Opinions of Attorneys General 503 (1855). By [1925], however, the U.S. Court for China had concluded that there was not even a “hint” that the Constitution was in force in the District of China. [check case name], 2 Extraterritorial Cases 85 (192_). Inexplicably, the oath of admission to the bar of the U.S. Court for China required each candidate to “solemnly swear that I will support and the Constitution and the laws of the United States of America.” Extraterritorial Remedial Code, supra note__, at § 15. Taking this duty seriously would obviously have put a member of the bar on an inevitable collision course with the court’s jurisprudence.

165 House of Representatives, Committee on Foreign Affairs, 65th Cong., 1st Sess., Hearing on H.R. 4281, Sept. 27, 28 and Oct. 1, 1917, at 11. Cf. In re Ross, 140 U.S. 453 (1891) (a jury not required in a murder trial in a consular court in Japan).

166 See, e.g., Fleming, supra note __, at 4.167 Id. at 8.168 House of Representatives, Committee on Foreign Affairs, Hearing on H.R.

17142, March 11, 1908 (statement of Stirling Fessenden, Esq.) at 11.169 Report of the Annual Meeting of the Associated American Cbambers of

Commerce of China 13 (1925).


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5. Procedure

Despite the absence of constitutional due process guarantees, the court did not function wholly without procedural guidelines. While there were no federal rules of procedure to turn to, there was a set of regulations governing the procedure of consular courts. These regulations had been enacted in 1864 by the Minister to China,170 and the China Court Act made them applicable to the U.S. Court for China as well,171 although it authorized the judge “from time to time to modify and supplement said rules of procedure.”172 Judge Lobingier, however, wanted to go further and draft a new code of procedure, not only for his own court but for the consular courts as well. Speaking before Congress in favor of a bill that would have authorized him to do so, he promised, “[A]s soon as this measure passes, which confirms the authority to make rules, it is my intention to promulgate them, and they will cover the subject of procedure pretty generally.”173

The bill never passed, but Judge Lobingier wrote his own rules anyway, and then proceeded to apply them under the title of the Extraterritorial Remedial Code.174

Although the rules were followed in the court more or less faithfully, their legal status remained ambiguous. In an appeal from the U.S. Court for China, the Ninth Circuit speculated about what it thought “the practice prevailing in the China court” likely was, but ultimately it conceded its ignorance: “We do not have access to the rules.”175 The

170 The regulations were issued by the minister pursuant to the legislation establishing the consular court system in China. Rev. Stat. [§§ 4117-4119,] They are reprinted in Hinckley, American Consular Jurisdiction in the Orient 226-35 (1906). For further regulations promulgated in 1881 and 1897, see id. at 235-36.

171 China Court Act § 9 (“The procedure of the said court shall be in accordance, so far as practicable, with the existing procedure prescribed for consular courts in China in accordance with the Revised Statutes of the United States . . .”).

172 Id.173 House of Representatives, Committee on Foreign Affairs, 65th Cong., 1st Sess.,

Hearings on H.R. 4281, Sept. 27, 28 and Oct. 1, 1917, at 16.174 See Extraterritorial Remedial Code, supra note __. Although billed as

addressing purely procedural and remedial aspects of the law, the code worked substantive changes on the outdated common law that the court was bound to follow; for example, in the common law tort of seduction it gave the “injured woman” the right bring an action in her own name. Id. § 67.

175 American Trading Co. v. Steele, 274 F. 774, 781 (9th Cir., 1921).


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State Department was no more knowledgeable, although it was supposedly charged with administrative supervision of the court. When the chair of the Senate Committee on Rules asked for information regarding the procedure of the court,176 he was told rather blandly that “the Department is not informed as to the rules under which the Court is now proceeding.”177

6. Non-American Law

In addition to its own curious mix of American law, the court also applied, without any apparent statutory justification, the municipal regulations of the International Settlement. To be sure, in so doing it was following guidelines set by the State Department as early as 1887, when it instructed consular courts to enforce the municipal ordinances of the International Settlement against American citizens.178 Yet what was most peculiar about the applicability of the regulations of the International Settlement was not simply that they were not American law, but that they existed, even in the State

176 Letter from Senator Overman to State Department, April 15, 1916, in National Archives, RG 59, 172./644. Senator Overman’s query was motivated by an inquiry from a lawyer in Chapel Hill, North Carolina, who was about to graduate and was interested in pursuing a legal career in Shanghai. See Letter from R.T. Bryan, Jr., to Senator Overman, April 12, 1916, in National Archives, RG 59, 172./644. Although neither the Senator nor the State Department was able to provide him with the rules of procedure for the U.S. Court for China, the tenacious Mr. Bryan was apparently not deterred, for he was admitted to the bar of the court in May the following year. See Roll of Attorneys Admitted to the Bar of the Court since its organization, 1 Extraterritorial Cases ix (1920).

177 Letter from State Department to Senator Overman, April 18, 1916, in National Archives, RG 59, 172./644. The State Department kindly suggested writing directly to the court for details. An attorney who had tried—unsuccessfully—to obtain a certified copy of the Extraterritorial Remedial Code had subsequently been informed that “there is apparently no record in the Court that this code was duly adopted or promulgated, as by order of court.” Letter from Frank Hinckley to Secretary of State, Jan. 16, 1925, in National Archives, RG 59, 172.6/368. When he wrote to the State Department expressing his alarm, the department simply sent a polite letter in acknowledgment (“The Department thanks you for bringing this matter to its attention”). Letter from Assistant Secretary of State to Frank E. Hinckley, Jan. 16, 1925, in National Archives, RG 59, 172.6/369.

178 Secretary Bayard to Minister Denby, March 7, 1887, 4 MS. Inst. China 244; Moore, 2 International Law Digest 648-50, reprinted in 1 Extraterritorial Cases 350 (1920).


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Department’s view, “outside of any general system of law.”179 Technically, the multinational International Settlement was on sovereign Chinese territory, yet in mid-nineteenth century it essentially seceded from China and set up its own municipal government (including a militia and a police force) which was constitutionally accountable only to its electorate. Consequently, the regulations of the government of the International Settlement were not promulgated under the authority—direct or delegated—of any national government.180

Finally, the court applied even Chinese law with regard to real property; in this, it followed the British Supreme Court for China, which had ruled that land would be governed by lex loci rei sitae.181 (Judge Lobingier went so far as proposing that the U.S. Court for China should in fact adopt the new Chinese codes as the law of the court—that way, finally, a “uniformity of laws” would obtain in China!182 Needless to say, a bill to such effect went nowhere with Congress.183) The court also enforced what it called “comprador custom,” a hybrid mix of Chinese and American commercial norms.

* * * *

How should one characterize the law applied by the U.S. Court for China? While Alaska and the District of Columbia were its predominant sources of law, the end result was an astonishing synthesis that was neither the law of Alaska nor the law of Washington, D.C. Indeed, it was not the law of any jurisdiction anywhere, other than the District of China. The final product can only be characterized as a unique body of law of its own—a kind of “American common law of China” which the court constructed for its own purposes, not unlike its definition of a “virtual American citizenship” which determined who came under its jurisdiction. In the end, this hardly seems like a model of

179 Id. (emphasis added).180 See, e.g., Judge Feetham Surveys Shanghai: A Digest, 4 Pac. Affairs 586, 592

(No. 7, July 1931) (explaining “special doctrine of rights” justifying the unique position of the International Settlement); Robert Bickers, Shanghailanders, 1998 Past & Present 161, 169 (No. 159); Parks M. Coble, Jr., The Kuomintang Regime and the Shanghai Capitalists, 1927-29, 1979 China Q. 1, 3 (No. 77).

181 [However, the court did not apply the doctrine consistently; cf. International Settlement.]

182 Charles Lobingier, Shall China Have an Uniform Legal System?, 6 China L. Rev. 327 (1933).

183 [S. 1784.]


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the “rule of law” for China to follow, which in turn suggests that the court did not succeed even in terms of the goals by which it justified itself, both to China and to international society at large.

V. A LAWLESS PLACE OR A PLACELESS LAW?

Restoring the legal memory of American extraterritorial jurisdiction China is important for its own sake, given how thoroughly its history has been forgotten. More pragmatically, insofar as the jurisdiction of the U.S. Court for China was justified in part as supplying a model for Chinese law reform, it also provides an early example of the kind of “rule of law” projects that are being imported to China today. The court’s experience thus serves as a sobering reminder of the limits of such projects, as well as a testament to our enduring faith in their power. In early twentieth century, Woodrow Wilson was utterly convinced of “the obligation of the United States to promote the modern trinity—democracy, the rule of law, and Christianity.”184 Today, the composition of “the modern trinity” has changed, to the point that America’s main exports consist, in one observer’s view, of “rock music, blue jeans, and United States law.”185 Tellingly, even as Christianity has gone out of style, law has endured as an export item, and for many it is indistinguishable from democracy as well.186 At the same time, there is increasing advocacy for the extraterritorial application of American economic and criminal laws throughout the world, yet few advocates are aware of historical antecedents such as the U.S. Court for China.

But beyond its inherent historical significance and potential policy implications, can the story of American law in China tell us something about law’s operation more generally? The legal construction of “America” in China—in terms of “the citizenship of the United States” and “the laws of the United States”—is likely to strike many contemporary observers as not an instance of “law” but its perversion: an exercise in

184 Hunt, The Making of a Special Relationship, supra note __, at 217.185 V. Rock Grundman, The New Imperialism: The Extraterritorial Application of

United States Law, 14 Int’l Law. 257, 257 (1980).186 It is indeed one of the ironies of the legacy of colonialism that even as law was

typically used instrumentally as a tool of colonial administration and an aid in the spread of Christian civilization, it is the idea of law itself that has taken on hold as a nearly universal creed. Jörge Fisch, Law as a Means and as an End, in European Expansion and Law, supra note __, at 15.


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unconstrained judicial discretion. Yet this judgment may be too rash. To reinvoke Lewis Carroll, it is also possible to regard the “District of China” as a kind of looking glass: the image of law that we see reflected in it need not be the opposite of law, the limiting case that transgresses all its boundaries. Rather, it may be a particular instance of some of the general processes by which law is always made, at home and elsewhere. The image is no doubt a slightly distorted one, but the form of law that we see in it is still in many ways recognizably similar to law’s form at home.

From this perspective, it becomes possible to view that the legal construction of “America” in China was an enterprise that shares much with the legal construction of “America” in America. That is, “America” had to be invented (and must be daily re-invented) even in America, and the boundaries that define the limits of “America” both in China and in America are in important ways legal constructions. In addition to constituting a kind of legal Wonderland, the District of China is perhaps also the juridical equivalent of Disneyland, at least as analyzed by Jean Baudrillard. That is, just as America had to invent Disneyland to establish the rest of America as “real,”187 so we may be tempted to protect the integrity of “proper” judicial law-making by dismissing the jurisprudence of the U.S. Court for China as simply a historical fantasy of law, the product of an overactive judicial imagination.

However, it is possible to defend the court’s work as that of a valiant defender of the rule of law, an institution that did the best it could in kind of frontier conditions where it had relatively few material and legal resources at its disposal. Facing a dearth of legal authority and a multitude of judicial tasks that demanded their immediate attention, the judges of the court did what great common law judges have always done: they constructed a body of law using all the resources they could muster. In the conditions of the “District of China,” the common law they created self-evidently had to be an American common law of China, and the community to which that law applied had to be the American community in China as that community existed there. It would be naïve to expect the court to have served as nothing more than a passive conduit through which an unmediated body of “American law” was delivered to a self-defining community of “American citizens.” The result was a manufactured law for a manufactured community, to be sure, but as our postmodernists remind us, those are in the end the only kinds of laws and communities that there are. In this view, what differentiates the District of China from the United States proper is primarily its greater temporal and geographic

187 Jean Baudrillard, The Precession of Simulacra, in Simulacra and Simulation 1 (Sheila Faria Glaser tr., 1994).,


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distance from us, which in turn allows us to see more clearly just how the law was made there.188

Yet even if we adopt this perspective and choose to view “America in China” as a nomos, a normative community in its own right, it was certainly a contested community.189 When Judge Wilfley first began to stamp out vice from the American community in Shanghai, his campaign was met with indignant objections that he was “not empowered to decide what is, or what is not, American.”190 The objection was misplaced, of course: as a judge he was authorized to decide just that, even though law’s efforts to define communities never succeed perfectly. But more importantly, in its efforts to define the boundaries of “American citizenship in China” the U.S. Court for China was again acting much like its counterparts in the “real” America, where citizenship has been no less contested—although its boundaries have been defined differently.

At a minimum, then, the District of China was not a lawless place in any simple sense, even if the interpretation of “the laws of the United States” there was rather ad hoc. But perhaps the real peculiarity of the District of China lies in the fact that it was governed by an essentially placeless law, a jurisprudential bricolage that was not the law of any identifiable territorial jurisdiction anywhere? And if so, wouldn’t that warrant some skepticism about drawing general conclusions about “law” from the jurisprudence of the U.S. Court for China? Admittedly, we tend to view American law in America as if emanates from the very ground of the United States—as if it bears some kind of necessary, even natural relationship to it. However, this is merely the relatively recent modern mental habit of associating law (real, authentic, proper law) with the territorially defined sovereign nation-state. Yet, in the end, law has no natural home; at its origin, it has no ground. A law becomes the law of a territory only after someone imposes it on

188 To paraphrase Bismarck’s homely analogy, the common law is perhaps like sausages in that the methods and ingredients by which both are made are often less than appealing. It is important to note that this is not necessarily an indictment of the common law. After visiting a sausage factory, we may decide that we no longer wish to eat sausages, or we may decide that we like sausages anyway, regardless of how they are made. Likewise, the jurisprudence of the U.S. Court for China may either lessen our taste for judicial law-making, or else we may decide that although we have idealized the process, the end-product is still not indigestible.

189 Cf. Robert Cover, Nomos and Narrative, 97 Harv. L. Rev. 4 (1982).190 Scully, supra note __, at 120 (quoting American consul in Chefoo).


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that territory and defines it, legally, as a territorial jurisdiction. In that jurisdictional imposition lies law’s always ultimately imperial dimension.191

Nevertheless, even if there are important similarities in how law has constructed “America” both in the United States as well as in China, isn’t it willfully myopic—even perverse—to equate law’s imperial quality in the two places? Surely we can draw meaningful historical and moral distinctions between the operation of American law in America and in China? After all, what distinguishes the American exercise of extraterritorial jurisdiction in China is its nakedly colonial nature, regardless of how it was justified under international law. That is, unlike American courts in America, the U.S. Court for China was not imposing its interpretation of “America” merely on Americans (however the court chose to define that community), but it was doing so on somebody else’s land, in the midst of another sovereign nation.

Undeniably, this distinction has some moral force. Yet it may prove too much—or perhaps it is not entirely clear which way the distinction cuts. In the end, even “real” American law in America operates on somebody else’s land—land that once belonged Indian tribes. Significantly, in the collision of European and Indian political cosmologies from which “America” emerged,192 these tribes were evaluated in terms of their “sovereignty” in the European sense, and their lands were taken from them in accordance with “international treaties” to which the tribes formally consented—much as China was viewed as having consented to American extraterritorial privileges. In this sense, law’s empire reigns both at home and abroad.

191 It is a fitting irony that the leading contemporary work on legal interpretation is entitled Law’s Empire, although its author evidently does not intend the title in the imperial sense in which I use the term. See Ronald Dworkin, Law’s Empire (1986).

192 See, e.g., Tzvetan Todorov, The Conquest of America: The Question of the Other (1984).


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