The United States Court for China: A Forgotten Chapter in Ninth Circuit History
After the fall of the Empire in China in 1912, and before the takeover of China by the Communists in 1949, there was a period in which a number of warlords controlled different areas of China. The United States felt that there was a need for certainty in the dealings of its citizens abroad therefore, for more than two decades in the early twentieth century, the United States maintained an unusual federal court on foreign soil—one that exercised full judicial authority over American citizens living and working in China. The United States Court for China, established by Congress in 1906, represented a unique experiment in extraterritorial jurisdiction, and its decisions were appealable to the Ninth Circuit Court of Appeals in San Francisco. Though it ceased operations following World War II, this court left behind a body of published case law that offers a fascinating window into American legal history abroad.
Origins: Extraterritoriality and the China Trade
The United States Court for China emerged from a nineteenth-century system of extraterritoriality—the practice by which Western nations secured the right to try their own citizens under their own laws within foreign territories. Beginning with the Treaty of Wanghia in 1844, the United States obtained consular jurisdiction over American citizens in China. Under these treaty arrangements, American consular officers exercised judicial functions, adjudicating civil and criminal disputes involving U.S. nationals according to American law.
By the early 1900s, the American community in China had grown substantially, driven by commerce, missionary work, and diplomatic activity. The consular court system, staffed largely by non-lawyers and operating with minimal procedural consistency, proved inadequate to handle the increasing volume and complexity of cases. In response, Congress enacted legislation in 1906 creating the United States Court for China—a true Article I legislative court with a presidentially appointed judge, formal procedural rules, and jurisdiction over both civil and criminal matters involving American citizens in China.
Constitutional Structure: A Legislative Court Abroad
The United States Court for China was classified as a “legislative court” rather than an Article III constitutional court. This distinction was significant. Legislative courts are tribunals created by Congress under its broader constitutional powers, in this case, the powers to regulate foreign commerce and implement treaty obligations, rather than under Article III, which governs the federal judiciary. Ex parte Bakelite Corp., 279 U.S. 438, 451, 49 S. Ct. 411, 413, 73 L.Ed. 789, 794 (1929)
In Ex parte Bakelite Corp., the Supreme Court explained that legislative courts such as the United States Court for China are “created as a means of carrying into effect powers conferred by the Constitution respecting treaties and commerce with foreign countries.” Ex parte Bakelite, 279 U.S. at 451. The Court noted that such tribunals “exercise their functions within particular districts in foreign territory and are invested with a large measure of jurisdiction over American citizens in those districts,” and that “the authority of Congress to create them and to clothe them with such jurisdiction has been upheld by this Court and is well recognized.” Id.
The Court for China drew its substantive law from multiple sources. Congress directed the court to apply federal statutes where applicable, and to fill gaps with the common law and principles established by decisions of United States courts. Biddle v. United States, 156 F. 759, 761 (9th Cir. 1907). In Biddle, the Ninth Circuit clarified that when Congress made “the common law” applicable to offenses committed by American citizens in China, it referred “to the common law in force in the several American colonies at the date of the separation from the mother country,” which included “not only the ancient common law, the lex non scripta, but also statutes which had theretofore been passed amendatory of or in aid of the common law.” Id.
This resulted in a legal hybrid: a federal court applying American federal law, English common law as received in colonial America, and occasionally even District of Columbia statutes as gap-fillers—all within the treaty ports of China.
Appellate Jurisdiction: The Ninth Circuit Connection
Appeals from the United States Court for the District of China were taken to the United States Court of Appeals for the Ninth Circuit in San Francisco. This appellate relationship placed the court within the federal judicial hierarchy, even though it operated thousands of miles from the continental United States.
The statutory framework governing appeals from territorial and consular courts reflected this structure. Under the federal appellate jurisdiction statute, appeals from “reviewable decisions of the district and territorial courts” were channeled to the geographically appropriate circuit court of appeals. 28 U.S.C. § 1294. While the statute in its modern form lists specific territorial courts, including the District Court of Guam, which remains under Ninth Circuit jurisdiction, it codified a pre-existing practice of routing appeals from extraterritorial American courts to the circuits with Pacific jurisdiction. Id.
The Ninth Circuit’s published opinions from this era include decisions reviewing both civil and criminal cases originating in the United States Court for China. In Biddle for instance, the Ninth Circuit addressed whether the Court for China had jurisdiction to try an American citizen for obtaining money by false pretenses, a question that required the court to determine what body of criminal law governed American conduct in China. Biddle, 156 F. at 761. The Ninth Circuit held that the offense was cognizable under the common law as received in America, and that Congress had validly conferred jurisdiction over such offenses on the Court for China. Id.
These published cases stand as tangible evidence of the court’s work and the Ninth Circuit’s role in supervising American justice abroad.
The Court in Practice
The United States Court for China sat in Shanghai, the commercial heart of American activity in China. Its docket included commercial disputes, tort claims, probate matters, and criminal prosecutions. The court applied American procedural rules, heard cases in English, and maintained formal records following federal practice.
Civil cases ranged from contract disputes between American merchants to personal injury claims and property disagreements. Criminal jurisdiction extended to serious felonies committed by American citizens, including fraud, assault, and other offenses against both American and Chinese victims where treaty rights applied.
The court operated as a full-service tribunal, exercising both original and, in some instances, supervisory jurisdiction over the remaining consular courts in outlying Chinese cities. This dual function allowed the United States to maintain a degree of judicial presence across China’s treaty ports while concentrating professional legal expertise in Shanghai.
Decline and Abolition
The United States Court for China’s authority rested entirely on the treaties granting extraterritorial jurisdiction. As Chinese nationalism grew in the early twentieth century, pressure mounted to end the unequal treaty system. In 1943, during World War II, the United States and the Republic of China signed a treaty relinquishing American extraterritorial rights. With the treaty foundation removed, the Court for China lost its jurisdictional basis. Congress formally abolished the court shortly thereafter, and its operations ceased. The end of extraterritoriality marked a significant shift in U.S.-China relations, moving toward a framework of sovereign equality rather than imposed legal privilege.
Legacy
The United States Court for the District of China operated from 1906 until the relinquishment of extraterritorial rights in 1943, with formal abolition following shortly thereafter. Its published decisions are archived in the Federal Reporter and remain available for historical research.
The United States Court for China represents a singular chapter in American legal history – a moment when the federal court system extended beyond national borders to govern Americans abroad under a hybrid body of law. Its decisions, now accessible in the published federal reporters, provide insight into how American law operated in a foreign cultural and legal context, and how courts reconciled common law traditions with statutory mandates in extraterritorial settings.
For the Ninth Circuit, the Court for China was one of several territorial and extraterritorial courts under its appellate supervision during the early twentieth century, alongside courts in Hawaii (before statehood), Alaska (before statehood), Guam, and other Pacific jurisdictions. Today, the Ninth Circuit continues to hear appeals from Guam and the Northern Mariana Islands, maintaining a thread of continuity with its earlier role overseeing American courts across the Pacific. 28 U.S.C. § 1291.
The published cases from the District of China, though often overlooked in modern practice, remain part of the Ninth Circuit’s historical body of precedent, a reminder that the reach of American federal courts once extended far beyond the nation’s physical borders, into the heart of early twentieth-century China.
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