Our first blogger this Fall is Fei-Hsien Wang, Assistant Professor of modern China in the Department of History in Indiana University Bloomington. She can be contacted at email@example.com. Her post touches on the difficulty of crafting a narrative with disparate, and sometimes, even missing court records - something most of us could certainly relate to. Fei-Hsien's research revolves around the relationship between knowledge, commerce, and political authority in modern East Asia, especially China. Her current book manuscript, Hunting Pirates in the Middle Kingdom, explores how copyright was understood, appropriated, codified and, most importantly, practiced by Chinese as a new legal doctrine.
The Curse and Blessing of the Missing Shanghai Mixed Court Archives
In an ideal legal archive, many of us historians might hope, there are logically ordered folders and well-preserved documents that would reveal how legal cases arose, unfold and how they were (or were not) resolved. In reality, however, we consistently struggle to construct such case-oriented narrative. Oftentimes what have survived in archives are not intact case files, but their puzzling fragments, ambiguous stories without a beginning or an end, or intriguing remains of some disorganized body of paper works. “You should be grateful,” we tell ourselves, “fragments are better than empty folders.”
But, what if the whole legal archives you’re looking for is deemed lost? How could one recover legal cases from the missing court files?
This is precisely the problem I’ve found myself facing when I started to work on the Sino-foreign copyright disputes the early 20th century a few years ago. Most of the Sino-foreign Intellectual Property Rights (IPR) disputes at the time, due to the international nature of these cases, as well as the location of the involved Chinese firms, were brought before the Mixed Court of the International Settlement at Shanghai (Shanghai Huishen Gongxie, also known as the Shanghai Mixed Court, or the International Mixed Court). Since its establishment in 1868, the Mixed Court served as the court of law dealing with both civil and criminal cases involved in Chinese operating in the Shanghai International Settlement, or foreigners who were not represented by consuls, until its abolishment in 1927. Estimating the quantity of the cases it heard annually, some European legal scholars in the 1920s considered the Mixed Court as the busiest and perhaps the most important law courts in the world. It would have accumulated, in theory, enormous records of the hundreds of thousands cases and petitions it dealt with over six decades. The original records of the Mixed Court, however, are not available. Since the late 1950s, scholars have been searching for the Mixed Court archives in all places but in vain. While some still believe that these records are sitting in an unknown and unexpected location waiting to be discovered, it is generally accepted by historians of Shanghai that the whole Mixed Court archives may have been lost during the wars.
The records of the Mixed Court would be crucial, if not essential, for anyone who is interested in law and society of the late 19th and early 20th century Shanghai, the leading economic hub and cosmopolitan port city of East Asia. By treaty, foreigners in China enjoyed the privilege of extraterritoriality at the time. The Shanghai Municipal Council, the governing body controlled by rich foreign oligarchs, by and large ran the Shanghai International Settlement as an autonomous “free” port, yet it had no jurisdiction over Chinese nationals, who by the 1880s, were the dominant majority in the Settlement population. To solve the problem, the Mixed Court was created as a middle ground of the two legal systems; cases brought before the Mixed Court would be judged by a Chinese magistrate and a foreign assessor named by the consulates, according to the applicable Chinese laws, international treaties, or local rules and regulations of the International Settlement. Because the Mixed Court played such a key role in creating the complex legal order at Shanghai, the absence of its records makes it challenging to study comprehensively the pluralist legal structures of treaty port of Shanghai, the encounter and exchange of different sets of legal practices and systems in this unique courtroom, or even the everyday legal disputes and economic transactions of the highly-diverse international population in Shanghai.
To overcome this obstacle, researchers have reached out to different types of marginal sources to reconstruct the daily operation of the Mixed Court. For a long time, court reports on Shanghai newspapers, such as the North China Herald, Supreme Court Reporter and Consular Gazette and the Shanbao, formed the major sources for historians interested in cases dealt by the Mixed Court. Though these news reports sometimes offer vivid and detailed descriptions of the courtroom debates, their portrayal of high-profiled sensitive cases were often biased due to the newspaper’s political stand, and minor cases were usually omitted. While some legal scholars and professionals in the early 20th century provided their contemporary observations and assessments about the Mixed Court, such as Russian assessor Anatol M. Kotenev’s Shanghai: Its Mixed Court and Council (1925), most lawyers and staff working at the Mixed Court did not publish their own accounts.
They left paper trails elsewhere. In recent years, scholars have immersed themselves in the British Foreign Office archives, the US Department of State archives, the Chinese (Qing & ROC) Ministry of Foreign Affairs archives, and other diplomatic records, to find accessors’ correspondence and reports, lawyers’ petitions, and the formal and informal negotiations between China and foreign powers on cases failed to be settled in the Mixed Court. Incomplete copies of judgements from the Mixed Court and other supporting documents were often included as their supplements. Some search for similar clues at the records of the Shanghai Municipal Council. These materials reveal how the Mixed Court and its staff operated, and allow them to discover some previously unknown legal cases, as well as to have a clearer picture of the cases we might only know very little before.
For my project on the historical origins of the Sino-foreign copyright war, I also dive into the diplomatic archives of China, Japan, Britain, and the United State, to recover copyright dispute cases judged at the Mixed Court. Yet, the absence of the “real” (and ideally “complete”) Mixed Court archives still makes me anxious as I am stitching together the intriguing fragments found in the accessors and diplomats’ paper trails. This anxiety about not being able to offer an intact narrative of these cases have driven me to look further into the papers and correspondence of publishers and booksellers involved in these cases, searching for any mention in Shanghai.
The further I have moved away from legal archives, interestingly, the richer and more complex these copyright disputes seem to have become. For example, during the process of reconstructing the 1911 lawsuit between Ginn & Co., a leading American textbook provider, and the Commercial Press, the largest publishing company in China, I encountered the nasty wrestling between the American accessor of this case and his superior Consul-General over judicial independence, Shanghai booksellers’ guild coaching its members how to deal with foreign accusations, the American government’s unfruitful attempts to overturn the ruling, and the debate among the managers of Commercial Press whether they shall stop pirating. From the records of these two publishers, I learned that the lawsuit was neither the beginning nor the end of their copyright dispute: both sides knew the likely outcome of the case prior to the first court hearing, they had been sending threats to each other before they went to the Mixed Court, and, years after this lawsuit, they actually formed an unexpected partnership as a resolution of this dispute. These fragments might not provide greater details about how the case was heard at the Mixed Court in 1911, but they reveal the socio-economic environment it was embedded in, the politics behind it, and how it was just a small episode of a decade-long international competition over China’s rising textbook market.
The absence of the Mixed Court archives have forced me to look things happened outside and beyond the court and shift away from the case-oriented narrative, yet these seemingly secondary or marginal materials open up new possibilities to put legal cases in broader historical contexts that we might otherwise neglect to see. Empty folders and missing archives might not be entirely a curse after all.
For queries and contributions, email me, Fadzilah Yahaya at firstname.lastname@example.org. Follow us on Twitter at https://twitter.com/historyblawg. - Fadzilah. Next up, we've Philip Thai from Northeastern University.