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Colonial Cases

Supreme Court, establishment


Supreme Court of China and Japan, establishment

Source: The North-China Herald, 29 July 1865

TO those of our readers who remember this settlement when it bore the well deserved cognomen of "model," when law and lawyers were represented by a single member of the profession still amongst us, and who in the first case in which he appeared was prophetically designated by a local paper long since extinct, as the "thin edge of the edge;" it will probably be a subject of serious reflection whether the great and important changes which are shortly to be introduced into the judicial character of the British Consulate will be advantageous to the community or not.  But we cannot help thinking that the love of litigation, which is implanted in the hearts of Englishmen has grown with the growth of the settlement and strengthened with its strength, and that the recent arrival of so well known and so experienced a man as Sir Edmund Hornby as the Judge of the Supreme Court of China and Japan will prove a real benefit to the community.  It would be impossible within the limits of a newspaper article, to attempt to review the whole of the Order in Council or the rules framed thereon, and we must therefore content ourselves with a short review of so much of them as appear to us to interest the general public.

The Order in Council which is to create the great revolution in legal proceedings in China and Japan, bears date the 9th of March 1865, and is to be cited as the "China and Japan Order in Council, 1865;" the term "China" meaning the dominions of the Emperor of China, and the term "Japan" the dominions of the Tycoon of Japan. 

It consists of one hundred and sixty-five clauses, and the rules framed under it consist of three hundred and forty-four clauses, and appear to have been drawn up with great care and precision, so as to defy criticism, though doubtless the ingenuity of our legal friends will be occasionally exercised in attempting to drive the mythical carriage and four through its clauses, when their duties to their client appear to them to demand it.

The Supreme Court is to be held at Shanghai, or in cases of emergency at any other place within the district of the Consulate at Shanghai, and to it will be attached, besides the Judge, an Assistant Judge and a Law Secretary, and so many officers and clerks as Her Majesty's Secretary of State shall from time to time think fit.  We are rather inclined to doubt whether the present stagnate state of affairs in Shanghai will afford sufficient scope for the proper exercise of the various abilities of all these learned functionaries.  For the sake of the profession, however, we hope it may prove to be the contrary, and we think that the chances of the Court being resorted to will be greatly increased by the fact that the Court is to be a Court of Law and Equity, and that mere technicalities will not be insisted on as a sine qua non, so that nervous litigants will not feel that the legal bearing only of their cases will necessarily be considered. 

We scarcely know what to say on the introduction of trial by jury, but that most important and celebrated of English institutions, a system of trial, says Blackstone, ":which hath been used time out of mind in this nation, and the origin of which is so remote that it has not hitherto been satisfactorily traced." Where the amount at issue, either in goods or damages sought, amounts to $1,500 or upwards, either party is entitled to demand a jury.  The jury is to consist of five British residents, who will be required to give a unanimous verdict.  We doubt whether our fellow residents will be very much gratified at being subjected, in this trying climate, to the penalties of being locked up without meat, drink, fire or candle until they agree upon their verdict, as the dinner hour approaches and passes away without the remotest chance of an agreement.  How savoury the much abused Club dinner will then appear to their excited and exhausted interiors!  Fortunately, however, the field from which jurymen are to be sought is so large that there will not be too much to fear from an excessive trial of the gastric powers of endurance if our fellow-countrymen. 

A gross income of $250 per annum, a capability to speak and read, (not write) English, and freedom from conviction of any infamous crime, will entitle the British resident to this inestimable privilege.  Of course there are the usual exceptions in favour of persons in Her Majesty's Diplomatic and Consular services, the learned professions, and officers in H.B.M.'s navy and army, or in the naval or military service of the Emperor of China, or of the Tycoon of Japan.

Another important subject and one to which we wish to draw special attention is that of registration.  Every British subject resident in China or Japan of the age of twenty-one years, in order to entitle himself to be recognized or protected as a British subject, must, in the month of January, 1856, and in every subsequent year, register himself at the Consulate of the Consular district in which he resides, under a penalty not exceeding $10. Any British subject not so resident, arriving at any place in China or Japan where a Consular office is maintained, unless borne on the muster-roll of a British vessel there arriving, must also within one month after arrival register himself in like manner.  A provision somewhat similar to this was contained in Art. XL of the Order in Council of 13th June, 1853, save that no period was there fixed within which a person was to register himself after arrival, nor was yearly registration compulsory.

Many of us will remember the difficulties which the British Consuls in Shanghai have laboured under from time to time, especially during the late rebellion, in deciding the question whether some rowdy captured in a marauding expedition was entitled to British protection on his own declaration that he was a British subject.  And although we believe in every instance the Consuls have afforded the necessary protection rather than have the culprit handed over to the tender mercies of the Chinese authorities, they were by no means bound to do so.  We hope that every British resident will in future be fully alive to the importance of the subject and will inaugurate the coming year by recording himself as a loyal subject of Queen Victoria.

We are glad to see that barristers, attorneys and solicitor are all to be admitted to practise in the Supreme Court.  It would, we think, have been a serious mistake in a small place like Shanghai to have confined the privilege of advocacy to the Bar alone.  The Bar have a right of course to stand upon their dignity, and we should be the last to wish them to abate one jot or tittle thereof, but we think that the community ought to have some voice in the matter, and until the demand for law becomes so great as to give ample employment to both branches of the profession in their respective spheres, as they exist in England, it seems to us that the interests of the profession and the pockets of the public will be better consulted by allowing the existing arrangement to remain in force.

We doubt very much whether the abrogation of the Amalgamation Ordinance has given general satisfaction to the community of Hongkong.  Attorneys who either have not the cacoethes loquendi or who prefer the quiet of their chambers to the turmoil and excitement of a Court life, can easily instruct their professional brethren to act for them in the conduct of any case which may be intrusted to their care a plan which has been constantly pursued by some of the attorneys at Hongkong.

We think that many of our reader will be glad to hear that the Court will possess a Bankruptcy jurisdiction over British subjects (and others submitting to the jurisdiction) exercisable as far as circumstances admit in the same manner as in Courts of Bankruptcy in England, so that we hope to hear no more of deeds of assignment miscalled trust deeds, made ostensibly for the benefit of all the creditors of the debtor, but too often, we fear, for the purpose of defeating the claim of some injured creditor whose sole fault consists in a reasonable wish to secure payment of a just debt.  Not that we wish for a moment to be understood to advocate the throwing over of every insolvent estate into bankruptcy.  Quite the contrary.  But on the one hand it might, and does frequently happen that bona fide Trust deeds, by binding dissentient creditors, and compelling them to submit to the decision of the majority, confer a boon on the general body of creditors by insuring an equitable and inexpensive disposition of the property, and by giving protection to the honest debtor.  A Court of Bankruptcy, on the other hand, affords an opportunity for a thorough and searching public investigation into the transactions of the bankrupt, and renders the dishonest debtor liable to the legal penalties which dishonest and reckless trading so richly reserves.

Another very important power vested in the Judge of the Supreme Court is that of life and death.  The cases which have occurred here, in which after the most patient investigation, and the clearest evidence, prisoners have been sent to Hongkong for trial, and been acquitted either upon some technical ground or in consequence of the absence of some material witness whose written depositions had been taken at Shanghai, are so well known that it will be a relief to feel that the whole trial from beginning to end will in future be conducted in Shanghai. With this proviso, that sentence of death cannot be carried into execution without the direction of Her Majesty's Minister for China or Japan, as the case may be.

In addition to the Supreme Court to be held at Shanghai, there are to be Provincial Courts which are in reality the Consular Courts under a  new name; the chief difference consisting in this, that the Supreme Court is to possess in all matters, civil and criminal, an extraordinary original jurisdiction concurrent with them; the Judge, Assistant Judge, or Law Secretary having the power to visit in a magisterial or judicial capacity, any Provincial Court and there enquire into, hear and determine any case, civil or criminal, pending in such Court, or arising within its district.  As the Provincial Courts have the power to refer to the Supreme Court any case which appears fit to be heard by the Supreme Court, we presume that the respective Consuls at the different ports will not take upon themselves the reasonability of deciding any cases of importance, and we cannot but hope for the benefits of learned Judges, and the legal gentlemen who possess a desire to make a tour of the Ports to recruit their shattered strength, that "Home Circuit" will often be resorted to.

We are glad to notice also, under the heading "Jurisdiction and Authority of Her Majesty's Courts," the peaceful expressions "Reconciliation and Arbitration."  Every Court by which term we understand the Provincial Courts as well as the Supreme Court, may promote reconciliation and encourage and facilitate the settlement in an amicable way of any suit or proceeding pending before it, and by consent of both parties refer all matters in difference to arbitration and take security, if it think fit, from the parties to abide by the result of the reference.  Any award, made in such case is to be final and conclusive, and on the application of either party a decree of the Court may be entered in conformity with the award and such decree will not be open to any appeal or re-hearing whatever.  Many of our readers have experienced the weariness of sitting hour after hour attempting to unravel some complicated question of account, arising perhaps out of a building contract with a Chinese contractor involving debits and credits of such a nature as only an experienced accountant can thoroughly understand, the difficulties being by no means finished by the examination of the contractor and his Chinese witnesses.  In such cases it will be a consolation to all parties to feel that arbitration, if agreed upon, will be properly carried out under the direction of the Court and the terms of the award strictly enforced.

An admiralty jurisdiction is another important power which will be vested in the Supreme Court.  Hitherto the Consuls have been under the impression (and if we are not mistaken that impression has been fortified by the opinion of the Attorney General or Hongkong) that no such jurisdiction existed, and consequently all the cases hitherto brought before the Court, in which questions of salvage have been involved, have been in the form of as civil action for work done and or less rendered, which of course ignored entirely the rights given by the Court of Admiralty of arresting the ship.  By the 54th Section of the Order in Council the Supreme Court is to be a Vice Admiralty Court, and as such will have within Chinas and Japan, all such jurisdiction for the time being as belongs to Vice Admiralty Courts in Her Majesty's possessions abroad.

There is one power attached to the Supreme Court which we really hope may never have to be called into requisition, and that is The Divorce and Matrimonial Jurisdiction, and although the Court will have no power to dissolve marriage we feel that the mere mention of the word "Divorce" will be sufficient to inspire our married readers with a wholesome dread of the Damocletian sword which will be constantly suspended over them.  May it never descend!

Want of space prevents us from noticing the subject or "War and Rebellion," "Violation of Treaties," "Offences against Religion" and other subjects of general importance contained in the Order in Council.  We have endeavoured to review very cursorily the various enactments which concern more immediately our every day life, and we shall look forward with much interest to the day which inaugurates the Supreme Court of China and Japan.


Source: The North-China Herald, 9 September 1865

On Monday the Supreme Court of China and Japan was formally opened by Sir Edmund Hornby.  The Royal Warrants appointing the Judge, Assistant Judge and Law Secretary were read, and Sir Edmund Hornby then proceeded to swear himself into office, after which the oath was administered to Messrs. Goodwin (Assistant Judge) and Fraser (Law Secretary).  Messrs. Myburgh, Eames and Robinson signed the roll of practitioners in the Court, and the ceremony was at an end.


Source: The North-China Herald, 11 September 1868


AS our contemporary reminded us the other day, it is now three years since the Supreme Court of China and Japan was established.  The vague and indefinite apprehensions which assailed certain sections of the community when its institution was first broached, have passed away.  It is now an organised power amongst us, and we cannot help thinking that it is not altogether useless to sum up, in a general outline, the year's work.  It is satisfactory to notice that the mass of bankruptcy cases, which disfigured and enriched the Court in its early days, has diminished.

   One unfortunate case connected with a large and important firm at Hankow, occupied attention for a long time, and brought into contact Consular administration of the old school and the newest conditions of professional experience. The subject was so widely ventilated at the time, that we need only refer, in general terms, to the case of Mackellar & Co.

   Amongst the criminal cases, the attempts of Woodward alias Drummond to obtain goods under false pretences excited transient attention, from the strange and fantastic circumstances of the offender's capture.  A very different case - that of the Queen v. George Clark - who was charged with "Piracy, Robbery with violence, and Robbery" ended in a sentence of three years' penal servitude; and lately a murderous act of violence has received a mitigated punishment, owing to the great provocation offered to the man Hart.

   Amongst the summary cases, there has scarcely been one which deserves comment in the daily papers, much less any second notice in an annual summary.

   The strange mania which possessed the community a few months ago to bring libel actions against each other had happily, like other fevers, died out at last.

   Recently, we seemed to be on the eve of a cheerful state of society.  The Goddess of Discord flung not one, but a lap-full of apples into our midst.  Judah vexed Ephraim, and Ephraim vexed Judah.  Barrister rose against Barrister, and Editor against Editor.  In such a state of conflict the value of the Supreme Court was recognised.  It is true, "Philistines" might assert that, had the court never existed, the squabbles would have been adjusted in half an hour; but this is of course an argument that no rightly disposed minds would allege.  On a great occasion the bench was worthy of itself; and the vein of  subdued irony in which the judgment in the great libel cases was couched, expressed with faithfulness the general sentiments of the community, and raised the character of the representatives of Law to a high pitch of temporary popularity.

   In more serious matters, the Court has really had an easy time of it.  The case of special interest to merchants during the year, has probably been that in which a Russian firm claimed certain moneys from Messrs. Jardine, Matheson and Co., on account of damage done to cargo by shipment in improper juxtaposition to certain vessels containing oil in the steamer Glengyle.  The decision was one which will, perhaps, be recorded as a precedent; but as we commented on it at length, when it was given, we need not again do more than refer to it.

   Thus pleasantly has the year passed by in the halls of Themis; and as an individual who has plenty of leisure time, and a large command of money, is almost certain to begin dabbling in bricks and mortar, so the Supreme Court is employing its dignified repose in pulling down its barns and building greater.  The modest structure which sufficed, we must confess imperfectly, for the purposes of justice in the old days, is quite in sufficient for the present regime; and a large outlay of public money is contemplated to supply an  edifice worthy of the majesty of English law.  We are always friendly to a liberal expenditure in furnishing foreign officials with any "environment" which may add to their importance in the eyes of the natives.  It is, we are assured, a mistaken policy which induces any Government to administer its functions through ill-paid, ill-housed officials; but, as we have previously stated, we consider that a sum so large as that about to be laid out on a Supreme Court, should have secured us the direction of an architect of large experience and famous name.  We hope for the best, but we cannot help confessing that, as the tribunal under its present constitution is avowedly an experiment, large outlay might have been deferred; and had such outlay been resolved upon, it might have been placed in such hands as would secure us a building likely to do honour to the settlement.

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