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Colonial Cases

Woo v. The Rose, 1861

[trading regulations, breach of]

Woo, Superintendent of Customs v. Master and Owners of The Rose

Consular Court, Shanghai
8 August 1861
Source: The North-China Herald, 17 August 1861

 

H.B.M. CONSULAR COURT, SHANGHAI.

Thursday, 8th August, 1861

Before W. H. MEDHURST, H.B.M.'s Consul,

And WM. THORBURN, Esq., ROBT. REID, Esq., Assessors.

HIS EXCELLENCY WOO, THE SUPERINTENDENT OF CUSTOMS

Versus

THE MASTER AND OWNERS OF THE "ROSE."

Mr. G. J. W. Cowie of the Imperial Maritime Customs, Solicitor, appeared for H.E. the Plaintiff.  Chen-fuh-shing, Wei-yuen of the Taoutae, was also in attendance.

Mr. James Whittall, of the mercantile firm of Messrs. Jardine, Matheson & Co., represented the defendants.

Before the case was gone into H.M.'s Consul observed that he wished to call the attention of the gentlemen assessors to an important consideration which must not be lost sight of in proceeding with this cause.  They were that day sat to try the Defendants on a criminal charge (Mr. Cowie interrupted and remarked that it was a criminal charge, inasmuch as it was for a breach of Treaty). By a criminal charge he meant that they had not to decide on the question as one of right or wrong in a moral point of view.  They were there at the requisition of the Chinese Authorities to decide whether the Defendants had as British subjects broken the solemn engagements entered into by the Queen on their behalf with the Emperor of China, and whether they were liable to the penalties imposed under those engagements.  Their position was therefore a most delicate one.  On the one hand, they must not allow their feelings for their fellow countrymen to militate against their sense of justice and of their duty to maintain inviolate the promises of Her Majesty to the Chinese Government; on the other hand they must remember that the probity of British merchants was at stake, and that the owners of said property had no advocate but themselves to defend their rights and privileges under Treaty.  They must therefore endeavour so far as they could to pursue that middle course which would enable them to satisfy their sense of justice to the Chinese Government on the one part and their duty towards the interests placed at their disposal on the other.  Mr. Cowie very truly said that he charged the Defendants with breach of Treaty, but that Treaty was a favorable one in many points to Chinese interests, and it was for them to protect British interests to the utmost of their power, consistently with other obligations which were laid upon them.  With these remarks he would then proceed with the case.

Mr. Cowie, before the plaint was read, and at the request of the Consul, produced his authority to act for H.E. the Taoutae.

The plaint was then read, which was as follows:

The Defendants have been guilty of a breach of both the Treaty of Tientsin and the Regulations for Trade on the Yangtsze, having in defiance of the above Regulations traded at certain places between this port and Chin-kiang, and in accordance with the 47th Art. of the said Treaty the Plaintiff claims the confiscation of the said vessel and cargo."

The Defendants pleaded that they were not guilty.

Mr. COWIE here handed in a chart of the Yangtsze river for the assistance of the Court, and proceeded to state the Plaintiff's case in the following terms:-

He appeared for the Plaintiff, who was the Superintendent of Customs at this Port.  The defendants were Johann Matthews, the Master of the Rose, and Messrs. Jardine, Matheson & Co., who, he believed, were the acknowledged owners of said vessel; and the charge brought against them by the Plaintiff was for carrying on, by means of that vessel, an unlawful and clandestine trade on the river Yangtsze in defiance of the Treaty of Tientsin and the Provincial regulations for British trade on that river.  The facts of the case were simply these:

On or about the 10th of July the Rose went up the river and anchored off Sai-gon-yin, a town situated on the Yangtsze, at the entrance of a creek leading to Sin-yu-miou, and at a distance of about 20 miles this side of Chin-kiang.  The steamer Pluto and the schooner Halcyon, two of H.I.M.'s Revenue Cruisers, were also at anchor off Sai-gon-yin.  On the 23rd July the compradore of the Rose came down the creek from Sai-gon-yin in a native boat, and went outside into the main river without stopping at the native Custom House, and proceeded down the river at a distance of quite 5 miles below Sai-gon-yin.  The Rose which had been at anchor at this last mentioned place since her arrival on the 10th then commenced getting up her anchor, and the Customs Officer in charge of the before mentioned cruisers, having had his suspicions aroused immediately sent off a tidewaiter to board the Rose, and accompany her wherever she went.  She set sail and dropped down the river alongside the native boat, from which she received several cases of treasure and bags of rice, and also sundry smaller packages.  She then proceeded about 2 miles further down the river, and there received on board eight chests of tea, and would, it was believed, have received more, had it not been for certain misgivings supposed to have been entertained by the master, as to his being watched by the tidewaiter on board.  Having left his compradore at the place the Master then brought the Rose on direct to Shanghai.  These were the short outlines of the case.  His Excellency the Taoutai had been most lenient in not bringing forward a charge against this same boat till the present, for, on three distinct occasions previously, it had been found necessary by the Customs Authorities to caution the master of this vessel.  He would now call witnesses who would prove to the Court the charge brought before them.

HENRY WAKEMAN, being duly sworn, stated as follows:  I am Master of the Pluto, a Customs House Cruiser.  The first time the Rose came up the Sin-yu-miou creek I boarded her - she had no colors.  I asked her name, and she produced her papers all right.  I told the master to go out of the creek, as he was not allowed there.  He said he was bound to Sin-yu-miou and there he would go.  I gave him notice that if he proceeded on I would seize his boat.  I returned to the ship, and sent my first mate and 6 men to see what he discharged or took in, and to try to induce him to come back; he returned after being there a short time, and, as he had not discharged cargo, I allowed him to return to Shanghai.  On the 10th July the Rose arrived again.  I boarded him and he stated he was in ballast, and from Shanghai.  He remained there till the 23rd, at the entrance of Sin-yu-miou creek.  About ½-past 10 that day, a Chinese boat came down the creek, and refused to stop at the Custom House, so we had to give chase to her.  When the boat passed the Rose, the man on board, a shroff, bowed and nodded to Captain Matthews who answered him.  The Chinese boat got outside, and the Rose commenced to get under way.  I sent the first mate on board to go to Shanghai in her.  Captain Matthews stated that he was bound to Ningpo, not to Shanghai, and that he would charge Tls. 50 for the passage.  They went away and that is all I know.

Examined by Consul. - I only saw the Rose on these two occasions; she had been up four times, but I only saw her twice.  She was going up the Sin-yu-miou creek, about 13 miles up.  I made no effort to detain her, as I had only four men in the boat.  I reported the matter at once to the Chinkiang Custom House.  My mate told me that the man I saw in the Chinese boat was the Shroff of the Rose.  Captain Matthews told me that his shroff was up the creek collecting money.  On the first occasion I don't know of his landing or discharging any cargo.  He had 40 chests of opium on board.  On the second time I don't know if he landed or shipped cargo.

Re-examined by Mr. Cowie. - I don't know how far the Chinese boat went down the river.  I have been told that the Rose had been up the river before.  The shroff was collecting money for opium.  Captain Matthews told me so.

Examined by Consul. - I received instructions from the Custom House of Chin-kiang to seize the boat, in reply to my report of the first visit of the Rose.  I did not seize her, because she did not proceed up the creek on the second visit.  On the second visit she was off the mouth of the creek.  She might have anchored there on her way up the Yangtsze.  She was 13 miles up the creek the first time, at Sin-yu-miou.  I think his first visit was later that the 10th June - about the 27th.  On the first occasion she had no flag.  On the second she had the English flag, on a Sunday.  I know that it was the Rose as Captain Matthews told me so.  She is here now, I can swear to her being the same.

ROBERT DAVIDSON, being duly sworn, stated: I am first mate of the Pluto, a Chinese Revenue Cruiser.  On the 10th July the Rose arrived at the entrance of the Sin-yu-miou creek, a place called Sai-gon-yin and there anchored till the 23rd.  Seeing the leading Chinese, whom I saw on board the Rose, in a Chinese boat and pass the native Custom House, I told Captain James of it.  He is captain of the Halcyon.  He was on the Pluto at the time.  The boat would not stop at the native Custom House, though hailed to do so.  I saw the Chinaman nod to the master of the Rose, and the Rose began to clear the deck and get the awning out of the way.  She then followed the native boat, and went about five miles. Then she took in two rolls of Sycee or money in a bag, and I think eight cases of treasure from the native boat, with eight or ten bags of rice and several packages of luggage, &c.  The Rose then started and went on for about two miles to the northward again; and laid at the entrance of a creek, seven miles below Sai-gon-yin, where she took in eight boxes of tea brought by the same Chinaman that was in the native boat at Sai-gon-yin.  The Chinaman went on shore after shipping the tea, and the Rose proceeded to Shanghai, and arrived on the morning of the 25th.  At 6 a.m. of that day I reported the fact to Mr. Canham, Tide Surveyor, and about noon on the same day I reported it to Mr. Fitzroy.

Examined by Consul. - I was on board the Pluto at Sai-gon-yin, about 60 fathoms from the Rose.I was sent on board the Rose when she got under way, and I saw these various shipments.  The people of the Rose knew who I was.  I told the master that I was on board to watch his proceedings, and to go to Shanghai for medical advice.  I had no order to stop the shipments.  I was sitting on the deck of the Rose when these shipments were made.  I was in the Pluto at Sai-gon-yin about 45 days.  I never before saw anything of the kind.  I never saw a foreign boat come in and trade.  No other boat ever gave us any trouble but the Rose. The Rose had been before up the Sin-yu-miou creek in defiance of the Pluto.I was put on board the Rose by the captain of the Halcyon.There was great objection to my being put on board.  I said that if he was going to Hongkong I would go too, to watch his proceedings, and to obtain medical advice.  He said he wanted 50 Taels for the passage.  He made some remark to me whilst making these shipments, and said he knew what I was there for.He knew that I was going to repiort him to the Shanghai Custom House.  I never told him so.

Examined by Assessors. - The first shipment was taken from a Ningpo boat, and the second out of a sampan that came out of the second creek.  The Chinaman was in the first boat with the treasure, and after shipping the treasure he came on board the Rose and went on to the creek, where he landed and brought off the tea.

Examined by Mr. Cowie. - I had no authority to stop anything that was shipped.  I was put on board to watch the proceedings of the Rose.  It was impossible to refer the matter back to the Pluto or to stop the shipment.  They could not have seen from the entrance of Sin-yu-miou creek what the Rose was doing at the second creek.  On the 27th June when I followed her up the Sin-yu-miou creek, and she had the opium on board, she had an English ensign and Jardine Matheson & Co.'s house flag.  When she made these shipments she had no colours at all.  When she came in there she had no colours up.  I only noticed Jardine, Matheson & Co.'s flag that once - on that occasion the captain said she was a native boat.

The following exhibits, A., B., and C., were then put in evidence by the Plaintiff, and read:-

A.

Manifest of the boat Rose from the Yangtsze-kiang.

8 Boxes Tea

2 Boxes Silk piece goods

10 packages.

Yours &c.,

For JARDINE, MATHESON & Co.,

(Signed), F. O'CALLAGHAN.

 

B.

SHANGHAI, July 20th, 1861:

COMMISSIONER OF CUSTOMS, SHANGHAI.

DEAR SIR, - Please stamp the accompanying delivery order for the following goods ex boat Rose from the Yangtsze-kiang.

8 boxes Green Tea ....................Piculs 3.00

2 boxes Silk Piece Goods ...............  1.46

10.

Yours, &c., &c.,

For JARDINE, MATHESON & Co.,

(Signed) F. O'CALLAGHAN.

 

C.

SHANGHAI, July 30th, 1861.

THE COMMISSIONER OF CUSTOMS,

SIR, - Please grant memo: of Duty on the flowering goods received per boat Rose from Yangtsze-kiang.

8 Boxed Tea ................................Piculs 3.60

2 boxes Silk Piece Goods........................1.45

And oblige, Sir, yours truly,\

For JARDINE, MATHESON & Co.

(Signed), F. O'CALLAGHAN.

In concluding the case for the Plaintiff, Mr. Cowie begged to call the particular attention of the Court to the 3rd Art. Of the Yang-tsze Regulations, and 47th Art. of the Treaty of Tien-tsin.

Mr. WHITTALL, on behalf of the defendants, then stated that the Rose had been in the habit of trading at Sin-yu-miou for the last two years with the knowledge of the Chinese authorities, inasmuch as on several occasions letters had been taken to Sin-yu-miou for them.  She traded there with their sanction, by the fact of their having lent one gun to protect her, it being on board now.  About May last, as she was going up, the Master found a Steamer at anchor there, he was boarded and asked for his papers, and was told not to proceed as he had no pass.  He returned to Shanghai, obtained a river pass in the regular way at the Custom House, and returned again.  His papers were examined, and he was told that all was right, and he might go on, which he did to Sin-yu-miou, landed a cargo of opium, and returned.  No notice whatever was taken of this by the steamer at anchor there, except that it was in order.  On the second time he (the captain) was dispatched with cargo, opium, on which duty was paid at the Custom House.  This was about the middle of June.  He was then told after shewing his papers that he could not go up to Sin-yu-miou; he remonstrated, stating that he had exactly the same papers as before, and went on; but, seeing they were in earnest, he returned without breaking bulk.  He was again sent the third time, after remaining here about 10 days.  When he reported to the Shanghai Custom House, no remark was made to him about breaking the Treaty.  As a proof the Rose cleared in due form, without anything being said.  He went in ballast this third time to being back treasure.  When she approached the steamer, she was hailed and told she could not go up, and was made to anchor alongside the steamer. There she remained till her treasure was made ready and brought down to her.  No concealment was made, and the officer of the steamer was asked to see that she was in ballast.  On her leaving, an officer was put on board to watch her.  He (Mr. Whittall) believed a boat came off to her with 8 boxes of tea belonging to a Chinaman; she came down here, and all her cargo was reported to the Custom House.  He therefore maintained that the trading of the boat was with the sanction of the Authorities; in the second place that there was no breach of regulations, as their own evidence shows that she went to no port; but what she received she received outside, and he did not consider that as the regulations of the Yang-tsze had not been confirmed by the British Minister, the Chinese Authorities had any right to fine a British subject, or ship under them.

ROBERT DAVIDSON re-examined. - The Rose was alongside the Pluto 13 days this last time.  The master of the Pluto told her that she could not go up the creek.

JOHANN MATTHEWS, the Master of the "Rose" was then called and being duly sworn, stated: - The first time I went to Chin-kiang, I went to the Sin-yu-miou creek, and the Custom House schooner was there.  Her captain came on board my boat, hjis name was James.  He questioned me.  I told him I came from Shanghai, that I had opium, and that I had no river pass.  He said to us you have no pass you cannot go up to Sin-yu-miou.  He said you go to Shanghai and get a river pass, then shew it to me and you can go on.  I came back and got a pass.  I returned, and Capt. James asked for the pass, and I shewed it to him and he said all right, you can go to Sin-yu-miou and sell your opium.  I went to Sin-yu-miou and sold the cargo, and returned to Shanghai.  The next time I went, I got a new river pass, and I came to the Sin-yu-miou creek and saw the Pluto, whose captain came on board and asked where I came from and what was my cargo.  I said I was from Shanghai with a cargo of opium.  He asked for the river pass.  I shewed it to him with the grand chop, port clearance, &c., and the captain said that I could not go up the Sin-yu-miou creek.  I did go and reached Sin-yu-miou about 10 o'clock.  The same day a gig came from the Pluto and the first officer, Mr. Davidson, came on board.  He asked why I stayed there and told me I could not land cargo there.  I said I was allowed to come the first time, why not the second.  I went back then, and put nothing on shore.  At 2 o'clock in the morning I got back to the Pluto at Dai-gon-yin.  The mate who was on board my ship went back to the Pluto.  I came back to Shanghai.

I went up again the third time, the Pluto and the Halcyon were then at the creek.  I arrived at 7 o'clock in the morning, and the two captains came on board my boat.  I told them I was from Shanghai and had no cargo, and shewed all my papers and pass.  They did not wish to look at the boat, though I offered to let them do so.  I said I would stay there a few days, and not go to Sun-yu-miou.  I stopped 13 days there, and there were two watchers every night on board my boat to see I could not take any cargo.  I was preparing to start on the 13th day.  A Chinese boat came outside the creek and gave me treasure, and the mate of the Pluto came on board and asked me for a passage to Shanghai.  He said the captain wanted to send him as a passenger to Shanghai to see a doctor, as the engineer was very sick.  I said, "Very well, I don't know whether I shall go to Ningpo or Shanghai; you must pay 50 Taels for the passage."  After that, Captain James said, "No matter 50 Taels; the engineer is very sick, you take this man to Shanghai."  I afterwards took my treasure out of a Ningpo boat, below the Sin-yu-miou creek, and I went down the river.  My shroff said he would like to take a little cargo of 8 boxes of tea.  I said, "Very good, take it."  At 7 that night I started for Shanghai, and got back at 2 o'clock, a.m., two days after.

Examined by Consul. - The first time I had no pass and Captain James refused to let me pass.  The second time I had a pass and Captain James told me I might go up and sell my opium.  On my return down the creek I saw another captain on the schooner.  He said nothing about my not going up the creek.  When I returned the second time I cleared for Chin-kiang.  When I stayed 13 days by the Pluto, I was not told to go away, I was only asked how long I would stop.  The mate told me he was on board to watch my proceedings, at 2 o'clock on the night I arrived at Shanghai, and not before, he came on board and  said he wanted to come for medical advice; he saw the shipments made out but said nothing about them.  We are good friends at the mouth of the creek.  I never went on board the Custom House ships.  I never carried any letters to Sin-yu-miou. I have one gun on board my boat.  He lent me the gun to keep the pirates off.  He never gave me any letters.

Mr. WHITTALL here explained that the Master if the boat had nothing to do with the cargo or letters, the Shroff did that.

Witness cross-examined by Mr. Cowie. - The shroff belongs to the boat.  He told me to stop the tea.  My masters are Jardine, Matheson & Co.  I don't take any orders from the Shroff.  I am master of the boat.  The Pluto's officers never told me not to break the Regulations.

JAMES WHITTALL, being duly sworn, stated - On the first occasion the Rose cleared, thinking that Sin-yu-miou was inside the boundary of the Regulations, I applied personally to Mr. Fitzroy whether I could not clear the boat for Sin-yu-miou; his reply was No, because it was not a Treaty port.  I believe he, equally with myself, believed Sin-yu-miou to be inside the boundaries.  When she was cleared the first time I told the clerk in charge to try and clear for Sin-yu-miou, and when he returned he said that they would not do it, but he had told them she was going to Sin-yu-miou, as I wanted everything to be above board.

Examined by Consul. -  I gave these instructions to the clerk after I spoke to Mt. Fitzroy.  Mr. Fitzroy did not say I was not to go to Sin-yu-miou.  I believe he was under the impression that it was in Chin-kiang.

Cross-examined by Mr. Cowie. -  I had no sanction of the Chinese authorities on this especial occasion to go to Sin-yu-miou, but their giving letters and lending the Rose a gun amounted to an approval.  I never gave any order about the tea or silk that was coming.  I did not know it was coming.  The shroff had general authority to take up opium and bring back sycee.  He could also go to the best markets.  The Rose took letters several times when she was going to Sin-yu-miou.  Tai-kee gave me them and told me they were from the Mandarins.  They were about salt I believe.  I cannot say how many.  I have sent no letters since the Yang-tsze regulations came out.

MR. COWIE, addressing the Court, then replied. - That the defendants had set up in their defence the two following objections to the plaintiff's charge, viz:

1st. That their mode of trading was sanctioned by the Chinese Authorities, and

2nd. That the Provincial Regulations for Trade on the Yangtsze were not binding, so as to enforce a penalty thereunder, such regulations never having been confirmed by H.B.M.'s Superintendent of Trade, as required by the Order in Council of the 13th June, 1853, whereby it is provided, inter alia,

... "that no rule or regulation, to be hereafter made by any of Her Majesty's Consuls, and to be enforced by a penalty, shall take effect until it has been submitted to, and approved by the Chief Superintendent, and has thereupon been printed, and a copy of the same has been affixed and exhibited as (therein) aforesaid for one calendar month in the public office of the consular district."

Then in answer to the first objection he submitted that the sanction, if ever obtained, - and the evidence adduced did not prove such to have been the case, - it was merely from the local authorities at Sin-yu-miou, and not from the Chinese Government, and therefore of no effect.  No local authority had any power to alter in any possible manner either the Treaty of Tientsin or the Provincial regulations; in fact any such alteration or modification with regard to the Treaty could only be made with the mutual consent of the British and Chinese Governments, and with regard to the regulations only by H.B.M.'s Superintendent of Trade.  He then referred the Court to the Consular Notification of Mr. Meadows of the 18th March last, where it was expressly stated that "pending instructions from H.M.'s Envoy Extraordinary and Chief Superintendent of Trade, he is prepared, in so far as the action of this Consulate is concerned, to give full effect to the Provisional Regulations for British Trade on the Yangtsze River."

No instructions whatever to the contrary having yet been received from the Superintendent of Trade he was justified in asserting that such regulations had been, since their publication, and were at that moment still in full force.  That being the case, and it having been clearly proved on the undoubted testimony of two witnesses, whose evidence had not been shaken in any particular, that the defendants were chargeable with a breach of the 3rd Article of said regulations, which states that trading of any kind between this and Chin-kiang might be punished as provided by the 47th Article of the Treaty of Tientsin.  It was clear that the plaintiff was entitled to a judgment in his favour.

The case stood thus: - By the 47th Article of the Treaty and by the 3rd of the Regulations, vessels found trading at places between this and Chinkiang were together with their cargos rendered liable to confiscation.  Acts of illegal trading between these two Ports had been proved against the Rose. She was, therefore, with her cargo, liable to confiscation.  He observed that the master had been warned previously on more than one occasion, but disregarded same.  It became necessary then for the Chinese Government, who as had been before remarked, were most lenient in the matter, now to take active steps to repress the illegal trading complained of, and so act fairly to those who conformed to the Treaty and Regulations; otherwise they who did not conform to the Treaty, as in the present case, would have an undue advantage over those who did. Under these circumstances he claimed on behalf of his client, H.E. the Taoutae, a warrant to seize the Rose and her cargo forthwith.

The Court having been cleared for a consultation was, after a short interval, re-opened and the following sentence was read by the Consul:-

SENTENCE OF THE COURT.

That 1st, the fact of trading between Chin-kiang and Shanghai is proven, but that the act having been encouraged by the action of the Chinese Authorities on previous visits of the Rose to the same locality, and by the undecided action of the same Authorities when the breach of Treaty was committed, any penalty imposed should be a mitigated one.

That 2nd, any penalty imposeable for breach of the Yangtsze Regulations cannot be awarded, save under reference to H.M.'s Minister, as the 4th Article of the Order in Council of 13th ay of June, 1853, provides "that no penalty may be imposed on regulations made by H.M.'s Consuls, save under certain conditions which have not been fulfilled in regard to the Yang-tsze-kiang regulations.

And 3rd, that the defendants are not punishable under the 47th Art. of the Tientsin Treaty, as the visit of the Rose to Sin-yu-miou for trading purposes was warranted by the encouragement given by the Chinese Authorities and by the precedents established by themselves on other parts of the coast."

W. H. MEDHURST, Consul.

We assent to the above - WM. THORBURN, ROBT. REID, Assessors.

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