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Colonial Cases

The Kwangtung 1875


The Kwangtung, 1875

Selected, edited and transcribed by Douglas Clark, barrister, Hong Kong



 In the matter of a suit heard in HBM's Consulate at Foochow, before a Mixed Court composed of HM's Consul, Charles A Sinclair Esq 
in conjunction with Pan Tau Tai 
"The Kwangtung" Case 
Before  Sir Edmund Hornby, Judge 
Date:   10 February 1875 
Mr Wainewright for the Applicant 
Original Report:  North China Herald and Supreme Court and Consular Gazette, February 11, 1875, p129 

The suit arose in consequence of a collision at sea between the steamship Kwangtung and the Chinese junk, Kui-tsai-fay, whereby the junk and her cargo were lost, the crew being saved by the steamer. The captain and owner of the junk sued the captain of the steamer as agent for the owners, to recover the value of his vessel and cargo, and obtained a judgment from a mixed court made up of the British Consul in Foochow and the Tautai.  The mixed court had been established under Article 17 of the Treaty of Tientsin. 
The applicant moved for an order declaring the judgment of the above-mentioned Mixed Court, and the order made thereon, dated the lst day of December, 1874, to be null and void, and either directing H.B.M.'s Consul at Foochow to rehear the said suit, sitting with Assessors, as a Provincial Court, in accordance with the provisions of the China and Japan Order in Council (1865), or directing that the said suit be removed for hearing into this Court. 
Article 17 of the Treaty of Tientsin provides as follows: 
"A British subject having reason to complain of a Chinese, must proceed to the Consulate, and state his grievance. The Consul will inquire into the merits of the case, and do his utmost to arrange it amicably. In like manner if a Chinese have reason to complain of a British subject, the Consul shall no less listen to his complaint, and endeavour to settle it in a friendly manner. If disputes take place of such a nature that the Consul cannot arrange them amicably, then he shall request the assistance of the Chinese authorities, that they may together examine into the merits of the case, and decide it equitably." 
Sir Edmund Hornby: 
I must refuse this rule. I do not entertain, and never have entertained, the slightest doubt on the subject of the right of Chinese litigants to invoke 17th clause of the Treaty of Tientsin, and insist on any matters of difference between them and British subjects being decided in accordance with such clause. 
It is true that Chinese are often - for reasons best known to themselves - willing to abide by the decision of this Court. They come into it voluntarily, but I have often seen them and explained to them that they can go and lay their case before the Consul, who will call on the Tautai to decide it under the Treaty. As I have said, they have often refused, and expressed themselves contented to abide by the decision of this Court; and when, as has generally been the case, they have done so, I have then put them on the footing of other Foreigners under the 3rd Sect. of the Order.  But I look on this section as permissive only. If Chinese choose to come into this Court, they may avail themselves of all the advantages of other Foreigners, or by submitting to its jurisdiction rise to the privileges of British subjects. But there I stop. I do not in any way consider that that clause puts them in the same position as Foreigners whether they will or not, simply because the Queen has no power and no authority to put them in that position. 
It is the Treaty which she has made with China that regulates their position, and in cases of differences arising between them and British subjects it is to the Treaty that they and Consuls must look, and by no act of domestic law can Her Majesty alter or modify an act of public law, which a Treaty undoubtedly is as between the parties to it. She has by the Treaty in question agreed with the Sovereign of China that all questions or matters in difference shall be settled by the Consul and the Chinese authorities. The Treaty has in fact, created a Court or tribunal (although neither appellation is used), by which such differences are to be settled; and if, as is contended by Mr. Wainewright, Her Majesty has by her Order in Council changed this, the Emperor of China being no party to such change, she has exceeded her power - the clause in the Order in Council is ultra vires and is simply nugatory. But I do not think Her Majesty has done this. I think the Order in Council does not contemplate any change in the Treaty stipulations. You say that Chinese are to be considered as Foreigners, but that only means, that when they come voluntarily into an English Court the provisions of the Order in Council applicable to Foreigners are to be made applicable to them. 
In the present case, I think, the Consul at Foochow has complied with the Treaty, and therefore his action is right.  A Chinaman had a complaint against a British subject; the Consul failed in settling it, and invoked the assistance of the local authorities. That assistance was rendered, and after an examination was made into the merits of the case by the Consul and the Tautai, a decision was come to against the British subject. I hope that decision was an equitable one. I have no reason to doubt it. I cannot review that decision, it was not given under the Order in Council, but under the Treaty, and from the clause in the Treaty there is no appeal to this or any other Court. I conceive I am bound to give an interpretation to the Order in Council which will not conflict with or render nugatory the provisions, quoad the Chinese, of the more authoritative document-namely, the Treaty.  To do so would be to deny justice to the Chinese. 
If I was to look at the defendant's protest, or attach any weight to it, the result would be to send the Chinaman whose junk had been run down, as he reports, in the China Seas, to a British Colony - to a place, the law of which he is ignorant of, and of the language of which he is also ignorant. The accident took place on the coast of China, and he is entitled to go before the British Consul, file his claim, and finally insist upon an adjudication of it under the terms of Treaty. The Consul, it appears to me, is bound to give effect to the Treaty - bound to carry out, so far as he can, its provisions, and in this case he appears to have done so-and having done so, there is no ground or pretence for my interference. 
The rule must be refused. 



Source: The North China Herald, 4 March 1875


The Daily Press regrets Sir Edmund Hornby's recent decision, upholding the constitution of the Foochow Mixed Court, is likely to prove very inconvenient.

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