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Colonial Cases

Re Crossett, 1882

[habeas corpus]

Re Crossett

United States Consular Court, Shanghai

Denny, 9 August 1882

Source: North China Herald, 11 August 1882

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, 9th August 1882

Before O. N. DENNY, Esq., Consul-General, Acting Judicially.

  His Honour gave judgment on an application for a writ of habeas corpus by J. F. Crossett, a former missionary.  The pleadings, which were entirely documentary, read as follows:-

IN THE MATTER OF THE APPLICATION OF J. F. CROSSETT FOR WRIT OF HABEAS CORPUS.

  The petition of J. F. Crossett shows that he is a citizen of the United States, of the age of 37 years, and a resident of China.  That he is unlawfully restrained in his liberty of Geo. Adam Shufeldt, United States Marshal of the Consular Court at Shanghai.

  That the said restraint is illegal, and that the illegality thereof consists in this, that the petitioner arrived here from the United States in the month of June last to engage in some kind of labour, and to prosecute his Chinese studies.

  That he had only been in said city about eleven days, when, on or about the 1st day of July last, he was arrested by the Chinese authorities acting, as the petitioner is informed and believes, under the instruction of Chester Holcombe, Esq., then in charge of the United States Legation at Peking as Secretary and Interpreter, and taken to Tientsin, and there delivered into the custody of the United States Consul, who, without informing him of the cause of his arrest, placed him on board one of the C.M.S.N. Co.'s steamers in charge of the Captain to be taken to the United States Consul General upon arrival in Shanghai.

  That the petitioner is informed, and believes the said consul was also acting under instructions from the said Chester Holcombe, Secretary and Interpreter as aforesaid.

  That he has not been accused of any crime, neither has he been informed of the reason for this unlawful conduct of the said officials against him.

  That the petitioner prays that a writ of Habeas Corpus may be granted directed to the said Geo. Adam Shufeldt, Marshal, as aforesaid, commanding him to have the body of the petitioner before the Court at a time and place to go and received what shall then and there be considered concerning the petitioner, together with the said writ, to the end that the petitioner may be restored to his liberty.

Subscribed and sworn to, etc.

(Signed) J. F. CROSSETT.

  Whereupon the following order was entered:-

  Upon reading and filing the petition of J. F. Crossett, duly signed and verified by him, whereby it appears that he is illegally restrained of his liberty by Geo. Adam Shufeldt, United States Marshal for the Consular Court for the District of Shanghai, Empire of China, and stating wherein the illegality consists, from which it appears that a writ of Habeas Corpus ought to issue.  It is therefore ordered that a writ of Habeas Corpus issue out of and under the seal of this Consular Court, directed to the said Geo. Adam Shufeldt, United States Marshal for the Consular Court at Shanghai, commanding him to have the body of the said J. F. Crossett before me in the Court room of the said Consular Court on the 25th  day of July, 1882, at the hour of 10 a.m. of that day to do and receive that shall then and there be considered concerning the ds aid J. F. Crossett, together with the time and cause of his detention, and that he have then and there the  said writ.

(Signed) O. N. DENNY U.S. Consul General, Acting Judicially.

Dated, July 24th, 1882

  The following is the writ:-

  To George Adam Shufeldt, Marshal for the United States Consular Court of the District of Shanghai, Empire of China.

  In the name of the United States of America,

  I command you that you have the body of J. F. Crossett by you detained and restrained of his liberty as he alleged, together with the time and cause of such detention and restraint by whatsoever name the said J. F. Crossett shall be called before O. N. Deny, United States Consul General, Acting Judicially, at the Court Room of said Consulate in Shanghai on the 25th day of July, 1882, at the hour of 10 a.m. of  said day, to do and receive what shall then and there be considered concerning the said J. F. Crossett, and have you then and there this  writ.

Whereas my hand and official seal this 24th day of July, A.D. 1882

(Signed) O. N. Denny, U.S. Consul-General, Acting Judicially.

 At the time and place named in the writ the U.S. Marshal comes and filed the answer:-

To O. N. DENNY, U.S. Consul General, Acting Judicially.

  I, George Adam Shufeldt, Unite States Marshal for the Consular Court at Shanghai, in obedience to the order made by your Honour on the 24th instant, wherein I was commanded to have the body of J. F. Crossett now in my custody at the U.S. Consular Court Room in Shanghai on the 25th day of July, 1882, at the hour of 10 a.m. of said day, together with the time and cause of such detention, make answer that the said J. F. Crossett ids now present in Court. That he came into my custody on or about the 20th instant.

  That the cause of such detention is by reason of the instructions received through the United Stated Consulate General at Shanghai, from Chester Holcombe, Esquire, Secretary and Interpreter in charge of the United States Legation of Peking, dated 13th July, 1882, a copy of which is hereto attached and made a part hereof.

I also attach and make part of this answer as relating to the cause of detention, a copy of a medical certificate signed by Drs. Kenneth MacKenzie and Andrew Irwin, of Tientsin, transmitted in a dispatch from the U.S. Consul st that port to your Honour as United States Consul-General, all of which is submitted in justification of my action in retaining the said J. F. Crossett of his liberty.

(Signed) GEORGE ADAM SHUFELDT, U.S. Marshal.

Shanghai, July 25th, 1882.

(No. 17.) Legation of the United States, Peking, July 13th, 1882.

O.N. DENNY, Esq., United States Consul General, Shanghai.

  SIR,

          Acting under advice from this Legation, Mr. Consul Zuck is sending to Shanghai for delivery into your charge the person of the Rev. J. Fisher Crossett, an American citizen, who is a lunatic.  Mr. Zuck will advise you of the despatch of Mr. Crossett and will furnish you with a medical certificate as to his mental condition.

  Mr. Crossett was formerly a missionary at Chi-nan-fu, lost his reason there in 1878-9, and at my suggestion was sent to the United States, by the Society under which he laboured, in the Spring of 1879.  He has recently returned to Shantung, having worked his passage out to  China via Europe, as a deck hand in steamships, and has been roving about Shantung half naked and destitute, in the guise of a Chinese beggar.  He was arrested by the Chinese authorities of Ch-nan-fu at my request and sent to our Consul at Tientsin.  Mr. Zuck has been requested to send him to you.  And I beg you to see that he us taken charge of by the Marshal of the Consulate General upon arrival at Shanghai, and placed under proper restraint while arrangements are being made for his transportation to the United States.  As he has a wife in New York or Connecticut, it will be best to send him as a second cabin or steerage passenger direct to New York by one of the tea steamers going via  Suez.  This will also be of less expense to the Government than his passage via San Francisco.

  Will you please make arrangements for his transportation as indicated above with as little delay as possible. You will be able to judge whether it is necessary to send any person in charge of Mr. Crossett.  His insanity is of a quiet and harmless type, and the only care needed on the voyage will be to see that he does not leave the vessel at an intermediate port.  Under these circumstances you could perhaps arrange to put him in charge of one of the ship's officers, who, for a moderate compensation, would see that he remained on board.  The point is, however, left entirely to your discretion.  If you will be so god as to forward vouchers in triplicate to this Legation for all expenses incurred in this business, a check in payment will be sent you at once.  I am, &c.

(Signed) Chester Holcombe.

U.S. Consulate, Tientsin, 15 July 1882.

  We, the undersigned Physicians pursuant to instructions received from Honourable Jas.  C. Zuck, U.S. Consul at Tientsin, do hereby certify and declare that we have made a thorough and complete examination into the mental condition of the Reverend J. Fisher Crossett, an American citizen, and have arrived from such examination at the following conclusion.

  That the above-mentioned J. Fisher Crossett, judging from his present bodily and mental condition and past history, is not a fit and proper person to be travelling alone in the interior of China, and we believe his mental state to be such that he needs and will need for some time constant supervision to prevent him doing serious injury to his health.

(Signed) J. Kenneth Mackenzie, M.R.C.S, L.R.O.P.,

(Signed) Andrew Irwin, Surgeon and Physician.

  To which the petitioner replied as follows:-

  To O. N. DENNY, U.S. Consul-General, Acting Judicially.

  I, J. F. Crossett in reply to the answer of Mr. George Adam Shufeldt, U.S. Marshal for the Consular District of Shanghai, admit that I was formerly a Missionary in Tai-nan Fu, Shantung Province, China, but deny that I lost my reason in 1878-9, but admit that in the winter and spring months of 1879 I was broken down in health, and that while on a visit at Peking, was pronounced unsound in mind by the medical missionaries and afterwards at Tientsin by another.  I admit that, by compulsion, I was sent from Peking to Shanghai, but deny that, after reaching Shanghai, any person or persons exercised or attempted to exercise any control or restraint upon my person, until my return to Tai-nan Fu in June of the present year.

  Having been joined by my wife in Shanghai, I consented to a visit to friends in the United States, after an absence of eight and a half years. I resigned soon after all connection with the Missionary Society¬ł and worked for my support.  In January of the present year, having so far recovered health that several physicians wrote certificates to assure my  family friends that I could travel back to China via a proposed tour through Europe and Palestine with no detriment to it, my brother and sister at their own suggestion  and wish furnished me ample funds to return to my homer in China, my wife cheerfully concurring in the arrangement that I should proceed to China by the longer route, and that after I had provided a way for the support of us both that she would cross the Pacific alone, as she had done twice before, and join  me here.

 I admit that I worked on the steamers, as I had a right to do, and thereby gained much health in the exercise, and by diminishing the cost of passage in two cases saved money for other uses.

  I deny the charge of roving about Shantung province half naked and destitute, but admit to having walked from Chefoo to Tai-nan-fu, along the great highways, in Chinese costume, carrying silver sufficient for travelling and living expenses for many months.  In regard to the charge of lunacy, I deny it, and have to say that, as my petition states, I was arrested in Tain-nan-fu and taken to Tientsin where I was kept a week and then sent to Shanghai, all under arbitrary orders from Chester Holcombe, Esq., Interpreter and Secretary in charge of affairs at the U.S. Legation at Peking, without being examined before him, and without being shown any cause for the detention of my person by those claiming to act under his instructions.

  I admit that while at Tientsin a Physician called upon me, in company with the U.S. Consul, and  engaged me in conversation for some time; and that on another day I was called upon by one who addressed me with a few remarks and shortly left, but not until I reached the Consulate at Shanghai did any cause appear for my being taken in custody.

(Signed) J. F. Crossett.

  The matter now beng at issue Drs. Neil Macleod, James Johnson and Edward Henderson, Doctors of Medicine in active practice in Shanghai, are appointed to examine the said petitioner upon the charge of being a lunatic, who after being duly notified enter upon the duties assigned them, and after having made such examination, and being fully advised thereon report as follows:-   

  We, the undersigned, Edward Henderson, James Johnson and Neil Macleod, all Doctors of Medicine of the University of Edinburgh and being in actual practice as physicians in Shanghai, having been appointed by O. N. Denny, Esq., Consul General of the United States of America at Shanghai, to examine J. Fisher Crossett, who is charged with being a lunatic, hereby certify that we have examined him conjointly at the United States Consulate General, before the Consul General, on the 26th day of July, and independently of each other, at number eighteen Peking Road, Shanghai. On the 28th day of July and that we ourselves have not observed any facts indicating that he is a lunatic, and that no such facts have been communicated to us by others, under examination, either verbally or in the following documents set forth in the answer of Mr. Shufeldt, United States Marshal, viz, the certificate of Doctors Mackenzie and Irwin of Tientsin, and the despatch of Chester Holcombe, Esq., Charge d'Affairs of the United States Legation at Peking.

(Signed) Edward Henderson, M.D.

(Signed) James Johnson, M.D.

(Signed) N. Macleod, M.D.

Dated this twenty-ninth day of July, eighteen hundred eighty two.


 

JUDGMENT.

  The petitioner was present in Court during the delivery of the judgment.

  His Honour delivered judgment as follows:

  The report submitted by Drs. Macleod, Johnson, and Henderson, physicians appointed to examine into the mental condition of J. F. Crossett the petitioner, clearly entitles him to his discharge, as they state that they are unable after a careful examination to discover any facts from any source whatever indicating that he is a maniac.  The only statements in support of the charge are made by the Hon. Chester Holcombe, U.S. Charge d'Affairs at Peking.  These are not only unsupported by any facts but they are controverted by the reply of the petitioner, which he drafted himself.  Mr. Holcombe says in his dispatch that the petitioner was arrested by the Chinese authorities at Chi-nan-fu upon his request and taken to Tientsin.  It does not appear quite clear, however, where the Acting Minister gets his authority for such a proceeding, as the jurisdiction of the Minister both civilly and criminally is only applicable, except in certain cases.  Section 4107 of the Revised Statutes, 2nd edition, reads:

The jurisdiction of such Ministers (in China and Japan) in all matters of civil redress or of crimes except in capital cases for murder or insurrection against the government of such countries, respectively, or for offences against the public peace amounting to felony under the laws of the Unite States shall be appellate only; provided that in cases where a Consular officer is interested, either as party or witness such Minister shall have original jurisdiction.

 But suppose by reason of the situation the Minister is justified in exercising the jurisdiction assumed, it was the petitioner's right to be taken before the author of his arrest in order that he might be heard in his own behalf.  Not only was this not done, but he was arrested, and taken a distance of 250 miles, without ever having been informed of the nature of the accusation against him, or given a reason for his arrest.  Had this been done and the facts and circumstances been thoroughly gone into, this proceeding would in all probability never have been instituted.  But the Acting Minister seems to have concluded that as the petitioner was treated as a lunatic three years ago, he should be treated as one now.  At all events his action does not appear to be based upon any facts presented.  Even the certificates of Des. Mackenzie and Irwin of Tientsin, referred to by Mr. Holcombe, and which is dated two days after his dispatch to this Consulate, does not state that the petitioner is a lunatic.  Besides the conservative view expressed therein is also unsupported by any facts elicited upon the examination.

  But admit the judgment expressed by Drs. Irwin and Mackenzie to be supported by evidence, there is nothing in it to warrant the deportation of the petitioner on the ground that he is insane or by reason of insanity he is dangerous to be at large.  The certificate says:

Judging from J. Fisher Crossett's present bodily and mental condition and past history he is not a fit and proper person to be travelling alone in the interior of China, and we believe his mental state to be such that he needs and will need for some time constant supervision to prevent him doing  serious injury to his health.

 In passing I desire to refer to the very intimate relations which the U.S. Diplomatic and Consular service in China holds to the judicial procedure in the same jurisdiction.  As instance, whatever action was taken by me in the petitioner's case prior to the issuance of the writ of Habeas Corpus, was of a ministerial nature in obedience to instructions from the Legation at Peking, but when a prisoner is brought before a Consul in China as Judge, his judicial discretion and accountability commences, and he acts under no other responsibility except to his government than that which belongs to the exercise of ordinary judicial power, and in such as case as the one under consideration if upon examination of the returns, papers, &c., submitted there appears to be no valid or legal cause for continuing the imprisonment or restraint, the prisoner must be discharged from custody.

  Every American citizen illegally arrested or where no offense can be brought home to him, is entitled to his discharge.  So also every person accused of crime or placed under arrest has a right at the time to know and should be informed of the particular offense with which he stands charged.

 

Source: North China Herald, 11 August 1882

THE CASE OF MR. CROSSETT.

THE action of Mr. Chester Holcombe, when United States Charge d'Affaires, in arresting the Rev. J. F. Crossett on a charge of lunacy and vagrancy, appears to have been both a little premature and a little arbitrary.  It is perfectly well known that, some years ago, the solitariness of Mr. Crossett's life in the interior and the monotonous nature of his labours as a missionary had an injurious effect upon his health, and even unhinged his mind for the time being.  By the firm and timely interference of his brother missionaries in Tientsin he was brought down to Shanghai, at the expense of no small trouble, and eventually shipped back to the United States.  Becoming subsequently much restored both in body and mind, he returned to China, and is said to have been travelling since in the province of Shantung, the scene of his former labours.  While at Chi-nan Fu, however, he was arrested by the Chinese authorities at the request of Mr. Holcombe, and afterwards sent on to Shanghai.  It appears from the evidence that Mr. Crossett had money to pay his way, and the reply he drafted to the warrant for his arrest certainly shows no indications of mental unsoundness on the part of the writer.  He denies the charge of having roved through Shantung half naked and destitute, and says that his return to China was undertaken with the full approval and consent of his wife and other relatives.  Now there is no doubt that in ordering Mr. Crossett's arrest the United States Charge was acting with the best intentions. He knew that the missionary had been sent home three or four years preciously in a very unsound state of mind, and when he heard that the same man was back in China, wandering about the interior in ragged Chinese clothes and without any visible means of subsistence he not unnaturally considered himself bound to stop the thing at once.

  Of course it would never do for half-witted and destitute persons to be allowed to roam throughout the country, exposed to the many dangers which may at any moment threaten a foreigner under such circumstances.  But it seems to us that Mr. Holcombe acted a little precipitately, nevertheless.  The arrest of Mr. Crossett was made at his instance, not, as appears, by the Chinese authorities acting on their own responsibility.  Mr. Crossett was arrested suddenly, taken to Tientsin, kept there a week, and then sent down to Shanghai.  No opportunity was given him to plead his own cause before the officer who had ordered his arrest.   Mr. Holcombe never saw him at all.  On the contrary, he was carried a distance of 250 miles against his own will, having committed no breach of the peace, and without even being informed of the nature of the accusation brought against him.  "Had this been done," remarks Judge Denny, "and the facts and circumstances had been thoroughly gone into, this proceeding would in all probability never have been instituted. But the Acting Minister (Mr. Holcombe) seems to have concluded that as the petitioner was treated as a lunatic three years ago, he should be treated as one now."

 The verdict of Drs. Henderson, Johnston and Macleod, unfortunately for Mr. Holcombe, does not bear him out in the course he had adopted.  These gentlemen say that having examined Mr. Crossett independently and conjointly they have not observed any facts indicating that he is a lunatic; and this they say with full knowledge of the certificate drawn up and signed by Drs. Irwin and Mackenzie of Tientsin.  Even that document went no further than saying that Mr. Crossett is not a fit and proper person to be travelling alone in the interior of China, and that his mental state is such as to require constant supervision to prevent him doing serious injury to his health.  This expression of opinion would certainly justify "supervision: and "care" on the part of his friends, but it cannot be held to justify a forcible arrest, without a word of explanation, or any opportunity of self-defence.  Indeed, no such pretension can be put forward, seeing that the medical examination at Tientsin was held after the arrest of Mr. Crossett at Chi-nan Fu.  On what ground, then, was the arrest itself made?  On whose evidence, and by what authority? We do not think that these questions admit of satisfactory replies.  Every credit should be given to Mr. Holcombe for the excellence of his intentions, but we fear that he has laid himself open to the charge of having acted unconstitutionally.

  He has, however, been saved from the consequences of his rashness by the more cautious policy of Mr. Denny, who, instead of obeying Mr. Holcombe's orders to ship Mr. Crossett back to the United States without delay, has dealt with the affair judicially, and arrived at an independent conclusion adverse to that of the Charge d'Affaires at Peking.

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