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Colonial Cases

Re Waters and Hurst, 1886

[corruption by consuls]

Re Waters and Hurst

Supreme Court for China and Japan
Rennie CJ, 27 October 1886
Source: North China Herald, 3 November 1886

LAW REPORTS.
H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 27th October 1886
Before Sir Richard T. Rennie, Kt., Chief Justice.
ALLEGED CONSPIRACY BY A BRITISH CONSUL AND A VICE-CONSUL.
  Mr. H. J. Robertson, lately a pilot at Foochow, appeared before his lordship in support of the following motion:-
IN HER BRITANNIC MAJESY'S SUPREME COURT AT SHANGHAI.
  Horatio John Robertson, resident in, and pilot for, the port of Foochow, moves this Honourable Court:-
- For an order that Thomas Waters, Her Britannic Majesty's Acting-Consul at Foochow, and R. W. Hurst, Her Britannic Majesty's Acting Vice-Consul at Pagoda Island, shall appear and show cause why a criminal information should not be granted against them for mal-administration of their office and for aiding and abetting Charles Hannere S. Parkhill and others in the Chinese Customs Service, conspiring under colour of their offices by divers false pretences against the form of the Statute in such cases made and provided to grievously injure and ruin me, Horatio John Robertson in my business.
- For the Supreme Court's injunction restraining all persons from interfering with my pilot business in anyway other than by due course of law.
- That my affidavit be read and considered by the Supreme Court in support of the same.
(Sd.) Horatio John Robertson.
  The motion was supported by the following affidavit, sworn by the applicant:-
IN HER BRITANNIC MAJESTY'S SUPREME COURT FOR CHINA AND JAPAN.
  I, Horatio John Robertson, resident in and Pilot for the port of Foochow,
  Do hereby solemnly, sincerely and truly affirm and state as follows:-
- That I passed an examination and received a pilot's license in the month of November, 1855, and have invariably given satisfaction to those who engaged my services in that capacity.
- That on the 20th day of September, 1881, I took out a license in the Chinese Pilotage Service.  But before doing so, I informed Consul C. A. Sinclair, Deputy Commissioner of Customs J. W. Carroll, and Harbour Master S. Parkhill that farther than strictly observing all lawful commands and instructions of the Customs Harbour Master as to berthing and mooring vessels I brought into port, I should not conform to the local Bye-laws that were so notoriously obnoxious to the foreign Shipmasters and pilots, Bye-laws not recognized in any other port in China,
- That on the 12th day of October, 1884, Harbour Master S. Parkhill informed me that unless I reported myself at his office when I brought a vessel in and again before leaving, he would punish me by stopping my working.  I refused to recognize his having any such authority.  Being a British subject, my person, property and business were subject only to the jurisdiction of H. B. Majesty and those duly authorized to exercise the same.  From that date I always informed those who engaged my services that I did not belong to the Chinese Pilotage Service.
- That several threatening letters were sent to me by the Harbour Master, the last dated the 11th November, 1884, in which he informed me that he had dismissed me from the Chinese Pilotage Service.  Being an old licensed pilot, I continued on with my business, and from the 11th day of November, 1884, to the 27th day of May, 1886, I piloted over eighty vessels without any direct interference from the foreign Customs officers or any notice from H.B.M.'s Consul that it was unlawful for me to ply with my pilot vessel and offer my services as pilot to those who required them, unless I belonged to the Chinese Pilotage Service.
- That on the 27th of May, 1886, Harbour Master S. Parkhill made on oath a criminal charge against R. H. Machugh, Master of the s.s. Ching-wo for that he had employed an unlicensed Pilot (myself) to pilot his vessel from sea to Pagoda Anchorage.  The charge was heard on the 27th day of May and dismissed, the only evidence produced was to the effect that I was a licensed pilot.
- That before the day of trial, I applied to Acting Consul Thomas Watters, to protect me from tis malicious slander which if persisted in would ruin my business.  In almost insulting manner H.M.s Acting Consul refused to interfere in the matter.
- That on the 2nd day of June 1886, H.B.M.'s Acting Consul Thomas Watters, did without any notice, hearing or trial, under the colour of his office, b gross abuse of Public Justice, maliciously and slanderously send the following notice to Acting Vice Consul R. W. Hurst to be sent to R. H. Machugh, Master of the s.s. Ching-wo:-
Mr. H. J. Robertson having been dismissed from the Chinese pilotage Service, and the dismissal having received my sanction, I cannot consider Mr. Robertson as a licensed pilot.
(Signed) T. Watters, H.M.'s Consul.
True copy, (signed) R. W. Hurst.
- That Acting Vice0Consul R. W. Hurst in gross neglect of the obligations imposed on him under the colour of office and abuse of Public Justice sent the following official letter with Acting Consul Watters notice to R. H. Mchugh, Master of the s.s. Ching-wo.
Pagoda Island, 3rd June, 1886, No. 38.
  Sir, - I beg to enclose certified copy of a notification received from H.M.'s consul at Foochow and trust that under the circumstances you will see fit to employ some other person to pilot your vessel out from this port.
I am, &c., (Signed) R. W. Hurst,
Acting Vice Consul.
Captain Mchugh, &,&., S.s. Ching-wo.
- That the actions of the Foreign Customs Officers and these of H.B.M.'s Acting Consul, Thomas Watters, and Vice-Consul R. W. Hurst manifestly prove that I have been slandered by colour of illegal activity, made to suffer great anxiety of mind, and great loss in my business and property, and deprived of the means of earning an honest living for my family at the risk of my own life and property.
10. - That if it were unlawful for me to offer my services as a pilot to those who required them unless I belonged to the Chinese Pilotage Service, H.B.M.s Acting Consul and Foreign Customs officers had it always in their power to stop me by due course of law, and by that course only, not by slander, intimidation and conspiracy as herein set forth.
11. - That I am debarred and refused all redress in H.B.M.'s Court at Foochow for the grievous injuries I have suffered and continue to suffer, I am therefore compelled to apply to this Supreme Court for the redress that the serious nature of my case calls for, and for the Supreme Court's protection against further injuries of a like nature.
(Signed) Horatio John Robertson.
Affirmed at Shanghai the 27th day of October, 1886, (Signed) R. T. Rennie,
  The Applicant having addressed the Court in support of the motion,
  His Lordship said - Well, this is an application made to the court for the exercise of an extraordinary jurisdiction, which of course, must have good grounds shown for it; and no doubt if the affidavit here had shown that H.B.M.'s Consul at Fochow and the Consul at Pagoda Anchorage had committed any illegal acts, I should have been ready to entertain the application and to grant a Rule to show cause why this information should not issue against them.  
  But what I have to look at are the material facts as set forth in the affidavit, which I must take for the moment as true, as they are not contradicted.  And looking at these statements, what do I find advanced? I find that the applicant, being a pilot - and no doubt a very proper person, from his qualifications, to act as pilot - on the 21st day of September took out a license in the Chinese pilotage service; and he says:- "Before doing so I informed Consul C. A. Sinclair, Deputy Commissioner of Customs J. W. Carroll, and Harbour Master S. Parkhill that .   .   .   I should not conform to the local Bye-laws."
  There you have the fact that the applicant considers it necessary for his own interest, and in accordance with the regulations, to take out a license and he does so, and at once proceeds to defy the local authorities. Then he goes on to state that he was subsequently informed by the Harbour Master that unless he reported himself at the Harbour Master's office when he brought a vessel in, he (the Harbour Master) would punish him by stopping his work. The applicant was thus warned, and after other warnings in the shape of what he calls threatening letters, he was informed by the Harbour Master that he was dismissed from the pilotage service.  He continued to act in defiance of the authorities, and finally a notice was sent which is the libel complained of, and which I noticed in the affidavit.  It is to the effect that:
'MR. H. J. Robertson having been dismissed from the Chinese pilotage service, and this dismissal having received my sanction, I cannot consider Mr. Robertson as a licensed pilot."
Then that is announced again in the notification sent by Mr. Hurst to the Captain of the steamer, in which he says:
  "I beg to enclose copy of a notification received from H.M.'s Consul at Foochow, and trust that under the circumstances you will see for to employ some other persons to pilot your vessel out from this port."
  Now those two letters, the applicant says, are evidence of conspiracy and slander. It seems to me that they are a simple and accurate statements of facts, as shown and admitted by the applicant himself.  How, then, I can be induced to treat these gentlemen, the Consul and Vice-Consul, as on par with a magistrate who commits illegal acts from corrupt motives, it is difficult for me to understand.  
  The difficulty had arisen from the applicant, when taking out a license in the Chinese pilotage service, having refused to obey the rules of the service, and having set the authorities at defiance - not only the Chinese authorities, but, I apprehend, from what he has himself stated, Her Majesty's Consul as well.  It is not for me at this period to enter into the question of whether the consul was right or wrong in affixing his name to the Bye-laws.  This have not been put in or proved, and the applicant, in his affidavit, has not raised the question of their validity or otherwise; I do not know how they have been passed or altered, and I am bound to presume in the first instance that the Consul has properly sanctioned them.  I know that the H.M.s Minister at Peking, under powers vested in him, has sanctioned certain general pilotage regulations in China, which have moreover received the sanction of Her Majesty by an Order in Council which she has made, confirming these amongst other regulations. I have every reason to believe that they have the force of English law, and I cannot at the moment see that anything has been done wrongfully by the Consul in regard to this matter.  It may be that these by-laws are not in all respects valid, and that no proper sanction has been given to them and that they have not the force of law.  That is a question which I cannot go into; but it is clear to me on the facts before me that the applicant is not entitled to the rule nisi for which he asks, and that no case whatever of conspiracy or slander has been made out in regard to the subject matter of the application.
  The Applicant - Then you refuse to grant me any protection of redress?
  His Lordship - I dismiss your motion, Mr. Robertson.
  The Applicant - Well, I didn't hear half of what you said, so I suppose I must put it down by guess work.

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