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Colonial Cases

Tong Mow-chee v. Howard, 1886

[opium - jurisdiction]

Tong Mow-chee v. Howard

United States Consular Court, Shanghai
Kennedy, 23 August 1886
Source: North China Herald, 27 August 1886

Shanghai, 23rd Aug., 1886
Before George Kennedy, U.S. Consul General, Acting Judicially; and
Capt. J. P. Roberts, Mr. W. R. Eastlack, Assessors.
  This was a claim for $1,000 damages in respect to al alleged illegal detention of opium the plaintiffs being members of the Lekin Farm and the defendant an Inspector of the Shanghai Municipal Police.
  The only question now before the Court, however, was as to the nationality of the defendant, his answer stating, first that he was not an American citizen and consequently was not within the jurisdiction of this Court, and, secondly, that the plaintiffs were debarred from proceeding against him in this Court by the fact that a case was pending in H.B.M.'s Supreme court, in which the same plaintiffs  were the plaintiffs, the same defendant was a defendant, and the subject of the suit was precisely the same.
  Mr. Drummond and Mr. Wainewright had been retained for the plaintiffs, but in the absence of the former from Shanghai Mr. Wainewright conducted the case.  Mr. A. Robinson appeared for the defence.
  Mr. Robinson said that inasmuch as the burden of proof that he was not an American citizen rested upon the defendant, it had been agreed that he should commence.
  The Consul-General intimated that he had a very decided opinion with regard to the second part of the defence, and he thought Mr. Robinson had better at present confine himself to the first.  He did not see how it could be argued that the fact that a case between the same parties on the same matter was pending in the British Court could affect this Court.  However, he would be interested to hear Mr. Robinson's arguments.
  Mr. Robinson then proceeded to open his case.  He admitted that the defendant had once applied for registration at the American Consulate-General, but said the defendant would explain his reasons for that.  He then summarised the evidence afterwards given by the defendant, and quoted a regulation framed by Minister Burlingham, dated the 22nd April, 1884, requiring all U.S. citizens to be registered, and that they should make an oath or produce a passport or other paper to prove themselves American citizens.  The defendant had made no oath and had produced no passport or other proof.  He admitted that the Regulation was not included in the revised Regulations now in use at the Court, but contended that it had never been repealed and was still in force.  Mr. Robinson also quoted an Act of Congress to a similar effect.
  George Howard, the defendant, sworn, said - I am an Inspector of the Shanghai Police Force; I joined the Force on the 11th September, 1878.  I then described myself as a British subject.  I was born in Limerick, Ireland, on the 25th December, 1847.  My father was English and my mother Irish; both are dead.  I left Limerick with my brother when I was between 5 and 6, and went to Edinburgh, where I remained till I was about fourteen. I then went to sea in a small brig, from Leith.  I have served on board English and American vessels.  I was at sea, off and on, between 1860 and 1878 - mostly at sea.  I came to Shanghai in 1878.  As far as Hongkong I came on an American barque, called the Benefactor.  I was described in the Articles as of Limerick.  I came up to Shanghai shortly afterwards in the French Mail.  I never applied for or obtained letters pf naturalization in America.
  In 1882 I came to the U.S. Consulate to apply to be registered as an American Citizen.  I saw Mr. Cheshire and Mr. Shufeldt.  I told Mr. Cheshire I wished to be registered as an American citizen.  Inspector Eveleigh was with me.  Mr. Cheshire asked me for my papers.  He knew me personally very well, as he was an Assessor at the Mixed Court.  I Said I had no papers, but I had been a number of years on and off in America, and in American ships. I have no papers to show that I am an American citizen, either here or elsewhere.  He told me I had better see Mr. Shufeldt.  I did so, and told him the same - that I wished to be registered as an American citizen.  He asked me my name, and where I lived in the States - nothing else that I remember.  I told him my name, and that I had lived in New York.  I have been to New York probably thirty or forty times.  The longest time I ever resided there was between two and three months - only once so long. After that Mr. Shufeldt wrote my name in a book, and I asked him what was the next step for me to take, and if there was no certificate, and he said, "No, not at present; it is not necessary." I took no oath.  Since that time I have never received any communication from the American Consulate about my citizenship; I was always under the impression that I was not recognized there.  I have never been called upon to act as an associate, or to do any act of American citizenship.  I have never since claimed citizenship of the United States.  I saw the notice issued by Mr. Smithers this year, calling on American citizens to register themselves.  After seeing that, I called at the Consulate, with Mr. Eveleigh.  My object was to find out if I was recognized as an American citizen. I saw Mr. Shufeldt, on the landing; I did not go into his office. I asked him, "What about this registration business - his notification in the paper?" He said, "There is quite a new system now, since you put your name down.  You will have to see Mr. Smithers." I did not see Mr. Smithers then, and I did not go again, as I knew very well he would ask to see my papers, and it was no use my going.  I am registered as a British subject; I registered on the 10th July.  I received a certificate to that effect.
  The Consul General asked if any proofs of British nationality were required at the British Consulate before a certificate was given, or any enquiries made.
  Mr. Robinson replied in the affirmative, and Mr. Wainewright in the negative.
  The Consul General said if the certificate were relied on as proving nationality he should require documentary evidence or the evidence of some one in the British Consulate, as to what enquiries were made, or what proofs of nationality were obtained before the certificate was granted.
  Mr. Robinson said he did not rely on the certificate as proving that the defendant was a British subject.  However, he would endeavor to procure the evidence required if necessary.
  The Defendant continued - In 1881 I was defendant in a suit in H.B.M.'s Supreme Court. It was the Ince Foreshore case - Ince v. Penfold and others.  I do not remember whether I was served with a copy of the petition, but no doubt I must have been.  I received the decree, which I produce.  A petition has been served upon me in a case brought against myself and others by the plaintiffs in this case in H.B.M.'s Supreme Court.  The statements in the petition are precisely the same as in this case.  I admit the jurisdiction of the British Court; I am not an American citizen.
  Thomas Hore, Chief Usher of H.B.M.'s Supreme Court, deposed to having served a petition and a decree upon the defendant in the case of Ince v. Penfold and others, in which the defendant was recognised as a British subject.
  The Court then adjourned till the afternoon.
  On the sitting being resumed,
  George Howard, the defendant, was recalled.  He said - My father travelled considerably, but I do not know whether he was ever in America.  I first visited New York about 1869 or 1870 and I was last there about 1875.  I had not been in any other port of America previous to my visit to New York. I was never employed on shore, but had visited the place often as a seaman.  When I came here I joined the force as a constable, and in about one year was made a sergeant.  In 1883 I was made an Inspector.  It was before then I came here to register as an American.  Mr. Everleigh came here at the same time to register.  My reason for wishing to register here was because I intended to go to America, and thought it would be for my benefit.  When I left the consulate on the 2nd October I did not think I was registered as an American citizen, because I received no papers.  I have relations in the United States - cousins.
  I was asked where I had resided in New York, and told them.  I lived in a boarding-house. I could not swear whether it was the exact address that I gave; it was one of the addresses where I resided in New York.  I do not remember saying it was a place to which they could communicate in case of my death.  I never came to see Mr. Emens about registration. I saw him here the same day I saw Mr. Shufeldt the last time.  I came about registration, but I did not speak to Mr. Emens about Registration.  I am almost certain I never said I was born in New York, because I never denied where I was born.  I am sure I never said so.  I came here once for a passport to go up country, but Mr. Shufeldt told me there were no passports issued from this Consulate.  It was during the French troubles.  On the 10th July I registered at the British Consulate because I was under the impression that they would not register me here.
  I had heard that the Lekin Office had heard that I was an American citizen.  I do not know whether any answer was filed to the petition in the Ince Foreshore case.  I have served long enough in America and in American ships to entitle me to be naturalized. I have served in three or four - probably half-a-dozen - American ships.  I have serve d probably five years in American ships - probably three.
  Re-examined - I am quite certain I did not tell Mr. Shufeldt that I was born in New York.
  J. P. McEuen, sworn, said - I am Captain Superintendent of the Shanghai Municipal Police Force, and have been since 1884.  In the books I received, Inspector Howard is entered as a native of Ireland.
  Mr. Wainewright asked that the book might be produced, and the Consul-General concurred in thinking this course advisable.
  Capt. McEuen accordingly left to get the book in question.
  James Everleigh, Inspector of Police, sworn said - I joined the Force in October, 1877. I described myself as a British subject, of Liverpool, in England.  I was born at Bridport, in Dorsetshire, of Irish parents.  I remained there about thirteen years, and went to sea in 1857, in the British mercantile marine, in which I remained for three years.  After that I was employed in American ships for fourteen years, and after that in British ships again for two years.
  The Consul General suggested that this evidence was irrelevant.
  The Witness, further examined, said - In 1882 I came to the American Consulate and asked to be registered as an American citizen.  Mr. Howard came with me.  We saw Mr. Shufeldt, and he took us to see Mr. Cheshire.  We said we had come to be registered.  He asked for our papers, and I said I had none; he said, "You had better go and see Mr. Shufeldt."  We did so, and told him, we wanted to be registered.  He asked us about our papers, and of course we had none. He asked us the principal places in America where we had been to, and I told him Boston, and Lowell.  He asked out names, and we told him, and he put them in a book.  I was altogether four years in Boston without going to sea at all.  After he had written our names in a book we said nothing more, but went away.  I told Mr. Shufeldt I was an American citizen.  I have never been naturalised.  I have never applied for naturalisation.   Afterwards applied to be registered at the British Consulate, and was registered.  That was in January, 1883.  The certificate produced is the one I received.  In January, 1885, I did not consider that I had been recognised as an American citizen.
  I have not sat as an assessor or done any formal act as an American.  I saw the notification issued by Mr. Smithers, calling on American citizens to register themselves. I came to the consulate with Howard, and saw Mr. Shufeldt, in the passage.  Mr. Shufeldt said Mr. Smithers was not in, and he thought we should have to produce papers, and we had better see Mr. Smithers on the following day.
  Cross-examined by Mr. Wainewright - Mr. Shufeldt did not ask me where we were born - only where we had lived. When I saw Mr. Shufeldt enter our names I was not sure I was registered.  I thought I ought to be registered somewhere, for the sake of my wife and children, so I registered at the British Consulate.  When I came the second time I did not come for the purpose of getting registered myself; I was out for a walk with Mr. Howard, and came in.
  Mr. Wainewright -You had not got tired of the Lion and Unicorn and wanted to come back to the Eagle? (Laughter.)
  Witness - No.
  Captain McEuen, having returned, produced the character roll of the Police.  He said the entry with regard to Inspector Howard was in the hadwriting of Sergt, Milne or Sergt. Smyth.  The entry read as follows:
  "George Howard; aged, 29; height, 5 ft. 7 in; country, Ireland; locality, (nothing); occupation, (nothing); religion, Protestant."
  The witness said - I always believed Inspector Howard to be a British subject till four or five months ago.  I was at the consulate here four months ago, and while here I spoke to Mr. Emens about Mr. Howard.
  The Consul-General said this was not evidence.
  The Witness, further examined, said - I am one of the defendants, along with Mr. Howard, in a case pending in the British Court, in which the plaintiffs in this case are the plaintiffs. The amount of damages is the same, and the transaction in respect of which they are claimed is the same..
  Mr. Wainewright, having opened the case for the plaintiffs, called
  George Shufeldt, who, having been sworn, said- I am Clerk of the U.S. Court, and have been since December, 1881.  Since then I have had charge of the register book of U.S. citizens here, and have registered citizens under instructions from the consul.  I have not had cognizance of the regulation which has been read by Mr. Robinson.  American citizens ae simply referred by the consul to me, and I register them.  I have never seen an oath administered to an applicant for registration.  When he has said he was a naturalised citizen he has been asked for a certificate of naturalisation; but when he has not said that, no papers have been required from him. I produce the register book. - The witness read the entry relating to the defendant, which was as follows:-
  "George Howard; place of birth, New York City, N.Y.; profession, sergeant of police; address at home, in case any accident takes place, 16, Chatham Square, New York."
  He said - That entry was made by myself; I   asked Mr. Howard where he was born; I ask everybody that. He told me he was born in New York.  I asked him to give me an address for use in case of accident, and he gave me the address.  I do not recollect his asking what the next step was, or whether there was any certificate.  We do not give certificates of registration.  He may have seen me after Mr. Smithers' notification was issued, and I may have said Mr. Smithers was out; but I don't recollect it.  There was no new plan of registration at that time.  I always considered Mr. Howard an American citizen.
  Cross-examined by Mr. Robinson - Howard and Everleigh told me that Mr. Cheshire had referred them to me.  I have never heard the consul ask for papers from other than naturalised American citizens - as far as I can remember.  I remember Mr. Mack applying for registration.  He was not registered, but I don't remember why.  I do not remember Howard asking me whether there were any further steps, and whether there was any certificate, but I won't undertake to deny that he asked me those questions.
  Mr. Wainewright - I have no other witness.  I can't find anybody who was present when Mr. Howard was born in New York, so I have only his word for it.
  Mr. Wainewright, in summing up, referred to the regulation which had been read by Mr. Robinson.
  After some argument on the point,
  The Consul-General produced a volume of State Laws under which he said Consular Courts acted, and said he could take cognisance of no regulation which was not contained in that volume, unless it were a regulation promulgated by the Minister since that volume was issued.  He read a passage to the effect that registration, while strongly recommended, was not compulsory on American citizens, and said that clearly over-ruled the regulation quote by Mr. Robinson.
  Mr. Wainewright, continuing his summing up, said he had tried his hardest to get up an argument that the defendant by getting himself registered at the American Consulate, had this selected his forum, and that he was thereby estopped from now saying he was not an American citizen.  He however had to admit that, although he had some authority for such an argument, he was afraid he could not go quite so far as that.  Mr. Wainewright' touched briefly on the argument on which he should have relied and then said he could not conscientiously take up the time of the Court in pursuing an argument in  which he himself had no faith.
  The question therefor resolved itself to this - whether the defendant told the truth when he stated at the American Consulate that he was an American citizen, born in New York, or when he stated in this court that he was a British subject.  In any case it was evident that the defendant had acted in a grossly improper way, and if the Court should decide that Howard was not within their jurisdiction he asked them not to allow costs, as it was entirely owing to the defendant's misconduct in getting himself registered as an American citizen by misrepresentations that the plaintiffs had been compelled to take action against him in this court.
  Mr. Robinson then summed up for the defence, contending at great length that the evidence proved the defendant to be a British subject.
  With regard to the second part of the Answer, he cited American law to show that an action could be barred by reason that an action in regard to the same matter between the same parties was pending in another Court.  He said the defendant had submitted to British jurisdiction, and the plaintiffs, having proceeded against him in the British Court, had to stand or fall by that suit there.
  The Consul General held that the enactments cited by Mr. Robinson applied to cases where both were American Courts - not where one was a Court of foreign jurisdiction.
  Mr. Wainewright denied that there was any poof of the defendant having submitted to British jurisdiction. The proceedings in the British Court were, he said, commenced before it was known that the defendant had been registered as an American citizen
  The Consul General said the plaintiffs were bound to proceed against the defendant in this Court when they found he was registered, because extra-territorial jurisdiction put them in an anomalous position, for if the defendant proved to be an American citizen he had only to be silent in the British Court, and the court would be powerless to touch him. He failed to find any authority for tying the hands of this Court because a case between the same parties in the same matter was pending in the British Court.  If they found that the defendant was not an American citizen, this court would of course have no jurisdiction; but if they found that he was, they would have to try him, because the British Court would in that case have no jurisdiction over him.
  Mr. Wainewright, in an answer to Mr. Robinson's last point, read a passage from Story's "Conflict pf Laws," 7th edition, page 72, section 610a, and cited a number of cases to prove that no action could be barred by the fact that a similar action was pending between the parties in a foreign court.
  Mr. Robinson contended that these, being English cases, did not apply to American law.
  The case was finally adjourned till 10 o'clock next morning, when the Court would give its decision on the question as to the defendant's nationality.
24th August.
  The Court opened at 1 o'clock.
  The Consul General read the following judgment:-
  This is an action by the plaintiffs against the defendant for taels one thousand, including value of opium taken from their servants, and damages for interfering with collection of likin tax thereon, and the penalty.
  To their petition the defendant answers:-
  First, denying that h is an American citizen, and interposes a plea to the jurisdiction of the court.
  Secondly, that the plaintiffs having elected to go into Her Britannic Majesty's Court a suit having been begun in said  Court by plaintiffs against defendant and others) should have their petition dismissed in this court.
  The question as to the nationality of Howard is one of fact.  The only testimony as to place of his birth is that of Howard himself, to wit, that he was born in Limerick, Ireland, of an English father and an Irish mother.  He testified that he lived in Edinburgh after attaining the age of five years, for nine years, and after that was for a number of years on American ships, and visited the city of New York thirty or forty times, but never remained there longer than three or four months at a time. That he never applied to be naturalized in the United States.  That he came to Shanghai in 1877, and joined the Police Force in 1878.  The character book of the police force was introduced in evidence, and he was there entered as born in Ireland; again that in a suit in Her Britannic Majesty's Court in 1881 he was sued as a British subject and did not deny his nationality.  
  On the other hand it is in evidence that he came to the United States Consulate-General in 1882, and at his own request was registered as a citizen of the United States, and that he came to this Consulate again in 1886 on seeing an order published in January requesting all citizens of the United States to register; but Mr. Smithers, the Acting Consul-General, being absent, he went away without doing so.  He gave as his reason for registering in 1882 and applying again in 1886 that he thought of going to the United States, and it might be of service to him.  
  It is also in evidence that he was registered on July 10th, 1886, as a British subject, and his certificate of registration was introduced. It is also in evidence that his friend who accompanied him at the time says that no mention was made by Howard of the place of his birth, but of his address only.  The Clerk of this Court testified that he made the entry as they are always made, but he is not positive that Howard told him his birth-place was in New York.  To the best of his recollection, he says Howard so stated.
  On this condition of facts, the preponderance of evidence (which under the well-established rule governs in civil cases) being in favour of the defendant, we find that he is not a citizen of the United States and therefore this Court has no jurisdiction of the case.
  Bur we cannot refrain from expressing our disapprobation of the conduct of the defendant.  He is too intelligent a man not to have known what he was doing, and to attempt to play hide and seek in this way in regard to citizenship is to be reprehended; and it was clearly a suspicious circumstances that he should have  deferred registering at the British Consulate until after suit was begun.  We ae bound, however, to give him the benefit of the facts adduced and corroborating circumstances, and find as we do.  In any other tribunal than one bound and hedged about as we are here in this extra-territorial jurisdiction, the doctrine of estoppel might well be interposed against the defendant.
  As to the second paragraph pf the answer, it is overruled.  Foreign Courts (and such are this Court and Her Britannic Majesty's Court at Shanghai) never hesitate to try cases between the same parties which are being pursued eodem tempore in each other.  The authorities cited in Storey's "Conflict of Laws" on this point are ample and authoritative.
  The Judgment of this Court is that the complaint be dismissed on the ground that George Howard, the defendant, is not a citizen of the United States.
  The Consul General - And now, gentlemen, comes your fight about costs.
  Mr. Robinson asked for costs on the ground that the most ordinary caution on the part of the plaintiffs would have shown them that the defendant was not an American citizen, especially as the defendant had submitted himself to the jurisdiction of the British Court in the case now pending there.  On the 9th July, he (Mr. Robinson) took out a summons on behalf of the defendants in that case - Mr. Howard amongst them -for the purpose of getting an order for the amendment of the petition; and he (Mr. Robinson) contended that by that summons the defendant submitted himself to British jurisdiction. By bringing a suit against the defendant in this Court the plaintiffs therefore put the defendant to unnecessary expense, and they ought to be made to pay the costs.
  Mr. Wainewright said he had already said something on the question of costs, but he would say a word or two in reply to Mr. Robinson.  He said the plaintiffs had taken proceedings against the defendant in the British Court believing him to be a British subject; but they afterwards heard that he was an American, and on making enquiries at the U.S. Consulate, hey found he had been registered there.
  Mr. Robinson - Not this year.
  Mr. Wainwright said he had never heard that yearly registration was necessary at the U.S. Consulate.  They found that Howard had been registered once, and that his name was on the list of American citizens registered at the Consulate.  With regard to the summons to which Mr. Robinson had referred, it was on an altogether trivial matter, and he thought it most probable that the defendant Howard had never even heard of it, Mr. Robinson having simply as a matter of form, taken it out in his and the other defendants names; and if Howard had proved to be an American citizen, and a judgment had been given against him in the British Court, it would certainly not have been held that he had submitted  himself  to British jurisdiction by the fact of his Counsel having taken out that summons.  They knew that if Howard was an American citizen they could not get any redress from him in the English Court, and finding that he was registered as an American citizen they were compelled to proceed against him in this Court.  It was the defendant's misconduct which had led to these proceedings being taken, and ought at least to pay his own costs.
  The Consul General, after a brief consultation with the assessors, said - Gentlemen, on the question of costs the judgment of the Court is that each party pay respectively the costs incurred in this Court.  We cannot order the plaintiffs to pay the entire costs of the case for three reasons.  In the first place they were quite right in coming into this Court to test the citizenship of this defendant; and in the next place Mr. Howard himself is at fault in the manner in which he has acted.  We could not in view of the reprehensibleness of his conduct in the whole transaction so far as his citizenship is concerned, justify our action in giving him costs in a case in which he had forced the plaintiffs by his own action  to come into this  court.  
  Far from giving Mr. Howard costs, if we could impose upon him the whole costs, the Court would feel itself authorised to do so, on account of his conduct.
  The words "and that each party pay his share of the costs of the case" were then added to his judgment, which was signed by the Consul-General and Assessors.

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