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Colonial Cases

Drew v. Sylvester, 1899

[customs - treaty ports]


 

Drew v. Sylvester

United States Consular Court, Shanghai
Goodnow, 29 April 1899
Source: North China Herald, 1 May 1899

U.S. CONSULAR COURT.

Shanghai, 29th April

Before John Goodnow, Esq., U.S. Consul-General.

(Sitting as Referee.)

DREW v. SYLVESTER.

  In this matter Mr. Edward B. Drew, Commissioner of Customs at Canton (for whom Mr. H. P. Wilkinson appeared) petitioned for the recovery of Tls. 15,000 from the defendant, Mr. W. F. Sylvester, lately of the firm of Louis Spitzel & Co. of Shanghai, and elsewhere in China, alleged to be due on a bond. Mr. Platt appeared for the defence, Mr. Sylvester not being oresent.

  In opening the proceedings His Honour said that this was a case originally before the U.S. Consulate at Canton and the petition was addressed to the U.S. Consul there and dated March 17th. He produced a document from Mr. White, the U.S. Acting Consul, at Canton, referring the controversy to him and also an agreement signed by the parties authorising him to decide the issue.

  Mr. Wilkinson then read the petition as follows:

(Copy)

IN THE COURT OF THE U.S. CONSULATE, CANTON, CHINA.

Edward B. Shaw, Petitioner and W. F. Sylvester, Defendant, To A.H. White, Deputy Consul-General in charge of Canton, Acting Judicially.

The Petition of the above-named Petitioner shows:

  [1.] - That he is a citizen of the United States and Commissioner of the Imperial Maritime Customs, at Canton, China.

  [2.] - That the defendant is an American citizen.

  [3.] - The defendant by his Bond, bearing date the 25th day of August 1898 became bound to the petitioner in the sum of fifteen thousand kuping taels  of good and lawful sycee silver, to be paid by the defendant to the petitioner  subject to a condition thereunder written, whereby, after reciting that the defendant had that day applied for a Customs permit to ship 500 Mauser Rifles, and 500,000 Mauser cartridges by the American steamer Abbey then lying  at the port of Canton in China, and had undertaken that the rifles and cartridges aforesaid should without delay after permit be conveyed on board the steamer Abbey direct to the port of Singapore, and to no other place, and that the defendant would produce before the petitioner at Canton within six weeks from the date of the now reciting bond, from the Consulate of the United States of America  at Singapore, official proof  that the arms and cartridges aforesaid  had been duly conveyed in the steamer aforesaid to Singapore. And after reciting that the petitioner had granted and issued to the defendant the permit to ship as aforesaid, the condition of the said bond was declared to be that if the defendant should by himself or by his agent produce and deliver to the petitioner, within the period of six weeks, from the date of the now reciting bond, a certificate signed and sealed by the Consul of the United States at the port of Singapore, to the effect that the 500 rifles and 500,0900 cartridges aforesaid had duly arrived on board the steamer Abbey at the port of Singapore, then the said bond should be void, and otherwise should be, and remain in full force and virtue.

  [4.] -The said trifles and cartridges were shipped on board the steamer Abbey, but the defendant (either by himself or his agents) has never produced, or delivered to the petitioner any certificate signed or sealed by, or any proof from the United Consul at Singapore, and in fact the said rifles and cartridges were never conveyed to Singapore, but were conveyed to the island of Luzon or to one of the Philippines Islands.

  [5.] - The petitioner has demanded payment of the said sum of fifteen thousand taels, which has become due under the Bond to the petitioner, from the defendant, but payment of the same had been withheld by the defendant.

  Your petitioner therefore prays:

  That judgment be given against the defendant accordingly, with interest and costs, and that he may have such other or further relief, as to your honourable Court may seem meet.

  And your petitioner will ever pray.

(Signed) E. B. DREW, &c.

(Signed) A. H. White., &c.

  To this petitioner the defendant made the following answer:

  [1.] - He admits paragraphs 1 and 2 of the petition.

  [2.] - He admits that he executed the document referred to in paragraph 3, and craves leave to refer to the document itself for the precise terms and conditions thereof, but he denies that the said document was ot ever had any binding effect on him, or that he is or ever was under any legal obligation whatever by reason thereof.

  [3.] - He denies each and all of the allegations alleged in paragraphs 4 and 5.

  The defendant therefore prays that the petition be dismissed, the petitioner decreed to pay the costs, and that he may have such other or further relief as to the Court may seem fit and defendant will ever pray.

  His Honour then produced the Bond which formed the ground of action which was admitted by Counsel on either side. It was in the following terms:

  Know all men by these presents that I, W. F. Sylvester of the firm of Louis Spitzel & Co. for and on behalf of myself, and of the said firm, am held and firmly bound unto Edward B. Drew, Esquire, Commissioner of Customs, at Canton, China, in the sum of fifteen thousand kuping taels of gold and silver lawful sycee, to be paid to the said Edward B. Drew, his heirs, and successors for which payment to be well and truly made, I bind myself, and the said Louis Spitzel & Company, my and their heirs, executors, and administrators, and every one of them, firmly by these presents. 

Sealed with my seal. Dated this twenty-fifth day of August, A.D. one thousand eight hundred and ninety-eight.

  Whereas the above bounden W. F. Sylvester has this day applied for a Customs permit to ship five hundred Mauser rifles and five hundred thousand Mauser cartridges, by the American steamer Abbey now lying at the port of Canton in China, and has undertaken that the rifles and cartridges aforesaid shall without delay after shipment be conveyed on board the said steamer Abbey direct to the port of Singapore, and to no other place, and that the said W. F. Sylvester will produce before the Commissioner of Customs at Canton within six weeks from the date of this Bond, from the Consul of the United States at Singapore, official proof that the arms and cartridges aforesaid, have been duly conveyed in the streamer aforesaid to Singapore, and whereas the said Edward B. Drew, Commissioner of Customs at Canton, had granted the permit to ship as aforesaid.

  Now the condition of this obligation is such that if the above bounden W. F. Sylvester shall by himself or by his agent produce and deliver to the Commissioner of Customs at Canton, China, within the period of six weeks from the date of this Bond, a certificate, signed and sealed by the Consul of the United States at the port of Singapore, to the effect that the five hundred rifles and five hundred thousand cartridges aforesaid have duly arrived on board the steamer Abbey at the port of Singapore, then the obligation to be void; or otherwise be, and remain in full force and virtue.

(Signed) W. F. Sylvester, &c.

(Signed) Edward B. Drew, &c.

Source: North China Herald, 8 May 1899
 

U.S. CONSULAR COURT.

Shanghai, 29th April.

Before John Goodnow, Esq., U.S. Consul-General.

(Sitting as Referee.)

DREW v. SYLVESTER.

(Continued from last week.)

Mr. Wilkinson continuing said that the plaintiff was Commissioner of Customs at Canton and had in his position as such Commissioner and for the benefit of himself and his successors in office obtained a certain bond executed by the defendant. The defendant admitted the execution of the bond and said he was not now and never was bound by it. He further denied the allegations of the petition which alleged that the terms of the bond were not carried out by a certificate from the U.S. Consul at Singapore and further denied the demand for payment. As he understood it on behalf of the plaintiff the answer, apart from its formality, amounted to this that the bond itself for some reason was void.

The only reason he could think of why such a bond should be void would be that the defendant had the right to do what he was allowed by the bond to do without any condition whatever. That would be one defence and the only other defence he could think of was that although perhaps he may not have an inherent right to ship these arms, nevertheless the terms of the bond were so severe, or practically were obtained under such duress, as to render their performance void and illegal.  He thought perhaps it would be best for him to show the position in which the parties were at the moment that bond was executed, and to deal with the relations of the United States and China which covered the export and shipment of arms from Canton or any of the other treaty ports pf China. He maintained that the defendant had no inherent or treaty right to export these arms at all save by the consent, leave, license and grace of the Chinese Government, and that the plaintiff gave that license on condition, as he had a right to do, and that condition was the bond.

 Further, as to the second possible defence as to there being any duress he was instructed that the bond was given freely and willingly by the defendant as a means whereby he would be enabled to ship these arms. This was borne out by the fact that it was done though the U.S. Consul at Canton, and that there was no duress at the moment would be further borne out by the fact that the Consul signed it, and further by the evidence of Mr. Drew who would show that the wording of the bond had been altered at the instance of the defendant and the Consul at Canton. Therefore there could be no actual or possible duress.

 The trade between the United States and China depended upon one treaty and the various conventions, arrangements, and additional articles which had since been added to it. That treaty was the Treaty of Tientsin between China and the United States and was made on the basis of an older Treaty which it was necessary, he thought, to refer to. The earlier Treaty was the Treaty if Wanghia, signed in 1844. He had in his hand a book 'Treaties between the United States of America and China, Japan, Lewchew and Siam; Acts of Congress and the Attorney-General's opinion, with the decrees and regulations issued for the guidance of the U.S. Consular Court in China, published by authority, Hongkong 1862. On the first page there was the following official copy of a notification by HE. Wells Williams, Secretary of Legation:

"March 1st1862. By direction of H.E. Hon. Anson Burlinghame, Envoy Extraordinary and Minister Plenipotentiary of the United States to China, the Treaties of Wanghia and Tientsin with the Acts of Congress of 1848 and 1860 extending the laws of the United States over their citizens in China and elsewhere in Asia, the various decrees, regulations and notifications based thereon issued by the Commissioners to China, together with the opinion of Mr. Attorney-General Cushing, are, in order to render the same accessible to American citizens and to such others as may become parties to suits in the Consular Courts of the United States, in China, hereby published for their information and guidance, the same having been carefully collated with the copies in the archives of the Legation. 

 In addition to the above, and having reference to Section First of the Act of June 22, 1860, the treaties between the United States and Japan, Lewchew, and Siam have been included in the collection."

That was from the official copy issued by the United States and he begged to hand in another copy of the treaties which he would refer to.

  Mr. Platt admitted the treaties.

 Mr. Wilkinson said, of course, it was well known that in former years trade between the United States and all foreign countries and China was prohibited by the laws of China and the present state of trade was the result of the efforts of the Western Powers to open up trade with China. By the Treaty of Wanghia any trade expressly excepted thereby was illegal and could not be carried on by citizens or subjects of any Western Power except by special and individual license.  Article Five of the Treaty read:

"At each of the said five ports, citizens of the United States, lawfully engaged in commerce shall be permitted to import from their own or any other ports into China, and sell there and purchase therein and export to their own or any other ports all manner of merchandise of which the importation or exportation is not prohibited by this Treaty paying the duties which are prescribed by the tariff hereinbefore stated and no other charges whatever."

As to what trade is prohibited Article 3 of the same Treaty says:

 "The citizens of the United States are permitted to frequent the five ports of Kwangchau, Amoy, Foochow, Ningpo and Shanghai and to reside with their families and to proceed at pleasure with their vessels and merchandise to or from any foreign port or from any foreign port and from any of the five said ports to any other of them. But said vessels shall not unlawfully enter the other ports of China, nor carry on a clandestine and fraudulent trade along the coast thereof. And any vessel belonging to a citizen of the United States which violates this provision shall with her cargo be subject to confiscation to the Chinese Government."

He read that because it contained a general definition as to clandestine trade and the Chinese rights of confiscation. Article 33 of the same Treaty stated:

  "Citizens of the United States who shall attempt to trade clandestinely with such of the ports of China as are not open to foreign commerce or who shall trade in opium or any other contraband article or merchandise shall be subject to be dealt with by the Chinese Government without being entitled to any countenance or protection from that of the United States; and the United States will take measures to prevent their flag from being abused by the subjects of other nations as a cover for the violation of the laws of the empire."

  That he quoted to show that if there was clandestine trade at that date this export of arms from Canton would have rendered the vessel liable to arrest without any reference to the United States. It was interesting in referring to the Treaty to note that the position of the Customs as the representative of the Chinese Government in matters of tariff and arrangement with the local Consuls was mentioned and referred to. Reference to the Commissioner of Customs they found in Article 6 of that Treaty, which stated:

"Whenever any merchant vessel belonging to the United States shall enter either of the said five ports for trade, her papers shall be lodged with the Consul, or person charged with affairs, who will report the same to the Commissioner of Customs; and tonnage duty shall be paid on said vessel at the rate of five mace per ton, if he shall be over one hundred and fifty tons burden; and one mace per ton, if she be of the burden of one hundred and fifty tons or under, according to the amount of her tonnage as specified in the register; said payment to be in full of the former charges of measurement and other fees, which are wholly abolished. 

  And if any vessel, which having anchored at one of the said ports, and there paid tonnage duty, shall have occasion to go to any others of the said ports to complete the disposal of her cargo, the Consul or person charged with affairs, will report the same to the Commissioner of Customs, who on the  departure of the said vessel, shall note in the port clearance that the tonnage duties have been paid, and report the same to the other Customs-Houses in which case, on entering another port, the said vessel will only pay duty there on her cargo, but shall not be subject to the payment of tonnage duty a second time."

They would notice that, in that Article, the question of a Commissioner granting a port clearance was mentioned without which it stated that a vessel could not leave the Port. That was the state of trade after the Treaty of Wanghia.

  The Treaty of Tientsin was dated 18th June,1888, and article 3 of that Treaty provided that:

"In order that the people of the two countries may know and obey the provisions of this treaty, the United States of America agree, immediately on the exchange of ratifications, to proclaim the same and publish it by proclamation in the gazettes where the laws of the United States of America are published by authority, and His Majesty the Emperor of China, on the exchange of ratification, agrees immediately to direct the publication of the same at the Capital and by the Governors of all the provinces."

Article 14 amplified Article 5 of the Wanghia Treaty and stated:

  "The citizens of the United States are permitted to frequent the ports of Canton and Ch'au-chau or Swatow, in the province of Kwangtung; Amoy, Fuchau, and Taiwan in Formosa, in the province of Fukhien; Ningpo in the province of Chehkiang; and Shanghai in the province of Kiangsu, and any other port or place hereafter by treaty with other powers or with the United States, opened to commerce; and to reside with their families and trade there, and to proceed at pleasure with their vessels and merchandise from any of these ports to any other of them.

  But  said vessels shall not carry on clandestine and fraudulent trade at other ports of China not declared to be legal, or along the coasts thereof, and any vessels under the American flag violating this provision shall, with the cargo, be subject to confiscation to the Chinese Government; and any citizen of the United States who shall trade in any contraband article of merchandise shall be subject to be dealt with by the Chinese Government, without being entitled to any countenance or protection from that of the United States; and the United States will take measures to prevent their flag from being abused by the subjects of other nations as a cover for the violation of the laws of the empire."

  He read that second provision to show that not only was there no inherent right to deal in contraband goods, but, what was more, the Chinese Government were in a very strong position under the Treaty and that, through their representative and official - The Commissioner of Customs, who by their leave, license and grace arranged that in certain terms with their knowledge and in certain ways certain goods should be shipped from Canton. In Article 13 there again they had reference to the old tariff and reference looking forward to a later tariff. 

  The Article went on to show that a citizen could deal in lawful merchandise, and then they had set out in detail forbidden goods, that was goods that could not be traded in without special permission.  Article 16 again mentioned the Commissioner of Customs; a ship on her arrival having to lodge her papers with the Consul who had to report same to the Commissioner of Customs, such report being obviously for the prevention of trading in contraband goods. Articles 19 and 22 dealt with the payment of duties and again mentioned the Customs. 

  The next Treaty he had to refer to was the Convention of Shanghai of the 8th of November,1858; and again then in the book he had been quoting would be found a Supplementary Treaty between the United States and China, which after reciting the Treaty of Tientsin and reciting that it provided for tariff duties, exports and import, made reference to considerable modification therein consequent on treaties with other nations. In that tariff no mention was made of munitions of war or cartridges showing that trade in such was not allowed or provided for; on the other hand they were declared contraband under Rule 3:

"Import and export trade in the following articles - gunpowder, shot, cannon, fowling-pieces, rifles, muskets, pistols and all other munitions and implements of war, and salt."

Up to the present his argument had been to some extent historical, but here was one of the two provisions upon which the plaintiff relied. The tariff was set out in full under the Convention of Shanghai, which as he had already quoted set forth that there should be no trade, import and export, of these articles. Article II of the Burlinghame Treaty stated:

"The United States of America and His Majesty the Emperor of China, believing that the safety and prosperity of commerce will thereby be best promoted, agree that any privilege or immunity in respect to trade or navigation within the Chinese dominions which may not have been stipulated for by Treaty, shall be subject to the discretion of the Chinese Government, and may be regulated by it accordingly, but not in a manner or spirit incompatible with the Treaty stipulations of the parties."

Therefore they had it by Treaty that arms shall not be traded in and, of course, it was within the rights of the Chinese Government to allow through its responsible officers trading in prohibited articles on its own terms. 

  In this case they had a statement to that effect and it was actually stated in the Treaty and agreed to between both nations that, if there was to be any privilege or immunity granted to trading in such articles, it should be subject to the discretion of the Chinese and regulated by them accordingly. Consequently there could be no inherent right on the part of the defendant to export these arms from Canton, and what was more as a citizen of the United States he was bound by Treaty not to export them.  The Chinese Government, through their responsible officer, could, if they desired, allow such a trade to be carried on as a privilege, but they could impose their own terms upon such trade. Further the United States, by treaty, had agreed that, in the event of any such immunity being granted the Chinese Government could impose its own terms and the transaction was to be regulated by such terms.

  He had shown that a Commissioner of Customs was representative of the Chinese Government in all such matters. With regard to the second part of his case as to whether there was any actual duress or undue pressure put upon the defendant in regard to the export of these goods he would call Mr. Drew, who would show firstly that it was a matter of export. These rifles were not brought to Canton by the Abbey and in these treaties there were various regulations about the re-exporting of goods. They did not apply in this case at all because he would prove that these munitions of war did not arrive in the Abbey or the Patsy, the name of the vessel before she became the Abbey, but were actually landed and delivered in totally distinct steamer. There could therefore be no question of re-exporting and not breaking cargo. 

  The next point was that the defendant did not wish to take the goods back again to Hongkong where they came from but he wished to take them to Singapore. That was his expressed wish and intention to the Commissioner of Customs. The Chinese authorities were quite prepared not only to allow these goods to go back to Hongkong by any steamer at all so long as they went, but actually went the length of saying they would ship them by a government transport. Hongkong, however, was not the place where they were wanted to go and the offer was refused. The plaintiff informed the defendant and the United States Consul  that there was no treaty right by which he could ship the goods to Singapore and as the Chinese Government had to absolve themselves from responsibility to any foreign government (being a neutral power) they allowed the arms (prohibited goods) to be shipped to Singapore on the consideration that the defendant executed the bond produced, in favour of the Commissioner of Customs, undertaking to forward them direct to Singapore. The American Consul was pressed when that bond was signed so that he would naturally see that there was no duress and if there had been the defendant as a grown man could have pointed out the fact. He wanted to take the arms out of Canton harbour and to do so he chose to sign the bond but now did not wish to abide by it.

  Edward B. Drew said he was the Commissioner of the Imperial Maritime Customs at Canton. He was the plaintiff in this case.

  Mr. Wilkinson - You have seen the bond. Are you the Mr. Drew mentioned therein? - Yes.

  Mr. Wilkinson - The arms arrived in two lots - Within a week from about the 17th to the 24th July by the steamers Choysang from Hongkong and the Pawsan from Hongkong. Both were British steamers and I think there were altogether 6,000 Mauser rifled and half a million Mauser cartridges. They were landed by the authority of the Commissioner of Customs acting in accordance with a document known as a huchao, a sort of pass issued by the Chinese provincial authorities at Canton.

  Mr. Platt - I want to know exactly.

  Mr. Wilkinson - It was a stamped Chinese document granted by the Viceroy at Canton.

  Witness - "Chinese Authorities" is the right expression. Yes, I cannot swear if it was by the Viceroy or the Superintendent of Customs - so called. The Abbey arrived at the port of Canton. She arrived on a Sunday in the middle of July, and the date can be found in the calendar 16th or 17th, I think. She was then known as the Patsy, a British steamer.

  Mr. Wilkinson - What cargo did she carry? - She had no cargo but she was full of coal. Her papers were taken to the British Consulate.

  Mr. Wilkinson - When did the Patsy become the Abbey? -

  His Honour - If you will pardon me I have here the certified copy of the Bill of Sale and transfer of the ship to the American flag.

  The Bill of Sale was put in and marked Exhibit C.

  Mr. Wilkinson - Do you remember the date when she became the American ship Abbey? - So far as I know about the 5th of August. It was reported to me.

  His Honour - Here is the best evidence of that (Exhibit C produced). The Bill of Sale is dated 20th of July,1898, and was witnessed before E. Bedloe, Consul, and signed before him on the 5th August.

  Witness - I was informed of the transfer on the 5th of August, about five minutes to 4 in the afternoon I was told of a letter received from the British Consul. At the same time a letter was handed to me signed by the U.S. Consul. The British Consul's letter notified me that the Abbey had been sold to Mr. Sylvester, and the U.S. Consul's letter informed me that the vessel had become an American vessel and her name was the Abbey.

  Mr. Wilkinson - Both those reports were to you officially? - Yes.

  Mr. Wilkinson - What was the next official act or application? - That I should then issue to her a permit to ship certain arms and cartridges and clear her for Singapore.

  Mr. Wilkinson - Was that application in writing or made verbally? - In writing, I am pretty certain. The application was accompanied by a Chinese document. There certainly was in writing another huchao or pass, for arms to be shipped. The application was for a customs permit to ship to Singapore.

  Mr. Platt - If the document is written we must have it, we cannot have the terms of a written document stated without seeing it.

  Mr. Wilkinson - It is a matter for His Honour. If it is possible however for us to get it we will do so.

  His Honour - Who made this application for the permit to ship?

  Witness - The Captain of the Abbey.

  His Honour - In your office? - Yes.  

  His Honour - Did he appear in person? - I am not certain, but he did appear in the general office downstairs; I was in my office upstairs. It was reported to me that the Abbey had applied to clear in the usual way.

  Mr. Wilkinson - Have you this huchao here? - No, it is in Canton.

  His Honour to Mr. Platt - Let Mr. Drew testify to this and have a copy sent to me.

  (To Witness) - Give me just what this document was to the best of your recollection.

  Witness - It stated to the best of my recollection this, that Mr. Sylvester had imported certain arms and ammunition. That a portion of this had been found by the Chinese authorities for whom they were imported to be undesirable. That a buyer had been found in Hongkong for this rejected portion and that the export of them was hereby authorised.

  His Honour - To any particular place? - The place was not stated.

  Mr. Wilkinson - Where is that official document now? I think it is in the archives of the Chinese Superintendent of Customs at Canton. An official known as the Hoppo.

  Mr. Wilkinson - Was all this at five minutes to four? - Yes, I did not carefully read the Chinese document at five minutes to four, I read it the following morning, as the office was closing, and there was no time to attend to it. The ship would like to have cleared that afternoon but I said the parties must wait until next morning in order to allow me to look more carefully into it. I read it next morning.   

  Mr. Wilkinson - Did you grant a permit after reading it carefully? - No, I refused to.

  Mr. Wilkinson - Did you convey the grounds of your refusal to the defendant or captain of the vessel? - Yes, I did. I cannot recollect whether I conveyed them personally to Mr. Sylvester or whether it was to the U.S. Consul. But Mr. Sylvester was made cognisant of that I suppose on the 6th of August. I have every reason to suppose that everybody connected with the vessel knew what was going on.

  Mr. Wilkinson - What were the actual grounds of your refusal? - The grounds were that the huchao implied permission to re-export to Hongkong and that as the Abbey was to go elsewhere than to Hongkong I could not recognise that document as valid for shipment per Abbey.

  Mr. Wilkinson - Had you any communication with the issuer of the document or had the Abbey communication with you? - Yes, I immediately consulted the Chinese authorities of Canton.

  His Honour - You mean the official who issued this huchao? - Yes.

  His Honour - Who issued it? - I think it was the Hoppo; I can almost say so absolutely. I went to him and told him that I was afraid the Abbey would take these arms somewhere she ought not to take them and I pointed out to him that there could be no objection to the arms being allowed to be conveyed to Hongkong, but that it would be imprudent to allow them to be shipped on board the Abbey and then clear the Abbey for Singapore.

  His Honour - Did the Chinese official to the best of your recollection, or the Hoppo, or the issuer of the huchao, did he agree with that or did he insist on a permit to Singapore? - He agreed with my procedure.

  His Honour - Did he revoke that huchao. Was there ever any new huchao issued in regard to this shipment? - There was another subsequently issued. I wrote at once to the Viceroy and pointed out to him what I had said to the Hoppo and he agreed.

  Mr. Wilkinson - Were any arrangements proposed or offered to the defendant to take them to Hongkong by you? - I offered to Mr. Sylvester that the arms might be conveyed to Hongkong in my vessel which I could be sure would go to Hongkong and nowhere else. That was a regular river steamer running between Canton and Hongkong, or as an alternative that the Chinese Government would at their own expense send the rifles and ammunition to Hongkong. I made that offer very carefully.

  His Honour - Made it in person, or in writing? - I am not absolutely sure that I made it in writing. I called on the U.S. Consul in his office and told him this, I remember, and although very confident, I cannot swear that I wrote. I am certain that the matter was brought to his knowledge more than once.

  Mr. Wilkinson - What was the next step officially taken after that? Any fresh application made to you or not? - It was that the United States Consul asked whether (on 12th August) under these circumstances it would not be possible to allow shipment of arms on board the Abbey, and so clear the Abbey for Singapore.

  His Honour - It was a matter of conversation between you from time to time? - Mr. Sylvester saw me several times in my office. That was the position I took up. He understood that all through. When it was known that the Protocol of Peace had been signed the Consul thought that now the issue of the permit to the Abbey might properly be allowed.

  His Honour - Was a formal application made to you by anyone for the application for Singapore? - I cannot tell you at the moment. What happened was this: on this occasion I had refused to recognise that pass and the vessel remained lying in Canton waters. Nothing was done.  On or about 12th August came news of the Protocol of Peace. The Consul thereon addressed the Viceroy and asked that the vessel might be allowed to clear for Singapore with the arms on board. I then had a consultation with the Viceroy and decided, on the recommendation of the Viceroy, we would allow the shipment of these arms per Abbey for Singapore as directed by the merchant in consideration of a bond. That matter occupied several days. I had to correspond with the Chinese Authorities. It was suggested by the Viceroy as a solution of the difficulty. If the bond were entered into then I would issue the shipping permit.

  His Honour - Who issues official documents? - I do as Commissioner of Customs.

  His Honour - That permit therein referred to is issued by the Commissioner of Customs? - Yes. I laid the matter before the parties interested. I saw both Mr. Sylvester and the U.S. Consul from time to time. Sometimes Mr. Sylvester came in to see me and Dr. Bedloe about it. I informed Dr. Bedloe of the decision and Mr. Sylvester.

  Mr. Wilkinson - Then did Mr. Bedloe object? - No.

  His Honour - That is, no objection was made to give the bond? - None whatever, that I can recollect. The Consul said to me regarding the bond: 'I should say that the certificate to be produced from Singapore should be the certificate of the Chinese Consul there.' There was to be a certificate brought back from the Chinese Consul at Singapore on the arrival of the arms. Dr. Bedloe came to me and said: 'What is the objection to the U.S. Consul there?' I replied: 'I have no objection. I am willing to take the responsibility of making the change.' That came from the U.S. Consul.

  Mr. Wilkinson - As regards the actual bond itself, who drew I up? - I did.

  Mr. Wilkinson - Was it then executed in your office or where? What did you do with it? - It was executed in the Consulate, I suppose. I sent a draft to Mr. Sylvester.

  Mr. Wilkinson - Were you present when it was signed? - No. It was signed in the U.S. Consulate. I did not go there. I suppose I sent it to Mr. Sylvester. I do not remember. He was living at the hotel and I suppose I sent it to him under cover and he went to the Consulate and had it executed. I recollect asking Mr. Sylvester whether he was a member of the firm of Spitzel & Co. I cannot swear who brought it back to the Custom-house. I was doing a great many other things at the time and cannot remember who brought it back.

  His Honour - You testified that there was some objection to details in the bond. Was there ever at any time any objection made by Mr. Sylvester or some-one else to you to Mr. Sylvester giving the bond? - I recollect none whatever. It had never occurred to me until this moment, until this case came on, the original application was to ship arms per Abbey and to send her to Singapore and the tone it took was in accordance with the request of Mt. Sylvester.

  His Honour - When the bond was signed was it given to you by Mr. Sylvester under protest indirectly or by inference? - No. I have no recollection of the slightest indication of a protest.

  His Honour - Do you recollect any indication of a protest against giving a bond before that time? - No. I am speaking entirely in recollection; I have no idea in my own mind that there was ever any such idea of a protest.

  Mr. Wilkinson - As Commissioner of Customs did you receive a certificate from anyone as regards the cargo? - No.

  Mr. Wilkinson - You not only did not receive any certificate but you enquired by telegram? -  I did, and had several telegrams to the effect of 'Abbey not yet arrived.'

  Mr. Wilkinson - My point is this, that whether they were shipping to Luzon or elsewhere the certificate was not returned within the six weeks.

  His Honour - Mr. Drew says it was not returned at all.

  Mr. Wilkinson - Now, were any steps taken to collect the money due on this bond? - Yes; I believe that our solicitor demanded it from Mr. Sylvester.

  Mr. Wilkinson - Yes; but going back before that, did you take any steps to have the demand made? - I cannot tell you absolutely. All I remember is we did take some steps. Mr. Grimes, as a member of the firm of Spitzel & Co., or an employee, was quite willing to accept service either in Canton or Shanghai. The inference is therefore that we took some steps to collect this money. I was informed of that in writing.

  His Honour - As far as the demands are concerned the Referee will take cognisance of the fact, that the Referee had a talk with Mr. Sylvester in the Court, and Mr. Sylvester said he would not take cognisance of the bond unless the law made him do so.

  Mr. Wilkinson - Would a huchao itself in the hands of a skipper be of itself, without any reference to you, sufficient for clearance? - Certainly not.

  Mr. Wilkinson - Have you any knowledge of application to the Chinese Government by either Spitzel or America in reference to munitions of war? - Certainly; I was cognisant of those applications throughout this business and was informed by the -

His Honour - That is not quite the question. Aside from the neutrality laws were there special instructions by which you were counselled in regard to special care of this business?

  Mr. Wilkinson - Yes; were you aware that China was belligerent or neutral in the war between Spain and America? - Neutral; we received instructions.

  Mr. Wilkinson (producing two circulars) - Are these copies of documents? - They are copies of circulars issued by the Inspector General of Customs to the Commissioners of Customs. I should say the copies are translations from the Chinese. They were made in the Custom House here from the original Chinese. The English dispatcn is a correct copy.

[Two circulars were handed in and marked exhibits E and F.]

  Mr. Wikkinson - Did the Chinese recognise the belligerency of the insurgents in the Philippines at any time against Spain or America? - We have been informed from Peking that China promises not to allow arms to be sent to the Philippines when engaged in the war with Spain.

  His Honour - There has been no recognition of the Filipinos as belligerents?

  Mr. Wilkinson - When this bond was executed did you grant any official documents and if so, when, before she left? - I granted a permit ship the arms on board the Abbey. The arms up to this were on shore, or in cargo boats; they were within the jurisdiction of the Chinese authorities of the port.

  Mr. Wilkinson - Did the ship immediately leave? - She did. We cleared her in the usual manner for Singapore.

  Mr. Wilkinson - On behalf of the defendant has the U.S. Consul, Dr. Bedloe, made any claim for duress? - No.

  Mr. Wilkinson - That is my case, your Honour.

  Cross-examined by Mr. Platt - I understand you to say that first the huchao was brought to you. You did not act upon it at all. You would not grant a shipping permit on the first huchao? - You are right.

  Mr. Platt - But afterwards you went to see the Hoppo, possibly the Viceroy, and after that, I think, you said that the huchao was subsequently cancelled. - I pointed out to the Chinese authorities ---

  His Honour - I understood Mr. Drew to say that the huchao was practically cancelled and another issued afterwards.

  Mr. Platt - How was it cancelled? - It wass disregarded because I did not issue the permit. I represented to the Chinese that it ought not to be recognised.

  Mr. Platt - Then was another huchao granted and did you issue the shipping permit? - I think there was one issued.

  Mr. Platt - If so it would be in the archives at Canton? - Yes. If you want any further explanations about that I would like to say this. As well as I remember it was this way. I had a dispatch from the Viceroy approving of this bond and shipment of the arms, and I then allowed them to be shipped, and the bond was sent to me two or three days afterwards.

  Mr. Platt - How did he know the contents of the bond? - I am not absolutely sure. He knew it. Certainly he knew it. He knew it from me.  The whole story is rather stale, and our staff here have telegraphed for the documents.   Mr. Platt - Do you swear now that you had authority from the Viceroy to exact this bond? - Yes.

  Mr. Platt - Given verbally or in writing? - In writing.

  Mr. Platt - Where is it; in the archives at Canton? - Yes.

  Mr. Platt - Can it be produced? - Yes.

  Mr. Platt - As you may be aware, your Honour, the whole point of my case is, that Mr. Drew had no authority to exact the bond, and I want to see it in writing.

  His Honour - I ask you, Mr. Drew, to send me this bond from the Viceroy as soon as you can get it.

  Mr. Platt - Did I understand you to say that the Commissioner of Customs had no discretion at all in regard to the issuing of shipping orders for arms when the Chinese authorities have given an export permit? - Yes.

  Mr. Platt - By Rule 3, as you know, the import and export trade in all arms is prohibited? - Yes.

  Mr. Platt - Is it not their usual custom  - that is, it rests with the Chinese authorities? - The process is this: the Commissioner receives from the Chinese Authorities an official document stating that these arms may be exported and then the Commissioner of Customs issues a permit.

  Mr. Platt - Is not the Commissioner of Customs bound to issue a shipping permit? - No.

  Mr. Platt - Why not? - Because he is supposed to be cognisant of the contents.

  Mr. Platt - Where do you find your authority for that? - I find it in the instructions issued to the service.

  Mr. Platt - When you receive a permit from the Chinese Authorities to export then you are bound to issue a permit, and all your duty is to see that the proper duty is paid? - No; I do whatever is proper to do. It was my duty to read the huchao carefully, then go to the Chinese and say: "Do you mean this or do you mean to revoke it?" Then say: "You must revoke it."

  Mr. Platt - Now my question is, are not the Customs bound to issue a shipping order when a proper export permit is issued? - If a proper one is presented, yes.

  His Honour - I know, Mr. Platt, to my sorrow, that sometimes they do not think it proper. (Laughter).

  Mr. Platt - I know that, but they have absolutely no right to do so.

  Re-examined by Mr. Wilkinson - Mr. Drew, by the word "proper" I understand you to mean, if you approve it? - Yes.

  Mr. Wilkinson - You are aware, I suppose, of the Treaty provisions which I have read out, mentioning the Commissioner of Customs? - I am familiar with them.

  Mr. Wilkinson - Am I right in describing the Customs as an official department of the Chinese Government? - Certainly.

  Mr. Wilkinson - You consider yourself Commissioner of that service? - Yes.

  Mr. Platt - I have an application to make, and it is this. The point is, did Mr. Drew have authority to receive or demand this bond? Anything on that point must be obtained from Canton. We should be allowed to take evidence on that point, sir. Our word is at stake and, of course, we cannot take Mr. Drew's word alone. I would also like to have the evidence of the Viceroy on that point. The point that goes to the whole root of the case is whether authority was given.

  Mr. Wilkinson - My instructions are these, that our case is governed by the Treaty and on evidence given by Mr. Drew, and the question is what the Viceroy could have to do with it. Of course, my client will do his utmost to produce anything the Referee says he must produce.

  His Honour - The Referee has asked Mr. Drew to submit to the Referee, as soon as possible, the original letter from the Viceroy giving authority to demand this bond and to receive it. If that is not obtainable then the Referee will ask Mr. Drew to obtain and submit to the Referee a statement from the Viceroy as to whether he had given Mr. Drew power to obtain this bond and receive it, or not. Mr. Drew will therefore submit this original letter as soon as possible, and if he cannot obtain it he will notify the Referee and the Referee with write to the Viceroy asking him in regard to it.

  Mr. Wilkinson - I have no further witnesses.

  Mr. Platt - Of course, there is another point that I may have to ask. Mr. Drew said Mr. Sylvester raised no objection, and my instructions are different to that. I may have to take evidence upon this.

  His Honour - Of course, you will recognise that the burden of proof is upon you. Here is a bond signed by Mr. Sylvester, and prima facie that is a good bond. If you want to refute it you must do so.

  Mr. Platt - It may be necessary to have Mr. Sylvester's evidence on that point. I make no application at present, and I will take the evidence I have, but it may be necessary later to make such an application.

  Mr. Platt said that the great point he had to make in the case was that Mr. Drew had absolutely no right whatever to exact the bond from Mr. Sylvester. The facts shortly were that the goods were ordered from Mr. Sylvester by the Viceroy of Canton. The terms of purchase were arranged between them and a permit granted to import the goods into Canton. This permit was taken to the Hongkong authorities and an export permit obtained from them, and the goods taken into Canton. After the Cantonese authorities had received the guns they found that there were too many for their requirements and they wished to return some of them. Accordingly arrangements were made between the authorities and Mr. Sylvester that he shoulld take back a certain number of the rifles. Mr. Sylvester agreed to take back a certain proportion and he applied to the U.S. Consul for an export permit to re-export the guns not required from the Viceroy. He obtained the permit from the U.S. Consul and presented it to the Commissioner of Customs in the ordinary way.  Then the trouble began. Counsel's point was that just when the export permit was presented to the Customs by Mr. Sylvester the Commissioner of Customs had nothing else to do but to grant a permit after seeing that the proper duties were paid. When these dues had been paid it was his duty to grant a clearance certificate which would then be taken to the Consulate, the ship's papers obtained and handed to the captain. He contended that the Commissioner ought to have granted a shipping permit to export the goods, when the proper Chinese document was handed to him. Instead of doing so plaintiff entered into negotiations with the Chinese Government and eventually another permit was granted on certain conditions and terms. Amongst these conditions and terms Mr. Drew said he was authorised by the Chinese to obtain defendant's bond.

  Now upon that bond there was a direct conflict of evidence and if he was not authorised to demand the bond then he had absolutely no right to demand it as he did as Commissioner of Customs. The position of the Commissioner of Customs was merely to see that the proper dues were paid; then after seeing the dues were paid to grant a clearance certificate which had to be taken to the various Consulates and the ship's papers would be returned to the captain.

  He did not think it was necessary for him to further refer to the Treaties. A Commissioner of Customs had no power whatever to decide what might or might not be exported or imported. That rested entirely with the Chinse Government themselves and he had merely as a ministerial officer appointed by them to see that the proper duties were paid. Rule 3 which had already been read related to the nature of goods which might or might not be imported or exported, but it was well-known that the Chinese had power to grant special permits and if the authorities in their wisdom granted such special permits it was not for the Commissioner of Customs to forbid it or question it, when the proper document was presented. 

  No money at all passed through the Customs all they had to do was to see that the dues werer paid. The money was paid into one of the native banks or to one of the officers appointed by the Chinese Government to receive the same, and the Customs function was merely to see that the same were paid. That was shortly his point, viz. that the plaintiff had no authority whatever to exact the bond from the defendant.

  Mr. Louis Etzel, who was in Canton at the time of the trouble, was called and examined by Mr. Platt.

  At the time he had nothing to do with the transaction but he remembered the arms being delivered in Canton and the ultimate rejection by the Viceroy of a portion of them. He understood that Mr. Sylvester agreed to the rejection on the condition that they were allowed to be re-exported. The whole thing was a Government transaction and had the Viceroy's sanction. He remembered seeing the document or export permit obtained from the authorities and which was taken to the U.S. Consul. It was chopped or countersigned and although it was purely a Chinese document it contained a European signature. This document which set forth the name of the steamer by which the goods were to be exported together with the port of destination was presented to the Customs and a shipping permit refused.

  By Mr. Wilkinson - Mr. Sylvester was not present but witness knew that the Consul strongly objected to the proceeding. Witness' interest in the matter was quite impartial and he acted solely as a friend of Sylvester.  He had now a financial interest in the arms. He could not explain why the goods were stated to be destined for Singapore when the huchao contained a reference to a purchaser for them in Hongkong. He knew the goods had not arrived in Singapore.

  By the Referee - As a matter of fact he did know where the arms had been landed. They were landed in Luzon by the orders of Sylvester. He was the only man who could have ordered them to be sent there. He did not know what became of them when they were landed in Luzon. He left Canton as a passenger on the Abbey and was under the impression that he was bound for Singapore. Mr. Sylvester remained in Canton until after the ship left, but he must have given orders before he sailed as to where she was to proceed. It was twenty-four hours after he left Canton before he knew that he was a passenger to the Philippines. When they dropped anchor he went to Manila. When he left Canton he had no idea that he was going anywhere other than Singapore. On arriving at Manila he remained some time and afterwards went to Hongkong. As a matter of fact he had never been to Singapore at all. The captain's name was Ellis, but he did not know what his initials were. He left Canton as a passenger to Singapore and was taken to Luzon against his will. That he swore.

  Mr. Platt intimated at this stage that he was at a distinct disadvantage inasmuch as he could not call Mr. Sylvester.

  In reply to the Referee Mr. Platt could not say that Dr. Bedloe protested against the bond being signed, but Mr. Sylvester did to Mr. Drew.

  Mr. Wilkinson remarked that there was just no evidence of that.

   Mr. Platt further replying to the Referee said he believed the protest to have been a verbal one. He was not aware that anyone else was present, but the gentleman who instructed him had informed him that such a protest was made.

  At this juncture the Court adjourned and on re-assembling Counsel on either side briefly addressed the Court.

  Mr. Platt on behalf of the defendant proceeded to read a number of Treaty provisions with the object of showing that Mr. Drew was not justified in exacting the bond and that his duties in the interest of the Chinese Government were merely fiscal, and that when the Chinese document was presented to him, it was his duty to grant a clearance certificate, whereupon the ship's papers would be handed back to the Captain. He proposed to read a short extract from a pamphlet by Mr. George Jamieson on the Revenues of China regarding the duties of Commissioners of Customs.

  Mr. Wilkinson - I have the greatest respect for Mr. Jamieson, but I must object. Mr. Platt can adopt it as his own opinion.

  The Court over-ruled.

  Mr. Platt continuing read the extract which set forth the duties of a Commissioner, viz. to see that the dues were paid, whereupon he had to grant a clearance certificate; the ship's papers could them be procured from the Consul to which the ship was attached and full leave to sail obtained. 

  Now with regard to that point  he could refer them to Rule 3 of the Treaty of Tientsin dealing with the prohibition of either the export or the import of arms, and would remind the Court of the fact that Mr. Drew had himself in evidence that morning admitted that if the Chinese Government liked to grant special permit to export arms as, of course, it was their right to do, and any foreigner came to him with such special permit from the Chinse authorities to export arms then he would have no other alternative if that special permit was in due form but to grant a shipping permit. That was to say, that he would have to give directions for these goods to be shipped, as his duties were merely ministerial. He could not go behind such a permit once obtained from the Chinese authorities, for it was not within his province to say what goods should or should not be shipped. It was within the province of the Chinese authorities to say whether such a permit should be granted, and this having been obtained the Commissioner of Customs had no power to prevent the export of the arms.

  They had it in evidence that Mr. Sylvester wished to export thee goods and he had obtained from the Chinese Government a special permit to do so. They also had it in evidence that this special permit was taken to Mr. Drew and Mr. Drew said in regard to it that he had his doubts as to where the goods were to be exported and therefore, on account of that, he had his doubts as to whether he coulf grant the usual sshipping permit and forthwith he put himself in communication with the Chinese authorities.  

  Counsel argued that, when this special permit was produced to Mr. Drew, Mr. Drew had no other course open to him but to fulfil the orders of his superior officers and grant the permit to ship. He did not do so, however, because he said he thought China might be infringing her neutrality by doing so. It was plain that the authorities would not have infringed her neutrality by allowing the arms to be exported in a United States vessel, because he would ask them to bear in mind on this point that at the time the Protocol of Peace hd been signed between the United States and Spain, whereas this trouble did not arise until some time afterwards, the bond being signed on the 25th of August.

  But, even assuming that such was not the position of affairs, he maintained that China's neutrality would not be infringed, and quoted a long extract from Douglas Owen's page 350, together with letters from Earl Granville dealing with this subject at the time of the Franco-German War; following the same up by copious references to the same work under different headings.

  Proceeding, he maintained that even if China had issued a proclamation forbidding the exportation of stores, arms, and warlike materials on the ground of infringing her neutrality she could by special permission allow arms to be exported and by doing so she would not have violated her neutrality, provided such permission was granted impartially to either America or Spain. 

  The Customs had only to see the dues were paid and when that had been shown and the permit presented it was the Commissioner's duty to sanction the clearance in order that the ship's papers might be regained from the Consulate. Mr. Drew's authority to exact this bond must either be direct or indirect. The only way he could obtain direct authority was from the Chinese. Mr. Drew had intimated that he was in possession of such authority by a letter written by the Viceroy and he (Counsel) understood that the Court would ask that the original letter should be produced. If it could not be produced he further understood that the Court would put itself in communication with the Viceroy and ask whether he did give any such authority.

  Mr. Goodnow said that was the present position.

  Mr. Platt, continuing, commented upon the existence of any indirect authority and remarked that, whilst it was not necessary to repeat himself by saying that a Commissioner's duty was merely to see that the dues were paid, he might add that Mr. Drew had himself admitted that he had no discretion in regard to the exportation or importation of arms.  When that first special permit was granted to Mr. Sylvester Mr. Drew would have been well within his rights if he had granted a shipping permit, and Counsel went further and said that he should have done so. The mere fact of a war between the United States and Spain had nothing whatever to do with Mr. Drew, and it certainly gave him no authority to exact the bond. Even assuming that China had passed a law forbidding the exportation of arms it clearly could have been revoked without infringing her neutrality as he tried to explain previously. The Chinese authorities alone were the people to say on what conditions they would allow the special export of arms. It had absolutely nothing whatever to do with the Commissioner of Customs.

  If the Chinese authorities said they would allow arms to be exported on this particular occasion and in what conditions, they were the sole judges of what was right and what was wrong in the matter. In this case if they said they would not allow this exportation of arms to take place unless a bond was given then it might be that Mr. Drew was right in saying that the bond in question was legally demanded by him. But unless he had that special authority and it should be produced in writing and not verbal authority because the Court would notice that the bond was under seal, and it was always a rule of law that if a man authorised another to receive a bond under seal to exact that bond.

  In conclusion he submitted that Mr. Drew had no authority to exact the bond and having no authority it was void and without legal weight.

  Mr. Wilkinson in reply said that his learned friend from the necessities of his case had dwelt upon the duties of the Customs Commissioners, but such had nothing to do with the case. The duties of Mr. Drew were known to him by instructions from Peking and whatever these duties might be they had nothing whatever to do with the defendant. 

  The Treaty regulations provided for commerce in non-contraband goods, articles which at all times were allowed to be traded in, but what was the use of re-reading articles of treaties as regarded allowable commerce, when what they were dealing with was the absolute discretion of the Chinese Government reserved by one of its Treaties to make such rules and regulations as it thought fit for the carrying on of a particular trade? The Chinese Government had made no agreement with Mr. Sylvester or with the United States as to whether the Commissioner of Customs had power to do certain things or not. China had said that there should be no export of arms and if arms were exported to be absolutely at the discretion of, and in such a manner as this Government of China thought fit, and in such terms as they thought right to lay down.

The ordinary duties of a Customs Commissioner had nothing to do with the defendant in the circumstances of this case. The Customs was a Chinese Government institution and they had it in evidence that Mr. Drew had explicit instructions from Sir Robert Hart (as produced to Court) to take precautionary measures with regard to the export of arms at this particular time. They might call officers of a Government ministerial, executive, administrative or anything they pleased, but there must be a certain discretion residing in these officers, and from the action of the Consul it was evident that something had to be done to induce Mr. Drew in the exercise of an obvious discretion in granting or not granting a shipping permit. Mr. Drew not being satisfied with the huchao which was brought to him exercised the discretion in his power and went to the Viceroy informing him that he did not think the permit should be granted, except in the event of a bond being signed, which was ultimately done.

  As regards Mr. Platt's references to International Law and his quotations from Douglas Owen, it was well-known he said at that time England was in sympathy with France, and Earl Granville's letter was only the expression of a Foreign Minister in like sympathy. The Chinese authorities had doubtless heard of and acted on the Alabama case and the claims there made by the American Government. The Rules governing the Arbitration in that case were then read by Mr. Wilkinson. In conclusion he submitted that the discretion of the Chinese Government in the matter could not for a moment be doubted and that the bond was a legal instrument which the officials of the Government had power to demand.

  The Referee said he would send his award to the U.S. Consul at Canton as soon as possible and asked Mr. Drew to use every expedition in the matter of the documents which he had promised to produce. If the Consul at Canton disapproved of the award it would be referred to the Minister at Peking for final settlement. If he approved of it then the defendant if he thought fit had a right to appeal to the United States Circuit Court in California, the claim involving over $2,500 gold. 

  He had, he said, to thank Counsel on either side for the courtesy they had employed in putting forward their respective cases.

 

Source: North China Herald, 5 June 1899

U.S. CONSULAR COURT.

Shanghai, 2nd June.

Before John Goodnow, Esq., U.S. Consul-General.

(Sitting as Referee.)

DREW v. SYLVESTER.

   A sitting was held in this matter, in which Mr. Edward B. Drew, recently Commissioner of Customs, at Canton, petitioned for the recovery of Tls. 15,000 from the defendant, Mr. W. F. Sylvester, lately of the firm of Louis Spitzel & Co. of Shanghai, and elsewhere in China, alleged to be due on a bond. Mr. H. P. Wilkinson appeared for the plaintiff, and Mr. Platt (Messrs. Stokes & Platt) for the defence.

   The object of the sitting was to consider whether a number of documents, offered by both sides, should be admitted.

   His Honour admitted some, rejected others, and with regard to what purported to be an unofficial translation of despatches in the Viceroy's yamen at Canton, submitted by the defence, said he could not admit them, but if on looking through them he thought they were essential he would take steps to ascertain their correctness from Canton.

 

Source: North China Herald, 3 July 1899

U.S. CONSULAR COURT.

Shanghai, 26th June.

Before John Goodnow, Esq., U.S. Consul-General. 

(Sitting as Referee.)

DREW v. SYLVESTER.

  Judgement was given in this matter, in which Mr. Edward B. Drew, recently Commissioner of Customs at Canton, petitioned for the recovery of Tls. 15,000 from the defendant, Mr. W. F. Sylvester, lately of the firm of Louis Spitzel & Co., of Shanghai, and elsewhere in China, alleged to be due on a bond.  Mr. H. P. Wilkinson appeared for the plaintiff, and Mr. Platt (Messrs. Stokes & Platt) for the defence.

THE DECISION OF THE REFEREE was as follows:

  In July 1898 a large quantity of rifles and cartridges were brought from Hongkong to Canton by W. F. Sylvester (the defendant in this case,) in the river steamers plying regularly between the two ports. These arms were landed in Canton under a huchow or permit from the Cantonese Authorities. During the same month the British registered steamer Pasig arrived at Canton in ballast. On August 5th 1898, the captain of the steamer above mentioned, brought to Mr. E. B. Drew, the Collector of the I.M. Customs at Canton (the plaintiff in this case) several documents.

  [1.] - A letter from the British Consul in Canton that the Pasig had been sold to W. F. Sylvester.

  [2.] - A letter from Edward Bedloe, the United States Consul at Canton, that W. F. Sylvester had registered in the U.S. Consulate at Canton, a bill of sale of the Pasig to W. F. Sylvester and that the craft had been given American registry under the name of the Abbey.

  [3.] A huchow or permit from the Hoppo or Customs Taotai (Chinese) for the shipment of five hundred rifles and 500,000 cartridges of the above described arrival of munitions of war from Hongkong. This huchow was based on a letter from the U.S. Consul that a purchaser had been fund in Hongkong for the rejected portion of the arms, and asking therefore that a permit be granted for the re-export of that portion. Application was then made to the I.M. Customs to clear the Abbey with the said rejected munitions of war on board for Singapore. The Collector of Customs refused to grant such clearance under the above-mentioned huchow. The Chinese Authorities later offered to allow the shipment of the arms in question to Hongkong either in the regulation steamers or in a man-of-war to be furnished by the Chinese Government. Neither offer was accepted.

On August 12th Consul Bedloe asked that the vessel be cleared for Singapore with the aforesaid arms on board, and stated that the protocol of peace between the United States and Span had been signed. After consultation the Viceroy instructed Mr. Drew to allow the clearance of the Abbey provided that Mr. Sylvester gave a sufficient bond that the arms would be taken to Singapore and to no other place. (Ex. 1.)  Mr. Drew says this latter was received by him on August 21st and that he immediately informed the U.S. Customs and Mr. Sylvester of its contents, and submitted to Mr. Sylvester a draft of the proposed bond. After some minor changes the bond was signed by W. F. Sylvester for himself and Spitzel & Co. on the 25th of August, binding themselves, under a penalty of 15,000 Kuping taels, to convey the said arms in the steamer Abbey to Singapore and to no other place, and to produce to the Commissioner of Customs at Canton within six weeks of the date of the bond, an official certificate from the U.S. Consul at Singapore that the 500 rifles and 500,000 cartridges had duly arrived on board the Abbey at Singapore. (Ex. 2.) Mr. Drew then cleared the Abbey for Singapore.

  No claim is made that the Abbey went to Singapore and no certificate from the U.S. Consul there has ever been filed at Canton, as provided in this bond.

  Mr. Etzel, witness for Mr. Sylvester, testified that he went on the Abbey from Canton directly to Batanzas on the coast of Luzon; and the Captain of the Abbey testified "the cargo was landed on the same day of the ship's arrival at Batanzas."  It is a matter of common knowledge (though not brought out in the testimony before me and only added to round out the statement of facts and not in any way as essential to the case) that most of the cargo was delivered at Aguinalodo's representatives, while the ship and the small remainder of the cargo were seized by the U.S.S. Culloch.

  The plaintiff, E.B. Drew, sues for the amount of the penalty of the bond executed on the 25th of August 1898 (Ex. 2.) The defendant, W.F. Sylvester admits the bind and its execution but denies that it has or ever has had any binding effect on him; or that he is or ever was under any legal obligation whatever by reason thereof. He avers the said document was void ab initio. 

  This suit was brought before A. H. White, then Acting Consul at Canton, and referred to me by written agreement of both parties to the suit. Having been duly commissioned by the U.S. Consular Court at Canton as referee, I heard the testimony and arguments therein on the 28th of April 1898, and the 2nd of June 1898.

  There is no question as to the general right of China to prohibit either the import or export of firearms and explosives. This has been expressly recognised by treaty (Treaty of Whanghai - Supplementary Articles to the Treaty of Tientsin.)

  Neither does any question of a continuous voyage enter into the case. The rifles and cartridges were landed at Canton and were under Chinese jurisdiction and could only be exported by express permission of the Chinese authorities.

  Neither can there be any doubt as to the necessity laid upon China that great care should be taken in allowing shipments of arms. For several years there had been a chronic rebellion in the Philippine Islands. The insurgents had not been recognised by any nation as belligerents; but the rebels, keeping up a constant guerrilla warfare, seemed only to need a supply of arms to make serious trouble for the Spaniards. To safeguard against any shipment of arms from China, the Spanish Minister had applied to the Government of China on the 26th of December 1896 to strictly prohibit the export of munitions of war from all Chinese ports to the Philippine Islands and to instruct the Viceroys whose provinces border on the sea, and the Inspector-General of Customs to "take effective measures to prevent the export of munitions of war to the Philippine Islands from provinces under their jurisdiction." The Tsungli Yamen issued the instructions as requested and the Inspector-General of Customs on the 4th of January 1897 issued an order to all Commissioners of Customs "to do whatever may be locally necessary to give full effect to the spirit of the Legation's request and the Yamen's reply." (Ex. 3.)

  On the 5th of May 1898, after the outbreak of war between the United States of America and Span, the Inspector-General of Customs again, at the direction of the Tsungli Yamen, issued a circular to the commissioners calling attention to the Neutrality Proclamation of China, and ordering them to issue special local proclamations, enjoining the strictest neutrality. The British Government, having regard to the second rule of the conditions precedent to the Treaty of Washington, A neutral Government is bound not to permit or suffer either belligerent to make use of its ports or waters for the purpose of the renewal or augmentation of military supplies or arms, "had adopted stringent regulations to prevent the use of Hongkong as a military base for either belligerent. No arms could be shipped therefrom direct to Luzon. Dealers in arms might, however, ship arms from the depots in Hongkong to a Chinese port and then attempt to take them to Luzon. It was therefore incumbent upon the Chinese Government "if it wished to enjoy the rights of a neutral state, to see to it that its territory should not be made a point of departure of hostile expeditions against either belligerents."  (Inst. Int. Law, 1875.) This duty fell especially on the Commissioners of Customs at the various ports. They are the officers most generally used in all countries to enforce neutrality. (Bayard, 28th May,1885.) In most Chinese ports, moreover, the Commissioner of Customs is the only responsible official of the Chinese Government with knowledge of foreign affairs and international law. He is the natural adviser of the Chinese officials in all such matters.

  The responsibility of preventing shipments of Arms is peculiarly direct in China. The general trade in arms is prohibited by treaty, and permission to export arms can only be given by the Chinese Government in individual cases. Arms are not an article of general commerce dealt in continually and without interference by the Government beyond the ordinary precautions taken for safety.  Such a transaction can only be made by express permission of the authorities, so those authorities must see to it that such permission is not used to the detriment of a friendly State. This duty lies on every member of the service. When the Commissioner of Customs at Canton received the permit from the Hoppo to export these arms, he would have been derelict in his duty to the Chinese Government had he not held such permit until he could call the attention of his Viceroy to the danger of clearing the Abbey with arms; and to the suspicions aroused by the fact that clearance was asked for Singapore under a huchow implying clearance to Hongkong.

   In this particular case the arms came from Hongkong to the Authorities in Canton by the regular river steamers. Immediately following came an empty steamer under the British flag in the name of one Grimes, an employee of Spitzel & Co.  Grimes and this steamer had had trouble at Hongkong with the British authorities over an attempted shipment of arms. Grimes transferred the steamer to Sylvester as a member of the firm of Spitzel & Co., his employers. Sylvester being an American, the vessel was put under the American flag.  When a portion of the arms had been "rejected," Sylvester accepted the rejection; and "a purchaser having been found in Hongkong, asked clearance of the vessel and arms to Singapore. The Collector of Customs, refusing this clearance, offered to allow the rejected arms to go back to Hongkong by the regular Canton-Hongkong steamers, or by a Chinese man-of-war; thus protecting China against a public infraction of her neutrality, and not causing any expense to Sylvester in getting the arms to his "purchaser in Hongkong." But Sylvester was only content with clearance to Singapore. After the Commissioner had received firm instructions from the Viceroy, Sylvester gave the bond in question on the condition that the vessel should be cleared for Singapore. The vessel, this cleared, sailed, leaving Mr. Sylvester in Canton. Etzel says Sylvester was the only one competent to order where the vessel should go. Etzel says that he went on board as a bona fide passenger for Singapore and was taken to Luzon against his will. He, however, did not afterwards go to Singapore. The Captain of the Abbey says that all the Europeans on board knew before the Abbey left Canton that she would go direct to Luzon, and that Mr, Etzel went to instruct the insurgents in the use of the Maxim guns which were a part of the cargo, and that he did in fact so instruct them. The facts of the ship's career after leaving Canton amply justify Mr. Drew's suspici0ns and his wisdom in taking especial precautions in regard to this shipment, which actually proves to have been conceived as a deceit against the Chinese authorities and a deliberate attempt to evade the Chinese neutrality regulations.

  Mr. Drew testified positively that he received instructions in writing from the Viceroy, the highest Chinese authority of that region, on August 21st, to demand the bond which was given on August 25th. (Ex. 4.) No positive contradiction of this is offered but only a purported translation of a letter from the Governor (Ex. 5.), of the same tenor, the original of which, it is claimed, was dated Sept. 2nd. By its own terms however it could not have been written on Sept. 2nd.  (See note thereto.) But Mr. Drew puts in the original of the letter from the Viceroy, dated August 21st and his own date mark of receipt (August 21st) made, he says, at the time. I see no reason to doubt that the fact is as Mr. Drew states it - viz. that this letter from the Viceroy was received on August 21st.

  It is plain, therefore, that China was not only under the general obligation of neutral nations, but also that special agreements had been made to have the Viceroy and the Customs officers use every diligence to prevent shipments of arms to the Philippine rebels from Chinese ports. The circumstances surrounding this shipment were such as to arouse suspicions in the mind of Mr. Drew and in the mind of the Viceroy as soon as he understood them; which suspicions events justified. These arms could only be exported by special permission of the Chinese Government, as a favour and not as a right. It follows that the Chinese Government was competent to direct the terms on which it would give such permission. Such terms were laid down in the instructions given the Commissioner of Customs by the Viceroy. The Commissioner of Customs in exacting this bond then was acting under, and in conformity to, the instructions of the Viceroy and the agreements and engagements of the Chinese Government. The conditions of the bond have not been fulfilled.

  I therefore give my decision in favour of the plaintiff, E. B. Drew, Commissioner of the Imperial Maritime Customs of China, and against W. F. Sylvester, individually and as a member of the firm of Spitzel & Co., surety on said bond, in the full amount of the penalty of the bond dated August 25th, 1898 (15,000 Kuping taels) with interest at four per cent per annum from Oct. 27th, 1898, to date of payment of this judgment; and for the Court costs in this case and for the Referee's costs. Interest shall be credited on above judgment at four per cent per annum on any sum or sums now in the hands of the Chinese Government and owing to said Sylvester and held as security for this bond, said interest to be figured from such time as said sum or sums were due.

JOHN GOODNOW, Referee.

Shanghai, 19thJune, 1899.

Approved [n.d.] June 1899.

H. S. SMITH, U.S. Vice-Consul in Charge, Canton.

[Note; The exhibits have not been transcribed.]

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