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Colonial Cases

Findlay Richardson & Co. v. Pitman & Co., 1872


[jurisdiction - appeals]


 

Findlay Richardson & Co. v. Pitman & Co.

Supreme Court for China and Japan, Yokohama
Hannen AAJ, August 1872
Source: Japan Weekly Mail, 17 August 1872, p. 513


 

Our right of appeal.


Sir Edward Hornby's decision in the case of Findlay Richardson & Co. versus Pitman & Co., was read on Tuesday from the Bench by Mr. Acting-Assistant-Judge Hannen, and will be found below, together with the able argument of Mr. Dickins, to which it is virtually a reply, and to the force of which it yields.

The effect of the decision is of high importance to British subjects in Yokohama, inasmuch as it affirms that the Court here is not a Supreme, but a provincial, Court, under the jurisdiction of Her Majesty's Assistant Judge, and entirely confirms the view is we expressed in our Weekly issue of the 20th July. After arguing that it could not be considered a Supreme Court, we said:- "But if we look on our Court as a Provincial Court, resided over by one of the officers of the Supreme Court, Who holds some of the powers vested in that Court, we have an intelligible position, then we cannot find that any provision is made for that position."

The Court will revert, therefore, until or unless the Order in Council is amended, into a Provincial Court, although the Chief Judge promises but he will take measures to enable the Assistant Judge to exercise an admiralty jurisdiction. Until such amendment of the Order in Council, the Court will be here after styled Her Majesty's Provincial Court for Kanagawa.

Mr. Dickins' argument is as follows:-

1st. - Before Mr. Hannen came over to Yokohama, the suitor had, in every case over $250 in value, the advantage of a cheap and speedy mode of obtaining the opinion of the Chief Justice at Shanghai, I way of appeal. This he possessed under the Order in Council and the Rules attached thereto, and the Chief Judge, in appointing Mr. Hannen, could not have had the intention, even if the Chief Judge, in appointing Mr. Hannen, could not have had the intention, even if the Chief Judge possessed the power, of taking away the right, and leaving the suitor here to act under the 14th Section only of the Order in Council, which section is clearly insufficient, as it provides only for a "re-hearing" of points arising in a case originally brought before the Supreme Court, presumedly before the Chief Judge, after a reference of such points to the Assistant Judge, by the order of the Chief Judge.

2nd. - If the ruling of Mr. Hannen be correct, then in appointing Mr. Hannen to his present post what was given with one hand was taken away with the other, to say the least and the community of Yokohama, while great gainers by the substitution of a trained judge for an untrained Consul, are great losers in that they are deprived of all recourse to the opinions of the Chief Judge by the convenient and cheap mode of appeal they formerly possessed, well, as already shown, they cannot obtain any re-hearing under Section 14, and just are, in effect, of any mode of appeal or re-hearing whatever, except in cases of $2500 in value. In such latter cases, even, they can only appeal directly . Council, a proceeding practically out of the question, except in very rare instances.

3rd. - this, however, it is contended was not intended by, and has not resulted from, the appointment of Mr. Hannen. The Court here, it is submitted, is not the Supreme Court to all intents and purposes. It is not, indeed, properly speaking, the Supreme Court at all. For its jurisdiction, besides being entirely confined to the Yokohama Consular district, is much less extensive than that of the Supreme Court, and the special and distinguishing function of a Supreme Court, namely, and appellate jurisdiction from inferior Courts, is, in the case of the Court at Yokohama, who[ly wanting. The Court may possibly hold the relation to the Supreme Court that a Nisi Prius Court at home holds to one of the Superior Courts at common law. In such case the Provincial Court is not abolished by it, suspended by and incorporated with it, in such manner that while the Acting Assistant Judge has jurisdiction over and above that possessed by the Provincial Court, he ought yet, where no express provision to the contrary has been made, to follow as closely as circumstances Will permit the rules of the proceedure [sic] relating to a Provincial Court, and to consider himself bound by the Sections of the Order in Council applicable to Provincial Courts in circumstances to which those Sections are applicable. A common law Judge may in certain cases sit in the High Court of Admiralty, but he does not, by doing so, in any way alter the procedure of that Court.

4th. - It is clear that under Section 14 decisions in suits he cannot be re-heard, and if the right of appeal from the Court here as a branch or circuit Court of the Supreme Court or Court in banco Shanghai does not exist, then it would seem that the Chief-Judge has the power of depriving any suitor in any Provincial District of his right to seek the opinion of the Chief Judge, either by way of re-hearing all by way of appeal, by simply appointing the Assistant Judge or Law Secretary, or Acting Law Secretary, under Section 38, to visit "in a magisterial or judicial capacity" any Provincial Court. It can hardly be the intention of the Order to confirm this power, and even in the event of its having been confirmed, it can hardly be the intention of the chief judge to exercise it in the appointment of Mr. Hannen

5th. - No harm, it is obvious, is done to the suitor when the Chief Judge himself visits a Provincial Court, the intention of the Order in Council being simply that in cases under $2500 and over $250, the parties shall have the faculty of resorting to the Chief Judge, and in case is over that amount shall resort to the Chief Judge ere appealing to the Privy Council. The Chief Judge brings the Supreme Court with him.

6th. - If Mr. Hannen's ruling be right, in cases under $2500 his decisions are absolutely final, and in case is over $2500 no appeal lies except direct to the Privy Council, practically a useless privilege, and thus, in the event of Mr Hannen's opinion being correct, there is in fact no appeal from his judgments, except upon such grounds as are mentioned in the class of cases of which the case of Ko Khine v. Snadden, L.R. 2 P.C. 50, is a type.

It is contended that there is a common law right of appeal from a Nisi Prius Judge to the Full Court, or from any inferior branch of a Court to the Court itself, and that an Order in Council cannot abrogate the common law rights of the subject in non-Christian states neither conquered nor ceded, except by the aid of an enabling Act of Parliament. Now, the Foreign Jurisdiction Act, the sanction, so to speak, of the Order in Council, gives the Queen the same powers over British subjects in China and Japan that Her Majesty possesses over British subjects in conquered or ceded countries, and no other power, except, perhaps, incidentally, the power to create certain offences, such as those which result from infraction of treaties by British subjects. It is submitted that every British subject carries with him into ceded countries not retaining their own laws, or unprovided with legal systems, the  Common and Statute law of England, to the extent of its applicability, save so far as his rights may be controlled by Acts of Parliament and Orders made in pursuance thereof, and in accordance there with. It is not, therefore, probable that the Queen could, by a mere Order in Council, take away even the common law right of appeal from any inferior Court established by the said Order. Blackstone, it is true, says that "any colony acquired by conquest or cession is subject to such laws as the Sovereign in Council may impose," but he only quotes two cases in support of the assertion, Calvin's case, in which the main point decided by the Judges was quite other, and the case of Campbell vs. Hall, Cowper, which gave the Crown legislative power overcome conquered countries. But it is quite certain that the present day this prerogative (always over-rulable by Parliament) could not be legally extended beyond the demands of necessity and the public weal, and such demands, in these days of quick communication, I'm much less imperative and much less common then in former times. This particular question, however, need not be discussed, four until such prerogative is exercised and laws imposed thereby, a British subject may still refer to the common law of England, and British subjects in any conquered or ceded country can always refer to the law of England, so far as not abrogated by such exercise as aforesaid of the Crown's prerogative and applicable to his circumstances (Lautour v. Teesdale cited below.) His common law rights, in a word, if abolished at all, must be so expressly or by certain implication. that has not taken place with respect to the common law right of appeals inherent in British subjects within the jurisdiction of the Order. Indeed, sections, 4, 5 and 6 specially reserve his rights both as to law and procedure civil and criminal. By section 38 the visiting of the Provincial Court by an Assistant Judge is contemplated. It is not said that the Provincial Court is abolished by such visiting, nor is it anywhere said that there shall be no appeal from an inferior Court presided over for a time by the Assistant Judge, or even changed into an intermediate Court between a Provincial Court and the  Supreme Court, or even made thereby for a time a subordinate part of the Supreme Court, to the Supreme Court of the whole area coming under the operation of the Order in Council. It was probably not thought necessary to say any thing about it, since in all probability it was deemed that any Judge so superseding the Provincial Judge would be naturally bound in states of circumstances where applicable and necessary, by the rules governing Provincial Courts. If that were not so, the good effects of such an interference would be exceedingly problematical. A pending suit, for instance, begun by the suitor under the expectation of being able to have recourse if necessary to the opinion of the Chief Judge, might have to be finally determined by the Assistant Judge or Law Secretary or even by an Acting Law Secretary, or if appealed from to the Privy Council only - a luxury in which few suitors here can indulge. In other words so far as appeals to the Privy Council are concerned, a Court presided over by an Acting Law Secretary would be on the same level as the High court of Judicature in India, or the Supreme Courts of the Australian colonies, the appealable amounts in which are about the same as the amount mentioned in the Order in Council, namely 500 pounds (2,500 dollars).

8th. - The learned Assistant Judge is of opinion that since an appeal of some sort must lie from his decisions, each appeal must be direct to the Privy Council. If my contention is correct, this cannot be the case, since the Court here is not one of dernier ressort. And if it can be shown that the Order there is no appeal from the decisions of the Assistant Judge direct home, this is a strong argument. Let sec. 131 then be examined. The appeal to the Privy Council is only from a final decree or order of the Supreme Court. Does an Assistant Judge, visiting a Provincial Court, not as Deputy Chief Judge, but "in a magisterial or judicial capacity" under sec. 38, convert that Court into a Supreme Court? Confessedly not, to all intents and purposes, at least. Why then into a Court of dernier ressort, the only Court from which an appeal to the Privy Council can lie?  Some of the powers of the Supreme Court may be delegated to the Court here under such circumstances, but not, it is submitted that of being a Court of final resort. Were a Deputy Chief Judge or the Chief Judge himself to visit the Provincial Court the case is obviously different, and does not need any arguement [sic]. Is the visit by the Assistant Judge or Law Secretary to have the same effect as the visit by the Chief Judge? If so, with what object can the Chief Judge visit a Court presided over by an Assistant Judge?

9th. - The Chief Judge may no doubt in proper cases appoint a Deputy, but it is submitted that he cannot in any case clothe the Assistant Judge or Law Secretary as such with all the powers of the Supreme Court. It is open to doubt whether they can be so clothed with any of the attributes of the Supreme Court. That their decisions should not be subject to the revision of the very authority that appointed them, seems not intelligible, and, as before urged, Sec. 14 does not refer to decisions of an Assistant Judge on a suit, but on matters and questions specially referred to him in a suit. it is more than doubtful whether the Court at Yokohama is anything more than a Provincial Court, presided over, because of its importance, by the Assistant Judge, in lieu of being presided over by a non-legally trained Consul.

10th. - Section 14 shows that decisions of the Assistant Judge upon questions in a suit are not final, and this seems probative of my contention that his decisions on a suit were not intended to be final. It would be contrary to common sense that's a judicial officer whose decisions on even more incidental points referred to him in a pending suit are subject to re-hearing as of course, should be able to deliver final judgments from which, when involving less than $2,500, there is no appeal whatever, and from which whatever the sum involved, there is, practically, no appeal whatever. The learned Judge of the Court at Yokohama must be regarded as appointed under Section 38 and not under Section 14, and there is absolutely nothing whatever in the Order to show that the right of appeal to the Chief Judge from a Provincial Court is taken away by the mere substitution of the Assistant Judge by the Chief Judge for the ordinary Judge of such a court.

11th.- The Court here must be either - 1st. a subordinate, nisi prius, or circuit portion of the Supreme Court, in which case it is contended that the common law right of appeal to the Full or Supreme Court not having been expressly taken away by the Order in Council, still subsists, and must be exercised either in the manner directed to be observed in the case of appeals from a Provincial Court, or in that to be followed in appeals to the Privy Council. Mr. Hannen, it is believed, is of the opinion that he has Vice Admiralty jurisdiction. He does not possess jurisdiction in Matrimonial causes, nor, it is contended, a lunacy or contentious probate jurisdiction. And it seems very doubtful whether he possesses at Admiralty jurisdiction, but, if you does, that is not sufficient to make the Court a Supreme Court for the purposes of appeals, not even in Admiralty cases, or at all events, for the purposes of appeals generally.

It is obvious that special reasons may exist, however, four bestowing final at Admiralty jurisdiction upon any Court sitting at Yokohama on the ground of public interest.

Or, 2nd. - A Provincial Court, with or without certain increased jurisdiction, in which case the right to appeal is clear.

It is difficult a priori to conceive how a Court can be Supreme with no inferior courts subordinate to it, and equally difficult to conceive how, if the Court here is the Supreme Court to China and Japan, and not either an inferior branch of it or a Provincial Court, it should possessed only so limited a jurisdiction in Japan - a jurisdiction precisely co-extensive in area with that of the ordinary Provincial Court of the place. And I can see no authority for any sort of permanent establishment of a circuit branch of the Supreme Court. The Supreme Court cannot be sitting in Shanghai and Yokohama at the same time. Section 38 does not give the Supreme Court at Shanghai any other power than that of "visiting" a Provincial Court, not of abolishing such a Court, and the very word "visiting" implies the temporary character of the arrangement. It is contended, therefore, that in reality the Court here is neither more nor less then a Provincial Court, and that, as such, an appeal lies from it to Shanghai. It is contended that even if Mr. Hannen has a jurisdiction beyond that of an ordinary Provincial Court, which appears very doubtful, that delegated jurisdiction does not alter in any way the right of appeal. The Courts of dernier ressort are those provided for in the Order and none other, namely, the Provincial Courts in cases involving less than $250, the Supreme Court at Shanghai in cases involving no more than $2,500.

This Court, if not the former, is, at least, a branch of the letter [sic], a subordinate and inferior portion of it, bound by its decisions and as such, not such Court of dernier ressort as to induce the Privy Council Committee to hear appeals from it.

12th. - The motion to which this argument is attached closes with a request for a partial re-hearing for the purpose of raising the question weather in the event of an appeal not being grantable, a partial re-hearing similar in effect to an appeal, can be accorded under Section 14 of the Order in Council.

Appendix

Blankart v. Galdy Salkeld 411.


Any uninhabited country newly discovered and inhabited by the English is governed by the laws of England.

Adv. General v. Renee Surnomoye Dossee 2 Moore P.C.C.

When Englishmen establish themselves in an uninhabited or barbarous (the case referring to India shows that under barbarous, for legal purposes to a considerable extent, are included non-Christian countries) Country they carry with them their own laws.

Lautour v. Teesdale 8 Taunton 830.

British subjects resident in a British settlement abroad are governed by the laws of this country. Thus a marriage at Madras according to the canon law (which was the common law as to marriage, obtaining in England before the Marriage Act which was applicable to England only) though not according to custom at Madras, was held valid.

Benfinch v. Willing 2 Hare 1. The general laws of this country, not been peculiar or technical merely, are applicable to questions relating to laws in a colony a different jurisprudence prevails, it is shown that the colonial laws have provided for and are different in such questions.

So, too, in America, to this day in many cases the English Common Law is still applied. I wish I could refer to a case lately before the Supreme Court of New York in which a very long and elaborate judgment was delivered by the most eminent Judge on the New York Bench, Judge Daly, I believe. The case related to a lunatic Parsee whose friends in Bombay wished to get him back again, one on his side it was uged [sic] that his relatives were more anxious about his money than about him personally. The evidence as to whether it would be good for him to go back or not was on the whole very conflicting, but in the end the Judge ordered him to be taken back. The lunatic pass through the support on his way to Bombay in charge of Major Constable who kindly lent me a printed copy of the Judgment to peruse. For guidance upon the numerous points arising in the case and not provided for in the Municipal law of New York, the Judgment constantly referred to the principles of the English common law as it existed at the time of the separation of the States from the mother country. So, too, Mr. Mayne, in his notes to the 4th Section of the Indian Penal Code contained in his treatise just on that Code, shows that to certain classes of persons in the Indian Empire the old criminal law of England is still applicable, not by virtue of any special arrangement, legislative Act, or Act of Parliament, but simply because the criminal law of India does not provide for the punishment of offences committed by individuals belonging to such classes.

F.V.DICKINS.

Defendants' Counsel.

--

JUDGMENT.

13th August, 1872.

Findlay, Richardson & Co. v. Pitman & Co.

The order against which it is sought to appeal, purports to be an order of the Supreme Court.

All the documents, both those of the Defendants and the Plaintiffs, are headed in the Supreme Court. Had the decision of the Court been in the Defendant's favor, he would have derived from this fact the same advantage that the plaintiffs now obtain. It does not therefore lie in the mouth of either the Plaintiffs or the Defendants to deny that the Court before which they appeared, was the Supreme Court.

The Order in question must also be taken to be an Order of the Supreme Court, and as such can only be appealed against under the provisions specified in the Order in Council. These provisions direct an appeal to the Privy Council, and not an appeal to whoever may be the superior judicial officer of the person rendering the decision.
 

It is also been contended that if there is no right of appeal, there is at least a right of re-hearing under Section 14, but I am of opinion the cases tried in this Court before the Assistant Judge come neither within the spirit nor the wording of this Section. The cases are not "matters from time to time referred to the Assistant Judge," they are cases of which the Assistant Judge takes cognizance under the concurrent jurisdiction of the Supreme Court, given to it in Section 37, and which he is sent to enquire of and determine under Section 38.

It is evident that the appeal to the Privy Council is an unsatisfactory method of reviewing the decisions of this Court. How can this be remedied? If all powers of the Supreme Court are withdrawn from the Assistant Judge while residing here, the Court will remain a Provincial Court, and its decisions will be subject to review under the sections relating to appeals from Provincial Courts. The same device of making this a Provincial Court Will take away from sitters even the pretence for claiming a right to a rehearing as of course - for such right can only refer to causes originally instituted in the Supreme Court, and until the Order in Council is amended, so as to give the Assistant Judge resident in Japan the authority and jurisdiction which now pertains only to the Supreme Court, this court will remain a Provincial Court under the presidency of Her Majesty's Assistant Judge. I shall however take measures to enable him to exercise an admiralty jurisdiction.

The defendants in the present case can therefore apply for leave to appeal to Her Majesty in Council if they think fit.I may, however, say, that I have read over the pleadings, the evidence given in Court and the Judgment of the Assistant Judge, and that I concur with the latter. . As a matter of right, the sum claimed being under $2,500, there is no appeal to the Privy Council, but I am willing to hear the defendants' application for leave to appeal, if they desire that I should do so, and a day may be fixed during the first week in September for that purpose. 

[Transcription BK]

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