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12. I regret to differ entirely from the Hon. Colonial Secretary that no fault can be found with the wording of Article 23. Far from being lucid, it is
vague, and conched in language such as no lawyer would dream of using; and it must be remembered that it is essentially a lawyer's article. It is lamentably incomplete; and of this the best test is that it fails in its operation, even within the limited area to which it was intended to confine it.
13. The Hon. Colonial Secretary thinks that the meaning of the Article is perfectly clear. To me it appears more like a rough draft of an Article put in the Treaty on the spur of the moment. As I have already stated, it sets out broadly what was to be done in the matter of recovery of debts by Chinese trading in Hongkong; but it is couched in the vaguest of terms, which might thenceafter he put into more detailed and precise form. It was obviously important at the time to avoid details as much as possible. It is shewing no disrespect to those who concluded the Treaty to say that they did not, nor could not, know what was wanted. They could not foresee 10 what an extent the commercial relations between Hongkong and China would grow: they could not foresee the growth of the commercial law in other parts of the dominions, which must inevitably become applicable to those relations. There are a dozen cases which ought to have been provided for specifically if the Article had been intended to be complete, which could hardly have been anticipated at the time, but which are now of common
occurrence.
14. The Colonial Secretary further says that the meaning of the Article is clearly understood by His Majesty's representatives. I venture to differ entirely. If my information is accurate, and I see no reason to doubt it, it appears that the Consuls take different views as to its scope, even ou such an elementary point as whether it applies to foreigners. I will go further: I do not think it likely that any two people, charged with the administration of the Article, are likely to take the same view as to its meaning on any single point of detail arising under it. Specific and explanatory instructions fo the Consuls would have been a step in the right direction: but, so far as I am aware, no such instructions have ever been issued: though it would appear that with regard to one class of cases, a set of rules or principles have been derived from the precedents which have ac- cumulated.
15. The point chiefly insisted on by the Hon. Colonial Secretary is the un- willingness of the Chinese officials to carry out their obligations under the Treaty. As to this I would observe--
(a.) that the Chinese officials are certainly not likely to supplement any deficiency in the text, or any unwillingness to act on the part of our own officials;
(b) that the Consuls of other nations seem to act more effectively in the
matter than our own;
(c) that if no steps are to be taken because of the supineness of the Chinese officials, no reform can ever be introduced. I think it is merely an assumption to say that if their obligations were made clearer they would still show the same supineness. I think good may come of it; at least it is worth trying. On this point I must refer also to the remarks presently to be made on Article IV of the McKay Treaty;
(d) I do not propose that the Article should be re-drafted with the closest legal phraseology": propose only that the new Article should be made so clear, chiefly as to the cases which are intended to come within it, that all persons concerned, litigants as well as British officials, could understand it, and the Chinese officials could not evade it.
16. I conie now to the Hon. Colonial Secretary's criticism on the memos. an- nexed to my letter. I must remark in the first place however that I forwarded them in order to make some basis for my suggestion to rest on. They are obviously incomplete, and were intended to serve rather as illustrations of the nature of the complaints which are rife in the profession. Nor did I intend in
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any way to indicate that I thought the remedies proposed in them were necessarily those which should be adopted. Their value seems to me to be that they are statements made by officials of experience, who have themselves found impedi- ments in the way of performing their duties.
The Registrar's Memorandara.
17. The Hon. Colonial Secretary says that he has never known an instance in which a Consul refused to take action under Article 23 because the plaintiff was not a British subject. It is at this point that it is of the utmost importance to keep in mind the two aspects of the question, that is to say, as it affects ordinary cre ditors and judgment creditors. The only cases which throw any light on the question are both in Minute Paper 2486/04. In the first case the applicant was a foreigner, who was a judgment creditor, and it was considered to be a legiti mate case for the Consul to take up. In the second case the report on the appli- cant was that his connection with the Colony was "very slight"; but on its afterwards transpiring that though of Chinese race he was born in British Colum- bia, and registered as a British subject in Canton, the application was entertained. The first report would seem to show that if he had not been a British subject the application would have been refused. From these recorded cases (in the Minute Papers) it is difficult to see to which class of applicants the Colonial Secretary applies and the Article itself is so lamentably vague that it throws no light on the subject.
18. The question may be looked at however by the light of general principles. Although British Courts are open to subjects and foreigners alike, our diplomatie agents in foreign countries are not charged with looking after the interests of foreigners, even though those interests depend on rights acquired on British soil. It is impossible therefore to contend that the Consul General can act under the article for foreigners, even though resident in Hongkong, in respect of ordinary debts. They must seek the assistance of their own Consuls. But in the case of judgments recovered by foreigners the position is not quite the same; and I can well understand that, in the absence of specific instructions, the Consuls should take different views. On the one hand it might be conten-led that the absconding debtors to whom the Article relates are those the recovery of whose debts the English Courts have "arranged for": and that therefore there is an implied instruction in the Article applicable to the case. On the other haud it may, and, I vesture to think, with more reason contended, that the same argument which is applicable to ordinary debts due to foreigners is also applicable to foreigners who are judgment creditors: that is to say, that the British Consul's duties are limited to enforcing the rights of British subjects. Indeed the Chinese Government might well object to interference on behalt of foreigners, the application of 1 reaties being limited, in the absence of express stipulation, to the nationals of the Contracting Parties and to make an exception in favour of foreigners who are judgment creditors would require an express stipulation. Whether it should be made is
another matter.
The Deputy Registrar's Memorandum.
19. The memorandum deals specially with the question under dicussion as it relates to Chinese contributories to companies registered in Hongkong, and it requires to be specially treated.
29. The procedure for the recovery of calls from contributories is as follows:-
The Official Liquidator settles the list of contributories and gives notice to them by post: a day is fixed on which any of them may appear and contest their liability to be put upon the list, after which a balance order" is (or is not, as the case may be made against each of them calling upon them to pay up the bal-
ance of calls due.
It has been decided by the Court of Appeal in England that this procedure does not "create jurisdiction"; and that as regards contributories abroad the "balance order" is not to be itself regarded as a judgment, but can ouly be en- forced by regular action in the Supreme Court.
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