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One of the minor points involved is whether the Treaty applies to German subjects not resident in China. The major point is whether, assuming everything to be most wrongful—the information to have been given without any cause probable or improbable and most maliciously: the Consul General to have acted entirely outside the Treaty: the Chinese authorities to have acted in the most arbitrary manner possible: the plaintiffs entirely innocent of the claim brought against them, and to have been absolutely ruined, whether in these circumstances an action will lie against the person who set all these wrongful acts in motion, assuming him to be properly before the Court. This is the point definitely raised by paragraph 1 (c) of the motion, and it crops up incidentally in paragraphs (d), (f), and (g). As it is crucial to the plaintiffs' case, I shall consider it first in order.
No question was raised as to the defendant being properly before the Court. The service of the writ was effected within the jurisdiction on the branch of the defendants' house carrying on business in the Colony, and steps were immediately taken to make the absent plaintiffs put up security for costs.
The action, if the Court is competent to entertain it, is clearly transitory, and so falls within the general rule laid down by Brett J. in Jackson v. Spittal, () “Though every fact arose abroad, and the dispute was between foreigners, yet our Courts, we apprehend, would clearly entertain and determine the cause, if in its nature transitory.” But this is to be taken with the qualification pointed out by Willes J. in Phillips v. Eyre, () that even with respect to transitory actions “our Courts do not undertake universal jurisdiction.” This introduces the fundamental rule that no action can be brought in England for an alleged wrong committed abroad, unless it is actionable both by the law of the place where it was committed and also by the law of England.
The crucial point of the case arises here, is it actionable by the lex loci for a German subject to set the German Consul in motion by what appears to be a wrongful use of the Treaty?
It may be taken as a broad general proposition that under exterritorial conditions the lex loci for Germans in China is German law. I think the proposition is not quite so clear or absolute as it appears to be, but I shall assume that it is the law for the purposes of this action.
Another point may be cleared away; I am disposed to think that the consular jurisdiction is limited to subjects of contracting Powers resident in China, and that absent plaintiffs cannot avail themselves of the Courts set up there, and that absent defendants cannot be sued therein. But this difficulty is, I think, got over by the fact that the defendants acted partly through their branch office in Canton. But I feel fairly confident that the spirit and true intent of the Treaty is that the causes of action put within the jurisdiction of the Consular Courts are those which arise in China: it may be that by sufferance the Chinese Government has tolerated a larger exercise of jurisdiction, but in the case of a Chinese defendant it would be for him to raise the question before his own Government, or for the Chinese authorities to raise the point themselves; and if not taken by either, it certainly would not be for the English Courts to entertain the question. But the point does not really arise. I take it to be clear that if this Court is competent to entertain this action it may at least see whether the formalities of the Treaty have been complied with.
Now art. 35 of the German Treaty of Tientsin of 1861/63 provides that if a German subject has reason to complain of a Chinese, he must first proceed to the Consul and state his grievances. The Consul is then to enquire into the merits of the case and endeavour to arrange it amicably. If the dispute, however, is of such a nature that the Consul cannot arrange it amicably, he shall then request the assistance of the Chinese authorities, that they may conjointly examine into the merits of the case and decide it equitably.” This is the same procedure as is traced out in art. 17 of our own Treaty of Tientsin of 1858, and
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