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ment if the Government recognised the King as an independent Sovereign Prince, as an international matter over-riding the jurisdiction of this Court, and for aid in his case than it did in this matter.
of the 18th of April, 1874, to the Colonial Secretary, in which I said, "I am prepared to take the entire responsibility of directing the Registrar of the Supreme Court to send the letter if H. E. should approve, or not expressly disapprove of the letter, but if H. E. should expressly disapprove of the letter I will not direct it to be sent."
On the following day my draft letter was returned to me with a memorandum that H. E. the Governor would make no objection to the Chief Justice adopting the course he proposed, but that he would not accept any responsibility for any proceedings or communications beyond what had already been adopted.
I have before slightly alluded to communications between this Court and the Government of this Colony, and also the Government of Annam, as having, with other causes, contributed to the delay up to the month of March, 1874. I now proceed to shew that the Court fully understood its duty, a neglect of which the learned Attorney General in April last, for the first time, somewhat late in the case, imputed to the Chief Justice, owing, as I repeat, to his imperfect instructions. No one shews more desire to avoid inaccuracy than the Attorney General.
I have already stated that this suit was instituted on the 14th of October, 1873. I was, from the first, greatly impressed with the question whether this Court could have any jurisdiction, and I personally communicated my difficulties to the Colonial Secretary. I remembered the case of the Malespina, a Spanish vessel of war, temporarily employed in carrying letters between the Hongkong Post Office and Manila, in which similar questions had been raised in 1862, when I was Attorney General here. That precedent was referred to in my conversations with the Colonial Secretary. From my own recollection, and from information given to me, I can now state that the dispute in that case was settled, and the questions did not come on for discussion.
I believe it was then the better opinion that it was not the duty of the local Government to interfere directly with the action of this Court, but that in such a case as the present, the Government would be authorized, in the exercise of its discretion, on the advice of its legal adviser, without communication from this Court, but spontaneously, to direct the Crown Solicitor to appear, I presume by Counsel, in Court and claim, in the name of the Government, the discharge of the ship as had been advised to be done, and as was, as I understand, done on the 24th of April, 1860, in the case of an officer of the Sardinian frigate Beroldi, served with a summons from the County Court of Bow in England.
The exception, as I understood, referred to a short letter written by the Colonial Secretary to H. E. Uü, to which it is beyond my province to do more than thus refer.
The letter by the Registrar was dated May 1874, (See Appendix G.) and was duly sent to Annam by him.
That letter followed, as I stated in my letter to the Colonial Secretary of the 28th April, a precedent which Sir R. Phillimore, Judge of the High Court of Admiralty, had furnished in The Charkich, in which the Registrar, by direction of that High Court, addressed a letter to the Ambassador from the Ottoman Court as set out in L.R. 4 Ad. and Ecc, p 80., as the result of which the Khedive appeared under protest and the cause proceeded to decision.
I received a letter from Fan, the minister of marine of Annam, dated 25th of September, 1874, (See Appendix H) and which letter was written after the receipt of the letter by the Registrar of May, 1874.
This is the history of the communications which were made extra judicially, efforts and communications in excess of those which the Attorney General suggested that it was my duty to have made which I had not made, I made! the communications which I did make to the Government because it appeared to me that the question was one in which it was the right, and possibly the duty, of the Government here, if it had been advised that the contention on behalf of the defendant was clearly sustainable, to have directed an appearance by Counsel in the cause, and to have claimed, as a matter of state, and as being exclusively subject to international law, and, therefore, beyond judicial decision, the release of the Dang Wee, and the discharge of the defendant from the suit. This was done! in the case in the County Court of Bow above referred to; but if the Government was advised that the matter admitted of doubt, then it would leave the matter to the ordinary decision by the Court without interfering. Still the presumption would be left on the mind of the Court that the case was not one for claim of exemption, on the ground of international right.
I did all I could to place the Government in full possession of the case and the Government appears to have thought that the claim of the King was too doubtful to entitle the King to the interference of this Government, and it expressly left all the responsibility on the Court.
I was the more induced to make the communication to the Colonial Secretary of the difficulty in this case, because I had received a communication from Uü, the Minister of Mercantile Marine of the Kingdom of Annam, (Appendix F) dated, I believe, in November, 1873, and because a letter to the like purport had been received by H.E. the Governor which was transmitted for my information on the 24th March, 1874.-See Appendix F.)
The matter was fully discussed between the Colonial Secretary and myself.
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entitled the defendant to any assistance from this Court.
However much I may regret the course which left so heavy a responsibility on the Court, I am bound to admit that the Government was right in not interfering. I was bound to believe, and I presumed, and I shall continue to presume until I am informed to the contrary, that in originally declining to interfere, and in never up to this time intervening, it has acted under the advice of its duly constituted legal adviser for the time being.
Having shewn that the Court was not wanting in duty towards the Government, I trust it has been equally correct in what it did in respect of the King of Annam.
I have now to consider the effect of the first letter from Annam, that from Uü.
It is beyond question that a Sovereign Prince may waive his right and submit to the jurisdiction of this Court. If the agreement was made with the sanction of the Court, it was a conclusion of all matters of difference in Court. As far as my action in the matter is concerned, I must say the agreement as proposed was the most anomalous I ever saw.
In it Uü says, "I was beg your Lordship to distinguish the truth I said that no contract should be concluded in from the falsehood, and to decide the case impartially and according to the various accounts set forth in my despatch." This is a distinct submission of the case by the King himself, by his minister to the jurisdiction of this Court, and is submission No. 6.
Mr. Justice Snowden who took a view of the case somewhat different from mine. I decline now to consider any question either of damages or costs. I consider that the parties practically withdrew all farther proceedings and all grounds for decision from the jurisdiction of this Court,
The Registrar's letter of May, 1874, fully sets out the facts, as far as I knew.
The letter of Fan of the 25th Sept., 1874, (Appendix H) says, "Your Lordship is Chief Justice of the Colony, and would entertain complaints from subjects of all nationalities, and dispose of them justly, how much more would your Lordship not do so for the minister of this country. I am addressing your Lordship as an official of the Annamese Government, and on behalf of the Government." This is equally with No. 6 a submission of the case to the jurisdiction of this Court, and is submission No. 7.
On the whole case I have come to the following conclusions:
1.-I am of opinion that the defendant has, by his ministers of marine, twice very clearly and unmistakably, submitted to the jurisdiction of this Court in this cause, as well by his pleading, and by his counsel in Court,
That having once done so he can at no time afterwards be heard to contend to the contrary, except by the express consent of the plaintiff, which has not been given.
This conclusion is confirmed by the various orders made by the consent of the King, each one of which is utterly inconsistent with the protest to the jurisdiction set up by the Attorney-General.
2.-I am further of opinion that the advisers of the defendant here, having entered into the agreement, and having moved for and consented to the order of 6th of March, 1874, (Appendix B.) the advisers of the defendant, in not carrying out the agreement and order at Annam, and having failed to pay the $159,792.19, according to the terms of the order, have so acted as to have dis-
Under that agreement, Paul Nguyen Dao Han, gave his bond for $60,000 to the plaintiff; Lai Duc, the King's agent instructing the Attorney General, executed the bond with all formality in Court as surety, and that bond for $66,000 was accepted by the plaintiff despairing to get the $159,792.19, which under the order of this Court of the 6th March the King had pledged himself to pay. That document was prepared by the defendants' attorneys. The price of the bond was paid on the withdrawal of the foreign attachment, defendant the King accepted the arrangement, took possession of the Dang Wee obtained only by the bond, and his flag was displayed at the mast head, and the Dang Wee with this flag left this harbour for Annam.
4.-I entirely concur in the order of Mr. Justice Snowden of the 3rd of May, 1875, now appealed against.
5.-I consider the petition of appeal to be faulty and not sustainable on this ground; a petition of appeal must set out all proceedings involved in and necessary to the decision of the question named. The Attorney General does not seem to have known of several proceedings important to the decision asked (so imperfectly instructed was he) and he omitted from
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ment if the Government recognised the King as an independent Sovereign Prince, as an international matter over-riding the jurisdiction of this Court, and for aid in suy case than it did in this matter.
of the 18th of April, 1874, to the Colonial Secretary, in which I said, "I am prepared to take the entire responsibility of directing the Registrar of the Supreme Court to send the letter if H. E. should approve, or not expressly I have before slightly alluded to com-disapprove of the letter, but if H. E. should munications between this Court and the expressly disapprove of the letter I will not Government of this Colony, and also the Go- direct it to be sent."
On the following day my draft letter was re- vernment of Annam, as having, with other causes, contributed to the delay up to the month turned to me with a memorandum that H. E. of Marob, 1874. I now proceed to shew that the Governor would make no objection to the this Court fully understood its duty, a neglect Chief Justice adopting the course he proposed, of which the learned Attorney General in April but that he would not accept any responsibility last, for the first time, somewhat late in the for any proceedings or communications beyond
what had already been adopted. case, imputed to the Chief Justice, owing, as I repeat, to his imperfect instructions. No one shews more desire to avoid inaccuracy than the Attorney General.
I have already stated that this suit was insti- tuted on the 14th of October, 1873. I was, from the first, greatly impressed with the question whether this Court could have any jurisdiction, and I personally communicated my difficulties to the Colonial Secretary. I remembered the case of the Malespina, a Spanish vessel of war, temporarily employed in carrying letters be- tween the Hongkong Post Office and Manila, in which similar questions had heen raised in 1862, when I was Attorney General here. That precedent was referred to in toy conversa. tions with the Colonial Secretary. Frota my own recollection, and from information given to me, I can now state that the dispute in that case was settled, and the questions did not come on for discassion.
I believe it was then the better opinion that it was not the duty of the local Government to interfere directly with the action of this Court, bat that in such a case as the present, the Government would be authorized, in the ezer cise of its discretion, on the advice of its legal adviser, without communication from this Court, bat apontaneously, to direct the Crown Solicitor to appear, I presume by Counsel, in Court aud claim, in the name of the Govern- ment, the discharge of the ship as had been advised to be done, and as was, as I understand, doue on the 24th of April, 1860, in the case of an officer of the Sardinian frigate Beroldi, served with a summons from the County Court of Bow in England.
The exception, as I understood, referred to a short letter written by the Colonial Secretary to H. E. Un, to which it is beyond my province to do more than thus refer.
The letter by the Registrar was dated May 1874, (See Appendix G.) and was duly sent to Annam by kim.
That letter followed, as I atated in my letter to the Colonial Secretary of the 28th April, a precedent which Sir R. Phillimore, Judge of the High Court of Admiralty, had faraished in The Charkich, in which the Registrar, by direction of that High Court, addressed a letter to the Ambassador from the Ottoman Court as set out in L.R. 4 Ad. and Eoc, p 80., as the re- salt of which the Khedive appeared under pro. test and the cause proceeded to decision.
I received a letter from Fan, the minister of marine of Annam, dated 25th of September, 1874, (See Appendix ) and which letter was written after the receipt of the letter by thei Registrar of May, 1874.
This is the history of the communications which were made extra judicially, efforts and communications in excess of those which the Attorney General suggested that it was my duty to have made which I bad not made, I made! the communications which I did make to the Government because it appeared to me that the question was one in which it was the right, and possibly the duty, of the Government here, if it had been advised that the contention on behalf of the defendant was clearly sustainable, to have directed an appearance by Counsel in the cause, and to have claimed, as a matter of state, and as being exclusively subject to international law, and, therefore, beyond judicial decision, the release of the Dang Wee, and the discharge of the defendant from the suit. This was done! in the case in the Country Court of Bow above referred to; but if the Government was advised that the matter admitted of doubt, then it would leave the matter to the ordinary decision by the Court without interfering. Still the pre- sumption would be left on the mind of the Couri that the case was not one for claim of exemption, on the ground of international right. I did all I could to place the Government in fall It occurred to ine to be proper that the Re-possession of the case and the Government ap- pears to have thought that the claim of the King gistrar of this Court should write officially to
was too doubtful to entitle the King to the H. E. Cü, stating the proceedings in the case, and a draft of the proposed letter was submit. interference of this Government, and it ex- ted to H, E. the Governor by me with a letter, pressly left all the responsibility on the Court.
I was the more induced to make the com- munication to the Colonial Secretary of the difficulty in this case, because I had received a communication from Uü, the Minister of Mer- cantile Marine of the Kingdom of Annaw, Appendix F) dated, I believe, in November. 1873, and because a letter to the like purport had been received by H.E. the Governor which was transmitted for my information on the 24th March, 1874.-See Appendix F.)
The matter was fully discussed between the Colonial Secretary and myself.
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entitled the defendant to any assistance from this Court.
However much I may regret the course which left so heavy a responsibility on the Court, 1 am bound to admit that the Government was 3-I am further of opinion that the contract right in not interfering. I was bound to believe, and bond entered into in the presence of Mr. and I presumed, and I shall continue to presume Justice Snowden on the 23rd of Apríl last, and until I am informed to the contrary, that in the consequent second release of the Dang Wee from at achments by this Court, and the taking originally declining to interfere, and in never up to this time intervening, it has acted under possession of the Dang Wee by the defendant the advice of its duly constituted legal adviser by his agents, was an agreement if made be for the time being.
tween the parties alone and without the a change Having shewn that the Court was not want-approbation of this Court-such ing in duty towards the Government, I trust it of the relative position of the parties as of Court as to any has been equally correct in what it did in put all parties ont respect of the King of Annam.
other or further remedy for damages or costs. I have now to consider the effect of It was impossible for the Court, the main sub. the first letter from Annam, that from ]jects of dispute being arranged, to consider the Vü.
that It is beyond question
A merite of the case in such a way as to enable it Sovereign Prines may waive his right and to decide costs or questions as to the injury to If the agreement was submit to the jurisdiction of this Court. the dignity of the King. I have before expressed my opinion that in the made with the sanction of the Court, it was a proceedings in Court that right bas, in fact, been conclusion of all matters of difference in Court, As far as my action in the matter is con- over and over again absolutely waived, but this letter of Uü appears to me to be an express | cerned, I must say the agreement as proposed
the most anomalous I Ever submission to this Court. In it Cü anys, "I was beg your Lordship to distinguish the truth I said that no contract should be concluded in from the falsehood, and to decide the case im- my presence which did not conclude all ques- partially and according to the various accounts tions. The parties chose to continue the con set forth in my despatch." This is a distinct tract. I declined to sit as quasi arbitrator, or to submission of the case by the King himself, countenance a partial agreement; the parties, by his minister to the jurisdiction of this Court, including the King's agent bere who alone in- structed the Attorney General, in the presence and is submission No. 6.
of the Attorney General persisted in olading the arrangement, My only resource was to protest and leave the bench, de- Mr. Justice Snowden who took a view of the case somewhat different from mine. I decline now to consider any question either of damages or costs. I consider that the parties practically withdrew all farther proceedings and all grounds for decision from the jurisdiction of this Court,
The Registrar's letter of May, 1874, fully sete
out the facts,
knew.
con-
The letter of Fan of the 25th Sept., 1874, (Ap. pendix H) says, "Your Lordship is Chief Jus-legating the further bearing of the motion to tice of the Colony, and would entertain com plaints from subjects of all nationalities, and dispose of them justly, how much more would your Lordship not do so for the minister of this country. I am addressing your Lordship as an official of the Annamese Government, and on be- half of the Government." This is equally with No. 6 a submission of the case to the jurisdic. tion of this Court, and is submission No. 7.
On the whole case I have come to the follow- ing conclusions
1.-I am of op nion that the defendant has, by his ministers of marine, twice very clearly and unmistakably, submitted to the jurisdiction of this Court in this cause, as well by his pleading, and by his counsel in Court,
That baving once done so he can at no time afterwards be heard to contend to the contrary, except by the express consent of the plaintiff, which has not been given.
This conclusion is confirmed by the various orders made by the consent of the King, each one of which is utterly inconsistent with the protest to the jurisdiction set up by the Attor- ney-General.
2.-I an further of opinion that the advisers of the defendant here, having entered into the agreement, and having moved for and consented to the order of 6th of March, 1874, (Appendix B.) the advisers of the defendant, in not carrying out the agreement and order at Anoam, and having failed to pay the $159,792.19, according to the terms of the order, have so noted as to have dis-'
Į
Under that agreement, Paul Nguen Dao Han, gave his bond for $60,000 to the plaintiff; Lai Duc, the King's agent instructing the Attorney General, executed the bond with all formality in Court as surety, and that bond for $66,000 was accepted by the plaintiff des- pairing to get the $159,792.19, which under the order of this Court of the 6th March the King bad pledged himself to pay. That document was prepared by the defendants" attornies. The price of the bond was paid on the withdrawal of the foreign attachment, defendant the King accepted the arrange- ment, took possession of the Dang Wee obtained only by the bond, and his flag was displayed at the mast bead, and the Dang Wee with this flag left this barbour for Annam.
The
4.-I entirely concur in the order of Mr. Jua. tice Snowden of the 3rd of May, 1875, now ap- pealed against.
5.-I consider the petition of appeal to be faulty and not sustainable on this ground; a petition of appeal must set ont all proceedings involved in and necessary to the the decision of The Attorney G-neral the question named. does not seem to have known of several proceed. ings important to the decision asked (so imper- footly instructed was he) and he omitted from
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