172
(4)
ment if the Government recognised the King of the 18th of April, 1874, to the Colonial Secretary, in which I said, “I am prepared as an independent Sovereign, Prince, as international matter over-riding the jurisdiction take the entire responsibility of directing the of this Court, and for aid in any case than it Registrar of the Supreme Court to send the letter if H. E, should approve, or not expressiv did in this matter.
I have before slightly alluded to com.disapprove of the letter, but if H. E. should Court and the expressly disapprove of the letter I will not munications between this Government of this Colony, and also the Go- direct it to be sent." verament of Aonam, ng having, with other causes, contributed to the delay up to the month of March, 1874. I now proceed to shew that this 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 insti- tuted on the 14th of October, 1873. I was, from the first, greatly impressed with the question whether this Court could have auy 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 been raised in 1862, when I was Attorney General here. That precedent was referred to in my conversa. tions with the Colonial Secretary. From my own recollection, and from information given to me, I can now state that the dispute in that osse was settled, and the questions did not come on for discnasion.
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 exer cise 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 Govern- ment, 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.
On the following day my draft letter was re turned to me with a memorandum that fl. the Governor would make no objection to the Chief Justice adopting the course be proposed, bat that he would not accept any responsibility for any proceedings or communications beyond what bad already been adopted.
to
The exception, as I understood, referved B sbort 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 Mar 1874, (See Appendix G) and was duly sent ( Annam by him.
That letter followed, as I stated in my lette to the Colonial Secretary of the 28th April, s precedent which Sir R. Phillimore, Judge of the High Court of Admiralty, had furnished is The Charkieh, in which the Registrar, by direction of that High Court, addressed a letter to the Ambassador from the Ottoman Court a set out in L.R. 4 Ad. and Elec. p 69., 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 H) and which letter w written after the receipt of the letter by the Registrar of May, 1874,
This is the history of the communication which were made extra judicially, efforts azi communications in excess of those which the Attorney General suggested that it was my day to have made which I bad not made. I we 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 daty, of the Government here, if i 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 siste 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 pr sumption 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 all I could to place the Government in fa It occurred to me to be proper that the Re-possession of the case and the Government ap pears to have thought that the claim of the Kug giatrar of this Court should write officially to
was too doubtful to entitle the King to the H. E. Uü, stating the proceedings in the case, and a draft of the proposed letter was submit interferenca 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 Un, the Minister of Mer- cantile 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.
(5)
However much I may regret the course which entitled the defendant to any assistance from left so heavy a responsibility on the Court, I thia Court.
the
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 Suowden on the 23rd of April last, and antil I am informed to the contrary, that in the consequent second release of the Dang Wee originally declining to interfere, and in never from attachments by this Court, and the taking up to this time intervening, it bas acted under possession of the Dang Wee by the defendant the advice of its daly constituted legal adviser by his agents, was an agreement if made be- for the time being.
tween the parties alone and without
a cbange Having abewn that the Court was not want approbation of this Court-Buch 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 bat respect of the King of Annam.
I have now to consider the effect of It was impossible for the Court, the main enh- the first letter from Annam, that fromjects of dispute being arranged, to consider the
It is Vü.
beyond
that question
amerits of the case in such a way as to enable it Sovereign Prince may waive his right and to decide costs or questions as to the injary to submit to the jurisdiction of this Court. the dignity of the King. If the agreement was I have before expressed my opinion that in the made with the sanction of the Court, it was a proceedings in Court that right has, in fact, been conclusion of all matters of difference in Court. over and over again absolutely waived, but this As far as my action in the matter is con- letter of Uä appears to me to be an express (cerned, I must say the agreement as proposed anomalous I ever knew. aubmission to this Court. In it Cü says, "I was the most
The Registrar's letter of May, 1874, fully sets out the facts.
The letter of Fan of the 25th Sept., 1874, (Ap- pandix H; says, "Your Lordship is Chief Jns- 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 oficial 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.
other or further remedy for damages or costs.
con.
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 base by the King himself, countenance a partial agreement; the parties, by his minister to the jurisdiction of this Court, including the King's agent here who alone in- and is submission No. 6. structed the Attorney General, in the presence of the Attorney General persisted in clading the arrangement. My only resource was to protest and leave the bench, de- legating the further bearing of the motion to 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 further proceedings and all grounds for decision from the jurisdiction of this Court. Under that agreement, Paul Nguen Duc Hau, gave his bond for $66,000 to the plaintiff; Lai Duc, the King's agent instructing the Attorney General, executed the bond with all formality in Count 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 had pledged himself to pay. That document was prepared by the defendants' attornies. was paid on the The price of the bond
The withdrawal of the foreign attachment. defendant the King accepted the arrange- Dang Wee ment, took possession of the obtained only by the bond, and hie flag was displayed at the wast head, and the Dang Wee with this Bag left this barbour for Aunam.
On the whole case I have come to the follow- ing conclusiong ;-
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 bis counsel in Court.
That having once done so be 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.
Thia conclusion is confirmed by the various olders 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- Dey-General.
-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 die
4-I entirely concur in the order of Mr. Jus- tice Snowden of the 3rd of May, 1875, now ap- poaled 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 the decision of The Attorney General the question named. does not seem to bave known of several proceed- ings important to the decision asked (so imper- featly instructed was he) and he omitted from
172
1.
(4)
ment if the Government recognised the King of the 18th of April, 1874, to the Colonial
an Secretary, in which I said, “I am prepared as an independent Sovereign, Prince, as international matter over-riding the jurisdiction take the entire responsibility of directing the of this Court, and for aid in any case than it Registrar of the Supreme Court to send the letter if H. E, should approve, or not expressiv did in this matter.
I have before slightly alluded to com.disapprove of the letter, but if H. E. should Court and the expressly disapprove of the letter I will not munications between this Government of this Colony, and also the Go- direct it to be sent." verament of Aonam, ng having, with other causes, contributed to the delay up to the month of March, 1874. I now proceed to shew that this 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 insti- tuted on the 14th of October, 1873. I was, from
the first, greatly impressed with the question whether this Court could have auy 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 been raised in 1862, when I was Attorney General here. That precedent was referred to in my conversa. tions with the Colonial Secretary. From my own recollection, and from information given to me, I can now state that the dispute in that osse was settled, and the questions did not come on for discnasion.
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 exer cise 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 Govern- ment, 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.
On the following day my draft letter was re turned to me with a memorandum that fl. the Governor would make no objection to the Chief Justice adopting the course be proposed, bat that he would not accept any responsibility for any proceedings or communications beyond what bad already been adopted.
to
The exception, as I understood, referved B sbort 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 Mar 1874, (See Appendix G) and was duly sent ( Annam by him.
That letter followed, as I stated in my lette to the Colonial Secretary of the 28th April, s precedent which Sir R. Phillimore, Judge of the High Court of Admiralty, had furnished is The Charkieh, in which the Registrar, by direction of that High Court, addressed a letter to the Ambassador from the Ottoman Court a set out in L.R. 4 Ad. and Elec. p 69., 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 H) and which letter w written after the receipt of the letter by the Registrar of May, 1874,
This is the history of the communication which were made extra judicially, efforts azi communications in excess of those which the Attorney General suggested that it was my day to have made which I bad not made. I we 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 daty, of the Government here, if i 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 siste 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 pr sumption 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 all I could to place the Government in fa It occurred to me to be proper that the Re-possession of the case and the Government ap pears to have thought that the claim of the Kug giatrar of this Court should write officially to
was too doubtful to entitle the King to the H. E. Uü, stating the proceedings in the case, and a draft of the proposed letter was submit interferenca 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 Un, the Minister of Mer- cantile 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.
(5)
However much I may regret the course which entitled the defendant to any assistance from left so heavy a responsibility on the Court, I thia Court.
the
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 Suowden on the 23rd of April last, and antil I am informed to the contrary, that in the consequent second release of the Dang Wee originally declining to interfere, and in never from attachments by this Court, and the taking up to this time intervening, it bas acted under possession of the Dang Wee by the defendant the advice of its daly constituted legal adviser by his agents, was an agreement if made be- for the time being.
tween the parties alone and without
a cbange Having abewn that the Court was not want approbation of this Court-Buch 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 bat respect of the King of Annam.
I have now to consider the effect of It was impossible for the Court, the main enh- the first letter from Annam, that fromjects of dispute being arranged, to consider the
It is Vü.
beyond
that question
amerits of the case in such a way as to enable it Sovereign Prince may waive his right and to decide costs or questions as to the injary to submit to the jurisdiction of this Court. the dignity of the King. If the agreement was I have before expressed my opinion that in the made with the sanction of the Court, it was a proceedings in Court that right has, in fact, been conclusion of all matters of difference in Court. over and over again absolutely waived, but this As far as my action in the matter is con- letter of Uä appears to me to be an express (cerned, I must say the agreement as proposed anomalous I ever knew. aubmission to this Court. In it Cü says, "I was the most
The Registrar's letter of May, 1874, fully sets out the facts.
The letter of Fan of the 25th Sept., 1874, (Ap- pandix H; says, "Your Lordship is Chief Jns- 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 oficial 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.
other or further remedy for damages or costs.
con.
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 base by the King himself, countenance a partial agreement; the parties, by his minister to the jurisdiction of this Court, including the King's agent here who alone in- and is submission No. 6.
structed the Attorney General, in the presence of the Attorney General persisted in clading the arrangement. My only resource was to protest and leave the bench, de- legating the further bearing of the motion to 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 further proceedings and all grounds for decision from the jurisdiction of this Court. Under that agreement, Paul Nguen Duc Hau, gave his bond for $66,000 to the plaintiff; Lai Duc, the King's agent instructing the Attorney General, executed the bond with all formality in Count 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 had pledged himself to pay. That document was prepared by the defendants' attornies. was paid on the The price of the bond
The withdrawal of the foreign attachment. defendant the King accepted the arrange- Dang Wee ment, took possession of the obtained only by the bond, and hie flag was displayed at the wast head, and the Dang Wee with this Bag left this barbour for Aunam.
On the whole case I have come to the follow- ing conclusiong ;-
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 bis counsel in Court.
That having once done so be 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.
Thia conclusion is confirmed by the various olders 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- Dey-General.
-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 die
4-I entirely concur in the order of Mr. Jus. tice Snowden of the 3rd of May, 1875, now ap- poaled 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 the decision of The Attorney General the question named. does not seem to bave known of several proceed- ings important to the decision asked (so imper- featly instructed was he) and he omitted from
No comments yet.
Private notes are available after approval.