the attention of the Court was not drawn to any variation of the practice in any other treaty, which would be applicable under the most-favoured-nation clause of the German Treaty.
What happened was this, as it is to be derived from the correspondence disclosed by the defendants. The German Consul-General seems to have tried to get the 3 plaintiffs to come to the Consulate. The letter (exhibit 3) informs them that the Consul has some important matter to consult with them, and that they are to attend at the Consulate on the next day to be examined in some important business. The answer (exhibit 4) is to the effect that it being Chinese New Year, these people are in the country, but that they will call at the Consulate on their return. This promise does not seem to have been fulfilled; for Wong Hiu Tung says he returned to Canton on 7th March, and the seizure was on 13th.
I am afraid that I am bound to see whether the provisions of the Treaty were complied with; and I am disposed to think that so far as the summoning of these men to the Consulate, although it did not state what the important matter was, was in the circumstances sufficient although somewhat arbitrary. But after that there is no evidence of the proceedings conforming to the Treaty. There is no evidence that the Consul-General enquired into the claim; and yet had he done so he would have discovered how weak and uncertain the case was, for the Canton branch themselves, judging by their letters, had qualms on the subject. Then the assistance of the Chinese authorities is not requested for investigation into the affair and equitable settlement, and there is no equitable settlement, which would have been the inevitable result had there been the slightest enquiry. But the request for seizure is complied with so far as the plaintiffs' property is concerned. The investigation was the more important, as even if the result had been that the Consul and the Chinese authorities had thought the partnership established, they would certainly have seen that the debt was $15,000, and not $50,000, and it is highly improbable that the silk store, estimated in the defendant's correspondence as being worth $200,000, would have been seized. And moreover the Consul's opinion on the Hui letter (Exhibit 2) is shown in his letter of March 21st, so that if that had been produced it is probable there would have been no seizure.
Two further minor points may here be disposed of. Consuls have duties to perform which lie outside Treaties, duties which, I think I am right in saying, include assistance to their nationals to recover debts due to them in so far as representations to the authorities can help them; and I think further I am right in saying that these duties, which are generally called "good offices," are sometimes performed even in countries where there is consular jurisdiction. In view of the important question I am about to discuss, it is necessary to mention this, because that question would be more troublesome if the Consul's action had in fact lain outside the Treaty, as the test of wrongfulness would be missing. I cannot doubt that in this case the Consul professed to act under the Treaty, for had he not done so the defendants would have been so informed, and stress would have been laid upon it instead of as was in fact done, on the Treaty. He would moreover have had no right to summon the plaintiffs to come to his office. Again, can the plaintiffs, Chinese subjects, complain of action taken by their own authorities, alleging it to be wrongful as not being in accordance with the terms of the Treaty? I cannot profess to say that this point is clear, because undoubtedly the action of the Chinese Government might allow a deviation from Treaty to grow up by sufferance, to such an extent that the Powers might acquire a definite right to have a certain line of action pursued, on request, by the Chinese authorities: which might conceivably go to the extent of sanctioning action similar to that taken in this case. This is established in the case of the Laconia.
If the case were a simple one of a claim made in consequence of representations made to the Chinese authorities but not unlawfully made, the result being that this proce-
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the attention of the Court was not drawn to any variation of the practice in any other treaty, which would be applicable under the most-favoured-nation clause of the German Treaty.
What happened was this, as it is to be derived from the correspondence disclosed by the defendants. The German Consul-General seems to have tried to get the 3 plaintiffs to come to the Consulate. The letter (exhibit 3) informs them that the Consul has some important matter to consult with them, and that they are to attend at the Consulate on the next day to be examined in some important business. The answer (exhibit 4) is to the effect that it being Chinese New Year, these people are in the country, but that they will call at the Consulate on their return. This promise does not seem to have been fulfilled; for Wong Hiu Tung says he returned to Canton on 7th March, and the seizure was on 13th.
I am afraid that I am bound to see whether the provi- sions of the Treaty were complied with; and I am disposed to think that so far as the summoning of these men to the Consulate, although it did not state what the important matter was, was in the circumstances sufficient although somewhat arbitrary. But after that there is no evidence of the proceedings conforming to the Treaty. There is no evidence that the Consul-General enquired into the claim; and yet had he done so he would have discovered how weak and uncertain the case was, for the Canton branch themn- selves, judging by their letters, had qualms on the subject. Then the assistance of the Chinese authorities is not requested for investigation into the affair and equitable settlement, and there is no equitable settlement, which would have been the inevitable result had there been the slightest enquiry. But the request for seizure is complied with so far as the plaintiffs' property is concerned. The investigation was the more important, as even if the result had been that the Consul and the Chinese authorities had thought the partnership established. they would certainly have seen that the debt was $15,000, and not $50,000, and it is highly improbable that the silk store, estimated in the defendant's correspondence as being worth $200,000, would have been seized. And moreover the Consul's opinion on the Hui letter (Exhibit 2) is shewn in his letter of March 21st, so that if that had been produced it is probable there would have been no seizure.
Two further minor points may here be disposed of. Consuls have duties to perform which lie outside Treaties, duties which, I think I am right in saying, include assistance to their nationals to recover debts due to them in so far as representations to the authorities can help them; and I think further I am right in saying that these duties, which are generally called "good offices," are sometimes performed even in countries where there is consular jurisdiction. In view of the important question I am about to discuss, it is necessary to mention this. because that question would be more troublesome if the Consul's action had in fact lain outside the Treaty, as the test of wrongfulness would be missing. I cannot doubt that in this case the Consul professed to act under the Treaty, for had he not done so the defendants would have been so informed, and stress would have been laid upon it instead of as was in fact done, on the Treaty. He would moreover have had no right to summon the plaintiffs to come to his office. Again, can the plaintiffs, Chinese subjects, complain of action taken by their own authorities. alleging it to be wrongful as not being in accordance with the terms of the Treaty? I cannot profess to say that this point is clear, because undoubtedly the action of the Chinese Government might allow a devia- tion from Treaty to grow up by sufferance, to such an extent that the Powers might acquire a definite right to have a certain line of action pursued, on request, by the Chinese authorities: which might conceivably go to the extent of sanctioning action similar to that taken in this case. This is established in the case of the Laconia ( ).
If the case were a simple one of a claim made in conse- quence of representations made to the Chinese authorities but not unlawfully made, the result being that this proce-
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