Reading along the Archival Grain of the Hill vs. Ta Kee
- Available Online: 2023-01-20
Abstract: The newly discovered bilingual minutes of Hill vs. Takee, which was tried by the International Mixed Court at Shanghai in early 1875, with the pleadings, all the direct examination, cross-examination, re-direct and closing statements, is of great value for the research of the trial proceeding and mode of the early Mixed Court at Shanghai. Joint arbitration arranged by the American Consular Court at Shanghai dismissed Hill’s claim in 1863-1864 because it lacked the necessary evidence (bill of sale, charter party et al.). However, based on the lex personalis established by Sino-American treaties since 1844, the Case reopened in 1874 at the instigation of the American Minister in Beijing and the acquiescence of the Consul-General at Shanghai. The application of both joint arbitration and joint trial to the same case shows that the jurisdiction of courts at the Shanghai International Settlement were much dominated by consuls or minsters of Western powers in China. Moreover, the Case demonstrates how, in practice, the civil procedure of the early Mixed Court differs from that outlined in the Rules for the Mixed Court at Shanghai, 1869. The Case also demonstrates that the Mixed Court was a two-tiered court with a lower court and a higher court. The lower court was presided by a Chinese magistrate and a foreign assessor, usually Interpreter and Vice Consul, and the higher court by Shanghai Taotai and a foreign Consul or Consul General. The Hill vs. Ta Kee was tried jointly by the Shanghai Taotai and the American Consul General at Shanghai, while the judgment was left to be rendered by the Shanghai Taotai alone. In the early stages of the Mixed Court, a Consul or Consul General attending trial served as a trier of fact, not trier of law.
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