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Furthermore, it will be observed that, in order to reach its objects at all, the Ordinance is compelled to resort to that most unphilosophical and harsh expedient, vicarious responsibility. By Section XXVII it is proposed to enact that upon non-payment of the fine inflicted, it may be recovered "by distress, and sale of the goods and chattels of the partnership as well as of the person convicted." Now, since the compulsory registration is imposed upon the "master or manager" alone, it is obvious that the partners inay (especially if residing out of the Colony) be wholly innocent of any offence. Yet the seizing of their goods assumes them to be guilty, an assumption which is opposed to the fundamental constitutional prin- ciple that every man is held to be innocent till he has been proved to be guilty. I may here remark that, for my own part, I have always failed to see how the ends of justice can be benefited (whatever may be the effect upon the ends of the legislature) by a departure from this wholesome maxim; and I throw out this observation, because I notice that the draft Ordinance preserves in Section XVII the principles adopted in the earlier Ordinances on this topic.
To return, however, to the proposed legislation on partnership. I have a further objection to it, as opening a new door to extortion by the lower Government emyloyés, such as policemen and the like. The poorer tradesmen, who either from ignorance or possibly extreme poverty, failed to register their firms would, through its means, be exposed to this method of annoyance to a considerable extent, without power of resistance or practical redress.
Finally, I consider an issue of "partnership or not scarcely a fit one for trial in a Police Court. It belongs to a branch of law in which we can scarcely ask our Magistrates to be well instructed, lying, as it does, entirely out of the routine of their ordinary duties, and being oftentimes of extreme intricacy. An appeal to a higher tribunal would be practically open only to those who could afford to pay for it, and one who had this luxury financially within his reach could equally well afford to pay for not being taken to Court at all. The zeal of informers would indeed, fear, too often stop short of wealthy offenders, and like the gamblers who every now and again figure before the Magistrates, the prisoners charged would generally he dredged up from very obscure social depths.
I think I have now shewn that however imperative may be the need of improvement in the morality of Chinese trade, to pass the present Bill would be to take a very doubtful step in that direction. In matters such as the Bill treats of, I have endeavoured to make it manifest that there is no short cut to the truth, and I think I have succeeded in demonstrating that, so far as it affects the present law of partnership. the measure would add obscurity of law to difficulty of fact. And, finally in its penal aspect, that it is open to grave objections.
It only remains for me to add a word or two upon the subject of its necessity. Assuming that the Chi- nese Petitioners have given a fair and uncoloured picture of their commercial troubles, it is, before deciding upon their remedy, essential to ascertain as far as possible their origin, and in such an investigation one cannot be too cautious in distinguishing cause from effect. Now, if the trick of dei ving partnership liability is so common as to call for special legislation (a conclusion which certainly is no. borne out by the records of our own Courts, where cases of the kind are comparatively few, so far as my experience goes), it must surely be logically regarded as a symptom rather than a source of disease. The roots of the evil lic much deeper, and must be sought for among the conditions under which trade itself is conducted-such as the natural character of the traders, exceptionally bad times, or a prevailing tendency to recklessness and over- speculation. It is indeed of the unrestrained spirit of overtrading that the Petitioners chiefly complain, as I understand them, and to which they look to legislation as a cure,
Now, it may sound somewhat strange, but I think it might be easily shown that if there be any factor among others likely to have been specially active in producing this state of things, it should be sought for in a measure of English legislation. I allude to the application of the Bankruptcy laws to Chinese traders. Their trade had not reached a stage of development suitable to such application, and these laws have thus proved mischievous, not only directly as regards the interests of creditors, but indirectly by offering tempta- tions to over-speculation. If any legislative remedy were then required, it would perhaps be better to seek it rather in the direction of some modification of these laws than in this Bill.
But it is, I believe, a tolerably well established maxim that no evils carry with them their own remedy more certainly or enforce it more effectually, if left alone, than those arising from recklessness or dishonesty in trade. By a pretty obvious process of action and reaction, things must sooner or later right themselves if trade is to go on at all. No statute can form a substitute for business prudence and foresight on the one side, or on the other do much that is effectual to stem the current of fraudulent ingenuity. But it is only a truism to say that legislation may do a great deal to produce confusion and unforeseen mischiefs. Had I not, after consideration, seen too much reason to fear that such would be the too probable result of the present Bill, if passed into law, I would not have troubled you with this letter, which has indeed reached an undue length.
I have the honour to be, Sir,
The Hon. J. G. AUSTIN,
Colonial Secretary.
Your most humble, obedient Servant,
THOS. C. HAYLLAR,