Wednesday, 15th July 1857
Present:
His Excellency the Governor,
The Honorable the Chief Justice,
The Honorable the Acting Colonial Secretary,
The Honorable the Attorney General,
The Honorable the Colonial Treasurer,
The Honorable the Chief Magistrate,
The Honorable J. F. Edger, Esquire
The Honorable J. Jardine, Esquire
The Honorable George Lyall, Esquire
The Council met today pursuant to adjournment.
The minutes of the last Council were read and approved.
Read a 2nd time, and passed, the ordinance entitled "an ordinance for amending ordinance No. 3 of 1851." It was numbered 8 of 1857, and ordered to be published, for general information in the next Government Gazette.
His Excellency the Governor read the Resolutions of the Executive Council, held on the 15th Instant, for giving effect to the instructions of the Secretary of State with reference to a suspension of the Security Ordinance, No. 20 of 1857. Those Resolutions were to the following effect:
"That under the instructions from Her Majesty's Secretary of State, Ordinance No. 2 of 1857 be suspended; and that it be not again called into operation, without express authority from Her Majesty's Government.
"That the clauses of the said ordinance, not objected to by Her Majesty's Government, be submitted, with such changes as experience may have shown to be desirable, for re-enactment to the Legislative Council.
"That the Deportation clause be modified according to the instructions of Her Majesty's Government, and made to correspond with Her Majesty's order in council of 1st February 1845.
"That the new ordinance contain a suspending power for the Governor in Council, not only as regards the ordinance in general but any one or more of its provisions.
"That clauses XI, XIII, X IV and XV be wholly omitted."
The Governor then laid on the table a modified ordinance for securing the Peace of the Colony, and declared the standing Rules of the Council to be suspended for a time, in order to allow this ordinance to pass through its several stages, and to be passed, at to-day's meeting of Council.
For the information of Honorable Messrs Edger and Jardine, who were absent at the last meeting, the Despatch from the Secretary of State relating to ordinance No. 2 of 1857, was again brought forward, and read.
The Governor moved that the modified ordinance on the table, be read a first time.
Debate ensued.
Council divided.
Ayes (5)
Mr. Lyall,
Mr. Jardine,
Chief Magistrate,
Colonial Treasurer,
Acting Colonial Secretary.
Noes (2)
Mr. Edger,
Attorney General.
The Chief Justice declined to vote, on the ground that the instructions from the Secretary of State were to suspend the whole of the Ordinance, without giving power to re-enact the unobjectionable clauses.
The Ordinance was read a first time.
The Governor moved, that this Ordinance be now read a second time.
The Attorney General objected to the second reading of this ordinance, and put in the following minute of Protest, which was read; namely:
"Minute."
"His Excellency having announced today his determination to persist in the resolution signified to us on Saturday, the Eleventh Instant, of asking the concurrence of the Legislative Council in the course which he proposes to take with respect to the future exercise of the powers vested in the Executive, Government by the "Peace and Security" Ordinance (No. 2 of 1857), I am compelled most reluctantly to present (according to my notice of that date) the following reasons for the protest which I now renew, against. His Excellency's determination and against the Draught Ordinance whereby it is to be carried out, and for respectfully declining to take any further part in the proceedings upon that Draughts Ordinance after recording my vote against the first reading thereof: "I. Because the state of the Colony is such as to demand the continued application of all the powers devised in January last for its peace and security by the said ordinance No. 2 of 1857: the only changes which have taken place since that time being of a nature rather to increase the then existing dangers, than to diminish them, as by the following enumeration will appear:
"1 Then the European inhabitants were heartily and jealously united in co-operation with this Government in carrying out its measures for the common safely: volunteers patrols were established: a reserve Constabulary; also consisting of volunteers, (there being no law for enrolling special constables) was constituted, a 'fire brigade' was similarly organized and mustered for practice watches were set at night-fall, and kept a foot until morning: and all this upon the understanding that the ordinary police should be maintained in at least undiminished strength and that the vigilance of the authorities should keep pace with that of the people:
"Now all these extraordinary helps are withdrawn and the published correspondence of the last three months between His Excellency's Government and Messieurs Lapraik and others, (the Committee appointed by the volunteers to present their complaints on finding their gratuitous labors increased by reason of a reduction in the strength of the paid police,) not only explains why the volunteers have ceased to render their aid, but also serves to show that the chance of their being again induced to come forward, by anything short of a sudden disaster is very little probable:
"2 Then there was a military force assembled at each important station to act at the moment of alarm.
"Now whether it be owing to the paucity of means or to whatever other cause, the guards have been withdrawn from the East Point and from the West Point and from the houses of the Lieutenant Governor, and the Chief Justice, form the Court House, and even from the Goal itself, and concentrated within their barracks; and yet so much more imminent does the danger of the abduction and murder of every high officer appear since the disclosures which led to the conviction in May last of the traitor who planned to kidnap and destroy the Lieutenant Governor, that His Excellency the Governor has been at the same time compelled to increase from six to seventeen the Military Guard on duty at Government House.
"3 Then there were some hundreds of French and American Marines stationed on shore for our protection.
"Now the caller are confined to the protection of the Naval Stores of the United States, and the French are withdrawn altogether.
"4 Then we were able for we had the right to rely upon the forbearance at least, if not upon the co-operation of the rebel Chinese whose squadrons were then as now hovering upon our coasts.
"Now we have every reason to dread an awful retaliation at their hands also for the wrong done them in the spring of this year when about seventy of their warriors including one of their most famous chiefs were surrendered by us to the officers of our enemy yeh, by whom they were immediately murdered, a compliance which as appears by the intercepted correspondence of those Officers with his coadjutor Tsun-kwei-tsick (published in the Hong Kong Government Gazette) has gained us not even the thanks but rather the ridicule and wonder of those contemptible barbarians.
"5. Then the balance of advantage as weighed in Chinese scale was against us: the feasibility of starring our markets by means of local combiners and of assassinating ourselves by means of domestic poisoners, had been successfully demonstrated, moreover the Foreign Factories had been recently burned at Canton every foreigners had been driven out of that place and Whampoa and even the British Squadron had fallen back to seek the safety of the deeper waters:
"Now the prestige of yeh and his braves demands an equivalent for the disgraces which have befallen their arms and the utter destruction of their fleet: and the taking of that equivalent may have only been delayed until our redoubled admiral whose intended departure with the new Plenipotentiary for the North can scarcely be a secret and at all events, will not now be many days delayed, shall have quitted these waters.
"6. Then the same yeh was aware (for admiral Leymour's despatch to His Excellency of the 14th November 1856 was published in the Hong Kong Government Gazette of the 28th of the same month) that for a period of many months there would be a suspension of the attack upon Canton, and that knowledge may have rendered him on his side disposed to relax his own measures of annoyance.
"Now the man is desperate persuaded of the immanency of his danger and informed perhaps of our own vainglorious security circumstances which enhance the likelihood of a sudden effort for our destruction, which whether it succeed or no, must be an useful diversion at such a crisis:
"And 7. Then the state of local crime was and for months before had been much below the average.
"Now it is as far above it: at the June criminal sessions of the Supreme Court these were sixteen cases for trial; all serious ones, and only two of them second charges whilst for this month the Crown Solicitor already reports four commitments and six independent prosecutions besides a number of fresh cases including nine daring crimes accomplished in one and the same night.
"II. Because the Despatch of Secretary Mr. Labouchere under date the 2nd May last, and laid before this Council by His Excellency supposes it to compel an immediate suspension of this most useful ordinance, does on the contrary begin by itself supposing that a change of circumstances may have taken place since January last, making it no longer useful. An assumption unhappily unfounded, and yet one which might have proved true, but for the terrible events at Delhi, unforeseen by the Secretary of State, whilst he was writing, and the consequent interception of the thousands of troops then on their way to this Colony and it is therefore impossible to doubt that the rest of the Despatch being based upon that hypothesis was intended by Mr. Labouchere to be understood by His Excellency in a conditional sense only, and to stand or fall with its own basis:
"III. Because the minister clearly pointed out the course to be taken in the event of circumstances being such as to enable a suspension of the ordinance, which course, altogether different from the one now proposed was this:
"1. Special constables were to be enrolled and the ordinary civil authorities strengthened: which proving ineffectual.
"2. Martial law might be proclaimed to be followed up by
"3. Deportation for five years of dangerous foreigners, a measure which might be introduced but not immediately enforced for even in that case.
"4. None of the enactments of the (to be) suspended ordinance were to be 'again called into operation without express authority from Her Majesty's (Imperial) Government.'
"And hence it is clear, that His Excellency even admitting (which I do not) that his instructions compel him to proceed to an immediate suspension of the ordinance, is not acting in conformity with them in so far as respects the measures to be had recourse to in lieu thereof: for he does not propose.
"1. to enroll special constables nor to strengthen the ordinary Civil authorities nor,
"2. to proclaim martial law, nor,
"3. to forbear from the deporting of Chinamen, nor,
"4. to keep inoperative the whole of the (to be) suspended ordinance until express authority is received from Downing Street, to call it, wholly or partially again into operation:
"But rather in opposition to those instructions, it is proposed,
"1. To suspend the ordinance all at once, a course not absolutely enjoined him, and next,
"2. To repeal a portion of it a course which the Home Government deliberately declines to take and then,
"3. To empower himself by Proclamation to revoke and again to restore that repeal, so often as he shall think fit, and the Executive Council advise him, an anomaly in legislation, but above all and lastly,
"4. To again call into action (by re-enactment) all the (remaining) enactments of the to be suspended ordinance and this to take effect upon the very day of the suspension; and this too, without the express authority, which His Excellency is instructed to wait for from her Majesty's Imperial Government."
"IV. Because it is impossible to pronounce as the author or adviser of Draft ordinance affects to do that any one section of the present ordinance is less objectionable in the eyes of the Her majesty's Imperial Government than another with the single exception of the Deportation Section (S.7) (which may be amended by introducing the term as already noticed of five years into the sentence, but which when so amended must be referred home and cannot be called into operation without express authority from home) insomuch that, in adopting this Draught Ordinance there is much reason to apprehend that in some instances at least the Council will be blamable hereafter for having acted ultra vires because contrary to Her Majesty's pleasure signified through Her Secretary of State.
V. Because according to the uniform practice, the Secretary of State would have simply signified the disallowance and directed the re-enactment (with amendments) of the ordinance in question with a view to its being immediately put in force in its amended state, had his intention been such as the author or adviser of the Draught Ordinance appears to suppose: instead of as now directing a conditional suspension of the whole of it during the next event feel five months, the course of post between Hong Kong and Downing Street.
"And VI. Because it is very plain from the foregoing state of facts that His Excellency has the choice of one out of only two alternatives;
"1. to hold that, the state of the Colony not admitting a suspension of the entire ordinance, now more than in January last, His Excellency is bound to accept the permission accorded him by the Despatch of not suspending any portion of it: or
"2. to hold that the emergency having ceased which alone could ever have justified such an Ordinance, His Excellency is bound to suspend the entire Ordinance unconditionally, and without an hour's delay.
"Of which alternatives I humbly advise him to make choice of the first."
(Signed) "T. Chisholm Anstey", "M.L.C"
("H. M. Attorney General")
"Council Chamber,"
"Wednesday, 15th July, 1857."
The Governor put again the question, that this Ordinance be now read a second time.
Debate Ensued.
The Chief Justice adhering to his former opinion, the Attorney General for the reasons stated on his minute; and Mr. Edger, because he considered the safety of the Colony to have been mainly due to the stringency of the Security Ordinance No. 2 of 1857, objected to vote for or against the proposed new ordinance But on the Governor remarking that their refusal would authorize him to insert a Nemine contradicente record, they voted against the second reading of the Ordinance. The other 5 members present voted in favor of the Question.
The Ordinance was read a second time.
The Attorney General asked leave to withdraw, and such leave being granted by His Excellency, he withdrew accordingly.
The Governor moved that this Ordinance do pass.
Sections II, IV and V and the title of the Ordinance were discussed and amended.
Question put by the Governor that this Ordinance as amended do pass.
Council divided.
Ayes (5)
Mr. Lyall,
Mr. Jardine,
Chief Magistrate,
Colonial Treasurer,
Acting Colonial Secretary.
Noes (2)
Mr. Edger,
Chief Justice
The Ordinance was passed. It bare the following title : "An Ordinance for better securing the Peace of the Colony," being No. 9 of 1857, which was ordered to be printed and published in the next Government Gazette.
The Council then adjourned sine die.
(Signed) John Bowring,
Governor.
Read and approved,
this 11th day of August, 1857.
(Signed) J. M. d'Almada e Castro,
for the Clerk of Councils.