(10)
first, second or third interruptions, the result of an adverse decision under the new law must have been the same namely to work an absolute forfeiture of all the materials at stake. I will be judged by the Ordinance itself, whether upon the Surveyor General proving any contravention of it, however immaterial, even though that contravention be an ex post facto one, even though it be the contravention of a specification that was not in existence on the day it was contravened—whether (I repeat with all respect) upon his proving the simplest contravention, he does not become entitled to have the work in progress adjudged a nuisance, and all its materials placed at his “absolute discretion”? (see section 17 of Ordinance No. 18 of 1856, in connection with section 10 of Ordinance No. 12 of 1856). Surely, Sir, such being the law, it was of very "material consequence" to me on occasion of the first interruption of 23rd May, to rescue the basement stories of my three buildings from the "absolute discretion" of the Surveyor General. If that "first interruption" had consisted of a notice or a caution, or an official warning of any kind and I had disobeyed it, the consequence might fairly be chargeable to my own obstinacy, but I present the depositions of 3rd June, appended, as contrasted with the Surveyor General's report upon case quoted in Colonial Secretary's letter, No. 765 of 22nd October, that I built "in defiance of repeated warnings." He swore under his own hand and upon oath, that he gave me no notice or warning whatever. May I further comment on one more fact in this deposition. If the Surveyor General could not, as he alleges, "find the contractor in the case" he might have found myself, the registered owner—residing on the very premises. His very first step was a summons, which showed that he looked but for one result—the confiscation of my basement stories.
Thus forced by the Surveyor General into an attitude of sheer defence, and finding the decision of the appointed Court in my favor, is it any wonder that I should have proceeded, on the scale on which I had begun (20 per cent, higher than the London scale), and which I could not then alter or conform without demolishing all the work done, down to the very foundation and commencing all de novo.
(13) However it is the law itself, and not merely its oppressive execution which I complain of and protest against, as unsettling all the primary foundations of property in this Colony and outraging the first rights of the British subject. That law must be without a precedent even in the annals of Colonial legislation, which upon the day it was passed discovers a contravention of its specifications in the basement story of a building actually roofed in, but not "finished," and because of that fundamental contravention which was equally impossible to foresee or to remedy, would condemn the whole building and its materials to the absolute discretion of the "Surveyor General"! This was not my case, but it was a case which actually arose.
(14) His Excellency Governor Bowring in laying this case of mine with the essential connexions fully before you, has, I trust, informed you that it did not stand alone—that large masses of property were included with mine in the summonses of 23rd May, (date of the first interruption) that the former were protected by the decision of the Bench of Magistrates on the date given, while mine alone was attacked and confiscated on the 20th August following. His Excellency has, I trust further informed you, that the property of American citizens, I name that of Mr. R. S. Sturgis, and Mr. J. B. Endicott, were included with mine in these very summonses of 23rd of May. Their Buildings on Queen's Road, Central Victoria, were actually roofed in though not completely "finished" (see section 11, Ordinance No. 8 of 1856), when they were attacked for a non-conformity in the basement stories! The decision of the Bench protected them as already stated, else it would have been hardly creditable to the Legislature of this Colony, that the property of American citizens, should have been destroyed like mine, and confiscated to the uses of the British Crown, under the operation of an ex post facto law. The legality of such a confiscation would, I can assure you have been challenged by the American authorities, (as was well known here at the time, and a protest upon these very grounds, prepared to meet any injurious issue) and I affirm, Sir, with all respect, that you owe it to the action of the Bench of Justices that you have not at this moment an international question to deal with, instead of a mere municipal one, a question that would then have involved in the face of the world, a huge scandal upon the Executive of this Colony, as having sanctioned the confiscation of an Alien's property under the action of a retrospective Law and appropriated its proceeds to the use of Her Majesty's Government.
(14) Finally, Sir, and by way of exhibiting that I did everything in this matter which a dutiful subject of Her Majesty could be expected to do, everything in my power towards saving myself from loss, and the local Government from responsibility. I beg leave to place in your hands copy of a letter which I received on 3rd June, from the Honorable the Colonial Secretary, in this behalf.
(15) Shortly after the appearance of Ordinance No. 8 of 1856, in draft, I hastened down from Canton, and consulted that functionary the Colonial Secretary, as to how far the proposed law might affect my works then in progress. I have now the honor to submit his opinion to you. It is to the effect, that on 3rd June (the date of the second judgment by the Magistrates in my favor) he, the Colonial Secretary was prepared in his capacity as a Member of that Court, which is designated as "inferior" to exempt my works from the operation of the new Law, though on different and lower grounds, than those taken by his brother Justices. I have a letter of a later date from Mr. Mercer, revoking his opinion of the 3rd June, but do not feel myself at liberty to submit it without his permission. His letter however of 3rd June, will serve to show that I carried on my works throughout the period therein indicated upon the authority of the highest Ministerial Officer of the Government, himself a Member of the Legislature, which passed the law of which he pronounced me independent.
(16) After the further exposition of this oppressive case, which I trust will serve to place the whole matter in a clearer light before you, it now only remains for me, with profound respect and confidence to entreat a fresh opinion at your hands upon the full premises, and to pray that you will be pleased to order an investigation to be made by the Local Government into such actual losses as I may be able to substantiate, and reimbursement out of the Colonial Chest to be made to me accordingly, eased as I must presume it to have been by the value of my building materials employed in the construction of Government works, as shown in my letter to the late acting Surveyor General, dated 19th of September, 1856, already before you in the correspondence transmitted.—I have the honor to be Sir, your most obedient humble servant,
(Signed)
A. R. HUDSON.
(COPY.)
MY DEAR HUDSON,—Some four or five weeks ago you asked my opinion on clause three of the Building Ordinance, which I gave you and still retain.
You now call my attention to Clause 11, and I beg to say that the two are quite consistent and reconcilable. "Or" is disjunctive, consequently each participle in 11 must be read separately, and not conjunctively as I am told the Magistrates read them the week before last. But at the same time each participle in that clause must be read in connexion with the words immediately following the last, "in contravention of this Ordinance."
We must now look to see what is in contravention of the Ordinance, and we find it throughout, with an exemption plainly laid down in Clause 3 of works in continuous progress for three weeks. Such works then are not in contravention of the Ordinance, and by a further consequence do not come under Clause 11. But it may be argued that Clause 11 concerns nuisances, a word that does not occur in Clause 3. True, but Clause 4 applies the word distinctly to Clause 3, and thus connects Clause 3, with Clause 11.
(11)
Ergo—in my opinion, now, as when I spoke to you some time ago, a house of which the building has been in continued course for three months to date of complaint is not a nuisance under Clause 11 as not "commenced, resumed, prosecuted, or finished, in contravention of the Ordinance."
Had I time, I would myself attend on the Bench to day, but as I cannot, you are at liberty to use the above argument.—Yours truly,
C. S. O. 3rd June, 1856.
(Signed)
W. T. MERCER.
(True Copy)
A. R. HUDSON.
(COPY.) No. 788.
Colonial Secretary's Office. Victoria, Hongkong, 29th October, 1856. SIR, I have the honor to acknowledge your letter of 26th instant, received this morning. As regards the proposals in your letter of 24th instant, to which you now allude as having received no reply. I am directed to observe that His Excellency presumes this to refer to your application for Captain Cowper's Official Report in Ly Hing's case, which report already forms enclosures in a despatch to the Secretary of State for the Colonies and cannot in accordance with the rules of the service, be furnished to yourself. I have the honor to be, Sir, your most obedient servant,
W. T. MERCER, Colonial Secretary.
(True Copy.)
A. R. HUDSON.
A. R. HUDSON, Esq.
(Signed)
(COPY.) No. 234.
Colonial Secretary's Office, Victoria, Hongkong, 27th February, 1857. SIR,—I am instructed to inform you that His Excellency the Governor, has received a reply from Mr. Secretary Labouchere to your communication relating to the Sanitary Ordinance. Mr. Labouchere is of opinion that the circumstances of the case justified the retrospective operation of that Ordinance and cannot suppose from the papers laid before him, that your works were so far proceeded with on the occasion of the first interruption as to have rendered that interruption of material consequence to you.
If you thought proper to continue them, relying on the decision of an Inferior Court in your favor, you must yourself bear the consequences of that decision having proved erroneous.—I have the honor to be, Sir, your most obedient servant,
(Signed) W. T. BRIDGES, Acting Colonial Secretary.
(True Copy)
A. R. HUDSON, Esq.
(COPY).
(Signed)
A. R. HUDSON.
Hongkong, 27th March, 1857.
SIR,—With reference to my letter of the 16th inst. I have the honor to request in the event of that letter not proving completely satisfactory to you, that you will favor me with a copy of His Excellency Governor Bowring's despatch, which caused you to take such an unfavorable view of my claim, to be furnished to me, in order that I may have an opportunity of correcting any errors affecting my case into which His Excellency may have been unconsciously led. I am sure I need do no more than appeal to His Excellency's sense of justice to second this request, the more so as he informed me, that it was owing to an official regulation, my former request to the same effect could not be complied with, as will appear from the enclosed correspondence,—I have the honor to be, Sir, your most obedient humble servant,
(Signed) A. R. HUDSON.
To The Right Honorable HENRY LABOUCHERE, M.P.,
Her Majesty's Secretary of State for the Colonies.
(COPY)
Extract from my letter to His Excellency Governor Bowring, dated 24th October, 1856, with the Colonial Secretary's reply of 29th following.
"In conclusion I would beg leave to suggest to His Excellency the expediency of furnishing me with a copy of Captain Cowper's official report, in full, upon Ly Ating's case, towards enabling me to challenge "such facts as I may, and rebut them if I can, and thus lay as complete a case as possible before Her Majesty's Government. Against which on the other hand, I offer to submit myself to answer any "queries essentially connected with this case which His Excellency may deem necessary to its complete "elucidation for the better information of the Secretary of State."
(True Extract)
(Signed)
B. Trenchard, Printer and Stationer, High Street, Uxbridge.
A. R. HUDSON.
282