to bring the charge if they found the law was! not complied with.
Mr. Brereton said that was a matter of opinion, but it was melancholy while crime was rife in the Colony to see the police wasting their energies by dragging this respectable company into a police court and endeavouring to mulet them in a heavy fine for doing su act for which they deserved every praise. No doubt it was the duty of the Government to protect life and to see that every proper means was taken for its protection, but in the present caso no such proper maans had been applied, and the Ordinance so far from doing what it professed to do was actually mischievous, because while it professed to prevent overcrowding on steamers, it autho- rised sash over crowding according to the con- struction of the steamer. There were steamers which could carry 3,000 tons of cargo, but which had only one dock and that covered with bonses and machinery. What was to prevent one of these steamer carrying passengers and packing them together like herrings in a barrel? The police could not interfere. Here were the living Chinese treated as dead weight, as so many pigs of lead. You can only put two passengers to three tons. What could be more ridiculous? Ho did not bring any charge against the framers of the Ordinance, absurd as he said it was. The greatest deliberative assembly in the world was the British House of Commons. Yet, as he said before, some of the most absurd, ridioulous, and impracticable Acts had been turned out by that same legislature. Some people were supposed to possess a wonderful capacity for drafting Ordinances, while in fact they had none, and gentlemen were in the habit of placing reliance on them and not serutiosing too closely the measure brought forward because they thought the person bringing it forward had special know- ledge of the subject. The strongest evidence that could be given that the Ordinance in question was an unjust, unfair, and improper one, was the fact that his Excellency the present Governor remitted the whole of the fine in the case of the Kinshan, although she had such a very largo number of passengers in excess. He asked bis Worship either to treat this Ordinance as a nullity or to so modify its provisions that it could do little harm either now or in the future, nutil the proper Ordinanco, which was now in preparation, had been passed. He sub- mitted it had not been proved in the way it ought to have been proved that a certain number of passengers had been la en on board those steamers. In support of this view he cited the decision of Mr. May, in the case of the Ichang, who dismissed the summons because no specific excess of the number allowed had been proved to have been carried. He argued that the exact number must be shown.
His Worship said it might be proved there were a hundred in excess, although there were actually more.
Mr. Brereton submitted his Worship could not arbitrarily fix on any number; that the exact number must be provei.
His Worship said he should judge by the Or. dinance and decide on the evidence. He was not bound by the decision of auy Magistrate, how. ever much he might respcot Mr. May.
Mr. Brereton submitted that the only thing his Worship could do would be to inflict à lump fine in respect of cach vessel, that he could not inflict anything extra per head.
Ile went
on to argue that the defendants were not. liable, even supposing they had carried the whole number, because the evidence showed the captain was prevented by via major from Reaping those passengers off the steamer. H. quota Wharton's defination of vis major, and referred to the evidence of Mr. Pugh as showing that it was absolutely impossible to prevent the people coming on board at Canton. Then it was proved by Captain Cary that the vessel could carry 4,000 passengers with the greatest ease, and the object of the Ordinance, as stated in the preamble, was to prevent overcrowding. There had been no overcrowding on this occasion. He again referred to the new Bill now being prepared, and said that in the draft the gross tonnage was stated as the criterion of the num. ber of passengers to be carried instead of the net tonnage, which would make a wonderful difference, But even that, he had good reason for know. ing, was not going to be enforced. He went on to instituto a comparison between the regula tions as to the number of passengers allowed to be carried in steam launches-namely, one
!
for every seven superficial feet-ia the har bour, and the number allowed to be carried ou the river steamers, referring to the profes sional evidence of Captain Cary as showing the the passengers in the latter were tanda smer than those in the former. If the same rule was applied to the river steamers as was applied to the harbour launches, the Kinshan could carry 1,724 passengers and the Powan 2,193, while according to the Board of Trade rules the Kinsh in could carry, in partially smooth water, 1,950 passengers, aud in smooth water over 3,000, and as regarded the Powan the number would be 3,643. te it this before his Worship as showing that the Company, although they might be technically in fault, had committed no moral offence, as they had taken fower passengers than they would have been allowed to take had they been ruuning on the coast of England. He sail it rested en- tirely with his Worship as to what fiue he would inflict if he made up his raind to inflict a dine. By Ordinance 2 of 1873 winimum penalties are abolished, and the discretion was given to the magistrate in all cases to indict as low a fine as he thought necessary,
Mr. Sharp said that was retrospective.
Mr. Brereton submitted that it applied to every Ordinance.
His Worship said it did not apply to an Or. dinance passed several years afterwards.
Mr. Brereton said it showed the system then iu force was a vicious one and a system to be put down. By strong inference he said it was the intention of the legislature to provide ; that no Ordinance passed afterwards should have a minimum pauishment. Would the! legislaturo stultify itself in this way by finding out the error that had crept into past Ordinances and then go on repeating the error P He submitted that his Worship had full power as to the penalty, and could infliêt for the fine $5 and for the penalty per head 5 venta. ile asked that the lowest penalty might be inflicted, there being no moral guilt attributable to the Company and no accident having ever : happened.
Mr. Sharp briefly replied arging that the Court had nothing to do with anything outside the Ordinance, that the case had been clearly proved, and that his Worship had no discretion as to the infliction of the penalty of $5 per head. His Worship said that with regard to Mr. Brereton's remarks about the Ordinances he was perfectly satisfied bis only guide ought to be the Ordinance under which the summonses were taken out, No. 11 of 1876. Ife had not to com- sider what the English rules were. As regarded the impossibility of checking the influx of Chinese passengers at Canton he was sure the officers of the ships had done what they could. That had been found insufficient, and therefore it was the duty of the directors to have provided better means, which they had noglacted to do. This was bot an extraordinary case; it was the second case that had been brought. It was very clear, too, that if they were very strict about limiting passengers they would not have taken an extra lot at Wham- pos after leaving Canton with an excess.
Ho would therefore infliot the full penalty in both cases and the Bue of $5 a heal for each of the passen. gers carried in exesss of the proper namber, the number in exgess in the cuse of the Kinshan being 1,100 and in that of the Powan 935.
Mr. Breretou--Very well, your Worship, we will see what the Chief Justice and Mr. Suowden will say about it.
316