362-368, on Hongkong. The extortion practised by the Chinese officials then in Govern
ment employ and by the Police at this early period of the Colony, will be found there
duly noticed,
12 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Hongkong Her Majesty's Plenipotentiary, by proclamation of the 16th
declared a
free port. February, 1842 , declared Hongkong a free port, and on the
25th of the same month notified his intention of removing his
Superintend- establishment from Macao to Hongkong, where his presence
ency of
Trade re- had become necessary, appointing Mr. John Rickett, Govern-
moved from ment Agent at the former place. He remained here until the
Macao to
Hongkong. month of June when he rejoined the headquarters of the
expedition on its way to Nanking just after the capture of
Woosung. During his stay in Hongkong, Sir Henry Pottinger
Further pro- personally superintended the affairs of the Colony. At the
gress of
Hongkong. end of March, the Friend of China, a local paper, while noticing
the progress of Hongkong at this early stage, remarked that the
annals of colonization did not record a like progress , and quali-
fied the beginning as " miraculous. " The population had now
increased to at least 20,000 , many if not most of them being
said to be outcasts from their own country and perhaps liable
to punishment for crimes against their own laws , which made
it a matter of congratulation that order was so well established ,
Judicial Es despite frequent piracies and robberies. The Judicial Establish-
tablishment. ment now consisted of Major Caine as Chief Magistrate ;
Mr. Samuel Fearon , as Interpreter and Clerk of the Court,
Coroner, and Notary Public ; and Lieutenant Pedder, R.N. , as
Marine Magistrate and Harbour Master.
Magisterial The powers and authority originally granted to the Chief
powers and
and Marine Magistrates having been increased in some respects ,
authority.
and their warrants of appointment revised and modified , these
were now on the 25th April, 1842 , duly published . The Chief
Magistrate's jurisdiction in civil matters was raised to $250 ,
with power to confine debtors , if necessary, though it was
wished more extensive powers had been vested in him in regard
to piracy which had become a daily increasing evil . For a
robbery committed in June, the records show that the captured
prisoner was sentenced by the Chief Magistrate to receive sixty
strokes of the bamboo, the mode of inflicting legal punishments
among the Chinese and which had been locally adopted .
Land. Nine months had hardly elapsed since the first land sale of
the 14th June, 1841 , before alluded to , when difficulties began to
arise between the purchasers and the Government owing to the
uncertain description of the lots sold , the claims made for allot-
ments of land, the alteration, curtailment, and enlargement of
boundaries by the making of new roads, and the uncertain
tenure upon which the land was to be held, and on the 22nd
March, 1842, Sir Henry Pottinger issued a Government Notifi-
cation of his intention to appoint a Committee to investigate
any claim that might then be pending regarding allotted loca-
tions of ground of whatever description , and finally to define
and mark off the limits of all locations that had yet been sold
INTRODUCTION . 13
or granted upon any other terms . The Committee were like-
wise to definitely fix the direction , breadth, etc. , ofthe " Queen's
and all other public roads within the Settlement, and empowered
to order the immediate removal of any encroachments that
might be found to have been unauthorizedly made upon them,
the expense of such removals being charged to the individuals,
to whom the locations , in which they might have been made,
belonged . This notification added that the Committee would
further be instructed to turn its attention to the examination
of the best points for laying down new lines of roads , etc. , and
providing locations to meet the demands that might be expected
from the rapidly increasing population of the Colony, both
European and native, and that any suggestions that individuals
might wish to offer on this part of the Committee's proceedings
would receive from it the fullest consideration ; but it was at
the same time expressly notified that no purchases of ground ,
by private persons, from natives formerly or then in possession
would be recognized or confirmed unless the previous sanction
of the constituted authorities should have been obtained, it being
the basis of the footing on which the island of Hongkong had
been taken possession of and was to be held , pending the Queen's
Royal and Gracious Commands, that the proprietary of the soil
was vested in and appertained solely to the Crown, and that, on
the same principle, the reclaiming of land , beyond high water
mark, must be deemed an infringement on the royalties of
Her Majesty, and was therefore positively prohibited by any
private persons.
The Land Committee was appointed by Sir Henry Pottinger
on the 29th March, 1842 .
The members of the Committee were-
Major Malcolm .
With the sanction of
Captain Meik, H. M.'s 49th Foot.
Major- General Burrell , c.B. Lieut. Sargent.
R. Woosnam .
With the sanction of Capt.
Mr. Pasco.
Sir Thomas Herbert , K.C.B. }
The Land Officer, Captain Mylius , was to attend the Com-
mittee for the purpose of giving effect to its proceedings by
laying down the necessary land marks , boundaries , roads , etc.
The instructions to the Committee were to report to Government
any cases in which they were of opinion that the native Chinese
should be remunerated for ground which was in their possession
previous to the occupation of the island by Her Majesty's forces
and which might have been appropriated , as well as the amount
of remuneration ; to select the most eligible spots for building
landing places ; to define the limits of the cantonments , or loca-
tions for officers , near the different barracks ; to likewise fix
14 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
the extent of ground to be preserved for the naval depôt, and
for dock yards, including spots for one or more patent slips
which, it was understood , were likely to be erected by companies
or individuals ; and it being the intention of the Government to
form a watering place for the shipping, the Committee were to
select the most eligible spot with a running stream of good
water for the purpose.
This Committee appears to have granted several lots of land ,
but made no report upon the matters submitted to them . No
lease or other deed of grant of the lots had at this time been
issued to the purchasers, the " grant " of the lot being simply
an entry in a book kept by the Land Officer showing only the
name of the purchaser and the side measurements of the lot
purchased, and as sales of lots had already begun to take place
from one holder to another, difficulties had arisen as to the
liabilities of the purchasers to the Crown . As a remedy for
these difficulties and to provide for the registration of sales , the
following Government Notification of the 2nd May, 1842 , signed
by the Land Officer, was issued : -
GOVERNMENT NOTIFICATION .
"With a view to the prevention of future misunderstanding and difficulties,
His Excellency Sir Henry Pottinger, Bart., is pleased to direct that no sales
of land are to be made by the holders of grants to other parties except with
the knowledge of the Land Officer, and that any sales that may have been
made, or may be made in future, unless registered in the Land Office, shall
be held to be invalid.
" Purchasers of grants from the individuals before holding them are to
understand distinctly that they will be under the same liabilities to Govern-
ment as the parties from whom they purchase. "
By Order,
(Signed) GEO. F. MYLIUS,
Land Officer.
Land Office, Hongkong, 2nd May, 1842.
Only two weeks after this date the appointment of Land
Officer was temporarily abolished , and further grants of land
were prohibited .
On the 27th May, 1842 , a " Land and Road Inspector " was
appointed to do the work of the Land Officer. His instructions
with reference to the Crown Lands of the Colony stated that ,
as the existing prohibition against further grants of land was
to continue in full force pending the receipt of commands from
Her Majesty's Government, it would not even be necessary for
him to bring any applications on that subject to the notice of
the Deputy Superintendent who would be charged with the
Civil Government of the island during the absence of Sir Henry
Pottinger. The duties of the new Land and Road Inspector
were to prevent encroachments on the unappropriated lands or 1
on the roads, and he was to register in his Office all sales and
INTRODUCTION. 15
transfers of land in conformity with the notification issued by
the Land Officer on the 2nd of the same month . This notifica-
tion was signed by Mr. J. R. Morrison , Acting Secretary and
Treasurer .
The administration of the estates of intestates who had died Administra.
in the Colony now began to engage the attention of the author- tion of
Intestates'
ities, Her Majesty's Superintendent of Trade appointing Estates.
alternately an official to act " on their behalf " in such matters .
The first instance of the kind dates from the 9th May, 1842,
when it was notified that Mr. Robert Edwards would ad-
minister to the estate of one Alfred Rivers Labtat on behalf of
the " Superintendent." The formula necessary for administering
to estates of deceased persons does not appear to have been
adopted at this early period of the colony. Counterfeit coins in Counterfeit
circulation had become so plentiful that, in July, 1842 , the Coins.
Chief Magistrate issued a proclamation giving warning of the
consequences entailed in being found in possession of these.
A new edition of the rules and regulations for the Colonial Colonial
Service
Service was received at this time by the Government. Several Rules.
were of judicial interest, but were not applicable to Hongkong,
which, as yet, possessed no legislature of its own.
Secret societies ,
numerously supported, were reported as Secret
Societies.
established in Hongkong and possessing much influence.
A treaty of peace and friendship with China having been Treaty of
concluded and signed on the 26th August, 1841 , Her Majesty's Peace and
Friends hip
Plenipotentiary, Sir Henry Pottinger, while on board the steam with China.
frigate Queen in the Yangtze Kiang River, off Nanking, on Hongkong
the same date, issued a circular to British subjects in China, ceded in
which recited the most important provisions of the treaty, the perpetuity.
fourth paragraph of which declared " the island of Hongkong
ceded in perpetuity
99 to Her Britannic Majesty, her heirs and
successors.
By a subsequent treaty , known as the Treaty of Nanking,
dated August 29, 1842, section III., after repeating the
cession clause before quoted , laid down that Hongkong was "to
be governed by such laws and regulations as Her Majesty the
Queen of Great Britain , etc. , shall see fit to direct."
The news conveying the conclusion of peace reached London Home
on the 22nd November, 1842 , and diffused great joy, Lord rejoicings.
Stanley writing to the Lord Mayor " that it had pleased
Almighty God to crown Her Majesty's arms with complete
success ; and that the Emperor of China had been compelled
to recognize the claims of Great Britain, " -a paper remarking
that "in the metropolis the church bells rang, the Park and
Tower guns roared in honour of the occasion. A salute from
the Castle and the chimes of the city bells gladdened the citizens
of Auld Reekie. In Dublin , more gay and joyous still, the whole
16 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
garrison assembled in Phoenix Park and hailed the welcome
news by firing a feu- de -joie. At Liverpool the intelligence
was greeted with firing of guns and ringing of bells . In the
provinces the demonstrations of popular satisfaction were
universal." By notification in the Gazette of the 2nd December ,
1842 , it was announced that to mark her appreciation of the
services of the distinguished commanding officers, Her Majesty
had been pleased to confer upon Vice-Admiral Sir Wm.
Parker, K.C.B., Commander of Her Majesty's Naval Forces in
India and China, and Major- General Sir Henry Pottinger ,
Bart. , K.C.B., Her Majesty's Plenipotentiary in China , the in-
signia of Knight Grand Cross of the Most Honourable Order
of the Bath , the thanks of both Houses of Parliament being
awarded to the Commanders of the army and navy.
Local
opinion. Commenting upon the treaty, the local paper The Friend
of China and Hongkong Gazette of the 10th September,
1842 , remarked that the stipulations were such, that whilst
they were not unbefitting the dignity of Great Britain , they
were yet so moderate in their scope and tenour, as to compel
the admiration of the civilized world . The importance of the
stipulation of the cession of Hongkong in perpetuity to Great
Britain was hardly recognizable, except that it relieved the subjects
of the Emperor from any pains and penalties to which otherwise
they would be exposed, by resorting hither.
Edward On the 3rd September, 1842, Mr. Edward Farncomb received
Farncomb,
Coroner. the appointment of Coroner for Hongkong in succession to Mr.
S. Fearon, and was duly sworn in . This gentleman had pre-
viously advertized his qualifications to the public in the follow-
ing manner which will bear reproduction :-
CIRCULAR.
Mr. Edward Farncomb,
Of London,
begs most respectfully to announce to his friends, and the public in general,
that he has opened
An Office in Hongkong
as
An Attorney at Law and Conveyancer,
and he begs to solicit their patronage. In addition, he takes the opportunity
to assure them that any matters which may be entrusted to him will meet
with the best attention, care and secrecy .
No. 1 , Magistracy Street.
The first Coroner's inquest recorded was held on the 1st October ,
1842 , when Mr. Farncomb held an inquest into the cause of
death of a Chinaman whose body had been found floating close to
the pier on the morning of the same date bearing a gun-shot
wound, and who was said to have been one of a gang of thieves
who, on the previous evening, had broken into the premises
of a local merchant named J. F. Hight, and at whom the latter
had fired a random shot . The jury returned a verdict that “ the
INTRODUCTION. 17
Chinaman was shot by the pistol " and there the matter seemed
to have ended .
Daring gang robberies were frequent at this period and com- Crime in
plaints were rife as to the inability of the authorities to cope Hongkong.
with them, in consequence of which the Chief Magistrate issued
a proclamation in Chinese which was posted on the walls about
the town, and which excited considerable interest among the
native population. The following is a translation of the procla-
mation :-
"Caine, Chief Magistrate of the Great English nation's territory of
Hongkong, issues his proclamation. It appears that recently a great many
night robberies have been committed, and this proclamation is now issued
for the full information of all the people. Hereafter all Chinese, besides the
usual watchmen, are forbidden to walk the streets after eleven o'clock at
night, and whosoever shall violate this prohibition shall be arrested by the
Police and brought before the Chief Magistrate for thorough examination
and judgment.
Let each tremblingly obey. A special proclamation .
Taou-Kwang, 22nd year, 9th moon, 1st day, 4th October, 1842."
Accounts of piracies also continued to attract public atten- Piracy.
tion, H. M.'s Plenipotentiary undertaking to take measures in
conjunction with the Chinese authorities to put down the
pirates . Sir Henry Pottinger, however, was not long before he
discovered how futile would be any attempt on his part to
induce the Chinese authorities to co-operate with him in his
endeavour to put down piracy, for, writing from Government
House, on the 8th March, 1843 , he informs Admiral Sir William
Parker that the Chinese had " civilly declined "
" any co -opera-
tion with him, and that he ( Sir Henry Pottinger) had been for
some days in communication with the principal mandarin
entrusted with the general superintendence of this service, at
the same time detailing the Chinese plans. But the public did
not rest satisfied and were greatly incensed at the course
pursued, complaining, naturally enough, from their knowledge
of the Chinese, that the arrangement was one that would never
answer and ought, under no circumstances, to be countenanced,
no one having any confidence in the integrity of Chinese
officers . Piracy from the frequency of its occurrence had
been forced upon public attention more than ever since January,
1843, when the pirates had had the audacity to capture a
Chinese vessel while under convoy of one of Her Majesty's
sloops of war.
The reports from the Chief Magistrate's Court to the end of End of 1842.
1842 contain nothing of interest outside the usual punishments
inflicted for serious offences, mostly robberies, which consisted
in some cases of 60 to 100 strokes of the bamboo, besides several
months' imprisonment. The administration of justice with
18 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
regard to the inadequate punishment meted out for serious
crimes also called for reform, power being asked , without an
expensive judicatory, to meet the then existing exigencies of
society . The want, moreover, of a properly constituted Court of
civil jurisdiction being also felt as well.
Sir Henry The forms and ceremonies, attendant upon the investiture of
Pottinger,
K.C.B. Sir Henry Pottinger with the insignia of a Knight Grand Cross
of the Most Honourable Order of the Bath were observed at
Government House on the 20th May, 1843 , Vice - Admiral Sir
William Parker, at the express command ofthe Home Government,
investing him with the Order, the Admiral himself having been
invested with the insignia on board H. M. S. Cornwallis, on the
18th of the same month.
Queen's By proclamation of the 1st June, 1843 , an Order passed at a
Order in
Council re- Privy Council held at Windsor on the 4th January, 1843,
moving to
Canton from directing the removal to Hongkong of the Criminal and
Hongkong, Admiralty Courts heretofore held at Canton under Order in
and Criminal
the Admir- Council of the 9th December, 1833 , was ordered to be published.
Whether this removal was meant as a measure of convenience to
the Chief Superintendent of Trade, whose time was now almost
entirely taken up with Hongkong affairs or as a temporary
relief to the community of Hongkong, is not quite apparent,
although, from the previously unsatisfactory state of affairs, this
would seem to have been the object aimed at . But suffice it to
say that though the removal of the Court from Canton to
Hongkong and the establishment of suitable rules of practice
and procedure were in themselves to be considered in the light
of an improvement, nevertheless the fact remained that both
the machinery and powers were yet still wanting and were totally
insufficient to meet the altered state of things. The following
is the Order above alluded to :-
At the Court at Windsor, the 4th day of January , 1843 - Present, The
Queen's most Excellent Majesty in Council. Whereas by an Act of Parliament
made and passed in the Session of Parliament holden in the third and fourth
years of the reign of His late Majesty King William the Fourth, intituled
" An Act to regulate the Trade to China and India," it was, amongst other
things, enacted , that it should and might be lawful for His said Majesty, by
any such Order or Orders as to His said Majesty in Council should
appear expedient and salutary, to create a Court of Justice, with Criminal
and Admiralty Jurisdiction, for the trial of offences committed by His said
Majesty's subjects within the Dominions of the Emperor of China and the
ports and havens thereof, and on the high seas within one hundred miles
of the coast of China ; and to appoint one of the Superintendents, in the said
Act mentioned, to be the Officer to hold such Court, and other Officers for
executing the process thereof :
And whereas, in pursuance of the said Act, and in execution of the
powers thereby in His said late Majesty in Council in that behalf vested,
it was, by an Order dated the 9th day of December, one thousand eight
hundred and thirty-three, ordered by His said late Majesty, by and with the
INTRODUCTION. 19
advice of His Privy Council, that there should be a Court of Justice, with
Criminal and Admiralty Jurisdiction, for the purposes aforesaid , which
Court should be holden at Canton, in the said dominions, or on board any
British ship or vessel in the port or harbour of Canton ; and that the said
Court should be holden by the Chief Superintendent for the time being
appointed or to be appointed, by His said late Majesty, under and in pur-
suance of the said Act of Parliament :
And whereas it is expedient that the said Court of Justice should hence-
forth be holden in the island of Hongkong :
Now , therefore, in further pursuance of the said Act, and of the powers
thereby in Her Majesty in Council in that behalf vested, and of all other
powers to Her Majesty belonging or in any wise appertaining, it is hereby
ordered by Her Majesty, by and with the advice of Her Privy Council, that
the said Court shall henceforth be holden in the island of Hongkong ; and
that the same shall have and exercise jurisdiction for the trial of offences
committed by Her Majesty's subjects within the said island and within the
dominions of the Emperor of China and the ports and havens thereof, and
on the high seas within one hundred miles of the coast of China and it is
hereby further ordered , that the said Court shall be holden by the Chief
Superintendent for the time being appointed , or to be appointed, by Her
Majesty, under and in pursuance of the said Act :
And Her Majesty, by and with the advice of Her said Council, doth hereby
confirm in all other respects the said Order of His said late Majesty in Council,
dated the ninth December, one thousand eight hundred and thirty- three.
And the Right Honourable the Earl of Aberdeen, one of Her Majesty's Prin-
cipal Secretaries of State, is to give the necessary directions herein accordingly.
(Signed) C. C. GREVILLE .
And on the 20th June, 1843 , the Rules of Practice and
Proceeding in the Criminal and Admiralty Court were duly
promulgated for general information . Mr. Alexander Scott, on Alexander
the removal of the Court from Canton, became the Recording Scott,
Recording
Officer in Hongkong. The records do not show that he had Oficer.
previously held the same position in the former place or when
he arrived in the Colony.
Public opinion had now begun to assert itself as to the neces- Agitation for
sity for a revision of the law as then administered . It was the reforms in
adminis-
considered ill-judged and impolitic that the Chinese residents tration of
should be amenable to their own laws and usages ; that though justice.
the large bulk of the population was Chinese and mostly of
the worse class , still the British laws were admirably suited to
their necessities and fully adequate to all their moral and social
exigencies . As had been done elsewhere, it was admitted to
have been a capital error in English policy to have guaranteed
the maintenance of the laws, franchises, and customs , besides the
authorized official use of the languages, of conquered countries.
The existence of an English patois, which was regularly taught
in schools and was spoken by thousands in Hongkong, was in
itself of immense value, and moreover the disposition and wish
of the intelligent classes of the Chinese to know more of us and
of our institutions led one to hope that every exertion would be.
20
20 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
made to encourage the adoption of our customs, manners , and
language by the natives, and the only effectual way by which
this could be attained was by making all residents in Hongkong
amenable to British laws, and to none other whatsoever. In the
House of Commons on Tuesday, the 17th February, 1843 , Sir
G. Staunton rose, pursuant to notice, to inquire whether it was
the intention of Her Majesty's Government to bring any bill
into Parliament in the course of the session for the purpose of
regulating the administration of justice in Hongkong. Sir R.
Peel agreed with the honourable baronet that it was absolutely
necessary that measures should be taken to regulate the Courts of
Justice at Hongkong ; but he thought it would be much better
to postpone legislation on the subject until they had had an
opportunity of advising with Sir Henry Pottinger, to whom he
alluded in flattering terms. Her Majesty's Government, more-
over, did not wish to proceed with any measures in general
legislation until they possessed the advantage of his advice and
opinions. As will be seen, however, native laws, to some extent,
were afterwards adopted, at all events as regards criminal
offenders, for section 25 of Ordinance 10 of 1844, relating to
proceedings before Justices of the Peace, provided that Chinese
offenders were to be punished according to Chinese usage. This
provision continued in force until as late as 1875 , when it was
repealed by Ordinance No. 16 of that year, and the third section of
the first Ordinance establishing the Supreme Court in the
Colony, No. 15 of 1844, also laid down that in all criminal
proceedings within the jurisdiction of the Court, it should be
lawful to punish the offenders according to the laws of China.
The Charter The public had not long to wait to see the accomplishment
of Hongkong of their wishes in the way of reform generally in Hongkong,
for no sooner was the treaty of peace before alluded to duly
ratified and exchanged than a Royal Charter declaring Hong-
kong a separate Colony with established Courts and full
Sir Henry legislative powers , and a Commission appointing Sir Henry
Pottinger,
Governor. Pottinger (who until now had governed Hongkong by virtue of
his Commission as Superintendent of Trade) the first Governor
of the Colony and its dependencies, though retaining his position
of Chief Superintendent of the Trade of Her Majesty's subjects
in China, were duly proclaimed and published . Sir Henry
Pottinger's Commission as Governor under the Queen's Sign
Manual, was dated the 5th April , 1843 .
"The Colony By proclamation dated the 26th June, 1843 , Sir Henry Pottinger
ofHong.
kong." was further pleased to direct " that the present city, on the northern
" The City of side of the island, shall be distinguished by Her Majesty's name,
Victoria,"
and that all public communications , archives, etc. , etc., shall be hence-
forward dated Victoria ." Until this time the town proper had
INTRODUCTION. 21
been known by the name of " Queen's Town," though a wish
had often been expressed that the name now given might be
declared official . As both the Proclamation and Charter are
of such lasting importance, they are reproduced in full : —
PROCLAMATION.
The treaty of peace, ratified under the Signs Manual and Seals of the
respective Sovereigns, between Her Majesty the Queen of the United Kingdom
of Great Britain and Ireland, etc., etc., and His Imperial Majesty the
Emperor of China, having been this day formally exchanged, the annexed
Royal Charter and Commission, under the Great Seal of State, are hereby
proclaimed and published for general information, obedience and guidance.
His Excellency Sir Henry Pottinger, Bart. , G.C.B. , etc., etc., has this day
taken the oaths of office, and assumed charge of the government of the
Colony of Hongkong and its Dependencies.
In obedience to the Gracious Commands of Her Majesty, as intimated in
the Royal Charter, the island and its dependencies will be designated and
known as " The Colony of Hongkong " ; and His Excellency the Governor
is further pleased to direct, that the present city, on the northern side of the
island, shall be distinguished by Her Majesty's name, and that all public
communications, archives, etc., etc. , shall be henceforward , dated " Victoria."
God save the Queen.
HENRY POTTINGER.
Dated at the Government House at Victoria, this 26th day of June, 1843 .
The following is the Charter :-
CHARTER OF THE COLONY OF HONGKONG.
Victoria, by the Grace of God, of the United Kingdom of Great Britain
and Ireland, Queen, Defender of the Faith, -To all to whom these Presents
shall come- Greeting : Know Ye-that We of our especial grace, certain
knowledge, and mere motion, have thought fit to erect and do hereby
our island of Hongkong and its dependencies, situate between
twenty-two degrees nine minutes and twenty-two degrees twenty-one
minutes north latitude, and the one hundred and fourteenth degree six
minutes and the one hundred and fourteenth degree eighteen minutes east
longitude from the meridian of Greenwich, into a separate Colony, and the
said island and its dependencies is hereby erected into a separate Colony
accordingly, to be known and designated as " The Colony of Hongkong."
And we do hereby further grant, appoint, and ordain that the Governor for
the time being of the said Colony, and such other persons as are hereinafter
designated, shall constitute and be a Legislative Council for the said Colony :
And we do hereby direct and appoint that, in addition to the said Governor,
the said Legislative Council shall be composed of such Public Officers within
the said Colony, or of such other persons within the same as shall from time
to time be named or designated for that purpose by Us, by any Instruction or
Instructions or Warrant or Warrants, to be issued by Us for that purpose
under Our Signet and Sign Manual, and with the advice of Our Privy
Council, all of which Councillors shall hold their places in the said Council
at our pleasure : And we do hereby grant and ordain, that the Governor for
the time being of the said Colony, with the advice of the said Legislative
Council, shall have full power and authority to make and enact all such
Laws and Ordinances as may from time to time be required for the peace,
order, and good government of the said Colony of Hongkong : And that in
22 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
the making all such Laws and Ordinances, the said Governor shall exercise
all shall powers and authorities, and that the said Legislative Council shall
conform to and observe all such rules and regulations , as shall be given and
prescribed in and by such instructions as We, with the advice of Our
Privy Council, shall from time to time make for his and their guidance
therein Provided , nevertheless, and We do hereby reserve to Ourselves, Our
Heirs and Successors, Our and their right and authority to disallow any such
Ordinances in the whole or in part, and to make and establish from time to
time, with the advice and consent of Parliament, or with the advice of Our
or their Privy Council, all such Laws as may to Us, or them, appear
necessary, for the order, peace, and good government of our said island and its
dependencies ; as fully as if these presents had not been made : And whereas
it is expedient that an Executive Council should be appointed to advise and
assist the Governor of Our said Colony of Hongkong for the time being in
the administration of the government thereof--We do therefore, by these
Our Letters Patent, authorize the Governor of Our said Colony for the time
being to summon , as an Executive Council, such persons as may from time
to time be named or designated by Us , in any Instructions under Our Signet
and Sign Manual, addressed to him in that behalf : And we do hereby
authorize and empower the Governor of Our said Colony of Hongkong for
the time being, to keep and use the Public Seal appointed for the sealing of
all things whatsoever that shall pass the Seal of Our said Colony And We
do hereby give and grant, to the Governor of Our said Colony of Hongkong
for the time being, full power and authority, in Our name and on Our behalf,
but subject nevertheless to such provisions as may be in that respect
contained in any Instructions which may from time to time be addressed to
him by Us for that purpose, to make and execute in Our name, and on Our
behalf, under the Public Seal of Our said Colony, grants of land to Us
belonging, within the same, to private persons, for their own use and benefit,
or to any persons, bodies politic or corporate, in trust for the public uses of
Our subjects there resident, or of any of them : And We do hereby authorize
and empower the Governor of Our said Colony of Hongkong for the time
being, to constitute and appoint Judges, and, in cases requisite, Commissioners
of Oyer and Terminer, Justices of the Peace, and other necessary Officers and
Ministers in Our said Colony, for the due and impartial administration of
justice, and for putting the Laws into execution, and to administer, or cause
to be administered , unto them such Oath or Oaths as are usually given for
the due execution and performance of offices and places, and for the clearing
of truth in judicial matters : And We do hereby give and grant unto the
Governor of Our said Colony of Hongkong for the time being, full power and
authority, as he shall see occasion , in Our name, and on Our behalf to remit
any fines, penalties, or forfeitures which may accrue, or become payable to
Us, provided the same do not exceed the sum of fifty pounds sterling in
any one case, and to respite and suspend the payment of any such fine,
penalty, or forfeiture, exceeding the said sum of fifty pounds, until our
pleasure thereon shall be made known and signified to such Governor : And
We do hereby give and grant unto the Governor of Our said Colony of Hong-
kong for the time being, full power and authority, as he shall see occasion ,
in Our name and on Our behalf to grant to any offender convicted of any
crime, in any Court, or before any Judge, Justice, or Magistrate within Our
said Colony, a free and unconditional pardon, or a pardon subject to such
conditions as by any Law or Ordinance hereafter to be in force in Our said
Colony may be thereunto annexed , or any respite of the execution of the
sentence of any such offender, for such period as to such Governor may seem
fit: And Wedo hereby give and grant unto the Governor of Our said Colony
of Hongkong for the time being, full powerand authority, upon sufficient cause
to him appearing, to suspend from the exercise of his office, within Our said
Colony, any person exercising any office or place, under or by virtue of any
INTRODUCTION . 23
Commission or Warrant granted , or which may be granted, by Us, or in Our
name, or under Our authority, which suspension shall continue and have effect
only until Our pleasure therein shall be made known and signified to such
Governor : And We do hereby strictly require and enjoin the Governor of
Our said Colony of Hongkong for the time being, in proceeding to any such
suspension, to observe the directions in that behalf, given to him by Our
Instructions under Our Signet and Sign Manual, accompanying his
Commission of appointment as Governor of the said Colony : And
in the event of the death or absence out of Our said Colony of Hongkong
of such person as may be commissioned and appointed by Us to
be the Governor thereof, We do hereby provide and declare Our
pleasure to be, that all and every the powers and authorities herein
granted to the Governor of Our said Colony of Hongkong for the time being,
shall be, and the same are, hereby vested in such person as may be appointed
by Us, by Warrant under Our Signet and Sign Manual, to be the Lieutenant-
Governor of Our said Colony ; or in the event of there being no person upon
the place commissioned and appointed by Us to be Lieutenant-Governor there-
of, then Our pleasure is, and We do hereby provide and declare that, in any
such contingency, all the powers and authorities herein granted to the Gov-
ernor or Lieutenant- Governor of Our said Colony, shall be, and the same are,
hereby granted to the Colonial Secretary of Our said Colony for the time
being, and such Lieutenant-Governor, or such Colonial Secretary, as the case
may be, shall execute all and every the powers and authorities herein granted,
until Our further pleasure shall be signified therein : And We do hereby re-
quire and command all Our officers and ministers, civil and military , and all other
the inhabitants of Our said Colony of Hongkong, to be obedient , aiding, and
assisting to such person as may be commissioned and appointed by us to be
the Governor of Our said Colony of Hongkong, or, in the event of his death
or absence, to such person as may, under the provision of these Our Letters
Patent, assume and exercise the functions of such Governor : And We do
hereby reserve to Us, Our Heirs and Successors, full power and authority from
time to time to revoke, alter, or amend these Our Letters Patent, as to Us or
them shall seem meet : In witness whereof, We have caused these Our Letters
to be made patent .
Witness Ourselves, at Westminster, the fifth day of April , in the sixth
year of Our Reign .- ( 1843 . )
By the Queen Herself,
EDMUNDS.
Power, as may be seen , was thus given to the local legislature English Law.
to enact all such Laws and Ordinances as might be required for
the peace, order, and good government of the Colony, and,
taken together with section 3 of the Treaty of Nanking
previously quoted, there can be no doubt that English law was
what was meant and introduced by the terms of the Charter,
and that this has ever been so understood may be gathered
from the different Ordinances and Proclamations passed from
time to time and reciting such fact . *
Ordinance No. 15 of 1844 passed on the 21st of August, 1844, establishing a
Supreme Court of Judicature at Hongkong, in its third section expressly declared " that
the law of England shall be in full force in the said Colony of Hongkong, except where
the same shall be inapplicable to the local circumstances of the said Colony or of its
inhabitants : Provided, nevertheless, that in all matters and questions touching the right
or title to any real property in the said Colony, the law of England shall prevail, and
24 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Appoint. With regard to new appointments in Hongkong consequent
ments con-
sequent upon the grant of Charter, it was felt that something should
upon grant be done as soon as possible to atone for past neglect by placing
of Charter.
the island establishments on a proper footing. Parliament had
been moved upon the subject in April, 1843, by Dr. Bowring
with respect to consular appointments, when Lord Stanley
stated that " no appointment would be made except that of Sir
Henry Pottinger, and that only for the purpose of giving him
legal authority to act. None others had been made, and
probably none would be for some time." On the 26th June,
however, after the proclamation of the Charter, several new
appointments were duly announced, the Office of Deputy Super-
intendent of Trade, previously held by Mr. Johnston , being
declared abolished and that gentleman appointed " Assistant
and Registrar to the Chief Superintendent," and amongst other
appointments gazetted were those of Lieut. - Col . Malcolm, c.B. ,
as Colonial Secretary of Hongkong ; Major William Caine , as
Chief Magistrate of the Colony ; Charles Batten Hillier , Esquire,
as Assistant Magistrate, and Lieut . William Pedder , R.N. , as
Harbour Master and Marine Magistrate. Appointments to the
Legislative and Executive Councils were duly announced on the
21st August and included the name of Major Caine, the Chief
Magistrate, it being commanded at the same time that gentle-
men so appointed were to be styled in addition to their usual
addresses " The Honourable " in all official and other documents.
On the same date Richard Burgass , Esquire ,* was appointed legal
adviser to the Government of Hongkong, and to officiate as
Clerk of the Legislative Council, pending the pleasure of Her
that no law shall be recognized in the said Colony, which may in any way derogate from
the sovereignty of the Queen of England." This enactment, except its last provision,
was renewed by Ordinance 6 of 1845, repealing it ; but, for some cause not explained,
the year following another Ordinance was passed (Ordinance No. 2 of 1846) , to amend
the former one by declaring that " only such of the laws of England as existed when the
Colony obtained a local legislature, that is to say, on the 5th of April, 1843, should be of force
therein," leaving it therefore to the local legislature to extend to this Colony only such laws
passed by the British Parliament as it might deem expedient from time to time. By
section 7 of Ordinance No. 12 of 1873, (the Supreme Court Reconstitution Ordinance) the
same reservation was made as to such English laws alone being in force as existed when the
Colony obtained a local legislature. There can be no doubt as to the introduction
of English law in Hongkong. From the records it is clear that the authorities have all
been of one mind on that point . The answer of Chief Justice Hulme to a Chinese address
in 1847, at the time of his suspension, shows this (infrà, Ch. viii .) - See also Lord' Grey's
reply (to a memorial on local grievances) in October, 1849, (infrà, Ch. xi.) ; Proclamation
of Sir John Bowring to the Chinese in October, 1855. (infrà, Ch. xvi.) ; Government
Notification of 10th July, 1857, regarding illegal combinations respecting tradesmen or
mechanics (infrà, Ch. xviii. ) ; Sir Hercules Robinson's speech in introducing Ordinance
No. 30 of 1860 relating to the Press of the Colony, on 17th November, 1860. (Ch. xxxi.) ;
Proclamation of 19th January, 1861 , of the Earl of Elgin in taking over Kowloon (infrà,
Ch. xxxii. ), and finally Sir Fielding Clarke's judgment in Belilios v. Ng Li Shi, reported
in The Hongkong Daily Press, of 26th January, 1893. Another important provision in con-
nexion with this matter as regards British subjects is the Consular Ordinance No. 1
of 1844, passed on the 24th January, 1844, by section 1 of which the law of England
was extended to all Her Majesty's subjects within the Dominions of the Emperor of
China, etc., thereby shewing the intention of the legislature at its inception.
•
M.A. , of the Middle Temple, Barrister-at-Law, called the 11th January, 1839.
INTRODUCTION. 25
Majesty's Government,"-the first we have, of an appointment
of the kind under the Government. Mr. Burgass , it may be
added, was a personal friend of Sir Henry Pottinger, and had
arrived in the Colony from Bombay in June, 1843 .
On the 27th June, 1843 , the Governor, under powers conferred Justices of
the Peace.
by the Charter, appointed forty-four of the leading inhabitants
as Justices of the Peace. These were duly notified as being
Her Majesty's Justices of the Peace in China, and were required,
previous to entering upon the discharge of their functions,
to subscribe to an oath as hereinafter given , before either of the
following officers , viz. , the Assistant and Registrar to the Chief
Superintendent of Trade, the Chief Magistrate, the Assistant
Magistrate, and the British Government Agent at Macao. The
oath was in the following form :-
I, A.B., do hereby swear that I will bear true and faithful allegiance to
Our Sovereign Lady Vietoria, Queen of the United Kingdom of Great Britain.
and Ireland, etc. , etc., and that I will well and truly, according to the best
of my ability, skill, and understanding, and without fear, favour, or affection ,
perform , do, and fulfil the duties and powers of a Justice of the Peace, over
and towards all subjects of Her said Majesty presently or hereafter residing
within, or resorting to, the Dominions of the Emperor of China - So help
me God.
Sworn before me, at this day of 1843,
Much amusement was caused by the ending of the oath, by
which, as is seen above, the Justices were to act " in the
Dominions of the Emperor of China, " Hongkong though
of China,'
intended, not being even mentioned . A Government Notifica-
tion rectifying the mistake duly appeared on the 10th July
following, the form of oath being amended by the insertion of
the words " Her Britannic Majesty's Colony of Hongkong and
its Dependencies or " before the concluding words "the Domi-
nions of the Emperor of China " in the oath . On the same day, Lieut.
appeared a notification appointing Lieutenant Thomas Wade, of Thomas
Her Majesty's 98th Regiment , who had been reported qualified Wade,
Chinese
for the duty, and who, as will be seen hereafter, played such an Interpreter.
important part in Chinese affairs, Chinese Interpreter to Her
Majesty's Land Forces in China . Mr. Wade was attached to
headquarters.
The disproportion of Justices of the Peace to the Police Con- Revocation
stables who only numbered 28, was the subject of much criticism, sions
of Commis-
of the
disappointment being also expressed at some of the more respect- Peace.
able Parsee merchants not having been included in the list of
Justices. The omission was regarded as an undeserved slight
upon the Parsee community, to whom, it was alleged, was due
the immense development of the trade between China and India,
and who here and at Bombay transacted nearly one-half of the
26 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
whole of the British trade with China . But the Home Govern-
ment was not very long in making itself heard, for by a Govern-
ment Notification of the 30th May, 1844, the public were
informed that the several Commissions had been revoked and
cancelled by direction of Her Majesty's Government who had
directed " that such powers should be restricted to Her
Majesty's Consuls at the Five Ports, and to the Vice - Consuls
in subordination to them . " All persons possessing such Com-
missions were accordingly requested to return them. Thus
ended one of those amusing episodes in the early history of the
Colony which not infrequently, for want of matter or other
local topics for discussion , until the decisions of the Home
Government were made known, usually kept the press " going."
Land. Under the Charter previously recited , the Governor of the
Colony for the time being in the name of Her Majesty, and on
Her behalf, subject to Her Majesty's Instructions , was fully
empowered as may be seen to make and execute, in the name
and on behalf of Her Majesty under the Public Seal of the
Colony, grants of land within the Colony to private persons
for their own use and benefit, or to any persons, bodies politic or
corporate, in trust for the public uses of Her Majesty's subjects
there resident or any of them. This was nearly two years
after the first land sale previously mentioned . Her Majesty's
Instructions also dated the 5th April, 1843, were addressed to
the then Governor Sir Henry Pottinger, and directed that no
land should be sold or let, except at public auction , and that at
every such auction the lands to be then sold or let should be put up
at a reserved or minimum price equal to the fair reasonable price
and value or annual rent thereof. These Instructions further
directed the Governor to ascertain what particular lands it
might be proper to reserve in the said Colony for public roads
and other internal communication , whether by land or by water ,
or as the sites of towns, villages, churches, school - houses , or
parsonage-houses, or as places for the interment of the dead, or
as places for the future extension of any existing towns or
villages, or as places fit to be set apart for the recreation and
amusement of the inhabitants of any places which it might at
any future time be expedient to erect, form , or establish on the
sea coast, or which it might be desirable to reserve for any
other purposes of public convenience, utility, health, or enjoy
ment, and the Governor was to cause such tracts , pieces, or
parcels of land as might appear best adapted to answer and
promote the several public purposes before mentioned , to be
distinguished on the public charts of the said Colony or in
some other authentic manner, and not on any account or on any
pretence whatsoever grant, convey, or demise to any person or
INTRODUCTION. 27
persons any of the lands so specified as fit to be reserved as
aforesaid, nor permit or suffer any such lands to be occupied
by any private person for any private purpose .
On the 10th April, 1843 , the Land Officer had been again
appointed, and a Government Notification of that date was
issued as follows :-
GOVERNMENT NOTIFICATION.
" In consequence of instructions recently received from Her Majesty's
Government, and until defined regulations can be framed and promulgated
grounded upon those instructions, His Excellency Sir Henry Pottinger, Bart.,
K.C.B., etc., etc., is pleased to notify as follows :—
1st.-All persons holding land of any denomination in the island of
Hongkong are hereby required to send in the fullest explanations as well as
the proofs they possess of their claims to such land, to the Land Officer with
the least possible delay.
2nd.—The Land Officer has been authorized and instructed to prevent the
commencement of any further buildings upon, or clearing away of, locations
until final arrangements can be made.
The Land Officer has also been authorized and instructed to take summary
measures, in concert with the Chief Magistrate, to put a stop to all buildings
that may be in progress on locations of whatever denomination, where the
explanation or proof submitted may appear to him to be at variance with his
present instructions and also in cases where the explanation and proofs now
called for may be delayed beyond a reasonable time.
3rd . -The Land Officer has further been authorized and instructed to
summarily prevent the progress of all buildings on locations which may, in
his opinion, encroach on the present, or any future line of roads or streets,
and to oblige all persons to confine themselves to the exact dimensions of the
lots which were originally allotted to them.
4th.—It has been repeatedly intimated that the terms and tenure of holding
all lands on the island of Hongkong were to depend solely upon the pleasure
and commands of Her Majesty's Government, and the information called for
in this notification is required before such terms and tenure can be announced
to the public.
By Order
(Signed) RICHARD WOOSNAM."
Hongkong, Government House, 10th April, 1843 .
In August, 1843 , the Governor received instructions from
Lord Stanley, then Her Majesty's Principal Secretary of
State for the Colonies, directing him to abstain from alienating
any of the land on the island for any time of greater length
than might be necessary to induce and enable the tenants to
erect substantial buildings , etc. , and refusing to sanction any
such grants as had already been made, but with a promise that
an inquiry should be instituted into the equitable claims of all
holders of land to a confirmation , either permanent or temporary ,
28 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
of their titles . The following Government Notification was
thereupon issued : -
GOVERNMENT NOTIFICATION.
" His Excellency the Governor, having had under his careful consideration.
the instructions which have been received from Her Majesty's Government on
the subject of Crown lands in this Colony, is pleased to publish the following
extracts of a despatch from Her Majesty's Principal Secretary of State for
the Colonies :-
" Sir Henry Pottinger is to abstain from alienating any of the land on the
island, either in perpetuity, or for any time of greater length than may be
necessary to induce and enable the tenants to erect substantial buildings, etc.
But with the general prohibition against the alienation of Crown Lands, and
with the general refusal to sanction any such grant as may have already been
made, Lord Stanley would connect a promise, that immediately on the estab-
lishment of a regular Government in the place, an inquiry should be insti-
tuted , by some competent and impartial authority, into the equitable claims
of all holders of land, to a confirmation , either permanent or temporary, of
their titles, so far as they could be confirmed consistently with a just regard
to the interests of society at large."
With advertence to the principle laid down in the above extracts, it will
be understood, that Her Majesty's Government do not recognize the validity
of any grants or sales of land that may have been made, or may have taken
place, under any authority whatsoever, previous to the exchange of the rati-
fications of the treaty, upon which event the island of Hongkong became a
bonâ fide possession of the British Crown, and from which day the payment
of rents derivable from such land will only be held to commence. In obedi-
ence to the intimation conveyed in one of the preceding extracts, His Excel-
lency the Governor in Council is pleased to appoint A. T. Gordon, Esquire, Land
Officer, etc., Captain De Havilland, H. M. 55th Regiment, Assistant Surveyor,
and Charles Edward Stewart, Esquire, Treasurer and Financial Secretary
to Government, to be a Committee, assisted by Richard Burgass , Esquire,
Legal Adviser to the Government, to inquire into the equitable claims of all
holders of lands, to define the classes to which particular lots shall hence-
forward belong, as well as their future annual rent, and to arrange for the
disposal of further lots regarding which Her Majesty's instructions prescribe :
" And it is Our further will and pleasure, that no such lands shall be sold, or
let, except at public auction ; and that, at every such auction, the lands to
be then sold or let, be put up at a reserved, or minimum price, equal to the
fair reasonable price and value or annual rent thereof."
By Order of His Excellency the Governor, and Commander-in - Chief of
Hongkong.
RICHARD WOOSNAM,
Officiating Deputy Colonial Secretary."
Government House, Victoria, Hongkong.
August 21 , 1843 .
Act 6 and 7 On the 22nd August, 1843 , the Act 6 and 7 Viet . , Cap. 80,
Vict. , Cap.
80. "An Act for the better Government of Her Majesty's Subjects
resorting to China " was passed, which made it lawful for Her
Majesty to authorize the Superintendent of Trade in China , so
long as he was Governor of the island of Hongkong, to enact,
with the advice of the Legislative Council of the said island , all
such laws and ordinances as might from time to time be required
INTRODUCTION. 29
for the peace, order, and good government of Her Majesty's
subjects being within the Dominions of the Emperor of China,
and under the said Act were enlarged the powers already
possessed by the Superintendent of Trade, by rendering legal
any Acts passed by him in Council , even though they might be
contrary to preceding Orders of Her Majesty's Privy Council.
Mr. J. R. Morrison , the able Chinese Secretary to the Super- Death of
Mr. J. R.
intendent of Trade, and officiating Colonial Secretary of Hong- Morrison.
kong, whose death the Governor announced as a " positive
national calamity," from which much may be gathered, died at
Macao on the 29th August, 1843. He had been on the estab
lishment of the Colony from its foundation , and is otherwise
so well known to history in connexion with these parts
that no mention need here be made of his services . The
deceased died intestate, administration to his estate being
granted on the 28th September, 1843 , to three persons , viz . ,
Alexander Matheson , Alexander Anderson , and Charles Edward
Stewart, the latter the Treasurer and Financial Secretary to
the Government, who for some time afterwards appears to have
been the officer appointed to act in similar cases.
The state of crime during 1843 showed no improvement over Crime in
the previous year. The number of nightly burglaries and 1843.
gang robberies had alarmingly increased , and the creation of a
body of Justices of the Peace, none of them of the slightest use
and exceeding in number one-third of the whole Constabulary
Force, was considered an absurdity. The decision of the Home
Government as to the Force was not yet known- though apparent-
lythe primary reason for an insufficient Police Force was the want
of funds, quite apart from the desirable element for the composi-
tion of such a Force being also wanting at this time. The
Chief Magistrate, as he had already done in October , 1842, had
found himself compelled again during the year to issue a
proclamation prohibiting the Chinese from being out, without
lanterns, between the hours of 8 and 10 p.m., and after that time
" not one individual to be seen out walking," and all Chinese
boats, under penalty of severe punishment , were also prohibited
from moving about the harbour after gun- fire at 9 p.m., until