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PUBLIC RECORD OFFICE

C.O.8

Reference :-

.885

16 PUBLIC RECORD OFFICE, LONDON

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construction of Acts the following rules shall be observed, unless otherwise expressly provided for, or such construction would be inconsistent with the manifest intention of the Legislature or repugnant to the context, that is to say:-The words Queen' or Her Majesty' shall include 'Her Majesty, her heirs and successors.""

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That he was also to call attention to the general rule, discussed in R. v. Smith, L.R.I.C.C. 270, that the language of a Statute was extended to new things of the same genus which were not known and could not have been contemplated by the Legislature when it was passed.

That he was to request that we would take his letter and its enclosures into our consideration and favour your Lordship with our opinion on the following questions:-

(1) Was the modus vivendi recently concluded with the United States Govern- ment a treaty?

(2) Did the various sections in the Colonial Acts referred to, which safeguard rights and privileges granted by treaty, apply to any rights and privileges granted to inhabitants of the United States by that modus vivendi, or only to rights under treaties in existence when the Acts were passed?

We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to

Report-

That (1) in our opinion the modus vivendi recently concluded with the United States Government is a treaty within the meaning of the sections of the Colonial Acts referred to.

(2) Assuming that the modus vivendi grants rights and privileges to the inhabi- tants of the United States, in excess of those granted by the Convention of 181€, the question involved, viz. :-the extent of the application of the clauses contained in the Colonial Acts safeguarding rights granted by treaty is one of considerable difficulty. If the object were to protect rights which had already been created by treaties then existing, most appropriate words are used for that purpose, but if, on the other hand, it was intended to declare that the treaty-making prerogative of the Crown should continue unfettered even to the extent of creating new rights, which might be inconsistent with the Acts, the words used are, if not wholly inappro- priate, at least singularly inapt. The words of the clauses would undoubtedly be satisfied by a construction which limited their application to the treaty of 1818 or any other treaties concluded before the passing of the Acts. On the other hand, the extended construction suggested would involve a right upon the part of the Crown to entirely abrogate, in so far as foreigners were concerned, Acts to which the King had given his assent, and the Courts would, in the absence of the clearest words, shrink from adopting such a construction.

Having regard to the foregoing observations, although the point involved is not free from doubt, we are of opinion that the clauses referred to only apply to rights under treaties in existence when the Acts in question were passed.

The Right Honourable

The Earl of Elgin, K.G.,

&c., &c., &c.

We have, &c.,

JOHN L. WALTON. W. S. ROBSON.

44554

No. 54.

(HoNG KONG.)

THE LAW OFFICERS AND MR. ROWLATT to THE BOARD OF TRADE. [Conveyance of indentured coolies in British ships to plares outside His Majesty's dominions.]

The Chinese Passenger Act, 1855.

Hong Kong Ordinance 1889.

(a.) We are of opinion that the Ordinance as it stands does not prohibit the Governor of Hong Kong from granting a licence for a single voyage for carrying indentured coolies to a place outside His Majesty's dominions. There is nothing in either Act to prohibit it, and Schedule B. of the Act of 1855 and Schedule F. to the Ordinance of 1889 clearly show that the possibility of such trade was con- templated.

(b.) Whether the instructions referred to are, or are not, ultra vires depends, in our opinion, upon the position which the Legislature of Hong Kong occupied in making regulations under Section 2 of the Act of 1855. If it was acting merely as the depository of a special power to make regulations it could not validly confer either upon the Governor or upon the Secretary of State the discretionary power given by Section 11 of the Ordinance. We are, however, upon the whole, of opinion that the functions of the Legislature of Hong Kong under the Act of 1855 were not so limited. The Legislature had enjoyed since 1843 power to make laws for the peace, order, and good government of British subjects in Hong Kong, and by virtue of 6 and 7 Vict. cap. 80, the Governor, with the advice of the Legislative Council, also had authority to make laws and ordinances for the peace, order, and good government of Her Majesty's subjects in China, or on any vessel not more than 100 miles from the coast. There are no words in the Chinese Passenger Act, 1855,

to take away this power. That Act, it is true, makes certain regulations, and as those regulations apparently contemplate the carrying of indentured coolies, it might have been said, had the regulations been enacted as permanent regulations. that the Colonial Legislature could not, under their existing powers, make others directly or indirectly repugnant to them. The regulations provided by the Chinese Passenger Act are, however, only to be in force until the enactment of regulations by the Legislature in Hong Kong, and the proclamation in Hong Kong of Her Majesty's confirmation of such enactment. We think, under these circumstances. that the Hong Kong Legislature retained, subject to the provision delaying the Ordinance taking effect till Her Majesty's confirmation had been proclaimed, full power to legislate upon the question. By Section 2 the jurisdiction of the Legislature in Hong Kong is expressly extended to British ships at sea.

A question has been raised as to whether power to make regulations or conditions with respect to a trade could in any case extend to prohibition. No such difficulty arises here because the trade in question is not the carrying of indentured coolies, but the carrying of Chinese passengers, and to require that they should not be inden- tured is not a prohibition of that trade.

(c.) Having regard to the position of Hong Kong as a Crown Colony, and to the fact that the discretion of the Governor under Section 11 is under the control of the Secretary of State, the power, in substance, of the Secretary of State to control the traffic in question is, in any case, quite free from doubt.

Law Officers' Department,

JOHN L. WALTON. W. S. ROBSON.

November 30, 1906.

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