312
Appendix II. (No. I. The reasons assigned in Mr Rienaecker's Letter of the 8th January, 1856, to the Colonial Secretary, and 16.)
corroborated by all but one of the witnesses (unless we also except another witness, who admits the duty, but appears to doubt the readiness of the Government), appear to us conclusive in favor of the opinion which we ourselves have formed, that the Government of this Island ought to undertake the entire construction of the Praya, and that in no other way can the purposes, which have urged the Government to propose the work, be accomplished. The state of the shore, so alarming to the public health, calls for immediate measures of prevention. The crimes and disorders which occur daily and nightly amongst the dense Chinese population of this city, demand that whatever measures facilitate the approach and action of the police, ought to be commenced and executed with all possible despatch. The danger of conflagration, so terribly recalled to our apprehension last month, must be considered as normal amongst a population inhabiting tenements constructed of fragile and inflammable materials, and nearly destitute of the means of access to the water. The necessity to commerce of an uninterrupted and a public communication with the sea are pressing and obvious. But whilst all these considerations demonstrate that it is the duty of Government to take the shortest and speediest way to the completion of the project, they seem also to impose the condition that the work shall be done efficiently and securely, and with an inflexible regard to uniformity in the execution.
The solitary witness, who thinks that some saving in the contract price may be effected by substituting the Marine-Lotholders as Contracting Parties in the place of the Government, and investing them with all the powers and rights of Government for the purposes of such contracts as they shall be able to make, is himself so strongly impressed with the force of the above-mentioned objections, as to admit that, even if his suggestion be adopted, it will still be necessary that the work should be commenced at the time, and completed in the manner, which the Surveyor-General may direct—that the Surveyor-General's eye should be constantly directed to it whilst in progress—and that "if it be left to the Marine-Lotholders themselves, it will never be done at all." It is obvious that the variance between Mr Pustan's evidence and the great body of the evidence taken by us upon this First Point of Enquiry, is more apparent than real. A work so conducted as Mr Pustan proposes is, at least, a work undertaken on the part of Government, and differing from a work directly undertaken by Government, only in respect of a certain want of unity in the initiation of the work, and in the division of the expense of it; and in both of these respects, we think, the preference is clearly due to the latter—an opinion which we have the satisfaction to find is unequivocally confirmed by the great body of evidence before us.
II. Some difference of views amongst the Marine-Lotholders was naturally to be anticipated upon the question as to the conditions of tenure of lands reclaimed or to be reclaimed from the sea. In one respect only they appeared to be unanimous—in ignoring the fact that at present the Crown alone has title to all such lands, whether already reclaimed, or unreclaimed, and that the Crown will continue to have title to the latter after the same shall have been reclaimed by the Crown itself, or by persons not having title to those lands against the Crown, or authority under it. This common error was the source of the numerous fallacies to be detected in their evidence on the subject of their claims, real or supposed, to the equitable consideration of Government. The jealous eye of the law scans a grant from the Crown with great rigor, and reads it in quite another light from that of a grant made by subject to subject. 5 Bac: Abr: Prerogative In the latter case the rule is, that "a deed shall be taken most strongly against the grantor," i.e., the subject; in the former case the rule is, that a deed shall be taken most strongly for the grantor," i.e., the Crown. This is the principle upon which that other well-settled doctrine is grounded, that "in the construction of its deed of grant nothing shall be implied against the Crown," and again, the doctrine that, "unless where expressly provided to the contrary, the Crown retains all its prerogative rights in respect of the thing granted."
17 Edw: 11, st: 2, c. 15.
There is no difficulty in the application of these familiar and wise maxims of constitutional law.
"Public notice and Declaration, &c of We have it in evidence that even at the time of the first notification of the intentions of Captain Elliot to hold the first land sales that were ever effected in this Colony, the community were not suffered to be ignorant that no 1st May 1841. Appendix II, (No. 1); and lands would be allotted here but with a general reservation of all Her Majesty's rights according to the principles and practice of British Law, upon tenure to the Crown," and, before all, pending Her Majesty's further pleasure." Sec Laws of Hongkong, P. 3.
"and no occupancy respected," until evidenced by the execution of a Crown Grant, and perfected by Registration of Extract from Terms the Grant "in the Government Office." The first land sale took place on the 14th June 1841. The Terms of Sale of Sale,' &c. Appendix were read to the bidders before the commencement of the proceedings, and they were expressly informed by that I, (No. 3) and see document that whilst the sea-frontage of each lot was nearly ascertained, the depth from the sea would necessarily 'Laws of Hongkong, vary considerably," and "the actual extent of each lot" being still unascertained, "the parties would have the oppor- p. 4. tunity of observing the extent for themselves." They were further informed, that the Crown Grant, the sole evidence of title, would not be issued to any purchaser until "the precise measurement and registration of the lots should be completed," and that, on his side, the purchaser would not, until delivery of his Crown Grant, be called on to pay the rent for the first year, "reckoning from the date of Sale" of his lot.
Sir Henry Pottinger, the first Governor of this Colony, and with whom we find that the wise and far-reaching project of a Praya first originated, was even more careful than Captain Elliot to preclude the possibility of all popular error as to the rights and intentions of the Crown in this matter. Referring to the important "Government Notification" of the 22nd March, 1842, we learn that, at that early date, whilst as yet not a Crown Grant had been issued, the Allottees of Marine-Lots already sold, and the future bidders for such as remained to be sold, were distinctly apprised that "the reclaiming of land beyond high-water mark must be deemed an infringement on the Royalties of Her Majesty, (and it is therefore positively prohibited) by any private persons."
During the whole of the period intervening between the date of that paper and the first issue of Crown Grants to the occupants, we have failed to discover any trace whatever of the revocation of that Public Announcement, or even of any connivance being extended by the Authorities to encroachments or purprestures upon the domains of the Crown, seaward or landward. A highly respectable witness, however, whose principal establishments being at Canton and Macao during that time imposed upon him the necessity of spending the greater part of his time at those ports, intimated his very strong impression that there was some distinct encouragement held out to himself and other purchasers during that period, and even after the delivery of their Crown Grants, to reclaim as much and as far as they pleased towards the sea," subject however to "the risk of the reclaimed land being resumed by Government, if wanted for public purposes," and without any promise of compensation for it, if resumed. It is obvious that, even if the recollection of this gentleman were so far supported by documentary or other evidence, as to establish against the Crown and in favor of himself and those particular occupants who may have acted upon the alleged encouragement, a case of royal conscience and equity, the reservations appended would reduce the case to an almost infinitesimal value. But we must observe—(1.) that we can find no vestige of any Notification," or "Circular," printed or in manuscript, bearing on this point, except those already cited, which bear altogether the other way; (2.) that it is an error to suppose that, in 1844, or at any period however early in the history of this Colony, a "Government Gazette" and the printing of Government Notifications did not exist, or that such Notifications, if made, were not printed; (3.) that if even the Queen's representatives were under the necessity of reserving the Queen's further pleasure" in their official and authoritative announcements on the subject of tenure, the community ought to have known that the Land Officer, Captain Mylins, and his successor, Captain Meik, could not possibly be authorized to hold out encouragements, private or public, in derogation at once of those Notifications of the representatives of the Crown, and of the prerogatives of the Crown itself; and (4) that the reference to a supposed stipulation in an early Crown Grant to the same effect, a reference afterwards admitted tacitly to the same effect, a reference afterwards admitted tacitly to have been made in error, makes it very probable that the entire impression which Mr Edger entertains on this subject may, at this distance of time, be very easily accounted for, if we remember that the form of the Crown Grant, a form which has never varied since the first issue, does contain a kind of stipulation within the boundaries of the registered lot (but not beyond them), subject of course to the usual right of the Crown or "encouragement" to reclaim or improve, and indeed to build upon the lands granted and lying to resume the whole or any portion of the lot upon three months' notice, and equitable compensation, to be determined by the Surveyor-General; and that it is very likely that the witness, speaking from memory, may have erroneously supposed that the clauses in question applied also to the sea-shore lying beyond the boundaries of the Lot.
The form of Crown Grant to which we have just alluded was first settled in 1844; and, in that year, the first issue and registration of Crown Grants took place. The Crown Grants continued to be issued and registered during the whole of that year and the next, and thus the titles of the occupants, under the old acknowledgements of their biddings, were at length made perfect. We perceive in the circumstances which ensued upon this promulgation of the form of Crown Grant another proof that, down to this time at least, no Marine-Lot-holder had felt himself in any way encouraged to encroach upon the sea, or had doubted in the least the precariousness of a tenure from the Crown subjected since its origin to "the Queen's pleasure, the reservation of all Her Majesty's rights, the British Law and practice, and the positive prohibition of reclaiming land beyond high-water mark by any private persons as an infringement of the Royalties of the Crown."
We find that the terms of the "title" now about to be exchanged for the old "acknowledgement," did, in 1844, excite complaints on the part of the Marine-Lotholders. But we also find that these complaints had no reference to the limitation of "boundaries" seaward or landward, as contained in the Grants, nor to the right of resumption thereby vested in the Crown, nor to the paramount claims therein asserted on behalf of public purposes" over personal privileges, nor even to the absolute powers in respect of those reservations and thereby bestowed upon the Queen's Surveyor-General, nor indeed to any matter bearing upon the present question of Marine-Lotholders, in the slightest degree. We find that a former letter of Captain Elliot was made the groundwork of complaint. But in Appendix II, (No. 6.) we also find that in that letter only one subject is discussed, and that one entirely foreign to our enquiry. Captain Elliot had there held out some "encouragement" for the hope that "the Queen's further pleasure" might operate to the advantage of the first buyers of lots, Inland and Marine, in the way either of reduction of Quit Rent, or of transmutation into a fee simple tenure. The promulgation of the form of Crown Grant had dissipated those hopes. It was of that disappointment that the Thirteen Firms of Marine-Lotholders complained, and only of that one. "the faith of that pledge," as they termed it, they told Sir Henry Pottinger that they had, down to that date, (the 4th March, 1844,) expended "on sea-walls, warehouses, and dwellings, very considerable sums."
Expressio unius est Hongkong,' p. 3; see Appendix II, (No. 6.) exclusio alterius. If encouragements of any other kind had been held out to them, either to build sea walls," or to do any other work seaward of their Northern boundaries, it is clear from this document that they had not thought themselves safe in relying upon those encouragements, and in commencing those works. The personal testimony of Marine-Lotholders themselves confirms the inferences which we have deduced. The Honble. Mr Edger, whose recollections go back to a period anterior to the formation of the Colony, "thinks that no land at all was reclaimed "(from the sea) before Leases were issued," and that indeed "sea-walls were made before the issue of leases, but in general between the limits of the land that was measured off;" and Mr Antrobus, whose own encroachments on the sea-shore date but from 1854, states that "he is not aware whether any land was reclaimed from the sea before his arrival here, rather more than five years ago." Such being the case before the issue, what was to result from a "title" so onerous as that which was now to be forced upon them? If any regard we had to the strength of language, we must suppose that the Crown Grant was viewed, from its first promulgation, not only as no "encouragement" to costly and unauthorized encroachments upon the Marine domain of Her Majesty, but as the utter bar to all improvements whatsoever, even within the surveyed and registered boundaries of the grantee's own Lot. "Had they been previously aware," say the Thirteen Firms of Marine-Lotholders," of the conditions now proposed, they certainly should not have expended one farthing on buildings at Hongkong."
On the other hand, every one of Sir Henry Pottinger's acts and words at this very juncture is utterly inconsistent with the notion that he entertained any doubt himself, or had led others into any doubt, as to his line of conduct with respect to the rights of the Crown to the sea-shore in front of the Marine Lots. His Excellency's decision on the subject already cited was notorious to the whole community. Among the principal works which, at his request, the Land Officer, Mr Gordon proposed to undertake, and which Sir Henry Pottinger referred home with approbation, but for lack of the means could not undertake without the authority and assistance of Her Majesty's Imperial Government, a prominent place was given to the following project: "a space of land to be reclaimed from the sea in front of Government Hill, to form a Public Landing-place, with an Esplanade or Public Walk; a Praya to be carried out in front of all the buildings, both Eastward to the Point, the property of Messrs Jardine & Co., and Westward as far as Navy Bay, or four miles between the two extremities, the land thus reclaimed to form a number of Marine Lots; "a public roadway close to the sea, of fifty feet in width to be left on the Praya, and the space between that and the houses to be the private property of the possessors of the Lots assisting in carrying out the plan paying a proportion of the expenses, and for whatever land they gained of course charged at the same rate as for the rent of the Lots." That the fact of such a proposal having been made, and the details of it were no secret to the community at the time, or even long afterwards, may be very fairly inferred from Mr Montgomery Martin's once celebrated Report, compiled by him within six weeks of his arrival here in the following year, when Sir John Davis had succeeded Sir Henry Pottinger in the Government of this Island. That Report contains a direct but sneering allusion to the Praya, amongst other valuable projects of Sir Henry Pottinger, all of which are ridiculed by Mr Martin, little dreaming how many of his sarcasms were soon to be refuted by the literal fulfilment of the projects. Whilst the notoriety of the fact is proved by the boldness of the sarcasm, the mild and temperate rebuke which is contained in the observations of Sir John Davis in reply, and which, together with the attack, will be found in the Appendix, is, on its side, a proof that his Government and that of his predecessor were agreed in their opinions as to the policy to be followed with respect to Crown rights to the sea-shore, and the propriety of commencing the Praya, as projected by the latter, so soon as the finances of the Colony would permit, but without impeding the construction of the other public works and improvements enumerated in Mr Martin's Report.
Nothing indeed but the financial difficulties under which, even in Sir Henry Pottinger's time, the Colony had been laboring, and which were greatly and notoriously aggravated in later years, appears to have led to the delay in carrying his project into execution. The formation of such a work had been strongly urged upon the Admiralty by Commodore Sir Edward Belcher, R.N., then commanding a squadron in the China Seas. It had been notified by a Government Circular to all the leading mercantile firms, perhaps to all the mercantile firms without distinction then carrying on business, and many of whom we perceive now represent themselves to be hostile to the formation of a Praya, except on the condition of being allowed to monopolise the whole benefit so far as their sea-frontage extends, with an entire exemption from Quit Rent, and without being called upon to defray any portion of the cost. Yet the project of those days had the remarkable fate of being received by them with an almost unanimous adhesion.
Circular Letter of Out of eight firms, themselves Marine-Lotholders, whose replies have been recorded in the Land Office, only one Me Gordon, dated 28th (that of Messrs Holliday, Wise & Co.,) hesitated "to add to their already heavy expenditure," and to incur April 1843, in Append. the loss of privacy and convenience, to say nothing of the profits of wharfage," privileges which they were 1, (No. 10.) nevertheless ready and willing to forego for the public advantage." All the rest signified their consent and proffered their co-operation. They were willing to do it at their own expense to renounce the formation of private wharves, in favor of the common advantage. They had the welfare of the community at heart, not their own individual profit. One highly respectable firm, to whom the Circular was sent, but who do not appear to have returned a direct answer, nevertheless took the opportunity, in reference to another question then at issue between themselves and the local Government on the subject of an alleged encroachment by the Land Officer upon their Southern frontage, thus to express their highly creditable repugnance to all purprestures and encroachments whatever. Messrs Dent & Co. say that the boundary marks (granite blocks) on their Water-front Lots, marked Nos. 3 and 4, and 4 and 5, were at that time in the exact situation where they were placed by the Officers of Government, and also on the spot where the "pickets were placed on the day of public sale, when they made the purchase." They remark, that "the quantity of water-frontage which they purchased was not a matter of speculation in land, but that they confined their purchase to "what was strictly and indispensably necessary for their establishment, and had not sought to increase their interest in "such land elsewhere. Nothing short of such reasons," they conclude, "would have induced them to solicit the consideration of Government to their case, it being far from their wish or intention either to ask for anything more that (sic) what they had considered to be their actual right, or in the most remote manner to stand in the way of public "Improvement." It is, we think, impossible better to describe the relative positions of Crown, Crown tenants, and the public.
This general concurrence of the Government and Community of Hongkong on the subject of the Praya, did not fail to impress the Secretary of State very strongly in favor of the measure. But the project required some consideration, and His Lordship's friendly feeling towards it was at first evinced only by privately transmitting to Sir Henry Pottinger some corroborating testimony from another quarter in favor of the project. In the following year, however, his decision was officially announced. The utmost approbation was bestowed on the works projected, especially the Praya—the Governor was invited to send home the necessary Reports and Plans;—but the question was asked whether there were the necessary funds for the execution," and a clear intimation was given that to the Marine Lots, rather than to the Imperial Treasury, His Excellency must be prepared to have recourse for the means whereby the Praya might be executed at the least possible" cost to the public." The matter of necessity rested there until the pecuniary difficulty could be overcome. Owing to circumstances too well known to need recapitulation, it was not fully overcome until the end of our last financial year. Your Excellency is the first Governor who has been able to decline the Parliamentary Grant, and this is the first year in which you have been able to decline it.
312
Appendix II. (No. I. The reasons assigned in Mr Rienaecker's Letter of the 8th January, 1856, to the Colonial Secretary, and 16.)
corroborated by all but one of the witnesses (unless we also except another witness, who admits the duty, but appears Evidence of the Hon. to doubt the readiness of the Government), appear to us conclusive in favor of the opinion which we ourselves have Mr Edger, G. Duddell, formed, that the Government of this Island ought to undertake the entire construction of the Praya, and that in ;'> Esq., Y. J. Murrow, other way can the purposes, which have urged the Government to propose the work, be accomplished. The state of Esq., R. C. Antrobus, Esq., and Andrew the shore, so alarming to the public health, calls for immediate measures of prevention. The crimes and disorders Shortrede, Esq., in which occur daily and nightly amongst the dense Chinese population of this city, demand that whatever measures cart Appendix I. facilitate the approach and action of the police, ought to be commenced and executed with all possible despatch. The danger of conflagration, so terribly recalled to our apprehension last month, must be considered as normal amongst a population inhabiting tenements constructed of fragile and inflammable materials, and nearly destitute of the means of access to the water. The necessity to commerce of an uninterrupted and a public communication with the sea are pressing and obvious. But whilst all these considerations demonstrate that it is the duty of Government to take the shortest and speediest way to the completion of the project, they seem also to impose the condition that the work Evidence of Mr Pus- shall be done efficiently and securely, and with an inflexible regard to uniformity in the execution.
The solitary tau, iu Appendix I. witness, who thinks that some saving in the contract price may be effected by substituting the Marine-Lotholders as
Contracting Parties in the place of the Government, and investing them with all the powers and rights of Govern ment for the purposes of such contracts as they shall be able to make, is himself so strongly impressed with the force of the above mentioned objections, as to admit that, even if his suggestion be adopted, it will still be necessary that the work should be commenced at the time, and completed in the manner, which the Surveyor-General may direct- that the Surveyor-General's eye should be constantly directed to it whilst in progress-and that "if it be left to the "Marine-Lotholders themselves, it will never be done at all." It is obvious that the variance between Mr Pustan's evidence and the great body of the evidence taken by us upon this First Point of Enquiry, is more apparent than real, A work so conducted as Mr Pustau proposes is, at least, a work undertaken on the part of Government, and differing from a work directly undertaken by Government, only in respect of a certain want of unity in the initiation of the work, and in the division of the expense of it; and in both of these respects, we think, the preference is clearly due to the latter-an opinion which we have the satisfaction to find is unequivocally confirmed by the great body of evidence before us.
II. Some difference of views amongst the Marine-Lotholders was naturally to be anticipated upon the question as to the conditions of tenure of lands reclaimed or to be reclaimed from the sea. In one respect only they appeared to be unanimous,-in ignoring the fact that at present the Crown alone has title to all such lands, whether already reclaimed, or unreclaimed, and that the Crown will continue to have title to the latter after the same shall have been reclaimed by the Crown itself, or by persons not having title to those lands against the Crown, or authority under it. This common error was the source of the numerous fallacies to be detected in their evidence on the subject of their claims, real or supposed, to the equitable consideration of Government. The jealous eye of the law scans a grant from the Crown with great rigor, and reads it in quite another light from that of a grant made by subject to subject. 5 Bac: Abr: Pressy In the latter case the rule is, that "a deed shall be taken most strongly against the grantor," i. e, the subject; in the former case the rule is, that a deed shall be taken most strongly for the grantor," i. e. the Crown. This is the 17 Vin: Abr: Abr: principle upon which that other well settled doctrine is grounded, that "in the construction of its deed of grant Pressy, O. c. and O. e. « nothing shall be implied against the Crown," and again, the doctrine that, "unless where expressly provided to the
17 Edw: 11, st: 2," contrary, the Crown retains all its prerogative rights in respect of the thing granted."
F. 2.
2.
c. 15.
There is no difficulty in the application of these familiar and wise maxims of constitutional law.
"Public notice and We have it in evidence that even at the time of the first notification of the intentions of Captain Elliot to hold Declaration, &c of the first land sales that were ever effected in this Colony, the community were not suffered to be ignorant that no 1st May 1841. Appen- lands would be allotted here but with a general reservation of all Her Majesty's rights according to the principles dix II. (No. 1); and "and practice of British Law, upon tenure to the Crown," and, before all, pending Her Majesty's further pleasure." sec Laws of Hongkong, Before a foot of land was put up for sale here, the intending bidders were further informed, that "no title would be valid, P. 3.
"and no occupancy respected," until evidenced by the execution of a Crown Grant, and perfected by Registration of Extract from Terms the Grant "in the Government Office," The first land sale took place on the 14th June 1841. The Terms of Sale" of Sale,' &c. Appendix were read to the bidders before the commencement of the proceedings, and they were expressly informed by that I, (No. 3) and see document that whilst the sea-frontage of each lot was nearly ascertained, the depth from the sea would necessarily 'Laws of Hongkong, vary considerably," and "the actual extent of each lot" being still nuascertained, "the parties would have the oppor- p. 4.
"tunity of observing the extent for themselves." They were further informed, that the Crown Grant, the sole evidence
of title, would not be issued to any purchaser until "the precise measurement and registration of the lots should be completed," and that, on his side, the purchaser would not, until delivery of his Crown Grant, be called on to pay the rent for the first year, "reckoning from the date of Sale" of his lot.
Sir Henry Pottinger, the first Governor of this Colony, and with whom we find that the wise and far-reaching project of a Praya first originated, was even more careful than Captain Elliot to preclude the possibility of all popular Append: II, (No. 4) error as to the rights and intentions of the Crown in this matter. Referring to the important "Government Notifi- see the reference to it cation" of the 22d March, 1842, we learn that, at that early date, whilst as yet not a Crown Grant had been issued, in the evidence of the the Allottees of Marine-Lots already sold, and the fature bidders for such as remained to be sold, were distinctly Hon. Mr Edger, Ap-apprised that "the reclaiming of land beyond high-water mark must be deemed an infringement on the Royalties of pendix 1.
"Her Majesty, (and it is therefore positively prohibited) by any private persous.'
Ibid.
Ibid,
Ibid.
During the whole of the period intervening between the date of that paper and the first issue of Crown Grants to the occupants, we have failed to discover any trace whatever of the revocation of that Public Announcement, or even of any connivance being extended by the Authorities to encroachments or purprestures upon the domains of The Honorable Mr the Crown, seaward or landward. A highly respectable witness, however, whose principal establishments being at Edger, in Appendix L. Canton and Macao during that time imposed upon him the necessity of spending the greater part of his time at those ports, intimated his very strong impression that there was some distinct encouragement held out to himself and other purchasers during that period, and even after the delivery of their Crown Grants, to reclaim as much and as far as they pleased towards the sea," subject however to "the risk of the reclaimed land being resumed by Government, if wanted for public purposes," and without any promise of compensation for it, if resumed. It is obvious that, even if the recollection of this gentleman were so far supported by documentary or other evidence, as to establish against the Crown and in favor of himself and those particular occupants who may have acted upon the alleged encouragement, a case of royal conscience and equity, the reservations appended would reduce the case to an almost infinitesimal value, But we must observe,-(1.) that we can find no vestige of any Notification," or "Circular," printed or in manu- script, bearing on this point, except those already cited, which bear altogether the other way; (2.) that it is an error to suppose that, in 1844, or at any period however early in the history of this Colony, a " Government Gazette." and the printing of Government Notifications did not exist, or that such Notifications, if made, were not printed; (3.) that if even the Queen's representatives were under the necessity of reserving the Queen's further pleasure" in their official and authoritative announcements on the subject of tenure, the community ought to have known that the Land Officer, Captain Mylins, and his successor, Captain Meik, could not possibly be authorized to hold out encourage- ments, private or public, in derogation at once of those Notifications of the representatives of the Crown, and of the prerogatives of the Crown itself; and (4) that the reference to a supposed stipulation in an early Crown Grant to the same effect, a reference afterwards admitted tacitly to have been made in error, makes it very probable that the entire impression which Mr Edger entertains on this subject may, at this distance of time, be very easily accounted for, if Extracts from Form we remember that the form of the Crown Grant, a form which has never varied since the first issue, does contain a
kind of stipulation within the boundaries of the registered lot (but not beyond them), subject of course to the usual right of the Crown or" encouragement" to reclaim or improve, and indeed to build upon the lands granted and lying to resume the whole or any portion of the lot upon three months' notice, and equitable compensation, to be deter- mined by the Surveyor-General; and that it is very likely that the witness, speaking from memory, may have erro- neously supposed that the clauses in question applied also to the sea-shore lying beyond the boundaries of the Lot.
Ibid.
Ibid.
of Crown Grant in Ap pendix II, (No. 5.)
The form of Crown Grant to which we have just alluded was first settled in 1844; and, in that year, the first issue and registration of Crown Grants took place. The Crown Grants continued to be issued and registered during the whole of that year and the next, and thus the titles of the occupants, under the old acknowledgements of their biddings, were at length made perfect. We perceive in the circumstances which ensued upon this promulgation of the form of Crown Grant another proof that, down to this time at least, no Marine-Lotliolder had felt himself in any way encouraged to encroach upon the sea, or had doubted in the least the precariousness of a tenure from the Crown subjected since its origin to "the Queen's pleasure, the reservation of all fler Majesty's rights, the British Law
and practice, and the positive prohibition of reclaiming land beyond high-water mark by any private persons as an
We find that the terms of the "title" now about to be exchanged for Correspondence of "infringement of the Royalties of the Crown."
the local government
Letter dated Macao
the old "acknowledgement," did, in 1844, excite complaints on the part of the Marine-Lotholders. But we also find the 4th and the 6th that these complaints had no reference to the limitation of "boundaries" seaward or landward, as contained in the March 1844,--between Grants, nor to the right of resumption thereby vested in the Crows, nor to the paramonot claims therein asserted on and Messrs Jardine behalf of public purposes" over personal privileges, nor even to the absolute powers in respect of those reservations and twelve other firms thereby bestowed upon the Queen's Surveyor-General, nor indeed to any matter bearing upon the present question of Marine-Lotholders, in the slightest degree. We find that a former letter of Captain Elliot was made the groundwork of complaint. But in Appendix 11, (No. we also find that in that letter only one subject is discussed, and that one entirely foreign to our enquiry. Captain 6.) Elliot had there held out some" encouragement" for the hope that "the Queen's further pleasure" might operate to the advantage of the first buyers of lots, Iuland and Marine, in the way either of reduction of Quit Rent, or of 17 June 1841, printed transmutation into a fee simple tenure. The promulgation of the form of Crown Grant had dissipated those hopes, in the Hongkong Ga- "On zette of the 25th June It was of that disappointment that the Thirteen firms of Marine-Lotholders complained, and only of that one. "the faith of that pledge," as they termed it, they told Sir Henry Pottinger that they had, down to that date, (the 4th 1855,--and Laws of March, 1844,) expended "on sea-walls, warehouses, and dwellings, very considerable sums."
Expressio unius est Hongkong,' p. 3; see Appendix II, (No. 6.) exclusio alterius. If encouragements of any other kind had been held out to them, either to build sea walls," or to do any other work seaward of their Northern boundaries, it is clear from this document that they had not thought themselves safe in relying upon those encouragements, and in commencing those works. The personal testimony of Marine-Lotholders themselves confirms the inferences which we have deduced. The Honble. Mr Edger, whose, Evidence of the Hon. recollections go back to a period anterior to the formation of the Colony, "thinks that no land at all was reclaimed Mr Edger in Appen- "(from the sea) before Leases were issued," and that indeed "sea-walls were made before the issue of leases, but in general die I.
Evidence of R. C. between the limits of the land that was measured off;" and Mr Antrobus, whose own encroachments on the sea-shore date but from 1854, states that "he is not aware whether any land was reclaimed from the sea before his arrival here, Autrobus, Esq., in zip- "rather more than five years ago." Such being the case before the issue, what was to result from a "title" so onerous perdis 1,
as that which was now to be forced upon them? If any regard ve had to the strength of language, we must suppose that the Crown Grant was viewed, from its first promulgation, not only as no "encouragement" to costly and un- authorized encroachments upon the Marine domain of Her Majesty, but as the utter bar to all improvements what- soever, even within the surveyed and registered boundaries of the grantee's own Lot. "Had they been previously
aware," say the Thirteen Firms of Marine-Lotholders," of the conditions now proposed, they certainly should not March 1844, in zippen-
dix 11, (No. 6.) "bave expended one farthing on buildings at Hongkong,"
On the other hand, every one of Sir Henry Pottinger's acts and words at this very juncture is utterly incon- sistent with the notion that he entertained any doubt himself, or had led others into any doubt, as to his line of conduct with respect to the rights of the Crown to the sea-shore in front of the Marine Lots. His Excellency's decision on the subject already cited was notorious to the whole community. Among the principal works which, at his request,
Letter of the 4th
Letter of Mr Gor-
the Land Officer, Mr Gordon proposed to undertake, and which Sir Henry Pottinger referred home with approbation, don, of the 6th July but for lack of the means could not undertake without the authority and assistance of Her Majesty's Imperial Govern- 1843, in Appen ix II, meut, a prominent place was given to the following project: "a space of land to be reclaimed from the sea in front of (No. 7.) "Government Hill, to form a Public Landing-place, with an Esplanade or Public Walk; a Praya to be carried out in front of all the buildings, both Eastward to the Point, the property of Messrs Jardine & Co., and Westward as far as Navy Bay, or four miles between the two extremities, the land thus reclaimed to form a number of Marine Lots; "a public roadway close to the sea, of fifty feet in width to be left on the Praya, and the space betweeu that and the houses to be the private property of the possessors of the Lots assisting in carrying out the plan paying a proportion "of the expenses, and for whatever land they gained of course charged at the same rate as for the rent of the Lots." That the fact of such a proposal having been made, and the details of it were no secret to the community at the time, or even long afterwards, may be very fairly inferred from Mr Montgomery Martin's once celebrated Report, Extracts from the Re- compiled by him within six weeks of his arrival here in the following year, when Sir John Davis had succeeded Sir port of Mr M. Martin, Henry Pottinger in the Government of this Island. That Report contains a direct but sneering allusion to the July 1844, and Sir Praya, amongst other valuable projects of Sir Henry Pottinger, all of which are ridiculed by Mr Martin, little John Davis's Despatch and Letter, each dated dreaming how many of his sarcasms were soon to be refuted by the literal fulfilment of the projects. Whilst the the 20th August 1844, notoriety of the fact is proved by the boldness of the sarcasm, the mild and temperate rebuke which is contained in in Appendix 11, (No. the observations of Sir John Davis in reply, and which, together with the attack, will be found in the Appendix, is, on 8.) its side, a proof that his Government and that of his predecessor were agreed in their opinions as to the policy to be followed with respect to Crown rights to the sea-shore, and the propriety of commencing the Praya, as projected by the latter, so soon as the finances of the Colony would permit, but without impeding the construction of the other public works and improvements enumerated in Mr Martiu's Report.
Letter of Sir E. Bel-
Nothing indeed but the financial difficulties under which, even in Sir Henry Pottinger's time, the Colony had been laboring, and which were greatly and notoriously aggravated in later years, appears to have led to the delay in carrying his project into execution. The formation of such a work had been strongly urged upon the Admiralty by Commodore Sir Edward Belcher, R.N., then commanding a squadron in the China Seas. It had been notified by a cher, R., (Enclosure Government Circular to all the leading mercantile firms, perhaps to all the mercantile firms without distinction No. 3 in Lord Stanley's then carrying on business, and many of whom we perceive now represent themselves to be hostile to the formation private despatch of 15th November 1843) of a Praya, except on the condition of being allowed to monopolise the whole benefit so far as their sea-frontage of 15th November1843, extends, with an entire exemption from Quit Rent, and without being called upon to defray any portion of the cost. in Append II, (No. 9.) Yet the project of those days had the remarkable fate of being received by them with an almost unanimous adhesion. Circular Letter of Out of eight firms, themselves Marine-Lotholders, whose replies have been recorded in the Land Office, only one Me Gordon, dated 28th (that of Messrs Holliday, Wise & Co.,) hesitated "to add to their already heavy expenditure," and to incur April 1843,in Append. the loss of privacy and convenience, to say nothing of the profits of wharfage," privileges which they were 1, (No. 10.)
Letters of the 1st, nevertheless ready and willing to forego for the public advantage." All the rest signified their consent and proffered their co-operation. They were willing to do it at their own expense to renounce the formation of 23, 4th, 5th, 8th, and private wharves, in favor of the common advantage. They had the welfare of the community at heart, not their own 10th May, 1843, to the Land Officer from eight individual profit. One highly respectable firm, to whom the Circular was sent, but who do not appear to have returned
Extract of Letter
a direct answer, nevertheless took the opportunity, in reference to another question then at issue between themselves firms of Merchants. and the local Government on the subject of an alleged encroachment by the Land Officer upon their Southern frontage, from Messrs Dent & thus to express their highly creditable repugnance to all purprestures and encroachments whatever. Messrs Dent & Co. Co., to the Land Officer, say that the boundary marks (granite blocks) on their Water-front Lots, marked Nos. 3 and 4, and 4 and 5, were at dated the 3d May 1844, that time in the exact situation where they were placed by the Officers of Government, and also on the spot where the in Append. 11, (No. "pickets were placed on the day of public sale, when they made the purchase." They remark, that "the quantity of 13.)
water-frontage which they purchased was not a matter of speculation in laud, but that they confined their purchase to "what was strictly and indispensably necessary for their establishment, and had not sought to increase their interest in "such land elsewhere. Nothing short of such reasons," they conclude, "would have induced them to solicit the cou- sideration of Government to their case, it being far from their wish or intention either to ask for anything more that (sic) what they had considered to be their actual right, or in the most remote manner to stand in the way of public "Linprovement." It is, we think, impossible better to describe the relative positions of Crown, Crown tenants, and the public.
This general concurrence of the Government and Community of Hongkong on the subject of the Praya, did not
Lord Stanley's pri- But the project required some con- fail to impress the Secretary of State very strongly in favor of the measure, sideration, and His Lordship's friendly feeling towards it was at first evinced only by privately transmitting to Sir vate despatel of 15th November1813,in Ap- Henry Pottinger some corroborating testimony from another quarter in favor of the project. In the following year, however, his decision was officially announced. The utmost approbation was bestowed on the works projected, pert. 11, (No. 12.) especially the Praya-the Governor was invited to send home the necessary Reports and Plans ;-but the question patch of the 30 Janua- was asked whether there were the necessary fands for the execution," and a clear intimation was given that to the ry, 1844, in dppend. Marine Lots, rather than to the Imperial Treasury, His Excellency must be prepared to have recourse for the means II, (No. 13.) whereby the Praya might be executed at the least possible" cost to the public." The matter of necessity rested there until the pecuniary difficulty could be overcome. Owing to circumstances too well known to need recapitula- tion, it was not fully overcome until the end of our last financial year. Your Excellency is the first Governor who has been able to decline the Parliamentary Grant, and this is the first year in which you have been able to decline it.
Lord Stanley's des-
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