CO129-058 - Sir Bowring - 1856 [8-10] — Page 284

the Legislative Council-would be pleased to assist him at the yourself and the Attorney General-both being members of hearing of the case: if any thing were wanted to shew that he was very far from being actuated by a "determination not to give effect to the law," surely this should suffice. both of the occasions in question the Bench specially and re- It further came under the notice of the meeting that upon peatedly urged the Plaintiff to remove the case by writ of certiorari to the Supreme Court, not because any doubt was because it was of the greatest consequence that the construc- tion of an ordinance affecting interests of great magnitude, and so ambiguous in its terms, should at once be settled by that the Plaintiff on both occasions was representing the in- the highest judicial authority of the colony. Considering terests of the Crown, it is our humble opinion that the course recommended by the Bench of Justices would have been not only more correct but more just and dignified than that which His Excellency has seen fit to pursue.

plaint of neglect of duty on the part of many of them, and we beg most répectfully to remind His Excellency that several of the Justices in the present Commission declined to accept office under it if it were expected that they should punctually attend at the Petty sessions, or if their nomination were in- tended chiefly for that purpose. It was conceived that the appointment of stipendiary Magistrates in the colony sup- erseded the ordinary duties and services of the Justices of the Peace in sessions. In that view His Excellency concurred in every instance in which it was stated, and it was under-entertained of the justice or legality of their decision, but stood that the Justices were not expected to attend the Petty sessions, unless invited to do so upon the occasion of extraordinary cases coming on for adjudication. Notwith- standing this His Excellency having thought it necessary to call for a return of attendances at sessions by the non-official Justices, we deemed it necessary to make enquiries as to the attendance of the Justices "holding other official appoint- ments" and who, being in the immediate service of Govern- ment, might reasonably be expected to pay at least the same attention to their Magisterial duties as their non-official coadjutors; and we found that there had been no attendance the construction of the ordinance under which the decisions We do not feel called upon to express any opinion as to by any of the Justices holding other official appointments, if complained of were given: that may possibly come under we except the one lay member of the Legislative Council. So far as we can ascertain no non-official Justice upon being necessary for us to do more than satisfy ourselves of the the notice of the Government in another form. It was not applied to to assist the stipendiary Magistrates in cases of intentions of the Bench in those decisions, and that they were importance, declined to attend ; but two of the Justices hold-good, and not evil, as His Excellency is pleased to state, we ing other official appointments, upon being asked to attend at the hearing of one of the very cases named in the memoran-

have received ample testimony. A communication to the dum, declined upon the plea

Government, under this date, by the four non-official Justices pressing business. We do not question that plea, but we submit that the conduct of ing of Justices and received its unanimous approval, and we who joined in those decisions, was read to the general meet- the non-official Justices in this particular contrasts favorably with that of their official brethren. If it be objected to these

now respectfully beg to inform His Excellency that while remarks that the nature of their offices prevents the official in opinion upon this subject, we do most cordially and fully we most sincerely regret being compelled to differ from him Justices from attending at sessions we should be glad to be in- assent to and confirm, in every particular, the view taken of formed for what purpose, different from the others, they were included in the Cominission.

His Excellency's memorandum by those four Justices and the opinions respecting it expressed in their communication inform His Excellency that we not only approve in all res- to the Government. We further most respectfully beg to

Justices concerned upon the occasions in question, but that pects of the conduct of the acting Chief Magistrate and the

conscientions integrity of purpose in administering the Law we have the most perfect confidence in their unbiassed and generally in their official capacity,

His Excellency is pleased to state in the niemorandum that certain of the Justices on the 23d of May concurred with the acting Chief Magistrate in a decision "by which, in the judgment of His Excellency, the obvious intent and meaning of the Law were abrogated and annulled by the action of the Bench"-that again, on the 2d [3d] of June, certain of the Justices "supported the acting Chief Magistrate in his determination not to give effect to the Law" and "co- operated with him in his extraordinary course of proceeding." These statements being tantamount to a charge of deliberate perversion of justice and violation of their oaths of oflice by certain of our fellow Magistrates, we felt bound to make the most careful enquiry into the facts. In the course of that enquiry we ascertained that some correspondence had taken place, previous to the issuing of the meinorandurn, between the Government and the acting Chief Magistrate in respect of the decisions of the Bench on the two occasions in ques- tion, which correspondence being called for by the meeting, such portions of it as contained any reference to the Justices were submitted to us. After careful enquiry into the whole circumstances of the case as detailed in the correspondence and the statements made to the meeting by the four Justices referred to in the memorandum, our inanimous opinion is, that the allegations made by His Excellency have no foun- dation whatever.

His Excellency was pleased to conclude the memorandum promote the "unity of purpose and of action which should with an exhortation to the Justices generally to observe and undoubtedly be the object of all who are invested with pub- beg respectfully to assure His Excellency that so long as we lic authority for the maintenance of Law and order." We remain in the Commission of the Peace be will find in us, equally with our fellow Justices who form the immediate subject of his memorandum, perfect unity of purpose, both in maintaining Law and order (which is our privilege and duty) and in resisting all improper interference with our freedon and independence of action in that respect.

nised axion (with which we cannot suppose His Excellency It is not merely our opinion, but it is a universally recog- to be unacquainted,) that a Magistrate in his official capacity and to any Executive Council, and not only need not, but on the Bench is superior to every member of the executive,

higher judicial authority except in the regular course of ap- dare not, submit to any interference or dictation even by a peal. We most deeply regret to recognise in His Excel- lency's memorandum an unconstitutional and unjustifiable attempt to interfere with and dictate to the Magistrates of with all respect for His Excellency and deference to his this Colony in their judicial capacity, and we feel bound,

The cases for trial on the 23d of May and the 2d [34] of June were of vital importance to the community and to the most material interests of the Colony, and the judicial exam- inations in those cases appear to us to have been conducted with the most conscientious regard to a just and true inter- pretation of the Law, Extraordinary efforts were indeed made by the acting Chief Magistrate to secure the co-opera-opinions, to record our emphatic protest against the dan- tion of other Justices on those occasions, but for what par- pose? For the purpose, as is alleged, of abrogating and an- nulling the obvious intent and meaning of the Law? No, but for the purpose of giving the most scrupulous and care- ful consideration to an Ordinance that had only a short time before been passed, and of securing, in so far as it lay in his power, a just and equitable decision in the cases arising under it which were then before him.

gerous principles upon which the memorandum proceeds, and against all attempts whatsoever, on the part of the Execn- tive, to interfere with or in any way restrain or influence, dent action of the Magisterial Court in this colony. either directly or indirectly, the perfectly free and indepen-

while we have thus, as freely and faithfully as the occasion In conclusion, we beg you will assure His Excellency that demanded, submitted to him our sentiments in regard to the opinions His Excellency has expressed respecting the

the dignity of his office, and sensible of the duty and respect which are owing to it, and which we will always gladly render. We have the honor to be, Sir, your most obedient

(Signed) SAM GRAY.

servants.

Chairman of the Meeting of Justices of the Peace on the 25th instant.

J. JARDINE. A. C. MACLEAN.

C. F. STILL

JOHN SCARTH.

ROBT. S. WALKER. J. RICKETT.

JOHN D. GIBB.

It may be that the return of attendances called for by IIis Excellency, and the remarks made thereon in the menoran-Magistracy, we are at the same time fully impressed with dum, were intended, not to form a complaint of neglect of duty against the Justices generally, but to invest the sittings of the 23d of May and the 2d [3d] of June with an unusual appearance; in that case we beg most respectfully to state that the impression conveyed to our minds by that unusual appearance is very different from the impression made upon His Excellency. His Excellency sees nothing in it but a de termination on the part of the acting Chief Magistrate to subvert the Law, and on the part of the Justices to support him in doing so we see nothing in it but an anxious desire on the part of the Magistrate to render his decision as accur- ate and sound as possible, and on the part of the Justices to assist him therein. In one of your letters to the Acting Chief Magistrate, written, we presume, under the direction of His Excellency, you were pleased to observe that you were "at a loss to understand the specialty in the cases which rendered it necessary to call in the unusual aid of the Justices." We are glad to find that the acting Chief Magistrate exercises a sounder discrimination, that he recognised the special im- portance of the cases, and that he displayed so strong a de- sire to secure the administration of full and impartial justice to the parties at issue, by conjoining with himself upon the Bench a number of his fellow Magistrates. It is in the high- est degree improbable that a Magistrate possessed by a pre- conceived determination not to give effect to the Law should seek to hamper himself by calling to the Bench a number of colleagues over whose opinions he could exercise no control, and who were possessed of equal powers on the Bench with himself; yet Mr. Mitchell not only did so, but upon one of the occasions in question he specially requested that you

absent from the meeting of the Justices of the Peace on the Hongkong, 27th August, 1856-Having been unavoidably 25th instant, the Justices present at that meeting have sub- hereby signify my full concurrence with and approval of mitted to me for consideration the foregoing letter, and I the views, opinions, and resolutions which it expresses.

(Signed) ANGUS FLETCHER. J.P.

COUNCIL ROOM, VICTORIA, HONGKONG, 14 September, 1856. municated to the Governor, and by him laid before the GENTLEMEN,-Your letters of the 26th ultimo were com- Executive Council, whose Honorable members concurred in the reply which I am instructed to convey. His Excellency utterly disclaims any intention by his memorandum of casting "a slur upon the character" of the un-official Magistrates, of accusing them of "evil intentions"-or what tantamount to a charge of deliberate perversion of

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Justice, and violation of their oaths of office"--nor does he think his language fairly susceptible of such interpretation.

He has had no object but to maintain in the great and general interest of the community the supreme authority of the Law, and does not think it necessary or becoming to enter into a defence of what is represented in your commun- ications to be an unconstitutional, " "unjustifiable," "dangerous," and "dictatorial" proceeding.

The question at issac has been decided by the highest Legal Authority in the Colony, and the conduct of the acting Chief Magistrate which the Justices state they "approve in all respects," has been declared by the "Chief Justice" to have been illegal" and "without excuse". The inand- amas granted by His Honor was made absolute, and in the case of Tye Ating the costs of application were visited upon the acting Chief Magistrate, où the ground that "the error of his judgment had been pointed out to him again and again." Costs were not given in the case of Mr. Duddell as the Chief Justice thought, "if the Magistrates could show that their error had been a bona file one, it would be hard to visit them with the costs, particularly if they were now to render a prompt obedience to the writ, and make return that they had obeyed it."

As both communications seem to take for granted that the magisterial decisions were open to appeal and one of them expresses an opinion that such an appeal would have been more correct, more just, and dignified," it is im- portant to state that the Attorney General was directed by His Excellency in Council to remove if possible by writ of certiorari the cases in question to the Supreme Court, but his Excellency was advised that the Crown was excluded from the benefit of such writ. It has been officially reported to His Excellency that Mr. Mitchell was well aware of the opinion of the legal adviser of the Crown, as to its exclusion from the power of appeal. If the Acting Chief Magistrate ins- tructed the Justices differently, the responsibility no doubt rests with him,

sense of the word, but the conduct of the Magistrate in giving effect, in the first instance, to what be believes to be the true intent of the law is not illegal in the sense in which His Excellency is pleased to apply the word. If a Judge gives a decision which is reversed by a higher Court upon appeal, such decision, being contrary to the law, may be described as "illegal" in the literal sense of the word, but we should hesitate to say that the conduct of the Judge in giving such a decision was illegal.

4. We are also advised that the costs of application, which are stated by His Excellency to have been visited upon the Chief Magistrate, have not been visited upon him, he having complied with the terms of the writ, and been officially in- formed, by the Court itself, that "no costs having been in- curred" he had "none to pay."

5. We are extremely surprised to learn from His Excel- lency that he was advised by the Attorney General that the Crown is excluded from the benefit of the writ of certiorari, no principle of law being more clearly laid down than that the Crown never loses the benefit of that writ, even when the certiorari is denied by the Statute, unless the right of the Crown in that respect be expressly barred. By Ordin ance No. 10 of 1844 certiorari is allowed in all cases in this Colony, even when denied by the Imperial Statutes in force in the Colony, and we are at a loss to understand how any doubt about the right of the Crown to the benefit of the writ can exist in the mind either of the Attorney General or His Excellency the Governor.

6. It is stated by His Excellency that costs were visited on the Chief Magistrate, because "the error of his judgment had been pointed out to him again and again;" and that "he was well aware of the opinion of the legal adviser of the Crown as to its exclusion from the power of appeal." We are informed that in these remarks His Excellency can only refer, in the first place, to the letters which he directed you to address to the Chief Magistrate, subsequent to the 28d of May, in which the difference between the interpretation of the law by the Magistrate and by the Governor is pointed! out to the former; and, in the second place, to explanations offered in court, during the trials in question, by Captain Cowper, the plaintiff on the part of the Crown, as to the Crown's exclusion from the power of appeal. It is precisely upon this point that the conduct of the Chief Magistrate We cannot admit that His Excellency has any right to dictate his own interpretation of the law to the Magistrate, and it would be strange indeed were the Magistrate to take the law from the plaintiff' in a case against his own convic-

With reference to the statement that Sir John Bowring had released several of the Justices from any obligation of punctual attendance" at Petty Sessions, he has no recol- lection of having on any occasion exonerated any gentleman from the discharge of the functions connected with so in- portant an appointment, He has undoubtedly stated that with so large a Bench, a routine arrangement for the distrib-especially deserves and receives our approbation and support. ution of Magisterial Duties, would make the claims on any one magistrate very little onerons, but he had neither the purpose (nor indeed the power) of conferring an honorable distinction and disassociating that distinction from its appropriate responsibilities,-have, &c., &c.,

(Signed)

To

GEORGE LYALL, Esq THOS. C. LESLIE, Esq.,

L. D'ALMADA E CASTRO, Clerk of Council.

W. LAMOND. Esq., R. C. ANTRÓBus, Esq., SAM GRAY, Esq., J. P.

Chairman of the Meeting of Justices of the 25th August.

J. JARDINE, Esq.,

A. C. MACLEAN, Esq.,

C. F. STILL, Rsq.,

JOHN SCARTH, Esq.,

To The Honorable

R. S. WALKER, Esq., J. RICKETT, Esq.

Joux D. GiBB, Esq., ANGUS FLETCHER, Esq.,

HONGKONG, 23d September, 1856.

The COLONIAL SECRETARY of Hongkong,

Victoria. SIR,-We have the honor to acknowledge the receipt of the letter, dated the 1st instant, addressed to us by the Clerk of Councils, in reply to our two separate communications of the 26th ultimo. We observe with pleasure that that letter removes, in some measure, the individual application of the memorandum of the 19th of August, but regret to fund that it leaves untouched the important principle which it was the object of our first communications to assert in support of our magisterial rights and freedom of action; we do not, however, press His Excellency to avow any opinion upon that subject, our purpose in again addressing you being merely to correct the erroneous impression which His Excel- leney's remarks upon some of the points under discussion are calculated to convey.

2. In the letter muter reply, as well as in the memorand- am, the writ of mandamus and the opinions stated to have been expressed by Ilis Honor the Chief Justice are placed in counexion with the cases heard by the Magistrates on the 23rd of May and the 3rd of June,-upon which the memorandum was professedly based. We beg leave res- pectfully to repeat that the writ of mandamus, to which His Excellency has so repeatedly and in such strong terms re- ferred, was not issued in respect to those cases; and, inas- much as the conduct of the Chief Magistrate which, it is said, the Justices "approved in all respects," was his conduct upon the above-named occasions, His Excellency is distinctly in error in stating that it has been declared to be "illegal

and without excuse."

tion!

7. His Excellency has no recollection of releasing any of the Justices from attendance at sessions. We note that he had neither the purpose nor indeed the power to do so, and leave it to the Justices in question to recall the circumstances to his recollection.

8. His Excellency the Governor states that the question at issue has been decided by the highest legal authority in the island, but it does not appear to us that it has. The question at issue is, in effect, this, whether the law is to be administered according to the judgment of the Magistrates who are sworn to dispense it according to the best of their knowledge and ability, subject to correction by appeal to the Supreme Court, or according to the judgment of the Gover- nor and Executive Council? His Excellency is pleased to state that "he had no object but to maintain, in the great and general interests of the community, the Supreme au- thority of the law," but "that he does not think it necess- ary or becoming to enter into a defence of what is represent- ed in our communications to be an unconstitutional, un- justifiable, dangerous and dictatorial proceeding." We beg to assure His Excellency that it was very far from our purpose to call in question the nature of his intention, or the utility of the object which he had in view. Nor did we. We will ever, as is our bounden duty, most cordially co- operate with His Excellency in maintaining the supreme authority of the law, and it was because, in the case in que- achieve so stion, the course pursued by His Excellency desirable an object seemed to us in itself subversive of the law, because destructive of our freedom of action in adminis- tering and enforcing the law, that we ventured to record our opinions upon the subject in the emphatic terms quoted by His Excellency.—We have &c., &c.

A. FLETCHER,

(Signed) SAM GRAY, Chairman,

A. C. MACLEAN,

C. F. STILL,

R. S. WALKER, J. RICKETT,

R. C. ANTROBUS,

J. JARDINE,

GEO. LYALL,

J. SCARTH,

W. LAMOND,

J. D. GIBB.

T. C. LESLIE,

COUNCIL, ROOM, VICTORIA, HONGKONG, 25th September, 1856. GENTLEMEN,I am directed to acknowledge the receipt

of your letter dated 25d instant, to the address of The Hono- rable The Colonial Secretary, and to state that it has been laid before His Excellency The Governor in Executive Council. I have, &c,, &c,,

J. L, D'ALMADA E CASTRO,

for Clerk of Councils.

To

(Signed)

3. The opinions attributed by His Excellency to the Chief Justice are given in the form of quotations, and are doubt- less, therefore, authoritative; we do not find them, however, in the mandamus, nor are they on record anywhere except in the memorandum and in the letter under reply; we have seen, in paragraph 2d of this letter, that His Excellency has in one instance misapplied them, and if they refer to the mandamus in question they appear to be very strong for the occasion. If a Magistrate believes that he has no juris- diction in a certain case and declines to adjudicate, the higher Court will point out to him his error by a writ of mandamus; the erroneous action of the Magistrate, in such * case, being contrary to the law, is illegal in the literal Jorts STU, Faq...

que copies

SAM GRAY, Esq., ANGUS FLETCHER, Esq., J, JARDINE, Esq.,

A. C. MACLEAN, Esq.. GEO. Lyall, Esq., C. F. STI, Esq.,

ROBT. S, WALkær, Esq., WM. LAMOND, Esq., JOIN RICKETT, Esq., JOHN D. GIBB, Esq., B. C. ANTROBUS, Esq.,

THOS. C. LESLIE, Esq.,

Damboat H.

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