(4)
I have now the honor to request that His Excellency will transmit to the Secretary of State by the outgoing mail, the whole of my correspondence with yourself, upon the difficulty at issue, together with the whole of my correspondence on the same subject with the Acting Surveyor General, and that Officer's replies.
My letters to yourself are numbered, including this communication, 1 to 5. Yours in reply, Nos. 667, 681, 693; mine to Captain Cowper, R.E., Acting Surveyor General in address are numbered 1 to 5; that gentleman's in reply—19 to 22.
In conclusion, I have the honor to hope that His Excellency will deem it his duty to elicit from the Acting Surveyor General specific replies to the queries set forth in my letters No. 2 and 5 of 16th and 19th September, and lay the same before the Secretary of State who, I venture to anticipate, will not, under all the circumstances of the case, pronounce the queries which called them forth, either inquisitorial or "eccentric."—I have, &c., &c.
(Signed)
A. HUDSON.
I have
WILLIAM COWPER examined on oath.—I am the acting Surveyor General of this Colony and have been so
Tuesday, June 3rd, 1856.
since the 16th of February last. I have summoned a builder of this place, under paragraph 2 of the New Building Act for a contravention of that act. The Act is dated the 16th of April last. I have observed the progress of the work now presented as a nuisance, from time to time previous to the 16th of April, but I never gave any notice verbal or written, to the Contractor in the case. I do not know that I have ever seen him. I never could get the Chinese to understand me in those cases. I believe it was because they did not choose to understand me. I never served any written notices. I have no time for such writing. I have never caused any placards to be posted up warning the people concerned against infringing the Ordinance upon which I now prosecute them. I have never received any placards for the purpose, I mean prior to the promulgation of the Building Ordinance. I have received a parcel of placards in Chinese since the 29th of May, and since my former cases under this Ordinance were presented at this office, but neither in the former cases nor in the present one, have I served any written notices upon any of the offenders. I never could find them. I recollect verbally warning one man, or two men "Sum yow" or "Tum Tai," and three or four more of compound names, but all verbally. My complaint against the works of the defendant in the present case, is this, that whereas the Building Act requires that the basement walls of all tenements having more than one upper story, should be of eighteen inches in thickness; the walls in question are only of 13 inches. I further present that the flooring joists of one house cross into those of another, instead of being kept the length of a brick apart.
Cross-examined by Mr. Green, for defendant.—I am not quite sure that I have examined the external walls of the houses now presented. My impression is that the external and party walls are of the same dimensions. I have satisfied myself that the flooring joists of the houses do actually cross each other.
I never did say, that I should not take proceedings under this Ordinance against any Chinese offender, until after it should have been promulgated in Chinese. What I stated was that I should be unwilling to take such proceedings. When I made that statement I knew that it lay in my own discretion to take such proceedings or otherwise, that is to say to a certain extent within my discretion—the Governor has the power to limit my discretion. I was aware when I made this statement what the contents of the Ordinance were. Acting under my own discretion entirely. The reason I am willing to do today, what I was not willing to do some time ago, is because of the delay on Mr. Wade's part in translating the new Ordinance. That is one reason, another is that although I told all the Government Contractors and Chinese Overseers of Works to make known the terms of the new Ordinance, and have reason to believe they have done so, still no notice has been taken by the parties infringing it; thirdly, because under section 11, the longer the offender went on, the heavier would be the penalty upon him. I formed that opinion from reading the paragraph in question, viz: paragraph 11.
W. COWPER, A. S. G.
(Signed)
The Justices assembled having by a majority of four to one considered that works in any way commenced, prior to the date of the Ordinance, do not come under its operation—dismissed the complaint.
W. H. MITCHELL, J. P., Chairman.
(Signed)
Before the Hon. J. F. EDGER, Esq.,
GEORGE LYALL, Esq.,
WILLIAM LAMOND, Esq.
(Copy.)
R. C. ANTROBUS, Esq.,
W. H. MITCHELL, Esq.
Hongkong, 17th September, 1856.
DEAR SIR,—In compliance with your request, I herewith furnish you the particulars of my interview with Sir John Bowring, regarding the case of Cowper v. Ly Ating, under the decision or judgment wherein your houses have lately been pulled down.
On the 20th August last, being the day of the hearing of the case of Cowper v. Ly Ating, and before such hearing, I as your Attorney, waited on Sir John Bowring, and after pointing out the fact of your absence at the North, trusting to the decision previously given regarding the houses in question—of such houses being so situated that no injury could arise by same remaining in the state they were in for a short time longer—there being none but buildings of a substantial nature on the same side of the way of your being the only party interested, although the case was brought against Ly Ating (your Contractor), and the loss likely to accrue to you—and of your having no wish to evade the law in any way, requested His Excellency's consideration in the matter, and asked him to direct, either that the case might be put off until your return or that same should be stayed for a short time to enable me to address the Council. His Excellency in reply, informed me that he could not interfere with the ordinary administration of justice, or with his officials in the matter, that the laws must be enforced, and that he could not act without the co-operation of the Council, but that any application made in the usual manner would be attended to, at the same time asking me what I thought would be the answer to a similar application made in England. I then attended with your counsel at the Magistracy, and after examination of a witness on behalf of Captain Cowper, and some discussion, the case (to give you a chance of making any defence in your power) was ordered to stand over until the day after the departure of the then next English mail, shortly before which your return was expected. Captain Cowper being present, on being asked whether the day would suit him, replied "As well as any other" or words to that effect. Of the subsequent proceedings you are aware.
I am, dear Sir, yours faithfully,
(Signed)
H. J. TARRANT.
(Copy)
Hongkong, 10th October, 1856.
SIR,—I beg leave with profound respect to introduce my name to you as a Partner in the Mercantile Firms of Gilman & Co., of the Ports of Canton, Foo Chow Foo, and Shanghae—and more immediately as an individual whose interests are largely embarked in House Property in this Colony.
When I state that my Partners and self draw an income from this Colony, at this moment, exceeding Three Thousand Five hundred pounds sterling a year derived from HOUSE PROPERTY, it is for the purpose of showing you a very considerable interest at stake and of serving to justify the intense anxiety which I feel upon the subject on which I have the honor to address you.
That anxiety will be at once justified when I further state that this large interest is at this moment seriously jeopardized—nay more—vitally imperilled by a certain recent legislation, emanating from the Legislative Council of this Colony.
It is my painful duty, Sir, to have to lay before you a case, such as I venture to say, even the chequered records of that vast department over which you preside can furnish no parallel at least, for the credit of our Colonial system in the eyes of the world at large, I will venture to hope that this case stands without a precedent.
3. When I inform you that I left this Port on the 30th of July last, for the North of China, leaving in this Colony, as I then supposed, under the protection of the Imperial Laws, three newly erected Chinese Tenements, just completed and contracted for at a rental equivalent to about £18 sterling per month, and that on my return on the 11th of September following, this property had disappeared, not under any convulsion of nature, but under the destructive fiat of His Excellency Sir John Bowring, I shall have said enough, at least, to arrest your most grave attention.
When I further inform you, that upon enquiring after my missing property, I was informed that it had been condemned as confiscated to the Crown, and learnt that its materials were being at that moment used in the construction of a new Government Building, I shall not merely have arrested your attention, but piqued your curiosity, still more so when I add, that I stand, thank God, not only under no attaint of treason or other crime against the State, but that I never in my life, stood charged even with a simple misdemeanor.
4. These are difficult premises, Sir, indeed, so far, they must be wholly unintelligible to you—utterly over-laying as they do the established order of things as between the state and the subject, they are true however to the letter, and the following is the key to the Enigma.
5. On the 16th of April last, the Legislative Council of this Colony passed an Act, numbered as Ordinance 5 of 1856, and entitled "An Ordinance for Buildings and Nuisances."
That Act, on the day it was promulgated, overtook in various stages of progress, a great number of Chinese Tenements in course of construction throughout this Colony. Many of these buildings had been commenced six months before this new Law made its appearance—several were roofed in and all had attained an advanced stage of progress.
This Law took effect from the very day of its promulgation. It contained a certain specification of structure which was ordered to be applied to all "works" then in progress of construction!—If the "work" commenced, say in January last, happened to conform to the specification required by the Law of April, it was saved to its owner. If it happened to deviate, in any way, it must be adjudged a "Nuisance"—condemned accordingly—and its materials confiscated to the Crown, that is to say, in the words of the Ordinance itself as quoted, taken from the owner and "vested absolutely in the Surveyor General” !!
6. As the mere phrasing of an arbitrary Act, these words would in themselves be sufficiently offensive to the prejudices of a British-born subject who holds his property as his indefeasible right and its guardianship as the supreme trust and duty of the state. But these were more than mere barren words—it remained for His Excellency Governor Bowring to establish at once their import and their exact value.
7. I commenced the works which His Excellency recently caused to be destroyed in the month of March last. There was at that time no Building Act, or specification of any kind to guide me, else I should have adhered to it to the letter.
My works proceeded up to the 23rd of May, when they were challenged by the Surveyor General as being fundamentally in contravention of the new Law of April. The case was heard, on the date given, before a full Bench of Justices. I pleaded, by Counsel, that the Law was an ex post facto Law and could not be complied with save by demolishing to its foundation all the work done up to that date. (You will perceive Sir, at this point, that if Sir John Bowring was determined to carry out such a Law as this, every day he allowed the work to go on, every brick he allowed to be laid without challenge after the promulgation of his Law (16th of April last) was in itself a further and a fresh oppression of the subject.) The Bench held the plea to be a good one—and decided that no work commenced before the promulgation of the Law could fairly be brought within its penal operation—and the complaint of the Surveyor General was dismissed accordingly.
I beg leave to request that Governor Bowring will lay before you all the correspondence which has passed between His Excellency and the Bench of Justices, official and non-official, upon this subject, including His Excellency's Memorandum to the Justices as an essential part of this case.
8. Upon this decision of the Bench my works proceeded up to the 3rd of June, when they were again challenged by orders of His Excellency on precisely the same grounds—on exactly the same issue as that adjudicated on the 23rd of May with the addition of what is called a "continuation" of the offence charged.
I am advised that there is some clause in the Ordinance which makes every "twelve hours continuation of any offence charged under it, as in itself a fresh and substantive offence! The Magistrates however decided that there could be no "continuation" of an offence where there was no original offence proved and where the offence presented was discharged under their decision of the 23rd of May, and accordingly again dismissed the Surveyor General's action. Under protection of this two-fold decision my works then proceeded, and continued up to the 30th of July. On that date I left for the North of China, and the further history of this oppression is to be understood as having occurred in my absence. I need hardly add, that I quitted this Colony, leaving my property under the protection both of the Imperial and the Local Laws.
9. It appears, however, that under some clause in this Ordinance, the mere making of a "charge" before the Magistrate by the Surveyor General is as good as a "conviction" towards establishing the 12 hours" fresh offence ! Under this clause a fresh summons was applied for against my property and refused by the Magistrates. His Excellency the Governor, thereupon, caused a Mandamus to be sued out by the Attorney General before the Supreme Court under "the 12 hours" clause. Incredible as it may seem the mere "charge" was found to be an efficient towards re-opening the question as a "conviction" could have been, and a Mandamus was ordered to be issued accordingly.
10. It appears that in granting the Mandamus His Honor the Chief Justice took occasion to observe
279
}
(4)
I have now the honor to request that His Excellency will transmit to the Secretary of State by the outgoing mail, the whole of my correspondence with yourself, upon the difficulty at issue, together with the whole of my correspondence on the same subject with the Acting Surveyor General, and that Officer's replies.
My letters to yourself are numbered, including this communication, 1 to 5. yours in reply. Nos. 667, 681, 693; mine to Captain Cowper, R.E., Acting Surveyor General in address are numbered 1 to 5; that gentleman's in reply--19 to 22.
In conclusion I have the honor to hope that His Excellency will deem it his duty to elicit from the Acting Surveyor General specific replies to the queries set forth in my letters No. 2 and 5 of 16th and 19th September, and lay the same before the Secretary of State who, I venture to anticipate, will not, under all the circumstances of the case, pronounce the queries which called them forth, either inquisitorial or "eccentric,"-1 have, &c., &c.
(Signed)
A. HUDSON.
I have
WILLIAM COWPER examined on oath.-I am the acting Surveyor General of this Colony and have been so
Tuesday, June 3rd, 1856. since the 16th of February last. I have summoned a builder of this place, under paragraph 2 of the New Building Act for a contravention of that act. The Act is dated the 16th of April last. I have observed the progress of the work now presented as a nuisance, from time to time previous to the 16th of April, but I never gave any notice verbal or written, to the Contractor in the case. I do not know that I have ever seen him. I never could get the Chinese to understand me in those cases. I believe it was because they did not choose to understand me. never served any written notices. I have no time for such writing. I have never caused any placards to be posted up warning the people concerned against infringing the Ordinance upon which I now prosecute them. I have never received any placards for the purpose, I mean prior to the promulgation of the Building Ordinance. I have received a parcel of placards in Chinese since the 29th of May, and since my former cases under this Ordinance were presented at this office, but neither in the former cases nor in the present one, have I served any written notices upon any of the offenders. I never could find them. I recollect verbally warning one man, or two men "Sum yow" or "Tum Tai," and three or four more of compound names, but all verbally. My complaint against the works of the defendant in the present case, is this, that whereas the Building Act requires that the basement walls of all tenements having more than one upper story, should be of eighteen inches in thickness; the walls in question are only of 13 inches. I further present that the flooring joists of one house cross into those of another, instead of being kept the length of a brick apart.
Cross-examined by Mr. Green, for defendant.-I am not quite sure that I have examined the external walls of the houses now presented. My impression is that the external and parti walls are of the same dimensions. I have satisfied myself that the flooring joists of the houses do actually cross each other.
I never did say, that I should not take proceedings under this Ordinance against any Chinese offender, until after it should have been promulgated in Chinese. What I stated was that I should be unwilling to take such proceedings. When I made that statement I knew that it lay in my own discretion to take such proceedings or otherwise, that is to say to a certain extent within my discretion-the Governor has the power to limit my discretion. I was aware when I made this statement what the contents of the Ordinance were. acting under my own discretion entirely. The reason I am willing to do to day, what I was not willing to do In taking those proceedings to day I am some time ago, is because of the delay on Mr. Wade's part in translating the new Ordinance. That is one reason, another is that although I told all the Government Contractors and Chinese Overseers of Works to make known the terms of the new Ordinance, and have reason to believe they have done so, still no notice has been taken by the parties infringing it; thirdly, because under section 11, the longer the offender went on, the heavier would be the penalty upon him. I formed that opinion from reading the paragraph in question, viz: paragraph 11.
W. COWPER, A. S. G.
(Signed)
The Justices assembled having by a majority of four to ene considered that works in any way commenced, prior to the date of the Ordinance, do not come under its operation-dismissed the complaint.
W. H. MITCHELL, J. P., Chairman.
(Signed)
Before the Hon. J. F. EDGER, Esq.,
GEORGE LYALL, Esq.,
WILLIAM LAMOND, Esq.
(Copy.)
R. C. ANTROBUS, Esq.,
W. H. MITCHELL, Esq.
Hongkong, 17th September, 1856.
DEAR SIR,-In compliance with your request, I herewith furnish you the particulars of my interview with Sir John Bowring, regarding the case of Cowper v. Ly Ating, under the decision or judgment wherein your houses have lately been pulled down.
On the 20th August last, being the day of the hearing of the case of Cowper v. Ly Ating, and before such hearing, I as your Attorney, waited on Sir John Bowring, and after pointing out the fact of your absence at the North, trusting to the decision previously given regarding the houses in question-of such houses being so situated that no injury could arise by same remaining in the state they were in for a short time longer-there being none but buildings of a substantial nature on the same side of the way of your being the only party interested, although the case was brought against Ly Ating (your Contractor), and the loss likely to accrue to you-and of your having no wish to evade the law in any way, requested His Excellency's consideration in the matter, and asked him to direct, either that the case might be put off until your return or that same should be stayed for a short time to enable me to address the Council. His Excellency in reply, informed me that he could not interfere with the ordinary administration of justice, or with his officials in the matter, that the laws must be enforced, and that he could not act without the co-operation of the council, but that any application made in the usual manner would be attended to, at the same time asking me what I thought would be the answer to a similar application made in England. I then attended with your counsel at the Magistracy, and after examination of a witness on behalf of Captain Cowper, and some discussion, the case (to give you a chance of making any defence in your power) was ordered to stand over until the day after the departure of the then next English mail, shortly before which your return was expected. Captain Cowper being present, on being asked whether the day would suit him, replied" As well as any other" or words to that effect. Of the subsequent proceedings you are aware.
I am, dear Sir, yours faithfully,
A. R. HUDSON, Esq.
(Signed)
H. J. TARRANT.
{ ð )
(Copy)
Hongkong, 10th October, 1856.
SIR,I beg leave with profound respect to introduce my name to you as a Partner in the Mercantile Firms of Gilman & Co., of the Ports of Canton, Foo Chow Foo, and Shanghae--and more immediately as an individual whose interests are largely embarked in House Property in this Colony.
When I state that my Partners and self draw an income from this Colony, at this moment, exceeding Three Thousand Five hundred pounds sterling a year derived from HOUSE PROPERTY, it is for the purpose of showing you a very considerable interest at stake and of serving to justify the intense anxiety which I feel upon the subject on which I have the honor to address you.
That anxiety will be at once justified when I further state that this large interest is at this moment seriously jeopardized-nay more-vitally imperilled by a certain recent legislation, emanating fron the Legislative Council of this Colony.
It is my painful duty, Sir, to have to lay before you a case, such as I venture to say, even the chequered records of that vast department over which you preside can furnish no parallel at least, for the credit of our Colonial system in the eyes of the world at large, I will venture to hope that this case stands without a precedent.
3.When I inform you that I left this Port on the 30th of July last, for the North of China, leaving in this Colony, as I then supposed, under the protection of the Imperial Laws, three newly erected Chinese Tenements, just completed and contracted for at a rental equivalent to about £18 sterling per month, and that on my return on the 11th of September following, this property had dis-appeared, not under any convulsion of nature, but under the destructive fiat of His Excellency Sir John Bowring, I shall have said enough, at least, to arrest your most
grave attention.
When I further inform you, that upon enquiring after my missing property, I was informed that it had been condemned as confiscated to the Crown, and learnt that its materials were being at that moment used in the construction of a new Government Building, I shall not merely have arrested your attention, but piqued your curiosity, still more so when I add, that I stand, thank God, not only under no attaint of treason or other crine against the State, but that I never in my life, stood charged even with a simple misdemeanor.
4. These are difficult premises, Sir, indeed, so far, they must be wholly unintelligible to you-utterly over-laying as they do the established order of things as between the state and the subject, they are true however to the letter, and the following is the key to the Enigma.
5. On the 16th of April last, the Legislative Council of this Colony passed an Act, numbered as Ordinance S of 1856, and entitled " An Ordinance for Buildings and Nuisances."
That Act, on the day it was promulgated, overtook in various stages of progress, a great number of Chinese Tenements in course of construction throughout this Colony. Many of these buildings had been commenced six months before this new Law made its appearance-several were roofed in and all had attained an advanced stage of
progress.
This Law took effect from the very day of its promulgation. It contained a certain specification of structure which was ordered to be applied to all "works" then in progress of construction!-If the "work" commenced, say in January last, happened to conform to the specification required by the Law of April, it was saved to its owner. If it happened
to deviate, in any way, it must be adjudged a "Nuisance"-condemned accordingly-and its materials confiscated to the Crown, that is to say, in the words of the Ordinance itself as quoted, taken from the owner and "vested absolutely in the Surveyor General” !!
6. As the mere phrasing of an arbitary Act, these words would in themselves be sufficiently offensive to the prejudices of a British-born subject who holds his property as his indefeasible right and its guardianship as the supreme trust and duty of the state. But these were more than mere barren words-it remained for His Excellency Governor Bowring to establish at once their import and their exact value.
7. I commenced the works which His Excellency recently caused to be destroyed in the month of March last. There was at that time no Building Act, or specification of any kind to guide me, else I should have adhered to it to the letter.
My works proceeded up to the 23rd of May, when they were challenged by the Surveyor General as being fundamentally in contravention of the new Law of April. The case was heard, on the date given, before a full Bench of Justices. I pleaded, by Counsel, that the Law was an expost facto Law and could not be complied with save by demolishing to its foundation all the work done up to that date. (You will perceive Sir, at this point, that if Sir John Bowring was determined to carry out such a Law as this, every day he allowed the work to go on, every brick he allowed to be laid without challenge after the promulgation of his Law (16th of April last) was in itself a further and a fresh oppression of the subject.) The Bench held the plea to be a good one-and decided that no work commenced before the promulgation of the Law could fairly be brought within its penal operation-and the complaint of the Surveyor General was dismissed accordingly.
I beg leave to request that Governor Bowring will lay before you all the correspondence which has passed between His Excellency and the Bench of Justices, official and non-official, upon this subject, including His Excellency's Memorandum to the Justices as an essential part of this case.
8. Upon this decision of the Bench my works proceeded up to the 3rd of June, when they were again challenged by orders of His Excellency on precisely the same grounds-on exactly the same issue as that adjudicated on the 23rd of May with the addition of what is called a "continuation" of the offence charged.
I am advised that there is some clause in the Ordinance which makes every "twelve hours continuation of any offence charged under it, as in itself a fresh and substantive offence! The Magistrates however decided that there could be no continuation" of an offence where there was no original offence proved and where the offence presented was discharged under their decision of the 23rd of May, and accordingly again dismissed the Surveyor General's action. Under protection of this two fold decision my works then proceeded, and continued up to the 30th of July. On that date I left for the North of China, and the further history of this oppression is to be understood as having occurred in my absence. I need hardly add, that I quitted this Colony, leaving my property under the protection both of the Imperial and the Local Laws.
9.-It appears, however, that under some clause in this Ordinance, the mere making of a "charge" before the Magistrate by the Surveyor General is as good as a "conviction" towards establishing the 12 hours" fresh offence ! Under this clause a fresh summons was applied for against my property and refused by the Magistrates. His Excellency the Governor, thereupon, caused a Mandainus to be sued out by the Attorney General before the Supreme Court under "the 12 hours" clause. Incredible as it may seem the mere "charge" was found to be an efficient towards re-opening the question as a "conviction" could have been, and a Mandamus was ordered to be issued accordingly.
10.-It appears that in granting the Mandamus His Honor the Chief Justice took occasion to observe
279
No comments yet.
Private notes are available after approval.