(6)
Collaterally, that, happening to have heard of the grounds of the decision arrived at by the Magistrates, in their sittings of 23rd May, and 3rd of June, he held those grounds to be a wrong construction of Ordinance No. 8 of 1856. This mere hint, it appears, was sufficient to induce the Magistrates, on proceeding to re-hear under the Mandamus, to reverse their former decision. They reversed it accordingly, and the reversal was to this effect, that certain houses in this Colony, which I had commenced to build in March, were overtaken by a new Law in the middle of April, and because they did not come up to the specification of that new Law, they were condemned and confiscated. They ceased to be my property, and became "vested in the absolute discretion of Her Majesty's Surveyor General."
11. The case, at this stage, presents two remarkable incidents.
I have already explained that I had proceeded from this Port to the North of China on the 30th July. On the 18th August following, this property, which I had left under the protection of two judicial decisions, was again attacked, as stated, under a Mandamus sued upon His Excellency's orders. That Mandamus rested upon the "12 hours continuation" clause of the Ordinance—in other words, it proceeded upon "a fresh offence."
This "fresh offence" accordingly was charged against my property, while I (the owner) was a thousand miles distant. My Builder being sued as the best substitute to be found for myself—though the man had completed his contract and been paid for it, and had no remaining interest of any kind whatsoever in the property which he was called upon to represent and defend!
12. He appeared before the Magistrates accordingly on the 18th August, and pleaded "no interest," but, as the Ordinance impleads the Contractor as well as the Owner, he was held to be a party responsible, and, by means of this suppositious representative, my property was attacked—condemned and carried away bodily by a gang of convicts under the superintendence of the Acting Surveyor General, while I, the sole and actual Owner, was not only not present to defend it, but without notice of action, summons, or other legal process of any kind whatsoever, being ever served upon me! Such is the first of these two incidents—the second is entirely in character.
13. My Solicitor, happening casually to hear of this assault upon my property, in my absence, waited upon His Excellency Sir John Bowring to plead that absence towards a suspension of proceedings. The result of this last endeavour on my behalf will sufficiently appear in his letter of 17th September, copy of which I have the honor to lay before you.
14. The following will form no inappropriate pendant to the two incidents foregoing. It appears that upon my property being condemned on the re-hearing of the 18th of August, my Counsel, Mr. Kingsmill, Barrister at Law, applied to the Magistrates for an adjournment to the 11th September ensuing, to allow time for my return to the Colony to appear and defend in person. This most reasonable request the Magistrates granted, subject to the consent of the prosecutor, the Acting Surveyor General.
That consent was not withheld—judgment was stayed, and a three weeks' grace was granted to me. But it appears that the Magistrate, in granting it, exceeded his authority—such a reprieve did not satisfy the exigencies of the Mandamus, whereupon (it would be incredible if it were not true) His Excellency, I am informed, ordered the Mandamus to be traversed and an action at law to be commenced in the Supreme Court, against his own stipendiary Magistrate, at the suit of the Crown.
15. I forbear all commentary, Sir, upon such a state of things as this!
It now only remains for me to lay before you copies of my correspondence with the local Government upon this extraordinary occasion.
By the next departure, I shall again claim the privilege of addressing you; and it is not unlikely to convey to you the sense of this community at large, respecting the character and operation of Ordinance No. 8 of 1856, and other recent acts of this Legislature. Meantime, Sir, I do myself the honor to subscribe myself, with profound respect and confidence, your most obedient Servant,
(Signed)
A. R. HUDSON.
To the Right Hon. HENRY LABOUCHERE, M.P.,
Her Majesty's Principal Secretary of State for the Colonies.
(Copy.)
Hongkong, November 12th, 1856.
SIR, I had the honor of addressing you on the 10th of last month, touching the seizure of certain property of mine in this Colony, under the operation of a retrospective law, recently passed by the local Legislature—entitled Ordinance No. 8 of 1856.
2. Since then, His Excellency the Governor of this Colony, in a public letter dated the 4th of this month, has announced that Her Majesty's Government, recognizing the experimental and undoubtedly stringent character of that Ordinance, has suspended its ratification.
3. I submit, Sir, that this fact in itself places Governor Bowring in the position of having deliberately, and against the remonstrances of my Agent, and in the face of two previous Judicial decisions in my favor, and by a forced and oppressive action on the part of the Executive Government, procured the destruction of my property, and its seizure to the uses of the State, and that under the operation of an Ordinance which he himself now proclaims to have been a mere tentative Act of Legislation, so undoubtedly "stringent" that in transmitting it for ratification, he deemed it necessary to caution the Imperial Government as to its character and tendencies!
4. His Excellency further, in the sixth paragraph of the same letter, makes the bold admission that this Ordinance is undoubtedly retrospective, and that Buildings commenced before its enactment are "liable to its penalties." This admission, at least, does credit to His Excellency's candor, however severely it may reflect upon his judgment—for you have no choice, Sir, but to accept it as a frank avowal that the Governor of this Colony has systematically violated one of the very first bases of our Legislative policy, whether at home or abroad—namely—that "our Laws shall not be retrospective," that an ex-post facto Law is not a mere abstract injustice, but an active tyranny of the grossest and most provoking character.
5. His Excellency, however, having made the admission that he procured the destruction of my houses under the penalties not merely of an ex-post facto Law, but of a merely "experimental Act of Legislation," is doubtlessly prepared to justify to Her Majesty's Government, or to the British Parliament, the seizure and appropriation of the materials of my property to the uses of the State in the construction of a Government Building.
6. I wait the further development of this question here, before troubling you with any more observations upon it, beyond taking leave with the utmost respect to direct your special attention to the following points in the history of this measure, recently elicited by the public discussion which it has provoked in the Colony.
7. It now appears that this ex-post facto Law, emanating from a closed Council Chamber, was actually in force, and its penalties operative for three days before it was even promulgated. It passed the Legislative Council on the 16th of April, but was not Gazetted as Law until the 19th. It first appeared in draft in the Government Gazette of 29th March, disappeared from the two intervening Gazettes of 5th and 12th of April, and for anything this community could possibly know to the contrary, was withdrawn altogether, when it suddenly made its appearance as Law—retrospective Law, on the 19th of April, and yet, such being the extent of publicity given to it, His Excellency is surprised that it challenged no public animadversion during what he is pleased to call its "discussion."
(7)
8. The Metropolitan Building Act 1855, upon which this experimental Ordinance professed to have been modelled, and an Act of the Indian Legislature No. 14 of 1856, framed only two months later, and expressly adjusted to the circumstances of an Asiatic population, are dated respectively four months and seventeen days after their promulgation, and even after that interval, both those Acts will be found expressly to exclude all buildings that had advanced above the level of their foundation courses from coming at all within their operation, much less being held liable to their penalties.
Is it necessary, Sir, to contrast these wise precedents with the conduct of our local executive in seeking out Buildings in progress under one Law for ex-post facto penalty under another, after making them (in the absence of the owner to defend) the subject of an unrelenting prosecution under an unconfirmed, and "experimental Act of Legislation"?
9. I beg to lay before you the further correspondence appended. Nine letters marked A to I inclusive, which have passed between the local Government and myself, since I last had the honor of addressing you, and waiting the further development of this case here, before presenting my formal claims for compensation for the outrage I have suffered. I beg to subscribe myself, Sir, with profound respect, your most obedient Servant,
To The Right Hon. HENRY LABOUCHERE, M.P.,
Her Majesty's Principal Secretary of State for the Colonies.
(Copy.)
(Signed)
A. R. HUDSON.
Hongkong, 18th October, 1856.
To The Honourable the Colonial Secretary, Hongkong.
SIR, I have to request that you will do me the honor to lay the accompanying correspondence, which has passed between Her Majesty's Surveyor General and myself since I last addressed you, before His Excellency Sir John Bowring. As I can hardly expect at His Excellency's hands copies of the letters referred to by Captain Cowper, I have only to hope that His Excellency will hold himself called upon to lay the "three or four Official letters" in question, together with copies of his replies thereto, before the Secretary of State, as an essential part of the case already submitted by me to the judgment of Her Majesty's Government, and to be further submitted, under special reference to these letters, by the next departure.
I have, moreover, the honor to request that if the two "notes" referred to in Mr. Murrow's letter are not identical with two of the three or four Official letters stated by Captain Cowper, and form a portion of any further correspondence that may have passed between His Excellency and the Surveyor General upon this subject, that such further correspondence in its complete form may be transmitted to the Secretary of State by next mail, together with this letter.—I have the honor to be, Sir, your most obedient servant,
(Signed)
A. HUDSON.
P.S. Permit me to remind you that you have omitted to acknowledge, for transmission, my letter of 10th instant to Secretary, Mr. Labouchere.
(Copy) B.
Canton, 11th October, 1856.
Captain Cowper, R.E., Acting Surveyor General, Hongkong.
SIR, I beg to hand you extract from a letter addressed to me by Mr. T. J. Murrow, and it will afford me pleasure to hear that you confirm the statement referred to. I need not say that I would be much obliged by the copies of the letters alluded to, if you feel yourself in a position to furnish them.—I am, Sir, your obedient servant,
(Signed)
A. HUDSON.
Extract from Mr. T. J. Murrow's letter to me, dated 10th October, 1856.
"The sum and substance of what Captain Cowper said to me was this: That he was as well aware as any one in the Colony of the hardship and impropriety of pulling down your houses—that there were three cases that 'he considered should not come under the Ordinance. Yours being one—that regarding these three cases, he wrote a note to the Governor, soliciting their exemption—that the reply was unfavorable—that he wrote a second note to the Governor—that the reply was peremptory, and he (Capt. C.) at once commenced with the rich man's first. 'That he had the notes to show, and that people would see who was to blame when matters come to a crisis.' I asked him if he considered this conversation private; he replied 'no, quite the reverse; he did not care who knew it.'"
(Signed)
A. HUDSON.
(Copy.) No. 23.
C.
Surveyor General's Office, Victoria, 13th October, 1856.
SIR, In acknowledging the receipt of your letter of this day's date, I have the honor to inform you that I, three or four times, did apply officially to be exonerated from summoning offenders against Ordinance 8 of 1856—that the reply was that I could not be exonerated, but I do not feel myself at liberty to furnish any one with a copy of those official letters.
I distinctly decline confirming, amending, or denying any portion of the extract of Mr. Murrow's letter to you.
I have the honor to be, Sir, your obedient humble servant,
(Signed)
WILLIAM COWPER, Acting Surveyor General.
A. R. HUDSON, Esq.
(Copy.) No. 765.
D.
Colonial Secretary's Office, Victoria, Hongkong, 22nd October, 1856.
SIR, I am directed to acknowledge your letter of 18th instant, and to forward copy of Captain Cowper's reply to the official request for his explanation of Mr. Murrow's allegation.
As regards the transmission to the Secretary of State of the letters of Captain Cowper, to which you refer, it will be seen that these, as regards Mr. Murrow's statement, have no existence, but His Excellency desires me to assure you that the present correspondence shall be forwarded to Her Majesty's Government by the next mail.
I am further instructed to inform you that Captain Cowper has officially reported the details of Ly Ating's case, and concludes his report in these words: "It is the fact that all those portions of these houses which have been taken down were built subsequently to the passing of the Ordinance and in defiance of repeated warnings."
I have to apologize for my neglect in not having acknowledged before this your letter of the 10th instant, with its enclosures, which was duly forwarded as you desired to the Secretary of State. I have the honor to be, Sir, your most obedient servant,
(Signed)
W. J. MERCER, Colonial Secretary.
289
(6)
collaterally, that, happening to have heard of the grounds of the decision arrived at by the Magistrates, in their sittings of 23rd May, and 3rd of June, he held those grounds to be a wrong construction of Ordinance No. 8 of 1856 This mere hint it appears was sufficient to induce the Magistrates, on proceeding to re-hear under the Mandamus, to reverse their former decision. They re-versed it accordingly, and the re-versal was to this effect, that certain houses in this Colony, which I had commenced to build in March, were overtaken by a new Law in the middle of April, and because they did not come up to the specification of that new Law they were condemned and confiscated, They ceased to be my property, and became "vested in the absolute discretion of Her Majesty's Surveyor General.
11. The case, at this stage, presents two remarkable incidents.
I have already explained that I had proceeded from this Port to the North of China on the 30th July. On the 18th August following, this property which I had left, under the protection of two judicial decisions, was again attacked, as stated, under a Mandamus sued upon His Excellency's orders. That Mandamus rested upon the "12 hours continuation" clause of the Ordinance-in other words it proceeded upon " a fresh offence."
This "fresh offence" accordingly was charged against my property, while I (the owner) was a thousand miles distant. My Builder being sued as the best substitute to be found for myself-though the man had completed his contract and been paid for it, and had no remaining interest of any kind whatsoever in the property which he was called upon to represent and defend!
12. He appeared before the Magistrates accordingly on the 18th August, and pleaded "no interest" but, as the Ordinance impleads the Contractor as well as the Owner, he was held to be a party responsible, and, by means of this suppositious representative, my property was attacked-condemned and carried away bodily by a gang of convicts under the superintendance of the Acting Surveyor General, while I, the sole and actual Owner was not only not present to defend it, but without notice of action, summons, or other legal process of any kind whatsoever, being ever served upon me! Such is the first of these two incidents-the second is entirely in character.
13.-My Solicitor happening casually to hear of this assault upon my property, in my absence, waited upon His Excellency Sir John Bowring to plead that absence towards a suspension of proceedings. The result of this last endeavour on my behalf, will sufficiently appear his letter of 17th September, copy of which I have the
honor to lay before you.
14.-The following will form no inappropriate pendant to the two incidents foregoing. It appears that upon my property being condemned on the re-hearing of the 18th of August, my Counsel, Mr. Kingsmill, Barrister at Law, applied to the Magistrates for an adjournment to the 11th September ensuing, to allow time for my return to the Colony to appear and defend in person. This most reasonable request the Magistrates granted, subject to the consent of the prosecutor the Acting Surveyor General.
That consent was not with-held-judgment was stayed, and a three weeks grace was granted to me. But it appears that the Magistrate in granting it, exceeded his authority-such a repreive did not satisfy the exigencies of the Mandamus, whereupon, (it would be incredible if it were not true) His Excellency, I am informed, ordered the Mandamus to be traversed and an action at law to be commenced in the Supreme Court, against his own stipendiary Magistrate, at the suit of the Crown.
15.-I forbear all commentary Sir, upon such a state of things as this!
It now only remains for me to lay before you copies of my correspondence with the local Government upon this extraordinary occasion.
By the next departure I shall again claim the privilege of addressing you; and it is not unlikely to convey to you the sense of this community at large, respecting the character and operation of Ordinance No. 8 of 1856, and other recent acts of this Legislature.-Meantime, Sir, I do myself the honor to subscribe myself, with profound respect and confidence, your most obedient Servant,
(Signed)
To the Right Hon. HENRY LABOUCHERE, M.P.,
Her Majesty's Principal Secretary of State for the Colonies.
(Copy.)
A. R. HUDSON.
Hongkong, November 12th, 1856.
SIR, I had the honor of addressing you on the 10th of last month, touching the seizure of certain property of mine in this Colony, under the operation of a retrospective law, recently, passed by the local Legislature-entitled Ordinance No. 8. of1856.
2. Since then His Excellency the Governor of this Colony, in a public letter dated the 4th of this month, has announced that Her Majesty's Government, recognizing the experimental and undoubtedly stringent character of that Ordinance, has suspended its ratification.
3.-I submit, Sir, that this fact in itself places Governor Bowring in the position of having deliberately, and against the remonstrances of my Agent and in the face of two previous Judicial decisions in my favor, and by a forced and oppressive action on the part of the Executive Government procured the destruction of my property, and its seizure to the uses of the State, and that under the operation of an Ordinance which he himself now proclaims to have been a mere tentative Act of Legislation, so undoubtedly "stringent" that in transmitting it for ratification he deemed it necessary to caution the Imperial Government as to its character and tendencies!
4. His Excellency further in the sixth paragraph of the same letter makes the bold admission that this Ordinance is undoubtedly retrospective and that Buildings commenced before its enactment are "liable to its penalties." This admission at least does credit to His Excellency's candor, however severely it may reflect upon his judgment--for you have no choice Sir, but to accept it as a frank avowal that the Governor of this Colony has systematically violated one of the very first bases of our Legislative policy, whether at home or abroad-namely― that "our Laws shall not be retrospective," that an expost facto Law, is not a mere abstract in justice but an active tyranny of the grossest and most provoking character.
5. His Excellency, however, having made the admission that he procured the destruction of my houses, under the penalties not merely of an expost facto Law, but of a merely "experimental Act of Legislation," is doubtlessly prepared to justify to Her Majesty's Government, or to the British Parliament, the seizure and appro- priation of the materials" of my property to the uses of the State in the construction of a Government Building.
6-I wait the further development of this question here, before troubling you with any more observations upon it, beyond taking leave with the utmost respect to direct your special attention to the following points in the history of this measure, recently elicited, by the public discussion which it has provoked in the Colony.
7.-It now appears that this ex-post facto Law emanating from a closed Council Chamber, was actually in force, and its penalties operative for three days before it was even promulgated. It passed the Legislative Council on the 16th of April, but was not Gazetted as Law until the 19th. It first appeared in draft in the Government
(7)
Gazette of 29th March, disappeared from the two intervening Gazetts of 5th and 12th of April, and for anything this community could possibly know to the contrary was withdrawn altogether, when it suddenly made its appearance as Law-retrospective Law, on the 19th of April, and yet such being the extent of publicity given to it, His Excellency is surprised that it challenged no public animadversion during what he is pleased to call its discussion."
8. The Metropolitan Building Act 1855, upon which this experimental Ordinance professed to have been modelled, and an Act of the Indian Legislative No. 14 of 1856 framed only two months later, and expressly adjusted to the circumstances of an Asiatic population, are dated respectively four months and seventeen days after their pro- muglation and even after that interval both those Acts will be found expressly to exclude all buildings that had advanced above the level of their foundation courses from coming at all within their operation much less being held liable to their penalties."
Is it necessary Sir, to contrast these wise precedents with the conduct of our local executive in seeking out Buildings in progress under one Law for expost facto penalty under another, after making them (in the absence of the owner to defend) the subject of an unrelenting prosecution under an unconfirmed, and "experimental Act of Legislation."
9.I beg to lay before you the further correspondence appended. Nine letters marked A to I inclusive, which has passed between the local Government and myself, since I last had the honor of addressing you and waiting the further developemeut of this case here, before presenting my formal claims for compensation for the outrage I have suffered. I beg to subscribe myself, Sir, with profound respect, your most obedient Servant,
To The Right Hon. HENRY LABOUCHERE, M.P.,
Her Majesty's Principal Secretary of State for the Colonies.
(Copy.) A.
(Signed)
A. R. HUDSON.
Hongkong, 18th October, 1856.
To The Honourable the Colonial Secretary, Hongkong.
SIR, I have to request that you will do me the honor to lay the accompanying correspondence which has passed between Her Majesty's Surveyor General and myself since I last addressed you, before His Excellency Sir John Bowring. As I can hardly expect at His Excellency's hands copies of the letters referred to by Captain Cowper. I have only to hope that His Excellency will hold himself called upon to lay the "three or four Official letters" in question, together with copies of his replies thereto, before the Secretary of State, as an essential part of the case already submitted me, to the judgment of Her Majesty's Government, and to be further submitted, under special reference to these letters, by the next departure.
I have moreover, the honor to request that if the two "notes" referred to in Mr. Murrow's letter are notidentical with two of the three or four Official letters stated by Captain Cowper, and form a portion of any further correspondence that may have passed between His Excellency and the Surveyor General upon this subject, that such further corres- pondence in its complete form may be transmitted to the Secretary of State by next mail together with this letter.—I have the honor to be, Sir, your most obedient servant,
A. HUDSON.
(Signed)
P.S. Permit me to remind you that you have omitted to acknowledge, for transmission, my letter of 10th instant to Secretary, Mr.Labouchere
(Copy) B.
Canton, 11th October, 1856.
Captain Cowper, R.E., Acting Surveyor General, Hongkong.
SIR, I beg to hand you extract from a letter addressed to me by Mr. T. J. Murrow, and it will afford me pleasure to hear that you confirm the statement referred to. I need not say that I would be much obliged by the copies of the letters alluded to, if you feel yourself in a position to furnish them.-I am, Sir, your obedient servant,
(Signed)
A. HUDSON. Extract from Mr. T. J. Murrow's letter to me, dated 10th October, 1856.
"The sum and substance of what Captain Comper said to me was this" That he was as well aware as any one in the Colony of the hardship and impropriety of pulling down your houses-that there were three cases that "he considered should not come under the Ordinance. Yours being one-that regarding these three cases he wrote a note to the Governor, soliciting their exemption-that the reply was unfavourable that he wrote a second note "to the Governor, that the reply was peremptory, and he (Capt. C.) at once commenced with the rich man's first. "That he had the notes to show, and that people would see who was to blame when matters come to a crisis. I "asked him if he considered this conversation private he replied no, quite the reverse he did not care who knero
If you are going to make any use of this, kindly send a copy to Captain Cowper.”—(True Extract).
A. HUDSON.
" it.
(Signed) (Copy.) No. 23. C.
Surveyor General's Office, Victoria, 13th October, 1856.
SIR, In acknowledging the receipt of your letter of this days date, I have the honor to inform you that I, three or four times, did apply officially, to be exonerated from summoning offenders against Ordinance 8 of 1856, that the reply was that I could not be exonerated, but I do not feel myself at liberty to furnish any one with a copy of those official letters.
I distinctly decline confirming, amending, or denying any portion of the extract of Mr. Murrows letter to you.-
I have the honor to be, Sir, your rbedient humble servant, A. R. HUDSON, Esq.
(Signed) WILLIAM COWPER, Acting Surveyor General. (Copy.) No. 765, D.
Colonial Secretary's Office, Victoria, Hongkong, 22nd October, 1856. SIR,I am directed to acknowledge your letter of 18th instant, and to forward copy of Captain Cowper's reply to the official request for his explanation of Mr. Murrow's allegation.
As regards the transmission to the Secretary of State of the letters of Captain Cowper, to which you refer it, will be seen that these as regards Mr. Murrow's statement have no existance, but His Excellency desires me to assure you that the present correspondence shall be forwarded to Her Majesty's Government by the next mail.
I am further instructed to inform you that Captain Cowper has officially reported the details of Ly Ating's case, and concludes his report in these words" it is the fact that all those portions of these houses which have been taken down "were built subsequently to the passing of the Ordinance and in defiance of repeated warnings."
I have to apologize for my neglect in not having acknowledged before this your letter of the 10th instant, with its enclosures which was duly forwarded as you desired to the Secretary of State. I have the honor to be, Sir, your most obedient servant,
(Signed) W. J. MERCER, Colonial Secretary.
289
{
No comments yet.
Private notes are available after approval.