CO129-076 - Individuals - 1859 — Page 285

(8)

(Copy.) No. 79. E.

Surveyor General's Office, Victoria, 22nd October, 1850.

SIR,

I have the honor to return certain letters enclosed in your communication of yesterday's date, and having directed my attention to the extract from Mr. Murrow's letter to Mr. Hudson.

I beg to apprise you that to the best of my recollection, I told Mr. Murrow that as the Magistrates either could not or would not understand the plain terms of the Ordinance No. 8 of 1856, I had applied officially to be examined from Exeol suminoning any other offenders, but I cannot explain the extract of Mr. Murrow's letter.-I have the honor to be, Sir, your obedient servant,

WILLIAM COWPER, Acting Surveyor General.

(True Copy) W. T. Mercer, Colonial Secretary.

(Signed)

The Honorable W. T. MERCER, Esq., Colonial Secretary.

(Signed)

(Copy.) F.

Canton, 24th October, 1856.

To the Honorable The Colonial Secretary, Hongkong.

SIR,

I have the honor to acknowledge your letter No.765 of 22nd instant, (delivered at my house at Hongkong on 23rd) covering copy of Captain Cowper's reply to the official request for his explanation of Mr. Murrow's allegation, I observe that the two notes referred to in Mr. Murrow's statement as having passed between Captain Cowper and His Excellency the Governor "have no existence," as a separate or supplementary correspondence, and conclude accordingly that they are identical with two of the "three or four official letters" stated in Captain Cowper's letter to my address No. 23 of 13th October. These official letters, however, the existence of which is confirmed, His Excellency will no doubt deem it but proper to transmit amongst his next despatch to Her Majesty's Government.

I note that Captain Cowper has officially reported the details of Ly Ating's case, and observe the concluding words of his report. Though I might admit both the Surveyor General's fact, and his conclusion, without my admission in the slightest degree affecting the gravamen of my complaint, yet I admit neither.

Excellency, with all respect, that the defiance of repeated warnings lies exactly the other way. In "defiance," of I dispute both and have to remind His two Judicial decisions-Solemn warnings to the Executive Government-Captain Cowper a third time attacked my property, in my absence, and without notice of action served upon me, and did so as is alleged under the "peremptory" orders of His Excellency himself. The allegation upon which this grave statement is founded, Captain Cowper neither admits nor denies, in any degree, and declares himself unable to "explain."

In conclusion I would beg leave to suggest to His Excellency the expediency of furnishing me with a Captain Cowper's official report in full, upon Ly Ating's case, towards enabling me to challenge such "facts" as I copy of may, and rebut them if I can, and thus lay as complete a case as possible before Her Majesty's Government. Against which on the other hand, I offer to submit myself to answer any queries essentially connected with this case, which His Excellency may deem necessary to its complete elucidation, for the better information of the Secretary of State.

I have the honor to be, Sir, your obedient servant,

A. HUDSON.

Copy. No. 772. G.

(Signed)

Colonial Secretary's Office, Victoria, Hongkong, 25th October, 1856.

SIR,-In reply to your letter of yesterday, received this day, I beg to state that the phraseology of my letter of the 22nd was not meant to bear the interpretation you put upon it, that it was framed so as to be as little offensive as possible towards your informant Mr. Murrow, but that Captain Cowper's explanation shows him to have made no such statement as that which Mr. Murrow alleges.-I have the honor to be, Sir, your most obedient servant,

W. T. MERCER, Colonial Secretary.

A. R. HUDSON, Esq.

(Signed)

(Copy.) H.

Canton, 26th October, 1856.

The Honorable The Colonial Secretary, Hongkong,

SIR,

I have the honor to acknowledge the receipt of your letter No. 772, of 25th instant, which I must confess filled me with unbounded surprise.

However as any controversy upon it could lead to no successful result here, I merely beg leave to intimate to you that it is my intention to apply to Mr. Murrow to verify his statement upon oath before a Magistrate and with Captain Cowper's affirmation under his hand that he does not deny any portion" of that statement, and again, that he is "unable to explain it." I shall request His Excellency to transmit the affidavit to Her Majesty's Government by next mail.

Permit me to remind you that you have not replied to the proposals of mine of 24th instant. As a man of business His Excellency's assent or refusal would be satisfactory to me, as more in accordance with our matter of fact correspondence. Trusting that I shall have no immediate occasion to trouble you further.I have the honour to be, Sir, your obedient servant,

(Signed) A. HUDSON.

Copy, No. 788. I.

Colonial Secretary's Office, Victoria, Hongkong, 29th October, 1856.

SIR,—I have the honor to acknowledge your letter of 26th instant, received this morning.

As regards the proposal in your letter of 24th instant. to which you now allude as having received no reply, I am directed to observe that His Excellency presumes this to refer to your application for Captain Cowper's Official report in Ly Ating's case, which report already forms enclosure in a dispatch to the Secretary of State for the Colonies, and cannot in accordance with the rules of the service be furnished to yourself.-I have the honor to be Sir, your most obedient servant,

A. R. HUDSON, Esq.

(Signed)

W. T. MERCER, Colonial Secretary.

Hongkong, 16th March, 1857.

SIR,-I had the honor to receive on the 7th ultimo, through His Excellency, Sir John Bowring, the accompanying intimation of your opinion upon the case of confiscation of property submitted to you in my memorials, dated respectively the 10th of October, and 1st November last year.

I should have accepted the reply thus communicated as the final decision of Her Majesty's Government upon the question, had I not found that you have conceived an erroneous impression which has no doubt entered into and governed your judgment of the case.

You intimate to me that if I thought proper to continue my works, relying on the decision of the Inferior Court in my favour, I must myself bear the consequences of that decision having proved erroneous.

3.-In explanation Sir, I have the honor to inform you that the inferior Court thus indicated, is not only the identical Court provided by the Ordinance itself, and charged with this special adjudication, but it is the only Court. This leads inevitably to the following conclusions.

(9)

First. I could hardly be expected to appeal against the decision of the appointed Court, when that decision was in my own favor.

Secondly. If the decision had been the other way, I have it under the hand of Governor Bowring himself, in a public letter to the Bench of Magistrates, that I had no appeal to a higher Court under writ of Certiorari the Crown itself having no benefit of appeal, so jealously was the inferior Court invested with exclusive jurisdiction over all issues under the Ordinance in question; and

Finally. I cannot reconcile it that Her Majesty's Government should thus ordain a Court with these absolute and peremptory powers over the property of Her Majesty's subjects within this Colony, and subsequently nullify its action.

The following brief resume will serve to recall the leading facts of this case.

4. My works were first impeached by summons before the appointed Court on the 23rd of May, 1856, and a decision which I certainly ventured to "rely upon," was pronounced in my favor.

5.They were impeached a second time before the same Tribunal (being the only Tribunal) on the 3rd June following, when a second decision was pronounced in my favor, upon which I again ventured "to rely" and continued my works accordingly.

6. They were impeached a third time, not until the 20th of August following, the executive of this Colony thus allowing me a most injurious license of time to complete them! When a stipendiary Magistrate (not a Bench of Magistrates as before) stated in open Court that he felt himself bound to defer to some indirect opinion of His Honor the Chief Justice (though not judicially pronounced) to the effect that the former decisions in my favor were contrary to Ordinance No. 8 of 1856, condemned my property and adjudged its absolute confiscation to the Crown.

7. Should it occur to you Sir, that at this last stage at least, under an adverse decision, I might have appealed to a superior Court. I point with all respect again to Sir John Bowring's recorded opinion founded upon the advice of the Honorable Attorney General, that I had no recourse of appeal.

I may mention here, that upon receipt of His Excellency's letter of 22nd September, 1856, suggesting an action in the Supreme Court against the late Surveyor General for any trespass I had to complain of, I took legal advice upon the point which was to this effect, and which I now submit to the Law Officers of the Crown, viz: that the warrant of the inferior Court under section 17 of Ordinance No. 8 of 1856, in conjunction with section 10 of Ordinance No. 12 of 1856, did so completely place my property at the "absolute discretion" of the Surveyor General that no action could be sustained against him.

8. This brief history of the case would seem to present the following extraordinary features. Firstly, That the warrant of the inferior Court, which I am informed I should not have "relied upon" was sufficient to destroy my property and to confiscate its materials to the use of the Crown.

Secondly.—Sir John Bowring's recorded memorandum assures me upon the opinion of Her Majesty's Attorney General, that the Crown itself has no right of appeal against the decree of the inferior Court, and

Lastly. Even if an appeal to a higher Court did lie, I submit it to the judgment of the Law Officers of the Crown, whether such an appeal would have afforded me any redress in the premises?

9.—Such are the absolute powers of the inferior Court in question, the constitution of which you cannot have been informed of when you caused it to be intimated to me that I should not have relied upon it.

10. Being altogether ignorant of the representations made to you regarding the substantial construction of the Building destroyed. I beg leave with all respect to allege as follows-

First. The three tenements destroyed, stood within my own compound, detached from all other buildings whatever, and all fire connection was thus cut off.

Secondly. They were commenced and reared as high as the first story, at a time when there was no Building Ordinance amongst our local laws and at a time when I had no scale or specification of any kind to guide me. Yet that in the absence of all control of Law, I reared buildings of a substantial and solid construction, the following parallel will sufficiently show Construction required by the Metropolitan Building Act, 1855, for houses of dimensions corresponding to my tenements destroyed (see first schedule of the Act, table 2, division, 8.)

Actual Scale of my Tenements Destroyed.

Walls of Upper Story

8 inches

Ditto of Second Story

9

Basement Story.

13

Metropolitan Specification.

Walls of Upper Story

8 3/4 inches

Ditto of Second Story

9

Ditto of Basement Story

18

Thus my scale of building, without any sort of specification before me, or any local law to rule me, was no less than 20 to 13 per cent. higher than the requirements of the corresponding class of houses in the City of London! The materials being precisely the same, viz., brick and stone.

I am willing to rest any claim for compensation upon my substantiation of this fact, and submit with all deference, that a scale of construction which is held sufficient for the Metropolis of the world, was good enough for Hongkong in the absence of all prescribed scale.

It is not out of place to observe that the still higher scale laid down in the Building Act of this Colony was prescribed not by an experienced Architect or Surveyor, but by a Military Engineer, while no evidence as to suitableness upon this or any other point of this assurance was taken a closed Legislature.

11.-I now approach a point in this case Sir, to which I would entreat your most grave attention.

12.-I am informed by your order that you cannot suppose from the papers laid before you that my works were so far proceeded with, on the occasion of the first interruption as to have rendered that interruption of material consequence to me.

I am willing to accept the late Surveyor General's own showing as to the level which my works had attained, on occasion of the first interruption. According to his account they had reached that level to which he afterwards cut them down--in other words, they were reared to the height of the bressummers over the front doorways, which he left undemolished and which is the level of the first story.

By "first interruption" I presume is meant the first summons citing me to appear before the appointed Court on 23rd of May. For that summons on that date, was the first notice of any kind that I received in the matter, as Captain Cowper himself admitted upon oath, on the investigation of the case as per copy of Depositions appended.

Now, Sir, to this point I would humbly crave your attention. So far from this "first interruption" not making any material consequence to me, it would, if the first decision had been adverse (as witness the result of the final decision!) have worked the absolute forfeiture of every plank and brick and boulder that had entered into my buildings up to that date!

You are not perhaps aware, that the offence charged against me, in the first, second, and third summonses was this, my buildings, in progress, were not in conformity with a certain specification laid down in the new Ordinance.

My defence held good by a full Bench of Magistrates, on the two first occasions was that I could not be held accountable for non-conformity to a specification which was not before me-which was not in existence at the time.

On the third occasion, this reasonable view of the new law was reversed and every item of my materials was declared as placed at the absolute discretion of the Surveyor General.

How that discretion was exercised, and how little power I had from first to last, to rely upon the forbearance of the Government of this Colony is already known to you.

But what I seek particularly to impress upon you, Sir, is this-that at any stage of my works, whether on occasion of the first interruption or subsequently...