make it inoperative as was suggested during the argument. Because ecording to the view I take, the words principally operative in section 2 are incorporated in Ordinance 9 of 1857, which alone is recited. This point was not, however, raised at the trial. An Order in Council differs in many important points from a conviction, and from an order of magistrates. It generally only recites the Act or Acts of Parliament under which it is issued, and the powers thereby con- ferred are expressed in the shape of an order. If it does not exceed those powers it is good, and that is all the court has to look to, and I do not think it would be held to be invalid because it omitted to recite any one Aot or Ordinance under which it issned if it is within the powers conferred. I am, for these reasons, of opinion that the conviction should be confirmed.
The Chief Justice delivered the following judgment--This prisoner was tried at the Criminal Sessions for July, 1877, on an inforna- tion which charged him that having been by an Order of the Governor in Council dated the 18th April, 1877, made under the provisions of Ordi- nance No. 9 of 1857, prohibited from residing within this colony for five years from the 25th April, 1977, he, on the 12th July, 1877, was un- lawfully at large within this colony. On his trial the prisoner pleaded not guilty. The court on his behalf objected that the order of the 18th of April by prohibiting auch residence for five years to commence a day later than the day of the date of the prohibition, ie, seven days later, might be informal, in other words that as to the order hearing date 18th April, 1877, the extreme limit of the Governor's power by that order was to prohibit residence until the 18th April, 1882, whereas the words of the order extended the prohibition until the 25th April 1882. This was the sole question then raised. The evidence on the trial was the production of the order of the 18th April, 1877, that the prisoner was found in the colony on the 12th July, and that the prisoner was the person named in the order of the 18th April, 1877. He was found guilty, but the point raised was reserved for argument The Attorney-Goneral was heard for the Crown on the 26th of July. No one appeared for the prisoner. The learned Attorney-Genoral did not ! deny that if the order was had it was bad in toto: but he submitted that although the order only professed to take effect under the ordinance No.: of 1857, which enacts that "His Excellency in Council may by order under his hand prohibit any person not being a natural born or naturalized subject of Her Majesty from residing or being within this Colony during any space of time not exceeding 5 years," with an addition of power to deport in case of non-obedience, &c. Yet that: section 2 of No. 4 of 1871, to which he thou for the first time referred. expunged that added power of deportation and directed the in- sertion in lieu thereof of the following words --- "And may by the same or any subsequent order, under his hand fix the time for the departure of such person from the colony." The learned Attorney-General submitted that the two clauses must be read together, and submitted-quoting Sir B. Maxwell on Statutes, page 2-that the most important rule of construction is that it is to be asaumed that the words and phrases are used in their popular meaning, and that the phrases and sentences are to be construed according to the rules of graminar. This is unquestionably a rule of construction. He argued that, reading the provisions in the two ordinances together, the Governor had the power to make an order prohibiting residence, such residence to com- mence at a date later than the date of the order. He admitted that the commencement of that date might be seven years afterwards if the Go- vernor so pleased; he admitted that that might be au absurd power to give to a Governor, but he said so it was.
He contended that the order was not a conviction, and that it was not subject to the rules affecting convictions. He contended that the Court being bound to construe the order according to the rule he had quoted from Maxwell the meaning he attached was the proper sud grammatical meaning. Contining myself at pre Rent to the objection raised, it seems to me that when an order quotes a precise provision as its authority the validity of the order rests solely on the authority which that particular quoted pro- vision gives; that to vary sec. 7in that ordinanco and that to import into it the words of sec. 2 of 4 of 1871 it was necessary to have added in the order of the Governor a reference to that subsequent ordinance of 1871 or & reference to "all other powers" as well as to the ordinance of 1857. The faultiness in this order consists in this, that in addition to a reference to this ordinance words to the effect and in pursuance of all other powers in me vested" were not inserted according to what I believe has been the general practice in all orders everywhere. Taken by itself the
clanse in the ordinance of 1857 is imperfect, and like anumber of other statutes, lengthy though they be, it requiros for the expression of its fall meaning the addition of some. not expressed words. "During any space of time not exceeding five years" gives the duration of the term and the termination of that term, but the sentence in the ordinance is imperfect, and it must be supple- mented by stating when the term is to com- Mence. In the absence of express words the necessary addition by implication seems to be "from the date of the order." Again, assuming that the clause and may fix the time for the! departure of such person from the Colony" to be added from the Ordinance of 1871. These words are not equivalent to "may fix the time when the said prohibition shall commence " which words are necessary to fix the date from which the prohibition of the extreme limit of five years is to ran, I drew the learned Attorney-General's attention to 3. clause in Maxwell on Statutes, page 270, lay- ing down a proposition universally admitted that the legislature in granting away in effect the ordinary rights of the subject must be under. stood as granting no more than what passes by The necessary and unavoidable construction. learned Attorney-General said this rule of con- struction did not apply to an ordinance autho rising such an order as this. It seems to me that this rule especially applies. This ordinance of 1857 confers the most extraordinary powers "granting away the ordinary rights of the sub- ject" I over saw conferred by any enactment any. where. It was passed in season of fearful panic, immediately after the taking of Canton, when an attempt at general poisoning was in part success- ful and the Chinese were suspected of conspiracy to sack Hongkong. It was a time of war. Still the power was excessive even then. It authorized the Governor without any cause whatever to prohibit any person not being a natural born or naturalized British subject from residing within the Colony for a period not exceeding five years. So that according to the construction put on that ordinance His Excelleney could at any time by the Attorney-General without cause even now expel every American and Germau and indeed every other alien from the Colony. The maxim which I quoted from Sir Benso Maxwell is with more point expressed in the 3rd of the rules to bo observed in the constraction of Statutes by Mr. Justice Blackstone (1, Blackstone Com., p. 88, Kerr's Ed. 71) "Penal statutes
He must he construed strictly." illustrates this rule by examples in which the courts have absurdly limited the meaning of the words of penal statutes. I can find no case in which the courts have said as learned Attorney- General has said, it may be absurd, but such is the meaning in sustaining a penal statute. The rale seems to me to be that the courts are astinte to restrain the operation of a penal statute, never to give effect to one. On the whole, giving effect to both clauses, to that in the Ordinance of 1857 and to the clause from the Ordinance of 1871 amalgamated in it, I read them thus ---- under clause one the term of prohibition of re. sidence is not to exceed five years from the date of the order, and under clause two the Govenor may fix any future day for the actual departure from the Colony of the man prohibited to reside, but that in so doing he was to take care that the total limit of prohibition to reside does not exceed five years from the date of the order. Thus full effect is given to both clauses;į no other construction does this. The more minute examination of this order in the course of this argument has raised another question, viz., whether this order was not in the nature of a conviction, and whether it was not bad for not setting out the charge in this case that the man was an alien, and for not setting. oat as the ground for the order the adjudication | by some competent tribunal, or at least by His Excellency bimself, that the person prohibited to reside within the colony was an alien. The At torney-General contended that this order was not a conviction. In that contention he is right. It was an order partaking of the character of a conviction precisely as in the case of the King v. the Justice of Cheshire, . B. and A. 539. It is therefore incapable of amendment. Being an order, the evidence on which the order. is made need not be set out; though it was said in that case that this must be done in a convic- tion, bat according to Justice Burn's Orders of Justices 1,109, it is necessary in every order that! the adjudication on which the order is made must be stated, ie., in this caso that the expelled not a natural born or naturalized subject, and it follows as a condition to the validity of this order that it must state that that fact has been found at least quasi-judicially by the Go- vernor. The authority to prohibit residence arises only on statements in the order. Now, for
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