charter of this colony. The charter while conferring legislative power on the colony reserved to Her Majesty the paramount power of legislating by Her own Council and reserved the power of disallowing any Ordinance." The Praya Reclamation Ordinance was the one his Lordship was referring to. And the present Chief Justice, Sir Fielding Clarke, then Puisne Judge, says in a judgment:-"It is suggested that the Ordinance is ultra vires because it affects the position of a Crown lessee. It is said that the Crown having virtually all the legislative power in its hands cannot by act of the Legislature derogate from the lease which it has granted in its executive capacity." He then points out the inconveniences which would follow such a doctrine, and continues-"It is necessary to go beyond the argumentum ab inconvenienti and see what the powers expressly conferred on the Legislature are, and whether there is any authority for limiting them in the way suggested. In the charter of the colony Her Majesty in the exercise of her unquestioned prerogative has provided that the Governor by and with the advice and consent of the Legislative Council may make laws for the peace, order, and good Government of the colony, and has reserved to herself only the power of disallowance of laws so made and power of independent legislation with the advice and consent of the Privy Council. Besides the two restrictions expressly reserved in the charter there is also the restrictive power of the Imperial Parliament, the statutes of which may extend to all or any part of Her Majesty's dominions. It is clear that if no other restrictions are to be imported into the powers of the Hongkong Legislature, it would be for that body and not for the Court "to decide whether a particular Ordinance advances the objects of the peace, order, and good Government of the colony." Our local Courts, sir, therefore, following the home decisions, have decided that an Ordinance of the Hongkong Legislative Council, subject to the confirmation by Her Majesty, has effect, within its jurisdiction, similar to that of an Act of the English Parliament. It would seem to follow that no action could be sustained for altering or diminishing a man's right, and it would also follow that if such an Ordinance takes away rights previously existing action would be brought to enforce those rights which since the passing of such Ordinance have ceased to exist." I do not think that it is necessary to say more because though armed with such power it would not become this Council to pass any Ordinance which would be unjust or unfair to any one. Therefore it resolves itself into a question of whether it would be unfair and unjust to the Opium Farmer to pass this Ordinance. As to another question, the question of damages, the plaintiff must show that his legal rights-what is called his jus-have been infringed. If his rights alter by an act of the Legislature, and his rights do not remain the same, he could not bring an action against the Government because the law had altered his right. I do not wish to bring up any matter of that kind, however. I can only say that I have carried out the instructions given me to the best of my ability to draft a certain Ordinance amending another, and I may point out that I cannot see that any legitimate rights of the Opium Farmer are infringed by the passing of this Ordinance. I cannot believe that he has an absolute right to have all opium which is forfeited delivered to him, and I may point out again that by sections 38 and 39, as the law at present stands, any forfeiture of opium which is not on the ship's manifest can be disposed of as the Governor in Council may direct, and, therefore, I take it, may be sold. It might become another question as to whether the buyer from the Government who sold it again would be justified; he might or he might not. If the Governor in Council directs that it should be sold, I take it that the law allows it. I do not wish to weary hon. members, and I will therefore, now move the second reading of the Bill, and after the remarks I have made and the spirit I have shown to meet fair objections in Committee, I trust that there will be no objection to the second reading of this Bill, and that all points of difficulty may be discussed, section by section, when we arrive at the Committee stage.
Hon. E. B. BELL—Your Excellency, it seems to me that the whole question now before the Council lies in a nutshell. Is it right, is it just, to allow the interests of one individual to override the interests of an aggregate of individuals who are mostly all British subjects and shareholders in public companies running steamers between here and Canton and Macao? So far, to my mind, the Opium Farmer, through his counsel, has not made out a case for himself; but assuming for the sake of argument that he has done so to the satisfaction of my hon. friends opposite, his grievance can only be a suppositious and imaginary one.
He may or may not make more money under the law in force then under the Bill which is in embryo, but, sir, on the other hand, these Companies, whose property is tangible and whose property is now in existence, run the risk of having their vessels seized and confiscated by the Chinese Government any day without their having first received a moment's notice. As I understand it this Bill is to make all opium found on board, but not on the manifest of the ship, subject to seizure and forfeiture, whereas under the law at present in force opium that is covered by a certificate from the Opium Farmer is not subject to such seizure. May I ask, sir, what legislature in the world would stand by and see the mere interest of a private individual override and predominate over the laws, regulations, and customs of public Companies and the Imperial Maritime Customs? Consequently, sir, under these circumstances, I think that the Council would be doing justice by allowing this Bill to pass the second reading and Committee stage to-day, so that property now extant may not be jeopardised. With these remarks I beg to second the motion.
Hon. HO KAI—I do not think that any discussion conducted in this Council to-day would be very much good, and I did not intend to speak on the second reading of this Bill. On the last occasion I opposed the first reading for the purpose of protesting against the attempt, or what I considered to be an attempt, to rush the Bill through the Council, and as a protest also against the first and second reading coming so closely together, and furthermore as a protest against legislation being forced upon us by the Secretary of State—legislation ordered from home and which must be passed through this Council whether the unofficial members consent to it or not. Of course, in some cases, and possibly in this case, there are unofficial members who for certain reasons, or for personal interest, or whatever it may be—or public interest—may agree with the Government that this Ordinance should be passed, and passed immediately, but if any Ordinance, similar in nature or dissimilar to this, is against what we consider to be the public interest, and the Government is to rush it through in the same way, what would the unofficial members say? So, in principle, I say I am opposed to any law whatever that is rushed through the Council, and also I am opposed to any law being carried through by force and by an order from home. Now, as regards this present Bill, I think, so far as I can see, the Opium Farmers have not shown by their counsel to this Council any cogent reason, or any very strong reason, that the Bill should not become law. It has not been shown, to my mind, that they will suffer any damages to any great extent. But I can see, although the learned counsel did not expressly make the point, I can see that they would lose a very great deal if this Ordinance were passed. I believe they would not get anything like one half of their income if this law were passed. But at the same time, mind you, they have not expressed the reason and they have not shown by their counsel how they will lose it. I can, however, imagine it, and I believe that those who are acquainted with the system of farming in the Colony from the very beginning, and who have watched the process of letting out the Farm, the history of the Farm, as I have done for twelve or thirteen years, will understand also that by passing this law the value of the Opium Farm would not be more than half its present value. Now, of course, as hon. members of this Council, we may say what we like. We may praise the Opium Farmers and say that they are honourable men and so on, and we may also say that the Steamboat Company have more property at stake than the Opium Farmer. But at the same time we know that we depend very much on the Opium Farm, and we wish very much to raise the value of the Farm,
charter of this colony. The charter while con- ferring legislative power on the colony reserved to Her Majesty the paramount power of legis- lating by Her own Council and reserved the power of disallowing any Ordinance." The Praya Reclamation Ordinance was the one his Lord- ship was referring to. And the present Chief Justice, Sir Fielding Clarke, then Paiste Judge, says in a judgment:-"It is saggosted that the Ordinance is ultra virea because it affects the position of a Crown lesso0. It is said that the Crown having Vir. tually all the legislative power in its hands cannot by act of the Legislature derogato from the lease which it has granted in its executive capacity." He then points out the inconveni ences which would follow such a doctrine, and continues" It is necessary to go beyond the argumentum ab inconvenienti and see what the powers expressad to be conferred on the Legis lature are, and whether there is any authority for limiting them in the way suggested. In the charter of the colony Her Majesty in the exercise of her unquestioned prerogative has provided that the Governor by and with the advice and conseut of the Legislative Conneil may make laws for the peace, order, and good Government of the colony, and has reserved to herself only the power of disallowance of laws so made and power of independent legislation with the advice and consent of the Privy Council. Besides the two restrictions expressly reserved id the charter there is also the restrictive power of the Imperial Parliament, the striates of which may extend to all or any part of Hor Majesty's dominions. It is clear that if no ather restrictiona are to be imported into the powers of the Hongkong Legislature, it would be for that body and not for the Court "to decide whether a particular Ordinance ad- vances the objects of the peace, order, and good Government of the colony." Oar focal Courts, sir, therefore, following the home decisions, have decided that an Ordinance of the. Hongkong Legislative Council, subject to the confirmation by Her Majesty, has effot, within its jurisdic- tion, similar to that of an Act of the English Parliament. It would seem to follow that no action could be sustained for altering or diminishing a man's right, and it would also follow that if such an Ordinance takes away rights previously existing action would be brought to enforce those rights! which since the passing of snob Ordin- ance bave ceased to exist." I do not think that it is necessary to say more because though armed with such power it would not become this Council to pas auy Ordinance which would be unjust or unfair to any one. Therefore it re- solves itself into a question of whether it would be unfair and unjust to the Opium Farmer to; pass this Ordinauce, As to another question, the question of damages, the plaintiff wust show that his legal rights-what is called his jus-bave been infringed. If his rights alter by an act of the Legislature, and his rights do not remain the same, he could not bring an action against the Government because the law had altered his right. I do not wish to bring up any matter of that kiud, how- ever. I can only say that I have carried out the instructions given me to the best of my ability. to draft a certain Ordinanco amending another,! and I may point out that I carnot see that any legitimate rights of the Opiums Farmer are infringed by the passing of this Ordin- į auce. I cannot believe that he has an absolute right to have all opium which is for- feited delivered to him, and I may point out! again that by sections 38 and 39, as the law at praeut stands, any forfeiture of opium which is ' not on the ship's manifest can be disposed of as the Governor in Council may direct, and, there- fore, I take it, may be sold. It might becomean- other question as to whether the buyer from the Government who sold it again would be justified; be might or he might vot. If the Governor in Council directs that it should be sold, I take it that the law allows it. I do not wish to weary hon. members, and I will therefore, now move the second reading of the Bili, and after the remarks I have madie and the spirit I have shown to meet fair objections in Commitee, I trust that there will; bo no objection to the second reading of this Bill, and that all points of difficulty may be discussed, section by section, when we arrive at the Committee stage.
no
Hon. E. B. BELIL108-Your Excellency, it seems to me that the whole question now ba fore the Council lies in a nutshell. Is it]
28
right, is it just, to allow the interests of one individual to override tho interests of an aggro- gate of individuals who are mostly all Brit- ish subjects and shareholders in public com- panies running steamers between hero and i Canton and Macao? So far, to my mind, the Opium Farmer, through his counsel, has not i made out a case for himself; but assuming for the sake of argument that he has done so to the satisfaction of my hon. friends opposite, his grievance can only be a suppositions and imagi. uary one.
He way or may not make mora money nuder the Jaw 21077 in force then under the Bill which is in embryo, but, sir, on the other hand, these Companies, ! whose property is tangible and whose property! is now in existence, run the risk of having their! Vossels seized and confiscated by the Chinese Government any day without their having first received a moment's notien. As I understapi it this Bill is to make all opium found on board, but not on the manifest of the ship, subject to seizure and forfeiture, whereas under the law at! present in force opiam that is covered by a cortificate from the Opium Farmer is not subject to such seizure. May I ask, sir. what legislature in the world would stand by and soo the more interest of a private individual override and predominate, over the laws, regulatious, and customs of publie Com- panies and the Imperial Maritimo Customs ¿ Consequently, sir, under these circumstances, I think that the Council would be doing justice by allowing this Bill to pass the second reading and Commitiee stage to-day, so that property now extant may not be jeopardised. With these remarks I beg to second the motion.
Hon. Ho KAI-I do not think that any dis cussion conducted in this Council to-day would be very much good, and I did not intend to speak on the second roading of this Bill. On the last occasion I opposed the first reading ! for the purpose of protesting against the at- temps, or what I considered to be an attempt, to rush the Bill through the Con gil, and as a pro- test also against the first and second reading coming so closely together, and furthermore as a protest against legislation being forced upon us by the Secretary of State-legislation ordered from home and which must be passed through this Council whother the unoffeis? members cousent to it or not. Of course, in some cases, aud possibly in this case, there are vnoffici members who for certain reasons, or for person?" interest, or whatever it may be-or publia intor- est~may agree with the Government that this Ordinance should be passed, and passed immo- diately, but if any Ordinance, similar in nature or dissimilar to this, is against what we con- sider to be the public interest, and the Govern- ment is to rush it through in the same way, what would the neofficial members say? So, in prin. oiple, I say I am opposed to any law whatever that is rushed through the Council. and also I am opposed to any law being carried through by force and by an order from home. Now, as regards this present Bill, I think, so far as I cun ser, the Opium Farmers have not shown by their counsel to this Council any cogent reason, or any very strong reason, that the Bill should not become law. It has not boon show, to my mind, that they will suffer any damages to any great extent. But I can see, although the learned counsel did not expressly make the poiut, 1 oun see that they would lose a very great deal if this Ordinance were passed. I believe they would not get anything like one half of their income if this law were passed. Ent at the same time, mind you, they have not expressed the reason and they have not shown by their counsel how they will lose it. I can, however, imagine it, and I believe that those who are acquainted with the system of farming in the antony from the very beginning, and who have watched the process of letting out the Farm, the history of the Farm, as I have dona for twelve or thirteen years, will understand also 1. by passing this law the value of the Opinm Farti would not be more than half its present value. Now, of course, as hon. members of this Council, we may say what we like. We way praise the Opium Farmers and say that they ara bonour- able men and so on, and we may also say that the Steatoboat Company have more property at stake than the Opium Farmer. But at the same time wo know that we depend very much on the Opium Fara, and we wish very much to raise the value of the Farm, Ì
5
No comments yet.
Private notes are available after approval.