726810-1856-GOVERNMENT-NOTIFICATION-NO-50 — Page 2

The Hongkong Government Gazette.

Appendix II. (No. I. The reasons assigned in Mr Rienaccker's Letter of the 8th January, 1856, to the Colonial Secretary, and 16.)

corroborated by all but one of the witnesses (unless we also except another witness, who admits the duty, but appears Evidence of the Hon. to doubt the readiness of the Government), appear to us conclusive in favor of the opinion which we ourselves have Mr Edger, G. Duddell, formed, that the Government of this Island ought to undertake the entire construction of the Praya, and that in no Esq., Y. J. Murrow, other way can the purposes, which have urged the Government to propose the work, be accomplished. The state of Esq., R. C. Antrobus, the shore, so alarming to the public health, calls for immediate measures of prevention. The crimes and disorders Esq., and Andrew Shertrede, Esq., in which occur daily and nightly amongst the dense Chinese population of this city, demand that whatever measures can Appendix I. facilitate the approach and action of the police, ought to be commenced and executed with all possible despatch. The danger of conflagration, so terribly recalled to our apprehension last month, must be considered as normal amongst a population inhabiting tenements constructed of fragile and inflammable materials, and nearly destitute of the means of access to the water. The necessity to commerce of an uninterrupted and a public communication with the sea are pressing and obvious. But whilst all these considerations demonstrate that it is the duty of Government to take the shortest and speediest way to the completion of the project, they seem also to impose the condition that the work Evidence of Mr Pur shall be done efficiently and securely, and with an inflexible regard to uniformity in the execution. The solitary tau, in Appendix I.

witness, who thinks that some saving in the contract price may be effected by substituting the Marine-Lotholders as Contracting Parties in the place of the Government, and investing them with all the powers and rights of Govern. ment for the purposes of such contracts as they shall be able to make, is himself so strongly impressed with the force of the above mentioned objections, as to admit that, even if his suggestion be adopted, it will still be necessary that the work should be commenced at the time, and completed in the manner, which the Surveyor-General may direct- that the Surveyor-General's eye should be constantly directed to it whilst in progress-and that "if it be left to the "Marine-Lotholders themselves, it will never be done at all." It is obvious that the variance between Mr Pustan's evidence and the great body of the evidence taken by us upon this First Point of Enquiry, is more apparent than real, A work so conducted as Mr Pustau proposes is, at least, a work undertaken on the part of Government, and differing from a work directly undertaken by Government, only in respect of a certain want of unity in the initiation of the work, and in the division of the expense of it; and in both of these respects, we think, the preference is clearly due to the latter-an opinion which we have the satisfaction to find is unequivocally confirmed by the great body of evidence before us.

II. Soure difference of views amongst the Marine-Lotholders was naturally to be anticipated upon the question as to the conditions of tenure of lands reclaimed or to be reclaimed from the sea. In one respect only they appeared to be unanimous,-in ignoring the fact that at present the Crown alone has title to all such lands, whether already reclaimed, or unreclaimed, and that the Crown will continue to have title to the latter after the same shall have been reclaimed by the Crown itself, or by persons not having title to those lands against the Crown, or authority under it. This common error was the source of the numerous fallacies to be detected in their evidence on the subject of their claims, real or supposed, to the equitable consideration of Government. The jealous eye of the law scans a grant from the Crown with great rigor, and reads it in quite another light from that of a grant made by subject to subject. 5 Bac: Abr: Pressy In the latter case the rule is, that "a deed shall be taken most strongly against the grantor," i. ., the subject; in the former case the rule is, that "a deed shall be taken most strongly for the grantor," i. e. the Crown. This is the 17 Vin: Abr: Abr: principle upon which that other well settled doctrine is grounded, that "in the construction of its deed of gran Pressy, O. c. and 0.c.« nothing shall be implied against the Crown," and again, the doctrine that, "unless where expressly provided to the

17 Edw : II, st: 2," contrary, the Crown retains all its prerogative rights in respect of the thing granted."

F.2.

2.-

c. 15.

Public notice and

There is no difficulty in the application of these familiar and wise maxims of constitutional law.

We have it in evidence that even at the time of the first notification of the intentions of Captain Elliot to hold Declaration, &e" of the first land sales that were ever effected in this Colony, the community were not suffered to be ignorant that no 1st May 1841. Appen- lands would be allotted here but with "a general reservation of all Her Majesty's rights according to the principles dir II. (No. 1); and “and practice of British Law, upon tenure to the Crown," and, before all, “pending Her Majesty's further pleasure." see Laws of Hongkong, Before a foot of land was put up for sale here, the intending bidders were further informed, that "no title would be valid, p. 3.

" and no occupancy respected," until evidenced by the execution of a Crown Grant, and perfected by Registration of The "Terins of Sale "* Extract from Terms the Grant "in the Government Office." The first land sale took place on the 14th June 1811. of Sale,' &c. Appendiz were read to the bidders before the commencement of the proceedings, and they were expressly informed by that 1, (No. 3); and see document that whilst the sea-frontage of each lot was "nearly ascertained, the depth from the sea would necessarily *Laws of Hongkong,' « vary considerably," and "the actual extent of each lot" being still unascertained, "the parties would have the oppor- p. 4.

"tunity of observing the extent for themselves." They were further informed, that the Crown Grant, the sole evidence of title, would not be issued to any purchaser until "the precise measurement and registration of the lots should be completed," and that, on his side, the purchaser would not, until delivery of bis Crown Grant, be called on to pay the rent for the first year, "reckoning from the date of Sale" of his lot.

Sir Henry Pottinger, the first Governor of this Colony, and with whom we find that the wise and far-reaching project of a Praya first originated, was even more careful than Captain Elliot to preclude the possibility of all popular Append :17, (No. 4) error as to the rights and intentions of the Crown in this matter. Referring to the important "Government Notifi- see the reference to it cation" of the 22d March, 1842, we learn that, at that early date, whilst as yet not a Crown Grant had been issued, in the evidence of the the Allottees of Marine-Lots already sold, and the future bidders for such as remained to be sold, were distinctly Hon. Mr Edger, Ap-apprised that "the reclaiming of land beyond high-water mark must be deemed an infringement on the Royalties of pendiz I.

"Her Majesty, (and it is therefore positively prohibited) by any private persons."

Ibid.

Ibid.

Ibid.

During the whole of the period intervening between the date of that paper and the first issue of Crown Grants to the occupants, we have failed to discover any trace whatever of the revocation of that Public Announcement, or even of any connivance being extended by the Authorities to encroachments or purprestures upon the domains of The Honorable Mr the Crown, seaward or land ward. A highly respectable witness, however, whose principal establishments being at Edger, in Appendis I. Canton and Macao during that time imposed upon him the necessity of spending the greater part of his time at those ports, intimated his very strong impression that there was some distinct encouragement held out to himself and other purchasers during that period, and even after the delivery of their Crown Grants, to reclaim as much and as far as they pleased towards the sea," subject however to “the risk of the reclaimed land being resumed by Government, It is obvious that, even if if wanted for public purposes," and without any promise of compensation for it, if resumed. the recollection of this gentleman were so far supported by documentary or other evidence, as to establish against the Crown and in favor of himself and those particular occupants who may have acted upon the alleged encouragement, a case of royal conscience and equity, the reservations äppended would reduce the case to an almost infinitesimal valne. But we must observe,-(1.) that we can find no vestige of any "Notification," or " Circular," printed or in manu- script, bearing on this point, except those already cited, which bear altogether the other way; (2.) that it is an error to suppose that, in 1844, or at any period however early in the history of this Colony, a " Government Gazette,” and the printing of Government Notifications did not exist, or that such Notifications, if made, were not printed; (3.) that if even the Queen's representatives were under the necessity of reserving "the Queen's further pleasure" in their official and authoritative announcements on the subject of tenure, the community ought to have known that the Land Officer, Captain Mylius, and his successor, Captain Meik, could not possibly be authorized to hold ont encourage- ments, private or public, in derogation at once of those Notifications of the representatives of the Crown, and of the prerogatives of the Crown itself; and (4.) that the reference to a supposed stipulation in an early Crown Grant to the same effect, a reference afterwards admitted tacitly to have been made in error, makes it very probable that the entire impression which Mr Edger entertains on this subject may, at this distance of time, be very easily accounted for, if we remember that the form of the Crown Grant, a form which has never varied since the first issue, does contain a of Crown Grant in Ap. kind of " stipulation" or " encouragement" to reclaim or improve, and indeed to build upon the lands granted and lying pendix II, (No. 5.)

within the boundaries of the registered lot (but not beyond them), subject of course to the usual right of the Crown to resume the whole or any portion of the lot upon three months' notice, and equitable compensation, to be deter- mined by the Surveyor-General; and that it is very likely that the witness, speaking from memory, may have erro neously supposed that the clauses in question applied also to the sea-shore lying beyond the boundaries of the Lot.

Ibid.

Ibid.

Extracts from Form

The form of Crown Grant to which we have just alluded was first settled in 1844; and, in that year, the first issue and registration of Crown Grants took place. The Crown Grants continued to be issued and registered during the whole of that year and the next, and thus the titles of the occupants, under the old acknowledgements' of their biddings, were at length made perfect. We perceive in the circumstances which ensued upon this promulgation of the form of Crown Grant another proof that, down to this time at least, no Marine-Lotholder had felt himself in any way encouraged to encroach upon the sea, or had doubted in the least the precariousness of a tenure from the Crown subjected since its origin to "the Queen's pleasure, the reservation of all Her Majesty's rights, the British Law

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