1852-01-20 — Page 1

20th January, 1852.

Present:

His Excellency The Governor,

The Honorable The Chief Justice,

The Honorable The Attorney General

The Honorable The Colonial Treasurer,

The Honorable J. F. Edger, Esquire.

The Minutes of the last Council were read and approved.

His Excellency The Governor laid on the Table Extracts from the Correspondence between himself and Lord Palmerston connected with the subject of the proposed ordinance to explain ordinances No. 5 and 7 of 1844 which were read to the Council.

The Draft ordinance was then submitted and reconsidered, when the Chief Justice put in the following Protest against the Enactment:

Protest against proposed ordinance No. of 1852 regarding Consular Jurisdiction and for the abolition of assessors and the Writ of certiorari in matters relating to Treaty Rights.

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Before entering upon the more substantial and important objections to this ordinance, I may perhaps be permitted to remark that there is an inaccuracy both in its Title and Preamble. The proposed ordinance is entitled 'An ordinance to explain ordinances No. 5 and 7 of 1844' and the Preamble recites that doubts have arisen as to operation of ordinance No. 7 upon ordinance No. 5. Now Her Majesty's Supreme Court having decided that ordinance No. 7 does control ordinance No. 5, and the Law officers of the Crown having sanctioned this decision, it appears to me that whatever doubts may previously have been entertained, they have since ceased, and that it would not only be more correct but more respectful to the Court to treat the question as settled, and then to proceed to make such alterations in the Law as to His Excellency The Governor with the advice of his Legislative Council may seem fit.

The first objection of any real importance is that regarding the abolition of assessors in cases wherein the Consul or Vice-Consul is called upon to adjudicate in matters relating to Treaty Rights.

Considering that the gentlemen having to exercise these high functions are without any legal qualification, it does appear to me most desirable that they should be aided in their judgment by gentlemen of equal competency and ability with themselves.

That a Court thus constituted - that is with assessors – will be more congenial to the feelings of Her Majesty's Subjects, I cannot for a moment doubt, and I view it as no more than an Act of Common justice to the party accused that he should be called upon to answer before the most competent Tribunal that circumstances will permit.

I proceed to the still more important objection that which relates to the taking away of the Writ of Certiorari – an objection rendered doubly forcible if assessors are to be abolished.

To deprive the Defendant of this Writ is to place it in the power of the Consul, Vice Consul, or whoever the party may be administering the office for the time being, totally to disregard the protection accorded to the Defendant by ordinance No. 7. I allude of course to the forms enjoined by that ordinance irrespective assessors. I am fully aware that the proceedings of the Consuls, &c., are subject to the supervision and Controul of Her Majesty's Chief Superintendent of Trade, and that the Defendant is expressly empowered by the proposed new ordinance to bring them under the notice of His Excellency. But this is to substitute a private for a public Tribunal, and from the lengthened experience I have had of this Colony and its Dependencies I am satisfied that the more public such proceedings are made so much the more will it be for the good of the Community,

(Signed) John Walter Hulme

Hongkong,

January 20th, 1852.

Mr. Edger, who was also opposed to the passing of the ordinance, handed in his Minute of Dissent in the following terms.

Minute of the undersigned on the passing of the ordinance No. of 1852, being an ordinance to explain ordinances No. 5 and 7 of 1844.

I hereby record my Dissent in the passing of the above: mentioned ordinance.

Firstly. Because I see no good reason for dispensing with assessors in such cases as are mentioned in the third section of Consular ordinance No. 7 of 1844 out on the contrary am of opinion that the presence and assistance of well chosen assessors may in some cases have salutary effect, and may tend to render the decision of a Consul the more likely to be satisfactory and final. I am further of opinion that it is not desirable to summon, as assessors, persons holding Situations in a subordinate Capacity under a Consul.

Secondly. I consider that the Supreme Court of Hongkong is the most fit Tribunal to which appeals from Consular decisions can be carried, as being more than any other Tribunal out of the sphere where partiality might possibly be supposed to exist, more especially so in any case decided by Consul without the co-operation of assessors.

(Signed) J. F. Edger

Member of the Legislative Council

Hongkong,

20th January, 1852.

Mr. Mercer recorded his reasons for advocating the passing of the ordinance in question by the following Minute.

Minute on the Draft ordinance No. of 1852, now under consideration of the Legislative Council.

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It plainly was never the intention of Her Majesty's Government that the Colonial Court of Judicature should be vested with the powers of Her Majesty's Plenipotentiary; on this head, and to this end the system of jurisdiction in the Levant presented by the Secretary of State for guidance here, is direct and conclusive.

But with reference to the policy and equity of the question, it should not be lost sight of that the Chinese Government, when it waived its natural and inherent right to take cognizance of offences committed on its own soil, had no Knowledge of a Supreme or any other Court, but looked solely to Her Majesty's Plenipotentiary for the due fulfilment of Treaty Regulations and expects still that this officer who alone is specially appointed to enter into and carry out the International Treaties, shall have a care that the privileges surrendered by the Chinese to the British Government be not abused to the injury of Chinese authority. It must also further be borne in mind that had not the Chinese Government thus yielded up its natural authority, British Subjects must have been amenable to the jurisdiction of the Chinese Courts, an alternative distasteful as impolitie.

In matters of Breach of Treaty two points must be regarded, justice to the British Subject and honorable consideration towards the Chinese Government. The Supreme Court, ipsâ naturâ has reference to British Law only, that is, to justice between Residents on a British Soil; it cannot be, nor is it, supposed to consider the rights of the Chinese Government; but the Plenipotentiary is duly appointed, equally to see justice done to his fellow subjects, and to enforce respect to the rights of the Chinese Government. If the latter object be disregarded (and as just shown it cannot be regarded by the Court) British interests may suffer through the anomalous and hardly honorable position in which the Plenipotentiary may be placed in connection with the Chinese Government; and should the former object be neglected, the Plenipotentiary is morally and practically responsible to the source whence he, no less than the Supreme Court, derives his pubic authority.

Were the Subject solely connected with the Colony nothing more could be said than that wrong would be done by denying British subjects, or residents on a British soil, free access to a British Court of Justice, but the case under discussion is widely different and it must not be forgotten that what is now sought for the Supreme Court is power of interference with the rights and Expectations of a Foreign State, which has done much in surrendering its proper privileges to our Government, and looks to the officer whom it knows as the head of that Government to see that of such concession undue advantage be not taken.

If such interference be permitted, the result will be embarrassment to the Plenipotentiary productive to bad consequences in our relations with the Chinese Government, and after all no greater certainty than before of the attainment of substantive Justice.

(Signed) W. T. Mercer,

Member of the Legislative Council

Hongkong,

20th January, 1852.

An consideration of the Chief Justice's remarks with regard to the Title and Preamble of the Draft ordinance, it was Resolved that the same should be altered so as to meet the views expressed by the Honorable Member; and the Attorney General was requested to make the necessary alterations accordingly.

A Draft ordinance for certain Marriages in the Colony was laid on the Table, and ordered to be sent round to Members, and the Council adjourned.

(Singed) S. G. Bonham.

Read and approved this 27th Day of January, 1852.

(Signed) L. d'Almada e Castro,

Clerk of Councils.