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Colonial Cases

Registration Cases, 1870

[registration of British subjects]

Registration Cases

Criminal Court, Shanghai(?)
16 March 1870
Source: The North-China Herald, 22 March 1870

 

CRIMINAL COURT

March 16th, 1870.

Before G. JAMIESON, Esq.

R. v. ASHTON.

Mr. Ashton was summoned under Sec. 114 and 115 of the Order in Council of 1864, for not having registered himself as a British subject within the month of January, or within the extended time allowed by H.B.M. Consul.

Mr. Ashton, before replying to the charge, wished to take an objection to the summons; the summons under which he now appeared was a repetition of a previous summons dated 4th March, also charging him for not registering.  He did not see how a man could be twice summoned for the same thing.  He moved that the charge be dismissed.

The magistrate said he had no knowledge of any previous summons.  This case had not been brought before him before, or adjudicated upon.  All he knew was that Mr. Ashton now appeared in answer to a summons charging him with not registering in January, and he must now require an answer to that, he could not gon into any previous transactions.

Mr. Ashton wished to put in his Registration Certificate for 1870.

The Magistrate said that was not an answer; it did not show that he was registered in January.

Mr. Ashton - presumed that if he were defended by a barrister, he would be allowed to say what he liked, and he thought it rather hard he should not be allowed to speak for himself.

The magistrate requested Mr. Ashton to answer, Yes or No to the charge.  If he would do that, they would be able to get on.  He could state anything by way of an excise, afterwards.

Mr. Ashton would not answer yes or No.  He repeated that he was ignorant of law; but he wished to explain the circumstances.  If the Magistrate would not listen to him, he could not help it.

The magistrate would listen to anything relevant.

Mr. Ashton thought a certificate that he was duly registered, was very relevant.

The Magistrate said, if Mr. Ashton would say he was registered in January, there would be an end of it.

Mr. Ashton said the certificate showed that he was "duly registered."

The Magistrate asked whether he was to understand that as a denial of the charge.

Mr. Ashton. - Certainly not.

Sir E. Hornby. - You are labouring under a mistake, Mr. Ashton.  You will have an opportunity of stating any argument you like, so soon as you have answered the charge.

Mr. Ashton was obliged to his Lordship for the explanation, and would at once admit that he was not registered in January.

The Magistrate would now be glad to hear any explanation Mr. Ashton had to offer.

Mr. Ashton had several grounds of objection.  First, he held a certificate stating that he was "duly registered." Did that mean anything or not; because, if he were duly registered, he did not see how he could be punished for not being registered.  There were other gentlemen who had been summoned, and who had not paid the fine, for several years in succession.  Could they be had up and fined for this year, and next year had up for the previous year's omission.  Was a man liable to a mulct at any time, for not having registered during January, although he had subsequently obtained a certificate.

Sir E. Hornby. - Certainly.  The law says you are to register in January.

Mr. Ashton would also like to ask whether the Consul had the power to inflict a commuted fine.

Sir E. Hornby was under the impression that he had.  He did not say, he had; but it was his impression that he had.

Mr. Ashton. - And has he power to bring me up a second time, after having fined me once?

Sir E. Hornby. - Certainly.  The first fine was not paid.

Mr. Ashton. - The fine was tendered.

Sir E. Hornby. - But it was tendered under protest; and no official will receive money under protest.

Mr. Ashton. - Then this paper (the certificate) is no use at all.

Sir E. Hornby. - The paper is of the use which the Government attaches to it.  I don't know what this is.

Mr. Ashton, then, had nothing further to say.

The Magistrate did not consider that anything which Mr. Ashton had said, could be received in extenuation of the fault.  He had no alternative therefore but to inflict the fine of $10.

 

17th March.

R. v. CHURCH.

Mr. Church had escaped registration for three years, and had thought he might do so again.  That was the reason for not registering.  He was quite willing to register now.  Fined $2 and costs.

 

R. v. CAMERON.

Mr. Cameron had objected to registering himself because he could not see any reason for doing so.  He had registered when he first arrived in Shanghai.  He thought it right to have done it, and that it was the duty of every British subject to do so on his arrival.  He had done more.  He had cheerfully registered during several succeeding years, but it was time now to demand a reason for the Order.  It would be right and gracious on the part of those in authority if they would condescend to explain the reason for requiring British subjects to register themselves every year.

His Worship did not see that the defendant could justify himself for not registering because he could discover no reason for the Order.  He could not accede to his request for an explanation.  It was enough for him that the Order was plain that every British Subject must register himself.  Defendant should, however, have offered his excuse to Her Majesty's Consul who, perhaps, could entertain it.

Defendant thought that the Court would do a great service if it would represent to the proper quarters that the Registration business was looked upon as being obnoxious by British subjects, among whom an ill-feeling in the matter is plainly perceptible at present.  He did not want to be thought fractious, nor did he entertain any idea of changing his nationality.  He was willing to comply with any Order that is reasonable, but he entirely failed to see any reason in having to register himself every year.

His Worship thought that defendant's course of action should have been first to register himself - to conform to existing law.  As regards the amendment of the Order, he should say it was competent for defendant to represent his case to the proper authorities.  He must fine the defendant $10.

Defendant said he would not register, and would rather pay the fine; and if the stand he made against complying with the Order to register should be noticed by the proper authorities, and a change for the better resulted, he would consider his $10 usefully spent.

Replying to his enquiry, the Court informed him that the consequences of a defendant not paying a fine would be the issue of a writ levying it on his property; and if there be no property, the question of imprisonment might then, perhaps, be raised.

 

March 19th.

R. v.  T. W. KINGSMILL.

Mr. Kingsmill admitted that he had not registered, nor did he wish to do so.  He protested against the tax as being illegal.

The Magistrate had no option, but to inflict a fine of $10.

 

Source: The North-China Herald, 29 March 1870

LAW REPORTS.

CRIMINAL COURT.

March 22nd.

Before Sir E. HORNBY.

REG. v. REV. E. W. SYLE.

   Registration during 1868 and non-registration for the current year having been proved - his Lordship asked Defendant if he had anything to say to the Court, they were ready to hear.

   Defendant - Nothing, my Lord: I expect to pay the fine and cost of summons - all the expenses.  The paper I hold in my hand is an Apology - not for neglecting, but for complying with, the existing Registration requirements.

   His Lordship - I do not see how an Apology can be given for doing a thing.

   Defendant - This is a matter so much "more honored in the breach than the observance" that I feel the doing of it calls for an Apology.

   His Lordship - I cannot understand what you have to apologise for, if you intend to obey the order of the Court.  I am quite willing to hear anything you have to say, but there is really no apology to me necessary for doing what the Court orders you to do.

   Defendant - So I supposed, my Lord.

   Fined $10 and costs.

 

After the above case, that of R. v. Simpson also for Non-registration was called on; but that gentleman not making his appearance, Sir E. Hornby ordered a warrant to be issued for his apprehension, and remarked to the reporters of the press present in Court, that he wished it to be mentioned in the Law reports, that warrants will in all cases be issuer for the arrest of persons who do not appear to answer summonses when regularly served upon them for Non-registration; and should such warrants be served after office hours, the person or persons on which such warrants are served must not be surprised if they have to pass a night in the Consular gaol.

 

March 23rd.

R. v.  MICHIE (Non-registration.)

   Mr. ROBINSON for the defendant.

   Mr. ROBINSON wished to take a preliminary objection to the validity of the summons.  His objection was "that the summons dated 21st march 1870, addressed to Mr. Michie, to appear and answer the charge of not having registered himself for the year 1870, at H.M.'s Consulate Shanghai, in conformity with the 114th and 115th section of the Order in Council 1865, is not signed by any Magistrate or Judge or other officer of the Supreme Court enabled by law to issue or grant the same, and is therefore a nullity."

   The CHIEF JUDGE had already decided this point, when Mr. Robinson raised the same objection last year; and would certainly not now overrule his own decision.

   Mr. ROBINSON said it was necessary to revive the objection, because he should rely on it in case of future proceedings being taken to quash the conviction - assuming that conviction followed.  What he argued was, that it was the intention of the Order in Council that the course of procedure should be the same as in England, and in that case should bear the signature of the officer issuing.  In support of this view, Mr. Robinson referred the Court to secs. 5 and 68 of the Odder in Council 1865 and Rule 339 of the Rules of Procedure, and to Oke's synopsis 9th edition p. 108 and cases there cited.  This authority showed that the practice in English Courts was for the justice to issue his own summons.  And he would observe that it was inconvenient that the summons did not contain the name of the person making the charge, because it was right that every accused person should know who was his accuser.

   The CHIEF JUDGE would decide as he did last year, that it was the practice of this Court to seal summonses only.

   Mr. ROBINSON - That it is the practice - not that it is right?

   The CHIEF JUDGE - said the practice was right; and referred to the forms given in the schedule.

   Mr. ROBINSON replier that the forms should be read intelligently, and together with the clauses of the order; they were not to be blindly copied.

   ALEX. HARVEY, sworn, said, in reply to the Judge - that Mr. Michie was not registered this year.

   Mr. ROBINSON - Is that the only evidence Mr. Harvey has to give - that Mr. Michie is not registered?

   The CHIEF JUDGE asked Mr. Harvey whether Mr. Michie was registered in 1868 and 1869.

   Mr. HARVEY (after reference to the register) said he was.

   Mr. ROBINSON     - Is Mr. Harvey the person making the charge?

   Mr. HARVEY said he was acting under instructions from the Consul.

   Mr. ROBINSON pressed the question, whether Mr. Harvey was the person making the charge.

   Mr. HARVEY - No.  I am not.

   Mr. ROBINSON had no further question to ask.

   The CHIEF JUDGE            called upon Mr. Robinson for his defence.

   Mr. ROBINSON, then I understand the case for the prosecution is closed.

   The CHIEF JUDGE, Yes; I understand it so.

   Mr. ROBINSON then had to make a first objection, that there was no prosecutor present, and therefore there was no charge.

   The CHIEF JUDGE. - Mr. Harvey says he acts under Mr. Medhurst's instructions.

   Mr. ROBINSON - Mr. Medhurst is not before the Court.  The only person who is before the Court is Mr. Harvie, and he says he is not the [prosecutor.

   The CHIEF JUDGE            .  Mr. Medhurst is in Court (pointing to him.)  You know as well as I do, Mr. Robinson, that it is not necessary the prosecutor should give evidence.  All the prosecutor has to do is make out a case.  If he has not any knowledge of the facts himself, he produces a person who have.

   Mr. ROBINSON said the prosecutor must appear as the accuser; and begged the Judge to make a note of his objection.

   The CHIEF JUDGE declined.  He considered the objection immaterial, and would not burden his note book with things perfectly immaterial.  M r. R. said the prosecutor was not present.  He (the Chief Judge) said it was not necessary he should be present.

   Mr. ROBINSON said that was not his objection; and the misunderstanding showed how necessary it was that notes should be taken.  He objected that there was no accuser.

   The CHIEF JUDGE requested Mr. Robinson to put his objection on paper; he could only want these things for ulterior proceedings; they could not affect the case here.

   Mr. ROBINSON was sorry to hear the Court express a foregone conclusion.  He handed in his objection as follows: - "that there was no accuser, and therefore the charge should be dismissed."

   Mr. ROBINSON appeared in behalf of Mr. Michie, not to contest the expediency or the legality of the tax.  He had little doubt those were matters beyond the control of the Court; but to contest the legality of the steps taken against Mr. Michie.  The Court might think he was travelling over the same ground as before; but there were two reasons why he should do so -

1st that his most material objection had been, on the previous occasion, very partially answered; and

2nd because, when he intended to question the jurisdiction of the Court, it was his duty to bring very clearly forward the points upon which he raised the question.

He was not justified in taking for granted that the Court remembered the reasons which had been urged in the previous case; but was bound to bring them forward again, so that they might appear in the record.

   He would also ask the Court to give him credit for not wishing to take up its time unnecessarily; but for urging his objections berceuse he believed that they were valid.  Perhaps it was unnecessary to remind his Lordship that, if a judge assumes a jurisdiction which he has not, assuming that a conviction takes place and the conviction is quashed, the judge was liable in damage to the person convicted.  He must say that he had been surprised at the manner in which the case for the prosecution had been conducted.  He had thought that pains would have been taken to establish the case legally.

   He would now state the objections on which he intended to reply.  The first was:

That this Court has no jurisdiction in the matter of the complaint charged against the accused, because the neglect charged in the said summons of the 21st day of March 1870 is not an act or omission which would, by a Court of Justice having summary criminal Jurisdiction in England,. Be deemed an offence making the person guilty of such neglect liable to punishment in England, and is not a neglect which is declared an offence by the China and Japan Order in Council 1865, or any regulation or rule made under it.

In support of this objection he referred to Sec. 6 of the Order in Council.

Any act other than an act that would by a Court of Justice having criminal jurisdiction in England be deemed a crime or offence making the person doing such act liable to punishment in England, shall not, in the exercise of criminal jurisdiction under this Order, be deemed a crime of offence making the person doing such act liable to punishment.

    Now the power of summary conviction, he took to be unknown to the common law of England; it only existed by virtue of special statute; so unless the Court could point to some statute authorizing summary procedure in this case, he submitted that it was exceeding its jurisdiction, and going altogether out of its province.  It must be admitted that failure to register, here, was not an offence known to the statute law of England.  If it were an offence it must have been made so by the Order in Council.  But he denied that any portion of the Order in Council did expressly make it an offence; and not only was there no express declaration making it so, but he would call the attention of the Cotuit to presumptive evidence that it was never intended to make it criminal.  The first presumption was a strong one, for if the Court would refer to the 92nd 100th and 113th clauses of the Order in Council, it would see that when the Order wished to make an offence criminal, which would not be so ordinarily, it did so expressly.  Unlawful trading with Japan was not an offence against the law of England, but was made an offence; and again in the 100th Sec., language derisive of native religion was made an offence.  There order, therefore, where dealing with acts that were not ordinarily offences, prescribed the mode of procedure.  Now if the order took pain to express clearly when it w as intended to make exceptional offences, it was only reasonable to infer that, where it avoided similar language, it intended dissimilar procedure. The 60th Sec. said that,

If any person, other than one of Her Majesty's Consular Officers, takes possession of, and in any way administers, any part of the property of any person deceased, without obtaining probate of administration within three months after the death of the deceased, - *   *   *   he shall be liable to such penalty not exceeding 500 dollars as the Court having jurisdiction in the matter of the property of the deceased thinks fit to impose.

   Now suppose if, instead of that language, the language of the 114th Sec. had been followed, would the Court rule that the remedy in the former case was to issue a criminal summons and convict in a summary way?  He (Mr. R.) contended that such an inference was insupportable.  The omission of any reference to a conviction, in the 114th section was most significant.  In all the other clauses he had quoted, there was a reference to conviction.  In that clause there was none.  And the Court was not entitled to hold that, the meaning of clauses differently worded was identical.  So much for the language of the Order in Council.

   Another presumption against the intention to make non-registration a criminal offence, was the unreasonable position in which the Court would be placed.  The Consul only had power to excuse non-registration.  The Court had no such power.  Supposing that a British subject went to the Consul and gave an excellent excuse, which the Consul, from malice or for any other reason, declined to accept, and summoned him.  The Court might agree with the excuse and might reason with the Consul; but if he were obdurate, it would have to convict a man morally innocent - all because an offence was treated as criminal, which it was never intended should be so. 

   There was a third point in support of his (Mr. R.'s) view.  I am to-day guilty of an offence, in not having registered.  I continue to repeat that offence every day for remainder of the year, but the law can take no recognizance of the repetition.  Our British statute law was not so loosely framed as to permit such a contingency, and he argued therefore that it was not the intention to make non-registration a criminal offence; therefore that the Court could not convict his client; and, if it did convict, would be travelling beyond its jurisdiction.

   In submitting his third objection, Mr. Robinson would assume, for purposes of argument, that the Court had jurisdiction, and would then urge:-

That if the Court has jurisdiction no offence is charged, and therefore the summons should be dismissed, on the ground that it omits to aver that the Defendant has failed to excuse himself to the satisfaction of the Consular Officer.

The charge laid down in the present Summons, is that Mr. Michie has neglected to register, in 1870.  But Mr. Robinson contended that no offence is charger by those words.  If there be an offence, under the O. in C. it consists in not registering and not excusing oneself to the Consul.  Consequently, it is essential that the words "and to excuse" should be inserted in the Summons.  Hew as aware the Court said that, if it had been intended, the expression used would be "not having excused;" but he would reply that before a man can be charger with an offence he must have committed it.  Failing to register or excuse within the time prescribed, constituted the offence; but this offence was not charged, consequently there was no offence.  The evidence for the prosecution was defective in many points; but technically, he would rely on this.  The Order in Council imposed a penalty for non-registration on British subjects resident in China of the age of 21 years.  How were these two points to be proved?

   The CHIEF JUDGE.  If it were a civil case it could be done by putting the Defendant in the box.  There are however other means to establish a fact of this kind, by prima facie evidence.

   Mr. ROBINSON. - But you cannot put a man accused of a criminal offence, in the box.  So how was it possible to prove the two incidents.  Yet, unless they were proved, the Court could not convict.  It would be as reasonable to convict a man of abducting a girl under 16 years of age, without proving that she was under 16.  He thought this also led to a strong assumption that it was not intended to make the offence criminal.

   The CHIEF JUDGE - pointed out that the order in Council made every other penalty applicable to "British subjects."  According to Mr. R.'s argument, no conviction could ever take place, unless it were proved that the accused was a British subject.  How was this ever to be proved?

   Mr. ROBINSON thought the intention was, to prove it by registration; and the old system of registration perfectly attained the object, but the present system defeated it, because men will pay the fine and will not register.  The Court was liable to considerable difficulty in consequence.  He only put this forward as one reason for thinking it was not intended to make non-registration as Criminal offence.  A man could not be convicted unless it were proved that he was 21; but the Consul had no means of proving the point.

   For these reasons he submitted, with all respect, that the Court could not convict in the present instance.

   The CHIEF JUDGE - said the objections taken were almost precisely the same as those raised by Mr. Robinson last year; and it was only necessary for him to recapitulate what he then said.  He had then decided that it was the practice of the Court to seal and not to sign summonses.  It had been held that disobedience against an Order in Council does constitute misdemeanour.  The Order in Council says a person not registering is liable to a fine of $10; it was clear therefore that the Court had power.

   In regard to the 3rd point, the presumption was that defendant had not excused himself to the Consul, as the latter had given orders that he should be summoned, which he would not have done, if a satisfactory excuse had been tendered.  Nothing, therefore, remained but for him (the Chief Judge) to carry out the law, without remark as to its expediency.

   Mr. ROBINSON - I understand that the Court convicts?

   The CHIEF JUDGE. - Yes and fines $10.

   Mr. ROBINSON asked that the conviction might be drawn up in the usual form, and served.

   The CHIEF JUDGE took the opportunity of mentioning a rule which he intended to carry out in future; that no plaint would be accepted from any person who was not registered.  Such a person would be amenable to the Court but no plaint would be received from him.  No doubt., he might, if mr. Robinson were right in the view he took, expose himself and his successors to litigation - through actions that might be brought against them; but so long as the tax existed, he thought it his duly to carry out the law to the best of his ability.

   Mr. ROBINSON said the Court could scarcely, suo inntuito, take notice whether a British subject were registered or not.

   The CHIEF JUDGE.  I was going to begin with you.  If you had appeared in Court without having registered, I was going to decline to hear you; but you kindly saved me the unpleasantness.

Source: The North-China Herald, 5 April 1870

LAW REPORTS.

CRIMINAL COURT.

30th March.

Before G. JAMIESON, Esq.

R. v. A. K. MACDONNELL.

(Non-registration.)

Defendant had nothing to say, but refused to register.  Fined $10 and costs.

 

Published by Centre for Comparative Law, History and Governance at Macquarie Law School