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Colonial Cases

Smith v. Burnett and Maish, 1863


Smith v. Burnett and Maish

Consular Court, Shanghai
Source: The North-China Herald, 30 May 1863



May 27th, 1863.

Before J. MARKHAM, Esq., Vice-Consul.


This was a case arising out of the attempt by the Taoutai to collect taxes on Chinese residents within the British Settlement. Mr. Smith brought this action against the defendants for unlawfully entering his premises, which are private property, in course of collection of this tax; and refusing to leave when requested to do so.

The defendants admitted the charge.

Mr. OLIVER, on behalf of Mr. Smith, said: - About 1.30 p.m. last Saturday, information was brought to our office that these men were annoying our tenants and collecting a crowd. I went with Mr. Cleeve, and requested them to read the notice which Mr. Smith had posed. They said they had done so, but refused to leave.  Four Chinamen were with them. I then went to the Police Station; but while I was there, they were given in charge by Mr. Cleeve for trespass.  They did not produce their authority till they reached the Police Station.  The roads were made by Mr. Smith; he keeps them in repair and locks the entrance every night.  We have received no notice that these men were authorized to collect any tax.  Maish and the four Chinamen were inside one of Mr. Smith's houses; the other man was standing on the private road.

To Mr. LAWRANCE: - They are given in charge for trespass; not for creating a disturbance.  We consider the roads private, because they are repaired by Mr. Smith, and because they are shut up at night.  They have never been made over to the public, and the Municipal Police do not go there.  The roads are opened only for the use of tenants and their customers.  The gates are closed at ½ past 10 at night, by our own watchmen.  I have nothing to do with the tax; I press a charge of trespass.  I do not say that Mr. Smith objects to the collection of taxes.  I refuse to enter into the question of taxation.

For the Defence.

HENRY BURNETT said: - I am an assistant Tax collector to the Chinese Authorities.  I was assessing some houses on the Yang-king-pang creek, when Mr. Cleeve, who is in Mr. Smith's employ, came there with an interpreter; and, though him, told the inmates of the house to give us no information.  I was arrested, together with Maish and taken to the Police Station.  I there produced the accompanying warrants.

One of these warrants, which purported to be an authority from the British Consulate to collect Taxes, had been issued in error, and was accordingly detained by the Court.  The second was signed by the Taoutai; and was to the effect that, Mr. Bruce having acknowledged the principle that the Chinese living within the Foreign settlement were still under their national authorities, the Futai had ordered him to levy Taxes on such residents.  He therefore issued a w arrant to be taken to the English Consulate, that security might be obtained against the interference of the Police.

Mr. LAWRANCE, for the prisoners, said they had pleaded guilty because they could not deny their presence.  He submitted, however, that as regarded the question of private property. They had not committed the act of trespass in law.  The Market was really not private; there were houses of entertainment and shops in it.  But apart from this, he submitted that the men were acting on a warrant from the Taoutai, issued on the strength of a despatch from Sir Frederick Bruce, which stated that, in his view, power lay with the Chinese to levy the Tax.  At any rate therefore, he was sure the Court would not think it necessary to inflict any punishment.

The COURT said, the fact of the gates being kept shut, and that the roads had never been given over to the public, was sufficient proof that they were private property, held by Mr. Smith as his own.  He admitted whom he chose, and excluded whom he chose. It was therefore clear that the presence of these men, whom Mr. Smith wished to exclude, was trespass. They would be dismissed with a caution against renewal of the offence.

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