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Colonial Cases

Keswick and others v. Wills and Wills 1865

[taxation]

Keswick and others v. Wills and Wills

Supreme Court of China and Japan
16 November 1865
Source: The North-China Herald, 18 November 1865

 

H.B.M. SUPREME COURT.

Before Sir EDMUND HORNBY, Chief Justice.

November 16th.

W. KESWICK, J. HOGG, T. HANBURY, J. C. COUTTS, G. NYE and W. PROBST,

versus

G. WILLS and S. WILLS.

Claim for Taels 590.30, alleged to be due on account of Land Tax.

PETITION.

In Her Britannic Majesty's Supreme Court for China and Japan, the - day of October, in the year of our Lord one thousand eight hundred and sixty-five;

BETWEEN William Keswick, James Hogg, Thomas Hanbury, James Cock Coutts, Gideon Nye and William Probst, Plaintiffs, and George Wills and Samuel Wills of Bristol in England, Trustees and Executors of Charles Wills, Esquire, deceased.

To

Sir EDMUND HORNBY, Kt., Chief Justice of the Supreme Court for China and Japan.

   The petition of William Keswick, &c., Plaintiff

 

1.  - That the above named Plaintiffs are the committee appointed at a Meeting of Land-renters, duly convened by the Foreign Consuls at the port of Shanghai in the Empire of China and held at Her Britannic Majesty's Consulate on the 25th day of April, A.D. 1865, under and by virtue of certain regulations commonly called or known as the "Shanghai land Regulations," authorising and empowering them so to do, which said regulations are binding upon all British subjects renting land in the settlements known as the English and Hongque settlements, being land set apart in accordance with the Treaty, for the location of foreign renters.

2. - That at the said Meeting, the said Land-renters declared an assessment in the form of a rate of one quarter per cent on the value of all land in the said settlement.

3. - That the said Plaintiffs under and by virtue of said regulations are authorized and empowered to levy the said rate and to sue all persons making default in payment thereof.

4. - That the said Charles Wills was at the date of the said Meeting and still is the registered owner of the following plots of land being and situate within the boundaries of the foreign settlements, to wit Numbers, 136,144, 145, 146, 149, 154, 200, 203, 221 and 222, respectively, the registered Title Deeds thereof being number 100, 138, 110, 143, 148, 193, 196, 214 and 215 respectively.

5. - That the above named Plaintiffs have levied the said tax of ΒΌ per cent, amounting in the aggregate to Tls. 590.30 Shanghai Sycee, on the lots of lands aforesaid of the said Charles Wills, and requested payment of the same by  the said Defendants or such Trustees and Executors as aforesaid.  That the said Defendants as such Trustees and Executors as aforesaid have made default in payment of the said sum of Tls. 590.30, and wholly refused and still refuse to pay the same or any part thereof.

   The Plaintiffs therefore pray:-

1. - That the said Defendants as such Trustees and Executors as aforesaid, may be decreed to pay to the Plaintiffs as such Committee as aforesaid the sum of Tls. 590.30 Shanghai Sycee, with interest and costs of Suit.

2. - That the Plaintiffs may have such other relief as the nature of the case may require.

ANSWER.

The answer of George Wills and Samuel Wills, the above named defendants, to the Petition of the above named Plaintiffs.  In answer to the said petition, the said George Wills and Samuel Wills say as follows:-

  1. - That they are not indebted as alleged.
  2. - That the regulations referred to by the Plaintiffs and commonly called or known as the Shanghai Land Regulations, are not binding in law upon the Defendants, and Defendants deny the right of the Plaintiffs to levy the same rate of one quarter per cent upon the land of the defendants as such Executors and Trustees, under and by virtue of any authority given to them at the said Meeting of Land-renters held at H.B.M.'s Consulate on the 25th day of April, 1865, as alleged by the Plaintiffs.

   For the Plaintiffs: - Mr. MYBURGH.

   For the Defendants: - Mr. LAWRANCE.

   Mr. MYBURGH having read the Petition and the Defendant's Answer, opened the case for the Plaintiffs.  He remarked that the answer which he had just read raised the question of the legality of the Land regulations, and of the powers of the Plaintiffs derived under and from them.

   He had no doubt that if His Lordship were permitted to take into consideration points other than legal and technical - such, for instance, as the security and good order which prevail in the settlements, and provide indisputable proof of the success of the Municipal institutions - such considerations would go far to gain a verdict for the Plaintiffs.  But such unfortunately could not arise, and the question at issue remained merely one of dry law.  To him (the learned Counsel) it had always appeared that a more pleasing and instructive sight than the working of the Municipal Council could not be imagined, and it said much for Shanghai that with all the heterogeneous elements which it contained, for twelve years there were always found men to come forward and discharge the onerous duties which fall on the Council.

   It was strange that although doubts as to the legality of the Land Regulations must have existed, no one refused to pay taxes levied under their authority.  It was found most difficult to obtain a Defendant in order to test the force and validity of the Regulations, and even now no one could have been brought forward, but that the Defendants are the representatives of a dead man, and their only objects are to derive as large a sum as possible from the property under their trust, and to escape any contribution to the public burdens.

   By Articles 15 and 16 of the Treaty of 1858, ratified at Peking in 1860, the right of jurisdiction over British subjects in China was ceded to the English crown.  This right is of the highest importance, for by it the whole body of English statute and common law is transferred to this country in civil and criminal cases wherein British subjects appear as defendants.  Previous to the Treaty, however, by 6 and 7 Vict. c. 94, it was made lawful for Her Majesty to exercise the same powers and authorities in Foreign countries which She could have had, had she acquired territory in such Foreign countries.  There is nothing in the Treaty or in the Act to justify the idea that Her Majesty's Government ever contemplated the acquisition of the right of taxation in Foreign countries for any purpose whatsoever.  The Chinese Government clearly has the power to levy taxes for Imperial or local purposes.  This right the Imperial Government still holds, and Her Majesty's Government has shewn no wish to wrest it from its proper possessor.

   By the action taken by Consul Balfour when the first set of regulations were framed, and further by the conjoint action of Messrs. Alcock, Edan and Murphy, this right was fully recognised.  If such had not been the case there would have been no necessity to obtain the assent of the Chinese authorities to the Land Regulations, which provided for the taxation of subject of foreign powers and enabled the Committee appointed by the Land Renters indirectly to enforce the collection of taxes levied by an appeal to the Consuls, inasmuch as it was in itself powerless to compel payment.  This while, on the one hand, the was a distinct recognition of the territorial rights of the Chinese Government, on the other hand the treaty powers acted so as not to allow the Imperial Government top imagine that they were anxious to deprive it of those rights. Section 3 of the Order in Council of 1853 confers upon the Consuls the power to make and enforce rules and regulations for the peace, order and good government of Her Majesty's subjects resident in China. 

   It was under the authority thus conferred that the Land Regulations were framed, and as these Regulations did to a certain extent divest the  Chinese Government of the bright of taxation it was necessary to gain the assent of that Government to them, and this was formally done.  The Land Regulations having been thus made under the authority of Section 3 of the Order in Council, and duly legalised, are binding on all British subjects within the portion of the dominions of the empire of China to which they refer.  Section 4 of the same Order goes to shew in what manner such Rules and Regulations are to be made public.  It was possible that the Counsel for the defence would ask proof that the Land Regulations had been published in exact accordance with the requirement of the Order.  But it was not necessary to adduce any proof of this fact.  No evidence of it was kept, and it would be very difficult to find evidence of what had no doubt been done in the ordinary routine of business.  Not one of the officers who were at that time in the Consulate, is at present in Shanghai.  The Court was therefore perfectly justified in assuming that the requirements of the Order in Council were complied with.

   In Broom's Legal Maxims, pp. 847,848, it is laid down that what has been done must be assumed to have been done of right and not of wrong, and that in official matters the ordinary rule is that everything is presumed to have been rightly done if no proof to the contrary is adduced.  The onus of proving that the Section in question was not complied with is therefore thrown on the Defendants.  If therefore it were assumed as proved that the Land Regulations are binding on British subjects, and that the forms prescribed were duly observed, the right of the Plaintiffs to levy the taxation in question might be considered as established.

   The taxes were levied under Section 10 of the Land Regulations, which provided for the imposition of a tax for the purpose of constructing Jetties, improving Roads, &c.  The latter part of this Section proves conclusively that the Chinese Government accorded its consent, inasmuch as it covenanted that the case of a defaulter being unrepresented it would itself compel him to pay the annual amount claimed.  The Counsel for the defence had saved much time and trouble by admitting several facts of a merely formal nature which it would have been necessary to prove.  This he probably did knowing that the case must go against him, and that no difficulty would be experienced in bringing the necessary evidence.  He admitted:-

  1. - That at a Meeting of Land Renters held April 25th, 1865, the Plaintiffs were duly appointed under the Land Regulations, as a Committee to represent the Renters.
  2. - That at that Meeting an assessment of one-quarter per cent on the value of land in the settlement was declared.
  3. - That the testator for whom the Defendants are Trustees and Executors is the registered owners of the lots of land mentioned in the petition.
  4. - That the Plaintiffs have levied this tax and demanded payment, which has been refused, and
  5. - That the Land Regulations have been signed by the Consuls and Treaty Ministers.

   It might be argued that the Land Regulations are regulations such as it was never contemplated that the Consul should frame under the Order in Council; that, in fact, the [phrase "for peace, order and good government" is not comprehensive enough to justify them.  But if it be assumed that under certain circumstances the Consul has power to make certain regulations, it might easily be shewn that the Land Regulations come under the Order.  For example in the case of a Colonial Charter such as that of Hongkong, the Charter which is attached in the Proclamation contains no words limiting the extent of Regulations made under it, other than these, ":for the peace, order and good government of the Colony." Yet under this all the Hongkong laws relating to taxation, Municipal government, police, lighting, &c., have been enacted.  For this reason the objection must of necessity fall to the ground.

 

   The Counsel for the defence had kindly informed him (Mr. Myburgh) that he was about to raise an objection to the effect that the land alluded to is not within the limits mentioned in the Land Regulations.  Unfortunately the map referred to in the Regulations is not forthcoming, but there is sufficient evidence to prove that it included the English Settlement and Hongque.  Moreover, as it is admitted that the Regulations were signed by the Consuls and the Treaty Ministers, it follows that the American Consul and the American Minister, for whose nationals  Hongque was especially set apart, must have given their assent, ehich would not have been required had Hongque not been included.  It had further always been intended that the Regulations should apply equally to the French Settlement, the English Settlement, and to the suburb known as Hongque. Bedsides, the official reports of the Land renters' meetings shew that while Hongque was always regarded as subject to the same rules as obtained on this side of the Soochow Creek, the only ground whereon the Council refused to extend the provisions for Police, lighting, &c., to it, was that, as it was so thinly populated, it was not in a position to bear its share of the Municipal burdens.  But so soon as it was able to do so, it was immediately brought in.

   If, however, the map which he had mentioned could be found, it would appear from a simple inspection of it that Hongque was within the limits laid down as included in the Land Regulations.  Again in the official report of the land-renters' Meeting of March 31st, 1862, contained in the North China Herald, Mr. Medhurst, H.B.M. Consul, is s aid to have referred to Hongque as "a suburb every day gaining in importance as a portion of this settlement."  There was nothing to make it appear that Hongque was ever considered as without the limits, and the fact that Municipal control was for a certain time not extended to it, is explicable on grounds of expediency.

   It may, lastly, be argued that the convention made between Mr. Seward and the Taotai whereby meetings of Land-renters on the Hongque side obtained power to assess taxes within the American Settlement, does away with the idea that both settlements were under the same Municipal regulations.  But this is met by the considerations already brought forward as well as by the fact that Mr. Seward could not have presided at Meetings of Land-renters convened at the request of the Municipal Council on this side unless it was understood that the Land Regulations applied equally to Hongque.

   To resume, therefore, when the validity of the Land Regulations is granted, and their proper publication assumed; when the admissions made by the Defendants'' Counsel are taken into consideration; when the right of the Consul to enforce such regulations is granted; and the arguments adduced in favour of the belief that Hongque was always included in the Regulations receive their due weight, making allowance for the want of direct evidence regarding it, the case for the plaintiffs will appear abundantly clear.

   MR. WINCHESTER, H.B.M. Consul said: - I am acquainted with the Order in Council of 1853 and the sections referring to Consular Regulations.  The sanction of the Minister having been obtained, printed copies of the regulations should be placed on view in the public hall or in the public office, that is to say, in the office where ships are cleared.  Not one of the officers stationed at Shanghai when the Land Regulations were published is here now.  At that time no written endorsement relative to their proper publication would have been affixed.  Since the issue of the Order in Council for Japan, whereby such endorsement is made compulsory, I have had it complied with.

   To MR., LAWRANCE: - The Land Regulations were exhibited recently at this office because I wished to legalise then under the new Order in Council.  I have no doubt that the course usually adopted in other Consulates was pursued here.

   Mr. WINCHESTER further stated that he had always understood that the Land Regulations related to the three settlements.  Having been signed by the three Consuls he thought that the ultimate union of the three settlements under one municipality was contemplated.

   Mr. HOGG said: - I am at present Vice-Chairman of the Municipal Council.  I was interested in land at Hongque.  I have always, when possible, attended the meetings of Land-renters, and have taken a great interest in Municipal affairs.  I don't think the name Hongque is mentioned in the Land Regulations.  My impression was that Hongque was subject to the same Regulations as the other settlements.  Licenses to grog-shop keepers in Hongque were granted under the Land Regulations after having been counter-signed by the American Consul.  The police-force was not extended to Hongque nor were the roads kept in repair, as the land-renters could not well ask the Hongque residents to pay taxes.

   To Mr. LAWRANCE: - I always considered that Hongque was under the immediate jurisdiction of the American Consul.  I do not think that any attempt was made to levy taxes in the American settlement, for the reason already given that the Municipal Council placed no police there and did nothing to the roads.  I do not think the Municipal Council applied to the American Consul for permission to levy taxes in Hongque.

   To THE COURT: - Captain Balfour's regulations merely specify all land north of the Yang-king-pang.  No special mention is made of the three settlements.  The Municipal Council now extends its police-force to Hongque.  It is paid out of the general taxes of the settlement.  Hongque contributes to those taxes.

   Mr. LAWRANCE contended that if Hongque was considered as incorporated with the other settlements, it was unnecessary that Mr. Seward, the United States Consul, to enter into a special convention with the Taotai, which was sent to Peking for ratification by the American Minister.

   Mr. MYBURGH said that Mr. Seward did so, on account of the refusal of the Municipal Council to extend its jurisdiction to the American settlement.

   In answer to a remark by Mr. Lawrance, Mr. Winchester said that since the appointment of a non-merchant Consul for America that official had always resided at Hongque.

   Mr. ALABASTER said: - I am an Acting Vice-Consul here.  I have not charge of the Chinese records in this Consulate.  I believe the three documents shown to me have been in my office lately.  Two of them are translations of the Land Regulations stamped with the Taotai's seal.  I have caused search to be made for the map referred to in the first clause of the Land Regulations, but it has not been found.

   To Mr. LAWRANCE: - I am acquainted with the Land Regulations.  No boundaries are referred to in the Chinese copy.  The dates are the same as in the English version.

   TO THE COURT: - In Chinese it is customary to mention the English settlement particularly, when referring to the land between Hongque and the Yang-king-pang.

   This closed the case for the plaintiffs.

   MR. LAWRANCE said that he appeared on behalf of the Defendants in this case, and although he was not quite prepared to admit the pleasing and instructive sight which the Municipal Council had presented to the vivid imagination of his learned friend, yet he was compelled to say that the successive Councils which had for a series of years presided over the interests of the settlement had exhibited an amount of unanimity amongst themselves and a gentlemanly bearing towards those with whom they were brought into contact,  which was rarely seen in such a cosmopolite place as Shanghai.  He could not, however, in justice to his clients, pass over the opening observation of his learned friend that in defending this case they were actuated by the sole desire to derive as much as possible from the property under their trust and to escape contributing to the public burdens.

   His clients were Trustees of an infant's estate and no one knew  better than his learned friend how jealously the law looked on payments made by Trustees, and he (Mr. L.) thought, that having regard to the acknowledged uncertainty of the status of the Municipal Council, evidenced by their own reports of the difficulty of collecting taxes and the absence of any power to enforce payment of them in a Court of law, the Defendants were perfectly justified, both for their own protection and for the interest of the estate which they represented, in refusing to make any payments for which they might hereafter be calked upon to account without the sanction of a judicial decision. 

   He had several objections to urge in support of his case, and would commence with the last objection anticipated by his learned friend, viz: as to Hongque not being within the limits originally set apart for the residence of foreigners by the Land Regulations.  As the Court had already intimated a strong opinion on this point, he (Mr. L.) was quite content to leave it with the Court for consideration and further inquiry if necessary, but he was at a loss to understand why if the Hongque district had always been considered  part of the original boundaries, Mr. Seward, the United States Consul-General, had thought it necessary to make a special convention with the local Chinese authorities which was transmitted to Mr. Burlingame, the United States Minister, for his decision so recently as July 1863.  Up to that period Hongque had not been taxed, and the only reason for this was given by Mr. Hogg who said that the Police force not having been extended to Hongque nor the roads there kept in repair, the Council could not ask the Hongque residents to pay taxes.

   The second objection which he would take, bur which he feared he could not press with any weight, was the absence of any proof that the Land Regulations had been exhibited in the public office of the Consulate as required by Section 4 of the Order in Council.  He felt that it was as difficult for him at this distance of time to prove the negative as it was for his learned fried to prove the affirmative and as the third objection which he was about to take would render the second unnecessary he was content to leave it where it was.

   The third objection which he had to urge was, that the Land Regulations were not legally binding upon anyone who refused to submit to them because they were sanctioned under misconception of the powers of the Minister who consented to them, and that the powers conferred by them were not contemplated by the Order in Council.  The learned gentleman had referred to ## 3, 5, 6 and 8 of the Order in Council, in all of which the words "rules and regulations": were followed by a clause giving power to punish a breach of any of them by a fine or imprisonment.  He also referred to a despatch of Earl Russell, of August 14th 1863, in which the noble Lord stated that the "4th and following articles of the Order in Council relate to the infringement of the Treaty and other regulations and to the punishment of such infringements, and not in any way to civil suits."  He (Mr. L.) submitted that the land Regulations amounted to nothing more than an agreement made by a body of men (which might be made to-morrow by any number of individuals assembled for the purpose) to submit themselves to certain rules and orders for their own government; the sanction of the Minister of the day of course giving them extra weight, but not necessarily making them binding on those who should come after them.

   He (Mr. L.) then referred to an extract from a letter read by Sir H. Parkes at the meeting of Land renters in April 1865, written by Mr. Wade, then H.M.'s Charge d'Affaires at perking, in which he (Mr. Wade) stated that he did not consider that the Land Regulations had been so respected by the consenting parties as to make them binding or to give them any authority.

   Mr. MYBURGH objected that the statement was not evidence.

   Mr. LAWRANCE said that he only wished to inform the Court of the opinion held by men in high authority on such an important subject.

   Sir E. HORNBY said that he could not receive it as evidence.

   Mr. LAWRANCE wished to know what position the Municipal Council really occupied?  Did they consider themselves in the position of our Parliamentary representatives?  If so, then he admitted their acts were binding on their constituents and the case of the Defendants was at an end, but no one could contend that for a moment.  It is laid down by Blackstone as an acknowledged doctrine of law that no British subject could be constrained to pay any taxes even for the defence of the realm or the support of the Government but such as were imposed by his own consent or that of his representatives in Parliament.  Whence came, then, the power of the Municipal Council to tax?  They were not a corporation.  They possessed no charter.  Was it possible, as his learned friend had contended, that the Land Regulations passed under sec 3 of the Order in Council could confer this power? 

   The fourth objection raised by the learned Counsel was that of "Territorial Jurisdiction." Now his learned friend admitted that Territorial Jurisdiction wass vested in the Emperor of China and that the Chinese Government had the power to levy taxes for Imperial or local purposes; at the same time it was stated by articles 15 and 16 of the Treaty of Tientsin the right of jurisdiction over British subjects in China was ceded to the English crown.  But did this right of jurisdiction include the power of taxation?  He (Mr. L.)  contended that it did not.  Taxation was only incident to Territorial Jurisdiction.  This was clearly stated by Sir F. Bruce in  a letter dated August 1863 addressed by him in reply to the committee appointed by the Land-renters of Shanghai to take into consideration the past, present and future government of the settlement.  In this letter Sir F. Bruce states that

Territorial Jurisdiction is understood to mean the right to control thoroughfares and public buildings, public wharves and jetties and the right to impose and collect taxes," &c.

Now, if the right to impose and collect taxes followed only on the possession of Territorial Jurisdiction, and the Municipal Council did not possess Territorial Jurisdiction, what became of the argument that they had a right to impose and collect taxes?

   But his learned friend had said that the Act of 6 and 7 Vic. c. 94, made it lawful for Her Majesty to exercise the same power in foreign countries which she would have had, had she acquired such power by conquest.  He (Mr. L.) would refer to a case which had been tried in Hongkong in [1862], in  which a firm in  Shanghai whose goods had been confiscated by the Commissioner of Customs (Mr. Fitzroy) applied to the Supreme Court of Hongkong for a mandamus to compel Mr. Medhurst, H.B.M.'s Consul at Shanghai, to try the case, he having refused to do so, ion the ground that Mr. Fitzroy, although a British subject was in the service of the Emperor of China and therefore was not amenable to British just diction.  He (Mr. L.) had only been able to obtain the official letter addressed to Mr. Medhurst in which it was stated that the Court refused to grant the mandamus because Shanghai was not within the Queen's dominions and the writ could not run there.

   Sir E. HORNBY remarked that he thought there must be some mistake, as he did not think the Court of Hongkong could have decided that the writ of mandamus could not run in Shanghai.  It was probably decided on the ground that the Supreme Court of Hongkong could not assume such a power, being merely a Court of appellate from the Consular Court.  The learned Judge then referred to a similar case which was tried in the Levant.

   Mr. LAWRANCE stated that he might have been misled by the very strong expressions used by the Attorney General in his letter.  He had referred to it to shew that, great as were the powers of the Queen under the Act 6 and 7 Vic. C. 94 referred to by his learned friend, they were not unlimited.

   Sir E. HORNBY did not think it could be contended that the writ of mandamus would not run in Shanghai from a superior Court in England.

   Mr. LAWRANCE said that his last objection was that the Plaintiffs had levied the tax in dispute on Land.  It was described as a Land Tax in the debit note sent to his clients.  He wished to ask what the Plaintiffs definition of Land Tax s?  If it was a tax on land, they were taxing property which did not belong to them, but to the Chinese Government.  The right to tax land existed, if anywhere, in the Chinese Government, and there was nothing to prevent them from levying it.

  He (Mr. L.) said that this objection concluded the Defendants' case and he would not trouble the Court with any further observations.  He had endeavored, very inefficiently, to discharge what he could not help feeling an onerous duty, and as it was a case of such importance to the whole community, he felt sure that his Lordship would carefully weigh all the points which had been put before him and that whatever the decision might be - he hoped it would set at rest all the difficulties which had for so many years collected round the subject of Municipal Government in Shanghai.

JUDGMENT.

 

   This is an action brought by the Committee of land-renters appointed in pursuance of and under the 10th Article of the Shanghai Land Regulations, against the Defendants, to recover the sum of Tls. 590.30 in respect of the arrears of a rate on certain lots of land duly levied by the Plaintiffs, and refused payment of by the Defendants.

   The Defendants have very properly admitted that the Land-renters did duly declare an assessment of one-quarter per cent on the valuation of all land in the settlement; that the meeting of the Land-renters was duly called and took place on the 25th day of April 1865; that the Plaintiffs were duly elected to form a Land-renters' Committee and as such Committee did levy the rate in question under the before mentioned Article 10 of the Land Regulations; that they, the Defendants, are the owners of the lots in respect of which the rate is levied and that they have refused to pay the same.  They also admit that the Ministers and Consuls of the three Treaty Powers signed in 1854 the Land Regulations under which the Plaintiffs claim the power of levying rates on land and sueing defaulters in the Consular Court under whose jurisdiction these latter may happen to be.

   The Defendants allege, however, that the Land Regulations are not binding on dissentients and that the Plaintiffs, as such Committee of Land-renters, have no power to levy the rate in question or sue for its recovery; and they also say that the land in respect of which the tax is sought to be recovered is not within the limits mentioned in the Regulations.

   It is difficult to overrate the importance of the questions thus brought under my notice for my decision.  It is admitted on all hands that the members of the Municipal Council or Land Renters' Committee have worthily fulfilled the very onerous and responsible duties that have been imposed on them, and it is indeed a satisfaction for me to bear witness to the excellence of the arrangements made by them for the peace, good order, and government of the settlement.  It is clear, however, that if they have not the necessary power to raise funds absolutely necessary for the purpose of enabling them to provide for the protection, for the peace and good order of the settlement, and the health of the community resident within it, they are absolutely without the material means of performing the duties imposed on them.  At the same time it is desirable to establish by a judicial decision the legality or illegality of their acts; and the Defendants, being the trustees and executors of the deceased owner of the land in respect of which the rate is sought to be recovered, are naturally desirous of making no payments but such as they can justify when summoned to render an account of their stewardship.

   The first question for me to determine is the source of the authority of the Plaintiffs.  They appeal to the Land Regulations. The Defendants reply that the Ministers or Consuls who enacted these Regulations had no authority to make them, and that, having no authority, they could confer none.  It is only necessary for me in this case to satisfy myself that the British Representative had the power to do what he has done.  But I may say that I have very little doubt that the representatives of France and the United States of America would not have been parties to an arrangement of such importance as the Land Regulations had they not been profoundly impressed with the conviction that they were acting within the powers conferred upon them by their respective governments.

   Now the authority, whatever its nature, conferred on the representative of Her Majesty, was conferred by certain words in the 4th Section of the Order in Council of June 13th 1853.  These words are to the effect that the Superintendent of Trade shall have, amongst othetrs things, power and authority to make and enforce rules and regulations for the "peace, good order and government" of Her Majesty's subjects within the dominion of the Emperor of China.

   This Order is framed in pursuance of and under certain Acts of Parliament recited in the preamble to it; notably under that passed in the 6th and 7th years of the reign of Her Majesty, known as the "Foreign Jurisdiction Act," which enables Her Majesty to provide for such power and jurisdiction as she may have over British subjects in divers countries and places out of Her dominion in the same and as ample manner as if Her Majesty had acquired such jurisdiction by the cession or conquest of territory.

   The Order also recites that Her Majesty hath, by teary, grant, sufferance or other lawful means, power and jurisdiction over British subjects within the dominion of the Emperor of China, and that the same or certain parts thereof have heretofore been exercised on behalf of Her Majesty by Her Majesty's Consular officers resident within the same dominion.

   Indeed it is a matter of notoriety that by some of the means alluded to, the Emperor of China has granted to Her Majesty, and Her Majesty does enjoy a right of exclusive jurisdiction over such of Her subjects as shall resort to the dominions of His Imperial Majesty.

   It is, I presume, almost unnecessary for me to state that if Her Majesty can exercise Her power and jurisdiction over British subjects in China in as ample a manner as if She had acquired such power by cession or conquest of the territory, that She can provide for their good order and government.  Indeed I am inclined to go further and say it is incumbent on Her Majesty, by virtue of an obligation to be implied from the very privilege of exclusive jurisdiction granted to Her, to provide for the peace, good order and government of those of Her subjects who are within the Empire of China and removed by the consent of the Sovereign power of that country from the operation of its laws and the jurisdiction of its native Magistrates. And we find that She has accordingly done so.

   The learned Counsel for the Defendants, however, contends that by the use of the terms employed to which I have referred She has not granted to Her representative the right to impose rates or levy dues on British subjects or their property in China.  The words, however, of the provision for the "peace, good order and government" have a wider significance and confer great power and authority. They are the words most generally used in the charters granted to the Colonies, and if we refer to the Charter of the Colony of Hongkong we shall find that the source of the authority of the Governor and Legislative Council of that Island springs from the use of the same expressions.

   If, then, these words have authorised the Governor and Legislative Council of Hongkong to frame ordinances embracing within themselves the enactment of laws, they levying of taxes and the provision of a variety of other useful and necessary measures for the peace, good order and government of Her Majesty's subjects and others within that colony, - by what process of reasoning can we assert that the same words used in the same sense and with the same objects are limited in their meaning and application when applied to British subjects within the dominions of the Emperor of China?  I confess myself at a loss to understand the distinction made.  To my mind, within the limits which Her Majesty has Herself assigned and within those by which the right of exclusive jurisdiction in China has been conferred. They are identical in meaning; and within the limits I have alluded to, confer on the Chief Superintendent of Trade the same powers as they conferred on the Governor and Legislative Council; of Hongkong.

    The next point to determine, then, is the mode in which the Chief Superintendent of Trade has in China endeavoured to carry out the powers confided to him, and we find that he has sanctioned, and given the force of law to certain regulations called Land Regulations which were submitted to him for his approval.  By these regulations he has authorised and permitted the Consuls at certain times and for certain purposes to call meetings of Land-renters to declare an assessment in the form of a rate to be made on land or buildings, and in the form of wharfage dues on goods landed at any place within certain limits.  He has declared for what purposes and to what ends the funds so raised shall be applied, and he has permitted the body of Land-renters so convened to appoint a Committee of three or more of their number to levy the said rates and dues, and to apply the funds realised for the special purposes indicated in the first half-dozen lines of the 10th Section; and it is in respect of a rate levied in conformity with this provision, on the Defendants that the present action is brought.  It is admitted, as I before said, that the land is the land of the Defendants, that the meeting of Land-renters who made the assessment was duly convened, that the Committee have levied the rate, and there is no question raised but that the funds realised have been properly applied.

   Looking, then, at the facts, I am of opinion that the Superintendent of Trade has properly exercised the power conferred upon him under the 3rd Section of the Order in Council of the 13th of June, 1853; that the Land-renters and the Committee have acted within their powers, and that the rate is due and payable by the Defendants.

   There is, however, another circumstance or fact which has an important bearing upon the question before me, when considering the legality of the proceedings of all the parties to the imposition of the rate and the right of the Committee to sue for and recover it in the Consular Court.  I allude to the assent of the Imperial Commission of His Majesty the Emperor of China to the Land Regulations themselves.  This assent entirely does away with any objection that may be made that the right to tax anybody on Chinese soil is a territorial and a sovereign right which it must not be hastily presumed has been yielded up.  To the Regulations themselves in their entirety the Imperial Commissioner has assented.  His authority is not to be called in question, nor has it been called in question, and therefore when we couple this assent on the part of the Representative of the Sovereign authority in China with the action of the representative of the British Crown it is impossible to conceive but that all has been done which under almost any circumstances was necessary to do.

   I pass now to a point raised by the Counsel of the defendants to the fact that the land upon which this assessment was made and rate levied is situated in that portion of the foreign settlement, commonly known as Hongque or the American settlement.  I must observe that although the point raised no evidence was tendered on the part of the Defendants to shew that the Hongque settlement was not included within the sphere of the operation of the Land Regulations, while the evidence adduced on the part of the Plaintiffs points to but one inference, namely that it was so included.  It was established that the American Minister and the American Consul signed the regulations, and that the Municipality, both with regard to the issuing of licenses under the 12th Section of the regulations and providing for the safety of that portion of the settlement by a detachment of the Municipal Police force, paid out of the general taxes to which the residents of Hongque contribute, considered that it formed part of the settlement.  Under those circumstances and in the absence of any evidence to the contrary, I can come to no other conclusion but that Hongque is affected, and was intended to be affected, by the Land Regulations.

   I pass now to another objection raised by the Defendant which, however, was not very much insisted upon in the face of the evidence adduced by the Plaintiffs.

   The 4th Section of the Order in Council provides for the printing and exhibition in some conspicuous place in the office of the Superintendent of Trade or Consul of all rules and regulations made under it.  There was clear evidence of the printing and publication, but inasmuch as from the change of Consular officers at Shanghai during the last thirteen years, no witness could be called who could speak to the actual exhibition of these land Regulations it was contended that the only conclusion I could come to  was that they had not been exhibited.  I think, however, the evidence of Mr. Consul Winchester in the absence of all disproving testimony is conclusive on this point.  Mr. Winchester bears witness to the invariable practice of the office of this Consulate, and indeed of all Her Majesty's Consulates in China on matters of this kind.  His experience enables him to speak with great certainty that the exhibition was duly, and indeed in the ordinary course of business must have been duly made.

   Looking therefore at the facts that Her Majesty has the power conferred upon her by Act of Parliament to proved "for the peace, good order and government of Her subjects in China, - that by Her Order in Council she has given power and authority to Her Chief Superintendent of Trade in China to make such provisions as he thinks fit and proper to attain the object in view, - and that the phrase or words used by Her Majesty in Her Order in Council are those which have customarily been used in the Charters granted to Colonies, which have been held sufficient to sanction the making of laws, - the collection of revenue - and the performance of almost every act of government; - looking also to the fact that the rules framed and sanctioned by the Superintendent of Trade provide for the calling of a Meeting of Land-renters for the purpose of declaring an assessment on land, and levying Wharfage and other dues, and for the nomination of a Committee and the delegation to it of certain powers of collection and of application of the funds resulting from the assessment of dues, and of sueing such defaulters in the Consular Courts, I cannot do otherwise than hold that this action is rightly and properly brought, and that a verdict must be entered for the Plaintiffs  for the full amount claimed.

   I have no doubt in my own mind of the wisdom which induced the employment of words of such large significance as those used in the Order in Council.  Her Majesty's advisers, in all probability, contemplated the increasing growth of this vast empire of trade, and at once made provision, and elastic provision, - for the exercise of an authority which whenever the circumstances demanded could be easily brought into action,

   I equally have little doubt that Her Majesty's Superintendent of Trade has properly and wisely exercised the power conferred upon him.  He has not sought to create of his own will and pleasure sources of revenue, or put himself in the position of a tax-maker or tax-gatherer, but he had fully entered into the spirit of out home legislation, - he has left the task of providing the ways and means and the application of them to those most nearly concerned and interested, and if time and the progress of events should now suggest alterations in that system, the principle will remain untouched, a greater development being all that is required.  The authority, as it should, will still emanate from the representative of the Crown, and so long as the Committee of land-renters or the Municipal Council, or by whatever name they may be called, limit as they have hitherto done their action within the sphere of the powers conferred upon them, they have in my opinion a legal status, and are a legally constituted body possessing the chief and material, if not all the requisites of self-government.

   The verdict will be for the Plaintiffs for the amount claimed with costs.

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