Skip to Content

Colonial Cases

R. v. Robinson, 1869

[registration of British subjects]

R. v. Robinson

Supreme Court of China and Japan
24 April 1869
Source: The North-China Herald, 1 May 1869



April, 24th 1869.

Before Sir EDMUND HORNBY, Chief Judge.


    The Defendant in this case was summoned for not registering himself as a British subject, in compliance with Sec. 114 of the Order in Council.  He was convicted by the magistrate on the 19th ulto.; but a special case was granted at his request, raising certain objections to the conviction, which are quoted in his speech.

   Mr. ROBINSON began by quoting authority in support of the principle that judicial procedure in the Supreme Court in China, must be adapted that that in practice in England.  In all criminal proceedings in England, it was essential that the charge should be distinctly stated; and the Judges, in considering penal statutes, favoured the innocence of the subject until his guilt was proved.  The rules of procedure were there interpreted with great strictness, and he would ask the court to apply the same strictness, in dealing with criminal cases here, as was usual in England.  He went on to quote Archbold's Criminal Pleadings to show that if the offence were not defined in an indictment in the exact words of the statute, the indictment was held to be bad.  Therefore, the court was bound to look strictly to the wording of the Act.  With these preliminaries he would come to his first objection. -

The the information or complaint upon which the conviction is founded, does not aver that the said Alfred Robinson had not excused his failure to Register on conformity with 114th & 115th Sections of the "China and Japan Order in Council 1865" to the satisfaction of the consular officer.

He contended that the summons did not aver what was a material point.  In order to find out whether this objection was good, it was necessary to refer to the practice in England.  (V.P. 44, 51, 54 Archbold's  Pleadings.)  Therefore, unless a distinction were drawn between indictable offences and those punishable by summary procedure, there was clearly an omission fatal to the conviction.  To show that there was no such distinction, he referred to Oke's Magisterial Synopsis p. 114 & 115.  It followed then that the summons was faulty.

   The COURT said if the wording of Sec. 114 of the Order in Council were "any one failing to register himself and not having excused" there might be something in Mr. Robinson's objection; but the words were "failing and not excusing," contemplating that the defendant would have an opportunity of explaining even at the time he was summoned, before the consular officer.

   Mr. ROBINSON saw no difference between the past and present tense.  There were two ingredients in the offence; not registering and not excusing one's self. The latter was wanting in the charge.  He had no opportunity of excusing himself before the court.

   The COURT said the Rules were not only intended for the guidance of this court, but applied equally to the outlying ports, to the case of a consul sitting in his own court.

   In the course of a discussion which followed, Mr. Robinson held that the question of excuse or no excuse was expressly taken out of the hands of the court, and entrusted to the consular officer.  He denied the power of the court to deal with it.  The court could listen to no excuse.

   The COURT assented to this, so far as its inability to listen to any excuse was concerned.  The consul could alone accept an excuse.

   Mr. ROBINSON would not go on to his second objection, which was:-

That the summons dated the 15th day of March 1869, to appear and answer the charge named in the said information or complaint, is not signed by the officer of the court enabled by law to grant the same.

In support of this objection, he would refer by analogy, to the practice of courts at home, and quoted Oke's Synopsis p. 108 (laying down that the summons should contain the name and style of the justice issuing it.)  The objection was not, as it might at first sight appear, a formal one; but involved an important principle.  By English law, if a justice did anything exceeding his jurisdiction, he was liable to action; and the defendant ought to know who he was in order to be able to proceed against him.  The members of this court would hardly be responsible for each other's acts; each member of it was bound to put his name to the proceedings which he authorised.  It had been suggested that the form of summons given in the Schedule of the Order in Council did not specify the necessity for a name; but this did not render it the less necessary.  If he (Mr. R.) wanted to bring an action, was he to bring it against the seal of the court.

   The COURT referred to the Rule which prescribed the use of the seal.

   Mr. ROBINSON urged that the order to put a seal could not exclude the practice of the law in England.  This law provided that a justice doing anything in excess of his jurisdiction could be summoned; the name of such justice must then appear, otherwise the defendant would not know against whom to complain, and the Act would become nugatory. The inconvenience was clear, and the legal inference was that the name of the justice ought to appear. 

   He came now to his 3rd objection, which went to the root of the whole proceeding, and was applicable to all cases, besides this one.  It was:-

That the act charged in the said information or complaint, is not an act that would by a court or justice having criminal jurisdiction in England be deemed a crime or offence making the person doing such act liable to punishment in England, and it is not an act which is declared an offence by the said Order in Council, or any regulation or rule made under it.

   The objection was, in substance, that this was not an offence, and if there were no offence there was no criminal jurisdiction.  In order to ascertain what was an offence, he would refer to Art. VI 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, on the exercise of criminal jurisdiction under this Order, be deemed a crime or offence making the person doing such act liable to punishment.

   It had been conceded in the court below that this was not an act liable to punishment under English law.  If it were an offence, then, it must be made so by the Order in Council.  And he asserted that nowhere in the Order in Council was it made an offence.  The learned Magistrate had merely said it must be an offence because some one was liable to a penalty; but men might be liable to a penalty without having done anything criminal.  If a statute were invented imposing a penalty on British subjects who wore beards, it would not follow that wearing beards was criminal.  And not only was there no express declaration that non-registration was an offence; but there were several very strong presumptions, in the language of the Order, against it being considered an offence.

   Where the Order desired to make an act an offence, it was careful to specify it.  See, for example, Sect. 97 about unlawful trading with Japan.  Sec. 100 in regard to interference with the religious worship of natives; Sec. 113, regarding deported persons who might return, both clearly defining these as offences, and stating who was to try them.  Others might be quoted, but these were sufficient to show that the Order was careful to specify what should and what should not be considered offences; and raised the legal presumption that acts not so specified were not to be considered offences.  It was a well known legal maxim, expressio unius exclusio ulterius. The learned magistrate had attempted to draw a distinction between the offences of commission and omission; but he must say, he failed to see any soundness in the distinction.  The thing which constituted an offence in this case, was omission; unless there were omission there was no offence.  If that were an offence, it would have been so specified by the Order in Council.

   He had already pointed out that, in all criminal courts in England, the criminal offence must be clearly defined.  Now what it was contended was the offence here, was non-registration without satisfactory excuse.  He would ask the court whether, in the whole range of English law, a man was liable to be deemed a criminal at the discretion of another.  If non-registration were not a criminal offence, the magistrate had no jurisdiction.  No such power was given to any one in England, and it was not intended to be given by the Order in Council.  If it had been intended that British subjects should be liable to imprisonment for non-registration, so serious an intention would have been expressly named in the Order in Council, and if there were no expressed intention, the court should rule in favour of the subject.

   He might be guilty of non-registration on Monday, and be condemned to a fine; pay the fine; and without having registered or even intending to register, be free from punishment for that year, although still in exactly the same position in respect to registration, as before; for a man could not be punished twice for the same offence, unless the statute provided differently.  And all these difficulties could, he concluded, be avoided by a simple and literal interpretation of the section (114) in question.  This provided that -

Any person failing so to register himself or herself, and not excusing his or her failure to the satisfaction of the Consular Officer, shall not be entitled to be recognised or protected as a British subject in China or Japan, and shall be liable to a fine not exceeding ten dollars for each instance of such failure.

   The penalty, then, was - non-recognition.  And this enabled the consul to exercise quite sufficient pressure to exact the fine.  He had only to say to any one who wanted his aid - "You are not registered," and to insist on his registering himself and paying a fine before consenting to help him.

   The COURT. - And he would also be liable to non-recognition in this court.

   Mr. ROBINSON dissented. - The Queen could not outlaw her subjects.  The constitution of our courts of justice forbade the idea that any British subject could be debarred from coming into this court.  The penalty for non-registration was non-recognition by his consular officer; he imagined that any judge who refused to hear a British subject would be liable to impeachment.  And he contended that the context wass perfectly consistent with his view of this phrase.  A recusant was to be "liable to a fine," and how much more rational a mode of exacting this fine, was that which he suggested, than distress or condemnation to hard labour.

   He now came to his fourth objection.

That the Law Secretary or magistrate who heard the said charge, refused, upon such hearing, to allow evidence to be given of facts material to the defence of the said Alfred Robinson, although requested so to do by the said Alfred Robinson; to wit, the said Law Secretary or magistrate refused to direct a witness, named Alexander Harvey, to answer any questions put to him by the said Alfred Robinson, whether Edmund Hornby, the Chief Judge of this Court, C. W. Goodwin, Esq., the assistant Judge of this Court and R. A. Mowat, Esq., the Law Secretary of this Court, were registered undetr the provisions of the 114th and 115th sections of the "China and Japan Order in Council 1865."

   The COURT. - You will have to show that this evidence was material to your defence.

   Mr. ROBINSON would be able to do so.  It was quite clear that, if he had been allowed to put the question, he would have obtained one of two answers.  Either the gentlemen named were or were not registered.  If they were registered, the answer was useless for his defence.  But if they were not registered, it was very material.  He would, of course, have asked why they were not; and would have forced the consul to say what excuse he had accepted for not insisting on their registration.  It was clear that he might have founded on this answer a strong argument.  If H.M. Consul had said, I excuse Sir Edmund Hornby because his status is sufficiently assured, he (Mr. R.) averred that the same rule would apply to all respectable people in Shanghai, who had registered themselves year after year.  The question, therefore, was quite pertinent.  The Order contemplates an excuse, and he wanted to see whether he could not find an excuse as well as other people.  The magistrate had completely misapprehended the drift of his questions.  He had replied that it was no excuse for one criminal to say that another was equally criminal with himself.  But Mr. R.'s contention had been that there was no offence at all.  He submitted, then, that by the question being barred, he was debarred from a line of defence.  If he gave a satisfactory excuse, he was not liable to fine.

   The COURT            . - Of course not.

   Mr. ROBINSON said it was then clear that the question was whether there was an excuse, was the gist of the whole thing.  He now came to his fifth objection.

That no criminal jurisdiction is given to this Court by the said Order in Council enabling it in the exercise of such jurisdiction to make any order for the payment of the fine mentioned in the 115 section of the said Order in Council, nor of any costs in relation thereto as is done in and by such conviction, and that this court had no such jurisdiction.

   The words which created the fine were "shall be liable to as fine, not exceeding $10."  The clause did not say "shall be liable on conviction."  There was merely as vague declaration, which gave no jurisdiction; the recusant merely remains liable; and the matter is easily settled when he goes to his consul for aid, by the latter exercising the pressure which the power of non-recognition gives him.  In cases of criminal offences in England, the charge always ran shall upon conviction forfeit and pay; (The Gaming Acts; the Game Acts; the Vaccinations acts, &c.) in all, the language was identical.  And omission was the more remarkable in this instance, because, in other cases in the Order where there was an offence specified, the same wording as in the English acts wass employed.

   Why should it be omitted in this particular case?  If the same power were given to the court under Secs. 114 and 115 as in the other sections, the same language would have been used.  Everything confirmed the view which he ventured to submit; that the Order never contemplated making non-registration a criminal offence, and that it should not be treated as such.  The wording of the Sec. was quite consistent with this view.  In whose discretion did it lie to define the amount of fine to be imposed?  If it were in the discretion of the consul, he might exact only a few cents; and it it were in the discretion of the consul it could not be in the discretion of the court.  If the court had no discretion, that conclusion wass inconsistent with the Order, which says "not exceeding $10."

   He would conclude with what appeared to him to be a broad illustration of the theory he had ventured to propound.  Could the court conceive that it ought to be judge in its own case?  Suppose all the judges thought they were exempt from thje obligation to register.  The consul differed and prosecuted them.  How was he to enforce his view?  Would he summon the delinquent Chief Judge before the equally guilty magistrate, and would the latter commit his superior to hard labour for two months in H.M. Consular jail?

   The COURT. - There is nothing about hard labour.

   Mr. ROBINSON differed, and quoted the wording of the conviction in his own case.  These were the reasons for which he dissented from the decision of the learned magistrate.  He thanked the court for so kindly listening to his remarks, and was sure it would fairly weigh them.

   His Lordship delivered judgment as follows:-

   I confess that I have not been able to follow the arguments brought forward by Mr. Robinson in support of the points raised by him against the legality of the conviction, - it may be that I have not sufficiently understood them.  It seems to me that the language of the Order in Council, under which the fine of $10 was imposed, is simple and clear.

   With reference to the 1st point raised in the special case, it appears to me to be evident under the language of the third paragraph that it was in no way necessary to mention in the summons that the defendant had not excused his failure to register to the satisfaction of the consular officer, as it was open to him at any time - and especially where in the outlying districts the consul would be the judge - to offer an explanation, even during the hearing of the summons. The "not excusing the failure" is not as condition precedent to the right of the consular authority to take proceedings to inquire into and determine whether the penalty mentioned in the section had accrued or not, but it is simply, if one at all, a condition precedent to the right or power to inflict the fine.  It was matter rather of evidence; and if it was shewn that Mr. Robinson was a British subject and had failed to register, and had failed to excuse his failure for non-registry, the right to inflict the fine arose.  In the special case it is admitted that he had not registered and that he had not excused his failure. The non compliance with the Order in Council consisted in the fact of non-registration within the period prescribed - not in the failure to excuse the omission.  There was therefore no necessity to allege in the summons "then failure to excuse."

   With reference to the 2nd point, there is no necessity, according to the rules of this court, that a summons of this nature should be signed by the officer issuing or granting the same.  All that is required is that the seal of the court should be affixed to the summons.

   With regard to the 3rd point there can be no question that the failure to register in China or Japan under the Order In Council would not be cognisable by a court or Justice having criminal jurisdiction in England, - simply for the reason that the Order in Council which inflicts the fine of failure does not apply to or give jurisdiction to courts in England.  It appears to be wholly immaterial whether the section in question declares a failure to register an offence in haec verba, or whether it simply declares the party so failing liable to a specified fine.  Disobedience to an order contained in an Order in Council is in itself a quasi offence whether the word 'offence' be used or not; and if such disobedience is expressly stated to entail as liability to be fined by a competent authority, the presumption that the act of disobedience is an offence appears to me irresistible.  Indeed, it has been holden that disobedience to an Order in Council is an indictable offence punishable and a misdemeanour at Common Law.

   The 4th point is that the conviction is bad, because the magistrate refused, upon the hearing of the summons, to allow evidence to be given of facts alleged to be material to the offence.  The evidence so alleged to be material and so rejected is stated upon the special case before me to consist of whether or not certain other persons had registered.  The magistrate properly considered such questions were not material, on the grounds that the non-compliance of other persons would in no way contribute a defence for Mr. Robinson's non-compliance.  The discretion of admitting an excuse for failing to register is solely in the consular officer, and it it had even been the fact that he had excused the other persons, about the fact of whose registration Mr. Robinson was desirous of making enquiries, his having done so would not have necessitated his accepting Mr. Robinson's excuse even if he had offered one.  I agree therefore with the magistrate, that he was not obliged to direct any witness to answer any question which in his opinion would not in any way be material to the defence, and had really nothing to do with the question before the court.

   With reference to the 5th point, it appears to me that the 151st section of the Order in Council, if I understand its meaning aright, disposes of it satisfactorily.  That section declares that inter alia "costs" and "fines" payable under the Order may be levied by distress.  In the outlaying ports the Consuls have full jurisdiction to enforce obedience to the Order in Council, and, on proof of disobedience, it would be competent for them to impose the fine.  In Shanghai all her Majesty's jurisdiction exercisable in China is vested for and within the district of Shanghai exclusively within the Supreme Court.  Hence it follows that the magistrate of the Supreme Court had full jurisdiction in the matter.

   I therefore overrule the objections raised to this conviction as far as they are disclosed to me on this special case, and affirm the conviction, so far at any rate as the infliction of the penalty together with the cost of the summons and its enforcement by distress is concerned.

   With reference to Mr. Robinson's application under the 140th section for leave to appeal to Her Majesty in Council from my decision on this special case, feeling as I do on the subject, I think I should be doing wrong in declaring the case to be a fit one for such an appeal.

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