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Colonial Cases

United States v. Smith, 1872

[assault - resisting arrest]

United States v. Smith

United States Consular Court, Shanghai
15 January 1872
Source: The North-China Herald, 18 January 1872



Shanghai, Jan. 15.

Before GEO. F. SEWARD, Esq., Consul General.

U.S. v. E. M. SMITH.

Assaulting and resisting the police, and inciting others to assault and resist the police in the execution of their duty.

   Mr. RENNIE for the prosecution.

   Mr. EAMES for the defence.

   Mr. RENNIE, for the information of the Court, stated the circumstances of the case, but as the evidence clearly explains then we do not think it necessary to reproduce his opening remarks.

   Sergeant McELVEY, sworn, stated - On the 12th of this month, Friday, the officer whom I relieved off duty at the Central Station told me that Mr. E. M. Smith's men were opening the ground on the Soonkong road, Yang-king-pang, that Mr. Clark had been to the office and stated that Mr. Smith had no permission to open the ground, and that he had been there himself and stopped the men from working, and if they commenced again they were to be stopped.  I sent a native constable to the Yang-king-pang, with instructions that if Chinese were to open the ground any more he was to stop them - if a foreigner he was to report it.  He came to the Station a little after four o'clock, and stated that a foreigner belonging to Mr. Smith was there directing the work.  I reported to the Superintendent, and asked whether I should take the men in or merely put a stop to their working.  He said to put a stop to them - that they could not open the ground without permission.  I went to the place with the native constable, and saw two Chinese at work who, in my approach, knocked off.  I asked them through the native constable who told them to open the road.  They said a foreigner.  I told them to bring him, and they brought Mr. Smith's watchman.  I asked if he had ordered the work and he replied "No; Mr. Smith said he was going to get a permit, but in the meantime had told them to go on with the work."

   I told him he could not open the road without a permit, and the best thing he could do would be to order it to be filled up again - to get the permit and open the road after.  He refused to allow his coolies to fill it up, and I told the native constable to get others.  The constable did so, and the watchman then said he had better call Mr. Smith.  I agreed, and he went away.  I put the coolies to fill up the place, and the watchman shortly appeared with Mr. Smith.  I asked Mr. Smith if he had got a permit.  He said "No; d-n the permit; this is my private property and you'd better be off at once."  I told him I did not know it was private property, being a public roadway, and if he wanted to open it up he must get a permit.  He went forward to the first coolie working, took the shovel from him, and threw it on the side.  The other coolie had stopped, seeing this, but I motioned him to go on again and he did so.  Mr. Smith did the same to him.  I then said I must fill it in myself.  I took the shovel, and as I was stooping in the act of putting as shovelful in, Mr. Smith ran forward, took the shovel out of my hand, threw it down, got hold of me by the collar with one hand, and with the other hit me on the side of the face.  Then with both hands he shoved me clear of him, knocking my cap off.  I then told him that he had assaulted me in the execution of my duty and would have to go to the Station with me.  I took hold of him, but he strongly resisted, struck me several times, and also called upon his foreign watchman to assist him.  In his resistance, he marked my face with his nails, but did not do so in striking me.  After a little struggling we came to a standstill; everything was quiet; I still kept hold of his collar.

   I called on the native constable, who was standing alongside, to go to the Station for assistance.  He did so, but in the meantime another of Mr. Smith's men, named Anderson, a rent collector, came up.  Mr. Smith called on this man and the watchman to release him out of my custody.  They stood for a few moments, and I told Anderson not to interfere - there was no disturbance going on, and if he interfered he would have to answer the consequences.  Mr. Smith said he would bear all responsibility, if they rescued him.  Anderson got hold of my left hand and put it behind my back, and Johnson, the watchman, took hold of the other, by which I was holding Mr. Smith, aided by Mr. Smith.  They had them both behind my back, and Mr. Smith was then freed.  He got hold of my hair with both his hands, forced me down to the ground, and held me there for about a minute, pulling at my hair.  He then released me, Anderson still keeping hold of my hands, till I told him he had better let go, and got up and shook him off.  We all stood still together and Mr. Smith told Johnson to go for Mr. Penfold.  He left to do so.

   In the meantime the assistance I had sent for to the Station came - Sergeant Dzionk, P.C. Collins, and P.C. Doyle.  When they came I pointed to Anderson and told Sergeant Dzionk to take him in custody for assaulting me.  He did so, assisted by P.C. Doyle.  I then took hold of Mr. Smith myself, and called on P.C. Collins to assist me.  We took him to the Station, but on the way we met his watchman returning.  I told Collins to leave Mr. Smith and to take the watchman in charge and he did so.  I saw Anderson resisting the two men who had him in custody, and trying to strike Dzionk.  Mr. Smith resisted on the second occasion, on the impulse of the moment, but then went with me quietly, and told Anderson to do so.

   To Mr. EAMES - The coolie partly picked the shovel off the ground and then I took hold of it.  Mr. Smith did not take the shovel from the coolie and I from him.  I swear he struck me before I put a hand on him, though without marking me.  He struck me once and shoved me by the collar, and I took hold of him afterwards by the collar - not by the whiskers, though being ling there might have been a portion of them.  Then he struck me.

   Mr. EAMES asked what were Sergeant McElvey's instructions with regard to personal interference with citizens.  He understood there were such instructions; or had sergeant McElvey any special instructions to intrerfere in this case?

   Witness - I had no special orders, except so far as the officer I relieved told me the road was being opened, and it it was begun again it was to be stopped.  I acquainted the Superintendent that I was proceeding to stop it before I left the Station.  Mr. Smith never mentioned Mr. Clark's name to me, and did not say Mr. Clark would explain the work being continued.  I did not know whether or not Mr. Smith had been to Mr. Clark's office.  The watchman said Mr. Smith had gone to Kungpoo, but whether to Mr. Clark he did not know.  It might have taken me five minutes to go to Kungpoo and ask about it myself, and the only harm that could have occurred would have been my neglecting my duty when I was told to stop the opening of the road.  When going to the place I met one of the Municipal road inspectors, who told me there was no permit taken out. I never mentioned Mr. Smith's name the night before, nor said I was prepared to arrest him.

   Johnson, the watchman, had been at the station the day before about something, and chanced to say he had been locked up once but would take care not to be again, for he had a good backer now Mr. Smith had come out.  I told him it was quite immaterial whether Mr. Smith was there or not, anyone who did wrong deserving of it would be arrested.

   To Mr. RENNIE - The length of the ditch dug was 57 feet.  There was a lot of earth thrown up for 4 or 5 feet across the road.

   To the Court - The length of 57 feet was already opened when I got there and averaged a depth of 14 to 16 inches, with a width of perhaps 18 inches.  This opening was between the footpath and the main road, along the kerbstone.

   In answer to the Court, Mr. Clark here said the road was 24 feet wide, without the footpath which ran up one side.

   Mr. RENNIE did not know if the Court would think it worthwhile to go into the conversation which passed between Mr. Smith and Mr. Clark, but if it did, the latter was here, prepared to give evidence.

   Mr. EAMES said that testimony would be important, to show that Mr. Smith had, to all intents and purposes, a permit.  Mr. Smith's defence was that he had built that side walk, and always repaired it, and had never been interfered with.  Mr. Clark discovered these repairs going on, and Mr. Smith explained how it was he did them.  Mr. Clark said the explanation was new to him, and gave Mr. Smith the impression that, as a matter of form, he would apply to the Council for a permit.  Mr. Smith concluded this was enough, and went on with the work in the meantime.

   CHARLES BROOK CLARK, sworn, stated - On Friday the 12th Mr. Smith came into my office.  I was out.  He then went into the Police Station and found me there.  He explained that his coolies had been interfered with and requested me to grant a permit.  I told him I could not do so without first having obtained the sanction of the Works' Committee, as I believed he was going to take up the stone forming the kerb of the side walk.  He said "Yes, I am, but I will replace it by a better;" and explained to me that the stones there were his private property.  I left him there, but he came in afterwards and I asked him if he would write an application for permission to remove these stones, and stating that he would replace\ them by others more suitable.  He said, "No, I will not; they are my private property, and I will not ask the Council for what is my own." Under those circumstances I said I would bring it before the Works Committee without a letter, and explained to him that it was out of my power, entirely, to give the permission.  Prior to this conversation, the matter had been reported to me, and I went out and found a trench cut on the outside of the footpath.  I directed the police to prevent the road being opened.

   To Mr. EAMES - I am Clerk of Works to the Municipal Council.  Mr. Smith could not have the impression when he left me that he might go on.  I can swear I did not say the application was a matter of form.  I said it was a matter for the Works Committee to decide, and apologised to Mr. Smith for interfering with his work; but said it was my duty, and he agreed with me.

   To Mr. RENNIE - The work had been stopped when Mr. Smith came to speak to me.

   AHAYE, native constable, stated that he had been sent by Sergeant McElvey, on Friday, to go to the Soonkung road to see about the work going on there.  Saw a foreigner and reported to the sergeant, who went down with him.  The sergeant took up the shovel, but Mr. Smith took it away from him and caught him by the collar. (It was found necessary to proceed with the other witnesses, there being no interpreter in Court.)

   EDWARD BASTIEN, sworn, stated - I am a French Municipal Constable.  On Friday afternoon I was on the French side of the Yang-king-pang, near the Honan Bridge.  I saw a great crowd of Chinese on the other side, and a police sergeant, with his cap thrown down and his hair pulled down over his forehead.  The sergeant was pulled down, and another gentleman was in front, when he rose, also bareheaded.  I saw then that the sergeant was pulled down again, someone holding him by the hair - I could only see the hand and not who was pulling.  I walked on to the Honan Bridge and prepared to crops.  I saw the sergeant pulled down again, for the third time.  When I was half way over the bridge I saw Johnson, and asked what was the matter, but he gave me no reply and went on to the Station.  I went across and heard Mr. Smith say to the sergeant "you are a scoundrel," and the sergeant said "I am no more a scoundrel than you are."  I saw them staid still and more police came and they went away.

   Mr. EAMES said, with regard to the instructions to the Police, he would quote a very sensible bye-law No. 38, which seemed conclusive of the powers of constables to arrest -

It shall be lawful for any officer or agent of the Council, and all persons called by him to his assistance, to seize and detain any person who shall have committed any offence against the provisions of these Bye-Laws, and whose name and residence should be unknown to such officer or agent, and convey him with all convenient despatch before his proper Consul, without any warrant or other authority than these Bye-Laws.

   Mr. RENNIE said the arrest here was not for a breach of bye-laws but for assault on the police.

   Mr. EAMES agreed, but if the testimony for the defence was believed, this point would become important.  Their statement was that Sergeant McElvey undertook to arrest Mr. Smith, and that he did so before ever Mr. Smith, and that he did so before ever Mr. Smith touched him.  Mr. Smith took the shovel from the coolie and the policeman took the shovel from Mr. Smith, and arrested him because he struggled and refused to give it up.  He believed there were instructions prepared several years ago for the police force, which were of a very cautious and restricted nature. (Mr. Penfold handed in a copy of these.) He found it stated here that -

The constable must be particularly guarded in the exercise of his power to apprehend persons for any of these offences against himself.  He should not take persons into custody at the time, if they are known to him and can be apprehended afterwards on warrant obtained from their Consul.

   Mr. SMITH said, to save the time of the Court he would read a statement of the facts.  He then read the following -

   Last Friday, the 12th instant, my workmen commenced to repair the pavement in front of my shops on the Honan Road and the Yang-king-pang Road, and the pavement in front of my shops on the Yang-king-pang Bund between the Honan Road and a private road separating my large Tea House from a European House.  The former are private pavements on my own grounds, the latter is a pavement made at my own cost on ground belonging to the Municipal Council.  All these pavements were not only made at my own cost but have been kept in repair by me for many years past and up to the present time. The Council have never expended one cent upon either of them, neither have they ever notified me that I could not continue for the future repairing them.

   Some of the men attached to the Engineer's department of the Municipal Council whose duty it is to look after the roads, reported to Mr. Clark what my workmen were doling, and I believe orders were issued by Mr. Clark to stop the work commenced by me.  At all events, upon my shroff telling me that my men at work with the pavement in front of the large Teahouse had been stopped by the Kungpoo, I went up to the Engineer's office and explained to Mr. Clark what I was doing.  He told me that he was only carrying out his orders in stopping my work, and was sorry that his duties should give me trouble.  He did not disapprove of the proposed work, but took a memo of my explanation and said that he would lay it before the Board in the morning, when no doubt it would be all right.  O left Mr. Clark's office under the impression that what I was doing could not be but approved of; so when I returned home I ordered my workmen to go on with their work.  A short time after they had commenced, my shroff and Foreign overseer, Johnson, reported to me that a policeman had again stopped the work on the pavement in front of the Teahouse.  I went to the spot with them, and found Police Sergeant McElvey with a gang of coolies.  I asked him by whose authority he stopped the work.  He replied that it was his duty to prevent any work on the public roads without a permit from the Council, or that he was ordered to stop the work I had commenced, I am not certain which.  I told him that I had just seen Mr. Clark, and that if he would return he would find it all right.  He stated that he would carry out his orders, or that he would do his duty, or that he knew what his duty was; at the same time ordering his coolies to undo the work of my men.  The coolie nearest me obeyed his orders, when I seized his shovel, whereupon Sergeant McElvey caught hold of it also, and a struggle ensued between us for the possession of the shovel.  Finding that he could not get the shovel from me, he seized me by the collar and beard exclaiming "you are my prisoner, come with me to the station."  I replied that I would not do anything of the kind; that he was far exceeding his duty; that he ought to get a summons for my arrest if he had anything against me; that he was a scoundrel to act in the way he was doing; that if he had not on a policeman's coat I would give him a thrashing.

   All this time he was trying to drag me along the road to the station.  Finding that he could not get me along he tried to throw me on the ground, but did not succeed.  After asking him many times to let go my whiskers and finding he would not do so, I caught him by the hair and pulled his head down, exclaiming "let go my whiskers." He would not relinquish his hold - then I pulled his head down still lower - so that I could have punished him most severely if I had wished to do so; but I did not strike him, merely repeating my request several times, and telling him that he had far exceeded his duty and that he ought to get out a summons for my arrest.  At last, when he found that his head was in chancery  and that he was suffering as much from my grasp as I was from his, he exclaimed : "Oh you coward! There's your whiskers" and let go his hold.  I then set his head at liberty.

   After standing a second or two facing each other, he seized me by the arm.  By this time Anderson who is in my employ came up, when I ordered him and Johnson to take the sergeant's hands off my arm.  They did so.  I sent Johnson up to the station for Mr. Penfold.  The sergeant sent for more policemen.  Three policemen soon made their appearance.  When they came up to us, the sergeant again seized me by the collar and ordered one of the policemen to do the same on the other side.  They then, without any further resistance on my part, hurried me along the Bund and Honan Road through my tenantry up to the station - tightening their grasp as they went along and at times almost lifting me from off my feet. Half way up to trhe station, we met Johnson.  The sergeant ordered the policemen to seize him also.  Johnson offered to walk along quietly, but the policemen seized him by the collar and dragged him along with me into the charge room at the station.

   Mr. SMITH was including the incident of Mr. Anderson's leg being broken, but the Court ruled that that was not part of the present case, and it was struck out.  Having concluded his testimony, Mr. Smith said he desired to add that he had received every possible attention n from Messrs. Penfold and Stripling, and assistance for Mr. Anderson from them.  Mr. Penfold, who soon came in, at once released them from custody.

   Before Johnson was called,

   Mr. RENNIE remarked that this witness was in a peculiar position, being also in the charge sheet, but his case could not be heard here as he was a Swede.  Mr. Rennie wished merely to point out that the witness was at the same time a defendant in the case.

   The Court wished to get at the facts if possible, and thought the witness could assist them

   Mr. RENNIE concurred, but anything drawn from the witness in cross-examination might be afterwards used to his prejudice.

   Mr. EAMES did not think the witness need have any fear on that score.

   HANS BECK JOHNSON, sworn, then stated - I was on the Soongkong road on Friday, along with Mr. Smith.  I came down there about 4.30 to take charge of the work.  Sergeant McElvey was there and had stopped it.  He asked me if I was going to fill up the hole again.  I said yes, if I got orders from Mr. Smith I would fill it up again, but not before.  The sergeant said I had better get Mr. Smith.  I went for him, and he came with me to the place.  When we came our coolies were going away, and some others filling up the ditch.  Mr. Smith said to the sergeant, "Who gave you authority to do this?" He replied, "it is my duty."  Mr. Smith said, "No. I don't think it is anything of the kind, and you'd better stop it;" and added that if the sergeant went to see Mr. Clark he would find it quite the reverse of duty.  The coolies worked away, and Mr. Smith took hold of a shovel from one of them and said "Stop." 

   Mr. McElvey took hold of the shovel also, both having hold of it, and, I suppose because he could not get the shovel away from Mr. Smith, he grasped him by the coat and a part of his beard and pulled some of his whiskers out.  Mr. Smith said "Don't take me in that manner, you can take me before my Consul."  The sergeant continued to hold on, and Mr. Smith then took him by the collar and hair.  Mr. Smith did not strike the sergeant while I was present, and I was so till Mr. Anderson came up.  Mr. Smith asked me to get the sergeant's hands off his beard, and when Mr. Anderson came we managed to get Mr. Smith released.  I went off for Mr. Penfold, and coming back met the whole party going to the Station, when I was seized also.

   To Mr. RENNIE - Mr. Smith came and said to the sergeant "Who told you to do this?"  I don't think the serg. said anything about permit, but Mr. Smith said, if he would go to Mr. Clark it would be all right.  I saw only one shovel seized by both.  They were both running about, struggling for the shovel, some time after the coolie gave it up.  They were pulling the shovel between then.  Mr. Smith said to "go and see Mr. Clerk" before he took the shovel.  About five minutes might have elapsed from the time I went for Mr. Smith till the struggle began about the shovel.  I don't know if there is any charge against mer.  They grabbed me and took me to the Station, and said I would appear before my Consul.

   CHIN-KING-TSENG stated - I am Mr. Smith's shroff.  On Friday I saw some one come and say to Mr. Smith's coolies to stop and fill up that stone pidgin.  Mr. Smith came up and took the shovel, and the sergeant also took it, and they pulled it backwards and forwards together.  I went away for Mr. Anderson and so saw nothing more.

   To Mr. STRIPLING - I had only been a short time there when Mr. Smith came and stopped the coolie.  He took the shovel and threw it away, and the sergeant gave it a second time to the coolie.  The coolie had the shovel twice taken from him.  Had not seen the sergeant filling in the ditch himself.

   On a discussion as to how the shovel was taken, Sergeant McElvey repeated his statement given above.

   Mr. EAMES - And did you seriously contemplate filling up this enormous ditch - 57 feet long and I don't know how deep?  Was that your idea?

   Sergeant McELVEY - That was my idea.

   Some Chinese witnesses remaining to be examined, and it being now 12.30, the Court adjoiurned for an hour.

   On resuming, Mr. Haas appeared to interpret, but the witnesses eluded nearly every endeavour to obtain direct evidence or a connected statement of the facts, and it was with much difficulty that the following statements were elicited:-

   AHAYE, native constable, recalled, said he had seen Mr. Smith at the Yang-king-pang on the 12th, where the Municipal coolies were at work filling up the road.  Mr. Smith took the shovel from one and threw it away.  As soon as it was thrown down, the foreign policeman told the coolie to pick it up and resume work.  Both were afraid to do so, and the policeman again told them to go on with it, when Mr. Smith came up and, seizing the policeman by the collar, struck him in the face.  There were three altogether attacked the foreign policeman.  The shovel was, when thrown away, picked up by the policeman, Mr. Smith tried to get possession of it and then the affair arose.

   To Mr. EAMES - Mr. Smith assaulted the police sergeant - the latter did nothing.  Mr. Smith seemed to have got excited about the policeman filling up the drain, and therefore took him by the collar and struck him in the face, also seizing him by the hair.  As there were three foreigners there against him, the sergeant could make no resistance.

   CHU-YUEN-TSE, one of the municipal coolies, who had been at work, stated that his shovel had been taken from him and thrown away, by Mr. Smith.  When he took up the shovel a second time, Mr. Smith again objected, and the policeman took the shovel and a struggle then began, but there were so many persons that he could not see what occurred properly.

   SHU-SHOW-KEE, the second coolie, saw Mr. Smith seize the foreigner by his clothes and strike him in the face.  Witness had a shovel, and Mr. Smith objecting to him doing the work the policeman took the shovel from his hands and began to do it himself.  Mr. Smith came forward and held an excited conversation, and then assaulted the policeman, scratching him with his nails.  The policeman tried to protect himself but did not strike Mr. Smith.  After being struck, the policeman took Mr. Smith by the breast and collar, but not by the beard.  The policeman ordered the coolies to work, through a native constable who was with him.

   CHEN-KING-TSENG, Mr. Smith's shroff, recalled,  said - When I went for Mr. Anderson I returned with him to the Soonkong road, and when I arrived there I saw that the foreign policeman had Mr. Smith by the collar and Mr. Smith had his hand in the other's hair,.  They were swaying about, but I did not see whether one struck the other. (The manner in which the two men held each other was illustrated by the witness seizing Mr. Stripling by the collar.) The two struggled for possession of the shovel, which was first in the foreign constable's hands, Mr. Smith endeavouring to take it away from him.  The policeman took it from the workmen. (This witness contradicted this almost immediately, and was evidently puzzled between the various times at which the shovel was said to have been picked up.)

   Several other coolies who had seen the disturbance were waiting to be called, but the Court thought the case might be closed now.

   Mr. EAMES did not intend to make any address to the Court, but would simply draw his Honor's attention to the extraordinary good case of the prosecution - in fact it was almost too good, especially in the testimony of the Chinese.  It reminded him very much of the case of a young woman who came to her father saying her husband had ill-treated her, who asked what she had done to make him do so.  She said she had given him no provocation, but on the contrary had always been very kind and gentle.  There must be some provocation, said the parent, if it were as you say.  That was the case here.  There must have been provocation on the policeman's part; it was little likely that he would stand quietly and allow himself to be beaten, and it was very improbable that Mr. Smith would have done what was alleged without some good cause.  It seemed, according to the prosecution, that Mr. Smith went to take the shovel from the sergeant by violence, and that before the policeman touched him he struck him and struck him three times, but if Mr. Smith had done so, the probability was that Mr. Smith being rather a powerful man the sergeant would not have presented the pleasing appearance in Court that he did that day.

   There was no present necessity either, according to the clause in the byelaw, to justify the constable in arresting Mr. Smith.  His instructions required him to be very cautious and give up power to arrest for an offence not against the Land regulations. The sergeant was only a few minutes from the police station and could have gone and asked Mr. Clark, as Mr. Smith desired, before taking the measures he did.  Mr. Smith had been complained of for doing what he had been doing for the last 17 years, and for that offence was arrested under bye-law 38.  McElvey knew perfectly well the name and residence of Mr. Smith, which was the only exception that the clause made.

   His Honor remarked that the policeman arrested Mr. Smith for the assault, not under the bye-law.

   Mr. EAMES said yes; but it seemed to him the Court must find that Mr. Smith was doing a reasonable thing in trying to take the shovel from the sergeant, and the defence was that it was while doing this and without any assault committed, that the policeman arrested him.  The byelaw did not appear to contemplate either taking the person arrested to the Station, but before his Consul.  This was the first case of the kind he had heard for a good while, and he understood the superior officers of the police discountenanced this sort of thing all they could.  The question here was, whether the policeman did not use unnecessary violence also in effecting an arrest.

   Mr. RENNIE said he would submit simply that, assuming that the statement read by Mr. Smith, clear and elaborate as it was, should be right in all the facts, it amounted to nothing more than a plea in mitigation of punishment.  Mr. Smith admitted that he was engaged in opening up a public road, which by byelaws 10 and 12 of the land regulations are vested in the Municipal Council; he admitted that he was trespassing there, and that the constable was there in the execution  of his duty and under orders from his superior officer, that the coolies were acting under the policeman's orders; and he still attacked the coolies, took away the shovels with which they were working and, even if he did not commit the first assault, prevented the employs of the Municipal council from doing what they were ordered and what was right to so. The native witnesses had very much corroborated the evidence of sergeant McElvey.

   He (Mr. R.) submitted that the case was one of some importance.  It was one in which a well-known and respected member of the community obstructed the police in the execution of their duty.  It would be for the Court to say whether the instructions of sergeant McElvey were righter not, but that Mr. Smith did resist and mist violently resist the constituted authorities was perfectly clear, and the offence was one which required to be severely noticed.  With regard to bye-law 38, he did not think it had any application in this case.  It gave power to arrest persons whom they found causing obstructions in the highway and whom they did not know.  The offence here was not that Mr. Smith was doing that, but that he interfered with the Municipal coolies and police.  A penalty was imposed for breach of byelaws 10 and 12, and the police were ordered to prevent the disturbance of the public highway.  They were ordered to stop it in this case, and they did so, because Mr. Smith had no written permit.  It would be for the Court to say who was in fault in the scuffle, and as it was a very serious case he hoped the Court would consider it well.

   Mr. SEWARD said he thought the question one of importance.  It was not satisfactory in any circumstances to find a person of respectability taken to the police station, and he thought the Council wished to draw up their instructions so as to discredit anything of that kind.  These instructions had been drawn several years ago, and when they were examined by the Consuls he noticed how careful, they were drawn and how strictly they were intended to guard individuals.  The policemen were generally strong athletic men, their whole duty was calculated to give them strength; moreover, they were not taken from the highest class of society; and unless kept strictly under discipline might not act with the most perfect discretion.  The byelaws of the Land Regulations however made the case a very clear one to his mind.  The 12th article provided that

"Every person who willfully displaces, takes up, or makes any alteration in the pavement, flags or other materials of any street under the management of the council, without their consent in writing or without other lawful authority, shall be liable to a penalty or fine not exceeding twenty-five dollars ($25), and also a further sum not exceeding one dollar ($1) for every square foot of the pavement, flags, or other materials of the street so displaced, taken up, or altered."

He did not find anything in the Regulations which conferred upon the Council power to instruct their policemen to prevent respectable people from making any holes that they liked, provides, of course, that the same were not the occasion of danger to the public. The Council had the right to give a permit, and the police, if it were not given, should simply make the person amenable to his own Court for his offence.

   Mr. RENNIE quoted byelaw 9, as giving the Council more explicit powers over the roads.  It read

The Council and none others shall be Surveyors of all highways within the aforesaid limits, and within those limits shall have all such powers and authorities and be subject to all such liabilities, as any Surveyors of highways are usually invested with."

   Mr. SEWARD said in regard to the facts of the case, Mr. Smith seemed to have gone to the proper officer, on receiving information that he was pursuing a wrong course in the matter, and he found nothing in the evidence of the engineer of the Council to indicate that Mr. Smith had any sufficient intimation that the work would not be permitted.  Mr. Smith stated distinctly that he understood that the application to the Works Committee would be made, that it was a matter of form rather, and that he did not doubt it would be granted; and he acted in good faith on that understanding.

   The first people on the ground too were Mr. Smith's workmen - they were there when the policeman came with the native constable, and afterwards with the Municipal coolies, and attempted to stop and did stop them.  Mr. Smith had possession; he did not go in to interfere with work that the Municipal Council were carrying on; any trouble which occurred, did so through the stoppage of the work which he was having done.  His Honor saw nothing in the Land regulations that would authorise the policeman stopping such work going on. 

   As to what occurred later, he did not know that it was necessary to say much.  It was not a pleasant thing for a man to be arrested in the street, it was not a pleasant thing for him to come into a Court of law in such a case as this, and have his time taken up; and if Mr. Smith acted in heat or temper, his Honor had no doubt he regretted it as much as any man could. The first offence seemed to have been committed by the policeman, in exceeding his duty; and for anything that might have followed afterwards the defendant in the case had already suffered sufficiently.

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