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Colonial Cases

R. v. Thirkell, 1887

[registration of British subjects]

R. v. Thirkell

Civil Summary Court, Shanghai
Jamieson AAJ, 28 October 1887
Source: North China Herald, 2 November 1887

LAW REPORTS.
H.B.M.'s CIVIL SUMMARY COURT.
Shanghai, 28th October.
Before Geo, Jamieson, Eq., Acting Assistant Judge.
THE QUESTION OF REGISTRATION.
  Mr. J. G. Thirkell appeared to answer a summons for having failed to register at the Consulate, as required by Section 114 of the Order in Council of 1885 he being a British subject.
  There were a number of other gentlemen served with summonses, but they had since complied with the Order in Council and the summonses were withdrawn.
  Mr. Coulthard appeared on behalf of the Consul-General.
  Mr. Thirkell defended himself.
  His Worship - This is a summons, I understand for neglecting to register.  Have you anything to say?
  Defendant - Your Worship, I registered some years ago, but I have not registered since 1887.
  His Worship - That is the point.  You know the Section of the Order in Council I presume, and you did not register yourself.
  Defendant - My reason for not having registered this year is owing to the great unfairness - the great inequality - hat prevails in regard to the collection of the tax and the want of uniformity in its enforcement.  Some British subjects pay the tax one year and they are excused, or do not pay in the next.
  His Worship - How do you know that?
  Defendant - I understand that Mr. How was last year compelled to pay the tax, and I was not.
 Hs Worship - That is no reason for your not paying it this year.
  Defendant - I notice also that in 1885 there were only 82 British subjects registered.
  His Worship - I cannot take any notice of that.  Even presuming that very few persons are registered that is really no excuse for you.  You are reminded of wat you should do, and you have not done it.  That is all I have to deal with.
  Defendant - Might I ask your worship who issued the summon ns?
  His Worship - The Court issued it at the request of the Consul-General.
  Defendant - I understand that the Order in Council gives a discretionary power to excuse people registering and ------
  His Worship - That is the Consul General's business and not mine.
  Defendant - Might I ask of the Consul General on what grounds a person could be excused.
  His Worship - No, you cannot.
  Defendant - I think it is very unfair that one British subject should be compelled, and another not compelled, to pay it.
  His Worship - Every British subject ought to register unless he is excused.  If you are summoned all I am bound to do is tell you to pay, and unless it is shown that you ae excused, I have no option.
  Defendant - This summons is issued by the Consul General?
  His Worship -It is applied for by the Consul General.
  Defendant - Might I ask how many British subjects are registered this year?
  His Worship - There is no use in your going on that tack.  You have not done so.  That is the point.
  Defendant - And I alone will be compelled to pay it.
  His Worship - I am to presume that every British subject will be compelled to pay it.
  Defendant - Last year scores of British subjects were not compelled to pay it.
  Hs Worship - There is no use in talking that way.  Have you anything more to say?
  Defendant - Could Mr. Mortimore give me any idea of what excuse would be considered satisfactory?
  His Worship - No.
  Defendant - Could your Worship or Mr. Coulthard or the Consul-General?
  His Worship - He is not bound to say on what grounds he would excuse you.  There should be an application made to him.  You have not been excused and you have not registered.  If you can show me that as a matter of fact you have been excused, do so.
  Defendant - That information does not appear in the public newspapers.
  His Worship - It does in the Order in Council which is public property. You can buy a copy of it here.
  Defendant - I have not looked it up.
  His Worship - Then you should.
  Defendant - If a person is registered, is he entitled to protection of the court according to the order in Council?
  His Worship - According to the Order in Council a person not paying is not entitled to the protection of the Court.  British subjects doing their duty are entitled to its protection.
  Defendant - Then your Worship, if I can show you some inequality in ------
  His Worship - That has nothing to do with the case.
  Defendant - Then I think British subjects, the officials of this court, and the general public, should have a knowledge of the sort of protection given in this Court.  I can show that it is almost ruinous in a British subject to live in this place.
  His Worship - I don't know what you mean.
  Defendant - I will tell you; there is in this Court an action for libel pending against me.  I would like to know what protection I will get from the Consul General ---
  His Worship interrupting - That has no bearing whatever on the case.
  The defendant was proceeding to explain what he meant, when his Worship refused to hear anything further on that particular subject, and defendant said he would bow to his Worship's decision and had nothing further to say, that he thought his Worship said last year in the How case that e ax would be enforced in an equitable manner.
  His Worship assented, and said that the defendant had been notified to register.
  Defendant - I was away from Shanghi at the time.
  His Worship, said I have only now to give my decision:- It is entirely a matter for the Consul General as to who should be compelled to register, and who should not, and I believe he will do his duty in this respect.  It was your business to know that you were to register and even after you had been notified you still neglected to do so.  The excuses which you have brought up are totally irrelevant to the point.  I have therefore only to impose on you a fine of $10 and costs.
  Defendant - Does that fine compel me to register now?
  His Worship - I have no further information to give on that subject.  You have now been fined for the offence; whether they will fine you again or not, I do not know and do not care.
  Defendant - May I ask your Worship, is there any alternative if I do not pay the fine?
  His Worship - I do not think that question ought to have been proposed and I am not bound to answer it, but in civility I will tell you that if the fine is not paid there will be a distraint, and failing distraint there might be imprisonment.

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