THE VICTORIAN APPEAL CASE.

Waikato Times, Volume XXXVII, Issue 2960, 4 July 1891, Page 4

THE VICTORIAN APPEAL CASE.

Tiik following judgment of the Privy Council in the famous appall case of iMusgrove v. All Koy, which was delivered by the Lord Chancellor in March last, will he read with interest, particularly as it embrace* a far larger question Ihan merely a breach of the Victorian Chinese Act. His Lordship said : This is an appeal from a judgment of the Supremo Court of Victoria in favour of the respondent, a Chinese immigrant, the plaintiff in an action against the Collector of Customs at Victoria, who was the defendant in the action, and is now the appellant. By an order made in the action, by consent, the action was tobe determined by the decision of the full court on the argument of the questions of l iw raised in the pleadings. I he questions having been argued, the majority of tbo Court gave judgment in favour of the plaintiff. By a further proceeding in the act-imi, the damages were assessed at jEI.'iO, and from that judgment the present appeal was brought- It i 3 necessary first to ascertain what question is raised by the pleadings, and upon what state of admitted facts the question so raised is to lir determined. The statement of claim sets out thai, the defendant, who was the Collector of Customs within the meaning of the Chinese Act, 1881, alleges the arrival in Hobson's Bay of the plaintiff on board the British ship Afghan, and in the fourth paragraph, that the master of the ship Afghan affered to pay, and was always ready and willing to pay to the defendant as such Collector ot Customs as aforesaid, in respect to the plaintilT, the sum of £10, as provided in Seetion 3 of tho Chinese Act, 1881. Yet the defendant refused to allow the plaintiff to land in Victoria, and hindered and prevented the plaintiff from landing in Victoria, and altogether refused clined to rcceive the said sum of £10. The allegation of the tender of the £10 is somewhat ambiguously worded. It may menu that the ;ClO was tendered separately for the plaint ill, which would st.'cin to be its natural meaning, or it may mean that a gross sum was tendered for all the immigrants on board, including, therefore, the £10 for the plaintiff, but it can make no difference, for reasons to be presently stated, in which sense the allegation is to be understood. With respcct to the concluding allegation that tho defendant hindered and prevented the plaintiff from landing, it seems fco imply a duty in the Collector of Customs to receive the £10 under the circumstances stated and described, and to allege, as one of the consequences of a breach of that duty, that the plaintiff was thcroby prevented and hindered from landing. It certainly does not seem to suggest any other hindering and preventing than that which was involved in the refusal to receive the £10. The statement of defence was, what would ■ have been described under a former system of pleading as a plea in confession and avoidance ; and the demurrer admits every material allegation which is necessary for the determination of either of the separate defences which the statement of defences sets up. It states that the plaintiff was a subject of the Emperor of China, and owed allegiance to him, and was not a British subject, and that, whilst the Acts of I'arliament of Victoria, mentioned in the statement of claim, were in full forco and unrepealed, the plaintiff was a Chinese immigrant within the meaning of the said statutes, and, as such immigrant, had arrived at the port > of Melbourne in a certain British vessel called tho Afghan, which vessel had arrived in the port with 208 Chinese immigrants on board, being 254 more Chinese immigrants than, under the statute, such vessel might lawfully bring into the port of Melbourne. The record, therefore, discloses these facts: That the plaintiff was an alien Chinese; that ho had arrived on board a vessel conveying immigrants exceeding the number which could lawfully be brought into port by that vessel ; that the sum of £10 , had not been paid to the collector of Customs in respect to the plaintiff, and that the master of the vessel had offered to pay, and was always ready and willing to pay that sum. The question is, whether upon these facts the plaintiff has shown that there was a breach of duty towards him committed by the defendant, and that a legal right, which he possessed, had been infringed. Their Lordships will, in the first instance, consider the questions which have been raised with regard to the construction of tho code of Victorian statutes and their b?aring upon the present case, although there is a broader question opened by tin- claim of the plaintiff, to which allusion will bo made hereafter. It is not open to controversy that, by virtue of the third section of the Chinese Act of 18S1, the plaintiff had no legal right ti land until the sum of £10 had been paid for him, and the non-payment of that sum would, prima facte, be a complete answer to the complaint that he had been hindered and prevented from landing. The plaintiff seeks to get rid of this difficulty by the allegation that he, or the master of the vessel on his behalf, tendered and was ready and willing to pay the £10, and that it was by the refusal of the defendant to receivc it that tho, payment provided for by the statute was not made. Hut it is obvious that this will not aid hint, unless he can establish that there was a legal obligation on the part of the collector to leeeive that sum, and that, as th.c refusal to receive it constituted a breach of duty towards him, his right to maintain the fiction was thus made good. It appears In luive lieen contended that tho true i t'i-*iti tici ion of the third section of the < 'hinese Aet 18S1 was, that a license to laud was intended to be given to any Chinese immigrant, provided that lie pay £10 upon landing. Their Lordships are wholly unable to concur in any such interpretation of the code of statutes reculaling the admission of Chinese immigrants into the colony. On the contrary, the manifest object c f the code was to prevent an excessive number of Chinese from landing in the (nlony, and not merely to impose a tax on those who were desirous of entering it. Their Lord' ships think that a consideration o' aeveral provisions of the Act of' ' t ' l ® as they must be together, f -i' r" Ti i «n 'r l ' jnders it clear that this was ao, . of the Act pro-' second section master orV "*<« tl,at thc oWner ' with hp" -larcorer, of a vessel arriving ■ „i' .eater number of immigrants than .lowed shall bo liable on conviction to n penalty of £100 for each immigrant so carried in excess of the number permitted. Thc object of this legislation is obvious, it was to prevent the introduction into thc colony by means of one vessel of more than the limited number permittee!, and not to license it, on payment ot a penalty. It is not because the unlawfulness of an act is visited by a pecuniary penalty, that the payment of that penalty makes it lawful. The third section of the Act was part of the same scheme, and evidently designed with the same view as the second section. It not merely prohibits any Chinese immigrants landing until the sum of £10 has been paid in ! respect of him, but it enacts that before making any entry at the Customs, the master of the vessel by which the immi | grant arrives, shall pay to the Collector of Customs the sum of £10 for every such immigrant and that no entry is to be deemed to have any legal effect, until such payment has been made. It is clein"i m their Lordships' opinion, that where tho master of a vessel has com- l mitled an offence by bringing a greater number of Chinese into a port "of the colony than the statute allows, he can have no right to require the Collector of Customs to receive payment in respect to such immigrants, and thus to further the purpose for which the unlawful act was committed, and there can be no legal duty on the part of the collector to receive any payment tendered him iu respect of such immigrants. If this be so, the ease of the plaintiff manifestly fails, for as has lieen pointed out, the statute prohibits his landing before the payment of tho specified sum, ami he could only get rid of this difficulty by showing that the

refusal to roccivn payment was unlawful. It was urged on behalf of tl) n plaintiff, that tin: payment of £10 is made in each cast* on behalf of Mm immigrant, and that, whatever may he the position of a master, who has brought himself within the penal provisions of the second scction of the statute, each immigrant is untitled to require that the collector shall receive the payment made by, or for him. Their Lordships are unable to adopt this construction of the statute, or to hold that its effect is to confer any such right as that suggested, where the act of bringing the inteuding immigrants in to port by the vessel is a contravention of the lw. Their Lordships have so far dealt with the case, having in view only the enactments of the Legislature of Victoria, and it appears to them manifest that upon the true construction of these enactments no cause of action is disclosed on the record. This is_ sufficient to determine the appeal against the plaintiff; but their Lordships would observe that the fact-i appearing on the records raise, quite apart from the statutes referred to, a grave question as to the plaintiff's right to maintain the action. He can oulv do so if lie can establish that an alien has a legal right, euforcible by action, to enter British territory. No authority exists for the proposition that an alien has any such right. Circumstances may occur in which the rilu-al | to permit nil alien to laud might be such an interference with international comity as would properly give rise to diplomatic remonstrance from the country of which he was a native ; but it is quite another thing to assert that an alien excluded frOm any part of Her Majesty's dominions by tjie Executive Government there can maintain an action in a jkitish Court anil raise such questions as wire argued before their Lordships in the present appeal. Their Lordships cannot assent co the proposition that an alien refused permission to enter British territory can, in an action iu a Tsriti«h Court, compel-thtMlecision of such matters as these. When once it is admitted that there is ail absoluto and unqualified right of action on behalf of an alien refused admission to British territory, their Lordships are of opinion that it would be impossible iipon tin: facts which the demurrer admits for an alieu to maintain an action. For the reasons which have been submitted, their Lordships will humbly recommend Her Majesty that the judgment of the Court below be reversed, and judgment entered for the defendant in the terms of the consent order. There will be no costs of this appeal.

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