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"China. Mail 1:366 of 19th February, 2042.
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The first and most important trial at the Sessions of the Criminal Court just closed was that of six Malay seamen, arraigned for murder on the high sens, which result- ed in the conviction of two, and the acquit- tal of four, not because the jury considered them altogether innocent, but because their criminality was not so great as that of the two others, and there was no alternative between acquittal, and conviction of a ca- pital crime."
The trial is however chiefly remarkable on account of the sentence, and the reasons assigned by the Judge for sparing the men's lives. Two reports of what he said on the occasion have appeared, the one occupying six, and the other seventeen lines of news- paper reports. We do not think either strictly accurate, but not having taken notes of what was said, we do not offer a third version, and adopt that of the Register as being the shortest. It is as follows.-
"I would have no hesitation In condemning you to death, but on a late occasion when I condemned certain criminals to death who were found guilty of wholesale murder and piracy, their lives were spared, and I cannot in justice pass any other sentence upon you, than that I now do.
Our contemporary defends the course pursued by the Chief Justice, and does not concur with those who think that whatever the Governor had done, or might be ex- pected to do, ought to have had to weight with the Judge in discharging his duty. On this point we content ourselves at pre- sent with recording our assent to the doc- trine, and dissent from the reasons assigned by the Register for departing from it; and shall here brielly state the circumstances of the other caso referred to.
It occurred at the Criminal Sessions, July 1850, when uine Chinese were con- victed of pirney with stabbing-they were not charged with murder-on a junk be- longing to a port in Ching, the piracy har- ing taken place on the 4th of Jaue 1850, off Hainan in China, 300 miles from Hong- kong. Both parties were aliens, owning no allegiance to Great Britain; none of the
property belonged to British subjects; aud the Chinese authorities were at baud to adjudicate without our intervention, had our Magistrates, as they ought to have dong, hauded the parties over to them, and as would have been done in the case of any European nation with whom we have treaty engagements even less explicit on the point than those with China.
The case we conceive ought never to have been sent for trial before the Supreme Court, but having been so, the Chief Justice would of course have overruled any objection on the score of jurisdiction with some such remark as that with which he met a similar one at Chui-apo's trial,-"The prisoners were in the dock, and he would try them."
They were tried on the 17th July, 1850, for a piratical attack on a Chinese juak returning from Malacca, which in itself is not by the law of England a capital offence; but, assuming our right to adjudi- cate, it was rendered so by having been accompanied with cutting and stabbing. Murder, as we have already said, was not alleged, although in the course of the trial it was sufficiently proved against three of the prisoners, mere boys in age, being respectively 18, 19, and 21, according to Chinese reckoning, the actual ages being probably about a year less.
The evidence against all the prisoners! was not equally strong; on the contrary, against some of them it was very defer- tive; but as the Magistrate and Attorney General had made no distinction, neither did the Jury make any, and accordingly found all the nine equally guilty: There- upon they were sentenced to be langet.
The trial occurred during the Gover- nor's absence in the north, and on his re- turn the case was of course reported to him in Council; when we must believe weight was given to the Fudge's notes as well as to his opinion; and possibly the Council might have borne in mind what is painfully impressed on juries, that with Chinese and Malays, the Judge, otherwise kind-hearted, is excessive, and not very discriminating, in awarding punishments. We may therefore assume that the mem- bers of Council concurred with the Gover nor that the lives of some of the prisoners should be spared; and with regard to the three youths, it may be presumed that their sentence was not commuted without good reason; for the Governor and his Council, acting in the face of the Judge's opinion, must have been called to account, if their recorded reasons had not been satisfactory to Her Majesty's Government, who would not for mere whim or slight cause sanction the practical abrogation of capital punish- ment; and in the ease of these three youths, they must have been satisfied it was not a proper occasion to enforce the ex- treme penalty of the law. One of its main ends is to deter others; but as in the present instance one of the parties belonged to Hongkong, the examplo inust have been in a great measure thrown away; and it might, and for anything we know may, have been argued, that if our Government were to afford such public encouragement to bring extraneous cases for prosecution and punishment at Hongkong, the proce- dent might be followed up, and pirates! from the whole const of China, and even from other countries, might be brought here in hundreds by their own country- men, to be dealt with according to our laws and at our sole expense. The ar- gument is sound; but presuming it to have weighed with the Council, we are at a loss to understand why the sentence was commuted to banishment. According to the same reasoning, the prisoners ought to have been sent to their own authorities, and not banished as convicts to a British settlement.
There is one other point that occurs to us, namely, that the prisoners made a defence which, if true, was entitled to considerable weight; but having been captured at Hongkong a fortnight after the crime was committed, and tried with- in a month afterwards, they had not time, even had they otherwise possessed the means, to bring witnesses hundreds of miles to confirm their account of themsel- ves another argument, against our Courts entertaining such cases at all. On which point we here repeat all our former pro- tests," and take our stand on what we con- ceive to be still bigber grounds,-the cause of justice, and the stipulations of treaties.
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