1846 , to perform those duties, pending Her Majesty's pleasure.
Mr. Hillier This left Mr. Hillier more leisure for his magisterial work ; but,
partly
relieved of as will be seen hereafter, though relieved of a considerable portion
his responsi-
bilities. of his responsibilities, the public were not satisfied with him.
Lieutenant
Lieutenant Wade, having intimated his desire to be relieved
Wale
Chineseresigns from the duties of Interpreter of the Supreme Court, which
interpreter-
ship of the appointment he received on the 6th April, 1846 , the Governor was
Supreme pleased to accept his resignation , and in his capacity of Her
Court.
Majesty's Plenipotentiary, on the 1st March, Sir John Davis
appointed Mr. Wade to be Assistant Chinese Secretary and Inter-
He is
succeeded by preter, Mr. Jozé Martinho Marques being appointed in Mr.
Mr. J. M. Wade's place as " one of the Interpreters to the Government and
Marques.
Interpreter and Translator to the Supreme Court .'
New Rules
of Court. The new Rules of Court regulating the sittings ofthe Supreme
Court, practice and pleading , proceedings in forma pauperis , cri-
minal proceedings , and the fees to be taken in the Court, and
by attorneys , solicitors and proctors practising therein , dated
the 1st March, having been duly approved of by the Legislative
Council on the 11th of that month, were published on the
1st April . They were further approved of and confirmed by
Her Majesty, by Proclamation of the 16th September, 1847 .
131
CHAPTER VI .
1847 .
The House of Commons and British commercial relations with China. - Select Com-
mittee appointed.- Evidence of Lieutenant-Colonel Malcolm - Reason why Hongkong
was selected.--Report of the Select Committee. -Flogging and cutting off of queues ' or
tails of Chinese in addition to sentences.--Colonel Malcolm's evidence and opinion of
effect of tail-cutting ' upon Chinese. - Tail- cutting ' in the Prisons introduced by Mr.
Campbell, acting Attorney-General.--No authority given by local law for tail-cutting.'-
Ordinance No. 10 of 1844, s. 25. Ordinance No. 15 of 1844, s. 3.- Tail-cutting ' unknown
to Chinese usage.-Testimony of Mr. A. Matheson before Select Committee as to ' tail-
cutting.'-His evidence and opinion as to excessive flogging and fines in the Police Court.—
'Tail-cutting.' Authorities shave off place where ' tail ' was .- Respectable Chinamen
dreading to come to Hongkong. -The quasi-tax on prostitutes and the Committee. -The
exposure of the infamy. -Serious charges against the Police. - The tax an arbitrary
exaction.-No longer collected after appointment of Parliamentary Committee. — Mr.
Matheson and the contribution by the prostitutes.--System no check upon immorality.-
Evidence of Captain Balfour.-He eulogizes Major Caine and Mr. Hillier and the latter
for his knowledge of Chinese. Chap. VI.
On the 23rd March, in the House of Commons , on the motion The House
of Lord Sandon , after a few words from Mr. Hastie, a Select of
andCommons
British
Committee was appointed to inquire into the condition of our commercial
relations
commercial relations with China. The noble lord made a few with China.
observations on the state of those relations, but deemed it Select
Committee
unnecessary to go into the subject at length, as the motion was appointed.
not to be opposed. Subsequently, the evidence of several Evidence of
gentlemen connected with the Colony was taken before the Lieutenant-
Colonel
Committee . The following evidence of Lieutenant- Colonel Malcolm.
Malcolm, who was Secretary of Legation under Sir Henry Reason why
Hongkong
Pottinger, affords a complete view of the motives from which was selected .
Hongkong was selected . It is taken from the Report of the Report of
Select Committee mentioned above : -- the Select
Committee.
“ Chairman .— What position did you occupy during the late war in China
and the negotiations which brought it to a conclusion ? -I was Secretary of
Legation. I went out with Sir Henry Pottinger in 1841 ; I remained there
till the treaty was made in 1842 ; and I was there for five months in 1843 as
Colonial Secretary and Secretary for Legation.
Will
you state what led to the selection of Hongkong as the place to be
stipulated for a possession of the British Crown ? -In the first instance it
was chosen by Captain Elliot from the fineness of the harbour , and from his
thinking it a very eligible station for ships to refit at ......... It was the best
situation near Canton .
In choosing Hongkong, we evidently were not seeking a territorial hold
upon China ?-No ; we only wanted to have a place where our people could
have refuge, where our ships could refit, and where persons in authority could
live under the British flag, to save them from being insulted as our officers
had been before ; as Lord Napier and Captain Elliot had been ; whereas if you
132 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap. VI. have an insular position you are protected ; you have your foot upon English
1847 . ground…………………………..the population of Hongkong was about 5,000 when we took
possession.
Flogging Corporal punishment, of which so much had been heard,
andofcutting
off and the cutting- off of the queues ' or tails of the Chinese in
'queues ' addition to the sentences inflicted upon them, also formed the
or tails of
Chinese in subject of inquiry. The following examination of Colonel
addition to
sentences. Malcolm upon this matter was conducted by Dr. Bowring whose
Colonel name had now become familiar to most people connected with
Malcolm's
evidence Hongkong. Colonel Malcolm's opinion upon the subject of
6
and opinion Chinese tail - cutting, ' as may be seen hereafter, was not singu-
of effect of lar :-
'tail-cutting'
upon
Chinese. Dr. Bowring. - Was corporal punishment, or cutting off the tails of the
Chinese, inflicted while you were there ?--Corporal punishment was ; but I
never heard of cutting off tails .
Would not that operate very unfavourably to the Chinese ?--Cutting off
the tails is a very serious matter ; it is branding a man at once with infamy.
'Tail-cutting'
in the As will be seen later on, the system of cutting off the tails of
Prisons Chinese, at all events as a prison regulation whenever it had not
introduced
by Mr. been ordered as an additional punishment of an offender, was
Campbell, an innovation introduced by Mr. Campbell, the young and in-
acting
Attorney- experienced barrister who was appointed in December last by
General. Sir John Davis to act as Attorney- General after the departure
No authority on leave of Mr. Sterling. Under no law of the Colony was
given by
local law for such a punishment sanctioned . Section 25 of Ordinance No.
'tail-cutting.'
Ordinance 10 of 1844 , and section 3 of Ordinance No. 15 of 1844, which
No. 10 of
1844, s. 25 . sanctioned the punishment of offenders according to Chinese
Ordinance usage, made no mention of cutting of tails, and certainly amongst
No. 15 of
1844, s. 3 . the Chinese themselves such a mode of punishment did not
Tail-cutting exist. As a prison regulation it can therefore only be classed
unknown to
amongst the numerous eccentricities of which the above - men-
Chinese
usage. tioned youthful Attorney-General was guilty, during the time
Testimony he held acting judicial positions of trust in the Colony. The
of Mr. A.
Matheson following extract is from the testimony of Mr. Alexander
before Matheson before the same Committee. Mr. Matheson did not
Select
Committee hesitate to give it as his opinion that respectable Chinese
as to
dreaded the idea of coming to Hongkong and run the risk of
'tail-cutting.' "
having their tails cut off for some offence or other. His evidence
His evidence as to flogging and fines in the Police Court will also be found
and
as toopinion interesting. In answer to questions put by the Chairman, he
excessive said he considered the fines and fees in the Magistrate's
flogging
and fines in Courts excessive." He had known poor Chinamen fined five
the Police dollars and ten dollars each, who did not earn perhaps above
Court.
six dollars a month or perhaps not so much, and who were
flogged or imprisoned or had their tails cut off in the event of
non-payment of the fine. In answer to Mr. Moffatt, Mr.
DISCLOSURES BEFORE SELECT COMMITTEE OF HOUSE OF COMMONS . 133
Matheson said that the Chinese alone were flogged ; he never Chap.
- VI.
heard of a British subject having been flogged. To Dr. Bow- 1847.
ring's question as to whether the cutting of the tails was not a
most ignominious offence, Mr. Matheson replied " that it was , and
very often had the effect of making a man , who might be other-
wise disposed to mend, to continue a rogue. The authorities
were not satisfied with cutting the tail off, but shaved off the Tail-
place where the tail was. If they left a little bit of hair they cutting."
Authorities
could tie on a fresh tail, but they shave off the roots as well as cut shave off
the tail away. He had no doubt it drove many to desperation where ' tail '
and made robbers and thieves of them. " Mr. Hawes .-" Are they was.
or are they not generally rather desperate characters that are
brought to the Police Courts there ? "-I have known very
respectable men brought there-" And subject to this punish-
ment ?" -"Not perhaps subject to that ; but respectable men have
been taken to the Police Court for being found " without a
ticket ; without being registered . " In answer to Mr. Moffat's
question what had happened upon such occasions, Mr. Matheson Respectable
Chinamen
said he believed some of them had their tails cut off, and he dreading to
knew that many respectable Chinamen objected to going to come to
Hongkong.
Hongkong under the dread of such a thing happening to them.
Nor was the subject of the various modes of punishment alone The quasi-
tax on
discussed before the Committee. The quasi -tax on prostitutes was prostitutes
also gone into. The exposure of this imposition, ostensibly for and the
Committee.
the upkeep of a hospital in connexion with these unfortunates , it The exposure
will be remembered , formed the subject of serious charges against of the
infamy.
the Police in March, 1845 , when even Major Caine's conduct serious
was brought into question . The subject was a delicate one . charges
against the
The women referred to paid monthly subscriptions of one and Police.
a half dollars each, and this system had been in existence for
about two years. The laws of England neither sanctioned the
licensing of iniquity and the raising a revenue from it , nor
indeed its recognition in any form, unless it was to draw its
victims from its vortex. The tax itself was an arbitrary The tax an
exaction, totally opposed to British law and principles. The arbitrary
exaction.
funds were partly expended on an hospital into which the
patients themselves would rather not enter, preferring their own
doctors and medicines . But a small part only of the funds
were so laid out, and the Police were the tax-gatherers , but no
one knew who was the recipient of their collections and to what
member of the Government the recipient accounted for the
funds, especially since Major Caine had refused to have anything
more to do with the matter. One good result, however, was the No longer
collected
appointment of the Parliamentary Select Committee of Inquiry, aft er
* Chap. III. § II., antè p. 80.
134 HISTORY OF THE LAWS, ETC. , OF HONGKONG.
Chap. VI. for since its inception , the tax had ceased to be collected . It was
1847. thought that probably Sir John Davis had deemed it advisable
appointment at once to disallow any connexion of the Government with
of Parlia-
mentary the tax, in regard to which, however, there was no denying
Committee. some of the Government officials had been closely associated in
one form or another. In reply to questions by Mr. Hawes ,
Mr. Spooner, Mr. Moffatt, and Dr. Bowring, all members of the
Mr. and
son Mathe
the Committee, Mr. Matheson stated that there was no doubt in
contribution the Colony that " each house of ill-fame paid five dollars a
by the month and each woman one dollar " as a contribution " in aid
prostitutes .
of Police expenses," and that there was at one time " some
hospital maintained by the Government out of this source of
revenue, though whether it was still carried on or not he did not
System no · know." In answer to Dr. Bowring, Mr. Matheson replied that
check upon
immorality. he did not think this system was in any way a check upon the
public immorality in Hongkong. Another important witness
Evidence of heard by the Select Committee, was Captain George Balfour of
Captain
Balfour. the Madras Artillery. He had formerly been British Consul at
He eulogizes Shanghai and spoke of the improvements he had noticed in
Major Caine
and Mr. connexion with Police work, due in great measure, he thought, to
Hillier,
the and
latter Major Caine and Mr. Hillier. He said : ---
for his
knowledge " I must state that I was surprised to find the improvements which had
of Chinese. taken place at Hongkong in the Police administration, when I passed through
Hongkong last October, that is, between the time I left it in 1843 and my
return in 1846. Of the two gentlemen at the head of the office during that
period, one whom I have known since my arrival in China, Major Caine, is
a very efficient officer, of great distinction, and has long been entrusted , both
in India and China, with very confidential employments ; the other, Mr.
Hillier, whom I have also known for some time, is a zealous officer, and has
well qualified himself for the performance of his Police duties by acquiring
the Chinese language."
135
CHAPTER VII.
1847 .
Disallowance of Rules of Court by Home Government. - Ordinance No. 15 of 1844.-
Ordinance No. 6 of 1845, s . 23. — Expedition to Canton.- Departure of Governor Davis and
Major-General D'Aguilar with the Expedition.--Major Caine, Commandant of Hongkong.
-Success of the Expedition .- Return of troops to Hongkong. -Fear of disorder in Hong-
kong during absence of troops.- Police precautions.-Meeting of Triad Secret Society.--
Consular Ordinance No. 1 of 1847. - Withdrawal of appeal to Supreme Court of Hongkong
against Consular decisions.- The Compton Case. - Governor Davis had asked the Chief
Justice to confirm the sentence. - The Chief Justice disregarded the wishes of Governor
Davis.-Governor Davis and his attitude towards the Canton merchants after the reversal
of the decision - Governor Davis asked for powers to prevent appeal from Consular Courts.
-Governor Davis' instructions to Consul McGregor.- Ordinance No. 1 of 1847.- British
subjects deprived of right of appeal to the Supreme Court.- Ordinance No. 6 of 1844.
-Ordinance No. 1 of 1847. Powers of the Superintendent of Trade thereunder. - Con-
sular Ordinance Nos. 1 , 2. and 6 of 1844.-- Liberties and prospects of Englishmen at mercy
ofunqualified men.-. -April Criminal Sessions.- Sentences ofdeath . - Four European Police
sentenced to imprisonment for larceny.-Sitting of the Vice-Admiralty Court. The Chim-
mo Bay piracies.-A convict Too Apo receives a free pardon and gives evidence in the
case.- He becomes a piracy approver.--His infamous conduct afterwards.--Comments
upon the last sitting of the Vice-Admiralty Court.- Unfortunate disagreement between
the Governor and the Chief Justice.-The Governor and the Chief Justice hold different
Courts. -Discussion between them afterwards.--Governor Davis threatens to suspend the
Chief Justice.--Be questions the right of the Chief Justice to be styled ' Lord.'-Petty
spite.-The reason.- Public opinion .--Heavy work in the Supreme Court. - Major Caine con-
firmed as Colonial Secretary and Auditor- General. - Nothing known as to his successor. - Mr.
Hillier considered not qualified. - Eulogistic article in the Dublin University Magazine
on Major Caine.- Major Caine's conduct in relation to Chief Justice Hulme's suspension.
-The effect of Dr. Bowring's motion in the House of Commons against flogging in Hong-
kong -Flogging as regards the criminal population.-Effect of substitution of imprison-
ment for flogging.--Convict Sinclair pardoned .--Original sentence of transportation could
not be carried out. -Reason.--Mr. Shelley appointed Assistant Auditor-General of Mau-
ritius.--Publication of certain provisions relating to the government of Her Majesty's
subjects in China. - Queen's Order-in- Council of 17th April, 1844. - Act 6 and 7 Vict.-
Consular Ordinance No. 7 of 1844. -The Compton Case . - Regina e. Larkins .--Charged
with breach of Post Office Regulations. - Strange verdict of the Jury. - Authorities cen-
sured.--Admiral Cochrane. -Admiral Inglefield. - Frands by Major Caine's compradore.-
Payments to him by the leaseholders of the Central Market.--He used Major Caine's
name.-Mr. W. Tarrant reports the extortion to the Government.- Committee of Inquiry
appointed.-Prosecution of Mr. Tarrant and Afoon for conspiracy to injure character of
Major Caine.- Mr. Tarrant's defence. - Major Caine's compradore absconds.-Land. Com-
plaints as to land tenure and high Crown rents.-The Government of India pass Act xi of
1847 authorizing transportation to the Straits Settlements from Hongkong. -Tenders for
passage of 61 convicts to Penang.- The ship General Wood and the mutiny of convicts.
-Ordinance No. 6 of 1847. Summary Jurisdiction of Police Magistrates and Justices of
the Peace extended.--Encroachment upon the powers of the Supreme Court. - Police
Court inspires no confidence. -A legally qualified Chief Magistrate desired.- Lord
Brougham's Act.--No hope of amelioration under Sir John Davis . -Futile appeal to the
Chief Justice for amelioration of affairs. - Governor Davis leaves for Cochin China.~-
Major-General D'Aguilar acts.-Sessions of the Vice-Admiralty Court.-- Chief Justice
complains to the Jury that he has not been allowed to see the indictments. - Sir John Davis'
vindictiveness.- Mr. Hillier confirmed as Chief Magistrate.- Public surprise and com-
ments.--Ordinance No. 6 of 1847.- Rapid promotion of Mr. Hillier and to what it was
due.-Chief Justice no hand in the matter.- Mr. Hillier a zealous officer.--His merits
recorded.--His illegal sentences of whipping.-Action pending against him.--Ordinance
No. 6 of 1847.- Ordinance objectionable as the Chief Magistrate unfit for the duties im-
posed.-Real object of Ordinance an encroachment upon Supreme Court.- Comments
upon Mr. Hillier's qualifications.--His submissive acquiescence to the wishes of the Execu
tive.-A Magistrate deferring to the will of another.-- Vagrant paupers hunted up and flog-
ged, etc.-- Disgusting sight.-- Some of the culprits lepers.-Flogging again discussed. --
136 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Ordinance No. 6 of 1847 , s. 5 , authorized 60 stripes.-October Criminal Sessions. Heavy
Calendar. -The case against Mr. Tarrant and Afoon postponed at request of Mr. Camp-
bell, acting Attorney- General. Mr. Coley, for Mr. Tarrant, objects.--The Chief Justice upon
the point.--Trial postponed .--Return of Governor Davis from Cochin China.- Com-
plaints against Mr. Holdforth, the Sheriff.- He withdraws ' Sheriff's Sales' from Mr. Mark-
wick, the Auctioneer, and gives them to Mr. Duddell.-Improper motives assigned.--The ship
General Wood.- Mutiny of the transported convicts.- The convicts break loose on leaving
Singapore. - Panic and murder of officers, etc.-They take possession of the ship and
compel the crew to work. - They run upon a reef.--European passengers on board.-
Rescued by Malay Chiefs. -Blame attributed to Hongkong authorities. - H. C. S. Plege-
thon sent after the convicts. - Those captured . - Conduct of captured convicts on board
the Phlegethon. -Their trial at Singapore.--The Recorder's summing up. -Extraordinary
verdict of the Jury. -Sentence of death recorded . - Sentence of transportation . - Recorder's
comments on the verdict.- No military guard on board the General Wood.- Due precau-
tions not taken on board.- Insurance on the vessel disputed. - European Constable
Chap. VII. Thompson pardoned. — Soldiers also pardoned.
Disallowance By Government Proclamation , dated the 26th March , 1847 , it was
of Rules of
Court by announced that the Home Government had disallowed certain
Home
Rules of Court before alluded to herein , dated the 11th November,
Government.
Ordinance 1844 ; the three rules of the 13th January, 1845 ; the general
No. 15 of
1844. rule of Easter term , 1845 ; and the rules of Michaelmas term, 1st
Ordinance November, 1845. Under what powers , and for what reason, it
No. 6 of was necessary to submit these rules to the Home authorities
1845, s. 23.
for approval or otherwise, and however anomalous , is not ap-
parent . Suffice it to say that the Supreme Court Ordinances
No. 15 of 1844 and No. 6 of 1845 , s . 23 , gave no such direc-
tions.
Expedition The repeated insults offered to our countrymen, and the
to Canton.
restrictions upon their privileges , seemed to have at length con-
vinced the Home Government of the expediency of adopting a
more decided course in dealing with the Chinese. In conse-
quence of the evasive and unsatisfactory conduct of the Chinese
Minister, Her Majesty's Plenipotentiary communicated with
the General, and determined with him on the necessity of pro-
ceeding, with the co- operation of the Navy, with a force to
Canton to demand certain points on which he had been instruct-
ed to insist, by Her Majesty's Government. Accordingly, on the
1st April , it was ascertained that an expedition to Canton
was intended , and the impression was, that Sir John Davis was
about to demand some important concession -either the residence
of an ambassador at Peking or the immediate entrance to the
City of Canton, -the justice of the latter demand having been
admitted by the Imperial Commissioner a year ago . Some other
Departure of matters also called for redress . Early on the morning of the
Governor
Davis and 2nd April, Sir John Davis and Major- General D'Aguilar em-
Major- barked and the vessels sailed . With the concurrence of the
General
D'Aguilar Governor, the General gladly availed himself of the services of
with the
Expedition. Major Caine, and appointed him Commandant of Hongkong
Major Caine, during the absence of the General and the main body of the
Commandant troops on service at Canton , and the Governor also appointed
ofHongkong. Major Caine to administer the Government during
"the tempo-
rary absence of himself and the Lieutenant-Governor."
RIGHT OF APPEAL FROM CONSULAR DECISIONS WITHDRAWN. 137
The expedition was singularly successful and the results were Chap. VII.
best appreciated by those who had marked the course of former 1847.
negotiations with the Chinese when we were met at every step
with affronts, evasions , and delays. Even the Pottinger treaties
had not secured us against them, so far at least as Canton, the
principal seat of commerce, was concerned . After the expedi- Return of
troops to
tion had fulfilled its object, on the 8th of April, the troops Hongkong.
embarked and returned to Hongkong. It was feared at one
Fear of
time that, during the absence of the fleet and of the main body
disorder in
Hongkong
of the Forces, Hongkong would be attacked and plundered , during
but besides the military precautions it would appear that the absence
troops. of
Police arrangements were equally efficient, the Force being scat-
tered all over the town to prevent any assemblage of Chinese , Police
and to watch such suspicious persons as might be seen lurking precautions.
about.
Mr. Caldwell, the Assistant Superintendent of Police, hav-
ing received information of a meeting of the Triad Society Meeting of
Triad Secret
being held at Wong- nei - chung for the purpose of planning an Society.
attack on the town, proceeded in that direction, and observed
groups of men, amounting to about two hundred , coming down
the hill. Seeing one of them with a wound on the eye and
blood on his jacket, he stopped him and found in his pocket
two books of the Triad Society. This man , together with
several others, was arrested and afterwards ordered to furnish
security.
Early in the year, the Governor, as Superintendent of Trade, Consular
passed the Consular Ordinance No. 1 of 1847 which took from Ordinance
No. 1 of
British subjects the right of appeal to the Supreme Court in Withdrawal
1847.
cases of Consular Jurisdiction . It will be remembered that, in of appeal
November last, Mr. Compton had appealed against the decision to Supreme
Court of
of the Consular Court at Canton . Sir John Davis had had the Hongkong
audacity and bad taste to write to the Chief Justice telling him against
Consular
in other words that it would be highly inconvenient to the decisions,
Government if Englishmen were to be allowed the benefit of Case.
law and justice in China, and asking him to confirm the sentence. Governor
The reversal of the sentence, notwithstanding this appeal, David
seems to have galled Sir John Davis extremely, and it was Chief
Justice to
evident that so long as the Chief Justice took an independent confirm the
view of the discharge of his judicial duties and disregarded the sentence.
wishes of the Governor, the petty oppressions of Consular The Chief
Justice
ignorance would not be repeated and the Consular officers and disregarded
the Superintendent of Trade himself kept within the bounds of the wishes
of Governor
established law. But this was intolerable to Sir John Davis, Davis.
whose animosity towards the merchants of Canton had become Governor
Davis and
so noticeable since the Compton case. Thwarted in his unworthy his attitude
attempt to tamper with the Judge and to coerce the residents, towards the
he wrote Home to Lord Palmerston denouncing the merchants merchants
138 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. VII. as a lawless and turbulent community, and asking for powers to
-
1847. prevent an appeal from the Consular Courts. In his despatch
after the of the 25th November, 1846 , after unfairly commenting upon
reversal
of the the decision of the Chief Justice, and regretting his interference
decision. in " international cases," it will be remembered that he had
Governor
Davis said that " some fresh Ordinance was inevitably required to
asked for in future, and after
prevent such mischievous interference "
powers
to prevent obtaining the powers he asked for, a plausible opportunity now
appeal from
Consula r offered to deprive those under the jurisdiction of the Consular
Courts. Courts of the protection of the Supreme Court of Hongkong.
Accordingly, such an opportunity was now laid hold of after our
Governor relations with China and the security of foreigners at Canton ,
Davis'
instructions had been settled . After returning to Hongkong, Sir John Davis
to Consul wrote to the Consul, Mr. McGregor : - "It will be your duty
McGregor.
Ordinance to control British subjects in accordance with the expressed
No. 1 of views and intentions of Her Majesty's Government, and my late
1847.
British Ordinance No. 1 of 1847 has strengthened your hands in a
subjects
deprived of manner which leaves nothing wanting." This perfection of legis-
right of lation strengthened the hands of the Consuls by depriving
appeal to
the Supreme British subjects of the right of appeal to the Supreme Court as
Court. provided by Ordinance No. 6 of 1844. Englishmen were thus
Ordinance
No. 6 of placed without the pale of English law. Ordinance No. 1 of
1844. 1847 gave the Consul jurisdiction in all cases " which shall not
Ordinance
No. 1 of appear to him to deserve a greater punishment than 12 months'
1847.
Powers of imprisonment or a fine of $ 500 , " the Superintendent of Trade
the Super- having power to remit or mitigate the punishment. Sir John
intendent
of Trade Davis thus usurped the privileges of the Supreme Court as
thereunder. was provided for by the Consular Ordinances Nos . 1 , 2 , and 6 of
Consular
Ordinances 1844, and, ignorant of law as he confessed himself to be, he
Nos. 1, 2, would now adjudicate upon points involving the most important
and 6 of
1844. interests , and thus the liberties and prospects of Englishmen be
Liberties at the mercy of men who were professedly unfit for their posi-
and
prospects of tion. The Ordinance, moreover, was constitutionally improper
Englishmen and had been passed without the customary suspending clause.
at mercy of
unqualified So much for the boasted liberty of the subject. †
men.
April The April Criminal Sessions of the Supreme Court opened on
Criminal the 15th of that month.
Sessions. The calendar was light compared
Sentences with the previous sessions, but some of the cases were serious ;
of death.
Four four men were sentenced to death for murder and robbery and
European four European Police Constables accused of larceny in a junk
Police
sentenced to in the harbour, on board of which they had been placed as a
imprison- guard, were sentenced to twelve months' imprisonment.
ment for One
larceny. of these, Charles Thompson , received a free pardon on the 12th
November, but for what reason is not apparent.
* Antè Chap. IV., p. 116.
† Upon the subject of Consular decisions, see further Chap. XII., and XIV., infrà, and
Volume II., Chap. XXXIX. and XLII,
DISAGREEMENT BETWEEN THE GOVERNOR AND THE CHIEF JUSTICE. 139
A Vice Admiralty Court was held on the 20th April , accord- Chap. VII .
ing to notice. There were twelve cases for trial, and the Grand 1847.
Jury found true bills in all, the most important cases being those the
Sitting of
Vice-
connected with what was known locally as the Chimmo Bay Admiralty
piracies, when the captains, officers , and part of the crews of Court.
The Chimmo
the ships Caroline and Omega were murdered . From informa- Bay piracies .
tion received, Mr. Caldwell, the Assistant Superintendent of
Police, took into custody several men at different times on
suspicion, but the legal evidence against them was incomplete
until one of the gang was seized by the Chinese Magistrates at
Canton for other crimes and , being subjected to torture, confessed
his participation in the Chimmo piracy ; other disclosures were
none the less remarkable . For the assistance rendered by a A convict
prisoner named Too Apo in connexion with this matter, and Too Apoa
receives
who had turned Queen's evidence, Too Apo , who had but free pardon
and gives
recently been convicted of robbery and sentenced to transporta- evidence
tion, received a free pardon and was released on the 19th April, in the case.
the day before the opening of the Vice- Admiralty Court, which
thus enabled this " infamous " witness to appear in Court and
give evidence in a different garb than he would otherwise have
done. Upon the conclusion of the cases , Too Apo was taken He becomes
on in the Police as a piracy approver. How he contrived after aapprover.
piracy
wards to deceive the authorities and to turn his infamy into His infamous
account will be seen later on . Apart from this incident, some conduct
afterwards.
observations appeared to be called for, in regard to the proceed- Comments
There upon the
ings at the above Sessions of the Vice- Admiralty Court. last sitting
were a dozen cases to try, the sittings commenced on Tuesday, of the
Vice -
the 20th April, and for the Thursday following, the 22nd , the Admiralty
sittings of the Supreme Court in its summary jurisdiction Court. nate
Unfortu
had already been fixed , so that in reality twelve cases had disagreement
to be disposed of in two days. Owing to some blunder in between
Governorthe
framing the indictments, five cases fell through, and the and the
Chief Justice , having regard to the state of the business , Justice.
Chief
had previously communicated with the Governor as to the
unsuitable date which he (the Governor ) had fixed for the
holding of the Vice - Admiralty Court, but to no purpose, the
Governor insisting, for some unknown reason, upon the latter
Court being held on the 20th , although the 22nd had been
previously fixed for the Summary Jurisdiction .
In accordance with the Governor's orders , therefore , the The Governor
Vice- Admiralty Court was opened on due date, but the and Chiefthe
Chief Justice continued to hold the Criminal Sessions , which Justice hold
had not yet concluded , the Governor presiding at the Vice- different
Courts.
Admiralty Court. Later on, the Chief Justice joined the
Governor on the bench of the latter Court, when it was
understood that some unfortunate disagreement had arisen
140 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap . VII . between them, but one can infer from what has preceded that
1847 . the fact of the Chief Justice continuing to hold the Criminal
Discussion Sessions while the Vice- Admiralty Court was being held by Sir
between
them John Davis , was one of the topics of discussion between them. In
afterwards. the course of this discussion it was understood that the Governor
Governor
Davis had threatened to suspend the Chief Justice, -the right of the
threatens latter to be addressed as " His Lordship " being , moreover,
to suspend
the Chief called into question by him. Tomlin's Law Dictionary was
Justice.
referred to under the head of Dominus, and it was there
He questions
the right found that the " Lord Chief Justice " was specially mentioned
of the
Chief as entitled " Lord " by courtesy. Naturally, this matter did not
Justice to escape criticism, and Sir John Davis ' right, except by a similar
be styled
'Lord.' courtesy, to be styled " His Excellency " was itself afterwards
Petty spite. discussed . But all this petty spite on the part of the Governor ,
as will be seen afterwards, was only the commencement of a
series of persecutions on his part, in consequence of the Chief
Justice's refusal to allow himself to be improperly dictated to
in connexion with the Compton Case before alluded to, and
The reason. wherein Mr. Hulme had upset the Consul's conviction though
Public
opinion. requested privately by the Governor to uphold it . It was
considered that Sir John Davis ' dodge of trying " to ride in
upon the merchants " in Canton ( allusion being doubtless had
to his references to them in connexion with the case of Mr.
Compton) was now " to ride over the Court." This was the
result, it was said, of putting power into hands unfitted to wield
it.
66
England's broad wing hath raised him ( no bad hack)
A tom-tit twittering on an eagle's back. "
Heavy work The Chief Justice also sat in summary jurisdiction on the
in the
Supreme 22nd and 23rd April, as announced. A vast amount of labour
Court. was thus thrown upon him and the officers of the Court, and
had not the acting Attorney- General broken down in five of his
cases, it was almost certain that the Admiralty Court would
have taken several days, and the consequence would have been
the postponement of the small debt Court to the greater or less
inconvenience of the suitors .
Major Caine On the 23rd April , a despatch was received from Home,
confirmed
as Colonial confirming the appointment of Major Caine to the joint offices
Secretary of Colonial Secretary and Auditor-General, an amalgamation
and Auditor- effected last November as before mentioned . Nothing was
General.
Nothing known as to Major Caine's successor, and the wish was again
known as
to his expressed, and not unnaturally so, as may well be imagined, that
successor.
a thoroughly competent man would be found for this post.
Mr. Hillier
considered Mr. Hillier's qualifications did not fit him for the position, and
not qualified, there were other offices for which he was qualified.
Eulogistic
article in Captain Balfour in his examination before the Select Com-
the Dublin mittee of the House of Commons upon Chinese affairs, it will be
MAJOR CAINE . 141
recollected , spoke highly of the merits of Major Caine, and in Chap.
- VII.
addition to his services, as noticed in November last year, The 1847.
Dublin University Magazine for July, 1847 , in an article upon University
Magazine on
Hongkong and some of its officials also, had the following Major Caine.
eulogistic paragraph with regard to Major Caine : --
" MAJOR CAINE ."
" There is a member of the Colonial Government who, in the general
estimation, is one of the few in authority perfectly qualified, in every respect,
to govern, command, and enforce respect - possessing that suavity of manner,
and hospitality of disposition , which has obtained for him the universal
esteem of the mercantile body, and of all who have the pleasure of his
acquaintance. Experience has taught him the true character of the Chinese.
His unflinching firmness, and his just and impartial conduct on the bench,
produced such an effect upon them, that one word from him is sufficient to
secure their respect and attention. Those who know China will have antici-
pated the name of Major William Caine, the Chief Magistrate of Hongkong.
When I first anchored in Victoria harbour, I was much struck with the
estimation in which this gentleman was held. Not being understood by
some Chinese who came on board , when I asked " Who is the Governor
here ? " I changed the form of the inquiry, and asked " Who is the great
man ? " The immediate reply was " Major Caine." They knew nothing of
Sir Henry Pottinger, nor of Sir John, then Mr. Davis. On many occasions
I have tried various Chinamen, and questioned them about the Governor, or
No. 1 Mandarin, but they knew nothing of Sir John Davis ! -while I have
invariably found the name of Major Caine sufficient to deter them from extor-
tion or insolence."
Judging from the records, this was by no means an exagger- Major Caine's
conduct in
ated account, but Major Caine's conduct taken in connexion with relation
the suspension of Chief Justice Hulme in November of this year, to Chief
Justice
however much he may have been the tool of Sir John Davis , Hulme's
will ever remain a blot in his official career in Hongkong. He suspension.
undoubtedly was aware of the antipathy which Sir John Davis
entertained for the Chief Justice and the reason for it, and yet
supported the former in his infamous attempt to ruin, without
any reason, the character and reputation of an upright, inde-
pendent , and conscientious judge, and no honourable man under
the circumstances could think otherwise than that Major
Caine's conduct in the matter was highly reprehensible and
undignified .
The case respecting the sentences of flogging brought before The effect of
Parliament by Dr. Bowring in August, 1846 , as might have Dr. Bow-
ring's
been expected, broke down, and though the exposure appeared motion in
the House of
to have had the effect of almost entirely stopping corporal Commons
punishment, it only resulted , doubtless after due inquiry, in against
flogging in
the issuing of fresh instructions from Home to resume the Hongkong.
practice. Flogging was by no means considered unsuitable to Flogging as
regards the
the criminal population of the Colony, but the atrocities per- criminal
petrated in the name of justice had gone beyond all bounds of population.
142 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap. VII. reason, especially having regard to the sanguinary and merciless
--
1847. despotism with which it had been practised . In the Police
Court on the 27th April , a labourer accused of being a rogue
and vagabond, and with stealing a piece of wood , was sentenced to
receive twenty-five strokes of the rattan. This was believed
to have been the first sentence of whipping inflicted for some
considerable time. Under ordinary circumstances this case
would probably have gone to swell the list of cases committed
Effect of for trial. So far the community had been obliged to Dr.
substitution Bowring, since the substitution of imprisonment for flogging,
of imprison-
ment for instead of checking crime, had encouraged it by holding out at
flogging.
worst the prospect of house room, regular meals , and light
labour to idle rogues and vagabonds , besides crowding the gaol
and throwing on the Supreme Court many petty cases which
might have been much better dealt with by the Magistrate in
a summary way. But though flogging had been resumed as a
necessary punishment in such a community as this , it was
hoped that more discretion and discrimination would be exercised
in future than had been displayed in the past, and the sentence
recorded above, compared with the past , gave one the idea that
this would be so.
Convict Henry Daniel Sinclair, convicted of piracy and sentenced to
Sinclair
pardoned. transportation for life in June, 1845 , and who together with
Original others had effected his escape from prison in July, 1846 , being
sentence of
transporta shortly afterwards re-captured, received a free pardon on the
tion could
not be 29th April , 1847. Apart from the fact that probably he had
carried out. now been considered sufficiently punished, doubtless his release
Reason.
Mr. Shelley was partly due to the fact that it had not been found practicable
appointed to carry his original sentence into execution , inasmuch as,
Assistant since the cancellation of the Order mentioned in March, 1844 ,
Auditor-
General of authorizing transportation to Van Diemen's Land, no other place
Mauritius.
Publication had since been substituted for the reception of such convicts .
of certain Mr. Shelley, Clerk of Councils, who had arrived in the Colony
provisions in 1844 , and who on several occasions had acted as Hindustani
relating
to the Interpreter to the Supreme Court, was now appointed Assistant
government Auditor - General of Mauritius .
of Her
Majesty's
subjects in Under instructions fromthe Home Government , the Governor ,
China.
Queen's as Her Majesty's Plenipotentiary and Chief Superintendent of
Order-in- Trade, caused the Queen's Order- in - Council of the 17th April ,
Council of * 66
17th April, 1844 , published under the Act 6 and 7 Vict. , Cap. 80 , An
1844. Act for the better government of Her Majesty's subjects resort-
Act 6 and 7
Vict. , Cap. 80, ing to China," † to be re-published on the 28th May, 1847 , as
Consular well as the Consular Ordinance No. 7 of 1844 , which related
Ordinance
No. 7 of to the same subject. This was done , as will be noticed , after
1844.
* Antè p. 43.
† Antè p. 28.
REGINA V. LARKINS . 143
the hearing of the Compton Case , and evidently with the idea Chap. VII.
that these enactments were not sufficiently known . 1847.
The Compton
The case of the Queen versus Larkins, which had excited Case.
considerable local interest, came on for hearing on the 2nd June, Regina
Larkins.r.
before Chief Justice Hulme and a special jury. Captain Larkins
was proprietor of the steamer Corsair plying between Hong-
kong and Canton, and was charged with having, during twelve Charged
months from February, 1846, to March , 1847, carried letters with breach
of Post
not excluded from the exclusive privileges of the Postmaster- Office
General. The penalty provided by Statute was either five Regulations.
pounds for each letter or one hundred pounds for every week
the practice was continued . The Crown claimed the latter,
amounting to £5,200 . The Jury found the defendant guilty of verdict
Strangeof
one breach of the Statute, thereby rendering him liable in a the Jury .
single penalty of £ 100 , recommending a remission of the fine
on the ground that the defendant was rendering a public
service, and accompanying their verdict with a censure of the Authorities
censured,
authorities for having permitted the system to go on so long
(upwards of a year) unchecked -a remark very proper in itself,
but rather strangely appended to a verdict which found that the
offence had been committed during one week only.
H.M.S. Agincourt, which had left Hongkong in December, 1846 ,
with Admiral Cochrane on board, left Penang for England at day- Admiral
light on the 15th April , in company with H.M.S. Wolf. In the Cochrane.
evening Admiral Inglefield hoisted his white flag at the mizen of Admiral
the Nemesis under a salute from H.M.S. Daedalus and the Penang Inglefield .
Fort, remaining in Penang for a time and arriving in Hongkong
on the 24th July, to assume command of the squadron.
In June, 1847 , some disclosures were made relative to certain Frauds by
frauds committed by the compradore in the service of Major Major Caine's
compradore.
Caine, and it was hoped that this would help to check the sys-
tem of fraud and extortion which had so often been entailed Payments to
upon official transactions in the Colony. It was asserted that him by the
leaseholders
Major Caine's compradore for a considerable period had induced of the
Central
the leaseholders of the Central Market and others to pay him Market.
moneys to obtain his master's good- will. Had the man practised He use
Major
extortion in his own name the crime would have been less Caine's
heinous, but he used the name of his master, thus bringing the name,
Mr. W.
character of public officers into disrepute among the Chinese. Tarrant
Mr. William Tarrant, for several years employed in the Surveyor- reports the
extortion
General's Office, brought these charges of extortion to the notice tothe
Government.
ofthe Government on the 3rd July. The charges implicated in a Committee
minor degree the compradore of the Treasury. The Governor of Inquiry
appointed.
at once appointed a Committee of Inquiry consisting of Mr. Prosecution
Campbell, the acting Attorney- General, Mr. Hillier, the acting of Mr. and
Tarrant
Chief Magistrate, and Mr. Caldwell, Assistant Superintendent
144 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap. VII. of Police and Chinese Interpreter. The result of the inquiry,
1847. as reported upon by Mr. Campbell, ended in the prosecution of
Afoon for Mr. Tarrant, who was committed for conspiring to injure the
conspiracy
to injure character of Major Caine and held to bail to take his trial at
character the October Sessions, together with one Afoon, he also being
of Major
Caine. concerned in the alleged conspiracy. Mr. Tarrant denied that
Mr. Tarrant's
defence. he had wished to injure the reputation of Major Caine ; that on
Major the contrary he considered he was doing him a good service by
Caine's
compradore exposing the knavery of a person in whom he had placed con-
absconds. fidence. In the meantime, a most suspicious element in the
case, Major Caine's compradore had levanted from the Colony !
Land. Complaints having arisen from the landowners in regard to
Complaints
as to land the land tenure of the Colony, and the high Crown Rents , it
tenure and was, after much consideration, represented to the Secretary of
high Crown
rents. State, first by Sir John Davis and afterwards by Governor
Bonham that the extension of the term of 75 years on which
the lands of the Colony were then held , or the grant of the
lands in perpetuity , would be accepted as a boon by the mer-
chants. The complaints of the landowners had reached the
House of Commons, and a Select Committee of that House, it
will be remembered, was appointed to investigate the commercial
relations with China and the state of Hongkong.t
The feelings of the landowners with reference to the land
sales and land tenure appears in an article in The Friend of China
newspaper, of the 24th July, 1847 , as follows :-
" The land sale of January, 1844, § with all its injustice will at length be
brought to light ; but whether it will lead to any reduction of the present
rates of ground rent is doubtful. We are in hopes that justice will be done
so far as refers to the land tenure, by giving those who have built substantial
tenements a more permanent title than a lease for seventy-five years . It
certainly was not the intention of Her Majesty's Government that at the
expiration of the lease the land and buildings should be put up to public
competition. As the proprietor is bound to keep the property in an efficient
and habitable state, it would be unfair that the houses he built should be sold
to another. Such things have happened, however, as witness the sale of
January, 1844, at which grants with improvements were sold to the highest
bidder, to the discredit of the then existing Government. The odium of
these sales will rest upon Sir Henry Pottinger and his advisers, and the un-
scrupulous mauner in which he seized upon private property will not add to
his reputation. We are satisfied that though instructions were received
not to alienate the land, the same despatch provided for a clause, by which
the lease should be renewable for a further period . Though the language
is purposely ambiguous, this is admitted by Sir Henry Pottinger in his letter
to the landholders, dated the 6th March, 1844. We quote the passage,-
' looking to the instructions from England , although it has not been consider-
ed that a positive stipulation on the subject could be introduced into the
Leases, yet Her Majesty's Government will be moved to place on record that
it shall be understood that at the expiration of the present leases, the offers
of the occupants of the different premises shall have a preference over all
* See Chap. X. and XI., infrà.
Antè Chap. VI.
§ See Chap. I., antè p. 36 --also on the same subject, Chap. III., antè p. 71 .
LAND. 145
others, and that they shall be allowed to renew their leases on favourable Chap. VII .
terms for such further period as may then be deemed just and expedient.'
Mark the words, it has not been considered that a positive stipulation on 1847.
the subject could be introduced into the leases.' Whose opinion was this ?
The opinion of Sir Henry Pottinger and his legal adviser ! -certainly not ;
the opinion of the advisers of the Crown. The instructions Sir Henry refers
"
to did , in all likelihood , provide for a positive stipulation ' that the leases
should be renewed, on the same terms ; but Sir Henry Pottinger entertained
the opinion that at some future period building allotments in Hongkong
would become immensely valuable, and therefore he did not consider that a
positive stipulation could be introduced into the leases.'
Sir Henry Pottinger wished to secure to the Crown any increase in the
value of land at the expiry of seventy-five years, upon which the present
holders built expensive and substantial houses believing that their title would
be in perpetuity. Sir Henry did not perceive all the injustice of this mea-
sure, or he would have hesitated before he sanctioned, or rather adopted it.
He says Her Majesty's Government will be moved to place on record
etc.' But what evidence is there of such a record ? and seventy-two years hence
how are the occupants to prove its existence except by the loosely - expressed
paragraph we have quoted ? The leases would have been the proper place to
have recorded this, but they are silent on the subject. Supposing the record
duly made and admitted , it is not enough that the occupants should have a
preference in renewing the leases. Justice demands more than this. If
others are willing to pay a higher ground rent, it should be stipulated that
they take the buildings at a fair valuation . This may not have occurred to
Sir Henry Pottinger, but it is so reasonable that few will dispute it. It is
hard enough that those who first came to the Colony- or rather their heirs
--should be deprived of every possible advantage which may accrue from an
increased value in land that ought to have been their own ; but if they are to
be deprived of their houses, or compelled to re-purchase them, it will be a
gross violation of justice.
It is doubtful whether this point will be brought to the observation of the
Committee, as even here, Sir Henry Pottinger's letter and its admissions
appear to have been forgotten. Should the matter be overlooked, it will
then remain with the landholders, either to submit to the sacrifice of their
property, or respectfully petition Her Majesty in Council, that a clause be
endorsed on the leases to the effect, that they will be renewable on the pre-
sent terms, or, if again put up to competition, that the proprietors be re-im-
bursed for improvements ."
On the 7th August, the Government of India passed the Act The
No. XI. of 1847 , authorizing the Governor of Prince of Wales' Government
of India
Island ( Penang), Singapore, and Malacca to receive in the said pass Act
Settlements convicts " who had been duly sentenced to xiof 1847
authori zing
transportation by any competent Court " in Hongkong. In transporta-
pursuance of the said Act, the Governor directed , on the 23rd tion to the
Straits
September, that any offender convicted in the Colony and being Settlements
from
under sentence or order of transportation , be sent by the earliest Hongkong.
opportunity to the said Settlements . In August and September, Tenders for
the local Government had advertized for a passage to Penang passage of
61 convicts
for sixty-one convicts, and these undoubtedly were the men to Penang.
who, with others added to their number, on departure from
The ship
Hongkong in November, mutinied and captured the vessel on General
their way thither on board the General Wood, as will be found Wood and
mentioned hereafter. the mutiny
of convicts.
146 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. VII. Ordinance No. 6 of 1847 extending the summary jurisdic-
1847. tion of Police Magistrates and Justices of the Peace in Hong-
Ordinance 66
kong with a view," as the preamble stated , " to diminish