18
?
Besides, the men working together in one gang would be all fellow prisoners, and would have heard of the flogging, and would not be more likely to jeer their comrade when they saw the marks than when he mingled with them in prison dress immediately after the flogging.
"Mental torture " and "moral degredation" are terms inapplicable, I fear, to the class of Chinese prisoners who incur the penalty of the cat, except so far as the first may be felt in anticipation of pain.
Injury to the physical health is another question, which demands careful and unbiassed investigation.
I have, &c.
(Signed)
FRANCIS SNOWDEN.
MR. JUSTICE SNOWDEN to Acting Colonial Secretary.
(No. 480.) SIR,
1, Caine Road, Hong Kong, July 28, 1877. In the letter which I had the honor recently to address to His Excellency the Governor on the subject of a communication from the Colonial Surgeon with reference to flogging, I expressed doubts as to the reality of the "mental torture" and sense of "moral degradation "attributed by Dr. Ayres to Chinese prisoners whose backs bear the marks of the cat on stripping to work amongst their fellow prisoners.
On referring again to Dr. Ayres' letter it seems to me that I misunderstood his meaning, and that he was speaking of the shame felt by men who, after leaving prison, might be obliged to expose their backs bearing indelible gaol marks, not to fellow criminals, but to honest working people.
If such is the nature of Dr. Ayres' objection I quite agree with him that it would be a reason for abolishing flogging on the back. But I am not sufficiently acquainted with the character of the Chinese working population to say whether they are sensitive about working in the company of a man who has been the inmate of an English gaol.
I may perhaps remark that I quite agree with Dr. Ayres that flogging should be administered on the breech and not on the back. I only questioned the value of the evidence on which, as stated in his letter, his opinion was founded.
I have, &c. (Signed)
F. SNOWDEN.
I
say
19
this with great respect for Dr. Ayres, because I know that in high surgical circles in England his abilities are acknowledged.
Dr. Ayres opinion calls for.serious consideration. In reply to the invitation for a suggestion it seems to me that the opinions of medical men, well acquainted for many years with the constitutions of the Chinese, should be obtained if views on the subject of the special tendency to consumption of Chinese is to be taken into consideration in any legislation as to flogging.
I venture to add a history of the law which introduced flogging as a penalty into this Colony by sentence of the Supreme Court.
For several years public opinion was calling for giving to the Supreme Court the power of flogging in cases of felonies accompanied by personal violence.
Chief Justice Adams and I, then Attorney General, opposed its introduction. We had both left owing to ill health in May 1865. Judge Ball then became Acting Chief Justice and Sir Julian Pauncefote Acting Attorney General, Mr. Mercer being Acting Governor, and on the 2nd of June Ordinance No. 12 of 1865 was introduced, and on the 14th of June 1865 it was passed.
Returning in October 1866 as Chief Justice, I found that the Ordinance had been very generally acted on with universal satisfaction. My personal views merged in my duties as Judge, and from that time to the present I bave, exercising the discretion given to me, enforced the penalty as the organ of the law, but never except in cases in which I felt that the prisoner was past reform, irrecoverably bad.
It seems to have been the universal opinion that crimes of violence coming before the Supreme Court have decreased in number. A sense of personal security has grown up in the community which prior to 1865 did not exist.
I am bound to state that, although I have ever considered the punishment brutal and brutalising, unfit for a large high grade civilized community, practical results have brought me, most unwillingly, to the conviction that for a country where the criminal classes are far less humanized flogging is practically useful, especially in such a colony as this, imbedded as it were in an Empire where Draconian laws prevail, and crimes, subjecting here to flogging, are punished by the most horrible tortures and by death.
I have, &c. (Signed) JOHN SMALE,
Chief Justice.
PUBLIC RECORD OFFICE
Reference:
CO. 882
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH—NOT TO
PUBLIC RECORD OFFICE, LONDON
CHIEF JUSTICe to Acting Colonial SecRETARY.
The Supreme Court, Hong Kong, July 26, 1877.
SIB,
I HAVE the honour to acknowledge the receipt of a copy of a report made by Dr. Ayres, Colonial Surgeon, dated 6th July instant, on the subject of the flogging of prisoners, and of your letter, No. 479, dated the 9th of the same month, requesting any suggestions which I may be able to offer thereon.
I am surprised to find that Dr. Ayres considers that "in all floggings of Chinese by "the cat they suffer, besides the external injury of the skin, more or less from congestion "of the lungs." I cannot, and I do not, believe that every Chinaman who has been flogged has suffered from congestion of the lungs. Such expressions, being unguardedly general, destroy, as I submit, the value of the opinion. It is morally impossible that two Colonial Surgeons, both humane and medically skilful, could have failed to have noticed such a result if it had been universal as Dr. Ayres states it to be.
Dr. Ayres sustains his universal proposition by the single case of Wong-a-Kwai, flogged in the years 1867 and 1874. If he has no phthisical history there certainly cannot be evidence that the disease is not hereditary in him, and the "personal physique of many a consumptive patient gives no indication of such a predisposition. "I submit that what is "admitted by officers" of the goal is not equivalent to evidence. The argument of Dr. Ayres as to this case seems to be post hoc therefore propter hoc.
The comparison of two Europeans with one Chinaman seems to me insufficient to sustain such a universal proposition as that put forth by Dr. Ayres.
(No. 536.)
SIB,
The ACTING Colonial Secretary to Chief Justice.
Colonial Secretary's Office, Hong Kong, July 30, 1877.
THE Governor desires me to thank Your Honour for your letter of the 26th instant on the flogging of Chinese prisoners.
2. As regards the medical question, the Governor has had a further conference with and Dr. Ayres and has seen the records of other cases besides that of Wong-a-Kwai; His Excellency feels bound to accept the Colonial Surgeon's professional opinion as to the physiological consequences of the floggings.
3. With reference to the general question, His Excellency entirely concurs with you in regarding flogging as a brutal and brutalising punishment; and he has no doubt but Your Honour's wish is that it should be strictly confined (to use Lord Carnarvon's words in writing to Sir R. MacDonnell on the 22nd November 1866) to cases of crime which by their violence or atrocity disclose a brutal or intractable nature.
4. Pending further consideration, the Governor cannot allow any flogging to take place except in the mode sanctioned by the Colonial Surgeon and within the precincts of the gaul.
5. Your Honour's reference to the decrease in crimes of violence coming before the Supreme Court may possibly lead to misconception. In the Report of the Captain Superintendent of Police on the returns of crime in the year 1875 Mr. Deane says, au compared with the year 1874, there has been an increase of 19-74 per cent. on serious crime. In his report on the returns of crime for the year 1876 he again says:-" Com- pared with the returns of 1875, an increase of 19:43 per cent. is shown in all
C 2
着像