tried and found guilty at the first session of the Court of the notorious
pirate Chun
Admiralty held in Hongkong on the 14th January, 1847. On Teen Soong.
his way to the place of execution , Chun Teen Soong appeared His
perfectly cool and indifferent, frequently smiling upon his on indifference
the
countrymen as he passed them . He had embraced Christianity scaffold.
and was attended by the Reverend W. Gillespie. He acknow-
ledged his guilt and said that he deserved to suffer, as he had
been concerned in no less than nine acts of piracy accompanied Confesses to
nine acts of
by murder. He also gave other information which, it was piracy and
hoped, would lead to the apprehension of his accomplices. murder.
Mr. Bruce, the Colonial Secretary, who had been on short Departure of
vacation leave the previous year, proceeded to England on six- Mr Bruce,
Colonial
teen months' leave, on the 23rd June, by the P. & O. steamer Secretary.
Lady M. Wood. The following changes took place in conse-
quence : Major Caine to officiate as Colonial Secretary ; Mr. C. Changes in
B. Hillier to perform the duties of Chief Magistrate, vice Major consequence,
Caine, and Mr. C. G. Holdforth, the Deputy Sheriff, to perform
the duties of Assistant Magistrate, vice Mr. Hillier . A curious Mr. Bruce
fact in regard to Mr. Bruce's departure was, that the London appointed
Lieutenant-
Gazette of the 27th June, four days after his departure from Governor of
Hongkong, contained a notification of his appointment as Lieut- Newfound-
land.
enant-Governor of Newfoundland.
On the 23rd June it was announced locally that there was Arrival of
a prospect of a barrister of " extensive legal acquirement and Mr.N.
D'Esterre
experience settling in the Colony," and, besides his profes- solicitor.
Parker,
sional ability, he was represented as a gentleman who would
be a " welcome acquisition to the society of the place." No
name was cited, but not long after, on the 29th July, Mr.
N. D'Esterre Parker was admitted to practise in the Supreme
Court. He was a solicitor, so the announcement mentioned
above may not have referred to him. The following was Mr. He advertizes
himself.
Parker's advertisement in relation to himself :-
IN THE SUPREME COURT OF HONGKONG,
Mr. N. D'Esterre Parker, Solicitor of the High Court of Chancery, and
one of the Attorneys of Her Majesty's Courts of Queen's Bench, Common
Pleas, and Exchequer in Ireland, has been duly admitted to practise as a
Solicitor, Attorney, and Proctor of the Supreme Court of Hongkong. Mr.
98 HISTORY OF THE LAWS , ETC. , OF HONG KONG.
Ch. III § III. Parker is likewise a legally constituted Public Notary of the High Court of
-
Prerogative of England. Offices at Messrs. Bowra & Co.'s, Queen's Road .
1846.
Action On the 27th June, an action was heard by the Chief Justice
against at the instance of several Chinese boatmen in the service of the
Captain
Coates of the Opium Farmer named Acqui, a man who was said to exercise
Bomanjee
Hormusjee much influence for good or evil amongst his countrymen in
for damages.
Influence of Hongkong, against Captain Coates, master of the vessel Bo-
Acqui, manjee Hormusjee. The plaintiffs had been tried at the May
Opium
Farmer. Sessions on a charge of piracy, when they were discharged for
Plaintiffs want of jurisdiction . They now sought compensation for
previously illegal detention on board the vessel named, when they were
tried for captured by the defendant and handed over to the Police. The
piracy.
Chief Justice, in delivering judgment, considered the detention
They seek
compe nsati on was not justifiable, but showed his conviction that the plaintiffs
for illegal had suffered no great damage and the defendant had been
detention on
acquittal. actuated by no improper motive, by awarding the plaintiff's only
Chief Justice 50 cents damages. This case formed the subject of much
marks his public discussion . The law was ill adapted which could permit
indignation
by awarding such proceedings, and where the Police were so few and criminals
50 cents so plentiful. Captain Coates, in acting as he did, had shown
damages.
much public spirit, and but for the objection raised by counsel
Comments
upon the law on their behalf when on their trial and sustained by the Court,
on the the charge would certainly have been brought home to them.
subject and
public Much sympathy was therefore due to the defendant for his
sympathy praiseworthy action in this matter, and severe were the stric-
with
Coates.Captain tures passed upon the counsel who had conducted the case on
behalf of the plaintiffs.
Departure of The Governor, Sir John Davis, accompanied by his aide-
Governor
Davis to de-camp, Lieutenant Sargent, and the Chinese Secretary,
Chusan.
General the Reverend Charles Gutzlaff, left by H. M. S. Vulture
D'Aguilar on the 2nd July for Chusan, Major - General D'Aguilar
assumes
administering the Government in the interim. This visit was
charge.
generally believed to be in connexion with the handing over of
Chusan Chusan to China. The rumour to this effect proved to be correct,
restored to
China. for, on the 16th July following, the Governor , from on board the
Governor's Vulture, issued a proclamation that Chusan had been restored to
Proclamation China in conformity with treaty engagements, and that after the
and
warning as departure of the 98th Regiment , any person visiting the island
to Chusan.
would become liable to the penalties provided by the 4th article
of the supplementary treaty. The following was the pro-
clamation : -
PROCLAMATION.
The island of Chusan, having been restored to the Emperor of China in
conformity with treaty engagements, is no longer to be considered as one
of those ports or places with which trade is permitted . British subjects are
therefore warned that after departure of Her Majesty's 98th Regiment, which
is fixed for the 22nd instant, any person resorting to the island, or to any
CHUSAN . 99
of its dependencies , will become liable to the penalties provided by the 4th Ch. III § III.
article of the supplementary treaty. 1846.
God save the Queen.
J. F. DAVIS .
Given on board Her Majesty's Steam Vessel Vulture, this 16th day of July,
1846.
It may not be inappropriate to note here, that we first
occupied Chusan in 1841 , and that we gave it back to China on
the 25th July, 1846 , under the following clauses of a Convention
dated 4th April, 1846 :-
"It is stipulated on the part of His Majesty the Emperor of China that,
on the evacuation of Chusan by Her Britannic Majesty's forces, the said
island shall never be ceded to any other Foreign Power.
Her Britannic Majesty consents, upon her part, in the case of the attack of
an invader, to protect Chusan and its dependencies, and to restore it to the pos-
session of China as of old ; but as this stipulation proceeds from the
friendly alliance between the two nations, no pecuniary subsidies are to be
due from China on this account."
The divorce suit of Matthyssons v. Matthyssons, came before Important
divorce
the House of Lords on the 2nd July, before Lord Cottenham suit :
and other Peers with the learned Judges. The petitioner, a Matthyssons
British merchant at Macao, left that place for a voyage to v. Matthys-
sons.
Australia leaving his wife behind under the protection of her
brother, Mr. Adam Wallace Elmslie, the then Secretary to Sir Mr. A. W.
Henry Pottinger, the British Plenipotentiary in China and Elmslie,
Secretary to
Governor of Hongkong, and during his absence she carried on sir H.
Pottinger.
an adulterous intercourse with a merchant ofthe name of George Mr.
* G. T.
Thomas Braine. In his examination, the petitioner stated he Braine.
could not bring an action for damages against the latter as he
was beyond the jurisdiction of the Courts of Judicature in
England, and that he had obtained a definitive sentence of
divorce a mensâ et thoro against his wife in the Consistory Court
of London in November, 1845. This case is now noticed
owing to the parties to it being well-known in the Colony,
apart from the interest it also evoked through Sir Henry Pot-
tinger being a witness in it and the comical attitude of a Chinese
woman when before the Court in regard to the taking of an Chinese
oath. On calling the Chinese woman, with a gentleman who oaths.
acted as interpreter, -
"Lord Brougham inquired whether it was not required of her to break a
saucer before she gave her evidence ? *
The interpreter said that she was very reluctant to be sworn a second
time, and that her gods would be very angry with her.
Lord Brougham.-Tell her that her gods will punish us and not her, if
anything wrong is done.
The noble Lord evidently here had in mind the case of Regina v. Entrehman and
Samut, Car. & Mar. 248. On the question of Chinese oaths, see further Chap. XII., infrà.
100 HISTORY OF THE LAWS, ETC. , OF HONGKONG .
Ch. III § III . The interpreter endeavoured to induce her to take the oath, but she still
declined.
1846.
Lord Brougham. - Tell her that no calamity can befall her if she will
consent to be sworn.
She still persisted in adhering to her religious opinions. After several
ineffectual attempts to have her sworn,
Lord Brougham said to the interpreter.-Tell her that we shall be under
the necessity of committing her to prison if she will not be sworn.
She ultimately consented to be sworn .
After Mr. Austin, who appeared for the petitioner, had read a letter ad-
dressed to Mrs. Matthyssons by Mr. Braine,
The female Chinese, whose name was Kowhan, was then called in and
Lord Brougham desired the interpreter to tell her " that now she has been
sworn in " (this was done with the formality of breaking the saucer) —“ if sho
does not speak the truth, her gods will punish her ."
The interpreter then made her acquainted with the noble and learned
Lord's remark.
Lord Brougham .--Now ask her " who are her gods " ?
In reply she said, through the interpreter, that the Chief was Buddah.
Lord Brougham. - Then tell her that Buddah will punish her most severely
if she does not speak the truth ; and that she will also be punished in this
world if she does not speak the truth.
This observation being explained, she replied , in Chinese, " I will speak
the truth."
The witness was then examined . She spoke of familiarities such as
kissing.........
Lord Brougham. -What is the word " kiss " in the Chinese tongue ?
'Kiss' in The interpreter. " Suisui ."
Chinese.
t .....
Matthyssons' The Bill was then read a second time.
Divorce Bill
read a second
time. Complaints against the European Police, noticed early this
Complaints year, again began to be heard. On Sunday, the 5th July, two
against European policemen, named Patterson and Swimmer, and a
European
Police. Chinese policeman, extorted ten dollars from an opium seller.
Extortion. A coolie was sent to the shop, it being against the regu-
lations to have such establishments open on Sunday, and
begged that he might have some opium, as he had forgotten to
purchase some on Saturday night and could not exist without
it. The dealer was prevailed upon and acceded to his request,
but no sooner was the transaction closed when the three men
pounced upon their victim and mulcted him of $ 10 hush-money.
These policemen were reported to be getting worse and their
superior officers callous at their doings, and so long as these
The Chief iniquities were permitted , no reform could be looked for. The
Magistrate
again as Chief Magistrate was still practically the head of the Police and
This is evidently a misprint for ' tuisui ' which is the word in the mandarin dialect for
'kissing.'
The London Mail, July 7, 1846, See Lords' Journals, Vol: 78. , 831-2,858.
CHINESE SYSTEM OF PROSTITUTION DISCLOSED . 101
was said to have interfered greatly with the new Superintendent, Ch. III- § III.
Mr. May, and his Inspectors, especially by his disposition to 1846.
support the disreputable men who had been discarded from Head of the
Police.
the Army and taken into the Force. Bribery, robbery, perjury, His
and connivance at the escape of prisoners constituted some of interference
with Mr.
the charges now levelled at the European Police. Tried for May, the
extortion in connexion with the above case on the 10th Novem- Superinten-
dent.
ber, these three men were discharged on a technical point raised Charges
on their behalf, and as to their ultimate fate the records do not levelled at
the Police.
speak.
On Wednesday morning, the 15th July, at half past six, convicts Escape of
three prisoners, Sinclair, formerly gunner of the Ariel (con- Sinclair,
demned to transportation for life for piracy at the June Sessions, Ross, and
Walker.
1845 ) , Ross , a black ( 15 years for cutting and maiming) , and a
soldier of the name of Walker ( 14 years for striking his ser-
geant ) , escaped from Gaol, having succeeded in cutting their
irons with a saw made out of a razor. The Deputy Gaoler,
accompanied by two Police officers, pursued them over the
hills at Kowloon, where they met the convicts returning They give
with the intention of giving themselves up to the authorities, themselves
after having been stripped and maltreated by the Chinese, and up afternt
treatme ill-by
perceiving no prospect of effecting their escape from justice. Chinese.
A Coroner's inquest, held on the 15th July upon the body Coroner's
of a Chinese woman of the prostitute class , disclosed facts inquest upon
body of a
which are perhaps not of rare occurrence in these parts. Chinese
It consists in the practical abandonment of an inmate of prostitute.
Abandon-
a brothel on the woman becoming so diseased as to be of ment of
no more ' profit ' to her keeper, the sole object in view there- brot
inmate
hel of
on
fore, being to get rid at all risk of the slave. In the case under becoming
consideration , the facts elicited were none the less abominable diseased.
and aggravated by the extraordinary verdict of the Jury under Object
view. in
the guide of a Coroner presumed to be a man of some legal Extraordi
experience. A young woman, a prostitute in the Taipingshan nary of theverdict
Jury
district, being afflicted with a lingering disease, and after having in the case.
been ineffectually treated by native doctors , her mistress, a woman Facts of the
named Chui A Kwei, " lest her house might be defiled by the case.
girl remaining there, " ordered the miserable creature to be car-
ried out almost naked, and left to perish in the open waste on
the hill-side. There could be no doubt that death was thus Death of
deceased
hastened and premeditated , and yet the Jury gave in a verdict premedi.
"that the deceased died by visitation of God, but that her tated.
mistress was highly censurable for inhumanity towards de-
ceased," and this was accompanied with a magisterial admoni- Curious
admonition
tion from the Coroner that " had the Jury advanced a step of Coroner.
further, he should have deemed it a duty, demanded of him by
every principle of justice, to commit her for trial at the next
102 HISTORY OF THE LAWS, ETC. , OF HONGKONG.
Ch. III
- § III. Criminal Sessions of the Supreme Court." The woman was
1846. desired to warn keepers of brothels not to expose sick prosti-
tutes in the fields or by the public roads under pain of the
consequences that must for the future inevitably follow any
such proceeding. From the evidence there could have been
The keeper of but little doubt that the keeper was guilty of murder, and that
the brothel
was guilty she should have been committed upon that charge which would
of murder. have been a much more effectual mode of preventing the repeti-
Such
atrocities tion of such savage crimes than the Coroner's warning. The
common facts, moreover, implied that such atrocities were frequent among
among the the Chinese and had been common here, and the case only
Chinese .
increased the surprise that an instance so completely brought
home should have been passed over with minatory generalities
about " consequences that must for the future inevitably follow
such a proceeding !
The keeper It was, in short, a case of deliberate murder for which there
fined for
was no excuse. The woman Chui A Kwei was afterwards pro-
'exposing '
the girl. secuted before the Assistant Magistrate for ' exposing ' the girl
and fined twenty dollars, though under what law is not ap-
parent, but at all events it was hoped that this sentence would
have a much more lasting impression upon her than the
Coroner's admonition after the stupid verdict of the Jury
Incapacity of recorded above. There was no doubt that this was again
judicial
officers. another instance of the incapacity of some of the judicial officers,
and at this distance of time one cannot but readily believe how
Incompe well founded were some of the grievances in regard to the admi-
tency of
Coroner nistration of justice in Hongkong. Mr. McSwyney, through his
McSwyney. action in this inquest, had proved how incompetent a Coroner
The Duncan he was, and after his further behaviour in the Duncan- Jenkins
Jenkins
affair. affair mentioned hereafter, no wonder he received his congé
Mr. R. from the Government. On the 16th July, Mr. Robert Ruther-
Rutherford, ford was appointed one of the appraisers of the Supreme Court
Appraiser of
the Supreme under its Ecclesiastical Jurisdiction .
Court.
Flogging. The system of flogging in vogue in the Colony and the fre-
quent and heavy sentences passed in the Police Courts ended
Dr. Bowring in attracting attention at Home. On the 5th August, Dr.
moves House
of Conmouse Bowring called the attention of the House of Commons to the
y 54 men punished
about
the men of subject, and particularl to the case of the
54 case
flogged. on the 25th April. * The proceedings before the Magistrates
had often engaged public notice, and at various times some of
the sentences had called forth, rightly or wrongly, public
censure. For the most trifling offences, it had been alleged,
the lash was unsparingly used in most instances where some
unfortunate Chinese had omitted to take out a registration
ticket, while the lawless ruffians who congregated in the town
* Antè p. 92 .
DR. BOWRING'S MOTION ON FLOGGING IN HONGKONG . 103
and confined their depredations to piracy or highway robbery, ch . III § III.
were allowed to go about with impunity, the Police not taking 1846.
any trouble about them. Many were the abuses in Hongkong
and many were the changes asked for, but in no Department
apparently was abuse more glaring than in the Magistracy,
and among the numerous requirements none was more urgently
asked for than a properly qualified Chief Magistrate and an
independent head of Police.
The following was Dr. Bowring's motion in the House of
Commons :-
"FLOGGING AT HONGKONG."
"Dr. Bowring rose to put the question, of which he had given notice,
whether the attention of the Government had been called to the frequent
application of flogging as a punishment for petty offences in the island of
Hongkong, it being stated that no less than 54 persons were so punished on
Saturday, the 25th day of April last, for not having obtained tickets of
registration, and after such infliction, were delivered over to the Chinese
Authorities to be subjected to further penalties under the criminal code of
that Empire ? From all he could learn, the use of flogging was habitual in
the Colony of Hongkong, it was frequently applied , and the extent to which
the lash was used was almost incredible. The Chinese, for the most trivial
offences, were publicly scourged, and he wished to know whether any steps
had been taken to put a stop to these barbarities.
Mr. Hawes said the Government had no accounts of any proceedings of
the kind alluded to by the honourable member. He could not find any power
by which personal punishment was inflicted, and care should be taken that a
searching inquiry should be made by the next mail into the circumstances of
the case. The proper punishment, so far as he could learn, was by fine and
imprisonment." #
The records do not show that anything ever came of this resorted
Floggingto.
less
motion. On the contrary, as will be seen hereafter, although,
after Dr. Bowring's motion , flogging was less resorted to as
a punishment, it was nevertheless applied again after a time,
the necessity doubtless demanding it. Many of the men flogged,
however, were reported to have been utter strangers to Hong-
kong, some of them passers -by on their way to neighbouring
places, and who on coming ashore were pounced upon by the
Police for registration tickets, the necessity for which they were
totally ignorant of, and hauled off and treated as vagabonds.
In mitigation of the evils complained of, though an elective Unofficial
members of
Legislature was considered out of the question , it was hoped that the Legisla
the day was not far distant when a few of the leading members tive Council
desired.
of the community would be called to the Council to advise
Comments
the Government upon local needs . As to the Magistracy, it upon the
was not independent. The duties were performed by two paid Magistracy.
This was no doubt true, but other punishments were sanctioned under another
Ordinance-No. 10 of 1844,-the last section of which contained the following provision: -
"XXV. And be it enacted, that in lieu of the whole or any part of any penalty,
provided by any law, statute, or ordinance whatsoever, it shall be lawful for the Court,
or Justice, before whom the matter shall be adjudicated upon, to sentence any offender,
being a native of China, or a native of Hongkong of Chinese origin, to undergo such
punishment, in conformity with the usages of China, as has hitherto been usually inflicted
on natives of China, committing offences in this Colony."
104 HISTORY OF THE LAWS, ETC., OF HONGKONG.
Ch. III
- § III. servants of the Colony, from whose decision there was no appeal.
1846. An unpaid Magistracy might not be an undesirable thing ;
indeed of the qualification of the holders of the magisterial
appointments there was but one opinion, and the evils caused
by their ignorance, incompetency, and subserviency to their
superiors was a matter of general notoriety, and under the cir-
Honorary cumstances it was thought that honorary justices selected
Justices.
amongst the leading residents might give more satisfaction.
Comments The Chief Magistrate, Major Caine, was an Anglo- Indian, " a
CaineMajor
upon as a soldier since he was strong enough to carry a drum," ignorant
Magistrate. of all law except martial law, and who had boldly asserted that,
as flogging and branding were punishments then inflicted upon
soldiers, so ought they to be inflicted upon natives of the Colony.
Upon these principles he had acted since his tenure of the magis-
tracy, and the records ofhis Court showed that for the most trivial
Comments offences men had been sentenced to the lash. His assistant,
upon Mr.
Hillier, Mr. Hillier, had been trained under his eye. He was a gentle-
Assistant
Magistrate. man of absolutely no legal training. Originally the second
No legal mate of a merchant ship, Sir Henry Pottinger, who appeared to
training . think " that anybody would do for the bench," was induced to
His previous appoint him assistant to Major Caine, and since the latter had
career.
been officiating as Colonial Secretary, his pupil had held the
office of Chief Magistrate, in some instances acting under direct
Uncharitable instructions from the Governor. Uncharitable remarks , un-
remarks.
Cases of doubtedly, but nevertheless to a great extent true. As an illus-
partiality tration of the cases of partiality and subserviency shown by the
and
subserviency Magistrates, it was alleged that once the Governor , observing a
of the Chinaman cutting grass in the vicinity of Government House ,
Magistracy. had the man arrested and sent to the Police. The next day
the Superintendent of Police informed the Magistrate (doubtless
according to instructions ) that he did not intend to prosecute,
notwithstanding which the Magistrate replied that he would pro-
secute, and thereupon sentenced the man to be flogged. On
another occasion, a member of the Government returning from a
dinner party much intoxicated was followed by an Indian police-
man who feared he would fall from his horse. As a reward for
his kindness when the gentleman arrived at his house, he dis-
mounted and kicked the policeman . On the Superintendent
of Police applying for a summons the next morning against the
No
delinquent, the summons was refused . As thus constituted , no
impartiality,
impartiality could be expected , and some ofthe grievances were,
Crime. no doubt, well founded . The roads were now infested by robbers,
Government for the conviction of any one of whom a reward of one hundred
rewards.
dollars was offered by the Government, and things had got to
be so bad that the public were advised by the authorities not to
proceed to any distance from Victoria either alone or without
Sepoys
attacked. arms about them. Three sepoys going from Hongkong to
EXTRADITION OF PORTUGUESE SUBJECTS. 105
Chuck-chu ( Stanley ) on Saturday, the 15th August, were Ch. III § III.
attacked by a party of Chinese robbers and ill- used. One of 1846.
them died in the military hospital the next day, both of the
others being wounded . No trace of the robbers was discovered .
The Executive appeared determined to maintain a reputation Action of the
Executive in
for consistency in setting at defiance well- known and long- the case of
established principles of the constitution of England. A Por-
the
Portuguese
tuguese subject named Marçal established himself in Canton asMarçal
an opium broker. After getting into credit, the man sold
charged
fraud. with
opium to the value of $ 60,000, receiving payment in cash, and,
as was usual then, giving the purchasers orders upon ships
moored in the outer waters . The orders were not honoured ,
the seller not having opium on board these vessels . In short,
the transaction was fraudulent, Marçal leaving Canton before
his knavery became known and taking refuge in Macao. On
the application of the parties defrauded, Marçal was arrested in
Macao, and had been confined for upwards of seven months
without being brought to trial . From causes which were not
made public, the Portuguese Government suspected that Messrs.
d'Assis, Pacheco, and de Mello, three Portuguese gentlemen, were The
the case of
in collusion with Marçal and had shared the spoil. The first of Portuguese
these gentlemen held the office of Deputy Judge of the Supreme d'Assis,
Pacheco, and
Court at Macao, the other two were merchants. It was alleged, de Mello in
however, that in bringing the charge against these individuals, collusion
with Marçal.
the Macao Government was actuated by motives not very credit-
able, the parties being men of influence and opposed to some of
the official measures. Warrants for the apprehension of d'Assis ,
Pacheco, and de Mello were accordingly issued by the Chief
Justice of Macao, previous to which the first two had sought They escape
to Hongkong
refuge in Hongkong and the latter in Canton. The Governor and Canton.
of Macao, acting upon the suggestion of the Chief Justice of The
that place, made the following application to Sir John Davis Governor
Macao asksof
for delivery of the persons of the three fugitives, though, from for surrender
the wording of his letter, it is very evident that he did not ofd'Assis and
Pacheco,
expect it would be successful, and the more so because, under
similar circumstances, he had himself refused to give up a
British subject who had fled to Macao.
Macao, 22nd August, 1846.
To
H. E. Sir JoHN FRANCIS DAVIS, Bart.,
Governor of Hongkong.
Sir, -Our Chief Justice forwarded to me the enclosed confidential commu-
nication, requesting me to ask of Your Excellency the delivery of Francisco
d'Assis, Cypriano Antonio Pacheco, and Alexandrino Antonio de Mello,
indicted in this Court for the crime of robbery, and who, it is generally stated ,
are at present living at Hongkong.
106 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Ch. III § III. I hasten to communicate to Your Excellency this requisition, and trust
1846. that Your Excellency will kindly comply with it, should it not go against
the regulations of your government for similar cases.
I have, etc.,
JOÃO MARIA FERREIRA DO AMARAL,
Governor of Macao.
Mr. Hillier
under In direct opposition to the established usage of the British
instructions, Government (where special treaties have not been entered into
without any
treaty, issues for the mutual surrender of criminals ) the Acting Chief Magis-
warrant. viency,
trate, and
Mr. acting with
Hillier, under instructions,
his well-knownissued a warrant
incapacity and for the
subser-
apprehension of Pacheco and de Mello on the charge of the
Arrest of the robbery committed at Macao. The parties were arrested accord-
Portuguese ingly , and, after a night's confinement, brought before the
and
appearance
before the Magistrate on the 25th August, 1846 , but no one appeared to
Magistrate. prosecute , nor was there the slightest evidence adduced against
Their the accused. When brought before the Court, it was objected
solicitor
by their solicitor that the letter of the Governor of Macao could
objects.
not be received in evidence until proved in the regular way,
which the Magistrate was not prepared to do, and there being
no witnesses to adduce, the immediate discharge of the accused
should have followed , on the very reasonable ground that the
Court had no proof before it of the crime charged in the warrant.
This course Mr. Hillier declined to adopt ; he appeared to be
on the horns of a dilemma and could neither do his duty nor
discharge it, and stated that before doing anything further in
Mr. Hillier the matter he would consult the Governor. He likewise refused bail
says he will
consult the or to give the prisoners time to apply to the Supreme Court for
Governor.
The same a writ of habeas corpus, and, to the astonishment of every one,
evening they the same evening, like convicted felons , they were put on board
are shipped
off to Macao. the Young Hebe and sent off to Macao !
Indignation The conduct of Sir John Davis was generally condemned and
in Hongkong, excited general indignation in Hongkong. Without reference
to the question of the guilt or innocence of the parties , justice
had been most certainly denied them, and herein now the
Magistrate had incurred a grave responsibility that raised a
question of international law, which even the ultimate convic-
tion of the Portuguese could not justify. The Governor had
committed himself and compromised the dignity of the Sovereign
whom he had the honour to represent. Even with a treaty,
the application of a foreign power for the person of a refugee
is always received with great caution. The surrender of these
men was considered a grave violation of national law tending
to degrade the country in the eyes of foreigners, who were thus
sceptical of our boasted privileges . After the Governor had
thus surrendered the victims who had claimed the protection
FLOGGING . 107
of our flag, on their arrival in Macao they were imprisoned for Ch. III § III.
a short time, and then held to bail, pending reference to the 1846.
Supreme Court at Goa. Shortly afterwards, the news reached
Hongkong that on the 15th September the prisoners had been
exonerated of the charges brought against them and discharged . Acquittal of
The knowledge that justice had been done to these people gave the prisoners
in Macao.
peculiar satisfaction here, owing to the treatment they had
received at the hands of the local authorities, as the opinion had
prevailed in Hongkong that the prosecution on the part of the
Macao authorities was entirely political, the accused being
strongly opposed to some of the measures of the Government.
On their release, the two victims of the acting Chief Magistrate, They sue Mr.
Mr. Hillier, now determined to sue him for damages before Hillier for
damages.
the Supreme Court, though this did not affect the question as
to whether he was justified in obeying the orders of Sir John
Davis. As will be seen hereafter, the action for damages , laid
at $25,000 , first came on before the Supreme Court in April , Action laid
1848. Sir John Davis had left about a month before. at $25,000.
Tenders for the passage to Singapore of four Indian convicts , Transporta-
and to Bombay of twenty-four Chinese convicts, were advertized tion of to
convicts
for by Government on the 28th August , but under what order andSingapore
Bombay.
is not apparent, for there had heen heretofore no proclamation
of transportation to either of these places , and, as will be seen
later on, the proclamation of the 12th December, 1846 , did not
relate to Bombay at all.
On the 3rd September, Major Caine, the officiating Colonial Major Caine,
acting
Secretary, was gazetted a member of the Legislative Council, Colonial
and on the 5th, Mr. Sterling, the Attorney- General proceeded gazetted
Secretary,a
on leave of absence for eighteen months, on sick certificate ; he member of
had thus been in the Colony a little over two years before taking the
Legislative
leave. That he had had an unusual amount of business to Council.
attend to, the records amply testify, and it is not to be won- Departure of
Mr. Sterling,
dered at that he now required rest. Attorney-
General,
Notwithstanding the cry against the enormities of human onleave.
flogging in the Colony, events showed that nevertheless it did His career in
not act as such a great deterrent after all, against crime amongst Hongkong.
the Chinese. On Saturday night, the 19th September, a police deterrentnot
aFlogging
constable recognized some old offenders amongst a gang of against
crime in
suspicious -looking coolies in the Queen's Road, and, suspecting Hongkong .
something wrong, concealed himself. Shortly afterwards , he Instance
quoted .
observed one of them, who had been flogged only the previous
day, carrying something concealed in his jacket and which was
afterwards identified as a lamp recently stolen . The police-
man who had arrested this man succeeded in capturing two
more of the gang connected with the former and who had also
Cutting of
been flogged and had their tails cut off for former offences . tails.
108 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Ch. III III. They were now sentenced to " one hundred lashes and six months
1846. imprisonment each , with hard labour. "
Confirmation It was during this month the news reached the Colony that
of news of Mr. Bruce, the Colonial Secretary, who had proceeded on leave
the
appointment in June last, had received the appointment of Lieutenant-
Mr. Bruce Governor of Newfoundland , as before noticed .
of New-
to Nothing was
foundland.
yet known as to his successor, and the changes effected on
Ordinance his departure continued in force. Early in October Ordinance
No. 6 of 1846 , No. 6 of 1846 for the regulation of criminal proceedings in the
forregulation
of
Supreme Court during the absence of Mr. Sterling, the
proceedings
in the Attorney- General, was passed. Thereunder the Governor was
Supreme empowered to appoint temporarily a person to carry on
Court
absenceduring
of criminal proceedings only. No provision whatever was made
Mr. Sterling. for the performance of the other duties of the Attorney-
General, for reasons which may now strike one as very ap-
parent. On the 15th October, a Government Notification
appeared that, in consequence of the absence on medical certificate
of the Attorney- General, the Governor had been pleased, as a
Mr. N. D'E . temporary measure, to appoint Mr. N. D'Esterre Parker, a
Parker,
Crown gentleman previously mentioned herein, to perform the duties
Prosecutor . of Criminal Prosecutor. The confirmation of the Ordinance
which created this appointment was not received until the 23rd
Messrs. R. April, 1847. In the meantime Messrs . Richard Coley and
Coley and
Gaskell in W. William Gaskell, " Attorneys of Her Majesty's Court of Queen's
partnership. Bench at Westminster in England and Solicitors of the High
Court of Chancery," took occasion to announce to the public
66
that they had been duly admitted to practise as Attorneys ,
Solicitors, and Proctors of the Supreme Court of Hongkong,
and had entered into co- partnership . "
Inefficiency Irregularities and complaints about the inefficiency of the
of the
Magistracy. Magistracy, of which so much had been heard, now reached a
The crisis. On Tuesday, the 27th October, 1846, Mr. Duncan, a
Duncan-
Jenkins sailmaker, reported at the Central Police Station that his cook
episode. had absconded with $200 of his money, and as he thought it
Extraordi-
nary conduct probable that the thief would sail for Macao or Canton in the
of Mr.Hillier, evening, he requested the inspector would allow a constable to
acting Police
Magistrate, accompany him for the purpose of making a search. The
and of Mr.
McSwyney , request was acceded to , and Mr. Duncan, accompanied by some
Coroner. friends and Police Constable Jenkins, went in the evening to
search the boats. Having observed a suspicious - looking craft
near West Point, they gave chase, and on their approach the
crew, between 20 and 30 in number, jumped overboard . The
majority of them were picked up, though some, consisting
chiefly, it was believed , of the boatmen, reached the shore and
escaped, but five men were drowned in the attempt. While
Duncan and Jenkins were engaged in rescuing the men from
THE DUNCAN - JENKINS EPISODE . 109
the water, those in the Chinese craft pulled out to sea , but were ch. III § III.
pursued and captured . On board were found muskets, daggers , 1846.
spear-heads, and other suspicious - looking articles. The men
captured , to the number of thirteen , were next day brought
before Mr. Hillier, the acting Chief Magistrate . Four represented
themselves as residents of Victoria , but, being found to be unre-
gistered, were sentenced to receive 50 strokes of the rattan and
to be afterwards forwarded to the mandarins at Kowloon that
they might be sent to the places to which they belonged , the
remaining nine being treated as rogues and vagabonds and
imprisoned " with hard labour for three months and thereafter
to quit the island ." That these men were innocent of all crime,
having been arrested under suspicious circumstances only, and
had, moreover, been grossly ill-treated , there could be but little
doubt, especially those who had been delivered over to the Kow-
loon Chinese authorities, who, it was surmised, were not long
probably before despatching them where " the wicked cease
from troubling and the weary are at rest. " But it was now
left to Mr. McSwyney, the Coroner , to play a double part in
connexion with this matter. In his capacity of a solicitor, and
on behalf of the nine men imprisoned as above stated , he
moved the Court for a writ of Habeas Corpus, and on the 18th
November, on hearing the facts , the Chief Justice ordered the
discharge of the men. Messrs . Duncan, Jenkins, and party had
now also to answer for their action. At an inquest held ,
strangely enough, by Mr. McSwyney, as Coroner, upon the
bodies of four of the men afterwards picked up in the harbour,
which commenced on Thursday, the 29th October, and
terminated after three adjourned sittings on Monday, the 2nd
November, the Jury ( after retiring and having been shut up
six hours ) at 9 o'clock at night, returned with a verdict of Verdict of
manslaughter of the five men drowned, against Duncan and manslaugh-
ter against
Jenkins, and others who had accompanied them upon the Duncan and
excursion in question , and who thereupon were taken into Jenkins.
custody. Turning the tables upon Mr. McSwyney, on the Tables
18th November, the very day that the latter had obtained the turned
Mr. on
discharge of the nine men sentenced to imprisonment by Mr. McSwyney.
Hillier, Mr. Farncomb, solicitor, on behalf of Mr. Duncan , under
a writ of certiorari, obtained a rule calling upon the Coroner,
Mr. McSwyney, to show cause why the proceedings at the
inquest held by him as aforesaid , should not be quashed and
the prisoners forthwith discharged . On the 21st, the date on
which the rule was made returnable, Mr. McSwyney showed
cause. The proceedings showed that the Jurors had not sealed Irregularities
the inquisition ; that there had been a view of four bodies only at inquest
conduct ed
and not five, and that except one the rest had not been identified ; by Mr.
that the prisoners had been sworn and examined as witnesses ; McSwyney.
110 HISTORY OF THE LAWS , ETC. , OF HONG KONG .
Ch. III § III. that some of the witnesses had not been examined upon oath ; and
1846 . that, after the verdict of the Jury, the Coroner had granted bail
The Chief to the prisoners . The Chief Justice, after disposing of some of
Justice takes
Mr. the points raised by Mr. Farncomb, and taking the Coroner to
McSwyney task for presuming to accept bail for prisoners committed upon
to task.
his own warrant, asked Mr. McSwyney why he had failed to
examine some of the witnesses upon oath, to which he replied
" so far as his knowledge of the proceedings in the Police Court
extended, a simple statement was merely required , " which called
forth the remark from the Chief Justice that " this assertion was
too incredible, involving as it did so serious a charge of neglect
against the Stipendiary Magistrates." Asked whether he had
explained the law of homicide as it bore on the evidence to the
Jury, Mr. McSwyney replied he had gone very fully into the
matter. " It would appear," retorted the Chief Justice, " that
you have given them so much law as quite to stagger them in
coming to a verdict," and, after further commenting upon the
irregularity of the whole of the proceedings, he pronounced them
null and void, and made the rule absolute, ordering the discharge
Result of
official of the prisoners forthwith . The evidence of official incapacity was
incapacity. never more complete, for five men had met with unnatural deaths ,
Innocent thirteen presumably innocent men had been flogged and impri-
men flogged soned, and persons guilty of homicide had been set at large. The
imprisoned. public had thus been given another example of the laxity of the
law in Hongkong in extreme cases, and its injustice in others
of less importance. The 13 victims of magisterial incapacity
had been declared by the Jury innocent of all crime, but unfor-
tunately not until four of their number had undergone the
torture of the lash and been handed over to the Chinese author-
ities . The gross injustice of the treatment these men had
received could not be exceeded, and the obstinacy which still
sanctioned their punishment after it had been proved that the
men in the boat were inoffensive people and not pirates , as was
at first alleged, could not be too severely censured . When the
Mr. Hillier writ of Habeas Corpus was applied for, Mr. Hillier being
before the
Chief Justice, present in Court was asked by the Chief Justice whether the
nine men had not been sentenced by him merely " on a suspi-
cion of felony," and in the face of his own warrant, he replied
" No, my Lord, these men were punished under the vagrant law
of England "-a law, it was remarked , that did not apply to this
Colony. To add to the absurdity of the statement, it was
stated that the men were afterwards found to be passengers
who had taken their departure from Hongkong. " This mode
of trial," it was remarked , " may have answered very well , when
the black Douglases rode borders at the head of 1,500 men,
executing ' Jeddart justice ' upon outlaws and other offenders,
but in the nineteenth century it was hoped more regard was paid
THE INCOMPETENCY OF THE MAGISTRATES . 111
to form and to the impartial administration of justice ." Apart Ch. III
--- § III.
from the Executive authorities , it was presumed that the young 1846.
man who then held the appointment of Chief Magistrate, Mr. Public
opinion of
Hillier, had not become perfectly callous to human suffering, r. Hillier.
and that he felt some compunctions of conscience when he con-
sidered that, without proof of guilt and without the slightest
grounds for suspicion , he had unhappily perpetrated an act
which nothing could extenuate. Whether it was desirable that
the Magistracy of this Colony should be deprived of the power The abuse of
the power of
of inflicting corporal punishment upon the Chinese was a ques- flogging.
tion upon which many differed, but the culpable and negligent
manner in which the power was abused , showed that the Magis-
trates were unfit for the offices they held . That such was the A legally
conviction of the great bulk of the European inhabitants could qualified
not be disputed ; and the reputation of the Hongkong bench desired.
Magistrate
demanded that a legally qualified person should be appointed
to the position of Chief Magistrate, and that the important
duties of the bench should not be entrusted to " needy soldiers
and obscure adventurers ."
At the Criminal Sessions held on the 9th November, the Criminal
November
Magistrates again came in for censure. The Calendar was a sessions .
heavy one, but there were a number of cases which might have committed.
Paltry cases
been dealt with in a summary way, and in some instances the Magistrate
Ma
prisoners were discharged through neglect on the part of the censured.
committing Magistrate. It was discovered that it had here- Warrants of
commitment
tofore been the practice not to sign the warrants of commitment sealed but
but merely to affix the seal on them, and in one case at this not signed.
Sessions this was actually proved . On calling for the warrant
in connexion with a case before the Court, after looking at it
the Chief Justice pronounced it invalid, saying " it was a Justice's
Chief
worthless piece of paper," and adjourned the case, giving the opinion.
Crown Prosecutor, Mr. Parker, who now appeared under the
powers vested in him by Ordinance No. 6 of 1846, time to ascertain Ordinance
how far precedent had ever established the mere use of a seal No. 6 of 1846.
of office in lieu of the sign manual. His Lordship further
animadverted strongly upon the irregularity, and recommended
that all warrants issued be forthwith signed by one or other of
the committing Magistrates. In another case, as stated above,
the Chief Justice had occasion to comment upon the loose man- Loose
manner in
ner in which the evidence had been prepared , and remarked which
that " things were very slovenly managed and that some one taken.evidence
must be responsible for it." It was hoped, coming from the
quarter it did, such observations would be profited by. Colonial
Under instructions from the Secretary of State, on the 19th Secretary-
shi p and
November, consequent upon the promotion of Mr. Bruce, it was Auditor-
announced that the office of Auditor - General would be amalga- Generalship
amalga-
mated with that of Colonial Secretary and that, pending Her mated.
112 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Ch. III III. Majesty's pleasure, both of these offices would be filled by the
-
1846. Honourable Major Caine, who now practically relinquished once
for all the onerous duties he had discharged for so long in con-
Major Caine nexion with the general administration of justice. Up to this
appointed
acting time, Major Caine had shown a dignified and exact discharge of
Colonial his official duties, and a more conscientious , zealous , and devoted
Secretary
and Auditor- officer it would have been impossible to find. The records
General. throughout up to this period, despite occasional unfavourable
His
promotion criticisms, show him as one thoroughly imbued with a deter-
well merited. mination to do his duty, and there could be no doubt that his
His past
career present promotion had been well merited . His first appoint-
reviewed. ment to the Colony dated from the 30th April, 1841 , when he
was appointed Chief Magistrate by Captain Elliot , Her Majesty's
Plenipotentiary, on the taking over of Hongkong, and no better
selection, having regard to his knowledge of local affairs espe-
cially, could have been made for the important position he was
now called upon to hold . The past showed the energy he had
displayed in his determination to put down the band of lawless
marauders that at one time infested the island . *
* The Naval and Military Guzette, of the 20th April, 1844, contained an article
eulogistic of the services of Brevet- Major Caine, who had now, as stated above, become the
Colonial Secretary, and considering his long services in Hongkong, it may not be con-
sidered inappropriate even at this stage of his career to notice his earlier services.
Writing on above date, the article proceeded : -
"Brevet-Major Caine, of the 26th Regiment, has now served his country nearly thirty
years his first commission being dated July, 1814. During this long period , he has
served uninterruptedly in India and China, without once obtaining furlough. He is a
Lieutenant of June, 1819 ; a Captain of December, 1827 ; and a Brevet-Major of December,
1841. Major Caine served in the Nepal war of 1815, and was present with the Light
Company of the 17th Foot, at the action of Jeetgurh. He likewise served in the Deccan
War, and at the victory of Jhubbulpoor slew with his own hand, in defence of the regi
mental colours, an Arab Chieftain. When the British forces invested Bhurtpore, under
Lord Combermere, the subject of this sketch, who had exchanged to the 14th Foot, was
appointed Brigade-Major to the 1st Infantry Brigade, and, during the progress of the
siege, rendered important services. On the morning of the storm ( 18th January, 1826),
he killed three of the enemy in personal combat ; and, when the ammunition of the
advanced column of the 14th had been expended, led a small party of volunteers over a
rampart of considerable extent, which had been re-manned by the enemy, through whom
he successively cut his way, and returned with reinforcements as well as ammunition. On
this service he was wounded in the foot by a grape-shot, whilst charging the enemy's
guns. Major-General Sir Thomas Reynell thus acknowledged in his despatch the gallant
deeds we have just noticed : - Major Everard reports that Brigade- Major Caine, of
H.M.'s 14th Foot, accompanied him throughout, and distinguished himself particularly.'
On two occasions the subject of this tribute of friendship (for we are indebted to one of
his old comrades for these details) volunteered to lead the Forlorn Hope.
In the 14th Foot he was regimental Judge- Advocate, and frequently performed the
duties of Adjutant. He also on many occasions officiated as Deputy Judge- Advocate-
General of the Meerut Divisions, as well as Brigade- Major of that station.
In 1834, when the force was ordered against Joudpore, Major Caine (now in the 26th
Foot) was appointed Brigade- Major to the 1st Brigade, under General Oglander, but
Mann Sing having come to terms before the investment of his fortress, this brigade was
countermanded whilst en route to Marwar. On the force being detached for service in
China, Major Caine, then only a Captain, was at first selected as Adjutant-General, but it
having been afterwards determined by Government that the heads of departments should
consist of Field Officers, Lieutenant-Colonel Mountain-than whom a better nomination
could not have been made-was gazetted to the situation. The appointment of Deputy
Judge-Advocate-General was then tendered, but the Major preferred remaining on the
staff of the ever-to-be-lamented General Oglander, on which he had been serving since
1839, to accepting a situation comparatively of a civil character. At the capture of
Chusan, he commanded the Grenadier company of the Cameronians, and after the fall of
MAJOR CAINE . 113
As will be seen, it was not until April, 1847 , that he was Ch. III § III.
confirmed in the appointment . 1846.
Fees payable on the insolvency side of the Supreme Court Fees on the
which had been passed by the Court under Ordinance No. 3 of insolvency
side of the
1846 " for the relief of Insolvent Debtors, " were duly published Court.
on the 19th November. On the 23rd ofthe same month, Govern- Ordinance
No. 3 of 1846,
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Private notes are available after approval.