special notice at this distance of time.
Convict Under instructions directed to the Government, dated the
soldiers
28th September, 1848, all British soldiers sentenced by Court-
transported
to Cape of martial to transportation , were ordered to be removed to the
Good Hope. Cape of Good Hope there to undergo their sentences.
On the motion of Mr. Gaskell, attorney for the plaintiffs in
Case of the the case of D'Assis and Pacheco against Hillier, non- suited
Portuguese
against on the 26th April last,* a new trial was granted by Chief
Mr. Hillier. Justice Hulme on Friday, the 24th November. The parties
New trial
granted evidently seemed determined to go on with the case, and from
by Chief the facts reported at the last hearing, it would appear as if
Justice.
the plaintiffs had some reason for suspecting " how far Mr.
Campbell's temporary promotion had been consequent upon an
understanding that this and one or two other cases were to be
disposed of according to the wish of Sir John Davis." Be that
as it may, however, whatever the facts, the parties proved un-
Chief successful in the end upon a point of practice, though Chief
Justice
Hulme Justice Hulme evidently seemed disposed to afford them every
disposed to facility for proceeding with their case. The matter having
grant
plaintiffs caused so much discussion at the time and undoubtedly given
every the authorities some trouble, it may not be out of place to
facility .
Summary of put on record the last phase in connexion with it. On
the Case.
the date fixed , the 13th December, the case came on for trial
before the Chief Justice and a Special Jury. The damages, as
* Antè Chap. IX., p. 183.
CASE OF THE PORTUGUESE AGAINST MR. HILLIER CONcluded . 211
stated before, were laid at $25,000 . After the pleadings had Chap. X,
been opened by the plaintiffs ' advocate, and as he was proceed- 1848.
ing with the case, a question as to whether in point of law the
action was tenable, was raised on the grounds that the statute
had not been complied with, so far as regarded the plaintiffs
not having given notice to the defendant, and commenced their
action within six months after the trespass and false imprison-
ment complained of by the plaintiffs , had been committed , the
Act of Parliament requiring that in cases of actions against Jus-
tices of the Peace and other officers, proceedings should be com-
menced within six months after the cause of action arose. The
plaintiffs ' advocate contended that, although the plaintiff's had been
released from imprisonment at Macao on the 15th September,
1846, in which position they had been placed in consequence of
Mr. Hillier's warrant of arrest , still they were bound over
in heavy recognizances not to quit Macao, until the sentence of
the Supreme Court at Goa regarding their case
known , and that therefore they were under duress and unable to
leave that place to seek legal advice or redress at Hongkong ,
and that they, labouring under such a disability, were entitled to
prosecute their action , notice having been given and the action
commenced within six months after their bonds or recog
nizances had been cancelled and such disability removed .
Notice of action had not been served on the defendant until
September, 1847 .
His Lordship , in delivering judgment, said that on this point Justice's
Chief
he was of opinion that the plaintiff's might have complied with decision.
the statute by sending for their legal adviser to Macao, and
instructing him to proceed with the case earlier than they had
done ; or that they might have appointed some person to com-
municate with him on the subject, and as this had not been
done, His Lordship ruled that in point of law the case could Verdict for
not be carried further, and accordingly instructed the Jury to the
ant, defend-
find a verdict for the defendant, which they did.
The plaintiffs ' advocate then stated that the plaintiff's were
men of high standing and respectability, and that the action
had been brought not as a money - seeking one, but with a view
to the vindication of their reputation from the charge on which
they had been arrested .
The Chief Justice observed that, in his opinion, there was not No imputa-
the least ground for any imputation on the characters of the tion on the
characters
plaintiffs, especially as they had been acquitted from the charge of the
by the sentence of the Supreme Court at Goa . Thus ended a plaintiffs.
case that had been pretty freely discussed in Hongkong during
the last two years.
212 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. X. At the last Criminal Sessions, a Chinese woman named
1848. Aho, alias Mrs. McSwyney, charged with larceny, was dis-
Mr. Mc- charged by proclamation, the Attorney- General declining to
Swyney
and his proceed with the case. It would appear that this woman
Chinese was in reality the wife of Mr. McSwyney, alternately Deputy
wife Aho.
Registrar of the Supreme Court, Solicitor, and Coroner. It
will be remembered that his conspicuous incapacity had caused
the Government to ' relieve ' him of the Coronership in Novem-
ber, 1846 , and now his ' little knowledge of law ' had further
proved dangerous to him, and caused him to be duped into a
strange matrimonial entanglement, a farce, it was said, to wind
up what, in theatrical language, was styled " the heavy business
and which was further illustrative of the " marriage of lawyers '
How he was
in China. Mr. McSwyney, it appeared, had formed an acquaint-
duped into
marrying ance with a woman named Aho, representing herself to be the
her. widow of a Fokien merchant, who at his death bequeathed her
some household property in Canton , which, if McSwyney mar-
ried her, she would make over to him. To this he consented ,
and after signing the customary Chinese marriage documents ,
accompanied his wife to Canton , where she introduced him to a
man calling himself her brother, and who stated he was an
extensive tea - dealer, and further that he would be happy to
give his English brother-in-law the entire management of the
shipping of his teas. A large house was also pointed out as
the property of the woman . Mr. McSwyney was delighted
and returned to Hongkong, where , it is said, in the exuberance
of his spirits, he presented his wife with a great many presents
consisting of dresses , trinkets , etc. As the period approached
when the rents were said to be coming due, Mr. McSwyney
left for Canton ; but, on presenting himself at the Hong
with the receipts for the rent , was not a little astonished to
learn that he had been completely duped, and that nothing
was known about the woman Aho, or her pretended brother, the
He ill-treats tea merchant. Mr. McSwyney thereupon returned to Hong-
his wife
and turns kong quite crest-fallen , and avenged himself by mal- treating his
her out of wife and turning her out of doors . Some days after he appear-
doors.
He charges ed at the Police Station and lodged a charge against her and
her with his servants, for stealing several articles from his house. The
larceny.
woman was apprehended and taken before Mr. Hillier, the Chief
Magistrate, and, on being questioned , acknowledged that several
of the articles were in her possession , but that they consisted of
presents which her husband ( McSwyney ) had given her previous
to his last visit to Canton. There were some English shirt
studs amongst them which the Magistrate remarked could never
See antè Chap. III § II. , p. 82.
† Antè Chap. 1 § 11., p. 97.
‡ Id. , p. 114.
A RETROSPECT OF 1848 . 213
have formed part of a Chinese woman's costume, but Aho Chap. X.
explained that in the evenings she used to dress as a European -1848.
and walk out with her husband . The Magistrate, evidently Mr. Hillier
doubtful
doubtful of his own law, directed that she should find bail for his law,
her appearance " to answer any charge that might be brought leaves matter
against her by the Attorney- General." Mrs. McSwyney, not tothe
being able to find security, was therefore detained in prison until Attorney.
General.
the Sessions before last, when she was discharged from custody Mr. Ster-
by proclamation.. Mr. Sterling, the Attorney-General, consi- ling's views.
Mrs. Mc-
dered there was no case to go to trial, holding that Aho was Swyney is
really the wife of McSwyney, having been married in the usual discharged
by proclama.
Chinese form, and never divorced . tion.
Early in December, Mr. N. D'E. Parker, the Coroner, Resignation
of Mr. N.
who had succeeded Mr. McSwyney, resigned office , and D'E . Parker
the Government thereupon appointed 99 Messrs . Hillier and as Coroner.
Messrs.
Holdforth to act as " Joint - Coroners- a peculiar appoint- Hillier and
ment which raised the question whether they were to act 'Joint-
Holdforth
"jointly or severally." On the morning of the 28th Decem- Coroners."
ber, a few minutes after 8 o'clock, the convict Mo Yeen , found Execution
of Mo Yeen
guilty at the Criminal Sessions held on the 15th Decem- for murder
ber, of a murder committed in November, 1845 , when his committed
in November,
accomplice was found guilty and hanged, * was executed at 1845.
West Point. The prisoner had escaped to Canton and only How hiswas
capture
returned to Hongkong in October last. He was recognized by effected .
Mr. Caldwell, the Assistant Superintendent of Police, who saw
him in a barber's shop as he was passing, and took him into
custody. He walked to the scaffold with the utmost coolness His indif-
ference on
and appeared perfectly indifferent to the awful death awaiting the scaffold.
him.
Only two Ordinances were passed during the year 1848. Judicial
features
As seen, therefore, Mr. Bonham preferred abiding his time by 16.
looking round and studying the requirements of the place rather
than plunge himself into a system of hasty legislation so often
detrimental to the best interests of a Colony, with no alternative
afterwards but to repeal or revoke. The arrival of Major- General
Staveley, followed by that of Mr. Bonham as Governor, and the
departure of Major - General D'Aguilar, Governor Davis, Mr.
Consul McGregor, and the reinstatement of Chief Justice Hulme,
all prominent men, are features intimately associated with the
Colony and its judicial affairs during the year under consideration .
Nor will the incidents connected with Mr. Campbell's short and
extraordinary career as an acting high official, followed by his
hasty departure, be found less worthy of record ; without
* See antè Chap. III § III., p. 90.
214 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap, X. omitting also the conviction of the notorious pirate and infamous
1848. Too Apo, in whom the authorities and the public seemed ap
parently to have placed implicit confidence, till found out, -
with what result of suffering and injustice this world will never
know.
215
CHAPTER XI.
1849 .
Public meetings regarding the position and prospects of the Colony.- Lord Grey's des-
patch referred to.- Popular representation.- The Supreme Court.-Expenses under the
Treaty unfair to the Colony.- Mr. N. D'E. Parker and the complaint as to Attorneys'
charges. Mr. Gaskell and the fees of Court. - No love for litigation.- Cost of law pro-
ceedings. - Meeting adjourns. - Hongkong only Crown Colony wherein principle of repre-
sentation not recognized. -System of representation asked for.-The Supreme Court and
legal expenses. -Heavy bills of costs against Chinese. - No wrong implied to the Supreme
Court.--The first six Attorneys of the Court in Hongkong. - The two Attorneys still in
practice. -Chinese less partial to litigation.-Fees in the Supreme Court considered enorm.
ous.--Justice in England -In Hongkong. -Attorneys' bills subject to taxation. - Aboli-
tion of Supreme Court not aimed at. Mr. Campbell " a puppet whose malice checked by
imbecility."-Interference of Sir John Davis with the administration of justice.- Gov-
ernor Bonham and Lay Judges.-The tone of public opinion at the time of the Chief
Justice's suspension. Mr. Campbell the " vicious tool." Permanent maintenance of the
Supreme Court desired.--Escape of Chinese transported convicts at Penang.- Judicial
revenue and expenditure.- How Mr. Campbell increased the revenue.- The adjourned
public meeting. A short Code for the more convenient administration of justice.--Ex-
tension of the Summary Jurisdiction of the Supreme Court. - Compliment to Chief Justice
Hulme.- Public representation in the Legislative Council. -Forms and Fees in the
Supreme Court. - Mr. Parker upon the want of interpreters in the Supreme Court.-- Dis-
graceful state of affairs.- Memorial settled.-Comments.-The memorial sent Home.-
Publication of Draft Ordinances. -An Ordinance to repeal Ordinance No. 6 of 1847.--A
departure. The liberality of Mr. Bonham.- Drafts of Ordinances regularly published.-
Bulk of Criminal Cases to be tried in Police Court.—Considerable alarm and disapproval.
-Ordinance No. 6 of 1847.-Nefarious attempts to interfere with the administration of
justice. No insinuation against Mr. Hillier, though no confidence in him --Guided by
the Executive. Public excluded from the Police Court.- Discreditable opinion held of
Mr. Hillier.--Reforms asked for in the Police Court. -Objectionable portions of the Bill.
-Power of appeal to Supreme Court withheld.- Ordinance No. 6 of 1847, s. 7. - Sir
John Davis and Consular decisions.-The intent of the proposed measure.- Chief Justice
Hulme had never complained. -Confidence of community in him.- Drudgery of a small
debt Court imposed on the Chief Justice.The Chief Justice and the proposed Ordinance.
-Points brought out in the proposed Ordinance. -Tenders for passages for convicts to the
Cape of Good Hope and Penang.- February Criminal Sessions. - Dr. Bowring appointed
British Consul at Canton in the place of Mr. McGregor. -His previous career. - Murder of
Captain Da Costa, B.E., and of Lieutenant Dwyer, Ceylon Rifle Regiment, at Wong-ma-kok.
-They had had a champagne tiffin.— The Chinese evidence as to the murder.-Taking li
berties.-The Chinese outlaw and pirate Chui Apo.- The officers hotly pressed and over-
powered.-Their bodies hurled into the sea. -Action of the authorities.The Police and
military scour the island. -H.M.S. Fury. - Body of Captain Da Costa found. -Arrests.- The
sad tale.-The inquest.--Verdict of the Jury. Wilful murder against Chui Apo and others.→→
Suspects discharged.—Government rewards.- Body of Lieutenant Dwyer never recovered.
-Funeral of Captain Da Costa.-Appointments of Justices of the Peace.- Probable reason .
-Petty Sessions Ordinance No. 1 of 1849 passed by the Legislature. -The Ordinance
modified to meet public wishes.- Calculated to be useful. -Presence of Justices of the
Peace provided for.-Police Court remained unaltered. -Mr. Hillier discharging duties
devolving upon the Chief Justice and a Jury.- More Justices of the Peace. - No
dearth of Justices.-Ordinance No. 6 of 1862. -Sittings at Nisi Prius. -Auction duty abo.
lished and licences granted.-Land. Extension of terms of Crown Leases.-First sitting
of Court of Petty Sessions. - Meeting of China Branch of Royal Asiatic Society in the
Supreme Court.--Ground floor of Supreme Court also used as a church.--Room used as
vestry set apart for the Society.-Draft of Ordinance to amend Ordinance No. 9 of 1845,
relating to the Summary Jurisdiction of the Supreme Court, published .--Chief objection
to the extension of Summary Jurisdiction.-- Mr. Campbell still on the public mind.—
Mr. Hawes, M.P., on the average disallowance of Colonial Acts. -Elected legislatures and
elements of representation.- Materials for popular representation .- Different condition of
affairs in Hongkong.--The objections to the extension of the Summary Jurisdiction of the
Court.- Sir John Davis and Mr. Campbell in view still.- Section 5 of the Draft Ordinance.
216 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. XI. Power to employ ' friend or agent ' to conduct a suit.--The Attorneys.-Attorneys neces-
sary evils.--Rules of practice and procedure simplified.- Effect of possible reforms.--No
1849. permanent interpreter attached to the Court.-The evils of such a system.-Arrival of
Dr. Bowring, Her Majesty's Consul at Canton.- Notification of his assumption of duty.-
Mr. Mercer appointed to a seat on the Legislative Council. -Accommodation in the
Police Court. -The reporters and acoustic arrangements. - Inconvenient situation of the
Police Court.- The Supreme Court Building and its utilization as a Police Court as well.
-The ground floor considered fit for a Police Court.- The ground floor of the Supreme
Court, how utilized then.- Police Court was never removed from its site.-April Criminal
Sessions. One sentence of death commuted . -Ordinance No. 3 of 1849, to extend the
Summary Jurisdiction of the Supreme Court, is passed. -Governor's regard for public
opinion. Obnoxious part referring to actions for damages repealed . -Actions for libel,
slander. and assault left to the Jury. -Constitutional protection.- Simple questions of
debt. Ordinance an acquisition . -Governor Bonham, a good common lawyer. -Odium at-
taching to unconstitutional legislation. Moderate schedule of Attorneys' fees. -Necessity
for attorneys.-A lawyer's education. -Attorneys' bills and the taxing officer.-April
Sessions of the Admiralty Court. - Piracy in neighbouring waters. -Capture of pirates by
H.M.S. Inflexible. - Nine committed for trial. - Earl Grey's reply to Mr. Tarrant. Poor
compensation. - Pretext for getting rid of him.-Prediction he would be got rid of for
being more honest than politic .' His case. -Secretary of State's decision. The back pay
allowed him.-Acknowledgment of injustice. Public indignation. - Opinion as to the
Governors of the Colonies. -Mr. Tarrant's case fully investigated in Major Caine's action
for libel against him.- May Sessions of the Admiralty Court. -Six pirates captured by
H.M.S. Inflexible sentenced to death. - They attempt suicide in gaol. -Their tails ' are
cut off.-Dreadful execution. -An American executioner. -Complaints against Marine
Magistrate. -Port a bad name among shipmasters - Mr. Pedder's threefold duties.-
Government reform asked for.--No improvement yet visible in the administration of
justice in the Inferior Courts.-Fresh list of Justices of the Peace. List summarized.-
Police Court still under control of Executive.--Court of Petty Sessions an encroachment
on the Supreme Court.--Police Court of Hongkong a disgrace .--Justices of the Peace wait
on the Governor. Their demands and grievances.-The result.-What their privileges
amounted to. -Justice in Hongkong manacled .- Mr. Inglis resigns the Registrar-General-
ship. Why he resigned.-Parliament and Colonial Retrenchment.-Macao and the case of
Mr. Summers and Captain Keppel . Portuguese religious observance. -Mr. Summers met
a religious procession and refused to uncover himself.-His arrest. -Left to abide the
decision of the judicial authorities.-Removed to the Common Gaol. - His appeal. - Cap-
tain Keppel's action to secure Mr. Summers' release. -The prisoner's release refused.—
Released by Captain Keppel. - Fire-arms used . - The victims. -The unfortunate loss of life.
-The facts discussed. - Festival of Corpus Christi and Mr. Summers' behaviour.- The
Portuguese tenure of Macao questioned again.- Mr. Summers amenable to jurisdiction of
the Hongkong authorities.- Governor of Macao and the rights of a British subject.-
Captain Keppel's resolution.-The Governor of Macao and the course of law ' in a Por-
tuguese Colony. - British subjects dying in Macao Gaol. -After releasing Mr. Summers the
Meander gets up a regatta.-The indignation of the Governor of Macao. -A public fune
ral proclaimed for the deceased soldier. - The Portuguese Government request ambassador
in London to ask for satisfaction. -The Portuguese condemned Governor of Macao's action
in detaining Mr. Summers. - British residents in Portugal disapproved of Mr. Summers' con-
duct. -Lord Palmerston's despatch deemed unsatisfactory by Portugal. -The Portuguese
sensitive over Lord Palmerston's endeavour to establish the right of jurisdiction ofthe Eng-
lish Government over British subjects in Macao. - Speech of the Queen of Portugal in opening
Parliament.--Contradictory versions as to the nature of the satisfaction ' given to Portu-
gal. The satisfaction given by England.- The foolish lad Summers. --His return to Hong-
kong.- Death of Collins, the Gaoler.- Mr. N. D'E. Parker, solicitor, and 29 Chinese
arraigned for piracy.-The facts.-The case is dismissed.- Facts not creditable to Mr.
Parker.- Affair created a sensation. -Affair had an ugly aspect. - Constitution of Police
Court criticized . Mr. Parker explains.- Mr. Wm. D'E. Parker admitted a solicitor.--Con-
vict soldiers transported to Cape of Good Hope or Van Diemen's Land. -July Criminal
Sessions. Conviction of Moggle-John, Police Constable and Hangman, for larceny. - Petty
Sessions Ordinance No. 1 of 1849 confirmed. -The first Ordinance of which draft sub-
mitted to the public.-Robertson v. McSwyney. Cum Cheong . McSwyney. - Chief
Justice Hulme holds Macao not within jurisdiction of Hongkong.-Macao again.-- Act
12 and 13 Vict., c. 96. Extraordinary conduct of Mr. Carter, a J.P., in reference to his
debtor, Mr. Marques.-He takes forcible possession of goods - Mr. Marques prosecutes Mr.
Carter. Defendant discharged.-- Mr. Hillier's decision correct.- Opinion of eminent
counsel taken at Home.-Sessions of the Vice-Admiralty Court. First appearance of Major
Caine on the Bench since reinstatement of Chief Justice - The injury Major Caine had
done to the Chief Justice. -The cases tried. - Case of Captain Langley, of the Sea Gulf, for
shooting at his crew.-Prisoners sentenced to death for piracy. - Mr. McSwyney, an insol-
vent debtor.- His discharge opposed .- His atrocious conduct when a solicitor.-The
Chief Justice's animadversion thereon.- Insolvent's schedule a tissue of perjury.- Com-
mitted for twelve months.-Mr. McSwyney's death and career set out.-The Police and its
constitution.- The Chinese in the Force corrupt. - Treatment of persons arrested.-No
interpreters.--Grave injury.- The liberty of the subject.-The ' Branding ' and Registra
PUBLIC MEETING ON LOCAL GRIEVANCES. 217
tion Ordinances (Nos. 1 and 12 of 1845, and 7 of 1846 ) dreaded by Chinese. - The Registra
tion Ordinance in abeyance.--Forbearance to the Chinese. -Departure of Mr. N. D'E.
Parker. Mr. N. D'E. Parker's death and career.-Departure on leave of Dr. Gutzlaff, the
Government Chinese Secretary.-His career. -Morrison and Thom.- Mrs. Sterling goes
Home. -Chief Justice Hulme robbed of his gold snuff-box.-His private watchman and a
Constable committed for trial. - Handing over of Chinese suspects to the Chinese Author-
ities.-Unconstitutional stretches of power.- Lord Grey's reply to memorial of residents.-
The propositions how dealt with. -Reduction of ground rents negatived .-The reduction
of colonial expenditure. - Popular Municipal Government.--The simplification, etc., of
legal procedure.-Ordinance No. 1 of 1849. - Safeguards of English law. --Fees in the
Supreme Court not exorbitant.--The charges of legal practitioners. -Commercial rela-
tions with China. -Bounty-money.-October Criminal Sessions.--Ordinance No. 3 of
1849, extending summary jurisdiction of the Supreme Court, confirmed .---General
satisfaction. -Convicts transported to Penang.-Death of Rear-Admiral Sir Francis
Collier while staying with the Chief Justice. -The Navy and the suppression of
piracy. The pirate Chui Apo and the murder of Captain Da Costa and Lieutenant
Dwyer.- Chui Apo's influence. -Chui Apo in command of a fleet. -Ineffectual attempt
to capture him.- British Plenipotentiary asserts capture of Chui Apo main reason for
continuing expedition. - The handing over of Chinese suspects to their Government
engages attention of Executive.--The illegality of the procedure.- Ordinance No. 2 of
1850.-First admission of unofficial members to the Legislative Council. - Messrs. D.
Jardine and J. F. Edger elected by the Justices of the Peace. -Municipal question not
gone into.- The Governor submits the names to the Secretary of State for approval.- The
necessity for this questioned.-Lord Grey's approval. -The despatch kept secret.- Prize-
money.-Flaws in indictment. Escape of the guilty.- Burke and Newton, -larceny on the
high seas. -Their conviction.-The Queen v. Leaong Lao Tong. The prisoner, although
guilty, escapes. Charge wrongly laid.-The prisoner astonished at being discharged.-A
dangerous and prosperous thief.--He is found as a spectator in Court next day. - Com-
ments upon local judicatory.-Carelessness in getting up cases.--Cases breaking down
through flaws.-The working of our institutions a mockery of justice. -English criminal law
as regards Chinese offenders.-Ordinance No. 1 of 1850. - Successful suppression of piracy
bythe Navy.-Squadron commanded by Chui Apo destroyed.- The pirate fleet of Shap Ng
Tsai destroyed in the Gulf of Tonquin.- The most formidable confederacy ever known
annihilated. -Chinese Commissioner Su.-Mr. Tarrant asks Government to take steps
consequent upon return of Major Caine's compradore . -The Governor's reply.-- December
Criminal Sessions.--Trial of Martinho and Los Santos for stealing the Chief Justice's
snuff-box.--Mr. Sterling tries the case.-The evidence of Chief Justice Hulme. - Con-
viction and sentence.-- Scale of Fees in proceedings before Justices of the Pence. -Land.
Committee appointed to report upon landed tenure.- Historical sketch of first land
sales.-Year 1849 one of the most eventful since cession of the island. - The expenditure
of Hongkong.-The revenue.- The population.-- Recapitulation. - Splendid services of
the Navy. Chap . XI.
On the 4th January several of the mercantile firms requested Public
the Sheriff to call a meeting of the residents " to afford them the meetings
regarding
opportunity of stating their views as to the position and pro- the position
and prospects
spects of the Colony and of adopting measures for again bringing and
the subject to the notice of Her Majesty's Government, " and in Colony.
accordance with the requisition a public meeting was held on
Wednesday, 10th January, at the Oriental Bank. The despatch Lord Grey's
*
from Lord Grey mentioned in July last, in answer to the despatch
referred to.
memorial from the residents which had been sent in February,
was read. Drafts of a letter to the Governor and of a memorial
to the House of Commons were then submitted . Paragraph 7 Popular
of the latter related, inter alia, to popular representation in the representa-
tion.
Legislative Council and read as follows : -
7. " Your petitioners urgently pray the attention of Your Honourable
House to the recommendations of the Select Committee in their Report.......
That a share in the administration of the ordinary and local affairs of the
island should be given by some system of Municipal Government to the
British Residents .
* Antè p. 205.
218 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap . XI . That some short code should be drawn up for the more convenient admi-
- nistration of justice."
1849.
The Supreme
Court. The next paragraph referred absolutely to the Supreme
Court and was in condemnation of the fees charged , ofexcessive
attorney's costs, and of the necessity for the employment of
attorneys. It stood as follows : -
8. "Your petitioners cannot too strongly express their conviction of the
bad moral effect produced in the minds of the Chinese by the present system
adopted in the Supreme Court, whereby the ends of justice are too often
frustrated, and parties seeking redress are obliged to call in the assistance, in
civil suits, of attorneys, whose charges are excessive, but whose services
are rendered necessary by forms which none but an attorney understands ;
whereas these, in the opinion of your petitioners, should be so simple as to
admit of any one pleading his own cause.'
Expenses A previous paragraph, the fifth, touched upon certain ex-
under the
Treaty penses under the Treaty, which it was considered the Colony
unfair to should not be exclusively charged with, such as related to the
the Colony .
Superintendent of Trade, the Supreme Court, " as well as the
Consular Cases in which the Attorney-General was consulted
at the charge of the Colony."
Mr. N. D'E . Mr. N. D'E. Parker, solicitor, begged to call the attention
Parker
and the of the meeting to an expression in the eighth paragraph, convey-
complaint ing a very sweeping and grievous charge. If it were forwarded
as to
Attorneys' in its present state, it would oblige him and his brother-attorneys
charges . to send a counter -petition, wherein he would state the number
of cases in which the merchants of China had been concerned.
Of the mercantile houses represented at the meeting, two or
three only had brought actions in the Supreme Court. The
immense sums paid into the Treasury as fees of Court, which
appeared in the returns of revenue, showed how little the
attorneys got out of these charges . More than £ 2,000 a year
was derived from this source .
Mr. Gaskell Mr. Gaskell, another solicitor present, said the Court fees
and the
fees of were justly complained of, but the attorneys had nothing to do
Court. with that.
No love for Several of the others seemed disposed to defend the clause as
litigation.
it stood, but one member, professing no particular love for
litigation or attorney's charges, could not help thinking that the
clause might be modified with advantage, and he trusted that
the Committee whose appointment he was about to move would
think so too . The meeting had been assured there was no
intention to impute blame to the head of the law here, but as
Cost of law
proceedings. the clause stood, this was not very clear. With regard to the
cost of law proceedings, it would be well for the meeting to
bear in mind that under the head of " Fees, Fines, and Forfei-
THE SUPREME COURT AND ATTORNEYS' BILLS DISCUSsed . 219
tures," in the revenue returns of Hongkong, appeared a sum Chap. XI.
exceeding £4,000 , being double the Police rate, which , strictly 1849 .
speaking, was the only tax upon the colonists. The meeting Meeting
then adjourned till Friday, the 19th January, at noon , for the adjourns.
purpose of giving sufficient time for consideration of the matters
contained in the draft letter and petition.
The proceedings at this meeting naturally excited much
public attention . There were points in the memorial which
undoubtedly could be adopted and would be productive of much
benefit ; such as, a share in the legislation to be extended to the
residents, a simplified code of legislation , and a reduction in the
fees and charges of the Supreme Court.
This was the only Crown Colony at the time in which the Hongkong
principle of representation had not been recognized . Without only Crown
Colony
a constituency or with one where the great majority cannot wherein
appreciate the privilege, an elective legislature was entirely out principle of
representa-
of the question ; but in other possessions to which the franchise tion not
had not yet been extended , the principle of representation was recognized.
acknowledged by the nomination of some of the most influen-
tial and intelligent members of the community to seats in the
Council. Such a system of representation could be asked for System of
here, and so far from impeding the measures of Government, tion representa-
a few members of Council acting independently would facilitate asked for .
the labour and strengthen the hands of a liberal Executive.
As to matters connected with the Supreme Court, it was The Supreme
necessary to guard against misconstruction. The draft of the Court and
legal
memorial had , to all appearances, been prepared hastily and was expenses.
expressed in such a manner as to lead to the belief that the
Supreme Court was complained of and that it was wished to be
got rid of. A greater mistake could not have existed . The
expenses incurred in recovering a small sum were sometimes
very great, but this arose partly from the rate of fees fixed by
the Legislature. The authority, nay much more, the existence,
of the Court was what no sane man could wish to see inter-
fered with. The heavy bills of costs which had been run up Heavy bills
against Chinese suitors, who, ignorant of the laws and acting againstof costs
upon bad advice, had rushed into litigation when they had no . Chinese.
chance of success, had not been without its ill - effects ; but to
others the language used would imply that there was something No wrong
implied
wrong in the Court itself, an opinion, it was understood , foreign to the
Supreme
to the gentlemen themselves who had drawn up the memorial. Court.
Nor did it exist among the European inhabitants , who knew The first six
that justice was not governed by the opinion of an attorney, Attorneys
nor its length and breadth measured by a bill of costs. Of the ofthe
Court in
six attorneys who had practised their profession in Hongkong Hongkong .
220 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap. XI. during the last seven years, one had been forbidden to practise
1849. any further ; two were said to have been " notoriously unfit for
The two and
any pursuit requiring judgment and common sense ; "
Attorneys
still in another had been obliged to leave in bad health . Without
practice. charging anything against the two gentlemen who were still
in practice, there had been instances in which ignorant Chinamen
had been urged into Court for the sake of a bill of costs, and
this conviction had gained ground, and the system produced
Chinese less a bad moral effect upon the minds of the Chinese. Certainly, in
partial to
litigation. a great degree the evil had ceased , but the Chinese , profiting by
experience, were getting less partial to litigation. An outline
of the forms of procedure in the Courts , and a brief abstract of the
laws themselves in the Chinese language, was perhaps a desi-
deratum ; but this was a subject for the consideration of the
local Government, and until such a compilation was available,
the Chinese must depend upon the attorneys, and, after all, an
honest lawyer was the best adviser, however much the people
railed against them .
Fees in the The fees in the Supreme Court were also considered enor-
Supreme mous . At a time when every available source was pressed into
Court
considered
enormous. the revenue, justice, of course, had not escaped . In England ,
Justice in cheap and speedy justice had always engaged the attention of the
England. best and wisest of our statesmen, and forms of procedure had been
greatly simplified, expenses reduced, and time especially saved .
In Hong- Hongkong would eventually receive the full benefit of these
kong.
changes, but it could not be expected , surely , that local claims
were individually of sufficient importance to engage the atten-
tion of Parliament for a special Act to be passed altering the
Attorneys' established forms of procedure here ! At all events attorneys'
bills
subject to bills were liable to taxation , and were not a very proper nor yet
taxation.
Abolition dignified subject for a Parliamentary appeal . It was suggested
of Supreme that the abolition of the Supreme Court in a measure had been
Court not aimed at. The Home Government would never have listened
aimed at.
to such a proposition , even if propounded . Lay Judges and
every man his own lawyer " were very pleasant theories , but,
Mr. Camp- in practice, they would be disastrous. In reference to Mr.
bell " a
puppet Campbell, at one time the occupant of the Chief Justiceship of
whose malice the Colony, though it might not be possible again to see the
checked by
imbecility." administration of justice committed to such " a puppet, whose
malice was only checked by his imbecility," still the state in
Interference which the people here found themselves was too monstrous and
of Sir John of too recent a date to be easily forgotten, or to make anyone
Davis
with the
administra. willing to dispense with a Jury in any serious trial . Besides, the
tion of manner in which matters had proceeded in the Chief Magistrate's
justice.
Court, where Sir John Davis openly and unblushingly interfered
with the administration of the law, and the manner in which
AN INDEPENDENT SUPREME COURT INDISPENSABLE . 221
that Court had submitted to his nefarious interference, was a Chap. XI.
pretty good specimen of what might be expected under other 1849.
circumstances. If any such opinion , then, had ever been engen- Governor
Bonham
dered as to the abolition or partial abolition of the Supreme and Lay
Court, an idea probably entertained by Mr. Bonham, the Judges.
Governor, who, as Governor of the Straits Settlements and
President of the then Court of Judicature under the Charter
there, had had some experience of the working of that Court
with a Recorder at Penang going occasionally on circuit to
Singapore and Malacca, where in his absence sat, as Lay Judges,
the Resident Councillors of each Settlement, and of the work-
ing of which the writer knows something , --the people of Hong-
kong should call to remembrance the state of this Colony
before the Supreme Court was established and inquire whether
it was preferable to the existing protection of just and equit-
able laws ? Was there such confidence in the Colonial
Secretary, the Chief Magistrate, and the then members of
the Government as could induce one to prefer their dispensa-
tion of law to that of Chief Justice Hulme ? It was necessary The tone
further to remember the tone of public feeling when the Chief ofpublic
opinion at
Justice was suspended , as was rightly said, "by an iniquitous the time of
tribunal, and a puppet of Government ( Mr. Campbell ) stuck the Justice's
Chief
on the Bench, to whom unnatural incapacity was not the suspension.
greatest objection ." The feeling of indignation with which it Mr. Camp-
was learnt that this " vicious tool " was to be continued on the bell the
"vicious
Bench after the Attorney- General returned to the Colony ; the tool."
gratification experienced when Chief Justice Hulme arrived to
"displace the puppet from a position which he held for months to
his own discredit and the discredit of those who helped him to
his perch," were all events, in connexion with the permanent Permanent
maintenance of the Supreme Court, never to be effaced from maintenance
of the
one's mind. The public, therefore, were invited calmly and Supreme
Court
patiently to consider the documents before them before embody desired .
ing any opinion which the majority of the European inhabitants
did not entertain .
On the evening of the 13th January, eleven of the Chinese Escape of
Chinese
convicts, lately transported to Penang from this Colony, suc- transported
ceeded in ridding themselves of their shackles while bathing at convicts at
a well in the neighbourhood of the Government brick - kilns Penang.
where they had been employed during the day. One of them
attacked the native warder in charge, but the latter proving the
more powerful of the two , kept his hold till assistance arrived.
Of the ten who escaped into the jungle, seven were subsequent-
ly re-captured, but three were, when the news reached Hongkong,
still at liberty, as was likewise another Hongkong convict who
had escaped about three weeks before .
222 HISTORY OF THE LAWS , ETC., OF HONGKONG.
Chap. XI. The official statement of the revenue and expenditure of the
1849. Colony for 1848 was published on the 18th January. On fees ,
Judicial fines, and forfeitures of Courts there was a decrease of no less
revenue and than £ 1,124 . 9s. 43d. since 1847 , in which year, however, the
expenditure.
amount was at its maximum on account of the excessive fines
and exactions in the Police Court, which, with its Chief Ma-
gistrate and Assistant, acting under superior orders , " used to
How Mr. take its cue " during 1847 from Mr. Campbell, the young man
Campbell
increased who then acted as Attorney- General and who made it a boast
the revenue. to the Governor " how he augmented the revenue by that
means. By way of contrast, however, as pointed out before, it
was worthy of note also that during the six months he sub-
sequently presided on the Bench of the Supreme Court, so
little confidence was reposed in him that the whole amount of
fees was less than during one month after he was displaced .
From February to July, 1848 , the fees in the Supreme Court
were £ 169 . 11s. 6d. , while in August alone, after Chief Justice
Hulme had resumed duty, they were £ 174 . 13s. 4d.
The The adjourned public meeting previously referred to was
adjourned
public held according to date, on Friday, the 19th January. The pe-
meeting. tition to the Governor and memorial to the House of Commons
were again brought up for consideration , and , after discussion
and a few amendments, they were both formally adopted . In
paragraph 7, the petitioners urgently prayed the attention of
the House of Commons to the recommendations of the Select
A short
Code for Committee, with special emphasis as to the drawing up of " some
the more short code for the more convenient administration of justice .'
convenient
administra- One member proceeded to suggest a further addition to clause
tion of 7 in reference to a proposed extension of the summary juris-
justice.
Extension diction of the Supreme Court from $ 100 to $ 500, but the sug-
of the gestion was rejected , on the ground " that in the hands of the
Summary
Jurisdiction present Chief Justice there could be no objection to the exten-
of the
sion of authority, but in the event of losing him the propriety
Supreme
Court. of committing such power to any other that might supply his
Compliment
to Chief place was more than doubtful, " -a well - deserved compliment
Justice paid to Chief Justice Hulme.
Hulme.
Public A portion of paragraph 7 in the draft memorial was now in-
representa.
tion corporated in paragraph 8 , which itself stood modified also in
in the
an amended paragraph 9 , these two latter paragraphs then
Legislative
Council, reading as follows :-
As to public representation in the Legislative Council :
8. "Your petitioners further represent that although this Colony has been
established for upwards of seven years, the inhabitants have no share in the
Legislature either by elective representatives or by nominees selected by the
* See antè Chap. IX. , p . 195, and Chap . X. , p. 198.
SUPREME COURT REFORMS AND INTERPRETATION . 223
Governor, a privilege which has not been withheld from any other British Chap. XI.
Colony. "
1849.
And as to the forms and fees in the Supreme Court : Forms and
Fees in the
9. " Your petitioners cannot too strongly express their conviction of the Supreme
bad moral effect produced in the minds of the Chinese by the present system Court.
offorms adopted in the Supreme Court and by the heavy fees authorized to
be levied by the Court, in consequence of which the ends of justice were too
often frustrated -whereas these forms and fees in the opinion of your peti-
tioners should be the simplest and lightest that circumstances will admit of."
Mr. Parker made some remarks upon the want of an inter- Mr. Parker
preter to the Court. In civil cases there was no interpreter. Want of
For the last three months the Chinese had been obliged , he said , interpreters
"to go away without being enabled to enter their cases for the Supreme
want of one, so that the Summary Jurisdiction was in effect Court.
99
closed to them.' In criminal cases , Mr. Caldwell, the Inter-
preter, was also Joint Superintendent of Police " and was very
frequently the principal witness against them." He could
mention a case which had lately occurred in which the person
who was obliged to interpret for the plaintiff was the principal
witness against him. However upright a person might be, the
two offices were incompatible.
This was a disgraceful state of affairs, and one which, it will be Disgraceful
remembered, was touched upon in this work so early as in 1841 state of
affairs.
shortly after the cession ofthe island , * and which makes one wonder
at this advanced period of the Colony how the Court work was
got through ! Mr. Parker, however, having proposed no motion,
the matter was not further discussed . As will be seen even as
late as in December, 1850 , matters in the way of interpretation
had not improved , for on one occasion it will be found recorded
that, at the trial of a case at the Criminal Sessions held on the
16th of that month, a Juryman objected to the interpretation of
one of the interpreters,† good grounds for which undoubtedly
existed, though the juror seems naturally to have hesitated
giving his reasons publicly for objecting. The petition and Memorial
memorial having now been settled , the meeting dissolved . settled.
Both had now been essentially improved, but neither, it was Comments.
considered, had really grappled with the principal hindrances to
the growth of a flourishing native trade, the only one materially
influenced by measures of the local Government. The last
clause of the petition indeed condemned the difficulty and ex-
pense of obtaining justice in the Supreme Court , as if that had
been the only evil felt by the Chinese, or as if the Supreme
Court were the only institution that needed reform so far as
they were concerned . The clause had, in some respects, been
greatly amended, but was still objectionable in attributing the
See Introduction, antè p. 10.
† See Chap. XII., infrà.
224 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. XI. present system of forms and fees to the Supreme Court which
-
1849. had no option but to carry out the one and exact the other.
Both were prescribed by the Regula Generalis , which, “ amend-
ed "—that is , with additional forms and heavier fees -purported
to have " passed the Legislative Council of Hongkong the 11th
day of March, 1847." The same power that made the law
could improve it, and without denying that such an improve-
ment might have been called for, it was by no means a subject
proper to be laid before the Imperial Parliament, which, in
modern times especially, did not venture to make laws for the
The memorial local government of Colonies . As the parties were subsequent-
sent Home.
ly apprised , the memorial left by the mail of the 29th January.
Full consideration appeared to have been given by the Home
Government to the subjects mooted, and the result will be
found embodied herein under date of October of this year.
Publication On the 30th, was published the draft of an Ordinance to repeal
of draft
Ordinances. the Ordinance No. 6 of 1847 , which related to an extension of
An Ordi- the summary jurisdiction of Police Magistrates and Justices of
nance to
repeal the Peace. The publication of this draft Ordinance was a de-
Ordinance parture from the course hitherto followed , which had been never
No. 6 of
1847. to publish the Ordinances until after they had passed the Le-
A departure. gislative Council, and this , it was considered, was of good augury
and had presumably been done with the object of enabling the
public to express their views upon the merits of the Ordinance .
Theliberality
of Mr. In any case, however, what was called the " liberality of Mr.
Bonham. Bonham " was greatly appreciated and duly recognized. Be
Draft of
Ordinances that as it may, drafts of Ordinances to be submitted to the
regularly Legislature, appear after this date to have been regularly pub-
published. lished.
Bulk of By the Ordinance under consideration it was proposed to
Criminal
Cases to remove the bulk of the criminal cases from the Supreme Court,
be tried
in Police where they were tried by a Judge and Jury, to the Police
Court. Court where they would be settled by a Magistrate, who was
"not even a lawyer," without a Jury, and that justice might be
placed the more effectually under control, it was enacted by the
13th section that the Magistrate, a mere creature of the Execu-
tive, might discharge, bail , or commit " without taking down in
writing any part of the examination , -a most unconstitutional
and dangerous power making the Magistrate altogether irre-
sponsible for his procedure ." Though the title bore that its
object was to repeal Ordinance No. 6 of 1847 , the Ordinance
was rather, what Sir John Davis would have termed, to " amend "
Ordinance No. 6 , —a great part of which was now re-enacted
without any material alteration. It was, however, worthy of
note, as showing the altered state of public feeling, that while
REFORMS SUGGESTED IN THE POLICE COURT. 225
the former Ordinance scarcely attracted any remarks , the pre- Chap. XI.
sent one had excited considerable alarm and disapproval. In 1849.
1847 the Supreme Court was for some time over-burdened with Considerable
alarm and
most trifling cases, many of them offences against property disapproval .
which could easily have been disposed of by the Magistrates,
but by which the Chief Justice and Juries were detained four or
five days every alternate month. As a remedy against this Ordinance
No. 6 of
evil, Ordinance No. 6 of 1847 was consequently favourably 1847.
received . Since then , so many nefarious attempts had been
made to interfere with the due administration of justice and Nefarious
to convert the Supreme Court into a political engine, -during to interfere
more
the suspension of Chief Justice Hulme the public felt them- with the
administra-
selves so defenceless against the caprice or malice of the man tion of
----
who occupied his place, that, finding the unbending character justice.
of the respected Chief Justice and the incompatibility of the
Court altogether with the purposes to which it was wished to
convert it, it was surmised an attempt was being made to get
rid of it and to substitute something more " pliant " and work-
able in its place ; any measure therefore tending in any way to
interfere with or abridge the privileges of the Supreme Court
naturally and necessarily created the greatest alarm , and this
feeling was in no way diminished by the proposal to transfer
the authority to the Chief Magistrate's Court. There was no No insinua-
tion against
wish to insinuate anything against the uprightness of the official Mr. Hillier,
who held the position of Chief Magistrate, but it was a well- though no
confidence
known fact that he did not possess the confidence of the public. in him.
His readiness to be guided by the will of his superiors, joined by
Guided
the
to the fact of his excluding the public from his Court, had by no Executive.
means counteracted the opinion previously formed of him- excluded
Public
showing the discreditable opinion which the public up to this from the
period even, held of Mr. Hillier, the Chief Magistrate. He did Police
Court.
not possess the requisite legal qualification, nor indeed any legal Discreditable
qualification at all, except such as he had acquired by reading opinion
of Mr. held
since his appointment. Hillier.
In the Police Court, a reformation was required that justice Reforms
asked for
should not be turned from its natural channels nor the laws put inthe
under the administration of uneducated Police Magistrates . If Police
Court.
this draft Ordinance was really to become law, it was a necessity
that Mr. Hillier should be provided for otherwise in the public
service, and a vacancy made for a legally qualified Magistrate. One objection-
of the most objectionable parts of the new draft was , that while able portions
of the Bill.
it extended the Magistrate's power to a higher class of offences,
as well as enlarged the degree of punishment he could inflict,
and left it equally unnecessary that any other should be present Power of
to sanction or modify his decision , it withheld the power of appeal to
226 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. XI. appeal to the Supreme Court as contained in Section No. 7 of
1849. Ordinance No. 6 of 1847. This had a most suspicious resem-
Supreme blance to the means by which Sir John Davis withdrew the
Court
withheld, right of appeal from the Consular decisions when he found
Ordinance their irregularities were likely to be made the subject of review
No. 6 of
1847, s. 7. before the Chief Justice. * The intent of the Ordinance, it was
Sir John
Davis and said, was to relieve the Supreme Court where the cases were so
Consular numerous that the Judge could not attend to them . But it was
decisions.
The intent not known that Chief Justice Hulme had ever complained of the
of the labour entailed upon him, and if he was willing to hear all the
proposed
mensure. criminal cases that came before his Court, there could be no
grounds for legislative interference. The community had per-
Chief Justice fect confidence in him ; in the Magistrate, even with his present
Hulme limited
had never powers, they had not that degree of confidence which it
complained . was desirable should exist , and if the Legislature encroached
upon the one Court and granted unconstitutional powers to the
Confidence
of com . other, it required no prophetic vision to predict trouble and
munity vexation. Chief Justice Hulme had already saved the Colony
in him.
the expense of one Court-the Court of Requests- by adjudi-
cating in civil matters where the sum involved did not exceed
$ 100, though there seemed something derogatory in the respect
due to the Chief Justice of the Colony, when he was required to
adjudicate upon the small claims that were brought before him .
aDrudgery
small of In no other Colony was the drudgery of a small debt Court
debt Court imposed upon a Chief Justice ; from this it was reasonable to
imposed conclude that, so far from wishing to be relieved of a portion of
on the
Chief his proper duties, he viewed the Ordinance with abhorrence.
Justice.
The points brought out in the proposed Ordinance were suffi-
The Chief
Justice cient to prove that it violated British law and Colonial legisla-
and the tive power, which latter, harsh as it sometimes was, never
proposed
Ordinance. deprived the Colonists of a privilege dear to every true Eng-
Points lish heart - trial by Jury. This was the very corner-stone of the
brought Constitution, and when displaced, and the Courts, inferior or
out in the
proposed superior, placed under the control of the Executive, British
Ordinance. liberty will have ceased to exist and the mother and mistress
of empires will have reached the last stage of national senility.
Tenders for On the 7th February, under the order of the Home Govern-
passages
for convicts ment alluded to in September last year,† the Governor directed
to the Cape that such British soldiers as had been sentenced to transporta-
of Good
Hope and tion be sent by the first convenient opportunity to the Cape of
Penang. Good Hope there to undergo the punishment to which they had
been sentenced, and on the same date tenders were called for
See antè Chap. VII., p. 137.
† Antè p. 210. See also Chap. XII. § 1., infrà, where it is shown that the Cape Colo
nists disapproved of transportation to their Colony.
DR. BOWRING APPOINTED BRITISH CONSUL AT CANTON. 227
for passages for two European convicts to the Cape and for nine Chap.
- XI.
Asiatics to Penang. 1849.
The Criminal Sessions opened on the 15th February, there February
Criminal
being seventeen cases set down for trial. None of them call for Sessions.
special report at this time.
Intimation now reached the Colony that Dr. Bowring, M.P. appointed
Dr. Bowring
for Bolton, whose name must now be familiar to the reader British
in connexion with motions in Parliament having special re- Consul
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