The system was bad . Notwithstanding the parade of Justices , Police
Court of
the Police Court of Hongkong was essentially a Government Hongkong a
Court, a Court, it was said , suited to the civilization of Turkey disgrace.
or Egypt, but a disgrace so long as it was conducted on its then
footing, and the Justices of the Peace were excluded from it.
A deputation of the Justices waited upon the Governor, in Justices
of the
consequence of strictures which had been passed, to ascertain more Peace wait
clearly the precise nature of their duties, and also to recommend on the
Governor.
the introduction of a tread-mill, publication of a list of Magistrates
in the Chinese language - not one of them had been put in pos- Their
session of a copy of the Commission - and the removal of the demands
and
Police Court to a more central part of the town . * One object grievances .
of the deputation was to ascertain whether the Justices had a
concurrent jurisdiction with the Chief Magistrate in the Police
Court and with the Marine Magistrate in the Marine Court.
They were informed that they might take a seat on the Bench The result .
with the Chief Magistrate, but that they could not interfere with
his decisions ; and that in the Marine Court they had jurisdic-
tion in cases which were not connected with the regulations of
the harbour. All charges against prisoners were laid before
the Chief Magistrate by the Superintendent of Police, and upon
these charges the Chief and Assistant Magistrate adjudicated
* See antè p. 237,
244 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap . XI. alone, the ill- used Justices being graciously permitted to sit on the
1849. Bench and listen ! The privilege amounted to little or nothing,
What their but they at all events being on the Bench could hear what went
privileges
amounted to. on, which they could not do in any other part of the curiously-
constructed Court. What the community required , and wanted
and were entitled to, was one competent Chief Magistrate and
one Bench of Justices - nothing more ; and until these were
Justice in
Hongkong supplied no sophistry could overcome the stubborn fact that,
manacled. in denying this , Justice in Hongkong was manacled .
Mr. Inglis On the 24th May it was notified that the Governor had been
resigns the
Registrar- pleased to accept the resignation tendered by Mr. A. L. Inglis ,
Generalship . of the office of Registrar - General, and that the duties appertain-
ing to that Department would from the end of May be con-
ducted by Mr. Mercer, the Colonial Treasurer, as a temporary
measure. No reason was apparent at the time for this resignation
nor do the records of that time show it. Mr. Inglis, as may be
remembered , first received the appointment of acting Registrar-
General in July, 1845 , * being eventually confirmed in the post
carly in 1847 after the resignation of Mr. Fearon .†
Why he As will be seen hereafter, Mr. Inglis resigned in order to pro-
resigned .
ceed to the gold fields of California . But this venture proving
unprofitable, he returned to Hongkong, and was fortunate enough
to be again taken into the Government service. ‡
Parliament Colonial retrenchment continued to engage the attention of
and Colonial Parliament, Hongkong coming in for some severe comments in
Retrench-
ment. regard to its civil expenditure on the 2nd June.
Macao and An incident which created considerable interest at the time
the case of
Mr. Summers and occasioned some debate at Home occurred in the old Por-
and Captain tuguese Colony of Macao on the 7th June , 1849. The English
Keppel .
Chaplain at Hongkong, the Reverend Vincent Stanton, was at
Portuguese
religious the head of a free- school wherein Mr. James Summers, an
observance . English youth of about eighteen or nineteen years of age, was
an assistant-teacher. On the date above mentioned , Mr. Sum-
mers, for recreation sake, made a short excursion to Macao,
where he landed and walked about the city . In one of the
Mr. Sum- narrow streets , he met a religious procession , before which he
mers met
a religious saw all the people kneeling and making obeisance. Knowing
procession that this ceremony symbolized doctrines from which he dis-
and refused
to uneover sented , Mr. Summers declined to uncover himself, though twice
himself.
summoned so to do, first by one of the officiating priests, and
His arrest. subsequently by a soldier. Upon this he was carried off, though
without violence, to the guard-house, where he remained with-
Left to out having been confronted with any Magistrate for the whole
abide the of the night. The next morning he was informed that the order
See Chap. III. § 11 , p. 86.
Antè Chap. v. § II., p. 127.
See Chap. XVIII., infrà.
THE CASE OF MR . SUMMERS AT MACAO 245
for his arrest being a " Governor's order," no intervention of a Chap. XI.
Magistrate was requisite, but that he would be left to abide the 1849.
formal decision of the judicial authorities . Pending this trial decision
of the
and sentence, he was removed to another lodging which he dis- judicial
covered to be nothing less than the common gaol. The affair authorities.
had now become disagreeable, and Mr. Summers naturally looked Removed
to the
about for the means of his release. He accordingly despatched Common
letters to the American Consul, and to an officer whom he Gaol.
His appeal .
remembered to have been his companion in the boat, begging
their good offices in his trouble, and these he speedily obtained .
The American Consul prudently reserved his own intervention
until the countrymen of the prisoner had done their best,
-a resolution in which he was further warranted by hearing
that the affair had come to the knowledge of Captain Keppel, Captain
commanding H. M. S. Meander, then accidentally lying in the action
es to
Macao Roads. Captain Keppel's proceedings in the matter secure Mr.
Summers'
were sailor - like. He first called upon the Governor, accom- release.
panied by two officers, one of whom was Mr. Summers ' fellow-
passenger, and, after an explanation of the whole affair , requested
the prisoner's release. On being met with a refusal , he sent a The pri-
soner's
formal application in writing to the like effect, and , when no release
better success attended this method of negotiation, he hailed his refused.
boats, mustered the barge's crew, marched quietly to the gaol
under the guns of five forts, and within musket shot of the
Governor's bed -room, and released Mr. Summers from his con- Released
by Captain
finement . Had the affair ended here, it would probably have Keppel.
created no great talk, but unhappily fire-arms were discharged Fire-arms
in the fracas, and a Portuguese soldier named Roque Barrache used.
The victims .
was killed, three others being wounded . Another victim was
the daughter of the gaoler, a young girl named Carvalho, oftwelve
years of age, who, in a state of blind fright, jumped out of a
window twenty feet from the ground and received severe inju-
ries on falling .
This unfortunate loss of life naturally brought under discussion The
unfortunate
the conduct ofboth Mr. Summers and the Governor of Macao. As loss of life.
regards the first of these points, persons were , of course, not want- The facts
ing to assert the right and duty of a professing Protestant to re- discussed.
fuse , under any circumstances, an act of homage to rites partak-
ing, they considered , of idolatory ; but a large number were in-
clined to lament that Mr. Summers should have been so unreason-
ably rigid in his practice, or, with such opinions, so inconsiderate
in his wanderings . He could not perhaps have been expected to
recollect that the day he had chosen for his holiday-the Thurs- Festival
of Corpus
day after Trinity Sunday - was the festival of Corpus Christi, Christi
one of the most famous solemnities of the Romish Church, but and Mr.
Summers'
he must surely have known that the city he was visiting was behaviour.
246 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. XI. the seat of Romish doctrines and practices in their most unmiti-
1849. gated form, and that common sense no less than propriety
should have prevented his intrusion upon scenes so likely to be
perilous . By his own version of the story, he seemed to have
been so contumacious in his Protestantism that forbearance was
hardly to be expected from the irritated multitude, and it was
perhaps well for him that he was marched off in safe custody.
The Port- The second point of the question was both more intricate and
guese
tenure of more important . It will, of course, be needless to remind the
Macao reader that the settlement of Macao is one of the few relics of the
questioned
again. colonial greatness of Portugal, but it may be advisable to add that
it was not then considered , in the proper sense ofthe term , an inde-
pendent possession of that Crown. It was only held conditionally
of the Emperor of China , being then absolutely part and parcel of
the imperial dominions, and the Portuguese were simply invested -
with jurisdiction within the limits of the city over their own
people . The jurisdiction over subjects of other nations per-
tained , strictly speaking , to the sovereign of the Empire, and this
jurisdiction , in the case of the British subjects, had been for-
mally made over to the representatives of the British Crown.
Mr. Sum-
mers Mr. Summers, therefore, until the treaty entered into by Portugal
amenable to as late as in 1887 , and ratified in 1888, as mentioned under date
jurisdiction
of the ofJanuary, 1844 , in connexion with the Consular Ordinance No.
Hongkong 1 of 1844, even if he had committed a cognizable offence, was,
authorities. according to strict justice, amenable only to the colonial author-
ities at Hongkong, and it was at their hands that redress should
Governor have been demanded . *
of Macao On these presumptions, the Governor of
and the Macao would appear to have exceeded his powers and to have
rights of
a British fairly exposed himself to summary treatment by his violation of
subject. the rights of a British subject .
Captain Notwithstanding, however , the justification thus derivable from
Keppel's
1esolution . the letter of the law, it will probably be thought at this time
that a little judgment and patience on the part of the British
commander might have terminated the affair more pacifically and
creditably ; but on this point, too, Captain Keppel's resolution
The Gov- admitted of much defence. The refusal of the Governor to
ernor of
Macao and release his prisoner was coupled with an intimation that he
the 'course would be tried in course of law ' by proper judicial author-
of law ' in
a Portuguese ities , and this " course of law " in a Portuguese colony was
Colony. well known to be exceedingly slow. More than one instance,
British in fact, had actually occurred within the last ten years in
subjects which British subjects had died from incarceration in the
dying in very gaol where Mr. Summers had been confined , and,
Macao Gaol.
as the Moander was about to leave these waters instantly,
her commander had reason to conclude that no time should be
* Upon this point sce antè Chap. I., p. 35 , n.
RESULT OF CAPTAIN KEPPEL'S RESCUE OF MR . SUMMERS . 247
lost if the life of his countryman was to be saved . So little Chap. XI.
seriousness was attached to the affair, that the Mœander's boats, 1849.
after doing this piece of service, entered themselves at a regatta After
releasing Mr.
which was just coming off, and won sixty dollars' worth of prizes Summers, the
the same evening , after which the frigate sailed for Manila. Maander
gets up a
regatta.
It was perhaps rather fortunate that the Governor of Macao was The indigna-
not on shore at the moment of the rescue, for reports concurred tion of the
Governor
in representi ng him as a man who would have resisted to the last, of Macao.
in which case the Maander's guns might perhaps have been
turned upon the forts, and embroiled the matter still further. A public
As it was, he displayed the utmost indignation and fury, funeral
proclaimed
proclaimed a public funeral for the deceased soldier, and invited for the
to the ceremony the captain of an American frigate lying in decensed
soldier.
the Roads .
The Portu-
The incident relating to Captain Keppel's unceremonious guese
rescue of Mr. Summers from the hands of the Governor of Macao Government
request
had created considerable sensation in Lisbon , and copies of the ambassador
Portuguese despatches were forwarded to the Ambassador in in London
to ask for
London with instructions tolay them before Lord Palmerston, and satisfaction.
to request that the English Government should give such satis- The Portu-
faction and explanation as it might require for itself in a similar guese
condemned
case. The Portuguese Government appeared to concur in the Governor
version which the Hongkong papers had given of the occurrence of Macao's
at Macao, and the people of Lisbon seemed to have condemned detaining
action in
the Governor of Macao for detaining Mr. Summers beyond the mers.
Mr. Sum-
time necessary to protect him from any disturbance in the British
crowd, quite as much as British residents in Portugal disap- residents in
Portugal
proved of that gentleman's attending a religious ceremony which disapproved
he was not prepared to treat with the outward show of respect of Mr.
Summers'
usual at all processions of Corpus Christi in Catholic countries. conduct.
Lord
A Council of State held by the Queen of Portugal in November Palmerston's
despatch
unanimously voted Lord Palmerston's despatch to be unsatis- deemed
factory, and a further note was sent by Viscount Moncoroo, unsatis
Minister of Foreign Affairs, which was said to have aggravated by Portugal.
the indifferent terms upon which Lord Palmerston and the The Portu
guese
Portuguese Ambassador were said to have been . The Portu- sensitive
guese appeared very sensitive upon the point, and complained over Lord
Palmerston's
that His Lordship had treated them with illiberality and chicane endeavour
"in his endeavour to establish the English Government's juris- to the right of
diction over its own subjects in Macao by virtue of the treaty jurisdiction
of peace with China, " when , they contended , no such pretension ofglish
had existed before that treaty, and that it ought not now, in Government
British
the absence of express stipulation, to be held to alter a fact pre- overBri
subjects
viously existing and tacitly recognized for centuries. in Macao.
248 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap . XI. The Queen of Portugal, in opening Parliament in January
1849. following, thus alluded to the matter in her speech :-
Speech of
the Queen " I grieve to announce to you that our establishment at Macao has been the
of Portugal scene of two attempts against the sovereignty of my Crown and the law of
in opening
Parliament. nations, and my Government has already taken the necessary steps to secure
the integrity of the establishment , the sovereignty of the Crown, and the
dignity of the national decorum ; it has likewise claimed the satisfaction due,
which, I trust, will meet with attention and lead to a just reparation."
Contradic- The records of the time unfortunately contain contradictory
tory versions
as to the versions as to what really was the nature of the " satisfaction "
nature At first it was asserted that Her
of the eventually given to Portugal.
6 satisfaction Majesty's Government fully approved of Captain Keppel's con-
given to duct, and that there the matter had ended, though it would
Portugal.
appear that the later reports contained a correct statement of
the facts, and that Lord Palmerston with great reluctance had
The satisfac
tion given acceded to - first, that an apology be made to Portugal for the
by England Wrongful invasion of her dominions ; second, that Captain Keppel
.
be reprimanded for having caused it ; and third, that the widow
of the Portuguese soldier who was slain on the occasion be
granted a pension of £ 20 a year ; to the three wounded soldiers,
$500 each, and to the daughter of the gaoler £ 50 , and thus ended
this unfortunate episode. *
The foolish For the foolish lad Summers, whose childish obstinacy or
lad Summers. idiotic bigotry led to these untoward events and the death
of a fellow-creature, it is almost to be regretted , even at this
period , that a due regard for the credit of the nation to which
he belonged did not allow of his being left to suffer a little
His return
martyrdom. As it is , after his release he was brought over
to Hongkong. from Macao in H. M. S. Columbine, doubtless laughing in his
sleeve at the slip he had given the Macao authorities and
thoughtless of the consequences .†
Death of
Collins, the On the 7th June the Gaoler of Hongkong, Mr. James Collins,
Gaoler. died . He had held the position for upwards of seven years, so
that he must have been appointed to the office not very long
after the cession of the island.
Mr. N. D'E. An inexplicable performance occurred about this time , in which
Parker,
solicitor, Mr. Norcott D'Esterre Parker , the solicitor , -Crown Prosecutor
and 29
after Mr. Sterling's departure on leave of absence. ‡ and after Mr.
Captain Keppel afterwards published an account of the affair which is to be found
in " A Visit tothe Indian Archipelago in 11. M. S. Mæander.” — London, 1853. The widow
of the soldier, Barrache. died in Hongkong, on the 12th October, 1858, until which time
she had continued receiving her pension from the Superintendency of Trade.
Mr. Summers afterwards became Professor of Chinese at King's College, London.
An unfavourable view was taken of his appointment, particularly owing to his youth
and inexperience, reference to which will be found in Ch. xv., infrà.
Antè Chap. III. § III., p. 168.
MR. N. D'E. PARKER CHARGED WITH PIRACY. 249
Campbell had temporarily succeeded Chief Justice Hulme,* and Chap. XI.
who for a time was Coroner as well , --† upon the shortest notice 1849.
acted a part entirely out of his line of business and in which it Chinese
arraigned
was not surprising he made so signal a failure as led one to for piracy.
believe that he would not attempt the same character again .
The case, which ended in Mr. Parker, in company with The facts.
twenty-nine Chinese, being arraigned in the Police Court on a
charge of piracy on the 27th June, it appears , originated as
follows. It seems Mr. Parker got some information through
one Lee Kip Tye that at an island a few miles distant between
Hongkong and Macao, Paong Chow by name, a boat was at
anchor , having on board several articles taken from the wreck of
some ship. Mr. Parker hired one of the port boats, in which
he went off with Lee Kip Tye, guided by his informant. When
he arrived at the place, the boat he was in search of was lying
on the beach having her bottom scraped and cleaned . He went
on shore and applied to the petty mandarin (believed to be
of equal rank to a sergeant ) who accompanied him to the
junk, which he searched all over, the crew, by direction of the
mandarin, opening their boxes and allowing the contents to be
examined . Meanwhile an immense crowd of boatmen, some
five hundred, began to collect, and they, as soon as the informer
appeared, set upon him and began to beat him, though they
did not molest Mr. Parker or Lee Kip Tye, who had taken
refuge in the mandarin's house. The tepo and two of the
boatmen then came to Hongkong and lodged a complaint to the
effect that an Englishman and two Chinese had come to their
village in a large boat and boarded a junk in which they had
broken open several boxes, but this latter part was denied by the
witnesses -the tepo and boatmen- when examined before Mr.
Hillier, the Chief Magistrate, the men saying that they had
opened the boxes themselves by order of the mandarin . The The case is
case was dismissed, but the whole story, especially with the dismissed,
additions and exaggerations it received, was not entirelyFacts not
creditable to Mr. Parker . Mr. Caldwell, the Assistant
creditable
to Mr.
Superintendent of Police, gave an account of what he saw Parker.
when he went over to the place in the Police boat , and of
finding Mr. Parker in the mandarin's house, not a prisoner, but
a refugee !-the latter's explanation being that, "having been
told that a vessel was lying at Paong Chow having on board
some articles taken from a vessel that had been wrecked , and
having nothing to do, he had endeavoured to discover by the
mark or name, what vessel it was from which it had been taken
99 Affair
or picked up . Naturally the affair created a good deal of sen- created a
sation and different versions were afloat to Mr. Parker's disad- sensation.
* Antè Chap. VIII. § 1., p. 168.
† See antè Chap. III. § III., p. 114, and Chap. X., p. 213.
250 HISTORY OF THE LAWS , ETC., OF HONGKONG.
Chap . XI. vantage. From the evidence of the Chinese official examined
1849. at the inquiry, it would appear that Mr. Parker did not apply
to him or to the mandarin ; on the contrary, that information
of what had taken place, was brought to him by the crew
of the boat, and that on going down to the shore he found Mr.
Parker, Lee Kip Tye, and a Chinaman wearing spectacles, on
Affair had board the boat searching the boxes. Altogether, says the report,
an ugly
aspect. the affair had an ugly aspect, and although the Chief Magistrate
was not blamed for having dismissed it, still it was an addi-
Constitution
of Police tional proof of the urgent necessity for the presence of Justices
Court of the Peace in the Police Court from which they were unjustly
criticized.
excluded for Executive Magistrates. Mr. Parker afterwards, in
Mr. Parker
explains. a letter to the local journal which had qualified the affair as
having " an ugly aspect, " endeavoured to explain away his
conduct, and there the matter ended.
Mr. Wm. Mr. William D'Esterre Parker, an attorney of Her Majesty's
D'E . Parker Court of Exchequer in Ireland, and brother of the solicitor re-
admitted
a solicitor. ferred to above, was admitted an attorney of the Supreme Court
of the Colony on the 2nd July, 1849. He had left Ireland in
January, 1849, and arrived in Hongkong on the 10th June.
Convict
On the 4th July, under instructions from the Home Govern-
soldiers
transported ment, the Governor directed that all soldiers sentenced to trans-
to Cape of
Good Hope portation under the Mutiny Act should be sent to the Cape of
or Van Good Hope or Van Diemen's Land, according to convenience of
Diemen's
Land. passages.
July The July Criminal Sessions of the Supreme Court opened
Criminal
Sessions. on the 16th July, the cases being of the usual character, one of
Conviction
of Moggle- them being that of the Crown against Moggle-John, who com-
John, bined his calling of a Police Constable with the less honourable
Police
Constable one of ' hangman. ' Being convicted of theft from a dwelling-
and Hang- house, he was sentenced to ten years' imprisonment-another
man, for
larceny . instance of the constitution of the Police Force in those days.
Petty By proclamation dated the 26th July, it was announced that the
Sessions
Ordinance Petty Sessions Ordinance No. 1 of 1849 had been approved and
No. 1 of confirmed by the Home Government. This was the first Ordi-
1849
confirmed. nance of which the draft had been submitted to the public before
The first being passed by the Legislative Council,† and many suggestions
Ordinance
of which were made for its amendment to which due weight seemed to
draft have been given by the Governor. At all events , there can be
submitted to
the public . no doubt that the Ordinance as ultimately passed, though not
free from objections, underwent great improvements after its
first appearance.
Robertson v. On Monday, the 30th July, in the case of Alexander Robertson
McSwyney,
v. McSwyney, and Cum Cheong v . MeSwyney, on motion before
See antè p. 226 n. , and references there given.
† See antè p. 224.
CHARGE AGAINST MR . CARTER, MERCHANT AND J.P. 251
the Chief Justice in Chambers, the defendant in person applied Chap. XI.
to set aside the writ of Capias ad Respondendum issued in the 1849.
said causes, on the ground principally of his being a " merchant," Cum
v. Mc-Cheong
having a permanent residence in Macao and therefore living swyney.
within the jurisdiction of the Supreme Court of Hongkong. Chief
HulmeJustice
His Lordship held that Macao was not within the jurisdiction of holds
the Court, and that the invariable practice of the Court treated Macao
within not
it as such. He therefore dismissed the motion with costs jurisdiction
of Hongkong.
In reference to Macao, Mr. McSwyney had now afforded an Macao
opportunity, to the Supreme Court at all events, for pronoun- again.
cing a judgment on a point which had for so long been in.
controversy. The reparation made to Portugal by the Home:
Government in connexion with Mr. Summers' case before men-
tioned further went in support of the correctness of the Chief
Justice's decision . *
On the 1st August , 1849, at the close of the Sessions of Par-
liament, the Act 12 and 13 Vict , c . 96 , " to provide for the Act 12 and
13 Vict .,
prosecution and trial in Her Majesty's Colonies of offences com- c. 96.
mitted within the jurisdiction of the Admiralty, " was passed.
This Act gave the ordinary Courts jurisdiction over offences
hitherto only triable by Commissioners of the Court of Admi-
ralty. It was promulgated in the Colony under Government
Notification of the 7th February , 1850 .
On the evening of Saturday, the 3rd August, about six Extraordi
p.m., nary conduct
Mr. Carter, a merchant, hearing that Mr. Manuel Vicente Mar- of Mr.
ques, another merchant, his debtor, was in difficulties , entered his Carter,
J.P., in a
premises and forcibly took possession of what remained of the reference
to his
goods he had previously sold to Mr. Marques. Mr. Carter was a debtor, Mr.
Justice of the Peace, and therefore considered to be sufficiently Marques.
aware ofthe consequences of his act. Though wrong, there were, He takes
forcible
however, circumstances connected with the transaction which, possession
if they did not amount to a justification, went far towards the of goods.
extenuation of an error, the extent of which, morally speaking,
was forcibly recovering property which the owner had reason
to believe he was fraudulently dispossessed of. Having thus
acted and finding such a proceeding not legally correct, Mr.,
Carter had written afterwards to the trustees of the bankrupt's
firm tendering back the goods , but this was declined for the
time being, and Mr. Marques now proceeded against Mr. Carter by Mr. Marques
charging him with feloniously and forcibly stealing and taking Mr. Carter.
away his property. It was considered hard that Mr. Carter
should have been plundered of his goods by the now prosecutor,
who had, moreover, realized some of them at a ruinous rate.
See as to Consular Ordinance No. 1 of 1844 and Macao, antè Chap. 1 , p. 35 , n.
252 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap. XI. without his further attempting to plunder him of his good
1849. name by entering a charge of felony against him. A warrant
had been originally applied for but the Magistrate refused it,
and a summons was granted with great difficulty. In the
meantime application had been made to the Chief Justice for a
mandamus, which the Court would have issued , had the sum-
mons not been granted . Upon the Bench with Mr. Hillier, there
sat, out of mere curiosity probably and with a view to watching
the proceedings , -for the case was not a Petty Sessions one, -the
following Justices of the Peace, viz . , Messrs . Arch . Campbell ,
Defendant Neave, Dudgeon , and Lyall. The defendant was discharged , the
discharged. Magistrate holding there was not the slightest ground for the
charge, and that it did the parties who had brought it forward
Mr. Hillier's no credit ; and a creditable judgment this was for Mr. Hillier ,
decision
correct. for now at least he had given a fair and just decision , and , as
was believed, the result of his own unguided mind . So much
Opinion of importance was attached to this case that the opinion of eminent
eminent
counsel counsel was afterwards taken at Home upon the whole facts,
taken at
Home. counsel agreeing at all events that the determination of the
Magistrate was in substance correct and well founded in law.
Sessions of A Sessions of the Vice- Admiralty Court was held on Friday,
the Vice-
Admiralty the 10th August. The Commissioners present were the Chief
Court.
Justice, Major Caine, the Colonial Secretary, and Captain Iron-
First bridge, of H.M.S. Amazon . A fact worth recording is that
appearance
of Major this was the first time that Major Caine had appeared in Court
Caine on since the reinstatement of that worthy and distinguished
the Bench
since man Chief Justice Hulme, whose suspension from the high
reinstate- office he held, he ( Major Caine ) , as the unworthy tool of Sir
ment
of Chief John Davis , had helped in bringing about. The records are
Justice. entirely silent upon that fact, but it is as well that in the annals
of the judicial history of this Colony this remarkable fact should
The injury now be recorded . Let bygones be bygones, doubtless thought
Major
Caine had Mr. Hulme, but , in his heart of hearts , Major Caine must have
done to repented of the grievous injury he had caused to an innocent
the Chief
Justice. man and a gentleman , merely to satisfy the passion of a revenge-
ful man.
The cases
tried , There were six cases upon the list ; the first was against
eight Manila seamen of the barque Sir Edward Ryan for
mutiny. They were sentenced to two years' imprisonment.
The second case was that of two Chinamen indicted for attack-
ing and robbing a junk in the Capsingmoon passage . The
first prisoner having been previously convicted was transported
for life , and the other for fifteen years. On Saturday, the 10th,
and Tuesday, the 13th, the Court was engaged exclusively with
Case of
Captain the case of Captain Langley, master of the Sea Gull, charged
with shooting at his crew on the passage from Amoy to this
CAREER OF MR . P. C. McSWYNEY. 253
port. The prisoner was tried on two indictments , a third was Chap. XI .
abandoned by the Attorney - General , being precisely similar to 1849.
the first. Eventually, as the jury did not agree and there was Langley,
of the
no chance of unanimity, the prisoner was discharged with a Sea Gulf,
word of caution from the Chief Justice. for shooting
at his crew.
At this Sessions, six prisoners sentenced to death for piracy, sentenced
on commutation of their sentences, were transported for life . to death
for piracy.
Mr. P. C. McSwyney, so often mentioned before in this Mr. Mc-
work and not later than July last when an important judg- Swyney,
an insolvent
ment was delivered on an often-contested point relating to debtor.
the jurisdiction of the Supreme Court as to Macao, was brought
up before the Court on the 14th September, as an insolvent
debtor . Mr. Gaskell opposed his discharge on the part of Mr.
J. Henley, master of a lorcha belonging to the insolvent, who
claimed a large sum for advances and wages on account of
the vessel . It may be mentioned that Mr. McSwyney was
no longer an attorney of the Court, having long since been
withheld permission to practise. † The insolvent put the
party on the proofs of the account, which were most volu-
minous, but fortunately for Mr. Henley, he was prepared with
vouchers for all payments, and made his claim good . Mr. N. D'E . His discharge
Parker, on behalf of Mr. Robertson and Cum- Cheong, opposed opposed.
the insolvent's discharge also, on the ground of suppression of
property and a fraudulent schedule, and produced affidavits in
support of his statement. Mr. Robertson had been detained His atrocious
conduct
in gaol for fourteen or fifteen months at the suit of the insol- when a
vent for an alleged bill of costs which was never due, and solicitor.
eventually was discharged by the Insolvent Court ; while Cum-
Cheong proved that eleven houses belonging to him , worth
$4,000, had been sold at the suit of the insolvent for satisfaction
of the same bill of costs for which Mr. Robertson had been in
gaol. Both these parties had brought actions for damages against
Mr. McSwyney .
The Chief Justice , in passing judgment, animadverted strongly The Chief
Justice's
upon the disgraceful circumstances that had come to light, and animadver-
expressed himself to the effect that the insolvent's schedule sion thereon.
was a tissue of perjury, and he therefore remanded him for Insolvent's
schedule a
twelve months from the date of the vesting order, at the expi- tissue of
perjury.
ration of which period he was to amend his schedule. Committed
The next thing found in connexion with Mr. McSwyney is for twelve
months.
the following notice :-
Mr. Mc.
"Death. At the Seamen's Hospital, Victoria, on the 27th December, Swyney's
1850, Mr. Percy Caulincourt McSwyney, sometime Deputy Registrar of the death and
career set
Supreme Court, Hongkong." out.
For previous references as to Mr. McSwyney, see antè Chap. III. § 11.. p. 82 ; Chap.
III. § 111., p. 97 ; id. pp. 109, 110, 114 ; Chap. X., p. 212 ; also antè p. 250, 251, ubi suprà.
See List of Proctors, Attorneys, etc. -App., infrà.
25.4 HISTORY OF THE LAWS , ETC. , OF HONGKONG .
Chap. XI. A noteworthy incident in regard to this notice is , that it only
---
1849: gives the official position which Mr. McSwyney held before his
severance from the public service some years before, and which he
apparently had held without any stain on his character, although
the biography mentioned hereunder, reciting facts already re-
corded in reference to Mr. McSwyney, would appear to denote
otherwise.*
The Police
and its Dissatisfaction was expressed at this time at the constitution of
constitution, the Police Force, and suggestions were thrown out for the forma-
tion of a good detective force instead of a preventive one. The
Force, it would appear, consisted of almost every element and
colour - English, French, Spanish, Portuguese, Malay, Bengali,
and Chinese, and of these, except the Chinese, of course, and
* According to one of Mr. McSwyney's petitions on record , dated the 30th October,
1845 , for admission to practise as an attorney of the Court, it would appear that he had
graduated at the University of Dublin and was originally intended for the Bar. He arrived
in the Colony in July, 1843, and up to the opening of the Supreme Court on the 1st
October, 1844, he was Chief Clerk in the only Court during that period . From the open-
ing of the Supreme Court up to the period of his first being admitted as an attorney, on
the 1st May, 1845, he had held the appointment of Deputy Registrar of the Supreme
Court. The following is a biographical account of Mr. McSwyney as taken from the local
records of the time :-
This person was an immigrant from Sydney too. [ This ' too ' refers to the many
adventurers who found their way to the Colony from Australia in the early days. ] - From
being clerk to Major Caine, when Police Magistrate, he got to be Deputy Registrar of the
Court. Ejected from that situation because he blundered in some account, Judge Hulme
admitted him to practise as a temporary attorney of the Court. (Barrister. Solicitor, and
Attorney-at-law he signed himself.) The mischief this man did to the Colony in its
earlier days is almost incalculable. In conjunction with other parties whose names we
need not mention, swindling and barefaced robbery were perpetrated to an extent diffi-
cult to be conceived. At last McSwyney's career was brought to a close, for no respect-
able person would be seen within a hundred yards of his office. He had got a number of
Chinese clients, however, and to finish their business, he managed to get several re-ad-
missions, after being told he could be admitted no more. From lawyer he turned opium-
dealer, and it is said, made quite a fortune at speculating. I have seen the wicked in
great power,' says the Psalmist, - and spreading himself like a green bay tree-yet he
passed away, and lo he was not, I sought him but he could not be found.' And so for this
man, (or rather we may say for those men). He who boasted that he believed neither in
God nor devil, neither in heaven nor in hell, was soon to get a downfall. Just as he
was about to proceed to Singapore to purchase drug, he was tapped on the shoulder by a
party who by his villany, had been obliged to lie nearly two years in Victoria Gaol. On
its being certified to Judge Hulme that McSwyney had , when practising, taken from the
party (who got permission to serve his own writ) upwards of a thousand dollars in the
way of costs to which he was not entitled, the Judge very properly granted a writ of
capias ad respondendum. Once in custody, retainer upon retainer was lodged against
him , and such was the contempt in which he was held by lawyers in the Colony, that not
one would act in any way for him, nor would any one become his bail. During the first
few months of his incarceration he is supposed to have managed to place what property
he was possessed of, in such security that no one could obtain a clue to it (nor could he
subsequently get it back) and then he endeavoured to take the benefit of the Insolvent
Act. Proved guilty of swearing to a false schedule, he was remanded to Gaol for a year,
from whence he came forth to commence again a carcer of pettifogging as agent in the
Small Debt Court. There proved to have taken out summonses without instructions, and
protested against by admitted attorneys of the Court, he was once more ejected. Deprived
of the means of subsistence, and shunned by every one, he contracted a dysentery, and was
forced to beg an admission into the hospital for destitute seamen and others, where he
died without 2 friend, and received the funeral of a pauper. On his first arrival in this
Colony in 1842 in conjunction with a clerk in the Commissariat who supplied the neces
sary funds, he started a newspaper called the Eastern Globe ' -its existence ran over
six issues, and then he got permanent employment under Government. A graduate of
the University of Dublin , he was a good classical scholar, and a man of undoubted ability,
From the career which is here detailed what a lesson does it not read to young men now
commencing life, proving that the greatest talents, the profoundest knowledge, are all as
nothing when wanting in the great essential Proper Moral Principle.""
DEPARTURE OF MR. N. D'E . PARKER. 255
the Macao Portuguese in the Force, none understood a word of Chap. XI.
the prevailing tongue. Native Chinese had been found so 1849.
corrupt, that it was considered advisable to discontinue employ- The Chinese
in the Force
ing them. The system as in vogue was thought highly objec- corrupt.
tionable, and utterly unsuitable to the requirements of the place Treatment
of persons
and detrimental to the interests of the Colony. When a man arrested.
was apprehended, in many cases presumably innocent, he was
marched off to the Police Station where his detainers could not
tell him either the reason for his arrest or for his detention , there
being no interpreter present, and he was locked up " after the
Constable had stripped him of all his property." The next day No inter
or two days after, this man was taken before the Magistrate and preters.
after close inquiry, nothing being proved against him, he was
released only to return to his countrymen to tell them of the
treatment he had received , to the grave injury of the Colony. No Grave
man should be deprived of his liberty, even for an hour, without injury.
The liberty
some real ground for it, and a good detective force arresting not of the
on mere suspicion alone but after careful inquiry, it was thought, subject.
would have answered better than the then system. The Police, The
'Branding '
however, were not alone to blame for this state of things -the and Regis
' Branding ' and ' Registration ' Ordinances ( Nos. 1 and 12 of tration'
Ordinances
1845 , and 7 of 1846 ) had caused much alarm, and the Chinese (Nos. 1 and
12 of 1845,
were as much frightened at what was intended to be done as at
what had been done. The Registration Ordinance, though in 1846)
dreaded
abeyance, was still retained in the Statute Book. It had been by Chinese.
urged in favour of the law that the Chinese had a similar system The Re-
in vogue in their own country, but this meant nothing as they gistration
Ordinance
had shown their dislike to it, and it was consequently both thre in abeyance.
duty and in the interest of the Colony, as far as possible, to
encourage the Chinese to settle in Hongkong and make them .
more at home than in their own country. As the saying goes,
"if Mahomed cannot come to the mountain , let the mountain
go to Mahomed," for, as we cannot get to the interior of China,
we should endeavour to bring the interior of China to us . This ,
however, could only be done by exercising the greatest possible
amount of levity and forbearance to the Chinese who visited or Forbearance
to the
settled in the Colony, and , indeed , if Hongkong was to prosper Chinese.
at all, this seemed imperative.
On the 29th September, Mr. N. D'E. Parker, a gentleman whose ofDeparture
Mr. N.
name is now familiar to the reader, left by the ship Amoy Packet D'E. Parker.
for California, Mr. William D'E. Parker, his brother, having on
the 26th of the same month been appointed by the Governor,
during the absence of the former, to act for him as Proctor in
Admiralty during his absence. The wording of the notification
alone disclosed the fact that the Government at least had attached
no importance whatever to the untoward event mentioned last
256 HISTORY OF THE LAWS , ETC. , OF HONGKONG.
Chap. XI. June in connexion with Mr. N. D'E. Parker. It will be recol
-
1849 lected that this gentleman had arrived here at the end of July,
Mr. N. D'E.
Parker's 1846 , with a high reputation * which the Government did not
death and fail on several occasions to appreciate , by employing him as
career.
occasions occurred, and it turned out now that the Colony was
losing him altogether, for the unfortunate man was never heard of
again. This seemed a pity, having regard to the scarcity of res-
pectable practitioners in the Courts here at this time. The non-
arrival of the Amoy Packet at her port of destination removed
the last hope of her safety, and it was feared that all on board of
her had perished in a heavy gale which the ship had encountered
a few days after sailing. Probate of the will of the deceased
was granted by the Court in December, 1850 , and the petition
relates the circumstances connected with his death .
Departure Dr. C. Gutzlaff, the Government Chinese Secretary, left on a
on leave
of Dr. visit to Europe on the 30th September, 1849 , after an absence of
Gutzlaff, the twenty - three years . That long term he had passed in China or
Government
Chinese amongst the Chinese. Perhaps no foreigner of the age had more
Secretary.
His career. thoroughly identified himself with the people, their literature,
religion, government, history, and social and domestic habits.
For some years past the learned Doctor had been in the service
of the British Government, and his name was associated with
Morrison
and Thom. those of such distinguished men as Morrison and Thom , who
were also his brother interpreters during the war. With Dr.
Attorney-General, also
Mrs.
go es Ho me. Gutzlaff, Mrs. Sterling , the wife of the
Sterling
left the Colony .
Chief Justice On the night of the 2nd October, Mr. Hulme , the Chief
Hulme
robbed of Justice, missed his gold snuff box, of the value of five
his gold
snuff-box. pounds sterling, from a chair in the verandah of his residence,
and suspicion rested on his private watchman , a native of
Mozambique ; but, though inquiries were made, nothing could
be proved against him until Tuesday, the 16th October, when
the box was found in the possession of a Manila Constable, who
stated he had purchased it for two mace (twenty - seven cents
in present currency) from a China boy, that being the amount
the lad gave to the thief for it. The boy having been appre-
His private hended was admitted as a witness , and the watchman and
watchman
and a Constable were committed for trial at the December Sessions ,
Constable
committed when the case will be found further reported . Though
for trial. the value would so denote it , the records are silent as to
whether the snuff box in question was that presented to the
Chief Justice, after his suspension, by the Attorneys of the
Court and which Mr. Hulme said he would " treasure as an
heirloom to be handed down to his children in refutation of
the foul charges which had been preferred against him "-fin
See antè Chap. III. § III., p. 97, and also references at pp. 248, 249, ubi suprà.
↑ Antè Chap. VIII. § I., p. 164.
EARL-GREY'S REPLY TO PUBLIC MEMORIAL ON LOCAL GRIEVANCES. 257
which case he was doubly fortunate , and to be congratulated in Chap. XI.
having recovered it. 1849.
On two occasions recently, by a stretch of authority, Chinese Handing
prisoners against whom no charge could be made out before the Chinese
Courts were handed over to their own authorities to be dealt suspects
to the
with as these might see fit. First, there were the men captured Chinese
by the steamer Canton at Tien -pak, who were at any rate as Authorities.
much pirates as those who were killed at the same place ; but
after undergoing a rigid examination before the Chief Magis-
trate, he found no cause for committing them for trial, and they
must have been liberated but for the Governor's order that they
should be sent to Canton . The next occasion occurred with
the suspected pirates taken at Capsingmoon by the U. S. Ship
Plymouth and, by the courtesy of Commodore Geisinger , handed
over to Captain Hay, of the Columbine, who was sent by Captain
Troubridge to receive them. Again no crime could be substan- Unconstitu
tional
tiated against these men , yet, on their discharge by the Magis- stretches
trate, they were re-apprehended on a warrant from the Governor of power.
as Superintendent of Trade, by virtue of which the men and
the property found in their possession were given up to the
Chinese, who, after investigating the case , set the men at liberty
and restored to them their property, though a complaint was
formulated by one, a woman, that her property had dwindled
down from the time it was taken from her. In the last case, com-
munications had passed between the Plenipotentiaries regarding
the prisoners, and the High Commissioner Su had assented to, ifhe
did not actually demand , the surrender of the men , but, neverthe-
less, without denying that something may be said in favour of the
expediency of such stretches of power, yet, as had all along been
contended in similar cases before touched upon in this work, they
were undeniably unconstitutional and of dangerous precedent. *
Earl Grey's reply to the memorial addressed to the Governor Lord Grey's
reply to
in January last, together with an expression of the opinion of memorial
Her Majesty's Government on the general views and prayers of of residents.
the memorialists, was now received, and made public on the
11th October. The memorial, and the petition to Parliament The proposi-
tions how
which attended it, embodied five distinct propositions : - dealt with.
First. -A reduction of the existing ground rents.
Second. - A reduction of the Colonial establishment to a level
with the reduced revenue.
Third .--The establishment of a system of popular municipal
government
Fourth . The simplification and cheapening oflegal procedure.
Fifth. - The improvement of our general commercial relations
with China .
See antè Chap. III. § III., pp. 92, 93 -also Vol, II ., Chap. XLIX.
† Autè p. 223,
258 HISTORY OF THE LAWS, ETC. , OF HONGKONG .
Chap. XI. The first of these propositions , Earl Grey negatived peremp
1349. torily ; the second - His Lordship did not see any sufficient
Reduction reason for altering the present mode of providing for the charge
of ground
rents of the Colony ; the third-he saw no general objection, but
negatived. could not pronounce upon it until some distinct proposal was
The reduc
tion of submitted ; the fourth -which, taken in relation with this work,
colonial is of importance is quoted in full , and read as follows : " The
expenditure.
Popular confirmation of Ordinance No. 1 of 1849 ( Petty Sessions Court)
Municipal will, in some measure, meet that portion of the petition which is
Government. contained in the concluding paragraph . His Lordship will
The simplifi-
cation, etc., readily co-operate with the Governor in any well-considered
of legal measures which may have for their object the simplification of
procedure.
Ordinance legal procedure ; and whatever may be the objections to dis-
No. 1 of pensing with some portions of the technical safeguards of the
1849.
Safeguards English law, His Lordship is satisfied that, in the present
of English condition of the community of Hongkong, the evils which
law. would arise from too close an adherence to its forms would be
Fees in the much more legitimate subjects of apprehension . With regard
Supreme
Court not to the amount of fees exacted in the Supreme Court, His Lord-
exorbitant. ship observed that those legally imposed were not exorbitant.
The charges The charges of legal practitioners were matters extremely
of legal
practitioners . difficult to regulate, particularly in case of a population at once
litigious and ignorant of British law, like the Chinese. No
better safeguard can be suggested than causing it to be matter of
public notoriety, as far as possible, that all such charges as were
liable to taxation would be inexpensively and rigorously
Commercial executed ; " and, as to the last proposition , Her Majesty's
relations
with China. Government attached great importance to the object and desired
to promote it by all means in their power.
Bounty- On the 18th October, Mr. Sterling, as Advocate- General, moved
money.
the Vice- Admiralty Court, on behalf of Captains Troubridge,
Hay, and Lockyer, of H.M.S. Amazon , Columbine, and Medea,
and T. Jamieson , master of the ship Canton, for an interlocutory
decree for bounty-money, which was duly made.
October At the Criminal Sessions of the Court, on the 22nd October,
Criminal
Sessions. there was but a short calendar, none of the cases calling for
special notice.
Ordinance The Ordinance No.
No. 3 of 3 of 1849 extending the Summary
1849, Jurisdiction of the Supreme Court, as was announced on
extending the 27th October, had been confirmed . The Ordinance had
summary
jurisdiction now been in operation for several months and in its work-
of the
Supreme ing had given general satisfaction. To the Chinese it was
Court, especially satisfactory, for they could not understand the old-
confirmed .
General fashioned forms of the Civil Court with the consequent tedious
satisfaction. delay, before cases were finally settled ; and in too many
PIRACY AND CHUI APO . 259
instances they had been fleeced by attorneys who exacted Chap. XI.
enormous bills without having had them taxed. Were the Sum- 1819.
mary Jurisdiction extended , it was thought, to an unlimited
amount in actions for debt, it would have the very best effect,
giving either plaintiff or defendant the privilege of demanding
a jury and of employing an attorney or not as he saw fit.
Rear-Admiral Sir Francis Collier, C.B. , K C.H., Commander- in- Death
Rear- of
Chief in the East Indies, died suddenly of apoplexy on the 28th Admiral
October, at the residence of Chief Justice Hulme, with whom Sir Francis
Collier
he was staying on a visit . He died in the presence of his medical while staying
attendants, who had been with him the greater part of the night. with
Chiefthe
The Admiral, who was sixty-three years of age, had been in very Justice.
bad health for some time, and his physicians entertained scarcely
any hope of his permanent recovery, but as he was sufficiently
well, on the evening before his death, to take a carriage drive with
Mr. Hulme, his friends were quite unprepared for the sudden
announcement of his death. It was only on the 22nd October
that the Admiral had received a complimentary address from the
merchants of Hongkong on the energy displayed by him in the
extirpation of piracy in these seas and the security thereby
afforded to the peaceful prosecution of commerce. His funeral
took place on the 29th October.
On the 1st November, the Government advertized for a pas- Convicts
transported
sage to Penang for one Indian and sixteen Chinese convicts. to Penang.
The past month was marked by an unusual activity on the part The Navy
of our ships of war in the suppression of piracy in these waters, suppression
and the
Apart from a previous encounter with H.M.S. Medea, when of piracy.
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