the-history-of-the-laws-and-courts-of-ho — Page 24

to house, he sought her, and, subsequently finding her in Kas-
sim's dwelling , stabbed her, when she died almost immediately.
Coroner's
The prisoner appeared to have thought himself perfectly justi-
inquest.
The jury fied in what he had done, and it would appear that the Jury
find
justification agreed with him, for it is recorded that they returned the fol-
according lowing curious verdict :-
to usage of
Malays " Wilful murder against Selico by English law and upon the verdict of his
and Java- own confession. But the Jury desire to add that on the testimony of the
nese. man himself and of the witnesses, both male and female, as well as of the
interpreter and one of their own body, the deed under the circumstances was
justifiable according to the usage of the Malays and Javanese . ”
At the Upon what facts or evidence of native law, this clever and
October
Criminal cautious Jury returned their verdict cannot now be traced , but
Sessions, he suffice it to say that, at the Criminal Sessions held on the 15th
* Ordinance No. 17 of 1844- see antè Chap. 11., pp. 56-58,
 CASES CHARACTERISTIC OF THE CHINESE. 307


October, Selico pleaded guilty of the charge and was sentenced ch. XII § II.
to death . 1851.
pleads
On the 25th August, Mr. Hillier, the Chief Magistrate, left guilty and
is sentenced
for Shanghai on short leave of absence. to death.
Departure
By Ordinance No. 4 of 1851 , passed on the 10th September, of Mr.
Ordinances No. 7 of 1845 and No. 4 of 1849 were repealed , and Shanghai.
other provisions made for the regulation of juries in civil and Ordinance
criminal cases. No. 4 of 1851.
Ordinance
No. 7 of 1845.
As a striking instance ofthe working of the law ofarrest for debt Ordinance
No. 4
at this time, and of the manners and customs of the Chinese , the The law of 1849.
of
case of Chun Atee v. You Tsoi formed the subject of comment. arrest and
The defendant, a Chinese girl of eighteen , for an alleged debt and the manners
customs
due on a promissory note, was arrested and committed to pri- of the
son. This was one of those ordinary cases of pledging a female Chinese
Chun Atce
child in payment of a debt due. The case was also illustrative r. You Tsoi.
of the mode of swearing native witnesses in the early days of The defend-
ant, a girl,
the Colony. At the suit of the plaintiff, an old Chinese woman, pledged for
the defendant was arrested and committed to prison for an debt due.
alleged debt of $400.50 . In 1845 the mother of the girl oaths. Chinese
had borrowed $ 120 from the plaintiff at Macao. At com-
pound interest this sum accumulated to $355.50 , for which sum ,
together with Court fees, amounting to $40 or $ 50 more, -a
debt the girl could never have paid , —she was arrested and sent
to the debtor's gaol . Under Ordinance No. 9 of 1845 , section Ordinance
1 , an infant could sue or be sued on the summary jurisdiction 1845 , of
s. 1.
side of the Court. Under this law the defendant was originally
brought before the Registrar of the Court, and upon the plaintiff
burning a bit of joss paper and declaring that the girl defendant on plaintiff
burning a
had assumed as her own her mother's debt, and had promised, bitofpaper'
and undertaken by word of mouth to satisfy and discharge the in support
of declara
same, this evidence being supported by two other Chinese wo-
defendant
inen, she was committed to prison . committed
to prison .
The records show that the case afterwards came before the Defendant
Chief Justice , Mr. Hulme, on the 3rd October, Mr. Gaskell Justice
before Chief
appearing for the plaintiff, when the defendant denied that she denied
had ever promised to pay the money, but admitted having pledging

pledged her body. ' In replication , Chinese custom was relied Chinese
on as warranting the transaction, and rendering the defendant custom
warranting
liable to pay the money for which she was pledged . His Lord- the transac
ship, after further arguments , cut the matter short by telling the tion.
parties to settle it amongst themselves, as he would have nothing Cases contra
to do with it. Similar other cases contra bonos mores and sug- bonos mores

gestive of the Chinese character seem to have taken up the suggestive
of Chinese
time of the Court at this period , the late Police Court interpre- character.
308 HISTORY OF THE LAWS , ETC. , OF HONGKONG .


Ch. XII
-- § II . ter Tong Achik, referred to in this work in December, 1850 , as
1851. having been objected to by the Jury, and who , it would seem ,
The noted was intimately connected with Chinese brothels and had now
Police
Court been dismissed the public service, figuring prominently in some
interpreter of them . * On the 14th October, the Government advertized
Tong
Achick. for " an interpreter of the Chinese language for the Chief
Police Court
interpre Magistrate's Court, at a salary of £ 125 a year.
ter
advertized
for.
The Criminal Sessions of the Supreme Court began on the
October
Criminal 15th October. This Sessions was remarkable as the first in
Sessions.
The new which the new jury system was brought into operation . Ordi-
Jury nance No. 4 of 1851 had been passed so lately that there had
Ordinance
No. 4 of 1851 barely been time to make a list and pass it through the required
brought into formalities, the document having been received back from the
operation. Governor and Legislative Council on Saturday, the 11th Octo-
Several
jurymen ber , the last day for issuing summonses to the jurymen . The
summoned moment the list was received , a ballot was taken, and, singularly
from the
same firm. enough, one of the evils -that of a number of jurymen from the
same firm or place of business being called together to sit in a
jury which the ballot was designed to cure or mitigate, was the
very first that it developed in the strongest manner, the names
Case against of seven in one firm being actually drawn .
Chinese There were several
Constables cases of interest tried at these Sessions ,, one deserving especial
for extortion mention being that of two Chinese Constables named Chun Ayong
by laying
brothels and Low Achoi , charged with malfeasance by laying brothels
under under contribution for the benefit of the Chinese members
contribution.
Extortion of of the Police Force, -a system of extortion of long standing.†
long
standing. These men , being found guilty, were fined $ 50 each and sentenced
The sentence. to twelve months' imprisonment with hard labour.
Their A notable
confession. fact connected with these scoundrels, who , it may be added, con-
fessed that they had acted upon the orders of their Sergeant,
was, that at this very Sessions, upon their own unsupported testi-
mony, they had obtained the conviction of a Chinese woman
Case of Chow named Chow Sam Mooey for keeping a brothel, but whose sen-
Sam Mooey
for keeping tence of twelve months ' imprisonment with hard labour was
a brothel.
Governor fortunately shortly after remitted by the Governor , after repre-
remits sentations had been made to him upon the subject . Another
sentence woman arrested after the conviction of these men , and charged
obtained
on the at the December Sessions with a similar offence as the previous
testimony woman, out of pure spite, it was believed , because she had been
of the
Constables. instrumental in exposing the Police and obtaining the conviction
The jury of the Constables mentioned above, was discharged by the Jury
discharge
another who accompanied their verdict with the expression of a regret
similar
case, that the case should ever have been brought before the Court, the
Rider to Chief Justice fully agreeing.
their verdict.
See antè pp. 293, 294.
See antè Chap. 111. § 11,, p. 80.
 FEES OF COUNSEL. 309


On the 29th October, Sir George Bonham left for Shanghai Ch. XII § II .
in H. M. S. Salamander, accompanied by the Colonial Secretary, 1851.
Major Caine, and returned with the latter to Hongkong on the Governor
Bonham
24th November, the Government in the interim having been proceeds
administered by Major - General Jervois , the Lieutenant- Governor. to Shanghai,
The records during this month again show the Chief Justice Illness of
as having laboured under illness, his previously weak health * the Chief
Justice.
suffering further injury from a rather lengthy Criminal Sessions Crowded
during the progress of which, the Court-hall was crowded to state of
excess with the worst class of Chinese, nearly a third of whom Court
Supreme
hall.
were represented as being prostitutes interested in the brothel Mr. Sterling
cases heard at that Sessions . Mr. Sterling, the Attorney-General, acted
Chief for
Justice
also appears to have acted for the Chief Justice on the sum- on the
mary side of the Court during this month, the magic words summary
side of
" I'll dismiss this case without prejudice " being frequently the Court.
attributed to him. Magic words
attributed to
Mr. Sterling.
On Saturday, the 1st November , a taxed bill of costs was A billter of
brought before the Court for revision, and as it was a matter costs for
of importance to the lawyers, they were all in attendance. The revision by
the Court.
cause of complaint arose from the fact that there were now All the
two counsel in the Colony , and that more copies of documents attendance.
lawyers in
were required than formerly when the business of the Court was Complaint
wholly conducted by solicitors ; it also appeared that the fees arose because
allowed to counsel were not considered sufficient and that previously
counsel in no
twenty-five dollars were now being asked, for what was hereto- the Colony.
fore only charged five. The difference, if not allowed in the taxed Fees allowed
to counsel
bill of costs, of course, was to be considered as costs between hot con-
attorney and client, which costs, one attorney said, his clients sidered
sufficient.
did not like to pay, though they were quite willing to pay every-
course of the argu- Attorney-
the course
thing allowed by the taxing master . InIn the of the
ments, the Attorney- General remarked that legal gentlemen who General of
came out here, having no salaries from Government, ought to opinioncounsel that
be well paid for their services , to recompense them for living in coming to
Hongkong,
such a climate as that of Hongkong. Eventually, the matter havi no
was remitted to the Registrar for the purpose of drawing out a salary,
Government
ought
scale of counsel's fees, which scale was to be submitted to the to be well
members of the bar for their opinion , but no such scale, if ever paid.
Matter
framed , is now traceable in the records . remitted to
Registrar.
The question of Chinese oaths was now raised before the Chinese
oaths.
Court on a trial for perjury. This question had been long Trial for
before the public , though certainly not brought forward so perjury.
prominently as on this occasion, it having had the effect of
putting a stop to the Sessions, exactly in the middle of
the cases, as the Attorney- General naturally declined to go
* See antè p. 304.
For previous references, see antè pp. 283, 296.
310 HISTORY OF THE LAWS , ETC. , OF HONGKONG .


Ch . XII § II.on with a Jury who entertained such sentiments as were then
1851. expressed . The matter came forward on Monday, the 15th
The jury December, when the Criminal Sessions opened with eighteen
and the
unsatis- cases for trial, and after nine of these had been tried, the Sessions
factory suddenly came to a close on Wednesday afternoon , the 17th,
manner in
which the remaining nine cases being ordered to stand over. A China-
Chinese
are sworn. man being charged with forgery of an opium order, admitting
The attitude his guilt, was condemned to two years' imprisonment . The
of the
Attorney- false witness who had sworn to the genuineness of the order was
General. next placed at the bar, and after long explanations between him
A false and the interpreter, he in effect pleading guilty to perjury, was
witness
pleads guilty sentenced to a shorter term of imprisonment. Before the pri-
of perjury. soner was removed , the Jury drew the Chief Justice's attention
.
to the unsatisfactory manner in which Chinese witnesses were
Jury
modecriticize
of sworn . It was the impression, they said , not of themselves only,
swearing but of every one who had been present during trials of Chinese
Chinesc.
cases, that the witnesses were sworn in a way which not only
appeared to foreigners absurd, but was laughed at by the Chinese
themselves ; and it was not improbable therefore, were a case
like the one just disposed of by the man's own confession to
come to trial, that the Jury might acquit the accused on the ground
that he had never been truly sworn .

The Chief The Chief Justice expressed his satisfaction that the subject
Justice ice. had been broached by the Jury , for though the matter might
upon
the pract
The jury have been remarked upon out of doors , it had never been brought
express before him in Court. The present mode of swearing Chinese
their opinion.
had been practised since the year he arrived , and he should like
to know what substitute was suggested . A juryman replied that
it would be proper to consult persons well versed in the customs
of the Chinese . He believed, however , that every one agreed
that the present mode was not at all binding upon the conscience
of a Chinese.


A juryman Another juryman observed that the ceremony of cutting off
upon "the
cutting off a cock's head before a joss was in use in the early days of the
of a cock's Colony,-why it was given up he did not know, but he did know
head."
that a Chinaman under that ordeal would hesitate to swear to
what he had testified to freely in the other mode.

Mode in
Vogue at this It would appear that the custom at this time prevalent in
period. the Hongkong Courts was to swear the Chinese in the following
Paper manner. A sheet of yellow paper about eight inches by six,
burning.
bearing certain printed characters , purporting the intention of
the witness to speak, in the matter about which he was to be
examined, the whole truth and nothing but the truth, with the
date, and witness's name inserted by the interpreter's attendant,
 CHINESE OATHS DISCUSSED. 311


was given to the witness who then burnt it, at the same time Ch . XII § II.
assenting to the interpreter's charge that he would chu ching 1851.
kong, i.e., " make true evidence . "

To His Lordship's question , Mr. Caldwell, the Chinese Inter- Mr. Caldwell ,
preter, said he did not, speaking generally, think this form of the Chinese
Interpreter,
oath was binding, especially as regards the inscription on the upon paper
burning as
paper used which, he said , had been borrowed from Singapore ; an oath.
and that some time before he had addressed the Chief Magistrate
upon the point and indicated what course he thought should be
adopted .

The Chief Justice here quoted a case tried before Baron Justice
The Chief
Gurney in which a Chinese was sworn by breaking a saucer, quotes an
the interpreter on the occasion certifying to that being the mode authority.
usual in China . Another case was referred to, as to whether
that mode of swearing was to be considered good , to which the
witness did not object. *

A juryman here asked if the report stated who the interpreter A juryman
upon
was whose authority was taken on the occasion , and finding it the point.
was not given, went on to say "it was very improbable that
fifteen years ago any one could be found in England qualified
to determine the point " ; and that at all events those who had
had the advantage of practical knowledge would not be disposed
to have it set aside by an anonymous authority. †

The Chief Justice then desired Mr. Caldwell to explain to the Various
Court what form he thought would be the most binding. To formsof
oath in
this it was replied that there were various forms in use among use amongst
Chinese .
the Chinese - there was the cutting off of a cock's head , and the
breaking a basin , either before a joss or under the bare canopy
of heaven ; there was also the burning- paper form, but to render
it fully binding it was necessary to fill in the names of the
swearer's progenitors , the exact date and hour of nativity, and
several other minutia .

At the suggestion of one of the jury, a respectable and well- The evidence
of Ching
informed Chinaman named Ching Kum Cheong was called in Kum Cheong
and examined upon the point. Upon inquiry the following was point.
upon the
elicited from him :--

" In Chinese Courts it is not required to swear, for they know that the
people do not care for perjury if they can gain the cause. The Magistrates
* See the case of Matthyssons c. Matthyssons , antè Chap. 111. § III., p. 99, and refer-
ences there given.
Rex v. Alsey and another (Sessions Cases for 1804 (first Session) , p. 62) , seems to
be the carliest authority upon the question of Chinese oaths, and lays down the break-
ing of a saucer as the proper mode of swearing amongst the Chinese. The person upon
whose statement this proposition (a very questionable one even in these days, -except as
regards Secret Societies) is founded, is also given. This case will be found referred to by
Mr. Anstey in his interesting paper upon " judicial oaths as administered to heathen
witnesses " in the second volume of this work. Chap. L.-J. W. N. K.
312 HISTORY OF THE LAWS, ETC. , OF HONGKONG .

Ch . XII & II , only make the people confess the truth by threatenings and tortures, and then
compare the confessions together, to decide the case ; or they would find out
1851.
the truth by arts and private inquiries without calling for witnesses.

" The common way of swearing a man among the people themselves , is to
make him say his oath standing or kneeling in the open air, or to make him
write out his oath on a yellow paper and burn it, either in the open air or
before some idols . Besides these forms there are still various other ways ,
such as to cut off a cock's head, used only by thieves and pirates, and the oath
used by the Triad Society, to break a cup or an arrow, to blow out a lamp,
etc., meaning that if his words are false, his conduct deceiving, or if he will
not perform his promises, he shall be like that thing-broken, perished .
" In the English Courts here, the parties brought in are presented a yellow
paper with an oath on it ; they are to burn it, but they probably do not know
what is written therein , but the Chinese would make the parties write it out
of their own head ; if they cannot write, then they are made to swear by
mouth."

The Attor The Attorney - General remarked that as it was very evident
ney-General
suggests a there were various forms , some of which might be deemed bind-
simple ing by some, and not so by others, in his opinion it would be
affirmation .
the best plan to take from a witness his simple affirmation that
he would tell the truth, and guard against his perpetrating the
contrary by the enactment of some severe and appropriate
No oath punishment. Further, he was advised that, in Chinese Courts ,
in Chinese
Courts. no oath whatever was administered to those giving evidence ;
and it was to be presumed that the native Courts acted in such
way as was most suitable to the genius of the people.

The Attor- The Court was about to proceed with the business before it ,
ney-General when the Attorney- General stated that from what had fallen
objects to a
juryman on from one of the jurors in the course of the discussion , he objected
account of to his sitting any longer on the Jury, as he believed he could
his views on
not act impartially, though it was felt that the juryman in
expressing himself as he had done as stated above, he had
expressed only the general opinion of his fellow-jurors .
The Jury
express a The Jury now expressed a wish that before any more cases
wish that were brought on for trial, the point in dispute should be fully
point in
dispute be decided .
fully
decided . The Chief Justice said it would be necessary to adjourn the
The Chief
Justice Sessions until the matter could be considered and determined
expresses
thanks to on, and the Jury having inquired if they were discharged, His
Jury for Lordship replied : " Yes, and I feel obliged to you for having
bringing
matter brought this matter before the Court ." The Court was then
forward. adjourned and a Sessions for the termination of the business
fixed for the 5th January, 1852,

Mode of
The following remarks from the appendix to The Hongkong
swearing
Chinese Almanack for 1848 will be found interesting and important as
witnesses in bearing upon the subject of Chinese oaths , and as disclosing
 CHINESE OATHS DISCUSSED. 313


the mode of swearing Chinese witnesses in the early days of the ch. XII § II.
Colony :- 1851.
early days
" Philanthropists of every creed look with an eye of pity on that moral disclosed.
degradation- a disregard of truth- which is the peculiar characteristic of the
Chinese as a people ; even simple-minded worldly interest has to deplore the
impracticability of doing business , out of the common run with men who
know not the value and importance of an oath, and the efforts of the Chris-
tian missionary in China, in teaching the reality and attributes of a Godhead,
are hailed with thankfulness and appreciated , even by those whose general
walk in life is otherwise than the most correct. In Chinese courts of law and
judgment, where the character of the people is fully understood , no oath
whatever is administered to witnesses. In order, however, to meet the re-
quirements of English law, an attempt has been made to introduce a species
of Chinese oath in our various Courts. The first form practised here was that
of cutting off a live cock's or fowl's head ; a considerable perquisite was
afforded to the Court-keepers by this system, who unscrupulously devoured the
decapitated bodies . A cheap form of oath consists in breaking a basin into
pieces, intending thereby to symbolize how anxious is the swearer, ( ?) that
if he does not tell the truth, his body shall be as unceremoniously smashed
into its original dust. To those who fancy that they possess no more soul
than a piece of potter's ware, this method of swearing is doubtless highly sen-
sible and appropriate ; and it was probably under the impression that the
Chinese entertain such feelings, that the erudite Lord Brougham was induced
to countenance this form when made in the House of Lords at a recent exa-
mination .*

The form of oaths at present in use is considerably cheaper in practice than
either of the foregoing. Printed forms, on sheets of yellow paper about
eight inches by six inches, are kept at hand by the interpreters. If the wit-
ness can write, he fills in the blank himself, or the interpreter will do it for
him, to the effect that " so and so " is now in Court for " such and such a
purpose,"
," that he will " speak the truth , the whole truth, and nothing but
the truth " without fear or prevarication, but, instead of finishing by asking
his God (his Gods or his ancestors) to help him in his resolve à l'anglaise,
the form finishes by simply stating that the " Divine heaven " or, as the Chi-
nese understand it, " Court of heaven " witnesses this attestation [ Sun tien
hàm chut], the paper when filled in and read over to the swearer is then 99
burnt by the flame of a lamp. The particular " Gods many and Lords many
who constitute the said Court of heaven, it is presumed , vary in idea accord-
ing to the theocratic knowledge of the swearer, but it is a notorious fact that,
if after days of incessant worship a god or idol takes no (fancied ) notice of
his Chinese worshipper's application, then he (the said idol) is remorselessly
battered and burnt sans cérémonie. It but follows as a natural sequence, that
the supposed powers of each god being of a doubtful nature, the whole Court,
as a body, obtain, in anticipation , only a small degree of respect or fear ; and
whole reams of note paper may be burnt without adding the slightest value
to any evidence.

This form of oaths (but on an extended scale) is said, however, to be prac-
tised in temples at Nanking. An intelligent Chinese, in reply to a question
of the writer, said " that there were many educated men who would not tell
an untruth after burning the paper," but he added that the bulk of those who
did so, cared but little for the obligation it was desirous should be obtained ,
and as a general axiom, the custom may be looked upon as useless . In Chi-
nese Courts, the truth (?) was elicited only by squeezing [ torturing] and by
the infliction of the bamboo.

* See Matthysson's Divorce Case, antè Chap. III § III., p. 99.
314 HISTORY OF THE LAWS , ETC. , OF HONGKONG .

Ch. XII & II, It will be seen that, as an oath, we have always looked upon the paper
1851. burning as a mere farce ; but we have yet to be advised of a better form of
affirmation ; and it is to be supposed that if any one would object to the
paper-burning mode, those Chinese who were the parties interested, would
be the first to point out its futility. But no objection, that we know of, has
ever been raised by Chinese on the point ; with whom in future, however, it
would be perhaps as well to allow the privilege of indicating in what form
he or she would wish the oath to be adininistered to a deponent."

January At the Criminal Sessions held on the 5th January, 1852 , after
Criminal
Sessions, the business of the day was over, before adjourning the Court,
1852. the Chief Justice said he wished to make some remarks to the
The Chief
Justice to Jury on the matter of Chinese oaths . The matter having been
the jury on
the subject left to him, he had in the interim requested Mr. Cay, the Re-
of Chinese gistrar, to address Mr. Caldwell on the subject , informing him
oaths.
Correspon- that the oath he considered most binding should be the one
dence used. To this communication , Mr. Caldwell had made the
thereon.
Mr. Caldwell following reply :--
upon the
subject . Victoria, 30th December, 1851 .

Sir, I have the honour to acknowledge receipt of your letter, informing
me that the Honourable the Chief Justice has desired that all Chinese wit-
nesses shall be sworn in such manner as I shall consider binding upon their
consciences ; I beg in reply to offer a few remarks for the information of
His Honour.
I think that cutting off a cock's head would be the form of oath likely
to elicit the greatest amount of truth from a Chinaman, but —
1. This oath, to be administered in a manner at all binding, must be taken
before the patron idol of the swearer ; but Chinese have different idols, and
those idols are feared most which are supposed to be able to punish most,
therefore an oath before one idol would not be so much dreaded as an oath
before another idol.
2. The Chinese have no belief in a God or future state, as we understand
them, therefore it would be a superstitious, and not a religious, fear which
would restrain them. Most of them believe in idols possessing powers superior
to men, and believe that after death they will inhabit the bodies of brutes or
of other men .
3. The idols they invoke are not all considered to hate vice, inasmuch
as pirates constantly invoke their assistance in their piratical expeditions.
4. Lying in the abstract is not considered a sin among Chinese. If a pro-
secutor believe the defendant to be guilty, he will swear to any false colla-
teral facts, which he may consider necessary to prove the guilt, and he will
not scruple to cut off a cock's head for this purpose.
5. The fear of the oath is more to be attributed to a superstitious dread
of some consequences attendant on the act itself in this world , than to any
fear of punishment in the world to come. I do not think they have any fear
of punishment in a future state : they may think that they will be unfortu-
nate here.
6. This superstitious fear of performing the act would probably deter
most respectable Chinese, from taking the oath in small matters. For the
recovery of a small debt or the punishment of a small crime, such persons
would not take an oath. Thus small debtors and small criminals would
escape ; some Chinamen perhaps would not be willing to take the oath under
any circumstances.
 CHINESE OATHS DIScussed . 315


I think upon the whole circumstances, it would be better to abolish judi- Ch . XII § II .
cial oaths altogether, particularly as it is a custom foreign to the ideas of
1851 .
Chinamen, who never to my knowledge take oaths in their own courts of
laws. I believe that generally, if it were explained to the witness before
giving his testimony that he would be severely punished if he stated that to
be true which was false, or that he had seen that which he did not see , this
would be as effectual a preventive of lying as the administration of any oath
whatever. The fear of immediate punishment would be a much greater do-
terrent than the fear of future misfortune or the reproaches of conscience-
the consciences of Chinese being remarkably corrupt. -I have the honour to
be, Sir, Your most obedient Servant,
D. R. CALDWELL .
ROBT. DUNDAS CAY, Esq.,
Registrar, Supreme Court.
This, the Chief Justice added, not being sufficiently satisfac- Further
letter from
tory to his mind, a second letter was sent to Mr. Caldwell from Mr. Caldwell
Mr. Cay, by his order. To this Mr. Caldwell had replied as upon the
follows :- subject of
Chinese
Victoria, 3rd January, 1852. oaths.
Sir, I have the honour to acknowledge receipt of your letter of the 31st
ultimo, informing me that the Honourable the Chief Justice has directed that
6
Chinese witnesses be sworn in the manner which I have said is likely to
elicit the greatest amount of truth from a Chinaman.'
In reply I have only to refer you to my letter which you have quoted ,
in which, in qualification of the assertion on which the Chief Justice seems
to have grounded his order, I have attempted to show that the difficulties
attending such a course would be almost insuperable, and that the practice
itself would probably be injurious to the administration of justice. - I have
the honour to be, Sir, Your most obedient Servant,
D. R. CALDWELL.
ROBT. DUNDAS CAY, Esq.,
Registrar, Supreme Court.
There is absolutely nothing in the records at this date to No change
show that any steps were taken upon this correspondence or and system
in force
that any order was made upon it. On the contrary, the records adhered to.
of the time show that the old paper-burning form was still
adhered to, and was doubtless then considered as good a mode
as any that could be devised for binding a Chinese conscience.
As will be seen hereafter, it was not until March, 1860 , that the Simple
present mode of a witness simply making a declaration , was intro- declaration
introduced
duced, by the passing of Ordinance No. 2 of 1860, a suggestion by Ordinance
thrown out many years before, as may be gathered by the discus- No. 2 of 1860.
sion set out above, by Mr. Sterling, the Attorney-General , viz . ,
that a simple declaration , to the effect that a Chinese witness
shall tell the truth , be considered sufficient, and that the declara-
tion shall put the witness in the power of the law if he commits
perjury .†
It was probably due to this suggestion that the Legislature provided in Ordinance
No. 15 of 1856, that no heathen witness be sworn in any Court " unless the said Court or
person shall think fit to direct "-(sec. 4) —see also Ordinance No. 7 of 1857 , sec. 5, where
the same section is re-enacted ; and Ordinance No. 6 of 1855, sec. 19, where power
was given to the Court to permit Chinese, instead of being sworn, to make a statement
after being cautioned to speak the truth.
† See further upon the question of Chinese oaths, Vol. II ., Chap. L.
316 HISTORY OF THE LAWS, ETC. , OF HONGKONG .


Ch. XII § III. Rumours of piratical lorchas in the neighbouring seas , com-
1852. manded by Europeans and Americans, now left no doubt as to
Firatical their existence . For years past, the outrages of such lorchas
lorchas in
command of had occasionally been animadverted upon and reported at the
Europeans
and Ameri- British Consulates, upon complaints by the Chinese who had
cans. been led to believe that they were amenable to British authority.
Government. But our Government was, of course, unwilling to acknowledge
unwilling to the discreditable connexion , even in cases where it was alleged
acknowledge
discreditable that the vessels had been fitted out or were commanded by
connexion.
Hongkong residents , and as some of them were undoubtedly
The local Portuguese, the Macao Government were left to deal with them ,
authorities
although it was known that three or four of such lorchas with
as regards
the Macao Englishmen in nominal , if not actual, command , had for some time
Government. been scouring the coast, robbing traders and fishermen, and other-
Extensive
wise committing more extensive piracies on valuable junks . Some
piracies.
of these lorchas had even come into Hongkong, disposed of their
goods , refitted, and then again left on some other scouring trip ,
without even arousing the suspicion of the authorities .

Horrible Early in August, 1851 , particulars of a horrible murder com-
murder of a
Portuguese mitted on the person of a Portuguese naval officer who had boarded
naval officer. one of these boats , reached Hongkong. It appeared that early in
The facts.
The Portu- June, 1851 , the armed Portuguese boat Adamastor, in order to
guese boat make inquiries into repeated complaints against some of the
Adamastor. lorchas in question , had sailed from Macao for the northern ports,
and on her way fell in with two lorchas and several junks at
anchor close to the island of Mi-aow near Ningpo . The Portu-
guese officers at once resolved to visit the boats, for which pur-
pose the Adamastor was brought to anchor close to them, and
one of the officers , Lieutenant José Antonio Pereira de Miranda ,
A piratical immediately despatched on board one of the lorchas which had
boat flying
the English shown the English flag. The lorcha was found to be one of
flag com- those which, originally fitted out to convoy Chinese traders on
manded by
an English- the coast, and still professing to be so employed , were and had
man. long been more a terror than a protection to native craft. She was
Wm. Fenton, in the command of an Englishman named William Fenton , with
the pirate.
a Chinese crew , and no papers were discovered except a letter
of old date from Mr. Bird, the British Consular Agent at Wham-
poa, enclosing a warning to Fenton from Her Britannic Majesty's
Consul at Canton , that it would be necessary to report himself and
Fenton obtain renewed authority from the Governor at Hongkong. Fen-
arrested by ton was accordingly arrested and taken to the
Lieutenant Adamastor to be
Miranda, of conveyed to Shanghai together with his lorcha, but on his request
tor. Adamas to be allowed to return to his vessel on the pretext of getting
the
his clothes, the commander of the Adamastor, Lieutenant
Vicente F. Barruncho, imprudently allowed him to do so in the
company of Lieutenant Miranda before mentioned, and a Mr.
 CONVICTION OF WM. FENTON, THE PIRATE . 317


Caldeira, a passenger, who spoke English, so that he might act Ch. XII § III,
as interpreter, the Commander of the Adamastor being also ofthe 1852.
party. They all left in a sampan* manned by four unarmed
sailors, Lieutenant Miranda having orders to bring with him also
a Chinaman said to be the son of the owner of the lorcha,
On arriving on board, Lieutenant Miranda immediately ordered
the Chinaman in question to get into the sampan, but received
a positive refusal to do so, and as it became necessary to use
force, the officer laid hold of him by the arm and gave him a
push towards the gangway. At this juncture , Lieutenant Lieutenant
Miranda
Miranda was suddenly surrounded by thirty armed men, the stabbed by
crew of the lorcha , and, on trying to draw his sword , was the pirates.
seized by both arms and stabbed to the heart with a Chinese
dagger. On falling, his body was thrown into the water and His body
thrown into
during the bustle of the moment, the sailors who had accom- the water.
panied the Lieutenant on board , jumped overboard and escaped The fate of
those who
with their lives, except the master of the Adamastor who was accompanied
drowned . Mr. Caldeira was driven by spears into the sampan him.
but was left alive though badly wounded . The Adamastor, on The Adamas-
the attack being noticed on board , fired on the pirates , who tor piraton
the fires es
immediately set sail, and their boat being faster than the Ada- who sail
master, soon got out of sight, thus leaving unavenged the trea- away
Fentonwith
.
cherous death of Lieutenant Miranda and the affront upon the
Portuguese flag. But the handof Providence was at hand , and Hand of
William Fenton was sooner or later to receive retribution . Providence
As at hand.
will hereafter be seen, he fell into the hands of the authorities ,
not through any extraordinary exertion on their part, but simply
by pure accident .

After escaping from the Portuguese, Fenton continued to be Fenton
continues
engaged in committing piracies on the coast, until at last, being his piracies.
overcome and captured by some Chinese junks which he had His capture
attempted to plunder, he himself first jumping overboard to by
andChinese
arrival
escape being killed , -he was brought to Hongkong by some in Hong-
Chinese on the 8th December , 1851, and handed over to the kong.
authorities, when, of course, he gave different versions as to
his capture. Tried at a special Sessions of the Criminal Court
on Monday, the 5th January, 1852 , on a charge of accessory
to murder,' the Jury, by a unanimous verdict, found Fenton not Found not
guilty, though by a strange coincidence, if not fatality, three out guilty of
accessory to
of four Chinese charged with piracy with violence at this very murder,'
Sessions were found guilty and sentenced to death . Naturally while several
Chinese
enough Fenton's acquittal gave vent to severe comment, and charged with
aroused the indignation of our Portuguese friends, who had sent sentenced
piracy are
an officer of the Adamastor over to identify Fenton . The to death.
authorities, upon pressure being brought to bear no doubt, Indignation
determined that Fenton should be tried again upon some other Portuguese.
A Chinese boat - lit . ' three planks.'
318 HISTORY OF THE LAWS , ETC. , OF HONGKONG .


Ch . XII § III. charge arising partly from the facts elicited at his trial , and partly
1852. from his own admissions , and accordingly on the 15th April
Fenton is this year ( 1852 ) , he was arraigned on a charge of ' consorting
arraigned
on a charge with pirates ,' was found guilty, and sentenced to three years'
of consorting imprisonment with hard labour. This miscreant after his con-
with pirates. viction made a statement to the effect that , being out of employ-
ment some two years back, he had been engaged by the owner
Found
guilty and of a salt lorcha as sailing master ; that subsequently his employer
convicted. engaged in convoying Chinese vessels on the north - east coast
and that on two particular occasions , there had been piratical acts !
His confes-
sions. The prisoner also now repeated his assertion that he had had
no hand in the murder of Lieutenant Miranda, but that he
Conclusions. had been engaged in piratical acts of the worst description,
quite apart from his own confession , there could be no doubt
upon the minds of any one acquainted with the dreadful deeds
committed either by Fenton himself or those with whom he had
been engaged, especially having regard to the reports which had
repeatedly reached Hongkong about the doings of the piratical
lorchas under European or American command . * As may be
surmised , it was with no little satisfaction that the community
heard of Fenton's conviction , however inadequate was the punish-
ment which could now be meted out to him.

Consular The Consular Ordinance, No. 2 of 1852 , was published on the
Ordinance
No. 2 of 1852. 27th January, 1852 , without a draft having been previously
Right of submitted to the community. It further took away the right
appeal
Supremeto the of appeal to the Supreme Court against Consular decisions under
Court from Consular Ordinance No. 5 of 1844, for breach of treaties between
Consular
decisions Great Britain and China, and which, under Ordinance No. 2 of
taken away. 1852 , were now made only reviewable by the Superintendent of
Consular
Ordinance Trade. By the Consular Ordinance No. 2 of 1847 , consuls
No. 5 of 1844, and vice - consuls were entrusted with judicial powers over
Consular British subjects , subject to appeal to the Supreme Court ; but
Ordinance
No. 2 of 1847. the main provision in the present Ordinance was to leave it to
Discre- the discretion of the consul or vice-consul to adjudicate finally
tionary 66
or to transmit the depositions to the Superintendent of Trade
powers as to
allowance who, as he saw fit, could either remit the matter back to the
of appeal.
consul for decision , or suffer it to go before the Supreme Court. "
Great Needless to say that this indirect mode of taking away the right
dissatisfac-
tion. of appeal to the Supreme Court caused great dissatisfaction,
considering especially the way in which the Ordinance had been
passed , the public having been given no opportunity of com-
menting upon it. †
Inconvc- Owing to the great inconvenience caused to the Bench in par-
nience to
the Court ticular, by the public making frequent use as an entrance to the
* See the case of the American pirate Eli Boggs- Chap. XVIII., infrà.
See further in reference to Consular Decisions, antè Chap. IV. , p. 115 ; the present Chap.,
antè p. 300 ; Chap. XIV., infrà ; Vol. II., Chaps. XXXVII ., XXXIX. , XLII., XLIX., and LXXII.
 CHIEF JUSTICE HULME RETALIATES ON GOVERNOR BONHAM . 319


Court, of the door - way nearest the Chief Justice's Chambers , Ch. XII § III.
and on the left side of the Bench, by direction of the Chief 1852.
Justice, a board was set up, where it stands to the present day, by public
passing
bearing the words " Entrance for barristers , solicitors , reporters, through the
and officers of the Court only." door-way
nearest the
Bench.
Needless to say that this ' order ' has been a standing one Notice board
ever since, the present Chief Justice, Sir John Carrington, put
orderupofby
but recently ordering its strict enforcement. Chief
Justice
limiting
On the 11th February, a table of fees authorized to be receiv- passage to
ed in the Vice- Admiralty Court was duly passed , the same professionals
and a few
being published as late as on the 16th July, 1855. others.
Order a
A Criminal Sessions of the Supreme Court commenced on standing
one ever
Monday, the 16th February. There were ten cases upon the since.
Calendar. In one, six Malay sailors , Booray and others , were Table of
charged with the murder of John Paterson , chief mate of the Fees
Vice-in the
Corcyra, on the high seas , two being found guilty and sen- Admiralty
Court,
tence of death recorded against them. The trial was chiefly
February
remarkable on account of the sentence and the reasons assigned Criminal
by Chief Justice Hulme for sparing the men's lives , namely, Sessions.
Regina v.
that as the Governor had interfered with a former sentence of Booray and
Others.
his, when he had passed the fullest penalty of the law, by com- Murder of
muting same, he, the Chief Justice, therefore considered that in John
the present case the prisoners were entitled to the same leniency. Paterson,
Addressing the prisoners , His Lordship said : -- Corcyra,
by Malay
sailors .
" Prisoners at the bar, you have been found guilty of wilful murder, and
I should have had no hesitation in passing on you the fullest penalty of the Sentence
of death
law, were it not that on a former occasion I passed sentence of death in this recorded.
Court on men who, partly on their own confession, were also proved fully Extraor
guilty of wholesale murder, and that sentence, for what reason I know not, dinary
was commuted for a milder punishment . On the same grounds that those conduct of
men received a commutation of their sentences, whatever those unknown the Chief
Justice.
grounds may have been, you, in all impartiality, are entitled to the same leui-
ency. I have therefore only recorded sentence of death against you, and shall
As the
Governor
state to His Excellency the Governor my reasons for not at once sentencing
had inter-
you to the death you deserve !" fered with a
previous
sentence
These extraordinary remarks called forth various expressions of his, the
of public opinion, and however much the Chief Justice's remarks prisoners led
were entit
were to be deplored , it cannot be said that the Governor was al- to
together blameless for having given rise to them. The case which same
leniency.
gave rise to the Chief Justice's comment occurred at the Crimi- Public
nal Sessions held in July, 1850 , when nine Chinese were con- opinion.
victed of piracy with stabbing on a junk and sentenced to death, not
Governor
alto-
and to whom the Chief Justice had held out no hope of any gether
blameless.
* On this subject, see also Chap. XXX., infrà.
† See Vol. 11., Chap. LXXXIX.
320 HISTORY OF THE LAWS, ETC. , OF HONGKONG.

Ch . XII § III . commutation of their sentence, but which the Governor never-
theless afterwards reduced to transportation for life. * In
1852.
connexion with the case under consideration , however, it may
Death of
be recorded, that the first prisoner, Booray, died in Gaol on
Booray
in gaol. Tuesday, the 14th September.

Death of
Admiral Rear-Admiral Austen , the naval Commander-in- Chief,† who
Austen. did much in putting down piracy in the China seas during the
short time he was on the station , sailed in H.M.S. Hastings for
Rangoon on the 18th February, but died there on the 7th
October, of cholera, at the age of seventy- three.

Reg. v. Chan Ahtsup and ors., referred to antè pp. 289, 291.
† Sec antè p. 293.
 321




CHAPTER XIII.

1852-1853 .


SECTION I.

1852 .
Departure of Chief Justice Hulme on leave to England .- Mr. Sterling, acting Chief
Justice. - Mr. Bridges, acting Attorney- General. - Mode of selecting Justices of the Peace
objected to. Memorial to Governor. -The curt reply.-Marriage Ordinance No. 1 of 1852.
-Mr. Ed. Morgan. Marriage Registrar. - His death.-Governor Sir G. Bonham leaves for
England on leave. - Major-General Jervois acts as Governor and also as Chief Superin-
tendent of British Trade pro tem .-Act 3 and 4 Wm. IV. c. 93.- Dr. Bowring appointed
Her Majesty's Acting Plenipotentiary and a Superintendent of British Trade. - Dr. Bowring
assumnes duties.-The grievance of the Colony in being burdened with entire salaries of
combined offices of Governor, etc.-Mr. Elmslie acts in Canton. - Permanent separation
ofGovernorship from office of Her Majesty's Plenipotentiary and Chief Superintendent
of British Trade believed beneficial. -Administration of Governor Bonham reviewed.
-Mr. Mercer gazetted a member of the Executive Council . - Desertion of soldiers
and sailors.--Three cases of aiding soldiers to desert.-The deserters inveigled
on board whalers. -The cases.--Their ill-usage. -Ordinance No. 2 of 1852, for the
suppression of desertion. -Conviction of Heycock for setting fire to the American
ship Rhone. Barque Ileraid. - Trial of Portuguese seamen for piracy and murder.—
Crime a horrible and barbarous one. -Scuttled on the south coast of Java. - Arrested
by the Dutch. - Sentenced to death. -The execution.-On the scaffold. - A free pardon.
-Coroner's inquest held at Central Police Station.- Another free pardon on Queen's
Birthday. -Death of Mrs. Cay. - Ordinance No. 3 of 1852, to amend the law of evidence.-
Ordinance No. 4 of 1852 , to facilitate the administration of criminal justice.- Nearly exact
copies of Act 14 and 15 Vict. c. 99 and 100. - Complaints about prisoners in capital cases
not allowed counsel when unable to retain one. - The practice heretofore in force. - No
regular system.- Reform asked for upon the point. - Retirement of Mr. A. R. Johnston
from the service. His career.- Succeeded by Mr. F. Harvey.-July Criminal Sessions.
Charges of keeping bawdy houses. Outrages on public decency.--The Magistrate's object
in committing for trial. - Chief Justice Hulme's opinion.--Verdict of the Jury.—Mr.
Sterling, acting Chief Justice, rebukes the Jury.-Mr. Hillier, Chief Magistrate, goes on
leave. Changes in consequence. - Mr. W. H. Mitchell. — Mr. May. - Departure of Messrs.
Hillier and Johnston.--Return from leave of Lieutenant Pedder. - Mr. May, Marshal of
the Vice-Admiralty Court. - Ordinance No. 5 of 1852. Writs of Capias ad Respondendum.
-Interpretation in the Courts again discussed. - Mr. Caldwell's multifarious duties. -The
interpretation question a public scandal.-Suggestion that boys in the public school be
specially trained.-- Death of the Duke of Wellington.-- Ordinance No. 6 of 1852, for the
prevention of desertion and better regulation of merchant seamen. - Claims of seamen to
local consideration.- Creation of a Sailors' Home suggested.- November Criminal Sessions.
Witness professing ignorance of dialect spoken is punished for contempt of Court. - Sen-
tences of death.
SECTION HI.

1853 .
Pawnbrokers wait upon the Governor. Complaint against the Police in search of stolen
property.-Acting Chief Justice grants permission to press reporters to attend his chain-
bers at the hearing of an important matter.- Privy Council appeal Y. J. Murrow r. C. J.
F. Stuart. Decision of Chief Justice Hulme affirmed. -The first appeal against a decision
of the Supreme Court of Hongkong. Ch. XIII $ 1.
THE Chief Justice, the Honourable John Walter Hulme, pro- Departure of
Chief
ceeded to England on eighteen months ' leave, for the benefit of Justice
his health , on the 28th February, by the P. & O. Steamer leave
Hulmetoon
Malta, Mr. Sterling, the Attorney-General being appointed England.
322 HISTORY OF THE LAWS, ETC. , OF HONGKONG .


Ch. XIII § 1. acting Chief Justice, and Mr. Bridges, barrister-at- law, a local
**
1852. practitioner, as acting Attorney- General, in the interim . The
Mr. Sterling Chief Justice had been in poor health for a considerable time,†
acting Chief
Justice. but yet with a laudable spirit had stuck to his post . He left
Mr. Bridges, the Colony amidst general regret and with the best wishes of
acting the residents . He had not been on leave since his assumption
Attorney-
General. of duty on the 16th June, 1848 , after that contemptible affair
which gave rise to his suspension , and which reflected so little
credit on either its originators or conductors , and had in its
effect raised rather than lowered him in public estimation .

Mode of The way in which persons were selected for the position of
selecting
Justices of Justice of the Peace gave dissatisfaction in certain quarters, and
the Peace a memorial was addressed to the Government upon the subject.
objected to.
The petitioners were curtly informed , on the 15th March , that
Memorial to the fittest persons alone were selected for the office, which seems
Governor.
The curt to have been the case judging by the names published at the
reply. time, and amongst whom was to be found Mr. John Charles
Marriage Bowring, a son of Dr. Bowring, Her Majesty's Consul at Can-
Ordinance
No. 1 of ton, and who was said to be a good Chinese scholar.