the-history-of-the-laws-and-courts-of-ho — Page 28

"Second son of Thomas Anstey, Esquire, of Anstey-Barton , Van Diemen's
Land. Born in London, 1816 ; married 1839, Harriet, 2nd daughter of the late
J. E. Strickland, Esquire, of Loughglyn House, co. Roscommon . Educated at
Wellington, Somersetshire, and at University College , London. Called to the
Bar at the Middle Temple, in Hilary Term, 1839. Is Professor of Law and
Jurisprudence at the Colleges of St. Peter and St. Paul, Bath. Is author of
"British Catholics and the New Parliament " [ 1841 ] ; " A Guide to the
Laws of England affecting Roman Catholics " ; " A letter to Lord Cotten-
ham on Petitions of Right " ; " A letter to W. H. Watson, Esquire, M.P.,
* For review, see 6 Jur. Part 2 (O. §.) p. 250.
† See 10 Jur. Part 2 (0. S.) p. 1.
368 HISTORY OF THE LAWS , ETC. , OF HONGKONG .

Ch. XVI § II, on illegal Fees on Petitions of Right " ; " Guide to the History of the Laws
and Constitution of England , in Six Lectures " ; together with numerous
1856.
miscellaneous papers in the " Portfolio," " Dublin Review," " Law Maga-
zine," etc. A liberal ; opposed to " centralization ; " in favour of the repeal
of the Union both with Ireland and Scotland ; thinks " that the abolition of
excise, the reduction of customs, and the repeal of all currency laws, are the
only methods of insuring protection to all." First returned for Youghal in
1847."

The following is from Parliamentary Portraits :-
MR. THOMAS CHISHOLM ANSTEY.

Mr. Anstey sits for the borough of Youghal, for which he was first returned
in 1847. He is the second son of a highly respectable landed proprietor in
Van Diemen's Land, a member of Council there, and was born in 1816. His
family is Protestant ; but he himself coming over to England to be educated
was, when young, converted to Catholicity. He was educated at Wellington,
in Somersetshire ; and at University College, London.
Mr. Anstey adopted the profession of the law, and, while a student, was
distinguished as an active and ardent member of the legal debating societies.
He was called to the Bar by the Society of the Middle Temple, the 25th
January, 1839. He married soon after a Miss Strickland, an Irish Catholic
lady of good family, and went to carry on his profession in Van Diemen's
Land. There he was made Judge of the Insolvent Court, but, getting into
some disagreement with the authorities of the place, he threw up his appoint-
ment and returned to England . He then joined the Northern Circuit, and
was an attendant for some time at the Manchester Sessions. He afterwards
more exclusively devoted himself to Chancery practice, and he has been
employed in that department with advantage in some very important cases .
He is the author of many articles in the periodicals, and of a very able trea-
tise on the laws affecting Roman Catholics. As a writer, Mr. Anstey is
correct, powerful, and fluent. His learning, too, is profound and extensive.
His election for Youghal, and his subsequent parliamentary notoriety, are of
too recent date to need record here.

He is a man of energetic and ardent mind ; but he is, at the same time,
perfectly upright and honest. During his whole life, he has never allowed
his interests to interfere with his chivalrous and almost Quixotic integrity.

Mr. Anstey is a liberal in politics and favours the repeal of the Union both
with Ireland and Scotland. He took part in the debate of Tuesday night, on
the motion of Sir George Grey, for the continuance of the suspension of the
Habeas Corpus Act in Ireland, when Mr. Anstey addressed the House against
both the motion and the amendment. He admitted the reality of the insur-
rection of last year, which was put down, and of the existing disaffection in
Ireland ; yet he considered the grounds put forward in support of the measure
utterly insufficient to justify an invasion of the personal liberty of the subject.
For the same reasons, he maintained, a committee of inquiry would be fruit-
less. On the same evening, the honourable member moved for leave to bring
in a bill for the further repeal of enactments imposing penalties upon Roman
Catholics, this being substantially the same Bill as he introduced last session.
He was pressed to withdraw the measure as ill-timed ; and , on declining to
do so, the House divided, and the Bill was rejected by a majority of 2."

Mr. Anstey In addition Mr. Anstey was a Law Commissioner , and The
as a Law
Commis- Law Magazine had occasion to express regret at his severance
sioner.
from the Commission owing to "his great acquaintance with
 MR BRIDGES AND HIS EXPECTATIONS . 369


the Statute Law and power of laborious exertion equalled by Ch XVI § II.
few. " and especially as Mr Lonsdale, the Secretary to the late 1856.
Criminal Law Commission , and Mr. Rogers, one of the Assistant
Commissioners ofthe late Statute Law Commission , had also been
suffered to quit this service, the former to attend to his duty as
County Court Judge and the latter to go to the Colony of Van
Diemen's Land as Solicitor - General, -all of whom it would be
difficult to replace . *

The London correspondent of The Liverpool Albion in one of The Liver-
his letters headed " Metropolitan Gossip ," dated London , the 19th pool Albion
on Mr.
January, 1856 , made allusion to Mr. Anstey's appointment, the Anstey's
appointment.
concluding portion of which, as will be seen hereafter, proved He goes to
rather an unfortunate prophecy, as events showed : - China in a
"diabolic
"How the Post happens to be Pam's own print is unintelligible to all and frame of
mind."
their name is legion who reject the Urquhartine story about a former editor
having called for P's head as a traitor, and then being muzzled with a St.
Petersburg consulship, just as in the present case of Anstey, who is made
Attorney-General at Hongkong, for the same reason by the same person.
Chisholm, by the way, has gone to the Celestials in a diabolic frame of
mind."


Locally it was hoped that on his arrival Mr. Anstey would Local hopes.
forget that he was once a reformer. A man of his ability and
energy might be of essential benefit to the Colony.

A system ofgaol delivery had now been going on for some time, A system
and of a kind that must have been considered more objectionable of gaol
delivery.
than the late Criminal Sessions Commissions. † eight convicts Escape of
having escaped over the gaol wall by means of a rope, and ten convicts ,
from the guard while at work on the roads. Of the eighteen
only five were re-captured.

Mr. Bridges, the acting Attorney-General left for England on Mr. Bridges,
acting
the 15th January, without waiting to welcome his successor who Attorney-
was shortly expected . For nearly a year, he had filled the office General
leaves for
of Attorney- General during the absence of Mr. Sterling for England
whom he had also acted when he officiated as ChiefJustice during without
waiting for
Mr. Hulme's stay at Home.§ Contemplating the early retire- Mr. Anstey.
ment from the Bench of the Chief Justice, consequent on His Lord- He antici-
pates Chief
ship's continued indisposition, Mr. Bridges, it would appear, went Justice's
Home to urge his claims should Mr. Anstey be raised to the Bench . retirement.
early

A dinner was given to him on the 12th January by both given
Dinnerto him,
branches of the legal profession .

* On this subject, see also The Jurist, (O. S.) Vol. 17 and 18, Pt. 2, 1st July, 1854, p.
226.
+ See antè pp. 366, 367.
See antè Chap. XIII. § I., p. 322.
See antè Chap. xv.. p. 347.
370 HISTORY OF THE LAWS , ETC. , OF HONGKONG .

Ch . XVI § II. The last published Government Gazette contained an intima-
1856. tion from the Registrar of the Court that no Criminal Sessions
No Criminal would be held this month (January) probably in anticipation of
Sessions held the arrival of the new Attorney- General, who was expected
in January.
about the time they should have been held.

The long The long tale of Police and Prison misgovernment
tale of again
Police and came under public notice consequent upon the verdict of a
Prison
misgovern- Coroner's Jury at an inquest recently held . Speaking of the
ment, cells under the Police Station , Dr. Dempster, the Colonial Sur-
Coroner's geon, in his evidence at the inquest , said : ---
inquest.
Cells under "It is a filthy, disgusting place, badly ventilated, and altogether unfit for
Police occupation by human being. I was never in the cells but once to see a
Station Policeman under delirium tremens ; and so horrified was I with the dirty,
a sink of
iniquity.' stinking hole, that I took it on myself to order the man out of confinement at
once. It is a sink of iniquity. A man in a weak state of health kept in such
a place twenty- four hours would receive irremediable injury to his whole
system."

Verdict of According to the evidence, the deceased had been kept in one
the Jury.
of these cells for four nights and three days ! And the follow-
ing verdict of the Jury was no less startling : -
" The deceased died from the effects of disease contracted prior to his arrest
-death being accelerated by severe treatment at the hands of the Police , not
only in his being dragged from his bed at midnight, when so sick he could
hardly walk, but in being thrown into a cell described by the Colonial Surgeon
as unfit for occupation by any human being, and further accelerated by the want
of attention apparent during confinement in Gaol ; and the Jury recommend
that the Colonial Surgeon's representation regarding the cells at the Police
Station be brought to the especial notice of His Excellency the Governor."

Arrival of Mr. Thomas Chisholm Anstey, the new Attorney- General
Mr. Anstey, and standing counsel to Her Majesty's Plenipotentiary and
Superintendent of Trade, whose fame and reputation had so
long before preceded him , arrived in Hongkong by the P. &
O. Steamer Cadiz on the 30th January . It appeared that in
the month of October, 1855 , upon the recommendation of Sir
William Molesworth, the Secretary of State for the Colonies,
Her Majesty had been pleased to appoint him Her Attorney-
General for Hongkong ."

Date of bis On the 21st November, 1855 , Mr. Anstey left London by
departure
from London. overland route for his destination, and arrived in Hongkong on
the date mentioned above.

Governor
His appointment was gazetted the same day, and in a separate
appoints
him to sit notification it was also announced that the Governor had ap
* Parliamentary Papers on Hongkong, 1860, p. 421 , §§ 1 , 2. See also Mr. Anstey's
allusion to Sir William Molesworth and the circumstances of his appointment in his speech
in the case against him by Mr. Mitchell, in August, 1856, Chap. XVII. § I., infrà.
 TO NEW YORK
PUBLIC LIBRARY 1


ASTOR, LENOX AND
TILDEN FOUNDATIONS
T. C. ANSTEY.
 MR. ANSTEY ON THE ETIQUETTE OF THE BAR. 371


pointed him ( in consequence of the continued indisposition ofcu. XVI § II.
the Chief Justice, and in lieu of Mr. Day previously gazetted for 1856.
the purpose and who had until this been sitting ) to hear and for Chief
Justice
determine suits on the summary jurisdiction side of the Court, in lieu of
on the 1st February and following days until all such cases had Mr. Day.
been adjudicated and determined . This appointment was vir- Ordinance
No. 6 of
tually the same as that previously conferred upon Mr. Day 1845 , see-
under section 5 of Ordinance No. 6 of 1845. * tion 5.

On the 31st January, Mr. Anstey was gazetted to a seat in Mr. Anstey
the Legislative Council. During this month the Bills of Lad- gazetted to
a seat in the
Legislative
ing Ordinance ( No. 2 of 1856 ) and another extending certain Council.
Imperial Acts to this Colony ( Ordinance No. 3 of 1856 ) passed Ordinances
the Legislature .† Nos . 2 and 3
of 1856.
On the 1st February , the new Attorney -General , Mr. Anstey, Mr. Anstey
officiated for Chief Justice Hulme on the summary jurisdiction the
officiates
Chieffor
side of the Court as previously announced . Mr. Anstey's want Justice on
of knowledge of the Chinese character caused some of the cases theside Summary
.
apparently to occupy more time than their importance deserved . His want of
In one case, for a breach of contract, the plaintiff and his wit- knowledge
of the
ness were evidently guilty of perjury, and fined respectively Chinese
$100 and $ 20, they having, according to Mr. Anstey's decision, character.
He fines a
"out of their own mouths, after a most careful and searching les
plaintiff
cross -examination on the part of the Court, convicted them- and his
witness for
selves of wilful perjury." The fines were paid. perjury.
The loss sustained by Mr. Caldwell's resignationwas made Mr. Cald-
apparent at this sitting, when he, happening to be present in well's
as an loss
Court as a spectator or witness, was called in to the assistance interpreter.
of the acting Interpreter .

The Hongkong Bar had been, until very lately, formed of Rules of
such a small number of barristers that it was little more than the Bar
occasionally
sufficient to entitle it to be called a body. The Bar had , since infringed .
the commencement of the Supreme Court until quite recently,
consisted of rarely more than two barristers and oftener of only
one. Under such circumstances it was not to be wondered at
that the rules of the Bar may have been occasionally infringed .
Now that there were several practising barristers in the Co- Rules of
etiquette
lony, it was only fair, it is to be presumed , that strict profes- drawn up
sional rules of etiquette should have been adopted, and the follow- by Mr.
Anstey.
ing was the document drawn up by the Attorney - General on the
* See antè p. 367.
† The following is the schedule of the three Acts of Parliament to which the Ordi-
nance referred :-
6 & 7 Vict., Cap. 83.-" An Act to amend the Law respecting the Duties of Coro-
ners."
9 & 10 Vict., Cap. 24.—“ An Act for removing some Defects in the Administration
of Criminal Justice."
11 & 12 Vict., Cap. 46.-" An Act for the Removal of Defects in the Administra-
tion of Criminal Justice."
See antè p. 361 .
372 HISTORY OF THE LAWS , ETC. , OF HONGKONG.


Ch. XVI § II . rules to be observed by barristers in future. It was accom-
1856. panied by the following circular : --
The circular CIRCULAR.
and memo-
randum . "The Attorney-General has the honour to make known to the members of
the legal profession in this Colony his reply of this date to certain questions,
recently submitted to him on the part of the Colonial Bar, in a matter highly
affecting the conduct and character of its members."
Attorney- General's Office,
Hongkong, 23rd February , 1856.
The following was the memorandum : --
MEMORANDUM .
"The Attorney- General has the honour to acknowledge a communication
under this date from two English barristers practising at the Bar of this
Colony ; in which, after expressing their belief that the manner, in which the
rules and usages of the English Bar are disregarded here, has not escaped the
Attorney-General's attention, those gentlemen request him, as Leader of the
Provincial Bar, to certify his opinion how far those points of departure are
consistent with the honour and dignity of the Bar itself.'
In acceding, as he is bound to do, to their request, the Attorney-General
"
will endeavour to specify the several points of departure,' which have as yet
caught his observation. It is possible that there may be others of the same
kind. If so, the gentlemen of the Bar will be pleased to consider them to be
comprehended within the general reprehension which it is his duty to express
of all endeavours on the part of English barristers, to set at nought their
honourable obligations ; which follow them, in that character, wheresoever they
go ; and to the universal observance of which by its members is alone to be attri-
buted the high pre-eminence which still, after so many centuries of possession,
remains to that Bar undiminished and untarnished.
But the province of a colonial Attorney-General, as Leader of a local Bar,
is in this matter limited . He has no power to alter the code of honour in
favour of himself or his brethren. He has no power, on the other hand, to
enforce their obedience to its precepts . All that he may do is to explain and
declare them when occasion calls for it ; and to remind his brethren , if need be,
that there is one tribunal which has jurisdiction, although he has none, -
their Inn of Court.
The Attorney-General has now to express his concern in approaching the
points to which his attention is called , that any doubt could have been felt in
any quarter with respect to their character ; and , above all, that any persua-
sions or pretences, commended by whatsoever authority, should have succeed-
ed in procuring them to be adopted in practice. These ' points of departure '
are in truth so utterly at issue with the principles of the English Bar, and the
practice of barristers, that a deviation into them would undoubtedly be
punished in England with the forfeiture of his grade by the offender.
1. Barristers are disqualified from entering into any agreement or under-
standing with solicitors, directly or indirectly, having in view the dispensation
of professional employment to the former by the latter.
2. Except when the client happens to be also a barrister, no barrister can
stipulate with a solicitor for the employment of another barrister, albeit not
himself party or privy to the agreement.
3. For the barrister to nominate the solicitor in the cause is grossly unpro-
fessional. No barrister can interfere with the client's own selection of an
adviser. Much more therefore is to be condemned the practice, which is said
to have been recently introduced here, for the barrister to stipulate as a con-
dition of his own acceptance of the client's retainer, that the latter shall appoint
in lieu of his own ordinary attorney, to act for him in that matter, one nomi-
nated by the barrister, or one with whom the barrister signifies his desire to
act.
 MR. ANSTEY ON THE ETIQUETTE OF THE BAR. 373


4. No gentleman of the Bar, whether upon pretence of being a general re- Ch. XVI § II.
ferec or any other pretence, can intermeddle with the conduct of business in
a solicitor's office. The division of the profession into these two walks is 1856.
for the client a costly one at the best ; and it loses all the advantage for
which it was established, if combinations like these are tolerated , and the
reciprocal control suffered to become a nullity.
5. In any case of immediate and pressing emergency, no doubt, a client
unprovided with an attorney, or otherwise consilii inops, may consult per-
sonally a barrister, or employ him to draw a deed or will, or even hand him a
brief. But these three are the sole exceptions - and they can very rarely occur
in practice, to the common and otherwise inexorable rule which denies to the
barrister all professional intercourse with any client except through the
medium of that client's attorney. *
6. No personal preferences- however well grounded - can entitle any
client or solicitor to insist upon a barrister's waiving in favour of his junior
his right and duty of leading that junior in a cause when both are retained
on the same side ; --neither can the barrister waive his seniority in such a
case, whether the waiver be voluntary or not.
So far as respects himself personally, the Attorney-General wishes to add
that he holds himself quite as much bounden, in Hongkong as in England, by
the code of honour, to which he submitted himself when he was received into
the great confraternity of the English Bar ; and that he is resolved, not even
by his silence, to sanction the deplorable abuses and laxities of discipline,
which have led to his being consulted in the present instance.
(Signed) T. CHISHOLM ANSTEY.
Attorney-General's Office, Hongkong,
23rd February, 1856.


This memorandum was not well received in certain quarters The view
and therefore unfavourably commented upon. The two bar- takenof
memoran-the
risters who addressed the Attorney-General were believed to dum.
have been Mr. Day and Mr. Green ; the one to whom the lax-
ities of practice were attributed was Mr. Bridges, upon whom
the memorandum was looked upon as an attack ; and the fourth ,
who did not join in the remonstrance, was Mr. Kingsmill , in
whose favour Mr. Bridges solicited the support of his clients
during his absence. Anything like a partnership between bar-
rister and attorney or undue influence exercised by the one
over the other, or colluding between them, cannot be too forci-
bly reprehended , and as some such practices were alleged to
have grown up, it was with some satisfaction that it was learnt
that Mr. Austey's attention had been directed to their repres-
sion. Up to 1851 , there was no practising barrister in Hong-
kong, except the Attorney - General . In that year Mr. Bridges
arrived , and, having speedily acquired some insight into local
matters and local law, had the field entirely to himself and that
literally so while acting Attorney - General, during the absence
of the Chief Justice. The circumstances rendered some laxity
of practice almost inevitable, but no circumstances excused such

See per Ld. Campbell in Doc d. Bennett v. Hale and Davis, 14 Jur. 831.
See antè Chap. VII. § II. , p. 301.
374 HISTORY OF THE LAWS , ETC. , OF HONGKONG .


Ch. XVI § II . abuses as were indicated in Mr. Anstey's memorandum. With
1856. regard to the fifth article, it was explained afterwards that it was
not intended to exclude clients from consulting with their bar-
risters, but that , in all ordinary cases, there must be an attorney
The Chief to retain the barrister and submit the case to him. At all
Justice not
consulted. events it seems strange that those who disagreed with the me-
morandum did not submit it to the Chief Justice, who appa-
rently had not been consulted , and obtain his opinion upon it.
The au-
thority of The authority of barristers to appear in Consular Courts, a
barristers to matter mooted in the Supreme Court as far back as March,
appear in
Consular 1853, * some considerable time afterwards assumed a practical
Courts. form by Messrs. Bridges , Kingsmill, and Green addressing a
memorial to the Earl of Clarendon praying to be permitted to
Messrs. practise in the Consular Courts . It may be added that the
Bridges,
Kingsmill, right became a matter of question on the occasion of an action
and Green
memorialize against Messrs . D. Sassoon , Sons, & Co. , on a returned bill, on
the Earl of which occasion Mr. Alcock, the Consul , refused to allow a bar-
Clarendon.
rister to appear for the defendant although he could not speak
English.
Sir John Her Majesty's Plenipotentiary had previously suggested to
Bowring
suggests the Chief Justice, in order to avoid any collision by action , that
matter be the question ofthe right of barristers to plead in Consular Courts
referred
Home might be referred to the Home authorities, to which the Chief
and the Justice assented. Pending the application, Sir John Bowring
question of
the right further suggested that the claims of the barristers might be
meanwhile suspended . This the Chief Justice refused, and gave an order
suspended .
that counsel should be heard while the matter was under refer-
ence at Home, although at the same time Mr. Hulme offered to
suspend the right claimed for the lawyers, upon an order from
the Plenipotentiary, which that functionary, however , declined
The Chief
Justice's to issue. As may be seen , therefore, the right of counsel to
decision appear in the Consular Courts had ever been stoutly resisted
and offer.
both by Superintendents of Trade and Consuls , and although
the Chief Justice had determined otherwise, that did not satisfy
the Diplomatic Department when, as stated previously, the prac
titioners above mentioned decided upon memorializing the
The right Foreign Office. The following favourable reply was received
recognized some months afterwards : -
by the
Foreign Foreign Office, January 9, 1856.
O.fice.
Gentlemen, -I am directed by the Earl of Clarendon to acknowledge the
receipt of your memorial, urging your claim as barristers practising at the
Hongkong Bar, to be admitted to practise in the Consular Courts, and I am
to state to you in reply that Sir John Bowring has been informed that Her
Majesty's Government have assented to your application.—I am, &c., &c .,
E. HAMMOND.
To Messrs. BRIDGES , KINGSMILL, and GREEN.
* See antè Chap. XIV. § I., p. 332.
 COUNSEL IN CONSULAR COURTS . 375


The whole question of the admission of barristers and attor- Ch . XVI § II.
neys in Consular Courts arose from egregious blunders com- 1856 .
mitted by two talented Consuls at Canton. * If the more able The egregious
blunder in
Consuls could err, a great deal more might be expected from refusing
the others, and the authority nowgranted was not unfavourably the right.
commented upon, seeing especially how seldom the services of
counsel would be required in the Consular Courts. Singularly
enough, the first employment the local Bar had in Canton was
at the American Consulate, the American Consul having per- Privileges
mitted two barristers† to appear in the case of Russell, Sturgis , extended
& Co. , and Nye, Brothers , & Co. This was mentioned as a sin- English
to the and
gular instance of liberality, but it may be mentioned that the American
same privilege was afterwards extended to the American Bar other'sBar by each
by Chief Justice Sir Edmund Hornby when opening the new Consulates.
Court in Shanghai in September, 1865 .

This was also believed to be the first time that an English First time
Crown lawyer had been permitted to appear in an American an English
Crown
Court of Justice since the Declaration of Independence in 1776. lawyer
Mr. Anstey, however, was only an English Crown lawyer with- permitted
to appear
in the bounds of the Colony of Hongkong, and therefore in an
American
merely appeared as a simple barrister, nor was it a new thing Court of
for English lawyers to practise in American Courts of Justice, Justice
since
as Mr. G. Cooper Turner, the solicitor with Mr. Anstey, was Declaration
of Inde-
on the rolls of the Court in California.§
pendence.
The Chief Justice was so far recovered as to be able to pre- Recovery
side at the Criminal Sessions which commenced on the 28th of the Chief
Justice.
February and concluded on the 3rd March. Twelve o'clock He presides
being the hour fixed for the opening of the Court, a considerable at the
February
number of the community came to welcome the return of Mr. Sessions.
Hulme to the Bench after his long illness, but His Lordship did The com-
munity
not appear for upwards of an hour after the appointed time ; welcome
this happened on the first two days of the Sessions , and many his
the return
Bench.to
went away before the business commenced . This was not the No Chinese
fault ofthe Chief Justice, however, for he was waiting in his Cham- Interpreter
present
bers until advised that interpreters had been provided , which was until late
not done till ten minutes past one o'clock. Mr. Anstey appear in the
afternoon.
ed for the first time as Attorney-General. The local opinions
of the time agree that he conducted the prosecution with much Mr. Anstey's
ability and with more fairness and leniency towards the pri- first ap-
soners than they had been accustomed to, but in one instance pearance
Attorney-as
he was considered far from lenient when he succeeded in urging General.

As to Mr. Elmslie, see antè Chap. XIV. §I., p. 332.
† Mr. Kingsmill, counsel, with Mr. Henry J. Tarrant, solicitor, for plaintiffs ; the
Honourable Mr. Anstey, Attorney-General of Hongkong, counsel for defendants ' trustees
and creditors, with Mr. G. Cooper Turner as solicitor.
See Vol . II., Chap. XLII.
See antè Chap. XV. , p. 350.
376 HISTORY OF THE LAWS , ETC. , OF HONGKONG .


Ch . XVI § II . the Court to commit two Chinese witnesses for perjury. The
1856 . calendar was a heavy one, both as regards the number and
Two Chinese nature of the crimes committed , in one case eight men and in
witnesses
committed another two being sentenced to death. The first case was that
for perjury. of Tsung Achew and seven other Chinese for murder and bur
Heavy
calendar. glary at a silversmith's shop on the night of the 1st January at
Large East Point when a gang of armed burglars attacked the pre-
number
sentenced mises, killing one sepoy and wounding another, both in the
to death. employ of Messrs. Jardine, Matheson, & Co. , and who had gone
to the assistance of the inmates of the shop . The eighth pri
soner was discharged from the dock, not having been identified ,
and the jury returned a verdict of guilty against the remaining
seven, recommending one of them to mercy and against whom
sentence of death was recorded , the others being sentenced to
Doubts as to death. Grave doubts having been raised afterwards as to the
guilt of some.
guilt of some of the prisoners, a searching investigation took
place on the 22nd March, and on the 26th a proclamation
Commuta- appeared commuting the sentence of death against six to trans-
tion of
sentences. portation for life and granting a free pardon to the seventh.
This robbery, taken in connexion with another as serious , seem-
ed to have alarmed the authorities somewhat, for a considerable
Increase of increase to the Police Force was immediately ordered . In the
Police Force. other case, the two men sentenced to death for murder, Shun
Execution
of Shun Ah Muen and Lee Ah Foo, were executed within the precincts
Ah Muen
and Lee of the Magistracy compound on the morning of the 29th March.
Ah Foo.
A tremendous fire broke out in the business portion of the
Disgraceful
conduct of town on the 23rd February, eighty houses, ofthe estimated value
the Police
at an of $ 100,000 , being destroyed, and seven men losing their lives.
extensive The conduct of the Police during the fire was deplorable, the
fire in the
town. iniquities brought to light justifying the conviction that no
Police at all would have been preferable to the existing Force.
Thefts by
Indian The Chinese complained bitterly of the thefts by the Indian
Police. Police -contents of tills being removed while occupants were
engaged removing the contents of their shops . Nor was the
Spoliation
by European spoliation confined to the Indian part of the Force-the Euro-
and Ameri-
can element pean and American element in it also coming in for public
in the Force. criticism.

Mr. Anstey On the 4th March Mr. Anstey was gazetted a Justice of the
gazetted a
Justice of Peace, and on the 5th an important Ordinance, dealing with
the Peace. Chinese Wills ( No. 4 of 1856 ) , was passed by the Legislature,
and soon after, through the exertions of the Attorney - General,
Ordinances
Nos. 5, 6, three new important enactments became law ; these were
and 7 of Ordinances Nos . 5 , 6 , and 7 of 1856 , relating to Common Law,
1856.
Criminal, and Chancery Procedure, all passed on the 17th
March, 1856.
 LAW RELATING TO REAL PROPERTY IN CHINA. 377


A question having arisen as to the law by which contracts Ch . XVI § II.
entered into with Her Majesty's subjects on Chinese territory 1856.
by Chinese subjects for the cession of property in China should Law relating
to contracts
be regulated , and Mr. Bridges , when acting Attorney -General, with British
having advised " that the Chinese were to be considered as be- subjects
Chinese on
yond the pale of civilized nations, and that therefore such con- territory by
tracts were to be regulated by the law of England, " the matter Chinese
subjects for
was referred to the Home Government, and by Lord Clarendon cession of
to the law officers of the Crown, namely, Sir A. J. E. Cockburn , property
China. in
Attorney- General, and Sir Richard Bethell, Solicitor- General . Opinion of
Mr. Bridges
Their opinion was as follows : - that the
"We are of opinion that British Tribunals and Judicial Authorities in Chinese are
China are bound to observe the rules and principles of Public or International beyond the
pale of
Law, as they are settled and received by the common consent of European civilized
natious. nations
We do not concur in the conclusion of the acting Attorney-General, that repudiated
by Home
the Chinese are to be considered as beyond the pale of civilized nations. Government.
In all questions that may come before any British Tribunal in China The opinion
relating to the ownership or occupation of houses or lands, lying within the of the law
dominions of the Emperor of China, the law and custom of China, if they officers of
the Crown,
can be ascertained , must govern the decision, unless by the terms of the con-
tract the law or usage of some other country be imported into it ; and if in
any such case the Chinese Law cannot be ascertained , the decision must be
governed by the principles of natural justice. There is no pretence for the
introduction of the English Law of real property.
It is an universal principle of Law in Europe, that in all questions re-
specting immoveable property, the ' lex loci rei sita ' prevails ; and we think it
both right and useful that the same rule should be acted on in the adminis-
tration of Justice in China."

Some months back, a Commission had been issued by the Gov- Commission
ernor to certain officials to inquire into the system under which to inquire
into constitu.
the Police Force at Hongkong was constituted and governed . At tion of Police
Force.
the time some witnesses were examined , but, owing probably to
the expected arrival of Mr. Anstey and the contemplated depar-
ture of Mr. Bridges, the acting Attorney- General, who was on
the Commission , the proceedings were dropped, and on the 20th
March the Governor re-appointed a Commission , the names of
the Commissioners , however, being left out in the notification .
At the same time Sir John Bowring inspected the Force at the Inspection
of Police
Government Offices, there being present twenty-six European, Force by Sir
one hundred and seventy-three Indian, and nineteen Chinese out John
Bowring.
ofa total of two hundred and thirty-nine men. His Excellency
expressed himself much pleased with the appearance of the men,
but the wish was expressed that he had had cause to be equally
pleased with the performance oftheir proper duties . The reverse
of this was said to be the case.

Lately there had been numerous desertions from the ranks of Numerous
the 59th Regiment. It being suspected that a number of deser- desertions
* See antè p. 361,
378 HISTORY OF THE LAWS, ETC. , OF HONGKONG.

Ch. XVIII. ters were secreted on board the American whaler Canton Packet,
---
1856. Inspector Jarman with a party of Police proceeded on board
from the 59th that vessel on the evening of the 27th March, when nine were
Regiment.
Nine found ferreted out of their hiding places . These were so cunningly
on board an designed and well concealed that it required the scaldings of boil-
American
whaler. ing water and pricks from sharp swords before the renegades
were compelled to unearth themselves . *


Mr. Hillier, From time to time charges of gross carelessness in his magis-
Chief
Magistrate. terial capacity had been laid at the door of Mr. Hillier , the Chief
Magistrate. On Monday, the 31st March, at the Criminal Ses-
Charges sions, this carelessness was prominently brought to the notice of
of gross
carelessness . the Court by the Attorney - General, who, in Mr. Hillier's presence,
How Mr. stigmatized certain depositions under his hand as " the most
Anstey
characterized slovenly and careless depositions he had ever seen. " The case
the deposi which brought this most prominently forward was a charge of
tions taken
by Mr. burglary against two Americans named Forest and Wise, and an
Hillier.
Englishman named Oliver, and a Chinese named Ayow, the first
Regina r. two being Police Constables. On being cross - examined , it came
Forest, Wise,
Oliver, and out that none of the witnesses positively identified the prisoners
Ayow.
at the Police Court. The principal witness , who swore positively
as to the identity in the Supreme Court, said that at the Magis-
trate's Court she swore she could not identify the prisoners . The
Attorney-General to the Court : " This is rather important
evidence, but none of it appears in the depositions taken before
the Magistrate's Court " ! Mr. Anstey then proceeded to charac-
terize the depositions in the terms stated above. The Court
The Chief thought it was very material that the evidence as to identity
Justice
directs Mr. should have appeared, and directed that the Chief Magistrate
Hillier to be should be sent for to explain the depositions . On Mr. Hillier's
sent for. arrival he was sworn . All the explanation he could give was,
that he had taken most particular care in taking these very
Extraor depositions ; that he had taken down everything that he thought
dinary scene
the relevant. Then arose the following extraordinary conversation,
Court. which is taken from the records of the time, between the Court,
Hillier, Mr. Hillier, and the Attorney- General : ---
Mr. the
and
Attorney-
General.
The Chief Justice- (staring with surprise at Mr. Hillier) .- Do you not
think it a relevant matter as to whether the prisoners were identified or not ?
Mr. Hillier.-I take down everything positive. I always ask if the
prisoners are identified , and if they are I put it down.
The Attorney- General. -Do you not think it necessary to take evidence
in favour of, as well as against, the prisoner ?
Mr. Hillier. -My duty is to take down positive and relevant evidence
in support of the charge. I do not remember whether the question was put
as to identity, but if the prisoners had been identified I would have taken it

* On this subject, see also antè Chap. XIII. § I., p. 323.
 MR . HILLIER IS TAKEN TO TASK BY MR. ANSTEY. 379


down, and can only say that I took great pains in taking down the evidence Ch . XVI § II.
in this case.
1856.
[ The Chief Justice here leaned back in his chair in a state of profound
astonishment at Mr. Hillier's ideas of evidence. ]
Mr. Hillier-believing that he had fully satisfied the Court, then pro-
ceeded -- My Lord , I am informed that the Attorney-General has been
maligning me behind my back, and I now wish him to say to my face what
he then said.

The Attorney- General.--I have no hesitation in repeating what I said,
that the depositions are the most slovenly and careless depositions that I ever
saw.

Mr. Hillier.--Will the Attorney-General point out where they are
slovenly and careless ?
The Attorney- General.--I am not here to answer the questions of the
witness, but I do not mind telling the Chief Magistrate that I have just been
examining him upon some of the faults of which I complain in the deposi-
tions. Mr. Hillier
claims the
Mr. Hillier. - My Lord, I think it very unfair that a public servant in protection of
my position should be maligned behind his back, and I should feel much the Court
obliged if you would restrain Mr. Anstey from using the uncalled-for censure against Mr.
which he unsparingly uses against every person. Anstey.


In addition to the above, Mr. Anstey complained that the The Magis.
Magistrate and Coroner thought it merely necessary to write the Coroner
down " that one witness corroborated the other "- instead of merely
thought it
taking the evidence of each in full. After Mr. Hillier had with- ne
necessary
drawn, the case under consideration was proceeded with , and in to write
down " that
the end, being found unanimously guilty, Wise and Oliver were one witness
sentenced to ten years', while Forest and the Chinaman Ayow corroborated
the other."
received seven years ' , imprisonment with hard labour. Wise Conviction
and Forest were, as stated, Americans, and on the 10th and 24th of Forest and
November, 1858 , they both received a free pardon on conditioners for
burglary.
that they did not return to the Colony.


Mr. Hillier apparently had determined to gain public notoriety, Mr. Hillier's
re-appear
for, not satisfied with what had already taken place in open ce in
Court the day before in connexion with his capacity for discharg- Court.
ing magisterial duties, on the 2nd April, the last day of the His demand
Sessions, he again made his appearance in Court and repeated " for restrain-
his demand " for restraining the Attorney- General," adding at ing the
Attorney-
the same time that he had addressed the Colonial Secretary on General,“
repeated .
the subject, and concluding " If Your Lordship will give ine a He asks
memorandum of what evidence I ought to take down. I shall the Chief
attend to it ." This alone showed how ill-fitted Mr. Hillier was Justice
for a memo
for his position. The Chief Justice, astonished at the request randum
as to what
for a memorandum, said nothing. With regard to restraining evidence
the Attorney- General, His Lordship said that, as Mr. Hillier had he is to tak
down,
addressed the Colonial Secretary, the matter was taken out of The Chief
the hands of the Court. The Attorney - General called the atten- Justice's
380 HISTORY OF THE LAWS , ETC. , OF HONGKONG.


Ch. XVI § II. tion of the Court to the very depositions in connexion with the
1856. case in which he was then engaged and on which a scene of
demeanour crimination and recrimination arose between him and the Chief
and reply.
Magistrate, the Attorney-General insisting, in his capacity as
grand jury, that the Magistrates had no right to decide what was
The jury and or was not corroborative evidence. In the course of the squab-
others as
spectators ble, during which , needless to say, the jury and all the rest in
during the Court were spectators , appreciating it or otherwise , the real
scene of
crimination value of depositions being taken in extenso came out incidentally,
and incrimi- viz . , that if the witnesses were dead, or absent, the words-
nation.
" this witness corroborates previous witness," would not be of
The real much use to be read at the trial. The Attorney - General also
value of
pointed out that the Coroner, Mr. Mitchell, who was then also
depositions
taken in present in Court, had said that when he put down these words,
extenso
disclosed . he did not ask the witness to sign them. Mr. Anstey further
stated that he had given the Chief Magistrate some hints at the
time which were gratefully received , but now were treated as of
no value. This Mr. Hillier denied , affirming that the memoran-
dum to which Mr. Anstey had referred had reference only to a
case then before the Coroner.


Mr. Mitchell Mr. Mitchell here stated that it was his intention to continue
admonished
by the Chief the practice condemned by Mr. Anstey. An admonition from
Justice. His Lordship, however, instantly set him right.

Discussion After further discussion as to the nature ofthe testimony to be
as to the
nature of taken down by the Magistrates, in which Mr. Day took part,
entirely agreeing with the Attorney- General, the Chief Justice
Chief
Justice says said , no doubt, the Attorney - General would draw up a memo-
Attorney- randum for the guidance of the Magistrates. The Attorney-
General
will draw General said it was not a very creditable state of affairs when
up a memo the Magistrates did not know what evidence they ought to take
randum for
guidance down , thought it not material if witnesses identified prisoners
of the or not, and above all wanted a memorandum to show them what
Magistrates , evidence they were to take down.
Mr. Anstey
on the
not very Mr. Hillier then replied " If the Government are not satis
creditable
state of fied with the way in which I discharge my duties , let them get
affairs ' as some one else to do them." In this the Attorney-General said
to the
Magistrates. he concurred, and thought it was high time, and so probably,
Further as was remarked locally, would most people have done, if it had
fencing been possible to give the position to a regularly educated
between
Mr. Hillier lawyer, but as that for the moment seemed doubtful, a great
and Mr.
Anstey. deal of fencing in public between the Attorney- General and
the Chief Magistrate might have been spared.

Criminal Some of the cases tried at this Sessions were of the worst
Cases of
the worst description as regards the Police Force especially. In another
 INTERPRETATION AT CRIMINAL SESSIONS . 381


case different from the above, two Indian Police Constables for Ch. XVI § II.
extortion were found guilty and sentenced to two years ' impri- 1856.
sonment. George Brady, another Police Constable, charged description
against
with robbery with violence, was acquitted on the ground of in- the Police.
sufficient identification. In another case against the Police , Conviction
Constable Carvalho was sentenced to six months ' imprisonment of Indian
Police for
with hard labour , for attempted extortion of money from Chi- extortion.
nese emigrants . P.C. Brady
charged with
robbery.
Police reformation was the crying want, and a worse Force Case against
P.C. Car
than that of Hongkong then was not conceivable. valho for
attempted
The Court occasionally had not unwillingly lent a favourable extortion.
Police
ear to prisoners whenever they applied for the assistance reformation
the crying
ofcounsel to defend them before the Criminal Sessions, and at want.
the present Sessions William Kelly, charged with stabbing Prisoners
with intent, begged the Court to allow him counsel . Mr. and the
assistance
Kingsmill, on a hint from the Chief Justice, tendered his services, of counsel.
as did likewise Mr. Cooper Turner, as attorney. Messrs.
Kingsmill
and Cooper
The interpretation at this Sessions was also very bad and Turner
was the cause of the Sessions coming abruptly to an end, one in
appointed
Court
Chinese prisoner remaining untried at the request of the jury to defend a
European
on the ground of want of a proper interpreter. The Attorney- prisoner.
General said he gladly acquiesced in the recommendation of the Interpreta-
jury-he had repeatedly throughout the Sessions expressed his tion again .
Criminal
opinion of the interpretation. † The Chief Justice told the Jury Sens
he had written to the Governor on the subject, and had recom- end abruptly
owing to
mended that Mr. Caldwell should be re- engaged . Thus ended the want
of an
this extraordinary Sessions.
interpreter.
Mr. Anstey's
On the 2nd April, Mr. Robert Goodings , the Gaoler, died . opinion
of
He had for upwards of twenty years been the servant of the othe interpreta
Home and local Governments in various capacities . On the tion."
4th of the same month the death took place at Larkbear, Exeter, The Chief
of Mr. Charles Bowring, the father of Sir John Bowring. says he
has recom-
mended the
The sweeping changes introduced by the recent Ordinances re-employ
ment of
affecting the procedure of the Courts without the lawyers having Mr. Caldwell.
in any way been consulted beforehand by the Attorney- General, Death of
as was to be expected , proved more than unpalatable to the the Goodings,
gaoler,
legal profession, and the attorneys of the Court accordingly
memorialized the ChiefJustice requesting him to obtain from the
On this subject see antè Chap. XIII . § I., pp. 325, 326, and references there given.
On the question of interpretation, see ante Chap. XI., p. 223 ; Chap. XII . § I., p.
294; Chap.there
references § I., .p. 327 ; Chap. XV. , p. 349 , and antè pp. 361, 362, 371 , and other
XIII.given
Ante p. 361 and reference there given.
§ Antè P. 376.
382 HISTORY OF THE LAWS , ETC. , OF HONGKONG .

Ch. XVI § II. Legislative Council a suspension of the Ordinances Nos . 5 and 7
1856. of 1856 , in order that they might obtain the necessary books of
The attor- practice and Acts of Parliament. This memorial the Chief
neys of
the Court Justice considered reasonable, and recommended it to the Council,
memorialize in which recommendation he was supported by the Honourable
the Chief
Justice for a Mr. Edger. The reply, however , was that, by the advice of
suspension the Attorney- General , the Governor declined granting the time
of Ordi-
nances Nos. 5 required by the attorneys to make themselves acquainted by the
and 7 of 1856. law." The worst part of this refusal, however, lay in the fact
They wish
to obtain the that both the members of Council had only consented to the
necessary Ordinances coming into force on the assurance of the Attorney-
books of
practice and General that the attorneys were all prepared. The application
Acts of of the attorneys gave an emphatic and formal denial to the
Parliament.
The Gov- assertion of the Attorney- General, who said that it was by the
ernor's request of the attorneys that the thing was passed through,
refusal.
naming one in particular. To this the attorneys gave another
emphatic denial , and would have embodied the same in a letter
to the Chief Justice had not the Governor been so very sharp
in his decision , which, after all, might not have been looked upon
as a very valid one as it had been given without the full consent
Improper of the Legislative Council. At all events it was improper, in
conduct
of Mr. the highest degree, that the Attorney- General should have
Anstey as opposed himself to the head of the Court who had to administer
regards
the Chief the laws, and who was responsible for their corrrect administra-
Justice in
tion, while the Attorney- General was not, and when that head
the matter. expressed his opinion in favour of the unanimous and reason-
able request of all the members of the lower branch of the
profession .
Sir John Sir John Bowring would have showed more sense had he
Bowring taken the advice of the Chief Justice rather than that of one
criticized.
new to the Colony and who, during his short residence, had
already shown but little discretion .
The at-
In consequence of the shabby treatment they had received, the
torneys
hold a
attorneys held a meeting on Friday afternoon , the 16th May,
meeting to
procure that when it was resolved to memorialize the Government that, in the
Ordinances
event of any Ordinance affecting them being brought before the
affecting
them be Legislative Council in future, it be published for their, and
published
future in general information , before it was passed . *
before being
passed. The April Criminal Sessions were ended in less than two days
April with only one remanet . The interpreters are said to have dis-
Criminal
Sessions. charged their novel functions with ability and fairness , and the