the-history-of-the-laws-and-courts-of-ho — Page 7

gun-fire the next morning. Crime was so rampant at this period
that a correspondent of the local paper, signing himself “ An
Old Stager," advised the residents, who had not yet been robbed
"but who would soon be," " to nail their boxes to the floor , lock
them and sleep with a good pair of loaded pistols under their
pillows, for as soon as the moon got into her first or last quarters,
the robberies began. " Amongst others robbed during the year,
the Governor and the Chiefand Assistant Magistrates had equally.
been victims. The Chief Magistrate, with the co -operation of the
30 HISTORY OF THE LAWS , ETC. , OF HONGKONG .


military and naval authorities had carried out his threat of
sending away from the island a band of miscreants who had
made Hongkong their home, but where he derived his powers
from or with what result the expulsion was effected , is not
apparent. The town up to this period was not lit at night, and
it was dangerous to move out at all without running the risk of
being attacked .
Curious
Sentences. An instance of the curious sentences passed at this period
was that inflicted for robbery upon a Chinese convert who
wore European dress , doubtless with an object . He was
sentenced to receive sixty strokes, and to hard labour for four
months. With
With his
his "" queue " cut off, a little before sunset, the
culprit was marched off from prison dressed in his own clothes
and paraded down the Queen's Road , then , in the presence of a
large concourse of Europeans, Lascars, and Chinese, flogged by
a European, who, the report says, " did not strike the blows so
severely as the usual rattaner would have done. " After receiving
this portion of his sentence, the man was taken back to Prison.
Early history
of the Gaol. The following interesting report, taken from the records of
the time, shows the number of criminals , European and Chinese,
lodged in the gaol at Hongkong from the 9th August, 1841 ,
the date of its institution , to the 8th September, 1843. It
is also illustrative of the working of the prisons and the mode
of punishment of prisoners in the earliest days of the Colony
and fully descriptive in respect of every detail connected with
that institution , besides showing that the Governor himself at
times had acted as a Magistrate, or that such cases as he had
himself dealt with had been referred to him for adjudication
under the Chief Magistrate's warrant of appointment of the
30th April, 1841 : —

"This record is in two parts. The first contains the names of 482 prisoners,
of whom 430 are Chinese, 28 Lascars, 9 Portuguese, 5 Sepoys, 1 American,
the others are Europeans. The second part contains the names of 134 persons,
nearly all of whom are European seamen. Among this number, there have
been a few, perhaps 20 soldiers, who have been sentenced by Court-martial.
The others the seamen have been sentenced by the Marine Magistrate,
excepting a very few, upon whom sentence has been passed by the Governor.
Their punishment has been solitary confinement, which has varied , in
different cases, from two to 84 days. Generally, the confinement has con-
tinued for two or three weeks .

The prison, in which they are confined , is 64 feet by 30, divided into two
rows of cells, twelve in all. The rows are separated by a passage about eight
feet broad. Each prisoner has usually, if not always, had a separate cell,
which is clean, well lighted and ventilated ; and each person is provided
daily with a pound of beef and a loaf of bread . On the 22nd of May, 1843,
two Europeans were sentenced, by Court-martial, to be transported for life.
The crimes of the seamen are, for the most part, disobedience to orders and
disorderly conduct.
 INTRODUCTION. 31

With the sailors, and often with the soldiers too, drunkenness is the crime,
or immediate “ cause " of the crime, for which they have to endure punish.
ment.
For the lodging of the Chinese prisoners, two buildings are appropriated ,
one 79 feet by 29 ; the other 49 by 16 feet. There is a square open court,
between them, about 78 feet by 30, in which the prisoners can air and wash
themselves , take exercise, etc. The largest of these two buildings is divided
into two apartments, one large and one small, both occupied by the labouring
gang ; both have good floors, are without ceiling, and well ventilated .
The smallest of the two buildings - designed for persons not sentenced ~
contains three rooms, each 17 feet by 16, with floors and beds ; on one side
of these rooms is a broad verandah, protecting them from the heat and rain,
and rendering them not less, but rather more, comfortable than they would
be in the common houses of the middling classes of the Chinese.
The punishments inflicted on the Chinese are flogging, hard labour, and
confinement. All, or nearly all, are flogged , the number of blows varying
from 20 to 100. Few only receive a hundred, many have 40 or 50, the latter
number is the most common. These are given in public. The criminal,
with a label on his back, written in Chinese characters, is conducted from
the prison to the whipping stand at the west end of the Upper Bazaar, and
there undergoes the sentences of the law, and returns again to prison. The
labouring convicts, and those in confinement, are kept with irons on their
legs, which renders escape difficult. Still a few, in all about twenty, have
made their escape, principally during the first year after the prison was built.
During the last twelve months, only two have escaped, and these while out
at work, as were, indeed , many of the others.
The period of imprisonment has varied in length from two days to four
years. Two only have been sentenced to four years ; two to three years ;
four to two years and six months, twenty-three to two years ; twenty-four
to eighteen months ; two for one year ; the remainder all for a less period.
Twenty-two of these Chinese prisoners were sent from Chusan by the Com-
mander-in-Chief of the Expedition . These were not subjected to flagella-
tion ; they arrived in May or June, 1842, and were released in October, soou
after the announcement of the news of peace.
For food the Chinese prisoners have been constantly supplied with rice, in
quantities as large as they can consume, and occasionally they have had salt
fish, vegetables, etc. The purveyor of the prisoners has been allowed, for
each man, one dollar and a half per mensem . This sum, he says, has been
more than sufficient in the hot months, while in the cold season it has been
barely enough to cover the monthly expenditure. For drink they have had
pure water from the hills. Their clothing and bedding have been such as
they have been able to procure for themselves, except on one occasion, when
a quantity of jackets were furnished to protect them from the winter's cold.
Those sentenced to hard labour have been employed principally on the
roads. They have been called out at 6 a.m. and returned at 5 p.m., and are
allowed one hour for breakfast, and one for rest at midday, Sundays always
excepted, on which they do no work, and which to them has been, as they
very appropriately call the Sabbath, au-si-yi " days of rest. "
The prisons stand just within the inclosure, which surrounds the premises
of the Chief Magistrate, directly below his own house, where they are under
the surveillance of a strong military guard, also just within the inclosure.
The scavenger's duties are regularly performed, at a given hour, every night ;
and the apartments are thoroughly washed out once or twice every week.
And the prisoners are always allowed a full supply of fresh water for wash-
ing and bathing. The site of the buildings is airy, and elevated perhaps
three hundred feet above the sea, from which it is distant fifty or sixty rods.
32 HISTORY OF THE LAWS, ETC. , OF HONGKONG .

The health of the prisoners deserves particular notice. Of the whole
number of Chinese and foreigners who have been confined only nine have
died. The average number in prison has been about sixty, and this for the
worst part of the three seasons of 1841 , 1842, and 1843. Of these nine,
some were debauched opium -smokers , who died for want of that which caused
their death. Two or three only died of fever. The total amount of sickness
has been very small. Most of the sufferings have been from cutaneous
disorders, contracted before entering the prison. Medicines and surgical aid
have always been administered promptly when required.
It might indeed be worth while to inquire, and to ascertain, if possible,
why there has been so much less sickness in the prisons than in the barracks
at Hongkong, during the last twenty-six months. Of seventy men in the
Artillery lines, not more than fifty were reported fit for duty ; while not more
than three, of nearly an equal number in the jails, were unfitted by sickness
to perform " hard labour." In not a few cases men have gone in sick, and
come out well."

Arrival of Major- General D'Aguilar, C.B , appointed to command the
Major- land forces in China and also Lieutenant- Governor of Hongkong,
General
D'Aguilar, whose co-operation afterwards with the civil authorities, in
C.B.
repressing crime , proved so valuable, arrived by H.M.S. Castor,
on the 27th December, 1843 , his Commission as Lieutenant-
Governor being duly published on the 11th January, 1844.
Conclusion, Such are the facts which constitute the earlier period of the
legal history of the Colony prior to the opening of the Legislative
Council under the Charter of Justice, and at their conclusion
may be said to have begun a fresh era in regard to the
6
administration of justice . Miraculous,' indeed , had been the
progress of the island at this stage, deserving the greatest praise
for those upon whom devolved the responsibility of settling the
Colony.
 33




CHAPTER I.

1844.


First sitting of the Legislative Council.- Exorbitant Table of Fees in civil matters
in Chief Magistrate's Court. -An Indian view.-Taxes on justice.--Increase of public
business.—Mr. C. B. Hillier, Recording Officer to Criminal and Admiralty Court.-
Macao-its tenure by the Portuguese. Consular Ordinance No. 1 of 1844.-Ordinance
No. 1 of 1881. - Slavery.--Ordinance No. 1 of 1844 disallowed .--Imperial Statutes on
Slavery.-Land. -Ordinance No. 3 of 1844.- Opening of Criminal Court.- First Court
held in China for trial by Jury.- Sir Henry Pottinger's address to the Jury.- Present.
ments by Jury.-True bills for murder. - Public opinion of the Criminal Court.--
Dissatisfaction at non-opening of Supreme Court under the Charter. -Dissatisfaction at
civil cases being determined by the Chief Magistrate.- Sir H. Pottinger endeavours to
appease public mind.-Ordinance No. 6 of 1844. -Complaints as to Executive and Legisla
tive Councils. - Crime and Police inefficiency.-The Chief Magistrate as head of the l'olice
and Prisons. -Capt. Haly, first Superintendent of Police.-Capt. Bruce succeeds Capt.
Haly -Regulation of boats and junks. - Suspicious character of native watchmen.-
Notice to householders.- Precursor of registration of Chinese inhabitants. - Major-General
D'Aguilar and military volunteers as an addition to Police Force. - Transportation.-
Queen's Order in Council of 22nd May, 1840. Act 6 Geo. IV.-Mr. P. I. Sterling, First
Attorney-General of Hongkong.-The Chief Justiceship.-Queen's Order in Council of
17th April, 1844.- Hongkong a place of trial for British offenders in China. -Supplemen
tary Treaty with China. Hostile comments.-- Home and French criticisms.- Sir Henry
l'ottinger vindicates himself.--The London Chronicle. - Registration of Chinese. - Public
opinion.-Ordinance No. 16 of 1844.- Retirement of Sir Henry Pottinger.-Approval of
his services by Her Majesty's Government.- Mr. J. F. Davis succeeds Sir H. Pottinger.
THE Legislative Council of Hongkong, constituted under the Chap. I.
Charter, assembled for the first time on Thursday, the 11th First sitting
January, 1844 , the Honourable Major - General D'Aguilar and of the
Legislative
the Honourable Major Caine, the Chief Magistrate, both pre- Council.
viously appointed members of the Executive and Legislative
Councils, taking the usual oaths and their seats, under a salute
from the Battery. Mr. Richard Burgass , the Legal Adviser to
the Government, previously mentioned , also took the oaths as
Clerk of the Council.

A table of fees to be taken in the Chief Magistrate's office in Exorbitant
civil matters, having been approved of by the Governor-in- Table in civilof Fees
Council, was published on the 18th January, 1844, for general matters in
Chief
information . These fees were generally considered exorbitant Magistrate's
and calculated to defeat the ends of justice . Much stress was Court.
laid upon this point and the attention of the English press
directed to the subject, regard being had especially to the fact
that the Magistrate in whose Court the fees were to be levied
was no lawyer at all, the gist of the comments being directed
doubtless to the necessity for the immediate appointment of a
Judge under the Charter. An Indian newspaper, commenting An Indian
view.
upon this table of fees, termed it extravagantly high and sug-
gested that, if the Legislative Council did not see the propriety
of reducing the fees, the community should refer the question to
34 HISTORY OF THE LAWS , ETC. , OF HONGKONG .

Chap. I.
-- the Imperial Government. In an action to recover $ 250 , the
1844. charge for a summons was $4 ; for a warrant to apprehend
after summons served , $ 20 ; for calling on the case for inquiry
or hearing it, $20 ; and the fee when the case was decided or
judgment entered up, $40, or altogether $ 84 of Court fees
to recover $250, or thirty -three per cent., and this , as the
paper remarked, independent of Attorney's and Counsel's fees.
Why," it continued to say, "the old Mahomedan Govern-
ment of India never exacted more than one-fourth of the
demand as the Government share of the suit, and this was
thought extremely oppressive and cruel. These fees were
either disguised to raise a revenue or restrain litigation , " —either
Taxes on
of which courses was thought impolitic. There is no maxim in
justice.
the science of legislation more indisputable than that taxes on
justice are the most imprudent of all taxes, as all legal taxation
has an inevitable tendency to restrain a resort to Courts dispen-
sing justice, and the heavier the taxation , the more complete the
denial of justice. Whatever the cause for thus levying such
heavy Court fees, suffice it to say that it was another of the causes
for discontent against the then form of Government and of the
legislature in particular, the table of fees under consideration
being one ofthe measures, it was alleged , of the legislative wisdom
of the " military lawgivers," the legislature being composed
then mostly of military men .
Increase of
Public business had now become so pressing that the Gov-
public
business. ernor intimated he could not devote more than one day in the
week in the future for the reception of visitors.
Mr. C. B. On the 19th February, 1844, Mr. C. B. Hillier, the Assist-
Hillier,
Recording ant Magistrate, received the appointment of " Recording Officer
Officer to to the Criminal and Admiralty Court, at Hongkong, " pre-
Criminal and
Admiralty sumably in succession to Mr. Alexander Scott, who had died
Court.
on the 24th August, 1843. This appointment, no doubt, was
made in anticipation of the early opening of the aforementioned
Court, for on the 24th February, 1844 , appeared a proclamation
that, on the 4th March following, there would be holden a
session of the " Court of Justice with Criminal and Admiralty
Jurisdiction for the trial of offences committed by Her Majesty's
subjects in the island of Hongkong or within the Dominions of
the Emperor of China."
Macao- its
The first Ordinance passed by the Governor-in - Council was
tenure by the the Consular Ordinance numbered No. 1 of 1844 of 24th
Portuguese.
Consular January, 1844, published for general information on the 26th
Ordinance
No. 1 of 1844. of January. Its purport was to render British subjects within
the Dominions of the Emperor of China subject in all matters
to the law of England, and to extend the jurisdiction of the
Courts of Justice at Hongkong over the same. By the fourth
 SLAVERY. 35


section Macao was included and deemed to be " within the Chap. I.

Dominions of the Emperor of China for the purpose of this and 1344.
other like Ordinances. When this Ordinance was drafted it
evidently had escaped the attention of the authorities that, if
Macao was not then in the proper sense of the term a Portuguese
possession, owing to the existing terms of their tenure of the
Settlement from the Chinese, at all events we could hardly,
under the circumstances, claim jurisdiction , in the absence of a
treaty, over those of our subjects who had resorted thither, and
that a gross breach of international law and etiquette had been
committed . The inclusion of Macao within the jurisdiction of the
Supreme Court was not made, ofcourse, without causing consider-
ble controversy in Hongkong and excitement at Macao, where it
was alleged not unnaturally that Macao was as much a Portuguese
Colony as Hongkong was British. * But all this, except as
matter of history, is no longer of importance. By the treaty
between Portugal and China , ratified on the 28th April, 1888 , the
latter confirmed in its entirety the second article of the protocol of
Lisbon of the 26th March, 1887 , which related to the perpetual
occupation and government of Macao by Portugal . By Ordi- Ordinance
nance No. 1 of 1881 ( 14th March , 1881 ), provision is made for No. 1 of 1881 .
the surrender of fugitive criminals fleeing to this Colony from
Macao to the latter Government.


On the 28th February, the local Ordinance, No. 1 of 1844, Slavery-
Ordinance
relating to slavery, was passed . That slavery in its worst No. 1 of 1844,
forms existed in the Colony was an undeniable fact, and it told disallowed.
much in favour of the authorities that the very first enactment
passed by them related to such an important subject and
had reference more to the Chinese than to any other nationality.
This single Ordinance alone, it was hoped , would ultimately lead
to desirable changes in the habits and customs of the Chinese.



• The matter really seemed to hinge upon the question whether the Portuguese had
sovereign authority in Macao or not, and certainly the Portuguese had not much to show
for this. H. M. Plenipotentiary and Superintendent of Trade, after the Ordinance had
been confirmed by the Home Government, in his instructions to the British Agent at
Macao, desired him, in case of any British subject being prosecuted by the Law Court of
that place, "to advise him to enter a protest against the jurisdiction.' Later on, accord-
ing to the testimony of Sir John Davis, as contained in his work on " The Chinese," he
showed that the Portuguese were at Macao by mere sufferance of the Chinese, that they
paid an annual ground rent, that their forts were inspected by Chinese officers, that the
Chinese levied duties on the Portuguese shipping, that a mandarin resided in the town and
governed it in the name of the Emperor of China, that the Portuguese were not allowed
to build new churches or houses without licence, and that the Chinese population were
entirely under the control of the mandarins. Sir John Davis added " nothing, therefore,
can be further from the truth that the Portuguese possess the sovereignty of that place,'
and it was doubtless acting upon that presumption that Captain Keppel, in June, 1849,
proceeded to release Mr. Summers, confined, as he believed, illegally in the Macao Gaol,
in the summary manner he did, as recorded in Chapter xi. infra. Chief Justice Hulme
subsequently held, in July, 1849, that Macao was not within the jurisdiction of the
Supreme Court of Hongkong-Robertson v. McSwyney, Chapter xi. infra.
36 HISTORY OF THE LAWS , ETC. , OF HONGKONG.


Chap. I. Not the least commendable part of the Ordinance was that
1844 . which declared that the emancipated slave who was unable to
earn a livelihood was to be supported by the Colony until he
was put in a way to support himself ; in the case of females
particularly, the propriety of this was obvious.


Imperial But the Ordinance was subsequently disallowed by Her
Statutes on
slavery. Majesty, as it was considered that the Imperial Statutes for the
abolition of slavery extended by their own proper force and
authority to Hongkong.

Land. Great dissatisfaction prevailed at this time amongst the resi-
dent holders of land at the course the Government was pursuing
in adjusting the land tenure and the claims of those holding
under grants made by the " Deputy Superintendent charged
with the Civil Government of the Island ." It was considered an
act of injustice on the part of Government to sell lands without
previously giving notice to the original holders ; for it was urged
that, in consequence of not having had notice of the intention of
Government to resume and sell such lots of ground as they might
be pleased to take from them, they were placed in a most disad-
vantageous position , and one in which they could not protect
themselves. The terms were considered unjustifiably hard and
without precedent, and the conduct of the Legal Adviser to the
Government at a recent land sale, who stood ready, it was alleged ,
" to brow beat down all opposition, " was strongly commented
upon.


In this connexion it may be mentioned that the Committee
appointed on the 21st August, 1843 , sent in a report to the
Government, dated the 4th January, 1844, that the sale of the
marine lots gave an average annual rental of nearly £ 350 per
acre, and, looking to the fact that this was the result of a public
sale, and that the purchasers were under the impression that
the time for which the land was disposed of was unlimited , they
recommended that all the marine lots hitherto sold or granted
should be recognized and confirmed for a period of 75 years,
excepting those which had been abandoned or forfeited, and
considering that, in some instances, the rate of annual rent at
£20 per quarter acre at which inland town lots had been sold
was too low, and in others too high, they further recommended
that all lots , other than marine, which had hitherto been granted
or occupied should be classified and rated according to a scale
determined with reference to locality.


On the 13th January, 1844, the Committee recommended
 LAND. 37

Chap . I.
a system of classification of lots ( other than marine ) for rental
as follows :- 1844.
At the rate of
No. of Classes. per acre per annum.
£. S. d.
1234 10 TO 1- ∞




160. 0. 0
120. 0. 0
100. 0. 0
80. 0. 0
5 60. 0. 0
40. 0. 0
7 20. 0. 0
8 12. 0. 0
9 6. 0. 0
10 3. 0. 0
11 2. 0. 0
12 1. 0. 0
13 10. 0

On the 28th February, 1844, Ordinance No. 3 of 1844 was Ordinance
passed for the registration by the Land Officer, in the Land No. 3 of 1844.
Office, of all dealings with land, or its disposition by deed or
will, and of judgments , and providing for the priorities of
registered documents, and the method of registration by memorial.
This Ordinance also provides for the deposit in the Land Office
of deeds and documents for safe custody and is still in force
without alteration or amendment.

As duly advertized , the Criminal Court opened on the 4th opening of
March, 1844, at ten o'clock in the forenoon . The Court was Criminal
Court. First
held in a temporary building near Government House . The Court held in
China for
Governor Sir Henry Pottinger, and the Lieutenant -Governor trial by Jury.
Major- General D'Aguilar, both sat as Judges of the Court, the
latter being in uniform , whereas the Governor sat in plain clothes.
Mr. Burgass officiated as Crown Prosecutor and Mr. Hillier as
Registrar . After the Court had been opened by Mr. Hillier
reading the proclamation stating the purposes for which it was
held, Mr. Farncomb, the Coroner, presented an inquest . Several
residents were called and sworn in as a Grand Jury, Mr. Patrick
Stewart being chosen foreman. His Excellency Sir Henry Sir Henry
address to the Grand Jury Pottinger's
Pottinger then read the following address to the
"Gentlemen of the Grand Jury, Jury.

In addressing you on your being sworn in, my remarks shall be as few and
brief as possible. We are assembled to-day to assist in the discharge of the
most important duties that can devolve on us as men and as members of
society : those of administering justice to our fellow-subjects and upholding
the laws of our country and the dignity and honour of our Gracious Sovereign .
In the wholly unprecedented situation in which I am placed, it would be
equally useless and preposterous for me to attempt to enlarge on the functions
you have to perform. I am not aware that the cases, which will be laid
before you, have anything technical or peculiar in them. You are, after
examination of the witnesses and full deliberation, to say whether these cases
come under the head of murder or the less criminal, though still highly
38 HISTORY OF THE LAWS , ETC. , OF HONGKONG.

Chap. I. serious charge, of manslaughter. Should you find any point of difficulty, I
--
1844. cannot say that I will instruct you in it, but this I may say, that I will
be happy to give my opinion backed by the best advice that I can obtain . I
will not dismiss you to your labours without reminding you that in all cases
where you have doubts it is a wise and humane principle of the law to give
the advantage of those doubts to the accused, and our observance of this rule
is more especially necessary when it is remembered that he can have no
Counsel to plead for him . * I wish to God my share of the investigations on
which we are about to enter had fallen into more qualified hands, but I can
at least promise that I sit here to exercise the most rigid impartiality as
well as to temper justice with mercy, and I am assured that you will most
cordially and anxiously unite with me in the same feeling."

Present- Immediately thereafter, Mr. Hillier presented the Jury with
ments by Jury.
indictment against a seaman of the Harlequin, a native of
Manila, charging him with the murder of the second mate on
the high seas . The Grand Jury then retired into an adjoining
True bills for room, and the Court proceeded to swear in petty jurymen. A true
murder.
bill was found against the seaman for wilful murder. A true

bill was also found against a marine artilleryman of H. M. S.
Driver for the manslaughter of a Chinese boatman . In the
afternoon , the seaman was tried before the Governor alone, the
General having previously retired , and a petty jury, who returned
a verdict of wilful murder against the prisoner , but recommended
him to mercy owing to the provocation he had received . Sen-
tence of death was passed , pending Her Majesty's pleasure , and
the Court then adjourned to the next day, the 5th March, when
the marine artilleryman stood his trial. According to the pro-
secution , it was alleged the prisoner was wearing a red jacket
when he committed the crime, whereas the prisoner proved
that on the day in question he wore a blue jacket . He was
acquitted . The Governor then briefly addre ssed the Jury and
thus closed the first session of a Court ever held in China for
trial by Jury.

Public The holding of a Criminal Court in Hongkong, though
opinion of
the Criminal in itself a novelty, and giving some satisfaction to the inhabi-
Court.
tants as a Court of superior jurisdiction in criminal matters
with power to inflict punishments, more adequate than
heretofore for the gravity of the offences committed , never-
theless caused disappointment as it was hoped that by the time
Dissatisfac- or before the Criminal Court would be opened, thelong expected
tion at non-
opening of and anxiously looked for Judge under the Charter would have
Supreme deemed,
Court under arrived and thus put an end to a state of things which was
the Charter. even at this early stage of the Colony, intolerable. The Court,
presided over by Sir Henry Pottinger, was said to have been a


" The denial of counsel to a prisoner in a criminal matter is seen in the 47th of the
laws attributed to Henry I. Sixty years ago this barbarous rule was still law in cases of
felony, being abolished by the 6 and 7 Will. IV.. c. 114." Note to ' Kyshe's Law relating
to the Attorney-General and Solicitor- General of England,' p. 69.
 THE CRIMINAL COURT . 39


complete failure. Sentence of death had been passed upon the Chap. I.
---
Manila seaman who neither understood the proceedings of the 1844.
Court, presumably through there being no interpreter present,
nor had had the benefit of counsel . The Court, moreover ,
had been held for the trial of British subjects and the prisoner
was a Spanish subject from Manila. The justice of the sentence
was not impugned , but it was felt that if the prisoner had had the
advice and assistance of a lawyer, the indictment as drawn up
would have been thrown out, and the prisoner walked away
from the bar a free man. As it was, the sentence was afterwards
respited . As far back as the 26th June, 1843 , the Charter had
been published , and yet the Supreme Court had not been opened.
As was pointed out, the extraordinary powers vested in the
Governor might have been unavoidable at a certain period, and
have been exercised in a spirit of moderation and equity ; but
now, however, there appeared no good reason why " military
laws " should still be enforced , and the arrival of the Judge was
therefore looked forward to with more than ordinary anxiety.


Sir Henry Pottinger, it was thought, would give a just deci-
sion so far as equity was concerned , nor was there any reason
to doubt the correctness of the opinions he might receive on
points of law from his legal adviser . Whatever degree of con-
fidence he might have in his own judgment, he was at any rate
placed in a delicate and unenviable position. Indeed , in his
address to the Grand Jury at the opening ofthe Criminal Court,
as will be remembered , Sir Henry Pottinger himself had deplored
the absence of a competent Judge, and " had wished to God that
his share of the investigations on which they were about to enter
had fallen into more qualified hands," so that the discontent at
the state of affairs then existing was not altogether uncalled
for, especially when civil cases , frequently involving points of
Dissatisfac-
tion at civil
law, were left entirely to the judgment of the Chief Magistrate,
cases being
rightly styled a " military magistrate.' It was stated that
determined
by the Chief
rather than submit to a decision which was only legal by Magistrate.
chance, the majority of the inhabitants had preferred foregoing
their claims than incur " the certain expense and uncertain
justice of the decision of a Judge who was totally unacquainted
with law." There was no confidence in the decision of the
Chief Magistrate on questions involving points of law . His
incapacity was notorious, and there was no redress " as justice,
or rather judgment, was only obtainable from this tribunal."
There was no cause of dissatisfaction with Major Caine himself
or with the gentleman who held the position of Marine Ma-
gistrate- Lieutenant Pedder, R.N. , --but it was the system which
had been allowed to go on without any improvement that was
objected to : "they mete out justice, " it was remarked , " ac-
40 HISTORY OF THE LAWS , ETC. , OF HONGKONG .


Chap. I. cording to the judgment which God had been pleased to grant
1844. them ; equitably, in their own opinion , no doubt : they are far
above any intentional mal-administration of their respective
offices- this much for equity in this Colony-law, there is none. "
No wonder, then , that indignation had got to be so universal ,
and that there was a general wish that the Supreme Court, with
its complement of competent officials, should soon be opened.
Sir H. Pot- With a view to appeasing the public mind, as far as he could ,
tinger en-
deavours to Sir Henry Pottinger, on the 20th March, 1844 , passed Ordi-
appease nance No. 6 of 1844, which enabled him to refer all civil actions
public mind.
Ordinance or suits to arbitration , but which Ordinance was to cease to be
No. 6 of 1844. in operation " on the arrival of and assumption of duties by the
Judge of the Supreme Court. " Laudable in its object, as this
enactment was, it was subsequently disallowed by Her Majesty's
Government, doubtless because the Judge had already been
appointed and by the time the approval or disapproval of the
Ordinance would be received by the local authorities, for aught
was known, the Judge might be functus officio.
Complaints Complaints of the irresponsibility of the Executive, the imprac-
Execu- ticability of the redress of grievance, and the utter inapplicability
as toand
tive
Legislative
Councils. of the Legislative Council to the exigencies of the Colony were
now frequent. The Council consisted only of the Governor, the
General, and the Chief Magistrate , three military men, and with it
thus constituted , eight Ordinances had already been passed . Some
of these had met with disapproval, and Sir Henry Pottinger
was urged to defer the passing of any more until the arrival of
the Attorney- General and of the Judge , now shortly expected.
Crime and The incursion of thieves and the frequent daring robberies ,
Police ineffi-
ciency. many going undetected and unpunished, by armed gangs , con-
tinued to cause alarm , especially among those ofthe community
who lived in unprotected localities . It was urged that the
attention of the Legislative Council should be speedily directed
to the formation of an efficient police force for the protection of
property and the lives of the inhabitants . It had long been a
source of complaint that the Chief Magistrate had not had an
effective force at his disposal, though he had frequently repre-
sented this to the authorities . He spared no personal exertions
in the execution of his arduous duties ; at all hours of the night
he was reported to be unremitting in endeavouring to appre-
hend the thieves who infested the island. It was suggested, and
not unreasonably so, that the police should be placed under the
control of an officer who would have no other duties to perform.
The Chief The Chief Magistrate had enough work on his hands during the
Magistrate day in his judicial capacity without adding that of a watchman
the Police at night to his labours , as he had recently been doing. Many of the
and Frisons. thieves were believed to come from the opposite shore of Kow-
loon, and it was suggested that the military and naval authorities
 CRIME AND POLICE INEFFICIENCY. 41


might be asked to afford some protection to the inhabitants . It Chap. I.
was not desired to exaggerate the dangerous condition of affairs , 1844.
the picture only required the trials of truth to rivet attention , but
it was a matter of fact that the Colony had not received that pro-
tection from Her Majesty's forces which it had a right to demand .
Half of the troops on the island , it was said, could well be drafted
into the Police Force ; and half-a-dozen boats stationed at well
known spots would render it almost an impossibility for the
thieves to cross unobserved . The opportunities for plunder,
and almost certainty of escaping undetected , or, if caught, the
mildness of British justice compared with that of China, were
said to be the causes for such hordes finding their way to
Hongkong. The island was now, it was believed , an asylum for
the very dregs of the Chinese population. Matters had become
so serious that it was deemed advisable, as a first step, at
once to relieve the Chief Magistrate of his immediate police
duties and to place an officer in charge of the police . This was
forthwith done by the appointment of Captain Haly, of the 41st Capt. Haly,
Madras Native Infantry, with the sanction of Major - General intendent of
D'Aguilar, as Superintendent of Police, on the 22nd February, Police.
1844, he being sworn in as a Justice of the Peace for " the
Colony of Hongkong and its dependencies and the Dominions.
of the Emperor of China " on the same day. This was the
first appointment of the kind since the foundation of the
Colony, the Chief Magistrate, Major Caine, having been, up to
this time, Chief of the Police and ofthe Prisons, in addition to his
other multifarious duties, though Mr. Hillier, the Assistant
Magistrate, had afforded him much assistance . Captain Haly's
services, however, being required with his regiment, he was a few
days after, on the 1st March, succeeded by Captain Bruce of succeeds
Capt. Bruce
the 18th Royal Irish Regiment. During the few days Captain Capt. Haly.
Haly had been connected with the Force, he effected many
necessary improvements , and it was with regret that the public
heard of his departure , his regiment leaving for India.
On the 2nd March, 1844 , consequent upon the " number of Regulation
of boats and
outlaws that had from time to time come from the mainland junks.
and adjacent islands to this harbour purposely to rob and steal ,
with a view to preventing similar outrages in future and in
order to repress the lawless practices of vagabonds," the Gov-
ernor passed certain rules for the regulation of boats and junks,
which were published both in English and in Chinese, stating
that the law would be carried into full effect with the utmost
rigour. The immediate result of this was that many boatmen
left for Whampoa and other adjacent places, but, as was rightly
observed, the inconvenience would not be long felt as respect-
able men would soon be found in large numbers for the wages
paid in Hongkong.
42 HISTORY OF THE LAWS , ETC. , OF HONGKONG .

Chap . I.
As a measure of police precaution , in consequence of native
1844. watchmen in private employ being suspected of being in league
Suspicious
character with robbers, the following notice issued by the Chief Magis-
of native trate was circulated among the European inhabitants : —
watchmen.
Notice to
house- NOTICE .
holders.
Chief Magistrate's Office , Victoria,

Hongkong, 9th March, 1844.

Householders and all persons having hired watchmen for protecting their
houses are hereby informed that the Reverend Charles Gutzlaff, Assistant to
the Chief Magistrate in the Chinese Department, has volunteered to make
inquiry into the character of all the watchmen in the island, many being
suspected of having leagued with robbers. It is therefore proposed that Mr.
Charles Gutzlaff should give to the watchmen (who may be sent to him for
inquiry) certificates in all cases where he is satisfied with the parties
examined, but no certificate will be given to watchmen regarding whose con-
duct Mr. Gutzlaff may have doubts, and these precautionary measures, it is
hoped, will enable Householders (should they please so to do) to discharge
watchmen who are not able to give a sufficient security for their good con-
duct. It is clearly to be understood that Mr. Gutzlaff is by no means respon-
sible, and that it is perfectly optional with parties to profit by this offer.

(Signed) W. CAINE,
Chief Magistrate.
Mr. Gutzlaff will devote two hours per day to the proposed measure from
10 to 12 a.m., commencing on Friday next, the 15th instant, until the exami-
nation is concluded .
Precursor of This, no doubt, was meant as the precursor of a system of
registration
of Chinese registration to be gradually introduced, for by a notification
inhabitants, published on the 22nd April, 1844 , it was announced "that the
registry of the native Chinese population , whether permanently
or temporarily resident in this part of the island ( Victoria ) ,
having with certain exceptions being completed , it was now
considered expedient " with a view to establishing in future a
perfect system of surveillance as well as to introducing the
Chinese plan of a municipal police with native constables and
sub-constables mutually bound for themselves under their
supervision, to extend the registry to all Chinese not hitherto
included ." This measure was favourably received especially hav-
ing regard to the object in view, and the wisdom of it was shown
that with it, and owing to greater vigilance shown by the anxiety
of the Governor equalled by the readiness with which his wishes
and suggestions were received and executed by the military
Maj.-Gen. commander, Major - General D'Aguilar, who had consented to
D'Aguilar
and military the Police Force being augmented by volunteers from the 58th
volunteers as Regiment, and to whom the residents were grateful for the
an addition
to Police measures he had taken to avert the nightly irruption of banditti
Force,
in Hongkong, daring robberies had considerably decreased , and
 SUPPLEMENTARY TREATY WITH CHINA . 43

Chap. I.
it was hoped that the system of registration would now be ex-
tended to the whole island. 1844.

On the 11th March, 1844, it was announced that henceforth Transporta-
all offenders under sentence of transportation would be sent to tion.
Van Diemen's Land and Norfolk Island , and the islands
adjacent to and comprised within the Government of Van
Diemen's Land (Western Australia ) . This was under the
powers conferred by an Order of the Queen-in - Council, dated Queen's Or-
der in Coun-
22nd May, 1840 , under the Act 6 Geo . IV. , c. 69 , relative to cil of 22nd
transportation . This proclamation was repeated by Governor May, 1840.
Act 6 Geo.
Davis on the 22nd June, 1844, but rescinded by proclamation IV., c. 69.
of the 26th February, 1845 , in consequence of instructions from
the Home Government that no provision had been made inthe above
Colony for the reception of convicts . The appointment of Mr. Mr. P. I.
Sterling,
Paul Ivy Sterling, Barrister -at- Law, as Her Majesty's Attorney- First Attor-
General for Hongkong, was currently reported in the Colony, ney- General
in April, 1844 , but nothing had yet been heard about the Chief of Hongkong.
The Chief
Justiceship except that the post had been fixed at £ 2,500 * per Justiceship.
annum, the London Observer remarking that it had been offered
to no less than seven barristers and successively refused by all ;
fear of the climate, it was said , being the reason . By an Order Queen's Or-
der in Coun-
ofthe Queen-in - Council, dated the 17th April, 1844, this Colony cil of 17th
was appointed as the place wherein crimes and offences com- April, 1844 a
Hongkong .
mitted by British subjects in China were to be tried , and the place of trial
Chief Justice was empowered to proceed thither similarly to for
offenders
Britishin
try offences . This Order was re-published in the Colony in China.
May, 1847 .
Much hostile comment on a supplementary
treaty with Supplemen
tary Treaty
China entered into by Sir Henry Pottinger, Her Majesty's with China.
Plenipotentiary , on the 8th October , 1843 , but only published ments.
Hostile com-
locally after ratification, now excited public attention . It
was said locally that the Governor had " signed and
sealed a compact sacrificing the shipping interest of the
country and injuring the Colony ; that as a soldier and a
diplomatist he had served his country faithfully, but
that this convention gave undoubted evidence of his total
ignorance of international commercial negotiations." The
objectionable points would appear to have been the 13th and
17th articles . The 13th provided that Chinese purchasing goods
in Hongkong were to ship them solely in Chinese vessels , and
the 17th provided that foreign vessels engaged in the coasting
trade were to pay the same charges at each port as those that
made the long voyage from Europe, thus compelling a vessel ,
loading here for, the ports to the northward, to pay charges four

• Afterwards increased to £3,000 on condition the holder should have no claim to
pension ; but as to this see Chap. xxvii, and xxxi., infrà.
44 HISTORY OF THE LAWS, ETC., OF HONGKONG.

Chap. I.
- times in the course of from a month to six weeks , and thereby
1844. raising the rate of freight to the great injury of the direct trade
between this Colony and the four new ports. The injurious
effect of the two articles was alleged to have made itself already
felt in Hongkong, and it was said, moreover, that the 17th article
was injurious not only to the shipping interests of all the Powers,
but principally to our own as forming the great bulk of the
Home and tonnage employed in the coasting trade. Criticisms upon the
French
criticisms. subject soon appeared in the London papers, and the French
press, notably the Journal des Débats , gave garbled accounts of
the discrepancies between different translations of the treaty,
pointing out at the same time that the translators had been
bribed , and Sir Henry Pottinger made the victim of an unworthy
Sir Henry trickery- supercherie. Sir Henry Pottinger afterwards, at a
Pottinger
vindicates dinner given him by the merchants of London on the 11th
himself. December, 1844 , at Merchant Taylors ' Hall, took occasion to
refer to this treaty and endeavoured to vindicate himself from
the charge of having published an incorrect translation of it.
He said :-

"A very erroneous impression went abroad, through, I believe, some papers
at Canton, that there had been some mistake committed in the treaty. This
is quite incorrect . It arose from the necessity of my making public an
abstract of the treaty, while the Chinese published the whole, and a transla-
tion was made with many important omissions. Having been asked seriously
whether there was any ground for the allegation that mistakes had been
committed, I am happy to say that there is no cause whatever for the alarm ."

It was, however, understood that no mistakes were actually
made in the treaty itself, that the Chinese copy was correct, and
the errors made in a first translation admitted , though, by a
very curious coincidence, the two clauses omitted in that transla-
tion were precisely those that were objected to. One of the
clauses , the 17th, that which imposed heavy tonnage dues on
coasting vessels , had been removed by treaty with the United
States . The other, it was said, " still hung like a mill - stone
The London round the neck of the Colony." The London Chronicle, speaking
Chronicle.
on this subject afterwards, said :-
" It was the French papers which spread the report that the Chinese treaty
was by no means as favourable as was supposed, for that the original con-
tained certain unfavourable stipulations which were not to be found in the
English copy. Sir Henry contradicts this, but unfortunately in a way that
must induce the French to persevere in their opinion. A fuller explanation
than that given in Sir Henry's speech would be highly desirable."
Registration
of Chinese. In regard to the registration system sought to be introduced
Public and hereinbefore noticed , on the 24th April, 1844, there ap-
opinion.
peared a notification to the effect that the " registration of the
Chinese inhabitants had been completed " with the exception of
those in the employ of Europeans, who were now requested to
take them to the office of Mr. Gutzlaff, the Chinese Secretary,
 RETIREMENT OF SIR HENRY POTTINGER. 45


to be registered. This was regarded as an impudent attempt Chap. I.
to deceive the people , for to have completed the " registration of 1841.
the Chinese inhabitants " in so short a time was to make one
believe a most arduous task had been performed, and that every
man was known to the Chinese Secretary and that he could
guarantee their respectability. The whole thing was considered
a farce, and probably not unnaturally so, under the circumstances.
It was said that to render such a task complete, time, talents ,
and perseverance were all required , and without them any plan
would prove unavailing, and the assertion that this work had
been performed in so short a period by a gentleman who had
other duties, both secular and clerical, to attend to, was scouted
as preposterous. As will be seen, the subject still continued .
to engage the attention of the authorities whose praiseworthy
efforts in this direction were all towards the abating of crime,
by the passing of Ordinance No. 16 of 1844 , for establishing Ordinance
No. 16 of
a registry of the inhabitants, of which more anon . 1844.

It was now known that Sir Henry Pottinger would be soon Retirement
relinquishing his duties as Governor and Her Majesty's Pleni- Pottinger.
potentiary in China. He had been continuously on active Approval of
his services
service since his first arrival in the Colony in August, 1841 , and by Her
had expressed a wish to be relieved of his duties, and which Government.
Majesty's
could not, considering his services, be reasonably refused him.
Rumour spoke of the appointment of Mr. John Francis Davis, Mr. J. F.
of the East India Company's service and formerly one of the Davis
succeeds
Superintendents of British Trade in India, as his successor . As Sir H.
the records afterwards show, the report proved correct , and also the Pottinger.
report that Sir Henry Pottinger would be leaving Hongkong before
very long. On announcing the appointment of his successor in
February, 1844, under the signature of the Foreign and Colonial
Secretaries of Her Majesty's Government, the Earl of Aberdeen
and Lord Stanley, the Queen was pleased to convey to Sir
Henry Pottinger Her Majesty's most gracious approval of his
whole conduct during his employment in Her Majesty's service ;
the regret the Queen felt that he should have been under the
necessity of relinquishing the trust which he had discharged
with so much zeal and ability ; and the announcement to Sir
Henry of Her Majesty's commands, to assure him that he retired
from Her service in possession of Her Majesty's entire approba-
tion and gracious acceptance of his services. This was coupled
with the declaration that Her Majesty's Government felt that
the energy and judgment he had exhibited in the negotiations
by which hostilities were brought to an end, and in those which
were afterwards required for consolidating the work of peace
which had been so happily accomplished and for placing the
relations between the two countries on a sound footing, justly
46 HISTORY OF THE LAWS , ETC. , OF HONGKONG.


entitled him to the highest commendation ; and that the duties
1844. which he had been called upon to discharge during his residence
in China had been various and complicated, and his zeal and
resources had overcome all difficulties .

The entire and unqualified approbation by Her Majesty and
her confidential advisers of all Sir Henry's acts as British Ple-
nipotentiary in China must have been as gratifying to himself
and his friends as it was destructive of every past or future
endeavour to give a false colouring to the estimation in which
his services were held by those most competent to judge of
their merits and most interested in their success . The reception
he afterwards met with on his arrival in England, as hereinafter
shown, moreover fully testified to the estimation in which he
was held and the value set upon the services he had rendered
to his own country and the world at large.
 47




CHAPTER II.

1844 .


Arrival of Governor Davis and Chief Justice Hulme. -The Hon. F. W. A. Bruce,
Colonial Secretary.-Mr. R. D. Cay, Registrar.-- Major Caine.-Lieut. Pedder, R.N.-
Previous career of Mr. Davis. - Previous career of Chief Justice Hulme. -Local opinion of
existing Courts.--Commissions of Governor Davis.-Establishment of a magistracy at
Chuck-chu, with Mr. Hillier as Assistant Magistrate. -Chief Justice Hulme appointed a
member of the Legislative Council. - Departure of Sir H. Pottinger.-Mr. Burgass accom-
panies Sir H. Pottinger.- Delay in departure of Sir H. Pottinger, owing to misunderstand-
ing with Admiral Cochrane.--Arrival home of Admiral Parker.- Sir H. Pottinger's career
in China. His difficulties in first settling Hongkong.--His legislation.- His arrival in
England. -Honours bestowed on him.- His return to Ireland. -Character of England
raised by Sir H. Pottinger.-England's policy in China.-Universal commerce.- Magna-
nimity of England unparalleled in the annals of nations.--Desecration of day of rest in
Hongkong.-Order of Governor-in- Council as to Sunday observance.- Governor's Circular
to European firms regarding night Police.- Lighting of the town. The residents con-
sulted.--Indian night Police raised . - No mutual sympathy between the Indian and the
Chinaman.--Table of fees in Police Magistrate's office.- Crime and lighting of the town.
Ordinance No. 5 of 1844.-- Mr. H. C. Sirr.-Mr. B. Robertson.--Mr. R. B. Jackson .--
Piracy.-Arrival of Mr. Sterling, the Attorney-General.- State of judicial affairs at this
period .--Mr. Sterling gazetted a member of the Executive Council.- Tenders for buildings
at Chuck-chu and for Police Stations.--Chinese watchmen and bamboo-striking.--Chinese
custom of bamboo-striking.--Fine imposed by Chief Magistrate for contravening the order
against bamboo-striking.-- Bewailings of Hongkong people in consequence of stoppage
of bamboo-striking. -Ordinance No. 5 of 1844, section 1.- Major-General D'Aguilar instru-
mental in stopping bamboo-striking.--Ordinance No. 17 of 1844. -Governor Davis inspects
northern ports. Major-General D'Aguilar administers Government pro tem. -Renewed
complaints at non-opening of the Supreme Court.--Chief Justice Hulme abused in conse-
quence.- Skit upon state of affairs.--Result of scandalous delay in opening Supreme Court.
Ordinance No. 6 of 1844.- Ordinance No. 15 of 1844.-Ordinance No. 6 of 1845 .--
Ordinance No. 2 of 1846.

AT length, on the 7th May, 1844, H.M.S. Spiteful arrived Chap. II.
from Bombay, having on board a large number of the long ex- Arrival of
pected and anxiously looked for important officials for the Governor
Davis and
Government of Hongkong, among these being His Excellency Chief Justice
John Francis Davis previously mentioned, Governor and Her Hulme.
Majesty's Plenipotentiary and Chief Superintendent of Trade
in China, in succession to Sir Henry Pottinger, whose intended
retirement and early return Home had long formed the subject
of speculation, the Honourable Frederick W. A. Bruce, The Hon. F.
W. A. Bruce,
Colonial Secretary, the Honourable John Walter Hulme, Colonial
Esquire, Chief Justice, and Mr. Robert Dundas Cay, Registrar Secretary.
of the Supreme Court. Early in the morning, the next day, Mr.
Cay,R.Regis
D
Wednesday, the 8th, Mr. Davis landed , being received with the trar.
honours due to his rank. On the same day he was sworn into
office by the Legislative Council , and a notification duly appeared
giving the appointments beforementioned , and announcing that


* He was also a barrister, and a brother of the Earl of Elgin, Governor-General of