JUSTICE FROM THE SUPREME BENCH.
On October 6th, 1879, Sir John Smale, the Hon. Chief Justice for Hong
Kong, passed judgment in three cases on prisoners convicted of various
degrees of crime connected with the enticing, detaining, buying and
selling of children. Governor Hennessy, in reporting the remarks made
by the Chief Justice on that occasion to the Secretary of State for
the Colonies, pronounced it "an able and elaborate judgment on the
existence of slavery at Hong Kong."
Said Sir John Smale:
"Various causes have occasioned delay in passing sentence, of
which I will only refer to one: The gravity of the fact that these
and other cases have recently brought so prominently to the notice
of the Court that two specific classes of slavery exist in this
Colony to a very great extent, viz., so-called domestic slavery,
and slavery for the purposes of prostitution. The three cases now
awaiting the sentence of the Court are specially provided for by
Ordinances of 1865 and 1872, prohibiting kidnaping and illegally
detaining men, women, and children; and no difficulty ever arose
in my mind as to the crimes of which these prisoners are severally
convicted, or as to the sentences due to such crimes; and there is
no question as to crimes or punishment of cases where women are
smuggled into brothels, some licensed and others unlicensed, or
otherwise dedicated to immoral purposes. But the enormous extent
to which slavery in this Colony has grown up has called into
existence a greatly increasing traffic, especially in women and
children. The number of Chinamen in this Colony has increased and
is increasing rapidly, whilst their great increase in wealth has
fostered licentious habits, notably in buying women for purposes
sanctioned neither by the laws nor customs on the mainland. I hold
in my hand a placard in Chinese, torn down from the wall of the
Central School, Cough Street steps, in this city. The translation
appears at length in the Hong Kong _Daily Press of_ August
15th, 1879. The purport of that translation is shortly that the
advertiser, one Cheong, has lost a purchased slave girl named Tai
Ho, aged 13 years. After a full description of the girl a reward
is offered in these terms:--'If there is in either of the four
quarters any worthy man who knows where she is gone to, and will
send a letter, he will be rewarded with four full weight dollars,
and the person detaining the slave will be rewarded with fifteen
full weight dollars.' These words are subsequently added:--'This
is firm, and the words will not be eaten.' I recently spoke in
reprobation of slavery from this Bench, and in consequence of my
remarks a gentleman who tore down this placard gave it to the
editor of the _Daily Press_, and in a letter in that paper he
stated that such placards are common, and that he had torn down a
hundred such placards. Has Cuba or has Peru ever exhibited more
palpable, more public evidence of the existence of generally
recognized slavery in these hotbeds of slavery, than such placards
as the one I now hold in my hand, to prove that slavery exists
in this Colony? The notices have been posted in a most populous
neighborhood, and have been in all probability read--they ought
to have been, they must have been read--by scores of our Chinese
policemen.
"Important as this Colony is, politically and commercially, it is
but a dot in the ocean; its area is about half that of the county
of Rutland; the circumference of this island is calculated at
about 27 miles, whilst that of the Isle of Wight is about 56
miles. The cultivated land on this island may be to the barren
waste about one-half per cent, and there is no agrarian slavery
here in nearly the total absence of farms, and on this dot in the
ocean it is estimated that the slave population has reached ten
thousand souls! I first became fully alive to the existence of
so-called domestic slavery in this Colony at the Criminal Sessions
in May last, on the trial of two cases.... But it is said that
what is called domestic slavery, as it exists in Hong Kong, is
mild, and it is said to be the opinion of a gentleman of great
experience in Chinese, that, as it exists here, it is not contrary
to the Christian religion, and that it is as general a fashion
for Chinese ladies in Hong Kong to purchase one or more girls to
attend on them as it is for English ladies to hire ladies'
maids, and that the custom is so general that it would be highly
impolitic, if not impossible, to put down the system. It may be
that slavery as it exists in the houses of the better classes
in Hong Kong is mild, and that custom among the better classes
renders servitude to them a boon as long as it lasts. It is, I
believe, an admitted duty that when the young girl grows up and
becomes marriageable she is married; but then it is the custom
that the husband buys her, and her master receives the price
always paid for a wife, whilst he has received the girl's services
for simple maintenance; so that, according to the marriageable
excess in the price of the bride over the price he paid for the
girl, he is a gainer, and the purchase of the child produces a
good return. But the picture has another aspect. What, if the
master is brutal, or the mistress jealous, becomes of the poor
girl? Certain recent cases show that she is sold to become a
prostitute here or at Singapore or in California, a fate often
worse than death to the girl, at a highly remunerative price to
the brute, the master. It seems to me that all slavery, domestic,
agrarian, or for immoral purposes, comes within one and the same
category."
Every word uttered on this occasion by Sir John Smale, Chief Justice,
has value, but it is impossible for us to quote it all. Referring to
the purchase of kidnaped children from the kidnapers by well-to-do
Chinese residents of Hong Kong, without effort on the part of these
purchasers to ascertain from whence the children came, he says:
"In each of these cases I requested the prosecution of these
well-to-do persons, purchasers of these human chattels, who had
bought these children, whose money had occasioned the kidnaping,
just as a receiver of stolen goods buys stolen property without
due or any inquiry to verify the patent lies of the vendors. I
have reason to believe that H.E. the Governor was desirous that my
request should, if proper, be complied with; but on reference to
former cases it appeared that a former Attorney-General had found
that the system had been almost if not altogether unchecked for
many years past, and that in particular, when His Excellency had
desired to enforce the rights of a father to recover his child, he
was not disposed to enforce that right because the father had sold
that child."
He relates the details of yet another case concerning which he says:
"I took the responsibility to direct the Acting Attorney General to
prosecute this man and his wife." But the Attorney General, it seems,
did not.
"Is it possible that such a being as man can, according to law ...
become a slave even by his own consent?" asks the Chief Justice.
"I say it is impossible in law, as Sir R. Phillimore, 1 Phill.,
International Law, vol. 1, p. 316, has said in a passage I read with
the most respectful concurrence, but too long for full quotation." "It
is unnecessary for me to trace how it became the Common Law of England
that whosoever breathes the air of England cannot be a slave." After
reference to notable decisions on the part of England's highest
authorities as to the unlawfulness of slavery; to the claim that
slavery was secured to the Chinese residents by the promise not to
interfere with their customs, and reminding his hearers that the
promise was made only "pending Her Majesty's pleasure"; after quoting
the Queen's proclamation against slavery at Hong Kong, and the
assurance in that proclamation that "these Acts will be enforced by
all Her Majesty's officers, civil and military, within this Colony,"
he asks:
"Have all Her Majesty's officers, civil and military, enforced
these Acts within this Colony? I think they have not; I confess I
have not. Our excuse has been in the difficulty of enforcing these
Acts, but mainly in our ignorance of the extent of the evil. What
is our duty, now that we know that slavery in its worst as in its
best form exists in this dot in the ocean to the extent of say
10,000 slaves,--a number probably unexceeded within the same space
at any time under the British Crown, and, so far as I believe, the
only spot where British law prevails in which slavery in any form
exists at the present time?"
Then he deals with the pretext that this slavery is Chinese custom,
in words we have already quoted in the first chapter of this book. He
passes on to consider and affirm the propriety of the Chief Justice
directing the Attorney General to prosecute these cases, and answers
some of the objections raised by the latter officer, concluding this
portion of his remarks with the words: "What I have said has been
said to meet arguments, doubts, and difficulties which have paralyzed
public opinion and public action here; which arguments, doubts and
difficulties are the less easy to combat because they have been rather
hinted at than avowed."
The Chief Justice then sentenced several prisoners for enticing,
kidnaping or detaining children with intent to sell them into slavery,
to penal servitude for terms ranging from 18 months to 2 years.
On October 20th, Sir John Smale wrote the Governor:
"I cannot understand why such classes should as classes increase
in this Colony at all, unless it be that (in addition to the
Chinese demand for domestic servants and brothels) there be an
increased foreign element increasing the demand. I fear that a
high premium is obtained by persons who kidnap girls in the high
prices which they realize on sale to foreigners as kept women.[A]
No one can walk through some of the bye-streets in this Colony
without seeing well dressed China girls in great numbers whose
occupations are self-proclaimed; or pass those streets, or go into
the schools in this Colony, without counting beautiful children
by the hundred whose Eurasian origin is self-declared. If the
Government would inquire into the present condition of these
classes, and still more, into what has become of these women and
their children of the past, I believe that it will be found that
in the great majority of cases the women have sunk into misery,
and that of the children the girls that have survived have been
sold to the profession of their mothers, and that, if boys, they
have been lost sight of or have sunk into the condition of the
mean whites of the late slave-holding states of America. The more
I penetrate below the polished surface of our civilization the
more convinced am I that the broad undercurrent of life here is
more like that in the Southern States of America, when slavery
was dominant, than it resembles the all-pervading civilization of
England." "My suggestion that the mild intervention of the law
should be invoked was ignored. It was also met by the assertion
that custom had so sanctioned the evils in this Colony as that
they are above the reach of the law, and that by custom the
slavery was mild."
[Footnote A: Rather, it would seem in later years, by renting them for
a monthly stipend.]
The Governor, in a letter to the Colonial Secretary at London about
this time, informs the Colonial Secretary of his own failure also to
induce the Attorney General to prosecute cases to which His Excellency
had called his attention, and furthermore he explains that other
of his principal executive officers held to the same views as the
Attorney General.