THE CHIEF JUSTICE ANSWERS HIS OPPONENTS.
The Acting Attorney General at the time of Sir John Smale's first
pronouncement against slavery had suggested to Governor Hennessy that
Sir John Smale's statements should be sent to London to the Secretary
of State for the Colonies; and he and other advisers recommended that
no prosecutions in connection with "adoption" and "domestic servitude"
should be instituted, pending the receipt of instructions from the
Home Government. The Chief Justice concurred in these views, and also
suggested that the Chinese be told that no prosecutions as to the past
should take place, but that in future, in every case where _buying and
selling_ occurred in connection with adoption or domestic service, the
Government would undoubtedly prosecute.
The replies that came from the Secretary of State indicated scant
sympathy with Sir John Smale's position. His action was likely to
disturb the system of regulation of vice at Hong Kong, and these
health measures were in high repute with that official at London. He
could not sympathize with the Governor's view that laws securing the
freedom of the women were to be executed, whatever the result to the
brothel system. He wrote in reply as though Sir John Smale had said
many things that had not been put in the same light, demanded to know
what law could be put into operation to improve conditions, and wished
to know if Sir John Smale accepted Dr. Eitel's views on "domestic
servitude," and later he wrote pronouncing the views expressed in the
insolent attack of Mr. O'Malley upon Sir John Smale's anti-slavery
pronouncements as "well considered and convincing." He also referred
to the "humane intentions" of Mr. Labouchere in the passing of the
Contagious Diseases Ordinance of Sir John Bowring's time, which "were
intended to ameliorate the condition of the women." But it does not so
much concern us what the officials in London did and said, excepting
at the one point, namely, that they did not at this time back the
noble efforts of the Governor and of Sir John Smale to put down
slavery, and so rendered it practically impossible for them to
accomplish what they wished to do. The replies from Sir John Smale
are, however, of much value to us, as throwing light upon social
conditions at Hong Kong. On August 26, 1880, Sir John Smale replied in
a letter meant for the Secretary of State at London, but sent in due
form to the Colonial Secretary at Hong Kong for forwarding:
"My observations in Court arose out of cases of kidnaping;
and, according to the practices of judges in England, in their
addresses to the Grand Juries, and on sentencing prisoners, I did
as I thought it my duty to do. I traced the cause of the kidnaping
to the demand for domestic bond servants, as Dr. Eitel calls them,
and for brothels ... I said on the 7th of October I expressly
indicate these two, and these two only, as the specific classes of
slavery in Hong Kong as then rapidly increasing ... I cannot find
a sentence in it which indicates any attempt by the Court to reach
criminally cases of concubines."
"All that I contended for in what I then said beyond punishing
kidnapers was to bring within the cognizance of the law those
who bought from such kidnapers,--the receivers of such stolen
'chattels,'--leaving such buyers to set up and prove a
justification if they could."
"On the 31st of March, 1880, prisoners in four cases of
kidnaping,--one most harrowing,--were sentenced. I there lamented,
and I am sure every right-minded man will concur with me, that
it was the fact that the very poor were punished and the rich
escaped. In that case it clearly appeared that one Leong Ming
Aseng, apparently a respectable tradesman, at all events a man of
means, had given $60 for a young girl aged 13 years, to one of the
kidnapers, and he took her away beyond the reach of her distracted
mother under circumstances from which he must have known that the
child had been kidnaped. But although the facts were known at the
Police Court, and this man remained exceeding ten days afterward
in the Colony, no charge was ever made against him. After passing
sentences at this time, I made some observations on the '_patria
potestas_' [power of the father] theory. Dr. Eitel having painted
this condition in China in what I thought too favorable colors,
I quoted from Doolittle's 'Social Life in China,' unquestioned
testimony as to what _patria potestas_ was in China before the
controversy now raised, and from Mr. Parker, Her Britannic
Majesty's Consul at Canton, as to its present state in China.
After these quotations, I simply asked, Can greater tyranny, more
unchecked caprice, be described or even conceived as inexcusable
over wife, concubine, child, or purchased or inherited
slave?'--the quotations I made being up to this time undisputed
... what I said was necessary to introduce the expression of my
conviction ... that none of the elements of the system of _patria
potestas_ exist in Hong Kong, including of course adoption. It is
to this conviction that I point as the moral ground for enforcing
English law against kidnaping and buying and selling human beings.
The gravamen of all my complaints is, that the pauper kidnapers
and sellers are punished, while the rich buyers go free. No case
can come on for trial in this Court except upon an information by
the Attorney-General. I have called on the Attorney-General of the
day to prosecute a man against whom there was evidence that the
boy he was keeping as a servant had been bought by him direct from
a kidnaper. The then Attorney-General exercised his discretion,
and did not prosecute." "There are no difficulties in the way of
carrying out the punishment of kidnaping, and sellers and buyers
of children, or of keeping children by the purchasers, or in
selling and buying of women for brothels, or in dealing with
cases of brutal bondage." "I have spoken from criminal facts and
circumstances deposed to in Court; the Chinese and Dr. Eitel have
spoken from the favorable surroundings of respectable domestic
life in China. The conflicting views thus presented are but a
reproduction of conflicting testimony in reference to negro
slavery in the West Indies, and more lately in the United States.
Very benevolent persons, some my own friends, looking at facts
from the respectable standpoint, thought that such slavery was
based on human nature, and conduced to the spread of Christianity.
But the contrary view prevailed. I am quite satisfied that the
right view on this question will ultimately prevail. As a man I
have very decided views on these subjects, but as a judge I feel
it is not for me further to debate them. I expressly retired from
doing so on the 27th of October, 1879, although I thought it
necessary in March last to comment on what I thought to be an
erroneous view of the _patria potestas_."
Later, in response to a suggestion on the part of the Governor, for a
more explicit statement as to wherein his views differ from those of
the Chinese and of Dr. Eitel, the Chief Justice says, among other
things:
"I do not admit the statements of Dr. Eitel. They do not apply
to Hong Kong, but they may, and probably do, apply to certain
respectable classes in China proper, where China family life
proper exists. What I assert is that family life does not, in the
proper Chinese sense, exist in Hong Kong, and that although, under
certain very restricted conditions, the buying and selling, and
adopting and taking as concubines, boys and girls in China proper,
is permitted as exceptions to the penalties inflicted by Chinese
law in China proper, these conditions do not exist in Hong Kong;
and that the conditions necessary to these exceptions in their
favor in the Chinese Criminal Code do not exist in Hong Kong,
and that the penalties would apply, if in China, to all such
transactions as I have denounced in Hong Kong, of that I have no
doubt. Dr. Eitel's vindication is of a system as recognized in an
express exception to the Penal Code in China proper, which may,
for aught I know, work well in China. What I have said is that the
practices in Hong Kong do not come within the cases which are only
the exception to the penal enactments in the Chinese Code against
all such bondage in China. I have never said ... that all buying
and selling of children for adoption or domestic service is
contrary to Chinese law. What I have said is that all such buying
and selling of children as has come within my cognizance in Hong
Kong is contrary to Chinese law; but I do think that buying and
selling even for adoption and domestic servitude under the best
circumstances, constitutes slavery; legal according to Chinese
law, but illegal according to British law. Reference is made to
Chinese gentlemen; I believe that not one of them has his 'house'
in Hong Kong; the wife (small-footed) is kept at the family home
in China. Each of them has his harem only in Hong Kong. There may
be an exception to this rule, but I have never heard of any such
exception. (I know of only one, of a Chinese gentleman, who, for
certain reasons, was afraid to return to China.) ... I have not
known a single case of adoption by a Chinaman in Hong Kong. They
may exist in China proper, and possibly in Hong Kong ... They are
not in China proper a sacred religious obligation, except in
rare cases indeed, in which the conditions of clanship and other
stringent conditions are precisely complied with; and they have
as much to do with the necessities of the poor, and no more, than
would be the case in England or Ireland in the time of a famine.
These Chinese gentlemen say that the children are well cared for.
If girls eligible for marriage or concubinage, they are sold for
that, and form a profitable investment to a Chinese gentleman.
If not so eligible, they are sold for any, even the worst
purpose,--brothels, according to my experience in the Criminal
Courts of Hong Kong. If the former, it may be that they do well;
but if the latter, no slavery is worse. This as to females. And
as to males, the purchaser holds them until they can redeem
themselves, and, according to my experience, generally never.
Again, the Chinese gentlemen allege that if the adoptive parent or
master does not do his duty the actual parents have their remedy.
The answer is, so far as Hong Kong is concerned, the far greater
number of actual parents are far away in China, have entirely lost
sight of the child, and are far too poor to seek a remedy in Hong
Kong. They would have a remedy, if they were present and knew it,
but they do not know that there is a remedy. They had their remedy
from the first in China proper. Well, a remedy in the Mandarin
Court, where the longest purse prevails, and into which a poor man
seldom dares to enter a complaint."
"Lastly, it is said that the lot of these children is far happier
than if they had been left to their ordinary fate. So say these
Chinese gentlemen; so said the noble and wealthy, the much
respected slave trader and holder, a century ago in England. The
answer to him then is the only answer for these Chinese gentlemen.
It is a long one which presents itself to everyone who has studied
the slavery and the slave-trade question. Besides this long
argumentative answer, one question must be answered:--Is it right
to do or sanction wrong that good may come?"
"A very long time has elapsed since I received your letter
forwarding that dispatch [containing the request of the Secretary
of State for the Chief Justice to state his views as to Dr.
Eitel's representations], in June last; but the delay has been
advantageous, as it has enabled me to obtain a memorandum on the
subject by Mr. Francis, barrister here, and for a year Acting
Puisne Judge ... I write on this subject from an experience in
Hong Kong since early in 1861; Mr. Francis from a very extensive
experience in both China proper and in this Colony since some
years previously." He then enters into history to show that "Mr.
Francis of necessity studied ... the whole law on the subject of
slavery or bondage in every form here."
Mr. Francis first reviews all the legislative measures existent at
Hong Kong concerning slavery, in the clearest manner possible, leaving
no doubts in the mind of any fair-minded person that laws were not
wanting to put down slavery:
First: Hong Kong, being a Crown Colony, "the power of the
Sovereign in respect of legislation is absolute."
Second: The proclamation of Sir Charles Elliott, of tolerance
of native customs was "pending Her Majesty's pleasure," and no
longer.
Third: Her Majesty's pleasure was declared at Hong Kong: (a) By
the Proclamation of 1845; (b) "By Ordinance 6 of 1845, 2 of 1846,
and 12 of 1873, by the combined operation of which the law of
England, common and statute, as it existed on the 5th day of
April, 1843, became the law of Hong Kong."
Says Mr. Francis of Ordinance 6 of 1845, "The relations of husband
and wife, parent and child, guardian and ward, master and servant,
whatever they may have been when Hong Kong was Chinese, became
from the date of that Ordinance what English law made them, and
nothing more or less."
"But in addition to the declarations of the Common Law," declares
Mr. Francis, the following are in full force at Hong Kong: "The
Act of the 5th George IV. c. 113, the Act of the 3rd and 4th
William IV. c. 73, and the Act 6th and 7th Victoria c. 98, which
have in the widest terms abolished slavery throughout the British
dominions." "These Acts declare it unlawful for anyone owing
allegiance to the British Crown, whether within or without the
dominions of the Crown, to hold or in any way deal in slaves, or
to participate in any way in such dealing, or to do any act which
would contribute in any way to enable others to hold or deal in
slaves. This simple declaration, if it stood alone, would make
every act of slave-holding a misdemeanour, but the Acts themselves
make it piracy, felony, or misdemeanour, as the case may be, to
do any of the acts declared to be unlawful. These Acts further
declare that persons holden in servitude as pledges or pawns for
debt shall, for the purpose of the Slave Trade Acts, be deemed and
construed to be slaves, or persons intended to be dealt with as
slaves. Hundreds of persons are held in such servitude as pledged
or pawned in Hong Kong, and not one of the parties to such
transactions has ever been proceeded against under these Acts."
"In addition to the above-mentioned Acts of George, William and
Victoria, there is also the Imperial Act, entitled The Slave
Trade Act, 1873, which consolidates the laws for the suppression
of the Slave Trade, and which is in force in Hong Kong by its own
authority. We have also the provisions of the Local Ordinance 4 of
1865, sections 50 and 51, and 2 of 1875."
"Offenses against the provisions of these Ordinances, so far as
they relate to women or children, are still very common, and
are growing more numerous every day, and until the system of
prostitution which prevails in this Colony, and the system of
breeding up young girls from their infancy to supply the brothels
of Hong Kong, Singapore, and San Francisco, _is declared to be
slavery_, and is treated and punished as such in Hong Kong, no
stop will ever be put to the kidnaping of women and the buying and
selling of female children in Hong Kong. This buying and selling
is only an effect of which the existing system of Chinese
prostitution is the cause. Get rid of that, and there is an end of
kidnaping."
Again the nail had been struck on the head. _Licensed brothel
slavery_, as it exists at Hong Kong, was put forward by the Chinese
merchants as something to be dealt with before British officials
could consistently lay violent hands on the more trivial offenses of
_domestic slavery and so-called "adoption." Brothel slavery_, says
Mr. Francis, must be dealt with _as slavery_ before the practice of
_kidnaping_ can be put under control. This lesson was learned long
ago. What did all the laws against man-stealing and slave-trading ever
accomplish so long as the slave owner was allowed to keep his slave?
As soon as slave-holding was declared impossible in the United States,
there was no more trouble with slave-traders. Traders go to a market
where they can dispose of their goods, not to a place where their kind
of goods are a drug on the market.
Says Mr. Francis bluntly: "The Chinese custom of adoption, whether of
boys for continuing the family and worship of ancestors, or of girls
for the ordinary purposes of domestic service, is not the foundation
of all this buying and selling of women and girls; it is only the
pretext and excuse." Mr. Francis states that the buying and selling of
boys is rare as compared with the buying and selling of girls. That
there are few Chinese families in Hong Kong.
"The better class Chinese leave their wives in China. The
transaction of purchase of these boys takes place at the home of
the fathers of them in China. Seldom is it necessary to buy a son,
as the usual custom when a wife has no son is to take another
wife, not to buy a boy for a son,--hence such buying of boys is
for servitude and for ransom, at Hong Kong." "Girls are not bought
and sold in Hong Kong for domestic servitude under Chinese custom.
They are bought and sold for the purpose of prostitution, here and
elsewhere, and instead of being apprenticed to the domesticities,
and of being brought up to be good wives and mothers, they
are bought and sold,--brought up and trained for a life of
prostitution, a life of the most abject and degrading slavery....
By the last census [this was written in 1880], there were in Hong
Kong 24,387 Chinese women to 81,025 men. Of these 24,387 women
the late Mr. May [Superintendent of Police] was of opinion that
20,000, or five-sixths, come under the denomination of prostitutes
... A Chinese doctor of large experience fixed the number of
quasi-respectable women at one-fourth the whole number, or say
6,000, leaving 18,000 prostitutes. These opinions were taken and
adopted by the Commission of 1877-1879 ... Who and what are these
prostitutes who form by far the greater bulk of the Chinese female
population of Hong Kong? The Report of the Commission answers the
question: 'The great majority of them are owned by professional
brothel-keepers or traders in women in Canton or Macao; they
have been brought up for the profession, and trained in various
accomplishments suited to their life ... They frequently
know neither father nor mother, except what they call a
pocket-mother,--that is, the woman who bought them from others ...
They are owned in Macao and Canton. They are bought as infants.
They come to Hong Kong at 13 or 14, and are deflowered at a
special price which goes to the owners. The owner gets the whole
of their earnings, and even gets presents given to the girls, who
are allowed three or four dollars a month pocket-money. When some
of the girls are sent away on account of age, new ones are got
from Canton. If these girls are not slaves in every sense of the
word, there is no such thing as slavery in existence. If this
buying and selling for the purpose of training female children up
for this life is not slave-dealing, then never was such a thing
as slave-dealing in this world. There are 18,000 to 20,000
prostitutes in Hong Kong to 4,000 or 5,000 respectable Chinese
women.... Once in five years the stock has to be renewed. It is
for this purpose, and not for the legitimate or quasi-legitimate
purposes of Chinese adoption and Chinese family life, that
children and women are kidnaped and bought and sold ... Until
this slave-holding and slave-dealing are entirely suppressed, the
grosser abuses arising out of it and incidental to it (kidnaping
of women and children) can never be put an end to."
It was on May 20th, 1880, that the Secretary of State asked for the
first statement of Sir John Smale's views as to kidnaping and domestic
slavery. His reply is dated August 26th, and in it he refers to
reasons for his delay in replying, of which the Governor is "well
aware." His supplementary letter enclosing the Memorandum of slavery
by Mr. Francis, was dated Nov. 24th, 1880. On April 2nd, 1881, he
wrote a third time to the Colonial Secretary, from which we gather
that even up to that time his explanations had not been forwarded to
Lord Kimberley, Secretary of State. Said he:
"I had hoped that these letters would have been forwarded
last year, in the belief that they might have induced a less
unfavorable view by Lord Kimberley of my judicial action as to
these matters, and with the more important object of presenting
what appears to me to be the great gravity of the evils I have
denounced, as they affect the moral status of the Colony, in order
that some remedy may be applied to them.... I am informed that His
Excellency the Governor has been unable to obtain the opinion of
the Attorney-General on the points raised." ...
It is impossible not to feel that this neglect on the part of someone
at Hong Kong to forward the Chief Justice's letters until the first of
these was a year old (for they were actually sent in August, 1881),
was a designed obstruction of his endeavors to set himself in the
correct light, and to enlighten the Christian public of Great Britain
as to the abuses existing at Hong Kong.
In this letter expressing regret at the delay of his letters, he
speaks of convictions of eight more cases of kidnaping, and "almost
unprecedented brutal assaults on bought children." "Considering the
special waste of life in brothel life, and the general want of new
importations to keep up the bondage class of 20,000 in this Colony,
the cases of kidnaping detected cannot be one-half of one per cent of
the children and women kidnaped."
"Two cases of brutal treatment of young girls by purchasers, their
pocket-mothers, one little girl having had her leg broken by
beating her, and the other having been shockingly and indecently
burnt,--both probably weakened for life,--illustrate the cruel
passions which ownership in human beings engenders here, as it
ever has done elsewhere. In a case now before the magistrate, the
evidence tends to show that a girl thirteen years old was
bought by a brothel-keeper for $200, and forced, by beating and
ill-treatment, into that course of life in a brothel licensed by
law. Subject to such surveillance as these houses are by law, it
seems to me such slavery is easy of suppression."
At this time the official career of Sir John Smale at Hong Kong
terminated.