CHAPTER 12.

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.

Heathen Slaves and Christian Rulers · 第 12 / 18 章