Heathen Slaves and Christian Rulers

by Elizabeth Wheeler Andrew; Katharine C. Bushnell

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.