Part 8 (1/2)
O'Malley's letter to London. He said:
”The apparent difference between Mr. O'Malley's views on brothel slavery and the views of Sir John Smale is due to the fact that Sir John Smale knew that the real brothel slavery exists in the brothels where Chinese women are provided for European soldiers and sailors, whereas Mr. O'Malley, in discarding the use of the word slavery, does so on the a.s.sumption that all the Hong Kong brothels form a part of the Chinese social system, and that the girls naturally and willingly take to that mode of earning a livelihood. This is a misconception of the actual facts, for though the Hong Kong brothels, where Chinese women meet Chinese only, may seem to provide for such women what Mr. O'Malley calls 'a natural and suitable manner of life' consistent with a part of the Chinese social system, it is absolutely the reverse in those Hong Kong brothels where Chinese women have to meet foreigners only. Such brothels are unknown in the social system of China. The Chinese girls who are registered by the Government for the use of Europeans and Americans, detest the life they are compelled to lead. They have a dread and abhorrence of foreigners, and especially of the foreign soldiers and sailors. _Such girls are the real slaves in Hong Kong._”
We underscore the last sentence as a most painful fact in the history of the dealings of the British officials with the native women of China, set forth on the authority of the Governor of Hong Kong, who, with the help of Sir John Smale, the Chief Justice, waged such a fearless warfare against slavery under the British flag, with such unworthy misrepresentation and opposition on the part of the other officials equally responsible with them in preserving the good name of their country, and in defending rather than trampling upon its laws.
Governor Hennessy continues
”To drive Chinese girls into such brothels [i.e., those for the use of foreigners] was the object of the system of informers which Mr. C. C. Smith for so many years conducted in this Colony, and which in his evidence before the Commission on the 3rd of December, 1877, he defended on the ground of its necessity in detecting unlicensed houses, but which your Lords.h.i.+p [Lord Kimberley, Secretary of State for the Colonies] has now justly stigmatized as a revolting abuse. On another point the Attorney General also seems not to appreciate fully what he must have heard Sir John Smale saying from the Bench in the Supreme Court. It would be a mistake to think that the Chief Justice had not before he left the Colony, realized the public opinion of the Chinese community on the subject of kidnaping. In sentencing a prisoner for kidnaping, on the 10th of March, 1881, Sir John Smale said he was bound to declare from the Bench that, to the credit of the Chinese, a right public opinion had been growing up, and on the 25th of March, 1881, (the last occasion when Sir John Smale spoke in the Supreme Court of Hong Kong), he said, in a case in which the kidnapers had been convicted--This case presents two satisfactory facts first, that a Chinese boat woman handed one of these prisoners to the police, and that afterward an agent of the Chinese Society to suppress this cla.s.s of crime caused the arrest and conviction of these prisoners. These facts are indicative of the public mind tending to treat kidnaping as a crime against society, calling for active suppression. On the same occasion, in sentencing a woman who had severely beaten an adopted child, Sir John Smale said, 'In finally disposing of these three cases, with all their enormity, sources of satisfaction present themselves in the fact that, in each of these cases, it has been owing to the spontaneous indignation of Chinese men and women that these crimes have been brought to the knowledge of the police.' The Governor closes his letter with the statement, 'It is only due to Sir John Smale to add that his own action has greatly contributed to foster the ”healthy” public opinion of the native community, which induced him, when quitting the Supreme Court, to take a hopeful view of the future of this important subject.'”
CHAPTER 12.
THE CHIEF JUSTICE ANSWERS HIS OPPONENTS.
The Acting Attorney General at the time of Sir John Smale's first p.r.o.nouncement 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 inst.i.tuted, 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 p.r.o.nouncing the views expressed in the insolent attack of Mr. O'Malley upon Sir John Smale's anti-slavery p.r.o.nouncements as ”well considered and convincing.” He also referred to the ”humane intentions” of Mr. Labouchere in the pa.s.sing 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 n.o.ble 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 cla.s.ses 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 punis.h.i.+ng 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 circ.u.mstances 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 pa.s.sing 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 circ.u.mstances 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 cla.s.ses in China proper, where China family life proper exists. What I a.s.sert 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 circ.u.mstances, const.i.tutes 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 clans.h.i.+p 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 n.o.ble 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.