Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 4, 1871

No. 42.

Mr. Bailey to Mr. Davis.^*.

No. 24.]

United States Consulate, Hong-Kong, April 7, 1871. (Received May 22.)

Sir: I have the honor to forward you the within inclosure, (No. 1,) containing an elaborate and remarkable decision just delivered by Chief Justice Smale of the Supreme Court of this colony, in a harbeas corpus case involving the legality of the Macao coolie trade.

I have said the decision is remarkable, and it is, first, because in effect it declares that ships employed in the Macao trade are engaged in piracy; second, that such ships are slave-ships engaged in the slave trade.

The chief justice takes very high ground, very bold, and, of course, many contend very dangerous. The decision speaks for itself, is complete in itself, and therefore it is not proper that I should enlarge on it in this dispatch. I will say, however, that the whole coolie trade of China, at Macao, Hong-Kong, and elsewhere is so full of fraud and all sorts of iniquity as to make necessary some such startling decision to arouse Western civilization to a sense of its duty concerning this new and infamous slave trade.

If Great Britain sustains the decision of Chief Justice Smale, the Macao coolie trade, with all its enormities, will be at an end; but as this traffic is exceedingly profitable, and getting money is the dominant passion, at least in this part of the world, it will only shift its base, and re-open under color of a new authority and disguised with a front of more seeming decency. Already I am informed negotiations are pending for the establishment of extensive barracoons at Canton, and the opening of the coolie trade at that port under the auspices of the Chinese government.

In the latter event nothing can be hoped for better than at Macao, but on the contrary, the most painful anticipations arise of a system far worse than Portuguese ingenuity has been able to devise.

I have the honer, &c,,

D. H. BAILEY.

[From the Hong-Kong Daily Press.—Supplement of Wednesday, April 5, 1871.]

Rendition of Chinese.

The following decision by Chief Justice Smale on the return of the habeas corpus, on which Kwok-a-sing was brought before him, involved several important questions as to the general law of rendition of Chinese criminals, upon the requisition of China, by Hong-Kong, and on the legal character of the Macao coolie trade and the right of coolies carried on coolie ships to regain their liberty, even by violence and bloodshed.

This decision is of so much general interest and importance that it is considered desirable to reprint it at length for home readers. The text has been submitted to the Chief Justice and may be taken as accurate.

SUPREME COURT, HONG-KONG, MARCH 25th, 1871.—JUDGE CHAMBERS BEFORE THE HON. CHIEF JUSTICE SMALE, IN THE MATTER OF KWOK-A-SING ON HABEAS CORPUS-JUDGMENT

Immediately after the argument upon the return to the habeas corpus of Kwok-a-sing, I had no doubt as to my decision on the main questions raised, but some of the points suggested were to me so new, and the broad questions which it was my duty to consider were of such great importance, and my views as to them were so much opposed to what I had reason to believe to be the opinion of persons entitled to very great respect from me, that I have thought over the matter till my health has, more than once, become unequal to the occasion, and delays unavoidably arose. Moreover, calls on my time and attention on other judicial matters have intervened, so that I have been often disturbed in giving continuous attention to the case as a whole. I do not, however, feel myself justified in longer delaying giving my decision; as to the correctness of which I can suggest to myself no ground for doubt. I now therefore proceed to express my views on the points which have arisen in and out of the argument, and to give my decision on the whole case. I regret that it must be at great length. In the first place I will shortly state the proceedings.

Grant of and return to writ of habeas corpus of Kwok-a-sing.—During the February close of vacation of the supreme court and its offices, Mr. Francis, as attorney of Kwok-a-sing, applied to me, at my chambers, on the 7th of that month, upon an affidavit by his client, for a writ of habeas corpus, which I granted in the common form, requiring Mr. Douglas, superintendent of the gaol, to bring before me the body of Kwok-a-sing. This writ was at once obeyed. Mr. Douglas set out the cause of the prisoner’s detention in his return to the writ, which was. shortly, the production of the copy of a warrant of commitment in execution, dated the 13th of January, 1871, under the hand of Mr. May, first police magistrate, whereby reciting that a communication had been received requiring the prisoner’s rendition on behalf of the Chinese government, as an offender against the laws of China by participating in the murder of a portion of the crew on board the Nouvelle Penelope; and after finding “that there is cause to believe” the prisoner’s guilt on the ship, by killing the captain and some of the crew at sea, and other crimes afterward, viz, seizing a boat belonging to the said ship, and landing in Chinese territory, the warrant stated an adjudication by the magistrate that the prisoner should be committed to a gaol for detention, pending the receipt of orders from H. E. the lieutenant governor as to his further disposal.

Return by magistrate of depositions to writ of certiorari.—On Mr. Francis’s application I, on the following day, issued a writ of certiorari, addressed to Mr. May, committing magistrate, and on the 11th of February, by his return to that writ, Mr. May brought before me the “minutes of proceedings in the cause in which Wong Ahee, barber, is complainant, and Kwok-a-sing, (24,) of Ponyu, coolie, is defendant.” These proceedings extended from the 19th of January until the 7th of February last, on which day the above commitment was made out.

Absence of proper charge on the proceedings against the prisoner.—The first paragraph immediately following this heading bears internal evidence that it could have been written only after all the depositions had been taken; indeed, Mr. May, by an affidavit filed yesterday, deposed that it had been in fact copied from and written in after the committal, i. e., on the 7th of February. Not therefore attending to this paragraph, (it formed, as I think, no part of the proceedings,) it appears that Kwok-a sing was first placed at the bar at the magistracy on the 19th of January, charged “as a suspicious character, and as a person dangerous to the peace and good order of the colony,” under ordinance No. 9 of 1857; but no attempt was made to prove an act or word within the colony by the prisoner so as to bring him in the remotest way within either the words or within the spirit of that ordinance. That ordinance was passed in times of great political alarm here, as a means of getting rid of Chinamen of whom many were at that date presumed to be lurking about the colony, emissaries of the then hostile mandarins, on the merest suspicion of any evil design. The reason for the law has ceased, and the less frequently the police now invoke its enactments and the more stringent the proof to bring any person within that ordinance required by the magistrate, the more constitutional will the course of justice be in this colony.

No charge of murder against the prisoner.—The prisoner was thus irregularly charged at the magistracy for an offense as to which no evidence was tendered. I do not, on looking through the proceedings before the magistrate, find that this prisoner was charged with anything as the subject-matter of complaint to which he had to or could plead or answer, beyond the unsustained charge of being a “suspicious character and a dangerous person.” The evidence goes to prove acts of violence and of killing the captain and eight of the crew in the ship, and the observations of Mr. Francis, addressed to the magistrate, were in reference to such evidence, but from beginning to end I see on the proceedings no “charge” of murder or of robbery, properly called a charge, against the prisoner, to which he could plead.

Absence of regular authority to initiate proceedings.—Again, attached to the depositions is a letter from the colonial secretary dated the 3d of February, 1871, addressed to Mr. May, but there is no note on the proceedings referring to it or showing that it was ever taken judicial notice of by Mr. May, or that the prisoner or Mr. Francis, his attorney, even knew that such a letter had ever been received by Mr. May, much less that it was to be treated as the foundation of Mr. May’s authority to act.

The argument on claim of prisoner’s discharge.—Mr. Francis’s argument before me occupied some days of February last. He reduced to writing the heads of his arguments. The honorable and learned attorney general, who appeared for the Crown, and opposed the prisoner’s discharge, answered the points raised by Mr. Francis, and furnished me with a printed copy of his arguments. Mr. Francis replied, and he furnished to me a written copy of that reply. I have seldom heard arguments more clear than those by which the contention on each side was sustained. Having been carefully epitomized, these arguments speak for themselves. The points were divided into seven by Mr. Francis. The attorney general has followed that division, and for the sake of convenience I will consider the case in the same order.

First point.—Right of rendition to China is the only question.—Mr. Francis says that he made this point merely to clear the matter of all grounds of charge against the prisoner other than those arising out of ordinance No. 2 of 1850, which provides for the rendition of Chinese offenders. The attorney general did not suggest that the prisoner could be detained on any ground other than No. 2 of 1850. I am, as I have before said, of opinion that there is no other charge against him capable of being argued.

Second point.—Was No. 2 of 1850 ultra vires the legislative council.—The second point taken for the prisoner, viz: That ordinance No. 2 of 1850 is null and void, as being ultra vires of the colonial legislature, is very difficult to be disposed of. It is not denied by Mr. Francis that this ordinance has been acted on from 1850 to the present time, a period of more than 20 years. But he showed that no length of use will give validity to a local enactment if originally ultra vires; and if, in the opinion of the supreme judicial authority within the locality, the ordinance appears to have been originally ultra vires, it is bound so to decide. This proposition follows from Chalmers’ Cases and Opinions, p. 402, and is ably sustained in Mr. Anstey’s pamphlet on the competency of colonial legislatures, 1869, at pp. 2–25. It is my duty, therefore, to consider this objection. It at first seemed to me that on constitutional principle the Imperial Parliament alone has authority to give effect to treaties within the empire. This view seems confirmed by Mr. Forsyth, (Cases and Opinions, p. 269.) I thought it followed that it was not within the powers of a Hong-Kong legislature, which consists wholly of nominees of the Crown, to give such sanction, even within its own limits, without such previous imperial legislative sanction of the treaty, and also that such an ordinance was not, reading the charter strictly, required for either “the peace,” or the “order,” or the “good government of this colony;” which I read as meaning “within, and only within, this colony.” If this had been the only colony in which such an ordinance had been passed, this view of the case would have weighed very strongly with me. The research of the attorney general, however, shows that the ordinance No. 2 of 1850 is but one of a number of colonial extradition enactments, and although the terms of the charter of each colony cannot be ascertained, I cannot refuse my assent to this, that some of them, at least, are similar to the Hong-Kong charter, and I cannot take upon myself to decide that so very general a practice is contrary to law, especially considering the contention of the attorney general, that the fact of there being valid colonial enactments as to extradition is recognized, if not in terms, by the strongest implication, in 28 and 29 Vic., c. 63, sec. 18.

Third point.—Treaty of 1843 abrogated, therefore No. 2 of 1850 void.—Mr. Francis’s third contention is that the ordnance No. 2 of 1850 has become inoperative by reason that one of the two treaties, that of Nanking, made in August, 1842, and that of the Bogue, made in October, 1843, that is to say, the latter treaty, was “abrogated” by the second article of the treaty of Tien-tsin, of 26th June, 1858, while the first treaty, i. e., of Nanking, was “renewed.” It is a fact of which I must take judicial notice, that there was after the treaty of the Bogue of 1843, war between Great Britain and China, extending over a considerable time, and that such war of itself suspended these two treaties in force at the date of ordinance No. 2 of 1850, so that for a long time, and up to the treaty of Tien-tsin of 1858, there was in effect no treaty between Great Britain and China to which the ordinance No. 2 of 1850 did, or could, apply. It cannot be contended that during that period the ordinance No. 2 of 1850 was or could be operative, or that when the treaty of the Bogue of 1843 was afterward, by mutual consent and by express compact, “abrogated” which confirmed its previous suspension by war, that it was ever “renewed,” which means not a resuscitation, but a beginning de novo. I read somewhere in the parliamentary paper 393, (1868.) report on extradition, an opinion of one of the witnesses that each extradition enactment ceased with the treaties in reference to which it was enacted, but I cannot now find the reference to the passage. It is clear to me that such must have been the general opinion entertained as the proper view, for it is embodied in the extradition act of 1870, sec. 2., par. 2, that every order which is to be in place of an enactment to be made under that act shall not remain in force for any longer period than the arrangement with the foreign state. It is clearly now intended that on a treaty ceasing to be in force the provisions for rendition under it are to cease. It seems to me that there must always have been the like intendment in English law, and that this construction must be adopted as to the ordinance No. 2 of 1850, and that its operation ceased when the treaty of the Bogue was first suspended and then absolutely abrogated, and that it required a new ordinance to carry the entirely new arrangement of 1858 (which differed very much in detail from the Bogue treaty) into effect. I think I must here assume that the maxim cessante ratione cessat ipsa lex, Broomes L. M., 160, applies to this ordinance—this law. The argument of the attorney general assumes there was only one treaty in existence in 1850. I am of opinion that there were then in fact two treaties. The first of these treaties was signed in 1842, for China; by four commissioners, and the second treaty was signed a year afterward by one Chinese commissioner only. R. v. Wideman, on the French treaty, 3 Bar Rep., 719, (1866,) cited by the attorney general, differs in this, that there one party, France, gave a notice to England with a view to terminating an existing treaty at a defined time, and that by agreement that notice was actually withdrawn and was extended, and, beyond question, the identical treaty was in force, and therefore the act of Parliament continued to give effect to it. But Lord Chancellor Cranworth, in his judgment, appears to me by his line of argument to admit that if the ultimate time of notice for determining the treaty had expired, and if the treaty had terminated, the act to put that treaty in force in reference to any future treaty could not have been revived except by re-enactment. Lord Cranworth appears to have thought a new act of Parliament would have been required to work it out, but in the present case a reference to and comparison of Article 9 of the Bogue treaty of 1843, and with Article 21 of the Tien-tsin treaty of 1858, shows a difference of detail, not merely abrogation and reenactment, even which alone Lord Cranworth appears to have thought enough to require a new act of Parliament. The attorney general suggested that No. 7 of 1864, par. 84, impliedly declares No. 2 of 1850 to be still in force, being contained in a new edition of the ordinances stamped with the seal of the colony. The words are, “the copies so stamped shall in all courts and upon all occasions whatsoever be taken, deemed, and held to be the only lawful ordinances of Hong-Kong, as they existed at the date of the passing of the last ordinance inserted therein.” I read these words as merely excluding all necessity of reference to ordinances not inserted, and as in no way a re-enactment of all the inserted ordinances,and it certainly does not affect to give the included ordinances a force which they had not immediately before the date of the enactment in 1864. I do not say that even this limited construction should be adopted, because it might possibly lead to very alarming consequences, to which it is unnecessary for me here further to allude. I cannot adopt this suggestion as a ground for upholding No. 2 of 1850. It is clear to me that the principles and provisions of the extradition act of last sessions are such that if the treaty of 1858 were now for the first time to be carried into effect by order in council under that act, the provisions would be very different from those of No. 2 of 1850.

Fourth point.—No rendition, because crime charged is piracy and justiciable here.—Mr. Francis contends that the offense for which the prisoner stands committed is piracy on the high seas, and that such piracy is not within the treaty or the ordinance No. 2 of 1850, because it is justiciable here. The arguments by which Mr. Francis justifies this point appear to me to be convincing so far as they go. But the attorney general with great ingenuity subdivides this point into three, and Mr. Francis has answered these distinctions. I leave the arguments as I find them; it would lead me into far too great length to criticise them. I shall merely state that my conclusion is that the opinions of Sirs J. Harding, F. Thesiger, and Fitzroy Kelly were manifestly come to in reference to a case in which the Chinese charged with murders were designated “emigrants”—free emigrants—not containing any suggested element of compulsion or original coercion of them, which distinguishes that case from the present, and further that it appears to me the decision in re Ternan, 9 Cox, C. C., 522, and 33 Law J. M., C. 201, and the observations of the judges in that case, are inconsistent with that opinion. I must follow the decision in re Ternan, especially as the principle appears to have been approved of in America—see re J. C. Bennett, 11 L. Times, 488—and say in this case as was said in that, the crime, “if anything,” is piracy, and being justiciable here if there be any crime, there is no ground for giving up the man. It is beyond doubt that political criminals are not to be given up, though within the letter of the treaty, neither is a Chinese subject to be given up if justiciable here, e. g., for piracy. Again, a culprit, to adopt the line of argument used by Shee, J., 33 L. J. M., C. 216, cannot be said to come within the terms of the treaty or of the ordinance in which the preamble confines the enactment to such as have “taken refuge” here; he being justiciable here, he cannot be said ‘‘to take refuge” in a place which is no “refuge” to him, and he is not, therefore, within the treaty of Tien-tsin, the only existing treaty, even if that treaty is provided for by No. 2 of 1850. I shall subsequently consider fully whether this man’s act was a crime at all. In Naylor v. Palmer, 10 Ex. Rep., 338, 8. C. 22, L. J. Ex., 329, the case of seizure by 360 coolies of the Victoria, on her voyage from Macao to Callao in Peru, and another case, Klein worth v. Sheppard, 28 L. J. Q. B., 147, the case of seizure by 350 coolies of the Henriette Marie on a voyage from Macao to Havana, each case turning on the construction of marine insurance policies, the courts held between insurer and insured, that the acts of revolt and taking the ships by Chinese emigrants constituted piraey.

Fifth point.—Nothing authorizing the magistrate to act.—This point is that there was nothing to give the magistrate jurisdiction. The attorney general contends that a requisition of rendition might be verbal merely. But section 1 of No. 2 of 1850 requires the information of the Chinese officers to be made or forwarded to the magistrate or court. This may possibly, but not probably, mean that the Chinese officer is at liberty without writing in person to prefer the information to the court acting magisterially in the matter, but I am of opinion that if he does not do that, it means that the information must be “forwarded,” which is consistent only with the sending on of some material thing which here is a written information. I conclude that the information must be, if the officer does not attend in person, by a writing by himself, and that the identical writing must be forwarded in such way as that it should reach the court exercising jurisdiction in the case, which is the magistrate only. Now this condition was not complied with; it does not appear that any Chinese officer ever made any requisition at all, much less that any one such officer did so in writing, so that it could be forwarded. The colonial secretary, in his letter of February 3, states that the British consul at Canton did what he had no authority to do, what the Chinese officer alone had authority to do. Therefore the whole proceeding before Mr. May was unauthorized and of no force in law. The attorney general refers to a dispatch from the colonial office in 1865, which states that a British consul should either be the medium of or sanction all applications by the Chinese officials making it, but that dispatch does not substitute the British consul, still less the colonial secretary, for that Chinese official. The dispatch did not, and could not, alter any enactment. As a lawyer, I thought the letter of the colonial secretary of the 3d of February last, even if that were the proper document to initiate Mr. May’s proceeding, too meager, as the only statement of the charge giving jurisdiction to the magistrate to proceed against this man, and as the foundation of a proceeding in which in the words of the treaty, “upon proof of guilt,” (proof only in this colony,) this man was to be given up. I desired to obtain out of the colonial office for several purposes the proceedings on former renditions, but for reasons thought sufficient in that office the production was declined. I had thought that the form employed by the colonial secretary might have been justified by precedent. The colonial secretary might, not being a lawyer, have reasonably thought the terms of his letter sufficient, especially if it were according to precedent; and if I could have found in the precedents that such form had been usually adopted, it might possibly have justified its adoption in this case. I stated in court my inability to obtain these important precedents from the government office, whereupon Mr. Francis produced to me the parliamentary paper. House of Commons papers, (1866,) No. 120, relating to the rendition and execution of Mo-Wang. On perusing these papers I see at p. 7 that the precedent there was an information against Mo-Wang by the acting Chinese governor of the Two Kwang provinces, in form equal to, if not exceeding in length and particularity of times, place, crime, and circumstances, an indictment in an English court of justice, addressed to the acting governor of Hong-Kong, accompanied by a long letter of requisition addressed to the British consul at Canton, both being duly forwarded by the same British consul to the then acting governor here, whereon the police magistrate acted. This precedent confirms, so far as the only precedent I can obtain can do so, my conviction that the absence of such particularity by a Chinese official is fatal to Mr. May’s jurisdiction in this case. This conclusion is confirmed by authority. In the case of Geek, a German woman, whose rendition was claimed for murder, the honorable C. Cushing, the Attorney General for the United States, took a like objection to the requisition in that case, as insufficient for vagueness. Forsyth, C. & O., 354. Having in February last after argument reserved my decision, which was delayed for the reasons I have stated, I, on the 22d and 28th of March instant, heard a summons issued at the instance of the prosecution, whereby the prisoner was required to show cause why the warrant of committal and return to the writ of habeas corpus should not be amended upon an affidavit filed by Mr. May, by inserting therein the words “forwarded to me” in the place of “received.” On the hearing of this summons, I said I thought it right that a statement made to me on a previous hearing by Mr.May should appear upon the proceedings, and on behalf of the prisoner Mr. Francis filed an affidavit, made in consequence of that suggestion, by Mr. May, to the effect that the paragraph containing the charge of murder, &c., at the commencement of the proceedings next after the statement of the names of the parties, to which I have before referred, was not written on the depositions until after the committal had been signed by him. I am of opinion that I ought not to entertain this application, because it comes too late, and moreover, because if it had been made earlier, it appears from Mr. May’s affidavit of the 28th of March that there was nothing in the proceedings on which the commitment could be corrected. Moreover, I am of opinion that the letter of Mr. Robertson is not a due requisition by the Chinese authorities under the treaty, nor a complaint by a Chinese official duly “made or forwarded” within the ordinance No. 2 of 1850. However, the application to amend is before me, and the prosecution may have from another tribunal a decision differing from that to which I have come on this point. Mr. Francis objects that section 4 of No. 2 of 1850 rendered a warrant from the governor to the magistrate necessary, to give jurisdiction to the latter. I am of opinion that if due requisition had been forwarded to Mr. May, no such warrant would have been necessary. This fifth point being directed to the jurisdiction of the magistrate, I think I may more conveniently than under any other head here allude to a point of practice in the exercise of his jurisdiction which occurs to me.

I. Evidence must be sufficient to justify a “true bill.”—A point arises out of an extract from a dispatch, No. 40, of 11th April, 1863, from his grace the then colonial secretary, which was handed to me by the attorney general, in which, on the assumption that there was some competent jurisdiction here to carry out the treaty of 1858, his grace says, in an extract from a dispatch, (I asked for, but I did not get the whole dispatch, as explanatory by the context of the extract,) “It is at the same time quite clear, on the letter of the Tien-tsin treaty, that, it is only on proof of their guilt that Chinese criminals can be demanded;” and adding, “on this head I have to instruct you that as a general rule reasonable evidence ought to be accepted as sufficient.” (none other is required on trial for murder in any British court.) “such for example as would lead a grand jury in this country to find a true bill, where the evidence is ex parte only.” Now, I stop here because in this case the evidence was ex parte only. Adopting as our guide these instruction from the colonial office, Mr. May’s finding is, that “there is cause to believe that the said defendant is a subject of China, and that he has committed the said crime against the laws of China.” This finding does not even express what Mr. May actually believed, it is not equivalent to a “true bill” by a grand jury, which, according to the high authority of his grace, the then colonial secretary, it ought to be to bring this man within the rendition treaty. Now, here the man was charged with murder, and with murder only, in the only document before Mr. May, the letter of the colonial secretary of 3d of February, 1871, (if it can be said to have been before him,) it was not competent for Mr. May, the magistrate, assuming this letter to be a sufficient charge as to murder to inquire or to commit for larceny, as not being within the alleged claim of rendition confined to the charge of murder, the magistrate does not find that the man is guilty of murder, as the conviction in his mind as a grand juror, or that the charge of murder is true, which is the meaning of a “true bill.” According to Chitty, (1 Criminal Law, 317,) “the grand jury ought not to find a true bill, unless they are convinced of the guilt of the defendant.” For this he cites abundant authority and references to considerations of humanity, far more cogent, as applied to Chinese subjects resident in this colony, than to English-accused persons in England. Now, here Mr. May does not, and he could not upon the evidence before him, express a finding equivalent to a “true bill,” he ought therefore to have discharged this prisoner. Moreover, a grand jury could find a “true bill” only for the crime charged, that is murder, and not for any less or other crime, (Ib., p. 325.)

II. Special reason for term in treaty of “upon proof of guilt”—I cannot but think that his grace, the then colonial secretary, if his consideration had been directed to the special reasons for the terms of the treaty, “upon proof of guilt,” (an expression which, as it was admitted by the attorney general, is not to be found in any other treaty,) would have seen a conclusive reason why this country assumed, as to alleged Chinese fugitives from justice here, the right to ascertain the absolute guilt of such fugitives as fully as this country, in fact, assumed that China could not be trusted as a nation to do justice within her own territories. It was assumed by Great Britain that it was necessary for her to deny the common international right of exclusive sovereignty to the Emperor of China to judge foreigners, being English subjects within his own territory, and we so far superseded, for our protection, his imperial rights, even in China. I hold that, not trusting China to administer justice, even in China, but creating a (British) imperium in (a Chinese) imperio in China, the intent and meaning of the clause “upon proof of guilt,” a clause which the attorney general could not find in any other treaty, in the treaty of 1858, had emphatically this special meaning, that we were not to render up a Chinese subject, to whom on his sojourn here Great Britain owed protection, per Turner L. J., in Low vs. Routledge, L. R., (1 Chan. App., p. 42,) without our having ourselves judicially ascertained the guilt of the man accused, and demanded as fully as upon a trial by a jury, which tribunal convicts on evidence, which amounts to “on proof of guilt,” and on no higher evidence than these words import the guilt so ascertained can only be of the identical crime charged, and of no other.

III. Was No. 2 of 1850 defective?—I must as shortly as possible allude to another difficulty, which occurs to me as to the jurisdiction of the magistrate in this case. The ninth article of the “abrogated” treaty of the Bogue of 1843, contained in two branches, two conditions on which a Chinese subject was to be given up. The second branch provided for rendition in case of a Chinese demanded “on proof of guilt.” It would seem that the draughtsman of No. 2 of 1850 overlooked and made no provision for this clause, but that he gave his whole attention to and provided only for the most prominent, the first branch in the clause in the treaty, and he then adopted provisions for a form of procedure applicable only to treaties between European nations, such, for instance, as in 6 and 7 Vic., cap. 75 and 76, where provision is made for rendition on merely a prima facie case, and not “upon proof of guilt.” Now the first branch of article nine of the abrogated treaty of 1843 not having been included in the substituted article in the treaty of Tien-tsin, the clause in the ordinance appears to be inapplicable to that new treaty, because it does not, after providing for the mere preliminary inquiry before the magistrate, provide a tribunal for the actual trial, either in the supreme court or by constituting the executive council a court for the purpose, where there may be “a proof of guilt” against the accused. I hope that the intended revision of our treaty with China as to rendition, and a consequent legislation will, not destroying due protection to Chinese in Hong-Kong, provide better for the objects contemplated, as we are led to hope from Mr. Holland’s evidence in Par. Papers, H. of C., No. 393, (1868.).

Sixth point. Is the offense as it is charged, if proved, an offense against the laws of China?—This point suggests that the offense charged is not an offense against the laws of China. The offense, if any charge, is murder. I am clearly of opinion that the crime, if any, charge being murder, the prisoner, if an Englishman, would by English statute law in force in this colony have been triable here, according to the case of R. vs. Azzopardi, 2 Moore C. C., 288, (see 1 Russell on Crimes, p. 760,) cited by the attorney general, and as I must for all purposes on this hearing (that the contrary not being proved) hold that the laws of China are the same as the laws here, I must hold that this objection would fail if the charge had been properly preferred, which I think it has not been, therefore Mr. Francis fails on this point.

Right to rendition is confined to crimes committed within the country demanding it.—Involved, however, in this point, is the fact proved beyond question that the crime “charged” was an act committed on the high seas, and also on board what is said to be a French ship. This opens another objection to this demand of rendition by China. I readily follow the very high English, the highest individual authority in England, which lays down broadly that “the country demanding the criminal must be the country in which the crime is committed.” 1 Phil. Inter. Law, p. 403. If this be good law, as I must hold it to be, and if the opinion given in Alsop’s case, Forsyth C. & O., 368, and if the opinion of Cushing, attorney general, was properly adopted and acted on in the United States in David’s case, ib. 364, then China cannot have in this case the right to demand rendition, because the crime, murder, for which rendition is said to be claimed, was committed at sea and not in China. Assume what is not, (but which ought to be proved, R. vs. Bjarnsen, 10 Cox, c. c. 74,) that this was a French ship, should a claim for the rendition of this man, by France, be acceded to? The same very high authority would say “No, the usual course is to refuse the request of both applicants.” 1 Phil. I. L., p. 414.

Seventh point.—The depositions disclose no offense whatever.—Mr. Francis contends that the depositions disclose no offense whatever, assuming for this purpose that on all his other points he has failed. He wisely left it for the attorney general to prove the affirmative, to show what offense if any this man had committed, that onus being on the accuser. The attorney general selected portions of the depositions, which if true clearly showed that the prisoner was active in the China cooly rising, and that he took part in the fight in which the captain and eight of the crew were killed. This fact is, as I assume, not denied by Mr. Francis, but he adopts very pertinently the well-known rule of evidence in criminal cases that the hypothesis of delinquency must be consistent with all the facts proved. He suggests that the inference from the evidence, all tainted more or less by coercion on the Chinese witnesses (one manifestly with the sword suspended over his neck) by animosity in the French seamen, is that all these coolies were in fact under coercion, amounting to unjustifiable and entirely illegal imprisonment, that they all had, according to English law, the right to regain their inalienable personal liberty as much as if it were to save their lives, and that they did no more. In the absence of proof that any other law prevailed, I must, as before said, assume for the purposes of this decision that the law of this colony must be applied; it is to try the questions before me as if the ship were an English ship of this colony, carrying these coolies on the high seas; and for the purpose of this point I also assume that these depositions returned by Mr. May comprise all the evidence, however much I may suspect that further evidence might have been, and whatever further evidence I may think, on so serious a charge as murder, ought to have been produced for the prosecution in reference to this man. I hold that the prisoner was beyond question under unlawful coercion, assuming, as I must and do assume, the law on board the Nouvelle Penelope to be the same as the English law here is, and on the authority of the Felicidade, Den. C. C., reserved, vol. 1, pp. 104–154, referred to and commented on in 1 Phil. Ini. Law, 333–334, it is to me clear that according to English law a man under unlawful restraint of his personal liberty at sea, as well as on shore, has a right to take life to free himself from such constraint on his personal liberty; and further, on the authority before cited, to use his masters’ or captors’ property necessary to effect his object, that object being in itself not only a lawful but a laudable object. This would seem to be the first law of nature, the right of self-preservation, of liberty equally with life, which is fully sustained by text-books and cases. Anderson’s case is this, that even if in a slave State where slavery is lawful, a slave kills any man in that State who endeavors to prevent his gaining liberty by flying into Canada, in Canada, and in every court of judicature under the imperial Crown, such slaying is not murder, and such a man is not to be given up, on demand by the State in which the killing occurred. See Anderson’s case, Forsyth C. & 0., 373; see also Mr. Hammond’ squestion, 243, evidence, H. of C. Papers 1868, No. 393. Neither is it a crime to take a horse to aid this escape of a slave; see Forsyth, C. & O., p. 370. The ease of the Creole is almost identical with the present; though demanded, the slaves were not given up; see 1 Phil. Int. Law, 333–34. The 1st volume Russell on Crime abounds with cases tending to prove these propositions. It is clear from the evidence that this prisoner and the coolies were being taken forcibly against their wills (there is certainly no evidence of consent by the prisoner) to a destination they desired not to go to; this is manifest in the depositions; from the wailings of some of the coolies; from the declaration by others, to the number of 100, that they had been kidnapped: from the marching the coolies on board under an escort of soldiers at Macao as if they had been convicts, and by the acts of desperation by two of the coolies, who jumped overboard to put an end to their miserable lives, successful (may I not say happily successful) in one case. I hold that this coercion, enforced as it was by cannon planted, and raking the coolies’ dens, and by grape-shot in reserve against these coolies, was a crime irrespective of the acts to abolish slavery. Again, the law quoted from Mr. Justice Forster in 1 Russell, p. 895, is thus stated: A man may repel force in defence of his person, habitation, or property, against one who manifestly intends and endeavors by violence or surprise to commit a known felony upon either, and the very exception mentioned by Forster, “this rule does not apply to any crime unaccompanied with force, as picking pockets,” points the rule as including such force and coercion as were here applied.

An English grand jury would find “No bill.”—Upon these facts I naturally ask myself what would be the finding of an English grand jury against this prisoner Kwok-Asing. A passage in the life of Sir T. Fowell Buxton, an English grand juror, illustrates this matter. The firmness of purpose of that broad-minded philanthropist and eminent man to move in the House of Commons in support of the emancipation of the slaves, was severely tried by a suggestion that it would occasion a slave insurrection in the West Indies. And now comes his estimate of the value of personal liberty, and his notion of the right of the enslaved man to assert his liberty. “If,” said he, (p. 107,) “a servile war should break out, and 50,000 perish, how should I like that?” He met this extreme supposition thus: “If I had two sons I would rather choose to have one free and one dead, than both living enslaved.” These words show that he would as a grand juror have found no bill against this prisoner. That was said in the reign of George the IV. There were grand jurors in that reign who differed from him, but A. D. 1871, I believe that every grand jury in England would find “No bill” against this man on the depositions, and upon like reasoning. For myself, I must say, that however horrible was the scene of contest and the carnage on board the Nouvelle Penelope, the depositions disclose such acts of enslavement and of illegal coercion on the part of the captain and his agents, all the testimony being ex parte out of the mouths of the coerced or hostile witnessess for the prosecution, as show that there was no violence or robbery beyond what was absolutely necessary to regain liberty, and that this prisoner, Kwok-Asing, was guilty of no offense cognizable by English law. If I had to charge a grand jury as judge, I should so lay down the law, and if I were a grand juror myself I should upon an indictment for either murder, manslaughter, or robbery, find “No bill” against this man.

Conclusion in law that prisoner ought to go free.—I have now disposed of the seven points raised by Mr. Francis, against which the attorney general has most strenuously and ably argued; but both facts and law appear to be in the main against his contention. Without again specially referring to all the points, I must now, apart from all moral and political considerations, and after discussing and confining myself to dry legal questions merely as such, conclude that as to the seventh point, as I must hold Mr. Francis’ contention sustained; and that as to some or one of his other six points, and of the other points suggested by me, the decision must be in favor of the prisoner, and it is enough in law if he succeeds on any one point. Mr. Francis has established to my mind clearly the right of his client, Kwok-Asing, to an order by this court for his discharge from the custody in which he now is. Upon the depositions I hold him free from all charge of crime on board the Nouvelle Penelope.

Was the Nouvelle Penelope a slave-ship?—I have long and most anxiously hesitated whether this case calls on me to do more than decide the dry legal questions on which I have given my opinion, considering that merely for my judicial decision in the present case, such further inquiry is not absolutely necessary; but I feel that any judicial consideration of the subject on a review of my decision would be incomplete if attention were not directed to the consideration of the six questions which I hastily sketched out, and at the end of the argument desired to be discussed before me. The attorney general, as he had a perfect right to do, declined to offer any observations on them. The ground taken by him (in which I do not concur) was that the questions were raised on supposititious facts, of which he said there was no evidence upon the depositions. I propose to examine the depositions and to see whether the foundation of facts is so merely ideal as it seemed to him to be. I am also clearly of opinion that it is my duty to open up every question as to the Macao cooly trade which may tend to exculpate or inculpate either the prisoner and the coolies on the one hand, or the captain and crew of the ship on the other. The following are the six questions which I put:

The first question.—In case the Nouvelle Penelope had been a British ship carrying these coolies on the high seas under the circumstances proved by depositions, would she or would she not have come within the 5 Geo. 4, c. 113, and would or would not the captain under that act have been subject to suffer death, “aspirates, felons, and robbers upon the seas ought to suffer,” up to 1 Viet., c. 91. when the penalty was lessened to transportation for a period of not less than fifteen years?

This question is expressly confined by its terms to the facts disclosed in evidence (“under the circumstances proved by the depositions.”) In the argument it was in effect insisted by the attorney general that I must assume that the law on board the ship was the same as the English law. I therefore asked, as I think pertinently, as the attorney general thought unnecessarily, what would the ship as an English ship be according to that law under the provisions of the consolidated slave-trade act, 5 Geo. 4, cap. 113? In the absence of argument on this point I may err, but I must come to such conclusions as I best can. I turn to the light of the interpretation of 6 and 7 Vic., c. 98, sec. 2, as to what persons are slaves, and find that all persons holden, i. e., for the time being, without reference to the length of holding for life or for years, that all persons holden in servitude as pledges for debt, and commonly called “pawns,” (in China, “pigs,”) or by any other name, are to be considered as slaves within the scope of the slave-trade acts. Again, the legal test of slavery is this: Is the man held at the time within the control, as to his actions, of another or of himself, jus alieni, as distinguished from jus sui? and I never saw any distinction authoritatively drawn between this status being, for life, or for a term of years. How easily would the slave-trade acts have been evaded if “engaging” Africans for years, say twenty or eight years, instead of holding them for life, had been resorted to as a subterfuge. It appears to me that ever since the jus gentium there never was a jus omium gentium, or, as it is better expressed, jus inter gentes, or international law, which originally existed only among nations professing the Christian religion. The taking and keeping of white men as slaves has been held to be “contrary to the rule of immutable justice and eternal right,” as forcibly expressed by Sir R. Phillimore in 1 International Law, p. 316 to 318. It seems to me that the slave-trade as confined to negroes was tolerated in Christendom as an exception, and only as an exception to this general rule of prohibition which had imperceptibly grown up, and that it was excused solely on the ground of the alleged low status in the scale of humanity of the black man. That the Chinese come within our definition of the white man is clear, not only from their color, but from their culture as a nation, with a literature studied with respect and profit by the wisest men of Europe, and from the diffusion of education among them, which is probably more general as to reading and writing than in France. Probably a greater percentage of the coolies on board the Nouvelle Penelope could read and write than among the like number of conscripts in France in the late war. At the sessions for this month, a legal contract was produced in a criminal case before me, drawn by a cooly, one of the class of men from which these kidnapped coolies are taken, which for propriety and clearness would have been creditable to any man in any station of life in England. Were the prisoner and his fellows not the equals in learning of the crew holding them as slaves? Without further preface to this circumstance, the consolidated slave-trade act, 5 Geo. 4, (as explained by subsequent enactments,) by 9th section provides that any subject of England who shall thenceforth upon the high seas knowingly carry or remove, or assist in carrying or removing any person as a slave, or for the purpose of his being brought as a slave into any terrritory whatsoever, or for the purpose of his being sold as a slave, or who shall detain on board any ship any such person, shall be adjudged guilty of piracy, felony, and robbery, and being convicted thereof shall suffer death “as pirates, felons, and robbers upon the seas ought to suffer,” and by section 10, merely to fit out or use a ship for any such purpose is declared felony, with transportation not exceeding fourteen years. There are other sections casting a very large net to catch offenders. I will assume from its general terms that this act prohibits dealing in white Chinamen as slaves as well as Englishmen and the abased African. Now, upon the depositions alone:

1st. Was this a slave-ship?

2d. Were the Chinamen on board slaves according to the true intent and meaning of the statutes?

1st. Was this ship a slaver?—As to the fitting up of this ship, Paul Parrot, one of the crew, states:

“The barrier across the deck, abaft the mainmast, was constructed of strong wood, about four inches square, seven or eight feet high. There were two open-barred doors opening aft in the barrier, and there was a cannon at each door with the muzzle pointed forward. The cannon were not loaded. The coolies were not allowed to go aft of the barrier. There was a sentry at one door during the day, and the doors were closed during the night. The coolies were all below during the night, and one of the crew stationed at the gangway. The coolies were not allowed to come up during the night excepting for necessary purposes. The crew were all berthed aft of the barrier. The ship’s arms were in the saloon and captain’s cabin. About twelve muskets and bayonets, some swords, and about twenty revolvers. These latter were in the captain’s cabin. I know that there was gunpowder on board and some grape-shot. There was no grape shot kept on deck.” According to the cases this appears to me to be prima facie evidence not rebutted of the fitting up of a slaver.

2d. Were the Chinamen on board slaves?—I assume, as I have before said, that white men, i. e., in this case Chinamen, are within the acts. I collect the evidence of the treatment to which this prisoner and the other coolies were subjected from the depositions. The chief witness, Wong Ahee, for the prosecution, deposed thus, under threats from a kidnapper, whom I consider as an agent for the captain. I expressed to the authorities my willingness to become an emigrant to Peru, but in my heart I was not willing, and I was afraid to say so, because Chea Ahfook (the kidnapper) told me if I did not say I was ready to go, I should be sent to Canton and have my head cut off! We find from the same witness also (p. 2) that three days after they sailed one of the “emigrants” !! jumped overboard and was drowned, and that the chief mate beat some of the coolies for playing at fantan. This witness further said:

“I was angry with Chea Ahfook for deceiving me. I did not want to go to Peru, but I was forced to go on board ship. When I went on board I was followed by two or three foreigners, and some of those belonging to the ‘barracoon.’ I mean, I and the party of about thirty coolies that went on board with me. Some of these were willing to go, some were unwilling, some told me that they came willingly, others that they had been kidnapped, and we talked over the matter. Some said that they would have to work eight years, and perhaps would not live to return to their country. I never talked about getting means to free ourselves.” Paul Perrot, one of the crew, deposes that while at Macao, and before sailing from Macao for Callao, a cooly jumped overboard and tried to swim to shore, and was picked up and put in irons for an hour; and that on the 3d October, when out of sight of land, one other cooly jumped overboard and was drowned, though a boat was lowered, thus preferring death to the coercion to which he was subjected, and who will blame a choice for which many an European has been eulogized as a hero, in preferring death to slavery. The same witness, one of the crew, describes how the coolies were taken on board, guarded as convicts would be:

“180 coolies were brought on board the first day. They came off in three boats; there were three, four, or five Potuguese soldiers in each boat with muskets and fixed bayonets. All the remainder of the coolies came on board in three or four boats the day before sailing, each boat had some armed soldiers on board. One of those that first came on board was crying, and the same night he jumped overboard, he was picked up out of the water, all the others were quiet, they had freedom to go where they pleased about the ship.”

One of the witnesses, Chun Apew, a petty trader of Canton, who, having lost all his capital in gambling, had voluntarily gone to Macao to “emigrate,” an example of the easy descent from the gambling table to the barracoon and slave ship, deposed as follows:

“On the 30th September, during the night, the vessel sailed, having 310 coolies on board. Many of the coolies appeared willing to go, but may others said that they had been kidnapped and were obliged to go. I believe that about one hundred said they had been kidnapped.”

Coming as all this evidence does from the witnesses for the prosecution, un contradicted, I believe, (though the attorney general calls it mere hearsay evidence,) that what they said among themselves when there was nothing to be gained by stating other than the truth, and according to fact. Out of 310 coolies this one man heard, and I believe what he says to be true, that 100 coolies said that they had been kidnapped. How many more of these coolies had been kidnapped does not appear. The attorney general contended that the captain was not answerable for the fact that these coolies were kidnapped. I abstain from attempting to measure his mere moral responsibility; but for the purpose of measuring the alleged guilt of the prisoner, I must consider that the captain, being in a “trade” notorious for its crimes, of kidnapping especially, was prima facie in law responsible for the kidnapping and fitting up of the ship, and the detention of the coolies on board, and if the circumstances raise a presumption against the captain that he knew that one only of the coolies on board had been kidnapped, then I think that in an English ship, fitted up as this ship was, he would be guilty of piracy within section 9 of 5 Geo. 4. Again, can I shut my eyes to the passages throughout the depositions, showing that these coolies or many of them had been inmates of and had been taken on board from out of barracoons, not said to be even under government supervision in Macao, that they had been thence marched under military escort to the boats, and accompanied to this ship by soldiers with “muskets and fixed bayonets.” The attorney general described this captain as being a French gentleman he was, then, a man of intelligence. He was for a long time at Macao; he must be taken to know something of the “trade” in which he was engaged, and he must be taken to have known how as prisoners these coolies were escorted on board. He must have known where and as applied to what infamous purpose the word “barracoon” was first used. He must have known that the word has been imported into Macao from Africa, that it indicates a place dedicated to the same infamous purposes as in Africa. He must have known that the word at first meant and still means a building to hold slaves with a view to their deportation, if he did not know the definition in Webster’s dictionary, that it is “a slave warehouse, or an inclosure where slaves are quartered.”

I now follow these poor wretches to their miserable prison on board the ship, and the witnesses produced for the prosecution, there were no others, describe scenes which one would think must excite universal commiseration and sympathy for the coolies and execration of the “trade,” if not of the traders.

“On the 3d of October between twenty and thirty of the coolies who were on the lower deck were crying, and exclaiming they had been kidnapped. A man named Kao-koong-mahn was talking to them. I heard him say, ‘Do not cry, my brothers; in two days more we shall go back to China.’ From hearing that I suspected that something was intended, but with that exception all was quiet and orderly. There was no disturbance. The same day one of the coolies jumped overboard and was drowned. The coolies had plenty to eat, and the crew of the vessel did not ill use them in any way.”

What a scene, twenty or thirty coolies crying and exclaiming they had been kidnapped! Is it to be presumed that the captain so separated himself from what was passing on board that he was in happy ignorance of these lamentations? I think the contrary is the presumption, and seeing where these men were, I assume that the words “kidnapped” men and slaves are synonymous terms, as a matter of intendment and common sense. I believe that no captain of an African slave-ship ever took his miserable victims from the gold coast with more full knowledge of the wrong he was doing to humanity than this captain had from the time he left Macao to the moment of his death—of the slavery, the misery he was inflicting on his live cargo. It is notorious that the cost of the saleable article “man” laid down in Callao is about $60 and under $80; the price of this same salable article “man” in Callao varies from $350 to $450; one successful voyage on this average exceeding some $50,000 profit. These considerations aggravate the crime towards these coolies, and towards this man as one of them, and show that the chief offender in this matter was the captain, and not this man, who costing the captain not $80 was expected to realize to the captain at least $350. The conclusion follows that, if this ship had been an English ship, and if the captain had been an Englishman, he would by law be a pirate, and punishable as such. I am yet to find the lawyer who questions the right of any man to effect his own liberty even by killing a pirate, if that be necessary. Was the suicide by a cooly a murder by the captain? I merely glance at one other point. One of the coolies, with the only attributable object of ending his distress by death, threw himself from the vessel into the sea. Why? Could he have any other assignable motive than to terminate his illegal imprisonment, and to set himself free by death? Did the illegal coercion of the captain occasion this act? Was it or not the murder of this man? There are cases in the first volume of Russell on the subject, but as the answer is not necessary to my decision of the case before me, I leave it to others to solve this question. I now proceed to consider my

Second question.—In case this prisoner and the other coolies had valuable property, as was in the case of the Annamites, which the captain had taken from them, and was keeping in his cabin, and was taken, and keeping their persons and their property on the high seas, would or would not the taking the property by the captain have been piracy, or at least such a state of circumstances as would have justified their rising, and, if necessary, killing the captain to regain their property and liberty?

In it I assumed it to be possible that the attorney general would have answered, and with cogent arguments, the first question in the negative. Without such arguments I have answered it according to my light in the affirmative. The object of this second question was to raise what is the obvious right of a man robbed to recover his property feloniously taken, and kept from him, and assuming the right which appears to me indisputable, to take from the robber by force, and at the risk of life, property res estimabilis when it is feloniously withheld. I raised the question, (if that be the right of an owner of property against a robber,) whether a man whose person is stolen, whose liberty libertas res inestimabilis is gone, has not the same right, to take the life of the robber of his person and liberty in order to recover its absolute possession. To me, in the absence of argument to the contrary, the mere statement of the question answers itself in favor of the prisoner.

Third question.—Would or would not the coolies on board the Nouvelle Penelope in either case come within the designation of slaves, according to the definition in section 11 of 6 Vic., c. 98?

Confined as this question is to the evidence in the depositions, there is nothing, as it appears to me, to take the status of the prisoner, Kwok Asing, out of that of slavery.

Fourth, fifth, and sixth questions.— No argument having thrown doubt on the preceding quesions, it seems to me that I may group the remaining, the 4th, 5th, and 6th questions; they are as follows:

4. Is there any, and if any, what difference in the status of slavery as dealt with by the statutes collected in 1 Rus., chap. 18, p. 243, ed. 1865, whether that status was originally brought about legally or illegally, by kidnapping or by voluntary consent to go?

5. According to English law, can a man by consent become or be a slave, and does his consent affect or not affect his status or the criminality or innocence of the person holding him in slavery?

6. Can he contract away his liberty any more than he can contract away his life, and if taking the prisoner’s life with his consent (e. g., shooting him) would be murder, would or would not taking his liberty with like consent subject the taker of the liberty to the same penalties as if it had been originally taken by force?

I will consider them together, and say that it seems to me that a now present status of slavery is as much within the words, as it is within the spirit, of the statutes against the slave-trade, whether such slavery was originally brought about legally or illegally, by kidnapping or by a forced or even by voluntary consent.

The views put forth in this colony compel me to refer to what elsewhere is assumed as axioms. Christianity teaches us that God made man in his own image, and breathed into him the breath of life—eternal life. It does so happen that this Christianity is the law of England, of this colony; and modern European philosophy in its own refined language teaches much the same doctrine of man’s equality with man, only (as it assumes) on a rather more subtle hypothesis. Well content as I are, and, as judge, must be with the law of the land, I must answer the question: Is it possible that such a being as man can according to law, a science of development, according to the law of A. D. 1871, become a slave, even by his own consent, I say it is impossible in law, as Sir R. Phillimore, v. 1, p. 316, has said in a passage I read with the most respectful concurrence, but too long for full quotation: “Of this great truth its sound has at last gone out into all lands, and its voice into the ends of the world.” A man can no more, as I infer from the same high authority, by contract, be authorized to take the liberty than to take the life of another. The proposition long enunciated by Locke, (who was in almost a minority of one in his time,) a proposition now universally accepted in morals, appears to me to flow from the first principles of English law, as they have been developed at the present time. French law is the same as English law as to the right to personal liberty: “En France quiconque a mis le pied dans ce royaume est gratifié, de la liberté!” 1 Phill. International Law, 341. France and Portugal by treaty with England, bought from Portugal by money, and by their internal laws, have each abolished the slave-trade, and by treaties between all European, and I believe all American nations and England, the slave-trade has been abolished, and I read in Sir R. Phillimore’s great work that France has over and over again declared it to be piratical. As yet English and foreign decisions have in most cases, but not universally, refrained from declaring the slave-trade piracy jure gentium, jure inter gentes; but these decisions were before the universality of these treaties, and when a case shall next raise the question after all recent treaties in the highest court of judicature for solemn decision, may we not expect that by international law, being a law of development, it will be held, that as between all nations who have by treaty declared the slave-trade to be piracy, it has become jure inter has gentes piracy? And has not Portugal, has not France, so declared over and over again, and is it not therefore in reference to these flags internationally piracy?

The Macao cooly slave-trade.—This brings me to the Macao cooly slave-trade. It was so designated by the Right Hon. E. W. Forster, speaking from the opposition benches, and deplored as such by the present Lord Derby, as the then foreign minister, speaking from the ministerial benches in the House of Commons, on the 26th of June, 1868, as I read in the Times’ report of the following day now before me. These authorities, the utterances by eminently representative men, justify the same designation everywhere by every man under the British crown. I was in hopes from assurances I received at Macao in 1868 that these “atrocities” were at an end, and laboring under the gravest mistake, I in our colonial legislature congratulated this colony on the 30th day of March, 1870, on the event. But this “atrocious” trade has increased of late, and coolies are now taken off just as the coolies on board the Nouvelle Penelope, to an estimated average number of 1,000 a month, and are in like manner banished from China, to miserable lingering deaths, chiefly in Peru, where by recent news 2,000 coolies have gone off into the mountains armed, in open revolt. It has been argued before me that because some forms of examination are said to have been gone into in Macao, said to be according to the law of Macao, that such forms said to be created by law in Macao so satisfied some exception to the general prior Portuguese law (the abrogation of which, being contrary to express treaty obligations, would be a casus belli against her) as to justify the treating these poor fellows and the holding them piratically as slaves; but at least the general law of Portugal remains applicable unless the terms of the legal, if there be any, exception, is proved, to be and if any such be compatible with treaty and general law. It must also be proved that all the conditions of Macao exemption have been complied with in each particular case. Failure in proof of compliance with any requisite to the exception vitiates the exception, (see Jean Bareaut’s case, 1 Phill. Inter. Law, 341,) and as regards the slaves on board this ship, no Macao law has been proved. Further, suppose it be proved that all these conditions have been properly complied with, that omina rite agi so as that the contract of slavery was effectual throughout Portuguese territory, would such exception be of any avail outside that territory, or be of any avail in a vessel on the high seas under a French or any flag other than that of Portugal? Can any Macao law prevail and exempt a French or other foreign ship from her own laws, or from national or treaty obligations? My answer is in the negative. The French law prevails—a slave puts his foot on French territory on the deck of a French ship, and he is free, notwithstanding any possible Macao law to the contrary.

The declaration between states that the slave-trade is piracy, is a matter very different from a grant of a right of search to discover and punish extra-territorially the acts so declared piracy. The latter is conceded even by the United States with the greatest difficulty, and only within limited latitudes, even where the former is explicitly made. I draw this distinction because the attorney general cited cases as to right of search in reference to slaves which do not touch, as it appears to me, the question of piracy or no piracy.

I am assured that the cooly slave-trade at Macao is carried on to the great distress of the much-respected governor there, whose efforts have been borne down in this matter possibly by the force of laws existing there, the repeal of which he cannot carry in the Macao council. This is not the only case in which a gigantic evil has been too strong for a governor, but I trust that he will persevere, and gaining strength from the increased greatness of the evil he has to contend with, assisted as I am sure he will be from Portugal, and as I know he will be by the Catholic priesthood, and especially by the Jesuit Fathers in Macao, he will ultimately put down this grievous evil.

Fearful retribution in cooly slave-ships.—But it seems to me that if cause and effect have their full operation, this abominable traffic will find for itself a terrible and appalling end. I have endeavored to make up a list of ships in which there have been cooly risings and destruction of the ship, and the voyages have failed. That list is not complete, but I believe that within a short period some six or seven ships, carrying about coolies, have been burnt or otherwise destroyed, with an immense loss of life, including captains and a relatively large proportion of the crews of these slavers. Will men who believe that there is a Providence—will men who hold that storm or tempest, a Nero or a Cataline, mars not Heaven’s design, not see a Nemesis in these events?

Origin of claim of rendition of this prisoner.—There can be no doubt that the demand of the rendition of this prisoner originated, not with the Chinese mandarins at Canton, but with the French consul. I should have liked to have seen his original letter. It was referred to in the argument for the Crown as sustaining the Chinese demand, but was not produced. Judicially I must decide as if there were no such letter. Doubtless, the French consul was induced to interfere by listening too readily to the ex parte statements of the coolie slave-traders, who hoped by terrorism to establish firmly their abominable trade. Kidnapping is a crime especially detestable among the Chinese, occasionally atoned for among them by lynch law; mandarin justice usually decapitates or most severely punishes a kidnapper. No mandarin would ask for the rendition of a Chinaman for killing a foreign kidnapper beyond the limits of China, in order to punish him. National sympathy would rather reward him, but after the Tien-tsin massacre peaceful relations with a French consul would be thought to be cheaply bought by a peace-offering of a few poor and friendless coolies upon his demand.

The execution of sixteen coolies in sight of Macao.—In a paper now before me, I see in the testimony of an eye-witness the narrative of an unparalleled scene. A China gunboat bringing from Canton sixteen poor Chinese coolies, who had escaped from out of the Nouvelle Penelope, (the crime was at least so assumed against them,) and landing them on a Chinese island within sight of the windows of houses in Macao; there these sixteen poor wretches were on the 7th of February last, with the pomp and circumstance of a grand ceremony as on a gala day, in the presence of hundreds of spectators, beheaded by Chinese headsmen, all being under the order of the French consul at Canton, who accompanied these men from Canton, and directed the proceedings as superintendent or sheriff. Men sickened at the scene.

Rendition of the prisoner sought for like object.—The rendition of the prisoner now before me, Kwok-a-sing, has been asked doubtless in order that he may be added as one more, and so that one by one, and at length a great hecatomb of vengeance may be completed on China land—a lasting monument of the humanity, of the Christianity, of western civilization.

Why did not France ask for this rendition?—The alleged crime was committed on board a French ship; why did not the French consul ask for this man’s rendition to French law? He knew that in the eye of French as of English law, this man was guilty of no crime, and he would not venture on such a demand.

Hope for investigation in Europe.—I hope that this matter will be, as I believe it will certainly be, duly investigated in Europe, that we may all receive such light and instruction as we each require, and so that what is right may hereafter prevail. If I am wrong in the view I have taken of the matter, I shall bow respectfully to correction from competent authority, but until my decision is reversed, that decision is, and must be, law in this colony.

1. This correspondence from the consul at Hong-Kong is printed here, the subject to which it relates belonging to China.