Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 4, 1871
Mr. Bailey to Mr. Davis.
Sir: Referring to my dispatch, No. 24, I have the honor to transmit the inclosed decision of the chief justice of the supreme court of this colony in the recent habeas corpus case of Kwok-a-sing.
In as much as this decision relates to the Macao coolie trade, and also refers to the Dolores Ugarte, I respectfully call the attention of the Secretary thereto.
I have, &c.,
Supreme Court of Hong-Kong, May 22, 1871. Before the Hon. Chief Justice Smale. Coolies not criminal for rising on the captain of a coolie ship from Macao to Peru.
The following judgment by Chief Justice Smale, on the return to a second habeas corpus of Kwok-a-sing, who had been committed by Mr. May, police magistrate, for piracy jure gentium and murder, and against whom an information for piracy, and robbery, and a deadly assault on the captain and crew of the Nouvelle Penelope, at sea, had been filed, and had been served on the prisoner. This decision follows up and carries out to its logical consequences the decision of the same judge on the 29th March last The judge unhesitatingly declares the right of coolies in the coolie ships for Peru to regain their freedom by any means in their power. It will be noticed that the prisoner was set at large.
Judgment.
Kwok-a-sing was committed to gaol by warrant of Mr. May, police magistrate, dated the 7th of February, 1871, in which it was set forth as follows: “That a communication having been received requiring the rendition of the defendant on behalf of the Chinese govenment as a subject of China, who has committed certain crimes and offenses against the laws of China, by participating in the murder of the crew of the French ship Nouvelle Penelope, and it appearing to me, upon investigation of the case, that there is cause to believe that the said defendant is a subject of China, and has committed the said crimes against the laws of China by feloniously seizing the said ship at sea, and by murdering the captain and certain of the crew of the said ship on the 4th October last past, at sea; and further, that after committing the said crimes, did feloniously seize a boat belonging to the said Ship, and land at a place called Pahka, in Chinese territory, on the 4th October aforesaid, and it was thereupon adjudged that the said defendant, for the said offence, should be committed to gaol for detention, pending the receipt of orders from his excellency the lieutenant governor, as to his further disposal.” I believe the practice has been, without exception, for the governor, on such a finding, to deliver up the person claimed to China. A writ of habeas corpus was obtained, and the prisoner was brought before me, when the superintendent of the gaol adduced the warrant, the purport of which I have just read, as the cause of detention. On the same occasion, Mr. May, in obedience to a writ of certiorari, returned to me the depositions on which his warrant was founded. After protracted arguments, and after very much consideration, the prisoner was, on the 18th of April, 1871, by this court, to use the words of section 6 of the habeas corpus act, “delivered and set at large upon” that “habeas corpus.” The prisoner was, as I understand, immediately after his having been so “set at large,” seized within a gun-shot of the court, as he was proceeding toward Taipingshan, in a house in which he had been arrested, and towards which I presume he was proceeding as to his home. Referring to what was said by the court in re Douglas, in Queen’s Bench Report, I make no observation, because in the view I take of this case to do so is unnecessary; but, if necessary, it is open to the prisoner to contend that such arrest vitiated the whole of the subsequent proceedings against him, or such of them as it is his interest to allege were unsustainable in law. Such an arrest was on a demand by the French consul for the prisoner’s arrest, made pending the hearing on the writ of habeas corpus before me, and upon a warrant granted for his arrest dated the 16th day of February last, at which time also that hearing before me was actually pending. An investigation upon this new demand by the French consul proceeded in the council chamber before the executive council, but the attorney general, on the 26th day of April, 1871, announced that the French consul withdrew his demand, and that investigation terminated suddenly, the prisoner being present. Immediately thereupon the attorney general directed the superintendent of the police to arrest, and he did arrest, the prisoner, in the council chamber, on a charge of piracy jure gentium. Under this arrest the prisoner was brought before Mr. May, who committed him for trial before this court in its criminal sessions. On an appointment made by me at chambers on the 10th of May, the court sat on the 12th, specially to hear a motion for a writ of habeas corpus directed to the superintendent of the gaol, and ordering him to bring up the body of the prisoner. I granted the writ and also a writ of certiorari for the depositions. Both writs were returned into court on the 15th, when I heard the motion on the second, the now pending, writ for the discharge of the prisoner. The following are the words of the substantial part of the second warrant of commitment by Mr. May, of the 10th of May, 1871: “Whereas the above-named defendant was charged, before me, on the testimony of credible witnesses, for that the said defendant, on 4th October last past, with a number of other evil disposed persons, unknown, with arms, upon the high seas, within the jurisdiction of the admiralty of England, and on board a certain ship or vessel called the Nouvelle Penelope, upon the high seas, then being in and upon one Vigoreux, the master of the said, the [Page 217] officers and seamen of the said ship, in the peace of God and our Lady the Queen, then and there being,piratically and feloniously did make an assault, and the said ship, and the apparel and tackle of the said ship, feloniously and violently did steal, take and carry away; and immediately before the commission of the said felony, the said defendant and the evil-disposed persons aforesaid did feloniously, wilfully, and of their malice aforethought, kill and murder the said Vigoreux, the master, Manfillent, the chief officer of the said ship, and Le Jusant, Paul Gigot, Francis Labert, Edmund Mongaret, and Ishmael Alphonce, seamen, and a certain Manila seaman, whose name is not known, of the crew of the said ship; and it was thereupon ordered that the said defendant should be committed to prison to take his trial for the said offense at the next criminal sessions of the supreme court.” Mr. Francis deposes that the piratical and felonious acts deposed to against Kwok-a-sing on this second occasion are the same felonious acts, and no other, as those in respect of which he was, on the 7th of February, committed. He also deposed that Kwok-a-sing was, on the 10th of May, committed by Mr. May, and the offense charged in that warrant is the same, and no other, as that for which he was committed on the 7th of February last. No affidavit in contradiction or explanation having been filed, I must take these statements so far as they are statements of facts, and not conclusions of law, as established for the purposes of the present decision. I may here note that for the prosecution reliance is also placed on the fact that an information equivalent to a true bill on an indictment by a grand jury has been filed. I have drawn out in a tabular form the several charges on the first commitment, which I held to be bad, and on the second commitment on the writ of habeas corpus, now under consideration, and as contained in the information filed by the attorney general now also relied on. The following table shows the sameness of the charge in one of the charges to those in the other two documents:
| No. 1.—Offense as set out on commitment, from which, on first habeas corpus, prisoner was set at large. | No. 2.—Offense as set out against prisoner on commitment, in respect of which this second habeas corpus is pending. | No 3.—Offense for which the information is filed against the prisoner. | |
| 1 | Feloniously seizing ship Nouvelle Penelope, and stealing her at sea. | Piratically and feloniously assaulting, and stealing ship Nouvelle Penelope, and her apparel and tackle at sea. | Piratically and feloniously seizing ship Nouvelle Penelope and apparel and tackle at sea. |
| 2 | Murdering captain and certain of the crew, without naming them. | Murdering captain and certain of the crew, naming them. | Assaulting captain and certain of the crew, naming them, and throwing them into the sea. |
| 3 | On 4th of October, 1870. | On 4th of October. | On 4th of October, 1870. |
| 4 | Afterwards stealing a boat. | No subsequent charge. | Piratically stealing $10,000 and 10 watches, in custody of, and against will of captain and crew, i. e., within the few minutes after outbreak, and before their death, on 4th October. |
| 5 | At sea. | In jurisdiction of admiralty at sea, and in peace of the Queen. | At sea, and in peace of the Queen. |
Excluding entirely from consideration, at present, No. 3, and considering only No. 1 and No. 2, Mr. Francis contends that they describe the “same offense,” and no other, and he contends that, under section 6 of the habeas corpus act, the prisoner is entitled to be discharged from custody. Neither for or against the prisoner has any case, as a precedent in point, been found in the books in this colony. I am, therefore, driven to work out for myself the precise meaning of section 9. Now, considering that the act was passed inter alia to prevent oppression by repeated arrests for the same offense, I read the operative words of section 6, as applicable to this prisoner, thus: That no person set at large upon any habeas corpus shall be again imprisoned or committed “for the same offense” by any person, other than by the legal process of the “court having jurisdiction of the cause.” I am of opinion that the subsequent part of this section, which gives a right of action, need not be referred to for the purpose now before me. Now, as I have said, I am bound to believe the uncontradicted affidavit that the offense mentioned in each of Mr. May’s commitments is one and the same, and no other. Moreover, the bad act which is the meaning of “offense,” as set out in each column, appears to me to be the same in substance. Now, who or what has authority given to him or it to again imprison or arrest the man set at large? The “court having jurisdiction of the cause,” and no other. Can Mr. May, or can his court, be so designated? Cox v. [Page 218] Coleridge, 1 B and C, 37, but which I always read in 3 Burns Jus., by Chetwyn, 1835, a most instructive case, with which I was more familiar some thirty or forty years ago than now, shows that, although when sitting to punish under a statute, Mr. May sits as a court, yet that when he sits as a magistrate, with a view to committal for trial before this court, his magistracy is not a court. His is a “preliminary inquiry,” and not a “trial.” But concede it to be a court, has it, or can it have, jurisdiction of the cause? Now, jurisdiction is an authority jusdicere, which has been well translated to pronounce judgment—to give a judicial decision that is to end and determine the cause, which Mr. May certainly has no authority to do. This simple etymological analysis conclusively, to my mind, excludes Mr. May’s power to commit as an exception to the general prohibition of a second commitment in the sixth section. I heard a cross-motion by the attorney general to quash the writ of habeas corpus, by reason that Kwok-a-Sing stands committed for trial at the next sessions before this court for felony, plainly expressed on the warrant of commitment. Now, this notice amounts to an admission by the prosecution that the charge of piracy in column No. 2 is a charge of felony equivalent to that set out in column No. 1. That is, that the charge on the second commitment is the same as the charge on the first commitment. But if that be so, then charge No. 2 is absolutely prohibited by section 6. The second ground for this cross-motion is this, that subsequently to the committal by Mr. May, and previous to the issuing of the second writ of habeas corpus, Kwok-a-Sing was duly served with an information (being here equivalent to a true bill by a grand jury in England) whereby he is charged with piracy and violence. Now, referring to No. 3 of the tabular statement before referred to, this information is identical in substance, though not in precise words, in charging the same offense (piratical and felonious being but different modes of designating the same bad act—offense) as the charges in No. 1 and No. 2. The taking of the $10,000 and the apparel and the ten watches, in the attorney general’s information, No. 3 of tabular statement, is laid as having occurred while these articles were in the custody, and to have been taken against, the will of the captain and crew—that is, during their lives; that is, between the first outbreak and their deaths, on the 4th of October, (a very short period.) These takings were therefore part of the main felonious, or piratical res gestœ. In respect of No. 1, I have already said that there was no legal ground of charge against this prisoner. On the present depositions, No. 2, still less can this prisoner be convicted, and I do not see how, on such evidence, the information No. 3 can be sustained in law, or how it is other than a charge to the same purport as Nos. 1 and No. 2, and on this information he is not a prisoner. The attorney general contended that this information, the purport of which appears in No. 3 of the tabular statement, takes Kwok-a-sing from out of the protection of section 6, and brings him within the provisions of section 7 of the habeas corpus act. My opinion is that there are no words in section 7 that take away the protection of section 6. That section 7 takes up a subject essentially different from the subject-matter of the enactments up to section 7. That seventh section confines itself to cases which proceeded without any writ of habeas corpus, and it provides for the then frequently occurring oppression of the subject, by repeatedly postponing the trial of the person charged. I am, on the whole, of opinion that Kwok-a-sing is entitled to be discharged, and I deliver him and set him at large. The attorney general having stated that officials from Macao purpose to come over, and to give evidence on the trial of this prisoner, I am, on that account, very much disappointed. The more thoroughly the whole history of the Nouvelle Penelope is ventilated the better for humanity. It will be lamentable if these officials cannot be examined and cross-examined in an open court. Macao would be as much upon its trial before the world as this poor, miserable man, Kwok-a-sing, who has been now, ever since the 6th of February, stretched on a rack of mental torture, compared with which the Chinese much-abused ordinary physical tortures would be bearable. In the course of the argument the attorney general asked from the court an order of detainer against the prisoner on account of the existence of the information filed by him. He offered no precedent for such an act by the court, and I know of no authority on which I could justify compliance with his request upon this hearing of the application on this writ of habeas corpus. The prisoner is free, and effect must, at the risk of a contempt of this court, be given to the decision of this court which sets him free. The questions arising out of the case of the Nouvelle Penelope have attained an unprecedented interest since that catastrophe has been followed by the horrible incidents connected with the deaths by burning of the coolies on board the Dolores Ugarte. Many seamen and coolies who have escaped from the appalling scene, a ship on fire, are now in this colony. It is due to the authorities at Macao, maligned as they are said to be, that this friendly government should publicly, by a commission of inquiry, elicit the truth, the whole truth authoritatively, and that this office should not be left to the conductors of the newspaper press here, whose active investigation, in the absence of a better organized and authorized inquiry, must be much less satisfactory, though honest. Such an inquiry will, I doubt not, be expected by the authorities at home. It will be looked for by the whole civilized world, which now sits in judgment as in international conclave on such horrors as these. Such an investigation is the more called for here [Page 219] since the Dolores Ugarte was fitted up, having all her slave-carrying appliances, in the waters of this colony. It has been asked why was she not stopped and prosecuted here? Could nothing have been done, either under ordinance No, 1 of 1862, section 7, or under that most comprehensive act of the imperial legislature, 5 Geo. 4, chap. 113, especially section 10? I can account for the past. No blame attaches to any one, especially with the notion prevalent as to what the law was. As to the past, while I claim credit for having acted according to my convictions, I am bound to, and do assume, that they who acted differently intended right, at least equally with myself. It would be useful to know what ship, and flying what flag, it was that towed the Dolores Ugarte out of the Macao roads, and whether any, and what insurers, and being of what nationality, secured as a debt of honor to the slavers the value of the living cargo of the Dolores Ugarte in the event that has happened. Not further referring to the past, if I am not mistaken even now, two, if not several, vessels are within these waters, under the control of the harbormaster, whose fittings and appliances plainly indicate their destination for that slave trade, against which, as by common consent, Chinamen make the only terrible protest in their power. Like Sampson, whom, from infancy, we have been taught to admire, (to admire is, in the young, to yearn to imitate,) they have immolated, and will continue to immolate their masters, heedless of the results to themselves. Macao and the coolie ships divide the large profits of this traffic, but has not this colony acted the part of the lion’s provider, and has not here a small part of the profits attending these adventures been distributed? If the answer be in the affirmative, must not this colony share, and does she not in fact, rightly or wrongly, share with Macao the discredit of this atrocious trade among the Chinese? To recur to the information filed by the attorney general against the prisoner, it charges that the Nouvelle Penelope was “in the peace of our lady the Queen.” That is a necsssary fact to be proved, to give this court jurisdiction to try this prisoner upon this information. On the depositions first before me I held that the Nouvelle Penelope was a pirate ship, as a conclusion of law. The evidence in the depositions on which exclusively this information is and must be founded and filed, (the attorney general can legally import no other into his mind.) is certainly in this respect, as to the prisoner’s guilt, ad idem, not more if so much. Now if she was a pirate ship can she, being an enemy of all mankind, be other than an enemy of the Queen? And an enemy’s ship is not in the peace of the Queen. (See Arch., Plea and Evidence, p. 366, 15th edition.) Whether the acts charged against this prisoner be piratical or not in themselves, has this court jurisdiction over acts done in a ship which, whether according to French or English law, is at the time in the commission of an act declared piratical by both nations, and therefore not in the peace of the Queen? But let it be assumed that these coolies were merely illegally coerced, an English lawyer must apply this principle to such a case. If a number of men are not in lawful custody they are not guilty of the murder of those de facto in authority over them. Being prisoners, they have a right to regain their freedom by any means in their power. This is the law to be found in R. v. Serva and others, 1 Den. C. C. R., 104, which see also in Roscoe, C. Evidence, 777, 778, and in 1 Rus., by Greaves, 247, 249. Moreover, R. v. Lesley, Bell, C. C., 220, goes to this extent, that the fact that men legally imprisoned, and so legally put on board a ship in Chili, (Macao,) does not render the continuance of that coercion in a British ship at sea legal, and the captain of a British ship was convicted and imprisoned in England for such false imprisonment at sea. These are mere suggestions in reference to any future consideration of this case, if any such there may be. I know that the atrocities of the coolie slave-trade, (unparalleled save possibly in the worst phases of the African slave-trade,) which have recently been brought to public cognizance, will arrest attention and excite horror wherever the English language is spoken, in the United States as much as throughout the British empire, and I trust that as good springs out of evil generally, so here, that the concurrent opinion and excited action of all Christendom, induced by these atrocities, will establish such a police on the sea as to render all coerced emigration (inevitably tending to the slave trade) impossible. In conclusion, I would adapt what was said of negroes by Montesquieu—no democrat, no fanatic, but a nobleman, a judge, and a French philosopher: “We cannot admit Chinese sea-borne coolie slaves to be men; to do so would soon lead to our believing that we are not Christians.”