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Colonial Cases

Summers, 1849

The History of the Laws & Courts of Hong Kong[NORTON-KYSHE.], (pps. 244-248), 7 June 1849.

   An incident which created considerable interest at the time and occasioned some debate at Home occurred in the old Portuguese Colony of Macao on the 7th June, 1849.  The English Chaplain at Hongkong, the Reverend Vincent Stanton, was at the head of a free-school wherein Mr. James Summers, an English youth of about eighteen or nineteen years of age, was an assistant-teacher.  On the date above mentioned, Mr. Summers, for recreation sake, made a short excursion to Macao, where he landed and walked about the city.  In one of the narrow streets, he met a religious procession, before which he saw all the people kneeling and making obeisance.  Knowing that this ceremony symbolized doctrines from which he dissented, Mr. Summers declined to uncover himself, though twice summoned to do so, first by one of the officiating priests, and subsequently by a soldier.  Upon this he was carried off, though without violence, to the guard-house, where he remained without having been confronted with any Magistrate for the whole of the night.  The next morning he was informed that the order for his arrest being a "Governor's order," no intervention of a magistrate was requisite, but that he would be left to abide the formal decision of the judicial authorities.  Pending this trial and sentence, he was removed to another lodging which he discovered to be nothing less than the common gaol. 

   The affair had now become disagreeable, and Mr. Summers naturally looked about for the means of his release.  He accordingly despatched letters to the American Consul, and to an officer whom he remembered to have been his companion in the boat, begging their good offices in his trouble, and these he speedily obtained.  The American Consul prudently reserved his own intervention until the countrymen of the prisoner had done their best, - a resolution in which he was further warranted by hearing that the affair had come to the knowledge of Captain Keppel, commanding H.M.S. Moeander, then accidentally lying in the Macao Roads.  Captain Keppel's proceedings in the matter were sailor-like.  He first called upon the Governor, accompanied by two officers, one of whom was Mr. Summers' fellow-passenger, and, after an explanation of the whole affair, requested the prisoner's release.  On being met with a refusal, he sent a formal application in writing to the like effect, and, when no better success attended this method of negotiation, he hailed his boats, mustered the barge's crew, marched quietly to the gaol under the guns of five forts, and within musket show of the Governor's bed-room, and released Mr. Summers from his confinement.

   Had the affair ended here, it would probably have created no great talk, but unhappily fire-arms were discharged in the fracas, and a Portuguese soldier named Roque Barrache was killed, three others being wounded.  Another victim was the daughter of the gaoler, a young girl named Carvalho, of twelve years of age, who, in a state of blind fright, jumped out of a window twenty feet from the ground, and received severe injuries on falling.

   This unfortunate loss of life naturally brought under discussion the conduct of both Mr. Summers and the Governor of Macao.  As regards the first of these points, persons were, of course, not wanting to assert the right and duty of a professing Protestant to refuse, under any circumstances, an act of homage to rites partaking, they considered, of idolatry; but a large numbed were inclined to lament that Mr. Summers should have been so unreasonably rigid in his practice, or, with such opinions, so inconsiderate in his wanderings.  He could not perhaps have been expected to recollect that the day he had chosen for his holiday - the Thursday after Trinity Sunday - was the festival of Corpus Christi, one of the most famous solemnities of the Romish Church, but he must surely have known that the city he was visiting was the seat of Romish doctrines and practices in their most unmitigated form, and that common sense no less than propriety should have prevented his intrusion upon scenes so likely to be perilous.  By his own version of the story, he seemed to have been so contumacious in his Protestantism that forbearance was hardly to be expected from the irritated multitude, and it was perhaps well for him that he was marched off in safe custody.

  The second point of the question was both more intricate and more important.  It will, of course, be needless to remind the reader that the settlement of Macao is one of the few relics of the colonial greatness of Portugal, but it may be advisable to add that it was not then considered, in the proper sense of the term, an independent possession of that Crown.  It was only held conditionally of the Emperor of China, being then absolutely part and parcel of the imperial dominions, and the Portuguese were simply invested with jurisdiction within the limits of the city over their own people.  The jurisdiction over subjects of other nations pertained, strictly speaking, to the sovereign of the Empire, and this jurisdiction, in the case of British subjects, had been formally made over to the representatives of the British Crown.  Mr. Summers, therefore, until the treaty entered into by Portugal as late as in 1887, and ratified in 1888, as mentioned under date of January, 1844, in connexion with the Consular Ordinance No. 1 of 1844, even if he had committed a cognizable offence, was according to strict jussive, amenable only to the colonial authoriser at Hongkong, and it was at their hands that redress should have been demanded.  On these presumptions, the Governor of Macao would appear to have exceeded his powers and to have fairly exposed himself to summary treatment by his violation of the rights of a British subject.

   Notwithstanding, however, the justification thus derivable from the letter of the law, it will probably be thought at this time that a little judgment and patience on the part of the British commander might have terminated the affair mort pacifically and creditable; but on this'd point, too, Captain Keppel's resolution admitted of much defence.  The refusal of the Governor to release his prisoner was coupled with an intimation that he would be tried "in course of law" by proper judicial authorities, and this "course of law" in a Portuguese colony was well known to be exceedingly slow.  More than one instance, in fact, had actually occurred within the last ten years in which British subjects had died from incarceration in the very gaol where Mr. Summers had been confined, and, as the Moeander was about to leave these waters instantly, the commander had reason to conclude that no time should b4 lost of the life of his countryman was to be saved.  So little seriousness was attached to the affair, that the Moeander's boats, after doing this piece of service, entered themselves at a regatta which was just coming off, and won sixty dollars worth of prizes the same evening, after which the frigate sailed for Manila.

   It was perhaps rather fortunate that the Governor of Macao was not on shore at the moment of the rescue, for reports concurred in representing him as a man who would have resisted to the last, in which case the Moeander's guns might perhaps have been turned upon the forts, and embroiled the matter still further.  As it was, he displayed the utmost indignation and fury, proclaimed a public funeral for the deceased soldier, and invited to the ceremony the captain of an American frigate lying in the Roads.

   The incident relating to Captain Keppel's unceremonious rescue of Mr. Summers from the hands of the governor of Macao had created considerable sensation in Lisbon, and copies of the Portuguese despatches were forwarded to the Ambassador in London with instructions to lay them before Lord Palmerston, and to request that the English Government should give such satisfaction and explanation as it might require for itself in a similar case.  The Portuguese Government appeared to concur in the version which the Hongkong papers had given of the occurrence at Macao, and the people of Lisbon seemed to have condemned the Governor of Macao for detaining Mr. Summers beyond the time necessary to protect him from any disturbance in the crowd, quite as much as British residents in Portugal disapproved of that gentleman's attending a religious ceremony which he was not prepared to treat with the outward show of respect usual at all processions of Corpus Christi in Catholic countries.

   A Council of State held by the Queen of Portugal in November unanimously voted Lord Palmerston's despatch to be unsatisfactory, and a further note was sent by Viscount Moncoroo, Minister of Foreign Affairs, which was said to have aggravated the indifferent terms upon which Lord Palmerston and the Portuguese Ambassador were said to have been.  The Portuguese appeared very sensitive upon the point, and complained that His Lordship had treated them with illiberally and chicane "in his endeavour to establish the English Government's jurisdiction over its own subjects in Macao by virtue of the treaty of peace with China," when, they contended, no such pretension had existed before that treaty, and that it ought not now, in the absence of express stipulation, to be held to alter a fact previously existing and tacitly recognized for centuries.

   The Queen of Portugal, in opening Parliament in January following, thus alluded to the matter in her speech:-

"I grieve to announce to you that our establishment at Macao has been the scene of two attempts against the sovereignty of my Crown and the law of nations, and my Government has already taken the necessary steps to secure the integrity of the establishment, the sovereignty of the Crown, and the dignity of the national decorum; it has likewise claimed the satisfaction due, which, I trust, will meet with attention and lead to a just reparation."

   The records of the time unfortunately contain contradictory versions as to what really was the nature of the "satisfaction" eventually given to Portugal.  At first it was asserted that Her Majesty's Government fully approved of Captain Keppel's conduct, and that there the matter had ended, though it would appear that the later reports contained a correct statement of the facts, and that Lord Palmerston with great reluctance had acceded to - first, that an apology be made to Portugal for the wrongful invasion of her dominions; second, that Captain Keppel be reprimanded for having caused it; and third, that the widow of the Portuguese soldier who was slain on the occasion be granted w pension of £20 a year; to the three wounded soldiers, $500 each, and to the daughter of the gaoler £50, and thus ended this unfortunate episode.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School