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Colonial Cases

Death of Tshoy-nue-tseong, 1852

[inquest into death]

Inquest into the Death of Tshoy-nue-tseong

Mixed Court, China
6 January 1852
Source: The North China Herald, Shanghai, 10 January 1852


THE judicial proceedings at the British Consulate, on the 6th instant, a summary of which will be found in another column, were of peculiar interest not only from their novelty as to form, but in reference both to the principle and the interests involved.

A Chinese at Woosung, about 10 o'clock on the night of the 2nd of Nov., was shot down and killed at his own door, as it would appear in cold blood.  There seems to have been but one witness to the deed, a Chinaman, who being immediately behind the deceased in the passage, on hearing the shot and seeing hjis companion fall, stepped forward and observed in front of the door way a man with a gun in his hand, whom he recognized at once as a Portuguese seaman of the Receiving ship, the Emily Jane, known to him as "the Fifer."  This was the case for the prosecution, and it was met by an alibi which seemed satisfactorily to establish the fact that the Fifer had returned on board his vessel by nine o'clock, some hour or more before the murder was committed.  Such at least was the conclusion drawn by the Court, after careful examination of all the witnesses.  The Fifer was accordingly discharged from custody, and the Petitioners were informed that no sufficient evidence had been adduced to substantiate the charge, or to warrant his committal for trial. ...

[page 94]


An investigation in this case took place at H.B.M.'s Consulate Office, on the 6th instant, in the presence of the Taoutae, the Chee Heen, and the Magistrate of Paoushan, the district in which the murder took place.  The proceedings excited much interest from the circumstances under which the apparently unprovoked murder of a Chinaman had taken place, and the subsequent combination of a large number of the Canton men at Woosung to stop the Trade of the Emily Jane, the vessel to which the sailor belongs, whom they charge with the crime.  They were farther interesting from this being the first case here, and we believe in China, in which the provisions of the treaty to constitute a mixed Court of British and Chinese Authorities, to examine into the merits of a criminal charge, had been acted upon, or any attempt made to carry them out.  There was consequently a full attendance of Europeans in the Court, and in addition a large gathering of Canton men, who seemed to watch the proceedings with great interest.

The British Consul after the arrival of the Chinese Authorities opened the proceedings by adverting to the circumstances which led to the formation of a Mixed Court of Inquiry, and recapitulating the steps previously taken by the British and Chinese Authorities respectively; - the Consul's remarks were in substance to the following effect.

On the 10th of November, 1851, Tshoy-ngune-tung, a native of Canton lodged a complaint at the British Consulate stating that his brother, Tshoy-nue-tseong, had been killed on the 2nd November, by a shot fired at him by the "Fifer" of the Emily Jane at Woosung, and praying that the Fifer might be apprehended, and justice done.  In satisfaction of this demand the said Fifer was apprehended and brought to Shanghae, and evidence taken by the Consul on the 10th February, and again on the 13th with the assistance of two assessors, in the presence of the accused and his accusers.At the close of the proceedings, all the witnesses having been examined, the Court declared that the evidence adduced was not sufficient to warrant the committal of the prisoner, and he was therefore discharged; the Court adding that they conceived it very possible the Chinese witness who had given the only direct evidence against the prisoner might, in the dark and the agitation of the moment, have mistaken the identity of the man he saw.  This decision was communicated in Court on the same day to all the parties present. 

On the 15th November, two days subsequently, the Taoutae addressed the Consul, officially communicating the details of the murder as reported to him by the Chee Heen of Paoushan.  In this report it was stated but one individual witnessed the murder, the man named Tshoy Syeen, that no quarrel had taken place between the Fifer and the deceased, and that the murder was committed during the 2nd watch of the night, (from 10 to 11 p.m.), on the 2nd November.  The Consul in reply to a second letter from the Taoutae giving the substance of a petition presented by the wife of the deceased, communicated to the Taoutae the whole of the evidence elicited at the examination of the witnesses brought forward on both sides, and concluded by informing His Excellency that no sufficient evidence had been adduced to warrant him, the consul, in committing the accused for trial on the charge of murder brought against him.

Shortly after this the Taoutae again addressed the consul in consequence of a further representation from the wife of the deceased, in which she stated, -

That the Consul had gone carefully into the case, that the accused Fifer had confessed having shot her husband, and that the consul had fully committed him to take his trial for murder, but that on the 13th November a great general called upon Mr. Beale, and after a little conversation proceeded directly to the consulate and released the Fifer, and that in consequence the Fifer has since come to her house and threatened to burn it over her head, &c.

In which statement the Consul observed, that except as regarded the fact of a fair enquiry having taken place, there did not appear to be a word of truth.

The Taoutae in this letter also made reply to the Consul's letter of the 22nd November, (communicating the result of the examination before him) stating that -

As there appears to have been no cause of enmity between the deceased and the accrued, it is certainly not likely that the latter would have gone and murdered him so causelessly at his own door, But as the Mate of the Marsden, deposes to having seen the Fifer pursued by a number of Chinese at about 9 o'clock, it is possible that the deceased had then been just killed, or perhaps after being thus pursued the Fifer might have returned and revenged himself upon him.  For had he really been on board and asleep as deposed before the hour named as that at which the murder was committed, surely the friends of the deceased would not have persisted in brining home the murder top him in particular.  The evidence of the witness who saw the deceased fall and saw Fifer with a gun in his hand first stand and then run away certainly gives weight to the suspicions of the relatives.  At any rate, id not by the Fifer, the murder must have been committed by some one man and that a black man, and as there are not very many such at Woosung, it is possible to discover the real perpetrator.

On the 20th November, the Consul acquainted the Taoutae that if His Excellency could adduce any satisfactory evidence either that the Fifer, or any other black man belonging to a British ship was the perpetrator of the deed he, the Consul, would go into the case again in the presence of the Taoutae, and on the 16th December, the Taoutae having in reply stated that further evidence could be adduced, and that the Fifer's cap had been found and identified, the Consul appointed the 2nd of January, subsequently altered  to the 6th at the Taoutae's request that he might have time to summon the relatives of the deceased, and secure the attendance of the Paoushan magistrate.

In consequence of these arrangements the present Mixed Court of Investigation had assembled, due notice having been given to all the parties concerned; for although the consul might have taken objection to any new enquiry of this nature on the ground that the petitioner had voluntarily brought his case before the consul and pleaded in his Court, where every care had been taken to do justice, and the result had been the discharge of the Fifer from custody as one against whom no crime had been proved. - Yet in view of all the circumstances he had decided on waving any objection of this nature in order to accede to the Taoutae's request, and thus publicly show his desire to afford every possible facility to the relatives of the deceased to bring home the crime to any one who might be under his jurisdiction.  And in this view also he was glad to have the assistance of the Chinese Authorities, such mode of proceeding appearing, moreover, to be in accordance with the provisions of the treaty; the XIII Art. Of the General Regulations of Trade stipulating that -

If unfortunately any disputes take place of such a nature that the consul cannot arrange them amicably, then he shall request the assistance of a Chinese officer, that they may together examine into the merits of the case and decide it equitably.

And as this had been held by Authority to apply to criminal cases, it was under this provision that the present proceedings were instituted.

The Court was then declared open and the accused and accuser were brought forward.

Tsoy-ngune-tung, the petitioner and brother of the deceased being called and examined by Woo, Taoutae, stated what he had heard, and in substance repeated his previous statement, viz: that he was not present at the occurrence but on the death of his brother being reported to him he went to Woosung, and on examining the body found a gun shot wound in the right breast, he then returned to Shanghae and presented a petition at the British Consulate.

Tsoy Syren, the chief witness, being called was also examined by the Taoutae, and stated that the officer of the Marsden, told him that it was the Fifer who had murdered the deceased.'

Tsoy-tso, a helper in the house of the washer man examined, said that on the night of the murder he was in the house and just after it happened the chief officer of the Marsden came in and told him it was the Fifer who had committed the murder, and he the said officer opened his watch and said "it was 10 o'clock" soon afterwards he went out and about two chang off, he found a straw hat,, now produced, and the next day he took it on board the Emily Jane, and was told by "Old Frank" that it belonged to the Fifer.  The feast at the washer man's house began about 3 p.m., and was all over before 6 o'clock.

Tsoy Syren, called again, stated that the feast in the washerman's house began at 6 o'clock, and ended about 9.  There were 3 tables of guests that is about 24.  All had gobne about half an hour before the murder took place.  This witness was both violent and indecorous in his language when speaking of the accused and of Foreigners generally, and refused for a long time to answer to the direct question.  How long the guests had departed?  The Consul stopped the proceedings more than once to call upon the Taoutae to rebuke the witness for his unseemly language, and deportment, which was ultimately done but with manifest reluctance and with slight effect.

C. Balston, chief officer on board the Marsden, having been called and sworn stated that he had not seen Tsoy-tso (second witness), the night of the murder, and he understood indeed that the man was in Shangjhae at the time and only came down to Woosung the next day.  That he never said the Fifer had committed the murder, but that he had seen the Fifer come through the creek that he was led to the washer man's house a second time to learn the cause of a great disturbance and he then found him dead, this was a little after 10 o'clock.

W. Staunton, chief officer of the Emily Jane, having been sworn deposed that he himself saw the Fifer come on board just after two bells (9 o'clock p.m.) it was reported to him as a matter of duty the man having been found absent at 8 o'clock.  There is no probability that he could have left the ship again that night, he had had a gun on shore but it was sent on board at 4 p.m.  The straw hat is the Fifer's, Tsoy-tsoo brought it on board, the next day saying he had found it that morning near the creek.

C. W. Balston, recalled, when he went over the creek after taking the Fifer out without his hat, witness saw the washerman now deceased and spoke to him, when the hat was lost therefore and the Fifer ran across the creek, the washerman had not been murdered.

The Taoutae suggested that if not the Fifer it was probably the other black man of the Marsden, who was known to have been wounded in an affray with some of the washer man's party on that evening.  The man in question was therefore called in, when the chief witness Tsoy Syren who swore to having seen the murderer fire the shot, was confronted with him and repeatedly declared he was not the man, but the Fifer standing by his side was the murderer.

No further evidence on the part of the prosecution remaining to be produced, the Court was cleared and the accused returned to his ship the result of the former examination as to the insufficiency of the evidence to criminate him having been confirmed by the Consul, and not contested by the Taoutae; who nevertheless referred to the Chinese system of conducting such examinations and expressed a desire that both the blackmen (the Fifer and the other,) should be repeatedly examined and cross questioned until the truth could be elicited, which the Consul stated was a mode of proceeding altogether opposed to and prohibited by English law and custom, and could not therefore under any circumstances be adopted.

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