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Colonial Cases

United States v. Chow and Jimmy, 1876

[shooting with intent to kill]

 

United States v. Chow and Jimmy

United States Consular Court, Shanghai
Myers, 21 September  1876
The North China Herald, 30 September 1876

 

U.S. CONSULATE-GENERAL.

Shanghai, Sept. 21st.

Before JOHN C. MYERS, Esq., Consul-General.

Captain HARKNESS v. SAM CHOW AND JOHN JIMMY.

Shooting with intent to kill.

   The prisoners are natives of China, but they appeared in Court minus their queues and attired like Europeans.  They were respectively steward and cook on board the American barque H. N. Carleton, and had been apprehended under warrants charging them with assault and battery, and with shooting at the Captain (Captain Harkness) with intent to kill.

   The COURT at the outset said - This is a case of assault and battery committed on board the American barque H. N. Carleton, now in the harbour, and with shooting at the captain with the intent to kill.  It took place last night, and the circumstances are as follows:-

   These men, Chinamen by birth, were employed on the vessel, and last night they asked permission from the captain to go ashore.  Permission was refused them on the ground that they had frequently been permitted to go ashore, and because this permission to go ashore had not been used to much advantage either to them or to the ship. Their behaviour was improper, and their misconduct put the ship to inconvenience in consequence of their not being able to work the next day.  They were not allowed to go on shore.  The assault with intent to kill was committed with a deadly weapon, a pistol, which was aimed and fired at the person of the Captain.  I cannot proceed to the trial of this case in the usual way, for the reason that I have no authority for the summoning of a Grand Jury as required by the organic law of the United States, neither have I power to assign Counsel in a case such as this, nor can I admit Counsel for the defence; so that the disabilities surrounding the important office I hold compel me to take this case entirely into my own hands, and to decide it by the evidence and law that will be brought forward. The charge against these two men is assault and battery with intent to kill.  I do not know whether they understand the English language or not, but I presume they do. (To the prisoners) - Can you speak English?

   SAM CHOW - Yes.

   The COURT - You are brought here on a charge of assault and battery, and with shooting at Captain Harkness, on his ship in the harbour, with the intent to kill him; are you guilty or not guilty?

   SAM CHOW - I fired the pistol, but it was higher than the Captain.

   The COURT - (To the other prisoner.) You appear as particeps criminis in this matter; did you help the other prisoner to do this?

   JOHN JIMMY - The pistol went off.  The captain knows all about it.

   The COURT - The prisoners plead not guilty.

   The following evidence was taken.

   Captain HARKNESS deposed - I am captain of the barque H. N. Carleton.  I have brought this charge of assault and battery with intent tom kill against these two men.  It was committed last evening between six and seven o'clock, on board the vessel.  A t the time I was on the quarter deck, between the cabin door and the main mast, near the cabin door.  Sam Chow had hold of the mate, and I pushed him.  I told him (Sam Chow) twice to release his hold, but he refused to obey me.  It was then that I pushed him, and instantly he fired at me with a revolving pistol.  The pistol was very near my face, not more than a foot away.  The flash burnt my face.  The ball did not strike me.  The concussion affected me; I nearly fell, and could not see for several minutes.  I did not know Sam Chow was armed when I pushed him.  I was aware he had a pistol on board.  I do not know of my own knowledge whether the pistol was loaded with ball, or shot, or anything of the kind.  It was a cartridge pistol.  I saw two pistols after it was all over.

   (Two pistols were produced but prosecutor could not identify which was the one discharged at him.)

   I have seen the black pistol before.  I saw it in the possession of Sam Chow on the passage out.  I have not seen the brass pistol before. 

   (Both the pistols were examined and all the barrels of each were found to be loaded with the exception of one in the back pistol.)

   I shipped the prisoners in New York.  They are on the articles of the ship.  I cannot say how long they shipped for. (The articles were produced and it was found that they had shopped for two years.)  I do not allow my seamen to wear deadly weapons on board ship; officers of ships usually have then, but I have not seen any of mine with them.  I have a revolver in the cabin, but it has not been loaded for three or four years.  John Jimmy commenced the assault by striking the chief mate who was going to put him in irons.  He resisted and Sam Chow went to his assistance.  Besides myself, the chief mate, the watchman and a sailor were present.  They are all here now.

   JAMES L. FORRESTER said - I am chief mate on board the barque H.N. Carleton, and was present when the firing of the revolver took place by the steward, Sam Chow.  He did not fire in the air as far as I could see.  The flash from the revolver seemed full in the Captain's face; it made him stagger.  I cannot say what direction the ball took.  At the time the pistol was fired I had hold of John Jimmy.  I was going to put him in irons for disobedience and insolence to the Captain. He ran into the galley with Sam Chow.  I left hold of him to ascertain whether the Captain was shot or not.  John Jimmy resisted being put bin irons, and he struck me twice.  Sam Chow was violent to me before he fired the pistol.  After the pistol was fired the two prisoners ran and fastened themselves in the galley.  The locks on the galley door are inside.  I asked them to give up the pistols.  They refused and said they would not do so for their lives.  They used threats to shoot anyone who attempted to take them.  I did not try to break down the door.  I could easily have done so.  I was not afraid, but I thought it best to consult with the Captain.  I thought the authorities perhaps ought to be consulted.  We kept the prisoners in the galley because we thought if they came out the crew would handle them roughly.  The crew were excited, and I don't think they would have obeyed me if I had told them to be quiet.  They wanted to knock the galley door down to get at the prisoners.  I have been mate of this ship since the 29th of February last.  I have nothing further to say about this occurrence.

   JOSEPH KENNY said - I am a seaman on board the H. N. Carleton, I saw the occurrence on board last night.  There is no mark on the ship where the bullet struck.  I cannot say which way it went.  It could strike nothing after missing the Captain.  I frequently saw the prisoners with the revolvers produced in their possession during the passage out.  They occasionally fired them off.  One Saturday afternoon when they had them out they were told to stop firing and they did so.  We have good discipline on board the ship; we always have had since I have been on board her.  The Captain never had any difficulty with the prisoners before, to my knowledge.  I am certain the black pistol was presented at the Captain by Sam Chow, for he presented it at me when I attempted to stop him.  I was about twelve yards off when the shot was fired.  Sam Chow drew the revolver from under his Chinese jumper and swinging it round fired at the Captain.  It was so instantaneous that I could not prevent him.  I should most decidedly have done so if I had had the opportunity.  I am certain, of my own personal knowledge, there is no other seaman on board the ship carries fire-arms.

   GEORGE CROUGHAN said - I am acting watchman on the H. N. Carleton.  Last night I d=saw the mate attempt to put the cook John Jimmy in irons.  He resisted, and the mate did not succeed in fastening the irons on him.  I saw the other prisoner fire the revolver.  He drew it from the side of his person, and put it on a line with the Captain and fired.  The Captain staggered backwards at the time.  From where I was standing I should say the ball went a few inches over the Captain's head.  I saw the pistol which was fired, before this occurrence.  It belonged to Sam Chow.  I saw it in his possession.  I have only been watchman on board the ship since we came into port.  I shipped in New York.  I could not have done anything to prevent the Captain being shot.  Most certainly I should have tried to have done if I could.

   By the CAPTAIN - I heard the conversation between you and the prisoners before the assault occurred.  It took place on the quarter deck.  You did not say anything to irritate them in the least; you spoke to them kindly. About ten minutes before the occurrence I heard five shots fired over the side of the ship.  They were fired by the prisoners as if to see whether the revolvers were in working order.

   By the COURT - I did not see the revolvers reloaded, and I do not know anybody on board who did.  I was at the rear of the Captain when the shot was fired.  I did not hear the sound or whizz of the bullet.  I believe the mate heard the bullet whizzing through the air.

   The mate was recalled, and, in answer to the Court, he said he did hear the whizz of the bullet.

   This was all the evidence on the part of the prosecution.

   The prisoners had nothing to say in defence, and asked the witnesses no questions.

   The COURT - This is a serious case of assault and battery and shooting with intent to kill, and one which merits exemplary punishment.  It is for the sake of discipline as well as for the protection of lives on board vessels that an example should be made of a case so serious as this.  I do not desire to punish these two prisoners with undue or improper severity.  I have a regard for their situation; they were strangers in a strange land, in the united States, at the port of New York, where they probably became corrupted by the democracy, or rather the so-called democracy, that there is in that city, so as to employ fire-arms in assaults of this kind against real or supposed persons who they fancies desired to injure them.  This pistol is a deadly weapon, and it is in evidence that it was charged with ball and fired within a few inches of the captain's head.  This of itself is proof of the intent to kill.  Had the Captain been killed it would have been murder.  The object of punishment is to deter others from committing like acts of violence, and it is also to protect the community from individuals who are irresponsible and who go armed with deadly weapons and may without cause draw them and cause death.  Another object of punishment is to reform the prisoners.  That would seem to be the best and perhaps the only object of punishment; but society is not revengeful, and society at this age of civilization does not desire to see men cruelly or unnecessarily punished. 

   This offence formerly in England was punishable by death; insubordination of refusal of lawful commands on board ship was also punished with death; but society has advanced in civilization, and moderation, so that I am not now called upon to pass a sentence of this kind on these prisoners.  I will sentence Sam Chow to three years imprisonment in this Consular Gaol with hard labour.  The other man was not so bad, but he was particeps crimins and guilty of carrying a pistol - two pistols were taken from them - and I will sentence him to eighteen months imprisonment in the Consular Gaol.  I am further empowered by law to inflict a $3,000 fine, but as it seems that they were corrupted by their associations in New York I shall not put the fine on them.

   I may remark that for reason of good behaviour while in gaol there will be an abatement of 5 days per month, if the prisoners conduct themselves with respect and propriety.  The Marshall will now remove the prisoners and take possession of the pistols as trophies.

   The prisoners were then removed.

Sept. 25th.

   The two prisoners were again brought up this morning, under the following circumstances.

   The COURT said - These are the two prisoners in the case of the United States versus Sam Chow and John Jimmy.  They appeared in thins Court on the 21st inst., and the case against them was heard and decided.  They have applied to me for a new trial, for the reason that at that time there were no Associates present to assist in the disposition of the case.  On a review of the facts I feel it my duty to say that the proceedings on that day are to be regarded as simply a preliminary hearing, and the Court is free to confess that perhaps some error was committed on that occasion which it is proper should be acknowledged.  There are treaty provisions, in the Treaty of Tientsin, which gives concurrent jurisdiction in cases of this kind to the Chinese authorities with those of the United States, and as their rights were not in jeopardy at the former hearing, that hearing is only to be regarded as a preliminary act, the sentence as entirely in fault owing to the absence of an Associate, and a new trial consequently, can be justly granted.  I would not intentionally deprive any one of his just rights in any manner, however high or law may be his condition in life.  I will state that this case will now be adjourned, as disposed of for to-day, and that the trial will begin de novo to-morrow, at ten o'clock, at which time parties interested will appear.  

   The Court accordingly adjourned.

Sept. 26th.

Before J. C. MYERS, Esq., Consul-General, and H. E. the TAOTAI of Shanghai.

Captain HARKNESS v. SAM CHOW and JOHN JIMMY.

   The CONSUL-GENERAL - The alleged offence against the prisoners at the bar, who are Chinese subjects, was committed on board an American merchant vessel in the harbour, and in virtue of the Treaty of Tientsin the Chinese Authorities have joint jurisdiction.  I have submitted to their cognizance in this case, and leave it to His Excellency the Taotai at arraign the parties.  I now sit as Consul-General of the United States.

   Dr. YATES - The Taotai thinks it would be better for him to be supplied with a copy of the evidence of the foreigners given at the previous hearing and then he can take it with him and have it translated, and so clearly understand it before proceeding to examine these men.

   The CONSUL-GENERAL - Tell the Taotai that the case is in his hands, and that he can put any questions he pleases to the witnesses; and that then of he afterwards desires to have the notes previously taken, before a decision is had, that that is his right.

   Captain HARKNESS was then called and questioned by the Taotai.  He said 0- I am Captain of the barque H. N. Carleton, on which this offence was committed.  I am the person the prisoner Sam Chow shot at.  It took place down the river, not at Woosung.

   The CONSUL-GENERAL - One moment, I would announce that Mr. Eames appears here at the request of the prisoners, as their Counsel.

   Captain HARKNESS continued - As far as I know the reason the prisoners behaved as they did, was because I refused them permission to go ashore.  They desired to go ashore, and seemed determined to go, and I stopped them from going.  I would not allow them to go ashore and they disobeyed my orders, and that produced the trouble.  There was a sampan alongside the vessel with two women in it, and the prisoners wanted to get to them, and I would not allow them.  The prisoners shipped with me in New York;  one a little more than six months ago, and the other a little over five months ago.  They have been generally good in their intercourse with me previous to the arrival of the ship here.  Since we came into port they have constantly demanded more liberty than I could allow.  They have disobeyed my orders and gone ashore frequently without permission.

   Mr. EAMES - Do I understand that this is a Chinese Court?

   The CONSUL-GENERAL - Yes.

   Mr. EAMES - There is no charge made yet, but if it is a Chinese Court of course they must go on in their own way.

   Captain HARKNESS continued - The prisoners had the pistols on their persons; they did not pick them up from anywhere to shoot.  It is contrary to law for seamen to carry firearms.  I cannot say positively how they became possessed of them, but pedlars are always going round selling pistols, and men having money can buy. (At the request of the Taotai the pistols were produced.)  The prisoners had a pistol each, but only one of them fired.  It was Sam Chow who fired.  It was done so quickly that the by-standers could not prevent the shot being fired, and besides we apprehended no danger.  We were on the quarter deck at the time.  The cook (John Jimmy) came to me and demanded leave to go ashore.  I told him he could not go.  He then said he would go, and made a great deal of noise.  I told him to go sit, but he refused.  I called the mate and told him to put him in irons.  He resisted the mate when he attempted to put the irons on him.  The steward (Sam Chow) went to the assistance of the cook.  I gave the steward a push and instantly he fired.

   The CONSUL-GENERAL - Will you please ask the Taotai whether these men are subjects of China?

   The TAOTAI - I think so, but will ascertain.

   Captain HARKNESS continued - The cook did not fire but he had a revolver in his hand.  When the steward fired I cannot say whether he pointed the pistol at me or not; it was so quickly done.  There were marks on my face from the flash of the discharge when I appeared in Court before.  According to the evidence of the other witnesses it was the back pistol that was fired, but I cannot say which it was from my own knowledge.  It did not make my face bleed; the blood was just started.  It was only the powder that caught me or the shells of the bullet.

   The TAOTAI (to the Consul General) - You have heard the questions I have put to the witness; have you any questions to put to him now?

   By the CONSUL-GENERAL - These men are on my ship's papers.  They are shipped for  two years.  I cannot say whether they shipped as Chinese or not, but the papers are down below in the hands of Mr. Bradford. (The papers were produced.)  The names of the prisoners ware here - Sam Chow, native of China, 28 years of age; John Jimmy, native of China, 25 years of age.  I identify the paper as the ship's list of the crew, &c.  My signature is at the top of it.  I have no personal knowledge that the prisoners made threats of violence before this occurrence took place, but there is evidence in Court that they did.

   By Mr. EAMES - I gave the steward a push before he fired, but did not strike him.  I could not possibly draw blood in what I did. No one else struck him to the best of my knowledge.  The occurrence took place between six and seven o'clock in the evening.  It was dusk but hardly dark.  After the prisoners were arrested I saw blood on one of them.  I think it was on the steward.  It was not much; very little.  They were arrested almost immediately after the occurrence.  In the meantime Sam Chow had not been out of the ship.  There are no traces of the bullet on the ship.  It is impossible to find any traces of it for after it missed me it would go overboard.  I was not armed at all.  The chief officer was not armed.  None of the officers on board my ship are armed.  We had neither pistols, bludgeons, nor belaying pins.  We did not apprehend any danger.  I knew the steward had a pistol.  I saw it on the way out, but never thought he intended to do any harm with it.  I was not aware the cook had a pistol.  I imagine they used them on this occasion because they were determined to go ashore.  I don't think they had the pistols with them for self-protection when ashore, but simply to intimidate the officers to get ashore.  That is my supposition.  I did not take the pistol from the steward when I saw it on the passage out, because I never expected he would do harm with it. He was always in the cabin and different to the seamen.  I did not examine the pistols after the affair was over, but I understand they were both loaded.

   JAMES L. FORRESTER, the chief mate, was then called.

   By the TAOTAI - I am acquainted with the circumstances of the steward and cook wanting to go ashore and being refused.  When I took hold of the cook to put him in irons he had a pistol in his hand, and he struck me with it.  I saw it by the glare. (Witness explained to the Taotai the position of each person at the time of the occurrence.)  When the steward approached to assist the cook the Captain pushed him.  He did not strike him.  After the shot was fired the prisoners ran into the galley and locked themselves in.

   By Mr. EAMES - Both the prisoners did not pull their pistols from under their clothing.  The cook had his in his hand when I took hold of him first.  I did not see the steward struck.  When he fired, the captain staggered towards the rigging.  I saw no blood on the steward.  I did not strike him.  I have not struck a man on board the ship, and I was not going to commence with the like of him.  The first blood I saw was on the steward's lip as the policeman was walking him off.  I had no serious trouble with the prisoners before this affair happened.  I don't know what they had the patrols for, except it was to shoot some one.  I know they wanted to go ashore, but I don't think they had the pistols with them solely for that reason.  There are no marks of the bullet on the ship.  The parasol was fired in a line with the captain's head, and when the bullet missed him it would go overboard.  There must have been a bullet in this pistol, because it is a cartridge pistol, and all cartridges for pistols have bullets in them.  I did not examine the pistol after the shot was fired.

   The TAOTAI - How is it then when the first shot was fired he did not fire again?

   Witness - I don't know. After he fired he seemed frightened and ran into the galley.  I had hold of the cook at the time, and let him go to ascertain if the Captain was shot.  The cook then also ran into the galley.

   In answer to a question from the Taotai the CONSUL-GENERAL said he had no questions to ask the witness.

   Another wiriness was about to be called, but the Taotai said he did not think it necessary to have further evidence.

   The TAOTAI asked whether the prisoners were interrogated at the previous hearing.

   The CONSUL-GENERAL - No, by American law we do not interrogate prisoners.

   The TAOTAI replied that they did according to Chinese law.

   SAM CHOW was then called in front of the TAOTAI, and said - I am twenty-eight years of age.  My father and mother are living.  I have two brothers.  I am not married. I have been five years and a half in New York.  I shipped as cook in a steamer from Amoy.  I shipped on board the H. N. Carleton six months and twenty days ago.  I don't know whether the pistol would kill a man.  The reason I bought it was because the captains, mates, cooks, and stewards, on the packets running between New York and Liverpool carry them.  I did not know it was wrong to don so.  I did not know it was contrary to the regulations to carry a revolver.

   Dr. YATES - The Taotai says that, according to Chinese regulations, when a man speaks as this man does he should be bambooed to make him talk differently, and that he (the Taotai) is very much ill-pleased.

   Dr. YATES (to SAM CHOW) - Do you know that when you are on board a vessel, and receiving pay from the Captain, you are bound to obey the instructions of that Captain?

   SAM CHOW - I don't know.

   A long conversation took place between the Taotai, through his interpreter, and Sam Chow in the Fokhien dialect.  Dr. Yates said the substance of it was that the prisoner did not know because he was paid by the captain that he was always to obey his orders, that when the chief mate was going to put the cook in irons he thought it was not right and reasoned with him, and that he was struck, which caused him to fire the pistol.

   The CAPTAIN was re-celled, and denied that he struck Sam Chow.  He merely pushed him, and was no more out of temper than he was at the present time.  He did not make his node bleed.  When he (Sam Chow) was in the galley the sailors on board were much enraged because he had fired, and he might have been struck by them.

   Further conversation took place in Chinese, and Dr. Yates afterwards explained that Sam Chow had said he prepared himself with the pistol because he considered he was being badly treated.  Further, when he was coming into port he heard that there were a great many roughs in Shanghai, and that if he went ashore he was to look out for himself.  Having a watch and chain, and expecting to go ashore, he took the pistol to protect himself with in case he was molested or maltreated.

   Mr. EAMES - Do I understand that he has said he fired intentionally.

   Dr. YATES - Yes, because hew considered himself ill-treated.

   Mr. EAMES - Perhaps it would be well to  remind the Taotai of the fact that the Captain knew he had the pistol when approaching Shanghai, that he treated Sam Chow as a kind of officer, and allowed him to retain it in his possession.

   The CAPTAIN, in reply to the Taotai, said it was his duty to take fire-arms from seamen on board when he found any.  It was optional with regard to the officers, and he considered this man as an officer being always in the cabin.  He added that, after the affair, both the prisoners refused to give up their revolvers, and threatened to shoot any one who attempted to take them by force.

   The TAOTAI said refusing to deliver up the pistols aggravated the offence, for having shots undercharged it looked as if they intended to shoot some one.  It proved also that they must be aware the pistols would shoot a man.

   Mr. EAMES - But they ran away.

   Captain HARKNESS - Yes, they ran into the galley and threatened to shoot anyone who attempted to take the pistols from them.

   The TAOTAI said there were two views to take of the case.  If the Captain struck the man wounding him and causing pain, that would aggravate him, and in the heat of the moment he might draw the pistol and fire; and on the other hand, if the captain did not strike him at all it was a very different thing.  On these two points he desired it to be made as clear as possible.

   The CONSUL-GENERAL - The Captain says he pushed Sam Chow and did not strike him, and claims that the blood on his clothes was got in the galley.

   The TAOTAI - The Captain has a perfect right to strike a sailor, a man who is under him, when he refuses to obey his reasonable orders.  For disobedience a man ought to be punished, and if a man deserved to be punished he had no right to be angry, but if he became angry and committed an offence, where would be a different shade to his guilt from the case of a man who fired in coolness.  If a man who had been beaten and bruised from head to foot fired a pistol, there was a great deal of excuse for him, but there was no evidence of the kind in this case.  One of the men says his nose was bleeding, but that is a small matter - very little blood was shown.  The man had not been bruised and beaten in this case.  He had been guilty of carrying arms and using them in a way he had no cause to do.  The Consul-General has sentenced him to three years' imprisonment, which was little compared with the Chinese punishment.  It was of a different sort and very much heavier.

   The CONSUL-GENERAL - The Captain has a right to enforce discipline and to exercise incendiary force in doing so.  He has the right to put a man in irons, but he has no right to exercise more violence than is necessary to have his orders obeyed.  It does not appear that any excess of violence was used in this case.

   Mr. EAMES - There is certainly one point on which the Taotai seems to be mistaken.  He seems to think there was something wrong in this man carrying the revolver, whereas the captain knew he had it and did not complain.

   In answer to the Taotai Sam Chow said he was aware he did wrong, and was sorry for it.

   The TAOTAI - You don't show, by your demeanour here, that you are sorry for what you did.  If you were in my Yamen I should give you 200 blows to cause you to behave more respectfully.

   Dr. YATES - The Taotai wishes me to explain to the captain that these men are evidently not good men, or they would never have left their country to go to New York.  As they have misbehaved themselves he hoped the captain wills not take them back again, or any other Chinamen who have no one to go security for them.

   JOHN JIMMY was then called to give his version of the affair.  He said - I am twenty years of age, and have a mother and elder brother. I have been in New York three and a half years.  I went from Amoy in an English ship.  I did not leave Amoy with the other prisoner.  We left at different times.  I have been engaged on three different vessels.  I became acquainted with Sam Chow in New York.  After we arrived in Shanghai I wanted to go ashore to see a friend.

   In reply to the Taotai, Captain Harkness explained that the barque was anchored below the limits of the port because they had powder on board.  It was for the Chinese Government.  With powder on board they were not allowed to come up into the port.  They had been in port just a month when this occurrence took place, and he had allowed the prisoners to go ashore twice a week, and in addition to that they had been on shore two or three times without leave.  After being ashore the prisoners frequently came on board in a condition unable to do their work.  This often occurred and he remonstrated with them, but always in a friendly manner.

   JOHN JIMMY said that for six fays before the occurrence he had not been ashore, and he wished to go to see a sick friend.

   Captain HARKNESS denied this statement, and said that the prisoners were ashore without leave on the Saturday night previous to the occurrence, and when he and his wife went on board they found the cabin locked, and to get inside a boy had to be put through the window.

   JOHN JIMMY - We went ashore on the Saturday night because the Captain told us we could do as we liked.

   Captain HARKNESS - My orders are that no person goes ashore without permission from me.

   Dr. YATES - This man (John Jimmy) now denied he had the pistol in his hand; it was in his trunk.

   The CHIEF MATE - I saw the pistol most distinctly in his hand.

   At the request of the Taotai the mate was sworn.

   The CHIEF MATE -0 He had the pistol in his hand at the time I attempted to put the irons on him.  I saw it distinctly by the glare.

   The TAOTAI - It looks as if the man had not the pistol in his hands at the time, for if he had he would have fired it.

   The CHIEF MATE - I had hold of each of his hands, and was afraid to leave hold of them.  My attention was more on the steward when I saw him approaching with his hand under his coat.

   The TAOTAI - It is not clear that this man (John Jimmy) had the pistol in his hand, and he denied it.

   Dr. YATES said the Taotai could not believe the man had the pistol in his hand.

   Mr. EAMES - Pointed out that the witness spoke only to the glare of the pistol.

   Dr. YATES - But the witness said he saw it distinctly.

   The TAOTAI asked for more evidence on the point.

   JAMES KENNY, a seaman on board the barque H. N. Carleton, deposed that he plainly saw the pistol in John Jimmy's hands.

   Mr. EAMES suggested that if the man had the pistol in his hand it was obvious he had no intention of firing it, for they had it in evidence that he struck the mate with it, and, therefore, must have had plenty of opportunity to fire if he had been so disposed.  It appeared tom him that this man could only be charged with insubordination in port.

   The TAOTAI thought he had heard sufficient evidence, and asked to be supplied with a copy of the testimony given on the previous occasion.  He wished to take charge of the prisoners to punish them in accordance with the law of China after deliberation and careful e examination, and he would in due time communicate with the Consul-General as to what his judgment and punishment was.

   The CONSUL-GENERAL said he should like to consult with His Excellency as to the punishment to be inflicted.

   The TAOTAI replied that there were different kinds of punishment for different kinds of men and difference offences.  There were decapitation, strangulation, and other minds of punishment.  A man who had brothers could be banished, but a man who had no brothers could not.  Some had to look after their parents, and a man who had no brothers could not be banished.  These two men had brothers, and therefore could be banished.  He took a very strong view of their guilt, especially in reference to the man who fired the revolver, and he wanted them to be handed over to him so that an investigation could take place before the Shanghai magistrate, and just punishment inflicted.  He would like to have charge of the men in two days.

   The CONSUL-GENERAL - I will accede to His Excellency's requisition, but as a personal favour, certainly not I think as a right, I would ask him not to punish these men with death.  In our country an offence of this kind is not punished with death.  It is regarded as an offence not sufficient to justify decapitation or death, and I think it would be a pleasure or rather agreeable to all concerned to know that this offence will not be punished to that extent.

   The TAOTAI said as that was the expression of the Consul-general's feelings it should be so.  In the presence of all assembled he wished to state that the adoption of the plan of mixed examinations had an idea connected with it which was wrong.  Foreigners thought that if punishment was left entirely in the hands if the Chinese it was not inflicted.  That was not the case.  Their object was to arrive at the truth and act accordingly.  He was invited to come and sir in this case, and very willingly did so.  In China, in view of the relations which existed between each other, the Chinese held that they should be judged by their own officials in accordance with Chinese law.  Offences were punished differently according to circumstances, and it was only eight that they should be punished by the law of their own land.  The same applied in regard to Europeans and foreigners as being judged exclusively by the law of their own particular nationality.

   In this case he wished it to be distinctly understood that justice would be done.  An investigation would be made into all the circumstances, and the result would be communicated to the Consul-General, who would then know what had been done.  He had examined thoroughly into the case and did not wish any man to escape punishment who deserved it.

   The CONSUL-GENERAL - I am with His Excellency that he has evinced a disposition to examine into the merits of the case, and that he has done so with the view of ascertaining the full extent of the crime committed.  I believe he has also done so in the interest of the prisoners, and in the interests of justice, and I bow to his suggestion in reference to Chinese law, or otherwise I should not have invited him here.  I believe under the Treaty of Tientsin it was his right to sit in judgment of this case.  At first I had some doubts about it, but they disappeared.  I would repeat that I would have the Taotai not inflict death on these men.  Nobody has been killed, no personal damage inflicted, and as an act of mercy extended to them I wish their lives to be saved.

   The TAOTAI wished to have a copy of the evidence at the previous hearing supplied to him, and he would have that, together with the prisoners handed over to the magistrate  of the city, and he would acquaint the Consul-General as to the final judgment arrived at.

   The proceedings then concluded.

 

Source: The North China Herald, 30 September 1876

THE SHOOTING CASE ON THE "H. N. CARLETON."

   We fancy our readers will be somewhat surprised on reading the report of the trial of two Chinese at the U.S. Consulate, on the 21st inst., for shooting at the master of the barque H.N. Carleton.  It seems doubtful in the first place whether the Consul-General was right in trying in his own Court the two men who are of Chinese birth, and therefore subjects of China.  The Mixed Court would have seemed a more fitting place in which to deal with the case.  But this is more or less a doubtful point, and not the one which we purpose to discuss at the present moment.

   What strikes us as remarkable is the constitution and proceedings of the court itself.  In order to take cognizance of their offence, the Consul-General must have regarded them as liable to American law because the offence was committed on an American ship; and it is therefore by American form of law that they should be tried.  He cannot erect an independent Court to try a special case, but can sit only as President in an American Court.  Two distinct proceedings were necessary in the case; a preliminary enquiry should nave been held, as before a Police magistrate, ton ascertain whether ground existed for committing the accused for trial; and the formal trial which was held on Thursday could only properly take place after the men had been formally committed as a consequence of such enquiry.  The two proceedings seem to be here mixed up in one, in a way would would certainly not be legal in an English Court of law, and we fancy cannot be consistent with American procedure.

   But besides the omission of this preliminary enquiry, a still graver fault seems to exist in the constitution of the Court.  The Consul-General remarked, at the outset of the case, that he had no authority for summoning a Grand Jury.  Perhaps not, but he has authority under an Act of Congress to summon Associates to aid him in trying a case, and unless we are much mistaken no sentence exceeding 60 days imprisonment can be legally passed by a Consular officer without Associates.  It would follow, if we are right in this view, that the sentences of three tears' and eighteen months imprisonment passed upon the prisoners were illegal.  We do not for a moment argue that they were too severe.  The men are scoundrels, and richly deserve the punishment.  We are writing only on the point of principle. 

   And yet another feature which strikes us, in the case, is the Consul-General's remark that "he had no power to assign Counsel in the case, nor could he admit Counsel for the defence."  We are greatly surprised to hear such a statement.  We had been always under the impression that in American as in English law Courts it was always within the power of the judger to call on Counsel to assist an undefended prisoner; and we cannot but think that in this case Counsel would have protested at the outset against the constitution of the Court. 

   With the peculiar turns of expression in which the Consul-General indulged, we have of course no concern.  He is hardly complimentary to the democracy of New York, though it is perhaps true that it was in America the men learned the use of the revolver.  The question "are you particeps criminis?" as addressed to a Chinaman, sounds, too, rather strangely, as though it were supposed that Latin as well as shooting had formed part of their democratic education. B What really seems to us to be fitting subject for comment, is the procedure and constitution of the Court.

   After the above article was published in the Daily News, the Consul-General admitted the correctness of the argument, by having a new trial with the Taotai sitting as his associate on the bench.

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