Consent on Trial: The fascinating case of the Maria Luz Incident (1872)

0:06

this is

1:07

answers

1:26

uh Yama good afternoon and welcome to the National Library of Australia I'm Dr Shirlene Robinson director of curatorial

1:34

and collection research I'd like to begin by acknowledging Australia's First Peoples as the

1:40

traditional onion owners and custodians of this land and give my respect to Elders past and present and through them

1:47

to all Australian Aboriginal and Torres Strait Islander peoples thank you for attending this event coming to you from

1:53

nunawal and nambry Country this afternoon's presentation consent on

1:58

trial the fascinating case of the Maria Luz incident at 1872 is Dr Bill

2:05

mihalopoulos a 2021 National Library of Australia fellow our distinguished

2:10

fellowships program supports researchers to make intensive use of the national library's rich and buried collection

2:17

through residencies of three months National Library of Australia fellowships are made possible through

2:23

generous philanthropic support and Dr mihalopoulos's scholarship is supported by the Harold S Williams trust for Japan

2:30

studies Dr mihalopoulos received a PhD in history from New York University and

2:36

is currently lecturer in Asian Pacific studies at the University of Central Lancashire

2:42

in 1872 the jet the fledging Japanese government found itself embroiled in an

2:48

international incident when asked to arbitrate on whether 230 Chinese indentured people on board the Peruvian

2:55

bark Maria Lewis were free laborers or slaves matters became even more challenging for the Japanese government

3:01

when it was accused of tolerating domestic slavery in the institution of licensed prostitution

3:07

in this presentation Dr Bill mihalopoulos investigates how Japan responded to these challenges that

3:14

crystallized around this so-called incident and uses it to investigate the rare moment when consent in contract a

3:21

fundamental concept that defines the modern world was introduced and modeled in Japan so if you could please join me

3:28

in welcoming him to the stage today [Applause]

3:38

uh hello everyone uh thank you for taking time to be here today uh today um before I begin I'd like to

3:45

acknowledge Australia's First Nations people the first Australians as the traditional owners and custodians of

3:51

this land and give respect to the elders past and present and through them to all Australian Aboriginal and torrents

3:58

straight island people um so I first came across the Mario lads

4:07

um incident uh when many moons ago when the dinosaurs were roaming the earth when I was an undergraduate and it was

4:13

through um Japanese feminist historians work on licensed prostitution and they saw the

4:21

Murray laws incident as a failed attempt at bringing fundamental reform to a long

4:28

tradition of licensed prostitution in Japan and it's been something that has sort of

4:34

been working through through various stages and I'd like to thank the Harold S

4:40

Williams trust for allowing me to have this time to think about it and share

4:46

with you the frustrations and rabbit holes have gone through in the last month

4:52

now normally when we when we talk about the Murray laws incident it we tend to

4:57

do focus on issues of whether it's slavery or not however I'm I take a

5:04

slightly different direction and I see the Murray Love's incident as an encounter with one of the unresolved

5:12

dilemmas within liberalism which is the contradiction between the commitment to

5:17

Liberty of persons with a commitment to the liberty of Contracting work relations and what that basically means

5:24

is uh in liberalism we believe that individuals should be free and we also

5:29

believe that individuals should be free to enter into work contracts but once you intend to work contracts there's all

5:36

these kinds of restrictions on what you can do and you can't do and a good case in point is at the moment if you try and

5:42

be very critical of your employer you most likely end up um

5:47

being fired because it's seen as against their interest

5:54

so fascinating is that

6:00

the proceedings were conducted primarily in English despite the judge and the

6:05

defendants and the litigants or not speaking English and that the

6:11

two trials were overseen by the Japanese foreign Ministry and not the Japanese

6:16

Justice minister so let me just start with

6:23

um oops

6:34

it's not working guys so here we go all right so um let me just start with giving a bit

6:39

of background um on the 11th of July 1872 the Murray Lads

6:45

hobbled into Yokohama port for repairs and it was an event produced by Chance

6:51

the captain of The Vessel um Ricardo Herrera reported to the

6:56

custom officers that the Murray loves Luz carried 230 free immigrants in

7:02

passage for peruse and allow me at this moment to thank Mr

7:08

for allowing me to use this wonderful photograph of one of the few representations I've seen of actual

7:15

Chinese laborers indent on a ship this is not herrera's first commission

7:22

to transport a human Consignment from Macau to Peru a lieutenant of the Peruvian Navy

7:29

Herrera had spent the last five and a half years in command of a so-called

7:34

Coulee vessels with Peruvian government sanction and when we talk about Peru what a Cooley ship or vessel means it's

7:42

ships um specially decked out in the hold to carry large numbers of

7:50

laborers in and also to be able to Shackle them when necessary

7:55

by his own admission he had shipped some 3 000 Chinese laborers to Peru and it

8:01

was common practice for captains of ships uh cooler ships to buy the services of Chinese laborers on private

8:08

speculation over the course of his six voyages Herrera returned to Peru with 130

8:15

Chinese men boys and girls allegedly recruited to work on his family estate

8:21

as laborers or servants his commission with the Murray lose was no different

8:27

and while Maude in Macau hadera negotiated uh service contracts

8:33

for 12 boys and girls under 15 years of age to work as house servants

8:38

now the key dilemmas of the Murray Luz incident is

8:45

um who has jurisdiction over a vessel that has short sought

8:51

shelter in a foreign Port because of bad weather or mishap at sea

8:57

and this was that this ambiguity and can be traced back to

9:03

efforts to prohibit slavery and the U.S position and the U.S

9:09

antagonism with uh Britain over where these lines of jurisdictions lay

9:15

from 1815 the position of the United States determined to protect of the United States

9:20

determined to protect its sovereignty by remaining outside International Trade treated regime set up by Britain against

9:28

slave trading was that vessels flying in the American flag came under jurisdiction of American law

9:35

the property and relations of persons and board vessels fell outside local

9:41

National laws in contrast the British position was

9:46

that while the law of Nations gave stricken vessels exemption from local laws it did not confer immunity

9:54

if a legal act such as the transport of slaves was committed in British

10:00

Waters then the extent of the immunity Phil to local courts to investigate and

10:07

adjudicate so there's a a conflict here of who's in charge when these when you

10:13

have a vessel that comes into port in distress and which laws apply the second

10:21

complexity to this case is the legal standing of the Chinese laborers the

10:27

laborers on board the Murray Luz occupied the in-between space of being

10:32

both passenger and the freight Herrera was commissioned to transport to Peru

10:38

the third added layer of complexity was a lack of universal legal consensus over

10:44

what constituted freedom especially when it came to indented labor contracts from 1841 to 1917 Great

10:54

Britain had created a massive system of laws and local audience audience audiences that facilitated the

11:01

conveyance of indentured labor officially revert referred to as voluntary and spontaneous free

11:07

immigration the United States however demicated the legal boundary between voluntary labor

11:13

and slavery differently in 1862

11:18

the U.S Congress introduced prohibiting um

11:23

American citizens citizens from procuring and transporting Chinese indentured laborers because it subjected

11:31

them to oppressive work conditions that are mounted in their words to slavery

11:36

so what fascinates me about the Murray lose incident is that it offers one of these

11:43

rare moments in history when we see these fundamental concepts such as consent freedom and slavery made and

11:50

refashioned in front of our eyes [Applause] all right

11:56

now the application of law does not happen in a vacuum to be effective law

12:02

must be seen as expressing the facts of the world judgment legal judgment also involves

12:08

interpretation interpretation based on precedence accumulated in past cases

12:15

this was especially true for the two hearings that generated the drama of the Murray Laz incident

12:20

most of the foreign diplomatic Community residing in Japan believe the Japanese

12:25

government lacked the authority to intervene in events that occurred on board the foreign vessel

12:31

to quite diplomatic agitation the Japanese foreign Ministry ensured the

12:37

provisional hearing and subsequent two civil suits are here to establish Western legal norms

12:43

legal arguments in both hearings were made by qualified British barristers

12:49

moreover in the Civil hearings civil hearing both barristers adhered to

12:55

the mid-century British common law understanding of service contracts as

13:00

embodying voluntary and consenting labor and it's to this understanding now I want to turn to

13:06

British Notions of indentured labor migration as pre-immigration

13:12

crystallized around a social imaginary that constructed freedom narrowly to the

13:19

anti-slavery prohibition of ownership in persons crucially anti-slavery rhetoric

13:25

resonated with contemporary British economic debates by the time of the passing of the

13:30

slavery abolition Act of 1833 slavery was equated with despotism and

13:36

economic autocracy free trade was equated with voluntarism and consenting

13:42

labor in the process the material valid value attached to people accumulated and

13:50

attached to people transported to the Colonial plantations in the Atlantic and

13:56

Indian oceans also mutated those who were transported now no longer

14:02

were defined as property for agriculture and domestic work but were reconceived

14:07

as an item of exchange this thing called Labor whose value was determined by the

14:13

forces of supply and demand the first migration of in the first migration of contract labor uh was the

14:22

transportation of Indian laborers to the British Plantation colony of Mauritius

14:27

in 1834. and it also this system also

14:33

provided the prototype for the practice to be replicated elsewhere individual Indian workers were recruited

14:41

in the native domicile and transported to Plantation colonies for a three to

14:46

five year term of service the move from slavery to indentured labor contracts followed a

14:53

well-established judicial template from the 1800s English law framed the

14:58

performance of manual labor as a contractual economic relationship which

15:03

simultaneously defined the work relationship between manual worker and employer

15:09

as the performance of service via pre-capitalist Master servant laws

15:16

the master servant laws were very specific that only apply to manual laborers

15:21

laborers who relied on wage work for survival their use of indentured labor to replace

15:27

slave labor coincided with the profession proliferation of almost 2 000 Master

15:34

servant statutes and ordinance in more than a thousand British colonies including the one that now we're

15:41

standing on as indane as indentured labor came under master servant laws working work

15:48

relationship work relations were not based on any formal conditions of contractual equality

15:54

for the indentured labor the freedom was very narrow it was no more than the choice to become a law-abiding price

16:01

taker for their labor getting paid a wage however meant concern consenting to serve another

16:09

Master servant laws gave him gave the employer command over the indentured laborer while simultaneously granting

16:18

um the employer the freedom to draw up existing Colonial laws and regulations

16:24

to compel work excuse me the Liberty given to the employer

16:30

included melting out corporal punishment levying fines for forfeiture of wages and in

16:37

extreme instances calling on local magistrates to enforce imprisonment

16:44

if work quotas were not met the initial challenge for the British government in enabling and facilitating

16:51

the transport of indentured labors was how to keep it unsullied from the

16:57

horrors of the middle passage this was a multi-layered problem first plantations still follow the same

17:04

production procedures that existed during slavery conditions second the plantation continued to be

17:10

organized around the same division of labor as slavery where people of color did

17:15

hard physical work and Caucasians managed third there were no Provisions for

17:21

enforcement of contractual arrangements to prevent abuse the concepts of good faith

17:28

and mutual trust essential to the criteria of consenting contract were not

17:34

um statutory elements thus leaving enlisted labor is open to abuse

17:40

the British government's response to this problem was technical administrative rather than trying to

17:46

establish new rights for workers government tinkering became began in

17:51

1842 when the Recruitment and transportation of Indian indented laborers came under government control

17:57

to prevent irregularities that could be misconstrued construed as slavery

18:03

the markers of slavery were high mortality rates at sea speculative labor Ventures that

18:10

auctioned human Freight in public marketplaces and the physical abuse

18:16

melted out by plantation owners

18:22

before long a sprawling bureaucratic system developed across the colonial British

18:29

colonial office land and immigration commission and various colonial governments

18:34

detailed regulations were incrementally applied to cover all aspects of

18:39

recruitment passes sorry aspects of recruitment passage and return of the indentured

18:46

laborers key to this system was official scrutiny

18:51

of the conditions of contract which involved confirmation by both parties that they were clear about the terms of

18:58

Engagement in front of a salaried British official

19:03

by the 1850s British public opinion was trumpeting indented labor as spreading

19:10

the virtues of Free Labor of the three labor time wage system across the span of the world

19:16

to the offering of regular wages it was asserted created the conditions of Liberation and betterment to the peoples

19:23

of Asia caught in a state of poverty and destitution British legislators bureaucrats and

19:30

publicists were convinced that any system of contracted labor applied to

19:36

the new part of the world without the same level of oversight and regulation would degenerate into spec into a

19:44

speculative Venture and easily lapse into a trade characterized by fraud and

19:49

kidnapping now Britain was not the only country to experiment with indentured labor

19:56

migration Peru 2 turned to immigration labor to replace slavery when South China emerged

20:03

as a major trading hub for Global labor in the 1840s from 1849 to 1874 an

20:13

estimated 92 000 Chinese laborers were transported to Peru by Spanish-speaking

20:19

agents moreover from 1857 Macau became the

20:25

major and vocation hub for contracted for Chinese labor earmarked to work in

20:31

Peru foreign both Britain and Peru benefited

20:38

benefited greatly from the global indentured labor system promoted and

20:43

encouraged by both sets of government however by 1854 the British public was

20:50

condemning the labor trade operating from Macau to Peru as a new form of

20:55

slavery it's it is important to note that the British censure did not deal with the issue of indentured labor migration per

21:03

se but rather the weight of condemnation fell on the fact that the regulatory

21:09

mechanisms um were not fit for purpose to deal with the endemic cruelty that defined the

21:17

Macau Peru trade in Chinese labor uh the the next

21:22

um uh event that sort of causes this issue to intensify was in 1859 when the

21:31

British officials in China adopted a policy of active intervention in labor

21:38

trade occurring at Chinese ports the change in policy was driven by British geopolitical concerns that linked the

21:46

protection of British gains in China to the survival of the Qing emperor empire

21:51

after the end of the second Opium War which was fought between 1856 and 1860.

21:58

at the same time Macau became the major labor trading Hub in China

22:03

private European labor agents based in Macau sub subcontracted recruitment to local

22:11

Chinese brokers the local Brokers worked on commission and often resorted to

22:16

crimping which was kidnapping trickery intimidation and violence to supply

22:21

able-bodied men to the barracunes and Macau a practice that successive British consuls identified as subject to penalty

22:30

under the slave trade Acts the local Brokers were particularly

22:35

active in the Guangdong Province which fed the anti-forign agitation and unrest in the trading Port City

22:42

of Canton British officials in London and China fear that the disorder and unrest

22:48

generated by the unregulated trade in Chinese labor coupled with the volatile

22:54

situation in Guangdong Province would jeopardize the gain secured by British interests by treaties

23:01

to offset this Danger the British established a system of immigration regulation with the consent

23:08

of other European consulates residents in Canton widely known as the Canton system

23:16

um government registered immigration houses um acted as Clearing Houses for Chinese

23:22

laborers wanting to work abroad before any potential migrant was giving a certificate to travel

23:29

from Canton British and Chinese officials would scrutinize the willingness of prospective migrants

23:37

to work under contract to ensure that the parties themselves really consent to

23:43

the agree to the arrangement at the same time the British ligation in

23:48

Kang Tong identified labor immigration from Macau as illegal and as a form of

23:54

slave trade disguised as free immigration despite British diplomatic pressure the

24:00

trade in Chinese labor became mancow's main source of Revenue by 1861 Macau was

24:07

the primary departure port for Chinese manual laborers Bound for Spanish Cuba and Peru

24:14

under contract successive Colonial Governors began introducing regulations that dovetailed

24:20

with the procedures established by the British British in Hong Kong and Canton

24:26

to to escape further International sensor despite the best efforts of the Macau

24:32

authorities however Portuguese settlements labor trade to Latin America remain notorious as a new

24:39

form of slave trade in the British imaginary a primary reason for this was the wide

24:45

dissemination of public bulletins of the personal observations by British diplomats

24:51

and medical officers and judges stationed in China that asserted that the labor trade from Macau to Peru was a

24:59

form of slavery Run for the benefit of a few foreign Spanish-speaking labor agents

25:05

the reports constituted an expose on the corruption and slap dash

25:11

enforcements of regulation in Macau due to the vested public and private interests

25:17

the reports narrated how vulnerable Chinese men were deceived or kidnapped by local crimps transported to Macau

25:24

where upon their herded into grimy barricoons under armed guard

25:30

threatened by foreign immigration agents and made to sign contracts they could not read or understand and bundled on

25:38

board ships against their will details coming from from Peru were also

25:44

disapproving local press articles and intelligence sent back by British consuls

25:51

told of Chinese laborers brought and sold into public auctions to life completely at the Mast the immersive

25:58

Masters beyond the restraints of laws Masters who ill-fed them

26:04

can find them can find them sorry

26:10

oh [Applause] I am so sorry [Applause]

26:17

uh confine them to barracks and arm guards we're not working and who branded them with irons in the same fashion

26:24

as slaves

26:30

it was these types of reports that inflamed British passions leading to

26:36

public cause for the government to use its power to suppress this Infamous

26:42

trade in China trafficking in Chinese people the British government's position was

26:47

that it had no authority to stop ships sailing from Macau to Peru

26:52

Britain was unable to make the abolition sorry Britain was able to make the abolition of slavery into an

26:59

international agenda by bi-national treaties with other countries including

27:04

Portugal these treaties gave the British royal Navy the right to intervene if a ship

27:10

was suspected of being a slave trader however as such by national treaties did

27:16

not exist in the case of the so-called curly immigration

27:21

um regulation was a matter for local National laws and not international law

27:28

consequently the British government's position was that it had no right of interference except to give friendly

27:34

advice to other governments as it thinks fit and it was this British friendly

27:39

advice that shaped Japan's response to the Murray laws incident

27:50

the Murray laws incident was under Charter to the labor agent Nicholas

27:56

tanker Amero who had a very Infamous reputation as being one of the major

28:01

traders in Chinese labor to Cuba and Peru

28:06

and he had consigned Herrera to transport a cargo of contract laborers

28:12

and on completion of the journey Herrera was to receive 14 pounds for every

28:17

contracted laborer who survived the journey and if all everyone survived was a total

28:23

of more than three thousand pounds however if her data was unable to

28:28

complete his commission he was liable for a thousand pounds for breach of contract according to the terms of

28:35

agreement uh the Murray loses Consignment was to

28:41

238 indentured Chinese laborers by the time it reached Yokohama it was 230

28:48

. um seven people had died by jumping aboard committing suicide and one person had succumbed to illness

28:55

and and this also drates on these ships was quite significant

29:00

on the 9th of June 1872 the Murray laws encountered the severe

29:05

storm in open water that left it without foremasts and a damaged main mast

29:11

three weeks later on the 11th of July the vessel limped into Yokohama port and

29:16

moored a half a mile away from Shore for repairs and away from all other ships

29:22

anchored there too um it kept a distance from all other

29:27

vessels and none of the Chinese men were allowed to alight despite herrera's best laid plans events

29:35

took an unexpected turn in the early morning of the 13th of July

29:40

the crew of the English warship are in Duke rescued a man floating alongside the

29:46

flagship in an exhausted and drowning state the rescued man indicated he had jumped

29:52

overboard from the murielas anchored some 500 meters away he also claimed

29:57

that his countrymen had been in track kidnapped and put on board the Murray Luz against their will

30:03

the next day the captain of the Iron Duke placed the man in care of Russell Robertson the British Consulate Yokohama

30:11

Robson Robertson Julie handed the man over to the local Japanese officials the

30:16

Japanese authorities summoned Herrera who immediately demanded the Chinese man be returned to

30:23

his charge the Japanese authorities agreed but not before gaining assurances from Herrera

30:30

that the mayor would not be subjected to any punishment and at this point the Japanese authorities considered the matter closed

30:38

but concerns about the well-being of the Chinese men on board the Murray Lads refused to go away

30:44

on the 20th of July another man jumped overboard and was rescued by the Iron

30:50

Duke and asked for protection and not to be sent back to the Murray laws

30:58

um the captain of the Iron Duke decided against transferring the second man to

31:03

the to the Japanese Authority instead he had the ship officers do a whip around

31:10

amongst themselves collect some money and then they set him on Shore at Liberty

31:17

a few days later said Edmund Hornby the chief judge of the British Supreme Court for China and Japan who was in circuit

31:24

in Yokohama contacted the Diplomatic attache of the British ligation Watson on the

31:32

circumstances of the second rescued man and several other Chinese men who had

31:37

swung to shore from the Murray Luz hornberry reported that Herrera had led

31:43

an armed crew to shore forcibly recaptured all the men and returned them to ship under arm guard

31:51

hornsby's interest in the events unfolding around the vessel were not arbitrary his first post was it was as

31:58

commissioner of a mixed British and American commission between 1853 and 1855 established to settle outstanding

32:06

individual claims between Britain and the United States one of the cases Hornby was asked to

32:13

arbitrate was acclaimed by American slave owners for compensation for slaves liberated by British officials on board

32:20

the U.S Merchant vessel Enterprise The Vessel was active in the U.S

32:26

Antebellum domestic slaves trade where Surplus slaves from markets in the

32:31

upper South was sold and transported to plantation owners in the Deep South

32:37

the case of the Enterprise shared many similarities with the legal issues crystallizing around the ill treatment

32:44

of the Chinese men on board the Murray Luz

32:49

Hornby and Watson paid a visit to the Japanese foreign minister soyjima tanaomi to discuss the treatment of the

32:57

Chinese men on the Murray loves a few days later they found him in an agitated State at

33:03

The Audacity Of Herrera to lead a crew of armed men on Japanese soil with no

33:08

regard for Japanese sovereignty sovereignty Hornby took the opportunity to convey to

33:13

sujima that Japan had the right to intervene in the matter Peru was a non-treaty nation and that's

33:20

the matter fell under Japanese jurisdiction and could be dealt under local law

33:25

it would be naive to inscribe hornsby's actions solely to altruism he saw the marila's incident

33:32

uh that marilla's case as a as an opportunity to curtail the trade in Chinese labor from Macau to Peru by

33:40

inserting English practices within the new league new hybrid legal system taking form in the Yokohama foreign

33:48

settlement sorry Jim is decision to intervene in the murders case also was heavily

33:54

influenced by the American lawyer Erasmus person Smith uh who was a diplomatic advisor to the

34:00

fund Ministry from 1871 to 76. Smith advocated Japanese jurisdiction of

34:06

the Marine loves incident as a way of Defending asserting and expanding the

34:11

national sovereignty of Japan which dovetailed with sojima's natural National rights diplomacy that

34:18

characterized his tenure as foreign minister Smith had prior experience in dealing with the

34:25

issue of the so-called curly question before taking up his post in Tokyo when he was U.S commissioner for immigration

34:33

in 1864. during his tenure as immigration commissioner Smith continued to align

34:40

immigration policy with the anti-cooley act of 1862 passed

34:48

by a designed to prevent American plantation owners from replacing American African-American slaves with

34:56

unfree contract labor from China what's important to note is that while Hornby and Smith both experience legal

35:03

experts prescribed the need for Japanese intervention they embodied two

35:08

incompatible legal approaches to the issue of consent voluntary labor labor

35:13

migration regulation and what constituted freedom hornby's lingo legal template was a

35:19

utilitarian approach to the admin administration of law that typified English judicial process

35:26

the regulation of indented labor was a technical matter this gives me the right balance between

35:32

control and freedom freedoms benefits over harm a good regulation ensure that the

35:38

contractual Arrangement embodied consent while simultaneously creating the optimum balance between the material

35:44

needs of the laborer and the demands for labor by the capitalist planter

35:49

Smith on the on the other hand personified a rights basis rights based approach

35:55

its position was that the workers rights to quit was was a non-negotiable principle freedom

36:01

and could not be discounted or compromised no matter what the objective

36:08

so after that so Jim was granted authority

36:13

to form an ad hoc Court to look into the matter and he appointed

36:20

um the assistant Council of Canada prefecture oyataku to form the court and inquire to

36:29

the matter under his guidance

36:34

right so the polymer investigation followed the

36:40

um well-established legal tenets of 19th century mixed commissions

36:46

and the mixed commissions were based on British prize law the rules and regulations of these commissions

36:53

protected property rights over slaves and ships and allowed slave traffickers

36:58

of the defense of challenging the legitimacy of legal proceedings and as we shall see the Murray Laz hearing

37:05

followed suit initially the the hearing focused on the Chinese laborers who had jumped ship

37:12

the first to be deposed was more Hing the first Chinese labor rescued by the

37:18

crew of The Iron Duke he was deposed on the 7th of August

37:26

um in his deposition Mohan claimed that he was

37:31

that he was forced into the Murray Laz lying off Macau where he was locked up and very badly treated

37:38

uh by the captain and had his Q cut off his punishment he jumped when the

37:44

vest vessel anchored in Yokohama as he did not wash to die did not wish to die

37:49

on The Vessel and made the effort to escape Moore also stated that he was made to sign a contact contract under

37:56

duress he only came to understand that the terms of the contract were for eight

38:02

years of service to far off Peru after the vessel left Macau

38:10

was also invited to give a deposition on the same day in his statement Herrera denied the

38:16

charge of Cruelty he confirmed that mohing was a passenger on the ship but

38:21

at the same time mohing was also Freight in transit and a unit of profit

38:26

he admitted to cutting mohing's cue and putting him and several other men in irons while in um well anchored at

38:34

Yokohama but the intentions of his actions were to secure the conditions of his contract with tanko admiro and

38:41

devoid of malice if he did not prevent the Chinese laborers from escaping on the voyage he stood to lose lose passage

38:48

money and the expense of their sustenance during the voyage

38:55

uh the investigation reconvened in from the 19th to 24th of August this time the

39:02

inquiry was more formal and held in the presence of other foreign consulates

39:07

um Herrera in turned employed Frederick Dickerson an English Barrister as his

39:13

legal counsel John Davidson Davidson another English Barrister represented the Chinese

39:19

laborers and his fees were paid by the local Chinese Merchants Association

39:25

on the 22nd of August or ordered all male Chinese passengers to be brought to

39:31

shore under the protection of the Japanese Authority while the captain was under arraignment and now this is the

39:37

most controversial part of the incident and we have to remember that um these people are in the in between

39:45

space of being passengers and also cargo and the seizure of cargo is a very um

39:53

it's a trigger point in a lot of these um Colonial interactions and you has to be remembered that the reason the first

39:59

Opium War uh started was because the Chinese authorities confiscated the

40:06

cargo of British and American subjects

40:15

all right um the re the um the reason why the um the

40:22

main reason why the Chinese passengers were brought to shore well there's two reasons one was that they feared that uh Herrera would leave

40:29

um in the middle of the night before the trial was over and the second was because the Yokohama Chinese Merchant

40:35

Association had petitioned the Japanese authorities to extend the scope of the inquiry to include all Chinese laborers

40:43

on board the Murray Lads to give them the opportunity to request protection

40:49

the court the court interpreted the appeal

40:56

as equivalent to a writ of habeas corpus in British law namely a legal request to

41:03

investigate by what right was the liberty of men on board the Murray Luz

41:08

curtailed with Japanese curtailed within Japanese Waters

41:14

now Dickens argument for herrera's defense was conveniently summarized in a letter to the editor of the English

41:21

language Japanese weekly mail which by all suspicions probably was written by

41:27

Dickens himself namely that Japan did not have the authority to seize the Murray Lars nor

41:32

to transport the Chinese laborers I'm sure and that such actions

41:37

were tantamount to the total confiscation of the ship and cargo

41:43

on the 30th of August 1872 Oya formally announced his findings or he declared

41:49

the charges against Herrera for the abuse and forceful Restraint of of the

41:55

Chinese men was fully were fully sustained yet as often happened in mixed

42:02

commissions has always happened to make commissions escaped punishment the cost and delay

42:08

caused by enforced stay in Yokohama Harbor was considered at punishment

42:13

while expediently exempting Japan from any claims for compensation for expenses

42:19

occurred because of the delay Herrera was permitted to depart with his vessel

42:25

along with any of the Chinese men who still sought to work in Peru and because

42:31

and um no none of them of the men or miners um was willing to do that and

42:38

unsurprisingly Herrera was reluctant to continue his journey without the chap the Chinese laborers and miners on board

42:45

and he stalked um civil action

42:54

the Civil tribe was held almost a month later from 1872 from 18 to 27th of September

43:02

and considered considered of two suits the first was fired by Herrera as an

43:08

agent of tanco admiral and requested the court to enforce indented contracts of

43:14

230 Chinese laborers and have them return to the vessel the second suit was by Herrera against

43:21

the 13 miners also for breach of contract now the

43:28

Davidson's defense for the Chinese laborers was that [Music]

43:34

um that these contracts were not signed in good faith or Mutual trust but under

43:40

forward and duress were unlawful under British common law and it was impossible and highly

43:46

dangerous for the men to continue their journey to Peru and therefore they should be made invalid

43:52

Dickens countered Davidson's argument that the contracts were void and illegal

43:57

under common law but uh by arguing that indentured contracts the

44:03

Chinese men traveled on were not prohibited by existing Japanese law he pointed to the fact that the terms of

44:10

service of female performers which we usually call Geisha and licensed prostitutes strictly enforced by the

44:18

Japanese government were no different from the contracts signed by the Chinese laborers

44:24

Dickens note has noted the basis for licensed prostitution was equivalent

44:30

to a civil contract for the um

44:41

sorry for the duration of six to eight years which gave the brothel owner not only

44:46

the authority to order women to perform service but power on all aspects of their life

44:53

moreover the brothel owner had the power to sell the contract to a third party

44:58

uh Dickens concluded the indented contracts the licensed prostitutes and Chinese laborers traveling to Peru were

45:04

one of the same both sets of contracts were for duration of eight years

45:10

transferable gave the employer the right to enforce performance and to punish any

45:15

breaches and often were entered into with minors incapable incapable of

45:21

giving consent to them despite Dickens Ingenuity the court dismissed both suits the court

45:29

um the court found the contractual Arrangements invalid and enforceable

45:34

due to procedural reasons and on principles of laws I'm just going to skip that for a second because I'm

45:41

running out of time now this is um taken at the yoshiwara at the turn about

45:47

1990 and what we're seeing is actually a practice called where

45:55

um on the on the on the ground floor of these um uh license brothels you have

46:01

lattice square and and where people peer in and and sort of look at the women who

46:08

are there and sort of make their choice now by 1890 the Yoshua had fallen under

46:15

hard times it wasn't as glamorous as it had been and it was it was a very poignitation of its heyday

46:23

uh of the 1800s where we see all these colorful um costumes been worn uh they're all

46:30

practicing certain kind of calligraphy or artistic um a skill and the whole point about going

46:37

to the pleasure quarter was entertainment entertainment could be not just sexual encounters but good food

46:42

good discussion oops witty witty repartee repete with the women dance

46:49

music Etc and what we what we are seeing here is

46:55

um the yoshiware at its sort of height where it was much more commercially viable and the center of communiculture

47:02

in Tokyo right

47:09

so more or less the um so what happens is

47:16

the oil finds um against

47:21

um Herrera so in the wake of that judgment Herrero deserted ship and fled

47:26

to Hong Kong with the female minor in tow the Chinese laborers returned to

47:32

China and the Murray Lads was broken up to pay outstanding debts

47:37

now the Japanese officials within the foreign Ministry and Ministry of Justice were uneasy about the the Judgment

47:45

handed down by Oya Japanese licensed prostitution was organized around debt bondage where

47:52

destitute household heads used male and female used female dependents

47:59

as collateral to borrow money from brothel owners in return the brothel owners gained legal and economic

48:05

entitlement over the female dependent the distinctive feature of the system of

48:11

debt bondage was that although the debtor was the household debt a household head sorry the debt

48:17

relationship was between the brothel owner and the female dependent

48:22

um sorry Japanese authorities feared the ruling would leave Japan

48:29

um open to claims for liability from the Peruvian government if contracts binding

48:35

young women to serve in tea houses and license brothels continued to be enforce

48:41

in response the um the Council of state issued the edict

48:47

for the release of female Pro performers and prostitutes the shogi kahore

48:52

the shogi kahore kehode annulled all apprenticeships and agricultural laborers

48:58

indented to service for seven years or longer so young men young boys were also indented

49:04

but tended to be either in labor or other forms such as being an acrobat or

49:10

traveling performer the old ordinance also stipulated that

49:16

all license prostitutions bound to affixed terms of servants were therefore released and the courts

49:22

would not entertain suits by brothel owners on their debts

49:28

the shogi kahore edict is best understood in tandem with the ordinance issued on the 9th October by the

49:35

ministry of Justice known as the ordinance for the release of oxen horses

49:44

foreign and this is Infamous amongst Japanese feminists as just showing how

49:50

what uh Japanese men thought of women as being known out but horses and oxen

49:57

now what is really interesting is Article 2 of the ordinance which you can see above

50:04

the legal premise premise of the audience is highly instructive the release of licensed prostitutes from

50:11

any outstanding loans acknowledge that the existing service type contracts treated the women as chattel

50:19

the analogy to BEAST's burden is also highly significant first it established

50:24

a clear legal distinction between property in person and property in beasts and things that wasn't found in

50:31

Japanese law second the ordinance introduced the notion of consent into the workings of

50:37

contract the audience directives were clear one did not experience compensation from

50:43

Beasts of Burden for not carrying out service because they lacked the capacity to consent to the work they asked to

50:49

perform likewise one cannot expect licensed prostitutes to be liable for

50:54

any outstanding debt as the contracts were made without acknowledge consent

50:59

existing licensed prostitute contracts when valid because contractual Arrangements did not embody consent

51:08

the hasted discharge of the licensed prostitute opened up opened Pandora's box of practical problems for Japanese

51:13

legislators the most pressing was how to translate the regulations into practice the

51:19

different branches of the merger government offered competing Solutions the minister of the left

51:26

the legislative branch interpreted the ordinances as issuing the closure of

51:31

licensed prostitution as an occupation and identified the welfare and support

51:37

of the release women as the most pressing issue operating on the assumption that the

51:42

women employed as licensed prostitutes came from destitute families the minister of the left advised the

51:48

government was morally obliged to offer some form of poor relief to the women for taking away the immediate livelihood

51:56

the minister of the right concurred and proposed the constructions of orphanages for children and young women now left

52:03

without means in contrast

52:08

the ministry of Justice determined the ordinance Place prostitution Beyond any kind of government intervention the edit

52:14

for the release of female performers and prostitutes gave gave them the freedom to carry out the

52:21

trade without restrictions or movement of place of abode the position of the Ministry of Finance

52:26

differed again the ministry the finance ministry believed the decree gave the

52:31

women the right to enter or leave prostitution as their own at their own volition nothing more

52:38

it was the Minister of Finance proposal that prevailed by the early months of 1873

52:45

a system a room rental licensing system had was

52:50

in was beginning to be implemented in Tokyo and other cities and towns in Japan

52:56

under this system the price prostitute was a licensed independent contractor

53:02

who entered a contract with a room letting service also known as a licensed

53:07

brothel to to work as a prostitute the advance of a loan by brothel owner

53:14

was to be repaid either by the woman herself or her guarantor which in most cases was her immediate family

53:22

highlighting the importance of consent in the terms of service the finance ministry maintained that the woman chose

53:28

to work as licensed prostitute the finance ministry effective effect

53:35

proposal effectively transformed licensed prostitution to two different types of contractual Arrangements based

53:42

on the specific and narrower understanding of consent and Choice One a service contract between women and a

53:48

brothel owner which outline the agreed upon services to provide to be provided

53:54

and the terms they were to be carried out and two

53:59

the option for the women to enter a separate loan contract with the brothel

54:05

owner which would enable her to cover the initial costs required for her work

54:11

by going into debt so the replacement let me just summarize where I'm at at the moment where my

54:19

uh where I sit at the moment the replacement of slavery with indentured labor has long been held as a

54:25

transitionary point of reference for Global capitalist development for the development of non-western countries the

54:31

institutionalization of Free Labor also doubled to signify an important moment in the modernization process

54:38

the instance when arbitrary pre-modern forms of service based on status and customary rights were replaced by

54:45

market-based contractualism guaranteed by the rule of law however in the case of British

54:51

indentured contracts and the room rental system implemented in Japan after 1873

54:57

that argument is too simplistic the British slave revolution abolition

55:02

act May formally may have formally freed individuals from bondage but it did not

55:08

address the material working conditions of an agricultural system that required unremitting physical labor

55:15

the indented contracts gave individual Asian laborers a legal personality and

55:20

the freedom to enter in in a private contract of employment but it left the terms of work undefined

55:27

the judicial template that defined the employment relationship between the indented laborer and the employer were

55:33

British pre-capitalist master and service laws adjusted to meet the change in colonial contingencies for the

55:40

recruitment of Plantation labor the room rental contractual agreements

55:46

were very similar to the indented server contracts used by the British to displaced indentured laborers across the

55:52

globe at an industrial scale

56:03

[Applause] it too was based on a narrow idea of

56:08

freedom that that defined the work relationship as the performance of service Japanese authorities too turned

56:15

to a precapitalist legal form to solve the problem of how to inform enforce performance of service in room rental

56:22

contractual agreements and that was debt bondage the room rental service contract created

56:28

the conditions for a female to be formally free to enter and nullify her service contract at any time

56:34

the woman's loan contract with the brothel owner however gave the owner recourse to the full pair of law to

56:41

enforce her service contract Japanese law made a distinction between what it saw as labor hide out of service

56:47

and labor that was owed service contracts with voluntary contact contracts which gave the right for women

56:54

to hire the property embedded in their person in this instance the attributes

56:59

and the capacities of certain parts of a body to the brother owner for a period of time for agreed compensation

57:07

owed labor on the other hand was the property of the brothel owner and gave him

57:13

the right to use the woman's body with or without her consent thank you

57:18

sorry it took so long

57:24

thank you so much Dr milopoulos um we do have time for a quick question we do

57:29

have a microphone if anyone does have a question that they would like to ask we will be able to make that available so

57:36

if you do have a question pop your hand up I think there's somebody down the front that might have one

57:54

thanks Bill that was really interesting presentation I just I actually have a couple of questions if that's all right

58:00

no it's not at all um just to sort of finish off the story and forgive me if I missed something but

58:06

when the Chinese labors were released for example well no the first question

58:11

is how many were women and what happened to them there was one woman okay it was a it was a

58:17

we don't know her age it's anywhere between 6 and 13 and unfortunate and she was kept in the protection of Herrera

58:25

and he actually absconded with her in time okay but did but I think you said some

58:31

of them made it back to Hong Kong um Herrera went back to Hong Kong with the young woman into it okay he left

58:39

once he lost uh the court case he just absconded and the other but the other laborers who

58:45

were released so all release went back to China and they have protection of any kind and that's the whole thing and the

58:54

Chinese government did not recognize officially recognize immigration so there was no

59:01

protection from the Chinese government for these laborers and this was something that the British were Keen to

59:07

try and do right okay and my other question is that the images you showed were so interesting yes they look like

59:15

Prince I think they all wouldn't print yes but they're all in American collections yes so how did that happen

59:21

was that because of this well what what happened was in the 18 after the Meiji restoration the Japanese

59:29

sort of went on a you know the West is best boom and um they were basically

59:34

just selling all these things because they thought they didn't have any value and so American Merchants were buying

59:40

them up in heaps and because most of these American Merchants from the East Coast most of them have ended up either

59:47

in Boston the met or in Washington

59:53

laughs I think you know a huge interest in the topic and I think a lot of questions

59:59

that people could ask so um I I would just ask for a quick Round of Applause if we could for a really interesting

1:00:04

talk and um if you'll just indulge me a couple of quick plugs before we do leave

1:00:12

um I hope that you'll be able to join us for our next Fellowship lecture by Dr Ann Pender and this will take place next

1:00:17

Thursday oh sorry this Thursday at 12 30 p.m and you can see our what's on page

1:00:23

for more information on that and our website is the place where you'll be able to find recordings of um very

1:00:29

interesting and diverse recent talks and performances from our fellows which are

1:00:34

also available on our YouTube channel uh if you'd like to know more about our formed collections please do search the

1:00:40

guide to our collections on our website and thank you for attending and thank you once again to Dr Mia Lopez for a

1:00:46

fascinating presentation thank you

English (auto-generated)