HC Deb 28 July 1838 vol 44 cc744-53
Viscount Palmerston

moved, that the House should resolve itself into a Committee upon the China Courts' Bill.

Mr. Hawes

had been requested by his hon. Friend, the Member for Portsmouth (Sir J. Staunton), to make a few observations with respect to this bill. His hon. Friend had given notice of his intention on going into Committee, to move certain resolutions for the purpose of showing, that it was inexpedient to establish a court, with the jurisdiction about to be given by the present bill, unless the authorities of China had given their assent. Now, he had carefully looked over the papers, the noble Lord had laid before the House, and he could not discover in them the smallest trace of the smallest consent on the part of the authorities of China to the jurisdiction proposed to be given by the noble Lord. He wished to ask the noble Lord, whether the authorities of China recognized this interference with their laws? The noble Lord was about to establish a court, whose authority he could not enforce. Suppose a Chinese were a defendant, and refused to appear, a verdict was given against him, what power but that of actual force could execute and enforce the jurisdiction of the court? He found a very apt case in the papers laid on the table of the House by the noble Lord. A Chinese was wounded by one of the Lascars on board an English ship, and the Lascar was taken into custody. Our chief superintendant demanded, that he should be given up, to be tried by English laws. The reply was, that the Lascar was in custody of the Mandarin, and could not be given up, pending an inquiry, relating to the safety of the natives of China, and it was argued, that if an Englishman went to France, he must be, and would be, held amenable to the laws of France; why then, should not the same rule apply, when Englishmen went to China? That proved, that the Chinese well understood their position, and the necessity of obtaining their sanction before instituting this court. The British was admitted into the Chinese territory by sufferance, for the purposes of trade, and were bound to conform to Chinese usages, and not to attempt to force their own customs upon the Chinese. In case this measure were adopted, and attempted to be carried into effect, we should involve our commercial intercourse with China in very considerable danger. The provisions of this bill were most extraordinary. The Orders in Council—virtually, the orders of the noble Lord (Lord Palmerston)—were to have the force of law, and were to be co-extensive with the jurisdiction of the court that was to be established. The East-India Company carried on their trade in China without the aid of any such powers; and the Americans conducted their commerce with China without any such powers, nay, without any salaried establishment at all: they depended on the simple principles of trading—mutual and reciprocal benefit. Supposing this bill passed, could it be carried into operation with anything like good faith, while the contraband trade between us and the Chinese, (which went to such an extent, and which must exist, until our trade with China was put an end to), was suffered to go on? Impressed with these views, he should conclude by moving, the first of the resolutions, notice of which had been given by the hon. Baronet (Sir George Staunton). That it is inexpedient to pass any bill for establishing courts of civil and criminal jurisdiction in China, until satisfactory evidence be given of the assent of the Government of that country.

Captain Alsager

seconded the amendment.

Viscount Palmerston

could not acquiesce in the proposal of his hon. Friend, and thought, that he and the hon. Member for Portsmouth, whose speech he had undertaken to makes, had not fully consi- dered the nature of the bill now under the consideration of the House, and the enactments of the law passed in 1833. The hon. Member stated, that it was inexpedient to press any bill establishing courts with criminal and admiralty jurisdiction in China, without the previous consent of the emperor of China. The fact was, that this had been done by the Act of 1833, to which the right hon. Baronet opposite (Sir J. Graham) when First Lord of the Admiralty, was a party. That bill conferred on the Crown the power of establishing in China, Courts of Admiralty and Criminal Jurisdiction; and one reason why he now proposed this bill was, that he thought it expedient these Courts should, in addition to Criminal and Admiralty Jurisdiction, possess Civil Jurisdiction; and that doubts were entertained in consequence of the ambiguous wording of a clause in the existing law, whether the latter words of that clause, which specifically mentioned the Admiralty and Criminal Jurisdiction, did or did not control the words in the former part of the Section, which were more general, and which, if they stood alone, would give all the powers which were now required to establish the Civil Jurisdiction. The Act to which he referred was, the 3rd and 4th of William 4th, c. 93. It was contended that the words of the latter part of the clause controlled the former, under which it was competent to give facilities for the establishment of these Courts by an order in Council. He would contend, therefore, that the resolution applied more to the law passed in 1833, than to the bill now before the House; but he was prepared to discuss the principle of the present measure with the hon. Member. It was true, the present might be called an exceptional case. It was well known, that this country had no diplomatic connection or relations with the emperor of China. Frequent attempts had been made to establish them, but they had failed. The only way by which these relations could be established was by another embassy, and he did not think his hon. Friend would recommend such a course again. It was alleged that the India Company had no such Courts, but that they had a power and authority which stood in lieu of it. Cases unfortunately arose, in which offences had been committed by British subjects in China, and the surrender of these subjects was required, and the Com- pany found itself placed in the discreditable dilemma of either on the one hand, surrendering a British subject to be tried by Courts, in which justice was openly set at defiance; or, on the other hand, refusing to deliver up the offender, and invest him with impunity for his offence. That position was full of embarrassment, and it was as discreditable to the character of the Company as it was to the character of the British nation. But such cases happened. Then came the embarrassment, if the Chinese government had chosen to assert its rights, and resented these infractions of its acknowledged jurisdiction, they would have stopped the trade, and that would have been attended with great loss. The Company, however, in more than one instance, risked the loss of trade, rather than be the instruments of committing legal murder on the subjects of this country. He would admit to his hon. Friend that there was no consent on the part of the Chinese authorities, nor could they obtain it without that intercourse with China which it was impossible in the present state of things to obtain. But the question was, though the authorities of China had not given their consent, whether they would resent such an interference on the part of this country; and from the papers that had been laid on the table, he thought it clearly appeared that they would not, and that there was every probability of their being reconciled to the proposed exercise of our power. His hon. Friend the Member for Portsmouth, in a work written by him on this subject, stated in distinct terms, that, in order to enforce order, the usual mode of administering justice in China, would be wholly inadequate. The question then arose, were the Chinese laws suspended or relaxed in favour of strangers. Sir G. Staunton stated, that virtually all the Chinese laws were suspended in the case of foreigners, except in capital offences, so that there was nothing contained in the bill which was at all inconsistent with the present practice, and the acknowledged principles of the Chinese people. He further stated in his book, that a foreigner who had committed an offence, if not punished, he drew down the hatred of the Chinese upon the country he belonged to; and if he was punished, it led to great humiliation and disgrace to the criminal's countrymen. It was impossible for them to deliver up any offender who was sailing for China, or was resident there under our protection. Not only Sir G. Staunton, and another gentleman, who, from his long residence in China, was entitled to be considered a high authority, he meant Mr. Drummond, who stated, that the Chinese, in the event of a murder or homicide, would put to death any person delivered up to them whether guilty or innocent; with what the Chinese, indeed, called a regular trial, but which was, in fact, most irregular and unjust. The Chinese held the Governments of foreign countries responsible for the conduct of all their subjects in China. Sir G. Staunton stated, that the Company's servants would be held responsible, not only for the conduct of the crews of all private vessels, but also for all the crews of the king's ships there. And Sir George went on to give an instance of an American, who being given up to the Chinese was put to death. This proved two things, first, that the Chinese held the entire trade of a nation responsible for all its subjects going to China, and, secondly, that the custom of delivering up persons to the Chinese tribunals in cases of homicide, (a custom opposed to that which was at present adopted by the English) was not calculated to lead to a satisfactory conclusion. Sir George Staunton contended in his book not only that it was necessary to have the power to control by established rules her Majesty's subjects, but that there should be even the power of suspending the trade of British subjects in cases of negotiation with the Chinese government. He contended, therefore, on the authority of the hon. Member for Portsmouth, that he had clearly established the grounds upon which, not this bill, but the Act of 1833, to which the right hon. Baronet opposite and himself were joint-parties, had been passed. A due regard to British interests and to British character required that the bill should pass. If it was shown that the English Government had power to establish Courts for the trial of those greater offences, and Sir George Staunton said it did not apply to the trial of minor ones, he should like to know upon what principle that power was not to be applied to the smaller offences, which it was in fact more necessary to control and prevent, as it would be the best means of preventing that insubordination which was calculated to occasion these more grave offences. He would say, therefore, that there must be some misunderstanding as to the operation of the present bill. Its object merely was to extend the powers of the existing law to the trial of civil offences. His hon. Friend had complained of the arbitrary, dictatorial power confided to the Government, which, by an order in Council could establish Courts for the trial of any offences there. He admitted that such was the case, but there was no remedy for it. His hon. Friend and the House must perceive the difficulty of passing any law embodying such a code as would be applicable to all offences that might arise. It was proposed by the present measure to give to those Courts a power of adjudicating between a British subject, and persons of any other nation, or Chinese, when an appeal was made to them against a British subject. In the bill of 1833 power was given to levy certain tonnage duties to defray the expenses of the establishment of these Courts, but upon further consideration, it was felt that such a proceeding would be an injury to the trade with China, and the plan was abandoned. The expenses of these Courts have, from that period, been the subject of an annual vote by Parliament. He thought when he was bringing in a bill upon this subject it would be better to repeal that part of the law which empowered the Crown to levy duties, and therefore a clause had been introduced, in the present bill to that effect. He also felt, that it would be desirable to alter the title of the officer who was to administer the law; and for that purpose a clause had been introduced, giving the power and authority hitherto vested in the Superintendent to the Consul; at the same time, however, he felt bound to say, that he considered it desirable, that the power should be given to Consuls, he thought it might be expedient, considering the character of the Chinese nation, and their aversion to change, for some time longer to retain the title of Superintendent. These were the chief features of the bill, and with these explanations he trusted the House would allow it to go into Committee.

Sir J. Graham

felt bound to express his regret, that the noble Lord should have thought it necessary, in the present state of the House, and at this advanced period of the Session, to bring under its consideration a question of such great importance. The noble Lord had read to the House some extracts from a work of the hon. Member for Portsmouth, published some time since; and although he was disposed to give them the credit they deserved, he must remind the noble Lord, that whatever might have been the opinion of the hon. Member for Portsmouth under other circumstances, he was decidedly opposed to the measure proposed by the noble Lord. The noble Lord was perfectly correct when he stated, that when he had the honour of being the noble Lord's colleague, he had taken some part in framing a measure, that was then brought under the consideration of the House. He never regretted that, because the measure had the effect, notwithstanding all that had been said against it, of opening the China trade. But he found himself bound to say, that experience had convinced him, that the clauses were unnecessary, and he now considered, that it would be highly inexpedient to extend their operation. It was clear, that Lord Napier leaving this country with an erroneous impression of the powers intrusted to him, did so demean himself to the Chinese authorities as seriously to endanger our commercial relations with that country, and exposed himself to such annoyances as he fully believed cost him his life. Those who accompanied him being taught by experience so modified their course of proceeding as to be able to renew our intercourse. The Chinese never allowed us to fix ourselves at Canton, and in place of having three superintendants resident there, we had only one officer exercising the powers of a Consul. He had no doubt but that the Chinese would take every advantage of the court as plaintiffs, but they would never submit to its jurisdiction as defendants, so that it would prove to be a gross hardship on British subjects.—If these extraordinary powers were granted, it would be impossible to intrust their exercise to the ordinary authorities; there must be some high legal authority. He had somewhere read that all the earth was to be put under a Commission—and he supposed there must be a barrister or a Commission of barristers, of six years standing, sent out to China to put a law in execution, acknowledged to be arbitrary in its nature. Now, as to the authority of Sir G. Staunton, which the noble Lord had quoted, that hon. Baronet had since modified his opinions, and was opposed to this bill. Besides the noble Lord rested his case on the papers that had been produced when there was no consent on the part of the Chinese signified, and he (Sir J. Graham) begged the House to recollect that captain Elliot, in his last despatch (July 1837) had stated that the Chinese were daily becoming more anxious to stand well with the British Government, but they were very jealous as to this point on which the noble Lord wished to venture, and was it prudent to run such a risk at a period when every thing was running smoothly? He would ask the noble Lord whether he did not think it prudent to wait for further accounts from that country before he called on the House, at this late period of the Session, to pass a measure which might interfere with the commercial relations which were every day becoming more important, and which had been the source of great prosperity to our commerce. In the last dispatch, dated the 26th September, 1837, Captain Elliot said, he had no hesitation in stating that it was in his power to secure for the Provincial Parliament the most formal sanction of these operations. If that was the case delay would be of considerable advantage. Although he was favourable to the motion of the hon. Member opposite, he should like the bill to go into Committee, because he approved highly of the fifth clause for the repeal of the Tonnage duties; and he therefore thought it highly desirable that so much of the bill should pass. It appeared to him, that consistently with the whole course of British policy, with international law and past experience, it would be unadvisable to pass the remainder of the bill. If some understanding were not come to on the point, he should, in the event of a division, vote against the bill.

Mr. Warburton

hoped his hon. Friend would withdraw his resolution, and allow the bill to go into Committee. It was most essential that these tonnage duties should be repealed, and the Government having given its assent, they were certain of carrying the proposition to a favourable result. With regard to other clauses of the bill, he hoped the noble Lord would re-consider them before he decided upon pressing them upon the consideration of the House. In his opinion, it would be far better to defer them until they had some further information upon the subject.

Lord Palmerston

begged to set the hon. Baronet right with respect to the dispute between Lord Napier and the Chinese Government. The dispute did not turn upon any question like the present, but as to the mode of communication between the British and the Chinese Governments—the former wishing to have a direct communication, and the latter refusing any intercourse, except, as under the old system, through the Hong merchants. He admitted, that it would be expedient to ascertain the views of the Chinese Government, before carrying a measure like the present into operation—Captain Elliott who was the only superintendent, gave it as his decided opinion, that the consent of the Chinese authorities, could be obtained. The right hon. Baronet had said, get the consent of the Chinese Government, and then come to Parliament. Did the right hon. Baronet really think that that would be the best course to adopt? Because when the Chinese Government was asked to consent, they would naturally inquire what the regulations were before they would decide. Now, the wish of the Government was, to obtain the consent of the Chinese Government to something specific, and that was all that was wanted.

Mr. C. Lushington

trusted the noble Lord would accede to the excellent advice given him by the right hon. Baronet, as he felt convinced that it would be utterly useless to attempt to get the consent of the Chinese Government to abstract regulations.

Mr. Hawes withdrew his amendment.

The House then went into Committee on the bill.

On Clause one being proposed.

Mr. Hawes

rose to move its omission. As far as he knew, no British merchants had given their assent to the measure, which was therefore to be considered as emanating exclusively from the Foreign-office. To the establishment of a court for trial of offences by British subjects, there could be no objection; but he protested against a court's interfering with an independent power like China. And if such a course were taken, let it not be forgotten that interested parties would easily be found to whisper that to the Chinese authorities, and render them jealous of, and hostile to, British interests. He therefore moved, that the clause be omitted.

The Solicitor-General

thought the omission of the clause would place the House in a novel situation. There were two thousand of her Majesty's subjects resident near Canton, and it was necessary there should be some means of settling the disputes which might arise. It was for the benefit of those on the spot, that there should be some tribunal to which they might resort.

Viscount Palmerston

said, as the sense of the House appeared to be against the bill, he had no objection to postpone it until next Session.

Bill withdrawn, House resumed.

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