§ Sir R. Peelsaid, since he had last put a question to the noble Lord, the Secretary for Foreign Affairs on the subject of China, the order in council of the 3rd of April last had appeared in the Gazette. He understood from the noble Lord, that it was through a mere inadvertence that it had not been published before. In looking at every instance in which an order in council authorising the detention and holding in custody of ships and cargoes had been issued since the year 1792, as far as he had been able to examine them, such orders had been uniformly published in the Gazette. He only referred to this, that it might not hereafter be transformed into a precedent. The general rule appeared to be, that when an order in council authorising the detention and holding in custody of ships was issued, it was officially announced in the Gazette; and the departure, in this instance, was not a departure for any reason, but a mere inadvertence. He wished to ask the noble Lord, what were our present relations with the government of China, and he put that question on account of the nature of the order in council which had been issued, that order in council authorising the detention and holding in custody of vessels, ships, and cargoes belonging to the Emperor of China or to his subjects, or to other parties resident in China. If there had been only a simple order in council to that effect, he apprehended that no question could have arisen. In that case, the order in council would not be tantamount to a declaration of hostilities; it would merely be an equivocal state, the character of which would afterwards be impressed by some subse- 456 quent event. For instance, if peace ensued, that equivocal state would be a condition of peace; if it should be followed by a declaration of hostilities, that declaration would have rather a retro-active operation, and that equivocal state would be converted into a state of warfare. But that order was not a simple order authorising detention. The order appeared to him to be a departure from the practice ordinarily pursued in such cases. In the first place, it authorised detention in custody; but, in the second place, the same order departed from its simple character, and became a conditional order, directing forcible seizure, and authorizing: a forfeiture of ship and cargo. But this order again received a character of contingency, for it made its execution to depend upon due reparation and satisfaction being made to her Majesty. The order was unconditional in so far as it was addressed to Courts of Admiralty in all parts of the world, directing them to proceed, and deal conditionally with all seizures which might be brought before them. Now, the question which he wished to put to the noble Lord was this—whether the nature of the present order, being also a conditional order, made any difference in our relations with China? He wished to know, did this country remain in the same equivocal state with reference to China, or whether the effect of the order was to place us in a state of peace or war.
§ Viscount Palmerstonconceived the nature of the order determined the nature of our relations with China. As far as his opinion respecting the effect of the expedition recently sent out went, he could only say that it would be impossible, on account of the distance, and on account of delays attendant upon communications with that part of the world, for any one to form an opinion as to the effect which that expedition was likely to produce upon our relations with China. What our relations with China actually were at the present moment was known to all the world. With respect to the order in council, to which the right hon. Baronet had just adverted, it was perfectly true, that the order in council went much further as to provisions than was usual in such cases, but it was occasioned by a necessity which arose out of the peculiarity of the case. If the proceedings in question related to a country within a short distance of Great Britain, so that our communications could reach 457 the government of that country within a reasonable time, we might have contented ourselves with making simple reprisals and keeping in safe custody the vessels or cargoes captured, in order to allow time for the moral effect of such a proceeding, postponing any ulterior steps until the effect of such preliminary measures became obvious. Under such circumstances, and by adopting such precautions, a final rupture might be eventually avoided. To take such a course in our intercourse with China would clearly be now impossible. Suppose a certain number of vessels were to be now detained by our officers on the coast of China, if the Chinese government gave us satisfaction for the injuries we had sustained, there need be no departure from the simplicity of the first order; but let the House suppose a different result to ensue, it was obvious that the ships so detained must be made prizes of war. If, then her Majesty's Government had neglected beforehand to empower the Courts of Admiralty to deal with such cases, those courts must wait first until there was a total failure of all attempts at amicable arrangement; and, secondly, until, in consequence of that failure, powers sufficient for the emergency were forwarded from this country to the east. Such a delay, he need hardly observe, would amount to no less than eight or ten months, during which time it was clear there would be great difficulty of taking care of ships. Therefore, it was, that in this case they gave a contingent power to the Courts of Vice-Admiralty to adjudicate upon such ships as were sent before them by the detaining officer.
§ Sir R. Peel—I am not entitled to enter into any argument upon the question, but the relations of this country with foreign nations is a most important one to our merchants, and it is necessary that they should have every possible information upon such a subject. I understand the purport of the answer of the noble Lord to be, that, although the Orders in Council were different from former orders, still they in no respect altered the position of our relations with China any more than had they been simple orders in council. The next question I have to ask is, when a vessel is seised and sent to a court, will it depend upon whether or no the Emperor of China gives satisfactory explanations that it is to be adjudicated upon; and if so, what is the authority that is to 458 decide on the sufficiency of the satisfaction? Is there to be any legal authority —any power given to any one on the spot to determine whether the reparation offered is sufficient or not?
§ Viscount Palmerston—For the same reason before stated, viz. distance, full powers had been given to an authority to determine on the behalf of the Government, whether the reparation offered was sufficient or not.
§ Sir R. Peel—In what position will the foreign merchant resident in China be placed? Is the noble Lord aware that there is an important variance between the recital of the orders in council, and the directory part of them? The directory had ordered all our vessels to detain and hold in custody all vessels belonging to the Emperor of China, and all persons inhabiting that country. Under this direction, our vessels must detain the vessels of all persons residing in China, whose case is not mentioned in the recital. I wish to know, if the noble Lord has no objection to make the statement, what he considers would be the situation of foreign merchants, Americans for instance, who belonged to the factories, because, in the East, a merchant is considered to belong to the country to which the factory belonged; but, in this country, a Dutchman carrying on business in an American factory, would be considered a Dutchman.
§ Viscount Palmerstonsaid, that in that respect the order in council had been copied from the previous orders in council. The course usually pursued under such orders in council, he believed, was to detain the vessels of those that were neutral, and also those with whom the country was at war; and then, if the matter in dispute was brought to an amicable conclusion, both the ships and the cargoes were released; but if war ensued, then the ships of the enemy were condemned, and the neutral cargo was restored by the sentence of a court of Admiralty, duly commissioned for the purpose; and if, after hostilities had commenced, any neutral who chose to fix his residence in the State which was at war, assumed the character of a common enemy, he would be treated as such.