§ THE EARL OF DERBY
rose to move the Resolutions of which he had given notice, and said: My Lords, I am now about to address the highest judicial assembly in the world. I wish I could persuade myself in so doing that every Member of this august assembly will approach the consideration of the important question I have to bring before them in a purely judicial spirit; that they will look at it without reference to any considerations but those of equity and justice and of humanity; and that, above all, they will dismiss from their minds, upon this occasion, at least, every consideration connected in the slightest degree with party ties or political predilections. My Lords, if I can persuade this House to deal with the question in a purely judicial spirit, I have such confidence in the strength of the case I am about to lay before it that I should have not the least doubt as to its decision, unless it be that which must necessarily arise from the inefficiency of the advocate, for upon this occasion I do confess I appear I as an advocate; but an advocate from a conviction of the justice of my case; but an advocate disinterested, and, most certainly, unpaid. I am an advocate in a cause which I believe to be that of policy, of justice, and of humanity. I am an advocate for weakness against power, for perplexed and bewildered barbarism against the arrogant demands of overweening, self-styled civilization. I am an advocate for the feeble defencelessness of China against the overpowering might of Great Britain. And, my Lords, I am not in the least degree daunted or deterred, nor do I consider the slightest doubt to be thrown on the success of my cause because I have to bring it forward before an English audience; neither am I at all daunted or deterred by the recollection that, to make out my case, I shall have to rely upon statements and documents exclusively furnished by the very parties whose conduct I am about to impugn. Upon those docu- 1156 ments I am content to rest my case—upon those documents I desire to be judged—and upon those documents I confidently ask for your Lordships' verdict.
My Lords, I pray your Lordships to consider what is the position in which we now find our relations with China. We have carried on with that country for a considerable number of years a trade of vast extent, which has been continually and rapidly increasing—a trade of deep importance to this country and of some vital importance to those engaged in it. This trade has so increased that the single article of tea has advanced in ten years from 41,000,000 1bs. to 87,000,000 1bs.; and the increase in the export of silk has been during the same period to an enormous extent. Upon the whole, that trade has been carried on under very peculiar circumstances and under very considerable difficulties with, great success, producing a great amount of mutual satisfaction, and very much to the advantage of the English merchant and to the inhabitants generally of this country. Upon a sudden, and without, as it appears to me, any sufficient justification, without any previous warning, that trade with the principal port of China has been completely put an end to, and the most hostile and the bitterest feelings have been engendered between the people of Canton and the British merchants. But not only is the trade stopped—not only are the goods of our merchants at this moment sequestered to the extent, I believe, of something like 1,500,000 dollars—not only are all commercial operations put a stop to—but at this moment, without any warrant from the Crown, without any declaration, you are in a state of actual war with China; and that war is carried on with a degree of aggravation and severity which do not usually accompany civilized warfare. You have had seizures of merchant junks; you have had the capture and destruction of the forts of a friendly Power; you have had a walled, but not a fortified, city battered with cannon, and stormed through what is termed a practicable breach; you have had a whole fleet of war junks seized by the superior power of this country; you have had private residences fired upon by order of a British Admiral; you have had a defenceless town bombarded and shelled by British men-of-war. I ask your Lordships, is this a state of things which you can justify to yourselves, one which Parliament can justify to the country, or which can be passed 1157 over in silence without demanding explanations, if they can be given, from the Ministry? And if no sufficient explanation be given, then I call upon your Lordships to stamp this state of things with your strongest reprobation and to denounce such conduct as unworthy of officials of the British Crown. I will now endeavour to state this great case as dispassionately as possible, without exaggeration, without colouring; and if, in bringing it before you, I am compelled to make a very considerable trespass upon your Lordships' patience, I am quite sure that, so long as I confine myself strictly to the subject before you, I may with confidence throw my-self upon that indulgence for which I have so often had cause to be indebted to your Lordships.
My Lords, it may be convenient that, in the first instance, I should call your Lordships' attention to the particular Articles of the treaty the alleged infraction of which has been made the primary cause of these violent proceedings. The treaty in question is one termed the Supplemental Treaty entered into on the 8th of October, 1843, and is supplemental to the original treaty of 1842, which was somewhat rudely extorted from China at the close of the war in which we were then engaged with that country. There are two Articles in that treaty to which I must call particular attention—the Ninth and the Seventeenth. The Ninth Article runs as follows:—If lawless natives of China, having committed crimes or offences against their own Government, shall flee to Hong Kong, or to the English ships of war, or English merchant ships, for refuge, they shall, if discovered by the English officers, be handed over at once to the Chinese officers for trial and punishment; or if, before such discovery be made by the English officers, it should be ascertained or suspected by the officers of the Government of China whither such criminals and offenders have fled, a communication shall be made to the proper English officer in order that the said criminals and offenders may be rigidly searched for, seized, and, on proof or admission of their guilt, delivered up. In like manner, if any soldier or sailor, or any other person, whatever his caste or country, who is a subject of the Crown of England, shall, from any cause or on any pretence, desert, fly, or escape into the Chinese territory, such soldier or sailor, or other person, shall be apprehended and confined by the Chinese authorities, and sent to the nearest British Consular or other Government officer. In neither case shall concealment or refuge be afforded.Under the terms of this treaty, it follows that any Chinese offenders, being in the colony of Hong Kong, or on board a British man-of-war, or on board a British merchant ship, were not to be seized by the 1158 Chinese authorities themselves, but should be demanded from the British Consul, and by him be handed over to the native authorities. The Seventeenth Article provides for the case of various small cutters, schooners, lorchas, &c., belonging to the English nation, and lays down the following rules—1. Every British schooner, cutter, lorcha, &c., shall have a sailing letter or register in Chinese and English, under the seal and signature of the Chief Superintendent of Trade, describing her appearance, burden, &c.2. Every schooner, lorcha, and such vessel shall report herself, as large vessels are required to do, at the Bocca Tigris; and when she carries cargo she shall also report herself at Whampoa, and shall, on reaching Canton, deliver up her sailing letter or register to the British Consul, who will obtain permission from the Hoppo for her to discharge her cargo, which she is not to do without such permission, under the forfeiture of the penalties laid down in the third clause of the General Regulations of Trade.Now, my Lords, having read these Articles of the treaty, I shall proceed to call your attention to statements which were made by the British Consul to the Chinese Commissioner and to Sir John Bowring, the substance of which is the same—Canton, Oct. 8, 1856.I have the honour to inform your Excellency that the British lorcha Arrow, while lying with her colours flying in the river near the Dutch Folly, was suddenly boarded this morning by a force of Chinese officers in a warboat of large size and heavy armament, who pinioned and carried away nearly the whole of her crew, leaving only two out of fourteen men on board, and added to this act of violence the significant insult of hauling down the national ensign.Of this the consul complained, and Sir John Bowring also complained in very emphatic terms, to say the least of them, as a gross outrage and violation of the treaty of 1843. Undoubtedly, if this vessel were strictly and honestly a British vessel, the seizure of two persons on board that vessel suspected of being guilty—as they subsequently were proved to have been—of acts of piracy, was a violation of the treaty, inasmuch as they ought to have been demanded of the British Consul, and not taken by force. The question is, was this a vessel which came within the sense of the treaty, or, according to any reasonable or fair construction, was she a British vessel? If she was not a British vessel—if she was not carrying the British flag, and legally carrying it—remember the whole of your case must fall to the ground. Now, my Lords, the circumstances of the case, as I have presented them to you, are most lamentable, and 1159 would be, I am sure, deeply lamented by the Members of Her Majesty's Government, even if they were able to show that in pressing for reparation of this injury we had exhausted all means of forbearance and conciliation; that we had carried our indulgence of the foibles and prejudices of the Chinese to the very verge of weakness; that we had left them every possible loophole of escape and offered every possible facility for apologizing—nay, more—if such had been our conduct in a case in which there could not be the shadow of a shade of suspicion thrown over the original soundness of our pretensions. But if, my Lords, I can show that the conduct of the British authorities in this case, so far from having been distinguished by forbearance and conciliation, has been marked from the outset with the utmost arrogance and with the most offensive assumption of superiority; if I can show you that the terms in which they communicated with the Chinese officials have been terms of the grossest discourtesy; if I can show you that they would accept of no explanation, and that they urged their demands solely by menace and intimidation—menace and intimidation employed in reply to the timid explanations of the Chinese officials; and if I can show you further, that your case has many and grievous flaws in it; that the legality of your demands is more than doubtful; and that, in point of fact, in no true sense of the word was this vessel a British merchant ship, and that therefore there had been from first to last no violation on the part of the Chinese of the treaty—if I can show you all this, then, I ask, with what eyes will you look on the lamentable occurrences which have taken place?
My Lords, let us now go into the history of this vessel. At page 134 you will find an explanation put in on the part of the gentleman whose name has been introduced as having been a party to the purchase. That gentleman is Mr. Block, the Danish Consul; and according to that explanation what was the British merchantman? She was built in China by a Chinese in 1854, she was engaged in the coasting trade of China, that she was captured by pirates, and afterwards recaptured by the Chinese fleet on account of the Chinese authorities, and sold to a Chinese hong in Canton. By that hong she was sent over to our colony of Hong Kong, and that then negotiations were entered into for her sale to a Chinese, resident of Hong Kong. 1160 The bargain was nearly concluded, when a question arose as to the claim of the former owner. That claim was referred to arbitration, and the award of the arbitrator was that the sale from the Canton hong to the Chinese resident of Hong Kong was valid and effectual, but in consideration of difficulties which had been thrown in the way of the previous owner regaining what was originally his property, he directed compensation to be made to him of 2,100 dollars. Now, my Lords, here is a vessel Chinese built, Chinese captured, Chinese sold, Chinese bought and manned, and Chinese owned, and that is a British merchantman—that is the British vessel which it is said is entitled to claim the protection of a treaty by which British ships are exempted from the visits of the Chinese authorities. By what legerdemain was this Chinese vessel metamorphosed into a British one? I will tell you. In March, 1855, the local legislature of Hong Kong passed an ordinance with a view to remedy the illegal acts which they alleged had obtained with regard to the registering of vessels employed solely in trading with the mainland of China. That ordinance enacted, among other things, that—From and after the passing of this ordinance no ship or vessel whatsoever, owned by a British subject, shall be at liberty to trade in any of the harbours of this colony, unless, in the case of an outward trading ship or vessel, she be provided with a certificate of registry in conformity with the Imperial Acts of Parliament on that behalf; and in the case of a China trading ship or vessel, she has in all respects complied with the requirements of this ordinance.It goes on to say—And be it further enacted and ordained that henceforward when any person or persons shall be desirous of obtaining a register for a ship or vessel in this colony, it shall be necessary for such person or persons to forward to the Colonial Secretary a declaration in writing, stating whether the ship or vessel for which such register is sought is intended to be employed solely in trade with China, or on more distant voyages, and that according to such statement a register shall be granted to such ship or vessel, either an Imperial register, as prescribed by the Imperial Acts in that behalf, or a colonial register as laid down in this ordinance: provided always that should such declaration be false, or the ship or vessel to which it relates not be employed in conformity with it, the register thereby obtained, whether Imperial or colonial, shall ipso facto become null and void.If that ordinance had reformed the abuses which had prevailed from the improper use of the registers in that trade there could be no doubt that it would have had a most beneficial effect; but on its being referred 1161 to the Board of Trade in this country, that department took an objection to it which was patent on the face of it, and which would have immediately occurred to any one who inquired into the matter. There is no rule more universally recognized, or which it is more desirable strictly to maintain, than that a colonial legislature cannot pass laws which are body contrary or repugnant to the laws of England. What did this ordinance of the Hong Kong legislature do? Not only was it repugnant to the law of England, but it repealed and annulled the whole law of England with regard to the qualification of British vessels. I am not now at this moment going to discuss the substantial merits of this ordinance. I am now dealing with the question of its legality. No such ordinance as this could have been passed, except under the provisions of the 17th & 18th Vict. cap. 104; but this ordinance was passed in March 1855, and the Act of 17th & 18th Vict, did not come into operation until May, 1855; conseqently the ordinance could not possibly have been framed in pursuance of an Imperial Statute of a later date. And observe, my Lords, that, except under the authority of the Act of Victoria there was no foundation whatever for the ordinance; and that without it the legislature of Hong Kong had no power to pass, and Her Majesty had no power to confirm, such an ordinance. But I waive for a moment the question whether the enabling power given by the act of the Imperial Parliament could confer a retrospective effect on the ordinance of the colonial legislature; and I go to a much more substantial point. I may, however, in the first place, observe that the Attorney General at Hong Kong had given an opinion, in which he stated, that of the 60,000 Chinese in that colony hardly one could be legally called British subjects. He says—The colony of Hong Kong, with a Chinese population exceeding at the present time 60,000, hardly contains ten Chinese who can legally be called British subjects, for it has not been deemed advisable to naturalize the Chinese here, and the recent settlement of the colony prevents the possibility of their having become subjects by birth. The great proportion of the respectable part of this population have, however, constituted themselves bonâ fide British subjects by becoming Crown tenants of leaseholds for long terms of years (a tenure of which an alien is incapable), and by permanent settlement have evinced the clearest intention of perfecting themselves in the persons of their descendants British subjects secundum leges as well as de facto. I, therefore, as law adviser 1162 to the Crown, deemed it my duty to advise the granting of registers to such Chinese as had, by becoming Crown tenants, so far as in them lay, made themselves British subjects, and whose discharge of the obligation taken upon them could be guaranteed by other Crown tenants. But there had been serious complaints from the naval commander in chief and from the consular and Chinese authorities, of the abuse by small craft carrying the British flag of the treaty regulations, and as the prosperity of this colony (so much increased of late) depends entirely, so far as regards the native population, upon the coasting trade, which is carried on in vessels ranging between twenty and 100 tons, it was deemed advisable by the colonial Government that an ordinance should be passed which, in no way interfering with the granting of Imperial registers to long seagoing ships should yet facilitate the obtaining of English papers of a certain description by colonial craft, and should also give the colonial Government means which it could not possess under an Imperial register of punishing violations of the treaty with China. It was not thought necessary to fix the local limits within which the colonial register should run, because the character of the craft which require those registers and the objects of the local trade render it a matter of the utmost improbability a colonial registered vessel could go anywhere else than along the coast of China; and as the colonial register is obtained on the strength of a declaration that the vessel is solely to be employed in trade with China, and a falsifying of that declaration involves the penalties of the bond which accompanies the register, it was hardly deemed necessary to specify any geographical boundaries.I cannot but think that upon that latter point the Attorney General at Hong Kong fell into some strange confusion. He appears to be justifying one illegal act by another. But I believe he meant that inasmuch as no alien can hold land in fee simple, it had been thought desirable to grant to the Chinese leases for ninety-nine years; but at the same time it appears that it was not considered expedient to give them letters of naturalization or of denization. Now, my Lords, remember, the essential characteristic of a British merchant ship is that she must be wholly owned by British subjects, that is, by natural-born subjects, or persons who have obtained letters of naturalization or denization and have subsequently taken the oath of allegiance. These are the conditions within which, and within which alone, by British law a vessel can claim the privilege of British ownership and of carrying the British flag. My Lords, this enactment has been set aside by the colony of Hong Kong, under the supposed sanction—although looking prospectively for that sanction—of the 547th clause of the Imperial Act, which points out not only 1163 what the colony may do, but what they must do, and under what conditions. The noble Earl opposite (Earl Grey) referred to this point incidentally the other night, and I will shortly state it to your Lordships. That that point does altogether with all pretence of legality on the part of the colonial ordinance I think I shall be able to show distinctly. What was the condition under which the colonial legislature, in pursuance of the powers granted by the Imperial Legislature, may pass an Act changing the terms prescribed by the Act of the Imperial Legislature? The condition was to this effect:—that the colonial ordinance should be confirmed by the order of Her Majesty in Council, that it should be sent out with such confirmation to the colony, and that on its arrival in the colony it should have no force or validity whatever until it had been there proclaimed, together with the Order in Council. Can language be more precise, more strict, more stringent, than this? But what has happened? No Order in Council has to this day been passed for the confirmation of the ordinance in question. The Secretary of State has taken upon himself to signify his approval of that Act, and has sent it out to the colony. I say, then, that that Act at this moment is waste paper. It has not been confirmed by the Queen in Council, and of course, therefore, it has not been proclaimed in the colony subsequent to such confirmation. Recollect, my Lords, that all these are questions bearing upon the important point at issue,—was this legally a British vessel? and, if a British vessel, had there been in her case any infraction of the treaty of 1843? I say it was not legally a British vessel. But I will go further and say that she was not a British vessel according to any sense of justice or policy. The ordinance was never proclaimed in the colony, but the sanction of the Secretary of State was given to it in December, 1855. That sanction must have arrived in the colony somewhere about February, 1856, and the Act, therefore, unauthorized waste paper as it is, full of flaws, void of all power and effect, arriving in the colony in February, 1856, is the whole and sole legalization of a register professing to be granted under it in September, 1855. You will say, perhaps, that these are technicalities. They are not technicalities. They are matters of substance and matters of importance. The Government have 1164 thought fit to dispense with the checks which Parliament had thought fit to impose upon the exercise of a most dangerous power by the colonial legislature, and we are here discussing the question as if it were a criminal indictment against the Chinese for violating the treaty. I have told you that the treaty would not be violated unless the Arrow was a British vessel, and that it was not a British vessel. I say that even had that been the case no reasonable defence can be made for the proceedings which have taken place. Let us look at the substance of this colonial ordinance, and let us see whether it is one which ought to be approved by those professing any consideration for the rights of an independent Government. Grant that it may be proved possible and legitimate to give to colonial ships a register for the purpose of trading to Hong Kong—allow that within your own limits you may confer what privileges you think fit—no man will venture to contend that you had a right to confer such a privilege upon Chinese, not being naturalized English subjects, in opposition to the inalienable rights possessed over them by the Chinese Government. These Chinese have never abandoned, if even they can abandon, their allegiance to China. They have never taken the oath of allegiance to England; they have never become naturalized subjects of this country. They are day by day carrying on a coasting trade in the Chinese waters, and what do you do? You pass an ordinance in Hong Kong which says, in utter abrogation of Chinese rights,—These Chinese subjects shall be absolved from their natural allegiance; they shall be at liberty to trade here and there, carry on what trade they please, laugh to scorn the Chinese officials who attempt to arrest them in their unlawful courses, pleading, forsooth, the protection of the British flag, and that they possess a colonial register. Now, would you venture to pass such an enactment with regard to any nation, whose power would bear the slightest comparison with that of England? Apply the case to any European country. Would you dare to pass an enactment relieving the vessels of subjects properly belonging to that country and trading upon the coast of that country from any liability to its laws? Would you attempt to screen them from the just exercise of the authority of the officials of that country? Unless you are prepared to justify such an 1165 instance as this—unless you are prepared to say that this ordinance is not only good in law, but is sound in justice, you cannot maintain that there has been any violation of the treaty—you cannot hold that this is in any sense of the word a British vessel. It is quite true that there was a British subject on board. Who was he? He was a young man of twenty-one, who had been put on board, as he very candidly admits in his deposition, as nominal master of the vessel; and he literally knew so little about the vessel that he did not know who was the owner, but had always understood that it was Mr. Block's comprador at Canton. That is the only vestige of nationality about this vessel, except that she held a colonial register, the validity of which relies upon a colonial ordinance, which does not purport to come into effect until six months afterwards, and which, when it did come into effect, possessed no force or legality, since the conditions imposed by the British Parliament, under which the colony alone had the power of making such an ordinance, had not been complied with. Even if I were to go no farther, I ask your Lordships whether such a vessel, claiming British protection under such circumstances, lying in Chinese waters, at the very gate of the port of Canton, having on board two notorious pirates, having been visited in the absence of any British authority, and these men being taken out for the purpose of trial—I ask your Lordships whether, if such a case had occurred, and Her Majesty's Government had declared war against the Emperor of China, there would have been a single man who would get up and defend such a declaration of war, or whether it would not be universally scouted as the most despicable cause of war which had ever occurred? I ask you as men of sense, as men of honour, as British legislators, whether yon will sanction, upon the part of unauthorized officials in China, an act which yon would stigmatize on the part of Her Majesty's lawful advisers, in the exercise of that prerogative which is vested in Her Majesty alone? I ask you whether in your hearts and consciences you are satisfied to rest a declaration of war, or still more, war without a declaration, upon such a flimsy case? and I will ask you, still further, whether you think hostilities can be justified at all in a case where no declaration of war has been made? But I have not done with this case yet. Suppose the Arrow was a 1166 British vessel plying in the waters of Canton. Had she the British flag flying, and, if she had, was it legally flying? Now, with regard to the first part of the case—whether or no she had a flag flying—there is considerable discrepancy of evidence. The master of the vessel, who was at the time of the seizure on board another vessel in the neighbourhood, declares that he saw the flag hauled down. The master of the other vessel also makes a similar declaration, and one of the seamen testifies to the same thing. On the other hand, the Chinese who boarded the vessel declare over and over again, and in the most solemn manner, that they saw no flag, that they hauled down no flag; that they did not believe any flag was flying, knowing the vessel, as they did, perfectly well as a Chinese built and owned vessel, and that they therefore committed no dereliction of their duty in seizing the two pirates on board the lorcha. Undoubtedly, if the matter rested here, I should be more disposed in this conflict of authority to take the evidence of the British subjects, however prejudiced they might be. But Commissioner Yeh, while he repeats over and over again that no British flag was flying, appeals to the common practice existing on this subject. His answer as to this practice was never replied to, for the British authorities seem throughout singularly chary of argument. He says—It is an established regulation with the lorchas of your honourable nation that when they come to anchor they lower their colours, and do not rehoist them until they again get under way. We have clear proof that when this lorcha was boarded her colours were not flying; how, then, could they have been taken down?To that declaration of the existing practice, I repeat, no answer whatever is given, and the fact, in my opinion, to corroborate the evidence which sets forth that no flag was flying upon the occasion in question. Now, I saw the other day, with reference to this point, a reference to a late number of the Friend of China, of November 13. What says this newspaper? It says that the evidence of the Chinese had been corroborated by the depositions (which are not among these papers), forwarded by the consuls, of the master and crew of the Portuguese lorcha No. 83, which was lying close by the Arrow in the waters of Canton; and it adds, that it is now notorious at Canton that that flag had not been flying for six days previous to the seizure. But, then, if the flag was flying, was it legally flying? Had the master any right 1167 to hoist it? Are we to lay down the principle that in the waters of the Chinese, at the very doors of Canton, any pirate or smuggler may with impunity hoist the British flag, and that the Chinese officials shall be prevented ascertaining whether or not he has any right to hoist it? It may be possible that the master of the Arrow had at one time the right to hoist the British flag, but he had no right to do so at the time of this occurrence, and I will further say that in my belief both the Consul and Superintendent of Trade perfectly well knew that such was the case.
I have omitted, my Lords, in speaking of the effects of this ordinance, to notice the great facility which it affords to smuggling, for the whole, or at least a great part, of the coasting trade carried on in small craft is a smuggling trade, and that that smuggling is promoted and facilitated by this ordinance, I have the unexpected testimony of the Colonial Treasurer to that effect. Now, only imagine, my Lords, an ordinance the effect of which is to increase the coasting trade in opium by granting this exemption. I think that your Lordships will agree with me in the assertion that this ordinance was not communicated to the Chinese Government at the time it was passed, although it was in violation of the treaty which existed between this country and China. At the time of passing that ordinance the least we could have done, when we were materially altering the stipulations of a treaty, or at all events what we ought to have done before complaining of the violation of the treaty on the part of the Chinese, was to communicate to the Chinese authorities the alteration we had made. We did no such thing, but what did we do? Not many months ago two lorchas were seized carrying licences granted to them under this ordinance. Those lorchas were seized while engaged in smuggling salt, and the Chinese authorities confiscated the vessels; upon which the Consul applied to the Imperial Commissioner Yeh; and then Sir John Bowring writes to Commissioner Yeh, and tells him that as the vessels were seized for smuggling no doubt the cargo might be confiscated, but the vessels ought to be sent away; and then he gave the Imperial Commissioner the first intimation of the passing of this ordinance in the following terms:—It is provided by Article 12 of the Supplementary Treaty, that if any British vessel be de- 1168 tected smuggling, the Chinese authorities shall be at liberty to 'seize and confiscate all goods, whatever their nature or value, that may have been so smuggled; and may also prohibit the ship from trading further, and may send her away as soon as her accounts are adjusted and paid.' Such being the course prescribed by treaty, the Canton Customs in seizing and dismantling the lorchas in question exceeded their authority and committed a breach of treaty.The first intimation, therefore, of this great change which had been made, and I believe illegally made, and which directly affected the terms of the treaty, which was communicated to the Chinese authorities, was after they had seized vessels which it was only reasonable to suppose, as it was in the present case, were not British but Chinese ships.
Now, my Lords, I go on as to the legality of this ship carrying the British flag at all. I admit that it may be a matter of considerable doubt whether or not the flag was flying at the time of the seizure of the crew, but I shall be able to show to your Lordships that the vessel was not entitled to carry that flag was a matter which admitted of no doubt whatever. The licences granted under this ordinance are for a year, renewable from time to time upon certain conditions. Among other conditions it was provided that the original register should be deposited with the Colonial Secretary seven days before its expiry, and that in the event of its not being so deposited that the licence should become null and void. The Act also provides that any infringement of the provisions of the ordinance shall render the colonial register ipso facto null and void, and shall render the vessel sailing under the British flag liable to forfeiture. The ordinance also provides that the master of any vessel sailing under the colonial register, if he shall happen to be at sea, shall, on his return to the waters of the colony, deposit his register. Now, my Lords, undoubtedly no penalty would be incurred by a master of one of these ships for not depositing his register seven days before its expiration if he should then happen to be at sea, but undoubtedly the protection of the colonial register would cease. The licence is granted for one year and no longer; it may be renewed upon certain conditions, but until it is renewed it becomes absolutely null and void. In case there should be any doubt upon the subject, I will refer your Lordships to an authority which is not to be disputed—I mean to Sir John Bowring himself. In a letter, dated Hong 1169 Kong, October 11, to Consul Parkes, Sir John Bowring says:—It appears, on examination, that the Arrow had no right to hoist the British flag; the licence to do so expired on the 27th of September, from which period she has not been entitled to protection. You will send back the register to be delivered to the Colonial office.And again in a letter, dated October 13, he says:—I will consider, the regranting the register of the Arrow, if applied for; but there can be no doubt that after the expiry of the licence protection could not be legally granted.I have therefore under the hand of the Chief Superintendent of Trade two statements that after the 27th of September protection could not legally be granted to the Arrow, and that it could not claim to be a British vessel. Now, my Lords, there is another provision of this ordinance to which I wish to call your Lordships' attention. It is enacted that the register shall be produced once every six months to the harbourmaster, and shall be endorsed by him. Now, I find in a letter from Sir John Bowring to Consul Parkes, dated October 13, this significant passage:—I find, on inquiry at the harbourmaster's, that the register of the Arrow has not been regularly presented at his office according to the regulations.Now, my Lords, how stands the case? The ordinance provides that any infringement of its provisions shall render the vessel carrying a licence under it ipso facto liable to forfeiture, and shall forfeit all its claim to protection; and in the case of the Arrow—we have it under Sir John Bowring's own hand—not only that the registry had expired, and that the vessel could no longer claim protection as a British vessel, but that it had been guilty of an infringement of the provisions of the ordinance in not depositing its register with the harbourmaster in the manner required, and had actually thus incurred the risk of forfeiture. Now, my Lords, I should like to know, in the face of these declarations of Sir John Bowring, what honourable or honest man could sanction, or could have written or put forward claims such on these advanced by Sir John Bowring in his letter to the Imperial Commissioner Yeh, dated November 14? In that letter he says:—Whatever representations may have been made to your Excellency, there is no doubt that the lorcha Arrow lawfully bore the British flag under a register granted by me, and that treaty obligations were violated by the seizure of her crew 1170 without the intervention of the consul by your officers, and that this violation required a reparation as public as the outrage. I have undoubted evidence that the British flag was flying when it was pulled down by your officer, and I quite approve the conduct of the consul in the whole of this affair.So that, on the one hand, we have Sir John Bowring writing to Consul Parkes that the Arrow was not entitled to protection, while, on the other hand, he writes to the Imperial Commissioner Yeh that whatever representations had been made to him there was no doubt that the lorcha Arrow lawfully bore the British flag. Is that the open straightforward method of dealing which should characterize British officials. Is it such a mode of proceeding as is calculated to gain respect and confidence for British officials coming into contact with a most suspicious, but at the same time, a most commercial people? Is it upon grounds like these, which are contradicted by his own letters to Mr. Parkes, that this country should be dragged by our representative into a destructive and expensive war? Now, my Lords, what is the defence to this case? Sir John Bowring says it is quite true that the licence of the Arrow had expired, but the Chinese did not know that. What because your adversary may be ignorant, are you to suppress facts, and, acting as if you had a claim, which you know you have not, to hold out a hostile threat to another nation for their infraction of a treaty which you know they have never infringed at all? The Chinese authorities did not know it. No; but Sir John Bowring knew it, and Mr. Consul Parkes knew it; and if Mr. Consul Parkes had done his duty the Chinese Government ought to have known it; because when that vessel arrived and deposited her register in the hands of Mr. Parkes he was bound to notify that she had come in with her sailing licence expired, and he ought not to have given her a sailing licence again until she had applied for a fresh register, which she might have done during any part of the time that she was lying in the harbour of Canton, because Hong Kong was within twelve hours distance by steam. I therefore sum up this part of the case thus:—That the vessel, to all intents and purposes, was a Chinese vessel, Chinese owned and Chinese manned, and was in no respects a British vessel under any interpretation which could have been put upon the article by either of the parties to the treaty, at the time of making the treaty; that if she ever 1171 had been entitled to protection, that protection had been forfeited by her own act, by the expiration of the register and the infringement of the ordinance; but that the ordinance itself was a piece of waste paper, null and void, and that the register was utterly valueless, giving no claim to the character which was impudently assumed of being a British vessel.
My Lords, I must now go to a very different part of the case—a part which certainly, in the first instance, does not appear to be very closely connected with that which has gone before—I mean, to the claim which is put forward for the free admission of British subjects into the town of Canton. With regard to that point, your Lordships will find at page 185 of the papers, a statement, with which I will not trouble you, of the early stages of the discussion on that subject. I do not think that it is quite clear that the original treaty of 1842 intended to confer that right to the extent to which it has been subsequently claimed. I believe that it was the intention of that treaty—at all events on the part of the Chinese, to give to British subjects and British merchants full liberty to carry on their trade and to have their factories at the ports of Canton and the other places named; but I doubt very much whether it was in the contemplation of the Emperor of China when he signed that treaty that he was giving leave to British subjects to reside within the walled town of Canton. I do not press this however; because I. admit that the subsequent treaty of 1846, although it was entered into under considerable duresse, does specify that at some future time, when mutual tranquillity should be insured, it would be safe and right to admit foreigners into Canton; and it adds that—The local authorities being for the present unable to coerce the people of that city, the plenipotentiaries on either side mutually agree that the execution of the above measure shall be postponed to a more favourable period; but the claim of right is by no means yielded or abandoned on the part of Her Britannic Majesty.Subsequently, in 1847, by agreement with Keying, the then Commissioner, it was engaged that the period at which British subjects should be allowed to enter the city of Canton should be in the year 1849; and I perfectly admit to the Government that in this case our Plenipotentiary was perfectly right, and the Chinese officers altogether in error—that the claim which was so put forward has never been aban- 1172 doned by the British Government, but has always been maintained as a matter left in abeyance until a favourable opportunity might arise for exercising it; and that the only question has been, not as to the existence of the right, but as to the policy of insisting upon it, and the advantage or disadvantage that would result from it. I am afraid that I must trouble your Lordships by reading several of these documents, in order to put you fully in possession of the case, although I know that I must be wearying your attention. In the year 1848 Sir George (then Mr.) Bonham was Her Majesty's Plenipotentiary in China, and as the time approached when, according to the agreement with Keying, the engagements of the treaty were to be carried into operation, he wrote for instructions to Lord Palmerston, who was then Secretary of State for Foreign Affairs, and he asked whether he should press for the admission of British subjects in opposition to the manifest disinclination and apprehension of the Chinese authorities. He says, writing on the 20th of July, 1849:—If, therefore, Her Majesty's Government propose to insist on the city of Canton being thrown open, as are the other four ports, It will be necessary that I should be supplied with full instructions as to the wishes of Her Majesty's Government, and the means to be placed at my disposal to enable me to carry them into effect. Your Lordship will be aware that, by orders from the Colonial Office, I am precluded from moving troops from Hong Kong; but without some military demonstration I am satisfied that it will be useless to attempt an entrance into the city.Now, you will observe that from first to last the only objection to our admittance into the city on the part of the Chinese authorities has been the fear of disturbance and tumult, and of their inability to control and keep down the turbulent population of Canton. In the same despatch Mr. Bonham says:—But, should the Chinese authorities sanction our entrance into the city in April next from fear of the immediate consequences of their refusal, and I myself be permitted to visit the Imperial Commissioner at his residence, we should have no security that in less than a week after some British subjects would not be insulted and beaten, and perhaps in the melée murdered. I have myself come to the conclusion that the authorities are by no means desirous that we should be admitted; but I am also impressed with the opinion that, even if they were disposed to concede this, they have not the power of compelling the people to behave themselves in a quiet and peaceable manner. The result of our insisting on entrance under such circumstances into a city said to contain nearly 1,000,000 of people is tolerably ob- 1173 vious; unless, indeed, we keep a force ready at hand to take satisfaction for the very first insult or act of violence that may take place.In answer to that despatch is one from Lord Palmerston, dated October 7, 1848, which I think reflects great credit on the good sense and judgment of that noble Lord. He says:—It has always appeared to me to be doubtful whether the right of entering the city of Canton would be productive of any material advantage to British residents; while it has been plain that the unrestricted entrance of British residents into that city might lead to disputes and collisions between British subjects and Chinese, the consequences of which might be serious. I should wish, however, to know what practical disadvantage in regard to commerce the British residents at Canton now sustain by not being allowed to enter the city, and what practical advantages, beyond those of pleasure and amusement, British subjects would derive from the power of entering the city when they chose.Again, Lord Palmerston says, in a despatch dated December 30—I am clearly of opinion that it would not be advisable to proceed to hostile measures against Canton, or to take the unusual step of a mission to Pekin, in regard to a privilege which, like the admission of British subjects into the city of Canton, we have indeed a right to demand, but which we could scarcely enjoy with security or advantage if we were to succeed in enforcing it by arms. It may be true that the Chinese might be encouraged by their success in evading compliance with their engagements in this matter, to attempt to violate other engagements; but this consideration does not seem to me to be sufficient to determine Her Majesty's Government to put the issue of peace and war upon this particular point. We should not find it more difficult to employ coercion in order to enforce a more really useful and valuable right than in order to obtain the practical acknowledgment of this right of very doubtful value; but a great naval and military effort made to enforce a valuable right would be well warranted by the value of the advantage to be gained, while such an effort for a right which would be of little use or benefit when obtained would not stand upon equally justifiable grounds.Then Mr. Bonham, in answer to Lord Palmerston's inquiry, says this—and remember that this is the language of a man who had the greatest possible experience of China, who knew the Chinese character perfectly well, and who had been for a considerable time employed in Her Majesty's service. Mr. Bonham says:—It is my belief that no material advantage to our commerce would be gained by British subjects being admitted indiscriminately into Canton; at all events, none commensurate with the danger to be risked of involving the British Government in hostile discussion with that of China; for I am satisfied that, with the present temper and feeling of the populace in regard to this change, not one month would pass without some gross act of insult 1174 or violence being committed against any British subjects who might avail themselves of the privilege; such, in all probability, ending in bloodshed, and rendering it necessary for us to take steps which would certainly tend very much to embarrass our position.He then says that he has endeavoured to make himself acquainted with the views of some of the principal members of the mercantile community, and he says:—I have come to the conclusion that, although they are quite alive to the inconvenience, politically speaking, that may possibly arise from our foregoing claims to a right which has been the subject of much negotiation, it is, notwithstanding, their impression that their particular interests and those of commerce generally would suffer less by allowing the question to remain in abeyance than by enforcing what we demand by an appeal to arms:—He says also:—I would wish your Lordship to understand clearly that I offer this opinion as my view of the sentiments entertained by those only who have really large and complicated interests in their charge; the majority, who are young and inexperienced, and whose stake, as they are merely subordinates in the firms to which they belong, is comparatively trifling, would doubtless prefer an extension of personal liberty, without, perhaps, a due consideration of the cost at which it must be procured.The result of the whole is summed up in the last letter in this series of papers from Viscount Palmerston to Mr. Bonham, dated from the Foreign Office, June 25, 1849. The noble Viscount says:—I have now to state to you, in reply to these despatches, that although it would no doubt simplify matters if Her Majesty's Government were to renounce entirely and for ever the right accorded by treaty to British subjects to enter Canton; and, although it would possibly, on the other hand, place our future relations with China upon a more certain and satisfactory footing if we were by force of arms to compel the Chinese Government to fulfil this engagement, which there can be little doubt that they could do if they chose; yet, all things considered, Her Majesty's Government are not disposed to take either of these courses. A renunciation of the treaty right would be inexpedient, because, though the exercise of the right may not for the present be attainable without efforts which would be disproportionate to the object, or without risks in the enjoyment of it which would counterbalance its value, yet at a future time the state of things may be different, and the privilege may be willingly granted and safely enjoyed. An enforcement of the treaty right by military and naval operations would require an expensive effort, might lead to loss of valuable lives on our part, and much loss of life and destruction of property to be inflicted on the Chinese, while the chief advantage which it seems, by your account, we should derive from a successful result would be that, by giving such an example of our determination and power to enforce a faithful observance of the treaty, we 1175 should deter the Chinese from attempting future and other violations of that treaty. But Her Majesty's Government are not disposed for this object to make the effort or to produce the consequences abovementioned; and they prefer waiting to deal with future violations of the treaty according to the circumstances of the case, if such violations should occur.Thus, my Lords, upon the authority of Mr. Bonham, in 1848—Mr. Bonham being a man thoroughly versed in Chinese affairs—Lord Palmerston and the Government of that day came to the conclusion that it was not expedient to press this question; and, consequently, in 1849, Mr. Bonham issued a proclamation prohibiting British subjects from attempting to enter the city of Canton, and the claim was held in abeyance, to be urged or not, according as policy might dictate, at some future period. I should here say that the ground upon which the Chinese authorities have objected to the introduction of British subjects has always been the same—namely, a fear of evil consequences arising from conflict and collision, a dread of their inability to protect British subjects from the hostility of the natives, and a sense of the danger of disturbing the good understanding which subsisted between the two countries. My Lords, we have a very curious illustration of the sincerity of that plea in the private letters of Keying, the Chinese Commissioner, to Seu, pointing out the embarrassment in which he was placed by the mere approach of the discussion on the question of the admission to Canton, and enumerating the deplorable consequences which would result from his compliance with the request of the British, and representing that he must be guided by the Imperial instructions. And, my Lords, let us bear in mind that we are very imperfectly acquainted with the internal arrangements and constitution of China. We are imperfectly acquainted with the laws which regulate the social intercourse of the Chinese with each other, and we know nothing of the distribution of power among the different branches of the State. We look upon China as a despotism, and, in all probability, the Emperor of China is a purely despotic monarch. But that despotism, from long habit and custom, is controlled and regulated by certain maxims and principles which are broadly laid down in all the Chinese papers that have come before us. We have been accustomed, my Lords, in this country to hear a maxim very frequently quoted which sounds very well, although I cannot say that on, all occasions 1176 it is quite a correct maxim. Our Liberals, however, would certainly not complain of the maxim, vox populi vox Dei. Let us read that maxim translated into Chinese. Here is what Yeh writes to Sir Michael Seymour:—In the administration of all matters in China the rule adhered to is that which heaven (or nature) shows is the right one to pursue. The chief consideration is the people. It is said in the book of history, 'Heaven sees as my people see; heaven hears as my people hear;' that is to say, that what the people are averse to heaven (the Deity) is averse to. Is not this an additional reason why I should be unable to constrain (the people)? I must add that, as it is the habit of your Excellency's nation to adore the spirit of heaven, it behoves you, in my opinion, so much the more to conform in your actions to the principle given us by heaven.On another occasion Yeh writes:—The people are looked on by the State as its foundation. When the ruler loves his people there is some prospect of their obeying their ruler. Thus, as a general rule, has it ever been. To run counter to the feelings of man is to disregard what nature teaches is right before heaven. This has never been the policy of China, and I assume that your Excellency's Government no less recognizes the paramount obligation of conforming to what is right before heaven and due by man.We have a higher authority still, that of the Emperor himself, who says:—In the protection of the people lies the security of the State. When the people of Kwangtung are unanimously determined against the admission of foreigners into the city, can an Imperial injunction be laid on them by proclamation so to do, whether they will or no? It is not in the power of the Government of China to cross the wishes of the people out of deference to those of the men from afar; on the other hand, it behoves foreign nations to study the temper of the people, to the end that the capital of their merchants may work free from risk.I have read these maxims, my Lords, not as altogether concurring in them, but for the purpose of showing to your Lordships that there is a power in China recognized and established above the despotic power of the Emperor, and that the Throne in China is not free from the control of what may be called public opinion; and for the purpose, further, of showing that the plea alleged by the Chinese Commissioner of danger to the tranquillity of the country and to the persons of the English residents from admission into Canton is not a mere pretext, but a bonâ fide opinion, honestly and truly entertained, not only by the Chinese officers, but by Mr. Bonham himself.
I have now, my Lords, traced these proceedings up to 1849, and at my request 1177 the noble Earl opposite has been good enough to lay on the table some further correspondence relative to the entrance into Canton; and here we find a new actor upon the stage. Mr. Bonham was on leave of absence, and his place was occupied by Dr. Bowring. The Doctor had been the Consul, but in the absence of Mr. Bonham he was acting as Superintendent of Trade. I do not wish to say anything disrespectful of Dr. Bowring. He may be a man of great attainments: but it appears to me that on this subject of admission into Canton he is possessed with a perfect monomania. I believe he dreams of the entrance into Canton. I believe he thinks of it the first thing in the morning, the last thing at night, and in the middle of the night if he happen to awake. I do not believe that he would consider any sacrifice too great, any interruption to commerce to be deplored, any bloodshed almost to be regretted, when put in the scale with the immense advantage to be derived from the fact that Sir John Bowring had obtained an official reception in the yamun in Canton. I believe the noble Earl the President of the Council has a true insight into the character of Dr. Bowring, for during the short time he held the seals of the Foreign office he gave the following instructions to that eminent public servant:—It will, of course, be your duty carefully to watch over, and to insist upon, the performance by the Chinese authorities of the engagements which exist between the two countries. But you will not push argument on doubtful points in a manner to fetter the free action of your Government; and you will not resort to measures of force without previous reference home, except in the extreme case of such measures being required to repel aggression or to protect the lives and properties of British subjects.In his answer to that despatch Dr. Bowring says that he shall, of course, defer to his Lordship's instructions; he then enters into an argument of two pages to show that he had better not defer to those instructions, and he finishes by giving this ominous announcement:—Had I not felt that the strong expressions in your Lordship's despatch, which call upon me to avoid all irritating discussions with the Chinese, imposed extreme caution and hesitation in all my proceedings, I should have ventured to anticipate the pleasure of communicating in my very first despatch that the vexata quœstio had been happily and peaceably decided, and that I had been received within the walls by the high authorities of China.Ten days afterwards he writes another despatch. He had applied for admission 1178 into the city, his application being conveyed in courteous language, and had received the refusal which he had anticipated. He then adds:—As I am persuaded, however, that no steps will be taken by the Imperial Commissioner for my reception until I again call his Excellency's attention to the subject, I venture to avail myself of the interim most respectfully, but most urgently, to suggest to Her Majesty's Government that I may be permitted to take the necessary measures for the settlement of this long protracted matter, which lies at the very threshold of all our difficulties and discussions with the Chinese authorities, and which, if settled, would bring with it the favourable solution of all. Should Her Majesty's Government, however, entertain the question of a direct mission to the capital of China, in order to secure, by personal communication with the Emperor and his Ministers, the faithful observance of treaty engagements, there can be no doubt that the Imperial Commissioner at Canton would 'reverently obey' the instructions of his Imperial master. At the same time I have little apprehension of failing, if means are taken to show the authorities at Canton that Her Majesty's Government has determined to insist on the righteous and rigid fulfilment of the obligations contracted towards Her Majesty by the Chinese Government. A demonstration may be useful, but I do not anticipate disasters.Now, my Lords, among the other great acquirements of Dr. Bowring I believe he has considerable proficiency in the Chinese language, and I know it has always been a fixed idea in his mind that if for one hour he could obtain the advantage of an admission into Canton and be permitted to harangue the multitude in Chinese all difficulties would disappear before him, and from that moment there would be a most amicable and friendly understanding between the two races. When his last letter arrived the noble Earl behind me (the Earl of Malmesbury) had succeeded to the noble Earl the President of the Council, at the Foreign Office, and he certainly did not give to the Doctor any encouragement to proceed; on the contrary, he laid upon him the strictest injunctions upon no account whatever to stir the vexata quœstio of the admission to Canton—in fact, to do nothing at all until Mr. Bonham should return. Of course Dr. Bowring bowed to the orders of the Secretary of State, but he says:—I venture, most emphatically, to assure your Lordship that I never should have presumed to solicit the authority from Her Majesty's Government for undertaking the settlement of the long-protracted question as to our right of access to that city, had I not been fully persuaded, after a very long residence in and knowledge of Canton, that the time was singularly favourable for effect- 1179 ting the object, and that I could have effected it without endangering the public peace, and with great advantage to our social, political, and commercial relations with China.It is amusing to observe that, while the Chinese Commissioners are always looking forward to a more favourable season, and while they never find that that favourable season and fortunate hour has arrived, there are no possible circumstances or combination of circumstances which, to the mind of Sir John Bowring, are not favourable for the agitation of his cherished purpose. At one time it is because unbroken tranquillity reigns throughout the whole country; at another because there are disorders, disturbances, and revolutions, and the Chinese authorities would require our sanction and support for their defence. At one time it is because they are quiet, at another because they are turbulent; but every time is, according to Dr. Bowring, the very best time for pressing this eternal claim upon which he rests the maintenance of peace between the Chinese and ourselves. My noble Friend's tenure of office, as your Lordships are quite aware, was not of very protracted duration. He was succeeded by my noble Friend opposite (the Earl of Clarendon) who kept up the correspondence with Dr. Bowring. In February, 1854, my noble Friend wrote—There are unquestionably points which it would be desirable to secure, and to which we have even a right by treaty, and among those I would mention free and unrestricted intercourse with the Chinese authorities, and free admission into some of the cities of China, especially Canton. The treatment of these questions requires, however, much caution; for, if we should press them in menacing language, and yet fail in carrying them, our national honour would require us to have recourse to force, and in order to obtain results, the practical advantage of which is not clearly demonstrated, we might place in peril the vast commercial interests which have already grown up in China, and which, with good and temperate management, will daily acquire greater extension.On the 25th of April, in the same year, Dr. Bowring, again pressing this important point of his admission within the walls of Canton said—Should the Commissioner consent to this, we shall have gained a very important point; should he refuse, we shall have another substantial grievance, which will justify my proceeding to the capital. I shall declare to him that my reception at his official residence is a sine quâ non. I am prepared for every species of representation as to the danger to which I might be exposed, and that his difficulties about receiving me arise only from a regard to my personal safety; but as I am convinced he can protect me if he choose, and, 1180 moreover, that I am able to protect myself if he refuse co-operation, I am quite willing to incur the risk of entering the city, should he put no veto upon it, and have really no apprehension about my personal safety. I find that the late Commissioner of the United States, who went to Canton for the purpose of communicating with the Imperial Commissioner, altogether failed in obtaining an audience from his Excellency, though he strongly pressed its necessity, and insisted on the gravity and urgency of matters which demanded settlement.In reply to that my noble Friend opposite just ventured to hint, in the most modest way possible, that there was no reason to anticipate that Dr. Bowring would be more successful in gaining access to the Imperial Commissioner at Canton than the Ministers of France and America had been, adding—You will use every precaution for ascertaining before-hand that you will not meet with any indignity that will require to be avenged, and this more particularly at a moment when the aid of the British naval force in the Chinese Seas might not be available for that purpose.I cannot help saying that I wish that last sentence had not been put in, because it certainly does give countenance to the notion that there was an intention or an idea that at some future time the presence of a large force in the Chinese seas might be made available for enforcing the claim for the admission of the English into Canton. I do not suppose that that was the meaning which my noble Friend attached to the passage. I suppose he only meant to convey to Dr. Bowring the great danger there would be of any rash measures on his part leading to the offering of insults, which, under the circumstances, there would be no possibility of revenging. The last letter in this correspondence with which I shall trouble your Lordships is one from Sir John Bowring, dated July 9, 1855, in which he says—Finding that Mr. Consul Alcock has experienced many difficulties in communicating with or getting access to the higher authorities in Canton, I thought the opportunity a favourable one of again making overtures to the Imperial Commissioner, with a view to the establishment of more amicable intercourse.This is the oddest reason of all. Finding that the consul had met with insuperable objections, it occurred to Sir John Bowring that this was a favourable time to renew communications. There is no other circumstance in the slightest degree affording encouragement. The United States' Minister had failed, the consul had failed, and these two circumstances gave Sir John Bowring the greatest possible encourage- 1181 ment that the moment was peculiarly favourable to his own attempts. In this letter he continues—But I am still of opinion that, until the city question at Canton is settled, there is little hope of our relations being placed on anything like a satisfactory foundation; and, moreover, that the settlement of the said city question might be brought about without any risk or danger to our great interests in China. In my matured judgment it has been delayed much too long.Here, then, my Lords, you have the state of these two questions, which differ widely from each other, but which I have been obliged to take up separately, and to trouble your Lordships upon them at greater length than I should have desired, because from this moment these two are bound and entwined together in such a manner that it is impossible to separate them, and they form jointly the basis of our demands upon the Chinese Government. In looking at this correspondence, I confess that I perceive with feelings of some shame the contrast between the language and the tone of the correspondence on the part of the British officials and those of the Chinese. I must say, my Lords—and I will trouble you with a few passages to illustrate the view which I have taken—I must say that the language of the Chinese officials is throughout forbearing, courteous, and gentlemanlike; while the language of the British officials is, with hardly an exception, menacing, disrespectful, irritating, and arrogant. These are hard terms to use, but I can justify them by the extracts which I shall submit to your Lordships. It was on the 8th of October that this occurrence—the seizure of the lorcha—took place. On that day Mr. Consul Parkes, who appears to be a gentleman very rapid in his movements, made representations in the first place to Sir John Bowring; in the second place to the Chinese Commissioner, not couched in very civil language; and in the third place, as if to provide for all contingencies, without waiting for the slightest explanation, he called upon the officer commanding the naval forces in the river (Commodore Elliot) to co-operate with him in insisting upon reparation for this insult. He reported what had taken place to Sir John Bowring, who on the 11th addressed a letter to the consul, desiring him to call in the most peremptory manner for reparation and apology for this manifest and flagrant violation of the treaty, and in the event of its being withheld—which he seems to anticipate—authorizing him to 1182 seize one of the Chinese Imperial junks; this being at a time when he had not had the slightest communication with the Chinese authorities. Now, my Lords, let me read to you the first letter which Sir John Bowring addressed to Commissioner Yeh, and your Lordships will judge of the conciliatory tone in which negotiations for the reparation of the alleged infraction of the treaty were commenced:—I have received a communication from the consul at Canton stating the officers of your Excellency have boarded a vessel bearing the British flag, and in violation of treaty law, without any reference to the consul, carried away sundry persons, and lowered the flag which was flying on board. I cannot pass over this outrage, and must require an apology for it, and an assurance that such conduct will not be repeated. I have instructed the consul to wait forty-eight hours for your Excellency's reply; and, if it be not satisfactory, Her Majesty's forces are instructed to take the measures which the urgency of the case requires.That is the first communication made upon the bare hearing of the ex parte statement of the consul. To this and to a similar letter Commissioner Yeh replies in these terms. He first states what I have already detailed to your Lordships, the fact of the vessel being a Chinese vessel, and an erroneous impression which he had that the flag had been purchased for some thousand dollars from the Danish Consul, which is explained by the statement which I have made; and he then goes on to say—The lorcha is not the property of a foreigner at all, and, as to the flag, when the captors brought the men they had seized to my Court, they stated in reply to questions which I desired should be put to them, that at the time they went to the lorcha to make the seizure no flag was flying on board the vessel, that they were told the flag was down in the hold, but they did not see it. If no flag were flying, how could a flag have been hauled down? And, as to the arrest, the seizure of Chinese criminals is the legal obligation of Chinese officials. Their so proceeding is in no way an interference with matters of foreign concernment. I have long experience of your Excellency's intelligence and impartiality, and I put it to you, would Chinese officials have attempted a seizure on board a foreign vessel without a reason? I shall be obliged to your Excellency to prohibit foreigners from selling registers for vessels built by Chinese from this time forward. Obedience to such a prohibition will have the desirable effect of preventing confusion of British and Chinese one with another, with the consequent difficulty of distinguishing between them, and will more or less enable us on both sides to proceed in accordance with the treaty.In a subsequent letter, after he had been informed that a Chinese junk had been seized, he says— 1183I have caused inquiry to be made, and have ascertained for a fact that the vessel seized is a merchant junk, and one that is constantly trading up and down the Canton river. Now, is there laid down in the treaty any such course as this, by which distress is suddenly brought upon the innocent person? The whole question amounts to this—a lorcha built by a Chinese purchased a British flag. [That did not make her a British vessel.]Now, my Lords, I ask you, apart from the substance of the matter, whose language is distinguished by the best tone, that of the British officials who are demanding reparation, or that of the Chinese gentleman who most courteously offers explanation and almost apology for that which was not a violation of the treaty? The Consul is just as vehement in his language as is the Chief Superintendent. After announcing the seizure of the junk he says—I have to inform your Excellency that a naval force is now before the forts at Whampoa, those of the Leih-tih barrier, and also at this city, and to remind you that the matter which has compelled this menace remains still unsettled. Deeply is it to be regretted that it should have been occasioned by the disregard, on your Excellency's part, of reason, justice, and the obligations of the treaty.Again—But your Excellency, with a strange disregard both of justice and treaty engagements, has offered no reparation or apology for this injury, and, by retaining the men you have seized in your custody, you signify your approval of this violation of the treaty, and leave Her Majesty's Government without any assurance that similar aggression shall not again occur.What, my Lords, are the facts of the case? They are these—that the Chinese officials declaring all the way through that this was not a British vessel, and consequently that they had not violated any treaty engagement—that they had gone on hoard a Chinese vessel and seized Chinese pirates—nevertheless returned nine of the men against whom there was no charge on the following day, and in the course of another day or two, on the urgent demands of the British authorities, the whole of the twelve men were returned to the Consul, who refused to receive them, not because they had not all been sent back, but because he thought fit to say the proper Chinese officer had not been sent to accompany them. Even to that the Chinese Commissioner made reply that he had sent the officer who usually dealt with foreigners, and stated his rank and position, but, to use his own words, "strange to say, he did not get any acknowledgment." The men having been sent back, and as- 1184 surance given "that hereafter, if any lawless characters should be concealed on board foreign lorchas, you, the said Consul, shall of course be informed of the same by the Imperial Commissioner, in order to act in conjunction with the Chinese authorities." Mr. Consul Parkes, writing to Sir Michael Seymour, said—As to the surrender of the men, his Excellency offered early this morning to give up ten of them, but twelve having been seized I declined to receive a smaller number. He then forwarded the twelve, but not in the manner required in my letter of the 8th, and demanded that I should at once return two of them without any 'proper officer' being deputed to conduct with me the necessary examination. I again declined to receive them on these conditions, or in any other manner than that described in my letter of the 8th, and the men were again taken away. Finally, no apology of any kind has been tendered.Undoubtedly, my Lord, the Chinese Commissioner had not offered any apology for an act which he contended was strictly within the letter of his duty; but he had sent back the whole of the men, only requiring that two, against whom piracy could be established, should be returned by the Consul, and I must say there appears to me to be considerable force in the statement which the Commissioner subsequently made:—"But Consul Parkes made up his mind not to consent to what was proposed." I very much agree with the Chinese Commissioner that Consul Parkes and Sir John Bowring had both determined to make the most they could of such a grievance, for the purpose of tacking to it the monomania of Sir John Bowring as to free admission into the city. The two subjects may appear dissimilar, but I will show your Lordships that in the mind of Sir John Bowring they were connected together. On the 20th, Mr. Consul Parkes attends at Hong Kong, where there is a conference, and Mr. Consul Parkes then lays down very broadly and very distinctly the whole plan of the campaign as it was to be conducted in case of the continued refusal of the Chinese Government; and here is that plan—I advise, therefore, and I do so with all the deference due to the superior judgment of your Excellency and the naval Commander in Chief, and with a deep sense of the responsibility which I, as the officer charged with the care of British interests at Canton, in offering this advice incur, that, as we have searched the river and found no war junks (and anything less than the seizure of a fleet would, I am now convinced, have had no effect on the Imperial Commissioner), our operations should now be directed against the forts between Whampoa and Canton. The Imperial 1185 Commissioner, I submit, should again be summoned to grant the satisfaction already demanded within twenty-four hours, failing which we should then take possession of the four Barrier Forts. I cannot conceive it possible that his Excellency will then withhold compliance with our demands; but, should he still continue contumacious, a similar course should then be pursued with the forts at Canton, and it would be exceedingly advisable, I think, that the residence of his Excellency, which is not far from the water-side, should also in that case feel the effects of the bombardment.Now, listen!—I advocate attack on the Barrier Forts in the first instance, because they stand by themselves, and are not surrounded, as are those at Canton, by the dwellings of the people.In the first instance he recommends the destruction of the Barrier Forts, but in the next of the town forts. Although he knows the latter are surrounded by the dwellings of the people, he coolly and deliberately advises that those forts should be attacked and captured, and, if that should fail to produce any effect, that the next step should be to bombard the private residence of the Commissioner himself. We find the plan of operations laid down by Mr. Consul Parkes as early as the 20th of October—only twelve days after the first cause of quarrel. I said I could connect these two apparently very various subjects, the seizure of the twelve men and the entrance of foreigners into the city. As early as the 15th of October Sir John Bowring says, "I await the development of events"—I beg your Lordships to observe that expression—"I await the development of events, in order to decide on our future mode of proceeding." The campaign proceeds according to the plan laid down by Mr. Consul Parkes. The Barrier Forts are taken without casualties, and the town forts without resistance. The Barrier Forts are taken on the 24th, and on that day Sir John Bowring writes:—I have conveyed to Sir Michael Seymour an opinion, that if his Excellency and yourself agree on the fitness of the opportunity, it would be well if the vexata quœstio of our entrance into the city should now be settled.As soon as he has picked a quarrel, nominally about the affair of the lorcha, he takes advantage of the quarrel, as he wished to take advantage of peace and tranquillity.It would be well if the vexata quœstio of our entrance into the city should now be settled, at least as far as to secure us an official reception there. This would be a crowning result to the successful operations of Her Majesty's naval forces.1186 Under the same date he writes to Sir Michael Seymour:—If your Excellency and the Consul should concur with me in opinion that the circumstances are auspicious for requiring the fulfilment of treaty obligations as regards the city of Canton, and for arranging an official meeting with the Imperial Commission within the city walls, I shall willingly come to Canton for that purpose.The Consul writes on the same date:—The Imperial Commissioner still withholds notice or apology, and no opportunity, therefore, has yet been afforded for approaching by peaceable argument the vexata quœstio to which your Excellency's despatch refers.On the 25th, the following day, the Commissioner has sent an answer, and that gives the Consul an opportunity of "initiating," as Sir John Bowring says, the vexata quœstio:—A reply was sent this morning, pointing out to the Imperial Commissioner that freer intercourse with the authorities was necessary to prevent a recurrence of these evils.On the 27th, Sir John Bowring, in answer to Mr. Consul Parkes, says:—I have every confidence in your making the development of events instrumental in placing all our future relations on a better foundation, and quite approved the manner in which you have initiated the discussion of the city question, the settlement of which is perhaps even more desirable for the Chinese authorities than for ourselves.But, able diplomatist as Sir John Bowring was, and ably seconded as he was by the Consul, he found himself detected in the delicate initiation of the question of entrance into the city. Commissioner Yeh says:—But I, the Minister, also know full well what you, the said Consul, have in view. For a certainty, it is nothing less than a desire on your part to imitate the course taken by the Envoy Davis in the spring of 1847.The mine was sprung rather sooner than was intended, and consequently, I must say, Sir John Bowring rather lost his temper, for this was the answer he gave to the notification that the Chinese Commissioner had some idea of what he was driving at:—I have your despatch dated yesterday, and regret to observe that the unabated obstinacy of the Imperial Commissioner has necessitated the continuance of offensive operations. I notice in the declaration of his Excellency, dated the 26th instant, that a reference is made to the proceedings of Sir John Davis in 1847. You may find a proper opportunity of reminding the Imperial Commissioner that if, instead of being shamefully violated, the promises and engagements then entered into by the Chinese authorities had been faithfully and honourably kept all the existing calamities would have been avoided.1187If the promises and engagements then entered into by the Chinese authorities had been faithfully and honourably kept.
§ THE EARL OF DERBY
The noble Earl the Lord Privy Seal says, "Well, what then?" Why, then all these difficulties did not arise out of this affair of the lorcha.If the promises and engagements then entered into by the Chinese authorities had been faithfully and honourably kept instead of being shamefully violated, all these calamities would have been avoided.When we hear of shameful violation of promises, find engagements, I would remind the noble Earl that the violation took place with the full concurrence of Her Majesty's Government, on representations deemed satisfactory—that it was no shameful violation, but a violation on reasons assigned, in which the Government acquiesced. Therefore, in spite of the noble Earl's "Well, what then?" I say this language of Sir John Bowring is neither justified by the fact nor consistent with the courtesy due to a foreign Power. I will not go minutely into these miserable details. On the 25th the Dutch Folly Fort was taken. On the 27th fire was opened on the residence of the Commissioner, and troops at the back of the town were shelled from the Barracouta. On the 29th it was announced that a practicable breach had been effected, and the city was stormed. Now, my Lords, allow me to draw to your attention that previously to this Sir John Bowring, in direct defiance of his standing instructions, had, upon the demand of the naval officer, sent over to Hong Kong for troops. A miserable and scanty supply was sent of seventeen Sappers and Miners. Upon this point I must remind your Lordships of a very proper letter written by the noble Earl opposite (Earl Grey) in November, 1847, when at the head of the Colonial Office—a letter written, as the noble Earl has told us, with the full concurrence of the Duke of Wellington—Earl Grey to Major General D'Aguilar.Colonial Office, November 24th, 1847.Sir: The Governor of Ceylon has communicated to me an application which you have made to the Major General commanding Her Majesty's troops in that island, for a reinforcement of half a company of artillery, with two guns and a proportionate supply of ammunition, to be held in readiness to be forwarded to Hong Kong, should circumstances render it necessary to undertake any further military operations at Canton. I have desired the Governor of Ceylon not to send to Hong Kong the detachment for which you have 1188 made application; and I have further to signify to you that Her Majesty's Government peremptorily forbid you to undertake any further offensive operations against the Chinese without their previous sanction. Her Majesty's Government are satisfied that, although the late operations in the Canton river were attended with immediate success, the risk of a second attempt of the same kind would far overbalance any advantage to be derived from such a step. If the conduct of the Chinese authorities should, unfortunately, render another appeal to arms inevitable, it will be necessary that it should be made after due preparation, and with the employment of such an amount of force as may afford just grounds for expecting that the objects which may be proposed by such a measure will be effectually accomplished without unnecessary loss.I have, &c., GREY.A wiser and more statesmanlike letter could never be written; but it is impossible to read it without being convinced how directly Sir John Bowring has acted contrary to his own instructions and to the spirit of that letter. Without previous instructions from the Government he has commenced hostile operations, he has sent for troops, he has had them furnished to him in such miserable numbers as greatly to enhance the risk and danger attending those operations, and consequently incurring the risk of affording a triumph to the Chinese by our failure. Instructions of a similar character were given in 1853 by the Duke of Newcastle. Now, my Lords, I am really ashamed of trespassing so much upon your patience. I have omitted many matters which I could have laid before you, and I will now only recall to your recollection the succession of operations which afterwards occurred. I would, however, wish you to remark this fact—that from the moment the question of the official reception of Sir John Bowring within Canton was brought forward the case of the lorcha and the insult to our flag was totally forgotten and unnoticed; and it is still more surprising that in a letter from, the Admiral that point was insisted upon as a sine quânon, which, if not yielded, would render necessary more extensive operations. It is singular that at the very time the Admiral was assuring the Chinese authorities that his demands were unconnected with any previous demands, Sir John Bowring, with equal perseverance and confidence, was asserting that those demands were only the legal and necessary consequence of previous demands never abandoned, "demands again made by me Her Majesty's Plenipotentiary." From one part of this disastrous history we proceed to another. From the destruction of the 1189 junks, the capture of the forts, the storming of a city without defence beyond an unfortified wall, we come to the throwing shot and shell into the Commissioner's residence, the capture and destruction of the whole of the Imperial fleet of junks, effected with a loss of one man killed and four wounded. In all these miserable proceedings we find the same thing—forts mounting 200 guns destroyed—another mounting 210 guns destroyed—a hot fire kept up for an hour, and the total loss is one killed and four wounded. Some of these exploits were achieved without any loss, and thus it is that Her Majesty's naval forces have been prosecuting these inglorious operations; and yet we have Sir John Bowring writing to the Admiral most fulsome and disgusting letters, congratulating him upon the brilliant achievement and the glorious successes, upon the union of military skill and sagacity he had displayed, the unparalleled valour of the forces, and other fulsome phrases applying to operations in which so little resistance had been offered—the destruction of undefended forts and the capture of unfought ships. There is one more passage in this book to which I must advert for a moment. This is the way Sir John Bowring, immediately after the city had been shelled and stormed, speaks of that lamentable event. One would have thought that the Chief Superintendent would at least have expressed regret at the necessary bloodshed, which, although small, had accompanied the event. Not so. It appeared that so prevalent in his mind was one idea, that every calamity, however grievous, was regarded from a single point of view—as to how it affected his official reception into Canton—Since writing the above I have received your despatch, dated yesterday, containing the gratifying intelligence that the city had been entered by Her Majesty's marine forces, the yamun of the Imperial Commissioner visited by the admiral and yourself, and our great object of hostile action thus satisfactorily accomplished. I feel every confidence in the continued exercise of those admirable qualities, mingled sagacity and valour, which have been hitherto so remarkably displayed.The last scene which closes this history, as far as we are acquainted with it, is that on the 15th of December. Sir M. Seymour writes:—"I am now shelling the city from the Dutch Folly Fort." There is the conclusion of these negotiations entered upon with so much zeal by Sir John Bowring, the favourable opportunity taken by 1190 him for the attainment of his favourite object, the result being that he is really further than ever from it. As has been pointed out to him, he has taken the strangest of all possible modes for inducing a commercial, but at the same time suspicious and jealous people, to admit foreigners to a freer intercourse, by battering down their houses, bombarding their city, and rendering them fatherless, childless, and houseless. The conclusion of the whole is, that in a time of profound peace, without any declaration of war, we have this capture of junks, destruction of forts, cannonading of the Governor's house, shelling of an unoffending commercial city, and then we find we are further off than ever from the attainment of the object to gain which we performed these feats.
I gladly spare your Lordships many painful details connected with this history; but there is one matter which I must call to your notice. It is a representation from the inhabitants of Canton after they had been exposed to all these calamities and bloodshed. Recollect what these people had suffered and were suffering at that moment, and contrast the patient language and submissive resignation of this memorial with the arrogant and overbearing tone of the despatches of the British representative—Your nation has traded at Canton for more than a century, during which it may he said that between you and ourselves, the Cantonese, there have been relations of friendship, and not of hostility. The late affair of the lorcha was a trifle; it was no case for deep-seated animosity, as a great offence that could not be forgotten; yet you have suddenly taken up arms, and for several days you have been firing shell, until you have burned dwellings and destroyed people in untold numbers. It cannot be either told how many old people, infants and females, have left their homes in affliction. If your countrymen have not seen this, they have surely heard, have they not, that such is the case? What offence has been committed by the people of Canton that such a calamity should befal them? Again, it has come to our knowledge that you are insisting on official receptions within the city. This is doubtless with a view to amicable relations, but, when your only proceeding is to open a fire upon us which destroys the people, supposing that you were to obtain admission into the city, still the sons, brothers, and kindred of the people whom you have burned out and killed will be ready to lay down their lives to be avenged on your countrymen, nor will the authorities be able to prevent them. The authorities are able to accord you admission into the city, but they are not able to assure to such of your countrymen as do enter a perfect immunity from harm. If, then, your countrymen were admitted, could you always have a large force here for their protection? A protecting ferce cannot remain here any great length of time; and if death and wounds were to be the 1191 condition of your entering it, what boon would your admission into the city be, even were you to obtain it? There is another point. Although shell have been flying against the city for several days, burning buildings and destroying life, no fire has been returned by the troops. This is really friendly and conceding; it is enough to content you. And as you resorted to hostilities for a small matter, so now, for the sake of the people's lives, you may suspend them; and, considering what has been achieved at the present stage of proceedings there, allow them to terminate. Why add another difficulty to the existing one, and so cause an interruption of the friendly understanding between our countries?Now, my Lords, look at the condition of these people, and ask yourselves if it was possible to present to the persons at whose hands they had sustained such an unmerited injury a petition couched in more pathetic terms, and expressing better feeling? My Lords, these people asked for no reparation for the injuries which had been inflicted upon them—they did not treat their injuries as interrupting friendly relations. All they said was, "If you will only put a stop to these proceedings, we are ready to renew our commercial intercourse with you on the ancient footing; we shall not ask for vengeance against you for spilling the blood of our peaceful citizens, or for bombarding our defenceless city." Now, my Lords, let us see what the Americans did under similar circumstances. The Americans, in the course of these proceedings, happened to approach too near to a fort, and it fired upon them. What did they do? Instead of proceeding, in consequence, to bombard the town, they merely dropped down the river and silenced the fort which had so offended them, and, having done that, they quietly continued their trade on the footing on which it had always been carried on. There, my Lords, was a real substantial instance of firing on the American flag, as to which there was no question of nationality, and it was deemed sufficient reparation to dismantle the fort from which the offence was given; and, that being done, the two parties resumed their former relationship without any feeling of ill-blood. But we, on the other hand, taking the question of reparation into our hands, went on from one act of cruelty to another until we committed an amount of barbarity which would have been wholly unjustifiable under any circumstances whatever, which has produced feelings among the people of Canton against our country which, I fear, centuries will scarcely eradicate, and in consideration of which we shall have to 1192 deplore the day when such an important business was intrusted to hands so unworthy. To show the feelings in which these proceedings have been carried on, I will just mention that when the Commissioner expressed a wish to send for instructions to his Emperor, Dr. Bowring wrote to the Admiral, "If the Commissioner desires to refer to Pekin for instructions, you are by no means to listen to his request." Here, my Lords, are measures adopted without instructions from the British Government by the British Plenipotentiary; here is this official making war of his own authority, not only without instructions, but contrary to his instructions, without reference to the authorities of his own country at home, and without, besides, the slightest communication with the Emperor of the country against which he was levying war.
My Lords, I have now laid before your Lordships a great portion of these important disclosures. I have read with pain, my Lords, that such slight grounds of offence should have been made the pretext for such deplorable results. But, my Lords, while I read them I have the satisfaction to know that these are not measures which are likely to obtain the sanction of a British Government or a British Parliament. The national character will yet be vindicated, and will not be left to suffer as it appears in these papers in the eyes of all civilized nations. I have confidence in your Lordships' sense of justice. I have confidence in the manly and generous character of my countrymen. If I might, my Lords, on this question make any special appeal, I would make it to that right rev. Bench which it would have afforded me gratification to have seen more numerously occupied on this occasion. I think a question involving such high and important interests as this is not unworthy the serious consideration and the grave attention of the Spiritual Lords who occupy seats in this House. My Lords, to them I would appeal as especially and emphatically the men of peace—to them I would appeal as emphatically the servants of Him who came to bring "peace on earth and good-will among men." I would appeal to them as the legitimate rebukers of oppression and tyranny; I would appeal to them as those whom their holy mission peculiarly enjoins to impart and inculcate the adoption of those high and holy maxims by which we are commanded not to go beyond or defraud our neighbours in anything, and, if it be 1193 possible, as far as in us lies to live peaceably with all men. It is for them, with their high authority and their great and legitimate influence, to endeavour to stay the uplifted hand of violence and oppression and rebuke the shedding of innocent blood. To them I would emphatically appeal whether they believe that such deeds as those I have been describing, and enacted by a foreign on a heathen people, are calculated to advance the interests and diffuse the blessings of that holy religion of which they are the ministers and guardians? What, my Lords, must be the feelings of the ignorant native of China when, after hearing of those maxims of forbearance, long-suffering, and kindness taught and inculcated by the Christian religion, he finds the representatives of a Christian nation uncharitable, unforbearing, barbarous, and blood-thirsty? Would he not say, "Away with such a religion as that; I prefer to make use of my own lights, and, venerating the Spirit of Heaven, to act according to the Spirit of Heaven: but your religion is worth nothing for your practice is in direct violation of your teaching." But the Chinese may possibly say, these men are engaged in warlike or in mercantile pursuits; they are blinded by the love of gain, and disregard the principles of their religion. But possibly, my Lords, the Chinese may be aware that in the country from which those officials came there is an august assembly, composed of the noblest and the highest in the land; and they may think that there possibly may stand up men to protect and vindicate that Christian religion on such an occasion as this; that within this House sit the fathers of the Christian Church—men who by their profession and their holy calling, being wholly separated from political prejudices and party feelings, are the especial guardians of religion and virtue, doing honour, besides, to the discussions of such an assembly by the influence they exercise over its deliberations, and vindicating the Christian character of the country. My Lords, I look with confidence to that right rev. Bench that they will not, so far as they are concerned, leave a false impression on the minds of an ignorant heathen nation, but, on the contrary, that they will stand forward in defence of humanity and religion. I shall rejoice if the heads of the Christian Church shall place themselves at the head of this great cause, which is the cause of humanity and civilization. I should deeply deplore if, upon such an 1194 occasion, the Church, as represented by the right rev. Bench in this House, should give an uncertain sound, if their sanction should be extended to deeds of violence which in their consciences they cannot approve—should allow any feelings, of whatever character, to overbear what must, I think, be their solemn convictions on this question. But, my Lords, if I should be disappointed in this hope as regards the right rev. Bench, then I turn with undiminished confidence to the hereditary Peerage. I make my appeal to those who have done me the honour of listening with patience—with exemplary patience—to the long and painful statement which I have laid before you. To the hereditary Peerage I turn humbly, earnestly, but with confidence—(and this is the last word with which I shall trouble your Lordships)—I appeal to you by your vote this night to declare that you will not sanction the usurpation by inferior authorities of that most awful prerogative of the Crown, the declaring of war; that you will not tolerate, nor by your silence appear to approve, light and trivial grounds of quarrel, and upon cases of doubtful justice as far as regards the merits of our first demands, the capture of commercial vessels; that you will not tolerate the destruction of the forts of a friendly country; that you will not tolerate the bombardment and the shelling of an undefended and commercial city; and that you will not on any consideration give the sanction of your voice to the shedding of the blood of unwarlike and innocent people, without warrant of law and without the warrant of moral justification. The noble Earl then moved to resolve—1st. "That this House has learnt with deep Regret the Interruption of amicable Relations between Her Majesty's Subjects and the Chinese Authorities at Canton, arising out of the Measures adopted by Her Majesty's Chief Superintendent of Trade to obtain Reparation for an alleged Infraction of the Supplementary Treaty of 8th October, 1843:2nd. "That in the Opinion of this House the Occurrence of Differences upon this Subject rendered the Time peculiarly unfavourable for pressing upon the Chinese Authorities a Claim for the Admittance of British Subjects into Canton, which had been left in Abeyance since 1849, and for supporting the same by force of Arms:3rd. "That in the Opinion of this House Operations of actual Hostility ought not to have been undertaken without the express Instructions, previously received, of Her Majesty's Government; and that neither of the Subjects adverted to in the foregoing Resolutions afforded sufficient Justification for such Operations.
§ THE EARL OF CLARENDON
I can assure your Lordships that I rise with a deep sense of the important duty which devolves upon me of following the noble Earl through the course of his long and powerful speech, in which he has displayed more conspicuously than ever those talents and energies for which we have long known that he is remarkable. The noble Earl has certainly neglected nothing which the most careful investigation, the most ingenious interpretation of documents and instruments, the boldest assertion of facts, the most touching appeal to your sympathies, and the most commanding eloquence, could effect. But I also have the same confidence which the noble Earl has in your Lordships. I feel that you will regard the facts of the case as they really stand, and not the facts as they have been presented to you by the noble Earl; and that, bearing in mind the great interests which we have to vindicate and uphold—bearing in mind also the expediency, the policy, the necessity of upholding the servants of the Crown abroad when they are in the right, as in my conscience I believe they have been on the present occasion—I say, my Lords, that I feel, like the noble Earl opposite, full confidence that your Lordships will this night, in your judicial capacity, lay aside all party considerations, that you will look at the evidence as it stands, and that you will not condemn Her Majesty's officers in China or Her Majesty's Government at home for having adopted a line of conduct which they unavoidably though most reluctantly felt compelled to pursue. In this House there can be but one feeling of regret at the interruption of relations between Her Majesty's subjects and the Chinese authorities. But when my noble Friend calls those relations amicable he is far from representing the real facts of the case. The truth is that when, on the one side, there has been for a long series of years an habitual determination on the part of the Chinese to humiliate us, to restrict us in the exercise of our undoubted rights, to violate our privileges secured by treaty; and when on the other side, as a natural consequence, there has been great annoyance and irritation, although tempered by a moderate and forbearing spirit, I think such relations can hardly be called amicable. So far has this been the case that for many years there has been no resident in China, official or Unofficial; no matter to what nation he belonged, who has not felt that the present 1196 state of things was unendurable, that it could not last, and that sooner or later a rupture must take place. A rupture has now taken place, and it has been attended with consequences which we must all deeply deplore. But on the other hand your Lordships must remember that all those persons who were either on the spot or who were able to watch the course of these events as they occurred,—all those persons, who will moreover be great sufferers in their property by the rupture—have approved the course which has been taken, and while all have lamented it all have admitted its necessity. These persons would certainly, if they were here this evening, or could be represented here, ask your Lordships not to give your assent to the condemnatory Resolutions proposed by the noble Earl. They feel that, whatever they possess in China, whatever they hope for as regards trade, the safety of their lives and property, the progress of their trade, all depend upon the maintenance of the treaty rights, upon the respect paid to the British flag, and upon the protection which it affords. If those rights can be violated, if that flag can be insulted with impunity, there is an end to all safety for British residents in China; British merchants will henceforth carry on their business, and their interests will depend upon a mere sufferance, which may be withdrawn in a day, and they will be in reality as dependent upon the mercy and forbearance of the Chinese authorities as those persons at present delight to represent them to the Chinese nation to be.
My Lords, this case of the Arrow may be a miserable case, as the noble Earl says; it may not be worthy of the deplorable consequences which have ensued from it. But a principle is involved in it, a right has been violated, and I say that; the consul and the officers of Her Majesty in China could not, without a complete dereliction of their duty, have acted otherwise than they have acted. With respect to the ordinance, your Lordships will be aware that the origin of these instruments was for the purpose of preventing abuses to which the British flag was subject when borne on the authority of colonial registers. The earliest notice of their abuse is from Sir John Bowring, who says:—The question presents grave difficulties; vessel no sooner obtains a register than she escapes colonial jurisdiction; carries on her trade within the waters of China; engages pro- 1197 bably in every sort of fraudulent dealings, and may never appear again to render any account of her proceedings or to be made responsible for her illegal acts. The Imperial Act which now regulates the conditions upon which registers are to be granted affords in these regions no adequate security against the unlawful use of the British flag, and the object of the ordinance is, as far as possible, to provide such local guarantees as appeared compatible with the general regulation of Parliamentary authority, and are necessitated by the peculiar condition of public affairs in China.Sir John Bowring further explains what was the object of the ordinance. He says—The necessity of legislation was pressed irresistibly on my attention, not only as Governor of Hong Kong, but as Chief Superintendent of British trade in China, in consequence of multitudinous abuses which had grown up, and which were aggravated by the disorganized state of China, and the confusion produced by all those discordant elements in which I have been directed by Her Majesty's Government to preserve a strict neutrality as between political belligerents, while it was frequently impossible to distinguish the marauder and the pirate from those who claimed to be rebels seeking only to overthrow the Manchou Government. And the population of this colony, from its very nature and from the universality of secret associations, could not fail of being engaged in partisanship likely to compromise the British name and the British flag. The difficulty of deciding who is, and who ought, either by right or expediency, to be deemed a British subject in a colony, a large part of whose population is constantly shifting, and in which we have been established only a few years, is a difficulty not only embarrassing as regards the right to claim the British flag, but which presents itself in many other intricate shapes where Chinamen are concerned.It was, then, in fact, the purpose of restricting the abuse of the British flag, carried by virtue of the Imperial Act, that this ordinance was passed, and the right of the Arrow to carry the British flag was conferred by the ordinance passed in March, and which came into immediate operation. No right was conferred by the second ordinance; this ordinance was not then confirmed by Order in Council, and, being only approved by Her Majesty in September last, did not come into operation at Hong Hong until after these events had taken place at Canton. The ordinance of March I contravened no existing British law. It passed before the Merchant Shipping Act passed. As I said, it came into immediate operation, and it would certainly have contravened that Act if it had bestowed a British register; but the only thing it bestowed was a colonial register for trading between China and Hong Kong. The practice is, as your Lordships will be aware, for the Crown to 1198 legislate in conjunction with the colonial legislature in the case of conquered colonies. Now, Hong Kong was a conquered colony, and there was nothing in the Act passed by the legislature of Hong Kong, and subsequently confirmed by the Crown, which the Crown was not strictly entitled to confirm, or which contravened any existing Act of Parliament. My noble Friend does not appear to be aware that the same kind of licence has been granted in other of our Crown colonies for a very considerable period. At Gibraltar and Malta the Queen, by an Order in Council, has granted licences to carry the British flag, which of course implied British protection, not only to British-born subjects, but to persons who had been fifteen years resident in those colonies. The case of the licences granted at Hong Kong to Chinese who are lessees of the Crown is a strictly analogous case, and, for my own part, I consider that this ordinance was perfectly legal, and that the colonial legislature had a perfect right to confer a register which carried with it the protection of the British flag. I will now read to your Lordships the opinion of the local Attorney General upon this subject, and the reasons which have led to that opinion. The acting Attorney General for Hong Kong says—The colony of Hong Kong, with a Chinese population exceeding at the present time 60,000, hardly contains ten Chinese who can legally be called British subjects, for it has not been deemed advisable to naturalize the Chinese here, and the recent settlement of the colony prevents the possibility of their having become subjects by birth. The great proportion of the respectable part of this population have, however, constituted themselves bonâ fide British subjects by becoming Crown tenants of leaseholds for long terms of years (a tenure of which an alien is incapable), and by permanent settlement have evinced the clearest intention of perfecting themselves, in the persons of their descendants, British subjects secundum leges, as well as de facto. I, therefore, as Law Adviser to the Crown, deemed it my duty to advise the granting of registers to such Chinese as had, by becoming Crown tenants, so far as in them lay, made themselves British subjects, and whose discharge of the obligation taken upon them could be guaranteed by other Crown tenants. But there had been serious complaints from the naval Commander in Chief, and from the consular and Chinese authorities, of the abuse by small craft carrying the British flag, of the treaty regulations, and as the prosperity of this colony (so much increased of late) depends entirely, so far as regards the native population, upon the coasting trade, which is carried on in vessels ranging between twenty and 100 tons, it was deemed advisable by the colonial Government that an ordinance should be passed which, in no way interfering with the granting of Imperial registers to long 1199 sea-going ships, should yet facilitate the obtaining of English papers of a certain description by colonial craft, and should also give the colonial Government means which it could not possess under an Imperial register of punishing violations of the treaty with China. It was not thought necessary to fix the local limits within which the colonial register should run, because the character of the craft which requires those registers and the objects of the local trade render it a matter of the utmost improbability that a colonial registered vessel could go anywhere else than along the coast of China; and, as the colonial register is obtained on the strength of a declaration that the vessel is solely to be employed in trade with China, and a falsifying of that declaration involves the penalties of the bond which accompanies the register, it was hardly deemed necessary to specify any geographical boundaries.I say again, my Lords, that the case is strictly analogous with the system which prevails at Gibraltar and Malta, and which also obtains in the British settlements of Malacca, Singapore, and Malabar. I will read to your Lordships a memorandum which was given to me by Mr. Craufurd, Governor of Singapore, upon this subject. Mr. Craufurd says—The condition of the British settlements in the Straits of Malacca much resembles that of Hong Kong. It will be useful, therefore, to see under what conditions it has been expedient in these to grant registration to native shipping. The population of the three settlements amounts to 225,000 of which 90,000 are Chinese. I may confine my remarks, however, to Singapore, the most important of these settlements, and which is not above five days' sail distant from Hong Kong. It contains a population of 70,000 of whom no fewer than 50,000 are Chinese, some of these being British subjects by birth, as born under the British flag, but the great majority aliens, as born in China or the Dutch possessions in the Archipelago. Both British-born and alien Chinese are, without distinction as to nationality, owners of coasting craft and of square-rigged vessels making distant voyages, and all sail under the British flag. I have before me the names of twelve square-rigged vessels, owned by Chinese, lying in the harbour of Singapore, ranging from 150 to 669 tons, seven of them exceeding 332 tons burden. The coasting Chinese and other native craft sail by registered passes, which run for a year only, and are renewable. These passes resemble the certificates of registration of the Hong Kong Ordinance of 1855, only that the conditions on which they were granted were far less stringent.But, my Lords to leave this part of the subject, the real question is whether the lorcha Arrow was considered by the Chinese authorities at Hong Kong a British vessel and entitled to carry the British flag and claim British Protection. That is the real question for us to consider. A "lorcha" is a vessel described as belonging to foreigners, the term being used in contradistinction to the word "junk." 1200 They were originally Portuguese vessels, and in fact, it has always been looked upon by the Chinese as a foreign vessel. The question is whether the lorcha Arrow was considered a British vessel by the Chinese authorities. Now, my Lords, I say that she was known there as a British ship, trading in the Canton river; and all the proceedings which took place before she passed into the hands of the person she belonged to, had nothing whatever to do with her title to be considered a British vessel. It is true that the Arrow had been seized by pirates; that there had been an adjudication, that she had been bought, and that there had been an arbitration; but the end of all was that she had come into the possession of a Chinese lessee of the Crown, and to him a register had been granted by the Hong Kong Government. The Arrow was then upon the Canton river with a British register, with the British flag flying. I say with a British register, because, although the time for which the register was granted had expired, the vessel was not deprived of the protection of that register, inasmuch as she was still at sea, and vessels at sea are not called on to renew their licences until they reach the waters of the colony to which they belong. The Arrow was at sea, the "Blue Peter" was up, the British flag was flying, and there can be no doubt, whatever, that a deliberate insult was intended both to that British vessel and to the British flag. The Arrow was boarded by an armed Chinese force from a large and heavily armed vessel, and twelve out of fourteen of the crew were taken away; and, as if to show the animus of these Chinese officers, or else the instructions under which they acted, the British flag was hauled down. Now, in dealing with the Chinese there is no article of the treaty which comes so constantly into operation as the ninth Article, which has been read by the noble Earl, by which if any person on board a British ship be suspected of a crime a communication shall be made to the highest civil authority, in order that a strict search may be made, and upon the man's admission of guilt, or upon its being proved against him, he is to be given up to the Chinese authorities. The greatest possible importance has been attached to the value of this Article as regards maintaining peaceful relations with a country so populous as China, and which contains so many malefactors of such various kinds who might take refuge in our 1201 settlements; and, in order to obviate any inconvenience which might thus arise, this Article, which is, in point of fact, a species of extradition treaty, has been deemed of the utmost importance. Nothing can be plainer than the course to be adopted under this provision. It implies a two-fold process—one that information shall be given where the criminal is supposed to be secreted or to be residing, in order that search may be made—and the other, that if after investigation, he shall be proved or admitted to be guilty he shall be delivered up. Now, in the present case no such course was adopted. One man, I believe, was suspected, and he was an old man, so much older than the rest that it could not be difficult to identify him; but instead of applying, according to the provisions of the treaty, to the civil authorities to institute an inquiry, the crew of the lorcha were violently taken out of her, notwithstanding the vessel being under the protection of the British flag. Now, my Lords, I will ask any one of your lordships to place himself in the position of our consul, Mr. Parkes, and consider if he would have acted differently. I think, my Lords, that there has been a great deal of unjust declamation against Mr. Parkes, for he has been accused of having acted with precipitation. Now, my Lords, I think it due to Mr. Parkes to say that I am personally acquainted with him, and I consider him a very intelligent, able, and gentlemanlike man. He has been placed on several occasions in most trying circumstances, in which he has always displayed the greatest judgment and good temper; and I know no man more likely to act in difficult circumstances under a deeper sense of responsibility. I ask your Lordships to place yourselves in the same position, and consider how you would have acted. If Mr. Parkes had shrunk from demanding satisfaction for the violation of the rights of British ships—if he had acted otherwise than he did—he would have compromised the flag of England and the protection which that flag affords. Your Lordships must remember that if he had shrunk from that course—if he had allowed the ship's crew to be carried away, and the masters' protest to remain unheeded—he would have given a comparative sanction to the violation of the treaty; and if he had allowed his expostulations and then his threats to be unheeded, can any one doubt that the Chinese authorities would have seen in the circumstance a fresh triumph over the "white devils and 1202 outside barbarians," and that they would have proceeded to still graver insults? What did Mr. Parkes do? He represented to the High Commissioner the manner in which the treaty had been violated, and requested that the men might be restored, to be dealt with according to the provisions of the treaty, and that an apology should be made for what had occurred. It is a kind of case which might have occurred between two of the greatest Powers in the world; and really, if your Lordships can dismiss from your minds those strong feelings in favour of China and the Chinese authorities with which the noble Earl has sought to inspire you, and will try the case by bringing it a little nearer home, I think that your opinion will be somewhat different from that which the noble Earl seems to entertain. Suppose, for example, that a French or American vessel had come to this country manned with British seamen, and that on arriving at Liverpool or the Channel Islands, the British authorities there, knowing that she was sailing under a system of registry which had been communicated to us and to which we had not objected, had sent an armed force on board to take away four-fifths of her crew because one or two men on board were suspected of some offence: suppose that afterwards the French or United States' Consul had requested that those men might be restored in virtue of an existing treaty of extradition, and that an apology might be made for the insult which had been offered to the French or American flag; what would be the feelings of the French nation or the United States if the British authorities had absolutely refused to restore the men, and had denied all apology on the plea that he was not satisfied, from information which he had received subsequently, that the vessel was actually a French or American vessel, or that she was sailing with a satisfactory register? Would not such a man be considered mad or worse than mad who thus exposed Liverpool or the Channel Islands to attack, and the country to a war with France or the United States on such grounds as these? And what would be our surprise if afterwards we heard that in the Senate of the United States or of France resolutions were proposed condemning in the strongest manner all the American or French officers who had been engaged in the affair, and a speech made eulogizing in the strongest terms the British authorities who had acted in such a manner? Such a case as that could not indeed 1203 occur among highly civilized nations who respect international law; but these things do occur in China, and they therefore prove that there is not that amount of civilization there and not that respect for international law which exist among other nations; and, painful though it may be to admit it, and repugnant to our feelings as it is, I fear that we must come to the conclusion that in dealing with a nation like the Chinese, if we intend to preserve any amicable or useful relations with them, we must make them sensible of the law of force, and must appeal to them in the manner which alone they can appreciate. No satisfaction was granted to us. Your Lordships will remember that the Imperial Commissioner denied that the vessel was British and objected to the system of registry; and he had an object in doing so, because he thus preserved to himself the right of treating all other British vessels in the same way, and thus he would deter those Chinese who were in the habit of taking service with Englishmen from continuing to do so, under a flag which no longer afforded them protection against disastrous consequences from their own Government. But the Commissioner was afterwards inconsistent with himself, because he did admit the binding force of the treaty, by sending back some, and then more, of the men whose restoration had been demanded. But he did not do it in conformity with the treaty, and he absolutely refused to make the apology which was demanded of him. The demand for an apology which was required was a just and reasonable one, and you should never make any other demand upon the Chinese; but having once made such a demand it is impossible to withdraw it, for if you do your motives will always be misunderstood, they will be attributed to fear and cowardice, and insults will be heaped upon you accordingly. It was therefore manifest from the first moment that these demands were made upon the Chinese authorities, that it was absolutely necessary to insist upon them as reparation. Accordingly, when the matter passed into the Admiral's hands he seized a junk, for the purpose of proving to the Imperial Commissioner that we were really in earnest, which the Commissioner might naturally have doubted after the numerous insults which we had submitted to. But if we were justified in having recourse to force at all, it was manifest that the force ought to have been adequate to the resistance 1204 which we were likely to meet with and to the object which we had in view, which was to put an end to the system which had so long prevailed of violating our rights. Those measures, barbarous though they certainly may appear, might at any moment have been brought to a close by the Imperial Commissioner; but he refused to do that, because he was determined—as was proved by all his acts—to persevere in the course of which we had complained. We have no right to say that the measures which were had recourse to were altogether so impolitic as my noble Friend thinks, because we have yet to see whether the Court of Pekin will now see the necessity of placing things on a more satisfactory footing. Anybody who reads the papers I am sure will admit that the entrance into Canton had in reality nothing to do with this question of the treaty, and I am convinced that we never should have heard of it if the case of the Arrow had not occurred.
My Lords, the noble Earl said a great deal about the monomania of Sir John Bowring with respect to admission into Canton. I fully admit that Sir John Bow-ring attaches the greatest importance to that object; but I am sure, under the instructions which he has received and the knowledge which he has of what are the feelings of the Government on the subject, that he never would have committed any act of which the Government or this country could have had to complain, by way of gratifying that predominant sentiment and opinion of his. I say that we never should have heard of it if that case of the Arrow had been satisfactorily settled. But, under the circumstances, it seemed manifest to our officers that personal communication with the authorities in Canton would be the best way of coming to an understanding; and Sir John Bowring and Sir Michael Seymour did not insist upon the indiscriminate entrance of British subjects into Canton, as they had a perfect right to do, but they simply asked for admission for themselves to communicate with the Commissioner; my noble Friend thinks that it was a most unfortunate moment for insisting upon our rights; but so far from its being an unfortunate moment for making the demand, I think that it was a very fitting time for the purpose. It was made at the moment when we could give effect to the representations of Sir George Bonham that Canton would never be open to us until the people of Canton were made 1205 to feel the effect of our power. Under the circumstances that had occurred all that Sir John Bowring and Sir Michael Seymour wanted was to parley with the authorities, believing that a written correspondence would only contribute to feelings of exasperation and irritation, and that a parley afforded the best chance of coming to an understanding.
I will now say a few words with respect to the question of admission to Canton, upon which I think there is some misapprehension in this country, and particularly with reference to the feelings of the people, about which the noble Earl enunciated some very eloquent and liberal axioms. Keying, who certainly was one of the wisest and most experienced of the officers we have had to do with there, was of opinion that there was no insurmountable difficulty in carrying out what he called our just demands, and that the feeling of the people about which such a bug-bear had been made was always stimulated by the authorities. My Lords, we well know that in Asiatic provinces the authorities can move the ignorant and fanatical people to any amount of outrage against the Christians; but that is no reason why we should be prevented from entering those provinces or calling upon the authorities, as we always do, to maintain order and to make themselves responsible for the preservation of Christian life and property. In 1845 Sir J. Davis stated that the entrance into Canton was refused under the pretext of the people's wishes; but that he felt perfectly certain that, provided he had the sanction and support of Her Majesty's Government, he would obtain the fulfilment of that important condition of the treaty. That despatch was addressed to my noble Friend below me (Earl Grey) who in his clear and able reply recognized the importance of the entrance into Canton, and gave Sir John Davis authority to suspend the handing over of Chusan to the Chinese until the Chinese had fulfilled that provision of the treaty. Sir John Davis accordingly entered into negotiations, and arrived at the agreement read by the noble Earl opposite, by which the right of British subjects to enter into Canton was fully recognized. But it was not till 1847, and not till after successful military operations, that the Imperial Commissioner consented to fix a day for the fulfilment of that condition of the treaty. In 1848 Sir George Bonham, who succeeded Sir John Davis, applied to the Chief Com- 1206 missioner Seu to send an officer to Hong Kong in order to consult with him about various matters which were in dispute between the two countries, particularly with reference to the entry into Canton in the following year. Seu entirely denied that any such privilege had been conceded by the treaty, and altogether repudiated the agreement entered into by Keying. Nevertheless, at that time the Council of Canton, in obedience to the Emperor's orders, reported that the English had a right to enter Canton, in consequence of the agreement with Keying, that they might enter without any harm being done, and that, after all, it mattered little whether they were located outside or inside the city. Sir George Bonham still thought there was no expectation of getting into Canton; but he expressed a very strong opinion upon the subject, stating that—Without assuming for one moment to criticise the act or motive of any of Her Majesty's servants intrusted in past years with the administration of affairs in China, while expressing now my conviction that, neither in this matter nor any other, negotiation unsupported will avail, I cannot refrain from regretting that no advantage has been taken of the few opportunities that have offered of humbling in the Cantonese (at whose hands our countrymen have suffered so much both of insult and injury) that arrogant spirit to which is to be attributed their obstinate refusal to concede to us a right, in itself of minor importance, but the denial of which, as it is made, is calculated to prejudice us nationally in the eyes of the Chinese in all parts of the empire.Such was the opinion of Sir George Bonham; and when the time approached for the fulfilment of Keying's engagement, he wrote home that intimidation was to be resorted to, and that the people's wishes were to be the pretext of a refusal. He then suggested whether it might not be well to give up the question altogether, although he did not recommend it, rather than continue the dispute with the Chinese. A middle course was recommended to him. He was told to remonstrate strongly, and to put before the Chinese authorities the consequences of not fulfilling their treaty engagements. The result was that Seu and Lieutenant-General Yeh immediately declared that all discussion on the subject had been abandoned, and they received Imperial honours for the construction they had put upon our display of moral force. In this state things have remained ever since. Every Government of this country has temporised, desiring not to enforce our manifest treaty right. I do not say that that was an unwise policy. I think it is 1207 better to bear with evils that we know of in China rather than to run the risk of war; but your Lordships ought to remember that that is not the feeling of the British residents in China. This question of entrance into Canton has a wider bearing and greater consequences than might at first sight be imagined. The measure—in itself insulting—is always cited as a proof of our humiliating position, and of our inability when we were at war with China to secure for ourselves by force of arms that to which we are fairly entitled. Our exclusion from Canton is even made the subject of taunt and reproach to the other ports where we are admitted, and where large numbers of Cantonese reside, and it has been the fertile source of that tendency to mischief and deterioration that has marked our relations with China. In 1846 it was the cause of a serious riot at Foo-chow-foo, when the lives of the foreign residents were endangered, and at Shanghai it was used by the Cantonese to involve British subjects in collision with the natives. Moreover, the present anomalous and nominally amicable state of things excites the greatest apprehension in the minds of all foreigners, because their exclusion from the walls of Canton implies the seclusion within the walls of all the Chinese authorities, and their obstinate refusal to communicate with foreign representatives upon those matters of every-day occurrence in which personal communication might prevent small differences from swelling into serious and perilous misunderstanding. This is a question, therefore, which it is most important should be settled. I repeat, however, there has been no change in the policy of the Government, no different instructions have been sent out, and nothing would have been done if the Arrow question had been satisfactorily arranged. But I contend that the Queen's officers were right and justified in taking that opportunity of seeking to obtain the partial fulfilment of the treaty as one of the best means of leading to an amicable settlement.
My Lords, with regard to the third Resolution of the noble Earl, in which he states that operations should not have been undertaken without express instructions from the Government, I would beg in the first place to recall to your Lordships' recollection what took place in 1847, which is a precisely analogous case to that of 1856. In 1845 Sir John Davis represented that a gross outrage had been 1208 committed on some British seamen who had been decoyed into the suburbs of Canton. A few months later he reported that a murder had been perpetrated, and at the same time stated that he had requested General D'Aguilar to come to Canton in order to co-operate with a naval force. General D'Aguilar arrived at Canton on the 1st of April, and on the 3rd he reported that he had seized the forts on the river, blown in the gates of the city, destroyed the magazines, and spiked a large number of guns. The result was that Sir John Davis immediately obtained an interview with Keying, after which he sent him a written list of his demands, including that of admission to Canton. It was in consequence of these military operations that Keying consented to name a day on which the treaty should be fulfilled. At the same time a proclamation was issued calling upon the Chinese not to molest foreigners; on the contrary, under pain of heavy punishment always to treat them well—which is a clear proof that whenever the authorities are afraid themselves they can find means to keep the people in order. The case of 1856 is precisely analogous. In both there was an infraction of a treaty; in both communication was refused; in both further forbearance was considered to be impolitic; but in the case of last year more moderation was displayed than in 1847. All that was then asked was the restoration of the men according to the treaty, and an apology for the insult to the flag. But, my Lords, the proceedings of Sir John Davis and the operations of General D'Aguilar were approved by Lord Palmerston. In his first despatch to Sir John Davis the noble Lord said:—Foreign Office, June 24, 1847.Sir,—I received yesterday afternoon the duplicate of your despatch of the 12th of April, purporting to give a more detailed account of the operations against Canton, undertaken in the beginning of that month, than was contained in your previous despatches of the 5th and 6th of April, and I received at the same time your separate despatch of the 16th of April, enclosing a copy of Major General D'Aguilar's report to the Secretary of State for the War Department. But I have not yet received your despatches of the 5th and 6th of April. Although, in consequence of the non-arrival of the previous despatches, Her Majesty's Government have not the means of forming a correct judgment of the grounds on which the expedition was undertaken against Canton, or as to the negotiations which preceded that expedition, yet enough appears from the despatches which they have received from you, and from the articles of agreement concluded with 1209 Keying, to show that the expedition was undertaken to obtain redress which had been refused on the several matters mentioned in that agreement, and I have accordingly great satisfaction in stating to you that Her Majesty's Government, as at present informed, are of opinion that you were fully justified in having resolved to undertake the expedition, and entirely approve the promptitude and judgment with which the arrangements for it were made, the decision and enterprise with which it was conducted, and the ability and firmness with which you seem to have compelled Keying to accede to all your demands.I am, &c., "PALMERSTON.That was the first despatch of Lord Palmerston. There was another after he had received the despatches, but as it is almost a repetition of the former I will not trouble your Lordships by reading it. Lord Palmerston was then the colleague of my noble Friend now sitting at the table (Earl Grey), who was then Colonial Secretary. My noble Friend expressed no disapproval of those operations; on the contrary, I believe his approbation has been recorded in warm terms. [Earl GREY dissented.] My noble Friend shakes his head. I have perused the despatch of my noble Friend, and if he will permit me I will read it to your Lordships. I hesitate to do so because I was not until recently aware of the existence of this despatch, and consequently it does not appear in the papers which have been laid upon your Lordships' table. It was on that account that I merely alluded to it as expressing the approval of my noble Friend. If, however, my noble Friend has no objection I will read it to the House. On the same day on which Lord Palmerston wrote to Sir John Davis my noble Friend (Earl Grey) wrote thus to General D'Aguilar:—Downing Street, June 24, 1847.Sir,—I have received and laid before the Queen your despatch, dated Hong Kong, 15th of April last, reporting the operations in which the troops under your command, conjointly with Her Majesty's naval forces under the command of Captain M'Dougall, of Her Majesty's steam-frigate Vulture, have been engaged in the Canton river, and I have it in command to acquaint you that it has afforded much satisfaction to Her Majesty to receive your report of those operations, crowned as they have been with such complete success—a result which Her Majesty attributes not less to the judgment with which those operations were planned than to the admirable discipline of Her Majesty's military and naval forces under the orders of yourself and of Captain M'Dougall.—I have, &c.," GREY.Major General D'Aguilar, C.B.That is, of course, only an approval of the manner in which the operations were con- 1210 ducted, but the despatch certainly conveys no disapprobation of anything which had taken place. I said that less moderation was shown in that year than in 1856. The reason of that was the extreme small-ness of the force which General D'Aguilar was able to employ. When called upon by Sir John Davis he said that he should feel confident of success if he were allowed to set about the business immediately and give to it the character of a coup de main. He embarked his troops the same evening, and the consequence was that in thirty-six hours he was completely successful, he had done all that was desired, and the negotiations had been concluded. But he felt that if the Chinese authorities required to be chastised again, it would not be safe for him to venture upon a renewed attack with a force so small as that which he had at his disposal. He accordingly wrote to the commander at Ceylon to ask for the loan of a very small force for a short time. This brings me to the letter of my noble Friend (Earl Grey), to which the noble Earl opposite has alluded. When my noble Friend moved for the production of that letter I did not know what were its contents, and I must say that I understood him to give a description of its contents which was not quite accurate. I understood that it was a general prohibition addressed to the British authorities in China against undertaking any operations whatever without instructions from Home. [Earl GREY: Offensive operations.] And my noble Friend added that he had good grounds for saying that he had the Duke of Wellington's approval of that prohibition. [Earl GREY: Hear, hear !] I was very much astonished that the Duke of Wellington should have approved of orders being sent to officers at the other extremity of the world, with sufficient forces under their command, that, whatever might occur, whatever outrage might be offered to life or property, they were tamely to stand by and look on until they received instructions from home. My astonishment at this was very great, but it altogether ceased when I looked at my noble Friend's letter and the despatches upon which it was founded. I then found that, so far from this being a general instruction, it was only a wise, prudent, and necessary order; because it was quite clear that no force which could have been sent from Ceylon could have placed General D'Aguilar in a position to undertake any further 1211 operations against the Chinese with any chance of a successful issue. My noble Friend limits his prohibition to "further offensive operations against the Chinese," evidently alluding to the operations which had just been concluded, and to continue which General D'Aguilar had asked for a force which my noble Friend rightly considered would be wholly insufficient for the purpose. On looking at the papers I also find that there was another reason which made my noble Friend's order so prudent, and that was the defenceless condition in which the island of Ceylon would have been left if this request had been acceded to. When I read the piteous letter of the officer commanding there, in which he describes the internal dangers to which the colony might have been exposed by the temporary loan of these 120 men, I no longer wondered at the great haste with which my noble Friend sent out his prohibitory despatch. I must apologise to your Lordships for having detained your Lordships so long. I will only add that the third Resolution of my noble Friend, as it now stands, can only and will only be considered by her Majesty's officers in China, and more generally throughout the world, as a positive prohibition to engage in any offensive operations without instructions from home. If it be so considered, I can conceive nothing more calculated, or rather more certain, to cast dismay into the hearts of every British resident, not only at Canton, but in every part of China. If it be established here and become known in China that we have abandoned the system upon which we have hitherto acted and have been absolutely compelled to act; that when our rights are violated or injuries are inflicted upon us our demands for reparation are not to be supported by force—if it be once understood that any insult or wrong may be inflicted upon us, and that four or five months must elapse before it can be avenged—the position of every British resident in China will be one not only of the deepest degradation, but of the utmost danger; and certain I am that every British resident who does not quit China will be compelled for the safety of his life and of his property to renounce his nationality, to abjure the British flag, and to seek protection from the French or some other foreign Power. If such a general order as this be enforced, what chance will your Plenipotentiary and Consuls have of obtaining redress for the viola- 1212 tion of treaty rights, not merely from the Imperial Commissioner, but from the mandarins of the lowest class? The Chinese authorities will laugh in their faces, and tell them to wait until instructions come from England. Then, in the aggravated state of circumstances which you will have done much to produce, outrages may be committed such as that recorded in the papers laid upon your Lordships' table on Friday last, in which a poor French missionary was tortured for three days, then hung, and his heart eaten by his executioners—some such case as that may occur which will rouse you to action, and you will send instructions to your representatives to ask for redress, and if it be not granted to proceed to hostilities. But under what altered circumstances will those hostilities be commenced! It will be necessary that the instructions should be sent from home. The force which at the commencement of the difficulty might have been ample may then be quite insufficient. You will have given the Chinese four months to collect their forces, to arm their forts, to prepare their fleets, and to barricade their rivers; and you may then find it useless to ask for redress, because the Queen's Admiral says that forces which would have been sufficient four months before are now quite unequal to the task imposed upon them. For these reasons I maintain that this letter does not bear the construction that has been put upon it; and if the instruction is not to be general the exceptions ought to be specified, and I defy any one to make out a schedule which shall include all cases in which the rule ought to be departed from. Therefore I trust that your Lordships will not agree to a Resolution which will fetter the discretion and tie the hands of Her Majesty's servants in China, which will cast disgrace upon our name and our flag, and will bring ruin upon our trade with that country.
§ LORD LYNDHURST
My Lords, I have paid great attention both to the speeches of the noble Earl who introduced the debate, and of the noble Earl who has just sat down, and to the papers that have been laid upon your Lordships' table, and I am sorry to say that I have come to the "painful conclusion that the proceedings out of which this unfortunate dispute has arisen cannot be justified upon any principles either of law or of reason. After the full, comprehensive, and conclusive arguments 1213 which have been addressed to your Lordships by my noble friend the Earl of Derby, and no part of which has been answered by the noble Earl opposite, I should not have risen to address your Lordships upon this part of the case, were it not that a report has been circulated that I entertain upon this subject opinions different from those of my noble Friend. There is no foundation for such an observation. I do not feel that I possess any authority personal to myself upon a question of this nature; and I shall therefore state shortly, and rather in the form of a summary, those arguments and reasons which have led me to the vote which I am about to give, and will leave your Lordships to judge of their value. It is impossible to be too precise upon a question of this nature. What is the charge which is on the present occasion preferred against the Chinese Government? It is that they have infringed the ninth Article of the Supplemental Treaty which has been referred to. By that Supplemental Treaty they had undertaken, in the event of any Chinese having made his escape and concealed himself on board an English ship, that application should be made to the English authorities, and that if it were found that the charge was well founded that the person so concealed should be delivered up. The very essence of this charge is that the party has taken refuge on board an English ship. It cannot be pretended for a moment that, where a Chinese culprit has taken refuge on board a Chinese ship and concealed himself there, the Chinese Government has not a perfect right to apprehend him. Looking therefore to the language of the treaty, looking to the very reason of the thing, it must be confined absolutely to an English ship. So the question after all resolves itself into this—as my noble Friend (the Earl of Derby) has over and over again stated—was the Arrow, within the meaning and sense of this arrangement, an English ship. I assert—and I assert it in the very language of the Chinese Government—that in no respect whatever was the Arrow an English ship. In this lies the very essence and foundation of the whole question. Now, my Lords, allow me to lay down a principle which no one will successfully contest. It is this—That you may give any rights or any privileges to a foreigner or to a foreign vessel as against yourselves, but you cannot grant to such foreigner a single right or privilege as against a foreign state. That is the 1214 answer to the case of the Manilla and two others of the same description to which the noble Earl (the Earl of Clarendon) has referred. You may give rights as against yourselves. You may pass a law for that purpose. But you cannot give any rights to the subject of a foreign country by any of your laws as against the country of which he is a subject. No man can, by possibility, with any shadow of reason, dispute that proposition. You cannot, therefore, where you have a foreign ship, owned by a foreigner, convert that vessel into an English ship so as to bring it within the terms of this treaty. My Lords, when we are talking of treaty transactions with Eastern nations, we have a kind of loose law and loose notion of morality in regard to them. Therefore, in order the better to appreciate the question now before us, I will change the scene of operations from the East to the West, and will lay them in America. I will take the case of an American subject residing in this metropolis, the owner of an American vessel. You may, by a law, allow that vessel to assume the English flag, and give it rights and privileges against your own country, but you cannot alter the character of that vessel as against the United States. You cannot change its character—you cannot prevent the Government of the United States exercising its ordinary dominion over it. It is impossible that any man can contend for so absurd, so violent a proposition. I may refer in illustration to what has recently occurred in regard to the naturalization of foreigners in this country. By a law recently passed certificates of naturalization may be granted to foreigners. A foreigner under a certificate of naturalization preceded to the Continent, to the kingdom of which he was a subject, setting forth under the authority of the certificate that he was a British subject. "No," said that Government, "you are not a British subject in virtue of that instrument of naturalization. England can give no such right as against us. You are the subject of this country." The gentleman returned to England and complained to the Home Office that he was disappointed as to the effect of the certificate. I dare say your Lordships have seen the answer of Mr. Waddington in the name of the Secretary of State for the Home Department. It said, "As against us, you may avail yourself of the certificate of naturalization, but as against foreigners, as against your own country, it confers on you no right whatever." I say, therefore, my Lords, on 1215 general principles, without resorting to any particular argument arising from any documents which have been laid on your Lordships' table,—I say, on general principles, this being a Chinese ship, owned by a Chinese, nothing can at all affect the right of the Chinese Government to go on board on any occasion to exercise dominion over it, to take out one or more of the crew, or to do any act which they might be disposed to do in consequence of events brought to their knowledge. If I make myself understood with respect to this proposition and were to pause here it would be unnecessary to proceed further. But what is the next step? What is the instrument under which it is contended there was a transfer of the character of the vessel, a transfer of ownership which converted this Chinese vessel into an English vessel? It is an ordinance of the colonial Government. By that ordinance a Chinese who has entered into the colony, who holds land under the Crown, and is the owner of a Chinese ship or any other vessel, may apply for a register, and upon giving certain security the registry gives him a right to use an English flag. A register was granted to a man admitted to be a Chinese. There is no dispute about the facts that the owner was a Chinese, and the vessel a Chinese built vessel. Now, by a law of the colonial legislature, a Chinese vessel cannot be converted into an English ship. I will not pretend to say that rights may not be given by this colonial instrument to the person owning a vessel, but what I say is that you cannot make a vessel an English vessel by that means, independently of the general principle I have stated; you cannot make it an English ship; you cannot give the right to hoist an English flag. That is so clear, so indisputable, that I am quite sure no lawyer will controvert it. An Act of the colonial legislature can have no effect whatever against an Act of the Imperial Parliament. The Act of Parliament to which my noble Friend has referred says in the most precise terms that nothing but what is there set down shall be deemed a British ship. The Act is not confined to England; it is not confined to these islands; it applies to all our possessions; and it says no vessel can be deemed a British ship, unless it is owned by a natural-born subject, or by a naturalized subject, who has obtained letters of naturalization, and has taken the oath of allegiance. In the face of this Act of Parliament the 1216 ordinance of the colonial legislature s absolutely nothing, and altogether void as far as it relates to the point in question. You cannot by a law of the colonial legislature convert this vessel into a British ship. It is said, "True, it may not be a British ship, but she had a British flag, and some insult has been offered to the British flag." Why, under the Act of Parliament no vessel can by law use the British flag but a British ship, and any one who attempts to use a British flag, except on board a British ship, is by the 103rd section subject to a very grievous penalty. Therefore, both on general principles, and on the particular point of this ordinance, the justification in this case entirely fails. But there is another, and a most material point which has not been attempted to be answered, but has been entirely avoided. I mean the matter of the register or licence. A register was granted on the 27th of September, 1855, to expire in a year. The vessel arrived on the 3rd of October, six days after the expiration of the licence. Thus, when we seek the facts of the original ground of discussion in the case, we find that the licence for the vessel had expired, and she was no longer a British vessel. Any Chinese authority could go on board and seize criminals, as the vessel had ceased to be a British vessel, even according to the argument on the other side. I believe the law is to the effect that a renewal of the licence must be made seven days before the expiration of the old licence; but no such thing was done in this case. Some excuse had been suggested to the effect that the vessel was at sea, but there really is no foundation for that suggestion, for during the whole time the vessel was sailing up and down the river, and never was at sea at all. Thus, supposing that the lorcha had ever had a licence and a British register it had ceased, and her legal protection as such had also ceased. Sir John Bowring, who is a distinguished humanitarian as well as Plenipotentiary, himself admits the register is void, and that the vessel was not entitled to hoist the English flag. Now, mark what he says—The vessel had no protection, but the Chinese do not know this; for God's sake, do not whisper it to them. He persevered, too, for he said in effect, "We know the Chinese have not been guilty of any violation of treaty, but we will not tell them so; we will insist upon an apology, and a return of the men they have seized in a particular form, and if the men were 1217 not returned in the form, what shall be the remedy? Why, we will seize a junk, a war junk; if that was not sufficient, seize more, until we compelled them to submit, although we knew they had the right on their side, and we had no justice on ours." Yet the officer directing those measures was the representative of the Sovereign of Great Britain, whose honour he was bound to protect, but which he was compromising by plunging into a war. Was there ever conduct more abominable, more flagrant, in which—I will not say more fraudulent, but what is equal to fraud in our country—more false pretence has been put forward by a public man in the service of the British Government? Then we are told of an insult offered to our flag. I will not enter into any discussion as to whether the vessel really had the British flag flying at the time of the seizure. But, the vessel was not an English vessel; she had no right to carry our flag, and therefore there was no insult in pulling it down. If a man hoists a flag without authority to do so it would be a monstrous assertion to believe that his own wrongful act protects him. Sir John Bowring, in his letter, admits it to be quite clear that the Arrow had no right to hoist the English flag. He abandons that part of his case, but adds, "as the Chinese do not know it, we will call it an insult, and insist upon reparation." It is not true that the Chinese insulted our flag. There is not the slightest foundation for imputing such an intention to the Chinese. The whole question is one of right. The Chinese Governor, from the first, said, "It is a Chinese ship. She is in no sense a British vessel; why do you grant registers to foreign vessels? By so doing you will create discord and dissension between us." I cannot point out just now the particular passages to which I refer; but I pledge myself, having read the papers most carefully, that the Governor of Canton from the first raised the question, and that there never was any intention to insult the English flag. Now, let us go a little further, and see what is urged in justification of these proceedings. The men taken from the vessel were to be returned, and returned in a particular manner. They were returned, but not in proper form, and no apology was made. Now, my Lords, really it is too bad. Just consider what was done. A war junk was seized. That was the first step. Was that sufficient punishment for the transgression? No, said Sir John Bowring, let us go further, and batter 1218 down a few forts. Surely, even if the case was as it is represented to be on the other side, Sir John Bowring might have paused at that stage, and have said—"I have punished you enough. I have taken your junks and battered your forts. I will do no more without instructions from my Government." He might have thought—"I will not involve my country in war. What I have done has been for the vindication of my honour, but I will not take any further steps which may lead to war without the authority of my Government." But, no; he did not think so; and then, where was he to stop? He had no inclination to stop; he had no wish to do so. Well, my Lords, soon after four other forts are seized in the neighbourhood of Canton. Was that enough? No. Then came the Dutch Folly Fort; then came the French Folly, then the Bogue Forts, then the fleet of junks was destroyed, the palace of the Governor was bombarded, the wall of Canton was broken down, and the town entered in hostile attitude. And all these successive attacks he, with the utmost audacity, terms "Warnings." Is it possible for any man to consider such proceedings, arising upon such a cause, with any degree of calmness? It is extraordinary that Sir John Bowring should think he had the power of declaring war. I can understand a man in such a position having necessarily a power of carrying on defensive operations, but to carry on offensive operations upon such a ground, upon such a pretence, is one of the most extraordinary proceedings to be found in the history of the world. The noble Earl (the Earl of Derby) had referred to the letter of the noble Earl (Earl Grey) to General D'Aguilar, refusing to allow troops to be sent from Ceylon to China and in the strongest terms, and giving peremptory orders to the Governor in no case to undertake or carry on offensive operations without the direct sanction and authority of the Government at home. Those injunctions must have been known to Sir John Bowring, and the noble Earl below me (the Earl of Malmesbury), when at the head of the Foreign Office, having had an opportunity of reading some despatches from Sir John Bowring, and becoming acquainted with the tone and temper of those documents, gave him instructions in the strongest terms not to undertake any hostile measures without authority from the Government at home. The noble Earl probably knew the temper of Sir 1219 John Bowring better than did his predecessor, for he had framed his instructions in the most precise terms; for from the very first, Sir John Bowring evinced a decided resolution to sacrifice considerations of humanity to the promptings of ambition. It is quite clear from the papers laid on the table yesterday that from the first moment at which Sir John Bowring was appointed to the station he now fills his ambition was to procure what his predecessors had completely failed to effect—namely, an entry within the walls of Canton. It would also appear from some of the letters of the Governor of Canton, that the conviction was strongly impressed upon his mind that that was the ultimate object which the British Plenipotentiary had in view. If even it had been part of the original treaty that we should enter and carry on trade within the walls of the imperial city, and if the Chinese Governor had refused to perform that stipulation, still I contend it would have been quite unworthy of us to endeavour to accomplish that object through the intervention of mere local squabbles. The shedding of blood, under the circumstances, by the local authorities appears to me to be a subversion of every sound principle and wholly indefensible. It may be in the recollection of some of your Lordships that in 1847 Sir John Davis stipulated with Keying, the then Commissioner, that within two years, in peculiar cases, the admission of Englishmen within the walls should be allowed, and it is certain that there had been a breach of the treaty on the part of the Chinese. But when Sir George Bonham, the Governor of Hong Kong at the period when the treaty was to have come into operation, asked that it should be put in force, the Governor of Canton stated in reply to that application, that the populace of that city were violently opposed to the presence of Europeans, and that the treaty could not be carried into effect without the most serious danger to the public peace, and without incurring the greatest risks for the lives of the Europeans themselves. And it should not be forgotten that Sir George Bonham himself, after due inquiry, came to the conclusion that that objection to the fulfilment of the treaty was well-founded, and consequently the stipulation was not insisted on. The noble Lord at present at the head of Her Majesty's Government, in his correspondence with Sir George Bonham on that oc- 1220 casion, made use of language which displayed more than his usual prudence and forbearance. He informed Sir George Bonham that he could not tell him what he ought to do in the matter, but that he could tell him what he ought not to do; and that was, that he ought not to engage in any hostile act for the purpose of effecting his object. That correspondence does great honour to the noble Lord. He emphatically told Sir George Bonham that to obtain an entrance into the city by force of arms would render the result entirely useless. I wonder that any sane man could disregard such advice, and could drive this country into a war for the purpose of obtaining an entrance into the city. The result of that step is that a valuable portion of our commerce has been suspended; that the property of British subjects, to the amount of 1,500,000 dollars, is imperilled; and that all the factories in Canton have been burnt to the ground. That is the consequence of the mischievous policy of one of the most mischievous men I know.Man, proud man!Dress'd in a little brief authority;Most ignorant of what he's most assur'd,His glassy essence—like an angry ape,Plays such fantastic tricks before high heaven,As make the angels weep; who, with our spleensWould all themselves laugh mortal.There is one other point to which I wish to refer before I sit down. I have seen an address from the Association of Traders to China and to India, from which it appears that the members of that association are desirous that we should carry on a war with China for the purpose, not only of compelling the Emperor of China to allow Englishmen to enter within the walls of Canton, but also for the purpose of obliging him to revise his commercial tariff, and to throw open to foreigners every portion of his dominions. Now, I most heartily and sincerely wish that that association, whatever might be the respectability of its members, may not, in their anxiety for gain, exercise such an influence over the Government as to induce them to persevere, in the unfortunate course in which they are at present engaged.
With these observations I sit down, my Lords, entirely concurring in the sentiments so ably expressed by my noble Friend, and cordially supporting his Motion.
The LORD CHANCELLOR
My Lords, I admit that if there has been nothing 1221 in the conduct of the Chinese authorities which can be subject of legitimate complaint the course which has been pursued by the British authorities is unjustifiable; and therefore the first proposition which has to be made out by those who support the Resolutions, is that there was no illegality in the conduct of the Chinese authorities. My noble and learned Friend (Lord Lynd-hurst) had contended, in common with the noble Earl who proposed the Resolutions, that nothing has been done by the Chinese authorities at Canton to furnish occasion for complaint, inasmuch as the ship in question was not of the character claimed for her by the British Admiral and the British Plenipotentiary, and which alone would render the conduct of the Chinese officials a violation of the rights of this country. I contend, however, that the points to which my noble and learned Friend has directed the attention of the House have little or no bearing on the question at issue. It appears to me important in considering this case, that we should first of all distinctly understand what are the facts upon which our decision is to be founded. In the first place, it is said this is a Chinese, and not an English vessel. Now, I shall make no concealment upon this subject. I will take from the papers laid before your Lordships what I believe to be the true facts of the case. I think it appears from these papers very probable and I will assume this ship to have been built by a Chinese, say in Canton, that it was afterwards sold by a hong in Canton in such a way that a Chinese resident in Hong Kong. became the purchaser. There appears to be some inconsistency, some mystery, in the history of this transaction, but at all events the result was that a man with a Chinese name, a resident in Hong Kong, became the purchaser of this ship. That, I think, is clear. It was perfectly clear also that the lorcha was manned by a crew consisting almost entirely of Chinese, but with a British master. [Lord LYNDHUKST: A nominal master.] That is quite true, but the object was to give a right to a colonial register, and such a right was validly created. Now, what was the Supplementary Treaty, the alleged infraction of which gave rise to this dispute? The real meaning of the article quoted by the noble Lord—and I am convinced that my noble and learned Friend (Lord Lyndhurst) will not contradict me—was not merely to provide positively, and according to the express words, 1222 that if natives of China have committed offences against their own Government and fled to Hong Kong or to British ships they shall, when discovered by the English officers, be delivered up by them to the Chinese authorities, but also to provide negatively that they should not be seized by Chinese officials without the intervention of British authorities; i. e. that no Chinese functionaries shall enter a British vessel for the purpose of seizing them; for it provides that where the Chinese authorities have ascertained or suspect that an offender have taken refuge under our flag "a communication shall be made to the proper English officer in order that the said offender may be rigidly searched for, seized, and on proof or admission of guilt, delivered up." That is the obvious meaning of the article, and it is made clear by the further provision that if an Englishman escapes into China the Chinese authorities shall take care to deliver him up to the English authorities. Here is a treaty, then, that no Chinese authorities shall enter into British ships in order to seize supposed Chinese criminals, except through the instrumentality of the British consul. Now, what is alleged is, that this lorcha, being within the meaning of the treaty a British ship, did go within the Chinese waters, and was forcibly boarded by Chinese authorities, without the instrumentality of the British Consul. Now, had the Chinese a right to do that? I assume it as a fact that the British flag was flying at the time. There is really no room for dispute as to this fact—for there is the clearest evidence of it, both English and Chinese; and when the first complaint was made to Commissioner Yeh of this, among other grievances, the Commissioner, in his reply of the 10th of October, did not deny it. It was only four or six days afterwards that he said, "I am told it is not so, and. that there was no flag flying;" but this was evidently an afterthought. Was this or was it not an infraction of the treaty? Certainly; for, as between us and China, the Arrow was undoubtedly a British ship. I say that if the British Government authorizes a ship to go into a foreign port and carry the British flag, as between us and the foreign country, that ship is certainly a British ship. It may be that we had improperly authorized that vessel to use our flag, and that the foreign country may have a right to complain of our conduct in giving to the ship privileges to which she was not entitled, and that would give that foreign 1223 country a right to seek redress from you; and if in this case Yeh had represented this to Sir J. Bowring, and that officer had refused to attend to such a representation, he might have kid himself open to grave censure. That, however, was not the course taken by the Chinese authorities. They said, "We will of ourselves decide that the Arrow is not authorized to carry the British flag." Now, I have listened with attention to the noble Earl's very powerful, very able, and in some respects very touching speech, but let me caution your Lordships not, by sanctioning such a principle as I have just indicated, to involve yourselves in difficulties the depth or the end of which I defy any man to fathom or see. This may be a case of comparatively small importance, but if we once yield to the notion that, having entered into a treaty of this kind with a foreign country, the authorities of that country may forcibly board a vessel and decide the point of nationality for themselves, who shall say to what important consequences this will lead? Therefore, my lords, even had this been entirely a foreign vessel, and unentitled to a British register, we, by the law of nations, were justified in the steps which we took. If we suffer an outrage from these semi-barbarous States without resenting it, those most familiar with the usages, the habits, and the feelings of those people assure us that the consequences will be such as we can hardly anticipate. Once admit that the British flag was hoisted and was by the authority of the Chinese Government hauled down, and I care not for the purpose of my argument whether they had a right to enter the ship or not; they hauled down the flag, and the consequences must be upon their own heads. I believe I have argued this point upon perfectly sound principles of international law; but I do not think I am driven to any such extreme argument. There are strong grounds for contending the Arrow was to all intents and purposes, within the meaning of the treaties between China and this country, a British ship. In conquered colonies it has always been the practice of the Crown, by virtue of its prerogative, to grant what I may call local licences. This has been the case at Gibraltar, Malta, Singapore, Malacca, and various other places, and such an exercise of the prerogative has never been questioned. In the case of the "Mediterranean passes" they have generally been granted on the authority of Or- 1224 ders in Council, which shows that the facts have been brought deliberately under the attention of the Government. No doubt the practice generally has been to grant such passes to British subjects; but this is to be accounted for by the fact that up to very recent times it has been the policy of the country that no one ought to have anything to do with British shipping except British subjects. This, however, was not an invariable rule, because in 1819 there was an Ordinance passed at Gibraltar under the sanction of the Privy Council here, in which authority was given to issue these Mediterranean passes, not merely to British subjects, but to any person who had been resident in Gibraltar for a certain number of years—showing clearly that this power has always been exercised as a prerogative of the Crown, and it has never been disputed. If that be so, it follows that within local limits the same might be done at Hong Kong. The authorities there made an Ordinance under the authority of which the Arrow was entitled to carry the British flag. The Ordinance says—It shall be lawful for Chinese residents within this colony to apply for and obtain colonial registers, provided the person or persons applying as owners be registered lessees of Crown lands within this colony.I assume that the owner of the Arrow was such a registered lessee. Another qualification necessary is that the master should be a British subject, or a person conversant with the English language, and in the present case the master was a British subject; so that both of the necessary qualifications were fulfilled. He, therefore, could not see what there was to prevent this from being considered a British vessel. [The Duke of ARGYLL: Within the meaning of the treaty?] Certainly. There is no answer to it. It was a ship that the Crown had a right to authorize to trade, and did authorize; the lorcha is one of the vessels expressly referred to in the articles of treaty—in fact, they are the only English vessels that trade there—they are always manned by Chinese sailors; and to make a treaty relating to British vessels, and to say that these vessels are not vessels contemplated by the Article, would be very much like a reductio ad absurdum. Now, what are the facts of the case? On the 8th of October the lorcha Arrow, which was under the protection of the British flag, was in the Canton waters, and while there a great outrage was committed. 1225 Some Mandarins came on board, and took from the ship some supposed delinquents without the sanction of the consul and in defiance of the treaty, and hauled down the British flag. That is a short statement of the facts of the case with reference to the origin of the unfortunate affair—for I am willing to admit that it is unfortunate—everything which leads to bloodshed is of course unfortunate. But then comes the question, who was to blame in the first instance; because if an outrage was committed upon the British flag, which British officers could not pass over without loss of character, then the bloodshed and loss which may occur must be laid to the doors of those who were guilty of the outrage which rendered the exercise of force necessary. I shall not attempt to go through the details of the transactions which took place subsequently to the 8th of October. I have only risen with the hope of being able to satisfy your Lordships that the treaty has been violated, and that the duty of resenting that violation having devolved upon us, all the evils which have occurred, or which may occur, are not to be attributed to the Home Government or to the authorities abroad, but to those who, by committing an injustice in the first place, rendered an appeal to force not only justifiable but necessary.
§ EARL GREY
My Lords, before adverting to what has fallen from my noble and learned Friend the Lord Chancellor, I wish to say a few words with regard to a matter personal to myself, which was referred to in the speech of my noble Friend the Secretary of State for Foreign Affairs. My noble Friend accused me of having, on a former occasion, made an erroneous statement with regard to the effect of a certain despatch which I addressed to the General commanding at Hong Kong in 1847. My noble Friend further stated, that he felt surprise at hearing from me that I had, with so high an authority as the Duke of Wellington, sent out a despatch positively forbidding offensive operations to be undertaken against the Chinese, without authority from the Home Government. My noble Friend added, that he had entirely recovered from that surprise, because when he read the despatch he found that it contained no such order generally, but that the order referred only to circumstances which had recently taken place, and meant simply to apply to the then existing circum- 1226 stances. Now, I venture to remind my noble Friend, that although it is possible that despatch may not be very well expressed, it may be susceptible of the interpretation he has now put upon it, yet there can be no doubt whatever that it was neither intended to bear the meaning he supposes, nor was, in point of fact, so understood. I say that there can be no doubt that it was not understood as laying down a rule limited to the particular time at which it was written, because my noble Friend will find in the papers upon the table of the House that in 1849—two years after the despatch referred to was sent out—Sir George Bonham wrote to Lord Palmerston reminding him that he was prohibited by orders from the Colonial Office from undertaking offensive operations without previous reference to the Government at home. The despatch was understood by the Cabinet of which my noble Friend was a Member, in the same sense that it had been by Sir George Bonham, and in the same that I put upon it on a former evening; for I find in the papers on the table that in 1853 Mr. Merivale, writing from the Colonial Office, by order of the Duke of Newcastle, sent a copy of it to General Jervois, "for his information and guidance," which, according to official practice, implies a repetition of the order. My noble Friend stated, that he should view with the utmost alarm the issuing of such an order as I have described this to be, and that he considered it impossible with a due regard to the honour of the country so to restrict the British authorities in a distant country from acting without the previous sanction of the Government. I must say, that I hear with still more alarm that such an order exists no longer. What was the purport of it? The order did not apply to defensive operations, because they might at any time be rendered necessary in support of the honour of the flag; and our officers abroad must obviously always be at liberty to use force to repel force; nor did the order in question in the slightest degree interfere with their doing so, since it applied solely to offensive operations, which I do not think ought to be undertaken by subordinate officers on their own authority. I believe that according to the law of nations subordinate officers are not entitled to exercise such authority. Vattel lays down the principle that no nation is authorized to 1227 make reprisals or to use force to obtain redress for an injury until every other means of obtaining redress have been exhausted; and among these means I think he mentions as one which ought not to be omitted, a direct application from the Government of the country injured to the Government of the country by which the injury is inflicted. Now, my Lords, only consider what is the danger of the principle for which my noble Friend contends; for observe, that if it holds good for China, it must hold good everywhere else, and I would ask you whether it would be safe to admit the principle that any consul or vice-consul in Central or South America, where, perhaps, they are more liable to receive insults than in China, shall have the power of levying war on his own responsibility, and without reference to the Home Government as to the expediency of adopting such a course? Such a principle, I confess, appears to me to be fraught with danger, and I think that the speech of my noble Friend shows the necessity which there is for this House to express their disapproval of such a principle by assenting to the Resolutions of the noble Earl.
But, passing from this personal matter, I will now address myself to what has fallen from the noble and learned Lord on the woolsack. I was very glad to hear my noble and learned Friend acknowledge, that unless we have a good case with regard to the Arrow, all our proceedings from first to last were wrong. He further stated, that if the Arrow was a British vessel, there can be no question that the Chinese had no right under the treaty to act as they did. So far I quite agree with him. I admit, that if the Arrow was a British ship, the Chinese had no right to board her, but they should have applied to the British Consul in accordance with the provisions of the treaty, for the surrender of any criminals they might suppose to be in her. The question, has or has not the Treaty of 1843 been violated by the Chinese, depends upon whether the Arrow was or was not a British vessel according to the right understanding of that treaty? Now, I will admit, that that is the point upon which the whole matter turns; but in making that admission, I cannot help expressing my astonishment at the principle enunciated by my noble and learned Friend on the woolsack, who says, that every vessel is a British vessel, as against 1228 a foreign Power, which the British Government acknowledges. Now, my Lords, I can admit no such doctrine: it seems to me altogether impossible to maintain that when China has by treaty given certain special rights to British ships, she is bound to admit these rights in the case of a vessel which we may have acknowledged, without any good right, to be a British vessel. We are told by my noble Friend the Secretary of State that, at all events, the British flag was flying, and that it was hauled down. That, my noble Friend said, was indisputable. But, surely, if he had listened to the observations of the noble Earl opposite, he would have seen that that question was open to very considerable doubt; the evidence is contradictory, but on the whole I am inclined, for my own part, to believe that the British flag was not flying. The point, however, is immaterial, because no man pretends that any pirate hoisting a British flag without authority is thereby entitled to claim the privileges of a British vessel. The question turns upon this:—Was the Arrow entitled to hoist British colours? Upon this it appears to me, that the case is so clear and simple that I am at a loss to understand how there can be any doubt upon it. For 200 years it has been the practice of this country to declare what are British ships and what are not, and to give to them certain privileges which are withheld from other ships. The navigation laws have always been considered sacred, and no colonial legislature has authority to deal with any question arising out of them—a British Act of Parliament overrides all colonial laws be they what they may. In 1854 considerable alterations were made in the navigation laws, and the Merchant Shipping Act is express as to the character of ships that are to be regarded as British ships. The Statute was divided into several parts. Section 17 at the beginning of the second part of the Act provides that this part of the Act shall apply to the whole of Her Majesty's dominions, and it then goes on to describe in clear and distinct terms, which have already been quoted, what shall be deemed to be a British ship. That clause is followed by another, which declares that any ship anywhere hoisting British colours, and not owned by persons described in the Act, is ipso facto forfeited to Her Majesty. Am I now to be told that the enactment of the British Parlia- 1229 ment is to be overruled in the river of Canton, where Hong Kong has no more jurisdiction than it has in Jamaica, by an ordinance of Hong Kong? There is a question of public policy and public principle of the greatest moment involved in this matter. Parliament has always reserved to itself the right to decide what are British ships and what are not, and for the best reasons; this is an Imperial question, nor is there any question which ought more distinctly and more properly to be so considered. By hoisting the British flag vessels become entitled to British protection, and we may be involved in difficulties of the most serious nature with foreign nations if that privilege be improperly granted. It is true that at all times certain small vessels within the waters of a colony have had fiscal privileges granted them by the colonial legislatures. I grant that there may have been such an exercise of power in former times; but never to set aside the rules laid down by the navigation laws as to what ships were to be entitled to the privileges of the British flag. And even if this had been done, no one can doubt the paramount authority of Parliament, and by the Act of 1854, Parliament, without any reservation of Crown colonies or any other place, expressly enacted that the rules which it laid down should apply to every part of Her Majesty's dominions in every part of the world. My noble and learned Friend (the Lord Chancellor) very truly stated that what we have to consider is, whether the Arrow was a British ship, as recognised by the treaty of 1843. Now, I beg to call your Lordships' attention to a very important point with reference to this question. By the general law of nations, if the Arrow had been an undoubted British ship lying in the Canton river, the Chinese authorities would have been perfectly entitled to board her, to seize Chinese subjects, and to have dealt with them as the laws of China require. In our own waters we do not go to the French or American consul in order to board a French or American ship; but the English authorities act at once—board the ships and take from them any persons found on board, whether American, French, or English, who are accused of offences against our municipal laws; and our merchant ships when they are in the ports of the United States or of France are in like manner subject to the jurisdiction of those countries. With regard to China, 1230 however, that general law of nations is limited by the express stipulations of the treaty, which provide that Chinese subjects accused of offences against the laws of China shall not be taken out of English ships by the Chinese authorities without reference to the English Consul. It follows that unless the Arrow was not only a British ship, but such a British ship as was contemplated by the treaty, the Chinese were perfectly justified in what they did. And this was their argument. My noble Friend the Secretary of State said that the whole defence of the Chinese rested upon the allegation that the Arrow was not a British ship within the fair intent and meaning of the treaty; and he then proceeded to contend that this allegation of the Chinese authorities could not be maintained, because the 17th Article of the Supplemental Treaty expressly recognizes that description of vessels as British vessels. My noble Friend has in this argument fallen into an error. The 17th Article, referred to by the noble Earl, grants certain privileges as to the payment of tonnage dues to "British lorchas and other vessels" of a particular class, but it does not define what a British lorcha is. A lorcha is a vessel of a particular build; and it no more follows because there are some British lorchas that all lorchas are British, than that all sloops or all brigs are British because we have some vessels of these descriptions. We must, therefore, in the absence of any definition of a British ship in the treaty, endeavour to discover what was meant by the expression, and according to the ordinary rules for the construction of treaties, a British ship, for the purposes of this treaty, must be what was regarded as a British ship when the treaty was made. Now, by the law of England which was then in force, no ship could be a British ship or entitled to the privileges and protection of a British ship, which was not owned exclusively by British subjects, which had not been built within the Queen's dominions, and of which at least three parts of the crew were not British subjects. Such was the only description of a British ship with which the Chinese were acquainted, and the lorcha in question did not answer in any one particular to this description. Were you entitled without consulting them to alter the whole nature, character, and effect of the treaty by passing a law under which vessels of a totally different kind from those previously known 1231 as British ships, were allowed to assume that character, and which enabled any Chinese subject, by a very simple process, to place himself entirely beyond the jurisdiction of his own Government? Were you entitled to extend an engagement, already in its nature sufficiently onerous to the Chinese Government, in a manner which I shall show would have been fatal to the power of China to enforce her own laws and maintain her own revenue? My Lords, you will find in a notification addressed to the Chinese inhabitants of Canton by Consul Parkes an explanation of the manner in which the Colonial Government of Hong Kong claimed the right of extending British protection to vessels of all descriptions. He says—It is competent for the owner of any vessel of any country when he shall have obtained the requisite security to make application for a colonial register. Under this the vessel hoists a British ensign and, the register once issued, she is regarded in all respects as a British vessel, while those on board her become alike responsible to British control, and entitled to British protection.Is it not somewhat extraordinary that a British consul, whose particular business it is to be acquainted with mercantile law, should thus, in the face of an Act of Parliament which says that no ship shall hoist the British flag or assume the British national character unless she is owned exclusively by British subjects, have published to the whole world that the system of the Hong Kong Government is to authorize any owner, belonging to any country, to hoist the British ensign and claim for his vessel the protection and privilege accorded to a British ship out of the jurisdiction of Hong Kong, upon condition that he provided the requisite security, and applied for a colonial register at Hong Kong. Under that system any Chinese subject, a pirate or a smuggler, might go to Hong Kong and obtain a colonial licence, and then claim that his vessel should be exempted from the jurisdiction of the authorities of his own country, unless they went through the ceremony of first applying to the British Consul. Let us consider how such a system would work nearer home. Suppose it were established that any British smuggler, by renting a small piece of land at Boulogne or Calais, acquired the right to have his vessel registered as a French ship, and that when once so registered no British custom-house officer should be entitled to go on board unless he obtained the preliminary sanction of the French Con- 1232 sul—suppose, further, the Thames and the Mersey filled with vessels of that description, and I ask what chance we should have of maintaining the security of our property or collecting our revenue? Yet that is the precise position of the Chinese. If you alter the plain provisions of a treaty by a colonial ordinance, and allow vessels owned and manned by Chinese to defy the Chinese authorities in their own harbours, it is impossible for the latter to have the least chance of putting down piracy and smuggling. Accordingly we find that a large contraband trade in salt is carried on by Chinese vessels bearing colonial registers—there is no doubt that the opium trade is to a great extent conducted in the same manner, a fact which I hope will receive the serious consideration of the noble Lord (the Earl of Shaftesbury) who has given notice of a Motion on the subject of the opium trade. It will be for the noble Lord to consider how far that trade has been facilitated and increased by the existence of the ordinance in question. So long ago as 1842 and 1843 this country entered into engagements with China to put down smuggling, with this view the treaty of 1843 stipulates that no Chinese ship shall be allowed to go to Hong Kong unless it comes from one of the five ports, and that no British ships are to go to China except to one of the five ports. I am afraid that those engagements have been a dead letter, and that, while we are punishing with such cruel severity a supposed infraction of a treaty on the part of the Chinese, we on our part have put a very lax interpretation upon our own obligations. I say a supposed infraction, for I contend that under any fair construction of the treaty the Arrow was not a British ship; and let me point out to your Lordships that from first to last this is the argument of Yeh. It is urged in his very first letter to Consul Parkes, and again on the 14th of October he repeats that statement. He always returns to that point, and never admits that an infraction of the treaty had been committed. He says—"The whole question amounts to this—a lorcha built by Chinese purchased a British register; but that does not make her a British vessel." How does Sir John Bowring, how do the British authorities meet this? Is there any argument to prove that by paying two fees of 25 dollars each a Chinese vessel can purchase a register and then become a British ship—any at- 1233 tempt to show that, according to a fair understanding of the treaty, this ship is to be considered as having been under British protection? Nothing of the kind. All that we find is a mere naked assertion, a blustering assertion, that she is a British ship, and that the Chinese must apologize. I say a blustering assertion, and unfortunately an assertion directly in the teeth not only of the truth, but of what Sir J. Bowring by his own showing knew at the time to be true; because the noble Earl opposite (Earl Derby) has shown that before he wrote thus to the Chinese authorities he had written to Consul Parkes saying that this lorcha was not entitled to British protection. I cannot help thinking that this is a conclusive case upon the showing of my noble and learned Friend (the Lord Chancellor) himself, who said that if there was a flaw, if we were not entitled to demand redress, our whole proceedings were erroneous. At the same time it is impossible to avoid some reference to the nature of these proceedings, which I should have regarded as violent and cruel even if our original quarrel had been less questionable, and I am the more compelled to allude to them because I heard with extreme pain from my noble Friend the Secretary of State (the Earl of Clarendon) some rather incautious expressions, which seemed to give countenance to a doctrine which I have heard out of doors, but which I never expected to hear repeated, or even by implication sanctioned, in this House—the doctrine, I mean, that it does not much matter whether we were strictly in the right or not in the original quarrel, if a colourable opportunity has been afforded for us to punish the habitual insolence of the Chinese and make them feel our power.
§ EARL GRANVILLE
It is far from being my recollection of the speech of my noble Friend that he maintained such a doctrine.
§ EARL GREY
I never stated that my noble Friend had said this. I acquit him of having in plain words put forward any such monstrous doctrine; but I say that there were incautious phrases in his speech which gave more encouragement than I think ought to have been given by one standing in his position to an opinion which we have seen stated in the public newspapers, and which we have heard out of doors. I appeal to your Lordships whether such opinions have not been expressed; whether you have not heard it said that the immediate subject of dispute does 1234 not much matter, "a rupture"—and these words were used by my noble Friend (the Earl of Clarendon)—"a rupture sooner or later was inevitable, and it has come." My noble Friend said that in dealing with nations like the Chinese we must make them sensible of the law of force, and appeal to them in the manner which alone they understand. I do not think that is a correct question. I believe, and that opinion is confirmed by these papers, that instead of understanding only force, they are a nation very open to reason. Although inferior to ourselves in civilization, they are a nation among whom good government and good order were established ages before the nations of Europe emerged from barbarism. They are a people among whom the useful arts have made great progress, and who are singularly industrious and ingenious in their agriculture. With such a people our true policy is the policy of forbearance and conciliation. We might have hoped that by an extension of their intercourse with Europeans, by gradually becoming more accustomed to our notions, and by the influence of our religion, which was, I believe, likely to gain a footing among them, they might be brought to treat us in a very different manner; and that the insolence and bad feeling of which we complain would in time give way under the influence of Christian teaching. There was good reason to hope that such a policy would be successful, because after the use of force was distinctly prohibited in 1847 we find that it had already succeeded to a very considerable extent, and that, up to the time of this unhappy rupture, our trade and intercourse with the Chinese were on the whole going on very well and very satisfactorily. I was much surprised to hear my noble Friend the Secretary of State (Lord Clarendon) say that our relations with China were not amicable, and that for many years there had been no resident in Canton, official or non-official, who did not feel that the state of things there could not long continue. This seems to me to be very strange. I thought there was rather strong authority the other way, because when I turn to the papers I find that Sir John Bowring, writing to my noble Friend in 1852, while he was still restrained by those wise orders which he afterwards felt himself at liberty to disregard, said:—My three years' abode in the factories has made me tolerably well acquainted with the people. The authorities know that during the period 1235 of my residence in Canton there has been no interruption whatever of the public peace; and I am not aware that a single complaint has ever been made of the manner in which I have administered justice as between my countrymen and the natives of China; nay, I have been called upon to settle, and have satisfactorily settled, questions among the Chinese themselves, which they have referred to me for decisions in preference to their own mandarins. On my first reaching Canton, many representations were made to me of the dangers I incurred by leaving the neighbourhood of the factories. I know it was for some time the custom of the authorities to cause me to be followed by Government agents; but the practice has been long abandoned, and I have been in the habit of taking my walks in all directions within a circuit of twenty to thirty miles (avoiding entrance within the city gates), frequently alone, visiting and holding intercourse with the people, and without the smallest anxiety on my part, or the slightest incivility or interruption on the part of the natives.This was the state in which things then were—trade going on perfectly smoothly without bitterness, all disputes easily satisfied, and the British residents allowed to walk about the country (against the express provisions of the treaty) free from incivility or insult, with the single exception that they are not to go within the city gates. My noble Friend stated that it was very important that there should be communications between the British and Chinese authorities; but these communications might take place without the city just as well as within it. If your Lordships will refer to the papers, you will find that when Sir John Bowring applied for an interview with Commissioner Yeh, the Commissioner was ready to meet him, but he appointed for that purpose the packhouse of the merchant Howqua, without the city. Sir John Bowring's dignity would not allow him to submit to this, and the interview did not take place, solely because Sir John Bowring's dignity would not allow him to go anywhere but to the official residence of the Commissioner. Therefore there is no object to be gained by enforcing a right of entrance into the city. On the other hand, you have to consider what have been the consequences of the collision which has taken place. The noble Earl who introduced this Motion very eloquently described the sufferings inflicted upon the Chinese by the bombardment of their city and the destruction of life and property; but I fear that the injury caused by the British troops is the smallest part of the calamity which has been inflicted upon them. It appears from these papers, that in consequence of their being compelled to withdraw their troops to defend themselves, the banditti 1236 have got the upper hand in the country districts, and a large extent of territory has been laid waste by them. My Lords, can you contemplate without emotion these facts? You admit that the Chinese empire is only partially civilized and requires the restraints of law. You have dissolved the restraints of all law and subjected that great country to all the miseries of anarchy. It is impossible that can happen without your trade suffering. We shall suffer not only in one of the most important branches of our trade, but we run the risk of being cut off from the almost exclusive supply of tea, an article which has become almost a necessary of life to our population, and one of the main items of support to the revenue. But what we shall suffer ourselves is nothing as compared to the injury to the cause of humanity. My Lords, I cannot contemplate without shuddering the amount of human suffering, misery, and distress which will be created by the state of things which the English Government has done its best to produce in China. And bear in mind, as has been so eloquently depicted by the noble Earl opposite, that it is not only the mischief done to our commerce—not only the mischief done to the cause of humanity—but there is the fatal injury done to the religion which this country professes. Can we believe that the religion we profess can be recommended to an unbelieving people by such an example as this?
I have now stated to your Lordships the judgment which, after a careful and anxious consideration of the papers before us, I have formed upon these proceedings in the Canton river; I have done so in language which may appear exaggerated to some of your Lordships, but which is tame and cold compared to that which I feel that the facts would have justified my using. I now come to the question, What, under these circumstances, is the course which it is the duty of this House to adopt? My Lords, an unjust war has been waged in China, and has been carried on with a fearful destruction of the lives and properties of the people by means which it would be difficult to reconcile with those rules which, in modern times have mitigated the horrors of war when carried on by Christian nations. This was the act of the British Plenipotentiary on the spot, contrary to the orders, as far as we know, given to him by the Government at home. The Government are not, therefore, in the first instance, responsible. But Her Majesty's 1237 servants have advised Her formally to approve the acts of the Plenipotentiary. I cannot help believing that they have done so precipitately, and that further consideration would have induced them to condemn the proceedings which they have unfortunately approved. Nevertheless, Her Majesty's Government have approved of this conduct, and in approving of it they have made themselves responsible for everything that has been done. The papers describing these proceedings have, by Her Majesty's command, been laid before your Lordships; and, therefore, if you take no notice of them—if you fail by some distinct vote to record your disapprobation of that conduct, you must be held, according to the rules and practices of Parliament, to have given to it your tacit assent. By adopting the Resolutions which have been proposed by the noble Earl opposite, the House will relieve itself from any responsibility for the blood which has been shed, and, on the other hand, by rejecting those Resolutions, you will deliberately assume that responsibility collectively and individually. I know it has been said, if not within these walls, at least outside this House, that such is not the question your Lordships have to consider; we are told that we ought not to consider whether Sir John Bowring has done right or wrong, but that the question we are now called upon to decide is only whether our adopting or rejecting Resolutions, which involve a censure of Her Majesty's ministers, will, upon the whole, under present circumstances, be best for the public interests. And I have been further asked what is the practical result I expect from the adoption of these Resolutions. My Lords, I might say in answer to that question, that if no other advantage were to follow from our affirming the Resolutions, this good might at least be expected from them, that they would lead to the instant recall of Sir John Bowring and the immediate abandonment of the wicked attempt to coerce the Chinese, by the extremities of suffering, to submit to unjust demands. But, my Lords, I refuse to consider the matter in this light; I say that there are higher considerations which ought to determine our votes. A great wrong has been done, the arms and power of this great nation have been abused in waging an unjust war and destroying the lives and property of an innoceut people; and it is our duty openly to declare our disapproval of such deeds, since it is thus only that we can relieve 1238 ourselves from the responsibility which will otherwise attach to us. This is the duty we have to perform, and from which we are not at liberty to shrink; we are bound to consider whether as men, much more as Christians, and as Christians who believe the holy precepts of our religion to be no less binding upon nations than upon individuals, we will so far as lies in us sanction the injustice that has been done. Regarding the question in this light, can there be any doubt as to the vote which we ought to give? For my part, my Lords, entertaining none, I shall cordially support the Resolutions of the noble Earl.
THE DUKE OF ARGYLL
said, that the debate had, to a great extent, been conducted on technical and legal grounds, and there seemed to be an impression on many minds that the defence of the Government must rest on grounds equally narrow and technical. It was his desire to prove that although they might have been compelled by the tactics of their opponents to descend to those grounds, they could challenge the decision of the House on the broader considerations of right and justice. The relations between England and China—as indeed the relations of all civilized nations with China—bore no analogy to the relations subsisting between European States. Those relations with China had exclusive reference to trade and commerce. At the end of the war with China, England obtained from that country the cession of an important port, which was created into the colony of Hong Kong, solely for the purpose of fostering British trade with China. That trade, in so far as it was a local trade, could not be carried on in ordinary British vessels; that was, British vessels within the sense of the Imperial navigation laws. To a great extent that trade must necessarily be carried on in local vessels, chiefly manned by Chinese sailors, although generally commanded by an English captain, and it was with a special view to the peculiar circumstances out of which this necessity arose, that we had entered into the Supplemental Treaty, to which so much reference had been made. The noble Earl who spoke last, (Earl Grey), in referring to the 17th Article of the Supplemental Treaty, had contended that it gave no definition of a British lorcha, and had argued that in the absence of any definition they must refer to the Navigation laws. He (the Duke of Argyll) contended on the contrary that this conclusion was a reductio 1239 ad absurdum. It was clear that a British lorcha, the expression used in the treaty, was an expression which the Chinese fully understood and which was known and common to both parties. Was it possible to suppose that the Chinese would depend upon, or could refer to, the English Navigation Laws for a definition of a British lorcha? No; by British lorcha must have been meant such lorchas as by the known practice of the British authorities were empowered to sail under their protection. It was, however, a mistake to suppose that the treaty did not define a British lorcha, for it was clear that by that term was meant a lorcha having British papers. The 17th Article specially refers to the papers which a British lorcha must carry. But the noble Earl admitted that the treaty was an onerous one as against the Chinese, and proceeded to argue that this made it doubly unjust to attempt to render it more onerous still by the ordinance subsequently issued by Sir John Bowring in reference to the character of this class of vessel. No argument could be more unjust, or more directly at variance with the facts. The fact was, at the time of the framing of the treaty, the practice had become exceedingly lax as regarded the granting of British letters, and the greatest abuses had followed. What took place subsequently? The British authorities came forward and said, "We admit the existing practice, under which we grant the British flag, is liable to very great abuse, and we proposed this Ordinance for the purpose of rendering our practice more strict and regular for the future. And such was not only the intention but the effect of the Ordnance." So far, therefore, from those ordinances having been passed for the purpose of fostering piracy or smuggling, they were expressly recommended to the home Government, in Order to put a stop to local abuses. How, therefore, could it be said that they were intended to protect smuggling? Sir John Bowring wrote that it was of the highest importance to the development of our trade that we should, to a certain extent, recognise as our subjects those who took up a permanent residence at Hong Kong, adding, an opinion of the local Attorney General, that according to strict and technical interpretation there were not ten Chinese in the colony, who could legally be considered British subjects. It must be remembered that since the colony of Hong Kong had been created great numbers had immi- 1240 grated, and it was essential that those who took up their permanent residence there should be recognized. According to the terms of the ordinance, Chinese who connected themselves with the colony of Hong Kong by residence or property were entitled to receive British registers for vessels, provided they were commanded by an Englishman, or one who understood the English language. How could it be said that there was any intention by that ordinance to defraud the Chinese of any rights, or that its provisions were in any respect unreasonable? The noble Earl who had just sat down (Earl Grey) had fallen into a mistake in reference to what had fallen from the noble and learned Lord on the woolsack with respect to international law. His noble and learned Friend said, that the law was that a ship was a British ship if she was authorized to carry the British flag by the public authority of the British nation—that made her to all intents and purposes a British vessel. What! said the noble Earl, do you mean to say that a smuggler by hoisting the British flag had a right to sail unsearched in the waters of Canton? Undoubtedly not, the assertion of his noble and learned Friend involved no such consequence. If the Chinese authorities believed a vessel to be a pirate, or to bear her flag fraudulently—that is to say, if they believed her not to be that which she pretended to be, they had an undoubted right to go on board and search her. The retort of the noble Earl raised up the whole question of the right of search. If a vessel carrying American colours was boarded, and she proved to be a bonâ fide American vessel, then the American Government had a ground of complaint. But if the vessel had no authority for hoisting that flag, its mere presence without lawful authority would not prevent a seizure. But this had nothing to do with the case now in question. It was not pretended that the Arrow was either a smuggler or a pirate. She was a well known and regular trader, and indisputably entitled under the ordinance to carry British colours. [The Earl of HARDWICKE: She had no papers.] She had papers, but they were not on board, it being a rule applicable to her class that whilst in the waters of Canton such papers should be placed in the hands of the Consul, where, accordingly, the papers of the Arrow had been duly deposited. If the Chinese had doubted this, they should have applied to the Consul, 1241 who possessed the papers, and could have convinced them upon that point. His argument was that, supposing even there had been a doubt as to the legality of the register of the Arrow, the Chinese had no right to board the vessel without first inquiring whether she was not a bonâ fide British lorcha within the meaning of the Supplemental Treaty. He did not wish to enter upon a discussion as to the legality of the ordinance, although even upon that lower and more technical ground their opponents had failed to make out their case. He did not dispute the position of the noble and learned Lord (Lord Lyndhurst) that by such ordinances a Power may give what rights it pleases as against its own subjects, but could not confer any rights on the subjects of another Power against their own Sovereign. But this principle had no bearing on the present question; because its operation was suspended by the terms of the particular treaty they had made with China. It was especially for the protection of Chinese when serving on board of British craft, against their natural Sovereign in Chinese waters, that this Supplemental Treaty had been made. Under the Supplemental Treaty one great object was to give such rights, and special mention was made of a right to protect Chinese subjects against the claims of their natural Sovereign. Then came the question whether the Arrow was a British vessel? But how was this question to be decided? Was it by the intentions of the treaty; or by technical arguments upon an Act of Parliament of which the Chinese had never heard? Even on this technical plea, raised on the terms of the Imperial Act, the Board of Trade came to the conclusion, that it was never the intention of the Merchant Shipping Act to override any local or colonial Act regulating local and colonial trade; and this ordinance had reference to local trade, and had special reference to the trade with China only. But even if this were not so, this ordinance having been passed before that Act actually came into operation, it could not be held to contradict its provisions. The noble Earl who spoke last had expressed astonishment that the Secretary of State for Foreign Affairs should have quoted the case of the Mediterranean passes. Those passes, he said, had been given under altogether peculiar circumstances, and with reference to a special agreement with the Barbary States. But this ordinance also referred to a local trade 1242 in the waters of China and to a special treaty between this country and China. Although he (the Duke of Argyll) attached very little importance to the purely legal argument, there was one point bearing upon it to which he would direct the attention of the House. The Alien Act passed in this country several years ago provided that colonial legislatures could confer on residents in our colonies, not merely all the privileges of British subjects, but any part of them; so that, the colonial legislature could bestow such portions of those rights as were necessary for local purposes. A colonist, therefore, though not fully naturalized so as to be entitled to own a British vessel under the Navigation Acts, might be so far naturalized as to have this privilege conferred upon him by the authority of the colonial government. That Act, he thought, would cover the ordinance of Hong Kong, the Government of which had the power to do all that was necessary for local purposes; and this ordinance was framed with a special view to local conditions. He had listened with great admiration to the speech of the noble Earl opposite (the Earl of Derby); but a large part of it consisted of an appeal to the feelings of the House, which was not justified unless he had previously made out his case on the grounds of law and argument. That, he contended, the noble Earl had wholly failed to do. The doctrine was a sound one that the Government was bound by the acts of its agents, and he maintained that the conduct of those agents in this case had, on the whole, been right. Sir John Bowring might have attached an exaggerated importance to our entrance into Canton, but it was unfair to hold him responsible for the subsequent events, which were entirely attributable to the breach of treaty committed by the Chinese. On the other hand, when the rupture actually occurred, it was only natural that Sir John Bowring should have been anxious to secure the settlement of a long-pending question which threatened to prove a fertile source of future disputes, and had an important bearing on the settlement of such disputes when they arose from other causes. It would certainly have been unjustifiable in our representative to pick a quarrel in order to bring about such a result; but the papers contained no indication of any such intention. Force had been resorted to in consequence of the wanton conduct of the Chinese au- 1243 thorities, who, according to the substantial right and justice of the case, were therefore alone responsible for all the bloodshed that had ensued.
THE EARL OF CARNARVON
moved the adjournment of the debate. It was now midnight, and even if the discussion were prolonged for a few hours more it could not be satisfactorily concluded without another sitting.
§ Moved, that the debate be further adjourned to Thursday next.
§ EARL GRANVILLE
trusted that the noble Earl would not press his Motion. Considering the length of time usually occupied by their debates did not exceed two hours and a half each evening, and that the other night a noble and learned Lord postponed a most valuable Motion on an important subject because he declined to address benches that were nearly empty, it was to be hoped, now that there was such a full attendance of their Lordships, the House would not shrink from devoting more of its time to the discussion of a great question like the present. That House had a high character for its debates, which was due, in some degree, to their eschewing the practice, followed elsewhere, of adjourning before their deliberations were concluded. This prevented the spirit of the debate from evaporating, and it also sustained that public interest which was apt to flag when people out of doors had to wade, day after day, through columns of protracted discussions. He trusted, therefore, that the House would adhere to precedent, and not grudge the sacrifice of a considerable portion of one night's rest in order to allow this question to be brought to a full issue.
§ THE EARL OF DERBY
quite agreed in the desirability on great occasions of securing a numerous attendance of Peers, and he had regretted to witness the exceedingly small number, on several occasions, who took part in legislative affairs. He also admitted that they ought to show a readiness to devote ample time to their discussions; but for that very reason it would be idle to prolong that important debate further into the night, inasmuch as if they sat two or even three hours more they could not well bring it to a close without an adjournment. Many noble Lords capable and desirous of enlightening the House on the question before it had not yet spoken, and if twenty-four hours were given for reflection on their decision such an opportunity might, he hoped, 1244 not be without its effect upon the minds of many noble Lords. Two of his noble and learned Friends, one of whom was anxious to address their Lordships, had left the House in the full anticipation that the debate would extend to another night; and with a view, therefore, to afford adequate time for a full discussion he hoped that the noble Earl (Earl Granville) would not resist the proposed adjournment.
§ This observation of the noble Earl was understood to convey an assent to the adjournment, and several noble Lords left the House; when
§ EARL GRANVILLE
said, he understood that the two noble and learned Lords referred to by the noble Earl opposite as having gone away had paired before leaving.
§ THE EARL OF DERBY
said, that was quite true, but the pairs of the noble and learned Lords applied only to that night, and would not prevent their speaking at another sitting.
§ THE EARL OF HARDWICKE
said, there would be great difficulty in resuming the debate, because he knew that many noble Lords had left the House under the impression that the debate was adjourned.
§ EARL GREY
(who now hastily re-entered the House): I can confirm the statement just made by my noble Friend. I know that several noble Lords have left the House, thinking that the debate was adjourned, and I myself was just going out of the lobby under that impression. If my noble Friend above me (Earl Granville) had divided on the question of adjournment I was prepared to vote with him on the ground that the Motion was made too early; but now the question is very different, and after having once agreed to an adjournment, I hope he will not persist in proceeding with the debate.
§ EARL GRANVILLE
Early in the evening the noble Earl opposite (the Earl of Derby) informed me that it was likely that a Motion to adjourn the debate would be made, and I then stated to him my objections to an adjournment, though I said I should not go to a division on the point. When, therefore, the noble Earl stated just now that two noble and learned Lords had gone away under the impression that the debate was to be adjourned, I acceded to the Motion; I am now informed that they have not gone away without having 1245 first paired, and I am assured that no noble Lords have gone away without taking that precaution. That being the case, I do not feel bound by the assent which I gave to the Motion just now, and I shall not agree to it without going to a division.
§ THE EARL OF DERBY
I hope my noble Friend will reconsider his decision. In this House we have always been accustomed on all sides of the House to hold ourselves bound by an honourable understanding. My noble Friend having told me that, though he had great objections to the adjournment of the debate, he did not mean to divide the House on the question, I communicated that assurance to several noble Friends of mine, and in consequence of it they went away. Under these circumstances I hope my noble Friend will not insist on resuming the debate.
§ EARL GRANVILLE
If the noble Earl will assure me that any noble Lords have left without pairing in consequence of that understanding, I will agree to an adjournment.
§ THE EARL OF HARDWICKE
I think I may say that Lord Fitzwilliam has gone away without pairing, understanding that the debate was to be adjourned.
§ EARL GRANVILLE
said, he would not persist any longer in his opposition to the Motion under those circumstances.
§ On Question, agreed to: Further Debate accordingly adjourned to Thursday next.
§ House adjourned to Thursday next.