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most convincing argument, showed that a ship-of-war, and all other ships and their crews, were amenable to the laws of the country within whose territories they might happen to be.
Mr. Marjoribanks tells Mr. Grant that it ought to be among his first objects to remove that ' deep and distrustful apprehension' which our rapid and extraordinary aggrandizement in India has created. We are inclined to think that his man-of-war system would tend rather to confirm and verify all these ' distrustful apprehensions,' and convince the Chinese government that the crisis was arrived, and that it must either drive us out, or perish. Weak, we grant, the Chinese military force may be; yet when we recollect that the little armament sent from India to occupy Macao in 1808, for a few months, was stated to have cost our country five hundred thousand pounds, we must say we do not consider the experiment of endeavouring to dictate a commercial treaty to the Chinese, at the point of the sword, or the muzzles of our great guns, to be a very wise one, even in a financial point of view. The East India Company, through their servants, have hitherto, and for a long period, carried on a most advantageous and prosperous trade with China, in spite of all the restrictions complained of; and, with proper management, even under increased difficulties, it is to be hoped we may still continue to do so.
There is one point, however, on which we confess we entertain very considerable apprehensions. It somehow or other very frequently occurs that Chinese men, and women too, are unfortunately killed, by accident of course, either by shooting parties, running down boats, or in a scuffle with our seamen; and in the last case, it is likely now to happen more frequently than before, from the circumstance of the want of that restraint, which was put upon the crews of the regular China ships, who were not permitted to go up to Canton; whereas it will be difficult, we apprehend, to prevent the men of the free-trading vessels from demanding and obtaining that indulgence, unless indeed the King's representative should be vested with authority to refuse it; but then, authority without the power to enforce it will be but of little avail: here indeed, as Mr. Marjoribanks says, we must take the consequences. If we were asked in what manner we would propose to strengthen the hands of the King's representative, we confess our inability to give a satisfactory answer; one great hold on the free-traders, however, would be that of investing him with power to demand the ship's papers, to be lodged with him as security for the good conduct of the master and crew, during their stay in port.
We have alluded to the case where an innocent man was given up fifty years ago. The company's servants, with the aid of the Hong merchants, have since that time escaped a similar disgrace, though
similar similar events have occurred; and as the Chinese are pleased to consider homicide on the part of a foreigner, however accidental, as murder, any contrivance to save the life of the unintentional offender, and to prevent the English residents from being brought into collision with the Chinese authorities, and perhaps seized, has been, and may be, looked upon as excusable.
The following case will explain our meaning. In the year 1S20, a Chinese was accidentally shot by an officer belonging to one of the company's ships. The Chinese government demanded the life of the individual, and in the mean time suspended the trade. The committee refused to surrender him. It happened that, on the same day on which .the Chinese was found killed, a butcher belonging to one of the company's ships committed suicide; the Hong merchants heard of the circumstance, and hinted to the authorities what a very extraordinary thing it was that this suicide should have immediately followed the murder of the Chinese. The Hong merchants were interested that no collision should take place between the Chinese authorities and the servants of the company, and these were equally anxious to avoid it. The circumstance, therefore, when mentioned to the Chinese officers of government was eagerly seized by them: a deputation of mandarins was sent down to the company's ship; they took the evidence of one or two sailors, who admitted it was very extraordinary that the butcher should have put an end to himself the same day on which the Chinese was murdered; the examining mandarins reported that the butcher was the murderer, and thus were Chinese law and Chinese justice satisfied. At another time, the lieutenant of the Topaze frigate, in firing a ball into the village of Lintin, in order to disperse a crowd of Chinese who had attacked some of our seamen, killed one native and wounded another. After a long discussion and peremptory refusal to give up Lieutenant Hamilton, Captain Richardson pledged himself that he should be tried in England. The Chinese, having first satisfied themselves that several of our seamen were stabbed, cut, and otherwise wounded in the scuffle, consented. Lieutenant Hamilton was tried by court-martial, acquitted, and promoted. In another case, where a scuffle ensued in Canton, and a Chinese was killed, a very serious discussion ensued, but, by the good management of the Company's servants, a trial was held at which they were admitted as assessors; the man pitched upon as having struck the hardest blow was acquitted of intentional murder, and a fine only—a deodaud—imposed.
Much, therefore, will always depend on the manner in which the Chinese authorities are dealt with; and this strengthens very considerably our recommendation of investing two or three of the
Company's Company's servants with the king's commission, or, at all events, of including them, in some shape, in the patent or warrant. Still the British government cannot and ought not to be satisfied with, or depend on, contingencies of the kind we have mentioned. Something decisive must be done speedily as to this delicate question respecting homicides.
'It has always' (says Mr. Marjoribanks) 'appeared to me that this difficulty might, in great measure, be overcome by giving your representatives at Canton extraordinary powers to constitute a jury, and try British subjects accused of murder. If guilty, we can surely have no wish to protect them. If innocent, we must, doubtless, have every determination to do so. I am well aware that there is an apparent anomaly in the establishment, as it were, of an imperium in imperio; but our situation in China is altogether an anomaly, and we must make the best of it.'—Letter, p. 52.
This is all very well on paper; but it is the providing for the protection of the innocent that causes the embarrassment;— then, who is to constitute the court, and who the jury? Are the prisoners when found guilty to be delivered over to the Chinese? or are we to carry into execution the extreme sentence? Will the British legislature confer the power of life and death on any individual in a foreign country? Will the Chinese be satisfied with a British verdict of acquittal? These are questions that we cannot pretend to answer, but they must be answered somewhere. Now let us see the view taken of this most important subject by another ex-president of the select committee, Sir George Staunton, who, having filled high diplomatic as well as commercial situations in China, held communications with the highest Chinese authorities in their own language, and traversed the country from one extremity to the other, must be considered as no ordinary authority. Sir George, in the ninth resolution which he moved in the House of Commons, recommended the establishment of a British naval tribunal at the port of Canton, for the trial of homicides committed by British subjects; and he says in a Note to his published Speech—
'However startling such a proposition as the creation of a court for the special purpose of trying offences committed within the jurisdiction of a foreign power, may be; nothing can be more certain than that the present state of things in this respect ought not to continue, and that the evil which it is thus proposed, if not to remedy at least to mitigate, is one of those primary sources of dispute between us and the Chinese, which the establishment of free trade is not at all likely to put an end to. It is quite clear, that we ought either to submit to the Chinese laws, or at least usage, in the case of Europeans committing homicide, or to undertake ourselves to try, and, when found guilty of murder, to punish such homicides. To those who are
VOL. I. NO. C. 8 H Of of opinion that the former alternative is practicahle, the proposed provision for the latter, of course, will not appear necessary. The grounds for supposing that the Chinese government might be induced to acquiesce in the decisions of such a tribunal, are chiefly the following :—first, that their practice is, in the event of a Chinese being killed by the hand of a foreigner, to demand, not the individual by name, but the murderer, whom the chief of the'nation is, in such cases, invariably directed to find out and surrender. The chief, who, in compliance with such a demand, should give up an innocent person, or, what is the same thing, an individual not legally proved guilty, would be so directly accessory to the death of that individual, that he -would be guilty of little less than murder himself. The Chinese, therefore, do in fact call upon the chief to exercise, in this case, a judicial power; and a power to condemn implies also a power to acquit. This argument receives additional force from what actually takes place in cases of homicide committed by the Portuguese at Macao. The Chinese government claims precisely the same jurisdiction there as at Canton; but as the Portuguese actually possess a tribunal competent to try such offences, no surrender of Portuguese subjects to the Chinese authorities ever takes place; but whenever found guilty by their own tribunal, they are publicly executed in the presence of the authorities of both countries.'—Speech, <§-c., pp. 41, 42.
This business-like statement holds forth a light, that may guide to a settlement of this highly-important and delicate question. Let the difficulty be plainly and openly stated to the Chinese authorities, expressing an earnest desire of having it adjusted for the convenience and satisfaction of both parties; propose the same process as is practised in respect to the Portuguese at Macao, -who reside there as much by sufferance, as we hold a factory at Canton; and we think, if the case be fairly and firriily put, the Chinese will listen to reason, and agree. There would then remain only the sanction of parliament to be obtained for the establishment of a court something similar to the Courts of Piracy in our colonies: there are always respectable merchants enough to constitute a jury.
We say nothing as to the policy of asking for a port, in addition to or in lieu of Canton, at present, because we are satisfied that would meet with a peremptory refusal; and by attempting too much at once, we may put to hazard the advantages we now enjoy. In Sir James Urmston's Observations will be found ample information on this head. To say the truth, however, when we consider that, for six months in the year, the passage up the strait of Formosa, and down it for the other six, when the monsoons are blowing, is both difficult and dangerous, we are inclined to think that any port on the eastern coast, if granted, would be found infinitely less accessible, secure, and convenient, than Canton. The argument about the expense of bringing the teas over land, in places where the labour of man is required, is more a Chinese affair than ours. Sir James Urmston, on the authority of Mr. Ball, says that the overland journey adds 150,000/. to the cost of black teas: but if so, we doubt much whether the Hong merchants would take into consideration the increased price of a penny or three-halfpence a pound. Mr. Lindsay made some purchases of teas on the coast, and they turned out to be of a much worse quality, and much higher priced, than might have been had at Canton.
Let us not, therefore, like the dog in the fable, snatch at the shadow and let go the substance. The future prosperity of the trade, we are quite persuaded, will depend on ourselves more than on the Chinese. Let our people bear in mind, that, as yet, they are only permitted to trade at all on sufferance; that the Chinese empire has its rules and regulations like all other states; and that it behoves foreigners, who resort thither for their own benefit, to conform to those rules; some of them may appear absurd, and others be felt inconvenient and unpleasant, but if they are neither unjust nor oppressive, though we may not like them, yet we have no sufficient ground for rebelling. In short, our rule of conduct should be this,—neither to make degrading concessions, nor to exact them—neither to surrender our own independence, nor to violate that of others *.
* Two events have occurred since the first pages of the preceding Article passed through the press, which, if biVore known, might, perhaps, have caused some addition to, or some little difference of expression in, certain points therein discussed, but none whatever in our arguments or opinions. One of these events is the death of Mr. Marjoribanks, which we greatly deplore, and the more so, as it cuts off all chance of a reply to the strictures which his Letter has called from us, and which, if somewhat severe, are not, wa trust, unjust; the other event is, the appointment of Ixjrd Napier as Chief Superintendent of Canton. His Lordship is little known to the public, except as a distinguished captain in the navy; but all his personal qualifications are said to be excellent. So long as he is not Me captain of a man-of-war, and acts merely in the capacity of a civilian, he may do as well as any other gentleman new to China, provided his hereditary rank should not stand in his way, and that he is assisted, as seems to be intended, by two of the late supercargoes—which, indeed, comes to very nearly, though not precisely, what we had recommended. With these, matters may, perhaps, go on pretty well at Canton; but who is to collect the duties on tonnage and cargoes which his Majesty, by his Order in Council, has directed to be levied, to meet the expense of the establishment, at a distance from Canton P Or, what is of far more importance, who is to control the free-traders along a coast of not less than thirteen hundred Enghih milet f In their illicit traffic on this coast, how are the superintendents to bring to justice persons guilty of resistance and hostility to the Chinese authorities, or for the murder of Chinese subjects, which so frequently happens? And what steps are the superintendents to take, if British subjects, actmg in contravention of Chinese laws,should be seized, imprisoned, and, perhaps, put to death? These are questions of grave import, and impress us most deeply with the necessity of limiting our trade, far the present, to Canton.