Peking.
8th August, 1887
H. M.'s Minister
From Rutherford Alcock
K.C.B.
China Mail
7th August, 1867,
236
To
Governor
From Richard G. MacDonnell
"Prince Albert"
C.B.
Concludes copy of his Despatch to Consul
Robertson referring to.
Governor
Enclosure No. 2 in
Dr. Richard Graves MacDonnell's
Despatch #360 of 5th September, 1867,
1
NOTIFICATION.
BRITISH CONSULATE,
Canton, September 3, 1867.
The undersigned circulates for general information the annexed copy of a Despatch he has received from His Excellency Sir Rutherford Alcock, K.C.B., Her Majesty's Minister in China, &c., &c., &c.
D. B. ROBERTSON,
Consul.
To the British Community at Canton.
Copy
PEKING, August 7th, 1867.
1. Referring to your despatch No. 50, of the 17th ulto, reporting that Kwok-a-Cheong, the registered owner of the British Steamer "Prince Albert", confiscated by the Chinese authorities for a breach of the 47th Article of the Treaty, had paid to the Superintendent of Customs at Canton the sum of $4,000, the amount for which the Imperial Government was willing she should be redeemed, and received back the vessel, my attention has been called to a statement made by the Chairman of the Hongkong Chamber of Commerce at a public meeting of that body held on the 16th of July, which is erroneous in fact, and as it is calculated to mislead merchants and ship-masters to their serious injury, I have to instruct you to give it an unqualified contradiction.
The statement I refer to, as reported in the "China Mail", is given in the following words:-
"A brilliant instance of this was seen of H.E.'s zeal for the interests of this Colony in the manner in which he advocated the case of the seizure of the 'Prince Albert', being successful in at last convincing Sir Rutherford Alcock that the seizure was an illegal one."
I am very sure that H.E. Sir Richard MacDonnell, to whom allusion is made in the above extract, never authorized a statement so wholly devoid of foundation. The legality of the seizure and confiscation of the "Prince Albert" by the Chinese authorities has never been contested by me, as you are aware, and the official correspondence with the Governor of Hongkong sufficiently demonstrates the fact. On the contrary, fully satisfied from the beginning that the seizure and the confiscation were alike legal, and fully within the competence of the Chinese authorities under the 47th Clause of the Treaty, my action has been limited to efforts to obtain a mitigation of the penalty on the ground that a lesser fine would meet the end in view, and stop the coast smuggling which existed to the great loss and detriment of the Imperial Revenue—a very legitimate object on their part, and one which I had neither the right nor the desire to defeat.
I think it essential under all the circumstances that neither merchants nor shipowners should be misled by any random statement of the facts made at a public meeting; and it may be well in the general interest, not only that the Chairman's mind should be disabused of a false impression, but all concerned should be put on their guard against the danger incurred when vessels under the British Flag resort to non-Treaty ports in China. You will make it generally known, therefore, since this seems to be questioned, that the mere fact of a British vessel resorting to a non-Treaty port renders her in strictness subject to confiscation by the Chinese Government under the 47th article of the Treaty. If a vessel is found in a non-Treaty port, the onus of showing that she is there not unlawfully rests upon her owners. It is for them to satisfy the Chinese Government that the penalty of confiscation cannot properly be imposed, and the infliction of the penalty for a violation of this section of the Treaty I have no doubt whatever is within the competence of the Chinese Government.
The illegality of the act of resort and entrance is liable to be rebutted by proof satisfactory to the Chinese Government that the vessel is there by no fault of her own, such as being brought there by stress of weather, legitimate fear of pirates, or other circumstance which rendered her resort or entrance necessary for her safety and that of those on board. But the Chinese Government are in the first instance the judges of the sufficiency and value of the proofs advanced. And it is not enough to set up any of these pleas, but there must be reasonable evidence to support them,—such evidence in proof as would be accepted in a British Court,—if British authorities are to intervene and contest the legality of a seizure or the right of confiscation. The simple assertion or asseveration of the parties implicated that they were four miles up a river leading to a non-Treaty port with no unlawful intention, but either looking for a damaged junk of doubtful existence or driven there by fear of pirates, would certainly not come under this head. Some good evidence of the original existence and supposed loss of the junk would be required, as well as of the actual presence of pirates in the vicinity. Neither would the negative evidence of the absence of cargo or money on board be held very conclusive, since ships may seek for freight in non-Treaty ports as well as elsewhere without either. A Judge would attach little, if any, weight to the statement of the master or his crew, I apprehend, under such circumstances. He might properly require detailed and satisfactory proof of the employment of the ship for some time previous to the voyage during which she was seized, in the same way as he would treat a man charged with being in a house where he had no right to be in the middle of the night. The presumption would be strong that he was there for an unlawful purpose, and it would not suffice for his acquittal to urge that he made his way in from fear of robbers and that no burglar's tools or booty were found on him. His antecedents would be closely scrutinized, as well as the veracity of his assertion that there were robbers on the spot endangering his safety, and by these cumulative and corroborative tests of honesty of purpose and veracity the issue would be decided.
In the case of the "Prince Albert", the plea "fear of piracy" was indeed set up to account for her presence in the river where she was seized, "but the owner adduced no evidence or proof in support which was satisfactory to the Chinese authorities or to yourself, and the penalty of confiscation was accordingly inflicted." Upon a careful review of the proceedings, and after a second opportunity was afforded the owner of tendering additional evidence if he had any...