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Earl Clarendon's opinion to Sir
7. On this head Your Memorialists would refer to the admirable exposition of the status of China as a nation, appearing in Your Lordship's despatch of 24th June 1863 to Sir George Bonham (covering H.M's. Order in Council of 13th June 1863) p. 3.
"In ordinary cases of British Subjects resorting to a foreign country, their persons and property are entrusted to the protection of the Laws and Institutions of the country to which they resort, in the full assurance that those Laws will be duly administered, and that the Institutions of such country, although they may differ from those of England, are substantially in harmony with the general principles of jurisprudence recognized amongst Christian Communities. But the case is different as regards China; and there the British Crown has found it necessary to require that British Subjects shall be entirely exempted from the jurisdiction of the local Tribunals;"—a description that all residents in China feel to be singularly expressive of the position of this Nation, and which has frequently been affirmed by successive Ministers in China, including Sir R. Alcock.
8. Your Memorialists would also refer Your Lordship to an opinion of the Law Officers of the Crown, given upon a question as to certain seizures for breach of the blockade of the Canton River during the War of 1856-57, involving a right of the highest and gravest kind known to Public Law, or required by the comity of nations, viz: The right to have such seizures adjudicated upon by a duly constituted Prize Tribunal, and a formal condemnation as lawful Prize, before the property in vessels and their cargoes can be divested out of the original owners. This opinion was given in January 1860, after the signature of the Treaty of Tientsin (though before its ratification), and the names attached to it are those of Lord Westbury (then Sir Richard Bethell), the late Sir William Atherton, and the late Sir J. D. Harding; and the Executive of this Colony acted upon the opinion, the proceeds realized by the sale of these Chinese Vessels and cargoes (some $55,000) being divided amongst the captors without any investigation, judicial or otherwise. In this opinion the following passage occurs :-
"We are of opinion that, as between H. M. Government and the Government and subjects of China (a Country which neither acknowledges nor follows the Jus Gentium of European States, under which the necessity for Prize Court condemnation arises) no condemnation as prize is either necessary or expedient,"
9. Your Memorialists would point out that if China's not recognizing the "Jus Gentium" be a sufficient reason for refusing to her what is a right or necessity under the Law, the obligations of that same "Jus Gentium" cannot be said to render a grant of what is only a privilege imperative. It may be said that, since that opinion was given, China has entitled herself to be considered as within the pale of nations, but sad experience has taught Your Memorialists that, instead of progressing towards that desirable end, China is even further off now than she was then; and of this, Your Memorialists would point out, no better proof can be required than the very words of the second clause itself, which says that "China having agreed that England may appoint Consuls to reside at every Port open to trade," it is then further agreed that China may appoint Consuls to reside at all ports in the British dominions." The Reciprocity which alone entitles a nation to ask for International concessions is singularly wanting here.
10. Bearing upon this claim of China to have concessions which she does not earn, there is one reason which is applicable only to the Colony of Hongkong as distinguished from every other British Port. In this Colony there are upwards of 120,000 Chinese residents, all of whom are Colonists, subject to our laws, the great majority of them taxpayers, and a very large number of them landholders, and entitled as such to Colonial Registers for vessels (owned by them) flying the British Flag, who have been for many years peaceable, well-conducted citizens, with a considerable stake in the welfare of the Colony, and who, by being the promoters and managers of the large emigration to the United States and the Australian Colonies, the principal exporters and shippers, shareholders in our Banks, Steam, Insurance, and other public Companies, and eager adventurers in new manufacturing projects, do more to civilize China than fifty Treaty Ports would do. These people live contentedly under our rule and are free, at present, from the extortions and squeezes to which they would indubitably be subjected, through their families or relatives living in China, if a Chinese Consul were placed here; and against which, intangible as it would be, the Government here could not protect them, nor for which could it give them redress. To say nothing of the complications of jurisdiction that would arise, it is enough to say that the Chinese residents here, now a well-ordered community, are unanimously opposed to the introduction of a Consul who will, to a certain extent, bring them under the power of their own corrupt officials.
11. Your Memorialists submit that, while China only permits the residence of Consuls at certain specified places, she cannot in reason expect greater privileges than she concedes, and that in allowing her to have the power of placing Consuls at some ports, we are only acting in strict reciprocity if we confine such privilege to ports selected by ourselves.
12. Assuming that Your Memorialists have established the position that the abstract rule of International Comity does not fairly necessitate such an unlimited concession, can it be said either that China has done anything to induce us to step over the line in her favor, or that policy and a consideration for British interests require such a measure? Your Memorialists, with some confidence, submit that both those questions must be answered in the negative. The convention gives but little to Great Britain that we did not already possess under the Treaties of Nanking and Tientsin, with the single exception of acknowledging the right of transhipment of duty paid goods at Hongkong, in transit from one Treaty port to another, upon the same terms as if transhipped at an intermediate Treaty Port. The other clauses in the Convention, so far as the Chinese are concerned, are
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