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II. The direct countenance given to this assumption of irresponsible authority by the refusal of British Consuls to take cognizance of such acts, when brought to their notice, or to do more, (when pressed,) than record the protest of the complaining parties.
III. The finality of the decision of the Superintendent of Trade in all cases between British Subjects, and other Foreigners or Chinese, both in original suits before himself, or on appeal from the decisions of the Consular Courts.
IV. The consequent practical impossibility of applying a check to any high-handed proceedings of the Foreign Customs.
10. With respect to the first named ground of complaint, Mr. Lay stands up stoutly for the moderation of the Foreign Customs in its treatment of revenue offences. Such is not the popular impression and further, the foreign community are impressed with a belief, amounting to conviction, that the proceeds of confiscations are largely, if not wholly, distributed among the various grades of subordinates. Should this belief be groundless, an inquiry conducted by the Consuls would be an easy means of rebutting the charge.
11. Notwithstanding the dictum (section 18 of the Memorandum,) "that the Chinese Superintendent of Customs, with or without the advice of the Foreign Commissioner, can in no case overstep the limits assigned to his action by the Treaties, without being forthwith called to account by the Consul, upon the complaint of the Merchants aggrieved," that liability is very small when, as at present, British Consuls are reluctant to entertain such complaints and as the influence of the foreigners in the service is avowedly not limited to that gained by sagacious advice, the "weak and corrupt officials," (described in Section 11,) are as likely to succumb to the misdirected energy of Foreign Customs officials as to the (there asserted) bribery or bullying" of Foreign Traders.
12. But the Committee will not discuss the "Procedure in cases of fine and confiscation" now practised; because they deny the right of the Chinese Authorities to make such seizures in Treaty ports, or levy such fines, independently of the British Consul.
13. In all Treaties with China, Foreign Governments have required and obtained various ex-territorial rights:-- and the reason of such demands on the part of Her Majesty's Government is thus stated by Lord Clarendon in his dispatch to Sir George Bonham of June 24th, 1853, inclosing the order in Council of the 13th of the same Month.-"In ordinary cases of British Subjects resorting to a Foreign Country, their persons and property are entrusted to the laws and institutions of the Country to which they may resort in the full assurance that those 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 among 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, and has engaged in return, either expressly or by implication, to take effectual measures for the maintenance among British Subjects of peace, order, and good Government."
14. In the second Article of the Treaty of Nanking,-a treaty renewed and confirmed by the second article of the later Treaty of Tientsin,-Her Majesty agrees to appoint "Superintendents or Consular officers to reside at each of the above named (Treaty) cities or towns, to be the medium of communication between the Chinese Authorities and the said Merchants, and to see that the just duties and other dues of the Chinese Government as hereafter provided for, are duly discharged by Her British Majesty's Subjects."
15. In the order in Council of June 1853, there is no waiver of any of the rights so secured; but on the contrary it embodies a series of regulations for the guidance of Consular Officers in dealing with them.
16. The authoritative opinion given in 1860 by the then Crown Lawyers-Sir J. D. Harding, Sir Richard Bethel, and Sir W. Atherton,-in reference to vessels and cargoes seized for the breach of the Blockade of the Canton River affirms still more strongly the exclusion of China from the comity of civilized Nations; and from its having been communicated to the British Authorities in this Country, shows that up to that period Her Majesty's Government had seen no reason to depart from the principles laid down by Lord Clarendon. That opinion broadly states, that "as between Her Majesty's 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."
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17. The ex-territorial provisions of the Treaties are the natural consequence of the recognized exclusion of China from the comity of civilized Nations; and the judicial power of Consuls follows as a matter of course where some restrictive jurisdiction must exist, but is denied under Treaty to the native authorities. To argue therefore that "the Chinese Government is no more obliged to resort to a British Court to enforce fines or confiscations for a breach of its revenue laws, where a British Subject is concerned, than it is to an American or French Court, where an American or French Subject is concerned," is beside the question, for the Chinese Government is bound to British Subjects by the express stipulations of its Treaties with Great Britain, while British Subjects are not bound by the Treaties of other Nations, though entitled to the benefit of all privileges accorded to them, greater than those secured by the British Treaties. The 7th clause of the French Treaty, quoted by the Inspector General of Chinese Customs, declares, it may be remarked, the obligation of a formal notice to a French Consul of any intention to seize or confiscate,
18. But a serious fallacy underlies all arguments in favor of Chinese, as opposed to Consular, jurisdiction in cases of smuggling in the open ports by Subjects of Treaty Powers. They assume that such smuggling is an offence against the Chinese revenue laws, when in fact it is an offence against the Treaty only, a knowledge of Chinese Revenue laws not being obligatory, nor their observance compulsory, except in so far as they are recognized by Treaty. If this view be correct, of which the Committee entertain no doubt, the pretensions of the Chinese Customs to independent action in cases of violation of Treaty Stipulations or Regulations fall to the ground.
19. Assuming the correctness of the statements now submitted to Your Lordship, it seems clear that British Subjects have a right to the judicial action of their Consuls in all cases of fine or confiscation; and that the limitation of their functions to ex post-facto political action, as urged by the advocates of the Chinese Customs, is as untenable in theory as it was contrary to fact in practice, till recently for it would be extremely difficult for the Inspector General of Chinese Customs to prove that the special cases of seizure enumerated in his memorandum were made without a previous application from the department to the British Consul-and even were that otherwise, the Committee of the Chamber are prepared to show, that within the last twelve months, some of the Chinese Superintendents of Customs have pleaded the direct or implied sanction of Her Majesty's Superintendent of Trade as their Authority for carrying out confiscation, and further that a rule, drawn up by that officer for the regulation, inter alia, of cases of confiscation at Canton, runs thus-"if the goods are on board British Vessels or in possession of a British Subject, the particulars shall be communicated to the Consul, who shall grant a warrant for their seizure, and if, on examination they are undoubtedly smuggled, it shall be permitted to the Hoppo to declare their confiscation."
20. Before proceeding to the other questions enumerated above, it is the pleasing duty of the Committee to state, that the Baron de Meritens, Commissioner of Customs at Foochow has appreciated the fact, that the best mode of discouraging illicit trade is to deprive it of motive; and as a commencement in opening the ports of China more widely to legitimate Commerce, has induced the superior Authorities to sanction the resort of ships to the ports of Keelung and Takao in Formosa. Should the experiment succeed, as it no doubt will, it will probably lead to its extension to other important ports on the Mainland.
21. The second cause of dissatisfaction to the Foreign Commercial body, viz:-the direct countenance given to the pretensions of the Chinese Customs' Authorities by the present reluctance of British Consuls to entertain any complaint arising from the Acts of those officials, will be more shortly discussed.
22. It is generally understood and believed, that the Consular officers act in this matter under special instructions from the Superintendent of Trade :-but apart from the violation of right, which the Foreign residents believe to be involved in the surrender to the Chinese Customs' establishment of irresponsible power in dealing with Treaty offences, they universally condemn such surrender as impolitic. Should the Foreign element in the Chinese Maritime Customs be a permanent one, it might, at any time, be composed of men of a very different stamp, and very inferior grade, to the gentlemen now holding the higher offices of the Foreign Inspectorate; and who might be the reverse of scrupulous in their administration of the department, but keenly alive to the value to themselves of mingling political power with their fiscal functions, particularly if through the direct Agency of the Maritime Customs establishment, the Cost of foreign armed and manned gun-boats, and of disciplined Chinese troops commanded by Foreign Officers, is to be defrayed.
In the
23. But indeed this perilous union of powers appears to have been already initiated. Supplement to the North China Herald of Sept. 26th of this year, the case is reported of the "United States of America versus Pinder and others" tried in the United States Consular Court, in which Commander Solway, (one of the Witnesses for the prosecution,) describing himself as a British Naval Officer in the service of the Emperor of China, is stated to have deposed, that his commission in that service is held from Mr. Lay and Captain Sherard Osborne, and that it professes to be given on behalf of the Emperor. Certainly among the many anomalous arrangements now in existence in This Country, this is one of the strangest.
24. Again Commercial men in this Country have no faith in the theory of Chinese, of any rank, being led up to European international civilization by being dealt with as though they were guided by its maxims, in anticipation of their honest adoption of them. They accept as an axiom that relaxation of ex-territorial rights, obtained under Treaty, should follow, but never precede, practical advance in such civilization on the part of the Chinese. They are satisfied, that Asiatics of every race attach no meaning to the phrase of political magnanimity, and cannot believe in the existence of such a virtue. Asiatics respect those who respect their own rights, and attribute to fear, or ignorance, any concession that is not palpably balanced by some corresponding advantage. Justice they understand.
14
16
II.The direct countenance given to this assumption of irresponsible authority by the refusal of British Consuls to take cognizance of such acts, when hrought to their notice, or to do more, (when pressed,) than record the protest of the complaining parties.
III. The finality of the decision of the Superintendent of Trade in all cases between British Subjects, and other Foreigners or Chinese, both in original snits before himself, or on appeal from the decisions of the Consular Courts.
IV. The consequent practical impossibility of applying a check to any high-handed proceed- ings of the Foreign Customs.
10. With respect to the first named ground of complaint, Mr. Lay stands up stoutly for the moderation of the Foreign Customs in its treatment of revenue offences. Such is not the popular im- pression and further, the foreign community are impressed with a belief, amounting to conviction, that the proceeds of confiscations are largely, if not wholly, distributed among the various grades of subor- dinates. Should this belief be groundless, an inquiry conducted by the Consuls would be an easy means of rebutting the charge.
11. Notwithstanding the dictum (section 18 of the Memorandum,) "that the Chinese Super- intendent of Customs, with or without the advice of the Foreign Commissioner, can in no case overstep the limits assigned to his action by the Treaties, without being forthwith called to account by th Consul, upon the complaint of the Merchants aggrieved," that liability is very small when, as at pre- sent, British Consuls are reluctant to entertain such complaints and as the influence of the foreigners in the service is avowedly not limited to that gained by sagacious advice, the "weak and corrupt offi- cials," (described in Section 11,) are as likely to succumb to the misdirected energy of Foreign Customs officials as to the (there asserted) bribery or bullying" of Foreign Traders.
as
12. But the Committee will not discuss the "Procedure in cases of fine and confisention' now practised; because they deny the right of the Chinese Authorities to make such seizures in Treaty ports, or levy such fines, independently of the Britiah Consul.
13. In all Treaties with China, Foreign Governments have required and obtained various ex- territorial rights:-- and the reason of such demands on the part of Her Majesty's Government is thus stated by Lord Clarendon in his dispatch to Sir George Bonham of June 24th, 1853, inclosing the or der in Council of the 13th of the same Month.-"In ordinary cases of British Subjects resorting to a Foreign Country, their persons and property are entrusted to the laws and institutions of the Country to which they may resort in the full assurance that those will be duly administered, and that the in- stitutions of such country, although they may differ from those of England, are substantially in har- mony with the general principles of jurisprudence recognized among 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, and has engaged in return, either expressly or by implication, to take effectual measures for the maintenance anong British Subjects of peace, order, and good Government."
14. In the second Article of the Treaty of Nanking,-a treaty renewed and confirmed by the second article of the later Treaty of Tientsin,-Her Majesty agrees to appoint "Superintendents or Consular officers to reside at cach of the above named (Treaty) cities or towns, to be the medium of communication between the Chinese Authorities and the said Merchants, and to see that the just du- ties and other ducs of the Chinese Government as hereafter provided for, are duly discharged by Her British Majesty's Subjects."
15.In the order in Council of June 1853, there is no waiver of any of the rights so secured; but on the contrary it embodies a series of regulations for the guidance of Consular Officers in dealing with them.
16.-The authoritative opinion given in 1860 by the then Crown Lawyers-Sir J. 1), Hard- ing, Sir Richard Bethel, and Sir W. Atherton,-in reference to vessels and enrgoes seized for the brench of the Blockade of the Canton River affirms still more strongly the exclusion of China from the comity of civilized Nations; and from its having been communicate to the British Authorities in this Country, shows that up to that period Iler Majesty's Government had seen no reason to depart from the principles laid down by Lord Clarendon. That opinion broadly states, that "as between Her Maicsty's Government and the Government and Subjects of China, (a Country which neither acknow- ledges, 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."-
17.-The ex-territorial provisions of the Treaties are the natural consequence of the recognized exclusion of China from the conity of civilized Nations; and the judicial power of Consuls follows as a matter of course where some restrective jurisdiction must exist, but is denied under Treaty to the na- tive authorities. To argue therefore that "the Chinese Government is no more obliged to resort to a British Court to enforce fines or confiscations for a breach of its revenue laws, where a British Subject is concerned, than it is to an American or French Court, where an America nor French Subject is con- cerned," is beside the question, for the Chinese Government is bound to British Subjects by the express stipulations of its Treaties with Great Britain, while British Subjects are not bound by the Treaties of
17
other Nations, though entitled to the benefit of all privileges accorded to them, greater than those secured by the British Treaties. The 7th clause of the French Treaty, quoted by the Inspector Gen- eral of Chinese Customs, declares, it may be remarked, the obligation of a formal notice to a French Cousul of any intention to seize or confiscate,
18.-But a serious fallacy underlies all arguments in favor of Chinese, as opposel to Consular, jurisdiction in cases of smuggling in the open ports by Subjects of Treaty Powers. They assume that such smuggling is an offence against the Chinese revenue laws, when in fact it is an offence against the Treaty only, a knowledge of Chinese Revenue laws not being obligatory, nor their obserance con- pulsory, except in so far as they are recognized by Treaty.If this view be correct, of which the Com- mitter entertain no doubt, the pretensions of the Chinese Customs to independent action in cases of violation of Treaty Stipulations or Regulations fall to the ground.-
19.-Assuing the correctness of the statements now submitted to Your Lordship, it seems clear that Brilish Subjects have a right to the judicial action of their Consuls in all cases of fine or con- fiscation; and that the limitation of their functions to er post-fueto political action, as urged by the advocates of the Chinese Customs, is as untenable in theory as it was contrary to fact in practice, till recently for it would be extremely difficult for the Inspector General of Chinese Customis to prove that the special cases of seizure enumerated in his memorandum were made without a previous applico- tion from the department to the British Consul-and even were that otherwise, the Committee of thei Chamber are prepared to show, that within the last twelve months, some of the Chinese Superinten- dents of Customs have pleaded the direct or implied sanction of Her Majesty's Superintendent of Trade as their Authority for carrying out confiscation, and further that a rule, trained by that officer for the regulation, inter alia, of cases of confiscation at Cantou, runs thus-"if the goods are on board Brit- ish Vessels or in possession of a British Subject, the particulars shall be communicated to the Consul, who shall grant a warrant for their seizure, and if, on examination they are undoubtedly smuggled, it shall be permitted to the Hoppó to declare their confiscation."
20. Before proceeding to the other questions enumerated above, it is the pleasing duty of the Committee to state, that the Baron de Meritens. Comunissioner of Customs at Foochow has appreciated the fact, that the best mode of discouraging illicit trade is to deprive it of motive; and as a coinmence- ment in opening the ports of China more widely to legitimate Commerce, has induced the superior Authorities to sanction the resort of ships to the ports of Keelung and Takao in Formosa. Shonk the experiment succeed, as it no doubt will, it will probably lead to its extension to other important ports on the Mainland,
21. The second cause of dissatisfaction to the Foreign Commercial body, viz:-the direct countenance given to the pretensions of the Chinese Castors' Authorities by the present reluctance of British Consule to entertain any complaint arising from the Acts of those officials, will be more short- ly discused.
22.It is generally understood and believed, that the Consular officers act in this matter an- der special instructions from the Superintendent of Trade :-but apart from the violation of right, which the Foreign residents believe to be involved in the surrender to the Chinese Customs' establish- ment of irresponsible power in dealing with Treaty offences, they universally condemn such surrender as impolitie. Should the Foreign element in the Chinese Maritime Customs be a permanent one, it night, at any time, he composed of men of a very different stamp, and very inferior grade, to the gentlemen now holding the higher offices of the Foreign Inspectorate; and who might be the reverse of scrupulons in their administration of the department, but keenly alive to the value to themselves of mingling political power with their fiscal functions, particularly if through the direct Agency of the Maritime Customs establishment, the Cost of foreigu armed and manned gun-boats, and of disciplin- el Chinese troops commanded by Foreign Officers, is to be detrayed.
In the
23. But indeed this perilous union of powers appears to have been already initiated. Supplement to the North China Herald of Sept. 26th of this year, the case is reported of the "United States of America versus Pinder and others" tried in the United States Consular Court, in which Commander Solway, (one of the Witnesses for the prosecution,) describing himself as a British Naval Officer in the service of the Emperor of China, is stated to have deposed, that his commission in that service is held from Mr. Lay and Captain Sherard Osborne, and that it professes to be given on behalf of the Emperor. Certainly among the many anomalous arrangements now in existence in This Country, this is one of the strangest.
24-Again Commercial me in this Country have no faith in the theory of Chinese, of any rank, being led up to European international civilization by being dealt with as though they were guided by its maxims, in anticipation of their honest adoption of them. They accept as an axiom that relaxation of'ex-territorial rights, obtained under Treaty, should follow, but never precede, practi- cal advance in such civilization on the part of the Chinese. They are satisfied, that Asiatics of every race attavia no meaning to the phrase of political magnanimity, and cannot believe in the existence of such a virtue. Asiatics respect those who respect their own rights, and attribute to fear, or ignorance. any concession that is not palpably balanced by some corresponding advantage. Justice they under-
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