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A
GOVERNMENT AND PEOPLE
IN HONG KONG
1841-1962
A Constitutional History
BY THE SAME AUTHOR
A History of Hong Kong.
Oxford University Press, London 1958, reprinted 1959, 322 pages, 12 plates.
A Biographical Sketchbook of Early Hong Kong.
Donald Moore for Eastern Universities Press, Singapore 1962, 171 pages,
6 plates.
An Eastern Entrepôt
H.M.S.O., London 1964, 320 pages.
WITH A. HINTON
Fragrant Harbour, A Short History of Hong Kong.
Oxford University Press, Hong Kong 1962, 216 pages, 6 plates.
WITH DOROTHY E. SHE
The Diocese of Victoria, Hong Kong, A Hundred Years of Church
History 1849-1949.
Kelly & Walsh, Ltd., Hong Kong 1949, 184 pages, 9 plates.
1. The Legislative Council in session
1. The Hong Kong Legislative Council in session with Sir Robert Black presiding, 1960. By courtesy of the Hong Kong Government Information Services.
Frontispiece
Government and People in Hong Kong 1841-1962
A Constitutional History
G. B. ENDACOTT
The English Constitution is not and cannot be in force in
Hong Kong.-SIR JAMES STEPHEN
HONG KONG UNIVERSITY PRESS 1964
931.05
RNZ
O Hong Kong University Press Printed in November 1964, 2000 copies
THE OXFORD UNIVERSITY PRESS, AMEN HOUSE, LONDON, E.C.4 AND 417 FIFTH AVENUE, NEW YORK 16, ARE THE EXCLUSIVE AGENTS FOR ALL COUNTRIES EXCEPT ASIA EAST OF BURMA
Printed in Hong Kong by
CATHAY PRESS
31 Wong Chuk Hang Road, Aberdeen
PREFACE
THE Colony of Hong Kong was long regarded as different from all other colonies, as a phenomenon unique even in the many-sided story of British overseas expansion. The dispatches to and from the Colonial Office abound with references to its special character and there was some doubt if it could be regarded as a colony at all. At the outset, Lord Stanley told Sir Henry Pottinger that 'methods of proceeding unknown in other British colonies, must be followed in Hong Kong',1 and he went on to say that it was founded 'not with a view to colonization, but for diplomatic, commercial and military purposes'. Sir Hercules Robinson, Governor 1859-1865, remarked 'Indeed, Hong Kong is totally unlike any other British dependency and its position is in many respects so grotesquely anomalous'. His successor, Sir Richard Graves MacDonnell also observed 'there is however no parallel between this and any other British settlement', and on a later occasion, referred to the 'special, exceptional circumstances of this very peculiar place, its very peculiar inhabitants and most peculiar geographical position'.4 Phineas Ryrie, member of the Legislative Council from July 1867 until his death in February 1892, used to describe Hong Kong as sui generis.
3
Yet essentially not only was Hong Kong not peculiar or excep- tional, its founding was typical of the forces that moulded the form of British overseas activity in early and mid-Victorian times. Hong Kong was not placed under British control because of territorial acquisitiveness, nor because a handful of Britons wanted to found a new home for themselves on a comparatively uninhabited island off the China coast, but because a trading post or 'factory' was thought to be needed there, equipped with the requisite means of maintaining law and order, dispensing justice impartially and providing military and naval protection. Only under such condi- tions could trade prosper, and the British merchants thought, not
1 Lord Stanley to Sir Henry Pottinger, 3 June 1848, No. 8, Colonial Office Records, Series 129, Vol. 2, in the Public Record Office. Hence forward abbre- viated in the form CO 129/2.
* Annual Report 1859.
* Annual Report 1866.
Sir R. G. MacDonnell to Earl Granville, 12 May 1869, No. 701.
vi
PREFACE
unjustifiably, that China was not ready to furnish them herself. That merchants should take this view is not strange, for they naturally seek security against commercial hazards such as arbitrary fiscal exactions, piracy at sea, robbery on land, and breaches of contract. Moreover in China the merchant class was held in low repute, at the bottom of the social order. British merchants, who occupied an honoured position in their own country, were then making similar demands everywhere. Arrogant though the claim must seem, the aim was a commercial pax britannica, not from any idealism, though it was liberal enough to allow all nations to share its benefits, but because of the financial rewards of the improved flow of trade. In this world-wide system, Hong Kong played its part. Yet the charge that Hong Kong was peculiar had some substance. For long its people had no permanent roots there, and did not look upon it as home. The merchants and those who ministered to their needs, aimed to take advantage of the economic opportunities of East-West trade which had brought them to the Island, and then retire to their own homelands. The expectation of life in Hong Kong of the average inhabitant was thus relatively short, though it was long enough to build up a tradition of corporate life. But the chief cohesive factor binding men to the settlement was common economic interest.
Hong Kong was given a Crown Colony form of constitution in 1843, which it still retains. This fact naturally gives rise to doubts as to whether there can be a constitutional history of Hong Kong and must create some misgiving as to the necessity for this
book.
As one more case-history in the wider story of British expansion in the 19th and 20th centuries, Hong Kong's constitutional history well illustrates the dominant ideas of the Colonial Office in London, even if it adds little to what is already known about them. Demands for self-government have been made from time to time, and it is of interest to see the arguments used on these various occasions. Further, it is not true that there has been no constitutional develop- ment in Hong Kong. The conspicuous absence of political agitation in Hong Kong in contrast to an emergent Asia cannot be explained away; in fact many administrative and constitutional agencies have been created over the year by which the system of Crown Colony rule is modified to enable the Government's actions to be discussed and broadly supported with little electoral machinery.
PREFACE
vii
A further interesting feature of the Hong Kong constitutional development has been the application of British ideas of government to an overwhelmingly Chinese community. In this Hong Kong was unique. The Straits Settlements had large Chinese communities, but were much more multi-racial than Hong Kong. The Chinese were accustomed to political despotism at the centre coupled with -in theory at least-benevolent local administration by the scholar official, and so they did not fret over the absence of the Western forms of political liberty in Hong Kong. At first the Chinese and foreign communities lived side by side with little intercourse, but the development of government services has meant bringing the Chinese more within the purview of government, a process which has taxed the British genius for the application of empirical methods to the solution of political problems. Broadly the over- whelming Chinese character of Hong Kong and the need to protect their interests have been the main factors in the delaying the introduction of essentially Western ideas of political freedom.
A third interesting feature in the constitutional history of Hong Kong was the attempt to adapt colonial institutions set up in Hong Kong to meet the administrative needs of British communi- ties living in the treaty ports. The Home Government in 1843 insisted that its Plenipotentiary and Superintendent of Trade in China should reside at, and be Governor of, Hong Kong. The British position in China was looked at as a whole, and the object of an island under the flag was to serve as a military, administrative and commercial headquarters. The British communities in the treaty ports were subject to the Hong Kong Legislative Council in legislation, to the Hong Kong Supreme Court in the matters of appeals, and were protected by the Hong Kong garrison. The Colonial Treasurer was also responsible for the accounts of the consular offices in the treaty ports.
When these arrangements were made after the Nanking Treaty, the future pattern of the foreign settlements on the China coast was not clearly foreseen. Hong Kong was expected to become the unrivalled emporium for the China trade. Hong Kong did in fact become the headquarters of the largest firms, but the exaggerated hopes at first entertained were unfulfilled. The growth of a teeming city in the International Settlement at Shanghai made it clear that the main weight of British commercial interests had shifted to the mouth of the Yangtze.
viii
PREFACE
The result was that since Hong Kong did not secure its intended position of dominance in British commercial interests in the Far East, the needed administrative institutions could not in the long run be identified with those of the Colony; the phenomenal growth of Shanghai demanded that the administrative arrangements for the British communities in the treaty ports of China should be divorced from those of the Colony.
Yet curiously enough, the wheel has turned full circle, and with the renunciation of treaty rights in China, Hong Kong has since 1945 played the role that its founders had envisaged for it just over a century before.
The materials for this work have come largely from the Public Record Office, London, and from the Hankow Collection in the Library of the University of Hong Kong and I acknowledge with gratitude my debt to the staff of the Research Department of the Public Record Office and of the Hong Kong University Library for unfailing helpfulness. I am grateful for valuable assistance received from the Institute of Historical Research, London University, from the officials of the Hong Kong Supreme Court Library and Hong Kong General Chamber of Commerce, and from Dr J. R. Jones of The Hongkong and Shanghai Banking Corporation who undertook to read the script and whose comments were valuable and illuminating. The script was also read, to its great advantage, by my Publisher, M. Henri Vetch, for which service I am much indebted. I am very appreciative of the ready co-operation of the Hong Kong Government in entertaining and replying as far as possible to the many questions I raised, and of my great gain as result. I wish to thank Miss Munsie Man Kam Yip of the History Department at the University for assistance with typing. The Chinese characters have been supplied by colleagues in the History Department and by the Hong Kong University Press.
Unpublished Crown Copyright material in the Public Record Office has been used with the permission of the Controller of Her Majesty's Stationery Office. The Section on the failure of the municipal scheme is reproduced, by permission of the Hong Kong University Press, from the Journal of Oriental Studies (Vol. III, 1956), but in amended form.
G. B. ENDACOTT
Preface
I Introduction
CONTENTS
PART I
INTRODUCTORY
The Colony of Hong Kong
3
British trading communities on the China Coast
and the Birth of the Colony
9
· PART II
A CENTURY OF CONSTITUTIONAL DEVELOPMENT, 1841-1941
II Birth and Early Problems
Birth of the Constitution
Home Rule for the Chinese in Hong Kong
19
27
III The Question of Representation, 1843-59
The first Unofficial Members of the Legislative
Council, 1850
39
46
Sir John Bowring and the Legislative Council,
1854-59
IV Two Additional Early Problems
The link with the Treaty Ports and its severance,
1843-59
An abortive scheme of municipal self-government
61
73
v Constitutional Developments, 1859–82
Adjustment and consolidation, 1859–77
Sir John Pope Hennessy and the first Chinese member of the Legislative Council, 1877-82
Vi The Reconstruction of the Legislative Council, 1884
80
89
97
X
CONTENTS
VII The Petition of 1894 for Representative Government
CONTENTS
xi
XIV Government by Discussion
Financial strains
109
Public Opinion and Lawmaking
229
The Petition of 1894
119
Public Opinion and Administration
234
VIII Constitutional Developments in the 20th Century to the Outbreak of the War in the Pacific, 1898-1941
XV Epilogue
242
The New Territories, 1899-1941
APPENDICES
126
Developments, 1898-1941
135
A Changes in the structure of the Executive Council
249
B
Ix Local Government, 1883-1941
c
The Sanitary Board and the first popular elections,
Changes in the structure of the Legislative Council List of unofficial members of the Executive Council,
1896-1941
249
250
1883-98
148
D List of unofficial members of the Legislative Council,
The Urban Council
155
1850-1941
251
E List of Governors of the Colong of Hong Kong
254
x Administrative Developments
F
A Select Bibliography
255
The growth of the administrative departments,
1841-1941
INDEX
257
163
The office of Lieutenant-Governor
170
PART III
THE CONSTITUTION IN THE POST-WAR PERIOD, 1945-62
XI The 'Young' Plan of Constitutional Reform
The restoration of British authority
The Young Plan
XII Constitutional Developments in the Post-War Years
The transfiguration of Hong Kong society
Post-war constitutional development
XIII The Structure of Government in 1962
Executive: The Governor in Council Legislature: The Legislative Council Administration: The Urban Council The Government Departments Local Recruitment
179
182
196
198
210
212 218
221
226
1
ILLUSTRATIONS
facing page
1. The Hong Kong Legislative Council in session with Sir
Robert Black presiding, 1960
frontispiece
2. NG CHOY (Wu Ting-fan), first Chinese member of the
Legislative Council, 1880
-
3. Hong Kong Police, in their uniform from about 1880 to
the First World War
93
- '134
4. The Governor, Sir Frederick Lugard (Lord Lugard),
arriving on 28 July 1907
5. SIR SHOUSON CHOW, first Chinese member of the Execu-
tive Council, 1926
6. The Old City Hall until its demolition in 1933
―
135
- 146
155
7. The Central District, 1963. The City Hall is in the fore- ground; the domed Supreme Court building is in the centre, the Anglican Cathedral of St. John in the upper left, with the Central Government Offices just behind. Government House is in the top centre
between pages 178-9
8. The procession of Judges at the ceremonial opening of the
Assizes, January 1960
between pages 178-9
9. Refugees on the Border, May 1962
- 198
10. Old Colonial Secretariat, demolished in 1954
- 199
11. Central Government Offices, East Wing, 1963. The end
of the West Wing can be seen on the left
199
12. The New Territories Magistracy at Fan Ling, opened in
1961
-
**
—
209
218
13. Urban Council Meeting, 6 August 1963
14. Voting in the Urban Council elections held on 7 March
1963
- 219
xiv
ILLUSTRATIONS
In the Text
Map of Hong Kong and the New Territories
I
Scroll presented by the Governor to the Urban Council on
29 March 1961, at the opening of the City Hall
Armorial Bearings of Hong Kong
—
220
246
Part I
INTRODUCTION
CHINA
FORMOSA
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ISLAND 1841
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THE PEARL RIVER ESTUARY
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Redrawn by Mr Wong Ming
Map of Hong Kong and The New Territories reproduced by permission of the Oxford University Press,
London. Revised by Prof. S. G. Davis, 1964.
CHAPTER I
INTRODUCTION
The Colony of Hong Kong
THE Colony of Hong Kong is situated on the coast of Kwangtung, the southernmost province of China, at the eastern extremity of the mouth of the Pearl Estuary. The Portuguese Colony of Macao occupies a corresponding position on the west. This broad estuary receives the waters of the most important river system of South China which has been from time immemorial, and still is, the chief commerical link with the interior. The city of Canton, which is the administrative and economic centre of this region, lies some 37 miles up river from the northern end of the estuary and is about 95 miles north-west of Hong Kong. Hong Kong was born of the trading relations between Britain and China and its growth has in the main been determined by geographical and economic factors. Its relations with Canton have been particularly close, and the Chinese in Hong Kong have been traditionally sensitive to opinion
in the provincial capital.
The Colony consists of three parts: the first is the Island of Hong Kong, 29 square miles, one of many thousands which are a feature of the China coast, ceded by the Treaty of Nanking in 1842. Next there is the small peninsula of Kowloon on the mainland opposite, which, with Stonecutters Island, was acquired by the Convention of Peking in 1860; it is 31 square miles. Thirdly, there is the area, usually referred to as the New Territories, which was leased from China in 1898 for 99 years, and which covers 3651 square miles of the mainland from the Pearl Estuary on the west to Mirs Bay on the east, together with some 235 islands in the surrounding waters.
The total area of the Colony is therefore 398 square miles. Much of it is rocky, hilly and barren; peaks of over three thousand feet in height rise abruptly from the sea with little cultivable land along the margin of the sea, and the soil, largely of decomposed granite, is infertile. Yet Chinese skill and industry succeeds, despite these unfavourable conditions, in utilizing the mountain. streams to produce rice and vegetables on terraced slopes. Though the New Territories offer more favourable opportunities to the
4
GOVERNMENT AND PEOPLE 1841-1962
agriculturalist, probably not more than 16% of the total area is cultivable. The rice locally produced would last the Colony only about one month, and so the bulk of its food has to be imported. A census taken early in 1961 showed a total population of 3, 128,044. In 1962 the population increased by 300,000 of which 91,581 was due to a natural increase and the remainder to a net balance of immigration, legal or illegal, giving an estimated total of 3,526,500.1 The people of Hong Kong have certain well-defined characteristics which bear closely upon the problem of their government. First, the population is predominantly urban; the rural New Territories, excluding New Kowloon, supported no more than 456,404 people in 1961 while on the Island itself only a comparative handful live outside the urban area, in the few scattered hamlets in outlying areas; but pressure of population is threatening these with urbani- zation. Secondly, Hong Kong is overwhelmingly Chinese who constitute over 98 per cent of the total; the great majority come from Kwangtung Province and speak Cantonese; but many villages in the New Territories are Hakka (literally, Guest Families) and some of the fishing communities are from Fukien Province; others are political refugees particularly from Shanghai, fleeing from the Communist régime on the mainland. Thirdly, the people are polyglottish and heterogeneous. It was estimated that in 1961 there were 33,140 British and Commonwealth subjects in Hong Kong, excluding the armed forces and their families, and 16,607 other non-Chinese residents; there were 2,103 Americans, 1,863 Portuguese, 652 Japanese, 422 Filipino, 386 Dutch, 329 Indonesian, 323 French, 302 Italian, and 300 German. It would be difficult to find any nationality not represented. Hong Kong is not one community but an aggregation of communities.
A striking feature of the population is that comparatively few belong to Hong Kong. The Colony's function as an entrepôt drew to it men from east and west, coming to trade and in due course returning to their homeland on retirement. This was as true of the Chinese artisan as of the European trader. This feature has been accentuated by Hong Kong's role as an important centre of migra- tion. In 1948 for example, the last year before the Communist take-over created a different situation, two million people entered
1
Hereafter referred to in the form Annual Report.
Hong Kong Annual Report, 1962. Hong Kong Government Press, p. 36.
INTRODUCTION
2
5
the Colony and two million left1 a coming and going of nearly 11,000 per day, and even in 1957 the number of journeys made both ways across the frontiers was said to be equal to or greater than the total population. If it has been true of Hong Kong that throughout its history few of its inhabitants have had their roots there, how much more true is it in the post-war period in which over one million refugees have fled to the Colony from the mainland. This human flood of newcomers put such a strain on the Colony's resources that the century-old policy of the open frontier with China could not be maintained, and immigration restrictions were applied to Chinese travellers in 1950, although illegal immigration has continued. With the frontier closed, Hong Kong people are beginning to take root, for other new Asian countries are also restricting Chinese immigrants.
To feed its dense population, the Colony imports most of its food and the mainland is naturally the chief source, supplying 36% of its foodstuffs in 1962.3 With its present population, Hong Kong would face a serious food problem if it were isolated from China. In the past Hong Kong got much of its livelihood from being the headquarters of the most important merchant houses trading in the Far East and much business was transacted in Hong Kong though the actual goods concerned may never have touched the Colony. As the clearing house of trade between the East and the rest of the world, it naturally developed specialized associated services such as shipping, banking, insurance, account- ancy and legal services, and special market facilities such as the gold market. With shipping came the related industries of ship- building, and repairing, victualling and wharfage and warehousing. After the First World War of 1914-18, the entrepôt trade with China began to decline relative to the total trade of the Colony, but the area of the entrepôt trade grew to cover much of the Far East and South-East Asia. Since the establishment of the People's Republic of China on the mainland in 1949, the economic depen- dence on China, already less marked, virtually disappeared. The political refugees after the Second World War 1939-45, increased the Colony's resources of capital and labour, and began to develop
1 Annual Report 1948, p. 9 2 Annual Report 1957, p. 36
3 Annual Report 1962, p. 76
6
GOVERNMENT AND PEOPLE 1841-1962
its industry, chiefly textiles and other light industry. The Colony's commercial and financial facilities have helped to market its own products, and to distribute the products of the west Pacific region. The success of Hong Kong as an important commercial centre has been its stability; there has been no ruinous currency inflation as in China; Chinese customs and usage have been respected; British law courts have had the confidence of the population, Chinese and foreign alike. As a free port, it attracted merchants of every nation. The present cosmopolitan complexion of Hong Kong is rooted in its history and in the liberal character of British rule.
British Trading Communities on the China Coast and the Birth of the Colony
British contacts with China began in the seventeenth century with the founding by royal charter in 1600, of 'The Governor and Merchants of London trading into the East Indies', more generally referred to as the East India Company, which was granted a monopoly of English trade to the east of the Cape of Good Hope.1. These contacts long remained almost entirely commercial. Various factors, including Dutch rivalry, unsettled political conditions in England, and the prior claims of the Company's interests in India, held back the expansion of the China trade until the 18th century. The first British ship to trade successfully with China was the Macclesfield in 1699, at Canton. Subsequent attempts to extend the trade to Amoy and Ningpo with which the Portuguese, Dutch and the Company itself had earlier had connections, failed because of excessive exactions, and the trade gravitated to Canton, which in 1755, secured the monopoly of foreign trade by imperial decree. At first, each ship employed on the Company's service carried its own supercargo who was responsible for the commercial side of the voyage. After 1715, with the increase in the number of ships sent to Canton and the need of greater co-ordination of commercial relations, the supercargoes were grouped into two councils, each resident at Canton during the trading season. In 1786 the councils
1 Some competition was allowed in 1698 when, as a result of Parliamentary jealousy of the royal prerogative, a rival East India Company, chartered by Parliament, was given a share of the trade. Monopoly was restored in 1700 when the two companies were united as the Honourable United East India Company.
INTRODUCTION
7
were merged and a select committee of six under a president managed the affairs of the Company in Canton until its monopoly was abolished by a revision of its Charter in 1833. Canton became the seat of a factory, similar to the Company's factories in India. The second half of the 18th century saw a great expansion of British commerce in the East. This was due, amongst other things, to the successes of the Seven Years' War (1756-63), to the loss of the American Colonies which stimulated greater interest in commerce in the Far East, and to the expansion of British influence in India which ensured the opportunity of a dominant place for Britain in India's trade with China and the East Indies. As a result of the participation by the Dutch in the American War of Indepen- dence the British broke the Dutch monopoly of the East Indies Trade. It is not surprising therefore that by the last quarter of the century, British commerce at Canton had outstripped that of all other European nations. During the Napoleonic Wars, Britain's position was further strengthened by her naval supremacy which temporarily made her mistress of oceanic trade and placed the colonies of all European nations at her disposal.
The trade between India and China, called the 'country trade', increased in importance and was handled by private British and Parsee merchants in India, under licence from the Company whose monopoly and control were thus technically preserved. From about 1770 onwards the Company confined itself to the tea trade, and came to rely on the 'country traders' to assist it in finding the necessary funds for the purchase of tea. The private merchants naturally wished to reside in Canton during the trading season, and to overcome the Company's reluctance to permit this, they adopted the subterfuge of acting as consuls for foreign states, taking out foreign papers and placing their ships under foreign flags, until the Company was forced to recognize what it was powerless to prevent. In any case the Company could not hinder the coming of Americans (after1783) or of other European nationals. The Chinese restricted residence in the factories at Canton to males and for the duration of the trading season only. The Europe- ans normally rejoined their families at Macao in the off-trading season during the summer months. Macao was therefore the social and recreational centre.1
1 Portuguese trade was also centred at Macao.
8
GOVERNMENT AND PEOPLE 1841-1962
On the Chinese side, a group or guild of some thirteen Chinese merchants,1 The Co-hong, operating individually and not corpor- ately, held a monopoly of trade with the Westerners similar to that theoretically held by the Company. They paid heavily for this privilege and besides acting as security merchants for all the Western traders, they were held responsible for their general conduct. Trade with the West was supervised by an official called the Hoppo, appointed by the Emperor and removed from the control of the provincial hierarchy, who was able to see that a share of the profits of this lucrative trade accrued to the Imperial treasury.
The foreign traders prospered and the Company's factory at Canton and its house in Macao were noted for their luxurious appointments. There was mutual trust in commercial dealings and as long as the Company's control remained, there were no written contracts. Yet there were many grievances.
the
Chinese regulations imposed upon the Foreign Devils3 a comprehensive series of restrictions which they found vexing and humiliating. Entry into the walled city of Canton was forbidden and residence was restricted to the factory area except for occasional supervised visits to the fati or flower gardens across the river. The possession of firearms, the employment of Chinese servants, use of sedan chairs, and the learning of the Chinese language were all banned. Communication with Chinese officials was allowed only through the medium of the Co-hong, and then only in the form of a petition, normally used in China in addressing a person of superior status. This Chinese assumption of superiority was a source of constant irritation. The port charges and ship measure- ment fees were not publicly promulgated and were arbitrarily varied so that the merchants were unable to calculate their costs. In the fixing of commodity prices the foreign merchants were largely in the hands of the Co-hong because of its monopoly.
The Select Committee at Canton made many unavailing attempts to negotiate directly with the local provincial officials to modify
Known as the Hong merchants, or Co-hong. It had a chequered history; it was founded in 1720 and became an essential part of the Canton system when it was given a monopoly of Western trade in 1755. It was dissolved in 177 because many of its members became insolvent, and re-formed by imperial decree in 1782. The membership varied in number from time to time.
2 These were the Eight Regulations, but their number varied with each promulgation and they were not all applied all the time.
3 The general term used by the Chinese for all Europeans was then fan-
kuei-tzu.
INTRODUCTION
9
the conditions under which foreigners lived and conducted business at Canton; it also complained to the Court of Directors of the Honourable Company in London. The British Government was sympathetic and even supported the Company's plans for the acquisition of an island off the North Borneo coast or in the Philippines as an entrepôt for an extended British trade in the Far East.1 Two diplomatic missions to Peking, Lord Macartney's in 1793 and Lord Amherst's in 1816, succeeded in reaching the capital but failed to secure any concession and their failure was interpreted by the traders in Canton as proving that it was futile to appeal to the Emperor for redress. Neither was the lesson lost upon the Chinese provincial hierarchy.
An uneasy modus vivendi was gradually established, partly by mutual threats to stop the trade, a step which both sides were really anxious to avoid. This game of commercial poker favoured the Chinese because it was the West that sought a trade which the Chinese could forego with no great harm, for China was largely self-sufficient.
One further problem was that of jurisdiction. Chinese law courts did not inspire confidence because they were not free from inter- ference by executive officials, used torture to extract confessions without which under Chinese law no prisoner could be condemned, and were prepared to punish as a substitute the person who was responsible in law for the behaviour of the accused if the latter could not be found. Again the distinction between murder and homicide was not so clearly drawn to Chinese minds as to British; for example, in 1784 a gunner of the ship Lady Hughes accidentally killed a Chinese in the course of firing a salute; his surrender was demanded and after some demur agreed to, with the result that he was condemned to death and strangled. Following this incident the British refused to hand over any of their own nationals for trial and the Chinese officials in practice did not dispute this measure of extraterritoriality, though they never explicitly recognized it as a right.
Conditions at Canton became increasingly irksome as mercan- tilist ideas with which they were to some extent consonant, gave
Vincent T. Harlow, The Founding of the Second British Empire 1763-83, London 1952, pp. 103–146.
Lt.-Colonel Charles Cathcart was sent on an embassy to Peking in December 1787, but he died off the Java coast on his way there.
ΤΟ
GOVERNMENT AND PEOPLE 1841-1962
way in England to Adam Smith's doctrines of freeing trade from unnecessary restrictions. In 1833 the Company's monopoly at Canton was abolished by act of Parliament,1 and British commercial interests there were placed under a Chief Superintendent of Trade responsible to the Foreign Office.
The first Chief Superintendent of Trade, Lord Napier, arrived off Macao in August 1834. His instructions to reside at Canton and communicate with the Chinese Viceroy direct, were unfort- unately at variance with the Chinese regulations, and the local mandarins were unwilling to recognize his diplomatic status until they had referred to Peking. He himself was too anxious to impress the Chinese with his own importance and dignity, and the result was an impasse. The Viceroy stopped the trade, which was the normal Chinese response in case of dispute, and Napier, believing that the foreign community was threatened, ordered two British warships up the river to Canton for protection. This display of force failed to induce the Chinese to recognize his mission. Napier, now a very sick man, retired to Macao; his journey there was sub- jected to deliberate and humiliating delays and he died soon after, on 11 October 1834. His mission had lasted barely three months.
His two successors, J. F. Davis and Sir George Robinson made no attempt to force the issue, and then in December 1836 Captain Charles Elliot, R.N., became Superintendent of Trade. He adopted a policy of conciliation, particularly in the use of the customary word 'petition', pin, in writing to the Viceroy and so secured official Chinese recognition of his position but when the Foreign Secretary, Lord Palmerston, refused to allow Elliot to act in this or any other way which compromised the British claim to equality, Elliot could make no headway and retired to Macao. The attempt to remove grievances by negotiation therefore failed.
The ending of the Company's monopoly brought an increasing flow of foreign residents. In 1837 they numbered 308,2 of which 158 were British, 62 Parsee, 44 American, 28 Portuguese and the remaining 16 of various nationalities. Except for the few mission- aries and the officials of the British Mission, most of them were attached to the 57 ‘agency houses', which were the normal type of merchant firm in Canton.
1 3 & 4 William IV, c 93. See also below p. 64 ff.
2 The Chinese Repository, January 1837.
INTRODUCTION
II
In spite of the restrictions, or rather because of them, the foreign residents enjoyed a vigorous social life and evinced much public spirit. They set up a Chamber of Commerce to give concerted support to the Superintendent of Trade, and launched two societies aimed at the regeneration of the Chinese, the Society for the Diffusion of Useful Knowledge and the Morrison Education Society. British doctors in the service of the Company and, after 1834, attached to the Superintendent of Trade, conducted a small hospital for the treatment of Chinese; the American Dr Peter Parker treated Chinese in a much-needed hospital for eye diseases, and a hospital for seamen was founded by the merchants at the nearby anchorage of Whampoa.
The rapid growth of the 'country trade' reflected the growing Chinese demand for opium. Opium had certainly been known in China since the T'ang Dynasty (618-906) as a medicinal herb with valuable anti-biotic qualities. Opium smoking was a more recent (17th century) importation, similar to that of tobacco, and when this practice became widespread the Emperors tried to curb it by a number of edicts beginning with that of 1729. They proved ineffec- tual and in 1800 an absolute prohibition of the import and local production of the drug was decreed. Nevertheless opium continued. in demand and found a ready sale, the trade therefore persisted, not without official connivance. The fact that the trade was illegal was a factor in its prosperity because it became a cash trade in which port formalities, restrictions and fees were avoided. By 1800, the annual import averaged about 4,000 chests,1 by 1828, the annual average rose to over 10,000 chests, and by 1839 this had nearly quadrupled to some 39,000 chests. The Imperial Court, concerned over the social evil, and perhaps even more over the financial problems consequent upon the drain of silver from China, decided after much debate to take more stringent action to stop the trade. Chinese opium dealers were strangled, and on one occa- sion in January 1839, the sentence was carried out in the area facing the Factories, as an unmistakable threat to their inmates.
To the Chinese, the issue was the simple one of suppressing a harmful, uneconomic and illegal trade. They did not recognize any problem over the legitimate trade, conducted as it was on such terms as they chose to dictate; they argued that if foreign merchants
1 Chests varied in weight. A chest of Malwa and of Persian opium weighed about 133 lb.; a chest of Bengal opium weighed 160 lb.
12
GOVERNMENT AND PEOPLE 1841-1962
came to China they must expect to obey the laws of China. The British Government demanded equality with China and her recognition of its Superintendent of Trade as necessary pre- condition of any official discussion of difficulties. It placed the onus of suppressing the contraband trade on the Chinese Govern- ment and not on the British officials, who were bound by British law and could take no part in the enforcement of Chinese law without risk of being sued in British courts.
The foreign community at Canton demanded the abolition of personal and commercial restrictions, and the appointment of a plenipotentiary, armed with the necessary powers to negotiate a settlement, and backed by the requisite force, without which, in their view, no concessions could be expected.1 Merchant opinion was against acquiring Chinese territory, though the view was frequently expressed that an island station might be obtained by negotiation or purchase for the purpose of residence and trade. Lord Macartney had been instructed in 1793 to ask for an island, and Lord Napier again urged this on the British Government in 1834. The advantages of an island station were: it would give greater personal security to the merchants; it would permit courts of law to function under British control and to establish that law and order which the Victorians almost regarded as the equivalent of civilization itself; it would become an emporium of trade if allowed to function freely; and finally it would provide a military and naval base of great strategic value.
The opium trade was much debated among the foreign com- munity at Canton. The missionaries crusaded against it on moral grounds. Its defenders argued that opium did no harm and was even beneficial, and, by a peculiar travesty of Adam Smith's ideas, even that, in opposing the opium trade, the Chinese were the divine will, since God had ordained that all nations should opposing trade freely for their mutual advantage. Undoubtedly the main reasons for the continuance of the trade were the practical ones, that there was a demand for opium and if one nation refused to
supply it, then other nations would.
The Chinese appointed a special Commissioner, Lin Tse-hsü, to suppress the evil, and he arrived at Canton in March 1839. He was in a hurry and took immediate and decisive action. Since it
The Merchants' Petition to the King in Council, 9 December 1834. Parliamentary Papers 1840, No. 27, p. xxxvi.
INTRODUCTION
13
was impossible to set up a preventive service strong enough to match the well-armed and speedy opium ships, he decided to put pressure on the foreign merchants in Canton. Within a week of his arrival he demanded that all opium held by them should be surrendered and that as a condition of trading at Canton, all masters of incoming ships should sign a bond agreeing to the death penalty if they carried opium. In accordance with precedent, trade was stopped, the foreign community was shut up in the factories at Canton and denied food and services until they accepted Lin's conditions. Elliot made his way to Canton at great personal risk and after attempts to bargain with Lin, took upon himself the responsibility of handing over all stocks of opium at the various anchorages. He protested against Lin's acts and refused to renew commercial relations until the British Government had received his report of these proceedings and determined its policy.
Palmerston decided that the time had come for a settlement of the outstanding difficulties at Canton. His chief demands were compensation for the opium given up, the opening of four additional ports to trade, and, as security against the repetition of such actions as Lin had taken, either the cession of an island or the granting of an acceptable commercial treaty. An expedition to back these demands arrived off Macao in the summer of 1840. Rear-Admiral George Elliot and his cousin, Captain Charles Elliot, the Superin- tendent of Trade, were named as joint plenipotentiaries.
The British plan was to seize the Chusan Islands situated off the mouth of the Yangtze and institute a blockade of the coast as a preliminary to the opening of negotiations which were to be based upon a letter Palmerston had addressed "To the Minister to the Emperor of China', copies of which the Plenipotentiaries were to attempt to deliver to Chinese officials at Canton, Shanghai and at the mouth of the Peiho River. Chinese envoys were met at the last-named place, and the two Elliots agreed to return to Canton and resume negotiations there. The Admiral now retired through ill-health, leaving Charles Elliot in sole charge.
The negotiations at Canton were punctuated by intermittent hostilities, for the Chinese were obdurate and it was Elliot's policy to restrict the use of force to the minimum. Eventually there resulted the Convention of Chuenpi of 20 January 1841 which provided inter alia for the cession of Hong Kong. The Island was accordingly occupied on 26 January 1841. The Convention,
14
GOVERNMENT AND PEOPLE 1841-1962
however, was repudiated by each side and the principals, Keshen and Elliot, were recalled and their actions disavowed,
Sir Henry Pottinger arrived at Macao in August 1841 as the new British plenipotentiary. His instructions still maintained the principle that security for British trade was to be obtained either by the cession of an insular trading station, or by the negotiation of a commercial treaty giving adequate guarantees. With regard to Hong Kong, Pottinger was told not to give it up except in exchange for another island 'better adapted for the purposes in view' and 'equally defensible'; but he was also informed that the possession of Hong Kong 'would not supersede the necessity for another insular position on the Eastern Coast'.1 When the Whigs fell from office in September 1841, the new Tory Foreign Secretary, Lord Aberdeen, wrote that he was opposed to the retention of any Chinese territory, and ruled that the desired security for the merchants should take the sole form of a commercial treaty. The demand for an island was therefore dropped.
He
Under Pottinger the hostilities were conducted with vigour. occupied the chief ports on the coast, sailed up the Yangtze River and by threatening Nanking and blockading the Grand Canal, forced the Chinese to accept the Treaty of Nanking on 29 August 1842. The Chinese agreed to pay an indemnity of $21 million as compensation for the opium, Hong debts and the war expenses, to open four additional ports, Amoy, Foochow, Ningpo and Shang- hai, and to abolish the Co-hong monopoly. There was to be equal status between the official representatives of the two countries and an agreed customs tariff was to be set up. Despite Lord Aberdeen's instructions, Hong Kong was ceded in perpetuity.
In the meantime, Hong Kong had been occupied in January 1841 and Elliot, who was anxious to induce the foreign merchants to transfer their establishments from Macao to the island, had plots of land marked out for sale in the following June, and made the first appointments for the government of the infant colony. His recall was accompanied by a demand from the Home Government to halt all building and to make only the minimum administrative arrangements. The island was thus placed in a curiously anomalous position with some British landholders, and yet without recognized status as a British colony. The British Government refused to
1 Lord Palmerston to Sir Henry Pottinger, 31 May 1841, No. 16.
INTRODUCTION
15
acknowledge any cession of territory except in virtue of a treaty, and it was not until the ratifications of the Nanking Treaty were exchanged on 26 June 1843, that a colonial administration was set up in Hong Kong,
As amenities were provided,1 the Colony began to take the posi- tion in the China trade that had formerly been occupied jointly by Macao and Canton. By 1847 its foreign population numbered 618 of whom only 167 were females, with a further 768 'resident aliens'. Canton was too important a trading centre for it to be supplanted by Hong Kong, but the foreign community there never rivalled in number that of Hong Kong. Small communities of traders began to settle at the other four treaty ports but only Shanghai grew to be important.
The foreign community which established itself in Hong Kong after the Treaty of Nanking, was predominantly male, as is eviden- ced by the population figures just quoted. It was cosmopolitan, for it was the deliberate policy to attract all comers to the port without distinction of race3 in accordance with the liberal character of British economic policy of this period. The foreigners were from the first heavily outnumbered by the Chinese who in 1847 totalled 20,449, of whom only 4,930 were women.
It was an unruly community. Except for the handful of the most important merchants and government officials, the foreigners were a rough, adventuring, enterprising class, well able to fend for themselves in the absorbing objective of material gain. Hong Kong, with its reputation for fever, attracted only those who saw there the prospect of fairly rapid material success. Many were adventurers from Australia or came from the ranks of deserting seamen.
The opium trade attracted men whose lack of scruple made them difficult to control. One such was James Innes. On 5 May 1839, the Portuguese authorities at Macao seized and handed over to the Chinese eight chests of opium which were found to belong to Innes.
1 Macao long remained the social centre and until 1852 there was an annual migration thither for the regatta and for horse racing.
* Report of Select Committee on Commercial Relations with China, 1847, P. 433 (Appendix No. 1). These figures exclude the British troops who numbered
about 1,000.
The Chinese were granted freedom to trade at Hong Kong under Article XIII of the Supplementary Treaty of the Boguc, October 1843.
Deaths from fever among the troops were: 1843, 373; 1844, 216; 1845, 143; 1846, 56. The most serious visitation was in 1842.
16
GOVERNMENT AND PEOPLE 1841-1962
·
Elliot was annoyed because he had just handed over all the opium stocks, and he ordered Innes, who had given trouble before over his opium trading activities, to leave the coast. Innes' reply, dated 30 May 1839, was a point-blank refusal: 'Your order to leave China is waste paper and I give you distinctly to under- stand, that looking on your order as illegal, I shall land and stay in China whenever I consider it prudent to do so, without any refer- ence to you'. Elliot saw that the chaos produced by the contraband trade might lead to a complete breakdown of law and order, and he was all the more anxious to secure the cession of an island on which British institutions could be set up to control men like Innes. Pottinger wrote to Lord Ellenborough at Calcutta that it would be more difficult to control than to protect British subjects. Davis, who returned to the East in 1844 as Governor of Hong Kong and Superintendent of Trade, declared that it was more difficult to govern the few hundred British than the thousands of Chinese, and in a memorandum to the Foreign Office dated 10 February 1842, he strongly complained of the ill-conduct of British subjects in China'. The Anglican missionary, George Smith, described the Hong Kong foreign community in the most scathing terms as rendering the Island unfitted to be the centre of missionary effort in China.1
The Chinese in Hong Kong made no better impression; they were originally the villagers and their families and the tanka boat people, some 4,000 in all. But the settlement soon attracted Cantonese and Hakka coolies and artisans from the mainland, amongst whom there were many undesirables. Under pressure from the Chinese officials, respectable Chinese avoided the island. Crime, both petty and serious, became prevalent.
In this unusual heterogeneous population, the urgent problem was to maintain minimal law and order and give protection for person and property.
Part II
A CENTURY OF
CONSTITUTIONAL DEVELOPMENT
1841-1941
1 Rev. George Smith, A Narrative of an Exploratory visit to each of the Consular Cities of China and to the Islands of Hong Kong and Chusan, Second edition,
London 1847, pp. 512 and 513.
CHAPTER II
BIRTH AND EARLY PROBLEMS
Birth of the Constitution
KIYING (or Ch'i-ying), the Manchu Commissioner for Western Affairs, paid a ceremonial visit to Hong Kong in June 1843 for the formal exchange of ratifications of the Treaty of Nanking which had been delayed by the death of his colleague Ilipu.' That formality was completed on 26 June 1843 and on the same day, the Island of Hong Kong, 'with its dependencies', was publicly proclaimed a British Colony, with Sir Henry Pottinger, the Plenipotentiary and Superintendent of Trade, as its first governor. The uncertain future of the Island was at last finally resolved after an occupation of two and half years, thus enabling the necessary constitutional arrangements to be brought into force.
The government of a colony acquired by cession was normally set up by Order in Council in the exercise of the royal prerogative, and in the case of Hong Kong this procedure was followed. Hong Kong became a Crown Colony. The form of Crown Colony govern- ment varied in detail but usually comprised a governor representing the Crown, assisted by an executive council and a legislative council, each composed at first of officials, with the subsequent addition of a nominated unofficial element which might or might not be in a majority according to local circumstances or the stage of develop- ment reached. A later stage was the institution of some form of representative government through elections, which was usually but not necessarily the prelude to full responsibility and self- government. The essence of the system was a flexible combination of central control from the Colonial Office in London with local administration by officials who were expected to supply the initia- tive and provide the information necessary for the important policy decisions by the Secretary of State. Hong Kong closely followed precedent but there were two problems which caused great discus- sion. The first was whether the Chinese in Hong Kong should be allowed to live under their own law administered by their own
1
Spelt Elepoo in the English version of the Treaty of Nanking.
* See Martin Wight, The development of the Legislative Council, London 1946.
20
GOVERNMENT AND PEOPLE 1841-1962
officials; and the second referred to the nature of the administrative arrangements for the control of British subjects living in China at the treaty ports. The government of the Colony was not therefore thought of as concerned only with the administration of a ceded island, but rather as a matter embracing the whole British position in the Far East and involving the complex question of relations with the Chinese.
Lord Stanley, who was then Secretary of State for War and the Colonies (1841-45), in a letter to Pottinger in June 1843, recorded his view1 that the function and purpose of Hong Kong was to serve as a diplomatic, commercial and military post. Pottinger was told that he had three functions: (i) to negotiate with the Chinese Emperor; (ii) to superintend the trade of British subjects in China; and (ii) to regulate the internal economy of the settlement. Stanley went on to say 'Hence it follows that methods of proceeding unknown in other British colonies must be followed at Hong Kong'. Clearly there was to be no slavish copying of precedents. In devis- ing a constitution for the new colony, there was considerable discussion between the two departments involved, the Foreign Office and that of War and the Colonies, as to the arrangements best suited to meet its special conditions.
In the meantime, temporary measures for the administration of the Island were set forth in a series of letters and instruments all dated 4 January 1843, addressed by Lord Aberdeen to Sir Henry Pottinger. The introductory dispatch of this series2 informed him that the Government intended him to be exclusively in charge in China and that he must assume the government of Hong Kong, exercising his authority by means of proclamations. He was to make the necessary arrangements for defence, including the erection of forts for the protection of shipping in the roads, and of barracks to house the garrison. He was to make grants of land, except that
'H.M. Government would not choose that .
-
grants should be
made to parties whose object in obtaining such grants would be to dispose of them again with advantage to themselves', to allocate land for public purposes, including roads and streets, and to reserve a part of the shore for a naval establishment. He was
1 Lord Stanley to Sir Henry Pottinger, 3 June 1843, No. 8, CO 129/3. The Departments of War and the Colonies were placed under a single Cabinet Minister, the Secretary of State for War and the Colonies from 1801 to 1854- 2 Lord Aberdeen to Sir Henry Pottinger, 4 January 1843, No. 4, CO 129/3-
BIRTH AND EARLY PROBLEMS
21
further told that if, as a result of the establishment of a free port and 'the introduction of those liberal arrangements by which foreigners would be encouraged to come, a great commercial entrepôt were created, then H.M. Government would feel justified in securing to the Crown the increased values that the land would then have'.
In one of the letters of this series,1 Lord Aberdeen asked Pottin- ger to give his advice 'with the fullest detail' and 'the utmost unreserve' on the future political administration of the island and the judicial arrangements. Regarding the former, after indicating that there would probably be a governor and council and that there would be 'no popular form of government', he mentioned two points on which he particularly wanted Pottinger's opinion: first, how should such a council be chosen, whether wholly or partly from 'official servants of the crown'; and second, whether the governor should, like the Governor-General of India, have the power of overriding the decisions of the council.
Regarding the judicial establishment, Aberdeen thought one resident judge would probably be sufficient for civil and criminal cases; but he pointed out that the main problem was how to frame and administer the law and police regulations so that 'while they satisfied the claims of the British', they might 'best conciliate the respect and fall in with the manners of the Chinese subjects of Her Majesty'. This was a clear recognition of the necessity of adapting institutions to local needs and of respecting Chinese customs. But the problem of dealing with the Chinese was easier to state than to solve and gave rise to prolonged discussion which is summarized below.
Until 26 June 1843, Pottinger therefore temporarily admin- istered the government by proclamation in virtue of his position. as Plenipotentiary and Superintendent of Trade. His opinion on the form of the constitution had been asked, but before he could reply, decisions had to be taken by the Home Government, partly because of the slow communications, and partly because some form of constitution had to be ready when the cession of the Island became effective on the exchange of ratifications of the treaty. But the chief need for prompt decision arose from the prevalence of crime in the Island. A. R. Johnston who was in charge of its
'Lord Aberdeen to Sir Henry Pottinger, 4 January 1843, No. 16, CO 129/3.
22
GOVERNMENT AND PEOPLE 1841-1962
administration until Pottinger returned from his negotiations in the North, reported home on 21 October 1842' that the jail was full, the magistrate had inadequate powers, police arrangements were inefficient, there were innumerable complaints of burglaries and robberies, gangs attacked isolated houses making good their escape by boat, and acts of piracy were frequent. In view of this disturbing account of the state of the Colony, the setting up of a constitution for the more effective imposition of law and order was regarded as urgent. So in a letter dated 6 April 1843, Lord Stanley informed Pottinger that though it had been intended to have further discussions as to how Hong Kong should be govern- ed, it was now felt that he should have legislative power without delay. A constitution for the colony was therefore drawn up. It was set out in two documents, the Hong Kong Charter dated 5 April 1843, and the Instructions to Sir Henry Pottinger dated the following day, both to come into effect upon his assumption of the office of Governor.
The Hong Kong Charter was a commission 'for erecting the Island of Hong Kong into a separate colony and for the establishing of a Legislative and an Executive Council in the said colony and for granting certain powers and authorities to the governor for the time being of the said colony'. The Charter outlined the constitution in the baldest terms. The Legislative Council was to consist of the Governor and such other persons as were designated to hold places on the Council, at the royal pleasure. The Governor, with the advice of the Legislative Council was given full authority to make laws for the peace, order and good government of the colony subject to three important limitations. It had to be exercised in accordance with any instructions given by the Secretary of State, it was subject to the power of disallowance by the Crown of any ordinance either in whole or part; and Parliament retained the power of concurrent legislation over the Colony. Little was said about the Executive Council except that it was to 'advise and
assist' the Governor.
The Governor was given custody of the public seal of the Colony; he was empowered to make grants of land subject to instructions from home; to appoint judges or commissioners of oyer and terminer, and justices of the peace for the administration of justice; to remit
1 A. R. Johnston to Lord Aberdeen, 21 October 1842, CO 129/3. 2 CO 380/91.
BIRTH AND EARLY PROBLEMS
23
fines not exceeding £50, and suspend fines in excess of that amount until the royal pleasure could be made known; to pardon convicted criminals; and to suspend public officials pending a decision by the Crown. If the Governor were absent or incapacitated, these powers were to devolve on the Lieutenant-Governor, or, in his absence, upon the person holding the office of Colonial Secretary. All persons, civil and military, were to be 'obedient and assisting' to the Governor.
2
The Governor's Instructions of 6 April 18431 were based on those provided for the governor of New Zealand, and remained the standard instructions of the governors of Hong Kong until their revision in 1865 on the appointment of Sir Richard Graves MacDonnell as Governor. In them Pottinger was subjected to detailed guidance regarding the working of the constitutional arrangements set out in the Charter; indeed it would be only a slight exaggeration to say that the constitution of Hong Kong must be looked for in the Instructions rather than in the Charter. By them Pottinger was to read the Charter publicly in the presence of the chief officers and principal inhabitants, and to take the oath of allegiance. He was to constitute the Legislative Council by nominat- ing three members for appointment by the Crown to hold office during the royal pleasure, to preside over it and to frame its stand- ing orders.
The Legislative Council was effectively subordinated to the will of the Governor by the instruction that no law was to be passed nor any motion debated unless first proposed by him; but a member had the right to transmit his opinions to the Governor regarding any bill or motion for debate and to have them entered on the minutes. Since these minutes were to be sent half-yearly to the Secretary of State, the latter was thus kept informed of any issues dividing the Governor and his Council, and could decide between them. In practice the Governor himself reported such differences since they normally raised important questions. The Governor was not to propose or assent to, any ordinance repugnant to the Charter or to his Instructions. No ordinance was to be passed, without previous sanction, limiting religious freedom, or permitting bills or paper money or coin (except legal coin of the realm) as legal tender in the Colony, or raising money by the institution of public or
I CO 381/35.
2 Ibid.
24
GOVERNMENT AND PEOPLE 1841-1962
private lotteries; nor was he, without leave, to propose or assent to any ordinance to which the royal assent had previously been refused. The Governor was to send a signed copy of all ordinances to the Secretary of State, with the Colony's seal attached.
The Governor was given a casting as well as an original vote and he was to have overriding power to make and promulgate laws even against the united opposition of all the members of the Legislative Council.
The Executive Council consisting of three members in addition to the Governor and appointed in the same way as members of the Legislative Council, was to meet only when summoned by the Governor; its quorum was two, exclusive of the presiding member, who was to be the Governor or the senior member present. The Governor was to consult with the Executive Council 'as often as the service may seem to you to require it', and the Council was to be shown instructions from the Secretary of State and similar papers, 'as requisite". Like the Legislative Council, the Council could discuss only those motions brought before it by the Governor who had full power to act against its advice; it was therefore equally subordinate to him. If a member wished to suggest the discussion of any busi- ness he could do so in writing to the Governor and he had the right to have such a request entered on the minutes, copies of which were to be sent home at intervals of six months. In addition, a member who disagreed with the Governor was entitled to have his opinion with his reasons recorded in the minutes; if the Governor acted against the advice of the whole or majority of the Council, he was to supply a full explanation to the Secretary of State.
The Governor was not to make private grants of land for the benefit of individuals except by sale at public auction; and he was to set apart land for roads, towns, villages, churches, schools, health needs, quays and landing places; and he was forbidden to accept any private grant of land for himself. All official appoint- ments were to be temporary, pending the pleasure of the Crown, and if any official were suspended, in accordance with the power given by the Charter, a full report was to be made to the Secretary
of State.
These two documents established a Crown Colony constitution following the usual pattern of Governor and Executive and Legis- lative Councils with control from London exercised by means of
instructions to the Governor.
BIRTH AND EARLY PROBLEMS
25
The constitutional arrangements for Hong Kong show evident intention to meet the special conditions of the British position in the Far East where uncertainty over the future, and the absence of precedents, required a greater degree of central control. The essential feature was that the Governor was given overriding powers over the Executive and Legislative Councils, which could discuss only such measures as he chose to place before them, and he could introduce and put into effect legislation contrary to their wishes provided the Secretary of State were informed. The Governor could therefore act at his absolute discretion as long as he could convince the Secretary of State of the desirability of his policy. The Councils were deliberately kept small in number, to enable the Governor to work with a few important officials most closely associated with him in the administration. There could be little formal debate or formality of any sort in a council of three persons, with a quorum of two. The Councils were set up as a matter of form but the reality was firm control by the Secretary of State through the Governor.
There were precedents for these provisions not only in New Zealand but also in the constitutional arrangements for Ceylon and Mauritius, the two eastern colonies which naturally also served to some extent as models.1 In each case, on the establishment of a new colony, prudence demanded a temporary concentration of authority in the hands of the Governor, and Hong Kong was no exception. But here there were additional reasons. Hong Kong was 'a barren island'2 with a small indigenous population and with no large or old-cstablished community demanding political representation. It was essentially a military, diplomatic and trading station, and not a settlement in the normal sense and strategic considerations demanded a greater degree of imperial control in Hong Kong than would normally be the case. No popular clement
1 On the assumption of Crown Colony government in Ceylon in 1802, a single undifferentiated council of three officials was set up for consultation on executive and legislative matters, legislative authority being vested in the Governor alone. In 1833, an Executive Council of five was set up, and also a Legislative Council of nine officials and six nominated unofficials, with the provision that the Governor alone should have the power of initiation, and no question could be debated without his approval.
In Mauritius, the Governor was supreme until 1825 when an undifferentiated advisory council of four members was established. Seven years later this was broadened to become a Legislative Council, of seven officials and seven unofficials. 2 Lord Palmerston to Capt. Charles Elliot, R.N. (Private), 21 April 1841.
26
GOVERNMENT AND PEOPLE 1841-1962
in the government could have been expected in Hong Kong in 1843.
In practice this administrative absolutism was much modified. Laissez-faire ideas then dominant meant that the colonial govern- ment operated over a very restricted field, covering little more than the maintenance of law and order, and the raising of taxes to meet, or help meet, the cost of the civil establishment and necessary public works. For the rest the individual was left to his own devices. Secondly, it was intended from the start, that the authority of the government should be limited by some form of municipal self- government (see below p. 73) and the special powers of the governor were intended primarily to protect the broader imperial interests. Thirdly, the intention was to place the Chinese subjects of the Queen under their own Chinese law administered by Chinese officials, thus giving them a greater degree of freedom. Fourthly, the Secretary of State was responsible to Parliament in which the vigilance of the opposition could be counted upon to act as a valuable safeguard. Finally, the founding of colonies at this period, often in the teeth of opposition from the generally anti-colonial free traders, had for its aim, the security of commerce and of the merchant, and the creation of those conditions in which commerce should flourish, for example, the suppression of disorder and the settlement of commercial disputes. The normal policy therefore was to interfere with the merchant and with native custom to the minimum consistent with these ends. The constitution set up Hong Kong should be judged with these considerations in mind, and it may be said that it was not ill-adapted to the purposes in
view.
in
Some time elapsed before the constitutional arrangements could be effectively implemented, mainly because of the lack of suitable candidates for membership of the Councils. Pottinger acted promptly enough and on 24 August 1843, two months after the proclamation of the Charter, the names of the members of the Legislative Council were announced. They were A. R. Johnston, J. R. Morrison and William Caine. Johnston had become deputy Superintendent of Trade upon the reorganization in 1836 of the arrangements regarding the Superintendent of Trade, and he had administered the Island during the temporary absence of Sir Henry Pottinger. Morrison, the son of Robert Morrison, the first protestant missionary to China, became Chinese Secretary and
BIRTH AND EARLY PROBLEMS
27
Interpreter to the Superintendent of Trade on the death of his father in 1834, and played a notable part in the negotiations both before and after the Treaty of Nanking. Caine had come to China with his regiment, the Cameronians, in the 1840 Expedition. He had had experience in India as Deputy Judge-Advocate General and had been selected to serve as civil magistrate of the Island of Chusan during its temporary occupation; in the following year he had been appointed Chief Magistrate in Hong Kong. All were officials in the service of the Crown, two attached to the office of Superintendent of Trade under the Foreign Office and only one was therefore a colonial official. These three were also appointed members of the Executive Council, and an accompanying proclama- tion allowed them the style of 'Honourable'. That summer in Hong Kong was marked by a serious outbreak of fever and one of the many victims was J. R. Morrison, who died at Macao on 29 August, only a week after the announcement of his nomination to the Council. The following month Johnston returned to England on sick leave. The result was that the Councils as originally nomin- ated by Pottinger never met, and, because there were no local officials considered capable of filling the vacancies, both Councils remained in abeyance. Pottinger himself resided at Macao until October 1843 for the negotiations with Kiying leading to the Supplementary Treaty of the Bogue; and probably he was glad to avoid the fever-ridden Colony. Indeed it was not until January 1844, upon the arrival of Major General D'Aguilar as the General Officer commanding the garrison, that the Councils could be constituted with the bare quorum of two members, D'Aguilar and Caine. Pottinger was unable to find a suitable candidate to take the third seat; hence the instruction that the Councils were always to consist of three members, had to be disregarded. The Legislative Council in this attenuated form thus came into existence and the first Hong Kong ordinance, declaring slavery illegal in the Colony, was passed on 26 February 1844.
Home Rule for the Hong Kong Chinese?
After signing the 1842 Treaty, Pottinger remained for a time in Nanking to continue the negotiation of outstanding questions, one of which was the place to be occupied in the Hong Kong constitu- tion by the Chinese residents of the Island. This was the subject
28
GOVERNMENT AND PEOPLE 1841-1962
of lively discussion between himself and the Chinese Plenipoten- tiaries, and also, in London, between the various government departments principally concerned.
Charles Elliot's proclamation of 2 February 1841, on the occupa- tion of the Island, had promised that 'the natives of the Island of Hong Kong and all natives of China thereto resorting, shall be governed according to the laws and customs of China, every descrip- tion of torture excepted'. The same principle was laid down in the commission of the chief magistrate on his appointment in April 1841, which required this official to 'exercise authority according to the laws, customs and usages of China as near as may be . over all the native inhabitants of the said island and the harbour thereof...1
Elliot's proclamation of 2 February was disavowed by Palmer- ston2 on the ground that no formal treaty existed by which Hong Kong was ceded to Britain and that even if there had been a treaty, no cession of territory could be formally recognized until ratifica- tions had been exchanged. Elliot's promises were scarcely referred to in the discussions; the problem of the treatment of the Chinese in the new colony was debated in the context of normal British colonial policy and not upon the necessity of honouring under- takings which Elliot had had no right to give at the time.
There were four main factors in favour of giving the Chinese a special place in the constitution. It had been accepted in the Canton days that Chinese and British communities lived apart, each respecting the other's social customs and usages, and each punishing its own criminals in accordance with its own law.3 Secondly, the Chinese negotiators in the discussions at Nanking explicitly demanded that the Chinese in the ceded island should remain subject to Chinese law and Chinese imperial officials. Thirdly, the Evangelicals in England, who were influential in Parliament and indeed in the Colonial Office itself, were instru- mental in bringing to British colonial policy a humanitarian sense of the duty to safeguard the interests of indigenous peoples. The Slave Emancipation Act of 1833 and the Report of the 1837
1 The Canton Press, 8 May 1841, Macao.
* Lord Palmerston to Capt. Charles Elliot, 14 May 1841, No. 9.
The Chinese had never explicitly renounced the right to try British criminals, and the demand for the surrender of the murderer of a Chinese Lin Wei-hsi in an affray at Kowloon in July 1839 was one of the causes of hostilities.
BIRTH AND EARLY PROBLEMS
29
Parliamentary Committee on the Treatment of Aborigines in British Settlements show ample evidence of awareness of the need to protect colonial peoples. There was no pressure therefore to force the new Chinese subjects of the Queen into a British mould, but rather the opposite; there was general agreement that they should be allowed to enjoy their own customs, laws and general way of life undisturbed.1
Lord Aberdeen expressed this clearly, as already mentioned, when he sought Pottinger's opinion on the courts and judicial offices that would be needed in Hong Kong.
The three main questions involved were, the introduction into the Colony of Chinese law, its administration by Chinese officials, and the general maintenance of Chinese social customs and usages in the mixed community of Hong Kong. The prolonged debate on these points show the seriousness with which the issues were regarded, and provide evidence of a genuine desire to respect the freedom of the Chinese to continue to live as Chinese.
2
Pottinger wrote to Aberdeen as early as October 1842 that the Chinese plenipotentiaries were very anxious about jurisdiction over the Chinese inhabitants of Hong Kong 'to a degree that I had not anticipated', and he sent a translation of a letter from them dated 1 September 1842,3 in which they claimed that on the precedent set by the English in Canton in insisting upon jurisdic- tion over their own people, the Chinese, wherever they lived, should similarly be subject only to Chinese jurisdiction. Pottinger's reply was to agree that all suspects who were subjects of China should be handed over to Chinese officers for investigation and punishment but, he added, the few hundred people residing in Hong Kong 'they will of course become subject to whatever laws
'It is of interest to see that even before the definitive cession of Hong Kong, an attempt was made to allow the Chinese to control themselves. In November 1841, A. R. Johnson, who was administering the Island, wrote to Pottinger that he had made 'regulations for persons in and resorting to the Bazaar'; one of them provided that each occupier was to have one vote for the election of three Commissioners or Headmen who were empowered to make minor regulations for the good conduct of the Bazaar; one of the three was to be responsible to the Government and receive a monthly salary. Nothing more was heard of this experiment. No doubt it was just a paper scheme, and was probably not unrelated to Elliot's promises, but it clearly reveals a willingness to allow the Chinese some freedom to pursue their own way of life.
A.R. Johnson to Sir Henry Pottinger, 12 November 1841, CO 129/10. "Sir Henry Pottinger to Lord Aberdeen, 16 October 1842, No. 54, CO 129/3.
Ibid., Enclosure.
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GOVERNMENT AND PEOPLE 1841-1962
and regulations may be formed for the management of that settle- ment, but all temporary sojourners and casual traders will come under the rule stated above'.
The Chinese opposed this distinction between permanent and temporary Chinese residents in Hong Kong, and declared that Keshen, the Chinese plenipotentiary who had ceded Hong Kong in 1841, had been punished as a criminal because he had handed over Chinese persons to British jurisdiction and not because he had given up the Island. They pointed to the Chinese assistant magistrate who resided at Macao to deal with the Chinese there and suggested a similar arrangement for Hong Kong. In a sub- sequent letter,' the Imperial Commissioners argued that difficulties in the administration of justice would be removed only by adopting the principle that Chinese should be subject to Chinese and English to English; they claimed that Hong Kong had been given to the British 'as a place of residence', thereby implying that control over the Chinese there had not been granted; they also quoted the promise given in Elliot's proclamation of 2 February 1841. Pottinger replied on 17 September 18422 that Chinese nationals accused of serious crimes should certainly be handed over for trial by Chinese officials, but for lighter offences there was not the same need. He instanced large Chinese communities in the Straits Settlements and in Mauritius who were all living happily under British law. It was this correspondence that gave rise to the debate among ministers and government officials in London.
Lord Stanley opposed Pottinger's concession that Chinese accused of serious crimes should be handed over to the Chinese authorities regardless of whether they were permanent Hong Kong residents or casual visitors, 3 because of the difficulties it would create. For example, the same crime might have to be defined differently to satisfy British and Chinese legal usages, and there might be discrimination where English and Chinese were jointly accused of the same crime. He thought there was the danger that if this concession were made, the Chinese government would claim 'that Hong Kong was transferred in occupancy and not sovereignty', and there was the further obstacle that parliamentary
1 Ibid.,
Enclosure.
2 Ibid., Enclosure.
3 Colonial Office to Foreign Office (J. Stephen to H. N. Addington), 22 February 1843, CO 129/3.
BIRTH AND EARLY PROBLEMS
31
authority was required before effect could be given to Pottinger's concession. Lord Aberdeen at the Foreign Office supported Pottinger and replied1 that while the British might be embarrassed by agreeing to the Chinese demands, the Chinese would be equally embarrassed by a refusal to accept them; and he remarked that the 'Chinese government can hardly be expected to place greater reliance on British courts or on British law than the British govern- ment is willing to place on Chinese courts or on Chinese law'. He accepted Pottinger's distinction between Chinese who were domiciled in Hong Kong and those who were temporarily residing there for trade; for these latter, Aberdeen thought that a resident Chinese magistrate was preferable to Pottinger's suggested extradition procedure. Regarding permanent Chinese residents, he suggested they might be induced to renounce all claim to Chinese nationality, or alternatively, that Chinese law could be applied to them in the name of the Queen, and possibly administer- ed by Chinese magistrates paid by the Hong Kong Government; such magistrates would correspond to the British consuls dispens- ing British law in the treaty ports.
Lord Stanley replied,2 agreeing that it was impossible with any show of fairness to resist the Chinese claim to exclusive jurisdiction over persons of Chinese race corresponding to that claimed by the British over their own nationals; and he thought that Aberdeen's final suggestion of having Chinese judges acting in Hong Kong would be the best solution. Sir James Stephen, Permanent Under- Secretary at the Colonial Office, 1838-47, minuted ‘as we do, so we must expect and submit to be done by', but he added that it would be preferable not to make any distinction between transient and domiciled Chinese in Hong Kong.
The Law Officers of the Crown were consulted and advised that Chinese residents in the Colony were British subjects, who 'should not look to a Chinese court for redress against wrongs, but should at once be considered and treated as subject to the English government and to the laws which the crown of this country may think right to declare . . .'. This legal opinion was disregarded and the decision was taken to allow the Chinese to be subject
Foreign Office to Colonial Office (Addington to Stephen), 22 March 1843, CO 129/3.
Colonial Office to Foreign Office (Stephen to Addington), 30 March 1843, CO 129/3.
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