GOVERNMENT AND PEOPLE 1841-1962
to Chinese law and to restrict British law to the British and other foreigners. In April 1843 the correspondence on this subject was sent to Pottinger and he was instructed' to act on Lord Stanley's last suggestion of appointing Chinese magistrates in Hong Kong. In the following June, Lord Stanley gave Pottinger additional guidance in carrying out his duties in a dispatch2 in which the general principle that the Chinese were to be subject to their own law was clearly stated in these words: 'there will of course be in the island a large body of Chinese persons to whom the law of England would be a rule of action and a measure of right equally unintelligible and vexatious'; and it was necessary therefore that 'the laws and customs of China should supersede the law and customs of England' for the government of the Chinese residing there. But Stanley now admitted some exceptions to this principle, namely, that no law could be recognized which derogated from the Queen's sovereignty; and property and the succession to property must be regulated according to English law. He also added the further significant proviso that if any Chinese law were 'repugnant to those immutable principles of morality which Christians must regard as binding on themselves at all times and in all places then it should not be allowed within the Queen's dominions, even if pronounced by Chinese judges. This dispatch showed a manifest weakening by Stanley of his original position in that he now admit- ted a number of exceptions to the principle of Chinese law for
the Chinese.
·
·
Meanwhile Pottinger and the Imperial Commissioners continued negotiations on this subject in the course of which Pottinger apparently shifted his ground and in doing so caused the whole question to be reconsidered.
In January 1843 Pottinger reported that he had agreed with the Imperial Commissioners that the Chinese in Hong Kong should be governed by their own laws under mandarins appointed by the Chinese Imperial Government, to be stationed at Kowloon," in Chinese territory, but that he had also insisted that the British
1 Lord Aberdeen to Sir Henry Pottinger, 6 April 1843, No. 54, CO 129/3. 2 Lord Stanley to Sir Henry Pottinger, 3 June 1843, No. 8, CO 129/2. Sir Henry Pottinger to Lord Aberdeen, 21 January 1843, No. 570, CO
129/3.
A. W. Hope (Parliamentary Secretary at the Colonial Office under Lord Stanley), minuted on this 'it appears that Kowlung is not in Hong Kong itself,
but on the mainland'.
>
BIRTH AND EARLY PROBLEMS
33
must have police jurisdiction over all residents in the Colony. At the same time he admitted that the Imperial Commissioners were still very anxious that persons of Chinese race should not in any way be subject to British law or authority. Sir James Stephen was lukewarm about sending Chinese British subjects for trial out of the Queen's dominions and commented 'if it be right to establish such an innovation, I think the safest way of doing it will be to rely on the local legislature of Hong Kong'.
As the negotiations dragged on, Pottinger moved even further from his original position. In June 1843, he wrote to Lord Aberdeen1 that his secretary, Malcolm, had just arrived from England with the ratification of the Treaty of Nanking and had reported opinion in Whitehall as against granting the Chinese the right to be subject to their own law officers on account of the difficulties involved. He decided therefore to make a stand for British jurisdiction over all the Chinese residents in Hong Kong, but without going to the length of making it a sine qua non in the negotiations. He enclosed a memorandum he had sent to the Imperial Commissioners stating the principle that Hong Kong must be subject to British jurisdic- tion, and all Chinese who objected would be allowed to leave the Island with full compensation for their houses and lands. Pottinger now claimed that without this jurisdiction over the Chinese, the cession of Hong Kong would be incomplete, and not in accord with Article III of the Nanking Treaty.
To this memorandum, Kiying, who had just assumed control of the negotiations on behalf of the Manchu Government, replied that the principle that the Chinese were to be subject to Chinese law and the British to British law, had already been agreed to in writing, and he justifiably accused Pottinger of changing his ground. He argued that the resident and visiting Chinese were the same people, and if it were right that the British should not be subject to the laws of China, 'it was a thing of the same nature' that the Chinese should be equally unwilling to obey the laws of England. As for Article III of the Treaty, Kiying contended that it was not therein provided that its inhabitants should become English people'.
Pottinger's dispatches and the communications between himself and Kiying were scent by Lord Aberdeen to the Colonial Office for
1 Sir Henry Pottinger to Lord Aberdeen, 13 June 1843, No. 90, CO 129/3.
34
GOVERNMENT AND PEOPLE 1841-1962
comment. Sir James Stephen minuted, 'on the question of the jurisdiction of British judges and courts over Chinese resident in Hong Kong, it seems to me that the Chinese High Commissioner has the best of the argument'. He said this was an international and not a colonial matter, and that the decision should rest with the Foreign Secretary, Lord Aberdeen; but he remarked that 'the exclusion of all Chinese authority from Hong Kong is highly desirable if it be attainable justly and peaceably'. Lord Stanley remarked cryptically 'I do not see that my interference would be productive of anything but confusion'.
The upshot was that the proposed appointment of Chinese judicial officials to administer Chinese law in Hong Kong was dropped, their residence in the Colony or in Kowloon for this purpose being equally unacceptable.
The British Government did not object in principle to the existence of extraterritorial rights by which the officials of one nation operated in the territory of another;1 rather the fear was that the Chinese would claim a limited sovereignty over the island as they did over Macao. More important, the reports of prevailing lawlessness showed all too clearly that a strong hand was necessary in the suppression of crime. The Supplementary Treaty of the Bogue (8 October 1843) therefore contained no provision for the administration of Chinese law in Hong Kong by Chinese officials. Clause 9 merely provided for the mutual extradition of criminals, to prevent the mainland criminals from taking refuge in Hong Kong
and vice versa.
It was of course possible to recognize Chinese law without necessarily appointing Chinese imperial magistrates to administer it. In the autumn of 1843, a case came before William Caine, the British Chief Magistrate, in which seven local Chinese were accused of murder by a Chinese who made his complaint to the Chinese magistrate at San On on the mainland. Caine thought that Chinese prisoners against whom a case had been made out should be sent to the San On magistrate for trial, but Pottinger disagreed. In a letter to Lord Aberdeen,2 Pottinger claimed that 'the Chinese
For example, in an earlier letter to Sir Henry Pottinger, 31 May 1841, on the subject of Elliot's proposal, in the 'Convention' of Chuenpi, that Chinese customs officials should continue to collect customs dues in Hong Kong exactly as if the trade were carried on at Whampoa, Palmerston accepted this in principle
and gave examples where similar arrangements were operating.
2 Sir Henry Pottinger to Lord Stanley, 9 December 1843, No. 27, CO 129/2.
BIRTH AND EARLY PROBLEMS
35
Government have tacitly waived the right they first claimed of trying all persons (i.e. residing on the Island of Hong Kong) who might be charged with capital and other serious crimes'. He sug- gested that such cases ought to be committed for trial by the Supreme Court judge if, after enquiry by the British magistrate, sufficient evidence of guilt existed. In the event, the accused were set free for lack of evidence. Lord Aberdeen justifiably observed in reply1 that it was not at all clear that the Chinese had renounc- ed their claims and he asked for further information, but added that Pottinger should not provoke discussion on this matter.
The problem, still unresolved when Sir John Davis succeeded Pottinger as Governor in the early summer of 1844, was made all the more urgent because of the prevalence of crime. Davis attri- buted this to the triad societies, which he described as patriotic societies directed against foreign Manchu rule. He concluded that crime would diminish if the Chinese were placed under their own laws, dispensed by Chinese officials. He drew up an ordinance appointing Chinese unpaid officials called, Paouchong and Paou- cheng, to assist in controlling the Chinese through regulations made by the chief magistrate. But he soon changed his mind on the main issue of having Chinese law for the Chinese.
The struggle to maintain law and order induced the Governor to introduce transportation for the worst offenders, and to suppress the triad societies. Kiying protested against the transportation of Chinese, and alleged that members of Triad Societies were really fugitive criminals who should be sent back to China in accordance with the Treaty of the Bogue. He again urged that Chinese subjects should be tried only by Chinese mandarins. Davis refused this demand and replied that he was quite willing to carry out the treaty, but he pointedly asserted that Chinese were not compelled to live in Hong Kong and if Chinese committed offences there against British law they must have the same treatment as British subjects and that it would be impossible to govern Hong Kong otherwise.3
1 Lord Aberdeen to Sir Henry Pottinger, 26 March 1844, No. 30, CO 129/8. Sir John Davis to Lord Stanley, 1 June 1844, No. 10, CO 129/6. Triad Society (Sam Hop Wui) from the three principles, Heaven, Earth and Man, began as a secret anti-Manchu political society, but at this time its activities were directed more to assisting and protecting its members.
Sir John Davis to Lord Aberdeen, 11 January 1845, No. 6, CO 129/11,
enclosures.
and
36
GOVERNMENT AND PEOPLE 1841-1962
The question of the introduction of Chinese law into the Colony was posed as a definite concrete issue when the Supreme Court was set up by local ordinance1 in 1844. The principle was that the law of England as at 5 April 1843 was to prevail in Hong Kong except where inapplicable, but on the side of criminal jurisdiction, the ordinance gave power to punish Chinese criminals according to the laws of China. Sir James Stephen criticized these arrange- ments, in a long minute, as showing 'little skill or perspicuity'. He regretted that Sir John Davis had not adhered more closely to the New Zealand Act which had been sent to him as a guide, and feared that to punish the Chinese according to Chinese law gave 'a hazardous discretion'. Lord Stanley agreed that amendments and explanations should be called for, particularly in the use of Chinese punishments.
3
Replying to these criticisms, Davis pointed out that Chinese punishments, such as caning with the rattan, wearing the cangue, and cutting the queue, had been used in the Colony because the more lenient English penalties were ridiculed by the Chinese, who were poor and so could not be fined and whose standard of living was so low that a spell in prison was a boon rather than a punish- ment. Stephen minuted that this was 'one of those insoluble problems that flow out of the anomalous position of Hong Kong'; British law had no terrors for the Chinese, yet there is no possibility of enforcing their laws by British courts and officers without a compromise of principles which we are bound to maintain inviolate. I do not know how these conflicting obligations are to be recon- ciled . . . no sagacity can discover a path to which plausible and well-founded objections may not be raised'. He argued that effective restraint and a government not to be trifled with are objects of such primary importance that it is worth while to secure it even at the expense of adopting a policy the most opposed to our feelings and prepossessions'. So, 'not knowing how to suggest anything better', he advised that Davis' proposals should be upheld. In extenuation of the principle of having the power to inflict Chinese punishments,
1 No. 10 of 1844.
2 Sir John Davis to Lord Stanley, 21 October 1844 (Ordinance enclosed),
CO 129/7.
3 Ibid.
4 Sir John Davis to Lord Stanley, 8 March 1845, No. 24, CO 129/11. wooden frame fastened around the neck to prevent the wearer from resting. The cangue, from Portuguese canga meaning a yoke, was a large square
BIRTH AND EARLY PROBLEMS
37
Davis explained' that 'it is however never likely to be exercised by the court and therefore better expunged', but the power remained,
That the interests of the Chinese needed safeguarding is shown by an ordinance passed in 1846 greatly extending the scope of summary jurisdiction of the courts and restricting the right of appeal to the Supreme Court to Europeans. It also adopted much more of Chinese criminal law. Earl Grey objected to the confining of appeals to Europeans and opposed 'the indiscriminate adoption of the penal system of a people, who, however advanced in the arts of civilization, differ as widely as from ourselves'. Davis had to amend his proposals to give the Chinese the same right of appeal as others, and to curtail the maximum penalties to be inflicted by the Justices of the Peace and magistrates.3
The attempt to give the Chinese their own administrative officials was equally half-hearted. It has already been mentioned that Sir John Davis framed an ordinance in 1844 setting up local officials called Paouchong and Paoucheng. Lord Stanley following Sir James Stephen's advice, gave a non-committal reply to this pro- posal saying that he had no means of judging how far it was possible to enforce their decisions and he demanded more detail. Davis explained they were unpaid Chinese officers, with the function of assisting the police in such matters as rioting, thefts, robberies, smuggling, illegal assemblies and registration. They clearly had very little power and little incentive to perform their honorary but onerous duties; Eitel says the ordinances were never put into operation, and the records of the Colonial Office are silent on the working of this experiment. It is probable therefore that these offices soon became defunct. An attempt was made to revive them in 1853, when a new ordinance was passed by Bonham giving the peace officers appointed under the 1844 act, and now referred to as ti-paos, power to settle civil disputes among themselves since the Chinese found the Supreme Court procedure expensive and difficult to understand. The ordinance was to operate only
1 Sir John Davis to Lord Stanley, 16 July 1845, No. 100, CO 129/12.
* Sir John Davis to Gladstone, 12 September 1846, No. 108, CO 129/17.
* Sir John Davis to Earl Grey, 11 September 1847, No. 98, CO 129/21.
• Ordinance No. 13 of 1844.
E. J. Eitel, Europe in China, Kelly & Walsh, Hong Kong 1895, p. 435- No. 3 of 1853-
38
GOVERNMENT AND PEOPLE 1841-1962
where the Chinese ratepayers petitioned for it, and the ti-paos were to be paid from a fund derived from the assessment of the ratepayers. The ti-paos were given power to settle all civil disputes if the disputants declared before a Justice of the Peace their willing- ness to abide by his decision, or they could if preferred, bring the case before the courts in the usual way. The scheme did not work well and, in 1861, was dropped by Sir Hercules Robinson and the protection of the Chinese became a matter of concern to the Colonial Office and to the local colonial administration.
Sir John Bowring, Governor 1854-1859, initiated the policy which ultimately was adopted in regard to the protection of the Chinese, when in 1858, he recreated the office of Registrar-General with the additional title of Protector of the Chinese.
To sum up, the Home Government was ready to allow the Chinese to live under their own law administered by their own judicial officers; but this liberal policy was opposed by both Pottinger and Davis, the men on the spot, mainly because each felt he could not make headway against crime unless British courts were in full control. Chinese social customs presented less difficulty and were respected except where they conflicted with local
ordinance.
The whole problem was ultimately solved in a typically British empirical manner along lines suggested by Sir James Stephen, who thought it better to leave such problems to the Legislative Council proceeding by way of local ordinance with the safeguard of review by the Colonial Office.
CHAPTER III
THE QUESTION OF REPRESENTATION 1843-59
First Unofficial Members of the Legislative Council, 1850 POTTINGER resigned in the summer of 1843 and remained in the Colony until his successor, Sir John Davis, arrived in May 1844. He felt that in bringing hostilities to a successful conclusion he had completed his mission and he now hoped to return to India with the prospect of preferment in the East India Company's service. His popularity vanished after the terms of the Treaty to the Bogue became known because its clauses restricting Hong Kong's trade with China to the open ports and imposing joint Anglo-Chinese controls over the junk trade were considered to be injurious to the Colony's economic well-being.
The circumstances which had forced the paring down of the Legislative Council in size to the minimum of two, did not have any corresponding effect upon its legislative output and Sir Henry Pottinger earned the soubriquet 'Sir Henry Notification'.' In the organization and work of the Legislative Council, Pottinger received from the Colonial Office a number of precedents for his guidance, including copies of ordinances passed by the Legislative Councils of the Cape of Good Hope and Western Australia, some imperial acts which dealt with police matters among others, and a copy of the standing orders of the Legislative Council of Ceylon. His main difficulty was that he had no competent officials to assist him in setting up the administration, particularly law officers, and thus the drafting of the early ordinances gave rise to much criticism at home. Sir James Stephen minuted on Pottinger's dispatch sent with the first ordinances, that they 'must I presume, be judged leniently'.
The first ordinance passed by the Hong Kong Legislative Council was one to prohibit slavery in the Colony, but it had to be disallowed because this had already been effected by the British Parliament in the Slave Emancipation Act of 1833, which applied to all British possessions. The other ordinances were also severely
1
J. W. Norton Kyshe, The History of the Laws and Courts of Hong Kong, Hong Kong 1898. Vol. 1, p. 50.
* Sir Henry Pottinger to Lord Stanley, 20 April 1844, No. 29, CO 129/5
40
GOVERNMENT AND PEOPLE 1841-1962
criticized. Pottinger was not entirely without assistance for in June 1843, R. Burgass, a barrister practising in Bombay, 'happening to come to China'1 as Pottinger naïvely phrased it, was given the temporary appointment of legal adviser to the government and Clerk of the Councils. Burgass came from the same part of Ireland as Pottinger, and his arrival in the colony may not have been so fortuitous as the Governor made out.
2
On 7 May 1844, Sir John Davis arrived in Hong Kong, as Governor, Superintendent of Trade and Plenipotentiary in succes- sion to Pottinger. He was accompanied by a number of officials recruited in England for senior posts in the Colony's administra- tion. Thus almost twelve months after the proclamation establish- ing the Colony, there was an adequate staff of officials from which to select suitable members of the two Councils. In this matter Davis exceeded his instructions. He criticized the existing Legislative and Executive Councils on the ground that they were composed of the same two people and were too few in number. He interpreted his instructions regarding the composition of the councils, which laid down that they 'shall always consist of three members', as meaning a minimum of three, and he therefore increased the Legislative Council to five, consisting of the Major General in Command, the Chief Justice, the Colonial Secretary, the Colonial Treasurer and the Chief Magistrate, besides himself as chairman. He also nominated four members to the Executive Council, namely, the Major General, Colonial Secretary, Attorney-General and Chief Magistrate. In the same dispatch he said that it was not possible to nominate to seats on the Councils any one except officials because 'almost every person possessed of capital who is not connected with government is employed in the opium By this chance remark it appears he had considered the possibility of making nominations from among those who did not hold any official appointment, if only he had found candidates not in the contraband trade. There was nothing in the Hong Kong Charter or in his Instructions to prevent him making such an appointment, although he must have known that the Home Government's policy was to restrict membership of the Councils
trade. 3
to officials.
1 Sir Henry Pottinger to Lord Stanley, 13 November 1843, No. 23, CO 129/2. * Sir John Davis to Lord Stanley, 13 May 1844, No. 4, CO 129/6.
a Ibid.
THE QUESTION OF REPRESENTATION 1843-59
4I
Sir James Stephen in a minute on Davis's dispatch said that he could not see how the Governor's Instructions could bear the inter- pretation Davis had given them, and repeated that the government's policy had been to keep the Councils deliberately small, namely three with a quorum of two, plus the Governor, to give the latter greater authority and allow him all the more easily to choose his co-adjutors. Lord Stanley agreed, and Davis was therefore told to reconstitute the Councils in accordance with his original instructions. Davis in reply admitted his error, and in May 1845, on the receipt of Stanley's ruling, he re-organized the Councils so as to have three each in number additional to himself as chairman. The Executive Council now consisted of the Major General Commanding (as Lieutenant-Governor), the Colonial Secretary and the Chief Magistrate, and the Legislative Council comprised the Major General, the Chief Justice and the Attorney-General.2 A. W. Hope, the Parliamentary Under-Secretary to Lord Stanley, minuting on this dispatch, questioned if a Legislative Council of three were adequate. Sir James Stephen again argued that it was barely possible to err on the side of reducing the size of the Council, and thought that the Governor could bring all the local experience 'at and to its deliberations', and contended that a large Council was useless as weakening responsibility without adding any free or popular element, 'for which kind of principle there is no scope'. The arguments of Stephen prevailed and the reconstituted councils were accepted by Lord Stanley1 in September 1845. It had taken just over two years to get the membership of the two Councils
settled.
Davis also reported that he had separated the Executive and Legislative Councils, which 'had been blended under Pottinger'.5 Evidently Pottinger had conducted the councils as one body, as a single undifferentiated council such as had existed at one time in Ceylon and Mauritius, and indeed the early minutes do not show them as separate bodies. Under Davis, the two Councils became clearly differentiated as the Executive and Legislative Councils.
1 Lord Stanley to Sir John Davis, 3 February 1845, CO 129/6.
Sir John Davis to Lord Stanley, 20 May 1845, No. 62, CO 129/12.
3 Ibid.
Lord Stanley to Sir John Davis, 21 September 1845, No. 142, CO 129/12. * Sir John Davis to Lord Stanley, 24 July 1844, No. 42, CO 129/6. 'CO 131/1 for the minutes of the Councils for the year 1844.!
42
GOVERNMENT AND PEOPLE 1841-1962
The restriction in the size of the Legislative Council to three had been defended on the ground that it strengthened the position of the Governor; and his power of initiation and of overriding decision made it clear that though the members of the legislature voted legislation, their real function was to advise the governor, who was himself the legislative authority, since he had both the first word and the final say.
It might be assumed that the Legislative Council was just a rubber stamp, but an incident in 1846 proved that this was not so. To Sir John Davis fell the unpopular task of organizing the Colony's public finances; the measures he took to secure a public revenue aroused great opposition among the inhabitants who believed that the Governor was hurrying towards premature financial self- sufficiency in the Colony at the bidding of the Colonial Office at home. One of his proposals, made in May 1846, to tax imported wines and spirits, met with the unanimous opposition of the Legislative Council on the ground that the revenue expected would not be worth collecting, and that such a tax would be contrary to the proclamation which had declared Hong Kong a free port. Davis maintained his ground and sent the proposed ordinance to the Secretary of State for approval, together with the dissentient opinion of the three members of the Council. Sir James Stephen thought it was quite impracticable to accept the proposal if all the Legislative Council were against it; Benjamin Hawes, the Parlia- mentary Under-Secretary (1846-51), advised that the Governor should be supported against the Council, but Gladstone, then Secretary of State (1845-46), ruled that it was impossible to go against the unanimous wish of the Legislative Council. The power of the Governor to override the council was not therefore upheld, and there is no instance in the records of the Council of its use. Davis' successor, Sir George Bonham1 arrived in the Colony in March 1848 and made an immediate change in the Legislative Council by replacing the Major General by the Colonial Treasurer, retaining the Chief Justice and Attorney-General. Comment was made in the Colonial Office that since the General was also Lieuten- ant-Governor he ought to be on the Council and that it was hardly
1 Sir Samuel George Bonham (1803-1863), Governor of the Straits Settle-
ments 1837-1847, Governor of Hong Kong 1848-1854-
* Sir George Bonham to Earl Grey, 28 August 1848, No. 67, CO 129/25.
THE QUESTION OF REPRESENTATION 1843-59
43
necessary for both the Judge and the Attorney-General to have seats there, but Bonham's change was accepted.
The most important event in Bonham's administration was the addition in 1850 of two unofficial members to the Legislative Council. The origin of this important constitutional change lay in the recommendations of the 1847 Select Committee of the House of Commons on the China Trade.
The proclamation of Hong Kong as a British Colony in the summer of 1843 was followed by a period of unrestrained optimism over the economic prospects, which was encouraged by Pottinger's frequent references to the Colony as destined to become the great emporium of the East. When the Colony's trade failed to develop as anticipated the mood changed to one of despondency. This ripened into open hostility when Sir John Davis began to raise revenue by creating monopolies and farms, and levying rates on property for police and other local services regarded as municipal in character. Robert Montgomery Martin' the Colonial Treasurer, wrote a bitter report in which Governor and Colony were both thoroughly castigated. Land values fell and many holders, particu- larly the speculators, renounced their allotments of land.
The merchants presented a memorial to the Secretary of State, dated 13 August 1845;2 inter alia, they complained of Davis's revenue measures, roundly condemned as unconstitutional an ordinance to impose rates, and called for some form of municipal self-government. They made this demand for a measure of self- government largely on financial grounds, to enable them the better to resist Davis' financial impositions. They asked the Home Government to contribute more generously towards the expenses of a colony which they claimed was held for imperial interests connected with the whole of the China trade, and not those of the Colony alone. These complaints and signs of dissatisfaction led in part to the official enquiry of 1847.
The 1847 Select Committee showed decided sympathy with the views of the merchants. After reviewing the whole China trade, it made the following observations on Hong Kong:
Robert Montgomery Martin, published a History of the British Colonies, and Statistics of the Colonies, 1838, founded the Colonial Magazine, 1840. He was Colonial Treasurer of Hong Kong, May 1844 and resigned, July 1845.
Enclosed in Sir John Davis to Lord Stanley, 20 August 1845, No. 114, CO 129/13.
44
GOVERNMENT AND PEOPLE 1841-1962
Inconvenience appears to arise also from the dependence of the Governor on two Departments of administration at home. As Governor of a Colony, he is responsible to the Colonial Office; as in a manner representative of the Crown to a Foreign Court and Super- intendent of Trade, to the Foreign Office. It would be well if this relation could be simplified.
We would also recommend that some short Code should be drawn up for the more convenient administration of justice, as a substitute for that general reference to the Laws of England, 'as far as they are applicable to the case', which in this, as in some other Colonies, is the sole rule of guidance, and creates much confusion and embar- rassment. That drafts of all new laws and regulations of an urgent nature, should, as in India, be published for three or six months before they are finally enacted. That a share in the administration of the ordinary and local affairs of the Island should be given, by some system of municipal government, to the British residents. The Select Committee's recommendations were gradually implemented over the next few years and will be referred to again. Their immediate effect was to encourage the merchant community in Hong Kong to renew their demands for relief from financial burdens and for constitutional reform. The first concession was gained in 1849 when an extension of the period of the land leases from 75 years to 999, virtual perpetuity, was conceded. The constitutional concessions did not come without some further pressure being applied. In January 1849, the leading inhabitants of the Colony sent a petition to Parliament alleging that despite repeated representations to H.M. Government, nothing had been done to implement the 1847 Select Committee's Report, except in the matter of leases; they particularly pointed out that no share in legislation had yet been given by either elected or nominated representatives of the inhabitants in the Council.
Progress in implementing the findings of the report had been slow because of the change of governor in 1848, and because Bon- ham during his first year of office had been preoccupied with a detailed investigation into the colonial establishment which he had been instructed to make with the object of effecting a thorough- going retrenchment. This had left him little opportunity to tackle
constitutional reform.
Bonham sent home a copy of the petition,' of which, he acidly observed, he was aware only through seeing a copy in the local
1 Sir George Bonham to Earl Grey, 26 February 1849, No. 22, CO 129/28.
THE QUESTION OF REPRESENTATION 1843-59
45
press. With regard to the demand for a share in the local adminis- tration 'by some form of municipal government', he pointed out the vagueness of this phrase and referred to the financial difficulties regarding the institution of municipal government. His arguments are summarized in the next chapter.
With regard to the petitioners' complaint that they were excluded from any share in legislation, Bonham said that he saw no objection to the nomination of two principal local inhabitants to seats in the Legislative and Executive Councils. He thought such members would be advantageous because they would provide information which would be useful to government, the residents could make their wishes known through them, and they would assist the government to explain its policy to the community. Bonham then definitely proposed that two unofficial members should be nomin- ated to each of the two Councils. Earl Grey, Colonial Secretary (1846-52) accepted the principle of nominating two unofficial members to the Legislative Council,' 'when you consider the time has arrived for making this change', but would not approve similar appointments to the Executive Council; for this differentiation, he gave no reasons.
The friendly and easy-going Bonham proceeded to make the nominations in a characteristic way. In December of this same year, 1849, Bonham wrote that he found it difficult to decide on the two nominees and 'judged it more satisfactory to the public' to allow the Justices of the Peace to suggest 'the names of two gentlemen whom they thought most eligible'. So, ‘after a consider- able interval', the 'assembled justices, 16 in number, suggested the names of David Jardine and J. F. Edger', which Bonham then forwarded as his own nominations. There was no question of setting up an electoral body. The unofficial members were appointed by the Crown on the nomination of the Governor, and holding their seats on the Council at the royal pleasure. This informal. procedure sprang from the close personal relations between Bonham and the leading merchants, for he was the first Governor to have easy social relations, and under him local society frequented Government House for the first time. Besides he had just revived the practice begun by Pottinger, but which had lapsed under the unpopular Davis, of appointing unofficial Justices of the Peace,
1 Earl Grey to Sir George Bonham, 11 July 1849, No. 128, CO 129/28. * Sir George Bonham to Earl Grey, 15 December 1849, No. 115, CO 129/30.
1
46
GOVERNMENT AND PEOPLE 1841-1962
and they were his own nominees. His method of proceeding was capable of being misunderstood, and Bowring, the next Governor, thought election by the Justices a matter of right. Earl Grey raised no objection, and Jardine and Edger took their seats for the first time, the first unofficial nominated members, on 14 June 1850.
Sir John Bowring and the Legislative Council, 1854-59
Sir John Bowring arrived in the Colony in April 1854, as Plenipotentiary, Superintendent of Trade and Governor of Hong Kong, the latter post being held in name only. His standing was therefore at first very different from that of his predecessors because of this drastic change in the status of the governorship, of which Bowring was, temporarily as it proved, the first and only victim. The novel arrangement had been made abundantly clear to him and he had accepted it; but naturally he was dissatisfied with only half the authority, and incidentally half the salary, of his predecessor; and he began to interfere with the way in which William Caine, the Lieutenant-Governor conducted the govern- ment of the Colony. This led to a dispute between the two men which was referred to the Secretary of State, and although Bowring was unquestionably in the wrong, Palmerston upheld him, and condemned the compromise of a purely nominal governorship as ‘an administrative solecism'.1 On 25 June 1855, Bowring assumed full control of the colonial administration and Caine became nominal Lieutenant-Governor, with the additional title of 'Senior Member of the Legislative Council' as some compensation.
Bowring was full of reforming zeal. He had spent a year in the Colony, 1852, deputizing as Superintendent of Trade for Bonham who was on leave, but without any official position in the colonial government. His observations led him to believe that there were many local abuses which demanded a strong reforming hand, and it was therefore particularly frustrating when he returned in 1854, to find himself still a comparative spectator, this time as titular governor. In a series of private letters to Sir George Grey, first holder of the recently revived post of Secretary of State for the Colonies, with whom he was personally acquainted, he outlined his criticisms and proposals for reform. A friend of Bentham and
1 Palmerston's minute of 15 April 1855, on dispatch of Caine to Sir George Grey, 14 February 1855, No. 19, CO 129/49-
THE QUESTION OF REPRESENTATION 1843-59
47
a philosophical radical, Bowring wanted to make the local legislature the instrument of reform, for which purpose he wanted it to be increased in membership, and made at least partly elective so as to be representative of the community, and less the tool of the Governor, as he thought it had been. To Bowring, reform of the existing Legislative Council was the essential condition for the success of his other projected reforms.
In his first private letter to Sir George Grey, dated 24 January 1855,1 he wrote that he was gradually ‘giving importance to the Legislative Council as an instrument of great value. I found it an absolute nullity and that it had never been consulted by my predecessors on the all-important questions of income and disburse- ment', with the result, he said, that David Jardine, 'the only non-official of any weight, had ceased to attend'. This observation of Bowring was not surprising, since, though specific taxes were imposed in the form of an ordinance, there was as yet no provision for passing the annual financial budget in this form; further, the Council's standing orders did not permit the members to initiate any resolution.
That the Legislative Council was 'an absolute nullity' is highly unlikely. The Council minutes? which were sent to the Secretary of State every six months, naturally give no more than the bare record of what was resolved. Of debate they show no sign, but this does not prove there was none. Bonham was on good terms with his subordinates as well as with the merchant community, and since he consulted the Justices of the Peace on the nomination of the unofficial members of the Council, it is unlikely that consul- tation was halted in the council chamber, though the real discus- sions may well have taken place in a more informal atmosphere outside. In the same letter, Bowring said he hoped to reform abuses and make salutary changes by using the small amount of popular principle already introduced, and by strengthening and extending it to satisfy public opinion. He was referring to the nomination of the two unofficial members of the Legislative Council by the Justices of the Peace without realizing that that was an informal arrangement by Bonham, and did not denote any 'popular principle'.
Bowring thus, early in his administration, announced his inten- tion to change the character of the Legislative Council, and to the
1 CO 129/49.
3 CO 131 series.
I
48
GOVERNMENT AND PEOPLE 1841-1962
legitimate annoyance of Caine, he claimed the right of presiding over its deliberations. In a later private letter to Grey he suggested that its membership should be increased, that there should be greater publicity over the disposal of public funds, and that the Chinese section of the population should have 'special consideration as the source of the present and future prosperity of the island'. Since Grey left the Colonial Office in February 1855, these private letters ceased to carry much weight, and the reaction of the Colonial Office was to wait for Bowring to make specific proposals.
It was not kept waiting long, for soon after his assumption of the full governorship, Bowring brought forward his plan for 'a safe and satisfactory scheme' of legislative reform.1 In a brief introduc- tory note, he emphasized that the Colony was now financially self-supporting and explained that he wanted the Legislative Council enlarged so as to be more representative of the community whose interest and support he was anxious to enlist in meeting the cost of his projected expansion of education, public works and public amenities.
He proposed that the Legislative Council should consist of eight officials, the Governor, Lieutenant-Governor, Chief Justice, Colonial Secretary, Attorney-General, Colonial Treasurer, Surveyor-General, and Chief Magistrate plus five unofficial
members. The latter were to be elected for a term of three years by the registered holders of Crown leases and all five were to be bona fide British subjects. He observed that as H.M. Government had decided that the two existing unofficial members should be selected from the bench of Justices of the Peace-a statement which showed a complete misunderstanding of Bonham's arrange- ment-he felt bound by this decision. He therefore proposed that at least three of the five unofficial members should be chosen from among the Justices of the Peace, leaving only two to be freely elected. The essential condition was that all five should not be holders of official positions in the administration. All registered holders, of an undivided lot of land leased from the Crown, regardless of race, who paid a minimum annual rental of £10 were to be entitled to a place on the electoral roll. For this the Sheriff was to be responsible, having to deal with all applications and objections, and to prepare a voters' list three months before an
1 Sir John Bowring to Lord Russell, 2 August 1855, No. 110, CO 129/51.
49
THE QUESTION OF REPRESENTATION 1843-59
election. The list was then to be placed before the Executive Council for final decision, and the revised list of electors published ten days before the election. Each elector had to take the oath of allegiance, and, if demanded by any elector, an oath against the use of bribery. Successful candidates were to hold their seats for three years, and in the event of a vacancy, the Governor was to have discretionary power to decide on a new election or to allow the seat to remain vacant. The rules of the Legislative Council were to be revised and brought more into line with those of public councils in England. A British consular representative was to have the right to attend the meetings of the Council when legislation affecting British subjects in China was being debated. The Governor was to preside and have a casting vote. In his covering letter Bowring suggested that publicity for the council debates would be beneficial, but he did not incorporate this suggestion in his scheme.
Herman Merivale, the Permanent Under-Secretary (1848–59) pointed out in a minute on Sir John's dispatch that there was only one Legislative Council which combined elected members with an official majority, that of Malta; he favoured Bowring's plan but thought that the electoral arrangements were not clear, particularly in regard to the Chinese and non-British foreigners, The Secretary of State, Lord John Russell, asked for more informa- tion about the proposed electoral body, regarding its number, the proportion it bore to the whole population, the number of European voters compared to the number of Chinese, and length of residence as a voting qualification. He also asked for details of the method by which the election of the three Justices of the Peace was to be ensured. He criticized the proposed decision of electoral claims by the Executive Council and thought these should go before an impartial judicial committee. In fact Russell was lukewarm and declared that he was 'not prepared to assent to the opinion that such a change such as you have suggested would at the present time conduce to the better government of the Island.
+
1
In reply to the demand for a more detailed explanation of his proposals, Bowring answered that his object was to get a popular clement in the Legislative Council 'which should represent public opinion with its contribution of local information, its demands for
Lord John Russell to Sir John Bowring, 23 November 1855, No. 2, CO 129/51.
2 Sir John Bowring to H. Labouchere, 26 March 1856, No. 49, CO 129/55,
50
GOVERNMENT AND PEOPLE 1841-1962
•
improvement, its interest in social reform. .'. He said he did not want the infusion of a large elected element, but objected to 'its utter exclusion', and he was willing to purchase it by having more official members, and argued that action should not be delayed until the need of reform produced a popular clamour. He criticized the existing Legislative Council because it was not acquainted with the concerns of the Colony, it did not debate the Blue Book (annual statistical report), it could not initiate legislation, and the annual estimates were not placed before it. He thought the Legislative Council should have some control over finance, particularly since parliamentary aid was no longer needed, and the revenue expended was raised entirely by local taxation. He said he had put his last budget on the table and invited observations of the Council. members, without submitting it to a vote.
Bowring was propounding the constitutional doctrine that where a Crown Colony was financially self-supporting, it should be allowed free discretion in the allocation and control of its own funds; that is, that the basis of the control by the Secretary of State was the existence of a parliamentary grant for the administration of which he was responsible. This was a novel colonial doctrine, though a logical extension of the traditional English constitutional maxim that redress precedes supply.
But Hong Kong was in fact only beginning to be financially self-sufficient. In 1854 it had been decided that the parliamentary vote to Hong Kong 'should be limited to the provision of the salaries of three of four of the principal officers of the Colonial Government',1 and that 'it will be for the local government to defray out of colonial resources the whole remaining expenditure of the Colony'. In 1855 Bowring announced that no imperial subvention would be needed, and that the Colony was self- supporting; yet when the war against China came in 1857, the Governor had once more to go cap in hand to the Home Govern-
ment for financial assistance.
Bowring admitted that official opinion in the Colony was against his scheme, and that Mercer, the Colonial Secretary, had said that the policy of adding two unofficials to the Legislative Council had failed, 'as had been predicted'. The Governor disagreed, pointing out that Edger attended regularly, and Jardine attended 'when
1 Duke of Newcastle to Sir John Bowring, 10 March 1854, No. 7, CO 129/43·
THE QUESTION OF REPRESENTATION 1843-59
51
important matters were being discussed', as his time was 'too valuable for trivialities'! Bowring thought the members of the Council should be responsible to the community and that the exclusion of non-British persons from the list of voters would be unpopular and unwise. British interests were amply secured by the provision that all candidates for seats on the Council must be British by birth or naturalization; and that if there were eight officials and three Justices of the Peace, that would in any case leave only two to be freely elected. He said he would be glad to associate the Chinese more closely with the work of the govern- ment, and suggested the possibility of bringing them in on an educational test. It was one of Bowring's weaknesses to throw out his suggestions for reform in this tentative way, avoiding definite clear-cut proposals. Regarding the electorate, he estimated 'the whole number of electors should be only 75 or practically only 45'. Those who leased land at an annual rent of £10 or more comprised 69 British, 42 Chinese, and 30 other foreigners. As a matter of interest and for comparison he gave the numbers of those paying police rates of £10 a year; they totalled 1,999, of whom 1,637 were Chinese, 186 British and 176 other foreigners. He proposed to secure the election of three Justices of the Peace by the simple expedient that each elector, handing in his list of names, should be disqualified if there were not the names of at least three Justices of the Peace upon it.1
All the Colonial Office officials minuted against Bowring's proposals, on the ground that the non-British element was too numerous to be left out and that an elected council would soon usurp financial control. Labouchere, who succeeded Russell as Secretary of State for the Colonies, noted briefly, 'I have no wish to try the experiment', because, 'a small change was not worth making and the proportion of Chinese and Foreign to British was conclusive against any big change'. He replied in a long dispatch2 fully outlining the views of the Government on the question of clectorates in the colonies and particularly in Hong Kong. He wrote of the Chinese, that the 'testimony of those best acquainted with them represent the Chinese race as endowed with much intelligence but as very deficient in the elements of morality', and
A pencilled minute against this in the margin reads, 'How in the world would this do it unless you forced them to vote for all five'.
2
Labouchere to Sir John Bowring, 29 July 1856, No. 82, CO 129/55.
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GOVERNMENT AND PEOPLE 1841-1962
thought that education had not made such progress in the Colony as to encourage him to think that the next generation would do any better. "The Chinese have not yet acquired a respect for the main principles on which social order rests', he averred. The British were few and not permanently resident, and if they alone had the vote, the effect would be to give power over the permanent population to a small number of temporary residents. Labouchere argued that if the aim of the proposals was to assist the Governor in eliciting public opinion, that could be done without electoral reform; he thought elections could be defended only if they were intended to be a transitional step to give the Legislative Council full powers.
Labouchere further argued that 'the peculiar position of Hong Kong' was another obstacle. The island was held not because of its own advantages but 'simply as subsidiary to the intercourse between the Chinese and British Empires', and 'great commercial interests and the future progress of civilization throughout the East are to a great extent involved in the maintenance of British rule and of orderly government in Hong Kong'. There were also the complicating factors of internal insecurity and lawlessness, and of proximity to China. He considered that there was no reason why the Island's affairs should not be conducted with the greatest regard to the feelings and interests of the Chinese population, and suggested that competent Chinese should be considered for adminis- trative posts in the Hong Kong Government and for membership of the Legislative Council; but he added that if the experiment of making such appointments were tried, great caution would be necessary. Finally he agreed to sanction a moderate increase in the number of the Legislative Council if Bowring wished to make such a proposal. The main plan for the infusion of an elected element into the Council was rejected.
Bowring had suggested a radical reform of the Council introduc- ing elections; this seemed to be a liberal proposal but in fact he was not as liberal in his outlook as the government at home; moreover he was guilty of some confusion of thought. His argu- ments were all directed at giving the legislature more power, by making it more responsible, but his actual proposals retained the official majority, restricted the elected element and limited the candidates to British nationals; this destroyed the principle of responsibility. Bowring's scheme was inconsistent, and he never
THE QUESTION OF REPRESENTATION 1843-59
53
made it quite clear whether he wanted better advice from, or more power for, his Council. He put up a scheme in which his own principles were whittled down to what he thought would be accepted by the Colonial Office instead of one consistent with his own pre- mises. The Governor was using the arguments of Bentham and Mill without taking sufficient account of Hong Kong conditions, and in particular, of the need to protect Chinese interests. Bowring was willing to give Chinese nationals the vote but unwilling to allow them to have seats in the Legislative Council. His proposals therefore would not in practice have associated them with the government as much as he claimed. Labouchere clearly brought out the objection to putting the Chinese majority under the control of a British minority. The British Government would not entrust the Chinese to the British merchants by any system of responsible government which excluded the vast majority of the population, and it was Labouchere, not Bowring, who made the liberal proposal that the Chinese should be considered for membership of the Council, and for administrative posts.
Bowring dropped his scheme of elections and, in November 1856, suggested adding three official members, namely the Colonial Treasurer, the Surveyor-General and Chief Magistrate, and three unofficial members to the Legislative Council, the latter to be nominated by himself from a list of six names selected by the Justices of the Peace. He also suggested that the meetings of the Legislative Council should be open to the public. Labouchere regarded six new members as excessive and suggested four, two official and two unofficial, all to be nominated by Bowring; as for the opening of the Council meetings to the public, he thought this question should be taken up when the constitution of the Council
had been settled.
2
After all this argument Bowring, in March 1857, at last took some positive action to increase the size of the Legislative Council. He now produced a different plan, his third which departed even further from his own original scheme and from that just sanctioned by Labouchere. He decided to increase the Council by three additional members, of whom only one was to be an unofficial member. Another unofficial member was also needed to replace David Jardine who had just died in England. Bowring decided to 1 Sir John Bowring to Labouchere, 11 November 1856, No. 177, CO 129/59. * Sir John Bowring to Labouchere, 3 March 1857, No. 44, CO 129/62.
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GOVERNMENT AND PEOPLE 1841-1962
allow the Justices of the Peace to put forward three names, from which he selected one to be appointed a provisional member in place of Jardine and one of the remaining two to be the additional unofficial member. Fourteen Justices of the Peace attended an election meeting and Bowring accepted the result of their voting. Joseph Jardine, who headed the poll, was nominated a provisional member in place of his brother; and George Lyall, who came next, was nominated to the extra unofficial seat. At the same time, Bowring departed from precedent and also from his Instructions, by limiting the tenure to three years, instead of at the pleasure of the Crown. He nominated the Chief Magistrate and Surveyor-
General as official members.
•
Merivale complained that Bowring had departed from his own plan without warning; he criticized the election by the Justices. of the Peace, saying that the 'Crown ought not to hand over legislation in Hong Kong to a small aristocracy of white merchants, and cannot safely hand it over to a general constituency Labouchere was also critical, being doubtful if the Justices of the Peace represented the community, and refused his assent to this method of election. He declared that Hong Kong was not adapted for representative institutions in the ordinary sense, and that it was best to have nomination by the officer administering the govern- ment. He accepted the names, but disapproved of the mode of selection and of the three years' limitation, and ruled that neither was to be regarded as a precedent.
The end was not yet reached, for two months later in May 1857, Bowring made another adjustment, this time of a minor nature, he proposed Forth, the Colonial Treasurer, Tudor Davies, the Chief Magistrate, and Lyall as the three additional members of the Legislative Council. Labouchere reproached him with the remark, 'You appear to have forgotten that you have already recommended Jardine, Cleverly (Surveyor-General), Davies and Lyall'; but he agreed to the apparent substitution of Forth for Cleverly.
Bowring also in this same dispatch returned to the subject of publicity for the debates of the Council with the proposal that the second reading of a bill should be in public, and the other readings in private. Labouchere regarded this proposal as very 'singular'
Sir John Bowring to Labouchere, 21 May 1857, No. 86, CO 129/63.
THE QUESTION OF REPRESENTATION 1843-59
55
and thought that the Legislative Council should open or close its doors as it decided. This question of publicity had come up in an acute form because the clerk to the Chief Justice happened also to be editor of a newspaper, the Hong Kong Register, and used his official position to get inside information of the Council proceedings which he then published. Curiously the chief complaint against him was that his reports were garbled and not that they were printed. Bowring's initiative did bear fruit when, in January 1858, the Legislative Council took the first decisive step in opening its meetings to the public; it ruled that each member could introduce one stranger and the Governor any number of strangers, to attend the Council's sessions.1 The Secretary of State sanctioned this procedure and the result was that in effect the proceedings of the Legislative Council were opened to the public.
Bowring's design for a reformed Legislative Council with a partly elected unofficial element as its central feature was not adopted, and to this extent he may therefore be said to have failed. All he achieved up to this point, after eighteen months of a strange combination of strenuous and yet wavering advocacy, was the enlargement of the Legislative Council by three members, of whom only one was an unofficial member. The proportion of unofficial to official members was thus slightly weakened instead of being strengthened as he had intended. He adopted on his own respon- sibility the principle of election of unofficial members by the Justices of the Peace, begun by Bonham as an informal arrangement having no constitutional sanction; but such election bore little or no relation to the kind of elections he had originally advocated, and earned the Secretary of State's disapproval. After the election of Jardine and Lyall in 1857, the principle of election by the Justices of the Peace was dropped, and was not revived until 1884, nearly thirty years later.
Bowring's scheme failed because the initiative came from him alone, and his secming advocacy of the representation of Chinese interests lost him the support of the foreign community. Election by the Justices of the Peace who were all leading British merchants, meant the continued dominance of the British mercantile element only slightly disguised. Jardine and Dent were the respective heads of the two largest merchant houses in the Colony, and Lyall was
1 Sir John Bowring to Labouchere, 20 January 1858, No. 11, CO 129/67.
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GOVERNMENT AND PEOPLE 1841-1962
a partner of the important house of Lyall, Still & Co. Besides, the 1857 election by the Justices was apparently held in private, since there is no reference to it in the press, and no election result was announced. In effect Bowring was handing over the nomination of the unofficial members to the British merchants, a proceeding against which Labouchere properly protested.
If the reform scheme was mainly a product of Bowring's own individual character and outlook, it did also partly reflect the changing conditions in the Colony. Trade had begun to improve, and the despondency which had been so evident under Bonham declined. For example, shipping using the port, entering and clear- ing, from 293,465 tons in 1849 increased to 1,164,640 tons in 1859. The outbreak of the T'ai P'ing Rebellion in 1851 created very unsettled conditions in the Kwangsi and Kwangtung provinces and led many Chinese to seek the greater security of the Colony, and to bring their families.1 There was thus some substance behind Bowring's advocacy of Chinese interests.
The Governor's failure was partly due to the war against China following the Arrow dispute in 1856. If Bowring was liberal towards the Chinese, he was not so towards the Chinese Government, against whom he provoked hostilities by magnifying a comparative- ly trivial incident, in which, it was alleged, Chinese seamen were forcibly seized by the Chinese on the lorcha Arrow, a vessel owned by a Hong Kong Chinese but which was under the protection of the British flag. The war made any large scheme of constitutional reform inopportune. In January 1857, bread from a Chinese bakery in the Wanchai district was found to contain arsenic, fortunately in such large quantities as to render detection easy. This poisoned bread affair created strong racial antagonism in the Colony, and almost ruled out any measure of constitutional reform which offered the Chinese electoral rights; it possibly explains why the Governor did not press his original scheme. The bitterness against the Chinese was understandable; and when the employees of the bakery were tried in the Supreme Court, the press referred to the case as the
1 Population growth is shown by the following figures:
1849 1,210 non-Chinese 28,297 Chinese Total: 29,507 1853 1,481 non-Chinese 37,536 Chinese Total: 39,017
of whom 9,010 were females
1859 1,661 non-Chinese 85,280 Chinese Total: 86,941
of whom 24,747 were females
THE QUESTION OF REPRESENTATION 1843-59
57
Queen vs the Poisoners.1 Bowring refused the demand that the accused should be hanged without a trial, and when the men were found not guilty from lack of evidence, indignation was quite unrestrained, but British justice gained in reputation.
Another reason for Bowring's failure was that he gradually lost control of his administration. A new Attorney-General, Thomas Anstey, arrived in 1856 and proved to be a most peculiar character; his self-appointed task of rooting out injustice led him to bring charges against almost every colleague in the Government, and so to inaugurate a series of libel actions, counter-actions, public enquiries into charges of corruption and departmental conflicts which made Hong Kong 'the land of libel and the haunt of fever'. The aging Governor was at his wits' end and weakly referred the sordid mass of papers to the Secretary of State, Sir E. Bulwer- Lytton (1858-59) who remarked in the House of Commons that he discovered in them 'hatred, malice and all uncharitableness in every possible variety of aspect, and consequently what might be con- sidered a description of official life in the Colony'. These quarrels are not given here because they mostly concerned personalities. If there was any constitutional issue involved, it was that officials holding high positions in the government were not on that account shielded from the rule of law which applied to governors and governed alike. Anstey was suspended in August 1858 after an official enquiry had found him guilty of unjustified allegations against a colleague.
The Home Government decided to allow Bowring to retire prematurely in March 1859 so as to permit the sending of a new governor to conduct an enquiry into the public service in Hong Kong. Sir John had already lost his diplomatic functions when Lord Elgin was sent to China as plenipotentiary after hostilities had commenced. He had lost the confidence of the imperial authorities and this robbed his reform proposals of their importance.
In 1858, because two officials were absent from the Colony on leave, Bowring suggested the addition of one official member to the Legislative Council in order the better to conduct its business. This was a further sad falling away from his earlier principles and in making it he ran into fresh trouble. The proposal resulted in a
1 See The Friend of China for 31 January 1857 and subsequent issues. Sir John Bowring to Sir E. Bulwer-Lytton, 27 November 1858, No. 154,
CO 129/69.
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GOVERNMENT AND PEOPLE 1841-1962
protest by the unofficial members, who alleged that the Governor was upsetting the agreed proportion of official to unofficial members which had been three to two in 1850, and was now to be six to three. They complained that their influence was correspondingly diminished and pointedly asked that 'the extent to which the Governor can increase the numbers of the Legislative Council be distinctly made known'; they suggested that if the discrepancy were further increased it would be preferable to have no unofficial members at all. Bulwer-Lytton, sympathized with them1 and thought a reduction in the disparity in numbers between the officials and unofficials should be considered; he therefore declined to agree to the change until the whole question had been weighed. This reply indicated the enhanced status of the unofficial members, and the importance attached by the Colonial Office to their presence in the Council.
The position of the unofficial members was also strengthened by an important reform in the arrangements for dealing with the annual estimates of income and expenditure. When in May 1857, the Justices of the Peace complained of the inadequacy of the building in which the magistrates' courts were held, Bowring wrote home asking for alterations to be sanctioned, entirely disregarding the awkward fact that such a contingency had not been provided for in the current budget. Labouchere took the opportunity to lay down the orthodox mode of dealing with colonial expenditure, which he said must be decided according to the revenues, and must be put in the annual estimates and passed through the Council. That all expenditure had to be placed in the estimates and passed by the Legislative Council was suggested almost casually by Labouchere as if it were the accepted practice. Bowring pointed out in reply that such had never been the practice in Hong Kong, but that he had always held the view that there was no good reason why the budget should not be submitted to the vote of the Council; and he had himself initiated the practice of submitting the estimates to the Council but solely for the purpose of eliciting suggestions, without allowing the Council to vote on them or modify them in any way. Merivale commented that Bowring was quite right and that the Colonial Office had not
1 Sir E. Bulwer-Lytton to Caine, 12 March 1859, No. 18, CO 129/69. * Labouchere to Sir John Bowring, 3 September 1857, No. 111, CO 129/63. 3 Sir John Bowring to Labouchere, 18 November 1857, No. 167, CO 129/65.
THE QUESTION OF REPRESENTATION 1843-59
59
observed the clause in the Colonial Regulations that all estimates were to be submitted to the Legislative Council in the form of an ordinance. As a result of Labouchere's ruling the Hong Kong Government estimates were submitted to the vote of the Council for the first time in December 1858. There was much criticism and discussion particularly over public works which the unofficials wanted to be extended; but Caine, deputizing for Bowring, ruled that he could not accept any amendment of the Estimates Ordinance unless it were clearly necessary. He pointed out that the colonial regulations exempted from Council control expenditure already fixed and agreed to by the Secretary of State, and he asked for a ruling on the matter.1 Lord Carnarvon, on behalf of the Secretary of State, answered that there ought to be a 'fixed establishment' or 'Civil List', consisting of expenses of a permanent nature, fixed by law, and only the remainder should then be placed in the annual estimates; he added he would instruct Bowring's successor to do this; in the meantime, all expenditure without exception should be voted by the Council.
The Legislative Council had now become an important body which the Governor could no longer override in the way which had been provided for in the original Instructions of 1843. As further evidence of this, in September 1858, a proposal by Bowring3 to amend the rules of the Legislative Council to make members responsible in the courts for libel was rejected by the Council. Its action was upheld by Bulwer-Lytton who refused to limit free- dom of speech in the Council, and very significantly added that in any case he was unwilling to sanction an amendment contrary to the Council's wishes.
There was as yet no ruling that the official members were required to support the policy of the Governor. In February 1859, for example, when a Praya Bill was thrown out by a combination of the three unofficials and three officials. Bowring did not com- plain that the official members voted against him, only that they
5
1 Caine to Sir E. Bulwer-Lytton, 13 December 1858, No. 166, CO 129/69. * Lord Carnarvon to Sir John Bowring, 9 April 1859, No. 39, CO 129/69. 3 Sir John Bowring to Sir E. Bulwer-Lytton, 4 October, No. 136, CO 129/59. This was a bill to compel holders of land facing the sea to join a scheme to reclaim land and build a praya or road along the shore.
Sir John Bowring to Sir E. Bulwer-Lytton, 12 February 1859, No. 35, CO 129/73-
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should have informed him beforehand. This freedom of the officials to vote as they pleased was soon to be curtailed.
Bowring's governorship (1854-59) marked an important stage in the development of the Legislative Council, despite his failure to bring about electoral reform. The increase in the number of the unofficial members, the opening of the Council meetings to the public, and greater control over finances combined to invest the Council with greater importance, and give the unofficial members greater influence. If the Imperial Government had rejected elec- tions, it was not because it objected to governing in accordance with the wishes of the community, but for the very opposite reason, that elections would have given power to a privileged minority which might not have reflected the views of the inhabitants as a whole. The unofficials, by being freed from responsibility to a narrow electorate, were able to take a broader view of the common interest, and their support was sought particularly on questions on which they had special knowledge and their opposition was taken seriously.
CHAPTER IV
TWO ADDITIONAL EARLY PROBLEMS
The Link with the Treaty Ports and its Severance, 1843-59 THERE were two complicating factors in setting up the Hong Kong Government in 1843. One was the decision to extend the area of its control beyond the Colony itself to the treaty ports on the China coast, where British subjects were protected not by the flag but by treaty rights so far as they could be implemented. The other was the intention to grant some form of municipal self-government in Hong Kong.
That British subjects needed control more than protection is fairly clear from comments on their behaviour. Elliot complained that the coming of free trade had 'filled Canton with a class of people who can never be left to their own devices . . . without the utmost risk to the safety of this trade and to the respectability of the national character'. The contraband trade in opium attracted a forceful adventurous type predisposed to act without much regard to ethics when the financial rewards were sufficiently alluring.
Elliot had censured these reckless dealers in opium who were blatantly defying the Chinese edict against opium and who were 'founding their conduct upon the belief that they were exempt from the operation of all law, British or Chinese'. He feared that strong action by the Chinese against the armed opium traders would result in violence. It was partly to control the British that he had urged the securing of an island station; 'there can be neither safety nor honour for either government until Her Majesty's flag flies on these coasts . . .' he wrote in 1839. This phrase 'for either govern- ment' was not bare-faced hypocrisy, but a reflection of the genuine concern he felt over this danger.
The Legislative Council was given its authority within the Colony by Order in Council in the exercise of the royal prerogative; but an Act of Parliament was necessary to give it jurisdiction over the British communities in China. The Treaty of Nanking had granted the right of residence to British subjects at five treaty
Elliot to Lennox Conyngham (Private), 12 June 1837, quoted in W. C. Costin, Great Britain and China, Oxford 1937, p. 41.
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ports, and though it did not expressly concede extraterritoriality, this privilege had been exercised in the past and its continuance was assumed, and so Parliament was asked to set up the necessary legislative and administrative machinery. An Act of August 18431 empowered the Crown to authorize 'the Superintendent of the trade of Her Majesty's subjects in China (so long as such Superin- tendent shall also be the Governor of the said Island of Hong Kong) to enact, with the advice of the Legislative Council of the said Island of Hong Kong all such Laws and Ordinances as may from time to time be required for the Peace Order and good Government of Her Majesty's subjects being within the Dominions of the Emperor of China'. At the same time it reserved to the Crown the right of concurrent legislation by Order in Council.
A second Act2 passed in the same month allowed the Crown 'to hold and exercise any power or jurisdiction now or hereafter outside H.M. dominions, in as ample a manner as within her dominions', and provided for the establishment of law courts in China, with power to remit cases to a British colony, subject to certain safeguards in case of inability to produce witnesses. The court was empowered to apply the laws of the place in which the act which occasioned the suit was committed, and to send convicts to a British colony for execution or imprisonment. Since Hong Kong was thus to be the administrative centre from which British subjects in China should be protected and controlled, it was clearly desirable that the offices of Superintendent of Trade and Governor of the Island of Hong Kong should be held by the same person.*
In recognition of the strategic importance of the Colony, the military commander of its garrison was appointed Lieutenant- Governor and deputy for the Governor in case of death, absence or other cause of inability to act; he was also given a dormant commission to act similarly for the Superintendent of Trade. Sir James Stephen was opposed to this divided authority in virtue of which the chief British official in China was to be subject to the Foreign Office as Superintendent of Trade, and to the Colonial Office as Governor of Hong Kong. 'It is an assumption indeed which I could not justify by what would appear to myself good
1 6 & 7 Victoria c. 80.
* 6 & 7 Victoria c. 94.
* Lord Aberdeen to Sir Henry Pottinger, 4 January 1843, No. 9, CO 129/3. * Lord Stanley to Sir Henry Pottinger, 2 August 1843, No. 11, CO 129/2.
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reasons, but I have no doubt there are very good reasons for it', was his comment on the earliest instructions sent by the Foreign Office to Pottinger in January 1843.1 Stephen thought it preferable that all correspondence should pass through one Secretary of State, similarly to that concerning convicts in the Australian Colonies, in which the Home Secretary sent instructions through the Secretary of State for War and the Colonies.
C
·
He added a warning against the inconvenience of divided responsibility as giving rise to jealousies: .. our experience in this office shows that such jealousies are the curse of all petty colonial societies and that governors are scarcely more above them than the humblest of their officers. From one end of our Colonial Empire to the other there is a constant exhibition of the mischievous effects of the local authorities having different official superiors in England. Nothing will convince them that the public officers here will not squabble with one another on behalf of their respective dependants and we are constantly witnessing all manner of foolish things done and written in the confidence of the support from the Lords of the Treasury, the Board of Ordinance and so on'. Lord Stanley incorporated nearly the whole of this minute in his reply to the Foreign Office, but the division of authority was adhered to. In pursuance of these two Acts of August 1843, Pottinger was given a series of Commissions, and with them a long dispatch1 in which Lord Aberdeen reviewed the whole constitutional position regarding the arrangements for controlling British subjects resident in China.
3
The Foreign Secretary pointed out that until the new arrange- ments under the recently passed Acts could come into force, the
1
Stephen's minute on Iz documents sent to Pottinger, 3 January 1843,
CO 129/3.
*Colonial Office to Foreign Office (Stephen to Addington) 8 Feburary 1843,
CO 129/3.
These were prepared by the officials of the Foreign Office and sent to the Colonial Department for approval. Stephen minuted that they were altogether wrong, the reason being that on subjects of this kind the Foreign Office was unavoidably destitute both of precedents and our experience. I therefore prepared in place of the original enclosures, They were accord- ingly adopted'. It was found that they had to be sent off inmediately before Lord Stanley could see then. To this explanation, Stanley replied: 'In such a matter and indeed on most others, 1 rest entire confidence in your arrangements' (7 September 1843, CO 129/3).
drafts of them anew
·
* Lord Aberdeen to Sir Henry Pottinger, 2 September 1843, No. 81.
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1833 Act1 was the source of all authority currently being exercised. This latter Act had allowed the King in Council to appoint a Chief Superintendent of Trade, to create a law court and to regulate the British trade with China; under it, Aberdeen continued, three Orders in Council had been issued: one regulating trade, the second authorizing a law court and the third permitting the imposition of duties on British ships and cargoes entering Canton. All three had been ineffectual, and indeed, the third had been repealed within a few months, on 3 March 1834.
Aberdeen went on to say that an Order in Council of 4 January 1843 had transferred the court to Hong Kong; and another of 24 February of the same year, had restricted British trade to the five ports opened by the Treaty of Nanking. The Crown had no inherent prerogative of legislative authority over British subjects living in a foreign state or on the high seas; and that was why new legislation had been necessary, giving the Crown power to make laws for such subjects either by Order in Council or by setting up a local legislative authority. He said it had been decided to adopt the latter alternative, and the main feature of the new arrangements was that the Crown delegated to Pottinger and the Hong Kong Legislative Council the power to make laws for British subjects in China, and a commission under the Great Seal would be sent to him. The right of the Queen in Council to legislate for British subjects in China was preserved but Lord Aberdeen said that it was not expected that this power would be used.
The Foreign Secretary pointed out the difficulty that it might appear to be futile to enact laws governing British subjects in China where there were no police officers of the Crown specifically charged to see that the laws were carried out, but he thought that there would be a normal respect for law which would make it partly effective. This respect would derive additional strength from the fact that any breach of the law might be followed by a civil action in the courts; there was also the power to control shipping which would enable the clearance of a ship to be withheld if it were known that an offender were taking passage by her. On the definition of crimes, Pottinger was advised to pass a general ordin- ance to the effect that actions which would be interpreted as crimes in Hong Kong, would, if committed by British subjects in China, be similarly interpreted there. Though difficulties might arise over
1 3 & 4 William IV c. 93.
TWO ADDITIONAL EARLY PROBLEMS
65
laws with penal clauses, Aberdeen thought other ordinances such as those dealing with shipping might be welcomed and command a willing compliance.
The whole problem was recognized to be difficult by Lord Aberdeen in the following guarded language: 'I am well aware that the trust is of a very peculiar and critical nature, and that nothing but the extreme hazard of exempting our fellow subjects in China from an effective local control would justify such an innovation on the general principles by which the exercise of the legislative autho- rity of independent states is limited'. He told Pottinger to use moderation and solve the problems in a practical and empirical way. "The anomaly such as it is in theory will, I am persuaded, be deprived in practice of the risks which might otherwise attend it by the care which you will constantly employ to promulgate no law which could give any just or plausible ground of offence to the Chinese authorities. Exercising your powers with constant modera- tion and with a vigilant regard to the prejudices no less than to the reasonable jealousy of the people and government of China, you will I trust be enabled to derive from them the advantage of an effective control over H.M. subjects.' Pottinger was to be guided by the laws he made for the Colony of Hong Kong, as far as analogous; but the two series of laws were to be kept separate, that for the Colony being promulgated by him as Governor of Hong Kong, and the other, respecting British subjects in China, by him as Superintendent of Trade; and they had to be separately reported to the respective Secretaries of State.
On the appointment in 1844 of Sir John Davis as Governor and Superintendent of Trade, Lord Aberdeen took the opportunity, in giving him his instructions,' of referring again to this problem of controlling British subjects in China. He observed that Davis was given a degree of authority more comprehensive in extent and more unusual in character than is normally imparted to any servant of the Crown'; he was Superintendent of Trade, Governor of Hong Kong, and Plenipotentiary, having authority to treat with the representatives of China, power to enact laws, control over the consular officials, and also having some control over the naval and military forces in China. It was to be 'his constant endeavour' to impress upon the Chinese that the British Government desired harmonious relations and he was to conciliate the good will of the 1 Lord Aberdeen to Sir John Davis, 28 February 1844, No. 4, CO 129/8.
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Chinese Government and people which 'may be unpalatable to some British subjects whose irregularities they may find it necessary to check'. Lord Aberdeen remarked that British subjects were by education and social habits most opposed to arbitrary power, 'and its exercise can only be justified by extreme necessity'; much firmness towards the Chinese and British subjects was required and in considering how far he could 'deal with civil disputes and punish or repress criminal offences', Davies was advised that the Levant consular practice might help.
The Legislative Council was thus constituted the legislative authority over British subjects in China. No provision was made for nominating additional members, or for this part of its work being performed by a separate committee; the same few officials were thought competent to make the two series of enactments. Membership of the Hong Kong Legislative Council was not there- fore restricted to colonial officials, and of the three members first selected by Pottinger in August 1843, only one was an official of the Island's colonial administration, the other two were attached to the office of Superintendent of Trade under the Foreign Office. Elaborate arrangements were made to ensure the smooth transition from the old arrangements to the new and the observance of the proper constitutional forms. The 1843 Act repealed Section 6 of the 1833 Act, but all action taken under that section was to be valid and the old Orders in Council made under the 1833 Act were to remain in being until those under the new act operated. A 'blanket' Order in Council dated 2 October 1843 enabled Pottinger to suspend the operation of any Orders already issued to meet the contingency that his legislative measures may have conflicted with the new Orders in Council then being issued.
this
The related problem of setting up a British law court in China might be briefly noted here. A British court had been provided for under the authority of the 1833 Act by an Order in Council of 9 December 1833, but Lord Napier had been told not to set up court without the most serious consideration, and in fact it was never formally created, though the power to do so remained. After the Treaty of Nanking, an Order in Council of 4 January 1843 arranged that this court should be set up in Hong Kong.1 In June 1843 Pottinger issued proclamations, acting as Superintendent
Enclosed with Dispatches and other Instruments in Lord Aberdeen to Sir Henry Pottinger, 4 January 1843, No. 4, CO 129/3.
TWO ADDITIONAL EARLY PROBLEMS
67
of Trade and not as Governor of Hong Kong (for the Colony did not exist in 1833 and he was acting under the authority of the act of that year), establishing this court in Hong Kong with himself, as Superintendent, acting as judge.
This seemingly straightforward step proved to be extremely complicated. The Law Officers at home ruled that Pottinger's action was unconstitutional because the 1833 Act gave the Super- intendent jurisdiction over British subjects within the Chinese dominions, whereas Hong Kong had by 1843 ceased to be part of the Chinese dominions. In addition, Pottinger had promulgated rules of the court, and though the 1833 Act permitted the Crown to delegate to the Superintendent of Trade the power to create the court, it did not empower the Crown to depute him to make any rules. The result was that Pottinger was instructed1 to set up a court for the Colony, acting as Governor, and a second court for the British in the treaty ports, acting as Superintendent. The Hong Kong court was to be set up by the Legislative Council in pursuance powers delegated by the Crown, and the Superintendent's court was to be created under the authority of the 1843 Act. In the event this Superintendent's court was not brought into being.2 An Order in Council of 17 April 1844 gave the Hong Kong Supreme Court concurrent jurisdiction over British subjects in the treaty ports to which the Chief Justice would travel on circuit, and the same Order in Council gave the British consuls power to hear cases in which British subjects were involved in accordance with the ordinances passed by the Superintendent of Trade in the Hong Kong Legis- lative Council; and, where Chinese were also involved, in accord- ance with Article XIII of the General Regulations governing British trade in China (and incorporated into the Supplementary Treaty of the Bogue of October 1843) which laid down a procedure for the settlement of disputes between British and Chinese.
of
Maintenance of law and order amongst the British resident in China was sought in two other ways. Justices of the Peace were appointed by Pottinger in July 1843, and their commissions were phrased to give them authority over British subjects not only in the Colony but also in China. This was apparently ultra vires and
* Lord Aberdeen to Sir Henry Pottinger, 10 December1843, No. 104, CO 129/3. * Lord Aberdeen to Sir John Davis, 4 May 1844, No. 35, CO 129/8.
3
Indeed, curiously enough, their first commissions omitted all reference to Hong Kong, giving them authority only in China, and they all had to be sworn in again.
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Lord Aberdeen ordered their commissions to be revoked1 on the ground that no person, not employed by the Crown, could exercise judicial authority or act as a magistrate in China. The second method was by stationing at Pottinger's direct request one British warship in each treaty port principally in order that 'evil disposed subjects of Her Majesty shall be effectually restrained from riotous and disorderly conduct', a policy which was unsuccessfully opposed by the Admiralty on the old principle that 'ships and men rot in port'. These ships came to be used more as a convenient means of exercising pressure on the Chinese local authorities than for the purpose for which they had originally been intended.
The Hong Kong Legislative Council's control over the British communities in the treaty ports of China lasted less than ten years, from 1844 to 1853. Its legislative output in this connection totalled only twenty-one ordinances: seven in 1844, one in 1845, five in 1847, four in 1849, two in 1850 and two in 1852.
The usual heading of the ordinances was 'An Ordinance for Her Majesty's subjects within the Dominions of the Emperor of China or within any ship or vessel of a distance of not more than one hundred miles from the coast of China'. The formula, 'Be it therefore enacted by His Excellency the Governor of Hong Kong and Superintendent of the Trade of Her Majesty's subjects in China, with the advice of the Legislative Council of Hong Kong', gave no clear indication that he was promulgating the ordinance in virtue of his powers as Superintendent of Trade and not as Governor of Hong Kong. Perhaps the distinction was unnecessary inasmuch as it had been arranged that one man should hold both offices. These ordinances prescribed the framework within which the privilege of extraterritoriality in China was exercised during
these ten years.
The first ordinances of 1844 declared Her Majesty's subjects in China to be subject to English law and to the jurisdiction of the courts of justice at Hong Kong as if they were residents of the Colony; they established consular courts and gave the consuls power to inflict fines to a maximum of 200 dollars and imprison- ment up to two months, to remit more serious cases to the Supreme 1 Lord Aberdeen to Sir John Davis, 5 March 1844, No. 24, CO 129/8.
2 Lord Aberdeen to Pottinger, 24 August 1843, No. 77, CO 129/3. See also General Regulations of Trade, published 22 July 1843, Article XIII.
TWO ADDITIONAL EARLY PROBLEMS
69
Court at Hong Kong, and to deal with civil suits involving sums up to a maximum of 500 dollars. They obliged masters of merchant vessels to enter into a bond regarding the expense incurred in leaving members of their crews behind, and forbade them to trade at any Chinese port northward of latitude 32°N.1 The fifth ordinance of 1844 provided that treaties between Britain and China should have the force of an ordinance, and gave the Superintendent and consuls power to enforce treaty provisions to the limit of the consuls' jurisdiction as already laid down, except that the Superintendent was given power to double the normal penalties in the case of flagrant offenders. The seventh ordinance of 1844 reduced the maximum fine which a consul could impose when acting alone to 100 dollars, but gave him authority to increase the fine or term of imprisonment by calling two, or not more than four, British resid- ents of good repute, to sit with him in trying a case, and to deport British subjects under a second conviction. It also demanded that the proceedings of the consular courts were to conform to English practice, and arranged for the registration of British subjects. This power of deportation was re-defined by the one ordinance enacted in 1845.
The 1847 ordinances again dealt with the consular courts and proceedings; the necessity for these amendments followed from charges of irregularity brought by the Chief Justice of the Hong Kong Supreme Court against the consular courts as a result of the Compton case of 1846 (see page 70). They provided that the rules of the consular courts were to be sanctioned by the Hong Kong Legislative Council, their records were to be carefully kept, and the consuls had to obey such directions as were given to them by the Chief Superintendent of Trade at the instance of the Chief Justice.
The ordinances of 1849 returned to the subject of improving the consular court procedure by permitting two justices of the peace to issue a commission for the examination of witnesses. One ordinance of that year appointed consular agents to assist the consul but this provision was repealed later in the year, due to 'certain inaccuracies'; the agents were retained but appeals to the consul against their decisions were allowed.
This being the approximate latitude of Shanghai, the most northerly of the treaty ports. An Order in Council of 24 February 1843 had this same prohibition. See p. 64.
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In 1850 the jurisdiction of the official magistrates' courts of Hong Kong was extended to British subjects in China and Hong Kong police had similar powers regarding offences committed by British subjects in the treaty ports as if they had been committed in Hong Kong.
In 1852, proceedings for breach of the treaties were not to be made subject to appeal to the Supreme Court, but a copy of the proceedings had instead to be sent to the Superintendent of Trade who had the power to remit or abate the penalties.
All these ordinances, thus briefly summarized, were promulgated in Hong Kong and the treaty ports, and were printed for presenta- tion to Parliament.
In 1853, the power of the Superintendent of Trade to legislate with the advice of the Legislative Council of Hong Kong for British subjects in China was abrogated. In that year, an Order in Council of 13 June resuming the power of direct legislation by Order in Council which had been retained under the 1843 Act, decreed that future legislative control over British subjects in China should be exercised by the Superintendent of Trade who was to issue regulations under the authority of Orders in Council. The Hong Kong Legislative Council thus ceased to act for British subjects in China. There is no reason to suppose that it proved itself incapable of carrying out this part of its task or that it had failed to provide for law and order in the British settlements at the treaty ports. The causes of the change were many.
The 1847 Select Committee on the China Trade had noted that the placing of the two offices of Governor and Superintendent of Trade in the hands of one man had the disadvantage of making him serve two separate ministers at home, resulting in divided responsibility. This was probably the decisive factor in separating the colonial and diplomatic functions, and in ending the dual role of the Legislative Council.
The Compton case brought up this question of separation more acutely. Compton, a British merchant in Canton, was accused of causing riots in June 1846 by assaulting a hawker and overturning his stall. The British consul at Canton found him guilty and fined him 200 dollars, the maximum that a consul could impose, and Sir John Davis approved the fine. Compton appealed to the Supreme Court at Hong Kong, where his conviction was quashed and the fine remitted by order of the Chief Justice, who found that
TWO ADDITIONAL EARLY PROBLEMS
71
the proceedings in the consular court had been irregular in that Compton had been charged under one ordinance and found guilty under another. This technical error was largely due to the lack of legal training on the part of the consular staffs, but the judge's strictures brought the existing machinery of British justice in the treaty ports under suspicion.
The Compton case was to embitter the relations between the Governor and the Chief Justice, who were already at loggerheads on other grounds. Their quarrel brought into prominence two diametrically opposed principles underlying the control of British subjects in the treaty ports. Davis considered that this control should rest with him as Superintendent of Trade since such questions as the preservation of order, the respect for treaty obligations, and the maintenance of good relations with China, were administrative matters for which he, and not the judge, was responsible. Hulme, the Chief Justice, regarded the issues as primarily legal and judicial, involving the interpretation of the law, the right of fair trial and the preservation of the freedom of the subject by the protection of the courts. There was much to be said for each of these views but they were irreconcilable.
In a private letter1 to Lord Palmerston, Davis accused Hulme of habitual drunkenness. His object was to bolster various other official complaints which he had made against the judge and which he hoped would result in his dismissal. Palmerston and Earl Grey refused to regard this as a private accusation and insisted on withdrawal or a public enquiry. Thus the charges against Hulme's private character were made the subject of official enquiry before the Executive Council, to the scandal of public life in the Colony. Hulme was found guilty and suspended, but was exonerated on appeal to Earl Grey. Davis' other complaints were not supported at home, and he resigned.
Again, Hong Kong had not developed into the great centre of commerce that had been expected, and the 1847 Select Committee, doubting whether it would ever do so, recommended sweeping reductions in the Island's establishment. When Bonham went on leave in 1852, a division of his duties was decided upon; Major General Jervois, the Lieutenant-Governor, deputized for him as Governor of the Colony and Dr John Bowring was brought from
1 Sir John Davis to Lord Palmerston (Private), 28 November 1846, CO 129/20,
¡
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his consulship at Canton to act as the Superintendent of Trade. This was the first significant step in the separation of the adminis- tration of the Colony from that of the British communities in the treaty ports, and seems to indicate that the division of the offices of Governor and Superintendent of Trade was already envisaged. While Bonham was in England on leave, the decision was finally taken that the status of the Colony did not warrant the appointment of his successor to a full governorship, and that on his retirement it should be placed under a lieutenant-governor and the post separated from that of Superintendent of Trade. The change was found to be impossible without amending the 1843 Act which had conferred legislative powers on the Superintendent of Trade conditional upon his being concurrently Governor of Hong Kong. To avoid legislation, Herman Merivale1 suggested a de facto separation of the two offices by the device of promoting Caine, then Colonial Secretary, to be Lieutenant-Governor, with full executive power over the local Hong Kong government, while Bowring, who was to succeed Bonham, retained the nominal title of Governor to satisfy the letter of the act, with only half the pay of his predecessor since his active duties were confined to the superintendency of trade. It is not surprising that this awkward scheme broke down after a short trial, and that Bowring assumed full control of the Colony in 1855.
The growth of Shanghai was another factor in bringing about the legislative separation of 1853. The first Shanghai Land Regulations of November 1845, agreed upon between the British Consul and the Taotai, or the local Shanghai Chinese official, laid down regulations regarding disputes over land and recognized a committee of land renters. As Shanghai grew, it became more international in character. The next Land Regulations, those of 1854, which were jointly agreed upon by the British, American and French consuls, allowed the merchants to levy rates, elect representatives to a council and control the police, roads and wharves. This need for some municipal authority on the spot was clearly incompatible with control from Hong Kong.
Davis's contention that the control of British subjects in the treaty ports was an administrative and not a legislative question
1 Herman Merivale, Permanent Under-Secretary of State for the Colonies, 1848-59.
TWO ADDITIONAL EARLY PROBLEMS
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was sound. After a period of experiment it was found easier to promulgate the general arrangements for control as was done in the Order in Council of 1853, following which the problem became the relatively simple one of administrative adjustment in the interest of smooth relations between British and Chinese. During the whole discussion, there was no suggestion that the Foreign Office was dissatisfied with the way in which the Hong Kong Legislative Council had exercised its powers during the years 1843 to 1853.
It must be remembered that in 1843 when the arrangements were made, no one knew how the treaty ports would develop, and the growth of teeming Anglo-Chinese cities in Hong Kong and Shanghai was quite unforeseen.
An Abortive Scheme of Municipal Self-Government
The successful infusion of an unofficial element into the Legisla- tive Council in 1850, by which the community secured a degree of recognition, was partly offset by the failure of the plan to set up some form of municipal self-government. The first instructions from Lord Stanley to Sir Henry Pottinger, those of 3 June 1843, show that from the start it was the Home Government's intention to give the inhabitants a measure of control over their own affairs by means of a municipal organization. In them Pottinger was told that he should levy a rate on all town buildings for municipal and police purposes 'confiding to the house-holders, as far as possible, the power and the obligation to assess themselves and each other'.1 Pottinger was not able to implement this instruction because negotiations over the many issues left unsettled by the Nanking Treaty occupied most of his time and he frequently and justifiably complained of overwork and lack of assistance.
His successor, Sir John Davis, reported in July 1844 that he had divided the settlement into three districts, eastern, central and western, and that it was his intention to appoint commissioners to be responsible for police, lighting, roads and sewerage with power to levy rates. The phrasing shows how closely English administrative institutions and experience were followed in the
colonies.
Lord Stanley to Sir Henry Pottinger, 3 June 1843, No. 8, CO 129/2. * Sir John Davis to Lord Stanley, 24 July 1844, No. 52, CO 129/6.
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Local government at home was at that time undergoing great change. Until well into the 19th century, the Justices of the Peace were the local agents of the central government, having in addition to their judicial work a host of administrative duties.1 The idea of municipalities doing administrative work was relatively new; borough corporations had been privileged bodies with little duty except to administer their property; such work as street paving, lighting, and scavenging was often done by Improvement Commis- sioners. The elected corporations, set up under The Municipal Corporations Act of 1835 did not for some years take over much administrative work.
Again, police forces were quite new in England. Peel had established the Metropolitan police force in 1829, directly controlled by the government; but when police forces were organized for the rest of the country, local control was insisted upon and they were placed under the Justices of the Peace in the counties.
Davis's references to commissioners to undertake municipal duties, and the proposal to place the Hong Kong police under municipal control, exercised by the Justices of Peace as local commissioners was therefore very much in accord with English practice at the time.
In a dispatch to Lord Stanley of January 18452 Davis again referred to the intended appointment of commissioners who would be responsible for police and roads, saying that they were to be appointed 'from among the principal inhabitants' and empowered by ordinance to levy the necessary rates. It is to be presumed that the commissioners were to be nominated, for he would certainly have mentioned elections if any had been intended, and from the subsequent correspondence it appears that the Justices of the Peace were to act as commissioners. The language was vague, perhaps deliberately so, for in the Annual Report for 1844, dated 3 May 1845, the Governor wrote that he had deferred the Police Rates and Assessors Ordinance 'until more property had been built'. Yet in that same month he took the intensely unpopular step of announc- ing his intention to introduce an ordinance imposing a rate for
administrative as well as his judicial duties, and claimed the right to allocate land William Caine, the first Hong Kong magistrate, assumed that he had to the earliest applicants. This led to a dispute with the land officer who properly contested this right and the traditional view of the wide powers of the local magistrate. Memorandum by Pottinger, 22 March 1842, CO 129/10.
2 Sir John Davis to Lord Stanley, 21 January 1845, No. 6, CO 129/11.
TWO ADDITIONAL EARLY PROBLEMS
75
police purposes, to be levied by government direct and not by local commissioners or by any other representatives of the inhabitants.1 This was contrary to his instructions and to his own declared intentions.
In June 1845 Davis informed Lord Stanley2 that, regarding the police, 'it seemed less easy or expedient to vest the charge of defraying the cost in the public community'; and that widespread lawlessness and the difficulty of recruiting a reliable police force led him to take the police directly under government control. At the same time he stated that roads and sewers would continue to be under local commissioners. The police rates ordinance was delayed until August, and though the assessments were low, it aroused the greatest opposition amongst the merchants, who regarded the new rates as exorbitant and unconstitutional. They sent home the strongly worded memorial of 13 August 1845 which has already been referred to (see p. 43). They protested not only against the imposition of rates, but against the whole revenue system of licences and farms which Davis had established as sources of public revenue, which they referred to as 'harrassing taxation'. The merchants vaguely demanded some form of local self-government but instead of concentrating on the municipal issue and insisting on machinery by which they could assess themselves, they ranged over the whole field of action of a Governor who had made himself detested largely because he was doing his duty to raise public revenue. They were much more interested in opposing taxation than in the municipal issue since this would have shifted to them the burden of finding the money.
Sir James Stephen, at the Colonial Office, defended the Governor and criticized the memorial sent by the merchants. On the general ground as to whether the Governor's action in levying rates directly and not through the commissioners were unconstitutional or not, he said the objections to municipal government in Hong Kong were: (i) The English minority can hardly be trusted with the powers which it would give them over Chinese and other alien and ignorant ratepayers'; (ii) Its existence would probably be incom- patible with that 'decisiveness and energy of proceeding which are almost necessary for the very existence of a European government
1 Sir John Davis to Lord Stanley, 9 May 1845, No. 57, CO 129/12.
2 Sir John Davis to Lord Stanley, 7 June 1845, No. 74, CO 129/12.
3 Sir John Davis to Lord Stanley, 20 August 1845, No. 114, CO 129/13.
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surrounded by millions of Asiatics'. Thus very early in Hong Kong's history the doctrine that the fate of the native inhabitants must not be entrusted to a comparatively few British residents was recognized; but there was for long to be an incompatibility between this paternalist attitude and the growth of self-governing institutions.
The task of answering the merchants fell on a new colonial secretary, W. E. Gladstone.1 He did not uphold the contention that rates could be levied only by a municipal body, saying that the circumstances of Hong Kong were different from those of Britain or of any other British colony, and that it was impracticable to introduce into Hong Kong institutions which had been success- fully tried elsewhere. He therefore accepted the ordinance. Davis in fact aroused so much opposition on this question of rates and indeed upon other issues, that no progress could be made under his governorship towards any form of municipal institutions.
The merchants had also in their memorial put forward the general claim that since Hong Kong had been founded as a naval and military station for the furtherance of imperial interests, the inhabitants should not be called upon to pay the entire cost of the administration, or even of any large portion of it. Gladstone refused to accept this thesis and replied, 'the mercantile body have alto- gether mistaken the object of Great Britain in the occupation of Hong Kong. That occupation was decided on solely and exclusively with a view to commercial interests'. Opinion in the Colony
seemed to be thwarted all round.
The municipal issue was revived by the report of the 1847 Select Committee of Enquiry into the China Trade. A merchants' memorial in January 1849 (see p. 44) alleged that nothing had been done to implement its recommendations that 'a share in the administration of the ordinary and local affairs of the island should be given, by some system of municipal government, to the British residents'. Bonham was popular and more in touch with local opinion than his predecessor had been, and on this question of municipal government, he took a commonsense practical line. Overlooking the discourtesy of the merchants in not sending him a copy of the memorial, Bonham wrote to Earl Grey in February 18492 that he had no objection to a municipal scheme, and agreed that if the inhabitants wished, and if competent persons could be
1 Gladstone to Sir John Davis, 7 March 1846, No. 32, CO 129/13. * Sir George Bonham to Earl Grey, 26 February 1849, No. 22, CO 129/28.
TWO ADDITIONAL EARLY PROBLEMS
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found to serve, the collection and expenditure of the police rates should be entrusted to them. He pointed out that the police cost £4282-1-0 and the police rate brought in £2500 per annum, and remarked that this made him wonder what the merchants had to gain in demanding municipal control.
The Secretary of State replied giving permission to proceed with the plan of municipal government, and Bonham consulted the bench of fifteen unofficial Justices of the Peace, whom he had recently appointed, on the question. He met them on 3 November 18491 and offered them control of the police if they would meet the deficit between the amount collected in police rates and the actual cost of the police; he suggested this should be done by a tax on carriages. The Justices refused to agree to any proposal that involved additional taxation. There is no record of any discussion of the elective principle, nor is it clear who were to form the municipal body, though it was in accordance with English precedent the Justices of the Peace should control the police, and carry out the proposed municipal functions.
On 10 January 1851, after a curiously long interval of fourteen months, Bonham wrote to the Justices and renewed his offer in greater detail. He offered them control of the police, with the exception of the superintendent and assistant superintendent of police, since these two officers had been appointed by the Secretary of State. For the year 1850, the deficit between police expenditure and the amount collected in rates was £1051-19-21; to get the scheme started he offered to make good for the next two years any such annual deficit not exceeding that amount. He then pointed out that the general revenue had been insufficient for the proper repair and maintenance of the roads and sewers, and referred to the fact that before he left Davis had proposed an ordinance for levying additional rates on property to meet their full cost. Bonham said he had not proceeded with this as he had been 'excessively unwilling' to impose further taxation, and suggested the Justices might draft one combined ordinance dealing with police, roads and sewers, and might consider raising additional funds by taxes on horses, carriages and sedan chairs.
To this the Justices of the Peace replied on 31 January 1851. They asserted that the police force had been reduced in strength recently to make the deficit look smaller, that the force was ineffi- 1 Sir George Bonham to Earl Grey, 22 April 1851, No. 29, CO 129/36.
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cient in any case, and that if they had control of it, they would find it necessary to raise its efficiency, at a cost which would involve a greater deficit than that which Bonham had offered to meet. The rates would probably fall in yield as memorials had already been sent home against the heavy taxation. They said the community had expressed a wish to have control over municipal matters, and they affirmed their willingness to assume control over police, roads and sewers, if the Governor would place sufficient funds at their disposal from the general revenues; they argued that provision for police protection and for streets should be the first charge on the revenues, since they were the most vital services in any community.
Bonham replied on 14 February 1851 denying that the produce of the rates would fall, rather the contrary since more houses were being built. He thought that in any case there would be less objection to taxation if it were imposed by a popular body. The present assessment was quite inadequate, and he proposed once more new taxes on horses, carriages and sedan chairs. He considered the police force adequate since there had been no increase in crime, and refused to increase it. He then renewed the offer he had previously made. The Justices of the Peace in their reply of 1 March 1851 still criticized the police as inefficient, attracting only bad characters who could not get a living elsewhere; they again refused the Governor's offer to make up any deficiency for only two years. The municipal body would, if it assumed control, have to decide what additional numbers and pay would be necessary, but they assured the Governor that this would be kept as low as pos- sible. They brought up once more the familiar argument against increased taxation on the ground that Hong Kong was really found- ed to support the whole China trade. Their final argument was that horses, carriages and chairs were necessaries in Hong Kong and not luxuries, and should not be taxed.
On the 15 March the correspondence came to a close when Bonham replied that further taxation or an additional grant from home was essential if he were to meet the wishes of the Justices of the Peace. He ended by saying that if he could secure additional means he would be ready to consider further proposals.
Earl Grey's only comment on all this argument was to approve the course Bonham had taken. So ended this early attempt to set up a municipal organization in Hong Kong.
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Bonham in April 1851 made a general report on this corres- pondence and gave his opinion that he was 'beginning to think that the majority of Justices had neither the time nor the inclination for the duties they were asking to assume'. This may have been more than a shrewd guess. He was friendly with them and he must have been well acquainted with their views. The correspondence between Bonham and the Justices of the Peace gives the impression that between the meeting with the Justices of the Peace on 3 November 1849 and the first of the series of letters, that of 10 January 1851, the negotiations for a municipal government had broken down. The correspondence of January to April 1851 which has just been summarized conveys a feeling of unreality, and that the Governor and the Justices were stating their irreconcilable views solely for the record.
Having secured representation on the Legislative Council in June 1850, that is, during the interval between the meeting of Bonham and the Justices on 3 November 1849 and Bonham's first letter to them 10 January 1851, the Justices may well have thought that they had secured a more valuable concession than the muni- cipality for which they would have been called upon to pay. This would explain their lack of enthusiasm in the correspondence with Bonham, and why the central issue of municipal government, its form and function, was allowed to remain in the background.
Two points emerge from this episode. The initiative in suggesting some form of local municipal autonomy for Hong Kong was taken by the Home Government as a matter of principle, but when Davis and Bonham ran into difficulty over it, the principle was readily abandoned. Secondly, there is little evidence of any clear wish, on the part of the influential residents at least, for representative municipal institutions as a matter of constitutional conviction, or that the Chinese were to be included in any municipal scheme. The merchants were demanding municipal government mainly as a stick with which to beat the unfortunate Davis. The maximum freedom at the minimum administrative cost was the dominant
note.
1 Ibid.
CHAPTER V
CONSTITUTIONAL DEVELOPMENTS 1859-82
Adjustment and Consolidation, 1859–77
THE twenty years that followed the retirement of Sir John Bowring in 1859 were years of adjustment and consolidation. Without departing from the main principle of Crown Colony government, changes were gradually introduced, chiefly of an administrative nature in the working of the Legislative Council, to make it an effective law-making body.
It was a period of expansion and development in the Colony's history. The Arrow War was brought to an end in 1858 by the Treaties of Tientsin, and renewed hostilities, caused by the refusal of the Chinese to accept a British envoy at Peking, were ended in 1860 by the Convention of Peking. By these agreements, nine additional Chinese ports were opened to foreign trade, including three on the River Yangtze, that great highway into the interior. British subjects were allowed to travel in China and there was toleration for the Christian missions. The treaties with Siam in 1855 and Japan in 1859 moreover opened up those countries to British trade. These extended opportunities of trade benefited the Colony, for the 'outports' brought more banking, insurance, and shipping business and a demand for professional services, for exam- ple in law and accountancy. By the 1860 agreement with China, Kowloon Peninsula, on the mainland opposite the Island, was ceded, but without immediate advantage to the Colony because the naval and military authorities tried to monopolize the area, though it ultimately provided invaluable and much-needed living space.
The total sea-going tonnage entering and leaving which in 1859 was 1,164,640 tons, had increased by 1878 to 5,209,437 tons; the population rose from 86,941, including 85,280 Chinese, in 1859 to an estimated 139,144 in 1876 of which 130,168 were Chinese.1 The Hong Kong Chamber of Commerce was founded in 1861, and The Hongkong and Shanghai Banking Corporation in 1865. Modern amenities were introduced; the city was first lit by gas
in
1 The figures are taken from the Historical and Statistical Abstract of the Colony of Hong Kong 1841-1930, Noronha & Co. Government Printers 1932. The number of resident whites excluding the armed forces was given in 1876
as 2,767.
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1864, the first large dock company, which became the Hong Kong and Whampoa Dock Company was founded in 1864,and telegraphic communication with Europe was completed by the laying of the cable between Hong Kong and Shanghai in 1871. A greater civic spirit evinced itself in the erection, by public subscription of the City Hall in 1869. A public clock tower in 1862, a drinking fountain in 1863, and a Sailors' Home in 1870 were built by private gifts. The Botanical Gardens were laid out in 1860, and the first postage stamps were issued in 1862. The opening of the Suez Canal in 1869 expedited ships and mail; this with the introduction of the telegraph in 1871, revolutionized trading conditions. No longer was it necessary to keep on hand large stocks of goods since specific orders could now be placed quickly, and the great agency houses were no longer given the same discretion in the conduct of business as was formerly necessary, since the manufacturer in Britain was better posted regarding market conditions.
Sir John Bowring was the last who held the combined offices of Governor and Superintendent of Trade. His successors were able to devote the whole of their attention to the colonial adminis- tration. He was also the last of the political appointees; succeeding governors were normally colonial officials, schooled in the colonies and looking to the colonial service for their career. They had the assistance of cadet officers, selected by competitive examination and competent in the local Cantonese language, of which the first appointments were made in 1862.
The three governors during these eighteen years, 1859-77, were Sir Hercules Robinson (1859-65), Sir Richard Graves MacDonnell2 (1866-72) and Sir Arthur Kennedy3 (1872-77).
1 Sir Hercules George Robert Robinson (1824-1897). Left the army in 1846 for a post in the Irish Government. In 1854 became President of Montserrat in the West Indies; Lieutenant-Governor of St. Christopher in 1855, and Governor of Hong Kong 1859-65. Afterwards was successively Governor of Ceylon 1865-72, New South Wales 1872-79, New Zealand 1879-80 and the Cape 1880-86 and 1887-89 and 1895. Raised to the peerage as Lord Rosmead,
1896.
* Sir Richard Graves MacDonnell (1814-81). Called to the Bar at Lincoln's Inn 1838; Chief Justice of the Gambia, 1843; Governor of British Settlements on the Gambia, 1847; Governor of St. Lucia, 1852; of South Australia, 1855; Lieutenant-Governor of Nova Scotia, 1864 and Governor of Hong Kong, 1866-72.
3 Sir Arthur Edward Kennedy (1810-1883). Army career, then served the Irish Government. Governor of the Gambia, 1851; Sierra Leone, 1852; Western Australia, 1854; Vancouver Island, 1863; West African Settlements, 1867. Governor of Hong Kong, 1872-1877. Then Governor of Queensland, 1878. Died in the Red Sea on his way home.
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It has been shown that already the Legislative Council had strengthened its position in relation to the Governor and that the unofficial members had gained an enhanced status as the respon- sible voice of public opinion in the Colony. On the appointment of Sir Richard MacDonnell as governor in 1865 opportunity was taken to revise his Instructions to give these new developments more formal recognition and to lay down principles of some constitutional significance.
In the Instructions to MacDonnell dated 16 October 18651 the distinction between official members and unofficial members of the Legislative Council was redefined. It was laid down that the Legislative Council was to consist of the Chief Justice, Colonial Secretary, Attorney-General, Colonial Treasurer and Auditor- General, ex officio, to be known as official members, and of certain other persons mentioned by name, and not exceeding four in number, who were to be known as unofficial members. These four were: H. J. Ball, Francis Chomley, James Whittall1 and Thomas Sutherland.5
2
In the event of any of the four unofficials being for any reason unable to act, the Governor was empowered to appoint a person to the vacancy provisionally pending the signification of Her Majesty's pleasure. All members were to hold their seats at the pleasure of the Crown. The official members were to have prece- dence over the unofficials and, amongst themselves, in accordance with the office held, each office ranking in the order given in the Instructions. The Governor or senior official present was to preside and be entitled to vote and to have in addition a casting vote.
1 CO 381/35.
2
Henry John Ball (1819-74) of London and Oxford Universities, Attorney- General of British Honduras 1855. Judge of the Hong Kong Court of Summary Jurisdiction 1862-74. Member of the Legislative Council 1863 and 1869-73- An epileptic.
* Francis Chomley. Admitted a partner of Dent & Co. 1 July 1857. First Chairman of the Hongkong and Shanghai Banking Corporation 1864. Member of the Legislative Council November 1861-1866.
James Whittall (1827-93). Joined Jardine, Matheson & Co. 1856, became partner in 1861 at Shanghai, Member of the Hong Kong Legislative Council April 1864 to September 1867 and July 1872 to August 1875 when he returned to England.
Sir Thomas Sutherland (1834-1922). Superintendent of the P. & O. Steam Navigation Co. at Hong Kong, and one of the founders of The Hongkong and Shanghai Banking Corporation. Member of the Hong Kong Legislative Council 1864-65. Chairman of the P. & O. Steam Navigation Co. and M.P. for Greenock 1884-90. Knighted (K.C.M.G.) 1891.
:
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83
Five members constituted a quorum. The Governor, with the advice of the Legislative Council, could make, renew, or amend the standing orders of the Council. All ordinances were to be enacted by the Governor with the advice of the Legislative Council, and due notice was to be given where the interests of private person were affected. The doctrine of repugnancy which had always been assumed was expressly stated, and no ordinance and no proceedings of the Council were to be repugnant to the Charter or to the Governor's Instructions or to any Act of Parliament.
There followed in the Instructions a list of subjects upon which ordinances were not to be passed without express permission; these included divorce, the granting of land to the governor himself, the number and salary of public officers, paper currency, differen- tial duties and taxes and any ordinance inconsistent with treaty obligations. The most important addition here was the clause which forbade the passing without previous sanction, of 'any ordinance whereby persons of African or Asiatic birth may be subjected... to any disabilities or restrictions to which persons of European birth or descent are not also subjected'.
The Instructions made a corresponding change in the composi- tion of the Executive Council, which was to consist of three ex officio members, the Senior Military Officer, Colonial Secretary and Attorney-General, two of whom formed a quorum, and over whom the Governor, or if absent, a member appointed by him, presided. The Governor alone proposed the business, but members were now given the power to make a written application to the Governor for a particular subject to be discussed and to have such an application recorded on the minutes. The Governor had to consult with the Executive Council in all cases, but he was em- powered to act contrary to their advice, in which case he had to report his action fully, and the members had the right to have their advice recorded on the minutes.
These Instructions of 1865 brought significant changes in the structure and balance of the Legislative Council. The personal influence of the Governor was reduced; in the past he had been empowered to choose his official and unofficial colleagues on the Council at his absolute discretion subject only to the assent of the Secretary of State, who confirmed the appointments in the name of the Queen. Now this discretionary power was much curtailed. It was Bowring who had initiated the proposal that certain officials
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ought to be members of the Council in virtue of their office, and not on account of their personal standing with the Governor, and this principle was now conceded. Of the four unofficial members, H. J. Ball, held office as judge of the Summary Court which had been created in 1862, since his legal experience was thought to be valuable. He was therefore an unofficial member in name only and according to the definition given in the 1865 Instructions. In fact he was an official member. The arrangement by which the unofficial members of the Legislative Council were those individually nominated by the Governor, regardless of whether they held office in the Government or not, remained the rule until 1884 when Council was reorganized. For nearly twenty years, the four unofficial members consisted of one Government official and three members of the community; only for a brief period in 1867, were all four non-office holders. The Instructions appeared to disturb the balance between official and unofficial members by laying down that the latter should not exceed four, but in fact it was not intended that all four should be non-office-holding. Sir Hercules Robinson in December 1859,1 strongly recommended that the proportion of officials to non-officials should be two to one, exclud- ing the Governor, and this ratio was maintained.
By the Instructions, all ordinances were to be made by the Governor 'with the advice of the Legislative Council'; the over- riding legislative power of the Governor which had not been used in practice, thus disappeared. The Governor retained the right of initiation and he alone could propose bills and subjects for debate, but a member now had the right to have entered on the minutes any statement he wished to make. When Kennedy was appointed Governor in 1872, his Instructions were further amended so as to strengthen the right of the individual member and limit the Governor's monopoly of initiation of legislative business. From that date any subject except that of finance, duly proposed and seconded by any two members of the Legislative Council had to be debated by the Council. Financial resolutions still could be proposed only by the Governor or with his express sanction, and in this way, the Colony's finances remained firmly under his control. This did not mean that financial questions could not be
1 Sir Hercules Robinson to the Duke of Newcastle, 25 October 1859, No. 23, CÓ 129/74.
2 CO 381/91.
CONSTITUTIONAL DEVELOPMENTS 1859-82
85
discussed. In 1872, a Finance Committee of the Council was set up consisting of all the members of the Legislative Council under the chairmanship of the senior member present, with a quorum of three, to meet as required, and consider all financial questions submitted to it by the Governor. This Finance Committee followed the precedent set by the Colony of Mauritius, proposed two years earlier in 1870 by Earl Granville, Secretary of State for the Colonies (1868-70). The Governor's control of the Council was further weakened by a Colonial Office ruling that for each unofficial vacancy, three names had to be submitted to allow the Secretary of State more latitude in considering the Governor's recommenda- tions. This rule was first applied in Hong Kong in November 1861.
On the other hand, these reforms which assisted the Legislative Council to become an active debating body, were offset by a new ruling which deprived the officials of the freedom to vote as they pleased, and this bolstered the authority of the Governor. The ruling came about in the following way.
In 1864 the Home Government asked for the payment of $20,000 annually for defence. The demand created the liveliest opposition from all sections of the community led by the unofficial members of the Legislative Council. When the Council met in September 1864 to vote the demanded sum, the Colonial Treasurer, F. H. Forth, joined the three unofficial members in voting against the provision, which was carried by a bare majority of one. A year later, in September 1865, Forth carried his opposition to the length of seconding a resolution proposed by Thomas Sutherland deleting the amount of the military contribution from the estimates.1 Cardwell, the Secretary of State (1864-66), expressed his strong disapproval of Forth's conduct and warned that if Forth had been suspended by the Governor his suspension would have been upheld. Arising out of this reprimand, Sutherland asked the new Governor, Sir Richard MacDonnell, if there were any difference in the matter of privileges between official and unofficial members. MacDonnell answered that all members could speak and vote freely, but he thought that if an official directly opposed the policy of the Secretary of State, an explanation might be demanded.
Cardwell was not satisfied with this statement of the position and laid down a ruling on the subject in these terms. 'Her Majesty's
1 Mercer to Cardwell, 23 September 1865, No. 140, CO 129/106.
2 Cardwell to Sir Richard MacDonnell, 31 May 1866, No. 92, CO 129/112.
2
I
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Government have the right to consider opposition by the official members of the Legislative Council to its settled policy as in- compatible with retention of office, and I am equally of opinion that they are bound if required to do so, to support by their votes, and not to oppose by any public act, a policy which may originate with the governor.' He said that the Governor would be expected to use his discretion in the enforcement of this obligation, but hoped that unanimity amongst the officials would make its enforce- ment unnecessary 'except for carrying out the instructions of the home government'. He also warned the officials that it must not be inferred from MacDonnell's reply to Sutherland 'that a Governor is precluded from requiring the support of official mem- bers of the Council in respect of a policy originated by himself, even before the policy has been submitted for the approval of the home government'. Cardwell's ruling followed normal British constitutional practice by which the members of a government are expected to support its measures by their votes in the Legislature or else resign. A career official has little choice, and the principle means that he has to voice his opposition in private and not in public. From this time the official majority has always voted as a body in support of, and if necessary to carry, the measures of the colonial administration. Forth, the man who occasioned this statement of principle was a man of peculiar temperament who had opposed his colleagues on other occasions. William Mercer, acting Governor after Sir Hercules Robinson left, referred to him once, as 'a worse than useless public officer';1 but in this matter his very defects served a useful public purpose.
The intense opposition to the imposition of the military con- tribution led to the formation of a Reform Association which was set up in 1867 with a local editor called Sinnett as its secretary and guiding influence. Its object was to appeal directly to Parlia- ment to bring pressure to bear on the imperial authorities not to impose decisions contrary to the wishes of the local community, and its immediate object was to present a petition to Parliament against the military contribution. Sinnett had taken a strong line against this impost in his paper, The Daily Press, and against the Stamp Ordinance which had been passed to raise the amount required. He claimed that the Stamp Ordinance was frightening
1 Mercer to Duke of Newcastle (Confidential), 18 November 1862, CO 129/88.
CONSTITUTIONAL DEVELOPMENTS 1859-82
87
the Chinese and would drive Chinese traders away from the Colony. These arguments were reproduced in the petition which was sent direct to London without reference to the Hong Kong Government.
The Reform Association, which also partly owed its origin to the 1867 Reform Act in England, did not last long. In the following year, MacDonnell stated' that, though articles in the local press expressed much criticism of the administration and demanded a more representative form of government, yet, he said, 'I believe the community at large is profoundly indifferent on the latter subject', and that the best informed opinion in the Colony did not believe that such a reform was either practicable or desirable. He reported that the Reform Association which had been founded to urge such changes 'had died out through sheer inanition', and that having regard to 'the singular constituent portions of its (i.e. the Colony's) population and the influence directly exercised over that population by a foreign government in the immediate vicinity of the Colony, it would be difficult to devise a more practically useful constitution for it than that which is established here at present'.
The advocates of greater representation of the community in the Legislative Council pointed to the successful functioning of the Shanghai Municipal Council. In Shanghai the land-renters not only elected all the members of the Council but themselves retained some control of taxation at their annual meeting. Since the majority were British, the implication was that a similar system might justifiably be applied in Hong Kong. It was argued too that Shanghai was exempt from the payment of a military contribution though it gained equally from the presence of British forces in Hong Kong. These arguments had little result. The demand for representative government soon faded out because it rested not on abstract principles, but on popular opposition to a military con- tribution and attendant taxation.
The views of the unofficial members of the Legislative Council during these years received greater attention particularly in financial matters. They strongly criticized a new Companies' Ordinance and a new Bankruptcy Ordinance, though there was a suspicion that they were representing the interests of the old agency houses
Sir Richard MacDonnell to Earl of Granville, 15 September 1869, No. 793, CO 120/139.
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GOVERNMENT AND PEOPLE 1841-1962
which were partnerships and were making it difficult for new joint-stock firms to come into existence.
praya to
The unofficials were consulted about repairing the praya after the 1874 typhoon and on a large scheme to extend the the east to take in the naval and military areas. In 1872 they resisted a considerable increase in the numbers and cost of the police and secured some reduction in the police estimates.
A change was made in 1860 in voting the annual estimates by the Legislative Council, by which certain fixed annual charges such as salaries of the government officers were placed in a civil list and not submitted to an annual vote. In this way no action could be taken against an unpopular official by threatening to reduce his salary.
In 1873 Phineas Ryrie1 complained about the short time allowed to examine the annual estimates, there being only seven days between the first and second readings. His motion found no seconder, but the Earl of Kimberley, Secretary of State for the Colonies (1870-74), thought Ryrie's protest was reasonable. In 1874 the Colony was struck by a severe typhoon, and the Captain Superintendent of Police was severely criticized because he kept the police in barracks while it was raging. Ryrie protested against his action in the Legislative Council, but J. Gardiner Austin, the Colonial Secretary who was temporarily administering the govern- ment, refused to enter the protest on the minutes, on the ground that a member could protest only against a decision of the Council and not against a decision of the head of a government department. In the next annual estimates, the unofficial members made an unavailing attempt to strike out provision for the police chief's salary.
The unofficials were not always unheld; for example in 1871 there was trouble between Ryrie and the Colonial Secretary, C. C. Smith.2 Ryrie acting on information from Chinese sources, strongly complained of a proposal alleged to have been made by Wade, the British Minister in Peking, to allow the Chinese Government
* Phineas Ryrie, of Turner & Co., arrived in the Colony 1854 and resided until his death in 1892 and was a member of the Legislative Council some 25 years (1867-1892). Chairman of the Chamber of Commerce, 1867-68, 1871-76, and 1886-89.
2 Sir Cecil Clementi Smith (1840-1916). One of the first Cadet officers appointed by examination in 1862. Went to Singapore as Colonial Secretary 1878; Colonial Secretary, Ceylon, 1885; and became Governor of the Straits Settlements (1887-93).
!
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to set up a customs station in the Colony. The Governor's offer to give the information confidentially to the unofficial members was refused and a debate in the Legislative Council on the subject was rejected on the ground that Wade's dispatch was confidential. Ryrie accused Smith of supporting Wade and demanded the production of the relevant documents to the members of the Council as a matter of privilege. This was refused and the Secretary of State in London ruled that Ryrie's contention could not be upheld. The rulings meant that the unofficial members of the Legislative Council could not claim to debate general matters of policy and could not claim to control the Executive.
During this period, the unofficial members were invariably selected from among the leading British merchants. Looking through the list of unofficial members of the Legislative Council in the years 1859-77, as given in Appendix D, we find that the three unofficial members of the Council were chosen from a limited number of commercial houses.
Jardine, Matheson & Co., "The Princely Hong', are continuously represented over the period, and Dent & Co. until their bank- ruptcy in 1867, when their place was taken by Gibb, Livingston & Co. The third member is shared by seven firms.1
This virtual monopoly of the British mercantile interests to the non-official seats on the Legislative Council was shortly to come to end.
Sir John Pope Hennessy and the First Chinese Member of the Legislative Council, 1877–82
The appointment of the first Chinese member of the Legislative Council was made in 1880, on the initiative of Sir John Pope Hennessy, Governor 1878-82, as part of his policy of assisting and
2
A petition of 9 February 1865 by the Chamber of Commerce to the Governor against the rejection by the Legislative Council of a Limited Liability Ordinance, shows the membership of the Chamber as 49, made up of 42 firms, 5 banks and 2 shipping companies, of which 30 were British, 8 Indian and the remainder of various nationalities.
2 Sir John Pope Hennessy (1834-91). Born in County Kerry, Ireland, Member of Parliament 1859, the first Roman Catholic Conservative who sat in Parliament. Called to the Bar, Inner Temple, 1861. Governor of Labuan, 1867; the Gold Coast, 1872; Bahamas, 1875 and of Hong Kong, 1877-82. Governor of Mauritius, 1883-1889.
דר יחיד
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conciliating the Chinese section of the population. Hennessy has been described as 'an able and typical Irishman, quick of wit and repartee, of human and sympathetic but impulsive temperament'. His failure as a Colonial Governor was due to his want of tact and judgment, and his faculty of 'irritating where he might conciliate'. Unhappily too, his mind worked tortuously and he never acquired the habit of making definite and accurate statements'.1
The time for giving the Chinese community greater influence in the Colony's administration was becoming ripe, for the Chinese were contributing to the commercial prosperity and revenue of the Colony by expanded business undertakings and taking over more Crown leases. Victoria was virtually becoming a Chinese city. The growth of the Chinese section of the population which has already been noticed, accelerated under the beneficent rule of Hennessy. In 1877 the population was estimated to be 139,144 of whom 130,168 were Chinese including 36,168 women; in the 1881 census the population was 160,402, of whom 150,690 were Chinese including 43,029 women. The growing Chinese popula- tion brought about the expansion of secondary industries and
minor trades.
In the all-round expansion of the Colony's fortunes which followed the treaty settlements with China of 1858 and 1860, the Chinese played a notable part. The numerous and growing Chinese overseas communities, in the United States, Australia, Malaya, the Indian Ocean, the Pacific Islands, South America and the West Indies which clung tenaciously to the Chinese way of life, created a demand for Chinese products which was generally supplied through Chinese merchants in Hong Kong; the Island also became the centre of an important Chinese passenger- carrying trade. The distribution of British and foreign goods to ports on the China coast other than the treaty ports, and to the interior was largely handled by the Chinese and this applied equally to the purchases of Chinese goods for the British and foreign market. This was happening not only in Hong Kong but in all the treaty ports. In reply to a circular letter from Sir Rutherford Alcock, the British Minister at Peking, in 1869, all the British consuls agreed that the distribution of British and foreign
1 From the Dictionary of National Biography, quoting The Times, 8 October
1891.
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goods was passing into the hands of the Chinese.1 Chinese-owned shipping received a great fillip by the protection it received from the local ordinance which allowed Chinese holders of Crown lands in the Colony to register their ships on the Colony register of shipping and so secure the protection of the British flag. They benefited from the stability of the Colony's economic life and of its currency, and from the absence of irritating restrictions.
One result of the expansion of Chinese business was pressure on the accommodation for the Chinese available in the Colony. In Hong Kong there was a tradition inherited from the old Canton period that the Chinese and foreign communities lived apart, and since their social habits and customs stood in such marked contrast, this arrangement was mutually convenient. The custom grew up of reserving certain areas for houses of European and Chinese types respectively; its only sanction was a clause in the land leases which had been interpreted in practice as giving this power, and though the restriction technically applied to houses and not to persons, in effect it resulted in racial segregation. In 1877 Hennessy in a long dispatch2 pointed to the growth of Chinese-owned business and suggested that the Chinese should be allowed to hold property in Queen's Road, hitherto the main European thorough- fare. The Colonial Office comment on this dispatch was a laconic observation that they already knew that Hong Kong was becoming a Chinese city. In July 1880, Hennessy wrote again saying that the Chinese were growing in wealth and importance, and showing great industry and probity; he explained that they could place British goods on the eastern markets cheaper than the British merchant houses with corresponding advantage to British manu- facturers; that they were the largest owners of real property and held 90% of the note issue and contributed over 90% of the Colony's revenue. Commenting on the census held in 1881, Hennessy noted that since 1876, the year before his arrival, the Chinese population had increased in number by 20,000, while the Europeans had increased by only 276, and European males had shown an actual decrease, that the Chinese Nam Pak Hongs3 had increased
1 See N. A. Pelcovits, Old China Hands and the Foreign Office, p. 35 and references on pp. 306-07. Institute of Pacific Relations, New York 1948.
Sir John Hennessy to the Earl of Carnarvon, 27 September 1877, No. 123, Nam Pak Hongs (literally, South North Hongs) were trading associations or guilds of those engaged in trade with China and S.E. Asia.
CO 129-179.
ར-----
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GOVERNMENT AND PEOPLE 1841-1962
from 215 to 395, and the number of Chinese traders from 287 to 2,377 and Chinese bullion dealers who first appeared in this period by 1881 numbered 34. In August 1881 Hennessy sent home a list of the largest ratepayers in the Colony, these paying $1,000 or more per quarter, which showed that there were 17 Chinese names and only one British (Jardine, Matheson & Co.) in this category.1 During the period January 1880 to May 1881, the Chinese had bought land from European owners to the value of $1,710,000. Hennessy said he had encouraged the Chinese to buy land in Queen's Road because it was impossible 'to keep back the free current of commercial life', and permitted it because there was 'no legal impediment'.
Hennessy from the first pursued a policy of encouraging the Chinese in Hong Kong and of acting in defence of their interests and so giving them greater self respect. Besides allowing them to buy land in the European quarter, he gave them more educational facilities, protected their cemeteries, checked the practice of deportation, abolished the branding and the public flogging of Chinese criminals, and proposed the first typhoon anchorage to protect their boat population. Under him, junior posts in the government service were further opened to the Chinese by com- petitive examination, and he began the practice whereby local Chinese and other aliens, were given British nationality by private ordinance, which, however, was valid only in the Colony. That Hennessy should attempt to extend his liberal Chinese policy to the constitutional field was not surprising.
Until then the Legislative Council was regarded as a British preserve, and local demands for a more effective representation of the community upon it had been discussed in the context of British commercial interests. The economic and social progress of the Chinese was such that their admission to a share in the con- stitution could not in any case have not been long delayed; Hennessy acted therefore in anticipation of a natural development of events.
In 1879 the Chinese sent a memorial to the Governor saying that since they were ten times the number of the foreigners 'hence- forth it would be but fair to allow the Chinese community a share in the management of public affairs of the Colony'. This request
Sir John Pope Hennessy to Earl of Kimberley, 31 August 1881, No. 140, CO 129/194.
2. NG CHOY (Wu Ting-fan) (() First Chinese member of the Legislative Council, 1880. From J. Norton-Kyshe, History of the Laws and Courts of Hong Kong. T. Fisher Unwin and Noronha & Co., Hong Kong i898.
Facing page 93
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was acted upon by Hennessy with an alacrity which suggests that it might have originated with him. In 1879 when Henry Lowcock, an unofficial member of the Legislative Council, left the Colony on leave, the Governor suggested that he should be replaced by a Chinese. Hicks Beach, the Secretary of State (1878-80), decided that such a proposal should be allowed to wait and H. B. Gibb, a former member of the Council and Lowcock's colleague in Gibb, Livingston & Co., was appointed.
In January 1880 in the temporary absence of Gibb, Hennessy again proposed1 a Chinese, this time a barrister, Ng Choy,2 as a temporary member of the Legislative Council and provisionally appointed him. He argued that the time had come to place on the Council a man who fairly represented the interests of the Chinese community and reported that the 'wealthy and better Chinese' whom he had consulted had agreed that Ng Choy was well able to represent them. Hennessy pointed to the precedent of Singapore where a Chinese, Hoo Ah Kay Whampoa, had been appointed to the Legislative Council in 1869, and to his own earlier action as Governor of Labuan in which Colony he had appointed a Chinese, Chou Massoo, to its Legislative Council.
Hennessy followed up his action in nominating a Chinese as a temporary member, by a proposal to reorganize the Council to provide for permanent Chinese representation. He proposed to increase the Legislative Council to eleven members, six official and five unofficial, plus the Governor. He suggested that as the posts of Colonial Secretary and Auditor-General, the holders of which were both ex officio members, were held by the same man, Price, the Surveyor-General should be an official member in place of the Auditor-General, and as the sixth official member he suggested the Harbour Master, on the ground that the port was the biggest in the Colonial Empire and a centre of Chinese emigration.3 To
Sir John Hennessy to Sir Michael Hicks Beach, 19 January 1880, No. 4, CO 129/187.
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