The Sun.
London, England, 1838-07-28 00:00:00

COUNTY CLARE TREASURERS' BILL.

Mr. MORE O'FERlCALlmo;edthethirdreading of the County
Clare Treasurers' Bill.
Mr. MORE O'FERR ALL moved the introduction of the following
clause by way of rider :—" And be it enacted, that it shall be lawful for
the Chief Remembrancer, in case he shall deem it expedient so to do, to
order that the recognizances entered into by the said George O'Calla-
ghan, or such treasurer as aforesaid, and by his sureties, shall be vacated
on the payment by the said George O'Callaghan, or his sureties, of the
sums for which he is now bound by recognizances—such payment to
be made into the bank with which the present treasurer of the county
has his public account, to the credit thereof."
Sir R. FERGUSSON, as we understood, objected to the clause.
Sir T. FREMANTLE was sorry the clause was proceeded with. Its
object was to explain a doubt, but he did not think any doubt existed at
all on the subject. The treasurer and his sureties were not bound in
the payment of any specific sum. but the condition was the due perfor-
mance of the duties of his office, and the due accounting for
all monies received by him. It appeared to him that the
House by adopt; ng the course proposed would be doing
gross injustice to the county of Clare. Hewould put it to any
Member of that House, if the law was one way and equity
another—whether it was right that the House of Commons, knowing
very little of the matter, should step in and release the principal and sir-
rity, upon paying the original cost. The remedy being by pro-
ceedings in equity he trusted the House would not by a side wiad
decide the rights of the parties, but would reject the clause altogether.
Mr. M. O'FER II A LI. said the Bill appeared to have been mi.under_
stood from its first introduction. The object of it was to enable them to
take the property of the Treasurer of the county of Clare, in order to
cover that part of the public money for which he had not given security.
He (Mr. M. O'Ferrail) contended that the sureties were bound only for
7,000/. If, however, any equity lawyer would give it as his opinion
that this c'ause would place the Treasurer in a better, and the county
in a worse, condition than before, he would give up the clause.
But he felt it his duty to press the clause for this reason, that if it did
not pass, the contractors would be unpaid till November, and, of course,
would be in great distress. And he begged to disclaim any intention
of what had been broadly insinuated—that it was a job.
Sir J. GRAHAM said the Honourable Member had mistaken the
conditions of the suretyship, which were, as he (Sir James Graham)
understood, that besides the principal being bound for seven thousand
pounds, the sureties were likewise bound for the same sum.
He was of opinion that this summary mode ought not to be adopted for
the purpose of stopping legal proceedings, and should take the sense of
the House on the subject.

After a few words from the Attorney. General, Mr. Chalmers, Mr.
Yates, and Mr. French,
Mr. OTERIt ALL said he did not wish to press the clause, if
Honourable Gentlemen opposite were of opinion that it would place
the county in a worse position than it was before. He should, there-
fore withdraw it.

The CHANCELLOR of the EXCHEQUER begged to observe, that
application had been made to the Treasury to carry through the present
Bill, as in the case of the county of Tyrone. As to the arrangement be-
tween the county of Clare and their Treasurer, that was a matter with
which the Treasury had nothing to do. He wished it, however, to be
distinctly understood, that although they had interposed by Legislative
enactments to give relief in two cases where Irish county treasurers had be-
come insolvent,that was not a proceeding which could not be locked to here-
after. They had passed a Bill for the purpose of improving the law relating
to County Treasurers, and he would never lend himself to give any ape-
cial legislative enactment afterwards, Let the Counties look after the
securities of their Treasusers, and if any deficiency arise, let them en-
force Payment from those securities. The Treasury was actually ha.
rassed with applications of this sort, and it was very painful to them to
be obliged to refuse. It had in the present case, however, been dis.
tinctly stipulated that the Bill should not alter the law as regarded the
securities of the Treasurer, and that the County should not be placed in
either a better or worse position than before.
After a few observations from Mr. F. FRENCH and Sir ROBERT
FERGUSSON, the clause was withdrawn, and the Bill was read a third
time, and passed.
On the motion of the LORD ADVOCATE, the Entails (Scotland)
Bill was read a third
CHtime, and passed.
INA COURTS BILL.

Lord PALMERSTON moved that the House should resolve itself
into a Committee of the whole House upon the China Courts Bill.
Mr. HA WES had been requested by his Honourable Friend the
Member for Portsmouth (Sir J. Staunton) to make a few observations
with respect to this Bill. He had given notice of his intention on going
into Committee to move certain resolutions for the purpose of showing
"t—h-a-t
it was inexpedient to establish a Court with the jurisdiction about
to be given by the present Bill, unless the authorities of China had given
their assent. Now he had carefully looked over the papers the Noble
Lord had laid before the House, and he could not discover in them the
smallest trace of the smallest consent on the part of the authorities of
China to the jurisdiction proposed to be given by the Noble Lord.
He wished to ask the Noble Lord whether the authorities
of China recognised this interference with their old laws ?
The Noble Lord was about to establish a Court whose authority he
could not enforce. Suppose a Chinese were a defendant, and refused
to appear, a verdict was given against him, what power but that of
actual force could excute and enforce the jurisdiction of the Court ?
He found a very apt case in the papers laid on the table of the House
by the Noble Lord. A Chinese was wounded by one of the La=cars on
board an English ship, and the Lascar was taken into custody. Our Chief
Superintendant demanded that he should be given up to be tried
by English laws. The reply was that the Lascar was in
custody of the Manderin, and could not be given up, pending
an inquiry relating to the saf.ly of Lativc, of China, and a
,grzt ,;;hied that it' 411 !Vtlilt. to Irance, lie tr1:1, La and
would be held amedable to the laws or France; why thou, should not
the same rule apply when Englishmen went to China ? That proved

.t ,

that the Chinese well understood their position, and the necessity of ob
taining their sanction before instituting this court. The Briti.•h nation
was admitted into the Chinese territory by sufferance for the purposes of
trade, and were bound to conform to Chinese usages, and not to attempt
to force their own customs upon the Chinese.—(Hear, hear.)
And in case this measure was adopted and attempted to be carried into
effect, we involved our commercial intercourse with China in very con-
siderable danger. The provisions of this Bill were most extraordinary.
The Orders in Council—virtually, the orders of the Noble Lord (Pal_
mcrston)—were to have the force of law, and were to be coextensive •
with the jurisdiction of the Court that was to be established. The East
India Company carried on their trade in China without the aid of any
such powers; and the Americans conducted their commerce with
China without any such powers, nay, without any salaried establish-
ment at all : they dopencled on the simple principles of trading—mutual
and reciprocal benefit. supposing this Bill passed, could it be carried
into operation with anything like good faith, while the contraband trade
between us and the Chinese (which went to such an extent, and
which must exist, until our trade with China was put an end to) was
suffered to go on ? Impressed with these views, he (Mr. Hawes) should
conclude by moving the first of the resolutions, notice 4 which had
been given by the Hors. Baronet (Sir G. Staunton)—That it is inexpe-
dient to pass any Bill for establishing courts of civil and criminal juris-
diction in China, until satisfactory evidence be given of the assent of the
Government of that country.

Captain A LS A GER seconded the amendment,
Lord PALMERSTON could not acquiesce in the proposal of his Hon
Friend, and thought that he and the Hon. Member for Portsmouth
whose speech he had undertaken to make—(A laugh)—had not fully
considered the nature of the Bill now under the consideration of the
Ifouse, and the enactments of the law passed in 1833. The Hon.
Member stated that it was inexpedient to press any Bill establish-
ing courts with criminal and admiralty jurisdiction in China,
without the previous consent of the Emperor of China. The fact was,
that this had been done by the Act of 1833, to which the Right Hon.
Baronet opposite (Sir J. Graham) when First Lord of the Admiralty,
was a party. That Bill conferred on the Crown the power of establish-
ing in China, Courts of Admiralty and Criminal Jurisdiction ; and one
reason why he now proposed this Bill was, that he thought it expo:limit
these Courts should, in addition to Criminal and Admiralty Jurisdic-
tion, possess Civil Jurisdiction ; and that doubts were entertained in
consequence of the ambiguous wording of a clause in the existing law,
whether the latter words of that clause, which specifically mentioned
the Admiralty and Criminal Jurisdiction, did or did not commit the
words in the former part of the section, which were more general, and
which, if they stood alone, would give all the powers which were now
required to establish the Civil Jurisdiction.—(Cries of " Hear.")
The Act to which he referred was the 3d and 4th of Win. IV., c. 93.
It was contended that the words of the latter part of the clause con-
trouled the former, under which it was competent to give facilities for
the establishment of these Courts by an order in Council. He would
contend, therefore, that the resolution applied more to the law passed
in 1833 than to the Bill now before the House; but he was prepared to
discuss the principle of the present measure with the Honour-
able Member. It was true, the present might be called an
exceptional case. It was well known that they had no diplo-
matic connection or relations with the Emperor of China. Fre-
quent attempts had been made to establish them, but they had failed.
The only way by which these relations could be established was by
another embassy, and he did not think his Hon. Friend would recom-
mend such a course again, It was alleged that the India Company
had no such Courts, but that they had a power and authority which stood
in lieu of it. Cases unfortunately arose in which offences had been com-
mitted by British subjects in China, and the surrender of these subjects
was required, and the Company found itself placed in the discreditable
dilemma of either on the one hand surrendering a British subject to be
tried by Courts in which justice was openly set at defiance; or,
on the other hand, refusing to deliver up the offender, and in-
vest him with impunity for his offence. That position was full
of embarrassment, and it was as discreditable to the character
of the Company as it was to the character of the British nation.
But cases did happen in which it slid occur. Then came the embarrass-
ment, if the Chinese Government had chosen to assert its rights, and
resented these infractions of its acknowledged jurisdiction, they would
havo.stopped the trade, and that would have been attended with great
loss. The Company, however, in more than one instance risked the
loss of trade rather than be the instruments of committing legal mur-
der on the subjects of this country. He would admit to' his Hum
Friend that there was no consent on the part of the Chinese
authorities, nor could they obtain it without that intercourse
with China which it was impossible in the present state of
things to obtain.—(Hear, hear, hear.) But the question was, though
the authorities of China had not given their consent, whether
they would resent such an interference on the part of this country ;
and from the papers that had been laid on the table, he thought it clearly
appeared that they would not, and that there was every probability of
their being reconciled. His Hon. Friend the Member for Portsmouth,
in a work written by him on this subject, stated in distinct
terms, that, in order to enforce order the usual mode of admi-
nistering justice in China, would be wholly inadequate.
The question then arose, were the Chinese laws suspended or relaxed in
favour of strangers. Sir G. Staunton stated that virtually all the
Chinese laws were suspended in the case of Foreigners, except in ca..
pital offences, so that there was nothing contained in the Bill which was
at all inconsistent with the present practice, and the acknowledged prin-
ciple of the Chinese people. He further stated in his book that a Fo.
reigner who had committed an offence, if net punished, he drew down
the hatred of the Chinese upon the country he belonged to ; and if he
was punished, it led to great humiliation and disgrace to the cri.
minal's countrymen.—(Hear, hear.) It was impossible for them to
deliver up any offender who was sailing for China, or was resident
there under our protection. Not only Sir G. Staunton, but another
gentleman, who, from his long residence in China, was entitled to be
considered a high authority, he meant Mr. Drummond, who stated that
the Chinese, in the event of a murder or homicide, would put to death
any person delivered up to them, whether guilty or innocent; with what
they (the Chinese) indeed called a regular trial, but which was, in fact,
most irregular and unjust. The Chinese held the Governments of
foreign countries responsible :for the conduct of all their subjects in
China. Sir G. Sseunton stated that the Company's servants would
be held resporssible, net only for the conduct of the
crews of all private vessels into all of the Ring's ships there. And Sir
George went on to give an instance of an American, who being given
up to the Chinese, was put to death. This proves two things, first, that
the Chinese held the entire trade of a nation responsible for all their
subjects going there, and seconcny,that the custom of delivering up per-
sons to the Chinese tribunals ,n cases of homicide, (a custom opposed to
that which was at present adopted by the English) was not calculited to
lead to a satisfactory conclusion. The Noble Lord proceeded to say,
Sir George Staunton contended, not only was it necesserry to have
the power to control by established rules her Mejesty's subjects, but
that there should he even the messes of sespendieg the trade
tieh subjects in cases of negotiation with the Chinese Governmenr,
He contended, therefore, from the authority of the Hon. Member fur
Portsmouth, that Ire had clearly established the grounds upon which,
cot this Bill, but the Bill of 1833, to which the Right Hon. Baronet
opposite and himself were joint-parties, had been passed. A due regard
to British interests and to British character required that the Bill
should pass. If it was shown that the English Government had power
to establish Courts for the trial of those greater offences, and Sir Geo.
Staunton said it did not apply to the trial of minor ones, he should-like
to know upon what principle that power was not applicable to the
smaller offences, which it was in fact more necessary to control and
prevent, as it would be the best means of preventing that insubordina-
tion which was calculated to occasion these more grave offences.
He would say therefore that there must be some misunder-
standing as to the operation of the present Bill. Its object
merely was to extend the powers of the existing law to the trial
of civil offences. His Honourable Friend had complained of the
arbitrary dictatorial power confided to the Government, which, by an
Order in Council could establish Courts for the trial of any offences
there. He admitted that such was the case, but there was no remedy
for it. His Hon. Friend and the House must perceive the difficulty of
passing any law embodying such a code as would be applicable to all
offences that might arise. It was proposed by the present
measure to give to those Courts a power of adjudicating
between a British subject, and persons of any other na-
tion, or Chinese, when an appeal was made to them against a British
subject. In the Bill of 1833 power wee given to levy certain tonnage
duties, to defray the expellees of the establishment of these Courts, but
upon further ccnsideration, it was felt that such a proceeding would
be an injury to the trade with China, and the plan was aban.
doned. The expenses of these Courts have, from that pe-
riod, been the subject of an annual vote from Parliament.
He thought when he was bringing in a Bill upon ttais subject it would
be better to repeal that part of the law which empowered the Crown to
levy duties, and therefore a clause had been introduced in the present
Bill to that effect. He also felt that it would be desirable to alter
the title of the officer who was to administer the law ; and fur
that purpose a clause had been introduced, giving the power and
authority hitherto vested in the Superintendent to the Consul; at the
same time, however, he felt bound to say that he considered it de.
sirable that the power should be given to Consuls, he thought it might
be expedient, considering the character of the Chinese nation, and their
aversion to change, for some time longer to retain the title of Superinten.
dent. These were the chief features of the Bill, and with these expla-
nations he trusted the House would allow it to go into Committee.
Sir J. GRAHAM felt bound to express his regret that the Noble Lord
should have thought it necessary, in the present state of the House, and
at this advanced period of the session, to bring under its consideration
a question of such great importance. The Noble Lord had read to the
House some extracts from a work of the Hon. Member for Portsmouth,
published some time since ; and although he was disposed to give them
the credit they deserved, he must remind the Noble Lord, that whatever
might have been the opinion of the Honourable Member for Ports-
mouth under other circumstances, he was decidedly opposed
to the measure proposed by tire Noble Lord. The Noble
Lord was perfectly correct when he stated that when he (Sir J. Graham)
had the honour of being his colleague, he bad taken some part in framing
a measure that was then brought under the consideration of tire House.
He never regretted that because the measure had the effect, not-
withstanding all that had been said against it, of opening the China trade.
But he found himself bound to say that experience had convinced him
that the clauses were unnecessary, and he now considered that it would
be highly inexpedient to extend their operation. It was clear that
Lord Napier leaving this country with an erroneous impression of the
powers entrusted to trim, did so demean himself to the Chinese autho-
rities as seriously to endanger our commercial relations with that coon.
try, and exposed himself to such annoyances as he (Sir James
Graham) fully believed cost him his life. Those who accom-
panied him being taught by experience so modified their course
of proceeding as to be able to renew our intercourse. The Chinese ne-
ver allowed us to fix ourselves at Canton, and in place of having three
superintendents resident there, we had only one officer exercising the
powers of a Consul. He had no doubt but that the Chinese would
take every advantage of the Court as plaintiffs, but they would
never submit to its jurisdiction as defendants, so that it would
prove to he a gross hardship on British subjects.—(Hear, hear.)
If these extraordinary powers were granted, it would be impossible to
entrust their exercise to the ordinary authorities ; there must be some
high legal authority. He (Sir J. G.) had somewhere read that all the
earth was to be put under a Commission—(A laugh)—and he supposed
there must be a barrister or a Commission of barristers, of six years stand-
ing, sent out to China to put a law in execution, acknowledged to be
arbitrary in its nature. Now, as to the authority of Sir G. Staunton,
which the Noble Lord had quoted, that Hon. Baronet had since modifier;
his opinions, and was opposed to this Bill. Besides the Noble Lord rested
his case on the papers that had been produced when there was no consent
on the part of the Chinese signified, and he (Sir J. G.) begged the House
to recollect that Captain Elliot, in his last despatch (July 1837) had
stated that the Chinese were daily becoming more anxious to stand well
with the British Government, but they were very jealous as to this point
on which the Noble Lord wished to venture, and was it prudent to run
such a risk at a period when every thing was running smoothly?
He would ask the Noble Lord whether he did not think it prudent to
wait for further accounts from that country before he called on the
House, at this late period of the session, to pass a measure which might
interfere with the commercial relations which were every day be-
coming more important, and which had been the source of
great prosperity to our commerce. In the last dispatch, dated
the :.'6th September, 1837, Captain Elliot said he had no
hesitation in stating that it was in his power to secure for the Provin-
cial Parliament the most formal sanction of these operations. If that
was tine case delay would be of considerable advantage. Although he
was favourable to the motion of the lion. Member opposite, he should
like the Bill to go into Committee, because he approved highly
of the fifth clause for the repeal of tine Tonnage duties ; and he
therefore thought it highly desirable that the Bill should pass. It
appeared to him, that consistently with the whole course of British
policy, with international low and past experience, it would be
inadvisable to pace the present Bill. He had been satisfied from
experience that it weuld iojmneesos to t::tetid the op,
ratiou of these Counts, ;-.lthci,Bll, so far a, that went whirls
rescinded the tonnage duty, he would give the measure his support.
He should be sorry to obstruct the progress of that portions of the Inca.

sure, but if some understanding were not come; o he should, in the
evert of a division, vote against the Bill.

Mr. WARBURTON hoped his Hon. Friend would withdraw hit
resolution, and allow the Bill to go into Committee. It was most eisen
Gal that these tonnage duties should be repealed, and the Government
having given its assent, they were certain of carrying the proposition to
a favourable result. With regard to other clauses of the Bill, he hoped the
Noble Lord would re-consider them before he decided upon pressing them
upon the consideration of the House. In his opinion is would be far
better to defer them until they had some further informat.'on upon the
subject.
Lord PALMERSTON begged to set the Honourable Baronet right
with respect to the dispute between Lord Napier and the Chisiese Go.
vernment. The dispute did not turn upon any question like she pre-
sent, but as to the mode of communication between the Brit:sh and
the Chinese Governments—the former wishing to have a direc t corn-
rnunication, and the latter refusing any intercourse except, as unth'r the
old system, through the Hong merchants. He admitted that
it would be exi;e ient to ascertain the views of the Chinese Govern-
ment, before carrying a measure like the present into operation.—( Hear)
Captain Elliott, who was the only Superintendent, gave it as his do !cided
opinion that the consent of the Chinese authorities could be obtained.
The Right Hon. Baronet had said, get the consent of the Chinese G oven,
merit, and then come to Parliament. Did the Right flon.Baronet really
thin:: that that would he the best course to adopt ? Because when
the Chinese Government was asked to consent, they would naturally
enquire what the regulations were before they would decide. Now,
the wish of the Government was to obtain the consent of the Chimese
Government to something specific, and that was all that was wanted.

Mr. C. LUSHINGION trusted the Noble Lord would zc-
ceilo. to the excellent advice given him by the Right Ho-
nourable Baronet, as he felt convinced that it would be ta-
terly useless to attempt to get the consent of the Chinese Govern.
ment to abstract regulations.
Sir ROBERT INGLIS thought it would be far better not to pro.
coed further with the Bill in its present shape.

Captain ALSAGER understood that the courts were to have juris_
diction over British subjects only. Now, he knew that nine.tenths of
the disputes in Canton were between the British and Chinese subjects,
and he was certain that they never would submit to the authority of any
court but their own.

After a few words as to the course to be taken,
Mr. HAVES withdrew his amendment, in order to let the Bill go
into Committee. He would divide the House upon the first clause.
The House then went into Committee on the Bill.
On clause I being proposed,

Mr. HAWES rose to move its omission. As far as he knew, no
British merchants had given their assent to the measure, which was
therefore to be considered as emanating exclusively from the
Foreign.ollice. To the establishment of a Court for trial of ofThnces by
British subjects, there could be no objection ; but he protested against
a Court's interfering with an independent power like China. And if
such a course were taken let it not be forgotten that interested parties
would easily be found to whisper that to the Chinese authorities, and
render them jealous of, and hostile to, British interests.—(Hear.)
He therefore moved that the clause be omitted.
The SOLICITOR-GENERAL thought the omission of the clause
would place the House in a novel situation. There were two thousand
of her Majesty's subjects resident near Canton, and it was necessary there
should be some means of settling the disputes which might arise. It
was for the benefit of those on the spot that there should be some tribu-
nal to which they might resort.

Lord PALMERSTON said as the sense of the House appeared
to be against the Bill, he had no objection to postpone it until next
Session —(hear, hear.)
- After a few words from Sir JAMES GRAHAM, the Bill was with.
drawn fir th, present Session.