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NON-SUBMISSION TO CHINESE PUNISHMENT. 389

the absurd injustice and partiality of the local government has deprived it of the right to complain, if Europeans, in cases of accidental homicide, refuse to deliver up their countrymen to be strangled without a trial, or with only the mockery of one.*

*See note at the end of this volume.

NOTE ON HOMICIDES AT CANTON.

The following observations are prefaced by the extracts here subjoined :—

"With reference to the important question which you recommend to my consideration, of the expediency of establishing a judicial tribunal of our own at Canton, for the punishment of offenders-the evils of the present system are, I confess, great and undeniable. In order to save the innocent, we are compelled to do little less than systematically to screen the guilty; yet the establishment of a criminal court within the limits of a foreign state, and without the sanction of that state, (for the Chinese, though they would authorize you to convict, would never, I apprehend, sanction your right to acquit,) is such an anomaly in legislation, that a very strong case of expediency must be made out before it would be listened to."

"In my last letter, I just touched upon the subject you proposed to me, of the invention of a remedy for the very unsatisfactory state of the law, as applicable to your situation in China, in cases of homicide. The English laws are silent on the point, and the Chinese laws (or rather practice) speak a language to which you cannot either in honour or in policy entirely submit. The consequence is, that, in order to protect the innocent, you are often obliged to screen the guilty; the trade is disturbed, and crimes escape unpunished. I have thus fully acknowledged the evil, yet I cannot, I confess, quite see my way to a remedy. If it were likely that the Chinese might be prevailed on to sanction the establishment of a judicial court of our own at Canton, I think it possible that such a measure, though a very new and singular case, might be brought

about: but it would be obviously worse than useless if the Chinese Government did not agree to sanction its decisions, which, when their own subjects are concerned, I cannot help looking on as hopeless. I wish, however, you would digest this matter in your mind; and, if you should be able to sketch any plan of a remedy for the existing abuse, I hope you will send it me, for the information of the President of the Board of Control. If ever private traders from England should be admitted to compete in the tea trade at Canton with the Company, the evil would of course increase, and the remedy become more needful."

The above was the view taken of this question some years since, by a high authority, in reply to a written application. There are, perhaps, some reasons for attaching less weight to the apprehended opposition on the Chinese side. Not to mention the Dutch, of whom the same is recorded long since, the Portuguese very lately both tried and executed their man themselves; and, according to Chinese notions (on which of course this part of the difficulty entirely hinges), the Portuguese at Macao are not at all less dependent on Chinese law than we at Canton. The Chinese would therefore be as ready to allow our right to condemn real murderers, on board our ships, as they are to allow the Portuguese at Macao; and if they saw that we were willing and ready to bring real murderers to condign punishment, they would not be long in allowing our right to acquit the innocent. It is the feeling of jealousy and resentment (which we can hardly wonder at), arising from the almost certain escape, under the present system, of real criminals, that makes them so anxious to get hold of all persons indiscriminately, and in fact causes them to act more from a motive of revenge than with a view to promoting the ends of substantial justice.

This is a very barbarous and shocking state of things, little better on our side than on theirs, and it seems the duty of a great and civilized state, like England, to provide a remedy.

["From what foreigners," said Dr. Morrison, "have witnessed in cases of manslaughter, they have inferred that the Chinese Government acted rather from a spirit of revenge than according to law. That this is true appears from a state paper, quoted in the 34th section of the Chinese Penal Code. During the 13th year of Kien-loong, A. D. 1749, the then governor of Canton reported to the Emperor that he had tried some Macao foreigners who caused the death of two Chinese,* and having sentenced them (through their own authorities) to be bastinadoed and transported, had to request that, according to foreign laws, they might be sent to Temwan-Demaun. To this the Emperor replied, that the governor had managed very erroneously; that he should have required life for life. If,' it was added, 'you quote only our native laws, and, according to them, sentence to the bastinado and transportation, then the fierce and unruly dispositions of the foreigners will cease to be awed.' The Emperor thus declared (and his imperial decision is reprinted with every new edition of the laws) that the native law alone is not to be the guide of the local government when foreigners cause the death of natives. It is incumbent to have life for life,'-in order to frighten and repress the barbarians."]

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The propriety, and indeed necessity, of non-submission to the Chinese law, as suspended or perverted, and not administered, towards strangers, is easily made out. Though it be a principle obviously founded in natural justice, and has therefore been

*The European account is, that two soldiers murdered two Chinese, and were falsely represented as insane.

universally acknowledged as an established maxim of the law of nations, "that foreigners shall be amenable to the laws of the country in which they happen to reside,"—still this rule (not to mention that China subscribes to no international code whatever) must always have its conditions. Protection from, and submission to, local laws must, like every other right and obligation, be strictly reciprocal; and the state that denies to strangers an equal administration of its laws with natives seems to forfeit its claim on their submission. This point has been singularly illustrated in practice (as appears from Mr. Macfarlane's work) in the relations of European states with Turkey. "For many years, no such thing as an execution of Franks by Turkish law has been seen in the Levant, where offenders are given over to their respective consuls, &c." It is stated that this established immunity had been the result of the barbarity and injustice practised by the Turks towards all Franks accused of crimes; and it may easily be proved, from repeated experience, that reasons for the same exist (in an aggravated degree) in our relations with the Chinese.

We are fairly in possession of the fact, that they clearly understand the distinctions between malicious, excusable, and justifiable homicide; and that in the case of their own subjects the law distinguishes between

1. Killing with an intention;

2. Killing by pure accident; and

3. Killing in lawful self-defence, or in the execution of one's duty.

Although, according to an antiquated error in legislation, homicide is sometimes treated by them as a private, rather than as a public wrong (being made redeemable by a fine to the relations of the deceased), yet in the administration of the law to

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