Motion For Opinion Of The Judges
said, that, as he had some reason to believe that the Government would accept the proposition that he was about to make with certain modifications, it would not be necessary to weary their Lordships with a long preliminary statement. His object was to draw attention to the evils arising from the opium trade, and to ascertain the state of the law on that subject; and, having ascertained what the law was, and whether the opium trade, as at present carried on, was legal or illegal, their Lordships would then be able to devise a remedy for the evil. Their Lordships must all have heard a great deal of the opium trade between India and China. He knew of nothing that had of late more occupied the public mind and more scandalized the public conscience than that most immoral system, which was one of the most flagitious in- stances of unscrupulousness in the pursuit of wealth that mankind had ever witnessed. So long as that trade existed it would be impossible that peace, honour, quiet, and good order should prevail between our territories in India and the Government of the Emperor of China. This trade was in every point of view scandalous and perilous. Commercially it was the greatest impediment to legitimate traffic with China; it imposed the most severe restrictions upon the export of manufactures from this country; it impoverished alike both China and India; while it deprived this country of one of the greatest sources and most profitable outlets that could be found for the products of our commercial industry. If their Lordships looked at the question financially, they would find that the opium trade inflicted a great and permanent injustice upon the revenue of India by the interruption it occasioned to her commerce with China, and that a better system would not only tend to the benefit and happiness of the ryot, but would also greatly increase the legitimate revenue of the East India Company. In a political point of view the opium trade was a source of perpetual irritation and conflict upon the south-eastern coast of China, and so long as it existed a state of constant war would be carried on between the opium smugglers and the Custom-house authorities of the coast of China. It could not be denied that it was a most immoral traffic; its existence was most disgraceful to the national character of England, and the testimony of those who knew China best was, that opium and Christianity could not enter China together. He sincerely believed that the existence of the opium traffic had done more to discredit Christianity in China than anything else could possibly do, while the existence of opium cultivation and the ravages it produced had a similar effect on the people of India. No one Government was more responsible for the existing state of things than another. The evil had existed for more than half a century, and it had been encouraged and connived at by successive Governments; yet no Parliament had ever ventured to give a legislative sanction and positive enactment authorizing the monopoly and the trade in opium. There had been a growing sentiment for many years past, both in this country and in India, that the whole of this traffic from beginning to end was illegal. If their Lordships examined the various petitions which had been presented from India on this subject they would find that every one of them asserted that the traffic was altogether illegal, and was not only inconsistent with statute law, but was in direct contravention of the law of the realm. The point to which he wished to direct their Lordships' attention was that the connection between the Government and the monopoly and the trade in opium was inconsistent with the Act of 1833, which declared that the East India Company was to cease to be a commercial and trading company. When he first gave notice of his intention to bring this subject under the consideration of the House, he had intended to move an address to the Crown praying that a Commission of Inquiry should be issued. Upon further consideration he had determined to move a Resolution condemnatory of the traffic; but upon going still further into the question and examining the law he thought it better to ask their Lordships to refer the question for the opinion of the Judges. He had been charged in letters—some with names and some without—in articles in the newspapers and in private conversation—for taking the course he had adopted on this occasion, and it had been alleged that he had adopted this course for the purpose of giving facilities to the Government and causing delay. Now he declared upon the honour of a gentleman that there was not a shadow of truth in these charges, and that he had adopted this particular form of Motion, not to give facilities to the Government, but because he thought it would embarrass them the most. If he had proposed a Resolution he should be told, as he had been told by the late Sir Robert Peel, that these abstract Resolutions were very inconvenient and meant little or nothing. If, on the other hand, he had proposed an Address to the Crown for a Commission of Inquiry he should have been told that Commissions were very expensive, very long in their operation, and that it could not be expected in so important a matter that the Crown and Parliament would be bound by the appointment of such a Commission. Having been convinced that the whole system was illegal, he had determined to take his present course, and to move their Lordships to submit the question to the decision of the Judges. He believed that this course would be most likely to be successful. He assumed that the Government and the House would accept his proposition for a reference to the Judges, and he held that this was the best course for the question itself. If the Judges declared the monopoly and trade illegal, he should have carried his point, and it would then be for Parliament to devise a remedy and provide a substitute for any loss of revenue. If, on the contrary, the Judges declared the trade to be legal, he should have an entirely new starting point, and he could then appeal to the people of England to consider this great national sin, that had reduced our character and restricted our operations, and brought the name of the British people upon the south-east coast of China to a level in morals and conduct with the old detestable bucaneers of America. He could then make a ten times more forcible appeal to the public. It would then be declared that the East India Company carried on this traffic under Acts of Parliament, and that the nation alone was responsible for the sin. The doubts about the legality of the opium trade arose out of the Act of 1833, which gave the possession and government of India for a limited time to the East India Company. The passages out of which the doubt arose, were the preamble and the fourth section of the Act. Their Lordships would observe, that no question was raised upon the right of the East India Company to levy duties upon the growth or transit of opium growing on their own territory, or passing through their own territory. The question presented itself in two aspects—the territorial and the commercial. The territorial aspect was the levying a duty on all opium passing through the country. The commercial aspect was the Government of India being the manufacturers and vendors of opium: they prepared it in their factories, their mills, and boiling houses, and then carried it down to Calcutta, sold it by public auction, and went through the whole of these operations with as much zeal and activity as any shopkeeper. There was no more objection to the Government levying a duty on opium, than on spirits; but there was a great difference between levying a duty and preparing and selling the article, when, moreover, they knew its destination, and the use that would be made of it in the territories of a friendly empire. The Act of 1833 referred to the Act of 1813; the Act of 1813 referred to the Act of 1793, and that Act again referred to the Act of 1781; but in none of those Acts was any mention whatever made of opium. The fourth section of the Act of 1834 declared that the East India Company should cease altogether to be a trading company. It said:—
Could any one venture to contend that the whole system of the monopoly of opium in India, as carried on by the East India Company, was not, to all intents and purposes, a trading business? The poppy juice was purchased of the ryot by prepayment, the ryot was compelled to sell to the East India Company alone at a fixed rate; the Company manufactured the poppy juice into the drug for exportation, and so careful were they of pleasing their customers that, in the true style of shopkeeping, letters were sent from the seat of Government to the superintendents of factories, directing them to give the drug this or that flavour, to make it as racy and seductive as possible for the Chinese trade. Having manufactured the article, the Government had it carried down to Calcutta, and there put it up to auction in their own name. Could any one contend that it was not a commercial transaction simply because, when the opium was put on board the clippers, the Government had no share in the clippers? It was as clear a commercial business as dealing in tea, or anything else in which traders engaged. The section then went on to say:—"And be it enacted, that the said Company shall, with all convenient speed after the said 22nd day of April, 1854, close their commercial business, and make sale of all the merchandise, stores, and effects, at home and abroad, distinguished in their account books as commercial assets, and all their warehouses, lands, tenements, hereditaments, and property whatsoever which may not be retained for the purposes of the Government of the said territories, and get in all debts due to them on account of the commercial branch of their affairs, and reduce their commercial establishments as the same shall become unnecessary, and discontinue and abstain from all commercial business."
Those were the exceptional words on which the case for the Company rested; but if their Lordships gave to the words "commercial business" for the purposes of the said Government all the force claimed for them by the East India Company, the Company might undertake any commercial transaction, however extended, provided they could take on themselves to say it was for the purposes of the Government. The object of the Act of Parliament was to make them wind up their affairs as a trading company, and continue only what was indispensably necessary for a time, for the purposes of their Government. Could it be supposed that those words were sufficient to cover so great a grant as the monopolies of salt and opium, yielding a revenue of £6,000,000 or £7,000,000 a year, or that the words "commercial business" thrust in at the end of a section were meant to have so wide a signification? He was very much inclined to think the Legislature never contemplated anything of the kind. Powers of monopoly were given by the Act of 1793, and what were those powers?—"They shall discontinue and abstain from all commercial business which shall not be incident to the closing of their actual concerns, and to the conversion into money of the property hereinbefore directed to be sold, or which shall not be carried on for the purposes of the said Government."
There was no mention of opium in this Act. The Company could not establish a monopoly; a monopoly could only be established by Act of Parliament. Here was an Act of Parliament giving the Company monopoly in salt, betel-nut, and tobacco, and opium was not mentioned. He defied any one to show any statute which gave the Company the monopoly of the trade in opium. In 1834 the House of Commons touched very delicately on the subject. All they said was, that it had existed so long they were not prepared to disturb it. But they did not venture to put into the Act continuing the government in the East India Company a clause authorizing the opium monopoly. The only words on which the Company claimed to exercise so mighty a power, which was productive of fearful results both in India and China, were the exceptional words he had already quoted; and he ventured to submit no grant of a monopoly could be implied from the words "commercial business which shall be carried on for the purposes of the said Government." As to the question of revenue, did anybody conceive that that could be extended into the right of trading? Many persons were convinced the whole system was illegal. It ought to be submitted to most searching inquiry, and with a view to have a more calm and deliberate inquiry than could be obtained by reference to a Commission or a Committee, he hoped their Lordships would adopt his proposition—that the questions he had laid on the table should be submitted to the Judges of the land. His own belief was, that the Judges would declare the traffic altogether unlawful; but should they declare such an abomination existed by Act of Parliament, he should then, if life were spared him, in the next Parliament bring the whole subject under the consideration of their Lordships. The noble Earl concluded by moving—"Nor shall it be lawful for any of His Majesty's subjects to engage, intermeddle, or be in anywise concerned, directly or indirectly, in the inland trade—in salt, betel-nut, tobacco, &c., except on account of the said Company or with their permission."
"1st. Whether, having regard to the Fourth Section of an Act passed in a Session of Parliament holden in the Third and Fourth Years of the Reign of His late Majesty King William the Fourth, intituled 'An Act for effecting an Arrangement with the East India Company, and for the better Government of His Majesty's Indian Territories 'till the Thirtieth Day of April One thousand eight hundred and fifty-four,' and other the Laws bearing on this Question, it is lawful for the East India Company to derive a Revenue from Opium by the following System; that is to say, by prohibiting and preventing the Growth of the Poppy, from which Opium is made, within their Territories, except as grown on their Account and under their Licence and Superintendency, Advances of Money being annually made by them to the Cultivators of the Poppy by way of Prepayment of the Price of all the Juice of the Poppy of a specified Consistence, to be produced from the Land in respect of which such Advances are made, such Price being estimated according to a Price fixed by the Company for the District in which the Land happens to be situated; the Cultivators delivering to the Company as much of such Juice as the Cultivators can produce, such Juice being afterwards sent by the Company to their Factories, and there manufactured by them into Opium; afterwards sent by them from those Factories to Calcutta, and there sold by them by Auction at their Sales; the Excess of the Sale Prices over and above the first Cost constituting the Revenue in question?
2nd. Whether, having regard also to the Supplemental Treaty between Her Majesty and The Emperor of China, bearing Date the Eighth Day of October, 1843, which contains the following words:—'A fair and regular Tariff of Duties and other Dues having now been established, it is to be hoped that the System of Smuggling will entirely cease,' it is lawful for the East India Company to deal with such Opium in the Manner stated in the First Question, with the full Knowledge that it is so purchased at the above-mentioned Sales for the Purpose of being smuggled into China, in contravention of the Laws of that Empire; and so to cultivate and manufacture the same with a view principally to the China Market, and to its being so purchased for such Purposes as aforesaid; the Company with that view manufacturing the Opium into the Form which the Company consider best adapted to facilitate and promote that contraband Trade?"
admitted that the subject to which the noble Earl had called the attention of the House was one of deep importance; but he put it to his noble Friend and to the House whether the course which he asked them to pursue was one consistent with the ordinary principles of justice, and one, therefore, which their Lordships would sanction. His noble Friend poposed that it should be referred to the Judges to say, first, whether, according to the true construction of an Act of Parliament, the 3 & 4 Wm. IV., it was the opinion of the Judges that "it is lawful for the East India Company to derive a revenue from opium by the following system," that was to say, by the monopoly of the manufacture and sale of the drug. Now, the Judges were summoned to their Lordships' House to advise them in any matter on which they thought fit to ask their opinion; but he did not believe there was any case in which that opinion had been asked except with a view to some judicial business in which their Lordships had to decide, or to guide them in some pending or approaching legislation. The ordinary cases on which they were consulted every Session involved points of law, to assist their Lordships in cases submitted to that House as an ultimate court of appeal. Their Lordships also consulted them pending legislation, as to whether or not there was anything in the state of the law that could influence legislation on subjects then under the consideration of the House, or which would shortly be brought before them. The latter course was adopted in 1840 at the instance of a right rev. Prelate, who desired to ascertain from the Judges whether a proposed measure as to the appropriation of the Canada reserves would or not be consistent with existing Acts of Parliament. The question having been submitted to the Judges they gave their opinion upon it, and their Lordships' legislation was guided by that opinion. In such a state of circumstances it was perfectly right and proper to obtain the opinion of the Judges; but what would be the consequence of adopting a similar course upon the present occasion? The hypothesis of his noble Friend was, that for the last twenty years the East India Company, by their employés, had systematically gone on violating the law of the land, illegally obtaining revenue to the extent of millions in the year. If that were so, every one of the persons so engaged was liable to be tried and punished. It would be most inconvenient, therefore, that their Lordships should be called upon to prejudge the persons accused without giving them an opportunity of defending themselves, and that the Judges should be called upon behind their backs to say that the law had been habitually violated. So circumstanced, how could the Judges answer the questions? He could not help thinking that when his noble Friend saw the consequences which would result he would not persist in his Motion, nor would their Lordships, he thought, sanction it if he did. These matters, however, having been called to their attention, he was prepared to say on the part of the Government, that when they shall have ascertained clearly and distinctly what were the facts as to the manufacture of opium by the East India Company—how it was done, who were concerned in it, how it was disposed of—everything, in short, being distinctly stated as matter of fact, the Government would have no objection to submitting, though not in the terms in which his noble Friend had drawn them up, the question to the highest legal authorities whom they could properly consult, the law officers of the Crown; and that with respect to the second question, which related to the construction of the treaty concluded with China in 1843, he would say that they would consult the law officers of the Crown, with the addition of the Queen's Advocate, and their opinion the Government would communicate to their Lordships. Beyond that he had nothing to add. It was impossible to accede to the proposal that the legality or illegality of this question should be ascertained by a reference to the Judges. Without committing himself to the extent of saying that what had been done by the East India Company was or was not of an illegal character, he would remind the noble Earl that the object of the statute to which he referred was to discontinue commercial trading on the part of the East India Company, and it was so stated in express terms. Perhaps his noble Friend did not know so familiarly as noble Lords accustomed to legal questions, that by innumerable decisions, supported by the practice of two or three centuries, it had been held that dealing with the produce of one's own land, no matter to what extent, was not trading in the eye of the law. The very question of salt, to which the noble Earl had referred, had already been before the courts, and it had been decided that owners of salt pits, if they made the salt on their premises, were not traders. If the East India Company, in order to make the most of their land, raised and made opium or salt upon it, and sold it, the noble Earl must not suppose, in ignorance as they were of all the facts, that that was necessarily a violation of the statute of 1833. But the noble Earl assumed further, that in the cultivation of opium they exercised a monopoly, and had referred to previous Acts of Parliament with a view to show that they had no monopoly by statute. Whether the monopoly in opium, if it existed, was legal or not, he could not pretend to say without knowing the facts of the case, which at present he did not. It would materially depend upon what the course of dealing with the East India Company was. But he did not know how his noble Friend was to get out of the words at the end of the fourth section, cessation of commercial dealings except so far as relating to what should be carried on "for the purposes of the said Government." If he could not, then whether this manufacture was exercised by way of monopoly or not, or whether it was adopted as the best mode of raising the revenue, were questions not material—the question was, was it or not a dealing "for the purposes of the Government" within the meaning of the Act? He confessed it appeared to him to be hardly a matter worthy of being discussed. However, he had had too much experience in the profession not to know that difficulties often arose when least expected, and there might be difficulties here also. He should keep his mind suspended in reference to the question, though he could not anticipate that any ground could be stated upon which a decision would be made that this proceeding on the part of the Company was illegal. For these reasons he ventured to express a hope that the noble Earl would not embarrass—not the Government but rather their Lordships—by pressing his Motion. If, however, the noble Earl would rely on his (the Lord Chancellor's) word, he would undertake that the question should be referred to the law advisers of the Crown.
said, he had not intended to make a Motion which should have the effect of laying open to a criminal indictment the living and the dead for the last fifty years; and if it really involved such consequences he was ready to withdraw it upon an assurance that the whole subject should be submitted to the law officers of the Crown, and that their opinions should be given after a full investigation of all the facts. By that investigation his point would be really gained.
said, he thought the noble Earl had exercised a wise discretion in not pressing his Motion. He had heard with extreme astonishment the statement of the noble Earl that the Government acceded to his proposition with some modifications; but he found that the Government altogether objected to the Motion. He could not see that submitting a question to the law officers of the Crown was the same thing as taking the opinion of the Judges upon a matter which involved great political interests. He altogether objected to such a subject being sent to the law officers of the Crown, as it was a subject far beyond the reach of lawyers, and a decision upon it could not be obtained by mere special pleading and legal technicalities. The question was—and it was one of far too great importance to be adequately considered on this occasion—did their Lordships regard the system now pursued as being consistent with real justice and equity towards the Chinese and with our own treaty obligations? That was a question on which he was not at that moment prepared to express any opinion. Undoubtedly it was impossible not to feel painfully that the transactions in question were liable to some of the observations which his noble Friend (the Earl of Shaftesbury) had applied to them. It was impossible—considering that in 1842 and 1843 this country became solemnly bound to the Chinese Government to discourage smuggling of all descriptions—not painfully to feel that the East India Government had been mixed up in those transactions in a manner which it was difficult to justify by a reference to the ordinary principles of right and wrong. He acknowledged that; but at the same time he could not shut his eyes to the fact that it was not always quite clear that their Lordships could prevent the practice of vice by attempting to deal with it by direct legislation. There was, and had been for some time, a question of extreme difficulty in this country. There were many well-meaning, but, as he thought, ill-judging persons who thought the sale of intoxicating liquors ought to be altogether prohibited. He had always been persuaded that any legislation of that kind would be entirely ineffectual and unwise. It ought to be remembered that while opium was a drug liable to abuse it was also a medicine of the utmost importance to the welfare of mankind. Their Lordships could not altogether prohibit the production of it without inflicting the greatest possible evils, not only upon one part of the world but upon the whole world; and, if they were not to prohibit the production of it, he questioned whether it was in the power of any Government, when opium was produced and allowed to be sold, to regulate the manner in which it should be sold. When it once passed into the hands of the private consumer, he (Earl Grey) could not understand how by any machinery a Government could prevent it being applied to bad purposes instead of good, or how they could limit the use of it to what might be considered lawful purposes. For himself, he did not perceive that great difference which his noble Friend had endeavoured to establish between levying an export duty on opium and levying revenue by means of a monopoly. At the same time the question remained—had we, or had we not, after the opium had passed from the hands of the Indian Government, wilfully encouraged smuggling? Upon that point he had expected to hear some more remarks from his noble Friend. He (Earl Grey) used to think that they did not; but that opinion had been considerably shaken by an incidental observation of the British Resident at Hong Kong—he could not help reminding their Lordships that they had learnt from the papers laid before the House that the passing of the recent colonial ordinance had been of great advantage to the colony, because it had increased the coasting trade in that colony "in cotton, opium, and other products." He could not help thinking that that observation was pregnant with significance. He had always been under the impression that it was the manifest duty of the colonial authorities there, under the treaty, strictly to abstain from anything calculated to violate that treaty by encouraging the smuggling trade to which allusion had been made. If that was a correct impression, he entirely concurred with his noble Friend in the opinion that nothing could justify that smuggling trade. Our obligations under that treaty were clear and positive; and, when we were visiting the Chinese with punishment for what was a doubtful infraction of the treaty on their part, how should we stand if it turned out to be a fact that, while we were doing that, we ourselves, on a point of vital importance, and one in which the Chinese themselves took the deepest interest, had by means of our local authorities deliberately violated, not only the spirit, but the express terms of the treaty? He considered that was a matter of the greatest importance, and one which called for inquiry, but not inquiry of the kind suggested by his noble Friend—namely, by the law officers of the Crown, whose opinion on such a subject, when their Lordships got it, would not be worth the paper on which it was written. He could not help suggesting that the Government should now see that the time had come when this and other matters of a like kind ought to be most carefully considered. It had been announced that a negotiator was to be sent to China virtually to supersede Sir John Bowring, and to enter into negotiations with the Chinese Government with reference to the future conduct of our trade in that country. That announcement was a somewhat tardy one, and it had the appearance of having been extorted from the Government, as if those who had supported them during the recent discussions had intimated that they were not prepared to support them in retaining Sir John Bowring in the management of British affairs at Canton. But tardy as it was he (Earl Grey) hailed the announcement with great satisfaction, and he trusted that the name of the person to be selected would meet with the general approbation of the country and command the confidence both of their Lordships and of the other House of Parliament. He trusted also such person would be sent out with the view to ascertain, not only upon the matters now in dispute, but also upon all other questions, what were the best means of establishing peaceful relations with the Chinese. He remained of the opinion which he had already expressed, that our proceedings at Canton had been utterly inconsistent with every principle of justice and humanity. But assuming the very reverse—assuming those proceedings had been as right as he believed them to have been wrong, and that the Government could justify every step they had taken—still he said the occurrence of this Chinese war was a fearful calamity to this country and to the world; and their Lordships ought to be most anxious to put an end to it. He hoped the Government in sending out their instructions on this subject were not going to be actuated by that spirit which he was afraid was somewhat too prevalent in the country—a spirit which he could not describe as otherwise than unreasoning, and characterized by animosity and revenge, and which had been fostered in a manner which he, for one, must strongly condemn. He repeated that the hostilities with China had been a fearful calamity to this country and the world. He must call on their Lordships to observe the results which those events had produced. On the 8th of October last, when this unhappy occurrence took place, we had for more than ten years been carrying on, without the slightest interruption of any kind, a most advantageous trade. There had been no difficulty whatever in carrying on that trade. The commercial facilities at the five ports were equal to the facilities we found at New York, or at any of the other great commercial emporia of the world. We had no disputes of any consequence on the one hand or on the other; the slight grievances we had experienced had every one been redressed; and the Chinese had gone much further towards producing a feeling of reconciliation than we had. Did their Lordships remember that not a great many years ago a distinguished Austrian general was most grievously insulted and assaulted by some disreputable persons in this metropolis of England? Urgent application was made by the Austrian authorities for redress; in reply to which it was stated that the English Government were very sorry, that they condemned this proceeding, but unfortunately they could not help it; that they could not discover who were the culprits, and that by the English law they could not punish any persons until proof of their complicity was forthcoming. When, however, similar occurrences took place in China, what had happened? In the blue-book lately published there was a correspondence regarding some gentlemen who, shooting beyond the bounds assigned by the treaty, were in danger of their lives from a mob, but were protected by a Mandarin at the risk of his own life, some of his soldiers being wounded in repelling the assault. The English authorities, however, would not on that occasion listen to any excuse offered by the Chinese Government, to the effect that they could not find the offenders. They said, "We must have redress, or else we will take it ourselves. Some people must be punished for what has been done." That was the spirit in which we had habitually dealt with the Chinese. Our only real grievance now was the exclusion of British subjects without the walls of Canton. Englishmen were allowed to go into the suburbs; they were allowed to go into the country, far beyond the limits fixed by the treaty; but the Chinese said they could not protect foreigners inside the town. With that single exception, everything was going on quietly at Canton. Trade had increased so rapidly than in less than ten years our imports had more than doubled, and a very large revenue had been produced to the country. What had been the result of our recent acts at Canton? He would not talk now of the sufferings of the Chinese, though he could not (as some persons did) treat with absolute unconcern the sufferings of many thousands of the people of any nation, however ignorant or however much in the wrong they might be. Passing over this point, however, be would pray their Lordships to observe what had been the result of the attack on Canton, even as regarded our own interests. In the first place a most valuable trade had been interrupted. It was stated that the exports of tea had already fallen off to an extent which would entail a loss of between £1,000,000 and £2,000,000 to the revenue. Besides this, there had been a vast amount of British property destroyed, though he dared say the owners of this property would find compensation for this in the enhanced price of their tea. England was, moreover, embarked in a war—not against the Chinese Government in which, as in a former case, the population were inclined on our side, but one in which the people of China (whether with or without reason he did not stop to inquire) had been excited to so intense an animosity against us that in our own colony of Hong Kong the British residents were exposed to the utmost danger. The flame had even extended so far as Singapore, and the European inhabitants at that most valuable emporium of British trade were, as they were informed, in most serious alarm for their lives and property from the acts of the Chinese there. Already, too, the Government had been compelled to have recourse to measures which must be attended with so heavy an expense that, joined to the loss of revenue from the diminished imports of tea, it must inevitably disturb the whole financial arrangements of the year, and must compel Her Majesty's Government either to check that diminution in the expenditure to which the country confidently looked at the close of the Russian war, or to have recourse to that most improvident expedient, a loan. One or other of these measures must be resorted to, even now, at the commencement of the war. He maintained, then, that the Plenipotentiary sent out to China, whoever he might be, should receive instructions, drawn up in no vindictive spirit, but of such a nature as should lead him to make peace at the earliest moment consistent with the substantial interests of this country. That was the point to which he thought their Lordships ought to look, and he had made these remarks upon this occasion because he thought that Parliament was not likely to sit much longer, and because this was perhaps the only opportunity he should have of speaking upon this subject. Almost for the first time in our history, as he believed, we were engaged in a war which had not been formally made known to their Lordships by a Message from the Crown, and which Parliament had not been called upon to consider up to the moment when a large force was being despatched from this country. He very much doubted whether another instance would be found in which very considerable armaments had been sent out and a heavy expenditure incurred, and yet Parliament had not been called upon to support these measures; and every one knew that before their Lordships could meet again to discuss this subject the time would have passed by when they could do so with advantage. For these reasons he could not support any Motion for referring to the law advisers of the Crown a question which he thought far too high a one to be decided by mere technical law. Such a subject ought to be considered by Her Majesty's Government, and by those whom they employed in China, not as a technical point of law, but upon higher principles of policy and of equity, and as connected with the general state of our relations with China.
THE EARL OF ALBEMARLE rose to recall the attention of the House to the subject under debate. It was not his duty to decide whether the conduct of the East India Company in regard to this trade was legal or illegal, though, if his noble Friend who had brought forward this question had spoken of the impolicy of a monopoly, he should have been inclined to agree with him that a more impolitic act could hardly be perpetrated. His noble Friend had used harsh terms towards those who might differ from himself; but he (the Earl of Albemarle) wished to offer a few observations upon this subject, more especially as he had addressed large meetings in the rural districts, setting forth the social and moral
evils resulting from the immoderate use of spirituous liquors in this country, and he should not like to have it supposed that he would advocate another cause when it concerned a foreign country. And, first, a few words as to this very much abused commodity, opium. He contended that it was the abuse, not the use, of opium which was pernicious. In this respect it differed not at all from those other narcotics with which we were more familiar in England—namely, ardent spirits, wine, beer, or cider—all these commodities had been abused, and the abuse of them had been productive of vast mischief. Drunkenness was the great source of crime in this country; and yet no one seriously thought of suppressing the use of intoxicating drinks by legislative enactment. With regard to opium, the effects, whether beneficial or deleterious, were but little understood. He should like to draw a comparison, and he did not consider that it would be irrelevant to the subject, between the effects produced by opium and those produced by the narcotics which were used in this country. In the first place, the ardent spirits which were used for purposes of intoxication by the poorer classes of this country incited to crime, while opium incapacitated the person who used it for the commission of crime. As regarded the crime produced by intoxication in this country, he might cite all the addresses of the criminal Judges to grand juries in the course of their assizes. Mr. Justice Coleridge said, "There is scarcely a crime comes before me that is not directly or indirectly caused by strong drink." Then, again. Mr. Gurney testified that every crime had its origin more or less in drunkenness; and Mr. Clay, the chaplain to the Preston House of Correction, asserted that, "If every prisoner's habits and history were fully inquired into, it would be placed beyond all doubt that nine-tenths of the English crime requiring to be dealt with by the law arises from this English sin." He would beg their Lordships' attention while, on the other hand, he quoted the authority of Mr. John Crawfurd, who in his descriptive history of the Indian Islands said,—
"The deleterious character of opium has been much insisted upon, but generally by parties who have had no experience of its effects. Like any other narcotic or stimulant, the habitual use of it is amenable to abuse, as being more seductive than other stimulants; but this is certainly the utmost that can be safely charged to it. Thousands consume it without any pernicious result, as thousands do wine and spirits without any evil consequences. I know no person of long experience who has not come to this common-sense conclusion."
Another high authority, Dr. Oxley, said that—
"The inordinate use or rather abuse of the drug most decidedly does bring on early decrepitude, loss of appetite, and a morbid state of all the secretions; but I have seen a man who had used the drug for fifty years in moderation without any evil effects; and one man I recollect in Malacca who had so used it was upwards of eighty. Several in the habit of smoking it have assured me that, in moderation, it neither impaired the functions nor shortened life; at the same time fully admitting the deleterious effects of too much."
And finally, Sir Benjamin Brodie declared that—
"The effect of opium when taken into the stomach is not to stimulate but to soothe the nervous system. It may be otherwise in some instances, but these are rare exceptions to the general rule. The opium-eater is in a passive state, satisfied with his own dreamy condition while under the influence of the drug. He is useless, but not mischievous. It is quite otherwise with alcoholic liquors."
Now, what was the effect produced by the ardent spirits employed in this country? It appeared that in seventy-eight weeks there had been, arising from drunkenness, 252 serious accidents, or cases of striking bodily peril; 167 robberies of or by drunken persons, 1,153 brawls or violent assaults, and 337 cases of cruelty to wives or children, and 172 murders or manslaughters. Now, all the Chinese were dram drinkers, but they preferred the milder to the stronger spirit, and, certainly, if they could not get opium he believed that drunkenness, and the crimes attendant upon the drunkenness produced by ardent spirits, would increase, the one ten and the other a hundredfold. Much had been said about the opium being smuggled into China; but, even if it were, surely it was the duty of the Chinese, and not ours, to prevent that taking place, and not to give rise to it by their stupidity in attempting to prohibit that which it was impossible to put an end to, instead of attempting to regulate the traffic by the establishment of moderate duties. Now, was it really true that there was any actual smuggling? No doubt legally smuggling was prohibited, but virtually it was openly carried on. Sir John Davis, late Plenipotentiary in China during the war and since the peace of 1852, respecting legalizing the opium trade, had remarked to Commissioner Lin, that since the peace not a single edict had been
issued against opium, which was openly carried about the streets and sold like any unprohibited article; but the Chinese Government appeared to think that it was less undignified to connive silently at the practice than directly contradict all its former principles, by openly legalizing it. He had also been informed by a gentleman, who had recently arrived from China, that it was a common thing to see labouring men in the purlieus of Canton playing with opium balls, which before the treaty would have cost them their heads. How was such a prohibition as the noble Earl wished for to be carried out? Was it intended to prohibit the growth of opium in our Indian territory? If that were proposed, it would be also necessary to put in practice the meddling principle which had of late unfortunately been frequently displayed, and to prohibit its growth in neighbouring States. Then, again, the opium question was not an isolated one. If the growth of a drug in itself comparatively innocuous was prohibited in India, their Lordships must be prepared to do away with the growth of that which produced the more crime-creating spirit called gin; and would they propose to do away with two of the staple products of this country—barley and oats—because people were in the habit of abusing the use of beer and gin? If so, were France, Italy, and Spain also to be asked to uproot their vines? and was the sugarcane likewise to be got rid of—for that produced rum? Here would be a loss of about £1,000,000 to the revenue, and with the sugarcane the sugar duties must go, which would involve another loss of £5,000,000 of revenue. But he presumed that their Lordships would not meddle with the English colonies nor with their neighbours' vines, but would be content to make unhappy India the subject of legislation. But India was not the only opium-growing country. Turkey grew opium also, a large quantity of which was consumed by the Chinese. China had also taken to growing opium. He had said nothing of the Indian revenue, which must be sacrificed if the views of the noble Earl were carried. In spite of every attempt which was made, there was a constantly decreasing revenue in India, and the subversion of the Indian revenue was connected with the success of the noble Earl's scheme. He believed it to be a complete hallucination to suppose that if the opium trade was done away the Chinese would take our manufactures instead; because,
with respect to all the articles with which the British supplied them, they had similar articles of their own, and they took the British articles simply because they were in certain localities cheaper. They would only take as much of British articles as they needed, and no more. Whenever habit had induced a people to desire a certain commodity it was not in the power of a Government or a Legislature to prohibit the general use of that commodity. The only way to check the consumption of a deleterious article was by the diffusion of education or the imposition of moderate duties. It was now about 130 years since the feelings of the religious and benevolent portion of the community were outraged by the increase of drunkenness in consequence of the cheapness of ardent spirits. In an evil hour the Legislature was induced in 1736 to pass a prohibitory law in respect to ardent spirits. Great encouragement was held out by this to the common informer, who, with the revenue officers, was insulted and hunted down in the streets of London. Drunkenness and immorality increased to a fearful degree in consequence, and the Earl Cholmondeley of that day stated (the population of the metropolis being one-fifth of its present amount) that 7,000,000 gallons of ardent spirits were consumed at the very time when the Legislature declared its consumption illegal. In reference to Ireland, the Rev. Mr. Chichester said—
"The calamities, of civilized warfare are in general inferior to those produced by the Irish distillery laws, and I doubt whether any nation of modern Europe, which is not in a state of actual revolution, can furnish instances of legal cruelty commensurate with those I have represented."
Such was the result of prohibitory legislation on this subject.
thought that the statements which had been made to their Lordships tended to show that, with respect to the subject under discussion, various considerations must be regarded before a final determination was come to, and he rose only to make a few observations on one or two points raised by the noble Earl who spoke the last but one (Earl Grey). The noble Earl objected to the course which the Government were about to take in referring this question to the law officers of the Crown. Now, considering that the noble Earl himself was not prepared to form any opinion on this important matter, and considering that the question had been brought forward by a noble Earl representing a strong opinion, whether right or wrong, in this country, he did not think that the Government was much to be blamed for referring the matter to the law officers of the Crown. Considering the frequent occasions upon which his noble Friend (Earl Grey) had had to consult the law officers of the Crown, he could not understand why, unless he meant to convey a personal insinuation against those Gentlemen, he should declare that he did not care twopence for their opinion upon this point.
said, he had been misunderstood by his noble Friend. What he said was that he would give nothing for the opinion of the law officers of the Crown upon this subject, because it was nut a question of technicalities, but one involving higher and superior considerations, and not depending upon the words of an Act of Parliament.
said, that the opinion of the noble Earl who had brought forward this Motion, and who had for years taken a great interest in this question, and who represented the feelings of a very large and very worthy class of persons in this country, ought to go for something. That noble Earl thought it of the utmost importance that the technicalities connected with this question should be cleared up before their Lordships proceeded to the practical points involved in it, and it was not unreasonable that the Government should comply with such a wish, and should endeavour, before any other steps were taken in the case, to ascertain what was the precise nature of the existing law. He regretted to hear his noble Friend express an opinion that the British authorities in China were encouraging the opium trade.
had said that until lately he felt assured that the British officials in China had not encouraged the opium trade; but that some of the despatches recently published seemed to show that they now regarded it with a more favourable eye.
His noble Friend had not contradicted the impression he had derived from his noble Friend's speech, which was that the feeling of the British authorities in regard to the opium trade at present was different from that which existed when he (Earl Grey) was Colonial Secretary. That was, he thought, a most unfair assumption. The British officers in China thought the ordinance to which reference had been made useful to the coast- ing trade of China; but there were about sixty articles which formed the staple of that trade, of which opium was only one. He did not think his noble Friend's inference a just one, when opposed to the declaration that the object of this ordinance was to restrict smuggling and to assist the Chinese authorities in its detection and repression. The present Government had a right to believe, as the noble Earl believed when Colonial Secretary, that the smuggling trade was not encouraged by the British authorities in China. If it were so encouraged it was in direct opposition to the wishes and instructions of the Government. His noble Friend had deprecated a renewal of the China debate to-night, and had then proceeded to deliver a portion of his speech which he must have forgotten when he addressed the House on that occasion. It was always important to know the views of his noble Friend on questions of public policy, and if his noble Friend would bring forward a Motion to reverse the decision to which their Lordships had come, he would listen and endeavour to answer him. It was, therefore, from no want of respect that he did not follow his noble Friend into considerations wholly extraneous to the question before the House. With respect to the sending out a Plenipotentiary to China, he had to state that the noble Earl did not appear to be correctly informed as to the motives which had induced the Government to take the course they had adopted upon that subject. His noble Friend seemed to concur in the propriety of the course; and although it would not be right that he should then state what were the precise instructions which the Government would give to that Plenipotentiary, he could say that they did not in effect differ from the opinions of the noble Earl, and that they would have for their object to put on a satisfactory footing our relations with the Chinese Empire, and to maintain at the same time the substantial interests of this country.
said, the only point to which he would then allude was the sending out of a successor to Sir John Bowring. He took it for granted that Her Majesty's Government had considered that step inevitable after what had taken place in another assembly. But there was another point in connection with that matter to which he deemed it advisable to direct their attention. The treaty which regulated the relations of France with China was about to expire, and the French Government were about to send out a Plenipotentiary to that country for the re-establishment of their international engagements. Now, this country had a considerable interest in the negotiations which were thus about to be opened, as we should be entitled to any privileges which the Chinese might concede to the most favoured foreign nation. Under these circumstances he hoped that Her Majesty's Ministers would take care that Great Britain should at once be represented in China by a man accustomed to diplomatic business, capable of acting discreetly, wisely, and temperately; and, in fact, a man differing in every respect as regarded experience and character from Sir John Bowring.
replied. He had never said one word in favour of a prohibition on the part of the East India Company against the growth of opium. Nothing, on the contrary, could be more useless than to endeavour to prohibit the growth of opium. What he had indicated was the necessity of disconnecting the Government from the traffic in opium. Other people might grow it if they liked, and the Government might impose duties either upon its growth or transit; but let not the Governor General stand behind the counter, with a brown-paper cap and white apron on, to deal in this article and see that it had the requisite consistency and colour. He had explained to their Lordships the reasons why he thought the technical legal question should be set at rest. If the answer of the law officers of the Crown was that the traffic was legal, he pledged himself, if life were spared him, to bring forward next Session the whole question in its largest and most ample latitude, and he would then appeal to their Lordships to wipe out such an abomination from the statute law of this country.
understood now that the objection of the noble Earl (the Earl of Shaftesbury) was not to the sale, but to the monopoly, that he particularly desired inquiry should be made into the legal point, and that he had entirely thrown over the moral part of the question. If the Government of India might place what tax they pleased on opium, and opium so taxed went from India to China, it was difficult to see what advantage the Chinese would reap from any alteration of the present system. He wished the Lord Chancellor would explain what he meant to submit to the law officers of the Crown.
thought he had explained very clearly already that his noble Friend, having proposed certain questions to be submitted to the Judges, he asked his noble Friend to withdraw his Motion, upon a pledge being given to consult the law officers of the Crown as to the legality or illegality of the traffic, having regard to the facts and the Acts of Parliament.
asked how the law officers would ascertain the facts. Would they call witnesses?
said, it was very easy to ascertain the facts, and he was not aware that they were erroneously stated in the paper laid on the table by the noble Earl for reference to the Judges.
said, the Government had come to a private understanding with the noble Earl to put certain questions to the law officers, and obtain their opinion on the questions so put. He hoped the House of Lords would not be supposed to be responsible for the answers given, or for the manner in which the questions were proposed.
said, the noble Earl was mistaken in supposing there had been any private understanding. He had told the noble Earl (the Earl of Shaftesbury) that if he withdrew his Motion, the Government would think it their duty to consult the law officers on the legality of the traffic, although it had never before been questioned. The noble Earl could not withdraw his Motion without the consent of the House, and if any noble Peer chose to insist upon it, they must vote upon the question. If the noble Earl was satisfied with the good faith of the Government that the opinion of the law officers would be taken, he could see no reasonable objection to that course.
said, the House might agree with the withdrawal of the Motion absolutely; but they had nothing whatever to do with the condition of referring any questions to the law officers of the Crown.
said, this discussion showed very clearly how ignorant was the British Legislature, if not the British Government, regarding the state of our Indian Empire.
Motion, by leave of the House, withdrawn.
House adjourned till To-morrow.