Another question which had greatly occupied the minds of both the British Government and its successive representatives ever since 1833 was the establishment of a code of laws to regulate the civil and criminal relations between foreigners and Chinese at the treaty ports and elsewhere. This had formed a feature in the supplementary convention of 1869, the undertaking in which did not, however, extend beyond the general terms that "it is further agreed that England and China shall in consultation draw up a commercial code."
Strongly approving, however, of the abstract idea that China should adopt a written code of commercial law as a first step towards a general legal reform, Sir T. Wade nevertheless uttered a useful caution to those ardent reformers who see in a good code of laws a panacea for either national or international grievances. "No nation," he says, "worked harder at its legislation than China; but in the way of justice there are at least two serious impediments—an ignorance which renders due appreciation of the value of evidence, especially in criminal cases, impossible; and a dishonesty that would be fatal to the administration of any laws, no matter how enlightened." He illustrates this by relating an instance of the obstinate nature of the chose jugée in China.
In a case [he says] the termination of which is just announced at Peking, we have a woman wrongly convicted, on a confession extorted from her by torture, of the murder of a husband who died a natural death, the injustice being so patent that the fellow-provincials of the accused appealed to Peking. Orders being issued for a rehearing of the case, the former decision was affirmed in the province, and this a second and again a third time. The proceedings were then removed to Peking; and it is in the end established that magistrates of districts, prefects of departments, the governor of the province, and the high officer charged with the public instruction of the province, who had been specially commissioned to rehear the case, have all more or less combined to conceal the delinquency of the first authority who heard it; with whose guilt the rest, his seniors, had associated themselves either through carelessness or from a corrupt motive. These proceedings lasted over two years.
One point, however, was definitively gained in connection with jurisprudence, the recognition of the British Supreme Court as a means of discharging treaty obligations.
The convention as a whole was subjected to the same kind of criticism as that of 1869 had been. The Chambers of Commerce pointed out that it sanctioned Chinese exactions which had been up to that time consistently resisted as violations of the treaty of Tientsin. Imposts, condemned by the Chinese themselves,[23] which were to be abolished altogether by the terms of the Alcock convention, were by the Chefoo agreement not only recognised as lawful, but the area of their levy, within which the taxes were to be freed from all restrictions whether as to their amount or incidence, greatly extended. It would appear, therefore, said the merchants, "better to revert to the clear and simple provisions of the treaty of Tientsin, and insist on their being carried out without evasion." So far, they say, from simplifying the question of the taxation of foreign goods, the obliquely worded clauses in the Chefoo convention tend to quite the opposite result. "New elements of obscurity have been introduced, and if twenty years have been spent wrangling over the comparatively simple wording of the Tientsin treaty, it is to be feared that no person now living will see the end of the controversies which will rage over the indefinite arrangement set forth in the Chefoo convention."
Opium was also for the first time introduced into a treaty, for the purpose of increasing the Chinese revenue from it and of making the maritime customs, supported by the British Government, the agent for its collection. The Chinese had always been at liberty to levy what internal taxation they pleased on opium; but, said the Chamber of Commerce, for the "English Government to make itself even indirectly answerable for the collection from Chinese of an impost of indefinite amount, varying at each port according to the caprice or the necessities of local authorities who are not even specified, would surely be to introduce a most inconvenient precedent." The convention was left for nine years unratified by the British Government. It could not be ratified because, among other reasons, five of the treaty Powers took the same objection as the British and other merchants had taken to the curtailment of the area of exemption from inland taxation—in other words, to the legal sanction extended by the agreement to unlimited exactions of the Chinese tax-collectors which had up till then been resisted as illegal.
During the eight years following the signature of the Chefoo convention incessant discussion and agitation on the subject of the duties on opium and general merchandise kept the British Legation in Peking, and in a lesser degree the Foreign Office at home, in full activity. The question was turned over in all its aspects, threshed out on this side and on that, and numerous schemes were proposed for readjusting the imposts. The British Minister displayed the utmost ingenuity in evolving variations on the central theme, in which ethical, political, and sentimental considerations played their part, but without advancing the solution of the problem. The problem was altogether too simple for such recondite treatment. The Chinese throughout all the tortuous disquisitions pressed towards the one object of a substantial increase in their revenue, by whatever means it might be arrived at; and eventually they attained their object, as those generally do who concentrate their attention on a single point.
III. THE RATIFICATION, 1885.
Ratification postponed—Tedious discussion during nine years—Chinese claiming large increase in opium duty—Ultimately granted—By agreement signed in 1885—Hongkong and Macao made stations for collecting opium duties.
The convention simmered for nine years before its final ratification. The two Governments skirmished in the air all that time, misconceiving each other's aims and avoiding close quarters. The policy of Great Britain with regard to opium had been fatally deflected by unpractical considerations. The article had been placed by the trade regulations appended to the treaty in the exceptional position of being excluded from the privilege accorded to all other merchandise of exemption from inland taxation by payment of a fixed charge. The Chinese authorities were therefore at liberty to tax the article in transit to any extent they pleased. For reasons connected with their own administration, this unlimited power of taxation in transit was not deemed sufficient to produce the desired amount of revenue, and they were intent on supplying the deficiency by an enhanced import tariff. The difference between the two forms of taxation was that the inland duty was collected in a Chinese sieve, while the import duty was levied with the formalities of a banker's counter. Naturally, therefore, the Chinese Government missed no opportunity of pressing for an increase on the tariff fixed by treaty. It was the main object sought by them in the unratified convention of 1869. Failing then, they renewed their efforts in the Chefoo convention of 1876, seeking the same end by an inverted process, like taking a sea-fort from the land side. Instead of reviving the discredited proposal, they effected a turning movement by extending the area of the inland dues until it included the port of landing. Why, having full licence over the whole empire, a few acres added to their tax-collecting province should have been deemed of such vital importance is not perhaps at first sight self-evident. The reason was that under the proposed system the machinery of the Imperial maritime customs could be employed in collection, with the protection of the foreign consuls.