count of British subjects. The quantity thus offered up amounted to 20,283 chests. The surrender was completed on the 21st of May. Upon the delivery of the whole of the above-mentioned quantity (and not till then) the foreigners were restored to their liberty. On Friday the 24th of May, in conformity with a public notice issued by him to that effect, Captain Elliot, with all the proscribed British subjects, left Canton. The whole of the opium was then destroyed, under the superintendence of High Commissioner Lin.

In reviewing these proceedings, it is to be carefully borne in mind that Captain Elliot solemnly and repeatedly expressed his own hostility, and that of the government he represented, to the opium trade; publicly warned British subjects of the consequences likely to result from persisting in it; and thus did everything in his power to put it down*. Perhaps the most unjustifiable part of the whole proceeding, on the part of the Chinese government, is that which is the subject of the following public notice from Captain Elliot, with the more important part of which we shall close our statement of the facts of the case:

"Public Notice to Her Majesty's Subjects.

"The officer deputed by the Commissioner, and the Keun Min Foo, having caused certain notices to be publicly placarded at Macao, inciting British merchants, commanders, and seamen, to disregard the lawful injunctions of the undersigned, he has this day transmitted to those authorities the accompanying declaration. A copy of the same will be submitted to the Commissioner.

""

"Macao, 21st June, 1839.

(Signed)

"CHARLES ELLIOT, Chief Superintendent."

Elliot, &c., &c., learns that Official Notices have been publicly placarded and sent to the ships of his nation, inciting the English merchants, commanders, and seamen, to disregard his lawful injunctions, issued in the name of his most gracious sovereign. But wherefore are these notices silent upon the causes which have produced the conclusion of trade and intercourse at Canton? The High Commissioner has published his own communications to Elliot, but where are the replies?

That he had done so for a year previous to the confiscation may be concluded from the following extract from a despatch of Lord Palmerston of June 15th, 1838. "With respect to the smuggling trade in opium, which forms the subject of your despatches of the 18th and 19th November, and 7th December, 1837, I have to state, that Her Majesty's government cannot interfere for the purpose of enabling British subjects to violate the laws of the country to which they trade. Any loss, therefore, which such persons may suffer in consequence of the more effectual execution of the Chinese laws on this subject, must be borne by the parties who have

"These proceedings are highly inconsistent with the principles of peace and dignity; and Elliot must now declare the motives which have compelled him to require the merchants of his nation to leave Canton, and the ships no longer to return within the Bocca Tigris. On the 24th March last, Elliot repaired to Canton and immediately proposed to put an end to the state of difficulty and anxiety, then existent, by the faithful fulfilment of the emperor's will; and he respectfully asked that he and the rest of the foreign community might be set at liberty, in order that he might calmly consider and suggest adequate remedies for the evils so justly denounced by his Imperial Majesty. He was answered by a close imprisonment of more than seven weeks, with armed men day and night before his gates, under threats of privation of food, water, and life. Was this becoming treatment to the officer of a friendly nation, recognised by the emperor, and who had always performed his duty peacefully and irreproachably, striving in all things to afford satisfaction to the Provincial Government?

"When it thus became plain that the Commissioner was resolved to cast away all moderation, Elliot knew that it was incumbent upon him to save the Imperial Dignity, and prevent some shocking catastrophe on the persons of an imprisoned foreign officer, and two hundred defenceless merchants. For these reasons of prevailing force he demanded from the people of his nation all the English opium in their hands, in the name of his sovereign, and delivered it over to the Commissioner, amounting to 20,283 chests. That matter remains to be settled between the two courts.

"But how will it be possible to answer the emperor for this violation of his gracious will, that these difficult affairs should be managed with thoughtful wisdom, and with tenderness to the men from afar? What will be the feelings of the most just Prince of his illustrious dynasty, when it is made manifest to him by the command of Her Britannic Majesty, that the traffic in opium has been chiefly encouraged and protected by the highest officers in the empire, and that no portion of the foreign trade to China has paid its fees to the officers with so much regularity as this of opium ?

"Terrible indeed will be His Imperial Majesty's indignation when he learns that the obligations into which the high Commissioner entered, under his seal to the officers of foreign nations, were all violated! The servants were not faithfully restored when one fourth of the opium was delivered; the boats were not permitted to run when one half was delivered; the trade was not really opened when three-fourths were delivered; and the last pledge that things should go on as usual when the whole was delivered, has been falsified by the reduction of the factories to a prison with one outlet, the expulsion of sixteen persons, some of them who never dealt in opium at all, some clerks, one a lad, and the proposal of novel and intolerable regulations.

"Elliot and the men of his nation in China submit the expressions of their deepest veneration for the Great Emperor.

(Signed)
(True copy)

"CHARLES ELLIOT, Chief Superintendent.

"EDWARD ELMSLIE, Secretary and

Such being the facts of the case, we must now inquire what principles of law or ethics are applicable to them.

Out of the circumstances narrated above two questions arise:-The first a question between the British Government and a portion of its own subjects, being partly a question of English law, and partly a question of ethics; in other words, being subdivisible into two questions, a legal and a moral:The second a question between the British Government and the Chinese Government, and belonging to the law, not of nations, but of nature.

I. The prima facie view of the case is unfavourable to the validity of the claim of the British merchants to compensation for the loss of their opium. The common cry of those who have not looked into the question is-" a pack of smugglers! what right have they to compensation? If they choose to run the hazard of smuggling for the sake of the high profits attending such a traffic, they must even abide the hazard of the die, and if the turn of the die be against them, they must be content therewith." This is true, but this is not the statement of the case. Even viewing the case as one of loss under a smuggling transaction, the case has very peculiar features, which are thus stated in the address to Lord Palmerston of the British merchants, dated Canton, 23rd May, 1839:

"We may be permitted to state that all foreigners reside in Canton on sufferance; that they have no means of ascertaining the laws except from the acts of the Provincial Government; and that the opium trade has steadily increased from an import of 4,100 chests in 1796, to upwards of 30,000 chests in 1837, with the open and undisguised connivance of the local authorities.

"The importation of opium into China was at one time allowed on payment of a duty, but discontinued in 1796. Its admission was again strongly recommended to the Imperial Government in 1836. No penalties have ever been enforced against foreigners bringing it to China, and the prohibitory laws have never been a rule to the functionaries of the Chinese empire, who should have administered them, nor to the Chinese people on whom they were intended to operate; which facts are openly admitted in the recent edict of the imperial Commissioner, under date the 18th March last, in which he states, that the prohibitions formerly enacted by the Celestial Court against opium were comparatively lax,' and that the foreigners are men from distant lands and have not before been aware that the prohibition of opium is so severe.'

"We may further state that the peculiar character of the opium trade

was distinctly recognised in the Report of the Select Committee of the House of Commons in 1830, and that in the subsequent Report in 1832, the Committee express their opinion, that it does not seem advisable to abandon so important a source of revenue as the East India Company's monopoly of opium in Bengal.'

"We conceive it will therefore be admitted that British subjects have carried on this trade with the sanction, implied, if not openly expressed, of their own government; and at the same time with an advantage to the revenue of British India, varying of late years from one to one and a half million sterling."

It now appears from what follows, that the Chinese Government, at least the local government, had the power of stopping the opium trade at any time, but kept that power suspended as an instrument for exacting higher fees.

"We do not attempt to deny the unquestionable right of the Chinese Government to put a stop to the importation of opium, and have readily signed an agreement to abstain from that trade at Canton on the first requisition of the government to that effect; but we think Your Lordship will perceive that long prescription had hitherto given foreigners ample reason to question the sincerity of the Chinese Government with regard to the discontinuance of the importation, and that under any circumstances, that government cannot be justified, by the lax observance of prohibitions, and open connivance of its officers, in at one time fostering a trade involving several millions sterling, and at another rendering its pursuit a capital crime. There seems no reason to doubt, from the late proceedings of the local government, that they have always had the power most materially to check if not totally to put a stop to the importation of opium when disposed so to do; but that power has seldom hitherto been exercised, except for the purpose of enacting higher fees for its introduction."

These are important facts unquestionably, and would be sufficient to give to the transactions a character essentially different from that of ordinary smuggling; they might consequently afford perhaps some colour for the advancement of a claim to compensation from some quarter, even if the property lost had been taken and confiscated in the only way in which the civilized nations of Europe claim possession of contraband articles, that is to say, by capturing them vi et armis from the parties actually engaged in the contraband transaction. But it is altogether unnecessary in this case for the claimants to rest their claim on these grounds. They may give their opponents every aid which their argument can receive from this. They may come forward and say: "We

China, prohibited by the laws of China, if that article had been made lawful prize by (to use the inflated phrase of Chinese official pomp,) the war-ships of China, well-sup'plied with guns and military weapons of all kinds, cruizing 6 east, west, and south, studding the ocean at short intervals, protecting the coasts, seizing the native smuggling boats, ' and driving out the loitering foreign ships;'-then we should not have had a shadow of a claim to compensation of any kind from any quarter whatever. But the claim to compensation which we advance is altogether grounded on the mode in which we lost our property,-a mode unprecedented in the annals of the civilized world."

The mode in which this opium came into the possession of the Chinese Government takes it altogether out of the category of contraband articles. The importation into any given country of any given article is only smuggling as regards the particular country prohibiting the article; and until the article comes strictly within the jurisdiction of that country it is not contraband, and not forfeited*. Now what are the facts here? Of the 20,283 chests surrendered to Captain Elliot, about 3000 may have been at the time on the east coast; several hundred at Macao or on the west coast; the bulk of the remainder was in the harbour of Hong Kong where the depôt-ships then lay. Now, as is well known, the Canton authorities make the distinction between "Inner" and "Outer seas", including in the latter, Lintin, Hong Kong, and all the islands outside the Bocca Tigris. Moreover, since the opium depôt-ships first lay at Lintin, about 1821-22, the Canton mandarins have always excused their connivance at the trade by saying that those ships were in the "outer seas" beyond their control. In other words, according to these mandarins themselves, the opium which was thus surrendered at the requisition of Captain Elliot "in the name and on the behalf of Her Britannic Majesty's govern

* This principle has been recognized by the English courts. In ex parte Cavaliere, 2 Glyn, and J. 227, the vice-chancellor held that a debt contracted abroad for goods contraband in England, is nevertheless provable, unless the seller is an actual participator in the act of smuggling them into this country; for an Englishman having a right to purchase goods abroad, must be held liable on his contract. There is another case still more in point in which it was held that British subjects have nothing to do with the revenue laws of other countries.