To make matters worse, as Chinese smugglers withdrew in the face of stronger government interdiction and foreigners took more responsibility on their own shoulders, more and more opium was carried into the inner waters of Canton, past the Tiger’s Mouth to Whampoa, on the cutters of otherwise legitimate British ships. The traditional arm’s-length division between the two trades—legitimate tea, silk, and cotton in the inner waters of Canton versus illegal opium at outlying Lintin and on the coast—was collapsing as the opium agents tried every angle to force their trade. The very same ships carrying aboveboard cargoes for Canton increasingly carried contraband as well, and Elliot feared there would be no way to protect the honest traders from the consequences of the lawbreakers. The Hong merchants, speaking on behalf of the governor—who himself relayed the instructions of the emperor—urged Elliot to take charge of his countrymen and banish the British drug vessels entirely from the vicinity of China. Elliot pleaded that his government had given him no such powers.34
Regardless of his distaste for British opium trafficking, Charles Elliot’s overriding concerns were to ensure both the safety of British subjects in China and the continuance of the tea trade without interruption, imperatives that outweighed his own moral discomforts. So, absent any authority to bring the smugglers into line, he sought at least to ensure that their actions would not result in violence or the suspension of the legitimate trade. To that end, in November 1837 he suggested to Palmerston that Britain might attempt a diplomatic intervention in China—not to seek a commercial treaty as Jardine and Matheson’s followers had been asking, but instead simply to reduce the risks that imperiled the tea commerce. Any delay risked “great hazard” to the immensely important trade at Canton, he warned, and it was his “strong conviction” that the rising danger posed by the aggressive traders was “an evil susceptible of early removal.”35
Elliot could, of course, have proposed a British crackdown on smuggling, but since that would entail enforcing another country’s laws for it, he chose instead to go in a direction he thought would be more palatable to the British government. Convinced as he was that Daoguang was still right on the verge of legalizing opium, he thought that Britain could do something to encourage that outcome. Specifically, he proposed that the British government send an ambassador to Beijing, accompanied by a peaceful naval force, to argue in favor of legalizing opium. Elliot knew that at least some of the emperor’s advisers had been recommending this, and he thought that a tactful display of power by the British—no guns blazing, no hostility, just a respectful yet impressive parade of the tools at their command, coupled with a reminder of the importance of their tea purchases to China’s economy—might help tip the balance and make up the emperor’s mind.
To dovetail with Xu Naiji’s arguments about the impossibility of suppressing opium, Elliot thought the British ambassador should impress upon Daoguang that more than half of the opium coming to China was grown in free areas of India outside of British control, so the British had “neither the right nor the power” to prevent its import to China. (He also added, on a much weaker foundation, that if Britain tried to prevent the export of opium to China from its own territories by its own citizens, it would still be carried there by foreigners over whom the British had no control.) In other words, Elliot wanted the ambassador to argue that Britain was just as incapable of putting an end to the smuggling trade as China was, and therefore opium must be legalized and controlled “so that all men who visited the Empire of China might be within the control of the laws.”36 In a remarkably circular bit of reasoning, Elliot judged that since the British opium traders would then no longer be lawbreakers, their commerce would no longer be such a blight on the honor of Britain. It would of course do nothing about opium from a moral standpoint, but at least it could eliminate the danger of violence and put the regular trade back onto a safe footing.
That, however, was far more than the foreign secretary could stomach. As Palmerston understood Elliot’s proposal, he was essentially recommending that the British government support the interests of opium smugglers by helping to legitimize their business. In his response, Palmerston admonished Elliot that “Her Majesty’s Government” (for Victoria had by this time acceded to the throne) “cannot interfere for the purpose of enabling British subjects to violate the laws of the country to which they trade.”37 In words that would come back to haunt him, he went on to warn Elliot, “Any loss, therefore, which such persons may suffer, in consequence of the more effectual execution of the Chinese laws on the subject, must be borne by the parties who have brought that loss on themselves by their own acts.” The smugglers had chosen of their own free will to flaunt Chinese laws—laws that the Chinese government had every right to enforce—and so they alone would be responsible for their losses. The British government washed its hands of them.
Palmerston’s refusal to support the drug smugglers in 1838 did not mean he was sitting on his hands about China. Rather, when he wrote those words to Elliot he was in the midst of trying to pass a bill through Parliament that would finally give Elliot’s position some teeth. The legislation he proposed, a “China Courts Bill,” would grant Elliot (or another British official acting in a similar capacity) formal legal authority over the British subjects in south China. It called for the creation of a British court of law in Canton, under the superintendent, with jurisdiction over all British subjects within one hundred miles of the Chinese coast. If enacted, it would give Elliot authority to mediate in both civil and criminal disputes between British and other foreigners—including Chinese—as well as the power to exile lawbreaking Britons from the vicinity of Canton and Macao.38 Palmerston’s hope was that the bill would finally empower Elliot to keep the free traders in line, giving him the means to clamp down on their rising lawlessness and banish the worst offenders, thereby ensuring a peaceful trade.
In pushing to get the bill passed, Palmerston naturally sought support from his old parliamentary running mate George Staunton, the preeminent authority on China in the House of Commons. Staunton relished his acquaintance with the dashing and famous Palmerston, who in so many ways represented everything he was not: flamboyant, admired, magnetic, adored by women. (There is no evidence Staunton ever had a single romantic relationship of any kind in his life.) Palmerston’s letters were among the very few that Staunton preserved in his diary and reproduced in his memoir, evidence of his proudest acquaintance. But when it came to the China Courts Bill, although he very much wanted to help Palmerston, he did spot a problem right at the outset: namely, that the bill completely ignored the judicial authority of China. After reading a draft of the bill in May 1838, Staunton advised Palmerston that it must be revised so the British court could not be construed as interfering with the jurisdiction of authorities in Canton or Beijing, unless by permission from China’s government.39 Palmerston, however, thought such permission would be impossible to gain because Britain had no ambassador at Beijing. As he desperately wanted a means of controlling the traders, the bill went ahead as written.
Staunton’s misgivings deepened as a June reading of the bill in the House of Commons approached, but Palmerston felt the deteriorating situation in China was so urgent that he could not postpone it.40 This left Staunton in a bind: he didn’t want to alienate Palmerston by defying him, but he was deeply principled on matters regarding China and could not hide his qualms. So in the end he gave Palmerston advance warning that he would have to oppose the bill in its existing form and move for an amendment requiring approval from the Chinese government. But he tempered his apparent disloyalty by pointing out that his objections would just be a formality and there didn’t seem to be much other opposition to the bill in the Commons. “All I wish,” he told Palmerston, “is, in fact, to place my protest on record; since I see it is impossible for me to do any more.” But even the act of placing his protest on record, he confessed in a remarkably candid moment, was more than he really expected to do, because he was terrified to speak again in Parliament
after his shattering humiliation in 1833.41
Staunton’s fear of public speaking won out, and he did not in the end take part in the debate on the bill. But neither did he have to, for others spoke on his behalf. Palmerston’s bill met with unexpectedly fierce opposition, with several lawmakers quoting George Staunton’s misgivings as their primary ammunition. As one of the bill’s opponents said, echoing Staunton, he “wished to ask the noble Lord [Palmerston], whether the authorities of China recognized this interference with their laws? The noble Lord was about to establish a court, whose authority he could not enforce.”42 To cries of “Hear! Hear!” he went on to argue that since China of its own volition allowed British subjects to come to Canton for trade, those British subjects “were bound to conform to Chinese usages, and not to attempt to force their own customs upon the Chinese.”43
Remarkably, so singular was Staunton’s expertise that he was also Palmerston’s chief authority in support of the bill, with Palmerston quoting one of Staunton’s books in which he wrote that the Chinese government avoided prosecuting any crimes committed by the British except for capital ones (which was indeed the case, save for the imprisonment of James Flint in 1760). Palmerston argued that since Britain and China had no formal diplomatic relations, there was no way to get permission from Beijing in advance, but since Staunton had shown that the Chinese government had effectively waived its right to prosecute foreign lawbreakers, surely it wouldn’t object to the British doing it for them. His argument was not convincing, and the bill failed. Staunton, despite absenting himself from the debate, was credited as the man who sank it.
There were two conflicting issues at stake in that failed China Courts Bill. The one that caused it to fail was the applicability of Chinese law to Britons. The bill was indeed a breach of Chinese sovereignty as written, and its failure—importantly—was a testament to the British parliament’s respect for that sovereignty at the time. However, the intention behind the bill was also important: Palmerston’s primary hope for the court was to restrain Britons, not to impinge on the rights of the Chinese. Without such a court, Elliot would continue to be a helpless superintendent, powerless to do anything about the free traders who were throwing themselves ever more recklessly into harm’s way in China and defying ever more boldly the laws of the Qing Empire, fearing no consequences at all.
Elliot was naturally disappointed when he learned the fate of the China Courts Bill—but so, significantly, was Houqua. Houqua was especially shocked that George Staunton had derailed the bill, for he could not believe that Staunton would ever hold such reservations. He insisted to Elliot that the Chinese government in fact wanted the British to manage the affairs of their own people in Canton, and that was exactly why they had asked them to send a taipan when the East India Company’s monopoly ended. Deeply concerned (for he was the one who would bear the brunt of any frictions between the foreigners and the Chinese), Houqua asked Elliot “how it was possible to preserve the Peace, if all the English people who came to this country were to be left without control?”44 The reason the Qing government refrained from applying most Chinese laws to outsiders, he said, was because foreigners were culturally different and it would be “unjust to subject [them] to rule made for people of totally different habits.” All told, he was certain that the Chinese authorities would have preferred for Elliot to have judicial power over the British traders. But now he would not. And so thanks to the failure of the China Courts Bill, Elliot would go forward into the crucial year of 1839 as little more than a passenger—rather than captain—of the massive ship of trade as it barreled on into a darkening horizon.
Meanwhile, the Chinese debate over opium policy continued. By 1838, Xu Naiji’s proposal for legalization had sat for two years without implementation. But during that time, Deng Tingzhen’s efforts to enforce the existing laws had proven remarkably successful. Had the Qing government simply continued in the same pattern, and had Deng simply maintained the same pressure on domestic smugglers, it would likely have just been a matter of time before the Bombay dealers like Jamsetjee Jeejeebhoy went bankrupt and the Jardines and Mathesons of Canton were forced to give up on opium and try to make their way with cotton and other goods as best they could. But the pendulum was set to swing once more. In June 1838, a high-ranking official in the imperial court named Huang Juezi submitted a new memorial on opium, a scathing one with a dramatically different vision of how the government should break the grip of the drug on Chinese society and stop the loss of silver.
Huang Juezi’s proposal, like Xu Naiji’s, was entirely a domestic policy recommendation. He admitted at the outset that there was no way to block opium by embargo against foreigners who brought it from India; so much profit was at stake in the trade that any attempt to close down Canton or otherwise sever the link between foreign and domestic dealers was destined to fail. “Thus, the way to defend against this calamity,” he wrote, “lies not with foreign merchants but with the wicked Chinese.”45 At the same time, he also admitted that efforts to target traffickers and dealers within China had always been crippled by the extremity of official corruption. On those counts, Huang Juezi was in agreement with Xu Naiji. But his solution was different. Whereas Xu Naiji had thrown up his hands and declared that since it was impossible to suppress the opium trade it should at least be controlled to prevent the export of silver, Huang Juezi instead recommended a newly ruthless campaign of suppression—directed this time not against the traffickers or the dealers as in the past, but against the Chinese consumers.
As Huang reasoned, if there were no common users of opium in China then there naturally would be no dealers, no traffickers, and no international smuggling trade to drain the silver out of China. So the users were the root of the problem, and if the emperor wanted to end the scourge of opium he must begin with them. Huang recommended heavy punishment for ordinary consumers of the drug—who, in recognition of how difficult it was to break their addiction to opium, would be given a grace period of one year to get clean before the full force of the law went into effect against them. Whereas the ruthlessness of Xu Naiji’s proposal for legalization had been in his belief that the Chinese government should simply write off the multitude of addicts and allow them to destroy themselves, Huang’s ruthlessness was of a more direct and hands-on strain: he proposed that after the one-year grace period was over, anyone left in China who still smoked opium should be executed.
It was an exceptionally harsh policy recommendation, one founded on great faith in the power of the laws and the capacity for China’s fractious officials to unify and act as one. Interestingly enough, one of the arguments Huang Juezi gave in support of a death penalty for drug use was that such laws were already prevalent in the West. “Today, the opium that enters China comes from countries like England,” he wrote, “and their national laws prescribe death for those who smoke opium, so each country only has people who produce the drug, and not a single person who consumes it.”46 He was completely wrong about that, of course, but this erroneous belief entered into the 1838 conversation as a given—that the reason why westerners did not use opium like the Chinese was because of their laws, not because of any difference in their social customs. (It did not, incidentally, mean that Huang saw Britain and other Western countries as models for the setting of Qing imperial policy—rather, the opposite: his implication was that if even the British could prevent their population from using opium, then the Qing dynasty should be able to do so easily.)
Daoguang was intrigued and sent copies of Huang Juezi’s proposal to the most senior officials in the empire for comment. Twenty-nine of them responded over the summer of 1838, and while they universally deplored the spread of opium, the great majority of them (twenty-one out of twenty-nine) refused to support Huang’s recommendation to execute users. Most thought punishment should still focus on dealers and traffickers, since they were less numerous and thus easier to go after. In spite of those disagreements, however, their collective backlash against Xu Naiji was unan
imous: not a single one of the respondents in 1838 openly recommended legalizing opium. Their consensus advice to Daoguang was that whatever the primary target of suppression should be—whether the traffickers and dealers or the common users—it was suppression, not legalization, that should be China’s course of action.47 In light of later events, though, it is worth noting that as with Huang Juezi’s original proposal, their vision of opium suppression was strictly domestic: not a single one of the twenty-nine respondents said anything about involving foreigners in a crackdown.48
Of the small number of officials who endorsed Huang Juezi’s proposal as written, it was a man named Lin Zexu, the governor-general of Hunan and Hubei provinces in central China, who gave it the strongest and swiftest voice of approval. Lin Zexu was not an ordinary official. The son of a schoolteacher, he had passed the brutally competitive examination in the capital in 1811 at the youthful age of twenty-six, emerging as one of the best in his class. As a judge in the 1820s, he had established a reputation for fairness that earned him the nickname “Lin, Clear as Heaven” in testament to his incorruptibility. In the years that followed, on that foundation of judicial honesty he had built an even greater reputation as a pragmatic administrator deeply versed in issues of water management and flood relief—a rare kind of official who could be relied upon to put the welfare the people ahead of his own gain. By 1838 he was one of the Daoguang emperor’s favorite ministers and had reached a rank comparable to Deng Tingzhen in Canton while still being ten years Deng’s junior. Lin Zexu was a beacon of honesty and virtue in a time of endemic corruption. There were not many like him.
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