Chinese Law in Imperial Eyes

Sovereignty, Justice, and Transcultural Politics

Li Chen

• Publisher: Columbia University Press
• Year: 2015
• ISBN:
  9780231540216
• Topic: Histoire
• Subtopic: Histoire de la Chine

How did American schoolchildren, French philosophers, Russian Sinologists, Dutch merchants, and British lawyers imagine China and Chinese law? What happened when agents of presumably dominant Western empires had to endure the humiliations and anxieties of maintaining a profitable but precarious relationship with China? In Chinese Law in Imperial Eyes, Li Chen provides a richly textured analysis of these related issues and their intersection with law, culture, and politics in the eighteenth and nineteenth centuries.

Using a wide array of sources, Chen's study focuses on the power dynamics of Sino-Western relations during the formative century before the First Opium War (1839-1842). He highlights the centrality of law to modern imperial ideology and politics and brings new insight to the origins of comparative Chinese law in the West, the First Opium War, and foreign extraterritoriality in China. The shifting balance of economic and political power formed and transformed knowledge of China and Chinese law in different contact zones. Chen argues that recovering the variegated and contradictory roles of Chinese law in Western "modernization" helps provincialize the subsequent Euro-Americentric discourse of global modernity.

Chen draws attention to important yet underanalyzed sites in which imperial sovereignty, national identity, cultural tradition, or international law and order were defined and restructured. His valuable case studies show how constructed differences between societies were hardened into cultural or racial boundaries and then politicized to rationalize international conflicts and hierarchy.

1

IMPERIAL ARCHIVES AND HISTORIOGRAPHY OF WESTERN EXTRATERRITORIALITY IN CHINA

November 24, 1784, looked like another busy day of the trading season at Guangzhou. In the late eighteenth century, thirty or so large ships under British, French, Danish, Dutch, Spanish, Portuguese, or Swedish flags sailed off every year with Chinese goods for eager buyers in places like India, Europe, and America. Besides tea, silk, and porcelain, other popular Chinese exports included lacquered furniture, wallpapers, handkerchiefs, and sweetmeats in jars. Not only had this trade stimulated a chinoiserie culture in Europe from the seventeenth century on but its revenue affected the fortunes of multiple empires, including Britain, which by now had taken the lion’s share of the China trade among the Western nations.¹ Just as local Chinese officials were reluctant to antagonize the foreign community when enforcing Chinese law, the importance of the China trade also made it increasingly difficult and costly for the foreign officials to upset the status quo of Sino-Western relations as structured by the Canton System. A kind of “good understanding” had thus developed between the Chinese and foreigners in Guangzhou, but this precarious equilibrium was interrupted by an “extraordinary” event on this day.² A gunner from a British ship named the Lady Hughes fired a salute for a departing Danish ship at the anchorage of Huangpu, about twelve miles downriver from the city of Guangzhou, and killed two Chinese men in a nearby boat. Five days later, officials of the British EIC in China reluctantly handed over the gunner after Chinese officials suspended trade and detained the Lady Hughes’s supercargo. A month later, the gunner was executed by strangulation. Scandalized by the outcome, the British and their sympathizers complained that China’s criminal justice was based on the primitive notion of blood for blood regardless of the circumstances of a homicide case, that the entire Western community in China was held liable for an individual’s fault under the irrational notion of “collective responsibility,” and that the gunner had never been properly tried before being summarily executed.

In the history of the Sino-British encounter—which officially began in 1637 with the arrival of the first British expedition in southern China—this was the first and last time that British officials delivered one of their people to the Chinese government to be tried for homicide according to Chinese law.³ Despite or rather because of its singularity, this case was frequently cited in newspapers, diplomatic correspondence, parliamentary hearings, and Sinological publications in the next two centuries as undisputable evidence of the incommensurability and thus inevitable clash of Sino-Western civilizations, which supposedly then led to the First Opium War and foreign extraterritoriality in China.⁴ Jonathan Spence, a leading American historian of China, has recently described the Lady Hughes case as an event that forced the British to fundamentally reconsider “how to deal with the Qing at the international diplomatic level.”⁵

The Anglo-American and French acquisition of extraterritoriality in 1843–1844 through unequal treaties with China in consequence of the First Opium War soon became a new model for Western powers’ dealing with other Asian countries. Exempting foreigners from local jurisdictions, extraterritoriality provided a vital institutional infrastructure and legal foundation for Western expansion in the Asia-Pacific until World War II. By the turn of the twentieth century, abolishing extraterritoriality had become a powerful rallying call among the Chinese, who were led to believe it imperative to reform their legal and political systems in order to regain national sovereignty and international recognition. The fact that China could not abolish extraterritoriality until 1943 and that by then it had become the only country still “subject to this nineteenth-century bondage” has since left a painful scar on the national psyche of modern China.⁶ For many Chinese and Euro-Americans alike, extraterritoriality itself helped perpetuate the discourse of Sino-Western difference and clash in the nineteenth and twentieth centuries.

Given the pivotal role of the Lady Hughes controversy in shaping the historiography of extraterritoriality and early modern Sino-Western conflicts, a critical reexamination of this case in conjunction with other, similar disputes before 1840 offer new clues on how we might go about rethinking the received wisdom about the nature and history of Sino-Western relations during this period. For instance, as explained in the introductory chapter, the European quest for extraterritoriality in China long predated the Lady Hughes and other eighteenth-century Sino-Western legal disputes, or, in fact, European acquisition of any substantial knowledge of Chinese law and government. It is therefore ahistorical to attribute extraterritoriality to this or other such cases or what they supposedly stand for. However, this study is not intended to valorize Chinese law and justice; rather, its focus here is on a different question: by what forces and representational politics was the Lady Hughes case transformed into the originary moment in the archives and historiography of British or Western extraterritoriality in China? First, I reexamine this controversy by tackling the still-dominant assumptions about the causes and nature of the Lady Hughes case in present-day scholarship. Traditional historiography has generally taken for granted that the deaths caused by the gunner of the Lady Hughes constituted only an accidental homicide.⁷ This presumption, central to the popular perception of the gunner as innocent and Chinese law as antithetical to Western notions of law and justice, is based on a highly problematic conflation of accidental homicide and homicide committed without an express intent to kill—an equivalence that was untenable under either Chinese or English law. Second, my other main purpose for revisiting this incident is to explore the nexus between the Lady Hughes controversy and the competing imperial interests that were at work in southern China and in the larger global context in the eighteenth and early nineteenth centuries. By tracing the genealogy of the Lady Hughes case in relation to earlier and later legal and political disputes, I analyze the discursive patterns and archival regimes that shaped the dominant interpretations of Western extraterritoriality and early modern Sino-Western conflicts.

Main sources consulted for this chapter include (1) the official report on the Lady Hughes case submitted by the EIC agents to the London-based EIC Court of Directors (“the Narrative”), the Court of Directors’ reply to the Narrative, contemporary newspaper reports, multiple witness accounts, and correspondence between local Chinese officials in Guangdong and the Qing emperor; (2) records of other Sino-Western legal disputes from the 1680s to the 1840s in Chinese and English archives and, to a lesser extent, from Portuguese, French, Dutch, and American sources; and (3) re-presentations of these legal disputes in subsequent diplomatic dispatches, foreign policy deliberations, and scholarly works by Sinologists and professional historians in the nineteenth and twentieth centuries.⁸ Although it is useful to interrogate the discrepancies and manufactured stories in the sources about these events, dismissing the imperial archives or colonial narratives “as biased limits the possibilities of understanding the interior logic and effects of domination and unnecessarily suggests the possibility of an objective history of the event” just because of the type of historical sources one comes across.⁹ In this book, I draw upon recent critical scholarship to read these archival materials not simply as a repository of facts or “primary sources” that promise to lead us to the historical “truth.” As Ann Stoler, Nicholas Dirks, and other postcolonial scholars have shown, to read against the archival grain may make us more sensitive to the meanings and voices that were hidden between the lines or suppressed by the official interpretations or records; to read along the archival grain may encourage us to take more seriously the emotions and dispositions of individuals and communities in order to recover different historical narratives from the dominant ones.¹⁰ I strategically employ both techniques, reading along and against the archival grain, in an attempt to decipher the textualized common sense and sensibilities of the Chinese and Western actors involved in these encounters, and to analyze the practices by which certain primary discourses acquired evidentiary and epistemic authority as primary sources in displacing alternative perspectives and stories in the prevailing historiography. On the one hand, as we shall see, the Lady Hughes case became a powerful filter for reinterpreting the records of other events and conflicts into a seemingly coherent narrative of British or Western anxieties and desires for justice and security in a presumably hostile and despotic Oriental country. On the other hand, the traditional historiography has concealed much of the complex and unfolding processes of the formation of a judicial subculture in the contact zone, where orthodox notions of legality and justice from either the Chinese or Euro-American perspective could not be fully operative, and where everyday negotiations over law and jurisdiction came to transform the understanding of sovereignty and cultural boundary of both sides of the encounter.

THE NARRATIVE: BRITISH OFFICIAL REPRESENTATION OF THE CASE

On the evening of November 24, 1784, at the British Factory located near the city wall of Guangzhou, the Council of Supercargoes, in charge of EIC and British interests in China, received word of a troubling incident. A Chinese boat at Huangpu, “lying alongside the Lady Hughes country ship [a private British ship from Bombay], being unfortunately in the way of one of the guns while fired in saluting, received very considerable damage, that three Chinese belonging to her were so much hurt that their lives were in danger, & one in particular despaired of.” The latter—Wu Yake by name—was confirmed dead the next day. The council, headed by President William Henry Pigou (1751?–1837), further noted, “The Gunner, tho’ innocent of any criminal intention, had, from apprehension of the undiscriminating severity of the Chinese Government, absconded.” The following day, Muteng’e, the customs superintendent (yue haiguan jiandu) who managed the foreign trade together with the provincial governor of Guangdong, sent two deputies and the Chinese Hong merchants to get the gunner for judicial investigation within the city of Guangzhou. The council refused to comply, citing fear for the gunner’s safety.¹¹ Thus commenced the long Narrative or report sent by the council to the EIC Court of Directors in London on December 4, 1784.¹²

When the Chinese officials returned with the same order the following day (November 26), the council stood firm, maintaining that it had no authority over private British ships and that George Smith, supercargo of the Lady Hughes, was more qualified to address the issue. The council did add, however, that if the Chinese would agree to conduct a trial in the British Factory for the sake of formality, it would be happy to persuade Smith to arrange for someone to stand in for the gunner.¹³ The council members insisted on having the trial in the British Factory because they and other Europeans often treated their so-called factories (where they lived and stored goods under guard by armed sailors) as sovereign sanctuaries to shield their lives, property, and liberty from the local authorities in those Asian countries where they did not yet have fortified settlements. The origin of British colonization of India can be traced back to the first few factories and fortresses built by the EIC, first in Surat in 1612 and then Madras and Balasor in the 1630s and 1640s.¹⁴ The Qing government never formally recognized the inviolability of the foreign factories on its soil, although local officials had generally refrained from making forced entries into these factories. Unconvinced that the council lacked influence over private British traders—who were actually subject to the “arbitrary and absolute” power of the EIC officials because they could not even come to China without the latter’s license—and that the gunner had absconded, the Chinese officials threatened to send soldiers to seize the gunner from the British Factory if he did not appear before the provincial tribunal.¹⁵ On November 27, the second Chinese victim, Wang Yunfa, died of his wound. George Smith was “decoyed” from the British Factory by a “pretended” message from the Chinese Hong merchant Pan Qiguan and then hauled to the provincial government office, apparently in the hope of pressuring the Britons to be more cooperative in delivering the gunner. Although the Guangdong officials might have thought this tactic less confrontational than forcing their way into the factory, it reinforced the image of the Chinese as being untrustworthy. The council called Smith’s detention an “act of violence towards a European unconvicted & uncharged with any crimes contrary to every idea of reason & justice.”¹⁶

In the meantime, the Chinese barricaded the streets leading to the Guangzhou quay, and Chinese compradors, interpreters, and servants fled from the foreign factories and ships. The seizure of supercargo Smith sparked general alarm among the Euro-American sojourners and caused concern for their safety. In protest, the French, Dutch, Danish, and Americans ordered up armed boats; so did the EIC Council of Supercargoes, despite having been assured by Guangdong governor Sun Shiyi (1720–1796) that Smith would be sent back after brief questioning. Thus some fifteen boats with 400 to 500 armed men reached the foreign factories outside the Guangzhou city wall on the night of the twenty-seventh.¹⁷ According to Supercargo Samuel Shaw (1754–1794) of the Empress of China, which had just arrived as the first ship from the newly founded United States to commence trade with the Chinese empire, “everything wore the appearance of war.” Unwilling to jeopardize the highly lucrative China trade, the council warned its people to exercise restraint and not open fire.¹⁸ That same night, Sun Shiyi issued a proclamation to clarify his stance in the capacity of governor, an English translation of which was preserved:

A Native of this Country having been killed by a Gun fired from the Ship of Captain Williams, whether by accident or design it is necessary that this Man should appear before me for examination that he may be tried conformably to our Laws: Three days are now elapsed, & you have not sent me this Gunner which denotes on your part a resistance to our Laws; nevertheless, Mr. Smith who is detained in the City is very prudent & discreet, he has consented to write to Whampoa to demand this Gunner that he may appear before our Tribunal & I can return Mr. Smith to you as soon as this Gunner shall arrive; I exhort you therefore to remain quiet & conform yourselves to my Mandate, & shew no token of resistance…[and] if you dare in our Country to disobey & infringe our Laws, consider well that you may not rep...

Table of contents

• Cover 
• Series Page
• Title Page
• Copyright
• Dedication
• Contents 
• Acknowledgments
• Introduction
• 1. Imperial Archives and Historiography of Western Extraterritoriality in China
• 2. Translation of the Qing Code and Colonial Origins of Comparative Chinese Law
• 3. Chinese Law in the Formation of European Modernity
• 4. Sentimental Imperialism and the Global Spectacle of Chinese Punishments
• 5. Law and Empire in the Making of the First Opium War
• Conclusion
• List of Abbreviations
• Notes
• Glossary
• Bibliography
• Index
• Series List