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Jurisdictional Politics in Canton and the First English Translation of the Qing Penal Code (1810) Winner of the 2nd Sir George Staunton Award

Published online by Cambridge University Press:  05 March 2010

S. P. ONG
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Abstract

This article criticises the conventional interpretation of the first English translation of the Qing penal code by George Thomas Staunton, and proposes a different reading that stresses its role in promoting a positive image of the legal order in Canton on behalf of the East India Company. It suggests that in viewing the translation as a product of growing confrontation between two incompatible legal and cultural systems, our historical literature has radically diminished the scope of Staunton's comparative enterprise and his method of translation. Not only did Staunton exploit contemporary debates on penal reform to emphasise practical arrangements which overlapped across Chinese and British jurisdictions, he more importantly sought to valorise the Company's role in maintaining the jurisdictional status quo in what was patently an unstable and hybrid legal environment in Canton. However, the latter prerogative promoted a flattering and partial conception of jurisdictional ambiguity in Canton. It elided the Company's role in proliferating instability in Canton, and presented legal accommodation as a unilateral concession by the Qing from the severity of their own laws. This article addresses the intimate connections between the pluralist and pragmatic aspects of Staunton's project. It shows how, even though its pluralism has been forgotten, its pragmatic conceits concerning the origins of extraterritoriality have left a lasting impact on the historiography of Sino-Western relations.

Type
Research Article
Information
Journal of the Royal Asiatic Society , Volume 20 , Issue 2 , April 2010 , pp. 141 - 165
Copyright
Copyright © The Royal Asiatic Society 2010

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References

1 Staunton, George Thomas, Ta Tsing Leu Lee; being the fundamental laws, and a selection from the supplementary statutes, of the Penal code of China (London, 1810), p. xxivGoogle Scholar [hereafter Staunton, TTLL].

2 For critiques of this tendency see Ruskola, Teemu, “Legal Orientalism”, Michigan Law Review, 101 (October 2002), pp. 179–234CrossRefGoogle Scholar; and Alford, William, “Law, Law, What Law? Why Western scholars have not had more to say about its law”, in Civil law in Qing and Republican China, eds. Bernhardt, Kathryn and Huang, Philip (Stanford, 1994), pp. 45–64Google Scholar.

3 The Great Qing Code, translated by William C. Jones with the assistance of Cheng Tianquan and Jiang Yongling (Oxford, 1994), p. 9.

4 Keeton, George, The Development of Extraterritoriality in China, 2 vols. (London, 1928)Google Scholar; Peyrefitte, Alain, The Collision of Two Civilizations: The British Expedition to China 1792–4, translated from the French by Rothschild, Jon (London, 1993), pp. 491–493Google Scholar; Tuck, Patrick, “Law and Disorder on the China Coast: The sailors of the Neptune and an Affray at Canton, 1807”, in British Ships in China Seas: 1700 to the Present Day, eds. Harding, Richard, Jarvis, Adrian and Kennerley, Alston (Liverpool, 2004), pp. 83–97Google Scholar; Timmermans, Glenn, “Sir George Thomas Staunton and the Translation of the Qing Legal Code”, Chinese Cross Currents, Vol. 2, No. 1 (January-March 2005), pp. 27–58Google Scholar; Edwards, R. Randle, “Ch'ing Legal Jurisdiction Over Foreigners”, in Essays on China's Legal Tradition’, eds. Cohen, Jerome Alan, Edwards, R. Randle and Chen, Fu-mei Chang (Princeton, 1980), pp. 222–269Google Scholar.

5 Fairbank, John, Trade and Diplomacy on the China Coast, 1842–54, Vol. 1 (Cambridge, Mass., 1953), p. 3Google Scholar.

6 For a trenchant critique on how theories of linguistic and conceptual incommensurability have elided the historical and ideological commitments of translators, see Hart, Roger, “Translating the Incommensurable: From Copula to Incommensurable Worlds”, in Tokens of Exchange: The Problem of Translation in Global Circulations, ed. Liu, Lydia (Durham, N.C., 1999), pp. 45–73Google Scholar.

7 On the debates concerning penal legislation, see Gatrell, V. A. C., The Hanging Tree: Execution and the English People 1770–1868 (Oxford, 1998)Google Scholar. Contemporary interest toward alternative approaches to penal legislation is illustrated by the Monthly Review, which reviewed the Code Pénal and Staunton's translation in the same volume – Vol. 64 (1811).

8 Critical Review, Vol. 21, No. 4 (December 1810), p. 348 [my emphasis].

9 For reasons of brevity I can only point to the following works for a more accurate picture of Qing law: Bodde, Derk and Morris, Clarence (eds.), Law in Imperial China, Exemplified by 190 Ch'ing Dynasty Cases, Translated from the Hsing-an hui-lan with Historical, Social, and Juridical Commentaries (Cambridge, Mass., 1967)Google Scholar, see especially Part One, Chapters II and V; Melissa Macauley, Social Power and Legal Culture: Litigation Masters in Late Imperial China (Stanford, 1998); and Chang Wejen, “Legal Education in Ch'ing China”, in Education and Society in Late Imperial China, 1600–1900, eds. Benjamin Elman and Alexander Woodside (Berkeley, 1994), pp. 292–321.

10 A famous example is Shen Zhiqi's private commentary in his compilation of the Da Qing Lü Li Zhi Zhu (Great Qing Code with collected commentaries) published in 1715.

11 See Huang, Philip, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (Stanford, 2001)Google Scholar; Allee, Mark, Law and Local Society in Late Imperial China: Northern Taiwan in the Nineteenth Century (Stanford, 1994)Google Scholar; Will, Pierre-Étienne, “The 1744 Annual Audits of Magistrate Activity and their Fate”, Late Imperial China, Vol. 1, No. 2 (December 1997), pp. 1–50CrossRefGoogle Scholar.

12 Staunton's original copies are very possibly the ones currently held by the Royal Asiatic Society (shelfmarked R.A.S. 118/Amherst 11 G.1–2, and R.A.S. 119). Staunton included these two copies as part of a collection of 3,000 Chinese volumes which he donated as a co-founder to the society in 1823. However, my inquiries have revealed no marks of ownership or annotation in the texts for me to be absolutely certain that they were Staunton's actual sources. Still, the fact that the publication dates of these editions correspond to the ones which Staunton claimed to have used, and that they are the only copies on record as his personal property, is strong grounds for conjecture.

13 For details of the Providence affair, refer to British Library, Oriental and India Office Collections, Court's letters to the Select Committee of Supercargoes at Canton in China (1800–3), R/10/37, May 6, 1801, paras. 8–11. See also Staunton's detailed account of the matter and his purchase of the 24 volumes of the Qing code in China Through Western Eyes: Manuscript Records of Traders, Travellers, Missionaries & Diplomats, 1792–1942 (Marlborough, n.d.), part 2, reel 27, ‘Letter to George Leonard Staunton, 27 March 1800, Canton’.

14 Quarterly Review [hereafter QR], Vol. 2, No. 4 (November 1809), p. 270.

15 Staunton, Memoirs (London, 1856), p. 173.

16 See Fleming, Fergus, Barrow's Boys (London, 1998)Google Scholar.

17 QR, Vol. 3, No. 6 (May 1810), pp. 274–277; QR, Vol. 2, No. 4 (November 1809), pp. 270–271; also extolled as a desideratum by James Mill in Edinburgh Review [hereafter ER], Vol. 14, No. 28 (July 1809), pp. 412–413.

18 Letter from Banks to Staunton introducing Robert Morrison, Royal Society Misc. MSS. 6.8; Staunton, Memoirs, pp. 34–37.

19 QR, Vol. 3, No. 6 (May 1810), p. 273; ER, Vol. 14, No. 28 (August 1810), pp. 476–477.

20 Ibid., p. 477; QR, Vol. 3, No. 6 (May 1810), pp. 273–274.

21 Bernard Cohn, Colonialism and its Forms of Knowledge: the British in India (Princeton, 1996), Chapter 1.

22 ER, Vol. 14, No. 28 (August 1810), pp. 477–478.

23 Ibid., p. 476.

24 TTLL, pp. v–vi; viii–ix.

25 Peyrefitte, The Collision of Two Civilizations, pp. 491–492.

26 TTLL, pp. vii; ix–x; xi [my emphasis].

27 Critical Review [hereafter CR], Vol. 21, No. 4 (December 1810), p. 341.

28 ER, Vol. 14, No. 28 (August 1810), p. 479.

29 QR, Vol. 3, No. 6, p. 295.

30 Monthly Review [hereafter MR], Vol. 64 (February 1811), p. 122.

31 British Critic, Vol. XXXVI (September 1810), p. 224.

32 TTLL, p. xix.

33 Ibid.

34 Voltaire, Remarques, pour servir de supplément a l'essay sur l'histoire générale, et sur les moeurs et l'esprit des Nations, depuis Charlemagne jusquá nos jours (Geneva, 1763), p. 7; quoted by James Mill in his review of Louis-Chrétien de Guignes, Voyage à Pékin, in ER, Vol. 14, No. 28 (July 1809), p. 415.

35 The Spirit of the Laws, translated and edited by Anne M. Cohler, Basia C. Miller and Harold S. Stone (Cambridge, 1989), Part 3, Book 19, Chapters 16 and 17 [my emphasis].

36 TTLL, p. xxiv.

37 Paley, William, The Principles of Moral and Political Philosophy, foreword by Mahieu, D. L. Le (Indianapolis, 2002), p. 328Google Scholar.

38 TTLL, pp. xxiv–xxv, xvii, xvii [my emphasis].

39 Ibid., pp. xxii–xxiii, xxiii [my emphasis].

40 See David Lieberman's magisterial account of the eighteenth-century matrix of legal discourse in The Province of Legislation Determined (Cambridge, 1989).

41 Burke, Edmund, Reflections on the Revolution in France (Harmondsworth, 1969), p. 118Google Scholar. See Janice Lee's illuminating analysis in “Political antiquarianism unmasked: the conservative attack on the myth of the ancient constitution”, Historical Research, Vol. 55 (November 1982), pp. 166–179.

42 Parr, Samuel, Characters of the late Charles James Fox selected, and in part written, by Philopatris Varvicensis, Vol. 2 (London, 1809), pp. 331–332Google Scholar.

43 TTLL, pp. xxvii–xxviii [my emphasis].

44 Paley, The Principles of Moral and Political Philosophy, pp. 378–379.

45 TTLL, p. 283.

46 Ibid., p. 285.

47 Ibid., p. 182.

48 Ibid., p. 60.

49 Ibid., p. xxviii.

50 ‘Answer to the General Letter from Canton dated the 29th April 1807’, 26 February 1808. British Library, Oriental and India Office Collections, Court's Letters to the Select Committee (1807–1808), R/10/39, para. 40.

51 For Staunton's references to the affair, see TTLL, pp. 36–37, 313–315, 515–524.

52 Ibid., p. 315.

53 Keeton, The Development of Extraterritoriality in China, Vol. 1, p. 52.

54 TTLL, p. 516.

55 Ibid., pp. 516–517.

56 Crossman, Carl L., The Decorative Arts of the China Trade: paintings, furnishings and exotic curiosities (Woodbridge, 1991), pp. 108–109Google Scholar.

57 Tuck, supra at note 4, p. 96.

58 Morse, Chronicles, Vol. III, p. 52.

59 Crossman, The Decorative Arts, pp. 442–443.

60 The Canton Register, Vol. 2, No. 4 (Thursday 19 February 1829).

61 Miscelleneous Notices, relating to China, and our commercial intercourse with that country; including a few translations from the Chinese Language, second part (London, 1822; enlarged second edition), p. 306.

62 Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge, 2002), p. 259Google Scholar; Keene, Edward, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge, 2002)CrossRefGoogle Scholar.

63 See the Company directors’ critique of the supercargoes for their diffidence in attempting to find the culprit in the Neptune affair, in British Library, Oriental and India Office Collections, Court's letters to the Select Committee of Supercargoes at Canton in China (1807–8), R/10/39, ff. 40–41.