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The Enigma of a Taiping Fugitive: The Illusion of Justice and the “Political Offence Exception” in Extradition from Hong Kong

Published online by Cambridge University Press:  14 May 2021

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Abstract

In 1865, the British Colony of Hong Kong extradited a Chinese shop-owner on a charge of piracy and incited a barrage of criticism when the offender was punished by the infamous “death by a thousand cuts” in Canton upon his rendition. Rumors surfaced identifying him as a rebel chief in the Taiping Rebellion (1850–1864). By excavating court records, diplomatic exchanges, and legal discourses surrounding this case, the article engages in a critical examination of extradition law and implementation in mid-19th century between Hong Kong and China. It examines how the case played into the politics of four administrative localities - Hong Kong, Canton, Beijing, and London - and uncovers the networks of agencies at play. It contributes to the history of extradition by contextualizing the “political offence exception” in international law and explains how this exception, ill-defined and vaguely conceived as it was, found its way into the implementation of Article 21 of the Treaty of Tianjin on the rendition of fugitives from Hong Kong to China, with a significant impact on the Qing's governance and jurisdiction of cross-border fugitives.

Type
Original Article
Information
Law and History Review , Volume 39 , Issue 3 , August 2021 , pp. 415 - 450
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the American Society for Legal History

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Footnotes

She thanks Robert Antony, Pär Cassel, Li Chen, Andrew Hillier, Christopher Munn, Taisu Zhang and the anonymous reviewers for their support, suggestions, and feedback.

References

1. The National Archives (hereafter TNA) FO 17/613, 101–104, Colonel Sykes, M.P., to Earl Russell, July 25, 1865. The original report that he cited appeared in Overland Trade Report on May 30, 1865 and was reprinted in the London Evening Standard on July 22, 1865. In a later dispatch (FO 17/613, 1215), he attached a letter from an “Englishman” in the Daily News (August 8, 1865) attributing the rendition to the greed of the Chinese mandarin of Canton who was “certain of his promotion should he succeed in catching so famous a rebel.” According to this modified view, the British consul had been tricked into backing up the Chinese official's request.

2. FO 405/11, 20, The Earl of Clarendon to Sir R. Alcock, January 6, 1866.

3. FO 405/11, 21, The Earl of Clarendon to Sir R. Alcock, January 6, 1866.

4. Rongzheng, Zhang, Yongqiang, Liu, and Maochu, Jin, eds., Da Qing lüli (Tianjin: Tianjin guji chubanshe, 1993), 640Google Scholar. Antony, Robert J., “Pacification of the Seas: Qing Anti-Piracy Policies in Guangdong, 1794–1810,” Journal of Oriental Studies 32 (1994): 19Google Scholar.

5. Originated misconception in the verdict of the Foreign Office after its investigation, and is more recently endorsed in Lee, Ivan, “British Extradition Practice in Early Colonial Hong Kong,” Law & History 6 (2019): 102Google Scholar. In addition to Lee, the only significant mention of the case is in James Norton-Kyshe's The History of the Laws and Courts of Hong-Kong, vol. 2 (London and Hong Kong: T. Fisher Unwin and Norosha and Company, 1898), 83, but because it is only based on published records of the case in newspapers and parliamentary papers, this account is full of misconceptions and serves primarily as a reminder of the inadequate state of scholarship on the subject.

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8. An example of the former is a section in Christopher Munn's “‘Our Best Trump Card’: A Brief History of Deportation in Hong Kong, 1857–1955,” in Civil Unrest and Governance in Hong Kong: Law and Order from Historical and Cultural Perspectives, ed. Michael H.K. Ng and John D. Wong (London: Routledge, 2017), 26–45; of the latter, see Wells, Jennifer, “Clashing Kingdoms, Hidden Agendas: The Battle to Extradite Kwok-A-Sing and British Legal Imperialism in Nineteenth-Century China,” University of Pennsylvania East Asia Law Review 7 (2011): 161–93Google Scholar; Wesley-Smith, Peter, “Kwok A-Sing, Sir John Smale, and the Macao Coolie Trade,” Law Lectures for Practitioners (1993): 124–34Google Scholar; and Lee, “British Extradition Practice in Early Colonial Hong Kong,” 85–114.

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10. See, for example, Mike Ives, “What is Hong Kong's Extradition Bill?” New York Times, July 10, 2019. https://www.nytimes.com/2019/06/10/world/asia/hong-kong-extradition-bill.html. The majority of press coverage on the bill similarly traces the origin of the conflict to the 1997 handover.

11. The major publications on Hong Kong's early extradition history all focus on the Kwok A-Sing case: Young, Elliott, “Chinese Coolies, Universal Rights and the Limits of Liberalism in an Age of Empire,” Past & Present 227 (2015): 121–49CrossRefGoogle Scholar; Wells, “Clashing Kingdoms, Hidden Agendas”; and Lee, “British Extradition Practice in Early Colonial Hong Kong.”

12. As Lee points out, as far as the Privy Council's judgement was concerned, the “Kwok A-Sing” case merely replicated British policy adopted in the “Mo Wang” case of 1865 (“British Extradition Practice,” 112).

13. Karl Härter, “Transnationalisation of Criminal Law: 19th and 20th Century,” in The Transnationalisation of Criminal Law in the Nineteenth and Twentieth Century, ed. Karl Härter, Tina Hannappel, and Jean Conrad Tyrichter (Frankfurt: Vittorio Klostermann, 2019), 3.

14. Julia Jansson, Terrorism, Criminal Law and Politics: The Decline of the Political Offence Exception to Extradition (London: Routledge, 2019); Miller, Borderline Crime; and Härter, The Transnationalisation of Criminal Law.

15. Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge, MA: Harvard University Press, 2016), 5.

16. None of the existing studies on the subject has used Chinese-language sources; on the other hand, scholarship on the experience of the Chinese communities in Hong Kong has rarely touched extradition history.

17. For an overview of the rebellion, see Jonathan Spence, God's Chinese Son: The Taiping Heavenly Kingdom of Hong Xiuquan (New York: W. W. Norton & Company, 1996); for a recent work on the rebellion and its connections to Western powers, see Stephen R. Platt, China, the West, and the Epic Story of the Taiping Civil War (New York: Alfred A. Knopf, 2012).

18. Day, Jenny Huangfu, “Mediating Sovereignty: The Qing Legation in London and its Diplomatic Representation of China, 1876–1901,” Modern Asian Studies (2020): 1–34Google Scholar.

19. For an example of how this framework has been applied to an analysis of political offence in late Qing, see J. Y. Wong, The Origins of a Heroic Image: Sun Yat-sen in London, 1896–1897 (Oxford: Oxford University Press, 1986).

20. Lassa Oppenheim, International Law: A Treatise (London: Longmans, Green & Co., 1912), 504.

21. Jansson, Terrorism, Criminal Law and Politics, 75.

22. Ibid., 78.

23. I. A. Shearer, Extradition in International Law (Manchester: Manchester University Press, 1971), 166–67; and Christopher Pye, Extradition, Politics, and Human Rights (Philadelphia: Temple University Press, 2001), 82.

24. The relevant article 9 is found in the Supplementary Treaty signed in Bogue on October 8, 1843.

25. Christopher Munn, Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880 (Richmond: Curzon Press, 2001), 247.

26. Ibid., 245–53.

27. Li Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics (New York: Columbia University Press, 2015), 246.

28. Platt, Autumn in the Heavenly Kingdom, 177–81.

29. Cited in John Bassett Moore, A Treatise on Extradition and Interstate Rendition, vol. 1 (Boston: The Boston Book Company, 1891), 305.

30. Jansson, Terrorism, Criminal Law and Politics, 73.

31. For the debate between England and France about political refugees, see Bernard Porter, The Refugee Question in Mid-Victorian Politics (Cambridge: Cambridge University Press, 1979).

32. In Hong Kong, the legal procedure for the rendition of criminals had been specified in Ordinance No. 2 of 1850, which vested the governor of Hong Kong with considerable discretionary power to determine the outcome of the case. Upon the hearing at the magistrate's court, the governor shall issue orders relative to the “further detention, discharge, or transmission of such persons to the nearest Chinese authorities.” Ordinance No. 2 of 1850, “An Ordinance to provide for the more effective carrying out of the Treaties between Great Britain and China in so far as relates to Chinese subjects within HK (20th March, 1850),” The Ordinances of Hong Kong (London: George E. Eyre and William Spottiswoode, 1866), 70–71.

33. Jansson, Terrorism, Criminal Law and Politics, 98.

34. Philip Kuhn, “Political Crime and Bureaucratic Monarchy,” in Soulstealers (Cambridge, MA: Harvard University Press, 1990), 85.

35. Waley-Cohen, Joanna, “Politics and the Supernatural in Mid-Qing Legal Culture,” Modern China 19 (1993): 342CrossRefGoogle Scholar; Joanna Waley-Cohen, “Collective Responsibility in Qing Criminal Law,” in The Limits of the Rule of Law in China, ed. Karen G. Turner, James V. Feinerman, and R. Kent Guy (Seattle: University of Washington Press, 2000), 112–31.

36. Richard Bach Jensen, “The Rise and Fall of the ‘Social Crime’ in Legal Theory and International Law: The Failure to Create a New Normative Order to Regularize Terrorism, 1880–1930s,” in The Transnationalisation of Criminal Law, 197–211.

37. Regrettably, this logic was formally expressed by Qing diplomat only decades after the incident (CO 129/295, Luo Fenglu to Foreign Office, 476, August 2, 1899).

38. Pye, Extradition, Politics, and Human Rights, 83.

39. Oppenheim, International Law, 515–16.

40. Jansson, Terrorism, Criminal Law and Politics, 86.

41. The Police Magistrate's Notes of the two hearings contain no mention of Hou as a political offender. See in FO 405/11, 15–18.

42. For a discussion of the political views of the China Mail, sometimes characterized as pro-government and anti-Taiping, see Prescott Clarke and Frank H.H. King, A Research Guide to China-Coast Newspapers, 1822–1911 (Cambridge, MA: Harvard University Press, 1965), 62–63.

43. China Mail, September 21, 1865.

44. See Mercer's dispatch to Colonial Secretary Mr. Cardwell printed in House of Commons, vol. 12, 6.

45. For a study of and law enforcement in south China, see Robert J. Antony, Unruly People: Crime, Community, and State in Late Imperial South China (Hong Kong: Hong Kong University Press, 2016).

46. For a discussion of the relationship between the Triads and the Taiping in the early years of the movement, see Yi-faai Laai, “The Part Played by the Pirates of Kwangtung and Kwangsi Provinces in the Taiping Insurrection” (PhD diss., University of California, Berkeley, 1950).

47. Luo Ergang, Taiping tianguo shi, juan 69 (Beijing: Zhonghua shuju, 2000), 2216.

48. Jinrui, Wang and Qinghua, Zhang, “Taiping tianguo Tongcheng shoujiang Hou Yutian he tade shuijun,” Lantai shijie 9 (2014): 91–92Google Scholar.

49. For Hou's exchanges with Captain Barker, see Jin Yufu and Tian Yuqing, eds., Jindai Zhongguo shiliao congkan xuji: Taiping Tianguo shiliao (Taibei: Wenhai chubanshe, 1976), 141–43. According to some accounts, Hou made five unsuccessful attempts at obtaining foreign cannons in 1858. His persistence was not because of his lack of knowledge in international law, but perhaps reflected the Taiping force's awareness of the ongoing Sino–British conflict and their attempt at winning the British to their side. For other Taiping attempts at making a diplomatic relationship with Lord Elgin, see Stephen Uhalley, Jr. “Lord Elgin and the Taipings,” Journal of the Hong Kong Branch of the Royal Asiatic Society 10 (1970): 24–35.

50. Luo, Taiping tianguo shi, 2220.

51. Ibid.

52. FO 405/11, 15, inclosure 8 in no. 12, Sir F. Rogers to Mr. Hammond, December 6, 1865.

53. Ibid.

54. FO 405/12, 11, The Attorney General to the Acting Colonial Secretary, May 2, 1865.

55. Augustus F. Lindley, Ti-Ping Tien-Kwoh; the History of the Ti-ping Revolution (London: Day & Son, 1866), 800.

56. House of Commons, Accounts and Papers, vol. 12, 5.

57. Jenny Huangfu Day, Qing Travelers to the Far West: Diplomacy and the Information Order in Late Imperial China (Cambridge: Cambridge University Press, 2018), ch. 4.

58. Guo Tingyi, Guo Songtao nianpu (Taibei: Zhongyang yanjiuyuan jindaishi yanjiusuo, 1971), 354.

59. FO 405/12, 11, private, Consul Robertson to Mr. Hammond, June 10, 1865.

60. A.B. Freeman-Mitford, The Attaché at Peking (London: Macmillan & Co, 1900), 198.

61. Antony, Unruly People, 206.

62. Weiting Guo, “The Speed of Justice: Summary Execution and Legal Culture in Qing Dynasty China, 1644–1912” (PhD diss., Vancouver: University of British Columbia, 2016), ch. 3.

63. The original Chinese memorial can be found in Chouban yiwu shimo, Tongzhi chao (Beijing: Zhonghua shuju, 2008), juan 32, 1382–83. The English translation is taken from FO 405/12, 13.

64. Timothy Brook, Jérôme Bourgon, and Gregory Blue, Death by a Thousand Cuts (Cambridge, MA: Harvard University Press, 2008), 11.

65. On Chinese imaginations of punishments in the underworld, see ibid., ch. 5.

66. The original Chinese memorial can be found in Chouban yiwu shimo, juan 32. The English translation is taken from FO 405/12, inclosure in no. 10, “Memorial by the Acting Viceroy Sui-Lin and Governor of Kwantung Kwo, reporting the Extradition from Hong Kong and Execution of How Yu-teen, alias How Kwan-shing, a late Chief among the Nanking Rebels.”

67. FO 405/12, no. 10, “Consul Robertson to Mr. Hammond.” Emphasis mine.

68. Guo Songtao, Guo Songtao riji (Changsha: Hunan renmin chubanshe, 1982), 235.

69. Munn, Anglo-China, 338.

70. Ivan Lee, “British Extradition Practice in Early Colonial Hong Kong,” 99–101.

71. FO 405/12, 2, Sir F. Rogers to Mr. Hammond, March 16, 1865.

72. CO 129/105, 449–57, Mercer to Cardwell, July 10, 1865.

73. FO 405/12, 23, Memorandum by Mr. Mercer, June 22, 1865.

74. FO 405/12, 24, Memorandum by Mr. Mercer, June 22, 1865.

75. FO 405/12, 34, The Viceroy Mao to Consul Robertson, August 16, 1864.

76. FO 405/11, 13, The Acting Governor-General of the Two Kwang to the Acting Governor of Hong Kong, April 21, 1865.

77. FO 405/12, 23, Memorandum by Mr. Mercer, June 22, 1865.

78. FO 405/11, 18, The Attorney General to the Acting Colonial Secretary, May 2, 1865.

79. FO 405/11, 19, The Acting Governor of Hong Kong to the Acting Governor-General of the Two Kwang, May 3, 1865.

80. FO 405/11, 11, The Acting Governor of Hong Kong to Mr. Cardwell, September 20, 1865.

81. FO 405/12, 61, Consul Peddler to the Colonial Secretary, Hong Kong, May 26, 1865.

82. FO 405/12, 71, Consul Robertson to Earl Russell, September 25, 1865.

83. FO 405/12, 88, Mr. Wade to Earl Russel, November 9, 1865.

84. FO 17/613, 42, Consul Robertson to Mr. Wade, June 8, 1865.

85. FO 405/12, 8, Mr. Wade to Earl Russell, February 16, 1865.

86. FO 17/613, 1, Mr. Wade to Earl Russell, July 8, 1865.

87. FO 17/613, 2–3, Mr. Wade to Earl Russell, July 8, 1865.

88. FO 405/12, 56, The Acting Governor of Hong Kong to Mr. Cardwell, August 26, 1865.

89. FO 405/12, 73, The Law Officers of the Crown to Earl of Clarendon, November 25, 1865.

90. Ibid.

91. FO 405/12, 74, The Law Officers of the Crown to Earl Clarendon, November 25, 1865.

92. FO 405/12, 91, Mr. Cardwell to Acting Governor Mercer, January 26, 1866.

93. FO 405/11, 11, The Acting Governor of Hong Kong to Mr. Cardwell, September 20, 1865.

94. Ordinance No. 1 of 1868, “An Ordinance to make provision for the more effectual Suppression of Piracy,” May 22, 1868, Hong Kong Laws (1890), 982–89.

95. Grace Estelle Fox, British Admirals and Chinese Pirates, 1832–1869 (London: Kegan Paul, Trench, Trubner & Co, 1940), 160–76.

96. FO 405/12, 77–78, The Earl of Clarendon to Sir R. Alcock, December 11, 1865.

97. Guo, Guo Songtao nianpu, 325.

98. Ibid.

99. FO 17/614, 38–39, Sir F. Rogers to Mr. Hammond, January 18, 1866.

100. FO 17/614, 23, Consul Robertson to Sir Rutherford Alcock, November 15, 1865.

101. FO 405/12, The Acting Viceroy of the Two Kwang to Consul Robertson, 93, November 12, 1865.

102. See, for example, the debate between Sir Rutherford Alcock, British Minister in China, and Sir Richard Graves MacDonnell, the Governor of Hong Kong, on the issue of torture. CO 129/131, 193–216.

103. For details of this case, see Day, “Mediating Sovereignty,” 18–28.

104. Munn, “Our Best Trump Card.”

105. For example, Li Hairong's research has shown that activities by political exiles such as Kang Youwei were not a matter of personal choice; Kang's constant movement from colony and colony in search of overseas alliances and support was driven by British deportation orders against him. Hairong, Li, “Yingguo zhengfu dui Kang Youwei liuwang taidu zhi kaoshi: jianlun baohuanghui de moluo,” Shilin 1 (2019): 89–100Google Scholar.

106. On the Qing's attempts at assassinating Kang Youwei and colonial countermeasures, see CO 129/285, 394–97; on the Qing's successful murder of Yung Kui Wan, see CO 129/321, 263–75, 317–23, 348–57.

107. Yat-sen, Sun, Kidnapped in London: Being the Story of my Capture by, Detention at, and Release from the Chinese Legation, London (Bristol: Arrowsmith, 1897)Google Scholar.

108. See, for example, Wong, John Y., The Origins of a Heroic Image: Sun Yat-sen in London, 1896–1897 (Oxford: Oxford University Press, 1986)Google Scholar.

109. In addition to his first-hand knowledge of Hong Kong, Sun's familiarity with colonial law can also be traced to his mentor and confidant, Sir Kai Ho Kai (He Qi), a Hong Kong barrister and member of the Legislative Council. For the relationship between the two and Ho Kai's role in Sun's revolutionary planning, see Bergère, Marie-Claire, Sun Yat-sen (Stanford: Stanford University Press, 1994)Google Scholar, 33, 53, 85.

110. On competing images of the political offender as endorsed by supporters and opponents of the political offence exception, see Pye, Extradition, Politics, and Human Rights, 141.

111. One of the clearest expressions of this sentiment can be seen in CO 129/378, Chief Justice F. T. Pigott's address to the Supreme Court of Hong Kong, 156–62, May 22, 1911.

112. Piggott, Francis Taylor, Extradition: A Treatise on the Law Relating to Fugitive Offenders (London: Butterworth; Hong Kong: Kelley & Walsh, 1910), 5Google Scholar.

113. Pye, Extradition, Politics, and Human Rights, 87–90.

114. Although no systematic studies have been done on this subject, the Qing legation's communications with the British Foreign Office (FO 17 in TNA) contain many testimonies to how this exclusion undermined China's sovereignty. On how the difficulty of criminal rendition from Hong Kong prompted the Qing to revise its treaty with the Portuguese authority in Macau, see Zumin, Wu, “Wanqing Yue Ao zuifan yindu shulun,” Wenhua zazhi 101 (2017): 84–96Google Scholar.

115. Oppenheim, International Law, 519.

116. CO 129/378, 157.

117. Tina Hannappel, “Extradition and Expulsion as Instruments of Transnational Security Regimes against Anarchism in the Late Nineteenth Century,” in The Transnationalisation of Criminal Law, 65–97; Jansson, Terrorism, Criminal Law and Politics, 95–108.

118. “Execution of a Taeping Chief at Canton,” p. 6.