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Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the Lady Hughes Controversy in 1784

Published online by Cambridge University Press:  18 August 2010

Li Chen
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From 1843 to 1943, the regime of extraterritoriality in China operated to exempt not just diplomats but also other citizens of Western empires from Chinese law and jurisdiction without granting the Chinese in the West reciprocal privileges. This was a milestone in international law and relations; it also had a long-lasting impact on the trajectories of modern Chinese history. On the one hand, the Treaties of Nanking (Nanjing) in 1842 and Bogue (Humen) in 1843, signed in the aftermath of the First Opium War (1839–42), marked the first institutionalization of British extraterritorial privileges in East Asia. Through treaties in 1844, the United States and France also secured such privileges in China and established their imperial prestige in the Asia-Pacific. These practices prompted revision of international law treatises and set the pattern for Western dealings with Asian countries for the century to come. On the other hand, from the late nineteenth century on, attempts to abolish foreign extraterritoriality continued to be a most powerful rallying call among the Chinese to “modernize”/“Westernize” their legal and political systems to regain sovereignty and international respectability.

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Law and History Review , Volume 27 , Issue 1 , Spring 2009 , pp. 1 - 54
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Copyright © the Board of Trustees of the University of Illinois 2009

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References

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8. Many scholars have discussed this case but mostly only in passing and without consulting the original records. Those who did consult the English records ended up confirming the conventional wisdom on this topic. See the last section for more details on this.

9. As a rare exception, Edwards's seminal study in 1980 has been the most balanced one on these Sino-Western legal disputes. His discussion of the Lady Hughes case was brief due to the scope of his article and he only used Morse's Chronicles of the EIC.

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13. Quoted in Edwards, , “Ch'ing Legal Jurisdiction,” 251.Google ScholarIn 1806, the EIC also privately recognized Chinese jurisdiction but justified their evasion by alleging Chinese corruption and injustice(Morse, , Chronicles, 3:40)Google Scholar.

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17. A decree from the Mughal emperor in 1717 that granted trading rights was persistently construed by the EIC as an entitlement to legal immunity from local jurisdiction. See ibid., 326–31, 333; alsoFisher, Michael, “Extraterritoriality: The Concept and Its Application in Princely India,” Indo-British Review 15, no. 2 (1988): 103–22Google Scholar.

18. Davis, John Francis, The Chinese: A General Description of the Empire of China and Its Inhabitants (London: Charles Knight & Co., 1836), 1:45Google Scholar;Morse, , Chronicles, 1:193Google Scholar(1729);Edwards, , “Ch'ing Legal Jurisdiction,” 234–35Google Scholar.

19. Morse, , Chronicles, 1:194Google Scholar.

20. Edwards, , “Ch'ing Legal Jurisdiction,” 234–35.Google ScholarThe Chinese local officials certainly had no authority to enter into such an international “treaty” and no Chinese records or conduct indicated the existence of such agreements.

21. Edwards, , “Ch'ing Legal Jurisdiction,” 236Google Scholar.

22. Morse, , Chronicles, 2:409–10Google Scholar(summarizing the EIC's records), also 2:61–68 (1781), 2:37 (1779);Davis, , The Chinese, 1:64Google Scholar.

23. Morse, , Chronicles, 2:160Google Scholar.

24. See, e.g., Morse, , Chronicles, 3:17–18Google Scholar(1805); 2:188–89 (1791); 2:325–26 (1799); 2:365 (1802).

25. For the change, seeMarkley, Robert, “Riches, Power, Trade and Religion: The Far East and the English Imagination, 1600–1720,” Renaissance Studies 17, no. 3 (2003): 494–516.CrossRefGoogle ScholarMy larger project has more on this.

26. See, e.g.,Spence, Jonathan D., The Chan's Great Continent (New York: W. W. Norton & Co., 1998), 92,Google Scholarand 62–80 (on “deliberate fictions” by Defoe and Goldsmith in this period). Also seeLiu, Lydia H., “Robinson Crusoe's Earthenware Pot,” Critical Inquiry 25, no. 4 (1999): 728–57.CrossRefGoogle ScholarFor the influence of the writings of British colonial adventurers, like George Anson's 1743 accounts of China, on Montesquieu's Spirit of the Laws, seeAdas, Michael, Machines as the Measure of Men (Ithaca: Cornell University Press, 1989), 90–91. Also seeGoogle ScholarBoulanger, Nicholas A., Origin and Progress of Despotism in the Oriental and Other Empires, of Africa, Europe, and America (Amsterdam, 1764)Google Scholar.

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28. Morse, , Chronicles, 1:168 (1721)Google Scholar.

29. Ibid., 2:60 (1781).

30. Williams, Frederick Wells, The Life and Letters of Samuel Wells Williams: Missionary, Diplomatist, Sinologue (New York: G. P. Putnam's Sons, 1889), 116–17Google Scholar(suggesting that this clearly was a murder case), also quoted inAskew, Joseph, “Re-Visiting New Territory: The Terranova Incident Re-Examined,” Asian Studies Review 28, no. 4 (2004), 366CrossRefGoogle Scholar.

31. See Morse, , Chronicles, 1:82Google Scholar(1689), 168 (1721), 175 (1722), 231 (1735), 236 (1735), 253 (1736), 270 (1739); 5:14 (1754); 2: 59 (1780) and 334 (1800); 3:40 (1807) and 318 (1817); 4:18 (1821) and 232 (1830);Edwards, , “Ch'ing Legal Jurisdiction,” 233–43.Google ScholarThe exception was a 1754 case in which the British wanted the Chinese to prosecute a French homicide(Morse, , Chronicles, 5:15–19;Google ScholarKeeton, , Extraterritoriality in China, 1:32–33;Google ScholarGongzhongdang Qianlongchao Zouzhe [Secret Palace Memorials of the Ch'ien-Lung Period], ed. Bowuyuan, Gugong [Taipei: National Palace Museum, 1983], 9:762–64)Google Scholar.

32. Davis, , The Chinese, 1:61,Google Scholar389–93; seeEdwards, , “Ch'ing Legal Jurisdiction,” 246Google Scholar.

33. I borrowed this term, with significant modification, fromLiu, , The Clash of Empires, 5–139Google Scholar.

34. Of course, this in no way justified imposition of Western extraterritoriality. At the same time, some provincial authorities in Canton were more willing than others or than the Qing Court to assert Chinese jurisdiction even in cases involving only foreigners. See, e.g., our discussion below in relation to the 1780 case.

35. Fu, Lo-shu, A Documentary Chronicle of Sino-Western Relations (1644–1820) (Tucson: The University of Arizona Press, 1966), 1:176–77Google Scholar(1743) (on disputes in Macao and Sino-Russian borders), 1:186–87 (1748–49) (on Emperor Qianlong's rationale), 318–19 (1792),322 (1792). SeeMorse, , Chronicles, 2:59–60Google Scholar(about a governor-general in 1780 who insisted on jurisdiction over a French-Portuguese homicide dispute);Edwards, , “Ch'ing Legal Jurisdiction,” 226–32Google Scholar(on earlier cases on jurisdictional disputes) and 256–59 (on punishment of Chinese offenders).

36. East India Company Factory Records, Part I, IOR/G/12/79//Consultations (1784–85): 118 (dated Dec. 9, 1784) (London: The British Library). These Records hereinafter are cited as “IOR/Archive No/Year: Page.” Also seeMorse, , Chronicles, 2:99.Google ScholarThe anchorage of Whampoa was about twelve miles away from Canton.

37. The term “Hong Merchants” (hangshang) was conventionally used to refer to the dozen or so merchants or firms authorized to trade with foreigners in Canton. SeeEang, Cheong Weng, The Hong Merchants of Canton: Chinese Merchants in Sino-Western Trade (Richmond: Curzon Press, 1997)Google Scholar.

38. IOR/G/12/79/1784–85: 118;Morse, , Chronicles, 2:99Google Scholar.

39. For murder cases, see the British remarks in relation to a 1780 case, in which a French sailor killed a Portuguese sailor, both from British ships, at IOR/G/12/72/1780: 20 and 17–19. Their attitude was shown more clearly in the Neptune case (1807) and the above-mentioned Lin Weixi case in 1839.

40. IOR/G/12/72/1781: 21.

41. This mentality continued to guide their perception and conduct. The influence of such preconceptions was evident in their speculative interpretations, like this passage: “From the conversation which passed on this occasion it did not appear that they considered the offense as Capital, but saw it in its proper light of an unfortunate accident for which however some form of public examination was necessary to satisfy the Laws of the Country” (IOR/G/12/79/1784–85: 118). One must be alert to such carefully worded clauses as “it did not appear,” which, according to the English records' rhetoric convention, should mean: “we [the British] thought/believed that they [the Chinese] thought/believed.” Worse still, Davis in 1836 would take a further step to read this passage to mean: “[a] deputed mandarin [came and] required that the man should be submitted to examination, admitting, at the same time, that his act had apparently proceeded from mere accident”(Davis, , The Chinese, 1:65,Google Scholaremphasis added). SeeGuha, , Elementary Aspects of Peasant Insurgency, 16–17Google Scholar(for a similar strategy to decode such “colonial archives”).

42. Radzinowicz, Leon, A History of English Criminal Law and Its Administration from 1750, vol. 1, The Movement for Reform, 1750–1833 (London: Stevens, 1948), 629Google Scholar;McLynn, Frank J., Crime and Punishment in Eighteenth-Century England (New York; London: Routledge, 1989), 38–39;Google ScholarNeighbors, Jennifer M., “Criminal Intent and Homicide Law in Qing and Republican China” (Ph.D diss., University of California at Los Angeles, 2004).Google ScholarOn the similarities, see William C. Jones, “Introduction,” inJones, William C., The Great Qing Code (New York: Oxford University Press, 1994), 23.Google ScholarFor the Chinese statutory categories, see ibid., 268–310, esp. 278, 280–82;Staunton, George Thomas, Ta Tsing Leu Lee; Being the Fundamental Laws, and a Selection from the Supplementary Statute of the Penal Code of China (Taipei: Ch'eng-Wen Publishing Co., 1966; reprint, London: T. Cadell and W. Davis, 1810), sections 282–92;Google ScholarTian, Tao and Zheng, Qin, eds., Daqing Lüli (The Great Qing Code) (Beijing: Falü Chubanshe, 1998; reprint, 1740), 420–46Google Scholar.

43. Sir Blackstone, William, Commentaries on the Laws of England, 13th ed. (London: T. Cadell Jun. & W. Davis, 1800), 4:181–82,Google Scholaralso 26.

44. Ibid., 200.

45. The translation is fromNeighbors, , “Criminal Intent and Homicide Law,” 29Google Scholar;also see 29–33. The examples given in this statute were similar to those ofBlackstone, (Commentaries, 4:181–82). Blackstone used the term “homicide by misadventure,” instead of “accidental homicide.”Google Scholar

46. According to Alabaster, an “accidental homicide” had to meet all the following prongs under Qing law: “(a). The natural and mental accidental nature of the act. Eyes, ears, and intelligence must be employed. (b). The proper, not merely the lawful, character of the act. (c). Full evidence of the facts pleaded”(Alabaster, Ernest, “Illustrations of Chinese Criminal Practices,” The China Review, or Notes & Queries on the Far East, 25, no. 2 [1900: 93)Google Scholar.

47. On prohibitions of firearms in Chinese ports, seeDavis, , The Chinese, 1:45Google Scholar(1670). Also seeMorse, , Chronicles, 1:259–60Google Scholar(1737); 1:14, and 1:297 (1754). The British allegation that such Chinese prohibitions (as in the case of opium smuggling later) were not always strictly enforced by local officials did not make the prohibited conduct any less illegal. And “ignorance” or “mistake in point of law” [as opposed to fact] was no defense under English criminal law(Blackstone, , Commentaries, 4:26–27). Also seeGoogle ScholarFarrington, Anthony, Trading Places: The East India Company and Asia, 1600–1834 (London: British Library, 2002), 85Google Scholar(noting that foreigners were required at the anchorage off the island of Whampoa to “unload all their guns and powder into the Chinese custody”).

48. McLynn, , Crime and Punishment, 38, also 27Google Scholar.

49. See Neighbors, , “Criminal Intent and Homicide Law,” 102Google Scholar(on the distinction between ordinary instruments and “particularly deadly weapons” [xiongqi]). For England's “deadly weapon rule,” seeAskew, , “Re-Visiting New Territory,” 364.Google ScholarSee also notes 53, 56, 60, and 61 below.

50. Neighbors, , “Criminal Intent and Homicide Law,” 29Google Scholar.

51. Mudge, Jean M., Chinese Export Porcelain for the American Trade, 1785–1835, 2nd ed. (Newark: University of Delaware Press, 1981), 47–48.Google ScholarThe annual trading season lasted “from roughly June to December” and all the foreign trading ships “anchored and received cargoes” at Whampoa instead of Canton(Farrington, , Trading Places, 8)Google Scholar.

52. See Radzinowicz, , A History of English Criminal Law, 631,Google Scholaralso 49–79;McLynn, , Crime and Punishment, 38Google Scholar.

53. Askew, , “Re-Visiting New Territory,” 364Google Scholar(suggesting that a jury of twelve members should be drawn from “the Cantonese gentry”). As explained below, the extant records did not specify the statutory basis of the final judgment of this case. With its unique circumstances, this case had to be decided by a Chinese court through application of analogous statutes or leading cases (cheng'an). For instance, under the statute on “Killing or Injuring Others with a Bow or Arrow,” anyone who “without good cause” shot a bullet or arrow or tossed bricks to “an urban area or a place where people are living” was punishable by 100 strokes of the heavy bamboo and exile to 3,000 li. According to another statute, if a hunter used a pit or spring bow to hunt in the “deep mountains or the wilds” where the animals frequented and ended up killing someone by accident, his failure to put up warning signs would make him punishable by 100 strokes of the heavy bamboo and penal servitude of three years. SeeJones, , The Great Qing Code, 280–82;Google ScholarZheng, Tian and, Daqing Lüli, 437–38;Google ScholarZhu, Qingqi et al., eds., Xing'an Huilan Sanbian (Conspectus of Penal Cases) (Beijing: Beijing Guji Chuban she, 2003 [1886]), 4:260–62Google Scholar(for relevant cases); also see a similar case in 1774 atStaunton, , Ta Tsing Leu Lee, 563–66.Google ScholarBesides other circumstances, the Lady Hughes case had two unusual, aggravating factors: (1) more than one person was killed, and (2) the British firearm was far more dangerous than the ordinary Chinese fowling pieces, which had been prohibited for private uses other than authorized hunting since 1781. These factors could elevate the penalty to death sentence. For relevant leading cases, seeLi, Zhiyun, Cheng'an Xubian Erke (A New Collection of Leading Cases) (1763 [Qianlong28]);Google Scholaret, Zhu al., Xing'an Huilan Sanbian, 3:1546–48,Google Scholar1639–42. A third (less likely) statute concerned “Killing by or during a Game” (xisha), which imposed strangulation or exile plus bamboo strokes(Zheng, Tian and, Daqing Lüli, 433–34).Google ScholarThese statutes assumed an absence of intent to kill. On the use of “analogy” in Chinese justice, seeChen, Fu-mei Chang, “On Analogy in Ch'ing Law,” Harvard Journal of Asiatic Studies 30 (1970): 212–24CrossRefGoogle Scholar.

54. Forbes, Robert Bennet, Personal Reminiscences, 2nd, rev. ed. (Boston: Little, Brown, &Co., 1882), 375Google Scholar(relating what he heard about this event around 1830). Forbes, an American veteran in the China trade from 1818 through 1860s, was criticizing Chinese law here for its alleged practice of “life for life” and had no incentive to distort the Lady Hughes case in favor of the Chinese. In 1834, Davis, trying to argue for the innocence of the gunner, also stated that “the gunner, though entirely innocent of any bad intent, and acting as he did in obedience to orders, absconded.”(Davis, , The Chinese, 1:66).Google ScholarAgain, these elements alone would not acquit the gunner in this case.

55. See Hale's, Pleas of the Crown (1736), 1:51,Google Scholar434;Blackstone, , Commentaries, 4:28–30;Google Scholarfor a historical review by the House of Lords of Britain on this issue, see R. v. Howe, 1 A.C. 417 (1987), 417–59, esp. 417–21, and 427 (on acting pursuant to a superior's order). Even a defendant who killed an innocent person to avoid a threatened death was not allowed to have the defense of “duress” to a charge of murder.

56. On the same punishment for the actual killer as for the abettor, see R. v. Howe, 417–59. The gunner (as well as the officer) was very likely to be convicted of murder on the grounds that he committed “an act that was intrinsically likely to kill, even if he had no intention of inflicting any hurt whatsoever”(Askew, , “Re-Visiting New Territory,” 364)Google Scholar.

57. IOR/G/12/79/1784–85: 118;Morse, , Chronicles, 2:99Google Scholar.

58. Morse, , Chronicles, 2:72 (the Hastings case in 1782); 5:14 (1754); 1:310 (1769); also seeGoogle ScholarKeeton, , Extraterritoriality in China, 1:30–40.Google ScholarFor the 1780 case, seeMorse, , Chronicals, 2:59.Google ScholarThe Briton's uncorroborated description of the Chinese handling of the 1780 case was refuted by the Chinese (IOR/G/12/71/1781: 17–20). Also seeWilliams, Samuel Wells, The Middle Kingdom: A Survey of the Chinese Empire and Its Inhabitants (New York: Wiley & Putnam, 1848), 2:454Google Scholar(noting that the French “no doubt merited” the punishment).

59. Such differences in 1784 were much smaller than modern commentators tended to assume. See the concluding section.

60. Radzinowicz, , A History of English Criminal Law, 628–29Google Scholar.

61. As Blackstone put it, “all homicide is presumed to be malicious,” and “of course amounts to murder” unless the accused proves otherwise(Blackstone, , Commentaries, 4:200)Google Scholar;also seeAskew, “Re-Visiting New Territory,” 364Google Scholar;Block, Brian P. and Hostettler, John, Famous Cases: Nine Trials that Changed the Law (Dublin: Waterside Press, 2002), 34Google Scholar.

62. Tian, and Zheng, , Daqing Lüli, 541–58Google Scholar(for statutes on the escape and resistance to arrest and on harboring criminal suspects, as well as on the deadlines). If the gunner was punishable by immediate strangulation (jiaolijue), those who assisted his escape or harbored him were liable to strangulation after the autumn assizes (jiaojianhou), which might be reduced to exile to 3,000 li plus beating by the heavy bamboo.

63. IOR/G/12/79/1784–85: 119 (referring to the 1780 French-Portuguese case);Morse, , Chronicles, 2:99Google Scholar.

64. IOR/G/12/79/1784–85: 119 (butMorse, , Chronicles, 2:99–100,Google Scholaromitted this sentence).

65. IOR/G/12/79/1784–85:134;Pritchard, Earl H., The Crucial Years of Early Anglo-Chinese Relations, 1750–1800, ed. Tuck, Patrick, vol. 6 of Britain and the China Trade, 1635–1842 (New York: Routledge, 2000 [1936]), 228Google Scholar(explicitly admitting that the gunner “had remained on the Lady Hughes during the entire affair”).

66. IOR/G/12/79/1784–85: 118, and 124–25 (for the governor's position).

67. For more about this case, seesMorse, , Chronicles, 5:18.Google ScholarMorse's claim that this was a “quite customary” practice (2:100) was not supported by his Chronicles, except for some hearsays or unsupported suspicions, and his citations (2:72 and 1:270) contained no such information.

68. IOR/G/12/79/1784–85: 119;Morse, , Chronicles, 2:100Google Scholar(only summarizing the original).

69. For Chinese rebuttals on a prior occasion, seeMorse, , Chronicles, 2:65 (1781).Google ScholarAlbeit their repeated denials and inconsistency, the EIC's agents did have legal power and certainly enough practical leverage to demand compliance of British private traders (who could trade in China only with the former's license). SeeDavis, , The Chinese, 1:47–48 (1699)Google Scholar;IOR/G/12/79/1785: 175;Auber, Peter, China. An Outline of Its Government, Laws, and Policy: and of the British and Foreign Embassies to and Intercourse with That Empire (London: Parbury, Allen and Co., 1834), 190 andGoogle ScholarKeeton, , Extraterritoriality in China, 1:44Google Scholar(on another Parliamentary authorization in 1786);Morse, , Chronicles, 2:67Google Scholarand 103–4;Staunton, George Thomas, Miscellaneous Notices Relating to China (London: John Murray, 1822), 197–98Google Scholar.

70. IOR/G/12/79/1784–85: 119;Morse, , Chronicles, 2:100Google Scholar;Edwards, , “Ch'ing Legal Jurisdiction,” 238–39Google Scholar.

71. The day before, the Council held that to substitute one for the suspect “could not be justified were his safety at all doubtful” (IOR/G/12/79/1784–85: 119;Morse, , Chronicles, 2:99)Google Scholar.

72. IOR/G/12/79/1784–85: 119;Morse, , Chronicles, 2:99–100Google Scholar.

73. IOR/G/12/79/1784–85: 119;Morse, , Chronicles, 2:100Google Scholar.

74. IOR/G/12/79/1784–85: 119.

75. The British alleged that the Chinese officials, by a “pretended message from Puan Khequa [the leading Hong Merchant], seized & conveyed [Smith] into the City under a guard of Soldiers with drawn swords” (IOR/G/12/79/1784–85: 120;Morse, , Chronicles, 101)Google Scholar.

76. IOR/G/12/79/1784–85: 120, and 136.

77. Ibid., 122 (the governor reportedly stated that Smith would be sent back “in an Hour or two”).

78. Ibid., 136;Morse, , Chronicles, 2:104Google Scholar.

79. IOR/G/12/79/1784–85: 121;Morse, , Chronicles, 2:101Google Scholar.

80. IOR/G/12/79/1784–85: 121; Morse, , Chronicles, 2:101Google Scholar.

81. Shaw, Samuel, “‘from Samuel Shaw to John Jay (New York, May 19th, 1785)’ in The Diplomatic Correspondence of the United States of America (1783–1789),” The North American Review (1834): 305Google Scholar. But the barricading might have happened after the Westerners decided to send their armed ships up to Canton (ibid., 325; cf. Edwards, , “Ch'ing Legal Jurisdiction,” 239Google Scholar;Morse, , Chronicles, 2:101)Google Scholar.

82. Shaw, , “‘from Samuel Shaw to John Jay,’” 325Google Scholar.

83. IOR/G/12/79/1784–85: 122.

84. IOR/G/12/79/1784–85: 121;Morse, , Chronicles, 2:101Google Scholar;“Riot at China,” The Times, Jan. 8, 1785;Shaw, Samuel, The Journal of Major Samuel Shaw, the First American Consul at Canton, ed. Quincy, Josiah (Boston: Wm. Crosby and H. P. Nichols, 1847), 187–88Google Scholar.

85. Shaw, , “‘from Samuel Shaw to John Jay,’” 326Google Scholar.

86. IOR/G/12/79/1784–85: 124;Morse, , Chronicles, 2:102Google Scholar;Shaw, , Journal, 188Google Scholar.

87. IOR/G/12/79/1784–85: 125. Although the Western representatives had already issued orders to send up their armed boats before receiving the governor's promise to release Smith, they later claimed to have sent up the ships only after the governor failed to release Smith as promised (ibid). Unknown to the British, the governor's “mandate” quoted here actually succeeded in coercing the French, the Danes, and the Dutch into giving up this joint protest, but for the American intervention (seeShaw, , Journal, 188–90)Google Scholar.

88. Morse, Hosea Ballou, The International Relations of the Chinese Empire (New York: Longmans & Green, and Co., 1910), 1:114–17.Google ScholarKeeton, , Extraterritoriality in China, 1:119. 21. Even scholars who did excellent, sophisticated studies of such topics could also be influenced by this influential line of narrative; seeGoogle ScholarEdwards, , “Ch'ing Legal Jurisdiction,” 245Google Scholar(mentioning no British obstruction of Chinese justice);Waley-Cohen, Joanna, “Collective Responsibility in Qing Criminal Law,” in The Limits of the Rule of Law in China, ed. Turner, Karen et al. (Seattle: University of Washington Press, 2000), 116–17;Google ScholarWaley-Cohen, , The Sextants of Beijing: Global Currents in Chinese History (New York: W. W. Norton & Company, 1999), 100–101Google Scholar(misled by the traditional discourse).

89. Morse, , Chronicles, 2:103Google Scholar(emphasis added);Edwards, , “Ch'ing Legal Jurisdiction,” 239Google Scholar.

90. The EIC's archives contained many such unverified hearsays or rumors. The British first started trade stoppage as a bargaining tactic in Canton(Edwards, , “Ch'ing Legal Jurisdiction,” 235)Google Scholar.

91. See the Chinese statutes cited in note 62 above.

92. Morse, , Chronicles, 2:99–104. For historians' oversight on this, see notes belowGoogle Scholar.

93. IOR/G/12/79/1784–85: 126.

94. Shaw, , “‘from Samuel Shaw to John Jay,’” 326Google Scholar.

95. IOR/G/12/79/1784–85: 126–127 (the governor stated “it was the English alone he had any concern with”);Morse, , Chronicles, 2:103Google Scholar.

96. Shaw, , “‘from Samuel Shaw to John Jay,’” 326; cf.Google ScholarShaw, , Journal, 189Google Scholar.

97. IOR/G/12/79/1784–85: 127;Shaw, , “‘from Samuel Shaw to John Jay,’” 326Google Scholar.

98. Shaw, , Journal, 190Google Scholar;Shaw, , “‘from Samuel Shaw to John Jay,’” 326Google Scholar(describing the silk as “a mark of his friendly disposition”).

99. Shaw, , “‘from Samuel Shaw to John Jay,’” 326Google Scholar;Shaw, , Journal, 188–99Google Scholar(indicating that the French were the first willing to back out) and 191.

100. Shaw, , “‘from Samuel Shaw to John Jay,’” 326Google Scholar.

101. IOR/G/12/79/1784–85: 128;Morse, , Chronicles, 2:103Google Scholar.

102. This message reads: “You are hereby ordered to repair on board the Lady Hughes & acquaint the Commander of her that the Chinese Government have formally demanded of us the Person who fired the Gun which occasioned the death of a Man a few days ago that he may be tried at the Tribunal of Justice for the said offense, and that we expect that Capt. Williams will immediately comply with their requisition as the safety of all the English at this place may be endangered by a refusal. In case Capt. Williams should attempt to sail without agreeing to the demands of the Chinese Government you are to prevent him by such methods as you judge proper” (IOR/G/12/79/1784–85: 129, also 133;Morse, , Chronicles, 2:103).Google ScholarThis message, deliberately disclosed to the Chinese and then translated into Chinese, was probably designed only to create an appearance of British cooperation.

103. Council members, Browne, Lane, Lance, and Fitzhugh, told Shaw on the morning of November 30(Shaw, , Journal, 191).Google ScholarThis was supported by the EIC's records, see IOR/G/12/79/1784–85: 129.

104. IOR/G/12/79/1784–85: 129–31.

105. IOR/G/12/79/1784–85: 134 (omitted by Morse).

106. IOR/G/12/79/1784–85: 130–131, also 129–30, 132.

107. IOR/G/12/79/1784–85: 133–34 (Captain Mackintosh was already “on the point of returning to Canton” with the fabricated story, when Captain Williams sent the gunner on board the Contractor; ibid., 134); see also Shaw, , “‘from Samuel Shaw to John Jay,’” 326Google Scholar.

108. IOR/G/12/79/1784–85: 134–35. According to the EIC's account, the same Chinese agent also stated that “care would be taken to represent [the gunner's] case in the most favourable light, & he had no doubt that in about 60 days he would be sent back again” (ibid., 135). But Shaw, a participant in the meeting, only recorded that the “mandarins assured us that Mr. Smith should be restored this evening, and that the gunner should be kept in custody until the emperor's pleasure should be known”(Shaw, , Journal, 192).Google ScholarAs the British and the Americans in this case had to rely on the French interpreter, or a Chinese interpreter who was eager to flatter the British, the accuracy of the communications was questionable. See IDR/G/12/79/1784–85: 137 (giving cash to French and Chinese interpreters).

109. IOR/G/12/79/1784–85: 136;Morse, , Chronicles, 2:104Google Scholar.

110. IOR/G/12/79/1784–85: 136; alsoAuber, , China, 185Google Scholar.

111. IOR/G/12/79/1784–85: 118.

112. These remarks were related by the two EIC's supercargoes who attended this occasion. Accordingly, the judge also said that the Chinese government “had been extremely moderate in demanding one [foreigner] for the lives of two of its subjects” (IOR/G/12/79/1784–85: 153–54). As discussed below, these remarks were not part of the imperial edict. Some of the remarks could be due to mistranslation or inserted by Puan Khequa, the principal Hong Merchant who also acted as interpreter for the British at this meeting. As a security merchant for the EIC, Puan Khequa was interested in terrifying the British while winning their gratitude for the emperor's mercy, just as the judge was (see IOR/G/12/1781: 72–73). For refutation of the notion that Chinese law demanded life for life regardless of the circumstances, see Neighbors's work cited in note 42 above.

113. IOR/G/12/79/1784–85: 156, 153–54;Auber, , China, 187Google Scholar;Morse, , Chronicles, 2:105Google Scholar.

114. IOR/G/12/79/1784–85: 169 (January 1785);Morse, , Chronicles, 2:105Google Scholar;Morse, , International Relations, 1:102Google Scholar.

115. Exceptions are found in recent works by Alford, Askew, Lydia Liu, Ruskola, etc., cited below.

116. Daqing Gaozong Chun (Qianlong) Huangdi Shilu (Veritable Records of the Qianlong Reign [1735–96]) (Taipei: Hualian Chubanshe, 1964), 25:Google Scholar17819–20 (Qianlong 49/11/11 or Dec. 22, 1784);Qianlong Shangyudang (Imperial Edicts of Emperor Qianlong [1735–96]) (Beijing: Dang'an Chubanshe, 1997), 361–62;Google ScholarEdwards, , “Ch'ing Legal Jurisdiction,” 240–41Google Scholar.

117. See the previous note andEdwards, , “Ch'ing Legal Jurisdiction,” 241–42Google Scholar.

118. Bayly, , “The British Military-Fiscal State,” 338Google Scholar;Armitage, David, The Ideological Origins of the British Empire (New York: Columbia University, 2000), 2–3CrossRefGoogle Scholar.

119. Armitage, , Ideological Origins, 2; also seeGoogle ScholarBallantyne, Tony, Orientalism and Race: Aryanism in the British Empire (New York: Palgrave Macmillan, 2002), 18CrossRefGoogle Scholar.

120. See, e.g.,Morse, , Chronicles, 2:370–72 (1802).Google ScholarAs early as 1781, the British supercargoes already talked about colonizing Macao by “procuring” it from the Portuguese(Morse, , Chronicles, 2:68).Google ScholarFor British violence in South China, seeEdwards, , “Ch'ing Legal Jurisdiction,” 236Google Scholar;Morse, , Chronicles, 2:409–10 and 2:61–68 (1781),Google Scholar2:37 (1779);Davis, , The Chinese, 1:64Google Scholar.

121. Edwards, , “Ch'ing Legal Jurisdiction,” 260,Google Scholarand 232, 246; also see the previous note.

122. “Riot at China”;Shaw, , “‘from Samuel Shaw to John Jay,’” 325Google Scholar;Shaw, , Journal, 186Google Scholar.

123. IOR/G/12/79/1784–85: 136;Auber, , China, 185Google Scholar;the Times article above, note 122.Davis, , The Chinese, 1:67Google Scholar;IOR/G/12/79/1784–85: 126 (for the governor's anxiety);Staunton, , Miscellaneous Notices, 134, 266Google Scholar;Morse, , Chronicles, 2:103Google Scholar.

124. Qianlong Shangyudang, 12:361;Daqing Gaozong Shilu, 25:17819–20;Fu, , Documentary Chronicle of Sino-Western Relations, 1:297–98.Google ScholarEdwards was misled by the traditional narrative to state that Governor Sun gave the alleged “assurance” of presenting the case “in the most favourable light” and that he “proposed a finding of accidental homicide and release of the offender” upon a fine(Edwards, , “Ch'ing Legal Jurisdiction,” 240–41)Google Scholar.

125. Such factors could make an unintentional killing punishable by strangulation or exile. For cases, seeLi, , Cheng'an Xubian Erke (1763)Google Scholar;Shen, Tingying, Cheng'an Beikao (Leading Cases for References) (1808)Google Scholar;Zhu, et al., Xing'an Huilan Sanbian, 3:1546–48, 1639–42Google Scholar.

126. Fu, , Documentary Chronicle of Sino-Western Relations, 1:186–88Google Scholar(citing edicts from Qing Shilu, dated Nov. 1748, and April and June 1749).

127. IOR/G/12/79/1784–85: 135 (stating vaguely that this Chinese “Mandareen” was “one of superior rank,” but clearly not any of the ranking officials like the magistrate, the prefect, the provincial judge, or the governor). The term “vague assurance” is fromTuck, Patrick, “Law and Disorder in 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, ed. Harding, Richard et al. (Liverpool: Society for Nautical Research/National Museum Liverpool, 2004), 86Google Scholar.

128. Staunton, , Miscellaneous Notices, 273.Google ScholarMy larger project studies Staunton extensively. SeeStaunton, George Thomas, Memoirs of the Chief Incidents of the Public Life of Sir George Thomas Staunton (London: L. Booth, 1856)Google Scholar.

129. Timmermans, Glenn Henry, “Sir George Thomas Staunton and the Translation of the Qing Legal Code,” Chinese Cross Currents 2, no. 1 (2005): 36Google Scholar(emphasis added). He was influenced byTuck, , “Law and Disorder in the China Coast,” 86,Google Scholaralso 85–86. See also Davis, The Chinese; Morse, International Relations; Pritchard, The Crucial Years.

130. Hevia, James L., Cherishing Men from Afar: Qing Guest Ritual and the Macartney Embassy of 1793 (Durham: Duke University Press, 1995)Google Scholar.

131. Hay, Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas et al. (London: Peregrine, 1975), 17–63;Google ScholarKesselring, K. J., Mercy and Authority in the Tudor State (New York: Cambridge University Press, 2003)CrossRefGoogle Scholar.

132. Edwards, , “Ch'ing Legal Jurisdiction,” 241Google Scholar;Davis, , The Chinese, 1:32–33;Google ScholarQianlong Shangyudang, 12:373, 375, 394, 405, 415, 422.

133. Qianlong Shangyudang, 12:254 (49/8/20) (also suspecting the connection between the missionaries and the Muslim rebellions), 12:260 (Qianlong 49/8/20) and 375 (49/11/20).

134. Edwards, , “Ch'ing Legal Jurisdiction,” 241Google Scholar.

135. Qianlong Shangyudang, 12:361 (Qianlong 49/11/11).

136. Fu, , Documentary Chronicle of Sino-Western Relations, 1:187 (1749)Google Scholar.

137. For examples of racial or national biases in English criminal trials, seeMcLynn, , Crime and Punishment, 44Google Scholar(for cases in which the severity of the punishments might be partially influenced by hostilities to the foreign defendants).

138. See Qianlong Shangyudang, 12:361. The brief edict cited the governor's description.

139. Ibid. The quoted English translation is fromEdwards, , “Ch'ing Legal Jurisdiction,” 241. Cf.Google ScholarFu, , Documentary Chronicle of Sino-Western Relations, 1:297Google Scholar.

140. Qianlong Shangyudang, 12:361.

141. Although the records are unclear about how much the emperor knew about the British/Western resistance, his edict suggested that he suspected the British representatives, as the Portuguese or French in prior cases, tried to harbor the offender and evade Chinese justice.

142. An offender without murderous intent might still be convicted of murder under contemporary English law(Askew, , “Re-Visiting New Territory,” 364; alsoGoogle ScholarMcLynn, , Crime and Punishment, 38).Google ScholarFor the allegation that the Chinese wrongfully convicted the gunner of murder, seeStaunton, , Miscellaneous Notices, 134. CompareGoogle ScholarFu, , Documentary Chronicle of Sino-Western Relations, 1:318–19.Google Scholar(In 1792, a Portuguese was sentenced to strangulation for stabbing two Chinese to death in an affray in Macao.)

143. Fu, , Documentary Chronicle of Sino-Western Relations, 1:187 (April 22, 1749).Google ScholarTranslation was somewhat modified.

144. Ibid., 186–88.

145. For cases of mercy/favor to foreigners, seeFu, , Documentary Chronicle of Sino Western Relations, 1:188 (1751), 196Google Scholar(1755), 216–220 (1759), 275 (1775), 276–80 (1777) (“Whenever there is a foreign negotiation or a lawsuit [the Chinese officials] should never support only our people to the injury of the [foreigners],” at 279), 291 (1780), and 299 (1785).Edwards, , “Ch'ing Legal Jurisdiction,” 255–59Google Scholar.

146. Morse, , Chronicles, 5:17.Google ScholarFor more about this case, see Gongzhongdang Qianlongchao Zouzhe, 9:762–64;Morse, , Chronicles, 5:14–19 (1754)Google Scholar;Keeton, , Extraterritoriality in China, 1:33–34Google Scholar(quoting China Diaries and Consultations [1741–54]: 297–313). While the Chinese officials sought to exercise their jurisdiction over the French-Portuguese dispute in 1780 on the same grounds that the French offender would otherwise escape punishment for killing a Portuguese sailor, the British contradicted themselves by rejecting it as a “false” principle (IOR/G/12//72/1781: 20, also 18–19 [dated Qianlong 45/11/16 or Dec. 11, 1780/).

147. Qianlong Shangyudang, 12:361.

148. Edwards, , “Ch'ing Legal Jurisdiction,” 243Google Scholar(citingKeeton, , Extraterritoriality in China, 1:71)Google Scholar.

149. Qianlong Shangyudang, 12:417 (Qianlong 49/12/28), and 361. The governor was one of the emperor's 3,000 guests over seventy years old for a banquet in spring 1785 (ibid, 361, 385).

150. Qianlong Shangyudang, 12:417, No. 1161 (Qianlong 49/12/28).

151. Ibid.;Fu, , Documentary Chronicle of Sino-Western Relations, 1:186–87Google Scholar.

152. Innes, Joanna and Styles, John, “The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth Century England,” Journal of British Studies 25, no. 4 (1986): 403CrossRefGoogle Scholar(summarizing Hay, 1975).

153. McGowen, Randall, “Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821,” Law and History Review 25, no. 2 (2007): 241CrossRefGoogle Scholar(summarizing Hay). Cf.Beattie, John M., Crime and the Courts in England (Oxford: Oxford University Press, 1986),Google Scholaresp. chap. 8;King, Peter, Crime, Justice, and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000).Google ScholarFor literature reviews, seeKing, Peter, “Locating Histories of Crime: A Bibliographical Study,” British Journal of Criminology 39,Google ScholarSpecial Issue (1999): 161–74;Smith, Bruce, “English Criminal Justice Administration, 1650–1850: A Historiographic Essay,” Law and History Review 25, no. 3 (2007): 593–634CrossRefGoogle Scholar.

154. No English records indicated any British or Western witness of this execution.

155. Qianlong Shangyudang, 12:362; alsoAuber, , China, 190.Google ScholarIOR/G/12/79/1784–85: 142, 153 (Governor Sun set off for Peking on December 17, 1784 but had traveled less than halfway to the destination when he was ordered to return; he got back to Canton on January 7, 1785).

156. For discussion of “sovereign thinking,” seeLiu, , The Clash of Empires, 5–107Google Scholar.

157. Rabitoy, Neil, “Legal Despotism and the Imperial Mind,” Indo-British Review 6, nos. 3 and 4 (1977): 32–44;Google ScholarTravers, “Ideology and British Expansion,” 14–15, 17–22Google Scholar.

158. See IOR/G/12/79/1784–85: 170.

159. IOR/G/12/79/1784–85: 170–71;Morse, , Chronicles, 2:107Google Scholar.

160. IOR/G/12/79/1784–85: 169–70.

161. See, e.g., Hevia, Cherishing Men from Afar;Melancon, Glenn, Britain's China Policy and the Opium Crisis: Balancing Drugs, Violence and National Honour, 1833–1840 (Burlington, Vt.: Ashgate, 2003).Google ScholarMy larger study has more on this.

162. Keay, John, The Honourable Company: A History of the English East India Company (New York: Macmillan Publishing Co., 1991), 349Google Scholar.

163. IOR/G/12/79/1784–85: 171–72.

164. Ibid., 170;Morse, , Chronicles, 2:106–7;Google ScholarKeeton, , Extraterritoriality in China, 1:42Google Scholar.

165. As late as 1830, the Court of Directors in London still found it necessary to discipline the supercargoes in Canton because the latter's open resistance to Chinese jurisdiction put the EIC's business into serious danger(Morse, , Chronicles, 4:242 [1830])Google Scholar.

166. Auber, , China, 190–91Google Scholar; Edwards, , “Ch'ing Legal Jurisdiction,” 242Google Scholar(citing Pritchard, The Crucial Years, 230);Keeton, , Extraterritoriality in China, 1:42Google Scholar(citingAuber, , China, 190)Google Scholar.

167. Morse, , Chronicles, 2:107Google Scholar;Auber, , China, 187Google Scholar.

168. Auber, , China, 190–91Google Scholar; Keeton, , Extraterritoriality in China, 1:44Google Scholar(noting that this act was passed in 1787) (both quoting 26 Geo. III, c.57, sect. 35); Cf. IOR/G/12/79/1784–85: 175 (February 1785) (for the EIC's knowledge of their explicit authorization by the Parliament to control private British traders in China).

169. “Riot at China,” The Daily Universal Register, July 8, 1785.Google ScholarFounded in 1785, this newspaper was renamed The Times on January 1, 1788.

170. The New Annual Register, or General Repository of History, Politics, and Literature, for the Year 1785 (London: 1786), 40,Google Scholar47–48 (see quotation at 48).

171. Pritchard noted that the Lady Hughes case might have led Dundas to initiate the idea of the Cathcart Embassy of 1787(Pritchard, , The Crucial Years, 236). See alsoGoogle ScholarDavis, , The Chinese, 1:69Google Scholar;Morse, , Chronicles, 2:157Google Scholar.

172. Morse, , Chronicles, 2:155–56, 160Google Scholar.

173. This embassy sailed for China on December 21, 1787 but Lt. Colonel Cathcart died on June 10, 1788 in the “Straits of Banka” and the frigate returned to England(Morse, , Chronicles, 2:154–58)Google Scholar.

174. “Three Reports of the Select Committee, Appointed by the Court of Directors to Take into Consideration the Export Trade from Great Britain to the East Indies, China, Japan, and Persia; Laid before the Lords of the Committee of Privy Council,” (London: J. S. Jordan, 1793), 94–95Google Scholar.

175. Morse, , Chronicles, 2:218Google Scholar;Edwards, , “Ch'ing Legal Jurisdiction,” 242Google Scholar;Davis, , The Chinese, 1:69Google Scholar.

176. For a recent study of the 1793 Embassy, see Hevia, Cherishing Men from Afar. For the Opium Wars, seeChang, Hsin-pao, Commissioner Lin and the Opium War (Cambridge: Harvard University Press, 1964)Google Scholar;Wang, Gungwu, Deadly Dreams: Opium, Imperialism, and the Arrow War (1856–1860) (New York: Cambridge University Press, 1998)CrossRefGoogle Scholar.

177. Morse, , International Relations, 1:244Google Scholar.

178. For later disputes, seeEdwards, , “Ch'ing Legal Jurisdiction,” 241–43, 245–50Google Scholar.

179. My larger project studies Staunton's translation as a case of Western knowledge production of Chinese/Oriental law and society. Also see sources in the next note.

180. In fact, England did not have a comprehensive law code. For criticism of English criminal justice by contrasting it with Chinese practices, see, e.g.,Hints for a Reform in the Criminal Law, in a Letter Addressed to Sir. Samuel Romilly, Bart. M.P. By a Late Member of Parliament (London: J. Mawman, 1811), 7, 12–14, 23, 27–28;Google ScholarEnsor, George, Defects of the English Laws and Tribunals (London: J. Johnson & Co., 1812), 140,Google Scholar143, 246, 464. About English law reform, see, e.g.,Gatrell, V. A. C., The Hanging Tree: Execution and the English People 1770–1868 (Oxford: Oxford University Press, 1994).Google ScholarMy larger project studies English reception of the Qing Code extensively.

181. Davis, , The Chinese, 1:389,Google Scholar393–95. A veteran in the EIC's business in China, Davis once was the British Superintendent of Trade in the 1830s and would be the second governor of Hong Kong in 1844–48. The Chinese: A General Description went through many editions and in 1895, an author noted that it “is still recognized as one of the best descriptions” of China(Eitel, Ernest John, Europe in China: The History of Hongkong from the Beginning to the Year 1882 [1895], 211)Google Scholar.

182. Davis, , The Chinese, 1:394Google Scholar.

183. Ibid., 394 and 389 respectively.

184. Ibid., 65.

185. Quotations fromStaunton, , Ta Tsing Leu Lee, 523Google Scholar(on an 1808 edict that cited the 1744 one). Previously, the British had known very little about this. See also Gongzhongdang Qianlongchao Zouzhe, 57:13–14 (Qianlong 48/7/29) (for details of this procedure).

186. Edwards, , “Ch'ing Legal Jurisdiction,” 228–29.Google ScholarThat being said, it is worth noting that almost all modern legal systems have special stipulations (on issues ranging from customs entry, to employment, and to criminal laws) that privilege their own citizens over foreigners. Such differential treatment did and does not constitute legitimate reasons for violation of or resistance to the host country's laws.

187. Gongzhongdang Qianlongchao Zouzhe, 57:767 (1783)Google Scholar(“xianxing zhengfa”), 57:852 (1783), 60:60, and 88 (explaining the rationale) (1794);Dong, Jianzhong, ed., Qianlong Yupi (Edicts with Emperor Qianlong's Script) (China: Zhongguo Huajiao Chubanshe, 2001), 2:790 (1786)Google Scholar.

188. Bayly, , “The British Military-Fiscal State,” 332Google Scholar(referring especially to the Wellesley era in 1798–1805).

189. Morrison, Robert, “The Law of Homicide in Operation,” The Chinese Repository III, no. 1 (1834): 38–39.Google ScholarAs the leading English-language periodical on China, the Chinese Repository enormously shaped Western opinions about China around the time of the first Opium War.

190. Ibid., 38; reprinted inKeeton, , Extraterritoriality in China, 2:252–54; seeGoogle ScholarMorrison, Eliza A., Memoirs of the Life and Labours of Robert Morrison (London: Longman, Orme, etc., 1839), vol. 2, appendix, 7Google Scholar.

191. Auber, , China, 310–11Google Scholar; Morse, , International Relations, 1:109.Google ScholarIronically, many Western commentators (Morse, International Relations; Keeton, Extraterritoriality in China) often cited Chinese judicial torture during homicide trial as a key reason for resisting Chinese jurisdiction (though Chinese officials never used it in foreigner-related trials), but their argument for equal administration of Chinese law and procedures would ask for both pre-trial detention and judicial torture in trial of foreigners.

192. Quoted inDavis, , The Chinese, 1:395; alsoGoogle ScholarRobert Morrison, “Thoughts on the Conduct of the Chinese Government towards the Honourable Company's Servants at Canton (1819),” inMorrison, , Memoirs, vol. 2, appendix, 7–10,Google Scholarat 8–9. This article was reprinted later inThe Chinese Repository, vol. 8, no. 12 (April 1840), 615–19Google Scholar(suggesting that Morrison wrote this piece in 1814).

193. Davis, , The Chinese, 1:389Google Scholar.

194. Ibid.

195. Ibid., 64; seeMorrison, , Memoirs, vol. 2, appendix, 7–10,Google Scholarat 9–10 (for similar arguments).

196. Quoted inDavis, , The Chinese, 1:391Google Scholar.

197. Ibid., 393.

198. See Edwards, , “Ch'ing Legal Jurisdiction,” 250–51Google Scholar.

199. For early advocacy of British extraterritoriality, seeMorrison, , Memoirs, vol. 2, appendix, 7–10,Google Scholarat 7–9;Davis, , The Chinese, 1:391Google Scholar.

200. Williams, , The Middle Kingdom, 2:454–59Google Scholar(citing the 1784 case as a watershed in Britain's policies to China).

201. Ibid., 458.

202. It had reprints or new editions at least in 1848, 1849, 1851, 1853, 1857, 1859, 1861, 1871, 1876, 1879, 1882, 1883, 1895, 1897, 1899, 1900, 1901, 1904, 1907, 1913, 1965, 1966, 1967, 2005, and 2005 (in Chinese). This is based on WorldCat, an online global catalog.

203. Fay, Peter W., “The French Catholic Mission in China during the Opium War,” Modern Asian Studies 4, no. 2 (1970): 116,CrossRefGoogle Scholar115 (on Morse's use of the term “culture”).

204. Quotation fromMorse, , International Relations, 1:109Google Scholar.

205. Ibid., 110. Morse's distinction between the two legal systems in their different emphasis on the “results” versus “intention” was ill-informed (see, e.g., Neighbors, “Criminal Intent and Homicide Law”).

206. Morse, , International Relations, 1:117Google Scholar.

207. Ibid., 101–3, 102–3 (on the 1784 case) (citing only Davis, The Chinese and Auber, China).

208. Their writers' accounts might differ from some of the popular misrepresentations of these cases or Chinese law in certain technical details. See Davis, The Chinese; Keeton, Extraterritoriality in China;Pritchard, , The Crucial Years, 220, 225–30Google Scholar.

209. Fairbank, John K., “The Creation of the Treaty System,” in The Cambridge History of China: Late Ch'ing, 1800–1911, Part 1, ed. Fairbank, John K. (New York: Cambridge University Press, 1978), 232.CrossRefGoogle ScholarFor Fairbank's other works and influence, seeEvans, Paul M., John Fairbank and the American Understanding of Modern China (New York: Basil Blackwell, 1988)Google Scholar.

210. Fairbank, , “Creation of the Treaty System,” 216–17. SeeGoogle ScholarFairbank, John K., The United States and China, 3rd ed. (Cambridge: Harvard University Press, 1972), 137–48,Google Scholaresp. 141, 143, 145, 147.

211. Fairbank, John K., China Watch (Cambridge: Harvard University Press, 1987), 1CrossRefGoogle Scholarand 3 respectively for the two sentences. On the Emily case, compareAskew, , “;Re-Visiting New Territory,” 351, 367Google Scholar.

212. For critiques of Fairbank and the like, seeEsherick, Joseph, “Harvard on China: The Apologetics of Imperialism,” Bulletin of Concerned Asian Scholars 4, no. 4 (1972): 9–17;Google ScholarChung, Tan, “Imperialism in Nineteenth-Century China (2): The Unequal Treaty System: Infrastructure of Irresponsible Imperialism,” China Report 17, no. 3 (1981): 3–33;CrossRefGoogle ScholarCohen, Paul A., Discovering History in China: American Historical Writings on the Recent Chinese Past (New York: Columbia University Press, 1986).Google ScholarFor critiques of misperceptions of imperial Chinese law, seeAlford, William P., “Of Arsenic and Old Laws: Looking Anew at Criminal Justice in Late Imperial China,” California Law Review 72 (1984): 1181–250;CrossRefGoogle ScholarAlford, , “The Inscrutible Occidental? Implications of Robert Unger's Uses and Abuses of Chinese Past,” Texas Law Review 64, no. 5 (1986): 915–72;Google ScholarAlford, , “Law, Law, What Law? Why Western Scholars of Chinese History and Society Have Not Had More to Say about Its Law,” Modern China 23, no. 4 (1997): esp. 404–5CrossRefGoogle Scholar(on Fairbank);Barlow, Tani, “Colonialism's Career in China Studies,” in Formations of Colonial Modernity in East Asia, ed. Barlow, Tani (Durham: Duke University Press, 1997), 373,Google Scholar389–90;Ruskola, Teemu, “Law without Law, or Is ‘Chinese Law’ an Oxymoron?” William & Mary Bill of Rights Journal 11 (2002): 655–70;Google Scholaribid.,“Legal Orientalism,” Michigan Law Review 101, no. 1 (2002): 179–234CrossRefGoogle Scholar.

213. Wakeman, Frederic E., “The Canton Trade and the Opium War,” in The Cambridge History of China: Late Ch'ing 1800–1911, Part 1, ed. Fairbank, John K. (New York: Cambridge University Press, 1992), 180Google Scholar.

214. Ibid., 189–90. Wakeman cited Randle Edwards's unpublished dissertation.

215. Ibid., 190; also seeWakeman, Frederic E., Strangers at the Gate; Social Disorder in South China, 1839–1861 (Berkeley: University of California Press, 1997 [1966]), 81Google Scholar.

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217. Auber, , China, 183–84Google Scholar.

218. Davis, , The Chinese, 1:65Google Scholar;IOR/G/12/79/1784–85: 118–137; cf.Morse, , Chronicles, 2:99–107;Google ScholarKeeton, , Extraterritoriality in China, 1:404Google Scholar;Pritchard, , The Crucial Years, 226–27Google Scholar.

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220. See, e.g.,Bodde, Derk and Morris, Clarence, Law in Imperial China (Cambridge: Harvard University Press, 1967), 43, 331.CrossRefGoogle ScholarThey seemed to be influenced in turn by Needham and van der Valk. See, e.g.,Valk, M. H. van der, Interpretations of the Supreme Court at Peking: Years 1915 and 1916 (Batavia: Sinological Institute, Faculty of Arts, University of Indonesia, 1949), 20–21;Google ScholarMeijer, M. J., The Introduction of Modern Criminal Law in China (Batavia: Die Unie, 1950), 2Google Scholar;Sprenkel, Sybille van der, Legal Institutions of Manchu China (London: University of London, Athlone Press, 1962) 127Google Scholar;Needham, Joseph, Science and Civilisation (Cambridge: Cambridge University Press, 1956; reprint 1965), 528. SeeGoogle ScholarDao-lin Hsu's article cited in note 222.

221. For instance, Tuck, “Law and Disorder in the China Coast,” who is not a sinologist, cited Bodde and Morris to make a similar argument in interpreting the 1807 Sino-British case (the Neptune) in Canton.

222. SeeHsu, Dao-lin, “Crime and Cosmic Order,” Harvard Journal of Asiatic Studies 30 (1970): 111–25;Google ScholarNeighbors, , “Criminal Intent and Homicide Law,” esp. 19–23. Even Bodde and Morris's own book (Law in Imperial China, 342–51) had many cases that challenged this ideaGoogle Scholar.

223. See, e.g.,Spence, , The Search for Modern China, 126–27; also compareGoogle ScholarAskew, , “Re Visiting New Territory,” 366Google Scholaron the 1821 case; also seeWaley-Cohen, , Sextants of Beijing, 101.Google ScholarWakeman and Spence both cited Edwards's work.

224. Relatively speaking, Chinese law generally attached greater value to human life than to property and tended to treat more harshly private violence involving dangerous weapons. The survivor of a duel in England might only be convicted of manslaughter for killing the rival but was punishable by decapitation for murder under Chinese law. SeeRadzinowicz, , A History of English Criminal Law, 632–37Google Scholar(on many nonclergyable capital offenses like grand larceny and burglary, etc.);Beattie, John M., Crime and the Courts in England, 1660–1800 (Oxford: Clarendon Press, 1986), 452–53Google Scholar(for a late seventeenth-century sample in which 80 percent of the fifty or so executed men were for property offenses). For eighteenth-century views on “property,” seeRose, Carol M., “Canons of Property Talk, or, Blackstone's Anxiety,” The Yale Law Journal 108, no. 3 (1998): 601–32CrossRefGoogle Scholar.

225. This was the case even though Montesquieu criticized China's “despotism.” See, e.g.,Montagu, Basil, ed., The Opinions of Different Authors Upon the Punishment of Death, 2nd ed. (London: Society for the Diffusion of Useful Knowledge, 1816)Google Scholar;see note 180 and accompanying text, and note 230.

226. In addition to carefully defining the size and dimensions of the pressers, Chinese law also stipulated what officials could apply them and what punishments would be due to those who abused this legal provision.Tian, and Zheng, , Daqing Lüli, 81, 561–63, 573Google Scholar.

227. Spierenburg, Pieter, The Spectacle of Suffering: Execution and the Evolution of Repression: From a Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984), 190Google Scholar.

228. See, e.g.,Staunton, , Ta Tsing Leu Lee, xxvGoogle Scholar(noting that “[w]e shall look in vain, for instance, for those excellent principles of the English law, by which every man is presumed innocent until he is proved guilty; and no man required to criminate himself. Such maxims the Chinese system neither does nor indeed could recognize”).

229. For Chinese laws defining the duties of the judges, see, e.g.,Tian, and Zheng, , Daqing Lüli, 553–58,Google Scholar575, 579–602. Chinese scholars have argued that imperial Chinese law contained various provisions manifesting the presumption of innocence. See, e.g.,Hanling, Ning, “On the Presumption of Innocence,” Zhongguo Shehui Kexue (Chinese Social Science) 4 (1982): 83–84Google Scholar.

230. Stephen, James Fitzjames, The History of the Criminal Law of England (London: Macmillan and Co., 1883), 1:297–99;Google ScholarMcKenzie, Andrea, “‘This Death Some Strong and Stout Hearted Man Doth Choose’: The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth-Century England,” Law and History Review 23, no. 2 (2005): 1–43CrossRefGoogle Scholar.

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232. Smith, Bruce P., “The Presumption of Guilt and the English Law of Theft, 1750–1850,” Law and History Review 23 (2005): 134–35, 136CrossRefGoogle Scholar(noting that “heightened procedural and evidentiary protections for defendants” existed in the higher courts). Cf. Norma Landau, “Summary Conviction and the Development of the Penal Law,” ibid., 173–89, and for a rebuttal, see Bruce P. Smith, “Did the Presumption of Innocence Exist in Summary Proceedings?” ibid., 1–18.

233. From the 1730s, some English judges in practice allowed such defense counsels, but most of the accused felons were unrepresented. A 1696 statute allowed defense counsels in state (treason) trials. SeeBeattie, John M., “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9, no. 2 (1991): 221, 227CrossRefGoogle Scholar;Langbein, John H., The Origins of Adversary Criminal Trial (New York: Oxford University Press, 2003), 106–7,Google Scholar168–77 (also on the restrictions of defense counsels even after 1730);Askew, , “Re-Visiting New Territory,” 368,Google Scholarn. 23 (noting that “roughly seven out of eight went unrepresented”).

234. See, e.g.,Sir Romilly, Samuel, Observations on the Criminal Law of England as It Relates to Capital Punishments, and on the Mode in Which It Is Admitted, 2nd ed. (London: T. Cadell and W. Davis, 1811)Google Scholar;Montagu, Basil, ed., The Debates in the House of Commons, During the Year 1811: Upon Certain Bills for Abolishing the Punishment of Death (London: Longman, Hurst, Rees, Orme, and Brown, 1812)Google Scholar.

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