Li Chen

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

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.¹ These practices prompted revision of international law treatises and set the pattern for Western dealings with Asian countries for the century to come.² 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.³	1
The most popular assumption behind this regime of extraterritoriality was that Chinese law and legal institutions were so unjust, arbitrary, and barbarous that Western governments had to protect their citizens from Chinese jurisdiction. As the first to impose extraterritoriality upon China, the British, as well as their representation of the Sino-British/Western legal disputes in Canton (Guangzhou) between 1700 and 1840, had played a major role in shaping the Western discourse of Chinese legal barbarity since the 1750s. The Lady Hughes incident in 1784 was the most important case in this regard. In that case, a British gunner, allegedly in firing a gun salute, shot to death two Chinese boatmen in Canton. After a violent struggle between the local authorities and the Western representatives in Canton over whether the gunner should be tried by the Chinese courts, he was finally sentenced by the Chinese emperor to strangulation. Jonathan Spence, a leading authority on modern Chinese history, has recently stated that the Lady Hughes dispute was one of the two cases that "made the greatest impact on Western thinking and forced a serious reconsideration of how to deal with the Qing [government (1644–1912)] at the international diplomatic level."⁴ Even though dozens of major crimes were committed by British subjects in China between 1700 and 1840, the Lady Hughes case was the only one in which the British authorities ever delivered up a British offender to the Chinese government for trial.⁵ In spite of or because of its singularity, this case was frequently cited by modern historians to account for the Sino-Western conflicts that culminated in the First Opium War and the subsequent unequal treaties and foreign extraterritoriality until 1943. It is thus fair to say that this case was critical in shaping the history of modern China and its foreign relations.	2
It was traditionally understood that the British gunner shot the two Chinese by pure accident and was thus free from any legal liability, and/or that the Chinese insisted on executing a totally innocent and unrelated British subject even though the gunner escaped or was unidentifiable. It was also claimed that the Chinese were dishonest by nature as seen in their failure to fulfill their "solemn" promise to release the British suspect and that the Chinese held the British supercargo(es) or even the whole Western community criminally liable for this homicide.⁶ These claims then formed the basis for even broader assertions that the Chinese legal system demanded "life for life" in all homicide cases regardless of criminality or circumstances, practiced the doctrine of "collective responsibility" in holding all Westerners responsible for the misconduct of one of their members, and was arbitrary, sanguinary, and "incompatible with European ideas of equity or Justice" or "humanity."⁷ This was an early, legal version of the influential discourse of clash of cultures or civilizations that was later invoked to explain the origins of modern Sino-Western conflicts.	3
While the Chinese legal system and Chinese authorities in this or similar disputes were not free from blame, there was scarcely any evidence to support the above-mentioned specific claims about the Lady Hughes case or the sweeping generalizations about Chinese law and polity on the basis of such cases. This article first discusses the nature of the sources of such early Sino-Western disputes and the implications for modern historiography. It then reconstructs this dispute based on the English-language archives of the East India Company (the "EIC") of Britain, supplemented by contemporary witness accounts and news reports. The next section analyzes the fragmented but important Chinese records that provide a different interpretation and rationale for the Chinese proceedings in this case. The last section focuses on how this case and its derivative discourses were used retrospectively to justify the British demand for extraterritoriality in China beginning in the late seventeenth century, and how they impacted modern historiography on imperial Chinese law and diplomacy.⁸	4
My research shows that the fundamental reason for such Sino-Western legal skirmishes was not an inevitable clash between a "primitive" Chinese legal system and a more "civilized" Western legal system. Rather, such controversies took place because the different empires involved had competing claims for sovereignty and imperial honor. This article further argues that the preexisting scholarly treatment of the Lady Hughes case has suffered in varying degrees from an inadequate appreciation of such intercultural power politics and of the problematic nature of the traditional representation of such an event. Often exclusively informed by the British side of the story, prior accounts of this case were too often reduced to a terse, categorical condemnation of Chinese law and government.⁹ That these accounts dominated the field of historiography over two centuries testifies to the challenge and urgency of revisiting this important historical event.	5
In contrast, the analysis below will illuminate the highly complex dynamics of the power relations between the Chinese and the British actors in Canton as well as in Peking (Beijing) and London. While the expanding British Empire tended to defy the "local" cultures and legal systems that it encountered, the Chinese Empire tenaciously held onto its claim for legal and cultural sovereignty. That the central authorities and the local agents on both sides had different priorities and strategies in a particular case further complicated the situation. The Lady Hughes incident thus provides a valuable case study of the constant accommodation, negotiation, and contestation between agents of these two empires before Britain prevailed over China by force half a century later. This study also illustrates how modern Western knowledge of Chinese law and politics was discursively constructed and deployed during the formative period of Sino-Western relations.	6

I. Historiographic Matters: Colonial Archives and Clash of Sovereign Thinking

Colonial Archives
A note on the nature of the primary sources for this study is in order here. For these early Sino-Western legal disputes, the extant records mostly consist of some brief Chinese imperial edicts and more detailed English-language archives plus other foreign eyewitness accounts. Modern historians have advisedly taken the Chinese official communications with great caution. The local officials' different agendas from those of their superiors might well have led the former to gloss over or withhold certain information about the local occurrences. However, until recently, the same kind of caution was seldom exercised toward the English-language representations of these events. The British agents were equally interested in casting these disputes in a light favorable to themselves. It is particularly problematic to take their representations at face value given the inherently "allusive, incomplete nature of colonial knowledge" that was produced in a context of unequal power relations.¹⁰ It is true that South China then was not a colony of Britain or other Western empires and that the Chinese even partly succeeded in overpowering the British in this case. However, in the long run, it was the increasingly inequitable relations of power that allowed the British/Western perspectives to dominate modern historiography and interpretation of these events. The Chinese were rarely granted their own texts or voices and their perspectives were often filtered through the British/Western lens. As Ranajit Guha proposed, such partisan records should be "read against the grain" in order to recover the historical meanings and struggles that were suppressed by the dominant colonial discourse or master narrative.¹¹ Therefore, I propose to decipher both the English and Chinese records by interrogating the sources, reading between the lines, and watching out for discrepancy and inconsistency, all in light of their evidenced agendas as well as the relevant larger discourse and historical context.	7

Clash of Sovereign Thinking
At the time of the Lady Hughes case in 1784, it still remained a prevailing principle of the "law of nations" that any "sovereign and independent" state like China was entitled to exercise exclusive jurisdiction over all foreigners who voluntarily entered its territory. Except through conquest or occupation by military force, only bilateral treaties could allow extraterritorial privileges for the ambassadors or nationals of a European state to be exempted from the "local" laws and jurisdiction of a non-European sovereign state.¹² In this vein, the British government or the EIC's officials in 1784 in principle did not challenge China's sovereignty and exclusive jurisdiction over its territory. As late as 1838, in an instruction to the British Superintendent in China, Lord Palmerston, Foreign Secretary of Great Britain, still explicitly acknowledged "the absolute right of sovereignty" of China as an "independent state" to exercise jurisdiction over foreigners within the "dominions of the Empire of China."¹³ Among the British agents in China, however, this principle was more honored in the breach than in the observance. What was the rationale for their approach to China?	8
Historians of Chinese foreign relations tended to view the EIC as if it was just a commercial enterprise, but scholars of the English and the Dutch EICs have shown that "these old monopolistic companies" "had their own administrative and judicial machinery ... possessed powers of life and death over their officials as well as natives, and had the right to declare war and make peace, and in short were 'a State within a State.'"¹⁴ As Edmund Burke put it aptly around the time of the Lady Hughes case, "The East India Company did not seem to be merely a Company formed for the extension of the British commerce, but in reality of the whole power and sovereignty of [the United Kingdom] sent into the East."¹⁵ Such an aggressive extension of the British Crown's power to Asia was only possible at the expense of the latter's sovereignty.	9
Chartered as a trading company with enormous autonomy and delegated power from the British government, the EIC was intent on asserting its sovereignty and extraterritoriality in Asia. Christopher Bayly has documented the "strong tendency" of the EIC officials to "invade and modify" sovereignty of the Indian rulers "from the outset."¹⁶ As early as 1668, the EIC "conceived of itself as an absolute sovereign [in Bombay], ruling as surrogate of the British Crown." From 1694, it started to exercise "rights of life and death" over Indian residents in Calcutta. After the battle of Plassey (1757), much of the Indian Subcontinent was effectively colonized and the EIC became the sovereign and lawmaker there.¹⁷	10
Where colonization was not yet feasible, the EIC tried to procure its extraterritorial privileges by other means. Its agents sought extraterritoriality from the local authorities in Taiwan as early as 1670, twenty years before the first documented Sino-British legal dispute and thirteen years before Taiwan's integration into the newly founded Qing Empire. They requested such privileges again at Canton in 1715 and 1729.¹⁸ As early as 1696, they made similar attempts in Vietnam (Annam).¹⁹ However, the Chinese local officials did not seem to have ever agreed to such a request and the Qing Court clearly never sanctioned it.²⁰	11
The practical benefits of extraterritoriality were evident for the British, who, for one thing, could engage in any lucrative business free of local laws and restrictions. This was particularly true in South China. By the 1740s, the EIC had already taken "the lion's share of the Canton trade," which became a vital source of revenue for the British Empire.²¹ British sailors in the China Sea amounted to about 1,500 annually by the end of the century and their "brutal violence and beastly intemperance" made them constantly liable to Chinese penalties.²² As British officials noted privately, "disorderly behavior of the [British] seamen and especially their frequent ill-treatment of the Chinese [had] been such as to keep us in a constant state of alarm and apprehension."²³ To allow strict enforcement of Chinese law would hazard the life, liberty, property, and dignity of the British. This was especially the case as the EIC and other British traders got increasingly involved in such illicit business in South China as human trafficking and opium smuggling.²⁴	12
The desire for jurisdictional, commercial, and political expansion in Asia—especially in India and China that had long been fantasized as sources of luxury goods, fortunes, and high civilization—prompted an Orientalist discourse that in turn served to legitimate such expansion.²⁵ Such epistemological changes were already evident in Montesquieu's Persian Letters (1721) and Spirit of the Laws (1748) and Daniel Defoe's Farther Adventures of Robinson Crusoe (1719). For the next century or so, this influential discourse of "Asiatic"/ "Oriental despotism" and corruption gradually turned Asian countries like China, India, and Turkey into targets of the European "civilizing mission" in the form of "free trade," colonization, or extraterritoriality.²⁶ This discourse provided the ideological grounds for the "free but conquering" British Empire to not only colonize India but rule it by authoritarianism instead of the principles of liberty, equity, and rule of law that presumably distinguished Britain from Asiatic despotisms.²⁷	13
Likewise, the same discourse stigmatized any voluntary submission to Chinese law and jurisdiction. As early as 1721, the EIC's officials justified their obstruction of Chinese criminal justice as an effort to avoid "falling to the hands of the Barbarians" and the "arbitrary" laws of China.²⁸ They reiterated in 1781 that "to submit British subjects to Chinese jurisdiction would "place [them] in a worse situation than [were] the subject of a Tyrannical Government."²⁹ In the Lin Weixi case that directly triggered the First Opium War in 1839, Charles Elliott, the British superintendent, bluntly stated that "even if a man was convicted [of murder] he was not to be executed by the Chinese."³⁰ Unable to secure extraterritoriality through colonization or treaties, the British officers thus tried to evade Chinese jurisdiction since 1689 through bribery, coercion, or obstruction. In their own defense, they claimed that the crime was accidental, that the suspect was unidentifiable, and/or that Chinese criminal justice was incompatible with British/European notions of justice.³¹ Consequently, as British officials admitted in the 1830s, the EIC's agents had "systematically" "screened" British felons from Chinese justice in the previous century.³²	14
For agents of the rapidly expanding British Empire, to extend sovereignty over their subjects overseas was essential to their sense of cultural superiority, imperial honor, and commercial and political interests. This mentality and its related discourse and practices formed what I call a colonial "sovereign thinking."³³ By the late eighteenth century, this sovereign thinking became constitutive of the national and transnational identity and subjectivity of the British at least in relation to the Asian peoples and societies they encountered. It provided ideological coherence and moral anchorage for their defiance of Chinese law and justice.	15
However, the British sovereign thinking clashed with an equally strong Chinese determination to maintain their claim for legal and cultural sovereignty. In many cases, the Qing Court was willing to let foreigners in South China be punished by their own governments for crimes against other foreigners, or for minor offenses against the local Chinese people, if such penalties were duly carried out.³⁴ At the same time, at least from 1743, in cases of serious injury or homicide of Chinese subjects, the Qing Court's policy was to require local Chinese officials to punish the foreign offenders according to Chinese law. As Emperor Qianlong (reigning in 1736–95) explained in 1748, since Chinese subjects were invariably punished for serious crimes against foreigners, failure to do the same to foreign culprits would undermine the Chinese claims to impartial justice, honor, and sovereignty.³⁵ In a case like the Lady Hughes, the British and the Chinese thus came to a head-on confrontation and both sides employed different strategies to outwit or subdue each other. The foregoing historical and international contextualization is essential for our understanding of a case like the Lady Hughes and challenges the traditional discourse on the origin(s) of Western extraterritoriality and, by implication, of post-1839 Sino-Western conflicts.	16

II. The Lady Hughes Dispute in 1784
On November 24, 1784, a British "country [i.e., private] ship," the Lady Hughes, was lying at Whampoa (Huangpu) near the city of Canton. Originally from the British colony of Bombay, this ship had Captain W. Williams as the commander and Mr. George Smith as the supercargo. A serious incident then took place. According to the EIC's agents: "A Chop boat [i.e., a Chinese official lighter] which was lying alongside the Lady Hughes Country ship 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; on the following day we were informed that he was dead, & that the Gunner tho' innocent of any criminal intention had from apprehension of the undiscriminating Severity of the Chinese Government absconded."³⁶	17
Later, deputies of the Canton Customs Commissioner (yuehaiguan jiandu) together with the Hong Merchants³⁷ visited the British factories and requested that "the person who had fired the Gun should be sent up to Canton to be examined." The Council of Supercargoes, which represented the interests of the EIC as well as Britain in China, observed that "it did not appear that [the Chinese] 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." Admitting that "a request so reasonable [that] no objection could be made," they still insisted that the examination take place in one of the British factories.³⁸ This was to prevent the normal Chinese judicial procedure. As noted above, long before the present case, the EIC's officials had already made up their minds to resist Chinese jurisdiction over British persons, even in murder cases.³⁹ Such absolute immunity from Chinese punishments was regarded as their "privilege" and "small consolation" for the "many deprivations" they claimed to have suffered in China.⁴⁰ This predisposition might explain why they hastened to declare the 1784 homicide to be an "unfortunate accident" and the gunner "innocent of any criminal intention" before there was any formal judicial investigation.⁴¹	18

Comparative Perspectives on the Legal Analysis
By invoking such phrases as "an unfortunate accident" or "innocent of criminal intention," the British representatives had defined this case as an "accidental homicide," which for them meant no criminal liability for the British gunner and no need for Chinese investigation. This characterization has since been taken for granted by subsequent commentators as the point of departure whenever the Lady Hughes case was deployed to generalize about imperial Chinese law, criminal justice, and diplomacy. In contrast, to verify the validity of the British claims, this article will reexamine the factual circumstances and legal issues in this case according to contemporary Chinese and British law. This does not mean that China's sovereignty or jurisdiction had to be determined by whether Chinese law was similar or comparable to its British/Western counterpart. Rather, Chinese law should govern this case and our comparative analysis is necessitated by the widespread perception that British law would have found the British gunner "innocent." As a separate legal system existed in Scotland, it is more accurate to use "English law" than "British law" in the following discussion.	19
The notion that any unintended homicide was "accidental" and thus legally excusable was very popular among the EIC's representatives in Canton during the eighteenth century. However, there existed critical differences between the popular understanding and the legal definition of "accidental homicide" in both England and China. First, both English and Chinese laws stipulated various criminal liabilities for acts that were not intentional but still evidenced criminal negligence, recklessness, or willfulness. Under English law, criminal intention, including a murderous one (the so-called "malice aforethought"), could be implied or inferred from the circumstances of the crime. Likewise, Chinese law defined a host of different degrees of mental culpability and certain unintentional acts were subject to criminal liabilities.⁴²	20
Second, an "accidental homicide" was legally recognizable in both China and England only if the act that caused the death was lawful and purely accidental. According to Sir William Blackstone, a leading authority on English law in the eighteenth century, a homicide was "excusable" (and thus exempt from criminal punishment) only if the accused, in causing another's death by accident, was then "doing a lawful act, without any intention of hurt."⁴³ A person who killed another when committing a felony would thus be guilty of murder in England even though the death might have resulted from a pure accident.⁴⁴ Under the Chinese statute on "guoshisha" or "killing by misadventure," the deadly act had to be what "the ears and eyes [did] not reach" and "contemplation [did] not attain," and the act was not meant to cause any harm in the first place (chu wu hairen zhiyi).⁴⁵ In other words, an "accidental homicide" could be established under Chinese or English law only if it was an unforeseeable result of a lawful act.⁴⁶	21
How might the Lady Hughes case be decided under these Chinese and English legal standards? Western traders had long been prohibited by Chinese law from possessing or shooting firearms in Chinese territory. And this was well known to the British.⁴⁷ The act's illegality would then disqualify this case from the realm of "accidental" homicides under Chinese and English law, regardless of the gunner's intent. Under English law, an unlawful act that caused death would subject the actor to punishment for manslaughter or murder.⁴⁸ Apart from this, the deadly nature of the weapon, and the multiple deaths involved in this case, as well as the gunner's refusal to appear in a court of law might then make him even liable to capital punishment.⁴⁹	22
Independent of the legality of the "saluting," the circumstances in this case were also likely to make the British gunner criminally liable. The British repeatedly stated that the Chinese boat had been "lying alongside" the Lady Hughes, instead of suddenly emerging from nowhere. It then seems difficult to also believe the claim that the Chinese boat was "unfortunately in the way of one of the Guns while fired in Saluting" (emphasis added). Under Chinese law, the clause "contemplation does not attain" in the statute of "killing by misadventure/accident" meant that "the incident occurred in a 'secluded place, a place where there ought to be no people.'"⁵⁰ This requirement did not appear to be met in the Lady Hughes case, in which the gunshot took place where a boat had been "lying alongside." Indeed, at this time of the year, "a mass of ships of all sizes," both foreign and Chinese, could have frequently "filled the water" at Whampoa.⁵¹ And absence of express intent to kill was not enough to exculpate the offender here. Under the "Waltham Black Act" in England, for instance, it was "a capital offence" to shoot at "any person in any dwelling-house [or the like]," regardless of the shooter's intention or the actual injury to anyone.⁵² Given the totality of the circumstances in this case, there was substantial likelihood that an impartial Chinese Court or English-style jury would conclude that the British gunner should have contemplated the deaths as a result of his shooting. Then, even assuming his lack of express intent to kill, the gunner might be found guilty of murder under English law; under Chinese law, he could be sentenced to life exile at a distance of three thousand li (about 1,000 land miles) or even to strangulation in light of the various aggravating circumstances.⁵³	23
In addition, although the EIC's report to the Court of Directors was silent on this, it seemed to be well known among Westerners in Canton that the Lady Hughes "gunner had notified his officer that a Chinese boat was just in range but was imperiously directed to fire [the salute]."⁵⁴ The British insisted on the gunner's innocence probably also because they believed that the latter only followed the officer's direction. However, to act pursuant to a superior's order would not necessarily acquit the defendant of the consequent crime, and it certainly was no defense to a charge of murder under English law.⁵⁵ If the gunner indeed warned his officer of the danger to the Chinese boat before he was told to "salute," this might well constitute a case of murder under English law and a case of "intentional killing" with aggravating factors under Chinese law. In England, the officer (as the abettor) and the gunner would both be punishable by death while Chinese law made a finer distinction between the abettor/principal and the actual killer and would punish the gunner less severely than the officer.⁵⁶	24
Due to the nature of the English sources, it is impossible for us to know all the circumstances of this case to determine the precise degree of the British gunner's guilt and liability. However, even these English accounts provide enough evidence to challenge the categorical conclusion that this was an "accidental homicide" and that the British accused was "innocent" of criminal liability. In any event, the English records failed to justify the British (violent) obstruction of Chinese justice, which alone would make them severely punishable. As explained below, the perceived differences between English and Chinese criminal laws and procedures did not constitute such a justification. Whatever mitigating circumstances were claimed by the British should be evaluated by a Chinese court under Chinese law.	25

Negotiation and Contestation at the Local Level
In this case, the British suspect hid himself in the ship Lady Hughes and the ship's supercargo and other witnesses fled from the scene of crime. The EIC's Council refused to allow the Chinese officials to search the British "Factories" (that is, commercial facilities and residences) or ships, let alone examine the suspect and the witnesses in a Chinese tribunal. The British justified all of this on the grounds of the Chinese government's "undiscriminating Severity."⁵⁷ They invoked a 1780 French-Portuguese case in this regard, but their archives documented a series of cases in which Chinese authorities duly considered the mitigating circumstances and granted European offenders leniency. In 1782, a twelve-year-old British boy who killed a Chinese subject by gunshot was exempted by the local Chinese officials from any penalty due to his age.⁵⁸	26
There were differences between English and Chinese criminal procedures, but in this case the differences were often to the benefit of the British.⁵⁹ From the mid-sixteenth century, English law stipulated that those who were accused of homicide but did "not answer directly, according to Laws" or stood "willfully" "mute" would be convicted of murder and sentenced to capital punishment without "the benefit of clergy."⁶⁰ Thus, the British suspect's refusal to appear in a court would result in his murder conviction under English law. Moreover, until 1935, English law presumed all homicide suspects to be guilty of murder unless the accused proved otherwise.⁶¹ In contrast, Chinese law on homicide was not operating on the basis of such statutory conviction or presumption of guilt. Chinese judges were required to apprehend and examine all the suspects and witnesses to decide the nature of the crime, all within six months. The fact that the British suspects and witnesses all fled put enormous pressure on the local Chinese officials who would suffer disciplinary penalties for failing to close the case promptly. To prevent such a situation, the Qing Code stipulated that a person who committed a crime but fled or who resisted lawful apprehension was to be sentenced to a punishment two degrees more severe than was due for the original crime. And those who harbored, failed to report, or facilitated the escape of a known criminal suspect would be punished one degree less than the actual criminal.⁶²	27
As usual, the British agents believed that it was in their interests to delay or, if possible, prevent any Chinese judicial investigation. According to the English-language records, the British received "positive assurances" from the Chinese officials of a fair trial of the gunner. But they deemed it not "prudent to give [the Chinese] implicit confidence; more especially as the Gunner himself was supposed to have absconded."⁶³ The word "supposed" was used advisedly here because the allegation that the gunner had "absconded" later turned out to be just a "plea made use of to avoid compliance" with Chinese law.⁶⁴ The English records show that the gunner remained on the ship Lady Hughes throughout this dispute.⁶⁵ The Chinese officials insisted on a court hearing of the British suspects to determine whether this was an "accidental homicide" case as the British contended. The British took this to mean that the Chinese only wanted "some form of public examination" for which any person could be substituted for the accused gunner.⁶⁶ They suspected that this was how a British-French dispute in Canton was treated in 1754.⁶⁷	28
After the disappearance of the suspect, a second Chinese victim named Wang Yunfa died from the shooting. On November 26, 1784, the same Chinese official deputies came again to Mr. Pigou, president of the EIC's Council, demanding delivery of the accused gunner. But "the same plea [was] made use of to avoid compliance."⁶⁸ Past experiences had led the Chinese authorities to disbelieve the claim that the EIC's officers lacked effective control over private British traders and that the gunner had absconded from the Lady Hughes.⁶⁹ Ironically, Pigou might have reinforced the Chinese suspicion when he declared that if the Chinese "would be satisfied with examining a Man in the [EIC's] Factory & that nothing further should be exacted, [the EIC's Council] would engage to prevail upon Mr. Smith [supercargo of the Lady Hughes] to produce one [man] for that purpose—anything further was not in [their] power."⁷⁰As mentioned above, the language here indicates that the British planned to let the Chinese examine a substitute within the EIC's facilities.⁷¹ Pigou also suggested that the Chinese directly approach Smith who was "better qualified to give [the Chinese] the satisfaction they required" from this case.⁷²	29
The request that a high-ranking Chinese official conduct the judicial hearing within the foreign commercial facilities instead of the Chinese judicial tribunal was unprecedented and was rejected by the Chinese. The British were informed that the accused had to appear before the tribunal of the governor, and that otherwise the Nanhai county magistrate would send soldiers to get the accused.⁷³ Claiming that such a "precedent" was a threat to their personal safety, the Council refused to admit any "armed [Chinese] men in any of the Factories." Nor did they want to produce the accused for investigation.⁷⁴ The Chinese government was then left with two options: either seize the suspect and witnesses by force or give up on enforcing Chinese law against foreign homicides within China's territory.	30
Under such circumstances, the Chinese local officials followed Pigou's advice to directly approach Smith for information about this case, who as the supercargo of the Lady Hughes was also a key witness. Smith was taken into custody on the morning of November 27. The EIC's officers called this "[a]n act of Violence towards a European unconvicted & uncharged with any crimes contrary to every idea of reason & justice."⁷⁵ Suspecting that the "seizure" of Smith was being used by the Chinese to "obtain delivery of the gunner," they stated that "on the same principle it is just to conclude that if that expedient did not succeed," the Chinese would try to get hold of the president of the Council to demand compliance.⁷⁶ This unsubstantiated claim was repeated many times during this affair and became an unquestioned matter of fact for later historians.	31
Later the same day (November 27), the governor sent the EIC's Council a note, "desiring them not to be alarmed ... as he only wanted to ask [Smith] some Questions relative to the Business [of this case], & would send him back" shortly.⁷⁷ According to Smith's own account after his release, he was well treated by the Chinese officials, more like a witness than a suspect accused of the crime per se.⁷⁸	32
At the same time, the Chinese officials took other measure to press for delivery of the suspect. According to the English records, "[t]he Avenues leading to the Quay were barricaded & filled with soldiers," the Chinese linguists and merchants were withdrawn, and "the communication between Canton & Whampoa [was] suspended by order" of the Customs Commissioner of Canton by not issuing passes to the ships. While they found no "positive intimation" that these measures were "directed towards any of [the foreign] Factory," the British concluded that their "personal safety was not altogether free from danger."⁷⁹ In spite of the governor's assurance, George Smith's "seizure" created a "general alarm" among the Euro-Americans there as "an outrage on [their] personal liberty." The French, Dutch, Danish, and American representatives all reportedly "rallied" behind the British.⁸⁰ The first China-trade ship from the newly founded United States, the Empress of China, had just arrived at Whampoa a few months before.⁸¹	33
These foreign representatives "unanimously agreed to send for their boats, with armed men" up to Canton to demand release of George Smith.⁸² On November 27, the British Council wrote to Capt. Williams in Whampoa: "Sir, You are hereby directed to summon all the commanders of the Company's ships, & acquainted with our orders that they send up quietly to Canton their Pinnaces manned & Armed."⁸³ Later that evening, a succession of Western armed boats arrived at Canton, to "manifest in the strongest manner the very alarming view in which [they] considered [the Chinese] procedure." China had long prohibited foreign armed ships from coming to Canton and even gunfire from the riverside Chinese forts that night did not stop them.⁸⁴ In the words of an eyewitness, "every thing wore the appearance of war."⁸⁵	34
The Chinese authorities tried to maintain control of the situation. The same evening, the Western representatives received from Governor Sun Shiyi (who was also the acting governor-general) a "mandate" exhorting the foreign residents to respect Chinese law, sovereignty, and judicial process. The EIC's archives preserved an English translation of this document: 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 repent when it is too late.⁸⁶ This mandate was dismissed by the British as a bluff. All the Western representatives assembled and sent a joint protest to the governor on the morning of November 28, accusing the Chinese of wrongfully holding Smith liable for the homicide.⁸⁷ Later dubbed as the "doctrine of collective responsibility," this accusation triggered one of the most enduring myths about Chinese treatment of foreigners. It was contended that Chinese law was barbarous and unjust in holding the "whole Western community" indiscriminately liable for the crime of a Western individual. That the Chinese government did punish certain relatives of a criminal convicted of high treason or multiple murders in domestic cases was cited not to corroborate but rather to stand in for evidence that the Chinese practiced the same in relation to foreigners.⁸⁸	35
It is worth noting that Hosea Morse, who was by no means sympathetic to the Chinese authorities, found the Westerners' allegation to be "besides the mark [because] the governor did not hold Mr. Smith responsible for the occurrence, but only for producing the gunner who was personally responsible; and he held the Chief of the English Company's Council responsible for Mr. Smith's compliance."⁸⁹ In other words, the local Chinese custody of Smith was not to arrest or punish him in lieu of the British gunner, as was implied when modern commentators invoked the term "collective responsibility." Faced with a multinational community with constant disputes and violence, the local Chinese authorities expected foreign officers to keep order among their own rank and file. This was partly because the foreign officers had represented themselves as guardians of their country fellows' interests in China. Nevertheless, the British archives did not record any legal case in which innocent Western officials were penalized by the Chinese government for a crime committed by their subordinates.⁹⁰	36
As explained above, the British agents' sovereign thinking led them to view any exercise of Chinese jurisdiction over British subjects not only as an affront to their national character and dignity but also an unacceptable threat to their personal security and liberty to pursue maximum profits. The custody of Smith naturally caused greater anxiety as a dangerous precedent. What the British agents and most modern historians ignored was that in this and other pre-1840 Sino-Western legal disputes, the Chinese officials generally resorted to far more conciliatory and peaceful measures than they, or their British/Western counterparts in similar cases, were legally authorized to take. As we have explained, under Chinese law, the EIC's officers as well as the supercargo of the Lady Hughes were liable to arrest and serious punishment for having impeded Chinese investigation and knowingly harbored a homicide suspect and/or assisted his escape.⁹¹ No matter how they construed this case, their deliberate obstruction of justice in a homicide case would have made them criminals under probably most legal systems then and now. But the Chinese officials did not enter the British facilities to arrest the officers and the gunner, and they took George Smith into custody only after the British repeatedly refused to allow them to search for the offender or witnesses.⁹²	37
At the time of the Lady Hughes case, the "united" hostility of the Western agents seriously alarmed the Chinese local authorities. This was especially the case given the fact that a substantial number of armed men and ships were assembled outside the foreign factories at Canton in disregard of Chinese law and gunfire. In response, early on November 28, the Chinese posted armed boats and troops near the foreign factories, and sent junks to intercept the communications between the British factories and their ships that anchored down the river.⁹³ In the meantime, the governor sought also to cool down the situation. In the evening, he invited one representative from each of the Western nations except the British to his office. Through an interpreter, the governor first "[set] forth the power of the Emperor" and "his own determination to support the laws."⁹⁴ After expressing his surprise at the voluntary involvement of these non-British agents, he then assured them that he meant no harm to them and that "all that he wanted was to have the Man delivered to him" by the British.⁹⁵ According to him, the gunner should be turned in within three days, would have "an impartial examination" in his tribunal, and would be "released unhurt" if found innocent.⁹⁶ The governor then offered to drop the issue of Western armed ships coming up to Canton and promised to resume the trade once the foreign representatives sent the ships back to Whampoa.⁹⁷ During the meeting, the governor offered the foreign visitors tea and then "presented each gentleman with two pieces of silk, in token of amity" before they left.⁹⁸	38
What the British had described as "unanimous" support for their cause among the Western agents in Canton turned out to be rather precarious, and commercial interests soon got the upper hand. All the non-British Europeans complied and sent their armed men and boats down the river "under the protection of a Chinese flag." Trade was resumed immediately.⁹⁹ The loss of other Western nations' support and the continued trade stoppage were wearing down the resolution of the British agents.¹⁰⁰	39
On November 28, a message from Smith, still in custody, was addressed to the captain of the Lady Hughes, urging that "the Gunner or some other person" who knew better about this case be sent to the Chinese government to answer the inquiries.¹⁰¹ On the next morning, the Council told the Chinese officials that they had issued an instruction to Captain Mackintosh (of the ship Contractor), ordering him to take the accused gunner when delivering Smith's message.¹⁰² This unwittingly confirmed the Chinese belief that the Council knew or could have found out the whereabouts of the gunner and delivered him to the Chinese long before.	40
Nevertheless, the EIC's officers did not intend to actually turn in the gunner. As they told Major Samuel Shaw privately, they expected that Captain Mackintosh "would necessarily return without [the gunner]."¹⁰³ Their sudden gesture of compliance or cooperation was designed to put a closure to this dispute and to get Smith released from the Chinese. Besides, they also wanted to take this opportunity, in the name of searching for the gunner, to resume communications with ships downstream, and then send away all the seamen from Canton, who, unemployed and armed, increasingly became a concern of great disturbance.¹⁰⁴ Based on the English records, the Lady Hughes's officers had "constantly given out [the rumor] that the [gunner] was not on board & that they had reason to think that he was gone in the Neckar." The Council intended to tell the Chinese the same story after the search. Accordingly, Captain Mackintosh "rightly judg[ed] that it would be of advantage to make the appearance of having searched" and planned to report that the Neckar (by implication, and the gunner) "was gone."¹⁰⁵	41
The Chinese local officials were initially very satisfied about the cooperative gesture of the Council to search for the gunner. However, they were told the next day that the gunner might have long absconded. Frustrated with the British procrastination, the Chinese threatened on November 30 to suspend provisions of food and water, stop trade indefinitely, and keep the British ships from leaving Canton unless the gunner was delivered within two days.¹⁰⁶ The Council was reportedly now "obliged to submit" and wrote another letter to Captain Williams of the Lady Hughes, telling the latter to find and deliver the gunner to the Chinese to "answer for the offence." Captain Williams delivered the gunner to the Chinese that evening through Captain Mackintosh, who was then on his way back to Canton and would otherwise have told the Chinese that the gunner was gone with the Neckar.¹⁰⁷	42

Delivery and Eventual Execution of the Gunner
In light of all their efforts to delay the Chinese judicial process, it is curious to see that the British believed that the delivery of the gunner would "infuse" into the Chinese "a just opinion" of British "veracity & intention." At the time of the handover, all the foreign representatives sent a joint plea to the Chinese governor for his favor and the "clemency of the Laws of China." A Chinese official agent—but not any of the ranking officials—reportedly remarked that he "desired the Gentlemen present not to be uneasy respecting [the gunner's] fate, [and] that nothing should be done till the Emperor's pleasure shall be known."¹⁰⁸ George Smith arrived at the British factory about an hour later. He gave "a very satisfactory account" of the treatment and "civilities" he had received from the Chinese officials, "most of whom visited him & sent him presents."¹⁰⁹ The embargo was lifted on December 6, nine days after it was put into place. The Lady Hughes sailed for Bombay the next day, leaving the gunner in Chinese custody.	43
Although the EIC's officials had tried to avoid exposing any British subject to Chinese punishment, they assumed that the gunner in this case was innocent and that the Chinese judicial investigation was little more than a formality to confirm their belief. They thus expected the gunner to be released soon. Now that the trade was also resumed, they congratulated themselves for concluding this "troublesome affair ... in a manner conforming to [their own] Expectations." They attributed it to the fact that "the ordering up [of] the [armed] boats ... has been productive of very good consequences, and still more so, that it was done in conjunction with [all the other] foreigners."¹¹⁰ They then wrote a "complementary" letter to the Chinese governor and the Customs Commissioner, requesting continued "protection and favor." They also sent a lengthy report to the Court of Directors on December 4, 1784 about the proceeding of this case.¹¹¹ Our reconstruction of this case has been largely based on this report.	44
Thirty-nine days later, on January 8, 1785, representatives of each foreign nation in Canton were summoned, together with the Hong Merchants, to the office of the Provincial Judge (anchasi). They were reportedly informed that the emperor was "greatly displeased" that there had been a delay of five days before the British delivered the gunner who "killed his subjects." They were told to respect the emperor's judgment once it was announced and more readily follow the commands of Chinese officials in the future.¹¹² The British took these words to mean that the emperor's decision was "not yet known," but they later learned that the gunner was strangled the same day "at about the time" they were receiving the above "admonition."¹¹³	45
Having just reported to the Court of Directors of the satisfactory resolution of this dispute, the EIC's officials naturally found the news about the gunner's strangulation devastating to their images in the eyes of their superiors at home and their peers in Canton. Faced with such an outcome vastly different from what they expected, they blamed the Chinese authorities for cruelty and trickery. They accused the latter of having failed to give the gunner a fair trial and leniency that were allegedly promised. The entire Chinese legal system was condemned as arbitrary, unjust, and sanguinary. In a complaint to the Court of Directors, they declared that submission to such a legal system would constitute a permanent national "disgrace."¹¹⁴ During the next two centuries, this narrative acquired an almost self-evident status in historiography.	46

III. The Chinese Perspective on the Lady Hughes Case
This reconstruction has been primarily based on the internal report of the EIC's Council in Canton to its Court of Directors in London, in addition to Samuel Shaw's account. Unlike prior scholars who took them as a given, however, I have paid more critical attention to the inconsistencies of the records and the narrators' evidenced agendas. Even based on this version of the dispute, the circumstances that resulted in the homicide and that contributed to the outcome of this case were far more complicated than the traditional representation suggested. There was little evidence for the traditional belief that the Lady Hughes case best demonstrated the corruption, arbitrariness, and/or inhumanity of Chinese law and justice. Until Randle Edwards demonstrated the value of the Chinese sources about three decades ago, few commentators had even realized the need to cross-examine the English records against the Chinese ones. Unfortunately, the traditional narrative has still maintained much of its strong hold on subsequent historical scholarship on this and similar pre-1840 Sino-Western legal disputes.¹¹⁵ Edwards helped us better understand certain aspects of the Chinese decision-making process in this case, but he stopped short of explicitly problematizing the British agenda for extraterritoriality and the power politics behind this case and its historiographic impact.	47

Priorities of the Local Chinese Officials
What was unknown to Western commentators for two centuries was the deliberation behind the Chinese judgment of this case. According to an extant memorial to the emperor, Governor Sun Shiyi proposed to send the British gunner back home for punishment on the grounds that the latter had caused the deaths unintentionally.¹¹⁶ The governor seemed eager to pacify the foreigners in Canton, but Emperor Qianlong (reigning in 1736–95) held differently and ordered strict enforcement of the law.¹¹⁷ To understand the decision of the governor and the emperor respectively, it is imperative to situate this case in a larger picture of geopolitical and intercultural relations, as discussed in Section I of this article. More specifically, by 1800, the EIC had already turned the Indian subcontinent into a British colony; it would colonize Penang in Southeast Asia in 1786 and make Australia another British colony in 1783.¹¹⁸ As Armitage noted, the year of 1783 "marked the beginning of a newly configured British Atlantic Empire" and "the British Empire's decisive 'swing to the east' into the Indian and Pacific oceans."¹¹⁹ Concurrent with these new expansionist developments, this period witnessed greater unruliness on the part of the British sailors, traders, naval officers, and the EIC's officials. After all, forty years before Hong Kong was colonized, the British Admiralty in India, in collaboration with the EIC's agents in Canton, would twice (in 1802 and 1808) send warships in an attempt to colonize Macao as a British outpost in the Chinese Empire.¹²⁰ The Lady Hughes incident was a prominent example in this regard. As the local administrators responsible for peace and order, Governor Sun and his subordinates were under great pressure to pacify the "unruly and recalcitrant" British.¹²¹	48
That all the Western nations sent armed ships and men upriver to the city of Canton alarmed the local Chinese authorities to an unprecedented degree. The influential English newspaper, The Times in London, indeed called the Lady Hughes incident a "Riot in China." Samuel Shaw, who represented the United States in this case and later became the first American consul in Canton, stated that this dispute "gave rise to what was commonly called the Canton war."¹²² Even though it was generally overlooked by later historians, the explosive atmosphere was obvious to the witnesses to this dispute. The British readily acknowledged the impact of their militancy and the Chinese governor manifested great surprise and anxiety about this.¹²³ Governor Sun did stand firm, as required by law, to arrest and examine the accused, but it was also in his interest and that of other local officials not to escalate the hostility with Westerners in Canton. To treat the accused leniently would certainly help calm local tensions.	49
It is against this backdrop that we may better understand why the governor proposed that the gunner be sent back to Britain for punishment. In the memorial to the emperor, Governor Sun did not call this a case of guoshisha or "accidental homicide." However, echoing the British account, the governor stated that the British gunner killed the two Chinese civilians unintentionally by firing a naval canon (pao) when seeing off another foreign ship.¹²⁴ We have analyzed earlier in this article that absence of the intent to kill on the part of the gunner was insufficient to acquit the gunner under Chinese (or English) law in a homicide case. The governor implied his grasp of this legal aspect of the case when proposing that the gunner be deported back to England to be punished. But by downplaying the nature of the offense, the governor sought to pacify the Westerners without totally neglecting his duty to enforce the law. What he overlooked, consciously or not, in his reasoning were the aggregating factors and other possibly incriminating circumstances mentioned above that might make a similarly situated Chinese offender liable for serious penalties.¹²⁵ Moreover, Governor Sun's proposal directly contradicted the emperor's decrees of 1748–49 that required officials in Canton from then on to apply Chinese law and punishment to all foreigners who killed Chinese subjects.¹²⁶ The increasingly violent defiance of the British, coupled with the expansion of their commerce and colonies, came to materially affect how local Chinese officials dealt with the foreigners and managed local governance.	50
The same practical considerations might also explain why the Chinese official agent, who was dispatched to take the gunner at the "Pagoda," reportedly remarked that "care should be taken" to present this case "in the most favorable light" to the emperor. Not claiming to speak for his superior ranking officials who were in charge of this case, this agent's remarks might at most be construed as "a vague assurance." However, they were taken by the EIC's officials as if they were unequivocal, legally binding commitments.¹²⁷ This was understandable because the British themselves kept on nurturing the belief throughout this dispute that the gunner would not be punished and that Chinese trial was only a formality. By the same token, on the day of the gunner's execution, the Provincial Judge did not explicitly inform the Western representatives of the emperor's decision but only warned them not to disobey it once known. As explained below, the Chinese officials apparently feared that a full disclosure of the time and place of the execution was likely to cause disturbance among the Westerners. But their vague admonition was misleading and interpreted by the British as another assurance or even "solemn" pledge that the gunner was safe and sound. For instance, Sir George Thomas Staunton (1782–1859), the first British sinologist and a former head of the EIC's factories in Canton, wrote in 1822 that Chinese officials' "pledge" could never be relied upon "after the failure of a similar one, given in a much more solemn manner [in the Lady Hughes case]. That unfortunate man, at the very same hour that the Committee were invited to the viceroy's palace ... to hear the Imperial Edict read, which they had been led to hope would have contained an order for his release, was unfeelingly strangled."¹²⁸ This story was further elaborated in later works. In 2005, Timmermans was misled by prior works to state that the EIC's Council "later discovered that at the very time that they were being assured that the sailor would come to no harm he was, in fact, being strangled outside the city wall."¹²⁹ We should also recall that all such alleged "vague assurance" or "pledge" was irrelevant to the British delivery of the gunner because Captain Williams and the EIC's Council were compelled to turn over the accused in this case. They did so before they heard any such "assurance" and not on the condition that the Chinese would acquit him. Nevertheless, the idea that the Chinese officials broke their "solemn" promise in 1784–85 served for contemporary commentators and subsequent historians to legitimate Western defiance of Chinese law both before and after the Lady Hughes case.	51
The Qing Court did not get a full report about how unruly the British (and other Westerners) in Canton were in this case. Indeed, the above-mentioned statement by the Provincial Judge that the emperor was very displeased by the five-day delay before the British delivered the gunner appeared to be inserted by that official himself (or the Hong merchant who interpreted for the foreigners). Even if the Qing Court was fully aware of the local tensions, it might still have decided to punish the British gunner severely. Still at the apex of its power and strength, the Qing ruling house was not ready to concede its legal sovereignty to Westerners. This was clearly seen in the failure of the Macartney Embassy to China in 1793–94 to obtain any concession of greater commercial or extraterritorial legal privileges.¹³⁰ Unlike the local officials who were interested in minimizing the impact of disturbances within their jurisdiction on their own careers, the Qing Court was more concerned about how to govern foreigners and Chinese subjects effectively in the long term.	52

Rationale of the Qing Court's Judgment
If contemporary English criminal justice, as English historians have noted, was characterized by the twin strategies of mercy and terror, the Chinese ruler adopted the same.¹³¹ On the one hand, the Qing Court became particularly alarmed by the increased number of European missionaries who sneaked into the interior to proselytize the local people and by the suspected connection of these foreign missionaries with the recurrent Muslim rebellions in those areas.¹³² As these missionaries all entered China through Canton, Governor-General Shu Chang and Governor Sun had been repeatedly reprimanded over the few months before the Lady Hughes case for having failed to detect and apprehend the missionaries and their converts.¹³³ Edwards has argued that the "[s]tern treatment of the Lady Hughes gunner was calculated [by the Qing Court] to intimidate the foreign community and to deter them from assisting missionaries to enter the interior."¹³⁴ It would not help if the Chinese government was perceived as too weak.	53
On the other hand, the emperor did not want to take unnecessarily restrictive measures. While briefing about the Lady Hughes case, Governor Sun also proposed that Western residence in Canton be terminated to prevent future troubles. However, the emperor held that it had been a long time since Westerners were allowed to trade and reside in Canton and that the proposed measures risked being taken as a manifestation of suspicion and cowardice, which was far from being the right way to pacify and govern foreigners.¹³⁵ Instead, to enforce the law strictly against lawbreakers in such cases would keep the foreigners better under control.¹³⁶	54
While domestic political considerations were likely to be a factor in deciding alien-related criminal cases in China or other countries then (and now), the imperial edict, typically brief as it was, did suggest some legal basis for the emperor's final judgment of the Lady Hughes case.¹³⁷ In the same edict as mentioned above, Emperor Qianlong noted: "When an ordinary homicide occurs as a result of affray [without involving firearms], the culprit ought to be duly punished by capital sentence [by strangulation for taking the victim's life]. Now in this case, [the accused gunner] fired a canon and caused two deaths."¹³⁸ At a time when the Chinese government was busy investigating and punishing the missionaries, the emperor continued, "it is all the more fitting that the law should be strictly enforced."¹³⁹	55
We have analyzed some of the statutes relevant to this case. Apparently, the fact that the instrument causing the death was an extremely dangerous weapon (a naval cannon) and that two civilians lost their lives, constituted such aggravating circumstances in this case that the offender was found punishable by strangulation.¹⁴⁰ In this case, the escape of the British gunner after the crime would also subject him to punishment two degrees more severe than otherwise.¹⁴¹ The fact that the emperor sentenced him to strangulation (instead of immediate decapitation or decapitation after the autumn assizes) indicated that the gunner was not punished for having intentionally killed or murdered the two Chinese subjects, as later commentators argued.¹⁴²	56
Underlying the emperor's decision was another concern: Would a Western criminal be punished at all if sent back to his home country? As early as 1748–49, the emperor censured "timid" local officials for letting foreign criminals escape Chinese punishments. In that case, the emperor stated: "We have governed the foreigners for a long time by punishing offenders according to the severity of the crimes. In other words, both grace and discipline must be used at the proper times. If we prosecuted them without serious causes, we would only incite their anger and cause future trouble. This we must avoid. However, if after they have violated the fundamental law of our Empire and we spare them simply because we fear some difficulty, they will never learn how to behave properly. They will then become more arrogant and commit more crimes. Instead of diminishing trouble, we will only breed it."¹⁴³ The fact that this edict reached Canton only to find that the two Portuguese offenders had already been sent off, with the consent of the local Chinese officials, allegedly to be punished by the Portuguese government, must have taught the emperor a hard lesson.¹⁴⁴ According to the emperor, since the Chinese government had punished Chinese subjects severely and impartially for wrongs done to foreigners, the maxim of wise governance required equal administration of the law against foreigners who violated the law and harmed Chinese subjects.¹⁴⁵	57
The British echoed the Chinese concern in at least one case. In 1754, a British sailor was shot to death by a French officer in Canton during a dispute initiated by the British. To prevent Chinese intervention, the French proposed to have the suspect tried and punished back in France. The British did not believe that the French offender would ever be punished by a French court for a crime committed in China. Hence, they insisted that the Chinese exercise jurisdiction over this case. Writing to the Court of Directors, the EIC's Council stated: "nor indeed do we think that such a Prosecution [by a European Government] can be carried on in any Country in Europe for a Murder committed here." Curiously, they then urged the Chinese governor-general to demand life for life to avoid more violence: "Upon a life for which Satisfaction is not made & for which our People are all in rage, we are obliged to demand Justice to put a stop to greater Mischief."¹⁴⁶	58
In the Lady Hughes case, the Chinese government made the same arguments as the British did in 1754 while the latter adopted the French rhetoric to resist Chinese jurisdiction and re-characterize the nature of the offense. Emperor Qianlong doubted that the British culprit would be punished at all in Britain. He reprimanded the governor for being too timid in exercising Chinese jurisdiction and staking out Chinese sovereignty: "Since the supercargo [George Smith] had already identified the culprit, [the governor] shall immediately gather all the subjects of [Britain] and strangle the culprit, so that all of them would learn a lesson. How could [he] still petition to send the culprit back to [the latter's] country? Let's imagine that after [the culprit] had been sent back, how would [Governor] Sun Shiyi find out whether that country punished the culprit or not?"¹⁴⁷ The English records do not show a single British offender being tried in Britain for a crime committed in China against a Chinese subject from 1600 to 1834.¹⁴⁸	59
In this case, the emperor rebuked Governor Sun for his "error and cowardice" (miuqie) in handling this case. The governor, who was then on his way to Peking for an imperial audience, was ordered to return to Canton immediately. He should then gather all the British subjects to witness the execution of the British homicide while continuing to search for Catholic missionaries who were hiding there.¹⁴⁹ This imperial edict was also circulated among the various governors or governors-general then in Peking to ensure future compliance.¹⁵⁰ What the emperor had in mind was to enforce Chinese law more firmly and emphatically and, in turn, to instill among Westerners greater awe/fear for China's might as well as gratitude for China's benevolence (enwei bingyong).¹⁵¹ This was to safeguard Chinese sovereignty and deter Westerners, not just to demand "life for life," as contended by most commentators on this case.	60
Although limited to a far smaller scope due to the operation of the Qing Code, the Qing Court's strategic use of terror and mercy appeared comparable to the actual operation of contemporary English criminal law. As legal historians have pointed out, eighteenth-century English criminal justice operated on the dual mechanism of "coercion" (the pervasive threat of capital punishment coupled with "occasional exemplary hangings" in practice) and "benevolence" ("the calculated act of mercy in forgoing a prosecution, acquitting on technicality, or securing a pardon"). The purpose was to achieve "an ideological harmony over the common people by means of public spectacle, the selective application of the prerogative of mercy, and the reaffirmation of the ideal of justice through the occasional punishment of the mighty on the gallows."¹⁵² It may be equally true to say about both English and Chinese criminal justice: "The mercy dispensed by the Crown not only presented a more benign image of authority, [but] it also taught the lessons of patronage and deference that instructed the lower orders in the proper attitude to take towards their social superiors. Thus justice worked more powerfully than religion to create legitimacy for the existing order."¹⁵³	61
Local Chinese officials later reported to the emperor that the imperial edict regarding the strangulation of the British gunner was duly carried out and that all the foreigners were impressed and manifested due obedience. But the English records suggested the contrary. The British were not invited to witness the execution; nor were they really impressed by Chinese power or justice.¹⁵⁴ Governor Sun had been criticized by the emperor for being too timid in handling the British in this case, but he risked more serious consequences when he disobeyed the explicit command to execute the gunner in the presence of the British, apparently to avoid escalating the local hostilities further.¹⁵⁵ The Provincial Judge was vague about the gunner's execution probably for the same reason. This illustrated how Chinese officials were influenced by their perception of the British/Western sensibilities as well as their own circumstances. In the meantime, the local officials' lack of full disclosure of the judicial proceedings further fueled the British discourse of Chinese despotism and injustice.	62

Different Priorities at the Local and the Central Levels on the British Side
Parallel to the Chinese emperor's determination to safeguard Chinese law and sovereignty, as discussed above, a similar kind of sovereign thinking had since the late seventeenth century motivated the British to refuse to submit to Chinese jurisdiction.¹⁵⁶ The British representatives or naval commanders strove hard to assert the British Empire's sovereignty and equality (if not always superiority) in dealing with the Chinese government, which meant their retention of jurisdiction over British subjects even in Chinese territory. In the late eighteenth and the early nineteenth centuries, the EIC's officials deployed both legalistic arguments and the discourse of "Asiatic despotism" for its territorial expansion and claim of "permanent and total sovereignty" in India, which resulted in its own "legal" and "military despotism" there.¹⁵⁷ China was not a British colony, but the British deployed a similar discourse of Chinese despotism by alleging Chinese injustice and legal barbarity to challenge Chinese sovereignty. In the aftermath of the Lady Hughes affair, the EIC's Council reiterated to the Court of Directors that the Chinese legal system would demand "life for life" in any homicide case and hold the British officials to "answer for [their subordinate's] crime."¹⁵⁸ In their words: As a compliance conformably to these [imputed Chinese] notions seems to us so contrary to what Europeans deem humanity or justice; & if we voluntarily submitted to it, must appear to all, that we gave up every moral & manly principle to our Interests.—We trust the Honble Court will approve that we avoid it by every means in our power; should it even hazard their Trade. We know therefore of no alternative but satisfy the Chinese without giving up to execution an innocent person, to retire if possible, to our Ships, where only we can consider ourselves secure.... ¹⁵⁹ Chinese law was thus labeled as something belonging to a "barbarous" nation and violating the universal principles of "humanity or justice."¹⁶⁰ It was more than "disgraceful" to voluntarily submit to Chinese law. In doing so, a European nation would "appear to all that [they] gave up every moral and manly principle to [their material] Interests." Contemporary observers who were influenced by the popular eighteenth-century writings on humanity, justice, and masculinity would find such rhetoric extremely powerful and appealing.¹⁶¹	63
Ironically, this discursively constructed image of Chinese legal barbarity also put the EIC's local agents in a dilemma. Their thinking about British sovereignty, including the bodily sanctity of a British citizen in an Oriental land, prompted them to "avoid" Chinese justice "by every means in [their] power." However, they could not risk or abandon the China trade that was indispensable to the British Empire.¹⁶² They thus proposed that Britain secure extraterritorial jurisdiction in China as "the most reasonable Privileges."¹⁶³ The Council claimed to speak for the whole Western community in Canton, whose common goal was to prevent the Chinese government from exercising over Westerners "the same absolute and Tyrannical power as towards its own subjects."¹⁶⁴	64
Sympathetic to their local agents' sentiments, the EIC's Directors in London were nevertheless more concerned with their immediate profits. Aware of the slim possibility of a British declaration of war with China then, they frowned upon the prospect of an economic disaster that might be caused by unrestrained confrontation in such disputes.¹⁶⁵ In response, they blamed the Council in Canton for having failed to avoid such embarrassment in the first place. According to their instruction, "resistance to the Chinese Government was useless, and [the supercargoes] had absolute power to seize Private traders and jurisdiction over country ships.... [In] cases of murder they were to aid the Chinese officials in apprehending the criminal."¹⁶⁶ As we will see, the Directors still believed it safer to secure commercial and extraterritorial privileges through diplomatic missions to the Qing Court than confrontation at the local level.	65
After the Lady Hughes affair, the EIC's Council in Canton, together with other Western representatives, prohibited the firing of salutes from all their ships at Whampoa.¹⁶⁷ The British Parliament also passed what was later called "the first of the extraterritorial statutes relating to China," authorizing the EIC's supercargoes to arrest and send back to England any British sailors or traders for illegal conduct in China.¹⁶⁸ The EIC now had better defined legal power to discipline British subjects. In this sense, Emperor Qianlong was partly right in anticipating that strict enforcement of Chinese law would encourage greater obedience among Westerners, but such self-restraint among the British was limited in scope and duration.	66

IV. Historical Legacy of the Lady Hughes Case

From the Embassy to the Opium War, 1784 to 1840
Sensational accounts of the Lady Hughes case soon acquired its own life far beyond South China. Reports about this case, replete with expressions of moral indignation and condemnation of Chinese injustice, first appeared in what would be the London Times in late June 1785. That report "excited [so] much curiosity and alarm" that the editor found it necessary to publish a more detailed, "authentic" report about this "riot at China" on July 8, 1785, which was just a condensed version of the EIC's internal memorandum.¹⁶⁹ A similar account was published in the Annual Register (1786) in London as one of the "principal occurrences" in the prior year concerning Great Britain, in which the Chinese government was said to have cruelly "strangulated ... an innocent" British man.¹⁷⁰	67
The widespread attention and the strong emotional outrages that the Lady Hughes dispute aroused back in London and beyond were among the most important factors that prompted the first British embassy to Peking.¹⁷¹ Financed by the EIC, the British ambassador, Lt. Colonel Cathcart, was instructed to negotiate the best terms for British trade and for "the cession to the British Crown of a depot [that is, colony]" in China where "the Chinese might remain under Chinese jurisdiction, but British subjects were to be subject to their own laws, and the English Chief was not to be held personally responsible for acts not done by himself."¹⁷² This embassy fell through when its ambassador died halfway on its voyage to China.¹⁷³	68
On December 29, 1791, when the EIC submitted reports to the British Parliament for renewal of its charter, the Lady Hughes case again figured as a major concern for the Parliamentary deliberations. There the claim was repeated that "the Chinese Government is not only absolute in the Extreme, but inflexible" in holding "every European ... responsible for the accident" and for executing the British gunner for "supposed guilt or the Misadventure" without proper trial.¹⁷⁴ This was followed by the historic but ill-fated Macartney Embassy in 1793–94, whose central objectives were to get extraterritoriality and greater access to China's market and resources.¹⁷⁵ Emperor Qianlong's refusal only postponed the onslaught of Western penetration until 1842 when the Treaty of Nanking was imposed to formally stipulate Britain's extraterritoriality and the cession of Hong Kong.¹⁷⁶	69

Modern Historiography of Sino-Western Relations and Chinese Law
Of the long-term impact, a leading American historian in the early twentieth century remarked that "[t]he last [and only] Englishman surrendered for trial and execution was the gunner of the Lady Hughes in 1784; since then, for over fifty years, it had been a settled point in English policy that men accused of homicide should not be given up to trial by Chinese procedures."¹⁷⁷ However, the singularity of this case made it more indispensable for Western commentators who accused the whole Chinese legal system of being sanguinary and barbaric.¹⁷⁸ The limited space here allows us only to sample some influential works in this respect.	70
The discourse of Chinese legal primitiveness took on a different spin after Sir George Thomas Staunton's English translation of the Qing Code in 1810.¹⁷⁹ By then, English criminal justice had come under severe criticism for the hundreds of capital punishments still authorized by the "Bloody Code" and for the arbitrariness in English jury verdict and judicial sentencing. A number of English legal reformers, together with other European intellectuals, were deeply impressed with the fact that China had a comprehensive law code for millennia stipulating punishments in proportion to minutely defined offenses.¹⁸⁰ Those who knew well enough to realize the problematic of the old idea of Chinese legal barbarity advanced a new theory for denying China jurisdiction over Westerners. By the mid-1830s, it essentially went like this: even if Chinese law and procedures themselves were not totally barbarous or were even comparable to their Western counterparts, the fact that they were applied discriminatively by the local officials to Westerners justified the latter's resistance to Chinese jurisdiction. In other words, the old, cruder discourse of "sanguinary and primitive" Chinese law acquired a nineteenth-century sinological subtlety and swerved from a wholesale condemnation to some alleged practices.	71
When John Francis Davis (1795–1890), a leading British sinologist and senior colonial administrator in China, published the purportedly first "general and systematic work on China" in the West in 1836, he emphatically noted that it was a "great mistake" to think that Chinese law lacked the notions of justice and humanity or mental culpability.¹⁸¹ Rather, the Chinese "clearly [understood] the distinctions between malicious, excusable, and justifiable homicide" and shared "precisely the same" principle as the English that "Better let the guilty escape than put the innocent to death."¹⁸² He made these unusually honest admissions only to argue that "every legal safeguard provided for the native [was] dispensed with in the case" of a foreigner and that "the conduct of the local government towards foreign homicides [was] so perfectly unjustifiable [that it was] not only excusable but imperative in Europeans to resist the execution, not of law, but of illegality" (emphasis original).¹⁸³ The Lady Hughes case was once more invoked as the "most remarkable" case in this regard.¹⁸⁴	72
The alleged discrimination against foreigners referred to a procedural mechanism established by the Chinese government in 1744 for capital cases involving foreigners in South China. According to this procedure, after the lower court had "fully and distinctly inquired into" the circumstances of a case and sentenced a Western culprit to death penalty for murder, intentional killing, or killing in an affray of a Chinese subject, this judgment should be reported to the governor and the governor-general. The latter should then "strictly repeat and revise the investigation" and should order immediate execution of the offender if they found the original judgment as "just and accurate." This was what Governor Sun should have done in the Lady Hughes case as the emperor indicated. After the execution, the provincial officials were required to memorialize the Board of Punishment and the emperor about the judgment together with all the records.¹⁸⁵ So this procedure modified the unique Chinese statutory requirement that all death sentences be automatically reviewed and approved by the Board of Punishment and the emperor before they were carried out, a procedural safeguard unavailable in Britain. The rationale was that if the judgment had been double-checked to be correct, the delay of the execution would unnecessarily prolong the disturbance at Canton. As a tradeoff, a foreign offender was exempted from the hardship related to transportation to and imprisonment at the provincial capital. As Edwards noted, the procedure was partly designed to "defer" to foreign sentiments and wishes.¹⁸⁶	73
In fact, this procedure was only an extension of what had been applied to certain domestic cases that involved unusually heinous or violent crimes, massive rebellion, or explosive frontier situations. The expedited process of law enforcement was meant to restore order quickly and prevent further violence or possible prison-breakings.¹⁸⁷ Historians have shown that the British colonial government in India resorted to "widespread use of the gallows and summary executions of minor [Indian] princes and military leaders" to demonstrate their "muscular notions of law and sovereignty" in British India.¹⁸⁸ In the same vein, while the Qing Court was willing to give foreigners considerable leeway when their crimes were less serious or involved only foreign victims, the Court also found it imperative to promptly punish those who intentionally or recklessly killed Chinese subjects, in order to maintain order and its claim for strict justice and inviolable sovereignty among the frequently unruly foreigners in South China.	74
Davis was heavily indebted to another prominent British sinologist, Dr. Robert Morrison (1782–1834), who was the first Protestant missionary to China and the first one to translate the Christian Bible into Chinese and to compile a Chinese-English dictionary. In the Canton-based English periodical, The Chinese Repository, Morrison wrote in May 1834 anonymously: "In cases of homicide ... [the] Chinese have a prejudice against all foreigners who approach them as equals, and their pride urges them to require the life of a foreigner, whenever the death of a native has been caused (no matter how) by his agency or instrumentality. The law of reason, of nature, and of nations does not admit of this. But still, the law of all civilised nations is tender of human life." After enumerating the six distinct categories of Chinese criminal law on homicides, Morrison went on to offer a curious new theory on Chinese jurisprudence and legal mentality: "The Chinese consider homicide as a debt; and a debt which can only be paid in kind, by the creditor. 'He that sheddeth man's blood, by man shall his blood be shed.' He who kills another must forfeit his own life. This is the general rule; and in Chinese law the exceptions are few...."¹⁸⁹ The Lady Hughes incident unsurprisingly again served as the linchpin for his argument here.¹⁹⁰ Now couched more in terms of Chinese prejudicial practices towards foreigners than Chinese law per se, this new line of argument continued to perpetuate the discourse of Chinese legal barbarity in demanding "blood for blood," which also acquired a more sophisticated conceptual veneer thanks to these propagandists' sinological clout.	75
Morrison, Davis, and their followers were fully aware that the British had fought hard from the outset to prevent the Chinese from enforcing Chinese law and procedure against the British the same way as they did to the Chinese subjects. Interestingly, they now argued that the unequal treatment of foreigners under Chinese law justified or even obliged Western defiance of Chinese jurisdiction.¹⁹¹ As Morrison put it, since "foreigners are not protected by the laws of the land, the necessity for obedience is cancelled."¹⁹² Or according to Davis, "[w]ere [the British] treated like natives on these occasions, and according to the distinct provisions of the Chinese Penal Code, it might be difficult to make out a right to oppose the laws of the country in which they sojourn."¹⁹³ They were here proposing a new theory of international law for recognizing state sovereignty: "a just and equal administration of those laws to natives and foreigners must always be the necessary condition of submission on the part of the latter."¹⁹⁴ This proposition was then used to explain away the rampant criminalities they admitted, with alarming honesty, of the British and other Westerners in China: "It is in consequence of this that acts of atrocious violence, on the part of foreigners, committed by them under the plea of doing themselves right, have been attempted to be justified, though coming strictly under the definition of piracy, murder, or arson, which, under a more vigorous Government, would have rendered them the property of the public executioner" (emphasis original).¹⁹⁵ This echoed what a "high authority" in the British government told Davis some years before: "to save the innocent, we are compelled to do little less than systematically to screen the guilty."¹⁹⁶	76
These British religious and diplomatic dignitaries were unusually candid here. On other occasions, they generally denied any such wrongdoing on the part of the British government or any murder ever committed by the British subjects in China. There was a reason for this. What they had in mind was not greater respect of Chinese law and sovereignty but British extraterritoriality, which was now re-presented as an inevitable and benevolent response to both China's judicial maladministration and the unchecked British/Western criminalities. As Davis noted, "This is a very barbarous and shocking state of things, little better on our side than on theirs, and it seems the duty of a great and civilized state, like England, to provide a remedy."¹⁹⁷ By a sleight of hand, the British now took upon themselves the "civilizing mission" to introduce into China "the [British] rule of law." In 1833, the British Parliament authorized the setup of a British court to apply English law and procedure in admiralty and criminal cases in China.¹⁹⁸ The discourse of China's legal chaos and barbarity helped mobilize the public and moral support for this move.¹⁹⁹ This unilaterally established extraterritorial court did not work out in the next decade. However, Britain's military victory in 1839–42 not only imposed it as a treaty-based regime but also politically validated the century-long representation of Chinese legal barbarity to become the dominant discourse for the century to come.	77
These earlier British arguments were later picked up by Samuel Wells Williams (1812–1884) in his extremely popular book entitled The Middle Kingdom (1848). A leading American sinologist of his century, Williams cited the Lady Hughes case as a key example to condemn the Chinese legal system for its injustice, discrimination against foreigners, and cruelty.²⁰⁰ For him, Westerners in Canton "constituted a community by themselves, subject chiefly to their own sense of honor in their mutual dealings, but their relations with the Chinese were like what lawyers call a 'state of nature.'"²⁰¹ Like those before him, this admission of Western illegalities was a prelude to his justification for Western extraterritoriality in China. Williams's publication went through at least twenty-five reprints or new editions over the next one and a half centuries, making it one of the most widely read Western works on China.²⁰²	78
In his monumental International Relations of the Chinese Empire in 1910, Hosea Morse (1855–1934) attributed the Sino-Western conflicts in the late eighteenth and the early nineteenth centuries to the "clash of cultures." As Peter Fay summarized it succinctly, under this theory, the British "went to war with China over the strangled gunner of the Lady Hughes, the kowtow, cottons—and nothing more!"²⁰³ Claiming to write a more balanced history than prior historians who were "agreed in characterizing the Chinese administration of justice as barbarous," Morse provided a brief comparison between Chinese and English law.²⁰⁴ As an American, he seemed less hesitant to conclude that the "two laws were not far apart," but he invoked what had already been made clichés by Williams and the like about Chinese criminal justice to justify Western defiance of Chinese jurisdiction.²⁰⁵ According to him, the English "law of homicide was more harsh than the Chinese, but at least they expected a fair trial for the accused. This [,] the Chinese authorities ... could not grant; and the divergence in the views remained one of the question to be settled by the arbitrament of war."²⁰⁶ When discussing these disputes in 1910, Morse cited no original Chinese or English records and after he compiled the EIC's Chronicles in 1926–29, he never went back to revise his earlier works, which unfortunately were often treated by later historians as grounded in original archives.²⁰⁷ At the same time, as seen in the case of Davis and Keeton, access to the EIC's records often ended up only reinforcing the traditional account of the Lady Hughes case if no conscientious effort was made to question how the narrators' political agenda affected the records.²⁰⁸	79
John King Fairbank (1907–1991), one of the most renowned China historians the West ever had, was heavily indebted to the works discussed above. Fairbank contended that as a result of and resolution to the cultural conflicts between the expanding modern Western powers and the stagnant traditional Chinese Empire, the Opium Wars and the unequal treaties were intended by the British (as well as other Western powers) to realize their "ideals" of justice, free trade, and modern diplomacy.²⁰⁹ Accordingly, the "Western impact"—in the form of gunboat diplomacy, extraterritoriality, or the illicit opium trade—became the "civilizing mission" to modernize China domestically and internationally.²¹⁰ Citing the Emily case in 1821, Fairbank added an American spin to the discourse of Chinese legal barbarity when he asserted that "in old China," there was no legal distinction between willful murder and accidental death and that "[l]ack of intent was not a mitigating factor in judging a crime." For him, the "right of extraterritoriality that the British and the rest of us claimed in China in the age of imperialism" was "a concrete expression of what we now call human rights."²¹¹	80
Over the last two decades or so, scholars have criticized the Western dismissal or misrepresentation of pre-1911 Chinese diplomacy and law.²¹² These efforts have prompted greater sensitivity to the merits and nature of China's indigenous legal tradition. However, the legacy of traditional Western narratives of Chinese law is far from becoming negligible. Rather than simply dismissing such age-old accounts as irrelevant or outdated as some recent critical scholars have tended to do, we must tackle the "evidence" that lay at the heart of the tenacious hold of these traditional narratives on modern historiography. The present case study is designed as a preliminary effort in this direction. Otherwise, even the most sophisticated historical works might continue to be influenced by the myths about this and similar Sino-Western legal disputes.	81
Works by another leading historian might be instructive here. In a widely cited article first published in 1978, Frederic Wakeman, Jr. (1937–2006) studied the Lin Weixi case that immediately triggered the First Opium War in 1839. We were told that this "murder case was only another instance of the continuing conflict over criminal jurisdiction between Chinese and Westerners."²¹³ Like Davis, Morse, and Keeton, Wakeman first acknowledged the merits of Chinese criminal justice in relation to its Western counterpart. But he then characterized Western resistance to Chinese jurisdiction as a result of conflicts between Sino-Western legal cultures and as a result of Chinese "arbitrary" judicial administration.²¹⁴ To illustrate this and explain why the British refused to turn over the suspects in the 1839 case, Wakeman cited the Lady Hughes case: In 1784, for example, a salute fired by the Country ship, Lady Hughes, accidentally killed a Chinese bystander. It was impossible to tell which gunner had delivered the fatal charge, but the Chinese had to have a culprit so that the crime would not go unpunished. To them, the act was far more important than the motive, just as redressing a wrong was more important than punishing the perpetrator. What sounded like lex talionis in the "life for a life" doctrine, was the desire to restore the ethical balance of a just reign by exchanging the victim's injured spirit for the culprit's life. Consequently, when the supercargo of the Lady Hughes could not produce the guilty gunner, he was seized as "forfeit" instead. Eventually a hapless gunner was turned over the Chinese and executed. The same kind of thing happened again in 1821, so that by the 1830s, Westerners were determined not to surrender a man to the local authorities unless he had already been tried by his own people and clearly proved guilty of homicide [emphasis added].²¹⁵	82
This passage illustrates how the traditional account of the Lady Hughes case led an accomplished modern China historian like Wakeman to adopt its discursive tropes. In the English original records dated in 1784–85, the British never claimed that the identity of the British gunner was an issue; they only spread or repeated the rumor that "the gunner himself was supposed to have absconded."²¹⁶ In a sketchy chronicle of the EIC's relationship with China, Auber, who was then secretary to the EIC's Court of Directors, (mis-)paraphrased the EIC's records and stated that the Chinese were "informed, that it could not be ascertained who the man was and in all probability the gunner had absconded."²¹⁷ Although Davis (who cited the EIC's records and was a key source of information for Morse and Keeton) did not make this assertion in 1836, later scholars apparently opted to view Chinese justice in a worse light.²¹⁸ In 1910, Morse relied on Auber to state that the Chinese "were informed that it could not be definitely ascertained who the man was."²¹⁹ In the passage quoted above, Wakeman unequivocally declared that "it was impossible to tell which gunner had delivered the fatal charge" and this led to his sophisticated explication of Chinese juridical mentality.	83
Wakeman held that Chinese justice was more concerned about punishment per se and restoration of "ethical balance" than about the actual identity and criminality of the offenders. The Chinese authorities' primary concern was to "exchang[e] the victim's injured spirit for the culprit's life" in this case. He seemed to have been influenced by Bodde and Morris who published the now classic Law in Imperial China in 1967. The latter authors argued that the Chinese legal system had an obsession with the "cosmic order," which, when disrupted by a human crime, could only be repaired by "adequate requital"—"a life for a life, an eye for an eye." Chinese criminal justice was designed more to achieve "the requital per se" than to punish the actual criminals and serve justice.²²⁰ Through this influential work, the discourse that was dated at least back to the Lady Hughes case acquired modern momentum two centuries later.²²¹ Echoing Morrison's assertion in 1834 that the Chinese considered homicide "a debt" to be paid "in kind," Wakeman's explanation of the alleged Chinese practice of "life for life" appeared to rationalize and humanize the Chinese by design, but the effect was more likely to perpetuate the traditional myths. Historians before and after his work have challenged this line of argument.²²² To varying degrees, the traditional discourse has penetrated some of the most popular textbooks on Chinese history in the West, including Jonathan Spence's Search for Modern China.²²³	84

V. Conclusion
The eighteenth-century Chinese legal system differed from Western counterparts in various aspects, but the actual differences were far less important than previously claimed in explaining why Westerners resisted Chinese law and procedure. Neither did such differences necessarily favor Western practices. We have already discussed some similarities between substantive Chinese and English criminal laws. The differences that existed often made the latter appear excessively harsh and sanguinary. Before 1832, a large number of property crimes were subject to capital punishments in England. A person who stole one or two sheep, oxen, or lambs, or things worth over twelve pence was punishable by "absolute death penalty" in eighteenth-century England, but not in contemporary China.²²⁴ It was then little wonder that Enlightenment thinkers like Montesquieu, Voltaire, and Sir William Blackstone in the mid-eighteenth century and British reformers in the 1810s would cite Chinese law approvingly to criticize the "arbitrary" and "indiscriminately severe" criminal justice in England or other European countries.²²⁵	85
Many twentieth-century commentators tended to focus on the procedural laws. It was true that imperial China had no jury or defense counsels at trial and that in the most serious cases like robbery and homicide, a Chinese judge could resort to the ankle-/finger-presser, at most twice, to secure the defendant's confession if there had been sufficient proof of the guilt or if the defendant had recanted a prior confession.²²⁶ Such Chinese practices might have caused apprehensions among British observers, as criminal procedures in continental Europe would, where the criminal trial was dominated by the judge, without jury or defense counsel, and where judicial torture was not abolished until the very end of the eighteenth century.²²⁷ But no British claim of extraterritoriality was made against France or the German states, or the other way around, because of these procedural differences.	86
At the same time, the long claimed procedural advantages of English law were often more imaginary than real, at least in the eighteenth century. For instance, like many British commentators in the eighteenth and nineteenth centuries, modern historians of Chinese history or Sino-Western relations have often argued that a fundamental difference between the Chinese and British (or Western) legal systems around the time of the Lady Hughes case was that the latter operated on the "presumption of innocence."²²⁸ On the one hand, as noted earlier, it was inaccurate and misleading to imply that there was a statutory presumption of guilt in criminal justice of late imperial China. For one thing, Chinese criminal defendants, at least in theory, were not required by law to disprove the criminal charges in order to exonerate themselves, and they could be acquitted if the judge had failed to gather enough incriminating evidence and/or secure their confessions. In this sense, under Chinese law, it was the judge who had the burden of proof for the conviction of a criminal defendant.²²⁹ It is also worth noting that the EIC's records did not prove any case of Chinese application of judicial torture to foreign defendants at trial.	87
On the other hand, eighteenth-century English criminal justice was still far from having a statutory presumption of innocence throughout the legal system. Until 1772, English law had stipulated that those accused of felony but "standing mute" would be starved or tortured until the accused "pleaded [guilty or not guilty] or died." Afterwards, the rule was changed to make "standing mute in cases of felony equivalent to conviction" and this remained so until 1827.²³⁰ Until 1935, those accused of homicide in England—like the Lady Hughes gunner—would be presumed to be guilty of murder unless they proved otherwise.²³¹ To a certain extent this appeared to be true in less serious cases. Based on his examination of English "summary" proceedings in misdemeanor cases in this period. Bruce Smith has recently noted that "many English criminal defendants in the late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence, but, rather, struggled against a statutory presumption of guilt" (emphasis original).²³² Moreover, before 1836, those accused of felony (including homicides and various types of grand thefts) and thus liable to capital punishments in England were not legally entitled to have defense councils at trial.²³³ In the early nineteenth century, the jury trial system also came under severe criticism for widespread jury perjury and for excessive judicial discretion in criminal cases.²³⁴	88
To sum up, it was the discourse of legal/cultural differences and thus civilizational/racial hierarchy—rather than the actual differences—that was really at play in these Sino-Western disputes and in the modern historiography of these disputes. Again, the legitimacy of Chinese jurisdiction and sovereignty was not based on how much Chinese law should resemble Western laws. As a commentator put it in 1821, the Chinese "have a right to establish [whatever principle they please]; and foreigners who come into the territory, are bound to submit it, as to all other regulations for the government of the empire.... Just as no one will attempt to dispute the right of England to pass laws that will even hang a person for ... [stealing a sheep].... Why then should the right of China be questioned, and her peaceful measure for redress be so much reprehended?"²³⁵ To this thorny question, historians over the past two centuries have often resorted to the ill-defined theory of "clash of civilization" and/or of Chinese legal barbarity, presumably evidenced by the few Sino-Western legal disputes like the Lady Hughes case. This theory is no longer tenable.	89
Historians like Fairbank, Wakeman, and so on have each and all made extraordinary contributions to the field of modern Chinese history and to Western studies on China in general. In light of their professional accomplishments, their treatment of the Lady Hughes case serves as a telling case about the unusual difficulty that a modern China historian encounters when working under the shadow of traditional historiography on early Sino-Western relations. Over the course of two centuries, numerous commentators have updated or confirmed the earlier accounts of a landmark case like the Lady Hughes. With all its associated rhetoric, imageries, and interpretations of Chinese criminal justice that were validated by the passage of time and accumulated intellectual authority, this discourse has profoundly shaped Western understanding of Chinese law and society. As Lydia Liu has pointed out, the "semiotic turn" of international relations since the late eighteenth century makes it imperative for students of modern China to critically reexamine the representational and "translingual" politics that "invented" China in the modern world order and historical consciousness.²³⁶ As part of a larger project, this case study has illustrated in a microscopic way how late imperial Chinese law and diplomacy were discursively constructed as primitive and incommensurable with modern justice and international relations while British/Western extraterritoriality and domination became part of the "civilizing mission." The colonial violence and immorality/illegality as well as the complex process of negotiation, accommodation, and contestation that characterized such conflicts of sovereign thinking in South China were blotted out in this course of knowledge production and normalization. It is of critical importance to revisit historiography of these events that has shaped our knowledge of modern Sino-Western relations and China's legal and political traditions.	90
Li Chen is Assistant Professor of History at the University of Toronto. This article is based on part of his recently completed dissertation, which studies how imperial power and cultural politics shaped modern Western knowledge of Chinese law and society from 1750 through 1900. He especially wishes to thank Madeleine Zelin and to extend his many thanks as well to Ruoyun Bai, David Engel, Dorothy Ko, Eugenia Lean, Benjamin Liebman, Lydia Liu, Jonathan Ocko, and Bruce Smith for their sustained support. He also thanks David Tanenhaus of the Law and History Review and the four anonymous reviewers for their valuable feedback. In addition, this author has benefited from comments by participants in a dissertation workshop at Columbia University and by Par Cassel and Klaus Mühlhahn at the annual meeting of the Association for Asian Studies in 2007. Notes ^1.� See, e.g., Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844–1942 (New York: Columbia University Press, 2001), esp. chaps. 1 and 6; Teemu Ruskola, "Canton Is Not Boston: The Invention of American Imperial Sovereignty," American Quarterly 57, no. 3 (2005): 859–84. The Treaty of Bogue technically provided for extraterritoriality even though it was just supplementary to the Treaty of Nanking. ^2.� For example, compare different editions of Henry Wheaton, Elements of International Law: With a Sketch of the History of the Science (Philadelphia: Carey, Lea & Blanchard, 1836); Wheaton, Elements of International Law, 8th ed. (Boston: Little, Brown, and Co., 1866; reprint; edited with notes by Richard Henry Dana), 22. Also Travers Twiss, The Law of Nations Considered as Independent Political Communities (London: Longman, Green, Longman, and Roberts, 1861), 223–25. For a stimulating study, see Lydia H. Liu, The Clash of Empires: The Invention of China in Modern World Making (Cambridge: Harvard University Press, 2004), esp. 108–39. ^3.� For debates on extraterritoriality, see Charles Denby, "Extraterritoriality in China," The American Journal of International Law 18, no. 4 (1924): 667–75; Shihshun Liu, Extraterritoriality: Its Rise and Decline (New York: Columbia University Press, 1925); George W. Keeton, The Development of Extraterritoriality in China, 2 vols. (London: Longmans, Green & Co., 1928); K. C. Chan, "The Abrogation of British Extraterritoriality in China 1942–43: A Study of Anglo-American-Chinese Relations," Modern Asian Studies 11, no. 2 (1977): 257–91; Edmund S. K. Fung, "The Chinese Nationalists and the Unequal Treaties 1924–1931," Modern Asian Studies 21, no. 4 (1987): 793–819. ^4.� Jonathan D. Spence, The Search for Modern China (New York: W. W. Norton & Co., 2001), 126–27 (the other case was the 1821 Sino-American dispute); also see R. Randle Edwards, "Ch'ing Legal Jurisdiction over Foreigners," in Essays on China's Legal Tradition, ed. Jerome Alan Cohen et al. (Princeton: Princeton University Press, 1980), 238 (calling this case "the most serious threat to Sino-foreign relations" in this period). For recent discussion about this and other early Sino-Western legal disputes by a Chinese legal historian, see Yigong Su, "Yapian Zhanzheng Yu Jindai Zhongxi Falü Wenhua Chongtu Zhi Youlai (The Opium War and Origins of the Modern Conflicts of Sino-Western Legal Cultures)," in Zhongguo Falü Jindaihua Lunji (Essays on Chinese Legal "Modernization"), ed. Sheng Zhang (Beijing: Zhongguo Zhengfa Daxue Chubanshe, 2002), 50–122. ^5.� The only other British offender delivered to the Chinese was by the Portuguese in Macao in the 1770s for killing a Chinese subject. ^6.� For all these claims, see Section IV. ^7.� For the quotations respectively, see Hosea Ballou Morse, ed., The Chronicles of the British East India Company Trading to China, 1635–1834 (Oxford: Clarendon Press, 1926–1929), 3:40 (1806) and 2:107 (1785). ^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. ^10.� Ann Laura Stoler, "'In Cold Blood': Hierarchies of Credibility and the Politics of Colonial Narratives," Representations, no. 37 (1992): 154. Also see her discussion of how to use colonial archives. ^11.� Ranajit Guha, Elementary Aspects of Peasant Insurgency in Colonial India (Delhi: Oxford University Press, 1983), esp., 15–17; also see Anthony C. Milner, "Colonial Records History: British Malaya," Modern Asian Studies 21, no. 4 (1987): 783–85. ^12.� See Emmerich de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, trans. Joseph Chitty, new ed. (London: Stevens & Sons, 1834; reprint, 1797 translation), 2 (on definition of sovereign states), 40 (citing Chinese practices when explaining the law of nations), 470–500 (on ambassadorial privileges); Charles H. Alexandrowicz, "Freitas Versus Grotius," British Yearbook of International Law 35 (1959): 166–67; Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford: Clarendon Press, 1967), 46–49, 57, 59 (on Grotius and Freitas's agreement on the applicability of the law of nations to "East Indian" sovereign states). For critical studies of international law, see Gerrit W. Gong, The Standard of "Civilization" in International Society (Oxford: Clarendon Press, 1984); Martti Koskennimie, The Gentle Civilizers of Nations: Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2002); Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2004). ^13.� Quoted in Edwards, "Ch'ing Legal Jurisdiction," 251. In 1806, the EIC also privately recognized Chinese jurisdiction but justified their evasion by alleging Chinese corruption and injustice (Morse, Chronicles, 3:40). ^14.� Justus M. van Der Kroef, "Indonesia and the Origins of Dutch Colonial Sovereignty," The Far Eastern Quarterly 10, no. 2 (1951): 152. See also Bhawan Ruangsilp, Dutch East India Company Merchants at the Court of Ayutthaya: Dutch Perceptions of the Thai Kingdom, 1604–1765 (Leiden: Brill, 2007), 31; Derek Massarella, A World Elsewhere: Europe's Encounter with Japan in the Sixteenth and Seventeenth Centuries (New Haven: Yale University Press, 1990). ^15.� Edward A. Bond, ed., Speeches of the Managers and Counsel in the Trial of Warren Hastings (London, 1859–1861), 1:15. It was also noted that the British Empire "owed much of its power and property to the foundation the Company had laid down" (Anthony Wild, The East Indian Company: Trade and Conquest from 1600 [London: Harpercollins Illustrated, 1999], 11). ^16.� Christopher A. Bayly, "The British Military-Fiscal State and Indigenous Resistance, India 1750–1820," in An Imperial State at War: Britain from 1689 to 1815, ed. Lawrence Stone (New York: Routledge, 1994), 327–30. ^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; also Michael Fisher, "Extraterritoriality: The Concept and Its Application in Princely India," Indo-British Review 15, no. 2 (1988): 103–22. ^18.� John Francis Davis, The Chinese: A General Description of the Empire of China and Its Inhabitants (London: Charles Knight & Co., 1836), 1:45; Morse, Chronicles, 1:193 (1729); Edwards, "Ch'ing Legal Jurisdiction," 234–35. ^19.� Morse, Chronicles, 1:194. ^20.� Edwards, "Ch'ing Legal Jurisdiction," 234–35. The 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," 236. ^22.� Morse, Chronicles, 2:409–10 (summarizing the EIC's records), also 2:61–68 (1781), 2:37 (1779); Davis, The Chinese, 1:64. ^23.� Morse, Chronicles, 2:160. ^24.� See, e.g., Morse, Chronicles, 3:17–18 (1805); 2:188–89 (1791); 2:325–26 (1799); 2:365 (1802). ^25.� For the change, see Robert Markley, "Riches, Power, Trade and Religion: The Far East and the English Imagination, 1600–1720," Renaissance Studies 17, no. 3 (2003): 494–516. My larger project has more on this. ^26.� See, e.g., Jonathan D. Spence, The Chan's Great Continent (New York: W. W. Norton & Co., 1998), 92, and 62–80 (on "deliberate fictions" by Defoe and Goldsmith in this period). Also see Lydia H. Liu, "Robinson Crusoe's Earthenware Pot," Critical Inquiry 25, no. 4 (1999): 728–57. For the influence of the writings of British colonial adventurers, like George Anson's 1743 accounts of China, on Montesquieu's Spirit of the Laws, see Michael Adas, Machines as the Measure of Men (Ithaca: Cornell University Press, 1989), 90–91. Also see Nicholas A. Boulanger, Origin and Progress of Despotism in the Oriental and Other Empires, of Africa, Europe, and America (Amsterdam, 1764). ^27.� Robert Travers, "Ideology and British Expansion in Bengal, 1757–72," Journal of Imperial and Commonwealth History 33, no. 1 (2005): 7–27; see Thomas R. Metcalf, Ideologies of the Raj (New York: Cambridge University Press, 1997), 6–15; James D. Tracy, "Asian Despotism? Mughal Government as Seen from the Dutch East Indian Company Factory in Surat," Journal of Early Modern History 3, no. 3 (1999): 256–80. ^28.� Morse, Chronicles, 1:168 (1721). ^29.� Ibid., 2:60 (1781). ^30.� Frederick Wells Williams, The Life and Letters of Samuel Wells Williams: Missionary, Diplomatist, Sinologue (New York: G. P. Putnam's Sons, 1889), 116–17 (suggesting that this clearly was a murder case), also quoted in Joseph Askew, "Re-Visiting New Territory: The Terranova Incident Re-Examined," Asian Studies Review 28, no. 4 (2004), 366. ^31.� See Morse, Chronicles, 1:82 (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. The exception was a 1754 case in which the British wanted the Chinese to prosecute a French homicide (Morse, Chronicles, 5:15–19; Keeton, Extraterritoriality in China, 1:32–33; Gongzhongdang Qianlongchao Zouzhe [Secret Palace Memorials of the Ch'ien-Lung Period], ed. Gugong Bowuyuan [Taipei: National Palace Museum, 1983], 9:762–64). ^32.� Davis, The Chinese, 1:61, 389–93; see Edwards, "Ch'ing Legal Jurisdiction," 246. ^33.� I borrowed this term, with significant modification, from Liu, The Clash of Empires, 5–139. ^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.� Lo-shu Fu, A Documentary Chronicle of Sino-Western Relations (1644–1820) (Tucson: The University of Arizona Press, 1966), 1:176–77 (1743) (on disputes in Macao and Sino-Russian borders), 1:186–87 (1748–49) (on Emperor Qianlong's rationale), 318–19 (1792), 322 (1792). See Morse, Chronicles, 2:59–60 (about a governor-general in 1780 who insisted on jurisdiction over a French-Portuguese homicide dispute); Edwards, "Ch'ing Legal Jurisdiction," 226–32 (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 see Morse, Chronicles, 2:99. The 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. See Cheong Weng Eang, The Hong Merchants of Canton: Chinese Merchants in Sino-Western Trade (Richmond: Curzon Press, 1997). ^38.� IOR/G/12/79/1784–85: 118; Morse, Chronicles, 2:99. ^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, emphasis added). See Guha, Elementary Aspects of Peasant Insurgency, 16–17 (for a similar strategy to decode such "colonial archives"). ^42.� Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 1, The Movement for Reform, 1750–1833 (London: Stevens, 1948), 629; Frank J. Mclynn, Crime and Punishment in Eighteenth-Century England (New York; London: Routledge, 1989), 38–39; Jennifer M. Neighbors, "Criminal Intent and Homicide Law in Qing and Republican China" (Ph.D diss., University of California at Los Angeles, 2004). On the similarities, see William C. Jones, "Introduction," in William C. Jones, The Great Qing Code (New York: Oxford University Press, 1994), 23. For the Chinese statutory categories, see ibid., 268–310, esp. 278, 280–82; George Thomas Staunton, 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; Tao Tian and Qin Zheng, eds., Daqing Lüli (The Great Qing Code) (Beijing: Falü Chubanshe, 1998; reprint, 1740), 420–46. ^43.� Sir William Blackstone, Commentaries on the Laws of England, 13th ed. (London: T. Cadell Jun. & W. Davis, 1800), 4:181–82, also 26. ^44.� Ibid., 200. ^45.� The translation is from Neighbors, "Criminal Intent and Homicide Law," 29; also see 29–33. The examples given in this statute were similar to those of Blackstone (Commentaries, 4:181–82). Blackstone used the term "homicide by misadventure," instead of "accidental homicide." ^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" (Ernest Alabaster, "Illustrations of Chinese Criminal Practices," The China Review, or Notes & Queries on the Far East, 25, no. 2 [1900]: 93). ^47.� On prohibitions of firearms in Chinese ports, see Davis, The Chinese, 1:45 (1670). Also see Morse, Chronicles, 1:259–60 (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 see Anthony Farrington, Trading Places: The East India Company and Asia, 1600–1834 (London: British Library, 2002), 85 (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 27. ^49.� See Neighbors, "Criminal Intent and Homicide Law," 102 (on the distinction between ordinary instruments and "particularly deadly weapons" [xiongqi]). For England's "deadly weapon rule," see Askew, "Re-Visiting New Territory," 364. See also notes 53, 56, 60, and 61 below. ^50.� Neighbors, "Criminal Intent and Homicide Law," 29. ^51.� Jean M. Mudge, Chinese Export Porcelain for the American Trade, 1785–1835, 2nd ed. (Newark: University of Delaware Press, 1981), 47–48. The 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). ^52.� See Radzinowicz, A History of English Criminal Law, 631, also 49–79; Mclynn, Crime and Punishment, 38. ^53.� Askew, "Re-Visiting New Territory," 364 (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. See Jones, The Great Qing Code, 280–82; Tian and Zheng, Daqing Lüli, 437–38; Qingqi Zhu et al., eds., Xing'an Huilan Sanbian (Conspectus of Penal Cases) (Beijing: Beijing Guji Chuban she, 2003 [1886]), 4:260–62 (for relevant cases); also see a similar case in 1774 at Staunton, Ta Tsing Leu Lee, 563–66. Besides 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, see Zhiyun Li, Cheng'an Xubian Erke (A New Collection of Leading Cases) (1763 [Qianlong 28]); Zhu et al., Xing'an Huilan Sanbian, 3:1546–48, 1639–42. A third (less likely) statute concerned "Killing by or during a Game" (xisha), which imposed strangulation or exile plus bamboo strokes (Tian and Zheng, Daqing Lüli, 433–34). These statutes assumed an absence of intent to kill. On the use of "analogy" in Chinese justice, see Fu-mei Chang Chen, "On Analogy in Ch'ing Law," Harvard Journal of Asiatic Studies 30 (1970): 212–24. ^54.� Robert Bennet Forbes, Personal Reminiscences, 2nd, rev. ed. (Boston: Little, Brown, & Co., 1882), 375 (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). Again, these elements alone would not acquit the gunner in this case. ^55.� See Hale's Pleas of the Crown (1736), 1:51, 434; Blackstone, Commentaries, 4:28–30; for 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). ^57.� IOR/G/12/79/1784–85: 118; Morse, Chronicles, 2:99. ^58.� Morse, Chronicles, 2:72 (the Hastings case in 1782); 5:14 (1754); 1:310 (1769); also see Keeton, Extraterritoriality in China, 1:30–40. For the 1780 case, see Morse, Chronicals, 2:59. The 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 see Samuel Wells Williams, The Middle Kingdom: A Survey of the Chinese Empire and Its Inhabitants (New York: Wiley & Putnam, 1848), 2:454 (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, 628–29. ^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); also see Askew "Re-Visiting New Territory," 364; Brian P. Block and John Hostettler, Famous Cases: Nine Trials that Changed the Law (Dublin: Waterside Press, 2002), 34. ^62.� Tian and Zheng, Daqing Lüli, 541–58 (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, 2:99. ^64.� IOR/G/12/79/1784–85: 119 (but Morse, Chronicles, 2:99–100, omitted this sentence). ^65.� IOR/G/12/79/1784–85:134; Earl H. Pritchard, The Crucial Years of Early Anglo-Chinese Relations, 1750–1800, ed. Patrick Tuck, vol. 6 of Britain and the China Trade, 1635–1842 (New York: Routledge, 2000 [1936]), 228 (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, see Morse, Chronicles, 5:18. Morse'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, 2:100 (only summarizing the original). ^69.� For Chinese rebuttals on a prior occasion, see Morse, Chronicles, 2:65 (1781). Albeit 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). See Davis, The Chinese, 1:47–48 (1699); IOR/G/12/79/1785: 175; Peter Auber, 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 and Keeton, Extraterritoriality in China, 1:44 (on another Parliamentary authorization in 1786); Morse, Chronicles, 2:67 and 103–4; George Thomas Staunton, Miscellaneous Notices Relating to China (London: John Murray, 1822), 197–98. ^70.� IOR/G/12/79/1784–85: 119; Morse, Chronicles, 2:100; Edwards, "Ch'ing Legal Jurisdiction," 238–39. ^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). ^72.� IOR/G/12/79/1784–85: 119; Morse, Chronicles, 2:99–100. ^73.� IOR/G/12/79/1784–85: 119; Morse, Chronicles, 2:100. ^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). ^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, 2:104. ^79.� IOR/G/12/79/1784–85: 121; Morse, Chronicles, 2:101. ^80.� IOR/G/12/79/1784–85: 121; Morse, Chronicles, 2:101. ^81.� Samuel Shaw, "'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): 305. 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," 239; Morse, Chronicles, 2:101). ^82.� Shaw, "'from Samuel Shaw to John Jay,'" 325. ^83.� IOR/G/12/79/1784–85: 122. ^84.� IOR/G/12/79/1784–85: 121; Morse, Chronicles, 2:101; "Riot at China," The Times, Jan. 8, 1785; Samuel Shaw, The Journal of Major Samuel Shaw, the First American Consul at Canton, ed. Josiah Quincy (Boston: Wm. Crosby and H. P. Nichols, 1847), 187–88. ^85.� Shaw, "'from Samuel Shaw to John Jay,'" 326. ^86.� IOR/G/12/79/1784–85: 124; Morse, Chronicles, 2:102; Shaw, Journal, 188. ^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 (see Shaw, Journal, 188–90). ^88.� Hosea Ballou Morse, The International Relations of the Chinese Empire (New York: Longmans & Green, and Co., 1910), 1:114–17. Keeton, 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; see Edwards, "Ch'ing Legal Jurisdiction," 245 (mentioning no British obstruction of Chinese justice); Joanna Waley-Cohen, "Collective Responsibility in Qing Criminal Law," in The Limits of the Rule of Law in China, ed. Karen Turner et al. (Seattle: University of Washington Press, 2000), 116–17; Waley-Cohen, The Sextants of Beijing: Global Currents in Chinese History (New York: W. W. Norton & Company, 1999), 100–101 (misled by the traditional discourse). ^89.� Morse, Chronicles, 2:103 (emphasis added); Edwards, "Ch'ing Legal Jurisdiction," 239. ^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). ^91.� See the Chinese statutes cited in note 62 above. ^92.� Morse, Chronicles, 2:99–104. For historians' oversight on this, see notes below. ^93.� IOR/G/12/79/1784–85: 126. ^94.� Shaw, "'from Samuel Shaw to John Jay,'" 326. ^95.� IOR/G/12/79/1784–85: 126–127 (the governor stated "it was the English alone he had any concern with"); Morse, Chronicles, 2:103. ^96.� Shaw, "'from Samuel Shaw to John Jay,'" 326; cf. Shaw, Journal, 189. ^97.� IOR/G/12/79/1784–85: 127; Shaw, "'from Samuel Shaw to John Jay,'" 326. ^98.� Shaw, Journal, 190; Shaw, "'from Samuel Shaw to John Jay,'" 326 (describing the silk as "a mark of his friendly disposition"). ^99.� Shaw, "'from Samuel Shaw to John Jay,'" 326; Shaw, Journal, 188–89 (indicating that the French were the first willing to back out) and 191. ^100.� Shaw, "'from Samuel Shaw to John Jay,'" 326. ^101.� IOR/G/12/79/1784–85: 128; Morse, Chronicles, 2:103. ^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). This 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). This 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,'" 326. ^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). As 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, 2:104. ^110.� IOR/G/12/79/1784–85: 136; also Auber, China, 185. ^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, 187; Morse, Chronicles, 2:105. ^114.� IOR/G/12/79/1784–85: 169 (January 1785); Morse, Chronicles, 2:105; Morse, International Relations, 1:102. ^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: 17819–20 (Qianlong 49/11/11 or Dec. 22, 1784); Qianlong Shangyudang (Imperial Edicts of Emperor Qianlong [1735–96]) (Beijing: Dang'an Chubanshe, 1997), 361–62; Edwards, "Ch'ing Legal Jurisdiction," 240–41. ^117.� See the previous note and Edwards, "Ch'ing Legal Jurisdiction," 241–42. ^118.� Bayly, "The British Military-Fiscal State," 338; David Armitage, The Ideological Origins of the British Empire (New York: Columbia University, 2000), 2–3. ^119.� Armitage, Ideological Origins, 2; also see Tony Ballantyne, Orientalism and Race: Aryanism in the British Empire (New York: Palgrave Macmillan, 2002), 18. ^120.� See, e.g., Morse, Chronicles, 2:370–72 (1802). As early as 1781, the British supercargoes already talked about colonizing Macao by "procuring" it from the Portuguese (Morse, Chronicles, 2:68). For British violence in South China, see Edwards, "Ch'ing Legal Jurisdiction," 236; Morse, Chronicles, 2:409–10 and 2:61–68 (1781), 2:37 (1779); Davis, The Chinese, 1:64. ^121.� Edwards, "Ch'ing Legal Jurisdiction," 260, and 232, 246; also see the previous note. ^122.� "Riot at China"; Shaw, "'from Samuel Shaw to John Jay,'" 325; Shaw, Journal, 186. ^123.� IOR/G/12/79/1784–85: 136; Auber, China, 185; the Times article above, note 122. Davis, The Chinese, 1:67; IOR/G/12/79/1784–85: 126 (for the governor's anxiety); Staunton, Miscellaneous Notices, 134, 266; Morse, Chronicles, 2:103. ^124.�Qianlong Shangyudang, 12:361; Daqing Gaozong Shilu, 25:17819–20; Fu, Documentary Chronicle of Sino-Western Relations, 1:297–98. Edwards 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). ^125.� Such factors could make an unintentional killing punishable by strangulation or exile. For cases, see Li, Cheng'an Xubian Erke (1763); Tingying Shen, Cheng'an Beikao (Leading Cases for References) (1808); Zhu et al., Xing'an Huilan Sanbian, 3:1546–48, 1639–42. ^126.� Fu, Documentary Chronicle of Sino-Western Relations, 1:186–88 (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 from Patrick Tuck, "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. Richard Harding et al. (Liverpool: Society for Nautical Research/National Museum Liverpool, 2004), 86. ^128.� Staunton, Miscellaneous Notices, 273. My larger project studies Staunton extensively. See George Thomas Staunton, Memoirs of the Chief Incidents of the Public Life of Sir George Thomas Staunton (London: L. Booth, 1856). ^129.� Glenn Henry Timmermans, "Sir George Thomas Staunton and the Translation of the Qing Legal Code," Chinese Cross Currents 2, no. 1 (2005): 36 (emphasis added). He was influenced by Tuck, "Law and Disorder in the China Coast," 86, also 85–86. See also Davis, The Chinese; Morse, International Relations; Pritchard, The Crucial Years. ^130.� James L. Hevia, Cherishing Men from Afar: Qing Guest Ritual and the Macartney Embassy of 1793 (Durham: Duke University Press, 1995). ^131.� Douglas Hay, "Property, Authority and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay et al. (London: Peregrine, 1975), 17–63; K. J. Kesselring, Mercy and Authority in the Tudor State (New York: Cambridge University Press, 2003). ^132.� Edwards, "Ch'ing Legal Jurisdiction," 241; Davis, The Chinese, 1:32–33; Qianlong 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," 241. ^135.�Qianlong Shangyudang, 12:361 (Qianlong 49/11/11). ^136.� Fu, Documentary Chronicle of Sino-Western Relations, 1:187 (1749). ^137.� For examples of racial or national biases in English criminal trials, see Mclynn, Crime and Punishment, 44 (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 from Edwards, "Ch'ing Legal Jurisdiction," 241. Cf. Fu, Documentary Chronicle of Sino-Western Relations, 1:297. ^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; also Mclynn, Crime and Punishment, 38). For the allegation that the Chinese wrongfully convicted the gunner of murder, see Staunton, Miscellaneous Notices, 134. Compare Fu, Documentary Chronicle of Sino-Western Relations, 1:318–19. (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). Translation was somewhat modified. ^144.� Ibid., 186–88. ^145.� For cases of mercy/favor to foreigners, see Fu, Documentary Chronicle of Sino-Western Relations, 1:188 (1751), 196 (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," 255–59. ^146.� Morse, Chronicles, 5:17. For more about this case, see Gongzhongdang Qianlongchao Zouzhe, 9:762–64; Morse, Chronicles, 5:14–19 (1754); Keeton, Extraterritoriality in China, 1:33–34 (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," 243 (citing Keeton, Extraterritoriality in China, 1:71). ^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, 1:186–87. ^152.� Joanna Innes and John Styles, "The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth Century England," Journal of British Studies 25, no. 4 (1986): 403 (summarizing Hay, 1975). ^153.� Randall McGowen, "Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821," Law and History Review 25, no. 2 (2007): 241 (summarizing Hay). Cf. John M. Beattie, Crime and the Courts in England (Oxford: Oxford University Press, 1986), esp. chap. 8; Peter King, Crime, Justice, and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000). For literature reviews, see Peter King, "Locating Histories of Crime: A Bibliographical Study," British Journal of Criminology 39, Special Issue (1999): 161–74; Bruce Smith, "English Criminal Justice Administration, 1650–1850: A Historiographic Essay," Law and History Review 25, no. 3 (2007): 593–634. ^154.� No English records indicated any British or Western witness of this execution. ^155.�Qianlong Shangyudang, 12:362; also Auber, China, 190. IOR/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," see Liu, The Clash of Empires, 5–107. ^157.� Neil Rabitoy, "Legal Despotism and the Imperial Mind," Indo-British Review 6, nos. 3 and 4 (1977): 32–44; Travers "Ideology and British Expansion," 14–15, 17–22. ^158.� See IOR/G/12/79/1784–85: 170. ^159.� IOR/G/12/79/1784–85: 170–71; Morse, Chronicles, 2:107. ^160.� IOR/G/12/79/1784–85: 169–70. ^161.� See, e.g., Hevia, Cherishing Men from Afar; Glenn Melancon, Britain's China Policy and the Opium Crisis: Balancing Drugs, Violence and National Honour, 1833–1840 (Burlington, Vt.: Ashgate, 2003). My larger study has more on this. ^162.� John Keay, The Honourable Company: A History of the English East India Company (New York: Macmillan Publishing Co., 1991), 349. ^163.� IOR/G/12/79/1784–85: 171–72. ^164.� Ibid., 170; Morse, Chronicles, 2:106–7; Keeton, Extraterritoriality in China, 1:42. ^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]). ^166.� Auber, China, 190–91; Edwards, "Ch'ing Legal Jurisdiction," 242 (citing Pritchard, The Crucial Years, 230); Keeton, Extraterritoriality in China, 1:42 (citing Auber, China, 190). ^167.� Morse, Chronicles, 2:107; Auber, China, 187. ^168.� Auber, China, 190–91; Keeton, Extraterritoriality in China, 1:44 (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. Founded 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, 47–48 (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 also Davis, The Chinese, 1:69; Morse, Chronicles, 2:157. ^172.� Morse, Chronicles, 2:155–56, 160. ^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). ^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), 94–95. ^175.� Morse, Chronicles, 2:218; Edwards, "Ch'ing Legal Jurisdiction," 242; Davis, The Chinese, 1:69. ^176.� For a recent study of the 1793 Embassy, see Hevia, Cherishing Men from Afar. For the Opium Wars, see Hsin-pao Chang, Commissioner Lin and the Opium War (Cambridge: Harvard University Press, 1964); Gungwu Wang, Deadly Dreams: Opium, Imperialism, and the Arrow War (1856–1860) (New York: Cambridge University Press, 1998). ^177.� Morse, International Relations, 1:244. ^178.� For later disputes, see Edwards, "Ch'ing Legal Jurisdiction," 241–43, 245–50. ^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; George Ensor, Defects of the English Laws and Tribunals (London: J. Johnson & Co., 1812), 140, 143, 246, 464. About English law reform, see, e.g., V. A. C. Gatrell, The Hanging Tree: Execution and the English People 1770–1868 (Oxford: Oxford University Press, 1994). My larger project studies English reception of the Qing Code extensively. ^181.� Davis, The Chinese, 1:389, 393–95. A veteran in the EIC's business in China, Davis once was the British Superintendent of Trade in the1830s 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 (Ernest John Eitel, Europe in China: The History of Hongkong from the Beginning to the Year 1882 [1895], 211). ^182.� Davis, The Chinese, 1:394. ^183.� Ibid., 394 and 389 respectively. ^184.� Ibid., 65. ^185.� Quotations from Staunton, Ta Tsing Leu Lee, 523 (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. That 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) ("xianxing zhengfa"), 57:852 (1783), 60:60, and 88 (explaining the rationale) (1794); Jianzhong Dong, ed., Qianlong Yupi (Edicts with Emperor Qianlong's Script) (China: Zhongguo Huajiao Chubanshe, 2001), 2:790 (1786). ^188.� Bayly, "The British Military-Fiscal State," 332 (referring especially to the Wellesley era in 1798–1805). ^189.� Robert Morrison, "The Law of Homicide in Operation," The Chinese Repository III, no. 1 (1834): 38–39. As 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 in Keeton, Extraterritoriality in China, 2:252–54; see Eliza A. Morrison, Memoirs of the Life and Labours of Robert Morrison (London: Longman, Orme, etc., 1839), vol. 2, appendix, 7. ^191.� Auber, China, 310–11; Morse, International Relations, 1:109. Ironically, 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 in Davis, The Chinese, 1:395; also Robert Morrison, "Thoughts on the Conduct of the Chinese Government towards the Honourable Company's Servants at Canton (1819)," in Morrison, Memoirs, vol. 2, appendix, 7–10, at 8–9. This article was reprinted later in The Chinese Repository, vol. 8, no. 12 (April 1840), 615–19 (suggesting that Morrison wrote this piece in 1814). ^193.� Davis, The Chinese, 1:389. ^194.� Ibid. ^195.� Ibid., 64; see Morrison, Memoirs, vol. 2, appendix, 7–10, at 9–10 (for similar arguments). ^196.� Quoted in Davis, The Chinese, 1:391. ^197.� Ibid., 393. ^198.� See Edwards, "Ch'ing Legal Jurisdiction," 250–51. ^199.� For early advocacy of British extraterritoriality, see Morrison, Memoirs, vol. 2, appendix, 7–10, at 7–9; Davis, The Chinese, 1:391. ^200.� Williams, The Middle Kingdom, 2:454–59 (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.� Peter W. Fay, "The French Catholic Mission in China during the Opium War," Modern Asian Studies 4, no. 2 (1970): 116, 115 (on Morse's use of the term "culture"). ^204.� Quotation from Morse, International Relations, 1:109. ^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, 1:117. ^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, 225–30. ^209.� John K. Fairbank, "The Creation of the Treaty System," in The Cambridge History of China: Late Ch'ing, 1800–1911, Part 1, ed. John K. Fairbank (New York: Cambridge University Press, 1978), 232. For Fairbank's other works and influence, see Paul M. Evans, John Fairbank and the American Understanding of Modern China (New York: Basil Blackwell, 1988). ^210.� Fairbank, "Creation of the Treaty System," 216–17. See John K. Fairbank, The United States and China, 3rd ed. (Cambridge: Harvard University Press, 1972), 137–48, esp. 141, 143, 145, 147. ^211.� John K. Fairbank, China Watch (Cambridge: Harvard University Press, 1987), 1 and 3 respectively for the two sentences. On the Emily case, compare Askew, "Re-Visiting New Territory," 351, 367. ^212.� For critiques of Fairbank and the like, see Joseph Esherick, "Harvard on China: The Apologetics of Imperialism," Bulletin of Concerned Asian Scholars 4, no. 4 (1972): 9–17; Tan Chung, "Imperialism in Nineteenth-Century China (2): The Unequal Treaty System: Infrastructure of Irresponsible Imperialism," China Report 17, no. 3 (1981): 3–33; Paul A. Cohen, Discovering History in China: American Historical Writings on the Recent Chinese Past (New York: Columbia University Press, 1986). For critiques of misperceptions of imperial Chinese law, see William P. Alford, "Of Arsenic and Old Laws: Looking Anew at Criminal Justice in Late Imperial China," California Law Review 72 (1984): 1181–250; Alford, "The Inscrutible Occidental? Implications of Robert Unger's Uses and Abuses of Chinese Past," Texas Law Review 64, no. 5 (1986): 915–72; Alford, "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. 404–5 (on Fairbank); Tani Barlow, "Colonialism's Career in China Studies," in Formations of Colonial Modernity in East Asia, ed. Tani Barlow (Durham: Duke University Press, 1997), 373, 389–90; Teemu Ruskola, "Law without Law, or Is 'Chinese Law' an Oxymoron?" William & Mary Bill of Rights Journal 11 (2002): 655–70; ibid., "Legal Orientalism," Michigan Law Review 101, no. 1 (2002): 179–234. ^213.� Frederic E. Wakeman, "The Canton Trade and the Opium War," in The Cambridge History of China: Late Ch'ing 1800–1911, Part 1, ed. John K. Fairbank (New York: Cambridge University Press, 1992), 180. ^214.� Ibid., 189–90. Wakeman cited Randle Edwards's unpublished dissertation. ^215.� Ibid., 190; also see Frederic E. Wakeman, Strangers at the Gate; Social Disorder in South China, 1839–1861 (Berkeley: University of California Press, 1997 [1966]), 81. ^216.� IOR/G/12/79/1784–85: 119. ^217.� Auber, China, 183–84. ^218.� Davis, The Chinese, 1:65; IOR/G/12/79/1784–85: 118–137; cf. Morse, Chronicles, 2:99–107; Keeton, Extraterritoriality in China, 1:404; Pritchard, The Crucial Years, 226–27. ^219.� Morse, International Relations, 1:102. ^220.� See, e.g., Derk Bodde and Clarence Morris, Law in Imperial China (Cambridge: Harvard University Press, 1967), 43, 331. They seemed to be influenced in turn by Needham and van der Valk. See, e.g., M. H. van der Valk, Interpretations of the Supreme Court at Peking: Years 1915 and 1916 (Batavia: Sinological Institute, Faculty of Arts, University of Indonesia, 1949), 20–21; M. J. Meijer, The Introduction of Modern Criminal Law in China (Batavia: Die Unie, 1950), 2; Sybille van der Sprenkel, Legal Institutions of Manchu China (London: University of London, Athlone Press, 1962) 127; Joseph Needham, Science and Civilisation (Cambridge: Cambridge University Press, 1956; reprint 1965), 528. See Dao-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.� See Dao-lin Hsu, "Crime and Cosmic Order," Harvard Journal of Asiatic Studies 30 (1970): 111–25; Neighbors, "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 idea. ^223.� See, e.g., Spence, The Search for Modern China, 126–27; also compare Askew, "Re-Visiting New Territory," 366 on the 1821 case; also see Waley-Cohen, Sextants of Beijing, 101. Wakeman 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. See Radzinowicz, A History of English Criminal Law, 632–37 (on many nonclergyable capital offenses like grand larceny and burglary, etc.); John M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford: Clarendon Press, 1986), 452–53 (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," see Carol M. Rose, "Canons of Property Talk, or, Blackstone's Anxiety," The Yale Law Journal 108, no. 3 (1998): 601–32. ^225.� This was the case even though Montesquieu criticized China's "despotism." See, e.g., Basil Montagu, ed., The Opinions of Different Authors Upon the Punishment of Death, 2nd ed. (London: Society for the Diffusion of Useful Knowledge, 1816); 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, 573. ^227.� Pieter Spierenburg, The Spectacle of Suffering: Execution and the Evolution of Repression: From a Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984), 190. ^228.� See, e.g., Staunton, Ta Tsing Leu Lee, xxv (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, 575, 579–602. Chinese scholars have argued that imperial Chinese law contained various provisions manifesting the presumption of innocence. See, e.g., Ning Hanling, "On the Presumption of Innocence," Zhongguo Shehui Kexue (Chinese Social Science) 4 (1982): 83–84. ^230.� James Fitzjames Stephen, The History of the Criminal Law of England (London: Macmillan and Co., 1883), 1:297–99; Andrea McKenzie, "'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): 1–43. ^231.� Block and Hostettler, Famous Cases, 34. ^232.� Bruce P. Smith, "The Presumption of Guilt and the English Law of Theft, 1750–1850," Law and History Review 23 (2005): 134–35, 136 (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. See John M. Beattie, "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, 227; John H. Langbein, The Origins of Adversary Criminal Trial (New York: Oxford University Press, 2003), 106–7, 168–77 (also on the restrictions of defense counsels even after 1730); Askew, "Re-Visiting New Territory," 368, n. 23 (noting that "roughly seven out of eight went unrepresented"). ^234.� See, e.g., Sir Samuel Romilly, 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); Basil Montagu, 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). ^235.� Jaow Kwang, "Good Reasons for War!" Niles' Weekly Register 22, no. 569 (1822): 355. ^236.� Liu, The Clash of Empires, 5–30.

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

LI CHEN

I. Historiographic Matters: Colonial Archives and Clash of Sovereign Thinking

Colonial Archives

Clash of Sovereign Thinking

II. The Lady Hughes Dispute in 1784

Comparative Perspectives on the Legal Analysis

Negotiation and Contestation at the Local Level

Delivery and Eventual Execution of the Gunner

III. The Chinese Perspective on the Lady Hughes Case

Priorities of the Local Chinese Officials

Rationale of the Qing Court's Judgment

Different Priorities at the Local and the Central Levels on the British Side

IV. Historical Legacy of the Lady Hughes Case

From the Embassy to the Opium War, 1784 to 1840

Modern Historiography of Sino-Western Relations and Chinese Law

V. Conclusion

Notes