Law as the Decoding Machine and Cultural Translation for Colonial Control: Staunton’s Ta Tsing Leu Lee and Its Historical Legacy

Li Chen, Ph.D. Candidate, Columbia University; J.D., University of Illinois (Champaign)

(All rights reserved by the author. Please contact the author for feedback and for purposes of further circulation via lc2069@columbia.edu)

Introduction

In the prior chapters, I have analyzed how the British (and other Westerners) in South China constructed an extremely influential discourse of Chinese legal corruption and barbarity to justify their criminalities and resistance to Chinese jurisdiction before 1840. Now shifting the focus from the periphery (the colonial frontier) to the center of the empire, this part studies how the translation of the Law Code of the Qing Dynasty (1644-1911) (Daqing Lüli) by Sir George Thomas Staunton (1781-1859), published as Ta Tsing Leu Lee in London in 1810, produced an intimately related but significantly different discourse of Chinese law and society in Western metropolises.1 Relying upon original archives, contemporary periodicals, private diaries and correspondences of Staunton and other relevant leading intellectuals and politicians of the time, this is the most comprehensive study of this canonical text of modern Sinology and its legacy on modern Sino-Western cultural and political relations over the course of two centuries.

I shall now introduce the few arguments that are advanced here. First of all, Staunton’s Ta Tsing Leu Lee – used to refer to the English translation as opposed to the Chinese original or the Qing Code – constituted a watershed in modern Sinology in particular and modern Orientalism in general, not simply because it was the first English translation directly from a Chinese text, but more because it signaled a fresh point of departure for Westerners to decode and essentialize Chinese law and society in a far more professionally “authoritative” and systematic fashion. This new body of knowledge lent Westerners the requisite authority and credibility to classify Chinese law and civilization in a typology and hierarchy determined by Western legal concepts, institutions, historical experiences, and contemporary cultural sensibilities. I investigate the colonial interests and intercultural politics that shaped the origin, production, and reception of Staunton’s undertaking. Instead of a project just to transmit objective knowledge or even to vindicate China against Orientalist prejudices, as some scholars have suggested, Staunton’s Ta Tsing Leu Lee was part and parcel of the larger intellectual enterprise to decipher and domesticate the “inscrutable” “China”/”Orient,” which had become imperative for the further expansion of Western capitalism, Christianity, and colonies in the Asia-Pacific.

Secondly, borrowing insights from recent critical scholarship on translation, I study Staunton’s Ta Tsing Leu Lee as a problematic, a “translingual practice,” which de-contextualized the Qing Code from its indigenous linguistic, cultural, and social milieus, and then re-presented it as a body of essentialist, authoritative knowledge about Chinese and the Chinese for Western inquiry and judgment. I compare Staunton’s translation with the Chinese text, not to evaluate the

1 ? 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), hereafter cited as "Ta Tsing Leu Lee".

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translational quality but to reveal the process by which the translator erased or suppressed the original linguistic and cultural “incommensurability” between the two texts and the two cultures and legal systems at issue. The purportedly “authoritative” knowledge thus created reflected more about the modish cultural/political currents and agendas of the translator’s society as well as the power imbalance between the two cultures concerned in the world order than the realities of Chinese law and society.

I. Colonial Origins of Modern Sinology and Western Knowledge of Chinese Law Sir George Thomas Staunton (1781-1859) was the first Anglo-American who could speak, read and write the Chinese language; he was also the first to directly translate a Chinese document into English which was no less important than the law code governing the largest and one of the few most ancient empires on earth.2 Thanks to this publication, Staunton embarked upon a prominent career as a leading Sinologist and Orientalist (who co-founded the Royal Asiatic Society in London in 1823), a colonial administrator (who was appointed interpreter and later Chief of the East India Company in Canton in 1810s), a diplomat (who was one of the three King’s commissioners leading the Amherst Embassy to China in 1816), and a Member of the British Parliament for three decades (who exerted great influence over Britain’s colonial policy in Asia and was at the forefront in 1840 to urge the British Government to launch into the first Opium War).3

However, Ta Tsing Leu Lee was a personal as well as an international feat. In fact, Staunton well deserved to be respected as the founder of Sinology in the Anglo-American world and one of the progenitors of modern Orientalism in general which as a professional discipline emerged in the late eighteenth and the early nineteenth centuries.4 Ta Tsing Leu Lee was circulated across the world and was translated into French, Italian, and Spanish, and was the only English translation of the imperial Chinese law code for over one and a half centuries.5 As a result, not only would it continue to be a (and often the) most important text for Westerners to know or compare Chinese law, politics, and society for the next two centuries, but it was also used as an indispensable handbook for British colonial administrators or even for American

2 ? Explaining why he commenced his substantive discussions in Philosophy of History with China, Hegel stated that “The Empire of China History has to begin, for it is the oldest, as far as history gives us any information” 1163 ? See more about this below. For such biographic information, see Sidney Lee, ed., Dictionary of National Biography, vol. LIV (New York; London: Macmillan Co., 1898), 115. Staunton lived in China in 1800-1801, 1805-1807, 1810-1811, and 1814.4 ? For the emergence and structures of modern Orientalism (thought in a much broader sense), see Edward Said, Orientalism (New York: Vintage Books, 1994; reprint, 1978), 31-197. 5 ? See the French, Italian, and Spanish (based on the French) translations respectively at George Thomas Staunton, Ta-Tsing-Leu-Lée, Ou Les Lois Fondamentales Du Code Pénal De La Chine, trans. M. F. R. d. Sainte-Croix (Paris: Chez Lenormant, 1812); ibid., Ta-Tsing-Leu-Lee O Sia Leggi Fondamentali Del Codice Penale Della China Stampato E Promulgato a Pekin Coll'autorità Di Tutti Gl'imperatori Ta-Tsing, Della Presente Dinast ia (Milano: Silvestri Giovanni, 1812); ibid., Ta-Tsing-Léu-Lée Ó Las Leyes Fundamentales Del Código Penal De La China, trans. J. d. D. V. y. Brabo (Madrid: Imp. de la Revista de Legislación, 1884). Some of the later French translations of the Vietnamese Code (largely based on the Qing Code) were considered more “accurate” or “complete” but enjoyed far less popularity and intellectual influence than Staunton’s – probably partly because they were technically not translations of the Chinese Code itself (see, e.g., G. Aubaret, Hoang-Viêt-Luât-Le. Code Annamite. Lois Et Règlements Du Royaume D'annam, Trad. Du Chinois, 2 vols. (Paris: Imprimerie Impériale, 1865); P. L. F. Philastre, Le Code Annamite, Nouvelle Traduction Complète (Taipei: Ch'eng-wen Pub. Co., 1967 [1876]; reprint, 2nd (1909)).

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judges in deciding cases involving the Chinese.6 In other words, Staunton’s translation deciphered, interpreted, and re-codified for the whole Western community the presumably unchanging essence and secrets of Chinese law and society, but it also made the “real” China and Chinese civilization less relevant to Western intellectuals and commentators.7

In light of the fundamental importance of this text for modern Sino-Western cultural (and political) relations, it is surprising that so few scholars have ever explored why Staunton committed himself to this project in the first place; even fewer scholars have seriously examined the complex power politics behind Staunton’s undertaking and its historical legacy.8 This chapter thus attempts to formulate what may be called an “effective history” of this text to recover its historicity (as opposed to historicism).9 That requires us to critically investigate how and why this text was translated, and how and for what it was deployed. A probably more important purpose is to see how such translation, through “technologies of colonial power,” created and validated certain representations as knowledge and realities of Chinese law and society, which in turn endorsed and constituted the “founding concepts” of modern Western subjectivity and Western episteme of China and the Orient.10

Staunton’s undertaking in this regard reveals the deep complicity between early modern Oriental knowledge and institutions of power. While trying to make it sound “accidental,” Staunton himself acknowledged the political agenda behind this translation project. In the

6 ? This will be further discussed. For some later examples which relied upon this work for comparative framework, see Edward Westermarck, The Origin and Development of the Moral Ideas, 2 vols., vol. 1 (New York, London: The Macmillan and Co., 1906), (citing Staunton's translation extensively throughout this work); Stephen Haley Allen, The Evolution of Governments and Laws: Exhibiting the Governmental Structure of Ancient and Modern States (Princeton, NJ: Princeton University Press, 1916), 201-50 (on China) and 1081-114 (reprinted most of the Chinese statutes in Staunton's translation). For colonial use of this work, see A Catalogue of the Library of the Hon. East-India Company: Supplement by India Office Library, (London: The East India Company, 1845); John Francis Davis, Chinese Miscellanies: A Collection of Essays and Notes (London: John Murray, 1865), 51 (using this translation to govern Hong Kong's Chinese population). For a usage by the U.S. Supreme Court, see U.S. V. Wong Kim Ark, 169 U.S. 649, footnote 2 (citing pages 255 and 272 of Staunton's translation as the only one available) (1889).7 ? As Edward Said put it provocatively, “In time, the Orient as such became less important than what the Orientalist made of it…, the Orientalist’s Orient was thereafter reluctant to emerge into reality.” Said, 127-128 (referring to an earlier founder of modern Orientalism, Silvestre de Sacy, who established the Société asiatique in Paris in 1822). 8 ? The exceptions were the two recent journal articles respectively by James André and Glenn Timmermans. While benefiting from both pieces, this chapter challenges some of their conclusions and arguments while providing far more evidence and more nuanced and critical understanding of the role of Staunton and his translation in Sino-Western relations. The differences will become evident soon, but especially see James St. André, "'but Do They Have a Notion of Justice?' Staunton's 1810 Translation of the Great Qing Code," Translator 10, no. 1 (2004): 2, 27-28; Glenn Henry Timmermans, "Sir George Thomas Staunton and the Translation of the Qing Legal Code ," Chinese Cross Currents II, no. 1 (2005): 56.9 ? Friedrich Wilhelm Nietzsche, The Use and Abuse of History, trans. Adrian Collins (Indianapolis: Bobbs-Merrill, 1957), 2d ed.; Hans-Georg Gadamer, Truth and Method, trans. Garret Barden and John Cumming (1975; reprint, New York: Cross-road, 1985); Foucault, “Nietzsche, Genealogy, History,” in Language, Counter-Memory, Practice, ed., Donald Bouchard (Ithaca, N.Y.: Cornell University Press, 1977), 156 (noting that “effective history affirms knowledge as perspective” or some radical kind of “presentism” to work from). See Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, 2000), 7-8 (critiquing historicism).10 ? See Homi Bhabha, “Signs Taken for Wonders: Questions of Ambivalence and Authority under a Tree Outside Delhi, May 1817,” Critical Inquiry 12, no. 1 (Autumn 1985), 144-65; Tejaswini Niranjana, Siting Translation: History, Post-Structuralism, and the Colonial Context (Berkeley: University of California Press, 1992), 35-37 (explaining "effective history," "historicity" and "historicism" in a similar context)

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preface to Ta Tsing Leu Lee, the translator declared that this subject “first occupied his attention in consequence of his having been personally a witness to many of the unnecessary provocations, groundless apprehensions, and embarrassing discussions, of which, since the first commencement of our [British] present important commercial and national intercourse with the people of China, false or imperfect notions of the spirit of their laws have been, but too often, the occasion.”11 As we will see below, his translation was deliberately designed to decode Chinese law and government for Oriental knowledge and imperial expansion at a time when the “China trade” had become “very essentially contributive to [Britain’s] national prosperity.”12

Staunton was no stranger to the imperial enterprise of Britain. His father, Sir George Leonard Staunton (1737-1801) was a veteran in Britain’s colonial administration in the “West Indies” and then in British India, working with George Macartney (1737-1806), during the 1770s and 1780s. When Lord Macartney, a former governor of Madras in India, was appointed ambassador of the first British embassy to China in 1792, he chose Staunton senior as his secretary (second in command).13 Long lauded as a landmark event in modern Sino-Western relations, the Macartney Embassy (1792-94) failed to achieve most of its proclaimed purposes – demanding extraterritorial privileges and more extensive trade and diplomatic relations with China in such terms as were set by the British. Many scholars have studied the causes and repercussions of this ill-fated diplomatic mission, but there has been inadequate attention paid to how it ushered a new era for Oriental scholarship.14

If the Napoleonic invasion of Egypt in 1798-1801 – with the consequent production of knowledge about Egypt and later about other Islamic societies – was “a sort of first enabling experience for modern Orientalism,” as Edward Said has famously argued, it might not be completely coincidental that modern Sinology in Britain (we may hypothesize in the West in general) took off around the same time, as a result of combined material and intellectual interests.15 The Macartney mission further enhanced the preexisting Western intellectual and commercial interest in China that grew notably from the early eighteenth century on and had motivated the Macartney Embassy in the first place.16 Even its “failure” convinced many Britons 11 ? Ta Tsing Leu Lee, xxxiii, and vii. 12 ? He was seriously understating the situation when he described “the choice of his subject [for this translation]” as “originally influenced by circumstances, in some degree accidental.” Ta Tsing Leu Lee, xxxiii (emphasis added), and vii. 13 ? See Lee, ed., 114-115 (for all the biographical details here). Also see George Thomas Staunton, Memoirs of the Chief Incidents of the Public Life of Sir George Thomas Staunton (London: L. Booth, 1856), 37-39.14 ? For recent works on this embassy, see Aubrey Singer, The Lion and the Dragon: The Story of the First British Embassy to the Court of the Emperor Qianlong in Peking, 1792-94 (London: Barrie & Jenkins, 1992); Robert A. Bickers, ed., Ritual and Diplomacy: The Macartney Mission to China, 1792-1794 (The British association for Chinese studies, 1993); Alain Peyrefitte, The Collision of Two Civilisations: The British Expedition to China in 1792-4, trans. J. Rothschild (London: Harvill, 1993), (reflecting the typical traditional perspective); James L. Hevia , Cherishing Men from Afar: Qing Guest Ritual and the Macartney Embassy of 1793 (Durham, NC: Duke University Press, 1995), (providing a stimulating cultural history perspective). Also see the previous part of this study on the original motives of this Embassy. The Embassy’s historiographic significance has hardly disappeared, see Xiaoqing Ye, "Ascendant Peace in the Four Seas: Tributary Drama and the Macartney Mission of 1793," Late Imperial China 26, no. 2 (2005); Maxine Berg, "Britain, Industry and Perceptions of China: Matthew Boulton, "Useful Knowledge" And the Macartney Embassy to China 1792-4," Journal of global history 1 (2006).15 ? Said, 122, also 42-43, 81-87, 116-122 (for the structures). 16 ? This Embassy sailed from Portsmouth on Sept. 26, 1792 and arrived at Chusan on July 3, 1793, and arrived in London in on Sept. 5 (or 6th), 1794 (see Hosea Ballou Morse, ed., The Chronicles of the British East India Company Trading to China, 1635-1834, 5 vols. (Oxford: Clarendon Press, 1926-1929), II, 224 (hereinafter, cited as "Morse, volume: page number). Also see Staunton, Memoirs, 11. Reports in the London Times witnessed the surge of interest in China around the time of the Embassy, see, e.g., “Emperor of China, the British Embassy,” May 1, 1793, 3C;

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that more and better knowledge about China and the Asia-Pacific was essential to maintain and further expand British interests in that region.17

In 1797, Staunton senior published an enormously popular narrative of the Macartney Embassy, entitled Authentic Account of an Embassy from the King of Great Britain to the Emperor of China. Dotted with some presumably first-hand observations, this publication provided an updated, “official” British overview of Chinese government, society, and culture that was believed to be more reliable than previous French works derived from Jesuit missionaries.18 This work also witnessed a transitional stage to a negative assessment of China from a more appreciative attitude towards China and Chinese civilization among such Enlightenment thinkers like Leibniz and Voltaire.19 If the transition was still gradual and subtle in Staunton’s work, John Barrow (1764-1848), who accompanied Lord Macartney on the same mission through Staunton’s reference, voiced a more radical intellectual tendency to deprive China of her claims to civilization. In his 1804 Travels in China, purportedly writing from his first-hand experience in the mission, Barrow claimed in the subtitle of this volume to ascertain the “rank” of “this extraordinary empire … in the scale of civilized nations.” Belittling almost every achievement of the Chinese in a fashion that was admitted to be “so very different from the almost universally received opinion,” Barrow unsurprisingly came to the “unbiased” conclusion that China was little better than a semi-civilized society.20 With these two works to remain among the most popular accounts of China for decades, Britain started to claim what was

“Embassy to China,” July 29, 1794, 3D; “Lord Macartney's Mission to China,” July 31, 1794, 2C; “List of Goods for the Emperor China,” August 7, 1794, 4A; “Lord Macartney's Mission to China,” August 9, 1794, 3B; “Account of China,” April 10, 1795, 3C; “Extract from the Pekin Gazette Respecting the Arrival of Lord Macartney,” August 6, 1795, 4A; “Sir Geo. Staunton's Description of China,” August 21, 1797, 4A; “Sir Geo. Staunton's Description of China,” September 8, 1797 3C; “Account of the City of Pekin,” October 6, 1797 3C; “Insurrection in China,” October 28, 1797 3A, etc. Also see the very popular accounts of this Embassy cited below. 17 ? Davis, 50-51. Barrow also observed about the Embassy that its “intercourse and communications were committed to the timidity and ignorance of two native Chinese missionaries, who had been educated in the College de Propaganda Fide” at Rome (quoted in ibid., 50). See Blackwood’s Edinburgh Magazine (1868), 732. 18 ? George Leonard Staunton, Authentic Account of an Embassy from the King of Great Britain to the Emperor of China, 3 vols. (London: G. Nicol, 1797), esp. II: 490-96 (on Chinese law, which will be discussed in the next chapter). Based on the official portfolio collected by the British Embassy, this work went through different reprints, editions and languages; it served as a standard text on China in Euro-America for half a century. Du Halde’s encyclopedic volumes, written in French in 1735 and translated into English the next year, served as the most authoritative reading on China for almost a century. When writing arguably the fist modern “systematic” book on Chinese history and society in 1836, John Davis explicitly claimed to model after but also replace these above-mentioned two works. His book then became the standard reading, together with Williams’ The Middle Kingdom, throughout the nineteenth century. See Jean Baptiste Du Halde, The General History of China: Containing a Geographical, Historical, Chronological, Political and Physical Description of the Empire of China, Chinese-Tartary, Corea and Thibet, trans. R. Brookes, 4 vols. (London: J. Watts, 1736); John Francis Davis , The Chinese: A General Description of the Empire of China and Its Inhabitants, 2 vols., vol. 1 (London: Charles Knight & Co., 1836); Samuel Wells Williams, The Middle Kingdom: A Survey of the Chinese Empire and Its Inhabitants, vol. 2 (New York: Wiley & Putnam, 1848).19 ? For more about this transition, see the next chapter and Michael Adas, Machines as the Measure of Men (Ithaca, NY: Cornell University Press, 1989); Jonathan D. Spence, The Chan's Great Continent (New York: W. W. Norton & Co., 1998). 20 ? John Barrow, Travels in China: Containing Descriptions, Observations, and Comparisons, Made and Collected in the Course of a Short Residence at the Imperial Palace of Yuen-Min-Yuen, and on a Subsequent Journey through the Country from Pekin to Canton, in Which It Is Attempted to Appreciate the Rank That This Extraordinary Empire May Be Considered to Hold in the Scale of Civilized Nations (London: T. Cadell and W. Davis, 1804), see the advertisement for the quote. Also see Francis Jeffrey, "Review of John Barrow's Travels in China (London, 1804)," The Edinburgh Review 5, no. 10 (1805).

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considered her “due” share of Oriental scholarship on China.21

It was true that Authentic Account was instrumental for the penetration of Britain’s commercial and political in China, but George Thomas Staunton was also right when he noted in 1856 that his father would “probably be better known to posterity as the historian of the First British Embassy to China, than as the negotiator of the treaty with Tippoo Sultan [in 1784], although that treaty gave peace to India, and earned for him a Baronetcy.”22 It was Oriental scholarship, instead of colonial services, that was more likely to earn someone undying fame in history in this period. Staunton junior himself undoubtedly had long realized this by 1856; he certainly also knew similarly situated leading Orientalist scholars like William Jones, Henry Colebrooke, James Mill, John Stuart Mill, and Henry Maine, whose intellectual reputation long outlived and outshined their success as colonial administrators, although the latter pursuit was either a prerequisite or the greatest driving force for the former.23 This maxim proved equally true in the case of John Barrow, who became a senior colonial administrator and later Second Secretary to the Admiralty for four decades, today still remains as an influential intellectual figure for his travel writings and hundreds of articles he wrote for the leading Tory journal – the Quarterly Review – which indexed the intellectual reconfiguration of China and other non-Western societies on the British imperial agenda.24

Like his father and Barrow, George Thomas Staunton also started his lifetime association with China through the Macartney mission. He studied Chinese under two Catholic Chinese priests from Naples for a few months in anticipation of the mission. During the year-long voyage to China as the Ambassador’s page boy, Staunton, at the age of eleven, became conversant enough to be the only Briton to speak to Emperor Qianlong in the “native” language in 1793. The aged emperor reportedly was so impressed that he honored Staunton with his embroidered silk purse as a personal gift.25 During the course of the mission, Staunton acquired such “uncommon facility” to write Chinese characters that it was him who transcribed or composed all the diplomatic correspondences in Chinese for the British mission after the Chinese writers feared being involved in some potentially offensive documents.26 Thus, the twelve-year old Staunton became the “first Englishman, or Briton, to be reasonably conversant in both written and spoken Chinese.”27 In this sense, the “mastery” of the Chinese language by one of its

21 ? Davis wrote in 1836 still claimed that no works had superseded the accounts of Staunton senior and Barrow (John Francis Davis, The Chinese: A General Description of the Empire of China and Its Inhabitants, 2 vols., vol. 1 (London: Charles Knight & Co., 1836), 2). 22 ? Staunton, Memoirs, 9-10. For a specific instance in which the EIC’s Court of Directors cited Authentic Account to instruct their agents to press for policy changes in China for greater profits, see Paragraph 77 in a letter of the Ct. of Directs (dated April 20 th, 1798), quoted in EIC Factory Records (Reel 24), IOR/G/12/131: Consultations, Aug. 6th, 1800 (Para. 15). 23 ? See discussions below.24 ? For Barrow’s travel writings and role in British colonialism, see Mary Louise Pratt, Imperial Eyes: Travel Writing and Transculturation (New York: Routledge, 1992). 10-11, 3025 ? The two Chinese were from the College of Propaganda (Collegium Sinicum) – Fathers Paulus Zhou ( b. 1750) and Jacobus Li (b. 1750 and known as Mr. Plumb). See George Thomas Staunton, Memoirs of the Chief Incidents of the Public Life of Sir George Thomas Staunton (London: L. Booth, 1856), 10-11; Glenn Henry Timmermans, "Sir George Thomas Staunton and the Translation of the Qing Legal Code," Chinese Cross Currents II, no. 1 (2005): 30. About the purse, see Staunton, Authentic Account of an Embassy, II: 235.26 ? George Macartney, Memoir and Journal of Lord Macartney (London: 1807), II: 501 (quoted in Staunton, Memoirs, 15). See Staunton's Authentic Account II: 142, and 235 (for his role in the mission); John Barrow, "[Review of] Ta Tsing Leu Lee," The Quarterly Review 3, no. 6 (1810): 277 (noting that Staunton brought back some "Chinese attendants").27 ? Timmermans: 30. Timmermans set Staunton’s age to twelve while Staunton senior set it to thirteen at this time

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members seemed to partially offset the “humiliation” and “failure” of Britain’s first mission to China. But this was not just a matter of symbolic importance. As Staunton put it in retrospect, his Sinological expertise “proved the primary source of whatever reputation in the world, literary or political, it has been [his] fortune to acquire.”28 His personal fortune then epitomized that of Britain in relation to Sinology in the next century.29

On January 22, 1800, Staunton arrived at Canton with the Hindostan Indiaman as a “writer” for the British East India Company (“EIC”), which was “considered a certain and rapid road to fortune” and generally reserved for sons of the EIC’s Directors.30 Staunton was offered this envied opportunity “on the score of [his] knowledge of the Chinese language,” with regard to which “at that time, [he] stood absolutely alone, without a rival!”31 It was not long before Staunton’s language skills allowed him to help the British representatives turn over a new leaf in their relationship with the Chinese Government. On February 11, 1800, a homicide was committed by the British from a schooner the Providence that was then illegally anchoring at Whampoa; the Providence was a scout and tender to the 54-guns British warship, His Majesty’s Madras, under the command of Senior Captain John Dilkes of the British Royal Navy. A British officer fired a gunshot through a Chinese boatman while causing another to get drowned merely because of a suspicion (with no “positive evidence”) that the Chinese came to cut the anchoring cable of the British vessel.32 Given the totality of the circumstances, as the prior chapter has explained, this was a case of intentional killing or murder under Chinese law; even the British Vice-Admiral privately admitted that “it would be doubtful whether the Seaman would have been acquitted had he been tried by an English Jury” under English law.33 However, the British offenders escaped any Chinese punishment.

On the one hand, the outcome was attributable to the increasing power imbalance between China and Britain. Britain’s rise to global dominance, manifested by her more and more threatening military and commercial presence in the Asia Pacific since the late eighteenth century, emboldened British agents to take a more aggressive approach to the “local” authorities they encountered. Captain Dilkes, with his “sailor-like bluntness” and sense of cultural/military superiority, refused to deliver the suspects, denied the EIC’s management any authority to

(Staunton, Authentic Account of an Embassy, II: 235). As Timmermans noted, no one in the EIC’s employ could speak and write Chinese before this (Timmermans, 30). See Susan Reed Stifler, "The Language Students of the East India Company’s Canton Factory," Journal of North China Royal Asiatic Society 69 (1938); J. L. Cranmer-Byng, "The First English Sinologist - Sir George Staunton and the Reverend Robert Morrison," in Symposium on Historical, Archaeological and Linguistic Studies on Southern China, South-East Asia and the Hong Kong Region, ed. E. C. Drake (Hong Kong: Hong Kong University Press, 1967); Kingsley Bolton , Chinese Englishness: A Sociolinguistic History (New York: Cambridge University Press, 2003), esp. Chapter 3. 28 ? Staunton, Memoirs, 9.29 ? A leading reviewer claimed that Staunton’s Sinology the “highest claim on the applause of his country” ("[Review of] Ta Tsing Leu Lee," The Monthly Review; Or Literary Journal 64 (1811): 113). 30 ? Davis, Chinese Miscellanies, 51. Also Staunton, Memoirs, 26 (calling a "writership to China ... the most valuable portion of East Indian patronage"). Davis’s own success also exemplified the great potential of a writership in the EIC in Canton. For Staunton’s arrival date, see "East India Company's Factory Records," (London: British Library, 1800-1801), January 22, 1800 (in Reel 24: IOR/G/12/128). 31 ? Staunton did not sail from England for China until July 18, 1799, though he got the appointment on April 10 th, 1798 (Staunton, Memoirs, 17, 22). 32 ? For all the details discussed here, see "East India Company's Factory Records," Feb. 13 - March 22, 1800 (in IOR/G/12/128/ Consultations (1800)). Also see Morse, II: 334-41. Even the British representatives admitted privately that there was only suspicious but “no positive” evidence to prove the Chinese “theft” and that the British soldiers took “sweet potatoes” from the Chinese boat, which suggested “inconsistency” in the British story. Even assuming that the Chinese attempted to cut the cable, the British exceeded the legal boundary by shooting them. 33 ? Morse, II: 368 (for the quotation).

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interfere, and threatened to “rest the disputes between the King of England and the Emperor of China” either by force or by deciding this case in his own way.34 On the other, the British agents were fully aware that they were not authorized to launch a war against China and that the China trade was vital to the EIC and the British Empire. Therefore, how to coerce the Chinese into submission without risking a real war became a subtle play of power and art of diplomacy. That was where Staunton’s linguistic capabilities came into play.

Before this time, the official communications between the Chinese authorities and the foreign representatives were normally through the Chinese Hong [Hang] Merchants, sometimes assisted by designated Chinese linguists, although the Hong Merchants often acted as interpreters as well. It had long been suspected among the British that these “native” intermediaries and/or linguists failed to represent the British “sentiments” faithfully to the Chinese Government because they were afraid of being punished either for delivering an obviously offensive message or for negligence in preventing such disputes or complaints in the first place. In the Providence case, Staunton thus enabled the British agents to communicate directly with the Chinese provincial authorities without suffering the suspected mistranslation or distortion by the intermediary “native” linguists. But more importantly, it was the first time in Sino-Western relations over the course of two centuries that a British officer – Captain Dilkes in this case – was capable of venturing to usurp the Chinese judicial sovereignty over legal disputes involving Chinese victims in a Chinese tribunal. Through Staunton’s translation and interpretation, the EIC’s Select Committee and Captain Dilkes compelled the Chinese Governor-General to agree to let a Provincial Judge (anchasi), instead of a county magistrate, hear Dilkes’ counter-accusation against the Chinese victims for the alleged theft before any judicial investigation could be conducted on the homicide(s) per se. Furthermore, Dilkes not only imposed his presence in the Chinese judicial hearing as a precondition of presenting British witnesses/suspects but in the middle of the hearing, started to interrogate the witnesses by himself according to English procedures.35 All this was admitted by both the British and the Chinese to be unprecedented and against the established Chinese laws and customs. This attempt at a “joint” trial set up a precedent for the British and the Americans in later disputes such as the 1807 Neptune and the 1821 Emily cases; it also anticipated the regime of the Mixed Court in Shanghai half a century later.36 Unable to secure the custody of the perpetrators and without effective power and/or will to enforce the law against the militant British agents, the local Chinese officials later dropped all charges against the British offenders on technical grounds while sending an apology to Captain Dilkes for the “incivility” he claimed to have suffered at the Chinese tribunal.37 According to Hosea Morse who in 1926-29 chronicled the EIC’s history,

34 ? Morse, II: 336-37 (for the quotation), and 331-332 (for more British Naval warships arriving in the China Sea around 1800). For Britain’s gunboat diplomacy and rise to overseas dominance, see Ronald Hyam, Britain's Imperial Century 1815-1914: A Study of Empire and Expansion (London: Macmillan, 1976), 15-21. 35 ? Refusing to turn over any British suspects without his own presence, Dilkes brought Staunton and two British witnesses to the Chinese tribunal. During the hearing, Dilkes offered the alleged testimonies of his own soldiers as binding evidence while the Chinese Judge stated that such verbal testimonies, even on oath, were not in themselves conclusive. Frustrated, Dilkes then interrupted the hearing by insisting upon himself interrogating the witnesses. The Judge was so angry as to order the British to be removed from the tribunal, but he reportedly later apologized in writing to Dilkes for the “incivility” to the latter and for not knowing his official status. This thus ended the hearing. 36 ? Morse, II: 338 (for the term “joint” trial); For the Mixed Court in Shanghai, see, e.g., A. M. Kotenev, Shanghai: Its Mixed Court and Council (Shanghai: North China Daily News, 1925). See the prior chapters on these later cases where the British and the American respectively demanded to conduct the hearing in the presence of the Western officers and outside the Chinese tribunal (either in/near the British factory or on the American ship). 37 ? He was removed from the court after he insisted upon interrogating the witnesses.

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“[n]othing could have been handsomer than this settlement of what might have become a second Lady Hughes case.”38

Just as in the 1793 Macartney Embassy and in later cases, the linguistic capability to decipher the Chinese communications and to effectively convey to the Chinese the British sentiments and the dire consequences of ignoring them was deemed a key to whatever success the British secured. In Staunton’s words, “The advantage of possessing, under such circumstances, a confidential interpreter within our own English circle, instead of exclusively confiding, as heretofore, in native linguists, who might be corrupted or intimidated, was at once fully appreciated” by the EIC authorities.39 Staunton’s own observations or minutes essentially constituted the official records for the British on the proceedings of this case; at the end of this case, even the Chinese authorities asked him to translate some English documents into Chinese for them.40 The EIC’s representatives in China later repeatedly commended Staunton for his rapid progress in Chinese and for his important role in protecting the British interests in China. For instance, on May 26, 1800, when briefing the EIC’s Court of Directors in London about the Providence case, the Select Committee wrote:

“We cannot dismiss this subject without conveying our testimony & Satisfaction at the attention Mr. Staunton pays to his improvement in the language of the Country, nor contemplated but with pleasure the use he has, and may hereafter be of in any negotiations with the Chinese Government; in proof of which we need only observe that, at the last conference, on the 9 th of April, the Mandarine was not desirous that any Hong Merchant should attend. We understand likewise that he has some prospect of obtaining a Copy of the famous Chinese Code, so highly extolled in the French work, ‘Mémoires sur les Chinois,’ in which case, perhaps the honour is reserved for him supplying in time several desiderata in literature.”41

These remarks were prophetic. Staunton set out to earn the honor for himself and for his country as a leading Orientalist in the nineteenth century and as the first Westerner to render the “famous” Chinese law code completely open to Western gaze and scrutiny. As discussed below, in the preface to Ta Tsing Leu Lee in 1810, Staunton did cite French works like Memoires sur les Chinois as a foil to his own work.

The forgoing important passage was also quoted by Staunton in his Memoirs in 1856 as a testimony to the appreciation of the EIC’s management of his Sinology, but it left out not just the role of Staunton and his countrymen in obstructing Chinese justice in the Providence case but also the details about why he decided to translate the Chinese law code. The EIC’s archives provide the clues. Upon the close of the Providence case, Mr. Hall, President of the Select Committee, expressed to the Chinese Governor-General “the grateful sense he entertained of the partiality shewn by the [latter] to his countrymen” while requesting “a Copy of the Chinese printed Laws for their information and obedience” on the grounds that “the English being unacquainted with the Laws and Customs of China, were continually liable to involuntary infringements of them.”42 As shown in this and previous chapters, the alleged ignorance of Chinese law could not explain why the British committed murder, reckless violence, piracies, smuggling, or obstruction of Chinese justice, any of which acts was seriously or capitally punishable under all contemporary legal systems; it was also a Western maxim that “ignorance 38 ? Morse, II: 342. For the 1784 Lady Hughes case, see prior chapters. 39 ? Staunton, Memoirs, 27 (emphasis added). 40 ? Staunton signed or provided the most essential documents on this case, see, e.g., "East India Company's Factory Records," for records (dated Feb. 27, March 13, 22, 23, and April 7, 1800) of important conferences or Chinese trial), and April 4 for the Chinese request. 41 ? Ibid., IOR/G/12/131/Consultations: 28 (May 26, 1800, in Letter to the Court of Directors, Para.59). 42 ? "East India Company's Factory Records," Consultations dated March 22, 1800; Staunton, Memoirs, 28. Emphasis added. Also quoted in Morse, II: 342.

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of the laws is no excuse” for breaking the law.43 According to the EIC’s records, Hall (being a lawyer himself) and his colleagues in the Providence case had such acquaintance with the operation of Chinese criminal law that they effectively advised Captain Dilkes to evade legal responsibility.44 In fact, their “extreme satisfaction” with the “happy” outcome and the Chinese “lenity in the highest degree” in this case, in sharp contrast with the 1784 Lady Hughes case, led Staunton and his superiors to believe the crucial importance of studying Chinese law.45

Although the EIC’s agents refused to admit that the request for a copy of the Chinese law code proceeded from “an improper motive or curiosity into the Political Institutions of China,” the Chinese authorities seemed to have exactly that suspicion. The Governor-General approved of the British “motives” to acquaint themselves with Chinese law for better obedience but declined to satisfy the request. One explanation he gave was that the Code “was extremely voluminous as well as multifarious in its contents [that] the Europeans would scarcely be able to derive from it precise information on the points in which they were concerned.” This sounded legitimate enough and was born out by Staunton’s testimonies in his preface to Ta Tsing Leu Lee in 1810. However, the Governor-General further added that the Qing Code “being of a public nature could not with propriety be granted to the inspection of Foreigners without the express permission of the Emperor.” In consequence, he “thought it more expedient that the Articles in which the Europeans were supposed to be most interested should be selected and printed apart for their information.” 46

Underlying these exchanges, nevertheless, was a constant battle between the Chinese and Western agents for control over what intelligence about China and Chinese Government should be communicated to the latter and in what manner. On the one hand, the British had been engaged in this struggle ever since they started trading with China in 1637. They asserted that the “mysteries” of the Chinese polity were the scourge of all the Chinese “chicanery” and “arbitrariness.” 47 On the other, the Chinese authorities were equally committed to frustrating such attempts under the assumption that keeping certain “state” matters confidential was in China’s interest as well as conducive for better regulation of Westerners. With respect to their “desire…to procure teachers qualified to instruct them in the Chinese Language,” the British were likewise told that “it was virtually forbidden in the regulation” to allow the requested Chinese tutors “to hold any intercourse with Europeans.”48 In other words, only the Chinese linguists were authorized to take care of the communications concerning all the Sino-Western trade. This prohibition, however, was soon made dead letter by Staunton, Reverend Robert Morrison and their successors who hired Chinese to teach them the language and print Chinese

43 ? See the first chapter. For the maxim that ignorance of law was not an excuse, see, e.g., Sir William Blackstone, Commentaries on the Laws of England, 13 ed., 4 vols., vol. 4 (London: T. Cadell Jun. & W. Davis 1800), 26-27. Cf. a modern revisionist view at Paul Matthew, "Ignorance of Laws Is No Excuse? ," Legal Studies, no. 3 (1983).44 ? See, e.g., "East India Company's Factory Records," Consultations, dated March 11, 1800. 45 ? Ibid., Consultations, dated March 13, 1800. 46 ? Ibid., Consultations, dated April 7, 1800. Morse, II: 342-343. 47 ? For the linguistic battles in this period, see Morse, I: 277-79 (on James Flint in the mid-18th century); II:209 (1793) (noting that the EIC agents found a Chinese to teach Travers, Pattle, and Roberts, but they did not appear very successful in mastering the language). For the Chinese sentencing of Flint (who reportedly spoke “a little mandarine” but could not write Chinese) to a three-year imprisonment in 1759, see Lo-shu Fu, A Documentary Chronicle of Sino-Western Relations (1644-1820) (Tucson: The University of Arizona Press, 1966), I: 215-16, 222-23 and 227. For recent discussions on later periods, see James Hevia, "An Imperial Normad and the Great Game: Thomas Francis Wade in China," Late Imperial China 16, no. 2 (1995).48 ? "East India Company's Factory Records," Consultations, dated April 9, 1800.Morse, II, 343.

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works.49 The Chinese language, together with Chinese law, society and culture, would be “thrown open” by the British to the whole world, just as the Chinese Empire would since 1842.

On April 7, 1800, as promised, a hundred copies of the extracts from the Qing Code were provided for the British and other Westerners in Canton by the Governor-General, which were apparently an ad hoc compilation of the statutory provisions that were most frequently implicated in prior Sino-Western legal disputes. Still not totally confident about translating the Chinese legal terminology independently, Staunton did not turn in the English translation until May 14th after having consulted “some intelligent Chinese on the Subject” to ensure the “greatest accuracy.” The following seems to be the first English translation of any (approximate) portion of the Chinese law code:

“Copy of a translation of extracts from the Chinese criminal code of laws Transmitted to the president of the select committee, by the viceroy of Canton, in April 18001st Article. A Man who kills another on the suspicion of Theft, shall be strangled according to the Law against Homicide committed in an Affray.”2. A Man who fires at another with a Musket and kills him thereby, shall be beheaded as in cases of willful Murder; if the sufferer is wounded (but not mortally) the Offender shall be sent into Exile.3. A Man who puts to death a Criminal who had been apprehended and made no resistance, shall be strangled according to the Law against Homicide committed in an Affray. 4. A Man who falsely accuses another innocent person of Theft (in cases of greatest criminality) is guilty of a capital Offence; in all other cases the Offenders whether principals or accessories shall be sent into Exile.5. A man who wounds another unintentionally shall be tried according to the Law respecting Blows given in an Affray, and the Punishment rendered more or less severe according to the degree of Injury sustained.6. A Man who intoxicated with Liquor commits outrages against the Laws, shall be exiled to a desert Country, there to remain in a state of Servitude. The foregoing are Articles of the Laws of the Empire of China according to which Judgment is passed on persons offending against them, without allowing of any Compromise or Extenuation.”50

Except for Item 5, all the enumerated scenarios required serious punishments no less than labor servitude. It was also unequivocally declared that all such punishments were passed “according to…the Laws of the Empire of China” – instead of any European law, as Captain Dilkes demanded in 1800 – and that no allowance “of any compromise or extenuation” should be expected. This version of Chinese law seemed to be the only one officially distributed by the Chinese Government among Westerners. Thanks to the global informational network of Western empires and “free trade” based on such modern mass media as the periphery-originated Indian Gazette and the metropole-based (London) Times, Staunton’s English translation was distributed widely among Euro-American societies from 1801 on.51 Being reissued a couple of times over the next three decades, this essentialist representation of Chinese law, with all its draconian appearance (in substantial discrepancy with actual Chinese judicial practices), was clearly intended by the local Chinese authorities to exhort foreigners to respect or at least fear Chinese

49 ?Ibid., Consultations, dated Aug. 6, 1800 (noting that Staunton had already got a "perfectly competent" Chinese tutor in Macao at the EIC's expenses). Also see, e.g., William Milne, A Retrospect of the First Ten Years of the Protestant Mission to China (Malacca: The Anglo-Chinese Press, 1820); Eliza A. Morrison, Memoirs of the Life and Labours of Robert Morrison 2vols., vol. 2 (London: Longman, Orme, Brown, and Longmans, 1839). 50 ? "East India Company's Factory Records," Consultations, dated April 7 (for the delivery of the extracts), April 9 (for Staunton's delay in translation), and May 14 (for the translation). Emphasis added. The translation was also reprinted in Morse, II: 343 (1800). The first sentence (i.e., the title) was from a contemporary newspaper 51 ? "From the Indian Gazette [Translation of Chinese Legal Extracts]," The Providence Gazette, June 6, 1801. For its wider circulation, see the few notes immediately below. Also reprinted in Barrow, 369.

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law and sovereignty.52 At a time when the increasing asymmetry of power – military, technological, and commercial – between China and Western empires posed more and more imminent and concrete dangers to the local enforcement of law and order in South China, such strategic display of (exaggerated) terror often seemed to be the only thing at the local authorities’ disposal to make the best of the situation. According to some commentators in the 1830s and the 1840s, the same mentality also explained why some local Chinese officials allegedly acquiesced in or encouraged the exportation of the horrifying and mostly imaginary watercolor paintings of Chinese punishments from the late eighteenth century on.53 As analyzed in the part of this project, the Chinese authorities failed to anticipate that global circulation of these extracts, just like the watercolor paintings in the Punishments of China (1801) and its progeny, were taken as reliable evidence to condemn the whole Chinese legal system as too harsh, cruel, and barbarous to deserve Western respect.54 As an American wrote the editor of the Boston-based Columbia Centinel in April 1817: “A Copy of the translation of extracts from the Chinese Criminal Code of Laws (which are circulated among the Americans and English at Canton, & c.) has lately fallen in my hands, and as it may afford some information respecting the customs of that remote and apparently benighted nation, you are requested to give them a place.” This article was then reprinted across the United States through media outlets in Portsmouth (NH), Boston (MA), New York (NY), Philadelphia (PA), Baltimore (MD), Alexandria (VA), Chillicothe (OH).55

Ironically, the EIC’s agents immediately realized that these extracts were at least “partially selected … for the purpose of exciting the utmost Caution in Europeans;” while the Chinese officials might thought the extracts sufficient to instill among Westerners terror and respect of Chinese law, the British naturally found them “too concise and general” and too “small” a portion of Chinese law for their purpose of decoding the Chinese legal system to their

52 ? See, e.g., "From the Indian Gazette [Translation of Chinese Legal Extracts]." Also "Translations of Extracts from the Chinese Criminal Code of Laws," Columbian Centinel, April 12 1817. As late as 1823, a New York periodical still printed a copy of these extracts as news items. "China - Copy of a Translation of Extracts from the Chinese Criminal Code of Laws," The New York Mirror: a Weekly Gazette of Literature and the Fine Ar ts 3, no. 2 (1823).53 ? See, e.g., Charles Toogood Downing, The Fan-Qui in China, in 1836-7, 3 vols., vol. 2 (London: Henry Colburn, Publisher, 1838), II: 258-59; George [Old Humphrey] Mogridge, The Celestial Empire, or Points and Pickings of Information About China and the Chinese (London: Grant and Griffith, 1844). Also see later chapters of this study on discourse of Chinese punishments. 54 ? The next part focuses on the global discourse on Chinese “legal cruelty.” Staunton’s translation of these extracts, in global circulation, greatly contributed to the imagery of draconian Chinese law among Westerners, which might partly explain why Major Mason published his watercolor paintings on Chinese punishments in 1801, and why Rev. Robert Morrison and others were so fond of Chinese punishments. See George Henry Mason, The Punishments of China: Illustrated by Twenty-Two Engravings: With Explanations in English and French (London: W. Miller by W. Bulmer, 1801). For its immediate reception, see, e.g., "Review: The Punishments of China: Illustrated by Twenty-Two Engravings: With Explanations in English and French (Miller, 1801)," The Monthly Review, or Literary Journal Enlarged 35 (1801); "Extract from a Work Entitled the Punishments of China. The Plates Which Represent the Several Punishments," Farmers' Museum, or Literary Gazette X, no. 482 (1802).55 ? "From the Boston Centinel. Chinese Criminal Laws," The Genius of Liberty, April 29, 1817, emphasis added. For its reprints, see "Chinese Criminal Laws," Poulson's American Daily Advertiser, April 17, 1817; "From the Boston Centinel. Chinese Criminal Laws," Alexandria Gazette, Commercial and Political, April 21, 1817; "Translations. Extracts from the Chinese Criminal Code of Laws," The American Beacon and Commercial Diary, April 30, 1817; "Extracts from the Chinese Criminal Code of Laws," American Telegraph, May 7, 1817; "From the Boston Centinel. Chinese Criminal Laws."; "Chinese Criminal Laws," The New-York Columbian September 24, 1817; "Extracts from the Chinese Criminal Code of Laws," The Portsmouth Oracle, May 17, 1817; "From the Boston Centinel, Chinese Criminal Laws," Baltimore Patriot, November 7, 1817; "[Chinese Laws]," Weekly Recorder, November 26, 1817.

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own advantages.56 Thus, at the meetings on April 7th and 9th, 1800, they kept on asking for a copy of the Chinese law code or at least for “more copious Extracts of them” while the Governor-General stood firm absent explicit sanction of the Emperor.57 The Select Committee even attempted to obtain this goal through an official request submitted by “the Minister of the King of England” to the Chinese Government.58

The conventional wisdom holds that Staunton did not get a copy of the Chinese law code or commence its translation until after the 1807 Neptune case.59 However, in Travels in China (1804), Barrow already reproduced a translation of a Chinese legal decision about a case of homicide by gunfire in 1800 – with striking similarities to the Providence case – as most authoritative evidence for his treatment of Chinese law and practices. He also noted that a copy of the Qing Code was available in England by late 1803. All the circumstantial evidence suggests that it was Staunton who enlightened Barrow about Chinese law and brought the copy of the Qing Code back to England in June 1802 when he returned home upon news of his father’s death.60 The EIC’s archives suggested that Staunton might have got a copy of the Qing Code between May 1800 and January 1802, but did not tell us when.61 Fortunately, painstaking search has paid off. In an unpublished nineteen-page long letter to his father, dated March 27, 1800, Staunton in Canton recounted in great detail the Providence case and how his “knowledge of the Chinese Language,” though still “far from being perfect,” immediately impressed the EIC’s management and the Chinese authorities as well as “pique[d]” the Hong Merchants for becoming a “check upon [their] conduct.” Commenting on his experience at the Chinese tribunal with Captain Dilkes on March 12, 1800, he told his father that “The discovery, that the Chinese possess printed laws which they consider themselves in some measure bound to obey and exercise, was very important. I have since procured a copy of it in 24 volumes, and it cannot fail to be a matter highly advantageous to the concerns of the Company in China that the contents of

56 ? "East India Company's Factory Records," Consultations, dated May 26, 1800 (IOR/G/12/131: 27), and April 7, 1800, respectively for the quotations.57 ? Ibid., Consultations, dated April 7th and 9th, 1800. The English were assigned 50 copies, and the other Western nations were given the other 50 copies. 58 ? Ibid., Consultations, dated April 9, and May 26, 1800 (IOR/G/12/131: 28).59 ? Morse II: 343 (not specifying when Staunton got the Code). André cited Cranmer-Byng (1967: 249-51) to state that the 1807 Neptune case “spurred Staunton’s interest in China’s legal system and led first to his purchasing a copy of the Qing code and then to his decision to translate it so that the Company and its employees could have a better idea of how the Chinese legal mind worked” (James St. André, "'but Do They Have a Notion of Justice?' Staunton's 1810 Translation of the Great Qing Code," Translator 10, no. 1 (2004): 2). He did not cite Staunton’s Memoirs, Barrow’s Travels in China, or the EIC’s archives; he did cite twice Staunton’s unpublished letters, but not those I used here. Timmermans only quoted Staunton’s Memoirs (which suggested a “prospect” of getting a copy of the Qing Code but did not specify when and how) and implied that it did not happen until after the 1807 Neptune case (Timmermans, 38-48, esp. 46-47). 60 ? Barrow, 366, also 366-79, and 370-75 (for translation of the Chinese case) and 623 (for date of this publication). Barrow stated that “an able…authority,” who also enlightened him about Chinese law, intended to translate the Chinese Code; and the same person for all likelihood was also the one who brought a copy of the Qing Code back to England. Staunton referred to the same case report in 1810 (Ta Tsing Leu Lee, 317). In an unpublished letter to his mother (from Salisbury), Staunton mentioned that his baggage from China had some “Chinese books” (see George Thomas Staunton, "Sir George Leonard and George Thomas Staunton Papers, 1743-1885 [Letters, 1743-1801]," in China through Western eyes: Manuscript records of traders, travellers, missionaries and diplomats, 1792-1942 (Durhma: William R. Perkins Library, Duke University), Letter to His Mother, dated July 8, 1802).61 ? As mentioned above, the Select Committee in April 1800 were trying to request a copy from the Chinese officials and in a letter to the Directors dated on May 26, 1800, only mentioned that Staunton had “a prospect” of getting it. That Staunton translated other excerpts of the Chinese law code before he departed for England in January 1802 indicated his access to the Qing Code before that.

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these Books should clearly ascertained.”62 Thus, as early as March 27th, 1800, not only did Staunton get a copy of the Qing Code, but he also expressed an interest (more clearly to the Select Committee by May 26, 1800) in translating the Chinese law code.

Furthermore, before January 1802, Staunton already translated chapters from the Qing Code (Daqing Luli) as well as the “Institutes of the Tatsing[Great Qing] Dynasty” (Daqing Huidian), which were then sent by the Select Committee to the Directors in London in 1802.63

Unsurprisingly, these Chinese statutes first selected for translation were not to know how to better obey Chinese law, as the Select Committee claimed, but rather how to evade legal responsibilities once homicides were committed. In contrast with the extracts selected by the Governor-General which were all focused on possible punishments, these British selections dealt with what mitigating circumstances were stipulated (and undisclosed by the Chinese selections) when the fatally injured victim did not die until after a certain period of time.64 For the British, the value of intimate knowledge about such Chinese statutes could not be overestimated, especially given the fact that Chinese law was far more lenient than they had contended over a century, or even than some Chinese officials would like to openly admit.65 These statutes constituted the technical justification for the Chinese authorities to close the Providence case without prosecuting the British offenders. As Staunton noted in 1810 in relation to similar provisions in Ta Tsing Leu Lee, “the judicious application of this particular law, it is worthy of notice, once very materially contributed to extricate the East India Company’s representatives in China, from very serious difficulties, and from the distressing alternative, of either ignominiously sacrificing the life of a British subject, or totally abandoning the important commercial interests under the management.”66 Omitted again was how the militant and illegal conduct of the British representatives and commanders, aided by Staunton, coerced the Chinese into interpreting these provisions in an unusually lenient way.

Staunton’s indispensable services were more acutely felt in his absence. James Drummond, President of the Select Committee who succeeded Richard Hall in January 1802, wrote the Court of Directors on April 16th, 1802: “The absence of Sir George Staunton at this moment cannot be sufficiently lamented, as we had every right to expect the most essential advantages would have been derived from his knowledge and abilities.”67 As “the only servant” in the EIC with “any knowledge of the Chinese language, laws, or customs,” Staunton’s expertise was also sought after by the EIC for its “Historiographer” on China.68 His Sinology had a scientific dimension as well. From the second half of the eighteenth century, according to Mary Pratt, “scientific exploration” started to become a “magnet… for intellectual and commercial elites all over Europe” and “a focus of public interest and a source of … powerful ideational and ideological apparatuses through which European citizenries related themselves to other parts of the world.” 69 This implied more discoveries by Western naturalists, geographers, and other scientists in China (and other parts of the world) as well as application of new scientific and

62 ? Staunton, "Stauntons' Papers," letter from Canton, dated March 27, 1800. 63 ? Morse, II: 368. 64 ? Morse, II: 368 (1802). Compare Staunton’s translation at Sect. CCCIIII in Ta Tsing Leu Lee, where he also explicitly linked these provisions to the Providence Case (Ta Tsing Leu lee, 328-329). 65 ? Although the EIC’s agents knew many incidences where the Chinese mitigated or totally waived punishments for British offender, they had not seen or known the relevant statutes until this time. 66 ? Ta Tsing Leu Lee, 328-29 (footnote). 67 ? Staunton, Memoirs, 30 (quoting the EIC's records). 68 ? Morse, II: 369 (1802))69 ? Pratt, 23, also 15-37.

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technological innovations in the latter for the “civilizing mission.”70 In this vein, while Staunton kept alive his interests in astronomy and botanic discoveries by sending plants from Canton back to Britain, he introduced the method of vaccine inoculation to the Chinese in 1805 by translating “a short treatise” by Dr. Pearson, the EIC’s surgeon in Canton, and submitted copies of this translation to the Chinese Governor-General and Customs Commissioner.71 Either way, such knowledge production was believed to prove British/Western progress and superiority. For the London Times, the adoption of “vaccination in the ancient territory of Genghis Khan” whose “savage warriors…inundated Asian and a great part of Europe with their barbarian hordes” was a “pleasing reflect[ion] on the change which has taken place” in China and Europe.72 During his stay in Britain from June 1802 and June 1804, Staunton’s Sinology already won him privileges that only the most prestigious intellectuals could aspire for in his time. In 1802, he was “elected” into the distinguished center of intellectual elites, the Literary Club founded by Samuel Johnson, which included Oliver Goldsmith, Edmund Burke, and William Jones in its rank. Later that year, he was presented by Lord Macartney to King George III and Queen Charlotte at St. James. He was also elected a Fellow of the Royal Society. These were remarkable distinctions for a young man at the age of 21, but they were just the start.73

Upon returning to China in December 1804 after two years in Britain, Staunton was promoted to Supercargo, with an annual salary raised from two to ten thousand pounds. He stayed there until January 1808 when he sailed again for England. During the interval, he also acted as an interpreter and secretary for the Select Committee whenever it was necessary to deal with the Chinese authorities.74 What came to best demonstrate to the EIC’s management and the British Government the enormous value of Staunton’s unrivalled knowledge of the Chinese language and Chinese law was his remarkable role in the Neptune dispute in 1807 to help secure the total escape from Chinese punishment for all the British offenders who killed a Chinese in a riot and would all be punishable for “murder” if it took place in England.75 The previous part of this study has extensively examined this case, especially regarding how Staunton helped the British agents to defeat all the Chinese attempts to bring the British homicide perpetrators to justice. As the Select Committee told the Court of Directors later, “No expression can too strongly mark the importance of the assistance received on this trying occasion from Sir George Staunton.”76

The Directors fully agreed on February 26th, 1808 that only Staunton alone in the EIC

70 ? Besides long practices of gathering intelligence of the Chinese waters and coastal geography, which was vital for Western military “expeditions” after the late 1830s, the impulse to subject non-Western world to Western scientific inquiry was also evidenced by the “King’s gardener” to gather hundreds of (often new) “living specimens” from Macao as well as the Philippines in 1803-1805 (Morse, III: 17). See also Fa-ti Fan, British Naturalists in Qing China: Science, Empire, and Cultural Encounter (Cambridge, MA: Harvard University Press, 2004).71 ? Staunton, Memoirs, 33. Morse III: 16-17. For his continued scientific exploration in Canton, see Staunton, "Stauntons' Papers," Letter to his father, dated March 27, 1800.72 ? "[Vaccination in China]," The Times, Oct. 25, 1806.73 ? Staunton, Memoirs, 34. For the Literary Club, see Garland Cannon, "Sir William Jones and Dr. Johnson's Literary Club," Modern Philology 63, no. 1 (1965).74 ? Staunton, Memoirs, 33.75 ? About this case, see "East India Company Factory Records," (London: British Library, India Office Records, 1807-1808), Canton Consultations at IOR/G/12/152-163 and IOR/G/12/269. Also see Blackstone, IV: 199 (for English law on rioters). For the “riotous” nature of the British conduct, see Morse, III: 40; Davis, The Chinese, I: 82; Patrick Tuck, "Law and Disorder in the China Coast: The Sailors of the Neptune and an Affray at Canton, 1807," i n British Ships in China Seas, 1700 to the Present Day, ed. R. Harding, et al. (Liverpool: Society for Nautical Research/National Museum Liverpool, 2004), 88. 76 ? Staunton, Memoirs, 34.

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could provide such vital “assistance” whose “knowledge of the Chinese language enabled him to give a faithful interpretation of [the British] sentiments to the Mandarins” while “neither the [Chinese] linguists nor the merchants” could venture to do it when such sentiments were “displeasing” to the officials. As a reward, Staunton was formally appointed “Chinese Interpreter” to the EIC’s business in China with an additional salary of 500 pounds as a “mark of approbation.”77 As has been analyzed above and in prior chapters, these “displeasing” “sentiments” were nothing less than to demand total impunity of British perpetrators under the pretext of insisting on a just trial according to British procedures in China. Here the EIC’s officials attributed their success in the Neptune case significantly to Staunton’s bravery and linguistic proficiency. This was also what Staunton told the readers of his Memoirs (1856) and Ta Tsing Leu Lee to which a long translation of this case was appended. Again, this narrative blotted out the colonial violence, injustice, and domination that were characteristic of the origin and resolution of this and other similar cases even when it ironically attested to the complicity of knowledge and power at the same time. During 1806 and 1807, Staunton tried different schemes for the translation of the Qing Code and finally settled on how to execute the project in summer 1807. He left China in January 1808 and arrived and stayed in Britain from June 1808 to April 1810. He completed the last part of the translation during the homeward voyage and sold the copyright of Ta Tsing Leu Lee to the prestigious London publisher, Cadell and Davies, for five hundred sterling pounds, and it was published in March 1810.78

For Staunton and the EIC’s management, the Providence and the Neptune cases were moments of epiphany: they thought that in the Chinese law code they found the secrets of the Chinese political and cultural traditions. As mentioned above, there was clearly an important practical incentive for this. In the preface to Ta Tsing Leu Lee, Staunton pointed out that one of his primary purposes for translating Chinese law was to protect and promote British interests in China because the “false or imperfect notions of the spirit” of Chinese law had “often” caused the “unnecessary provocations,” “apprehensions,” and “embarrass[ment]” in prior Sino-British/Western legal disputes. But there was another critical dimension to this project. Explaining why it was worth his exertions to overcome the “difficulties and disadvantages” in this “novel” attempt, Staunton declared that the translation of the Qing Code, coupled with the “supplementary” appendices, would not only “prove interesting” – with regard to Chinese law – but also “afford a more compendious and satisfactory illustration, than any other Chinese work that could have been selected, of the peculiar system and constitutions of the Government, the principles of its internal policy, its connection with the national habits and character, and its influence upon the general state and conditions of the people in that country.”79 In other words, the Qing Code was deemed the quintessential and most reliable device for Westerners to truly understand China’s law, government, society, culture and national character.

For the Western audience, Staunton’s claim sounded fully justified, especially when he invoked such prominent Enlightenment thinkers/jurists like Montesquieu and Oriental authorities like William Jones to buttress his claim. Furthermore, he quoted Edward Gibbon, the most famous historian (of the Roman Empire) in Britain or even Europe in the eighteenth century, to the effect that “‘the laws of a nation form the most instructive portion of its history.’”80 Although

77 ? Ibid., 35.78 Ibid., 40-41, 44-45.

79 ? Ta Tsing Leu Lee, i. 80 ? Ta Tsing Leu Lee, xv (only mentioning “Mr. Gibbon” without specifying the source). See Edward Gibbon, The Decline and Fall of the Roman Empire, 6 vols., vol. 4 (1788), Chapter XLI "Idea of the Roman Jurisprudence"). Volume I of this work was published in 1776, and Volumes II and III came out in 1781 while Volumes IV to VI in

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Barrow’s Travels in China (1804) offered a very dismal characterization of the whole Chinese civilization, he did reserve some positive remarks for the Chinese law code, which “for perspicuity and method, may justly be compared with [the famous] Blackstone's Commentaries on the Laws of England.” He expressed his eager “hope” that Staunton’s English translation would come out shortly, and made an even bolder claim that such a publication would “explain, more than all the volumes that have hitherto been written on the subject of China, in what manner a mass of people, more than the double of that which is found in all Europe, has been kept together through so many ages in one bond of union.”81 Thus, British Sinology in the hands of Staunton alone was sufficient to supersede all the preexisting European scholarship on China. Despite their almost completely opposite political and intellectual orientations, the two leading intellectual periodicals in Britain, the Quarterly Review (1809) and the Edinburgh Review (1805), both readily echoed such sentiments.82 The latter, for instance, was “looking forward to this” translation “with feelings of no common curiosity and earnest hope” while predicating that Staunton’s translation “accompanied with a very few explanatory notes, would give us a much more satisfactory idea of the character and situation of the [Chinese] people, than all the volumes which European genius can compose upon the subject.”83 Nationalistic egotism aside, this notion that the Chinese law code provides the most authentic and essential means to decode Chinese law and society was soon to acquire international currency.

II. Politics of Cultural Translation and Westernization of the Chinese Law CodeWe have thus far discussed how and why Staunton came to undertake the translation of

the Qing Code. It is only against this backdrop that we can better comprehend, in this section, how and why Staunton executed the translation the way he did it. Over the last few decades, the traditional notion that translation produces objective knowledge in an unproblematic way by transmitting ideas and meanings from one language into another has been called into serious question. On the one hand, critical scholars have argued that the process of translation is not to produce “equivalent” out of seeming “incommensurability” between the target and the source languages, but to create “tropes of equivalence” in the fluid middle zone between the two languages. This zone of “”hypothetical equivalence” then becomes a site for production, alteration, and negotiation of meanings and knowledge.84 The completed translation is then

1788. The whole set covers the period of the Roman Empire after Marcus Aurelius, from about 189 to 1590, mainly devoted to explaining why the Roman Empire fell. Gibbon was often credited as the first “modern historian.” 81 ? Barrow, 366.82 ? John Barrow, "Voyages À Peking, Manille, Et L'isle De France, Faits Dans L'intervalle Des Annees 1784 À1801. Par M. De Guignes (Paris, 1808) " The Quarterly Review 2, no. 4 (1809): 273-74. For authorship of this anonymous review, see http://www.rc.umd.edu/reference/qr/index/04.html (August 2, 2007); and "Letter to the Editor from John Barrow 2 (Dated 12 Feb. 1844)," The Gentleman's Magazine (1844).83 ? Jeffrey: 283 (noting that it was based on "a very curious and authentic document"). For authorship of this anonymous review, see Lord Henry Cockburn, Life of Lord Jeffrey, with a Selection from His Correspondence, 2nd ed., 2 vols. (Edinburgh: Adam and Charles Black, 1852), I: 420, I:93; Walter E. Houghton, ed. , The Wellesley Index to Victorian Periodicals, 1824-1900 (Toronto: University of Toronto Press, 1966-89), I: 436. 84 ? Lydia Liu, Translingual Practice: Literature, National Culture, and Translated Modernity -- China, 1900-1937 (Stanford University Press, 1995), esp. 26-27 (noting the potential problems with the use of the terms the "source" and "target" languages); Lydia He Liu, Tokens of Exchange: The Problem of Translation in Global Circulations, Post-Contemporary Interventions (Durham N.C.: Duke University Press, 1999); Lydia H. Liu, The Clash of Empires: The Invention of China in Modern World Making (Cambridge, Mass.: Harvard University Press, 2004). Also see Gayatri Chakravorty Spivak, "The Politics of Translation," in Outside in the Teaching Machine (London and New York: Routledge, 1993), 179-200; Chakrabarty. Chakrabarty noted that these recent critical works on translation have “demonstrated that what translation produces out of seeming ‘incommensurability’ is neither an

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represented retrospectively to conceal or erase the original incommensurability between the two different languages (which necessitates translation in the first place) so that the translation appears as normal and natural as is generally taken for granted.85 On the other, it has been pointed out that translation always takes place in a historical context and thus its process and product are often shaped by the unequal relations of power between the dominating language and the dominated one. That was especially the case in the age of empire when two states with vastly disparate power were involved. As Lydia Liu and others have cogently demonstrated in their recent studies of the history of cultural contacts between a non-Western country like China and Western powers during the nineteenth century, translation was actually an essential battleground of international power politics where different actors and forces negotiated and forged the terms and conditions of international relationships.86

These insights are particularly valuable for our discussion here. Staunton’s translation of the Qing Code was precisely a process of converting what he and his contemporary Westerners found to be the “untranslatable” Chinese language and Chinese legal system into “intelligible” English and Western legal concepts. A closer look at the “epoch-making” translation itself is in order and we will first focus on the form or structure of the translation. A quick comparison of Ta Tsing Leu Lee, based on a 1799 and an 1805 editions of the Qing Code, with its Chinese text reveals a couple of salient features.87 Staunton preceded his translation by the “translator’s preface” where he sketched out a general survey on China’s antiquity, history, language, literature, and legislation. It was then followed by the table of contents, the translation of the

absence of relationship between dominant and dominated forms of knowledge nor equivalents that successfully mediate between differences, but precisely the partly opaque relationship we call ‘difference’” (Chakrabarty, 17). Vincent L Rafael, Contracting Colonialism, Chapter 1, "The Politics of Translation"; Talal Asad, "The Concept of Cultural Translation in British Anthropology," in ibid., Genealogies of Religion, 171-199; Homi Bhabha, "How Newness Enters the World: Postmodern Space, Postcolonial Times and the Trials of Cultural Translation,' in his Location of Culture, 212-235. Lance Hewson and Jacky Martin, Redefining Translation: The Variational Approach (London: Routledge, 1991) (on the changing middle ground between the two languages/cultures, ibid., 134). 85 ? See, e.g., Sakai viewed translation as “a practice [that produces] difference out of incommensurability (rather than equivalence out of difference).” Meaghan Morris, "Foreword," in Naoki Sakai, Translation and Subjectivity: On "Japan: and Cultural Nationalism (Minneapolis: Univ. of Minnesota Press, 1997), P.xiii. 86 ? Liu, 1995, 1999, and 2004. Liu defines translingual practice as “the process by which new words, meanings, discourses, and modes of representation arise, circulate, acquire legitimacy within the host language due to, or in spite of the latter’s contact / collision with the guest language” (1995: 26). See also Niranjana; Douglas Howland, Translating the West: Language and Political Reason in Nineteenth Century Japan (Honolulu: University of Hawaii Press, 2002); James Louis Hevia, English Lessons: The Pedagogy of Imperialism in Nineteenth-Century China (Durham and Hong Kong: Duke University Press; Hong Kong University Press, 2003). 87 ? Staunton mentioned two editions of Daqing Lüli: an official one published in 1799 and a popular one published in 1805. As Staunton noted, the two editions were “exactly similar to the Fundamental Laws [i.e., Statutes]” and the later edition only had more “Supplementary Statutes [i.e.., li] and “a different Selection of illustrative Notes” (Ta Tsing Leu Lee, lxiii). Since his translation was finished mostly in Canton (and in his homeward voyage for the last part), it seems most likely that Staunton was actually relying upon the 1805 edition as the original text for his translation and later double-checked the 1799 edition (which might be the same copy as he brought back in England in 1802) even though he seemed to suggest the opposite, probably in order to maintain his claim for “official” authenticity. He reproduced the title page of the 1805 edition as the frontispiece of Ta Tsing Leu Lee, and translated the title page of the 1799 official edition right before his substantive translation. I have also consulted Youhuai Wang, ed., Daqing LüLi Quanzuan Jicheng Huizhu [大清律例全纂集成彙注 (33 卷, 附督補則例附纂 2 卷)], 20 vols. (Hangzhou, China: Youyizhai Shufang, 1804); Daqing LüLi [大清律例]. vol. 46 (China: 1819). For the sake of convenience, I cite a modern reprint of the 1740 edition which was essentially identical in terms of statutes to the edition used by Staunton; any difference will be noted (Tao Tian and Qin Zheng, eds., Daqing Lüli [大清律例 the Law Code of the Great Qing] (Beijing: Falü Chubanshe, 1998; reprint, 1740).

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Qing Code, and finally by appendices of miscellaneous documents/notes and an index.Those who have ever seen a copy of the Chinese original will immediately realize that

what Staunton did in Ta Tsing Leu Lee was no less than to impose a “new order” upon the Chinese law code.88 The first part of Staunton’s translation concerned what he called the “preliminary matters”: the title page; the imperial edicts of the first few Manchu emperors recounting the history and motives of the codification and revisions; and the various tables defining the scales of punishments, monetary redemption, instruments for interrogation, as well as the degrees of family relationship based on mourning practices.89 A Western reader without prior knowledge of the Chinese law code would have no idea of the enormous changes Staunton made to the forms and structure of the Chinese text. In the Qing Code, the tables that prescribed punishments, fines, or degrees of mourning were all designed to guide the actual operation of the whole Chinese legal system (and society). Not only were the contents of these tables mostly derived from Chinese cultural, social, and legal practices for many centuries, but even the ways the tables were organized within the Code were carefully refined and sanctioned by the judicial and the imperial authorities of different dynasties.90 According to its preamble, the Qing Code as a whole was a product of extremely “thorough and careful deliberations and revisions” and was grounded in “heavenly principles” and “human sentiment” with every part of it arranged in such an order as to ensure “universal application” and “justice.” 91

However, whatever sanctity the Chinese accorded the Qing Code carried little weight with this Western translator. Staunton changed the columns of the original tables into rows, and the original rows into columns. During the process, he rearranged the order of the items in the original tables to fit into his new schemes while sometimes condensing two tables into one and leaving out other tables completely. He also converted some tables into texts and pages of texts into tables.92 As a result, it becomes extremely difficult, if possible at all, to identify the tabulated contents in Ta Tsing Leu Lee with their Chinese originals and a large amount of important information simply disappeared. For instance, the textual notes that were essential for the Chinese judges to apply the tables in reference to the relevant statutory provisions were either reduced to numeric values or deleted. 93 Given the fact that it should have been far easier for 88 ? André: 6. 89 ? Ta Tsing Leu Lee, lxii-xxvi. 90 ? For instance, the first Qing Code (enacted in 1646-47), including all such tables and charts discussed here, were almost completely based on the Ming (1368-1643) Code, which was thn heavily influenced by the Tang (618-906) Code. See, e.g., Yigong Su, Ming Qing Lü Dian Yu Tiao Li [明清律典与条例] (Beijing: Zhonguo zheng fa da xue chu ban she, 1998), 169, also see 94-164 (for the changes and continuities between the Tang, Ming and the Qing Codes). See also H. G. Creel, "Legal Institutions and Procedures During the Chou Dynasty," in Essays on China's Legal Tradition, ed. J. A. Cohen, et al. (Princeton, NJ: Princeton University Press, 1980), 26-9; William C. Jones , The Great Qing Code (New York: Oxford University Press, 1994), 1-2 (for the long history of Chinese law). 91 ? Tian and Zheng, eds., 4-5 (1740 Preface), also 15-16 (1736 memorial), 27-29 (notes on the structure of the code). Its 1740 Preface stated: “….详细参定, 重加编辑, 揆诸天理, 准诸人情, 一本于至公, 而归于至当, 折衷损益为四百三十门, 千有余条, 凡四十七卷。条分缕析, 伦叙秩然, 颁布宇内, 用昭画一之守. See also Ta Tsing Leu Lee, 1xvi (1647 Preface) and lxix. 92 ? See, e.g.., Ta Tsing Leu Lee, lxxi-lxxii and xxiv (for conversion of the columns and rows); lxxii and xxiv (condensing four separate tables into one and leaving out “Table of redemption for the aged or disabled during banishment” and “Table of redemption for false accusation”); lxxiii-xxiv, 1-2, 383 and 449 (converting the text into tables); lxxv-xxvi (converting the tables of Yujutu and Shangfutu into text). Also see André: 7-11 (discussing in detail some of the technical changes). Cf. Tian and Zheng, eds., 42-74.93 ? For example, even though the “Table of Morning Clothes” (or Shangfutu) was fundamentally important for the operation of the Chinese Law Code – for instance, determining the severity of punishments for offence committed on relatives – Staunton omitted the minutely defined Chinese table and reduced the original five degrees to four

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Staunton to simply translate the Chinese tables without changing their layouts – just as the first Western (and Russian) translation of the Qing Code in 1781-83 did – what Staunton did was thus primarily to “nativiz[e]” the tables and their contents so that they would presumably become more comprehensible to his Western audience, all at the expense of the original text.94

A more obvious effort on the part of Staunton to Westernize the Chinese law code ostensibly on behalf of his readers was the “multilayer numbering system” that he assigned to Ta Tsing Leu Lee.95 In the Qing Code, all the statutes (lü 律) – together with their respective sub-statutes (li 例) and interlinear commentaries – will fall in the first part of “General Principles” (minglilü 名例律) or any of the other six parts under the name of the six boards/departments of the imperial government respectively.96 There were a comprehensive table of contents at the outset of the Code and another table of contents for and before each part of the Code. Although there were some specific modifications over time, the Qing Code’s fundamental structure – especially its organization around the six boards – had been stabilized and honored since the 1397 Ming Code.97 In contrast, Staunton divided Ta Tsing Leu Lee into “Seven Divisions” with roman numerals (all the pinyin added by this author): “Division I – The General Laws [minglilü], Division II – the Civil Laws [lilü], Division III – the Fiscal Laws [hulü], Division IV – the Ritual Laws [lilü], Division V – the Military Laws [binglü], Division VI – the Criminal Laws [xinglü], and Division VII – the Laws Relative to Public Works [gonglü].”98 Each of these headings was subdivided into “books,” which then consisted of “sections” of statutes with each section assigned a distinct number; and clauses in some of these 436 sections were further numbered by I, II, and III, and so on.

While a Western and/or a modern reader without sufficient knowledge about imperial Chinese law might well find Staunton’s reordering of the Qing Code useful or even natural, but as some historians of Chinese law have correctly observed, Chinese legal specialists – whether judges, legal advisors (xingmu), or litigation masters (songshi) – had little difficulty with the original structure and indexing systems.99 After all, when compared with their contemporary

while only keeping the definition for the first degree (Ta Tsing Leu Lee, lxxv-xxvi; Cf. Tian and Zheng, eds., 64-74. Also see André: 11). For a specific note on the reason for the importance of such tables and their original arrangements, see Tian and Zheng, eds., 29 (fanli). 94 ? André: 9-10. For the Russian translation, see the next chapter (Taitsin Gurun'i Ukheri Koli to Est'vsie Zakony I Ustanovleniia Kitaiskago Kitaiskago, a Nynie Manzhurskagao, Paravitel'stva [Taitsin Guruni Ukheri Koli or All Laws and Regulations of the Chinese and Now Manchu Government, Translated from Manchu to Russian], trans. A. Leontīev, 3 vols. (St. Petersburg: Imperatorskoi Akademii Nauk [Imperial Academy of Sciences], 1781-83). 95 ? André: 11 (for the quoted term).96 ? Technically, the Qing Code had an eighth part called “General Category/Classification” (zonglei 总类), but it was essentially a rearrangement of the previous statutes and substatutes according to the degrees of the punishments . 97 ? Derk Bodde and Clarence Morris, Law in Imperial China (Cambridge, Mass.: Harvard University Press, 1967); Yifan Yang, Hongwu Fa Lü Dian Ji Kao Zheng [洪武法律典籍考证] (Beijing: Fa lü chubanshe, 1992), 55-56 (lauding the Six-Board structure in the Ming Code as a great innovation); Su, 93-109 (detailed discussion on the Six-Board structure in the Code), 108 (noting that local officials in the Yuan dynasty used the Six-Board structure for organizing laws and regulations).98 ? A look at the first few divisions will give us a good idea of Staunton’s restructuring:

Second Division – Civil Laws [lilü 吏律]Book I. System of Government [zhizhi 职制]

Section XILVII. Hereditary Succession XLVIII. Great Officers of State not authorized to confer appointment….

99 ? Su, 105. Chiu Pengsheng, a historian of Chinese law and society, also reportedly made a similar remark

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counterparts in England, France, Germany or most other European countries where no comprehensive law code existed, the Chinese should feel fortunate in not having to go through the labyrinth of numerous statutes, cases, and/or customary practices to find the law applicable to a particular case.100 Even Staunton himself admitted that what was “necessarily the most perplexing” to foreigners like him might be “probably the least” likely to cause any confusion among those who were “exclusively natives” and whom Chinese laws “were designed to instruct.”101 It was the expansion of empire and capitalism that subjected the Qing Code to an unexpected and confused Western Orientalist. Staunton’s restructuring of the Chinese text was to introduce a Western sense of order into Ta Tsing Leu Lee, thus completely exposing Chinese law and society to the gaze of Western inquirers.102

While this study does not focus on how “accurate” or “faithful” Staunton’s translation was to the substance of the Chinese text, which as mentioned above is itself a problematic for critical inquiry, it is still worthwhile to analyze how this dimension of Staunton’s translation affected its reception and historical legacy. A general consensus around the turn of the twentieth-first century among scholars who carefully compared Staunton’s Ta Tsing Leu Lee with the corresponding Qing Code is that Staunton made substantial and often significant omission, condensation, and rearrangement of the original text.103 For William C. Jones – who in 1994 published a new English translation of the statutes (lü) of the Qing Code – many other modern experts on imperial Chinese law, Staunton’s translation was “so free as to be inaccurate” and “essentially useless.”104 However, by comparing some passages from Staunton’s translation with those by Jones in 1994 and against the Chinese original, James André, a contemporary scholar of translation, reached a vastly different conclusion. Staunton’s “free translation style” was found to be a great virtue, instead of evil, in making the translation not just more “readable” and

(André: 13 (note 6). My own perusal of a large number of Qing legal treaties and handbooks also confirms that those who actually used the Qing Code did not find its original structure so inconvenient as to require a kind of restructuring similar to Staunton’s, even when they employed other ways to make it easier to learn the contents of the Code, for instance by turning the code into synoptic tables or rhythmed verses (see, e.g., Xintian Shen, Mingfa Zhizhang Zengding [名法指掌增订 Tabulated Version of the Qing Code with Supplements] (China: 1743); Tashan Liang, Dulü Guanlang [读律琯朗 the Wisdom-Star for Reading the Code] (China: 1847 [Preface]); Jizeng Zong, Dulü Yide Ge [读律一得歌 Songs for Immediate Grasp of the Code] (China, 1887 [Preface]).). A numbering system similar to Staunton’s was not applied to the Qing Code by the Chinese until the late 20 th century (Yunsheng Xun, Duli Cunyi Chongkanben [读例存疑重刊本 Questions Raised While Reading the Substatutes] (Taipei: Cheng wen chubanshe, 1970; reprint, Edited by Huang Jingjia). 100 ? Chinese jurists, with a relatively handy code available, still found it sometimes difficulty to identify the exactly applicable statutes, but the issue of legal certainty and predictabilities seemed much worse in most European legal systems. See the next chapter on European legal reform debates in this period. 101 ? Ta Tsing Leu Lee, xxx. 102 ? Our point is not to deny certain practical utility of Staunton’s numeric reordering of the Qing Code; rather, my focus is on examining how and why he managed to claim “fidelity’ and “authenticity” for his translation while making such an enormous structural (as well as substantive) changes to the original text. See more about this below. 103 ? André: 13-17. 104 ? Jones, v. Jones translated each of the 436 statutes (lü) based on the text of the Code in Duli Cuyi (edited by Huang 1970), including the interlinear commentaries and some notes that were contained in earlier editions of the Code. Jones decided not to sacrifice accuracy for “graceful[ness]” and chose to translate “almost every Chinese word” while using square brackets to enclose whatever explanatory material he added (Jones, v-vi). See also Nancy Park, "Review: The Great Qing Code by William C. Jones (New York: Oxford University Press, 1994)," The American Journal of legal history 39, no. 4 (1005); Thomas Buoye, "Review: The Great Qing Code, Translated by William C. Jones (New York, Oxford University Press, 1994)," Journal of Asian Studies 54, no. 4 (1994): (Noting that Staunton’s work “lacks precision and consistency” while testifying to the “accurateness and readability” of John’s translation based on his reading of some parts of it).

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“intelligible” than a technically more accurate translation.105 Above all, André contended, such “freedom” enabled Staunton to try various ways to make Chinese laws appear more “logical” and “just and fitting” than they really were.106

André argued that Staunton, in the preface, footnotes, and appendices to Ta Tsing Leu Lee, praised the Chinese and Chinese law, refuted contrary views by contemporary commentators like John Barrow, and took pains to “excuse” or “explain[e] away” those “less acceptable” Chinese judicial practices and customs.107 He concluded that Staunton’s translation was “a concerted effort at every level to advance an argument about the Chinese and their legal system in opposition to earlier writers on the subject.”108 Staunton achieved such a laudable task precisely “through a free translation style.” With his Ta Tsing Leu Lee failing to change the Western public opinions about Chinese law and society, Staunton was thus depicted as if he was a tragic but heroic Oriental scholar or a British Don Quixote who alone fought an uphill war against prior and contemporary Western prejudices when “negative opinions of the Chinese were already well established in the public mind.”109

Was Staunton really such an apologist or even advocate of the Chinese and Chinese law? André’s study of Staunton’s Ta Tsing Leu Lee is an important contribution to scholarship, but his conclusion about Staunton’s project, especially regarding the translator’s motives, is seriously debatable.110 It is true that Staunton in Ta Tsing Leu Lee did seem to manifest less outright prejudice towards China and the Chinese than his contemporary Oriental scholars like John Barrow or James and John Stuart Mills who found little need to conceal their disdain of the Chinese or other “Oriental” peoples/societies.111 But it is also true that even for those who had little sympathy for China, Barrow was considered a biased and “zealous philosopher” who thought “rather meanly of the Chinese.”112 It is problematic to move from this recognition of a relatively less prejudicial attitude on the part of Staunton to a conclusion that he was a defender or advocate of China and Chinese law. Indeed, as the prior section has conclusively demonstrated, the historical forces that shaped Staunton’s translation were far more complex and

105 ? André: 17 (contending that Staunton provided “a very readable translation” whiling working “very hard to transform the Chinese text into a form in English which would be familiar, intelligible, and therefore acceptable to his readers”). 106 ? Ibid.: 2-3, 17-22 (quotations), 25-27. 107 ? Ibid.: 18-27. Cf. our discussion on the Mills and John Barrow in later chapters.108 ? Ibid.: 23-24. He further claimed that “Through the process of translation, [Staunton] presents the legal code as logically organized, well-reasoned, universal in scope, non-contradictory, best adapted for Chinese culture, changing over time to meet the needs of a changing society, and esteemed and honoured by the population because it is just …“efficaciously applied [to all] in the Chinese society….Finally, he argues more broadly that the Chinese people are no better or worse than the British, that they use the same modes of reasoning as the British, and that they have a sense of justice” (ibid.) He also claimed that Staunton was trying to “covering over” the allegedly unfavorable (to the British or Europeans) stipulations or practices in the Qing Code (e.g., ibid.: 14).109 ? André: 24-27, 26-27 (for the quotation). 110 ? As my notes show, I have benefited from André’s insights on how Staunton changed the structure of the Qing Code. 111 ? Ta Tsing Leu Lee, ix-xiii, xviiii, xxii, xxvi-xxviii. We will discuss Staunton’s relatively more sympathetic comments on the Chinese and Chinese law below in relation to the reviews of Ta Tsing Leu Lee. See, e.g., Barrow, 1804; "[Review of] Ta Tsing Leu Lee," The Critical review, or, Annals of literature, Series 3 21 (1810); John Barrow, "[Review of] Ta Tsing Leu Lee," The Quarterly Review 3, no. 6 (1810); Lord Francis Jeffrey, "[Review of] Ta Tsing Leu Lee," The Edinburgh Review 16, no. 32 (1810); "The Monthly Review (1811)."; John Stuart Mill, "Civilization," The London and Westminster Review (1836). 112 ? Jeffrey, "Review of John Barrow's Travels in China (London, 1804)," esp. 262, 282. For more about Barrow, see J M R Cameron, "John Barrow, the Quarterly Review’s Imperial Reviewer," in Conservatism and the Quarterly Review: A Critical Analysis, ed. J. Cutmore (London: Pickering & Chatto, 2007).

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politically embedded than what a textual analysis of this and other contemporary publications could reveal.113 A more fruitful way is to study Staunton’s project in light of his words and deeds in the larger discourse of empire and Orientalism in which his translation was part and parcel.

In the Preface to Ta Tsing Leu Lee, Staunton set forth what to accomplish through this publication. Ta Tsing Leu Lee was primarily conceived as a project both to decipher Chinese law and society and to establish a new threshold for Western knowledge of China. He devoted many pages there to distinguishing his translation from prior (or contemporary) Sinological undertakings even when he posited it within the long genealogy of Orientalist knowledge production. As mentioned above, he explicitly challenged the reliability and impartiality of the preexisting (and mostly continental) European writings on China informed by Jesuit missionaries.114 For him, even though their “numerous and extensive” labor on China “afforded to the European world a vast collection of useful and interesting information,” their religious agendas prevented them from “representing those objects with all the accuracy and fidelity of disinterested and impartial observers.”115 The voluminous and predominant writings on China in the West by such influential authors as Moyriac de Mailla, Du Halde and Grosier contained “very little” about Chinese law, claimed Staunton; and “that little, it is to be regretted, is in a great measure, contradictory, or loose, or inconclusive.”116

As the first to directly translate any Chinese document, let alone the Chinese law code, into English, Staunton thus took upon himself the mission to offer the West a body of more “impartial” and “authentic” knowledge. Nevertheless, he was far from calling for a more positive evaluation of Chinese law and society. Quite to the contrary, he criticized the Jesuit missionaries and their derivative writings for being unduly predisposed in favor of the Chinese due to their religious and political agendas.117 He contended that it was high time to correct these “highly favourable” but “misrepresent[ed]” ideas about China. For him, the British accounts in the aftermath of the 1793 Macartney mission were “amply sufficient” to disprove Chinese “superiority” in knowledge and virtue, which had been “too readily granted them” by “some European historians.” This was then balanced by a lamentation that the British diplomats could have based their judgments about China “upon surer grounds” if there had more extensive opportunities to learn about China.118 By such means, he effectively challenged the entire corpus of Western literature on China, and in its place, positioned his own work to inaugurate modern 113 ? The alleged “evidence” of Staunton’s advocacy of China in Ta Tsing Leu Lee will be discussed below. But it is worth noting that the colonial power politics analyzed above has almost been an irrelevant or a moot issue in the recent works on Staunton’s translation cited here. 114 ? Ta Tsing Lue Lee, xiv-xv. 115 ? Ibid., ii and v respectively; also v-vi. 116 ? Ibid., xxi-xxii (mentioning works such as Memoires sur les Chinois or Memoires concernant les Chinois). He also noted that it was “unsafe to rely implicitly on [these missionaries’] authority” (ibid., vii). As Timmermans put it in 2005, “from the first arrival of the Portuguese in the early sixteenth century, almost all knowledge of China was conveyed through the conduit of the Jesuits or, exceptionally, through diplomatic intelligence after embassies by Portugal and the Netherlands to the Chinese Court” (Timmermans: at 28). Jesuit missionaries’ influence on Western sinology can at least be traced back as early s the time of Matteo Ricci (1552-1610) or even arguably to Marco Polo (1254-1324). See generally L. J. Gallagher, China in the Sixteenth Century: The Journals of Matthew Ricci, 1583-1610 (1953); V. Cronin, The Wise Man from the West (1955); G. H. Dunne, Generation of Giants: The Story of the Jesuits in China in the Last Decades of the Ming Dynasty (1962), 371-379; D. E. Mungello, Curious Land: Jesuit accommodation and the origins of sinology (Stuttgart, 1985). For more recent works on Western sinology in general, see Jonathan Spence, To Change China: Western Advisers in China, 1620-1960 (1980), and The Chan's Great Continent: China in Western Minds (1998).117 ? Ta Tsing Leu Lee, vi.118 ? Ibid., ix (noting that these prior claims of Chinese superiority were ““in great measure fallacious”).

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Sinology, in the name of impartiality, fidelity and authenticity, which were to become the benchmark standards of modern Orientalism as a profession.119

But this acquisition of authority came with a price. Staunton was obliged to distinguish his own work in one way or another from those he criticized for being nationally or religious partial and empirically inaccurate. In this vein, while Barrow in Travels in China cited the alleged prevalence of Chinese infanticide as undisputable evidence of Chinese inhumanity and barbarism, Staunton pointed out some contrary evidence in the Qing Code and advised moderation in condemning China: “Even the crime of infanticide … which has been considered such an indelible stain upon the Chinese character, might be found to admit of some extenuation” and might “also be safely contrasted with the legalized cruelty and unnatural indifferences of Roman fathers under similar circumstances.”120 Likewise, the “obvious and undeniable defects” of the Chinese government “might justly be compared with the acknowledged corruptions and imperfections of those of Europe” and that “it might perhaps be found, upon a general view, that the happiness of the people was not more frequently neglected or interrupted, upon the [Chinese or the European system of government].”121 He also noted that “some very considerable and positive moral and political advantages … peculiar to the Chinese” that were to a great measure attributable to “a system of penal laws, if not the most just and equitable, at least the most comprehensive, uniform, and suited to the genius of the people for whom it is designed, perhaps of any that ever existed.”122 These quotations illustrate the alleged evidence of Staunton’s defenses or praises of China and the Chinese. There is no denying that Staunton sounds far more balanced than Barrow and the like on China, and this seemed to be partly attributable to the “ambivalence” of the colonial discourse of modern knowledge or Orientalism which vowed for authenticity, accuracy, and impartiality as the cornerstones of its epistemological power and authority.123

But there seems to be another deeper and more subtle reason for this. In Orientalism, Edward Said has identified four elements which from the late eighteenth century onward paved the way for and (he argues) still constitute the foundation of “modern Orientalism”: intellectual and political “expansion” (beyond Islam to the Asia-Pacific), “historical confrontation” (with the Oriental sources directly), “sympathetic identification” (with the Oriental culture in order to discern its “spirit” or national character), and hierarchical “classification” (of nature and man).124

If Montesquieu’s Spirit of Laws (1748) – which will be discussed in the next chapter – illustrated the emerging elements of expansion and classification, Staunton’s Ta Tsing Leu Lee prominently featured the other two elements: the impulse to sympathetically identify with an Oriental culture and society so as to confront with the original sources directly and to discern “the genius” of the Oriental culture and society.125 In Said’s words, “What we today call historicism is an eighteenth-century idea.” And Staunton clearly shared this popular philosophical belief with other founding figures of modern Orientalism in Europe like Giovanny Battista Vico, Johann Gottfried von Herder, and Johann Georg Hamann who, according to Said, “among others, believed that all

119 ? Ibid., vi-viii. 120 ? Ibid., x. 121 ? Ibid., x-xi (emphasis added). 122 ? Ibid., xi, x. 123 ? Ludo Rocher and Rosane Rocher, The Making of Western Indology: Henry Thomas Colebrooke and the East India Company (London: Routledge, 2008). 124 ? Said, 116-120. 125 ? M. de Secondat Baron de Montesquieu, The Spirit of Laws, trans. T. Nugent, 4th, carefully revised and improved with considerable additions by the author ed., vol. 1 (London: J. Nourse and P. Vallant, 1766).

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cultures were organically and internally coherent, bound together by a spirit, genius, Klima, or national idea which an outsider could penetrate only by an act of historical sympathy” and by “an observer who sacrificed his prejudice to Einfühlung.”126 As seen in George Sale’s translation of the Korean or Sir William Jones’ translation of the Sanskrit manuscripts into the Institutes of Hindu Laws (1794), this major foundational element frequently worked in tandem with another tendency in the pioneers of modern Orientalism, who “confronted the Orient’s peculiarities with some detachment and with some attempt at dealing directly with Oriental source material.” These elements constituted the early stage (or what Said called “simple comparatism”) of what would become “comparative disciplines [in] philology, anatomy, jurisprudence, religion” of the nineteenth century.127

In the case of Staunton, direct confrontation with the presumably most “authoritative” and “authentic” Chinese source, coupled with a purported sympathetic identity with the text and the Chinese it represented, lent the translator unrivalled credibility for his claim that he could and did overcome the civilizational barriers and prejudices between the West and China to penetrate and discern the latter’s “national character” and “spirit” not just for his Western fellows but also for the Chinese themselves.128 But such a sympathetic identification was almost immediately withdrawn or better, was simultaneously accompanied by a disavowal of the non-Western culture and society. Hence, we see in the alleged defenses by Staunton of Chinese law and society quoted above that the Chinese practices and institutions were found redeemable not in spite of but precisely because they were comparable to the ancient Romans or other contemporary “Asiatic”/“Pagan” nations in their “cruel and barbarous” practices, or because the Chinese political/legal system was the best in governing the “singular” Chinese.129 In his words, although the “virtues of the Chinese [were] very inferior, no doubt, to their [own] professions, and of a lower order than those” in the “European world,” they were just typical of any society where “the sanguinary or the selfish vices,” as opposed to Christianity, prevailed.130 This was also the limit of what Staunton himself thirty six years later, in a letter to the London Times, could identify in the preface to Ta Tsing Leu Lee as proof that he was not “unjust” to the Chinese.131 The same discursive strategy was deployed by reviewers of Ta Tsing Leu Lee like Jeffrey or Barrow.132

In this way, whatever knowledge was produced would generate power and authority over the Oriental texts and the “Orientals” thus textually produced. And such power and control ensured that appropriation or appreciation of the latter’s cultural traditions or sources would not fundamentally endanger the civilizational divide and hierarchy that were erected between the knowing subjects (Orientalists) and the subjects of knowledge (the “Orient”/“Orientals”). It then becomes more understandable why Staunton even ventured to recommend certain parts of the Qing Code as “perhaps not unworthy of imitation, even among the fortunate and enlightened nations of the West” while he had been and would continue to be at the forefront either in the

126 ? Said, 118. See, e.g., Johann Gottfried von Herder, Ideen Zur Philosophie Der Geschichte Der Menschheit (1784-1791).127 ? Said, 117 (for George Sale). Also see Garland Hampton Cannon, The Life and Mind of Oriental Jones: Sir William Jones, the Father of Modern Linguistics (New York: Cambridge University Press, 1990).128 ? Ta Tsing Leu Lee, ix-x.129 ? Ibid., xxv-xxvi; also see the previous two notes. 130 ? Ibid., x. 131 ? George Thomas Staunton, "The English in China (Letters to the Editor)," The Times, Feb. 9, 1846. 132 ? Barrow, "[Review of] Ta Tsing Leu Lee."; Jeffrey, "[Review of] Ta Tsing Leu Lee." See below.

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EIC’s services or in the British Parliament of resisting Chinese law and jurisdiction as unqualified for governing the “civilized” Britons.133 That was also why even Montesquieu, Barrow, and others who ruthlessly attacked the whole Chinese civilization also had something “positive” to say about the Chinese law code. Without taking into account the important role of Staunton in the enterprises of British colonialism and Orientalism, modern scholars might be tempted to attribute to Staunton and others like him certain ahistorically benevolent motive.134 In fact, that Staunton manifested a seemingly more balanced attitude toward China and Chinese law only made whatever prejudicial comments or narratives (couched more subtly) far more credible to others. This explains why the most enduring criticisms of the Chinese and Chinese legal system were frequently indebted to Staunton himself.135

Let us get back to the question of how Staunton handled the issue of “incommensurability” between the two languages as well as the two legal systems/cultures at issue. I will quote Staunton extensively here since his own words seemed to best capture his thinking in this process. Although the Qing Code was admittedly written in a language “remarkable for its conciseness and simplicity, and as familiar, as the subject and the use of technical phraseology would permit,” he still found the Chinese language “untranslatable.” 136 He justified all his structural and substantive changes/omissions we have analyzed above in Ta Tsing Leu Lee as “unavoidable.” He made “amends for the too concise and almost obscure brevity of the text in some places, its tedious and uninstructive prolixity in others, and its general unsuitableness for translation into an English idiom.”137 As a translator, Staunton’s “first object” throughout this project was purportedly “to draw as justly as possible, the middle line between the unfaithfulness and inaccuracy of a free, and the ungracefulness and almost ungrammatical obscurity of a close version.”138 He thus “readily submitted to the necessity” whenever necessary “of altering the order of words, and the construction of sentences”; he “seldom scrupled to supply the want of a synonymous expression, by a definition” and “even ventured to embody in words those ideas which, though forming an integral part of the sense of the [Chinese] text, were yet left, by a sort of ellipsis, to be understood by implication and inference.”139 For those terms “more or less peculiar to the Chinese” that were “necessarily” constant in a law code, Staunton did not take the easier task by “retaining in each case the original Chinese expression” because “the very sounds of the language are strange and unpleasant to European ears, and in fact, but very imperfectly capable of being represented by any European alphabet.”140

All in all, Staunton claimed what he did in Ta Tsing Leu Lee was necessary to convert into idiomatic English the perceived “untranslatability” of the Chinese – or the

133 ? Ta Tsing Leu Lee, xxiv. . 134 ? In addition, what André (as well as others) has interpreted as evidence of Staunton’s defense of China was often compelled by a reading of the Chinese law code that was meaningfully less prejudiced than what Barrow had contended. It would be hard for any one who openly claimed as the basis of his authority and credibility to be impartial, accurate and authentic to offer a more “negative” reading on the same subjects than Staunton’s. Even Barrow or Jeffrey who were more outright in condemning China as a whole also found various “positive” things to say about Chinese law. 135 ? See the next chapter about the reliance of Barrow, Jeffrey and many other critics of Chinese law on Staunton’s comments on Chinese corruption and lack of sense of “honor” and the Neptune case in Ta Tsing Leu Lee (see, e.g., ibid., xxvii (on the issue of “honor”) and 521-24 (on the Neptune case)). 136 ? Ibid., xxxii. For the term “untranslatablity,” see ibid., xiv and a few notes below. 137 ? Ibid., i. 138 ? Ibid., xxxi. 139 ? Ibid., xxxi-xxxii. 140 ? Ibid., xxxii-xxxiii, emphasis added.

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“incommensurability” between the two languages – in the linguistic, acoustic, cultural, and conceptual senses. The underlying assumption was that not only were the signifier (the language) and the signified (the meanings or Chinese legal culture) totally separable without losing the latter’s “authenticity,” but the latter could be accurately deciphered and faithfully represented in an “incommensurable” foreign language.141 Although he conceded that adoption of a “more systematic arrangement, a more pleasing style, and a more harmonious phraseology” than what the Chinese text warranted would proportionately have “impaired” the two “essential” value of this translation – “authenticity” and “originality” – he still claimed to have provided a “faithful version” of the “Fundamental Laws” of China.142 According to the Edinburgh reviewer, Staunton’s free translation style – being “that of fidelity to the sense, though not to the idiom” – was an “honest and judicious course” recommendable for “every translator of important works from the Eastern languages.”143 The remaining “imperfections” were thus attributed either to the original text/language or the “peculiar circumstances” in which China unlike British India was far less “accessible”; according to Staunton, Western readers should thus not expect his translation to be of the same caliber as the “excellent treatises” of Sir William Blackstone on English law or as the translations by Sir William Jones of Indian laws.144

The “trope of equivalence” created in the middle zone between the Chinese text and the English translation was thus deployed to conceal or cross out the originally admitted “incommensurability”; the inscrutable Chinese legal system and civilization was domesticated and made visible to any Westerner through this newly “intelligible” but still “authentic” English text. The fact that Staunton’s Ta Tsing Leu Lee was generally accepted in the next century as such testified to the success of Staunton’s scheme.145 The colonial discourse of knowledge production and representation of a non-Western culture and society turned Staunton’s work into an unquestioned authority and authenticity, with little trace of the imperial violence that characterized both the origin, process, and product of the translation, especially after Britain and other Western empire came to dominate the latter, politically and culturally.

III. Legacy of Staunton’s Translation and Colonial Historiography on Chinese Law It has been pointed out that the “drive to study, to codify, and to ‘know” the Orient

employs the classical notions of representation and reality” that were essential for the operation of traditional “historicism” in privileging the Western/colonial discourse of history and human experience over alternative narratives and experiences.146 Scholars of translation have also demonstrated how translation as a method and system of cross-cultural communication is “determined by local cultural constraints” and that the translators’ “vested” cultural, political, and economic interests and their desire for the work “to be accepted within another culture” lead them to “manipulate the source text to inform as well as conform [to] existing cultural constraints.”147 Ta Tsing Leu Lee was a telling case in this regard. We will discuss two incidences: one concerns Staunton’s invention of a “Penal Code of China” and the other his essentialization of Chinese “national character” into the “Fundamental Laws.”

141 ? Also see ibid., xii, xiv. 142 ? Ibid., xxix and I respectively. 143 ? Jeffrey, "[Review of] Ta Tsing Leu Lee," 945. Emphasis added. 144 ? Ibid., xxxiv, and xxxi. See discussion below about Jones. 145 ? Barrow, "[Review of] Ta Tsing Leu Lee," 317, also 318-19. 146 ? Niranjana, 35 (citing Derrida and de Man). 147 ? Edwin Gentzler, Contemporary Translation Theories (New York: Routledge, 1993), 134, emphasis in the original.

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In Ta Tsing Leu Lee, Staunton forced upon the Chinese legal system some fundamental Western legal concepts and categories, especially concerning the structural distinction between the criminal and the civil law. As a comprehensive law code designed for regulating all illegalities or irregularities in the whole empire in order to protect lawful interests and maintain social, moral, and bureaucratic order, the Qing Code was organized around the different functions of the six departments of the imperial government rather than the public/private, civil/criminal, and procedural/substantive legal categorizations. This should not be taken to mean that the Chinese did not make such or similar distinctions in law or practices, but they were not the fundamental organizing principles for departmentalizing or dividing the Chinese law code. Unlike China, most European countries had no uniform, comprehensive code; the fact that France enacted the first “modern” civil code in 1804 and then the penal code in 1810 under Napoleon apparently reinforced the dichotomy between these two legal areas.148

As mentioned above, in Ta Tsing Leu Lee, Staunton used the term “Civil Laws” to designate the second division (lilü 吏律) in Ta Tsing Leu Lee – although it had little to do what the term “Civil Law” in Western legal parlance implied but only regulated the daily conduct and performance of duties of government officials – while he applied the term “Criminal Laws” to the sixth division (xinglü 刑律), which contained not only what a modern Western criminal law code was supposed to cover (crimes against both the public and the private) but also a great variety of other statutes on evidence, judicial torture, sentencing, and judicial reviews and so on. Likewise, the division of “Fiscal Laws” in Ta Tsing Leu Lee covered matters like household registration, taxation, sales and market, as well as marriage and land property. Therefore, under Staunton’s scheme, the so-called “Penal Code of China” was said to be different from the “Penal Laws” of the Chinese Empire, and moreover, it consisted of not only “Criminal Laws” but also “Civil,” “Fiscal,” “Military,” and “Ritual Laws” as well as “Laws Relative to Public Works.”149

To a Westerner who was used to the distinction between the public and the private offences and between the civil and criminal, and to an even later Western lawyer who was familiar to the separation between the procedural and the substantive laws, it must be an experience as shocking as frustrating to comprehend the Chinese legal system as re-presented by Ta Tsing Leu Lee. As William Jones put it in 1994:

“One consequence of the difference in points of view is that the categories of Western law are meaningless within the Chinese system of formal law, that is, the Code. One cannot speak of the Code as being a body of civil or criminal law nor of its being a combination of the two …. The Code has often been described as a penal code. If by that it is meant that each article imposes a penalty, the statement is correct. But does the term ‘penal code’ connote a body of law that deals with such matters as breach of promise of marriage and the quality of goods produced in the imperial manufactures? So also for the administrative law or the public-private law distinction …. So far as the Chinese were concerned, there seems to have been one body of law. The only categorization was the grouping of articles under the name of the board or ministry of the central government to whose work they seemed most closely connected.”150

148 ? A few German states (Prussia, Bavaria, and Saxony) made some attempts at codification in the latter half of the eighteenth century, resulting in the Codex Maximillianeus Bavarius Civilis of 1756 in Bavaria, and the Allgemeines Landrecth fur die Preussischen Staaten (or General National Law for the Prussian States) under King Frederick II the Great in 1792. Austria also had incomplete compilations during the 1750s and 1780s, and enacted the West Galician Code (1797) (which was a local code) and the first Austrian Civil Code (or Allgemeines bürgerliches Gesetzbuch) in 1811. But only the French Codes won worldwide reputation and influence before the German Civil Code (1900) and the Swiss Civil Code (1907) took some share of such influence a century later. 149 ? Also see Ta Tsing Leu Lee, xvi (for the same confusion in his conceptualization). 150 ? Jones, 7-8. However, Jones seemed to somewhat repeat the same practice when he attempted to analogize the

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But Jones failed to explore further about the historical origin and legacy of this issue. The fact is that the source of confusion was not the Chinese legal system itself but a Eurocentric impulse, definitively attributed to Staunton’s translation, to superimpose a European legal conceptual framework upon a non-Western legal system. Ironically, it was Barrow, a zealous imperialist and a most committed critic of China, who acutely sensed this in 1810 when anonymously reviewing Ta Tsing Leu Lee: “In any other point of view, the Chinese arrangement of the code might be considered as irregular, confused, or totally unsystematic: whereas the classification, according to departments, is perfectly consistent.”151 The original structure of the Code made sense to the Chinese legislators and judicial officers for hundreds of years.

This imposition of Western categories upon the Chinese legal system had important implications not only in that it caused the Chinese law code and legal system to be considered irrational and primitive from the Western perspective; but it also defined the Chinese law code and often by implication the whole legal system into one that was exclusive “penal”/“criminal” in nature, which contributed to the conceptualization of Chinese law and society as a primitive and barbarian one under newly developed comparative anthropological scheme. It has seldom been noticed that Staunton played a key role in this discourse of “penalizing” Chinese law. Staunton’s translation is entitled “Ta Tsing Leu Lee; being the Fundamental Laws, and a Selection from the Supplementary Statutes, of the Penal Code of China.” Except for the four-word transliteration of Da Qing Lü Li, he invented the rest of it. Later in the book, Staunton provided a literal translation: “Ta Tsing Leu Lee; or The Laws and Statutes of the Dynasty of Tsing.”152 As a British reviewer correctly observed in 1811, this captured the “exact nature of the contents” of the translation.153 The same reviewer later noted that “the laws of China” “received the epithet penal in this publication” and that “the sole reason for applying to these laws the title of Penal, which does not occur in any of the translated [Chinese] descriptions” was the “convenience of this distinction.”154

Indeed, it was Staunton’s usage of the term “Penal Code” in Ta Tsing Leu Lee’s preface and title that seems to have authoritatively set the tone for subsequent Western conceptualization of the Chinese legal system. As shown in the first section of this chapter, this tendency to view the Qing Code through the Western lens and thus define it as a “Criminal” or “Penal” Code

Qing Code to an “entirely administrative law” (ibid.: 8). 151 ? Barrow, "[Review of] Ta Tsing Leu Lee," 297. 152 ? Ta Tsing Leu Lee, lxiii. On the next page, Staunton also reproduced a copy of the Chinese title page of the later (1805) edition of the Qing Code, which Staunton later translated as: “A New Edition of the Laws and Statutes of the great Dynasty of Tsing [Qing], comprising, agreeably to the universal compendium promulgated by the supreme Court of Judicature in the 6th year of Kia-king [Jiaqing]…” (ibid). 153 ? "The Monthly Review (1811)," 114. 154 ? Ibid.: 117. Needlessly to say, there was no exactly “equivalent” in English or other language to the Chinese character like lü( 律 ) or xing(刑 ) or fa( 法 ) that has multiple meanings and functions. But even Staunton’s own translations made it clear that the term “penal code” was not based on the Chinese title or the Chinese term lüli(律例 ). As a noun, the Chinese character lü(律 ) here was close to the English word “regulation,” “law” or “code.” Likewise, even the character xing 刑 was not exactly equivalent to “penal” or “criminal.” The word “penal” originally means “to pay” or “to punish,” and it was derived from Anglo-French, originally from Latin poenalis, and from poena, and Greek poinE (Merriam-Webster Dictionary). For etymology on these key legal terms in Chinese history, see, e.g. Qichao Liang, "Zhongguo Fali Xue Fada Shilun [中国法理学发达史论]," in Liang Qichao Faxue Wenji [梁启超法学文集 ], ed. Z. Fan (Beijing: Zhongguo zhengfa daxue chubanshe, 1904), 78-79; Li Li, Chutu Wenwu Yu Xianqin Fazhi [出土文物与先秦法制 excavated Artifacts and the Legal System of the Qin Dynasty] (Beijing: daxiang chubanshe, 1997), 18-25.

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could be traced to the first English translation of any fragments of the Qing Code, by Staunton in 1800. Even though the extracts were presented by the Chinese officials as from “the Chinese Code of Laws,” the British agents and those Anglo-American newspapers and periodicals which circulated these extracts took it for granted that they were from “the Chinese Criminal Code of Law.”155 But this preconception – that a code involving punishments must necessarily be “penal” in the Western sense – was not extended to the whole Chinese code until a decade later. For instance, informed by Staunton, Barrow in his 1804 Travels in China still rendered the Chinese law code into “the Ta-tchin Leu-Lee, the laws and institutes under the dynasty Ta-tchin [Great Qing].” The term “institutes” would remind a Western reader of the much revered Institutes of Justinian of the Eastern Roman Empire, The Institutes of the Laws of England by the famous British jurist Edward Coke in 1628-41, or Sir William Jones’s Institutes of Hindu Laws in 1794.156 After Staunton started translating the Qing Code in 1807, he and his correspondents were still referring to the subject of his translation as the “Chinese laws” instead of “Penal Code.”157 The term “penal” was not formally attached to title of Ta Tsing Leu Lee until the advertisement of this publication came out in 1809.158 Staunton’s Ta Tsing Leu Lee was the first to categorically and presumably authoritatively define the Chinese law code as a “Penal Code.”159 As explained below, this definition had far reaching impact.

Another important legacy of Staunton’s project was the popular understanding that Chinese law almost never changed since time immemorial. Even though he did tell his readers that the Chinese substatutes (li) were regularly revised and equally respected by the Chinese, the fact that he only translated the statutes and represented them as the “Fundamental Laws” that best captured the “genius” of the Chinese people and civilization readily (mis-)led his readers to believe that Chinese law and society stayed the same for hundred of years. It may be worthwhile to take a look at how Staunton reached the decision as to what to translate. In Ta Tsing Leu Lee,

155 ? "East India Company's Factory Records," (London: British Library, 1800-1801), Consultations, dated May 14, 1800 (IOR/G/12/128-29, p.240). See the first section on media circulation of these extracts. 156 ? Barrow, Travels in China, 366, also 367 (for his praises of the Qing Code). While the Institutes of Justinian was famous for its simplicity in arrangement and clear and concise expression, Barrow stated that “the laws of China, for perspicuity and method, may justly be compared with Blackstone's Commentaries on the Laws of England) (ibid). Lord Francis Jeffrey also called it “their latest and best digest code” (Jeffrey, "Review of John Barrow's Travels in China (London, 1804)," 283, emphasis added). Also see Edward Coke, Institutes of the Laws of England (1628-1641). "The Roman World [the Institutes of Justinian]," in The Library of Original Sources, ed. O. J. Thatcher (Milwaukee: University Research Extension Co., 1907). Justinian I (483-565) was the most famous emperor of the Eastern Roman Empire, largely due to his efforts to compile and codify the Corpus Juris in 529-533, including “the Institutes,” “the Digest” and “the Code of Justinian,” which later greatly influenced European legal systems. 157 ? See letter from Mackintosh to Staunton (dated May 7, 1807) and letter from Staunton to Barrow (dated August 25, 1807), in George Thomas Staunton, "Sir George Leonard and George Thomas Staunton Papers, 1743-1885 [Letters, 1802-1815] " in China through the Western eyes: Manuscript records of traders, travellers, missionaries and diplomats, 1792-1942 (Durham, NC: The William R Perkins Library at the Duke University, Published in Microfilm by Adam Mathew Publications). 158 ? John Barrow, "Voyages À Peking, Manille, Et L'isle De France, Faits Dans L'intervalle Des Annees 1784 À1801. Par M. De Guignes (Paris, 1808) " The Quarterly Review 2, no. 4 (1809): 273 (observing the notice of a translation in the press of the Leu-lee, or Code of Penal Laws" by Staunton). 159 ? Earlier writers in the West did not do this even when they might have far less information about Chinese law “civil” matters than on “criminal” matters, see, e.g., Jean Baptiste Du Halde, The General History of China: Containing a Geographical, Historical, Chronological, Political and Physical Description of the Empire of China, Chinese-Tartary, Corea and Thibet, trans. R. Brookes, 4 vols. (London: J. Watts, 1736); William Winterbotham, An Historical, Geographical, and Philosophical View of the Chinese Empire (London: J. Ridgeway, 1795), (on "civil laws" and 286-91 on "criminal laws" of China); Staunton, Authentic Account of an Embassy.

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Staunton acknowledged his gratitude to two unidentified “friends” who were “distinguished as men of letters” and instrumental in getting him finish and publish this translation.160 Although he did not specify who they were in this publication or in his Memoirs (1856), we now know from his unpublished letters that Sir James Mackintosh (1765-1832) was the one that Staunton described as “preeminent in his profession of the law” and Sir John Barrow (1764-1848) was the other who allegedly had “superior knowledge of the Chinese empire” and “ardent zeal to promote and extend its relations with Great Britain, for the mutual benefit of both countries.” 161

In a letter dated May 7th, 1807, Sir Mackintosh, then a colonial judge at Bombay and later a leader of the English criminal law reform movement during the 1820s and the early 1830s, wrote to Staunton: “My Dear Sir: …. I hope that when you have leisure you will find means of gratifying my curiosity on some of the subjects which I have mentioned in my former letters. But I particularly hope that we may see from you an abridgement of the system of law which you speak of [and] which will give us more insight into the state of China than all the volumes of the missionaries. Even a short abridgement will do instruction for our inspiration without costing you much labor.”162 It turned out that Mackintosh’s eagerness and suggestion of an “abridgment” played a critical part in Staunton’s decision to translate only the statutes of the Qing Code.

Shortly afterwards, Staunton wrote from Macao to Barrow in London, informing the latter that he had “once more seriously commenc[ed] the translation of the Chinese Laws, upon a better plan.” Instead of translating the Qing Code in its entirety, or “attempting to humble the whole work” as Staunton put it, he now decided to translate only the statutes (lü) on the grounds that those laws were “fixed and original.” 163 Thus, for a comprehensive law code of “no less than 2906 octavo pages” structured “in so concise language as the Chinese,” Staunton confidently assured Barrow that “about 90 sheets of paper” would be sufficient to reveal to the Westerners the essence of Chinese law.164 Interestingly, the same letter also showed that Staunton did not believe that “such a production would be calculated for the Public eye…without copious notes and illustrations” which he was “but ill-prepared to attach.” But he anticipated the eventual publication without them on the grounds that “if any one should expect that the Chinese original bear the least resemblance in point of elegance and information to the Commentaries on our English Laws by [Sir William] Blackstone, he will be very egregiously disappointed.”165 Just as he said in relation to other components of Chinese civilization, although it might be “neither uninteresting nor unimportant” to learn about Chinese literature or practical arts, such Oriental knowledge was incapable of adding to Westerners’ “present stock of theoretical knowledge upon natural and philosophical subjects.”166

As a result, Staunton omitted virtually all the hundreds of substatutes (li) in his translation, which to his full knowledge was, unlike the “permanent” statutes (lü), were more frequently revised to adapt to the actual operation of Chinese justice. Thus, as Alabaster noted in

160 ? Ta Tsing Leu Lee, xxxiv. 161 ? Staunton did note that sometime around 1806-1807, he “carried on an interesting correspondence with the late Sir James Mackintosh, then a Judge at Bombay” (Memoirs, 40); Ta Tsing Leu Lee, xxxiv. 162 ? Letter from James Mackintosh (May 7th, 1807), in Staunton, "Stauntons' Papers," No. 84. 163 ? Letter to John Barrow (August 25, 1807), in Ibid., No. 29. Although this letter was written three months later after Mackintosh wrote to Staunton, it took weeks for Mackintosh’s letter to reach Canton from Bengal. 164 ? Ta Tsing Leu Lee, xxix (for the first quote); and Letter to John Barrow (for the quotation of “90 sheets”), Ibid.165 ? Letter to John Barrow (August 25, 1807), in Ibid. Staunton indicated that he was pushed by Barrow and probably also Mackintosh, who both might have read Staunton’s manuscript in advance, to publish his translation (Ta Tsing Leu Lee, xxxiii; see below on Barrow and Mackintosh). 166 ? Ta Tsing Leu Lee, xii-xiii.

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1899, Staunton’s “laborious work at its very publication was quite out of date.”167 But unlike William Jones’ 1994 translation, Staunton could still confidently claim that the statutes or “Fundamental Laws” were the most authoritative means to reveal contemporary Chinese law, culture, society, and national character even though he knew that the substatutes better reflected the actual Chinese judicial practices and everyday lives.168 After all, for him and his contemporaries like Sir Mackintosh or Barrow, Ta Tsing Leu Lee was mostly considered as a “gratification to curiosity” and a “not uninteresting employment of [limited] leisure hours,” but “the translation of every part of [the Chinese law code] did not promise … to be of equal utility.”169 The underlying assumption was that the spirit and essence of the Chinese civilization and society had been reified into the allegedly “fixed and original” “Fundamental Laws” of that “vast” and “ancient” empire.170 It did not take more to convince his readers.

A sentiment shared by all the contemporary reviewers of Ta Tsing Leu Lee was that China – a quintessential example of the “inscrutable Orient,” especially after India was formally colonized by the British Empire since 1765 – was finally exposed to the scrutiny of Western inquirers. According to Staunton, the British accounts by Staunton senior, John Barrow, and Lord Macartney threw “an entire new light” upon “that extraordinary and interesting [Chinese] empire.” If “it [had] not led to the discovery of a new world,” it had, “as it were, enabled [the British/Westerners] to recover a portion of the old, by removing … obstacles [to Western] contemplation.”171 In the same vein, reviewers of Ta Tsing Leu Lee praised Staunton for his extraordinary “talent,” “resolution,” “patience and perseverance” to have “venture[d] into the dark and intricate windings of the oriental labyrinth.”172 If the earlier accounts were still flawed by the “requisite” influence of the “national prejudice of Englishmen,” Staunton succeeded in convincing his reviewers and readers that he had provided a far more objective and authentic body of information about China.173 After all, he could always claim the unprecedented advantage of mastering the Chinese language. For his Western fellows, Ta Tsing Leu Lee provided “satisfactory proof that a competent knowledge” of the “difficult” and “singular” Chinese language was “by no means unattainable.”174 Its publication also signaled a new 167 ? Ernest Alabaster, Notes and Commentaries on Chinese Criminal Law and Cognate Topics (London: Luzac & C., 1899), v. 168 ? Ibid., xxx (on statutes and substatutes). The fact that Staunton was translating the Qing Code at a time when it was still being applied within the Chinese empire makes his case also qualitatively different that of William Jones who translated these statutes in 1994 long after they were out of effect. 169 ? Ta Tsing Leu Lee, xxxiii; Letter to John Barrow (August 25, 1807), in Staunton, "Stauntons' Papers." We should recall that Mackintosh used a similar expression. The Eclectic reviewer characterized Ta Tsing Leu Lee as “a valuable addition…to English literature” and “a curiosity” to “enrich the museums of [English/Western] moral history, and assist philosophic investigations” ("[Review of] Ta Tsing Leu Lee," The Eclectic Review 6, no. Pt. 2 (1810): 943 (emphasis added).170 ? Ta Tsing Leu Lee, xxxv.171 ? Ibid., viii. 172 ? Barrow, "[Review of] Ta Tsing Leu Lee," 273. 173 ? Ta Tsing Leu Lee, viii. Even for reviewers like Jeffrey or Barrow or the Monthly reviewer who thought Staunton was too kindly disposed towards China and the Chinese, they generally praised Staunton’s accuracy and fidelity in translation and cited Staunton’s translation as evidence for their more condemnatory views of China. 174 ? Barrow, "[Review of] Ta Tsing Leu Lee," 277-78 (also 279-86 on his criticism of the Jesuit missionaries). The British Critics also noted that the Chinese language “bears no analogy whatever to any other language on the face of the globe; that it is so constructed as to be addressed entirely to the eyes; that the organs of the speech and of hearing are of little use towards the understanding of it; and that it is therefore equally easy of comprehension.” to a person born deaf and dumb, as to one in the full possession of all his faculties … Thus in their effect the Chinese characters may be said to resemble the Arabic numerals, or the notes of the music, which though differently named by different nations, are capable of being read by all, each in its proper language” ("[Review of] Ta Tsing Leu Lee," The British

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watershed in Western knowledge about the arts, sciences, language, and literature, as well as “the customs, the religion, and the laws of the Eastern nations,” all of which was now based on the most direct and authoritative text.175 Although the British might have “no competitors” in the West in Indology since it colonized India, they had yielded for centuries to their rivalries in continental Europe in the area of Sinology. Now, the British national honor was vindicated and the West was indebted for gaining epistemic control over the “most extensive empire and the most singular people on the face of the earth.”176 Indeed, the “intrinsic value, the unquestionable authenticity of the materials, and the general importance and curiosity the subject” were found sufficient in themselves to “fully compensate those particular defects and imperfections” of his translation itself.177 As a result, the translator as a cultural hero was not affected by how meanly a reader thought of the Chinese. In the words of the Critical reviewer, [o]ur sense of obligation to the translator … is not all lessened by the opinion we entertain of the Chinese character.”178 The Edinburgh reviewer best expressed how contemporary readers received Ta Tsing Leu Lee:

It contains, as the title imports, the authentic text of the whole Penal Law of China; and, as their peculiar system of jurisprudence has attached a certain public punishment to the violation or neglect of almost every civil obligation, their Penal Law comprises an incidental view of their whole system of legislation. Now there is certainly no one document from which we may form a judgment of the character and condition of a nation with so much safety as from the body of their laws; and when these are presented to us, not in the partial abstracts of their admirers or detractors, but in the original fullness and nakedness of their authentic statutes, the information which they afford may be fairly considered as paramount to all that may be derived from other sources. The representations of travellers [even with unimpeachable “fidelity”] will almost always take a tinge from their own imagination or affections …. The laws of a people, however, are actual specimens of their intellect and character, and may lead the reflecting observer, to whom they are presented, in any corner of the world, to a variety of important conclusions that did not occur to the individual by whom they were collected. In such a work the legislator inevitably paints both himself and the people for whom he legislates; and, as nothing here depends upon the colouring of style or ornament, nothing short of intentional fabrication in the translator can prevent us from forming a correct notion of the original. In the case before us, however, we have not only every reason to believe that the translation is perfectly just and accurate, but think we can discover in the translator such candour and coolness of judgment as would entitle him to be trusted in a matter of far greater temptation.179

Modern legal historians have demonstrated that the Chinese law code distinguished the “civil” from the “criminal” matters in both legislations and judicial practices.180 Even the

Critics 36 (1810): 212). The Eclectic Review even asserted that “The difficulties of a language, as totally and essentially different in its construction from any other as if it were the contrivance of a distinct order of beings , are too formidable to be generally surmounted, without stronger inducements than any which Sir George Staunton’s ingenuity has proposed” ("The Eclectic Review (1810)," 943, emphasis added). 175 ? "The British Critics (1810)," 209-10. See also "The Critical Review (1810)," 337-42; "The Eclectic Review (1810)," 476-77; Barrow, "[Review of] Ta Tsing Leu Lee," 273-75; Jeffrey, "[Review of] Ta Tsing Leu Lee," 942-43; "The Monthly Review (1811)," 113-14.176 ? "The British Critics (1810)," 210-11 (echoing Staunton's criticism of missionary writings); "The Monthly Review (1811)," 113.177 ? Ta Tsing Leu Lee, i. 178 ? See, e.g., "The Critical Review (1810)," 340; Jeffrey, "[Review of] Ta Tsing Leu Lee," 495. 179 ? Jeffrey, "[Review of] Ta Tsing Leu Lee," 478. Emphasis added. Also "The British Critics (1810)," 224.180 ? Zhang Jinfan, the leading Chinese legal historian, has argued that the law code of late imperial China did distinguish between the “civil” and the “criminal” law matters and it was a comprehensive code to embrace a host of different legal areas (“民刑有分，诸法合体” ). For more recent works on the actual operation of Chinese civil statutes in the Qing and Republic eras, see Kathryn Bernhardt et al., Civil Law in Qing and Republican China

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Monthly reviewer, who held a dark view of Chinese law, questioned in 1811 the “propriety” of the “epithet penal” that the Chinese law code received in Ta Tsing Leu Lee and suggested that it “might perhaps be correctly changed to General, if indeed any epithet be necessary; since we should deem it impossible for any one to read the details of these statutes without surprise at finding all the varieties of civil enactment introduced into a penal code.”181 This, however, had little impact on the tide. Almost a century later, Ernest Alabaster was still troubled by this matter. Admitting that the term “Criminal Law” in China had “a more comprehensive import” than in the West and that to do what Staunton did was “confusing,” Alabaster still felt obliged to entitle his volume “Notes and Commentaries on Chinese Criminal Law” “only…in deference to custom.”182 That he added a “brief excursus on The Law of Property” in the subtitle would hardly changed his readers’ preconception of the “penal nature” of the Chinese legal system.183 Another century later, we still hear William Jones in 1994 lamenting this problem. He was absolutely right in saying that “[t]he point is that Chinese law as embodied in the Code has to be examined on its own terms. Categories of Western law do not work.”184 But he knew he was describing, ironically, the actual situation with Western perception and studies of Chinese law ever since Staunton set the tone.

Since the next chapter analyzes this in depth and in a longer time framework, we will only mention in passing that the ongoing debates within Britain and other European countries about legal modernization did allow the textualized Chinese legal system through Ta Tsing Leu Lee to participate in the metropolitan discourses on legal reform, modernity, and rationality in the 1810s, and that this in turn gives us a rare opportunity to study the fissures of the otherwise ostensibly seamless Orientalist discourse of Chinese law and society which soon afterwards reduced the latter to barbarity and irrationality. Ta Tsing Leu Lee immediately captured the attention of the Western reading public. It was featured in at least six of the most influential intellectual journals in 1810-1811, was cited extensively with other major legal systems in comparison with the renowned 1804 Code of Napoleon, and as mentioned above, was translated into French and Italian within two years.185 The fact that China had a comprehensive law code in place for hundreds of years, stipulated exact proportionality between each crime and punishment, and allowed various kinds of mitigations for the aged, young, and female offenders was in particular found impressive and apparently counterintuitive to many of the reviewers, especially

(Stanford, Calif.: Stanford University Press, 1994); Philip C. Huang, Civil Justice in China: Representation and Practice in the Qing (Stanford, Calif.: Stanford University Press, 1996); Kathryn Bernhardt, Women and Property in China: 960-1949 (Stanford, Calif.: Stanford University Press, 1999); Philip C. Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (Stanford, Calif.: Stanford University Press, 2001). Cf. e.g., Jerome Bourgon, "Uncivil Dialogue: Law and Custom Did Not Merge into Civil Law under the Qing," Late Imperial China 23, no. 1 (2002): (questioning the appropriateness of applying such Western terminology to Chinese legal tradition).181 ? "The Monthly Review (1811)," 117.182 ? Alabaster, viii-ix (also noting that "It is accordingly only by a tour de force that 'hsing' (which means simply 'punishment') can be rendered 'criminal'"). It should be noted that Alabaster might seem more justified than Staunton to render this (xinglü) portion of the Code into “criminal law,” but most of his readers would fail to appreciate the differences he was trying to make. 183 ? Ibid., 517-600 (on the "Law of Property").184 ? Jones, 7-8. 185 ? These reviews and translations have been cited above. See also The Code Napoleon: Verbally Translated from the French to Which Is Prefixed an Introductory Discourse, Containing a Succinct Account of the Civil Regulations, Comprised in the Jewish Law, the Ordinances of Menu, the Ta Tsing Leu Lee, the Zend Avesta, the Laws of Solon, the Twelve Tables of Rome, the Laws of the Barbarians, the Assises of Jerusalem, and the Koran, trans. B. Barrett, 2 vols. (London: W. Reed, 1811), "Introductory Discourse" (which amounts to 393 pages).

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when compared with the much criticized “indiscriminately harsh” and un-codified criminal law systems in most European countries. For instance, the Edinburgh reviewer noticed “its great reasonableness, clearness and consistency” in relation to other Indian lamented that “we scarcely knew any European code that is at once so copious and so consistent, or that is nearly so free from intricacy, bigotry and fiction.”186 Various British reformers in 1810-1811 would invoke Chinese laws and practices as a model for codification and for practicing the fundamentally important (modern) principle of proportionality, but most of the reviewers ultimately reached a verdict on the whole Chinese legal system for being guilty of offending Western cultural sentiments.187

These reviewers generally singled out two aspects to denounce the Chinese legal system and society: the predominantly “penal/criminal character” and the alleged judicial corruption. The latter accusation was mostly based on Staunton’s narrative of the 1807 Neptune case in the appendix to Ta Tsing Leu Lee, and the former was equally indebted to his characterization of the Qing Code, as analyzed above.188 After having just “praised” the Chinese law code, for instance, the same Edinburgh reviewer – who turned out to be Lord Francis Jeffrey (1773-1850), a lawyer, later a judge of Scotland, and editor and major contributor of this journal for twenty six years – devoted most of his lengthy commentaries to condemning Chinese law and society for their alleged corruption, prevalence of punishments, and lack of sense of honor.189 Taking the cues from Staunton and borrowing concepts from Montesquieu’s globally famous Spirit of Laws (1748), Jeffrey asserted that a “remarkable feature” of the Chinese code was its “indiscriminate frequency of corporal punishments. The bamboo is the great panacea of China: and offences of all descriptions are punished, in every rank of society, by a certain quantity of flagellation.” 190

Although Jeffrey later admitted that the British also practiced flogging of the soldiers and that the Chinese allowed monetary redemption of such corporal punishments, he nevertheless concluded that the Chinese had “no such delicacy” towards the shame of such corporal punishments as the Europeans did, and seemed to have “absolutely no sense of honour.”191 The Monthly reviewer expressed the same sentiments toward “the preposterous practices of exposing

186 ? Jeffrey, "[Review of] Ta Tsing Leu Lee," 481-82. See, e.g., "The British Critics (1810)," 217-223; Barrow, "[Review of] Ta Tsing Leu Lee," 294-95, 297, 309-10. 187 ? For debates in England, see 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 (London: T. Cadell and W. Davis, 1810). For examples of using Chinese laws as model for reforms (as well as counterarguments), see 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, 26-28 (all citing Chinese laws and practices as models for English legal reform); George Ensor, Defects of the English Laws and Tribunals (London: J. Johnson & Co., 1812); Basil Montagu and Esq. Compiler, eds., 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), 39-40.188 ? Ta Tsing Leu Lee, 521-24 (for the translation of the Chinese report this case). Also see our discussions above. For uses of Staunton’s narrative, especially the alleged Chinese judicial corruption (which Staunton himself countered in 1850), see "The Eclectic Review (1810)," 1041 (referring to Staunton's translation of the 1807 case); Barrow, "[Review of] Ta Tsing Leu Lee," 316-17; Jeffrey, "[Review of] Ta Tsing Leu Lee," 498-99. 189 ? See Cockburn, I: 422 (identifying the authorship of this review), see also 419-425 (listing 200 contributions by Jeffrey to this Review). For more discussion of Jeffrey’s political and intellectual inclinations and influence, see Philip Flynn, Francis Jeffrey (University of Delaware Press, 1978). 190 ? Jeffrey, "[Review of] Ta Tsing Leu Lee," 488. Montesquieu in turn misconstrued the accounts of prior missionary writings on Chinese punishments to fit in his comparative models and to conclude that China was “Asiatic despotism” governed by fear rather than by honor. We will discuss more about this in the next chapter, but see, e.g., Montesquieu, 181, cf. 130-32 (Book VI, Chapter XV) and 118-132. 191 ? Jeffrey, "[Review of] Ta Tsing Leu Lee." 488.

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the highest civil and military officers to the lash.”192 Likewise, if the actual administration of other legal systems had to be investigated before

any conclusion could be drawn upon its justice and efficacy, this question was “wholly superfluous” in the case of China, according to the Eclectic Review; “as the negative may be very safely assumed” because the Chinese who had “neither honour, conscience, nor religion” would not hesitate in committing crimes whenever they felt “safe from discovery and the bamboo” and accordingly there was “no other country upon earth, where the magistracy [was] so nefariously venal, and the scale of justice so favourable to the rich.” The same reviewer then exclaimed that “[i]f cunning, however, is the offspring of fear, the Chinese must necessarily be a nation of cheats.” Whatever merits of Chinese laws or practices were thus conveniently dismissed.193

According to Jeffrey in the Edinburgh Review, honor was found “in almost all conditions of society, and in every stage of its progress” and a nation was “strong and happy exactly in proportion to the spirit of honour which prevail[ed] in it,” but “no nation, [ancient] or modern, savage or civilized” was “altogether destitute of it, but the Chinese.”194 To impose such a code like the Chinese upon “an honourable and generous people” like the British was to commit “the most base and cruel of all atrocities.”195 As Ta Tsing Leu Lee was take to be of “permanent” and immemorial origin, these criticisms were thus applicable to the whole history of China.

Through these Eurocentric cultural lenses, Ta Tsing Leu Lee became a powerful device to confirm and validate the core vocabulary, imagery, and tropes in the preexisting discourses on Chinese law and society in Euro-America through Montesquieu and his disciples. We only have space for a few incidences to illustrate such confluence of old and new discourses. A prominent example in this regard is Hegel’s treatment of Chinese law and China in his grand theory on the teleology of history. China played a unique role for Hegel in his famous Philosophy of History (1837). His case studies started with “the Oriental World” which in turn was headed by China as the “most ancient” empire with documented history. If India could still be compared with Greece, Persian with Rome, China was found “quite peculiarly Oriental.”196 Under his scheme of “Universal History” – conceived as a teleological progress of self-realization of “Spirit” or individual/collective “Consciousness” – China was thus reduced to the very bottom of the hierarchy of social and historical development and progress. Specifically, Hegel argued that in China except for the Emperor, all “individual members could not attain to independence and subjective freedom.”197 It had become natural by then that he would turn to Chinese laws for evidence. For him, laws, “comprising morals and judicial institutions,” were a “permanent element in the people’s existence” and an expression of “Spirit.”198

Thus, “Jurisprudence of China” was found to be a scourge for causing the Chinese “subjects…in a state of nonage.”199 He

192 ? "The Monthly Review (1811)." 122. 193 ? "The Eclectic Review (1810)," 1041.194 ? ibid., "[Review of] Ta Tsing Leu Lee," 499.195 ? Ibid. 196 ? Georg Wilhelm Friedrich Hegel, The Philosophy of History, trans. J. Sibree, Revised ed. (New York: Columbia University Press, 1900 [1837]), 113, 116. For Hegel, “[t]he Oriental World” even morality was “a subject of positive legislation” and “[n]othing subjective in the shape of disposition, Conscience, formal Freedom, is recognized” (ibid., 111, 113). For a reportedly more accurate, modern edition, see ibid., Lectures on the Philosophy of World History, trans. H. B. Nisbet, New ed. (New York Cambridg University Press, 1981).197 ? Hegel, The Philosophy of History, 144. 198 ? Ibid., 163. For Hegel, “Spirit” “expresses itself in “Laws, Manners, Customs, and Deeds” (ibid., 163); for the reviewers and commentators on Ta Tsing Leu Lee, “manners, customs and deeds” were “authentically” captured and represented by Staunton’s translation. 199 ? Ibid., 127.

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asserted that in China “[a]ll legal relations [and moral conduct] are definitely settled by rules” and by severe penalties, and “free sentiments … is thereby thoroughly obliterated.”200

Echoing Montesquieu and the British reviewers mentioned above, he anchored his thesis principally on the assertion that “punishments are generally corporal chastisement” which “would be an insult to honor [among the Europeans but] not so in China, where the feelings of honor has not yet developed itself. A dose of cudgeling is the most easily forgotten….But the Chinese do not recognize a subjectivity in honor.”201 As a result, the “distinguishing feature” of China was that “that everything which belongs to Spirit – unconstrainted morality, in practice and theory, Heart, inward Religion, Science and Art properly so-called – is alien to it.” 202 Hence, China was filled with “great immorality,” corruption, slavery, and despotism while Spirit of freedom and consciousness “is still wanting, every change is excluded, and the fixedness of a character which recurs perpetually, takes the place of what we should call the truly historical.” He concluded that “China and India lie, as it were, still outside the World’s History.”203 This denial of History then led him to celebrate the fact that on behalf of “the Europeans of the modern world,” “the English [now] are the lords of the land [of India]” and to project that “China will, some day or other, be obliged to submit to this fate,” “for it is the necessary fate of Asiatic Empires to be subjected to Europeans”204

While Hegel still applied the term “jurisprudence” to Chinese laws, Justice Joseph Story (1779-1845) of the United States Supreme Court disagreed.205 Addressing in 1829 to an audience of the Suffolk Bar in New York, Justice Story argued that since the polity was of despotic nature, these Oriental countries' laws would not change for centuries. Thus, the laws of Persia were “proverbially immutable”; China's (legal) institutions underwent “no sensible change since the discovery and doubling of the Cape of Good Hope [in the late fifteenth century],” and the “customary laws and institutions” of Egypt were originated at least from her pyramids which “lost as their origin [was] remote antiquity.” As a result, these laws, if they qualify for the word of “laws” at all, were certainly not “jurisprudence” even though the ancient Greek, Roman and Gothic people were all entitled to have “jurisprudence.” According to him,

In such countries the Law can scarcely be said to have existence as a science. It slumbers on in a heavy and drowsy sleep, diseased and palsied. It breathes only at the beck of the sovereign. It assumes no general rules, by which rights or actions are to be governed…, the lapse of centuries scarcely disturbs the repose of the laws, and men find themselves standing in the same crippled posture, which was forced upon their ancestors, long after their sepulchres have mouldered into dust, and the names of the oppressor and the oppressed are sunk into doubtful traditions.206

200 ? Ibid., 128. 201 ? Ibid., 130, see 128-130 (making stereotypical accusations of Chinese law and society similar to Barrow's 1804 book). 202 ? Ibid., 138. Since “no honor exists, and no one has an individual right in respect of others, the consciousness of debasement predominates, and this easily passes into that of utter abandonment. With this abandonment is connected the great immorality of the Chinese” (ibid., 131).203 ? Ibid., 116 ("as the mere presuppositions of elements whose combination must be waited for to constitute their vital progress"), also see 111 -113, 138. 204 ? Ibid., 142-43. 205 ? Ibid., 136 (saying Chinese "Jurisprudence [like Chinese history] only gives fixed laws"); see 152, 160-161 (citing the Code of Menu of India, translated by Sir William Jones in 1794). 206 ? Justice Joseph Story, Address Delivered before the Members of the Suffolk Bar (Boston: Freeman & Bolles [From the American Jurist, for Jan. 1829], 1829), 1-2. He held the position at the High Court from 1812-1845.

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If Hegel was found too philosophical in intellectual orientation and influence, while Story too mundane, to effectively shape the discourse on Chinese law and society, Sir Henry Maine then possessed all the qualifications that they had and did not have. One of the most effective and influential works that theorized on the alleged combination of excessive penality in law and societal/historical stagnation might be Henry Maine’s Ancient Law (1861). As the British founder of the influential school of “historical and comparative jurisprudence” in the nineteenth century, Sir Henry Maine (1822-1888) thereby established his global reputation as a historian, philosopher, anthropologist, and comparative (and together with later works, international) jurist.207 Using the Roman law and its progeny in modern Western Europe as the model in contradistinction with other “ancient” laws and societies, Maine claimed that human society progressed from the primitive stage operating on “status” and family dependency to the civilized (modern Western) societies that was based on relations of “contract” and individual agency.208

Under this Eurocentric conception of legal and social evolutionary progress, he asserted that “all the known collections of ancient law are characterized by a feature which broadly distinguishes them from matured systems of jurisprudence: … The proportion of criminal to civil law is exceedingly different,” and “primitive jurisprudence [is] giving to criminal law a priority unknown in a later age.” He then claimed it as a general principle “that the more archaic the code, the fuller and the minute is its penal legislation.”209

In this vein, the translated law codes of India – the Code of Gentoo and the Code of Menu – constituted proof for him that Indian society “has not passed beyond a stage which occurs in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion”; thanks to Ta Tsing Leu Lee, China “has” passed that point, he continued; but “progress seems to have been there arrested, because the [disproportionately scanty] civil law are coextensive with all the ideas of which the race is capable.”210 Since jurisprudence was presumed to have “enormous influence on the intellectual diathesis of the modern world” and “the most plentiful source of the stream of modern knowledge,” what was believed to characterize a legal system also defined the relevant people and society in the modern era.211 While other civilization might have expanded the law, Chinese (and other Oriental) laws were said to have “limited the civilization.” Echoing many of the reviewers of Ta Tsing Leu Lee, Maine thus turned the ostensibly “penal” nature – through the Western lens – of the Chinese law code into the determinative factor that distinguished the stationary Chinese law/society from the “progressive” Western European one.212 207 ? Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society , and Its Relation to Modern Ideas, 2nd ed. (New York: Charles Scribner, 1864 [1861]). This is the first English-language work in this regard and Maine in 1869 was appointed to the chair of “historical and comparative jurisprudence” that was newly founded in the University of Oxford. See more recent discussions on him at Richard A. Cosgrove, Scholars of the Law : English Jurisprudence from Blackstone to Hart (New York ; London: New York University Press, 1996), chapter 5. 208 ? For an apt summary of Maine’s major arguments in this regard, see Theodore William Dwight, “Introduction,” in Maine, ix-lxi, esp. xl. Also ibid., 328-29. See, e.g. Brian Smith, "Maine's Concept of Progress " Journal of the History of Ideas 24, no. 3 (1963).209 ? Maine, 355-57, also "Introduction,' at lxiv-lxv. 210 ? Ibid., 22. 211 ? Ibid., 328-331, also "introduction," lxii. Maine argued that jurisprudence had enormous impact on such branches of “modern sciences,” especially in “Politics, Moral Philosophy, and even Theology,” and in some more cultivated societies, jurisprudence even “stood in the place of poetry and history, of philosophy and science” (p.331). 212 ? Ibid., 22-23.Hugh Scogin, Contract in the Han (3rd century B.C.E. to 1 C.E.) Period; Susan Naquin, on contracts for a host of different purposes (including for entering deals with ghosts or afterlife arrangements) that

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Maine’s theses were so influential among non-Western jurists in the next half a century that Liang Qichao, a leading Chinese intellectual around the turn of the twentieth century, invoked Maine’s theories to argue that imperial Chinese law was too primitive to survive the test of modern civilizational progress because of its excessive emphasis on penalties instead of civil matters.213 Maine’s assertion that “Jurisprudence” was “a Roman creation” and thus a heritage exclusively inherited by modern Western Europe compelled non-Western world intellectuals and legal scholars to ponder why their own legal systems lacked the seed for modern jurisprudence.214 During the late Qing legal reform movement (1902-1911) that was designed to “modernize” the Chinese legal system in order to shake off extraterritoriality and regain sovereignty and Western/international recognition for China, the Chinese legal system was finally reclassified in accordance with the Western legal concepts. New codes were drafted and/or enacted for the newly reconfigured legal areas on civil law, civil procedural law, criminal law, and criminal procedural law respectively.215 A whole century after the publication of Ta Tsing Leu Lee, the Chinese legal system came to conform to the Western conceptual mandate.

The discursive genealogy from Montesquieu, via Barrow/Jeffrey/Staunton, to Hegel/Maine and their followers have demonstrated “the way cultural generalization had begun to acquire the armor of scientific statement and the ambience of corrective study [in the early phase of] modern Orientalism …. Thus a knowing vocabulary developed, and its functions, as much as its style, located the Orient in a comparative framework …. Such comparatism is rarely descriptive; most often, it is both evaluative and expository.”216 It was true that the contemporary reviewers of Ta Tsing Leu Lee were far more accusatory and ruthless than Staunton was there towards the Chinese and Chinese law, and they sometimes even criticized Staunton for being too soft. However, as mentioned above, their criticisms were often inspired or supported by Staunton.217 It was not until four decades later that Staunton felt the necessity to counter some of these charges even though his responses should at best be viewed as a damage-control measure for what he had set in motion in the first place. Claiming to do justice to the Chinese, he achieved little. Instead of refuting all these accusations, he actually only sought to qualify what was “overstated.” In fact, he explicitly stated that he “generally concur[red] in the sentiments of the [Edinburgh] Reviewer” whose lengthy comments on Ta Tsing Leu Lee he reproduced in his publication as “the profound and ingenious remarks” on the Chinese law code. Moreover, when offering some qualifications for the “alleged want of a due sense of honour” among the Chinese,

were dated from the 4th century. 213 ? Qichao Liang, "Lun Zhongguo Chengwenfa Bianzhi Zhi Yange Deshi [论中国成文法编制之沿革得失]," in Liang Qichao Faxue Wenji [梁启超法学文集], ed. Z. Fan (Beijing: Zhongguo zhengfa daxue chubanshe, 1904), 175-78, also 124, and 160. Liang Qichao was in turn influenced by the Japanese interest in and translations of Maine’s works.214 ? Liang, "Zhongguo Fali Xue Fada Shilun [中国法理学发达史论 ]."; Hannis Taylor, "The Jurisprudence of Latin America," Virginia law review 1, no. 1 (1913).215 ? My next project is on the late Qing legal reform, which was a controversial and tumultuous process but eventually resulted in modeling the Chinese legal system after the Western legal systems (at least on the conceptual and structural levels, it not always in substance and judicial practices). See, e.g., Guilian Li, Jindai Zhongguo Fazhi Yu Faxue [近代中国法制与法学 Modern Chinese Law and Jurisprudence] (Beijing: Beijing Daxue Chubanshe, 2002).216 ? Said, 149.217 ? Ta Tsing Leu Lee, 521-24 (for the translation of the Chinese report this case). Also see our discussions above, and Morse, III, 40-52, 68-71; Davis, 1836, 82, et seq.; Auber, 225. For uses of Staunton’s narrative, especially the alleged Chinese judicial corruption (which Staunton himself countered in 1850), see "The Eclectic Review (1810)," 1041 (referring to Staunton's translation of the 1807 case); Barrow, "[Review of] Ta Tsing Leu Lee," 316-17.

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he also confirmed that “the charge must be admitted, in a qualified sense, to be true.” He even attributed much of the prejudicial views about China and the Chinese discussed above “in some degree” to “the Chinese Code” itself; but if this were true, China was not really redeemed because he quoted the famous saying of Edward Gibbon again that “[t]he laws of a nation form the most instructive portion of its history.”218

While an unguarded reader might once again pick up some of his remarks here as evidence of transcultural benevolence and Orientalist magnanimity, his confirmation of much of the prior accusations, though couched in more subtle and balanced way, would not fail to claim the attention of those looking for authority and evidence in this regard, just like his Ta Tsing Leu Lee. Indeed, his belated responses were very likely prompted by a letter to the London Times four years before where a British correspondent criticized him for being “unjust” to the Chinese in his comments in Ta Tsing Leu Lee.219 The fact that he shared much of his reviewers’ cultural prejudices about China should by now become far less surprising in light of our prior discussions, and it becomes still less if we take a look at his track records in the British Parliament. In the 1810s through the 1830s, he employed similar invectives – accusing the Chinese Government for being “arbitrary and despotic” and corrupted – to legitimate British criminalities and resistance to Chinese jurisdiction while calling for the establishment of extraterritorial court in South China.220

Admitting that the British practices caused “the guilty as well as the innocent [to escape] with impunity…for the past forty-nine years,” Staunton, now speaking as a Parliamentarian and the leading authority on affairs of “the East Indies” (including China) in the British House of Commons on June 13, 1833, shifted all the blames to Chinese laws for “being practically so unjust and intolerable.” Just as Reverend Robert Morrison and John Francis Davis did in this respect, Staunton called for the British Government to end this “anomalous state of the law” by creating “a British naval tribunal upon the spot, with competent authority for the trial and punishment of such offences.”221 We should recall that it was precisely because of him and his successors in the 1800 Providence and the 1807 Neptune cases and so on that this “anomalous state” of Western legal impunity was created. Staunton conceded that the Europeans “ought either to submit to the Chinese laws, or at least usage, in the case of European committing homicide: or to undertake [themselves] to try” and “punish” such homicides if convicted. With his intimate knowledge of Chinese law and government, he opted for the latter option; he then assured his country fellows that the Chinese Government would “acquiesce in the decision of such a tribunal” even though this was admittedly a “startling” violation of the sovereignty of China (or any other country in this regard).222

218 ? George Thomas Staunton, Miscellaneous Notices Relating to China and Our Commercial Intercourse with That Country, 2 ed. (London: John Murray, 1850; reprint, Enlarged in 1822, and Accompanied, in 1850, By introductory Observations on the Events Which Have Affected Our Commerce During That Interval), 387, and 389-402 (for the reprint. Staunton reproduced all of Jeffrey's substantive comments at ER, 481-99, and omitting only the introductory part at pp. 476-480). 219 ? Staunton, "The English in China (Letters to the Editor)." His responses to the 1810-1811 reviews of Ta Tsing Leu Lee were added in 1850 to his 1822 Miscellaneous Notices (see below).

220 George Thomas Staunton, Miscellaneous Notices Relating to China (London: John Murry, 1822), 265 (for the quotation), 263-280 (for using the Neptune case again for such purposes). Staunton was a member of the Parliament from 1818-26 and 1830-52. 221 ? ibid., Corrected Report of the Speeches of Sir George Staunton, on the China Trade, in the House of Commons, June 4, and June 13, 1833 (London: Edmund, Lloyd, 1833), 27.222 ? Ibid., 41 (Staunton's notes on the speeches). Cf. ibid., Corrected Report of the Speech of Sir George Staunton, on Sir James Graham's Motion on the China Trade, in the House of Commons, April 7, 1840, with an Appendix,

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In April 1840, Staunton launched a similarly specious but equally effective defense of the British Opium War when its legitimacy, morality, and efficacy were in crisis. He first imposed an international obligation upon the Chinese by declaring that “[t]hough the Chinese are no parties to the specific usages of international law amongst European nations, they cannot but be bound by that of nations, which is founded on the law of nature and of common-sense.” 223

However, to extend such membership of “the family of nations” was only to argue that the harsh but effective measures taken by the Chinese Government under Commissioner Lin Zexu in 1839-1840 against the refractory opium traders and their accomplices was a breach of China’s obligations under international and thus entitled the British to “reparation for the outrages” committed against them and to “restoring to hostilities in case that reparation is refused.”224 This then made the issue of morality irrelevant: “it must be obvious to every one, that the question between us and the Chinese, in a national point of view, has nothing to do with the immorality or the impolicy of the [opium] trade; but simply depends on the question how far a breach has been committed of international rights and international law.”225

With all his Sinological clout, he claimed that how the alleged Chinese official collusion, acquiesce, or negligence in strictly punish the opium traders from the very beginning infringed the foreigners’ rights who placed “faith in the old laws” and made the new laws nothing but evidence of “the flagrant injustice, the extreme atrocity of the country.”226 “Considering the character” of the Chinese Government and what he had just said, he told his fellow legislators and compatriots that “no man can doubt the necessity of accompanying and supporting [a treaty proposal] with a competent physical force.” Refuting the charges that such force was used just to support the “detestable opium traffic,” he was “convinced” that “this armament” would lead to a “national treaty between the Governments of England and China” and then to end this evil. Reminding others that “British honor and interests” of the Empire were at stake, he exclaimed as if to echo Hegel’s prophesy: “Let it finally be recollected that our high position throughout the whole eastern world is mainly founded on the moral force of public opinion. If we submit to such outrage and commercial degradation in China, without any attempt at vindication, the day is not far distant when the consequences will be visited on our great empire in India, and our political ascendancy there will be fatally undermined.”227

He proved his eloquence. The Opium War went on and the British Empire triumphed, resulting in the acquisition of Hong Kong as a future pearl of the Crown in addition to the Indian Empire. British extraterritoriality was legalized by the 1842 Nanking Treaty while the Chinese Government was no longer in a position to contend that the opium traffic was “detestable.” Just like the Chinese law code three decades before, the Chinese Empire was finally thrown open for the benefit of “every other civilized country” by the British through the first Opium War (1840-42) and through “the coalition of civilization against barbarism” in the second Opium War (1856-1860).228 In his own way, Staunton vindicated the observation that “[t]o say simply Orientalism was a rationalization of colonial rule is to ignore the extent to which colonial rule

Containing Resolutions on the China Trade, Moved in the House of Commons, June 13, 1833 (London: Edmund Lloyd, 1840), 4-5 (explaining why he later sought Chinese consent). 223 ? Staunton, Corrected Report of the Speech...In the House of Commons (April 7, 1840), 11. 224 ? Ibid., 12-14, 14 (for the quotation). 225 ? Ibid., 11. 226 ? Ibid., 13. 227 ? Ibid., 14-15. For more about the debates, see "House of Commons [April 7, on China]," The Times, April 8, 1840. Also "Correspondence Relating to China," in Command Papers; Accounts and Papers (1840).228 ? John Francis Davis, China, During the War and since the Peace (1851), 83, iv; also see 83-89.

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was justified in advance by Orientalism, rather than after the fact.”229 But it is worthwhile to mention the after-the-fact rationalization as well in our case as a way of concluding this chapter. Sir Ralph Rice told Staunton that he as Chief Justice of Prince of Wales Island “had perpetually occasion to refer to” Ta Tsing Leu Lee when “administering the law to the Chinese community” there.230 Likewise, Sir John Davis, a former Governor of Hong Kong, recalled that “[w]hen Hongkong fell to us by conquest as a crown colony, I found no better way of governing the Chinese population (by far the majority) than by the Penal Code” of China – the “first fruit of Sir George Staunton’s [Sinological] labours” – “a copy of which always lay before the judge when Chinese were concerned.”231

229 ? Said, 39. 230 ? Staunton, Memoirs, 46 (feeling flattered and noting similar use in HK). Ironically, modern scholars could consider this development as “an irony,” see, e.g., André: 33.231 ? John Francis Davis, Chinese Miscellanies: A Collection of Essays and Notes (London: John Murray, 1865), 51 (also imposing "collective responsibility" upon Chinese villagers). For British colonial justice, see Christopher Munn, Anglo-China: Chinese People and British Rule in Hong Kong, 1841-1880 (London: Routledge, 2001).

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