Modern Western Responses to Chinese Law

CASE 7:  Homicide and the Law in 18th Century China

As friction between China and England increased during the late 18th century, criminal jurisdiction, the prosecution of homicide, and the use of capital punishment became particular points of contention between the British and Chinese governments. The true source of such friction was in part economic, but the drama played itself out in the cultural realm as well, with each side claiming superiority in art, government, and many other fields, including law. For more information on the role of culture in political competition, see the China Mirror case study: Culture and International Relations in the Eighteenth Century.

The infamous case involving the crew of the British ship Lady Hughes illustrates how different legal systems could become weapons in the fierce cultural and political rivalry developing between England and China. In 1783 the Lady Hughes fired a salute, which killed two Chinese bystanders. The British maintained that the shots were fired unintentionally and argued further that they could not tell which gunner was responsible for the errant shot. The Chinese side, perhaps skeptical of these claims, insisted that someone had to be turned over to be tried for the crime. When the British refused, Chinese officials arrested the ship’s business manager. Negotiations deadlocked but the British finally turned over an unfortunate gunner who was later executed. British critics cited incidents such as this to justify demands for extraterritoriality—the exemption of its subjects from the application of local law or the jurisdiction of local tribunals—and this was eventually obtained in the unequal treaties of the nineteenth century. For more information on the unequal treaties, see the China Mirror case study: China and International Law in the Nineteenth Century.

By the late 18th century the legal gap between China and Europe was not as great as during the 17th century. Rather than recommend the adoption of Chinese legal practices, after this time Western observers frequently attacked the Chinese criminal justice system for its shortcomings. Still, some of the more knowledgeable foreign observers put the issue into a comparative perspective. Speaking of Chinese legal history on the eve of Qing reform in 1908, E. H. Parker noted: “nor must it be forgotten, when we criticize Chinese severity, that until ninety years ago Englishmen guilty of treason were cut down from the gallows while alive, and had their entrails taken out and burnt before their eyes: women were bunt alive for treason until 1790; and even until 1870 men convicted of treason were supposed to be quartered after execution.” Parker also noted that until 1837, “highwaymen and other notorious criminals were gibbeted in chains and handed over to surgeons for dissection….” In Queen Victoria’s reign there were 200 offences for which a man might be hanged; and even now our floggings, though rare, are as brutal and as any flogging the Chinese ever administered.” ¹Parker’s observations provided some much-needed perspective on the Qing criminal justice system. While far from ideal, the eighteenth-century Chinese system of criminal justice did not compare unfavorably with its contemporary counterparts in Europe.

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