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From Reciprocity to Territoriality: Extradition, the Opium War, and the Idea of British Sovereignty in Hong Kong, 1842–44

Published online by Cambridge University Press:  12 July 2022

Ivan Lee*
Affiliation:
Faculty of Law, National University of Singapore, Singapore.

Abstract

This article examines a key ambiguity in the Opium War treaties of 1842-1843, which concerned the legal status of Hong Kong’s native Chinese population. Overlooked in existing studies, the question was whether the cession of Hong Kong entailed British jurisdiction over crimes involving Chinese people inter se. To British minds, the idea of territorial sovereignty pulled against the reciprocal premise of the treaties, by which China and Britain enjoyed an absolute right to discipline their own offenders. To square the circle, British officials mooted various compromises steeped in extant ideas of sovereignty and subjecthood. Subsequently, all efforts at a principled policy were abandoned following a pivotal murder in eastern Hong Kong. Seven Chinese suspects were examined at the colonial magistracy for possible surrender to China, but the hearing was construed after the fact as a full trial and acquittal, which anchored exclusive British jurisdiction on the island. Thus, Hong Kong lay at the intellectual centre of Britain’s incipient Chinese Empire. The meaning of the Opium War treaties was shaped through iterative domestic discourse, in which the ideas of territorial sovereignty, extradition, and extraterritoriality were mutually constitutive, and law-making involved the retrospective rationalization of equivocal events and decisions on the ground.

Type
Original Article
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the American Society for Legal History

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References

1 Proceedings of The Queen v Lo Atow and others (at the Magistrate's Court of Hong Kong), Colonial Office Records Series CO 129/2, fo. 389, 395–96, The National Archives, United Kingdom.

2 Translation of Warrant, CO 129/2, fo. 419. Lau's name is recorded variously as “Laou” and “Law”. Xin'an appears as “Sinan” and “Sunon”. The latter is a Romanization of the Cantonese name for the county. See Patrick H. Hase, Forgotten Heroes: San On County and Its Magistrates in the Late Ming and Early Qing (Hong Kong: City University of Hong Kong Press, 2017).

3 Caine to Lau, letter received on August 22, 1843, and Lau to Caine, August 30, 1843, CO 129/2, fo. 424–26.

4 Caine to Lau, September 4, 1843, CO129/2, fo. 430.

5 Treaty between H.M. and United States of America, Washington, C. (1st series) 424, UK Command Papers LXI.1 (1842); Convention between H.M. and King of the French, for Mutual Surrender of Persons Fugitive from Justice, C. (1st series) 444, UK Command Papers LX.487 (1843). See I.A. Shearer, Extradition in International Law (Manchester: Manchester University Press, 1971), 16–21.

6 O'Higgins, Paul, “The History of Extradition in British Practice, 1174–1794,” Indian Yearbook of International Affairs 2 (1964): 78115Google Scholar, at 106.

7 Christopher Munn, Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880 (Hong Kong: Hong Kong University Press, 2001), 53–54.

8 See, for example, Emily Whewell, Law Across Imperial Borders: British Consuls and Colonial Connections on China's Western Frontiers, 1880-1943 (Manchester: Manchester University Press, 2019); Robert Bickers, “Legal Fiction: Extraterritoriality as an Instrument of British Power in China in the ‘Long Nineteenth Century,’” in Empire in Asia: A New Global History, Volume 2: The Long Nineteenth Century, ed. Donna Brunero and Brian P. Farrell (London: Bloomsbury Academic, 2018); Pär Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford: Oxford University Press, 2012); Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press, 2010); Alex Thompson, “The British State at the Margins of Empire: Extraterritoriality and Governance in Treaty Port China, 1842–1927” (PhD diss., University of Bristol, 2018); and Emily Whewell, “British Extraterritoriality in China: The Legal System, Functions of Criminal Jurisdiction, and its Challenges, 1833–1943” (PhD diss., University of Leicester, 2015).

9 G.B. Endacott, Government and People in Hong Kong (Hong Kong: Hong Kong University Press, 1964), 32–35. Compare with John K. Fairbank, Trade and Diplomacy on the China Coast: The Opening of the Treaty Ports, Volume 1: 1842–1854 (Cambridge, MA: Harvard University Press, 1953), 128–29; and Frank Welsh, A History of Hong Kong (London: Harper Collins, 1993), 164. See also Christopher Munn, Anglo-China, 53–54, 164; and Christopher Munn, “The Criminal Trial Under Early Colonial Rule,” in Hong Kong's History, ed. Tak-Wing Ngo (New York: Routledge, 1999), 47–48.

10 Treaty between H. M. and Emperor of China, Nanking, August 1842, C. (1st series) 521, UK Command Papers LI.327; and Supplementary Treaty between H.M. and Emperor of China, October 1843, C. (1st series) 534, UK Command Papers LI.341 (Treaty of the Bogue).

11 See, for example, Robert Bickers, The Scramble for China: Foreign Devils in the Qing Empire, 1832–1914 (London: Allen Lane, 2011); and P.D. Coates, The China Consuls: British Consular Officers, 1843–1943 (Oxford: Oxford University Press, 1988).

12 Song-Chuan Chen, Merchants of War and Peace: British Knowledge of China in the Making of the Opium War (Hong Kong: Hong Kong University Press, 2017); Frederic Wakeman Jr., “The Canton Trade and the Opium War,” in The Cambridge History of China, Volume 10: Late Ch'ing 1800–1911, Part 1, ed. John K. Fairbank (Cambridge: Cambridge University Press, 1978).

13 For present purposes, it does not matter whether or not the provincial custom was approved by the Chinese imperial government. Suffice it to say there has been some debate on this point: Li Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics (New York: Columbia University Press, 2016), 54–55. Compare with Cassel, Grounds of Judgment, 40–43; R. Randle Edwards, “Ch'ing Jurisdiction Over Foreigners,” in Essays on China's Legal Tradition, ed. Jerome Alan Cohen, R. Randle Edwards, and Fu-Mei Chang Chen (Princeton: Princeton University Press, 1981).

14 The sailor was serving on the merchant ship, the Lady Hughes. He killed two Chinese boatmen while firing a gun salute under superior orders. Although the records do not disclose the precise degree of his culpability, he might equally have been convicted for manslaughter if not murder had he been tried by a British court: Chen, Li, “Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the Lady Hughes Controversy in 1784,” Law and History Review 27 (2009): 153CrossRefGoogle Scholar.

15 Munn, Christopher, “The Chusan Episode: Britain's Occupation of a Chinese Island, 1840–46,” Journal of Imperial and Commonwealth History 25 (1997): 82112CrossRefGoogle Scholar.

16 Article 3: “It being obviously necessary and desirable that British subjects should have some port whereat they may careen and refit their ships when required, and keep stores for that purpose, His Majesty the Emperor of China cedes to Her Majesty the Queen of Great Britain, etc., the Island of Hong-Kong, to be possessed in perpetuity by Her Britannick Majesty, her Heirs and Successors, and to be governed by such laws and regulations as Her Majesty the Queen of Great Britain, etc., shall see fit to direct.”

17 This provision should not be confused with Article 13 of the Treaty of the Bogue. The latter was a different provision on the clearance of goods at Chinese customs. The General Regulations, Clause 13, read as follows: “Whenever a British subject has reason to complain of a Chinese, he must first proceed to the Consulate and state his grievance; the Consul will thereupon inquire into the merits of the case, and do his utmost to arrange it amicably. In like manner, if a Chinese have reason to complain of a British subject, he shall no less listen to his complaint, and endeavour to settle it in a friendly manner. If an English merchant have occasion to address the Chinese authorities, he shall send such address through the Consul, who will see that the language is becoming; and, if otherwise, will direct it to be changed, or will refuse to convey the address. If, unfortunately, any disputes take place of such a nature that the Consul cannot arrange them amicably, then he shall request the assistance of a Chinese officer, that they may together examine into the merits of the case, and decide it equitably. Regarding the punishment of English criminals, the English Government will enact the laws necessary to attain that end, and the Consul will be empowered to put them in force; and regarding the punishment of Chinese criminals, these will be tried and punished by their own laws, in the way provided for by the correspondence which took place at Nanking, after the concluding of the peace.”

18 Pottinger to Aberdeen, July 19 1843, FO 17/68, fo. 62.

19 See the records of the British Foreign Office, series FO 705/45 and FO 17/57–71, The National Archives, United Kingdom. For a similar account of this aspect of the negotiations, which draws on Chinese sources, see Mao Haijian, The Qing Empire and the Opium War: The Collapse of the Heavenly Dynasty, trans. Joseph Lawson, Craig Smith, and Peter Lavelle (Cambridge: Cambridge University Press, 2016), 450–51.

20 Keying, Elepoo, and Newkien to Pottinger, September 1, 1842, FO17/57, 335, 339–41.

21 Pottinger's Memorandum of September 5, 1842, FO17/57, fo. 345, 348–49.

22 Pottinger to Aberdeen, September 3, 1842, FO17/57, fo. 206.

23 Pottinger's Memorandum of September 5, 1842, FO17/57, fo. 348–49.

24 Pottinger to Keying, Elepoo, and Newkien, September 17, 1842, FO17/58, fo. 125–26.

25 Tsim Sha Tsui was later ceded to Britain in 1860 as part of the cession of the Kowloon Peninsula (south of modern-day Boundary Street). The rest of Kowloon remained under Chinese rule until 1898, when Britain leased it for 99 years along with the rest of what came to be called “Hong Kong's New Territories.”

26 Keying, Elepoo, and Newkien to Pottinger, September 27, 1842, FO17/58, fo. 131–34.

27 Ibid, fo. 133; and Pottinger to Aberdeen, October 16, 1842, FO17/58, fo. 102, 107.

28 Pottinger to Aberdeen, ibid (emphasis in original).

29 Richard Woosnam's Minute of January 21, 1843, FO17/66, fo. 141 (emphasis added).

30 Elepoo, Kekung, and Liang Paouchang to Pottinger, February 1843, FO17/66, fo. 331, 335–336.

31 Pottinger to Elepoo, Kekung, and Liang, February 20, 1843, FO17/66, fo. 338.

32 Kekung to Pottinger, March 9, 1843, FO17/66, fo. 338–44.

33 Clause 13 is reproduced in full in note 17. Qiying spent the autumn and winter of 1842–43 in Nanjing. From there, he corresponded with Pottinger, who was based mostly in Macao.

34 Keying to Davis, June 21, 1844, CO 129/8, fo. 284–85; and Keying to Davis, private letter received on January 3, 1845, CO 129/11, fo. 51.

35 George Bonham to Earl Grey, November 21, 1849, CO129/30, fo. 324–25; Bonham to Palmerston, November 26,1849, FO17/159, fo. 110–11; China Mail, March 13, 1851, CO132/2, fo. 177.

36 See discussion accompanying note 22.

37 Emphasis added. Article 9: “If lawless natives of China, having committed crimes or offences against their own Government, shall flee to Hong-Kong, or to the English ships of war, or English merchant-ships, for refuge, they shall, if discovered by the English officers, be handed over at once to the Chinese officers for trial and punishment; or if, before such discovery be made by the English officers, it should be ascertained or suspected by the officers of the Government of China whither such criminals and offenders have fled, a communication shall be made to the proper English officer, in order that the said criminals and offenders may be rigidly searched for, seized, and, on proof or admission of their guilt, delivered up. In like manner, if any soldier or sailor, or any other person, whatever his caste or country, who is a subject of the Crown of England, shall, from any cause or on any pretence, desert, fly, or escape into the Chinese territory, such soldier or sailor, or other person, shall be apprehended and confined by the Chinese Authorities, and sent to the nearest British Consular or other Government officer. In neither case shall concealment or refuge be afforded.”

38 See discussion accompanying note 29.

39 Aberdeen to Pottinger, January 4, 1843, FO17/64, fo. 19.

40 Ibid., fo. 37–38.

41 Stephen to Henry Unwin Addington, February 22, 1843, CO129/3, fo. 94–96.

42 Addington to Stephen, March 22, 1843, CO129/3, fo. 153.

43 Stephen's Minute of March 23, 1843, CO129/3, fo. 165.

44 Stephen's Minute of February 11, 1843, CO129/3, fo. 93.

45 Addington to Stephen, March 22, 1843, CO129/3, fo. 153.

46 Ibid., fo. 154–56.

47 That is, Attorney General Frederick Pollock (the 1st Baronet), Solicitor General William Webb Follett, and Queen's Advocate John Dodson.

48 Dodson, Pollock, and Follett to Aberdeen, March 18, 1843, CO 129/3, fo. 166–70.

49 Marginal note in Stephen's handwriting, likely March 24, 1843, CO129/3, fo. 168.

50 Stephen's Minute of July 12, 1843, CO129/3, fo. 219.

51 Calvin's Case (1608) 7 Co. Rep. 1a at page 5b.

52 On the various forms of allegiance in English law, see Hannah Weiss Muller, Subjects and Sovereign: Bonds of Belonging in the Eighteenth-Century British Empire (Oxford: Oxford University Press, 2017), ch 1.

53 Calvin's Case (1608) 7 Co. Rep. 1a at page 6a. See Keechang Kim, Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2004), ch. 8.

54 William Forsyth, ed., Cases and Opinions on Constitutional Law (London: Stevens & Haynes, 1869), 266–77, 333; and Campbell v. Hall (1774) 1 Cowp. 161 at 171.

55 Mayor of Lyons v. East India Company (1836) 1 Moo. P.C. 175 at 287 (opinion of the Judicial Committee of the Privy Council). As late as in 1930, a South African jurist argued that the conferment of British subjecthood upon the conquest of territory was only a “very uncertain” presumption in the absence of express treaty provision: E.F.W.G. van Pittius, Nationality Within the British Commonwealth of Nations (London: P.S. King & Son, 1930), 72. See also Clive Parry, ed., A British Digest of International Law, Volume 5 (London: Stevens & Sons, 1965), 142.

56 Addington to Stephen, 22 March 1843, CO129/3, fo. 156.

57 Article 3 ceded Hong Kong “to be governed by such laws and regulations as Her Majesty the Queen of Great Britain, etc., shall see fit to direct.”

58 Stephen to Addington, March 30, 1843, CO129/3, fo. 162.

59 Pottinger to Aberdeen, June 13, 1843, FO17/67, fo. 263–265; and Pottinger to Aberdeen, March 17, 1843, FO17/66, fo. 221.

60 Aberdeen to Pottinger, January 4, 1843, FO17/64, fo. 13–15.

61 Pottinger to Aberdeen, May 5, 1843, FO 17/67, fo. 145, 147, 153; and Pottinger's Memorandum of May 13, 1843, FO 17/67, fo. 265.

62 Pottinger's Memorandum, ibid (emphasis added).

63 To be sure, the language of protection would pervade contestations over the scope of British and other Western jurisdiction in the Chinese treaty ports. In the late nineteenth century, the Western presence in China became more intrusive when extraterritorial rights were increasingly extended to people of Chinese descent. However, none of the treaty ports were ever considered sovereign British territory. What makes the present case study conceptually striking is the complexity of British jurisdiction in what was supposed to have become a possession of the British crown; that is, Hong Kong. On the extension of extraterritorial protection to the Chinese “protégés” of Western powers, see generally Richard S. Horowitz, “Protégé Problems: Qing Officials, Extraterritoriality, and Global Integration in Nineteenth-Century China,” in The Extraterritoriality of Law: History, Theory, Politics, ed. Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala (New York: Routledge, 2019); and Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844–1942 (New York: Columbia University Press, 2001).

64 Pottinger's Memorandum of May 13, 1843, FO 17/67, fo. 265.

65 Keying to Pottinger, undated letter of May 1843, CO129/3, fo. 363 (emphasis added).

66 Addington to Stephen, March 22, 1843, CO129/3, fo. 151, 157–59.

67 Stephen's Minute of March 23–24, 1843, CO129/3, fo. 165.

68 Most colonial judges of the mid-nineteenth-century British Empire were also appointed at pleasure, as opposed to “during good behaviour”; that is, they had no security of tenure: John McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: University of Toronto Press, 2011), ch. 3.

69 Stephen's Minute of March 23–24, 1843, CO129/3, fo. 165.

70 Stanley's Minute of March 27, 1843, CO129/3, fo. 165.

71 By authority of the Act of 10 & 11 Vict., c. 83 (1847). See Rieko Karatani, Defining British Citizenship: Empire, Commonwealth and Modern Britain (London: Frank Cass, 2003), 55.

72 Aberdeen to Pottinger, April 6, 1843, FO17/64, fo. 212.

73 Pottinger to Aberdeen, July 27, 1843, FO17/68, fo. 231.

74 Proceedings of The Queen v Lo Atow and others, CO129/2, fo. 389, 395–96.

75 Ibid., fo. 389–90.

76 Ibid., fo. 396.

77 Ibid., fo. 393.

78 Caine to Lau, letter received on August 22, 1843, CO129/2, fo. 424.

79 Woosnam's Minute of January 21, 1843, FO17/66, fo. 141.

80 Caine to Lau, letter received on August 22, 1843, CO129/2, fo. 424.

81 Ibid.; and Lau to Caine, August 30, 1843, CO129/2, fo. 426.

82 Proceedings of The Queen v. Lo Atow and others, CO129/2, fo. 389.

83 Remarks on the Trial by the Chief Magistrate, September 14, 1843, CO129/2, fo. 411–14.

84 Pottinger's Note of September 30, 1843, CO129/2, fo. 415–17.

85 Chen, Chinese Law in Imperial Eyes.

86 Day, Jenny Huangfu, “The Enigma of a Taiping Fugitive: The Illusion of Justice and the ‘Political Offence Exception’ in Extradition from Hong Kong,” Law and History Review 39 (2021): 415–50CrossRefGoogle Scholar.

87 See, for example, Abe, Kaori, “Middlemen, Colonial Officials, and Corruption: The Rise and Fall of Government Compradors in Hong Kong, 1840s–1850s,” Modern Asian Studies 52 (2018): 1774–805CrossRefGoogle Scholar, at 1780. I am grateful to one of the anonymous reviewers for bringing this point to my attention.

88 Pottinger's Note of September 30, 1843, CO129/2, fo. 417.

89 Pottinger to Stanley, December 9, 1843, CO129/2, fo. 381.

90 Pottinger's Note of September 30, 1843, CO129/2, fo. 415.

91 Aberdeen to Davis, March 26, 1844, CO129/8, fo. 71–74.

92 Stephen and Stanley's Minutes of March 8, 1844, CO129/2, fo. 384.

93 Aberdeen to Davis, March 26, 1844, CO129/8, fo. 74.

94 Davis to Aberdeen, May 23, 1844, CO129/8, fo. 253.

95 For an account of some of these trials, see Munn, Christopher, “William Caine and the Hong Kong Magistracy,” Hong Kong Law Journal 25 (1995): 213–38Google Scholar.

96 Davis to Stanley, July 6, 1844, CO129/6, fo. 357–63.

97 For example, Pauncefote's Memorandum of July 3, 1865, FO17/613, fo. 255–57.

98 Lee, Ivan, “British Extradition Practice in Early Colonial Hong Kong,” Law & History 6 (2019): 85114Google Scholar.

99 “Introduction,” in The Extraterritoriality of Law: History, Theory, Politics, ed. Daniel S. Margolies, Umut Özsu, Maïa Pal, and Ntina Tzouvala (Oxford: Routledge, 2019), 1.

100 Cassel, Grounds of Judgment, 15–22.

101 Pär Cassel, “Extraterritoriality in China: What We Know and What We Don't Know,” in Treaty Ports in Modern China: Law, Land and Power, ed. Robert Bickers and Isabella Jackson (Oxford: Routledge, 2016), 24.

102 Cassel, Grounds of Judgment, 9, 42.

103 Davis to Keying, January 4, 1845, CO129/11, fo. 53. British colonies and self-governing territories would only begin to restrict Chinese immigration sporadically from the 1850s, and decisively from the 1880s: Kuhn, Philip A., Chinese Among Others: Emigration in Modern Times (Singapore: NUS Press, 2008)Google Scholar.

104 Kayaoğlu, Turan, Legal Imperialism; Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004)Google Scholar.

105 Eddie Tang, “British Policy Towards the Chinese in the Straits Settlements: Protection and Control, 1877–1900 (With Special Reference to Singapore)” (PhD diss., Australian National University, 1970).

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