Based on solid archival research and wide-ranging scholarly literature, Jenny Huangfu Day’s latest book makes fresh contributions to and enriches our understanding of several intersecting scholarly fields, including the history of modern China, international law, empires and colonialism, revolutions, and anti-colonialism. As the point of entry, Day asks what defined a “political offense” in Western international law (extradition law in particular) and how dominant powers’ legal and diplomatic practices (and the politics resulting from them) impacted events in modern China. Her answers reveal under-examined historical contingencies and variables in a larger world history context.
The book is organized into eight chapters covering the 1860s to the 1920s. Chapter 1 (the introduction) lays out the analytical issues treated in the book. Day outlines a trajectory by which “political offender” went from being a respectable category in Western political-legal discourses in the wake of the French Revolution to a less favorable one around the turn of the twentieth century when anti-colonialism, anarchism, and communism became more threatening. Parallel to this trajectory, in the mid and late nineteenth century, extradition laws and treaties that came into being in Europe established the concept of “Political Offense Exception (POE),” which limited a sovereign state’s responsibility to hand over a suspect if it determined the crime to be a political offense. During the same timeframe, the unequal treaties (with unilateral extraterritoriality for foreigners) between China and imperial powers signed from 1842 onward created extraterritorial and colonial spaces where Chinese law could not reach, and Chinese fugitives took refuge. “Under a pluralistic legal system of personal jurisdiction, the rule of the Qing law largely followed people rather than being delimited by the territorial boundaries of the state.” (p. 10) “Overtime,” as Day points out, “the framework of personal jurisdiction came to be compromised by the territorialization of law, whereby indigenous populations gradually came to be considered as colonial subjects” (p. 17).
Chapter 2 presents the intricate legal and political issues involved in the rendition of Chinese criminals from British-ruled Hong Kong through the intriguing case of Taiping rebel lieutenant Hou Yutian. After an initial misidentification of Hou, the main British objection to returning Hou, who was wanted by the Qing authorities, was that he would be executed by dismemberment (lingchi). The Qing governor in Canton evaded the issue by identifying Hou as a pirate instead of a Taiping rebel, a pretense that the British Consul knowingly accepted. The Consul defended his action to the Foreign Office in London by citing Article 21 of the Treaty of Tianjin on the return of Chinese criminals. The Hong Kong government chose to deliver Hou, despite its loathing of Chinese judicial practices, because it wanted to bypass the British Consul in Beijing and establish direct communication with Qing officials in Canton to address other cases of cross-border jurisdiction, including those involving criminals in Canton who were wanted by the Hong Kong government.
Chapter 3 discusses interactions in the 1860s and 1870s among the colonial government of Hong Kong, the Qing governors of Guangdong, British diplomats in Beijing, and the Foreign Office in London. Besides the practice of lingchi for those found guilty of treason and rebellion, the main point of contention was the Qing law that required a confession for conviction in serious criminal cases and allowed torture of the accused to get said confession. Day examines several cases in which criminals wanted by the Qing authorities were rendered by the Hong Kong government, along with British debates over the morality and legality of so doing. The chapter shows practical approaches that the Hong Kong government and British Consul in Beijing adopted to accommodate the Chinese side out of concern for the peace and security of Hong Kong, even though the Extradition Acts of 1870 and 1873 enshrined the principles of the POE, double criminality (an extradited offender committed an act that was a crime in both countries), and specificity (the accused was not be tried or punished without first being returned to Hong Kong). The flexible accommodations between the British and Qing officials contradicted Britain’s empire-wide extradition practices and drew criticism from legal activists. Into the 1880s, the Chinese legation in London played a key role in trying to negotiate extradition treaties with the British. While these efforts did not lead to a treaty of extradition, China’s negotiations with the French and Portuguese governments over rendition resulted in Article 17 in the 1886 Sino-French treaty and Article 45 in the Sino-Portuguese treaty, which called for mutual renditions of criminal fugitives.
Chapter 4 details efforts by the Guangdong provincial government and Hong Kong administrators to work out some mechanism for handling Chinese fugitives who escaped to Hong Kong after the Sino-French War of 1884–1885. These efforts took place in the context of an emerging wave of anti-foreign protests, riots, and armed conflicts mostly aimed at missionaries in southern China and the Yangzi Valley. “Across the Canton-Hong Kong-border,” Day writes, “justice was conceptualized as legal safeguards to protect the innocents from the corrupt Qing government and its tyrannical laws. But along the Yangzi River and in missionary enclaves, local communities held that foreign interference had compromised their traditional justice system by giving privileges to the converts” (p. 89). The outcomes of the cases examined in the chapter varied depending on the specific offense and whose opinion among the British diplomats, the Hong Kong government, and the Foreign Office prevailed. Their different opinions centered on the merits of resistance or accommodation to Qing requests given British laws on extradition, the official stance toward Chinese law, and practical concerns about peace and security in Hong Kong and elsewhere. Once the 1889 Hong Kong Extradition Ordinance excluded evidence procured in China, among other restrictions, a sticking point in such negotiations was the admissibility of Chinese testimony sent by the Qing government in extradition cases to establish a prima facie case.
In the meantime, during the late 1880s Catholic missions aggressively acquired land, property, and converts in southern China, leading to Chinese backlash against them. Under its treaty obligations, the Qing government assumed the role of the protector of missionaries, but local officials lacked the means to adjudicate such anti-foreign disputes and resorted to force to suppress riots, which only gave momentum to emerging anti-Manchu sentiment. On the other hand, the 1891 anti-foreign riots in the Yangzi Valley saw rebel groups “consciously exploit the space between moral justice as defined by customary laws and values, and the Qing’s treaty obligations to protect the security of foreigners” (p. 112). Both the colonial discourse of Chinese law as draconian and tyrannical and the anti-missionary discourse that painted foreigners as immoral perpetrators pointed to the conclusion that “the Qing was incapable of delivering justice” (p. 114), which undermined the Qing’s legitimacy.
Chapter 5 discusses how the impact of the Sino-Japanese War of 1894–1895 stymied negotiations between China and foreign powers over extradition treaties before analyzing the case of Sun Yat-sen’s abduction in London. Sun successfully utilized British law to avoid extradition and the British media to fashion himself into a typical “political offender.” On the Sun case, Day makes several points. (1) In initial discussions between Qing and British officials about Sun’s extradition for an aborted uprising in 1895, neither side framed the offense as “political.” (2) The Qing officials were unaware of the POE in the British extradition law because British diplomats had chosen not to mention it in their communications to the Qing government. The routine British objection to extradition was based on rejection of lingchi as punishment for offenders guilty of treason and rebellion. (3) Halliday Macartney, Secretary of the Chinese Legation in London, played a key role in detaining Sun, who was invited to walk voluntarily into the legation, but responsibility for the scandal (Sun’s detention) shifted from Macartney to the Qing Minister Gong Zhaoyuan in subsequent investigations and historical accounts. Blaming the scandal on the Chinese legation appeared to justify excluding China from the expanding international regime of extradition. (4) Sun successfully took advantage of the POE by emphasizing his status as a political offender. Based on analysis of the Sun case, Day further points to the general strategy that future rebels and revolutionaries would also adopt.
Chapter 6 examines Japan’s influence on China’s political and legal developments in the years 1898–1911. After the Qing’s failed 1898 reform, the Empress Dowager and court officials summarily executed six reformers to shield the Guangxu Emperor from being implicated in a case of treason and prevent foreign intervention, among other considerations. The escape and exile of Kang Youwei and Liang Qichao to Japan with immunity further undermined the Qing’s legitimacy and tied the reform movement to foreign and extraterritorial spaces, international law, and (semi)colonial administration. In the wake of the Boxer Uprising, the treaty port of Hankou’s Municipal Police carried out an order from the Qinggovernor-general to suppress the insurrection staged by Tang Caichang without considering the relevance of the POE. The 1903 Subao case involved two anti-Manchu journalists who were arrested by the Municipal Police of Shanghai’s International Settlement at the request of the Qing government but were tried and sentenced to 2 and 3 years, respectively, by the International Settlement’s Mixed Court instead of being handed over to the Qing. The case illustrates that foreign intervention in China’s politics took different forms, and that “the arbitrary imposition of legal exceptions by foreign powers resulted in extralegal measures based on neither existing laws nor treaties” (p. 161). The rest of the chapter traces how the term guoshifan (offender of national matters) entered Chinese vocabulary from the Japanese kokujiban and how political crimes entered the Qing’s New Criminal Code of 1907 from the Japanese criminal code.
Chapter 7, which covers the 1910s and 1920s (the early Republican era), narrates the Beiyang government’s revision of the criminal code and efforts by Sun Chuanfang (a warlord based in Jiangsu Province) to bring the Mixed Courts in Shanghai’s foreign concessions back under Chinese jurisdiction. At the same time, Western nations began to retreat from their earlier embrace of the POE as China became a place of refuge for revolutionary and anti-colonial activists from Korea and Vietnam. As Day explains, “the presence of foreign fugitives in China gave the Chinese government leverage to request quid pro quo arrangements” (p. 185). The rise of legal positivism in the West, which held that “international law was a tool for establishing consensus and minimizing conflict, not for determining right or wrong in international affairs” (p. 190), also impacted the extradition treaties, but Communists and other political activists continued to exploit divided jurisdictions in treaty ports. Yet Sun Chuanfang succeeded in recovering Shanghai’s Mixed Courts in 1926, and the Nationalist government fully incorporated these courts into the Chinese judicial system in 1930, thereby ending “treaty port extradition.” By then, the category of political crimes was established in Chinese law and treaty ports ceased to be safe havens for political activists.
Chapter 8 (Epilogue) reiterates the main themes of the book. Among other things, Day argues that “the seemingly timeless presence of the concept [POE] has masked significant discontinuities in its conceptualization and actual practice.” Rather than treating the POE as a fixed principle, she sees it “as an evolving, contentious, and deeply politicized practice negotiated at multiple levels.” In this way, “the book problematizes the history whereby the treaty powers extended this practice, with its haziness, legal technicalities, blind spots, and ideological convictions, to semi-colonial China” (pp. 212–213). Overall, Day has successfully identified and examined the implications and ramifications of the practice of POE in modern China, especially the trans-border and transnational characteristics of the anti-Qing, Communist, and anti-colonial movements, as well as the responses of the Qing, the Beiyang, and the Nationalist states, including their interactions with the treaty powers in dealing with revolutionaries as fugitives.
Highlighting the book’s major findings, despite a few quibbles that are not worth mentioning here, this review does not capture all the rich insights that it offers. Advanced students will find many analytical points worth reflecting upon regarding a host of events (and their twists and turns) in modern Chinese history and other related fields. The book will serve as an indispensable reference in the future.
