1

Affective Sovereignty, International Law, and China’s Legal Status in the Nineteenth

Century

Li Chen, Associate Professor of History and Sociolegal Studies, University of Toronto

Note: This essay is to be published in The Scaffolding of Sovereignty: Global and Aesthetic

Perspectives on the History of a Concept, Zvi Ben-Dor Benite, Stefanos Geroulanos, and Nicole

Jerr, eds., forthcoming (Columbia Univ. Press). All citations should be based on the published

version. The author thanks Columbia University Press for permission to use a few passages

discussed in Li Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural

Politics (Columbia University Press, 2016).

Prior scholarship has often studied sovereignty as a philosophical, juridical, or political discourse

and institution. Its sentimental dimension and history have received relatively little attention, and

even the most recent surge of publications on the doctrine of humanitarian intervention has

treated sovereignty primarily as a rationalistic issue. This chapter focuses on the affective or

sentimental aspect of the modern discourses of national sovereignty and international law in the

context of Sino-Western relations during the nineteenth century. I will first outline the rise of a

sentimental culture in the eighteenth and nineteenth centuries and its implications for redefining

the sovereign subject of the modern nation and international community. Next, I will trace how

incipient elements of this sentimentality had been incorporated into some earlier foundational

texts of the law of nations and how they survived the subsequent positivist turn in the

jurisprudence of international law. Finally, I will illustrate the operation of the sentimental

discourse in shaping the rights and obligations of sovereign states by examining the British

public and parliamentary debates over the Second Opium War with China in 1856-60. This

analysis will highlight the under-examined roles of the sentimental discourse in the historical

transformation of modern international law and politics. More specifically, I will argue that the

sentimental discourse, structured by the core concepts of primary injury and secondary injury,

played an important role in shaping China’s sovereign status in relation to Western powers

2

during the nineteenth century. While foreign domination in military, technological, and material

strength was certainly important in turning China into a “semi-colonial” country after the First

Opium War in 1839-42, the foreign powers rarely justified their China policies in the next

century simply because they were dominant empires. On the contrary, their policies were most

effectively rationalized as necessary for redressing or preventing injury to life, property, treaty

rights, or national feeling. This sentimental narrative of native injury to the dominant power was

by no means confined to the Sino-Western relationship. Its popularity and efficacy in modern

politics lies precisely in its liminal position – just like sentiment itself – which enables it to

appeal to affect and emotions without being fully bound by formal legal or moral norms, and to

claim legal and moral authority without losing its emotive power.

The Sovereign Subject of Modern Sentiments, Politics, and Civilization

By the end of the eighteenth century, a culture of sentimentality had become widespread in

Euroamerican societies, producing “a new set of attitudes and emotional conventions” that

regarded sympathy or compassion for other creatures’ suffering as a universal attribute of

humanity.1 As articulated by Adam Smith (1723-90) and various other Enlightenment thinkers of

his time, sympathy toward those in mental or physical distress was inherent in human nature and

was a marker of an enlightened individual and community. Inflicting or exhibiting excessive pain,

including state-sanctioned punishment, was considered to be barbaric and to have a barbarizing

effect on both the inflictors and the spectators.2 This “man of feeling” became prominent on the

1 Karen Halttunen, “Humanitarianism and the Pornography of Pain in Anglo-American Culture,” The American

Historical Review 100, no. 2 (1995): 303. For literature review, see Daniel Wickberg, “What Is the History of

Sensibilities? On Cultural Histories, Old and New,” American Historical Review 112, no. 3 (2007): 661-84. 2 Adam Smith, The Theory of Moral Sentiments (London: A. Millar, 1759). Also see David Hume, A Treatise of

Human Nature: Being an Attempt to Introduce the Experimental Method of Reasoning into Moral Subjects, 3 vols.

(London: John Noon, 1739-40).

3

social and political stage of history as capitalism and colonialism were spreading rapidly across

the world. Indeed, these Enlightenment ideas of sympathy not only exemplified the rise of a new

bourgeois sensibility and identity in European metropoles but also created a new “epistemology

and psychology,” as Uday Singh Mehta has noted, for “understanding experience and power,

especially in the unfamiliar context of the empire.”3 Historians have shown that this sentimental

culture played a crucial role in facilitating the abolition of slavery, judicial torture, and public

execution in many Euroamerican countries during the late eighteenth and nineteenth centuries.4

The sentimental discourse became so powerful in the nineteenth century partly because

thinkers of rational liberalism also promoted it as a defining feature of societal or civilizational

progress. According to John Stuart Mill’s influential 1836 essay “Civilization,” one thing that

distinguishes modern civilization from the earlier period “is that the spectacle, and even the very

idea of pain, is kept more and more out of sight of those classes who enjoy in their fullness the

benefits of civilization.” In the past, people were habituated to the spectacle of violence or “the

alternate suffering and infliction of pain,” whereas now all the tasks that involved inflicting pain

for purposes of public order and benefit are delegated to some specialized classes of people, such

as “the judge, the soldier, the surgeon, the butcher, and the executioner.”5 However, long before

the industrialized West could confidently claim such a firm temporal boundary between its own

rude past and its civilized present, a spatial boundary had already been asserted between the

presumably liberal and enlightened West and the Oriental other. For instance, in The Spirit of the

Laws (1748), Baron de Montesquieu, a founding theorist of modern political liberty and rule of

3 Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago:

University of Chicago Press, 1999), 16-17. See Lynn Festa, Sentimental Figures of Empire in Eighteenth-Century

Britain and France (Baltimore: Johns Hopkins University Press, 2006). 4 See, e.g., Pieter Spierenburg, The Spectacle of Suffering: Execution and the Evolution of Repression: From a

Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984), Elizabeth

Barnes, “Communicable Violence and the Problem of Capital Punishment in New England, 1830-1890,” Modern

Language Studies 30, no. 1 (2000).

5 John Stuart Mill, “Civilization: Signs of the Times,” The London and Westminster Review 3, no. 1 (1836): 1-2.

4

law, canonized the idea that countries like China, Turkey, Japan, and India were Oriental

despotisms governed by fear and corruption, in contrast to the law-based Western republics and

monarchies governed by honor and virtue, respectively. Scholars have seldom noted that

Montesquieu also incorporated the natural theory of moral sentiment into his comparative

scheme of societies. Speaking as a man of feeling, he wrote: “When in reading history, we

observe the cruelty of the Sultans in the administration of justice, we shudder at the very thought

of the miseries of human nature.” For him, despotic governments in general were defined by

severe punishment because their people, under the yoke of tyranny, were so “inured to the

cruelty” of punishments as to necessitate increasingly brutal penalties. This vicious cycle

eventually reduced them to savages.6 Drawing upon Montesquieu’s ideas on law and government,

Adam Smith also noted that the “civilized” nations were distinguishable from the “barbarians” in

their more lenient punishments.7 Although Smith was relatively more tolerant towards non-

Western societies than Montesquieu was, his theory of “commercial society” as the highest stage

of historical development, as elaborated in The Wealth of Nations (1776), was often interpreted

by other influential writers, including James Mill and John Stuart Mill, to classify non-Western

societies as backward ones.8

As I will further explain below, the interlocking operation of these influential strands of

rational liberalism and sentimental liberalism hence created a subject of the modern world that

6 M. de Secondat Baron de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent, 4th ed., 4 vols.

(London: J. Nourse and P. Vallant, 1766), 1:118-19, 124-25 (on Japan). Given its very different focus, this chapter

has no need or space for a detailed review of the intellectual genealogy, diversity, or internal contradictions of

European representations of China or Chinese law. For most recent studies and citations to the relevant existing

scholarship, see Li Chen, Chinese Law in the Imperial Eyes: Sovereignty, Justice, and Transcultural Politics, c.

1740s-1840s (New York: Columbia University Press, 2016); Teemu Ruskola, Legal Orientalism: China, the United

States, and Modern Law (Cambridge: Harvard University Press, 2013); Timothy Brook et al., Death by a Thousand

Cuts (Cambridge, MA: Harvard University Press, 2008). 7 Smith, The Theory of Moral Sentiments, 228, 383 (comparing Chinese foot-binding and European body-

squeezing). 8 About Smith’s pluralism and later thinkers, see Jennifer Pitts, A Turn to Empire: The Rise of Imperial

Liberalism in Britain and France (Princeton and Oxford: Princeton University Press, 2005), 21-50.

5

was defined simultaneously by the underlying universal theories of humanity and natural

sentiment and by the Europe-specific historical experiences and socio-cultural sensibilities.

Whether a non-European nation would be recognized as civilized enough for the full benefits of

sovereignty under (European) international law was now determined not merely by the

sophistication of its culture and institutions but also by its emotional practices or imputed

sentimental attributes. There has been little discussion of the latter aspect in prior scholarship on

the history of international law and sovereignty.

A corollary to such intellectual developments was the assumption that, as the London-

based Quarterly Review implied in 1812, the “humane” and “benevolent” governance by

European powers would more than liberate the Asian peoples from “under the yoke of a cruel

and unfeeling despotism.” Through the influence of imperial culture and pedagogy, the civilizing

mission of the colonial powers would gradually “infuse” into the native minds English or

Western “feelings.”9 A few decades later, John Stuart Mill likewise stated that the natives’

sentiments could be molded or “disciplined” into what were “required by civilized society.”10

The moral advantages resulting from its “humanizing policy and enlightened laws” would

presumably better qualify a Western power like Britain to acquire a vast colonial empire and turn

it into a “beneficent dominion” to improve the lot of millions of natives.11

An 1850 editorial in

the North China Herald, which would soon become the leading foreign newspaper in nineteenth-

century China, cited judicial torture and punishments in Shanghai to conclude: “Let European

nations compel these real barbarians to fulfill their treaties and another order of things must

9 “Papers Respecting the Negotiation for a Renewal of the East India Company’s Exclusive Privileges (1812),”

The Quarterly Review 8 (1812): 283 and 285 (quotations). 10

John Stuart Mill, Considerations of Representative Government (London: Parker, Son, and Bourn, 1861), 37. 11

See J. Sydney Taylor’s Speech (May 30, 1831), in The Punishments of Death (London: Harvey and Durton,

1831), 27, 27-35.

6

gradually ensue.”12

The treaties referred to were those between China and Britain, France, and

the United States, respectively, as a result of the First Opium War, which granted the latter

countries extraterritoriality and other privileges in China. Thus, the universalizing discourses of

humanity, sympathy, and liberty generated the moral authority, ideological appeal, and

intellectual framework for creating what Ann Stoler has called “different degrees of sovereignty

and gradation of rights.”13

Given the significant implications of the sentimental discourse, it is not surprising that an

enormous body of what may be called “affective knowledge” was produced to visualize and

narrate the cruelty and pain caused by social and legal practices in China, along with Japan, India,

Vietnam, and so on.14

In the process, numerous watercolor paintings, photographs, newspaper

reports, and books depicting Chinese punishments were constantly being created, circulated, and

consumed worldwide in the nineteenth and early twentieth centuries. Most of these visual and

textual narratives emphasized the pain and emotions of the foreign spectators in contrast to the

supposedly cruel or unfeeling Chinese criminals, executioners, and spectators. The resultant

global spectacle of Chinese cruelty and barbarity shaped the identity of both the foreign viewers

and commentators and their Chinese counterparts symbolized by such spectacle.15

According to the Enlightenment theory of sympathy, as Dipesh Chakrabarty has recently

pointed out, “[t]he person who is not an immediate sufferer but who has the capacity to become a

secondary sufferer through sympathy [by imagination] for a generalized picture of suffering, and

12

“Punishment of the Canton and Fuhkeen Vagabonds,” The North China Herald 1, no. 4 (1850). 13

Ann L. Stoler, “On Degrees of Imperial Sovereignty,” Public Culture 18, no. 1 (2006): 128. 14

See, e.g., Daniel V. Botsman, Punishment and Power in the Making of Modern Japan (Princeton, NJ:

Princeton University Press, 2005). 15

For a detailed analysis, see Li Chen, “Sentimental Imperialism and the Global Spectacle of Chinese

Punishments,” in Chen, Chinese Law in the Imperial Eyes, 156-200. For some typical accounts in this regard, see,

e.g., Old-Shanghai, “Chinese Massacre,” The Times, October 6, 1870; “Chinese Culprit before a Magistrate,” The

Free Enqurier, March 29, 1835, “Chinese Cruelty,” The Chicago Tribune, July 30, 1877. Also see Brook et al.,

Death by a Thousand Cuts.

7

who documents this suffering in the interests of eventual social intervention – such a person

occupies the position of the modern subject.”16

In claiming sympathy for the pain of others, the

sentimental spectator became both the speaking and feeling subject and a vicarious sufferer. The

adopted pain or injury thus endowed him or her with a moral authority and a new legal right to

protect the actual sufferer or humanity in general. This logic is at the root of the modern doctrine

of humanitarian intervention, although few have discussed it from the perspective of

sentimentality to understand how an unrelated spectator acquires legal standing by observing

another’s pain or injury. To better understand this, we need to trace the “pre-history” of this

sentimental discourse in the canons of international law.

The Discourse of Injury in the Law of Nations and International Law

It is well known that the doctrine of just war is a cornerstone of international law and its early

modern European predecessor. But at the heart of this key concept is a conception of inviolable

rights and their vulnerability and necessary defense. Hugo Grotius (1583-1645), a Dutch jurist

and one of the founders of the law of nations, cited St. Augustine and other classic sources in

declaring in the early 1600s that “there is no other reasonable cause of making war, but an injury

received” or threatened. The three main grounds for waging a just war were to defend one’s life

and property against injury, to recover what was unjustly taken away, and to punish past injury.17

In other words, although just war itself was couched as a legal right, its juridical and

philosophical origins lay in the idea of protection of oneself from injury. Agreeing with Grotius

in this regard, Emer de Vattel (1714-67), a leading eighteenth-century Swiss jurist, further

16

Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ:

Princeton University Press, 2000), 119, 126-27. 17

Hugo Grotius, Commentary on the Law of Prize and Booty, ed. Martine Julia van Ittersum, trans. Gwladys L.

Williams (Indianapolis, IN: Liberty Fund, 2005 [c.1604]), 102-7; Ibid., The Rights of War and Peace, ed. Richard

Tuck (Indianapolis, IN: Liberty Fund, 2005 [1625]), 393-96.

8

defined “injury or injustice [as] being a trespass against the perfect right of another.”18

The just

causes of war here had the claimant as the primary sufferer. Whether a war was considered just

would depend on what constituted a legally recognized injury. As we shall see, the social and

cultural specificities in constructing injury would be crucial for making that determination in

international conflicts. It is worth noting that a successful claim to injury was, and still is, more

than just a moral or legal issue. Among other things, seeking protection from alleged

vulnerability and damages, a key element of the injury discourse, almost had an inherently

emotive or sentimental dimension, implicitly or explicitly portraying the claimant as the sufferer

of unjustified actions and worthy of sympathy and remedy.

In comparison with this doctrine of just war based on direct injury, the concept of

secondary injury remained more controversial in modern international law, but this does not

make it less important in certain situations. In fact, it has become one of the most extensively

studied topics in international law over the last few decades. The recent debate over unilateral

humanitarian intervention has focused on whether it is a morally justifiable doctrine or an abuse-

prone pretext for military aggression.19

What is overlooked in the debate is the fact that the

sentimental discourse of humanity and sympathy was a major source of both the moral authority

for the doctrine of humanitarian intervention on the one hand and of its susceptibility to

manipulation for unrelated purposes on the other. A brief survey of a few influential treatises on

the law of nations or international law will illustrate this.

First, it is worth stressing that the sentimental discourse was and is much broader than is

implied by the modern doctrine of humanitarian intervention. The latter doctrine has often been

18

Emer de Vattel, The Law of Nations, or, Principles of the Law of Nature (Indianapolis, IN: Liberty Fund,

2008 [1758]), 266, 482-84 (echoing Grotius’s just-war theory). 19

See Ryan Goodman, “Humanitarian Intervention and Pretexts for War,” American Journal of International

Law 100, no. 1 (2006): 107-10; Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving

World Order (Philadelphia: University of Pennsylvania Press, 1996).

9

traced back to Grotius. Before him, however, Francisco de Victoria, a Spanish theologian and

another founding jurist of the law of nations, had argued in the 1530s that the Amerindian

governments’ “tyrannical and oppressive” laws and treatment of their “innocent” subjects (for

example, their reported cannibalism) constituted a cause of just war by a benevolent Christian

state like Spain against the former on behalf of the native victims. For Victoria, it was irrelevant

whether or not the natives desired such intervention, because they had no such “legal

independence [i.e., subjectivity] as to be able to consign themselves or their children to death.”20

The native government’s domestic cruelty was here implicitly treated as an injury to both

humanity and the presumably sympathetic foreigners. Grotius expanded Victoria’s argument to

contend that war could be justly undertaken against foreigners who were “inhuman to their

parents,” ate human flesh, or committed other offenses against nature. Their “depravity of mind”

was deemed so great as to have cut them off from human society and made them enemies of the

whole world. Citing Aristotle and other classical authorities, Grotius stated that “the justest war

is that which is undertaken against wild rapacious beasts and next to it is that against men who

are like beasts.”21

Thus, by invoking the moral sentiments associated with the sensational image

of cruelty and inhumanity, Grotius expelled the beastlike members from the universalized human

society or law of nations, retaining them only as the objects of punishment under the law of

nature. This doctrine of just war against another state in order to relieve the latter’s subjects from

tyrannical or cruel oppression served to override the prevailing view of an independent

government’s full autonomy over domestic matters.

20

Franciscus de Victoria, De Indies et De Ivre Belli Relectiones, Being Parts of Relectiones Theologicae XII, ed.

James B. Scott, trans. John Pawley Bate, edited by Ernest Nye (Washington, DC: The Carnegie Institution of

Washington, 1917 [1557]), 156-62. See Antony Anghie, Imperialism, Sovereignty, and the Making of International

Law (Cambridge: Cambridge University Press, 2004), 13-31. 21

Grotius, Commentary, 1022-24, 1024 (for quotation). While Victoria did not consider it just to interfere with a

country for offense against nature, Grotius held differently (ibid., 1024).

10

Some scholars might argue that the image of suffering humanity evoked in such texts was

just a rhetorical device, or that Victoria and Grotius justified the possible war against the

Amerindians or Oriental countries on the basis of morality alone, having nothing to do with

sentiment. The former argument is over-simplistic and tends to reduce these texts of international

law to little more than pretexts of power politics. The latter argument assumes an over-

rationalistic view of morality while dichotomizing morality and sentiment. Scholars have shown

that more plausible claims to moral authority, political power, and legal rights have often derived

their efficacy from making sentimental elements part and parcel of their own legitimacy and

appeal.22

Likewise, the persuasive power of humanitarian intervention based on the doctrine of

secondary injury, both morally and legally speaking, hinged on the emotional power of the image

of humanity in pain. In Grotius’s words, “if the injustice be [so] visible” under the tyrannies that

“no good man living can approve of, the right of human society shall not be therefore excluded”

from interference with that foreign nation. In other words, the sentimental reactions to the

“injustice” seen or imagined by the unrelated spectator created a moral obligation and a legal

right for the latter to intervene. It was not injury to the foreign spectators’ rights or property but

injury to their feelings or moral sensibilities that constituted the grounds of intervention.

Conscious of many recorded instances in which these sentiments were used as pretexts for

“ambition and avarice,” Grotius nevertheless concluded that abuses by the wicked shall not

invalidate what is just.23

Grotius had already begun to see humanitarian intervention as a “much

more honorable [act] to revenge other peoples’ injuries” rather than one’s own suffering.24

22

For the role of sentiment in shaping international politics or judicial process, see, e.g., Festa, Sentimental

Figures of Empire; Eugenia Lean, Public Passions: The Trial of Shi Jianqiao and the Rise of Popular Sympathy in

Republican China (Berkeley: University of California Press, 2007); Chen, Chinese Law in Imperial Eyes, 156-200. 23

Grotius, Commentary, 1161-62, 1159. 24

Ibid., 1021. Emphasis added.

11

The tensions between the general principle of respect for territorial sovereignty and the

lingering influence of universalist ideas of natural law and justice continued into the next two

centuries. Vattel was unequivocal that “nations are absolutely free and independent” and he

explicitly criticized Grotius for advocating the right to punish another state for violating the law

of nature. According to him, the right of punishment of nations could be derived “solely from

their right to provide for their own safety” and claimed only against those by whom they have

been “injured.”25

Insisting that foreign states had “no right to interfere in the government of

another independent state,” Vattel nonetheless did include an exception to this general rule:

provided that the “oppressed people” requested foreign assistance against their own government.

Therefore, despite his strong objection to Grotius’s doctrine of intervention, Vattel’s position

was softened by this imagined scenario of cruelty and humanitarian sentiment: monstrous foreign

rulers “render themselves the scourges and horror of the human race; they are savage beasts,

whom every brave man may justly exterminate from the face of the earth.”26

Henry Wheaton (1785-1848), an American diplomat and one of the few most influential

international lawyers in the nineteenth century, witnessed the further positivist turn of

international law whose ultimate source of legitimation was said to be based on the consent of

sovereign states. He also played a leading role in developing what Antony Anghie has called the

“recognition doctrine,” which made the legal status of independent non-Christian states a matter

to be determined by the Christian powers.27

What was Wheaton’s attitude toward humanitarian

intervention in disregard of state sovereignty? In his widely cited Elements of International Law

(1836), Wheaton justified the Christian European powers’ collective assistance of the Greek

25

Vattel, The Law of Nations, 265. 26

Ibid., 292, 290-91. It is clear that the sentimental discourse already influenced him as he borrowed

Montesquieu’s passages about the brutalizing effect of severe punishment (Ibid., 192). 27

Anghie, Imperialism, 75-114, 52-65.

12

rebels against the Ottoman Empire in 1827-30 on the grounds that the Greeks, “after enduring

ages of cruel oppression, had shaken off the Ottoman yoke.” For him, this example “affords a

further illustration of the principles of international law authorizing such an interference ... where

the general interests of humanity are infringed by the excesses of a barbarous and despotic

government.”28

This passage has frequently been cited by modern scholars as a most eloquent

articulation of the modern concept of humanitarian intervention. The passage conjured up for the

modern sympathetic reader a vivid image of the suffering of the Greeks – as brethren not just in

Christianity but also in humanity – from “the cruel warfare” and “merciless oppression” under a

“barbarous and despotic” Oriental empire. In the interests of humanity and by invoking

Montesquieu’s trope of Oriental despotism, Wheaton’s sentimental representation performed a

dual function. It created a state of exception to the supposedly universal rule of state sovereignty,

and it also made the Ottoman Empire, which was otherwise excluded by Wheaton and others

from the benefits of “the general international law of Christendom,” liable to punishment under

the Euroamericentric system of international law.29

The same arguments would be adopted by

many Britons in their debates over the two wars with China in the mid-nineteenth century.

Wheaton later revised his treatise to argue that contact with Western Christian nations had led

African and Asian countries, notably including China, to adopt the Western legal principles and

renounce their own backward customs and usages.30

Sovereignty and Sentimentalism in the Debate over the Second Opium War, 1856-60

In the examples we have discussed, the sentimental conceptualization of injury was essential to

the deliberation over when a just war could be launched against an independent state as an

28

Henry Wheaton, Elements of International Law (Philadelphia: Carey, Lea & Blanchard, 1836), 91, 94. 29

Ibid., 93-94. Wheaton also followed Vattel in emphasizing that the Greeks requested foreign assistance. 30

Ibid., Elements of International Law, 8th ed. (Boston: Little, Brown, 1866), 22, 178.

13

exception to the general recognition of state sovereignty. The ideas of both direct injury and

secondary injury were invoked to call for military intervention in the context of Sino-Western

relations in the nineteenth century. Nevertheless, together with the European intellectual tradition

that raised questions about the moral legitimacy and corrupting effects of excessive imperial

expansion, the universalist notions of justice and sympathy underlying the same discourses of

liberalism and sentimentality also generated some of the most scathing critiques of the imperial

project. In fact, Vattel had already observed in 1758 that “humanity revolts against a sovereign,

who, without necessity or without very powerful reasons, lavishes the blood” of his people and

exposes them to the danger of war.31

He also thought that Grotius’s unusually broad theory,

authorizing an unaffected state to use force to punish another state for violating the law of nature,

was to invite “all the ravages of enthusiasm and fanaticism” and create “numberless pretexts” for

political ambition.32

Then, the challenge would be to determine when humanitarian sentiment

about the suffering of others would constitute an injury that is genuine and serious enough to

justify intervention by a third party or foreign community. These challenges are illustrated in the

debates over the Second Opium War in 1856-60 and have continued to trouble thinkers and

jurists of our own time.

In a recent monumental study of this conflict, John Wong has shown the so-called Arrow

incident was a “manufactured” casus belli. Harry Parkes (1828-85), British consul at Canton, and

Sir John Bowring (1792-1872), Fourth Governor of Hong Kong, got Britain into this war by

maintaining that the Chinese seizure of the Arrow – a boat owned and operated by Chinese

smugglers except for the nominal British captain and its expired Hong Kong registration –

31

Vattel, The Law of Nations, 482. 32

Ibid., 265.

14

insulted the British flag and national honor.33

Lord Palmerston (1784-1865), the British prime

minister, adopted their “invented” story in support of a military expedition to punish the Chinese

imperial commissioner, Ye Mingchen (1807-59), both for insulting the British and for his

behavior as an “insolent barbarian.” Although John Wong considers economic interests (such as

the opium trade and Chinese goods and market in this case) were the most “pivotal” and the

ultimate cause of this war, he also notes that “public passion of imperial Britain at the time”

enabled Palmerston to influence public opinion and the decision-making process.34

Such passion,

or what I call sentiment, was amply demonstrated by the debates in the British press and

Parliament.

The conspiracy of Parkes and Bowring to cover up the expiry of the Arrow’s registration

and their subsequent unauthorized bombardment of the city of Canton made it a formidable task

for Palmerston’s government to defend them or the use of force against China.35

Even the British

attorney general suggested that Britain might well be at fault under international law in this case.

James Bruce (1811-63), eighth Earl of Elgin, led the China expedition in 1857-60 as British

Plenipotentiary, privately lamented that his campaign originated in a “scandal” and that the

bombardment of Canton was the “massacre of the innocent” in the Christian chronicle.36

When Adam Smith articulated his natural theory of sentiment in the 1750s, he assumed

that “the impartial spectator” would be able to overcome self-interest or national prejudice to

33

John Y. Wong, Deadly Dreams: Opium, Imperialism, and the Arrow War (1856-60) in China (Cambridge:

Cambridge University Press, 1998), 69-127, 4-5, 26-27, 459-63. About the war itself, see James L. Hevia, English

Lessons: The Pedagogy of Imperialism in Nineteenth-century China (Durham: Duke University Press, 2003), 32-117. 34

Wong, Deadly Dreams, 464. 35

See “House of Commons [Debates on March 3, 1857],” The Times, March 4, 1857; Wong, Deadly Dreams,

174-215. 36

John Newsinger, “Elgin in China,” New Left Review 15 (2002): 130 and 120; “House of Lords [Debates on

February 26, 1857],” The Times, February 27, 1857.

15

sympathize with those foreigners thousands of miles away.37

In an essay that coined the term

“international law” for the law of nations in the 1780s, Jeremy Bentham (1748-1832), a British

philosopher and radical reformer with enormous influence on liberal thinkers including John Mill,

pointed to the serious limitations of sentiment in the practice of empire: “Distant mischiefs make

little impression on those on whom the remedying of them depends. A single murder committed

in London makes more impression than if thousands of murders and other cruelties were

committed in the East Indies.” As a result, the impeachment of former Governor-General of

India Warren Hastings in London in 1788-95 “excited compassion in those who heard the detail

of the cruelties committed by him [in India] with indifference.”38

In the trial of Hastings,

Edmund Burke (1729-97) called this kind of refusal to extend the metropolitan legal and moral

standards to non-Western people a practice of “geographical morality.”39

For Burke, the

disparaging representation of the Indian people as alien and inferior was more responsible than

the geographical distance for the British refusal to empathize with those sufferers of British

colonial injustice. As those distant people had “no other remedy but the sympathies of mankind,”

Burke considered the British refusal to extend sympathy a robbery in itself.40

By construing the

withholding of sympathy to the colonized population as an injury to humanity, Burke here

brought to sharp relief the flip side of the now widespread discourse of sentimental liberalism

and humanitarianism.

The charge of geographical morality was also what empowered the critics of the Second

Opium War in their attack on the Palmerston government. When the debate over the war with

37

See his hypothetic earthquake in China, at Adam Smith, The Theory of Moral Sentiments, 2nd

ed. (London: A.

Miller, 1761), 211-14. 38

His Principles of International Law was drafted in 1786-89. See Jeremy Bentham, The Works of Jerome

Bentham, 11 vols. (Edinburgh, 1843), 2:547. 39

Edmund Burke, The Works and Correspondence of the Right Honourable Edmund Burke, 8 vols. (London:

Francis & John Rivington, 1852), 7:380, 287-88. Pitts, A Turn to Empire, 77. 40

See Pitts, A Turn to Empire, 74-75 (quotations), see 72-80.

16

China came up in the House of Commons in March 1857, Sir William Gladstone (1809-98)

argued that Britain could not justify its bombardment of Canton and the war in terms of

“municipal, imperial, or colonial law,” “international law,” or “the higher ground of natural

justice.”41

Palmerston and his supporters tried hard to mount a defense by interpreting

international law to suit their own arguments, but in the House of Lords in February 1857 the

Earl of Carnarvon urged his audiences to attend to “the injustice committed by this country in

enforcing the principles of international law when those laws applied in our own favour, and

refusing to recognize them when their application justified the conduct of the Chinese.”42

However, it was John Roebuck (1802-79), a leading Radical reformer and M.P., who explicitly

referred to Burke’s geographical morality when he stated in the House of Commons: “I wish

[those who supported the war with China] would suppose that these transactions took place in

the city of Liverpool and the Mersey, for I have found that European and western people

generally have one rule of morality for the west and another for the east.” That principle had

indeed been put forward in Parliament, but it was his belief that “the rule of morality extends

over the globe (cheers), and what is just and unjust in the Mersey is equally just or unjust in the

river before Canton. (Renewed cheers).”43

To rouse his audience’s sympathy toward the Indians afar, Burke described both Indian

suffering and British cruelty in vivid detail because he knew that his task, as Jennifer Pitts has

noted, required careful “theatrics.”44

In Burke’s words, “I am sensible that a cold style of

describing actions ... [is] contrary to the justice due to the people, and to all genuine human

41

Speech by Gladstone in “House of Commons [Debates on March 3, 1857].” 42

“House of Lords [Debates on February 26, 1857].” 43

“House of Commons [Debates on March 3, 1857]”; Hansard’s Parliamentary Debates, 3rd Series (London:

Cornelius Buck, 1857), 144: 1783-85. 44

Pitts, A Turn to Empire, 75.

17

feelings about them.”45

Therefore, his rhetorical strategy was to create “deliberately shocking

imagery to overcome what he feared was the insuperable indifference” of the British elites and

public toward the suffering of a distant people despised and often ignored by the British.46

Interestingly, both critics and defenders of the Second Opium War deployed similar strategies.

Just as Burke tried to make the Indians less alien to his audience, John Roebuck also stressed in

1857 that “China is among civilized nations,” and that the Chinese “are a civilized people” even

though their civilization “is not ours” and “is of a particular kind” in the sense that “they have

not applied their intelligence to the art of war” as aggressively as we do. It is true that “they have

been called barbarous [by us], but it must not be forgotten that they [also] call us barbarians.” To

impress his audiences further, he redirected their attention to the sharp contrast between their

self-image and the actual consequences of British expansion overseas: “[The] citizens of Canton

have seen their dwelling cut up and destroyed; they have seen their relatives butchered by the

wonderous civilization of England; their blood has flowed, and for what? All because it is said

the flag of England has been tarnished by the police officers of Canton.” What would happen if

“London were so shelled by a people of superior civilization to ourselves”? He had no doubt that

every Englishman would then be ready to sacrifice himself to “destroy the barbarians as we

might call them who had battered the city about our ears.”47

As Britain was supposedly the only

great people with a constitutional government and large Eastern dominions, according to

Roebuck, British acts in the East would be seen as representative of the entire Western

civilization and of Christianity. A number of other British Members of Parliament expressed a

similar concern about the great damage done by this incident to Britain’s national character. As

45

James Burke, ed., The Speeches of the Right Hon. Edmund Burke, with Memoir and Historical Introduction

(Dublin: James Duffy, 1853), 250. See Pitts, A Turn to Empire, 75. 46

Pitts, A Turn to Empire, 76. 47

“House of Commons [Debates on March 3, 1857].” Also Hansard’s Parliamentary Debates, 3rd Series, 144:

1783-85.

18

Lord Malmesbury noted: “I feel that the honour of the country is at stake in this instance equally

with its morality... [and] I feel shame for my country.”48

Whether these critics’ representation has the intended or unintended effect of giving due

recognition to the sovereign and civilized status of China, Palmerston and his allies deployed the

sentimental discourse to deny or displace that status. The government sent Parliament a volume

of over 200 pages of Correspondence Regarding Insults in China during the years 1842-56,

which was designed to pile all the “outrages” on the back of the Arrow incident to “make it big

enough” to justify the war.49

It turned out that these thirty-seven “insults” also included not only

Sino-American disputes but also British outrages against the Chinese.50

The British government

survived a vote of censure in the House of Lords but lost in the Commons on February 26, 1857,

by 263 votes to 247. In response, Palmerston dissolved Parliament and made an appeal to the

people by calling a general election.51

News of Chinese resistance to or attack on the British, including a reported attempt by a

Chinese baker in Hong Kong to sell poisonous bread to the foreigners there in January 1857,

after the British bombardment of Canton, made for sensational headlines in English newspapers

that condemned the Chinese for “cold-blooded murders” or “diabolic” cruelty.52

The Morning

Post, the British newspaper with the largest circulation after The Times, attributed the attempted

poisoning to Commissioner Ye and described him as “the most truculent miscreant who had

butchered seventy thousand of his own countrymen and who subsequently stimulated ‘by a large

48

“House of Lords [Debates on February 26, 1857].” 49

“Correspondence respecting Insults in China,” in Parliamentary Papers (London: House of Commons, 1857).

Quotation is from Goderich, “House of Commons [February 27],” The Times, February 28, 1857. 50

“House of Commons [February 27].” 51

“House of Commons (March 5, 1857),” The Times, March 6, 1857. About the candidates’ speeches, see “The

Elections,” The Times, March 30, 1857. Wong, Deadly Dreams, 216-58 (on the “Chinese Election”). 52

“The Chinese and Persian Wars,” The Times, March 2, 1857.

19

reward, the murder of our countrymen.’”53

Critics of Palmerston’s government observed that all

such attention to Chinese character as “uncivilized and cruel” was irrelevant to the current debate

because it could not be understood as justifying the waging of war against them.54

However, the

sentimental discourse of Chinese punishments seemed to have precisely that effect. Consul Harry

Parkes himself had published in the journal of the Royal Asiatic Society a lengthy account of the

execution of fifty-three members of the Taiping Rebellion in Canton as witnessed by his

colleague in 1852, writing that “owing to their hands being so constantly steeped in human blood,

they do not shrink from the committal of the most inhuman practices.” Discussion of the “cruelty”

of Chinese punishments thus proved that the Chinese had only “semi-civilization,” and among

them “sympathy or feeling for the sufferings of others” was replaced by apathy or even

brutality.55

Likewise, Bowring wrote to The Times about the attempted poisoning in the heat of

the debate in 1857 to defend the war and later published an article about “crimes and criminals in

China.”56

These narratives about Chinese cruelty were directly translated by commentators and

politicians into a justification for the military expedition. The Globe, another British newspaper

supportive of Palmerston and the war policy, fabricated an alleged testimony to hold the Chinese

authorities responsible for the poisoning.57

This charge in turn led some of the mainstream media

to suggest that the Chinese be placed “outside the pale of all laws” and be “dealt with as noxious

animals – as wild beasts in human shape, without one single redeeming virtue.” Regarding such

a people, it was useless to talk about international law; rather, only one law was applicable, “a

53

Wong, Deadly Dreams, 226; also see 156-58 and 169-70 (on Palmerston's relationship with this paper). 54

See Mr. Henley’s criticism of Ralph Bernal Osborne in “House of Commons [Debates on March 3, 1857].”

Also see Hansard’s Parliamentary Debates, 3rd Series, 144: 1759. 55

Harry S. Parkes, “Description of Proceedings in the Criminal Court of Canton, with an Account of an

Execution at Canton by Frank Parish,” Transactions of the China Branch of the Royal Asiatic Society Part 3 (1853):

43, 53-54. 56

“Sir John Bowring on the Chinese Barbarities,” The Times, April 18, 1857; John Bowring, “Recollections of

Crime and Criminals in China,” The Cornhill Magazine 12 (1865). 57

The Globe, March 24, 1857, quoted in Wong, Deadly Dreams, 227-28, see 170 (on the media).

20

law of severe, summary, and inexorable justice.”58

Besides recent Sino-Western disputes,

century-old missionary stories about Chinese uncleanness, sensuality, avarice, and prejudice

against women were also cited to confirm that the Chinese should not be negotiated with exactly

like “a civilized state.”59

In any event, the “cold-blooded, machine-like” Chinese should be

punished for their injury or offense to humanity, if not directly to the British.60

Capitalizing on the emotional power of this discourse of Chinese cruelty and barbarity,

Palmerston and his supporters appealed to both the jingoistic sentiments of their audiences to

defend the nation and their moral conscience to defend humanity in general. On March 20, 1857,

right before the so-called Chinese Election, Palmerston delivered a public address before the

entire Cabinet, members of both Houses of Parliament, and the entire diplomatic corps in

London. He accused critics of his policy of being motivated by party agendas and being

“instruments of national dishonour and disgrace.” In response to the idea that his administration

was “addicted to war,” he reformulated the whole debate as one over whether the British should

have the right to vindicate the “insult, outrage, and atrocity” suffered by their “fellow

countrymen in a distant part of the globe.” In the process, he skillfully identified the Opposition

and critics with the “Chinese barbarians,” who were then equated with cold-hearted murderers.

He pointed to “the logical and inevitable consequences” if the Opposition were to come to power:

They were bound ... to have apologized to the Chinese barbarians for the wrongs

we had done – to have rebuilt the forts which we gallant sailors had destroyed, ...

and at the same time, in order to complete the measure of redress, they must have

paid the rewards which had been given for the heads of our merchants, and the

cost of the arsenic which had been used in poisoning our fellow-subjects at

58

Wong, Deadly Dreams, 226. 59

“China,” The Times, April 6, 1857; The Morning Post, February 28, 1857. 60

“Chinese Humanity,” The Times, May 5, 1857.Parkes, “Description of Proceedings,” 56 (for the quotation).

21

Hongkong. (Cheers). Gentlemen, I cannot envy the feelings of those men who

could witness with calmness the heads of respectable British merchants on the

walls of Canton, or the murders and assassinations and poisonings perpetrated on

our fellow-countrymen abroad, and who, instead of feeling their blood boil with

indignation at such proceedings, would have had us make an abject submission to

the barbarians by whom these atrocities were committed. (Cheers.)

The whole nation was urged to “rally together to vindicate the honour of the empire.”61

Three

days later, Palmerston released another election address that was circulated nationwide, with a

memorable account of the origin of the war with China: “An insolent barbarian, wielding

authority at Canton, had violated the British flag, broken the engagements of treaties, offered

rewards for the heads of British subjects in that part of China, and planned their destruction by

murder, assassinations, and poisons.’”62

While members of the Opposition found Palmerston’s

speeches “full of deception and falsehood,” his arguments carried the day in the general election.

Indeed, people from all walks of life, not just those interested in the China trade, rallied around

the government to attack Opposition members, many of whom had to express their penitence to

their constituencies.63

Palmerston returned to power in April 1857 with a landslide victory that

swept away many of his critics in Parliament. The war with China continued even after the Tory

Opposition took over in February 1858; Palmerston was back in office in June 1859 and stayed

through 1865.64

These invocations of popular sentiments were not just rhetorical devices but were

embedded in the larger discourse of what I call sentimental liberalism and intimately connected

61 “Ministerial Banquet at the Mansion-House,” The Times, March 21, 1857.

62

“Lord Palmerston's Address,” The Morning Post, March 25, 1857, 4.

63

For “Election Intelligence,” The Times, March 21, 1857.

64

About British party politics then, see “England since 1830,” The Times, March 17, 1874.

22

with the sentimental facet of international law and politics under study in this chapter. As I have

also shown elsewhere, this sentimental discourse enabled Western lawyers and politicians to

redefine China’s sovereign status and rights under international law and order.65

By the same

token, the treatises and concessions that resulted from the Second Opium War further

undermined China’s sovereignty. When it came to 1900, the representation of China’s cruelty

and injury to its own people and to foreigners during the Boxer Rebelling served to naturalize the

earlier bifurcation of the world into a community of “civilized” states as full subjects of

international law and another group of states including China as partial subjects only for

fulfilling legal obligations under their treaties with the former nations.66

This bifurcation and the

resultant gradations of sovereignty can be traced back to the debates over the two Opium Wars as

well as the legal treatises of Wheaton and his predecessors such as Grotius and Victoria.67

If “the

history of sovereignty doctrine in the nineteenth century,” as Antony Anghie has aptly put it, “is

a history of the process by which Europeans states, by developing a complex vocabulary of

cultural and racial discrimination,” claimed the power to determine “who is and who is not

sovereign,”68

then it is also a history of how the sentimental discourse became a key part of this

vocabulary and a significant source of this power.

65

See Chen, Chinese Law in Imperial Eyes, 156-242.

66 “An Eyewitness Tells of Recent Frightful Chinese Torture,” The San Francisco Call, July 22, 1900; George

Thin, The Tientsin Massacre, the Causes of the Late Disturbances in China and How to Secure Permanent Peace

(London: William Blackwood and Sons, 1870), 25-26, 66-67, 94; “The Note to China,” New York Times, Dec. 24,

1900, 6. Even For foreign imperial politics in post-1860 China, see Hevia, English Lessons, 124-314.

67

About the First Opium War, see Chen, Chinese Law in the Imperial Eyes, chapter 5.

68

Anghie, Imperialism, 100.

23

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