Ed. Note: Dr. Jenny Huangfu Day’s article, “The Enigma of a Taiping Fugitive: The Illusion of Justice and the ‘Political Offence Exception’ in Extradition from Hong Kong,” appeared in Law and History Review 39, no. 3 (August, 2021), 415-50. Dr. Day discussed her path to this topic as well as some of her broader scholarly interests.
The Docket [TD]: Hi Dr. Day, thanks so much for taking the time to talk with us! Your article appeared in the August, 2021 issue of Law and History Review and has become one of or most downloaded articles since. Our readers would be very interested to know a bit about how you got interested in the article topic.
Jenny Huangfu Day [JHD]: After I published my first book on Qing diplomats in Europe, I spent two years going through the FO 17 series from the British National Archives to look for all correspondence between Qing diplomats in London and the British Foreign Office. I had used some of these letters for my book, Qing Travelers to the Far West, but I knew there were many more scattered all over the archive, so I wanted to organize and publish them in one set.[1]
In this process, I noticed that many legal cases the Qing legation dealt with had to do with interstate justice, in particular, fugitive rendition from the British colony of Hong Kong. I had never come across these cases from other archives or published collections, but they were some of the richest, longest, and most sophisticated writings from Qing officials on international law I had ever seen. This was just before two extradition-related events shook the world in 2019 – the Hong Kong protests against the extradition bill from China and the US extradition request for Huawei executive Meng Wanzhou – and suddenly there was so much interest in extradition in the press. I was struck by how far back the problem goes and yet how little we know about the history of extradition in Qing and twentieth-century China.
TD: Walk us through the research process for the article. Any notable experiences in the archives or other moments that would interest readers?
JHD: I started from the legation correspondence with the British Foreign Office in the FO 17, which have been digitized and freely downloadable.[2] I then visited the National Archives and found more documents from CO 129 and FO 405, which revealed a larger number of extradition cases. These files also contain names of fugitives written in Chinese characters and translated correspondence from the Chinese provincial government. This more detailed information allowed me to search for these cases from the Chinese archives and the personal collections and diaries of Qing officials, which gave me a sense of how these cases were seen and handled by the Chinese side. Some of these Chinese revelations were surprisingly candid and fresh, providing a counter perspective to the British documents. Newspaper databases were also extremely helpful in showing how public knowledge of the case was constructed and where it differed from the archival materials.
The most exciting experience in the archives came from finding different clusters of sources about the case that show clear contrasts in perspectives between different bureaucracies, and evidence of attempts at controlling the transmission of legal knowledge. For example, the information about British diplomats’ role in facilitating the extradition of a Taiping fugitive had to be kept away from the parliament and the public, but disseminated to a very limited circle among the Foreign Office to facilitate British diplomats’ work in China.
“To put it simply, the “political offence exception” provided the legal framework and rhetorical contours of the development of the political opposition that eventually toppled the Qing dynasty. And yet throughout the decades of political upheavals and despite their mutual misgivings, diplomats and administrators across the Canton–Hong Kong border continued a degree of collaboration with the tacit understanding that strictly enforcing British extradition law in Hong Kong was impractical and inimical to local order.”
Jenny Huangfu Day,“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, no. 3 (August, 2021), 415-50
TD: Explain a bit about the state of the literature on this topic and adjacent topics. Do you see yourself as part of a series of ongoing conversations or is this something you are hoping will spark new discussions?
JHD: There’s so much exciting new legal scholarship on modern China and Hong Kong: on the history of extraterritoriality, the Hong Kong magistry and the supreme court, the judicial reforms of the late Qing and Republican government, and the international jurisprudence around refugees and asylums. But there has been relatively little attention paid to the history of extradition between China and territories under foreign jurisdiction, including treaty ports, colonies, and foreign territories.
This lack of literature in the China field can be contrasted with a growing body of studies on the subject of imperialism and interstate justice in Europe and America, such as works by Lauren Benton, Bradley Miller, Karl Härter, Richard Bach Jensen, and Julia Jansson. I think that their perspectives, methodologies, and findings can inform our understanding of how the China puzzle fits into the global history of interstate justice, and my work is an attempt to bring their perspectives to bear on China.
In contrast to the modernization narrative that treats Qing law as the exception to a set of fixed civilizational norms, I am interested in understanding how international norms regarding fugitive rendition changed from the late 18th to the early 20th centuries, and how these changing norms, in turn, interacted with fugitive rendition of the Qing. It seems that China was chasing some fast-changing norms and practices which diverged significantly from what it understood it had signed up for in the Sino-British treaties following the two opium wars.
TD: Are there contemporary or current events that your research speaks to? How so?
JHD: My initial research coincided with the Hong Kong protests in the summer of 2019. It struck me that while much of the media coverage focused on the Hong Kong citizen’s rightful demand for civil liberty and human rights, there was relatively little discussion on how the different legal system in Hong Kong interacted with mainland China’s social, legal, and political order. Hong Kong’s status as a haven for Chinese fugitives has been well-known, and it was the site of political movements in nearly every critical juncture of modern China. I think this aspect has been obscured by the attention to Hong Kong as a defender of human rights and the rule of law in the face of Chinese authoritarianism. I began searching for the historical origins of the current extradition debate, trying to understand how similar cases between China and Hong Kong were negotiated historically.
TD: Do you see yourself moving forward with this same research topic? is it connected to a book project?
JHD: Yes, this is part of a book project on interstate justice between China and Hong Kong from the 1840s to the early Republican period. I’m interested in examining the connections between the anti-Qing movements in the 1850s-1900s and changes in international law – in particular, in regimes of extradition, the concept of “political offence,” and the emerging transnational criminal justice system.
TD: How might teachers use your research as part of their curriculum?
JHD: It’s my hope that this article can be useful for courses on international and comparative law, and on colonialism and the rule of law. I also hope that courses on the modern history of China or the history of Hong Kong can use it to introduce a legal perspective to the social and political history of the 19th century. Currently the unit on the Taiping rebellion is sometimes taught as a “domestic” movement somewhat separated from the wars of imperialism from the 1840s onward. This article makes the point that we can’t understand China’s domestic unrest without paying attention to the history of imperialism as well as the changing norms of international law.
[1] Zhengzheng Huangfu (Jenny Huangfu Day), ed. Wan Wan Qing zhu Ying shiguan zhaohui dang’an [Archival documents from the Qing legation in London]. 4 vols. Shanghai: Shanghai guji chubanshe, 2020.
[2] The National Archives (TNA), FO 17: Political and Other Departments: General Correspondence before 1906, China. https://discovery.nationalarchives.gov.uk/details/r/C7337