Imperialism, international law, and the citation of Chinese traditions

Qi Fei 2019

Supervisors Dr. Inge Van Hulle Mr. Hyoung-Jin Nho

1

Introduction

There have been plenty of discussions on the topic of antiquity of international law. The discussions cover traditions from diverse cultures ranging from ancient Greece to China and India. The traditions are studied for our understanding and for their contribution to the coming into being of concepts indispensable to modern international law. Among these studies, there have always been a group of scholars who write about philosophical thoughts and practices developed in China’s antiquity, in particular with regard to conducting warfare.1 Usually the narrative would start with the history of 770-221 B.C., when China was divided into multiple small kingdoms, vying for power and leverage over each other. The argument is usually that these philosophical thoughts and practices constitute an analogy with concepts of modern international law. With reference to that point, it has been argued that international law owes some of its origin in ancient China. This argument has been criticized for its artificiality. Arthur Nussbaum had refused to recognize the scholarship on Chinese and Indian ancient international law as studies of genuine international law.2 His argument started with distinguishing primitive tribes as being familiar with the differences between war and peace, but failed to develop collective and organized fighting which is typical of modern warfare.3 He found that the primitives were lacking in their ability to see the point that a foreigner is an enemy. His conclusion depicts a bleak picture saying that it was wrong to view primitive behaviors as equivalent with modern international law and that there is no innate idea

1 For example W.A.P. Martin, ‘Les Vestiges d’un Droit International dans L’Ancienne Chine’ (1882) Rev Dr Int 227; Teshu Cheng, ‘International Law in Ancient China (1122-249 B.C.)’ (1927) 11 Chinese Social and Political Science Review 38-251; Chen S-T, ‘The Equality of States in Ancient China’ (1941) 35 American Journal of International Law 641-650; Keishiro Iriye, The Principles of International Law in the Light of Confucian Doctrine (Sijthoff 1968); Wang Tieya, International Law in China: Historical and Contemporary Perspectives (Martinus Nijhoff 1990); and the most recent literature review in Yi Ping, ‘The Final Splendour of an Aged Empire: Chinese Thought on International Law in the early Twentieth Century’ (2016) 9 Journal of East Asia and International Law 29-51. A preliminary search in the cnki academic journal database for the time period 1984-2018 returns 46 entries on ancient Chinese international law and the introduction of modern international law to China. 2 Arthur Nussbaum, A Concise History of the Law of Nations (Macmillan 1954) 3-4. 3 Ibid 1. 2 of international law in mankind. Following from this conclusion, he observes that Chinese ancient history is not in the international sense, because there is no distinction of an enemy, not to mention that some practices were ridden with uncurbed cruelty which were inadmissible under modern standards.4 Avoiding to deal with question of modernity, David J Bederman approached this matter more constructively than Nussbaum. Believing there is unity in human behavior in antiquity, Bederman did not strike out Chinese and Indian ancient international law all together.5 He avoided this part of the history and instead focused on the Near East and Mediterranean because this strand of history contains an ‘uninterrupted flow of events’ that were carried on into cultures developed later. Bederman’s exclusion of the narrative on China and India from his volume is not because of anything racial, but that these two cultures seemed disconnected from the ‘continuity’ of the Near East and Mediterranean and even from the traditions developed among themselves, although it came as a surprise because these ancient cultures are known to have made contacts in economics and religion.6 Up to now, it seems that topic of ancient Chinese international law is sitting uncomfortably between modernity and antiquity, belonging to neither but longing to be both. Rune Svarverud wrote about this peculiar discourse of history with reference to parallelism.7 Comparing the multi-state system of medieval Europe and early Chinese history, he observed that the European system is not only absent in China but that it has never been treated as an ideal state of being.8 The ideal state of being has always been one of an ancient prosperous state that stood even in times of crisis. So, his theory was that even though there are similarities between Europe and China in early histories, they departed from each other onto different paths, with Europe growing increasingly into

4 Ibid 5. 5 David J Bederman, International Law in Antiquity (Cambridge University Press 2004) 3. 6 Ibid at 4; for a view on the European origin of international law, see also Chen Tiqiang, ‘The People’s Republic of China and Public International Law’ (1984) 8 (1) Dalhousie Law Journal 3-4. Note the differences compared with Wang Tieya. 7 On parallelism, see also Siu Tchoan-Pao, Le Droit des Gens et la Chine Antique (Librairie de Jurisprudence Ancienne et Moderne Edouard Duchemin 1926). 8 Rune Svarverud, International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847-1911 (Brill 2007) 151-152; see also Roswell S Britton, ‘Chinese Interstate Intercourse Before 700 B.C.’ (1935) 29 (4) The American Journal of International Law 616-635. 3 sophistication and systematization. Svarverud is also critical of weak analogies linking ancient China with international law, in particular in the matter of sovereignty.9 The reason he provided was leaning toward realism, saying that in Chinese antiquity it was the struggle for power that really mattered. He traced the development of the discourse back to the 19th century when international law was first translated and introduced to China by American missionary W.A.P. Martin. How Martin’s book on the origin of international law in Chinese antiquity kicked off a tradition of scholars writing about this topic. This discourse then became a problem because the socio-political power it has gathered stifled scholarship offering different views. We have seen from the above a brief summary of main positions of criticisms directed at the saying of a Chinese tradition in international law. While being a subject heavily criticized, is it still possible to write in a scholarly way about ancient China in the field of international law? To answer this question, we need to understand some of the premises the criticisms were founded on. First of all, Nussbaum’s distinction of the primitive from the civilized is representative of international law’s own past that had a lot to do with imperial expansion and a racist account of certain people who had been excluded from the scope of civilization.10 Does this time period have any impact on what is considered an international law proper against primitive or semi-civilized cultures? What was it like in the 19th century when armed conflicts broke out between China and European powers such as Britain and France? Was international law really that benign? How did international lawyers talk about these events in their writings? Did this time of war, conflicts, and imperial expansion have any influence over the emergence of an ancient China or a modern one vis-à-vis her European counterpart? Secondly, if we only look for voices that advocated international law or gongfa, most likely we find someone saying international law is good and should be introduced to China if not to the entire world. The level of similarity between some ideas quoted as

9 Ibid 154-155,160. 10 A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005). 4 ancient traditions and certain concepts in international law is said to have been a proof that the traditions are part of something worldly. This is not the case. If you look at some discussions among Chinese scholars who were contemporary to the conflicts, not necessarily those who read the translation of Wheaton, it seems their focus was more on a limited China. The right question seems to be who were citing ancient traditions of China and for what purposes, rather than what those traditions are and their relevance to international law. Moreover, how to place those the interventions within the much broader Neo-Confucianist debates of Neo-Confucianism that started from the Song (960-1279) and Ming (1368-1644)? What are the implications of those citations for us when we imagine a China that could be something distinct from its modern conception? Lastly, how to deal with the matter of time when speaking about ancient China in the context of international law, in particular the laws of war, while avoiding falling into anachronism? This study is an attempt to keep the discussions within the timeframe of a certain event. This opens a field where ideas and thoughts could be juxtaposed. What have been discussed around the time in the literature of international law and politics? What have been discussed around the time among Qing intellectuals? They did not share a common knowledge in exactly the same thing, but both were caught in the same incident which compelled them to write, and suffice it to say both were well-versed in the citation of historical sources to prove a point. The preliminary argument is that on the one hand, reprisal acts such as the first opium war (1839-1842) and the Sino-French war (1884-1885) were launched on a flimsy ground. The ascendance of an egocentric policy-oriented approach helped justify those acts, but not without encountering any resistance. On the other hand, the citation of ancient Chinese traditions was for the purpose of defending a weakening China, while reflecting on ideas from Confucian philosophy and customs developed out of the expansion and contraction of China in the history. It has nothing to do with international law as such, but has everything to do with issues of governance, security and relations with neighbouring people. The first two chapters are a brief introduction of the ‘wars’ Britain and France fought

5 with China in the mid and late 19th century respectively. More efforts will be devoted to the Sino-British conflict, not only because it was the first but also because in the mid- 19th century there was still some tension between what is considered moral and what is necessary; while in the 1880s the focus shifted to details of occupation and colonization. The second two chapters offer an account of two Chinese scholars, Jiang Dunfu (1808- 1867) and Wang Fen (1828-1899). Jiang lived through the chaotic years of the Taiping rebellion (1850-1871) and the opium war. He was very shaken of what he had seen in the events and the disastrous effects they had, which he wrote about in his volume xiao gu tang wen ji on the matter of warfare, battling and military discipline.11 Although unfamiliar with anything about international law, Jiang found an interest in the history of England and included into his volume some comparisons, which made him believe in a traditional China that stood out from the liberal progressive discourse. Wang was a devoted scholar and a chronicler of local events from Zhejiang province. The pro-war and pro-peace factions in the Sino-French conflict worried him and inspired him to write his volume zhong wai he zhan yi.12 Historical events of different time periods in Chinese history have been categorized under different groups. The dealings with non- Chinese people when it comes to the choice of warring and peacemaking remains central of the theme. The methodology used for this research is desk research using published sources. The titles in English and French are accessible via Gale Primary Sources, Internet Archive, and BNF’s Gallica digital library platforms. The book xiao gu tang wen ji is accessible from Hathi Trust digital library. The book zhong wai he zhan yi has been published in 2010 by Guang Ling publishing house from Yangzhou. The treaties cited could be viewed from the Taipei National Palace Museum database.13

11 Jiang Dunfu, Xiao Gu Tang Wen Ji (1868). 12 Wang Fen, Zhong Wai He Zhan Yi Bian Zhang (Guang Ling Shu She 2010). 13 ‘Ch’ing Dynasty Treaties and Agreements Preserved by the Ministry of Foreign Affairs of the Republic of China (Taiwan)’ accessed 01 August 2020. 6

1 The first opium war (1839-1842)

The first opium war is known for being the first major armed conflict between China and a European power. Although the name of this historical event contains the word ‘war’, as Stephen Neff has pointed out, it was a reprisal action with a purpose to correct a prior wrong and to seek compensation for the damages.14 If you read the treaty concluded in 1842, it was drafted with a tone of remediation rather than dictating victory to the defeated. The indemnity in Art. 4 and 6 were drafted with a purpose to compensate for the value of the opium, the military expenses, and the maltreatment of merchants.15 Art. 5 also includes indemnity to compensate for bankrupt businesses.16 However, if you read the other clauses, it seemed to have gone a bit further than mere compensation. For example, Art. 2 allows merchants to reside without molestation in the treaty ports.17 This seems to be a remedy for the mistreatment of merchants, but the second half of the clause allows the appointment of consular officers who will supervise the Chinese government to carry out its duties. Also, the compensation for insolvent businesses was to be paid by the Hong merchants, a government appointed middleman between foreign merchants and purchasers in China, who will be dismantled according to Art. 5, which allows British merchants more freedom to trade in China.18 In addition, Art. 10 not only imposed a tariff system but also established a chain of distribution allowing British merchandise to reach China inland.19 And of course, there is Art. 3 on the cession of Hong Kong island to become a British colony.20 If we take a look at the flow of events, the nature of the action by the Chinese officials mattered because it was the basis to establish a prior wrong on the part of China. Two reasons have been mentioned. One is the mistreatment of opium trading merchants by

14 Stephen C Neff, War and the Law of Nations (Cambridge University Press 2005) 230. 15 Treaty of Nanking 1842 (China and Great Britain) Art. 4 and 6. 16 Ibid Art. 5. 17 Ibid Art. 2. 18 Ibid Art. 5. 19 Ibid Art. 10. 20 Ibid Art. 3. 7 the Chinese officials.21 The other is the destruction of opium as British government property.22 Neff was of the opinion that it was not the restriction of the opium trade that led to objections from the British government, but rather the cruel treatment of merchants who were in custody of the Chinese authorities. This seems to be a simplified version of complicated matters. There have been objections about the mistreated merchants, some of whom were from India where opium was manufactured, against the Chinese authorities. In a pamphlet published in 1840, there were accusations of close imprisonment of more than seven weeks as well as threats of deprivation of food, water, and life of a British representative.23 But It seems to be part of the lobbying efforts with a purpose to solicit protection from the British government on behalf of the merchants for their losses, i.e. their loss of opium cargo. Even though maltreatment to nationals have been frequently mentioned, they seemed to be grouped together with other reasons such as the destruction of property. Violence and mistreatment were not only falling upon British merchants. When the tension was escalating in 1839, there was an incident in which British sailors killed Chinese peasants in Kowloon, which was followed with a battle of a smaller scale between the two sides.24 What seems to have happened is not a unilateral action of the Chinese authorities which was cruel and unreasonable, but the unsuccessful attempts of the officials to implement a policy restricting opium trade. Even China’s restrictive policy itself is tied to internal and external factors and partly for reasons beyond its control. Recent study suggests that the action of the Chinese authorities to restrict opium trade was affected by the fluctuation of silver supply.25 We know that there has been a trade deficit because of the overwhelming tea export from China to Britain. The opium export to China was an answer to the trade deficit for it was supposed to bring silver back to Britain through the Britain-India-China triangle and to set the balance right. But China was plagued by economic and social upheavals

21 Supra note 1. 22 Pär Kristoffer Cassel, Grounds of Judgment (Oxford University Press 2012) 50. 23Samuel Warren, The Opium Question (James Ridgway Piccadilly 1840) 1-2,7,9. 24 Supra note 9. 25 Man-houng Lin, China Upside Down: Currency, Society, and Ideologies, 1808-1856 (Harvard University Press 2007) cited in Julia Lovell, The Opium War (Picador 2011) 54. 8 at the time and was going through a silver famine. This shortage of silver supply was not necessarily caused by opium consumption but by China’s long-time reliance on silver import from South America. The Mexican independence movement caused global silver supply to plummet, which also affected China’s decision to tighten its control over this precious metal. It was also not that straightforward to pinpoint British foreign policy when the decision was made to attack China and for what particular reason. In Julia Lovell’s account of a cabinet meeting in September 1839, the priority has been given to Egypt and Turkey rather than to China, which was treated as marginal for the whole imperial scheme.26 The participants of the meeting were evasive when the issue was put onto the table and were concerned not with anything moral but with matters such as expediency and costs. The mistreatment of British nationals was addressed as an issue of national honour.27 The opposition was also attacking the Palmerton government for its failure to protect British interests in Mexico and Argentina when confronted with French and Russian forces.28 Because the protection of British interests in South American countries have been rather frustrating, China in turn could offer better chances. However, the final decision was made, it was not done in a stringent way nor with discussions to provide sufficient reasons for the use of force. This did not come by without any criticism. The enclosed character of British foreign policy attracted fierce criticism from Laurent-Basile Hautefeuille (1805-1875). Hautefeuille traced back to John Selden and remarked ‘La politique de la Grande- Bretagne, sa patrie, est à ses yeux le droit international tout entier, la loi émanée de Dieu lui-même ; alors même que cette politique tend uniquement à priver tous les autres peuples des bienfaits du Créateur, pour les accumuler exclusivement sur les sujets britanniques.’ 29 This point was illustrated by how Britain made use of fictitious blockades against France during the Napoleonic Wars in 1803 to circumvent French

26 Julia Lovell, The Opium War (Picador 2011) 57-58. 27 Ibid. 28 Ibid. 29 Laurent-Basile Hautefeuille, Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime (vol. 1, Guillaumin et Cie 1858) 2. 9 control over colonial ports. The fictitious blockades were, according to Hautefeuille, ‘n’ était pas une mesure de guerre, c’ était une ruse marchande’ since they were targeted against the neutrals but would allow British vessels to pass through. 30 This principle to do the necessary or to sacrifice everything to protect its maritime and commercial interests was said to have run through Britain’s resort to force from 1815 to 1850, which were carried out mostly in India and China.31 Instead of adhering to what Britain had dictated to those countries based on its own economic interests, Hautefeuille had a different interpretation on the principle of free trade:

… le chasseur ne pouvait pas forcer le cultivateur à lui donner des fruits, même en lui offrant du gibier; s’il eût employé la violence pour obtenir ce qu’il désirait, cet acte eût été un vol et non un échange, une violation du droit de propriété et non un fait de commerce. Dans l’état primitif, un fait de cette nature aurait amené un combat, une guerre; dans nos société perfectionées, il serait sévèrement réprimé par les lois. Les nations, ainsi que nous l’avons dit, ont hérité des droits mis en commun par chacun des membres qui les composent pour être exercés au profit de tous; mais elles sont restées, à l’égard les une des autres, dans l’état de liberté et d’indépendance qui était le partage des individus avant qu’il existât aucune société organisée.32

According to Hautefeuille, the principle of free trade cannot be used to impose on others a duty to trade. If a country could provide itself with abundant resources, the option to refuse trading with foreigners stands. This point was interpreted from the angle of safeguarding property rights that no one can force the owner to sell its property against his will. Hautefeuille questioned ‘La nécessité peut-elle abroger ces lois, faire naître un droit contraire et plus fort que le droit de propriété?’ and answered in the negative.33 He then alerted his readers to pay attention to the contents and characters of the necessity when it was cited rather than the necessity principle itself. When necessity is

30 Ibid 18-19. 31 Ibid 20. 32 Ibid 107. 33 Ibid 112. 10 cited, who is to decide that it will override the natural law and the secondary law of nations combined? The choice of leaving things in the sole interpretation of another country could bring immense risks:

Les nations sont essentiellement indépendantes les unes des autres; elles ne reconnaissent aucune autorité supérieure investie du pouvoir de les soumettre à son jugement. Un peuple prétend qu’il est dans la nécessité, et sous ce prétexte, qu’il est en droit de forcer les autres à lui céder les denrées dont il manque ; il ne consentira certainement pas à soumettre sa position à l’appréciation du peuple qu’il veut dépouiller de son droit de propriété, ni à celle de toute autre nation ; il se prétendra seul juge de ses propres desoins ; et, à l’abri d’une prétendue nécessité, il pourra toujours violer les lois les plus sacrées, la liberté du commerce international et l’indépendence des nations ; opprimer les peuples plus faibles, les dépouiller de leurs biens, et les réduire, eux aussi, à la plus dure extrémité, à la disette la plus cruelle.34

This rationale is then applied to fend off attacks citing the principle of necessity against neutral vessels. But the main point is to alert people the danger of an interpretation on the principle of necessity that is too wide in scope. To further illustrate his point, Hautefeuille included his observation on the general change toward expansive usage of necessity in state practices, in particular Britain’s use of force against China:

Les dernière années qui viennent de s’ écouler fournissent un exemple plus frappant qu’aucun de ceux consignés jusqu’ici dans les annales des peuples, du danger que peut présenter le système soutenu par Wolff, et en même temps de l’extension qu’un peuple peut, dans son intérêt, donner au droit de la nécessité, en l’appliquant, non pas seulement aux denrées de première nécessité, mais à tous les objets d’un commerce un peu étendu. Un peuple puissant n’a pas craint de méconaître toues les lois divines et humaines, à ce point de déclarer la guerre à une nation beaucoup plus faible, très- éloignée, et surtout très-inoffensive, non pour la forcer à lui vendre des objets de

34 Ibid 113. 11 première nécessité dont il aurait manqué, non pour échanpper aux horreurs de la famine ou de la peste, non pas même pour la contraindre à lui céder des denrées de luxe, mais pour lui imposer la nécessité de recevoir, en échange des produits de son pays, une drogue dangereuse et nuisible à ses sujets.35

Hautefeuille’s criticism on British foreign policy was not unheeded to. It has attracted criticism from lawyer and liberal politician William Harcourt (1827-1904). Harcourt’s article first questioned Hautefeuille’s motivation and impartiality. He basically said that Hautefeuille’s opinion was not representative of a European commentary on the law of neutrality. 36 He also criticized Hautefeuille’s natural law approach, saying that he should focus on what the law is rather than what it should be.37 Hautefeuille’s book was so offensive to Harcourt that he insisted on a clear separation between juris peritus and legislatoris following what he believed to be the correct approach of Jeremy Bentham.38 He traced Hautefeuille’s approach back to lawyers such as Martin Hübner (1723-1795) who were advocating in favour of upholding neutral rights in maritime affairs.39 Generally speaking, Harcourt’s article was not well written and his criticism on Hautefeuille seemed rash and emotional. What seems to have bothered him most is the mentioning of the primary divine law, on which he commented ‘What this law is, or whence it is derived, I have been wholly unable to discover.’40 To find a place for this ‘new’ thing, he banished it as general morality which, in compliance with his positivist thinking, should not co-exist with the law. His strong opposition against natural law stemmed from a sense of suspicion toward the subjective tendency of a single mind when compared with the collective experience, or as he would say it would be setting up Hautefeuille against the humankind. This would have discredited Hautefeuille

35 Ibid 116-117. 36 William Harcourt, Letters by Historicus on Some Questions of International Law (Macmillan and Co 1863) 55-57. 37 Ibid 74-76. 38 Ibid; on the misuse of Jeremy Bentham’s name for the justification of liberalism, see Jennifer Pitts, A Turn to Empire (Princeton University Press 2006) Chapter 4. 39 Ibid 74. On Hübner and the Silesian Loan case, see Antonella Alimento, War, Trade and Neutrality (FrancoAngli 2011) 210-214. 40 Ibid 75. 12 because he was not only not representative of Europe, he was also not representative of human kind. The clear separation of morality from law seemed to have pushed Harcourt to a stronger belief in the existence of a law of nations manifested in the collective experience of humankind. Different from Hautefeuille, who was more concerned with the legality of use of force, Robert Phillimore (1810-1885) wrote extensively on reprisals and the seemingly technical issue of the calculation of compensation. In the Commentaries, Phillimore first highlighted the role of natural law as a source of international law, its universal character and the ability to extend coverage to the relationships between Christians and heathens.41 The extensive coverage of the natural law, according to Phillimore, had the ability to justify colonial projects such as Britain in India and France in Africa. He then proposed a recapitulation of the sources to include Roman law and commercial law as sources to solve a particular problem, citing the opium war as an example.42 The problem is whether the measurement for the compensation should be the cost price or the market price. The universal character of the natural law lends coverage to this problem that took place between a Christian Britain and a heathen China. Firstly, the citation of Roman law and commercial law sources was meant to prove that bearing a debt China should pay the indemnity that reflected the actual loss as well as expected profits or in commercial law terms the price at the time when the loss happened rather than the invoice price. Secondly, according to Phillimore, the citation of Roman law sources would open up limitless possibilities to prove that a prior wrong existed on the part of China.43 In support of this point, he quoted the Lucy case, a judgement made by Lord Stowell at the Admiralty court; and also, the Pillington v The Commissioners case, in which a prior wrong on the French government gave rise to an obligation to undo the wrong as if it never happened. This line of argument provided a justification that the British government had a right to demand from China the cost price despite the fluctuations

41 Robert Phillimore, Commentaries upon International Law (vol. 1, T & J W Johnson, Law Booksellers 1854) 58-60. 42 Ibid 86-88. 43 Ibid 88-90. 13 because the decreased value was result of the prior wrong committed by Chinese authorities. 44 Curiously, none of these analyses said anything about the nature of the prior wrong. Most of the arguments were there to eagerly justify that a prior wrong unquestionably existed and that in order to set things right indemnities were due. All sources cited were about reasonings of compensation and restitution, not about the establishment of a prior wrong on top of a country disconnected from the Christian traditions. This makes us wonder where did this problem came from and why it was so important to Phillimore in his system of law? This leads us to the part on public debts. First, Phillimore set strict thresholds before a state could interfere for the protection of its subjects overseas. He said that a state could only interfere ‘when he has received positive maltreatment, or when he has been denied ordinary justice in foreign country.’45 For the second scenario, interference should be treated with more caution because the injured party must exhaust all legal means of redress before seeking protection from his sovereign. He said:

But it behoves the interfering State to take the utmost case, first, that commission of the wrong be clearly established … It is only after these propositions have been irrefragably proved, that the State of a foreigner can demand reparation at the hands of the Government of his country; and it is not till after the Executive as well as the Judicial Authorities have refused redress, that recourse can be had to Reprisals, much less to War.46

This strict set of criteria vanished when the topic switched to public debts. According to Phillimore, the right of interference was premised on the existence of a debt. The contraction of a debt on the debtor state would give rise to a right of enforcement on the creditor state. Whether or not the creditor state has a right of enforcement is, in

44 Ibid 91. 45 Robert Phillimore, Commentaries upon International Law (vol. 2, T & J W Johnson, Law Booksellers 1855) 24. 46 Ibid 24-25. 14

Phillimore’s view, a matter of private domestic policy.47 If we compare this line of reasoning with the reasoning above, it seems that the interfering state was accorded a very wide discretion which is not in line with the strict thresholds mentioned above. This claim of the right to enforce public debts which does not exclude the use of force was further buttressed with a quote from Vattel48 and a circular made by prime minister Palmerston49. In the circular, Palmerston spoke of the enforcement of public debts overseas as a question of discretion and expediency rather than anything that would require negotiation and deliberation, for example in the case of an international right. Following this one-sided policy approach, Phillimore explained why the price difference as exemplified in the Sino-British conflict was a problem of importance:

It may indeed happen, as the same author most justly observes, that the debtor State may adopt measures of domestic finances, so fraudulent and iniquitous, so evidently repugnant to the first principles of justice, with so manifest an intention of defeating the claims of its creditors, as to authorize the Government of the creditor in having recourse to measures of retaliation, reprisals, or to open war, - such measures, for instance, as the permanent depreciation of coin or paper money, or the absolute repudiation of debts contracted on the public faith of the country.50

Citing the French government’s confiscation of property belonging to British subjects during war, the question turned from the criteria of interference to the question whether the debt should be calculated at the time of the confiscation or at the time of the depreciation. The rationale given by Phillimore is that because a prior wrong existed on the side of the French government, France was under an obligation to undo the wrong

47 Ibid 26. 48 §216 Debts of the Sovereign and the State: ‘The conductor of the nation may have dealings of his own, and private debts; and his private property alone is liable for the discharge of such debts. But loans contracted for the service of the state, debts incurred in the administration of public affairs, are contracts in all the strictness of law, and obligatory on the state and the whole nation, which is indispensably bound to discharge those debts.’ from Emer de Vattel, The Law of Nations (Liberty Fund 2008) 384. 49 Supra note 32 at 26-29. 50 Ibid 29. 15 as though it had never happened. This is exactly the same rationale when he justified the existence of a debt on China in the opium war and the imperative for China to indemnify and undo the wrong. What he did not say is of course he had left the crucial question when and under what circumstances the creditor state could interfere through use of force entirely to the discretion of his own government. What would happen when the debtor countries refuse to indemnify? Phillimore explained that in response to default payment of public debts, after exhausting the possibility of negotiation and arbitration, measures short of war would take place.51 Measures short of war have two categories: retorsion and reprisal.52 Reprisals include general reprisals, which have same effects of open wars; and special reprisals. Special reprisals could be caused by an injury inflicted by one country to the subjects or property belonging to another. The injury could be of a passive nature, such as refusal of payment in the Silesian loan case; or it could be of an active nature inflicted with force and violence.53 He also briefly pointed out a long tradition in history that English sovereigns had authority to grant reprisals such as the issuance of letters of marque to encourage privateering. Two cases have been cited as examples of British state practice in special reprisals. The first one is the two Sicily case in 1840, which is around the time of the opium dispute with China.54 The British government was considering to launch a reprisal against the Neapolitan government with an aim to force the latter to dismantle its sulphur monopoly and to compensate British subjects for their economic losses. When the Neapolitan government refused, Britain attacked. Another case is the Don Pacifico case in 1850 about the mob attack on a British subject from Gibraltar.55 In both cases, the Neapolitan government and the Greek government resisted or even pleaded the British government not to use force. Phillimore included an excerpt of protest from the Russian government, which seems

51 Robert Phillimore, Commentaries upon International Law (vol. 3, T & J W Johnson, Law Booksellers 1857) 63. 52 Ibid 64. 53 Ibid 66. 54 Ibid 75-76. 55 Ibid 76-77. 16 to suggest that he remained some distance from the foreign policy of the Palmerston cabinet at the time56, and was not entirely in approval of its aggressiveness, at least toward European states such as Greece and Sicily:

… whether Great Britain … intends, henceforward to pursue an isolated policy, without caring for those engagements which bind her to the other Cabinets, - whether she intends to disengage herself from every obligation as well as from all community of action, and to authorize all great Powers on every fitting opportunity, to recognize towards the weak no other rule but their own will, no other right but their own physical strength.57

It is also relevant to mention the distance between the metropole and the outpost.58 Many decisions were made relying on information supplied by a small group of representatives and merchants based in China. On the one hand, when reporting situations back home, the information they supplied usually include distortion and bias. For example, Lord Napier was very vocal in suggesting a humanitarian intervention to liberate the Chinese people from the oppressive rule of China.59 Charles Elliot was also suggestive of a punitive expedition to teach the uncivilized Chinese ways of civilization.60 On the other hand, when the battles were about to break out, people Julia Lovell called ‘the professional men of war’ once avoided fighting for moral reasons that it was not a war waged for a just cause and that violence used upon such a weak country was no war but murder. 61

56 Wu Wen-Tsao, The Chinese Opium Question in British Opinion and Action (Academy Press 1928) 54 suggested that Phillimore was among a few people who were critical of Palmerston’s jingoist foreign policy. 57 Supra note 38 at 78. 58 Supra note 13 at 39. 59 Ibid 15. 60 Ibid 86. 61 Ibid 89. 17

2 The Sino-French war (1883-1885)

The Sino-French war in the late 19th century contains a series of confusing events which led to sudden and violent land battles and at later stage marine warfare near the coast of Fujian and Taiwan.62 Before the conflict with China, the French government had been expanding its conquest in the Indochina region. It has fought many colonial wars against kingdoms such as Annam and Cambodia. Treaties of amity, commerce, and protection were signed with a purpose to legitimize French control of the peninsula and for establishing protectorates across the area that in the end formed the French Indochina.63 The object in tension is the Tonkin area, which is the northern part of Annam, in the vicinity of China’s southwest border. The intervention from China took the French side by surprise. On the one hand, they were aware of a long history of interaction between China and the kingdom of Annam. On the other hand, they also took notice that no intervention came when France was expanding in the area. Its earlier conquests in Cambodia and in the southern part of Annam received no protests from China. The conflict started not only as a continuance of the French conquest to the northern part of the territory, but also to engage with China, find out what it wanted and to deal with its intervention and protests against France. This is probably the reason why battles were fought alongside diplomatic coordination throughout the conflict. In Neff’s book, the conflict is used as an example to illustrate the differences between reprisals and wars in whether they could trigger the laws of neutrality or not.64 In his

62 Lloyd Eastman, Throne and Mandarins: China’s Search for a Policy during the Sino-French Controversy 1880-1885 (Harvard University Press 1967); Long Zhang, Yue Nan Yu Zhong Fa Zhan Zheng (Tai Wan Shang Wu Yin Shu Guan 1996). For more recent works on this topic, see for example Zhang Xiaoshi, ‘The Sino-French Controversy over Vietnam 1880-1885: From Tributary System to International Legal System’ (PhD, The University of Hong Kong 2017); Anna Baka and Lucy Qi, ‘Lost in Translation in the Sino-French War in Vietnam: From Western International Law to Confucian Legal Semantics: A Comparative-Critical Analysis of Chinese, French, and American Archives’ in A Carty and Janne Nijman (eds) Morality and Responsibility of Rulers (Oxford University Press 2018) 386-412. 63 Treaty of Amity, Commerce and Protection 1863 (France and Cambodia); Treaty of Peace and Alliance 1874 (France and Annam); Treaty of Protectorate 1884 (France and Annam) in Clive Parry (ed), The Consolidated Treaty Series (vol. 140, Oceana Publications 1976) 85, 142, 339. 64 Stephen C Neff, War and the Law of Nations (Cambridge University Press 2005) 115-116. 18 account, the Sino-French war is a French reprisal against Chinese support of insurgency in a French protectorate. In addition, there were protests from the British government that if this is a reprisal and not a war, the French should not be allowed to use blockades against neutral powers like Britain. There are problems with Neff’s account. If this is a reprisal, it would be necessary to establish a prior wrong on China. This did not seem to be what the French were keen about until the Bac Le incident when the Chinese army allegedly ambushed the French side causing casualties and lowered reputation of the Jules Ferry government. If you read the final treaty, in Art. 2 there is a half-hearted concession which says ‘la France renounce à demander une indemnité à la Chine’.65 In return for this, China would acknowledge the border with Tonkin and all the arrangements between France and Annam. Basically, it is a treaty not about correcting or punishing a wrong, but about telling China to stay out of it. The Bac Le incident is also the point of time when the battles shifted from the land to the sea. British protests against French misuse of blockades is not just a defense of neutral rights. It also has something to do with the extensive coverage of the unequal treaties, the rights and privileges promised to major powers in the treaty ports along China’s coast.66 With regard to China, the question seems to be why would China intervene? This would require the pinpointing of a ‘will’ of the Chinese empire, which only leads to more confusion when taking into consideration its internal situations, military preparedness, and the pro-war versus pro-peace factions at the imperial court. Basically, those who favoured intervention would say the French would not stop at the border. They would invade us like the northern tribes did in the history. China should intervene to defend Annam, which in Chinese literally means to safeguard the south, not only to save a neighbour but to secure the southern provinces. Those who favoured peace would say the French would not invade across the border because they only wanted trade. The whole conflict drifted along this line of debates which ended with no clear solution.

65 Li-Pateno Treaty 1885 (China and France) Art. 2. 66 Lewis M Chere, ‘Great Britain and the Sino-French War: Problems of an Involved Neutral 1883- 1885’ (2016) 7 Selected Papers in Asian Studies: Western Conference of the Association for Asian Studies 10. 19

As for the Black Flag Army, or insurgents in Neff’s words, this group had been there long before the conflict happened, levying taxes along the Red River. Their battles with the French army and the conflict of interest in the control of the Red River is the main reason why the French forces wanted to remove them. They were indeed insurgents in China during the Taiping rebellion, who were then persecuted and escaped to Annam, where it grew into some kind of bandits or mercenaries.67 China, and the Hué court of Annam knew of its existence and from time to time either suppressed or enlisted help from the Black Flag Army. What seems to be interesting in the matter of law is the claim that France held a legal title over the conquered territory of Tonkin. This title cannot tolerate any interference from China, which does not have a legal title but only an honorable one. Any interference from China will be interpreted as an intrusion in the internal affairs of Annam. In order to establish this point, the kingdom of Annam had to first become an independent country with full sovereignty, before it could sign treaties with France ceding powers to become a French protectorate. In other words, in order to justify the French title over Annam, with an intention to fend off competition from other colonial powers such as Britain, it would be necessary to disprove first that China had a role in this which came from its long history of interaction with the kingdoms. By claiming that China held a fictional title, the legal title established by France, which was based on a system of sovereign equality, became more real. It is for this reason scholars such as Henri Castonnet des Fossés (1846-1898) and Frantz Despagnet (1857-1906) wrote on this matter. Desfossés’ articles began with

67 On the dubious position of the Black Flag Army, see Ella S Laffey, Relations between Chinese Provincial Officials and the Black Flag Army 1883-1885 (Cornell University 1975). Confusion regarding the status of the Black Flag Army has also been expressed in a conversation between Paul- Armand Challemel-Lacour (1827-1896) and Zeng Jize (1839-1890) in 1883, in which Challemel- Lacour said: ‘东京黑旗之人，中国虽认为越王之兵。越王虽接济兵饷以养黑旗。实则法国仍以 盗贼待之。不认为真正官兵。按西洋公法。凡属两国真正之兵。方许商议阿勒米士惕士。至于 剿除贼匪。向无如此办法。’ [Even if China recognizes the Black Flag Army in Tonkin as Vietnamese troops, and that the Vietnamese king sends provisions to the Black Flag Army, in view of France, they are bandits, not recognized as combatants. According to Western international law, armistice is allowed when two states fight using combatants. It is inappropriate to use armistice in suppression of local bandits.] Zhong Fa Yue Nan Jiao She Dang (vol. 3, Institute of Modern History Academia Sinica 1962) 1230-1231. 20 problematizing a Chinese claim of sovereignty over Annam, and whether or not it was justifiable. He studied the history of China’s presence in Annam since the fifteenth century. The conclusion is that even if China had established sovereignty on and off in Annam in earlier centuries, the title itself is insufficient to prove a legal title over the territory in the 19th century.68 Desfossés’ historical account is problematic and is under the influence of the liberal expansionist thought prevalent at the time.69 He found a Europe in the Indochina peninsula. Episodes in the history of Annam were interpreted as revolutions against an oppressive China. By repelling Chinese incursions into its territory in 968, Annam was said to have gained true independence and have entered into a modern era. The relationship between China and Annam was compared with that between the Holy Roman Empire and the vassal kingdoms in the Middle Ages. Citing examples such as the Duke of Burgundy’s vow of allegiance to Frederick III in 1473 and the Armenians’ vow of allegiance to Barbarossa in the 11th century, Desfossés claimed that it would be absurd to claim a German title of sovereignty over those territories long after those events took place and people perished.70 By creating an analogy between the Holy Roman Empire and the Chinese empire, Desfossés found his answer that the Chinese title of sovereignty, in the form of what he called investitures, is nothing more than a fiction representative of a history long forgotten. This modern narrative was reproduced in Despagnet’s thesis justifying in law the establishment of French protectorates in Asia and Africa. For the issue in Annam, he cited the 1874 treaty concluded with the Hué court, which served as a proof for the establishment of French protectorate.71 He cited Art. 1 and 25 for it transferred to France the external sovereignty of Annam. The internal sovereignty was realized by establishing a puppet Annamese king who would allow French residents direct control and administration of his provinces. Military expeditions since 1882 were justified for

68 M H Castonnet Desfosses, 'Les Rapports de la Chine et de l'Annam, Premier Article' (1883) 15 (1) Revue de Droit International et de Législation Comparée 328-329. 69 Jennifer Pitts, A Turn to Empire (Princeton University Press 2006) Chapter 6. 70 Supra note 7. 71 Frantz Despagnet, Essai sur les Protectorats Étude de Droit International (L Larose et Forcel 1896) 192. 21 a couple of reasons including treaty violation, mistreatment of representatives and the suppression of piracy, which imposed upon the Annamese a prior wrong.72 China’s intervention was regarded as a challenge to the validity of the 1874 treaty, followed by a delegitimatizing analysis resembling that of Desfossés’. Even the suggestion from the Chinese representative saying ‘qu’il ne faut pas juger des rapports qui unissent certains pays de l’Extrême-Orient à l’empire chinois d’après les idées généralement admises en Europe en matière de suzeraineté’ was interpreted as a deference allowing France to do whatever it liked, instead of a disapproval to what the French did in Annam.73 The above is only a brief analysis of the Sino-French conflict. For a more scholarly discussion, archival research would be required to explain the French foreign policy during the Jules Ferry government and the changes in the public opinion about the use of force in Indochina. It would also be necessary to look at Chinese language sources to have a grasp on the rationale of the other side of the conflict. However, even from the brief analysis in this chapter, we could see how imperialism, or to be more precise this egocentric expansionist policy, justified itself through the language of law. It has implanted a modern state system in which each state holds sovereignty and is independent from each other. By the implantation, it did away with those that are incompatible with sovereign equality. The system, when combined with imperialist policy, facilitated conquests and colonialism. Instead of safeguarding each state’s independence and sovereignty, it took away from them and became a system that promoted ‘peaceful’ and cooperative behaviours.74

72 Ibid 191. 73 Ibid 194. 74 ‘Selon nous, la Chine ne peut et ne doit pas sérieusement désirer la guerre, qui pour elle serait la ruine. Elle est le plus grand marché de consommation des produits agricoles de toute l’Asie méridionale, surtout par rapport au riz et à l’opium … Aussi nous espérons que la cour de Peking cessera d’écouter de funestes conseils et pensera qu’il est d’une bonne politique de nouer et d’entretenir des relations pacifiques avec la France.’ M H Castonnet Desfosses, 'Les Rapports de la Chine et de l'Annam, Quatrième et Dernier Article' (1883) 16 Revue de Droit International et de Législation Comparée 53. On the economic consequences, see also ‘Le droit de pénétration des Européens s’accentue : il n’est pas seulement reconnu dans les ports, il peut s’exercer, à l’avenir, dans l’intérieur même de l’Empire : il est vrai que ce n’est que pour le commerce entre le Tonkin et la Chine, mais la concession a son importance et doit être signalée puisqu’elle ouvre à nos nationaux un côté de la frontière chinoise jusqu’alors rigoureusement fermé.’ Paul Dislere, Droits et Devoirs des Français dans les Pays d’Orient et D’Extrême-Orient (Paul Dupont 1893) 185. 22

3 Jiang Dunfu’s thoughts on war

In this chapter, we look at the life of a Chinese scholar Jiang Dunfu (1808-1867) and through his account what it was like living in China during the first half of the 19th century, in particular with respect to the effects of war. His account is relevant here because Jiang lived through the chaotic years of the Taiping rebellion and the opium wars. It is what he had seen on the ground that compelled him to look back to the ancient battle fields and came up with proposals of battling and defense. Unlike Wang Fen, who spent his entire life in the provincial, Jiang was more of a wonderer and went through a lot of hardships. His association with the missionaries also gave him another angle to write about the changes he was experiencing. Jiang was born in Baoshan, Jiangsu province. Family schooled since he was five years old, he first studied the classics, and then the eight-part essay in preparation for the imperial exam. Jiang did not like it, preferring to immerse himself in historical chronicles such as The Commentary of Zuo and Records of the Grand Historian as well as the military strategy book The Art of War.75 When he grew older, he started to explore The Twenty-Four Histories for another ten years. Same as Wang Fen, Jiang was also heavily influenced by the Neo-Confucian tradition prevalent among Qing scholars.76 He described the reading of history not as simply verifying and recording facts, but also about ‘凡天人感应之理，古今治乱兴衰之势’ [sensing the connection between heaven and man, reading the peace, chaos, prosperity and decline of kingdoms in ancient and modern history].77 Observing historical changes, Jiang followed the footsteps of historical figures and went on a journey in pursuit of li [principles]. Related with the theory in reading history is the theory in writing. For Jiang, writing is nothing but the pouring from the inside to the outside what your heart compels you to

75 Jiang Dunfu, Xiao Gu Tang Wen Ji (1868) 114. 76 Qian Mu, Zhong Guo Si Xiang Shi (xue sheng shu ju 1988), especially the chapters on Wang Fuzhi (1619-1692), Dai Zhen (1724-1777) and Zhang Xuecheng (1738-1801). 77 Supra note 1. 23 say.78 One cannot be coerced to say what one does not wish to say. If you go against your heart, cite the speech of another person as your own, or force yourself to say what you do not wish to say, it is a lie and it is fake. Jiang pointed out the difficulty in making a speech with solid grounds. To make a solid speech would require the nurturing of qi [the momentum]. It should not be overcautious like a nervous girl who just got married. It should not be reckless like the weightlift-obsessed king who in the end broke his flank bone. The nurturing of the qi could clarify on the principles, which will then be put to use. When I am the person to decide whether the principles should or should not be put to use, it is my destiny. When I am not, it is decided by heaven. Speech-making is not just about words, but about what happened before the utterance, which would require the establishment of the self.79 One could make a speech with solid grounds if one ‘熟察

乎天人之际，吉凶消长之几旷。观夫古今之变，治乱兴衰之故，综其理势，括其

疏衡’ [observes meticulously what lies between heaven and mankind, as well as the changes of the wheel of fortune; inspects the tide of change from the ancient to the modern, as well as the reasons behind the shifting of peace, chaos, prosperity and decline; summarizes the principles and momentum of those changes and then makes generalizations] This gives substance to a speech, and the power for it to last eternally. As a mere mortal, Jiang admitted that he had failed this daunting task. When Jiang was around 15 or 16 years old, he started travelling to other places, and befriending intellectuals of high reputation. However, he was unable to fulfill his political ambitions because of his wanderer lifestyle and outspoken character. 80 Frequently caught in displacement and financial difficulties, which his opium addiction probably contributed to, he ended up without a home to return to. His only noticeable contribution was in poetry, through which he could freely express his feelings.81

78 Ibid 129-130. 79 Ibid. 80 Yao Dadui, ‘wan qing chuan jiao shi zhong guo zhu shou de shen fen ren tong wen ti [The problem of identity recognition among Chinese assistants of the missionaries in late Qing]’ (2014) 11 zhong guo xian dai wen xue yan jiu 35-47. 81 ‘Shanghai Memory: Jiang Dunfu died in 1867’ accessed 24

The outspoken character brought him troubles. In 1842 during the opium war, Jiang sent two proposals to the provincial governor with suggestions to resist the British forces.82 His radically styled proposals offended the officials to the extent they almost decided to have him arrested. Driven by fear, he escaped to a Buddhist temple and became a monk. It was not until the governor was dismissed before Jiang could re-enter secular life and resume his lifestyle as a wanderer. He spent the last few years of his life in Shanghai, writing poems and visiting friends. He died at a friend’s home, who helped published his works under the title xiao gu tang wen ji.83 Jiang was very shaken of what he had seen in the events of his time and the disastrous effects they had on the peasants, which he wrote about in his book. China was in a disorderly condition in the first half of the 19th century. Corruption was rampant among the official class. Soldiers and other kinds of armed forces were a constant threat to villages and towns.84 Usually soldiers would be sent with a purpose to secure the villagers, but on the contrary when given chances they robbed and pillaged the places they were supposed to protect. When there was a shortage, the soldiers would be supplemented with militia forces. Those men would enter into the markets and take everything they can get, pillaging the villages to the ground. When the real threat came, i.e. the rebels, these men would turn around and escape. The rebels would pillage again taking whatever they can get while sparing nothing on their way. When they broke into cities, they would kill the official in charge and rob the vault, burning down the entire cities. The rebels would then turn to the countryside for food, burning and killing without sparing the elderly and the young. Along their way, the rebels kidnaped men, stole property, and raped women. Jiang was abhorred of what he saw, which he believed have made the lower tier of the governing structure disintegrate completely. He felt a deep remorse for those who lost their life.85 For the well-to-do, they were supposed to carry on their inheritance, to look

01 August 2020. 82 Ibid. 83 Supra note 6. 84 Supra note 1 at 57-58, 62-63. 85 Ibid 64. 25 after fields and gardens, and to raise children. For the poor and the non-propertied, they were supposed to at least maintain their own life and the lives of their parents and wives. To protect the interests of these people, Jiang came up with a strategy of self-defense.86 The soldiers were unreliable because it was not in their interest to protect us, the people. If the soldiers were not in the interest to protect the people, they were thieving in the name of soldiering. We, the people, should resist them as we would resist thieves. Jiang proposed to repel those misbehaved soldiers and replace them with locally sourced village guards. He also discussed the element of strategy during warfare. There are two sides of war, the psychological battles and the physical battles.87 The psychological battles could change the qi [momentum]; while the physical battles could take lives. To fight a war is to assemble all demoralized men under the mandate of heaven, give them weapons of cruelty, and teach them to kill. If one cannot kill, he would be killed by another. Killing is like sudden and destructive natural phenomenon such as wind storm or thunder lightening. These forces need to be released to the last bit because so that the unsettling pressure between earth and heaven could be eased. The unsettling pressure refers to strong vengeful emotions caused by the infliction of sudden violence. These forces and emotions could be repurposed for military use. Essentially, extreme wrath will be aroused among soldiers, making them believe their lives or honor were under threat, and then battles could begin to release the unsettling pressure among the soldiers. Jiang cited two military leaders from Records of the Grand Historian as examples of psychological battles. 88 General Sima Rangju was unbiased when executing his subordinates for violations of martial laws. He took a personal approach sharing food with his soldiers, visiting the sick and provided them with medicines. His soldiers were then willing to fight for him. General Tian Dan from the kingdom Qi was preparing a siege battle with the kingdom Yen. He paid a visit to the fortuneteller, then announced: ‘I fear Yen would execute yi

86 Ibid. 87 Ibid 41. 88 Ibid. 26

[a corporal punishment to cut off the nose] to all captives from Qi, then put them on the frontline.’ Yen did exactly that. The defenders in the city of Qi witnessed that all captives had their noses cut off. The fury drove them to hold fast to defend the city. Tian Dan then said: ‘I fear Yen would dig up the graves outside our city.’ Yen did exactly that, burning the corpses. People from Qi saw from the city wall. Their fury increased tenfold, and were willing to go out and fight. While Rangju’s example is a positive use of the psychology in warfare, Tian Dan’s manipulation of fear is a wicked one. For Jiang, both are indispensable for a well- planned battle. Strategies should be constantly adjusted for the reason of expediency and to reflect the changes of situations. The mass of demoralized people could then be repurposed into moral ones to fight a moral war. They are like tools to be used by humans. Soldiers are then dehumanized and compared with animals like horses, eagles and hounds, each had a distinct function but also maintained their wild nature. To keep the soldiers tame, they should be put in a life-threatening desperate situation before becoming disciplined. Without such discipline, they will easily release the wild nature and bite the hands that feed them. The strategies discussed above were Jiang’s answer to the rampant killing and pillaging at the countryside. He believed that moral and disciplined armed forces could ameliorate the trauma misbehaved soldiers and militia brought to the civilian population. Jiang also expressed discontents with the deserting troops and the lack of the defense mechanism to protect the vulnerable. He cited the example of general Li Mu (???-229 B.C.) and his defense mechanism against incursions from Xiongnu.89 The main point is to use clever and adaptive strategies to manipulate and to increase the discipline of troops and their willingness to fight in order to fend off invasions from enemies. This belief in order and discipline of the military was the ideological foundation in Jiang’s proposals for reformation and change. So far, we have seen some introspective reflections on the situations in China. Jiang was also aware of the changes brought to China with modern technology. He mentioned,

89 Ibid 47-48. 27 in particular, the dangerous potential of these weapons to kill on a massive scale: ‘自西

洋人以火器入中国，天地间杀机，尽泄无虞。蕴矣，万物生于理，死于机。生理

绝，杀机开。五兵之用，自黄帝以来，盖以有之。然犹圣人不得已而用之。至今

之火器，而智者无所施其巧，勇者无所逞其力。一发不收，万有顿灭。充其量人

之类可以尽。’90 [Since the Europeans introduced fire arms into China, an unchecked killing spree filled heaven and earth. This brings us to the Buddhist idea Skandha. Every living thing is born out of li (the ultimate rule of the living), then dies and becomes reunited with ji (the cause). When li is extinguished, the killing spree starts. The usage of five weapons have existed since the age of emperor Huang, and yet the saints only used them under exceptional circumstances. The craftiness and power of today’s fire arms far exceed that of a sage or a hero. If it remains unchecked, all of a sudden all living things would turn into dust. Humankind would become extinct.] This potential seems to have inspired from Jiang shocks and awe at the same time. On the one hand, he suggested to optimize this potential and kill the ‘thieves’ on a massive scale. This is based on a metaphor of applying strong medication, or sometimes poison, to cure serious illness.91 The weapons of destruction were seen as the poisonous strong medication; while the plundering thieves and rebels were seen as the serious disease that poisons the body. The application of weapons is like a contest between those two types of poisons, which is expected to reestablish health when the forces are spent in the end of the struggle. On the other hand, he also pointed out the Confucian idea bu ren ren zhi xin [the heart of empathy and kindness], and admitted that killing is not the only solution.92 The ‘thieves’ could be disbanded via other means. As for countries outside China, Jiang discovered an interest in England.93 Together

90 Ibid 311. 91 Ibid 312-313. 92 Ibid. 93 For a more detailed discussion, see Pan Kuang-Che, ‘zhong guo shi ren yu xi fang zheng ti lei xing zhi shi gai nian gong cheng de chuang zao yu zhuan hua [Chinese literati, the creation and transformation of knowledge of the different types of Western political regimes]’ in Wang Jianlang and Huang Ko-Wu (eds) liang an xin bian zhong guo jin dai shi wan qing juan (she hui ke xue wen xian chu ban she 2016) 560-578. 28 with Wang Tao (1828-1897) and Li Shanlan (1810-1882), Jiang was employed by the publishing house of the Congregationalist London Missionary Society as assistants.94 While Wang was helping with the translation of the Bible and Li with the books in mathematics, Jiang assisted missionary William Muirhead (1822-1900) to translate Thomas Milner’s The History of England and a chapter about Magna Carta from Chambers dictionary. The History of England was an introductory text published by the Religious Tract Society.95 Although most of the book was about English history, we see in the concluding chapter some passages promoting the Christian religion and the pride in the expansion of the British empire, which is probably the reason this book was published for.96 Apart from his employment with the missionaries as a translator, Jiang was also acquainted with the wider community of British residents in China, including diplomats Thomas Wade (1818-1895) and Robert Hart (1835-1911). Although maintaining a working relationship, Jiang was not particularly fond of these people. He wrote about his criticism against the increasing interference from the missionaries and merchants in a draft letter addressed to Wade. To begin with, Jiang complained about the scheme to make China independent, saying people like Wade and Hart could have spent their efforts better worrying about the fate of their own country instead of plotting on China’s behalf. He used a metaphor to explain the irrational side of foreign interference:

某也，闻有国有家者，凡有举动必准人情合天理，不徒恃强取胜也。公等云云，

似六合之外别有一理，请设譬以明之。今有世家巨族，大厦连云，修治乏人。稍

稍损坏，有比屋居者语之曰，尔有多屋，临于通衢，吾将赁焉。不俟允否，强纳

契券，如而据之。他日又曰，尔之家垣墉剥落，盗贼充斥，曷不堲芡，曷不禽

治。尔力不在任，吾将助尔助尔。尔之家则为吾有，尔无与己。97 [I say those

94 Supra note 6. For London Missionary Society’s activities in China, see Richard Lovett, The History of London Missionary Society (vol. 2, Oxford University Press 1899) Chapters XIX-XXVI. 95 Thomas Milner, The History of England: From the Invasions of Julius Caesar to the Year A.D. 1852 (The Religious Tract Society 1853). 96 Ibid 799. 97 Supra note 1 at 141. 29 who belong to a country or a family, their behaviours should comply with the ways of man and heaven. They must not rely single-mindedly on the efficacy of coercion. You say if those ways exist outside the six directions, please provide us with an example. Now we have a well-established family with high prestige and long traditions. Although she owns mansions after mansions, there are no people to govern the household. When the mansions start to have cracks, someone approaches and says: ‘You have so many houses close by the street. I would like to rent them.’ Without waiting for a permission, he took over the title deed and occupied the mansions. On another day, he says: ‘Your houses are in decay, filled with thieves and bandits. Why don’t you do anything? You are so useless. I will help you, but your houses would be mine.’]

Jiang then commented on the worry that China may not be steered onto the progressive path of independence. He took on a comparative lens, after learning about the political structures around the world, and came up with a Chinese political structure distinct from Western models of absolute monarchy and parliamentary democracy. What he was criticizing was the attempt to align China with any of these structures and then ended with an observation that it somehow failed. Being offended, Jiang exclaimed that China had never been less independent in the Western sense and that the independence rests with upholding the moral ideals of a Confucian state.98 The independence is manifested in the sovereign, be it the sage kings Yao and Shun or the tyrant king Zhou. The respect paid to the grace and the rituals of a sovereign is Jiang’s definition of the term zi zhu zhi guo [a country that can decide on its own]. If independence means foreign interference that would break apart the regions united by the respect paid to the sovereign, China would cease to be itself and the moral ideals it stands for. Apart from turning a bit nationalist, he was sitting uncomfortably across the modern idea of sovereignty and something that is built upon a fusion of feudal loyalty and Confucian political morale. He was also aware that it was for the interests of the liberal expansionist policy, or in his words ‘foreign interference’, to have a sovereign figure to

98 Ibid. 30 treat with, but was unable to say anything critically about it. He did express displeasure on the unchecked expansion of trade and the conclusion of treaties imposing unequal terms on China that ‘robbed her’ of her own interests and tax revenues.99 He advocated a change of the terms to emphasize that there are boundaries and things China would not consent.

99 Ibid. 31

4 Wang Fen’s thoughts on peace

In this chapter, we look at some examples on how, in the history, non-Chinese people have been perceived and also some basic ideas in Confucian ethics. The examples were extracted from a book written by a Qing scholar, Wang Fen (1828-1899). The book was written in 1886 in response to the Sino-French war as an offer of advice to statesmen. It was entitled Zhong wai he zhan yi, meaning discussions on the matter of war and peace between China and the outside from 202 B.C. to 1644. The book was divided into three categories and then further categorized into nineteen chapters. I have included in the Appendix a translation of the cited historical events under each chapter. Wang Fen was born in a village of Huang Yan. Since childhood he had studied classics and history under the instruction of village teachers and became devoted to a life of scholarly writing.100 He went through the imperial exam but failed to achieve anything remarkable. Since then, he retired to a life of teaching in academies of classical learning around his hometown. As a scholar he made noticeable achievement in chronicling local history, especially the history of Taizhou county. It is said that studies of Song Confucian scholar Zhu Xi (1130-1200) started to flourish there when he was sent as an official to govern Taizhou. However, the lineage broke because of a tragic event killing most of the followers around 1400. By Wang Fen’s time, the rich tradition of Neo- Confucianism started in Song and Ming was thinning in the Taizhou area.101 The pro-war and pro-peace factions in the Sino-French conflict worried Wang Fen and inspired him to write the book. What Wang intended to do was to persuade those in power when given a choice between peace and war it is usually the best to seek for peace.102 Wang cited historical episodes of warring and peacemaking between China and the non-Chinese and the consequences these decision-makings led to. He remarked

100 Lu Yong, ‘wang fen tai xue tong bian zhuan yan jiu [Research on the literature compilation of the collection of the academic papers in Taizhou by Wang Fen]’ (2018) 2 tu shu guan yan jiu yu gong zuo 94-96. 101 Ibid. 102 Wang Fen, Zhong Wai He Zhan Yi Bian Zhang (vol. 1, Guang Ling Shu She 2010) Preface. 32 that apart from a few exceptions such as vengeance and usurpation the decisions should be leaning toward peace. He explained himself in the following excerpt: ‘且夫盖天生

民而立之君，欲其安全之也。外夷之民人亦王者之赤子也。争地以战，杀人盈野。

争城以战，杀人盈城。以土地之故，糜烂其民，而战之不仁，孰甚焉。’103 [Heaven gives birth to man and establish a king to govern over them, with an intention to guarantee their safety. The foreign barbarians are likewise people under the rule of kings similar to that of a son to a father. To fight over territories, to kill so many that their corpses scatter the wilderness; to fight over the control of cities, to kill so many that the cities are full of corpses; to lead people onto a rotten fate for the mere reason of land, how extremely heartless and numb are those wars!] It could be said that Wang ‘s tolerative view of foreigners and international trade is a direct result of his pacifism. But of course, the international trade he imagined is a peaceful one, with participating countries abiding by xin [good faith] and yi [righteousness]. 104 The occasional disputes arising out of competition should be tolerated as well. For Wang, who spent most time of his life in the provincial rather than the centre, China had gone through a revival since 1862 and became relatively peaceful and prosperous. Drawing an analogy between the time when marriages and tributes were arranged with barbarian tribes and the time of trading with the Europeans, he concluded that they are similar situations of peaceful relations. Wang used a metaphor of chi zi [infant] when he described foreigners.105 The image of newborn infants is closely related to the philosophical world of Confucianism and Taoism. In Taoism it refers to an ideal status and the calling back of the primordial and the spiritual.106 For Laozi, it is the primitive spirituality of liveliness. It is chaotic, contains limitless possibilities, generating and re-generating into humanity itself.107

103 Ibid. 104 Ibid. 105 Ibid. 106 Zhou Dandan, ‘chi zi zhi xin guan nian shi yan jiu [The study on history of idea of infant]’ (Master, Anhui Normal University 2016) 9. 107 Ibid 14. 33

For Zhuangzi, it is a primitive status when everything is without distinction.108 Man exist in a simple status without knowledge or desire. Humanity subsists in this fusion of man and world. This is the utmost morality and the truth of nature. In Confucianism, the image took on a political meaning. Chi zi zhi xin [the heart of an infant] means that the son of heaven, whose fate has been endowed by the heaven to protect his people, has a responsibility to the people as parents have to their children.109 Being son of heaven, he has a responsibility to protect the life of his people as he would protect his own children. The image is also related to other ideas in Confucian thoughts, such as liang xin [inherent goodness] and ren yi zhi xin [kindheartedness and righteousness]. Wang used the image in the political sense, saying that foreigners, like us, also come from this primitive status and are looked after by their heavenly appointed kings. The analogy between the king and people on the one hand and parents and children on the other, which is also related to another idea ren xin [kindheartedness], comes from the premise that heaven and earth act like parents toward man.110 Grace is inherent in heaven and earth for breathing life into man and all things on earth. As a result, the chu xin [the original heart] infants are born with is also endowed by heaven and earth. It is inherent in all human beings with no distinction. In ancient China, the idea All-under-Heaven came from the saying pu tian zhi xia mo fei wang tu, which means everywhere under the heaven is sovereign land, but this should not be interpreted literally. Historian Ge Zhaoguang provided examples of related ideas that show the All-under-Heaven is in fact quite limited in scope.111 These ideas describe the internal and external boundaries of the feudal China. We can see from the table below that they are not without any limits:

Idea Meaning Jiu zhou Regions of All-under-Heaven, composed of roughly nine provinces of modern-day China.

108 Ibid 16-17. 109 Ibid 23. 110 Ibid 47. 111 Ge Zhaoguang, What is China? (Harvard University Press 2018) 32-33. 34

Wu fu Territory occupied by the king in Luoyang during the Eastern Zhou dynasty (770- 256 B.C.) Wang ji Area under the direct rule of the king. Jiao Outskirts 100 li outside the city walls. Dian fu A circle of 500 li on the outskirts surrounding the wang ji Hou fu The land controlled by feudal lords 500 li beyond dian fu. Yao fu 500 li beyond hou fu is an area that can only be ruled through making alliance or contracting agreements with other peoples. Huang fu The next 500 li is the place where barbarous people live on their own.

Although Wang Fen gave a tolerative account of foreigners in the preface of the book, this does not mean there is no distinction between the Chinese and non-Chinese. On the contrary, this was a time when the distinction was ever more apparent. Based on Ge’s analysis, a major change happened in China’s perception of itself during the Song dynasty (960-1279).112 As the neighbouring kingdoms were becoming increasingly independent during Song, a kind of ‘international relations’ different from the Han (202 B.C. - 220) and the Tang (618-907) started to take shape.113 The arrival of the Portuguese in Ming (1368-1644) further integrated China into global maritime trade, which was further internationalized in the 19th century through the unequal treaties.114 Ge was of the opinion that this major change of Song China led people to believe in a distinct Chinese identity vis-à-vis the foreigners.115 It turned into a strategy limiting China to the Han ethnicity, which then persisted into the 19th century in the form of nationalism. This perception of a limited ‘China’ is recurrent in Wang’s book. It is closely related to his pacifist tendency and Confucian philosophy. Since it is impossible to cover the entire volume in a master thesis, I have selected excerpts under different themes and provided either a full translation or a note of explanation. These themes are related to debates on war and peace as well as the relations with people considered as non-Chinese. I hope these examples could provide a more nuanced understanding on the citation of

112 Ibid 5. 113 Ibid 7. 114 Ibid 8. For the encounter with the Portuguese, see Timothy Brook, ‘Trade and Conflict in the South China Sea: Portugal and China, 1514–23’ in Lucia Coppolaro and Francine McKenzie (eds.), A Global History of Trade and Conflict since 1500 (Palgrave Macmillan 2013). 115 Supra note 12 at 67. 35

Chinese traditions in the area of international law. What Wang had been doing was in fact part of a general trend among Qing literati, with their heavy reliance on the citation of historical sources, which are not necessarily reflecting on historical facts and some may even argue that these are a mixture of history and fiction, but to criticize political affairs at their time. It is a continuance of a much more complicated topic on Neo-Confucianism and more generally how philosophical trends (i.e. Confucianism, Taoism, and Buddhism) evolved and inter-mingled in the high culture of China.116 We will explore some of these examples in the rest of the chapter. Morality of the use of force Although there is nothing comparable with the just war theory in Wang’s book, we can see some instances that limits the use of force. The first one is what I would call the just army theory:

… 救乱诛暴，谓之义兵，兵义者王。敌加于己不得已而起者，谓之应兵，兵应

者胜。争恨小故不忍愤怒者，谓之忿兵，兵忿者败。利人土地货宝者，谓之贪

兵，兵贪者破。恃国家之大，矜民人之众，欲见威于敌者，谓之骄兵，兵骄者

灭。此五者，非但人事，乃天道也。117 [Those who save the kingdom from rebellions and violence are called yi bing, or a just army. The leader of the just army gets to be king. Those who rise up to resist an enemy strike are called ying bing, or an army of self-defense. Armies answering in self-defense have victory on their side. Those who fight over the trivial while consumed by anger are called fen bing, or a furious army. A furious army is faced only with defeats. Those drooling over territory and property belonging to others are called tan bing, or an army of greed. A greedy army disintegrates in combats. Those who wield military prowess above their enemy, while relying on the size of the country and the number of the subjects, are called jiao bing, or an army of pride. A proud army is doomed for destruction. The five elements above

116 Qian Mu, Zhong Guo Si Xiang Shi [History of Chinese thought] (xue sheng shu ju 1988). 117 Supra note 3 at 12. 36 are not just about human affairs. They speak the way of the heaven.]

The second point is that a king should put the heavenly endowed duty to love and protect his subjects before going to war with people not considered as his.118 Wang cited the conquest of Xiongnu and said that it was fought with an unjust cause because Xiongnu had been severely weakened when attacked by another tribe. Attacking a country that is in an extremely vulnerable situation is not considered just. Besides, the conquest had exacerbated the domestic crisis in the middle kingdom, feeding discontent among the people. It would be unjust to put forward one man’s concerns above the lives of thousands. When you read the way of the heaven and then observe what is happening on the ground, you would know what is at stake. Then there are the detailed effects of war on the domestic scene.119 Qin’s conquest over the warring states is cited as an example. The territory Qin took so much effort to conquer ended up being not arable. Peasants, the driving force of agricultural productivity at the time, have been conscripted and families were broken apart. As a result, the crops produced by men could not feed the army and the textiles woven by women were not enough for military supplies. When the economy slides into a recession and people cannot support themselves, this is the time when rebellions happen. Interestingly, Wang Fen compared the decision of war with the punishment of crimes.120

118 ‘御史鲁恭上疏曰，万民者，天之所生。天爱其所生，犹父母爱其子。一物有不得其所者， 则天气为之舛错，况于人乎。故爱民者必有天报。夫戎狄者，四方之异气也，与鸟兽无别，是 以圣王之制羁縻不绝而已。今匈奴为鲜卑所破，远藏于史侯河西，去塞数千里。而欲乘其虚 耗，利其微弱，是非义之所出也。今始征发，而大司农调度不足。上下相迫，而民间之急亦已 甚矣。羣僚百姓咸曰，不可陛下独奈何，以一人之计弃万人之命，不恤其言乎。上观天心，下 察人志，足以知事之得失。臣恐中国不为中国，岂徒匈奴而已哉。’ Ibid 105. 119 ‘临淄人主父偃严安上书。偃言九事，其八事为律令，一事谏伐匈奴。其辞曰，司马法曰， 国虽大，好战必兦。天下虽平，㤀战必危。夫怒者，逆德也。兵者，凶器也。争者，末节也。 夫务战胜，穷武事者，未有不悔者也。昔秦吞战国，务胜不休，使蒙恬将兵攻胡，辟地千里。 地皆沮泽，盐卤不生五谷。乃使天下蜚芻輓粟起于负海，转输北河。率三十锺而致一石。男子 疾耕不足于粮饷，女子纺绩不足于帷幕。百姓靡敝，不能相养。盖天下始畔秦也。’ Ibid 286- 287. 120 ‘司空梁文昭公房玄龄疾笃，谓诸子曰，吾受主上厚恩，今天下无事，惟东征未已。群臣莫 敢谏，吾知而不言，死有余责。乃上表谏曰，老子曰，知足不辱，知止不殆。陛下威名功德亦 可足矣，拓地开疆亦可止矣。且陛下每决一重囚，必令三覆五奏，进素膳止音乐者，重人命 37

For each capital punishment, the king would require a sophisticated system of reporting for double-checking and confirmation. Rituals, such as switching to a vegan diet temporarily and stopping the music, would be performed, because human lives are considered valuable. Waging a war is like compelling those innocent soldiers, who have not committed any crime, to fight through arrows and blades and to die a bloody death with their brains and intestines scattered on the battle field. Is not this a burden to the consciousness of a king who makes to decision to go to war? Should the decision of war be treated with caution at a level similar with that of capital punishment, because both concern the deprivation of human life? Tributes The text is about tributes paid by Xiongnu to Han around 52 B.C.121 First, Wang Fen described a hierarchical order with decreasing importance from the center, i.e. the capital city, to the periphery, i.e. barbarian land. When Xiongnu paid tributes to Han, it became integrated into this hierarchical order. One opinion was to accord Xiongnu leader the rank of feudal princes and therefore fully absorbed into the hierarchy. Another opinion, which seems more convincing judging from the tone, is to avoid integration and instead treat Xiongnu as an enemy. They should be treated with the respect of a non-submitting enemy, enjoying a status higher than feudal princes. When barbarians are pledging to become a vassal, they are making a concession, not offering their loyalty. This is the right attitude of jimi.122 It should be seen as a form of respect and blessing. Wang Fen cited Xunzi and the Book of Songs to further illustrate this point.123 He

也。今驱无罪之士卒，委之锋刃之下，使肝脑涂地，独不足愍乎。’ Ibid 342. 121 ‘己巳二年十二月，匈奴呼韩邪单于款五原塞，愿奉国珍朝。三年正月，诏有司议。丞相御 史曰，圣王之制，先京师而后诸夏，先诸夏而后夷狄。单于朝贺，其礼宜如诸侯王位次。在下 太子太傅萧望之以为，单于非正朔所加，故称敌国。宜待以不臣之礼，位在诸侯王上。外夷稽 首称藩中国，让而不臣，此则羁縻之义，谦亨之福也。’ Ibid 18-20. 122 See also supra note 12 at 60-61. 123 ‘荀况曰，春秋之义，王者无外欲一于天下也。狄戎道里远远，人迹介绝，故正朔不及，礼 教不加。非尊之也，其执然也。诗云，自彼氐羌莫敢不来王，故要荒之君必奉王贡。若不贡职 则有辞让。号令加焉，非敌国之谓也。望之欲待以不臣之礼，加之王公之上，僭度失序以乱天 常，非礼也。若以权时之宜，则异论矣。’ Supra note 3 at 18-20. 38 mentioned a lack of contact with the place where the barbarians came from. This is a place where the Confucian ethics and teachings familiar to Wang failed to reach. Wang argued against an integrative policy placing barbarian leaders above princes, because to do so would disrupt the Confucian cosmology and bring about chaos. But he also thinks this strict prohibition could be relaxed for strategic reasons or for expediency in certain circumstances. Wang explained that Han and Xiongnu were of a brotherly relationship, which is different from conquerable land such as wu fu. He also mentioned the jealousy and discontent among the ministers if a barbarian leader is conferred a title above the princes. In addition, as the time goes by, there are risks that the barbarians will go against their pledge of submission, which makes their commitment looking symbolic only. For the reasons above, it is more appropriate to keep some distance and avoid getting too involved into the affairs of the barbarians.124 The root cause of this anti- integrationist view is a realist disbelief that the barbarians would never invade or betray Han when given the chances. Non-Chinese people Related to the topic of tributes is the relation with barbarian peoples. For Wang, the Han-Chinese regimes have failed tragically from time to time in the history to bring these people under control. Because of the disastrous failures in the past, the rebellious northern tribes are better seen as unconquerable since antiquity. The strategy then changed to inward-looking, focusing on governance of the internal rather than the external. The policy towards the external softened. When the northern tribes came to plunder, negotiations are preferred over a response in armed forces. This policy was different from the time of Han and Tang dynasties, when China was much more powerful and outward-looking. The disasters of the northern tribes

124 ‘棻案，礼时为大望之，权时之宜，何非礼之有。盖汉与匈奴，本为兄弟之国，非如古者五 服九畿之地，可得而臣服之也。且其初呼韩邪欲事汉，诸大臣已多不顺矣。若竟夷之于内臣， 降之于侯列，则一朝之后，其肻复事汉哉。惟令位在诸侯王上，称臣不名，则虽臣事于汉，尤 有威名。此其所以再三入朝，不以为辱，终汉之世永为不侵不叛之臣也。欤望之之言信为万世 之长策矣。荀悦好为迂论，后儒或误信之，何邪。’ Ibid. 39 exacerbated since Song. As a historian, Wang Fen was puzzled. Dynasties like Song and Ming existed for over 100 years, while Han enjoyed a much shorter life span.125 Why would those dynasties dealing with frequent plundering and invasions from barbarian tribes outlive those that received their submission? It is because a kingdom could never reach a perfect status like that of a saint. When the external seemed peaceful and quiet, troubles are brewing in the internal. According to Mengzi, a kingdom is doomed to fail if on the inside, it has no learned man and adviser; and on the outside, it is not facing a single enemy. There are also troubles for the middle kingdom when barbarian tribes have been defeated and their regimes dismantled. What would happen to their people? Usually they are divided and merged into other barbarian tribes nearby. Sometimes, the middle kingdom has to take in displaced tribes that had nowhere to go. On the one hand, someone would argue that they should be relocated to another place in the inland.126 Their tribes would be divided and scattered into different counties for resettlement. The barbarians will be taught the skills of weaving and agriculture and become peasants. Others would suggest to breakup their tribal hierarchy by assigning each with a different chieftain. An official will stay with their tribes to make sure their power does not grow strong enough to challenge the middle kingdom.

125 ‘棻案，唐虞之盛，蛮夷猾夏。始皇之威，匈奴扰边。汉高威灵，平城围困七日。孝文至 治，侯骑至雍甘泉。北狄之桀骜不驯，自古以来未能臣服也。孝宣席武昭之业，内治克修。适 会匈奴坏乱，不威以兵，而怀以德。然后远夷慕化，身赴阙廷，服朝数世。此唐虞三代秦汉之 际所未有也。汉之威德，称极盛矣。然吾观晋宋皆遭夷狄之祸，而偏安享国，尚百余年。明英 宗北猎而还，其后传国且二百岁。而汉自甘露三年单于始，朝未六十年而王莽窃国矣。哀帝元 寿二年则去，亡国才十年耳。何四夷交侵者，享国如此其长，而外夷宾服者，享国如此其促 邪。范文子曰，自非圣人，外寍必有内忧。孟子曰，入则无法家拂士，出则无敌国外患者，国 恒兦。’ Ibid 39. 126 ‘四月，上御楼受俘，数其五罪，待以不死。颉利哭谢而退。诏馆于太仆，厚廪食之。上皇 闻之，叹曰，汉高祖困白登不能报。今我子能灭突厥，吾付托得人，复何忧哉。匈奴既兦其部 落，或北附薛延陀，或西犇西域。其降唐者尚十万口。诏群臣议区处之宜。朝士多言，戎狄自 古为中国患，今幸破兦。宜悉徙之河南兖豫之间，分其种落，散居州县，教之耕织。可以化胡 虏为农民。颜师古请宾之河北，分立酋长，领其部落。李百药以为突厥虽云一国，然种类区 分，各有酋帅。宜因其离散，各署君长，使不相臣属。则国分势敌不能抗衡中国矣。仍于定襄 置都护府，为其节度，此安边之长策也。’ Ibid 164-166. 40

On the other hand, there is the suggestion that integration only brings troubles. A better strategy is to grant their leaders the title of princes and to propose marriages with royal princesses.127 This is meant to separate their land and to break down the tribal structure. When it gets weaker it would be easier to use jimi. There are other strategies of a similar kind, but the main point is that the relations with barbarians have a warlike feature. They could rebel at any time and should never be trusted. The rhetoric that the barbarians are like animals also comes from this. Following this line of reasoning, the opposite strategy is to expatriate those people back to where they come from.128 This one is also contested for various reasons.129 To rule as a king over all living things, your mandate is between heaven and earth. Nothing can escape. The barbarian refugees should not be abandoned. If they are saved from death and destruction, provided with a means of living, after several years they could be integrated and cease to pose as a threat. Wang Fen was against integration. He explained with the saying huai yuan zhe bi xian an jin [those who draw over people from afar must first settle people from nearby].130 The hierarchical structure kicks in. If the mandate of heaven is a tree, China is like the root and the four barbarians are like branches and leaves. To exhaust China in order to provide for the four barbarians is like uprooting the tree with a wish to make the foliage look luxuriant. Wang Fen warned about the economic side of military conquests.

127 ‘竇静以为，狄戎之性有如禽兽。置之中国，有损无益，莫若假之王侯之号，妻以宗室之 女。分其土地，析其部落，使权弱势分，易为羁制。温彦博请准汉建武故事，置于塞下。顺其 土俗，以实空虚之地，使为中国扞蔽。’ Ibid. 128 ‘魏征以为，戎狄人面兽心，弱则请服，强则叛乱。若畱之，中国数年之后蕃息倍多，必为 腹心之疾。西晋之祸，前事之明鉴也。宜纵之，使还故土，不可留之中国。’ Ibid. 129 ‘彦博曰，王者之于万物，天覆地载，靡有所遗。今突厥以穷来归，奈何弃之。若救其死 兦，授以生业，数年之后，悉为吾民。选其酋长，使入宿卫。畏威怀德，何后患之有。’ Ibid. 130 ‘寅庚四年，西突厥种落散在伊吾。诏以凉州都督李大亮为西北道安抚大使，于磧口储粮， 来者赈给。使者招慰，相望于道。大亮上言，怀远者必先安近。中国如本根，四夷如枝叶。疲 中国以奉四夷，犹拔本根，以益枝叶也。臣远考秦汉，近观隋室。外事戎狄，皆致疲弊。今招 致西突厥，但见劳费，未见其益。况河西州县萧条。突厥徼弱，始得耕获。今又供亿，此役民 将不堪，不若且罢，招慰为便。伊吾地皆沙磧，或自立君长求称臣。内属者羁縻受之，使居塞 外为中国藩蔽，此乃施虚惠而收实利也。上从之。’ Ibid 175-176. 41

Whenever there was an armed conflict with the northern tribes, China always slumbered into economic recession, because mass conscription brought negative effects on agricultural activities which had an impact on the economic well-being of the entire country. A better strategy is to grant a title and let them rule themselves. For those willing to migrate to the inland, let them settle outside the border gates, which will then become a buffer against northern invasions. Vengeance There is a small paragraph about vengeance. A major difference exists between vengeance among civilians and that between the kings.131 For civilians, min yi means when kings and fathers were murdered, their subjects, ministers and sons would become overwhelmed in anger. Their vengeful will never ends until five generations elapsed. Within five generations, they have a right to revenge. But for kings, there is no time limits for vengeance. The object at stake is different. For civilians, to revenge is to comply with wu fu [customary rules to decide closeness of kinship which extend to five generations maximum] and it is like performing a ritual. For kings, the object is their mandate of heaven which in theory does not have any boundaries or limits. Single-mindedness The following is a story of Fu Jian (338-385), the king of the northern kingdom Former Qin during the Sixteen Kingdoms period (304-439) of China.132 The story is about Fu Jian’s intended conquest to the southern kingdom Eastern Jin. Basically, everyone around him wanted to stop him from going. They came up with arguments of various kinds and tried to change his mind, but Fu Jian did not listen. This story was essentially about how much you could leave to the king and to his consciousness over the matter of war and peace. Since Fu Jian refused to change his mind, even though persistently under the persuasion of his associates, he ended in defeat and humiliation.

131 ‘朱子戊午谠议序曰，君臣父子之大伦，天之经地之义。所谓民彝也。其有君父不幸而罹于 横逆，则夫为臣子者所以痛愤怨疾，必报其雠者。其志岂有穷哉。礼曰，君父之仇，不与共戴 天说者。曰复仇者，可尽五世则苟，未及五世之外，犹在必报之域也。虽然此特庶民之事耳， 若夫有天下者承累世无疆之统，则亦有万世必报之仇。非若庶民五世亲尽，服穷而遂已也。’ Ibid 766. 132 Ibid 782-787. 42

This story is another instance of Wang Fen guiding his reader to reach the end of peace. It is also relevant to mention that the Former Qin was a regime established by the di barbarians in the north. It became sinicized because of the interaction with the people, culture and political structure of the Han-Chinese. Wang Fen, meanwhile, was a Han native in the southern Yangtze area. The conquest of Jin in the south by a northern kingdom established by barbarians resembles with the Manchu conquest of Ming. By putting words of peace and high morality into the mouths of his characters, Wang sent an encrypted message condemning the conquest of his current sovereign over a culturally superior China.133 This tension between the northern barbarians and the Han regime in the south is also related to the emergence of a distinct Chinese identity in Ge’s analysis. Because the story was written with a touch of liveliness and plenty of characters and dialogues, I will provide a rough translation to keep the flow of the story intact.

壬午七年 … 冬十月，秦王坚会群臣于太极殿。[In the winter of 382, king Jian received his ministers at the tai ji court.] 议曰，自吾承业垂三十载，四方略定。唯

东南一隅未霑王化。今略计吾士卒，可得九十七万。吾欲自将以讨之，何如。

[Jian said: ‘Thirty years have passed since I took the throne. The territory stretching to the four directions has relatively stabilized; and yet, the southeastern corner has not been conquered. Now that I have roughly counted my soldiers. The number is around

970 thousand. I reckon to launch an expedition in person. What do you say?’] 秘书

监朱彤曰，陛下恭行天罚，必有征无战，此千载一时也。[Secretariat Zhu Tong responded: ‘Your majesty is executing heaven’s punishment, blessed by heaven to succeed in the conquest without a single battle. This is the perfect chance!’] 坚喜曰，

是吾志也。[Jian was happy, and said: ‘This is indeed my will.’]

133 On the Manchu conquest over Ming and the spiritual struggles among the literati that followed, see an interesting account in T Brook, The Confusions of Pleasure: Commerce and Culture in Ming China (University of California Press 1998). 43

左仆射权翼曰，昔纣为无道，三仁在朝，武王犹为之旋师。今晋虽微弱，未有大

恶。谢安桓冲皆江表伟人，君臣辑睦，内外同心，未克图也。[Deputy minister

Quan Yi replied: ‘In the past, king Zhou was acting unprincipled; and yet he had three able ministers at court, even the sage king Wu could not defeat him. Even though Jin is a weak country at the moment, it has not done anything heinous. Xie An and Huan Chong are both great men from the Yangtze region. When the king is in concord with his ministers and united against the outside, any scheming against it is unlikely to succeed.’] 太子左卫率石越曰，今岁镇守斗，福德在吴。伐之，必有天殃。且彼

据长江之险，民为之用，殆未可伐也。[Crown prince guard Shi Yue answered: ‘The star readings of this year confer upon them heavenly blessings. If we attack them, natural disasters will fall upon us. Besides, they hold the geographical advantage of the Yangtze river and local people are under their command. I’m afraid we could not conqueror it.’]

坚曰，昔武王伐纣，逆岁违卜。天道悠远，未易可知。今以吾之众，投鞭于江，

足断其流，又何险之足恃乎。[Jian rebutted: ‘When king Wu sent the expedition against king Zhou, the fortune was against him. The way of the heaven is far and remote. It is not easy to know. Now we could rely on the number of our soldiers and send out horsemen. The joint forces should be enough to stop the flow of a river. Their geographical advantage is nothing to be afraid of.’] 于是群臣各言利害，久之不决。

[The ministers were then debating over the advantages and disadvantages, without reaching any solid solution.]

坚曰，此所谓筑室道旁，无时可成。吾当内断于心耳。[Jian said: ‘This is like having a discussion with crowds of people on the street. There will never be any solution with so many talking mouths. I shall deliberate alone and make a judgement in my heart.’]

群臣皆出，独留阳平公融。[The ministers exited the court. Jian’s brother Duke Rong stayed.] 问之，对曰，今伐晋有三难，天道不顺，一也；晋国无衅，二也；我亟 44

战兵疲，民有畏敌之心，三也。群臣言晋不可伐者，皆忠臣也。[When asked of his opinion, Rong replied: ‘There are three difficulties lying before the expedition to Jin. Firstly, the way of the heaven is obstructed. Secondly, there is no prior wrong on the part of Jin. Thirdly, our soldiers are becoming exhausted because of constant battling. Fear of enemy is growing in people’s heart. The ministers who advised not to attack Jin have proved their loyalty to the throne.’]

坚作色曰，汝亦如此，吾复何望。吾疆兵百万，资仗如山。乘累捷之，势击垂亡

之国，何患不克。岂可复留此残寇，使长为国家之忧哉。[Jian’s face showed signs of anger. He said: ‘Even my own brother is acting like this. What else can I expect from you people? I command millions of soldiers. The supplies could fill up a mountain. We should seize this opportunity to attack Jin while it remains vulnerable. Why should we worry about attacking a dying kingdom? Why should we allow those bandits to exist and wait for them to grow into long-term threats to our country?’] 融

泣曰，晋未可灭，昭然甚明。且臣之所忧，不止于此。陛下宠育鲜卑羌羯，布满

畿甸。太子独与弱卒留守京师，臣惧不虞之变，生于腹心肘腋不可悔也。[Rong replied: ‘It is apparent Jin could not be destroyed with ease. What I am worried about is not just about the expedition against Jin. Your majesty has successfully conquered portions of land far into the territory of Xian Bei and Qiang Jie. However, only the crown prince and a handful of weak soldiers are left to defend the capital city. Your brother is worried that danger might creep in from the inside rather than the outside.’]

坚不听，于是朝臣进谏者众。[Jian refused to take Rong’s advice. Ministers re- entered the court to resume the debates.] 坚曰，以吾击晋，犹疾风之扫秋叶，而朝

廷内外皆言不可，诚吾所不解也。[Jian said: ‘We could attack Jin with so much ease like autumn wind sweeping over fallen leaves, and yet people inside and outside the court told me it is not feasible. This is utterly incomprehensible.’] 太子宏曰，今岁

45

在吴分又。晋军无罪，若大举不捷，恐威名外挫，财力内竭，此群下所以疑也。

[Crown prince Hong replied: ‘This year’s fortune yields an unfavourable reading. There is no prior wrong on Jin. If we attacked and failed, our reputation will dip and our finance will be exhausted. This is why the ministers are growing agitated.’] 坚曰，

昔吾灭燕，亦犯岁而捷。秦灭六国，岂皆暴虐乎。[Jian rebutted: ‘When I led an army to destroy Yen, I went against the fortune and triumphed. When Qin destroyed the six kingdoms, were those kingdoms all tyrannies?’]

冠军京兆尹慕容垂言于坚曰，陛下神武 … 而蕞尔江南独违王命，岂可复留之

以遗子孙哉。诗云，谋夫孔多，是用不集。陛下断自圣心足矣。晋武平吴所仗者

张杜二三臣而已，若从朝众之言，岂有混一之功乎。[Capital mayor Murong Chui responded to Jian: ‘Your Majesty is godly and powerful … The tiny southern kingdom dared to defy your Majesty’s command. How could we leave it to stand for generations to come? The Book of Songs says a crowd of counsellors only deliver diverging policies, not one of expediency. To make a judgement, your Majesty’s saintly heart should suffice. When king Wu of Jin defeated Wu, they relied on the advice of only two or three counsellors. Had he relied on the advice of a roomful of ministers, he could have missed the chance to unite his kingdom.’] 坚大悦曰，与吾共定天下者

独卿而已。赐帛五百匹。[Jian’s face bloomed with great joy. He said: ‘You are the only one worthy of conquering the mandate of heaven by my side.’ Chui received from the king a handsome gift of 500 pi silk rolls as a compliment.]

坚锐意欲取江东，寝不能旦。[Jian’s mind was so focused on the conquest of Jin he could not sleep to the break of dawn.] 融复谏曰，自古穷兵极武，未有不兦者。江

东虽微弱仅存，然中华正统，天意必不绝之。[Rong offered his advice a second time, saying: ‘Since antiquity, extreme militarism and violence always lead to destruction. Although Jin is so weak it could barely stand on its own, it carries the

46 traditions of China. The will of the heaven helps preserve it.’] 坚曰，帝王历数，岂

有常邪，惟德之所在耳。刘禅汉之苗裔，终为魏灭，所以不如吾者，正病此不达

变通耳。[Jian replied: ‘Kings come and go. The only thing that is eternal rests with virtue. Liu Shan was a descendent of Han, but in the end, he was destroyed by Wei. The flaws that belittle you is this inflexibility.’]

坚素信重沙门道，安群臣，使乘闲进言。[Jian had always respected Buddhism. He mollified his ministers and told them to offer advice from time to time.] 十一月，坚

与道安同辇遊于东苑。[In November, Jian and his monk friend Dao An were riding in a carriage together on a tour in the eastern garden.] 坚曰，朕将与公南游吴越，

泛长江临沧海，不亦乐乎。[Jian said: ‘Soon, I will travel with you to the south in

Wu and Yue. We will visit the Yangtze river and go to the seaside. Isn’t this delightful?’]

道安曰，陛下应天御世，居中土而制四维，自足比隆尧舜，何必櫛风沐雨，经略

遐方乎。且东南卑湿沴气，易構虞，舜遊而不归，大禹往而不复，何足上劳大驾

也。[Dao An answered: ‘Your Majesty is entrusted by heaven to rule over the world, residing in the middle kingdom while controlling the four dimensions. Your Majesty’s achievement could be compared with the ancient sage kings Yao and Shun. Why bother travelling such a long distance to visit the southeastern swamp? Even the sage kings Shun and Yu would not do so. Why would it bother your Majesty?’] 坚曰，必

如公言，是古帝王皆惮征伐也。… 坚不听。[Jian rebutted: ‘If what you said is true, it is because those ancient kings were too timid to make any conquests.’ Jian refused to take Dao An’s advice.]

所幸张夫人谏曰，天地之生万物，圣王之治天下，皆因其自然而顺之。故而无

功不成黄帝，服牛乘马因其性也。禹濬九川障九泽，因其势也。后稷播殖百谷，

因其时也。汤武率天下而攻桀纣，因其心也。今朝野皆言晋不可伐，陛下独决 47

意行之，妾不知何所因也。自秋冬以来，众鸡夜鸣，群犬哀嗥，廏马多惊。武库

兵器自动有声，皆非出师之祥也。[Madam Zhang offered her opinion: ‘All living things are born out of heaven and earth. The sage kings could rule under the mandate of heaven, because they humbly followed the nature. Emperor Huang tamed cattle and horses because he followed their natural instincts. Yu tamed the floods because he was guided by the force of the flow. Hou Ji seeded land with hundreds of crops because he followed the change of seasons. Wu commanded the mandate of heaven to attack tyrant Zhou because he followed his heart. Now the ministers at court are all advising against this conquest, and yet your Majesty single-mindedly decided to attack it. Your concubine cannot see any reason in it. Since this autumn, I witnessed some unnatural phenomenon in animals and weapons. This is an ominous sign for military conquests.’]

坚曰，军旅之事，非妇人所当预。[Jian rebutted: ‘Women should not interfere with military affairs.’]

坚幼子詵最有宠，亦谏曰，国之兴亡，系贤人之用舍。今阳平公国之谋主，而陛

下违之。晋有谢安桓冲，而陛下伐之。臣窃惑焉。[Meanwhile, Jian’s most adored young son Shen offered his view: ‘The rise and fall of a kingdom depends on the appointment of the virtuous. Your majesty went against the sage advice of duke Rong. Jin receives advice from the virtuous Xie An and Huan Chong, and yet your Majesty decided to attack it. Your son has his doubts.’] 坚曰，天下大事，孺子安知。[Jian rebutted: ‘How could a child understand what matters most under the mandate of heaven?’]

秦兵大败 … 坚中流矢,单骑走至淮北,饥甚。[Jian’s army suffered a landslide defeat. Jian was shot by stray arrows during the combat. Wounded and riding alone, he escaped to the north bank of the Huai river. His empty stomach kept growling.] 民

有进壶飧豚髀者。坚食之，赐绵帛。[A hermit approached him and offered food.

Jian accepted the food and thanked the man with silk rolls.] 辞曰，陛下厌苦安乐， 48

自取危困。臣为陛下子，陛下为臣父。安有子饲其父而求报乎。弗顾而去。[The hermit refused, saying: ‘Your majesty abominates hardships but indulges in comfort and pleasure. You have fallen into a trapped dug by yourself. I am your servant and your son. Your majesty is like my father. How could a son, while feeding his own father, expect any recompense in return?’ The hermit ignored his reward and left.] 坚

谓张夫人曰，吾今复何面目治天下乎，潸然流涕。[Eyes full of tears, Jian spoke to madam Zhang: ‘What face do I have now to rule under the mandate of heaven?’]

49

Conclusion

Discussions on the moral aspects of war were being challenged by an orientation to defend national foreign policy. The discreditation was done through the introduction of a more scientific and objective law that was not only verifiable in facts, but would also constitute something that is shared commonly by all human races. This makes it easy for imperial powers to claim that the conquests and colonization of people followed a certain pattern of rules which could be traced in a line of facts, conferring authority to facilitate such behaviours. To prove its universal reach, ‘facts’ would then be gathered to support this point of self-aggrandizement. But what if the ‘facts’ are not facts? The method of scientific positivism, when misused, could only produce self-generated facts which were then worshipped in replacement of God in the moral discussions, only that it was a God that does not know of anything moral. What is more important is the ideological force behind the citation of such facts. Here in the first two chapters, we have seen that self-generated facts were coordinated to discredit anything that stood in its way of expansion and conquests. The moral dimension has been brushed aside with the onslaught of the positivist challenge. But it does not mean we would lose our vision as a moral human being because of the challenge and discreditation. It certainly does not mean facts that have been disregarded and labelled as ‘fictional’ or ‘moral’ would lose their relevance for our reading of the history of international law. It is for this reason people such Jiang and Wang become relevant for our understanding of international law. It is not because they were the living representation of a glorified Chinese tradition. It is because they would say something different, something that could be easily disregarded as ‘morality not law’ or ‘too primitive’ for their care of human lives, and their general remonstrance against an expansionist national policy. I hope this study could provide a different angle when thinking about Euro-centrism and imperialism in international law.134 It could also lead to comparative studies on

134 With reference to problems identified in Martti Koskenniemi, ‘History of International Law: Dealing with Eurocentrism’ (2011) 19 Rechtsgeschichte 152-176; and A Anghie, Imperialism, 50 specific topics that have been mentioned in the chapters such as the morality of killing or the circumstances regulating the use of force. A preliminary reading seems to suggest that between the East and the West there are some commonalities in the propensity against war. This study is but a first attempt to write about something the author probably could not fully comprehend with the sources and reading materials made available.

Sovereignty and the Making of International Law (Cambridge University Press 2005). 51

Translation Note

Jiang Dunfu 蒋敦复

Wang Fen 王棻

Xiao gu tang wen ji 啸古堂文集

Zhong wai he zhan yi 中外和战议

The Commentary of Zuo 左传

Records of the Grand Historian 史记

The Art of War 孙吴家言

The Twenty-Four Histories 廿二史

Neo-Confucianism 理学 qi 气

Sima Rangju 司马穰苴

Tian Dan 田单 yi 劓

Li Mu 李牧

Xiongnu 匈奴

Skandha 蕴 li 理 ji 机 bu ren ren zhi xin 不忍人之心

Wang Tao 王韬

52

Li Shan Lan 李善兰 zi zhu zhi guo 自主之国

Zhu Xi 朱熹 xin 信 yi 义 chi zi 赤子

Laozi 老子

Zhuangzi 庄子 chi zi zhi xin 赤子之心 liang xin 良心 ren yi zhi xin 仁义之心 ren xin 仁心 chu xin 初心

All-under-Heaven 天下

Ge Zhaoguang 葛兆光 jimi 羁縻

Xunzi 荀子

Book of Songs 诗经

Mengzi 孟子 huai yuan zhe bi xian an jin 怀远者必先安近 min yi 民彝 wu fu 五服

53

Fu Jian 苻坚

54

Appendix

China in full power

Xiongnu to Han (91 B.C. - 2 B.C.)

Non-Chinese pay tributes Tujue to Sui (569-618)

various tribes to Tang (598-649)

East and West Xiongnu to Han (5 B.C. - 105) Non-Chinese submit Western regions to Han (28-105)

Tang against Tujue and West Tujue (598-683)

Tang against Tiele (598-649) Non-Chinese defeated Tang against various small tribes (598-649)

Tang against Koryo and Baekje (628-683) China in unrest

Han against Xiongnu (202 B.C. – 141 B.C.) Ming against Wala (1428-1457) mix strategies of war and mix strategies of war and Tang against Tubo (598-762) peace peace China in weakness

prosper in peace Han marriage with Xiongnu (256B.C. - 195B.C.) secure through peace Song tributes to Khitan (968-1063)

55

Tang borrowed troops from Uyghur (711-762) Song tributes to Jin (1127-1194)

Song expedition north (1168-1224) subsist through peace Song submits to Jin (1107-1187)

Jin, battle of Feishui (383) subsist through war Song, battle of Caishi (1161)

Han against Xiongnu (156 B.C. – 88 B.C.) Tubo against Tang (727-779) Liu Song, reconquest of Henan (704-753) exhausted by war Tang against Koryo (598-649) escape without waging war defeated in war Song against Khitan (939-997) defeated in war Yuan against Japan (1215-1294)

Sui against Koryo (569-618) Xiongnu against Jin (284-318) destroyed without Song expedition north (1082-1161)

Ming against Wala (1427-1464) destroyed without waging waging war destroyed by war war destroyed without Jia Sidao destroys Song (1279)

seeking peace

make mistakes regardless Later Jin (936-947)

of war and peace

56