Forthcoming in Lydia Liu, ed. Tokens of Exchange: The Problem of Translation in Global Circulation (Duke University Press, 1999).

Henry Wheaton's Elements of International Law was reissued in a centennial edition and published as part of the Classics of International Law series in 1936. In his introduction, the editor George Grafton Wilson brings up an interesting point about the circulation abroad of this American legal text in the past century. Wilson mentions, in particular, that Elements of International Law was translated into Chinese by W. A. P. Martin in 1864. "The edition published in China was quickly exhausted," writes Wilson, "The work had been received with much favour in Japan. An edition of this Chinese text reprinted and adapted for Japanese use was published in Kyoto, Japan, in 1865, and other editions were issued in the East." The importance of the occasion is further noted in the official testimony of the American Minister, Anson Burlingame, who wrote to the State Department in 1865: "The Chinese did not address me in writing, but called in person to mark their sense of the importance of the completion of the work, and when the Prince and suite kindly sat for their photographs, Fung Sun, who had superintended the translation, desired to be taken with a copy of Wheaton in his hand."

Moreover, the universal claim of Wheaton's book finds suppport in the existence of other contemporaneous translations, such as the first French edition in 1848, which was followed by a Spanish-language translation in Mexico in 1854 and an Italian edition published in 1860. (The French text contained Wheaton's own corrections and additions shortly before his death.) Martin's Chinese translation appeared four years after the first Italian edition and two years before Dana's authoritative English edition in 1866, and so on. It seems to me that the extraordinary afterlife of Wheaton's 1836 book (multiple cross-textual editions) is very much indebted to the symptomatic circularity exemplified by those translations. Wilson cites the existence of the foreign language editions as evidence of the universal value of Wheaton's text but it requires the circulation of that book to prove the self-same universality.

Perhaps, this situation can help us think about the historical making of universalism more than it reveals the inherent value of Wheaton's book or international law. In order to bring the familiar philosophical argument about universals and particulars into the fold of an earlier global and globalizing moment, I propose to analyze the circumstances of the Chinese translations of international law in this chapter. I argue that the coming-into-being of a global universal can be plotted as a series of translated and contested moments in colonial and cultural encounters in which the translator, who literally and figuratively plays the "diplomat," is a central agent.

The image of a translator as "diplomat" is useful also in the sense that a translated text relates to the original in more ways than a one-time deal. Negotiations go in multiple directions and produce changes in the original text as well. The various later editions of the "original" European and American texts of international law virtually grew in volume and reference matter over an extended period of time as the authors and editors incorporated additional tribunal cases and international resolutions into the original texts. It is not untypical of an editor, such as Wilson, to cite the existence of foreign language translations to prove the universal value (not merely applicability) of Wheaton's book. What it suggests is that later and revised editions can be just as illuminating as the original work in registering the process whereby international law has been globalized and universalized in the past two hundred years.

I would like to emphasize that the revised editions of international law in the original language inhabit the same space of global production and circulation as its foreign language counterparts and should, therefore, be brought to the foreground of historical studies. For that reason, it is important for me to keep a double focus in this study. On the one hand, the complex circumstances of the nineteenth-century Chinese engagements with international law must be carefully laid out and analyzed; on the other hand, these engagements need to be brought into a meaningful circulatory relationship with the contemporary re-issuing of the revised editions of the same (?) text in the original settings of Europe and America. The double focus explains and can be explained by the global circulatory networks of translated knowledge in modern international relations, thus imbuing the whole problematic of universal and particular with a new significance.

The Question of Colonial Historiography

Anecdotes abound in the historical accounts of how China and East Asia made the entrance into the family of nations in modern history. One of those stories has acquired a near legendary status in the form of a prelude. It was Lord Macartney's royal diplomatic mission to the Manchu court in 1793 which had posed the first serious challenge to the superiority of the Chinese civilization and its dominance over East Asia. In the eyes of the Europeans, Lord Macartney's mission exposed the profound ignorance of the Manchu court about the outside world because the latter insisted on treating him as a tribute-bearer from England and tried to make him perform koutou in the audience with the Emperor Qianlong. In the end, the Macartney mission failed to achieve its goals after the Emperor flatly rejected the British demands for establishing extensive trade relations with China. Until the recent publication of James Hevia's critical study, this well documented legend of Sino-British diplomatic encounter has largely determined the tone with which most historians talk about the subsequent developments in Sino-Western relations in the nineteenth and twentieth centuries.

The Macartney legend marks the beginning of what one might call "colonial historiography" in Sino-Western relations in West academia as well as in the works of some Chinese historians. A central argument in this shared historiography is that the cause of China's downfall in the nineteenth century was its stubborn refusal to abandon the traditional sinocentric ways of thinking about the outside world and be persuaded to join the rest of world in free trade. Under the label of sinocentrism, this excessively psychologized cultural mentality becomes a self-explanatory mechanism and requires no further debate.

Historians of international relations both before and after John King Fairbank have tended to fall back on the story of sinocentrism when they explain or cannot explain why the country was so prone to disastrous mistakes in handling barbarian (sic) affairs in the nineteenth century or why it "provoked" the kinds of punishment and retaliation by the Western powers it did. Narratives of diplomatic history tell us repeatedly that the Manchus and Chinese were preoccupied with their ancient tributary protocols and consequently were unable to meet the challenge of modern European diplomatic usage. The resistance to British demands for trade and diplomatic representation is thus conveniently dismissed as a traditionalist's response to progress. But Chinese resistance to Western imperialism need not be "traditional" to be meaningful any more than the "unequal treaties" have been traditionally Chinese. Conceptually, such trivialization of resistance is oddly unhistorical because it means that the survival strategies that the Manchu court and the Chinese official establishment had improvised and deployed on many occasions for the purpose of containing the encroachment of the Western powers were merely traditional responses to social change when they could have been understood as contemporary face-to-face and day-to-day struggles with global imperialist expansion, a very novel phenomenon of the time, indeed.

The dismissal of contemporary resistance as "traditional" lies at the heart of colonial historiography in the study of international relations and is by no means limited to Sino-Western relations. I argue that colonial historiography cannot be historical even by its own standard when it refuses to assign meaning to events or confront contemporary face-to-face and day-to-day struggles outside the pre-determined conceptual models of tradition and modernity, backwardness and progress, particular and universal, etc. That does not mean, however, that colonial historiography has not played an important historical role otherwise. To British empire building and the imperial history of the West, colonial historiography has proved eminently useful and indispensable when it grants, for example, universal validity to Euro-American international law and to modern diplomatic practice while translating everything else into particular, hence less significant and culturally specific moments. In this sense, the epistemological limits of the imperial history of the West are necessarily set and perpetuated by colonial historiography.

Marxist historiography, on the other hand, always emphasizes the importance of organized resistance to colonialism and imperialism and has done much toward historicizing the violent moments of encounter between the colonizer and the colonized. Because of its primary attention to the mode of production in explaining historical change, Marxist theory has, nonetheless, relied on a teleological view of history (the so-called transition from feudalism or the Asiatic mode of production to the capitalist mode of production) to characterize China's traumatic entrance into the modern international community. This view of history has not been conducive to (1) a fundamental questioning of colonial historiography on the matter of universal history and international relations or asking questions such as how international law became universalized and in turn compelled a universalist reading of world history and international law itself. (2) When it comes to conceptualizing the historical real, Marxist historians have tended to fall back on a set of historiographic approaches and assumptions about the value of the data and the ways of analyzing primary source materials which differ very little from that used in colonial historiography.

For example, the problem of evidence becomes intellectually meaningful only insofar as it enters into an argument about something else, be it an argument about imperialism or about national sovereignty. If the issue of "translation" happens to surface and meddle with the historian's handling of evidence, it is either disregarded or promptly relegated to secondary importance. This extraordinary naiveté in the construction of evidence often results in collusive readings of primary documents by taking them at face value--whether these come in Chinese, English, Japanese, French, or other languages--and therefore in misguided conclusions about diplomatic happenings as if these events had taken place in a transparent mode of exchange.

Linguistic Crusade Aganist the "English Barbarian"

In the early phases of Anglo-Chinese diplomacy, Chinese-language documents were the originals that actually circulated between the two governments and were read in English only by the British government. This linguistic situation is presented by J. Y. Wong as an immediate challenge to those who study the diplomatic relations of the period, because "although the British government acted on these English translations and English originals, the Chinese government acted on neither. The Chinese government knew only the Chinese originals of their own despatches, and recognized only the Chinese translations of those prepared and presented to them by the British. Therefore, Western historians who have so far used only the English translations and English originals may have to reconsider their conclusions based on evidence of the despatches written in a language that was not the medium of communication between the British and Chinese diplomats."

To put it more accurately, translation was the mode of exchange. As a regularly contested item in diplomatic intercourse, bilingual communication never went well and seemed to frustrate both parties. As far as the British were concerned, it simply posed too many threats and had to be brought under control. Therefore, Article 50 of the British Treaty of Tianjin made a special provision in 1858 that all British official communications to the Chinese authorities be written in English. They would be accompanied by a Chinese version for the time being, but the meaning as expressed in the English text should be held as authoritative. Within this time, the Chinese government was expected to provide a corps of competent interpreters. Article 3 of the French Tianjin Treaty made a similar provision, and so on.

Viewed in this light, the rhetorical strategy adopted by the British in a series of events that escalated into the first Opium War might acquire a new significance. As we know, the familiar quibble between Chinese officials and Western diplomats over the word "barbarian" had been the occasion of numerous clashes in the early phases of Anglo-Chinese diplomacy. The British had repeatedly protested against the Chinese use of the word yi and was determined to ban the expression from diplomatic intercourse. The ground of the perceived insult lies in the presumed equivalence of meaning between yi and "barbarian"(sic) and between ying yi and "English barbarian"(sic). It is useful to know that the equivalence thus established between the two words was a recent phenomonon or, at least, had not been in common usage before nineteenth-century European translators came along and insisted on "barbarian" as the exclusive signified of the Chinese word yi.

If we look back to the eighteenth century or even the beginning of the nineteenth century, alternative translations of yi did exist. That word had been equated with "foreigner" or "stranger" in English. To give an example, among the official correspondences of the British East Indian Company I have examined is a translation of some official proclamation issued by the Governor of Guangdong and Guangxi to the foreign business communities in China. Dated August 20, 1728, this English-language version had been supplied to the Company by a Roman Catholic priest in Guangzhou (Canton) who had translated it from an earlier French version of the Chinese original. Apparently, the European translator of the document did not have a vested interest to render yi as "barbarian" but used "stranger" and "foreigner" instead. Even as late as 1815, Robert Morrison of the London Missionary Society still thought it proper to render yi as "foreign" and glossed yiren as a respectable term for "foreigner" in the first Chinese-English lexicon published in Macao. After the fiasco of the Napier mission, however, Morrison decided to adopt a different translation of yi, now equating it with the English "barbarian."

Lord Napier arrived in China at the end of the monopoly of the British East India Company, bearing the official title of Foreign Superintendent to represent the British government. This change of hands meant that the Chinese Secretary's Office, which had previously served the needs of the Company, would be converted into a government office. The Chinese Secretary had always been an European man with some knowledge of the Chinese language who performed various translation tasks for European merchants. From 1834 on, this position began to be filled by missionaries and diplomats who received the official title of the Chinese Secretary of Her Majesty's Plenipotentiary. Among those who occupied this position successively were Robert Morrison and his son J. R. Morrison, Karl Gützlaff, Walter Henry Medhurst, and Thomas Wade. (Wade became a sinologist after an illustrious diplomatic career in China and filled the first chair of Chinese at Cambridge University in the 1880s.)

In view of the fact that all official diplomatic exchanges between the Chinese and British governments had to pass through the Chinese Secretary's Office between 1834 and 1860, the above mentioned translators played a pivotal role in the crises that subsequently exploded in this critical period of Anglo-Chinese diplomacy. In fact, these translators were entirely responsible for making the word yi an exclusive equivalent of "barbarian" and fixing that equivalence as is still very much honored by Western historians. If the curious translation suggests a strange masochistic self-image of the "barbarian" which the British insisted on projecting onto themselves by fantasizing a sinocentric world view, I must point out that it has been one of the most tragic and costly fabrications in modern diplomatic history and continues to exisit in the writings of today's historians and in the authoritative Cambridge History of China.

Dilip Basu calls the nineteenth-century British translation of yi a respectable rhetoric for war. He sees a vital link between the new interest in the word yi and the misguided policy of Napier whose armed expedition against China had ended in his untimely death. Napier was outraged by the fact that his official title, Foreign Superintendent, had been rendered as yimu by the Qing government because the Chinese term had been explained to him as meaning "Barbarian Eye," a translation which might be attributed to the ridiculous incompetence of his language informant. Even Sir George Staunton noted at the time that yimu was no ground for dispute because the Chinese translation simply meant "Foreign Principal" and that mu ought to be rendered as "principal," not literally as "eye."

Nevertheless, a general crisis began to build up around the so-called arrogance of the sinocentric attitude toward foreigners. The British mounted one protest after another against the use of yi by the Qing government and remained absolutely convinced that their national honor was being insulted by the Chinese word. The crusade against yi thus became a counter offensive against the Chinese prohibition on the opium trade, lending ample ammunitions to the hostile exchanges between the two governments. After the British won the Opium War and lifted the ban on the opium trade, they lost no time in banning the word yi from the official languge through treaty provisions. Article 51 of the British Treaty of Tientsin (1858) stipulates: "It is agreed that, henceforward, the character 'i' [barbarian], shall not be applied to the Government or subjects of Her Britannic Majesty in any Chinese official document issued by the Chinese Authorities either in the Capital or in the Provinces." (The ideograph for yi was inserted between "i" and [barbarian] in the original text of the Article.) That ban turns out to be more successful than could have been imagined by its original architects, because the word yi has since been completely erased from modern Chinese vocabulary.

Sir George Staunton and P. P. Thoms were among the few British men who voiced their disagreement with the translation and were critical of the political maneuver behind the uproar. Reflecting on Thoms's lost struggle against the rising tide of the linguistic crusade against yi, Dilip Basu observes:

Thoms's contestation was of no consequence. He noted that up to the time of Napier, no one complained about the term yi in Qing communications. He knew why. The communications mostly addressed commercial matters; they were respectful and elegant. Yet in 1836 no less an authority than Morrison or Gützlaff was translating the concept as offensive. He suspected that Morrison must have been acting "under authority (Thoms's italics) and not in compliance with his usual judgement." He further noted that in the "Correspondence relating to China" presented to both Houses of Parliament in 1840, the offensive terms, occurred, in not a very long document, not less than twenty-one times.

Indeed, the sleight of hand in translation succeeded in arousing a general sentiment of hostility and public outcry against China while, at the same time, the true evil of the opium trade, in which one of the Chinese Secretaries, the missionary Karl Gützlaff, had a lucrative share, went unpunished. As late as 1852, Acting Imperial Commissioner Bo-gui in Guangzhou continued to be puzzled by Sir George Bonham's protest to his use of the character yi in official correspondences and wondered why the word would be a source of anger and dispute. Bo-gui was probably unaware of the fact that Her Majesty's Plenipotentiary was reading his despatches in English translation supplied by the Chinese Secretary's office. And that document could have only said "barbarian." That was just a few years before the "English" meaning of all Chinese dispatches would be legally sanctioned by Article 50 of the British Treaty of Tianjin as mentioned in the above.

In a sense, the colonial provisions in the British Treaty of Tianjin are still being echoed word for word in colonial historiography. What counts as legitimate evidence in that scholarship has predominently been the "English content" of the diplomatic dispatches and never their mode of translation or interaction. Yet the mode of translation is precisely where the historicity of so-called "content" is played out and where the circulation of meaning is made possible.

[Figure 1. "The Chinese Exhibition of the English Barbarian," from Punch, 1844.]

Missionary, Translator, and Diplomat

Henry Wheaton's Elements of International Law was the first book of international law to be rendered into Chinese and published in 1864 under the official auspices of Prince Gong and his newly established foreign affairs office called the Zongli yamen in Beijing. The translation, known to the Chinese as Wanguo gongfa, stood at the head of several major translation projects initiated and brought to fruition by an American missionary named W. A. P. Martin. Martin (alias, Ding Weiliang), was one time President of the Imperial College appointed by Prince Gong. Assisted by his Chinese colleagues, Martin was responsible for translating and publishing, besides Wanguo gongfa, the following: T. D. Woolsey's Introduction to the Study of International Law (1878), Bluntschli's Das Moderne Völkerrecht der Civilisierten Staten als Rechtsbuch dargestellt (1879) rendered from Lardy's French version called Le Droit international codifié of the same text, and W. E. Hall's Treatise on International Law (1903). Martin has also been credited with the translation of several diplomatic guide books such as Le Manuel des lois de la guerre (1881) compiled by the Institut de Droit International as well as George Friedrich de Marten's Guide diplomatique (1877).

These seminal translations, especially Wheaton's book, are often treated as the beginnings of a new chapter of China's foreign relations in world diplomatic history. Scholars aruge that the official appearance of these texts marked a turning point in Chinese government's dealings with the outside world after the 1860 crisis which had led to the creation of the Zongli yamen. Moreover, Japan and the future destinies of Taiwan and Korea were also implicated here because, as early as 1865, Wanguo gongfa traveled to Japan and the Japanese brought out a kambun transcription of Martin's translation in Kyoto within one year of the first Chinese edition. This and a new Japanese edition of Elements of International Law in 1876 unleashed a wave of interpretations and discussions of Bankoku koho that directly impacted the rise of Japanese imperialism, Sino-Japanese relations, and Korean-Japanese relations in the years to come.

But the relationship between a translated text and its application in diplomatic practice is never self-evident. Instead of assuming a direct or indirect relationship between text and practice, we must first examine how a translated text produces meaning--both intended and unintended meanings--between the discursive contexts of the two languages, for neither international law nor its application can possibly exist independently of translingual interpretation in diplomatic negotiations. The situation is doubly interesting when we consider how meaning becomes possible between those languages that had limited contact before and must learn to speak in each other's political discourse for the first time. Such was the difficulty that W. A. P. Martin and his Chinese colleagues faced when they first embarked on the ambitious translation of international law from English into classical Chinese in 1863.

The problem of translatability looms large in any such inquiry, but it would be futile to search for an ideal pairing of meanings when the matching of meanings is itself a historical phenomenon under investigation. The imagined adequatio of meanings as understood in traditional theories of translation is, therefore, a pseudo-problem as far as this study is concerned. Translatability means something entirely different here. It refers to the historical making of hypothetical equivalences between languages. These equivalences tend to be makeshift inventions in the beginning and become more or less fixed through repeated use or come to be supplanted by the preferred hypothetical equivalences of a later generation. As I have argued elsewhere, one does not translate between equivalents; rather, one creates tropes of equivalence in the middle zone of translation between the host and guest languages. This middle zone of hypothetical equivalence, which is occupied by neologistic imagination, becomes the very ground for change.

Indeed, how are meanings initiated, legitimated, sabotaged, suspended, or put to practical use? I suppose that, even in cases where we need to consider how a text becomes involved in a larger diplomatic event, a question like this would suggest a more fruitful way of looking at the translation of international law in nineteenth-century China than a straightforward account of text and its application in diplomatic practice. Both text and practice must be subjected to the same process of rigorous interrogation. What this means is that the Chinese translation of Euro-American international law in recent history is no longer a mere textual event or a mere diplomatic event. There is yet a third aspect of this happening which one might tentatively call an epistemological event. This intellectual event crosses paths with the textual and diplomatic to produce a triple event. It is in the sense of a triple event that the translation of international law assumes the importance that it does in the present study. And I would like to add that the rise of so-called global (and later national) consciousness in East Asia falls precisely within the historical parameters of this triple event.

By no accident did W. A. P Martin take on the triple role of a translator, diplomat, and missionary, which he played literally and conscientiously. Like the other Christian missionaries of his time, Martin attached a "higher" purpose to his secular translations, although he would probably have given an evangelical name to the epistemological aspect of the triple event in which he was engaged. Most likely he would have called it the Christian moral truth. Martin was an American Presbyterian missionary from Indiana who was appointed to China by the Foreign Mission Board. He and his wife sailed from Philadelphia on November 23, 1849 and reached Hong Kong on April 10, 1850. Martin spent the first decade of his mission work in Ningbo during which he occasionally offered diplomatic service to the United States government as an interpreter. Long before undertaking the official task of translating international law for the Manchu government, he had been employed by the U. S. minister William B. Reed to be an official interpreter for the American legation during the Tianjin treaty negotiations in 1858. After the next minister John E. Ward took office, Martin got himself hired again and interpreted for Ward during the Taku military confrontations between the allies and the Manchu government. These and the other diplomatic posts at the American legation were conducive to Martin's interest in international law after 1860 and, a few years later, he was to find a meaningful connection between his mission work and secular translations.

Protestant missionaries who went to China following in Robert Morrison's footsteps after 1807 adopted a typical method of proselytizing reminiscent of the strategies that the Jesuits had found practical in the seventeenth century. Fully aware of the fact that the mandarins were uninterested in the theological explanations of Christian truths, they decided to camouflage the religious doctrines with secular knowledge which they thought was either desired by, or already inculcated into, the Chinese elite. Martin read extensively about the work of the Society of Jesus in China under the Ming dynasty and greatly admired the Jesuit priest Matteo Ricci. He liked to think of himself as a Protestant Matteo Ricci whose example drove him to embark on the translation of international law. As one of the prominent missionaries of the nineteenth century, Martin's work embodies the evangelical traditions of both the past and his own time, which raises some new questions about the role of the missionaries in the secularizing and globalizing processes of the modern world.

In what seems to be the first mention of his translation, Martin wrote to his friend Walter Lowrie, a fellow Presbyterian missionary in Ningbo, in a letter dated Oct. 1, 1863: "I was led to undertake it, without the suggestion of anyone," he says, "but providentially I doubt not, as a work which might bring this atheistic government to the recognition of God and his Eternal justice; and perhaps impart to them something of the Spirit of Christianity." That sounds genuine enough but is not the whole story. Even at this initial stage, Martin did not make all the decision by himself as his biographer Ralph Covell seems inclined to believe. In a memoir called A Cycle of Cathay published many years later, Martin happened to give us more details about the circumstances of his translation and the reason why he chose the Wheaton book when he had first thought of translating Vattel (1714-1767). That was when he returned to China in 1862 after a furlough of two years back in America with his wife and children. This time around, Martin wanted to move north and open a mission in Beijing but, due to the death of a colleague (William Culbertson) who had the editorial supervision of the mission press in Shanghai, he was temporarily detained in that city. "I employed a portion of my time in translating Wheaton's 'Elements of International Law,' a work that was to exert some influence on two empires as well as on the course of my own life," says Martin, "The want of such a book had early forced itself on my attention, and I was proposing to take Vattel for my text, when Mr. Ward recommended Wheaton as being more modern and equally authoritative."

The timely intervention by John Ward is significant. The reader will remember that Martin had served as Ward's official interpreter during the Taku crisis and witnessed the military confrontations between China and the allies. Ward's opinion mattered to his former interpreter because it represented the official view of the U.S. government. Wheaton's Elements of International Law was endorsed for being "more modern and equally authoritative" but there is yet another reason not quite spelled out; that is, the author of the book was an American lawyer and diplomat who made no pretense of hiding the national interest of the United States. As early as 1855, the Department of State had sent a copy of Wheaton to the American Commissioner in China but the book never arrived. So William B. Reed, the American minister who first employed Martin as official interpreter, purchased another copy at official expense in 1857.

In his preface to Wanguo gongfa, however, Martin does not and cannot spell out the interesting circumstances discussed here, which he occasionally mentions elsewhere or does not mention at all. For example, he offers an explanation in the preface that effectively erases the official policy implications in his choice of the text :

For the choice of my author, I offer no apology. My mind at first inclined to Vattel; but on reflection, it appeared to me that the work of that excellent and lucid writer might as a practical guide be somewhat out of date; and that to introduce it to the Chinese would not be unlike teaching them the Ptolemaic system of the heavens. Mr. Wheaton's book, besides the advantage of bringing the science down to a very recent day, is generally recognized as a full and impartial digest, and as such has found its way into all the cabinets of Europe. In England especially, it is employed as a text-book for the examination of candidates for the diplomatic service.

This quote immediately follows Martin's praises for Robert Hart who, according to the Wheaton's translator, overcame his national prejudices by endorsing "an American version of an American text-book." (Ibid.) This might well have raised some eyebrows because Wheaton's book was an American version of international law and called for the author's defense of that choice. Thirteen years later when Martin issued a translation of Woolsey's Introduction to the Study of International Law, once again an American text, he found it necessary to defend himself from charges of "patriotic partiality." His subsequent inclusion of Bluntschli, Hall and others represented a corrective attempt to balance the patriotic partialities among the Western writers of international law. For example, when the Chinese translation of Hall's Treatise on International Law was presented to the public, Martin confessed that he introduced this British authority on the subject to "complete the list" of major international law texts. Whether the list was complete or not, the national identity of the original authors casts a dubious shadow over the self-proclaimed impartiality of international law and shows that "authorship" in a broad sense does matter where the control over universal representation becomes a point of contention among the Western powers.

But back to Vattel whom Martin briefly contemplated translating before changing his mind due to Ward's intervention. Vattel's Le droit des gens or The Law of Nations was not unknown to the Chinese at this time. As early as 1839, Imperial Commissioner Lin Zexu had requested the American medical missionary Peter Parker (1804-1888) to render three paragraphs of Vattel's book during the opium-suppression campaign in Canton. Lin's visit was recorded by Parker in Tenth Report of the Ophthalmic Hospital in 1839 as follows: "Case No. 6565. Hernia. Lin Tsihseu, the imperial commissioner. . . . His first applications, during the month of July, were not for medical relief, but for translation of some quotations from Vattel's Law of Nations, with which he had been furnished: these were sent through the senior hong-merchant; they related to war, and its accompanying hostile measures, as blockades, embargoes, etc.; they were written out with a Chinese pencil." Parker's translation was later included in juan 83 of Wei Yuan's famous Haiguo tuzhi (An illustrated gazetteer of maritime countries), edition of 1852, with Vattel's name transliterated as Hua Da Er and the book title rendered as Geguo lüli (Laws and regulations of all nations). Immanuel Hsü rightly calls Parker's translation a travesty of Vattel's perspicuity because Parker did not seem to follow the original but simply paraphrased Vattel and added his own comments in a labored and nonliterary style.

As Commissioner Lin had difficulty understanding Parker's translation which bordered on the unintelligible, he sought the help of a Chinese interpreter, Yuan Dehui, who had studied Latin at the Roman Catholic School in Penang, and had been a student at Milne's Anglo-Chinese College in Malacca. An interpreter of the Court of Tributary Affairs, Yuan had been sent to Canton in 1838 to purchase foreign books and temporarily placed on Commissioner Lin's staff. It has been suggested that it was Yuan "who, in view of the impending trouble with the British, first called Lin's attention to the authoritative work of Vattel."

Lin studied the translations by Parker and Yuan and followed the course of action discussed in them. One of the Vattel passages Lin had Parker translate reads: "Every state has, consequently, a right to prohibit the entrance of foreign merchandises, and the nations that are affected by such prohibitions have no right to complain of it, as if they had been refused an office of humanity. Their complaints would be ridiculous, since they would only be caused by a want of that gain, refused by a nation that would not suffer it to be made at its own expense." Despite Parker's obscure rendering of the original text, Lin obtained some sense of what Vattel's international law was saying and followed the text to the letter by proclaiming opium a contraband in 1839 and demanding its destruction. He wrote to Queen Victoria requesting her to order the stoppage of opium traffic. "Suppose a man of another country comes to England to trade, he still has to obey the English laws;" wrote Lin, "why should he not obey the laws of the Celestial dynasty?" Lin's use of international law in these transactions was strategic because the Vattel passages he had Parker and Yuan translate for him were strictly confined to the issues of how nations go to war and impose embargoes, blockades, and other hostile measures.

In other words, Lin treated international law as a mode of persuasion, not universal truth, which would enable him to argue against the harmful effects of the opium trade in a language he thought the British could understand. This "positive" use of international law bears some superficial resemblance to the argument Martin would advance twenty years later when he wrote that his secular translation was intended to bring an atheistic government to the recognition of God and impart to them something of the Spirit of Christianity. Whereas Martin took a holistic view of his secular and religious work and would not commit himself to translating anything less than the whole text of international law even if it was just a paraphrase of the whole text, Lin was unconcerned about the integrity of the text and its holistic values. When he proclaimed opium a "contraband" in 1839 and demanded its confiscation and destruction, he was strategically responding to the West's wilful dismissal of the so-called traditional (sic) Chinese mode of persuasion during the government campaign against opium traffic.

When neither the Chinese or Western mode of persuasion could produce the desired results, Lin resorted to force. As he issued the order to destroy the shipments of opium in Guangzhou, he was fully convinced of the moral and legal righteousness of his action even by the yardstick of Western international law. However, the Opium War followed an entirely different course of development that would hold international law up for ridicule. Britain declared war against China to seek compensation for the damages caused by Lin's confiscation and destruction of the commodity. The rest is familiar story: Hong Kong became British colony and five treaty ports were opened up along the Chinese coast. Indemnities were paid and Lin also had to pay for the consequences of the war. He lost his post in the imperial government on charges of provoking the hostilities with the British. The historical irony is that China's entrance into the family of nations had logical connections with Britain's violation of international law during the Opium war. These connections should help us place Martin's translation of international law in a longer historical perspective.

Translating Elements of International Law

Twenty years after the first Opium War, when the British Minister Frederick Bruce was informed of Martin's translation of Elements of International Law, he made a remark to Martin that once again spelled out the interconnectedness of the two events; namely, the West's violation of international law and China's simultaneous entrance into the family of nations. "The work would do good," Bruce said, "by showing the Chinese that the nations of the West have taoli ["principles"] by which they are guided, and that force is not their only law." Bruce was admitting to the fact that the Western nations went and conquered the rest of the world with weapons in one hand and the law (principles) in the other. Brute military force borrows the moral and legal authority of international law to justify their world taking as oeuvre civilitrice. The act of justification in turn translates global killing and looting into a noble cause.

Bruce's endorsement of Martin's project suggests a need for belated justification for the British and other Western powers' violation of international law in the Opium War, the Arrow War, and other wars against China. The word "belated" is crucial here because it describes the circumstantial (not exactly, intended) meaning of Martin's work. After the various "unequal treaties" had been extorted from the Manchu government and ratified at gunpoint, they were now in need of being monitored and implemented faithfully by the Zongli yamen and the imperial court according to the requirement of international law. In that sense, the translation was both belated and timely.

In spring 1863, when the Manchu court was having diplomatic difficulties with France, Wen-xiang, a leading minister of the Zongli yamen, asked the United States Minister in Beijing, Anson Burlingame, to recommend an authoritative work on international law which would be recognized by all Western nations. Like John Ward, Burlingame mentioned Wheaton's Elements of International Law and promised to have portions of the book translated. He wrote to Consul George Seward in Shanghai and was informed that by coincidence Martin was doing the work. Burlingame gave Martin encouragement and assured him of his aid in bringing the work before the mandarins. In June of the same year, Martin took the passage for the north. Further momentum was given to the arrangement when Chong-hou, who had been briefed on the translation by Martin at Tianjin in July, 1863, offered to write to Wen-xiang to recommend this translation.

On Sept. 10, 1863, Burlingame formally introduced Martin to four members of the Zongli yamen with whom he had already become acquainted during the treaty negotiations in 1858. Martin brought the unfinished translation of Wheaton to the meeting and showed it to the ministers. The ministers were impressed. Wen-xiang mentioned a selection of important passages translated earlier for the Zongli yamen by Robert Hart when Hart was the chief assistant to Horatio N. Lay, the Inspector-General of the Maritime Customs. "Does it contain the 'twenty-four sections'?" Martin recalls Wen-xiang asking, "'This will be our guide when we send envoys to foreign countries.'" The "twenty-four sections" refer to Chapter 1 of Part III of Wheaton's Elements of International Law in which the rights of legations are discussed. In reply, Martin said that his translation was incomplete and asked the Zongli yamen to appoint a competent official to assist him in a final revision and to print it at public expense. Subsequently, Prince Gong appointed a commission of four men--all of high literary competence, one scholar working in the Hanlin Academy--to assist him in the completion of the translation. In addition, Martin received five hundred taels to help cover the cost of printing and publication. The work was done at the Yamen, and at the suggestion of Robert Hart, the newly appointed Inspector-General, the book was printed for the use of the government.

Martin dedicated the finished work to Burlingame who, in Martin's words, "gloried in contributing something toward the introduction of international law into China." The same can be said of Martin's own sense of achievement. But not everybody was as pleased. Several officials in the diplomatic establishment, Chinese as well as Europeans, questioned Martin's motivation. The French chargé d'affaires Klecskowsky regarded Martin as a trouble-maker and is said to have complained to Burlingame: "Who is this man who is going to give the Chinese an insight into our European international law? Kill him--choke him off; he'll make us endless trouble." Likewise, Samuel Wells Williams believed that the introduction of international law might stimulate China to reach the level of Western law and thus find a legal ground to abolish certain aspects of the "unequal treaties," such as extraterritoriality.

The Chinese, on the other hand, were unconvinced that Martin's motives were disinterested benevolence and surmised that he wanted to make a name for himself after the illustrious example of Matteo Ricci. If Prince Gong and Wen-xiang were the enthusiastic supporters of Martin's work, it was because the Zongli yamen wanted to use Wanguo gongfa as a practical manual for conducting diplomatic affairs with the Western powers. It would familiarize them with the protocols of the Western nations who had recently established legations in the capital after the crisis of 1860. The Zongli yamen desired to know what legal basis there was for the procedures that had been forced upon them in the name of international law, such as unequal treaties, extraterritoriality, most-favored-nation treatment, tariff control, diplomatic representation, rights of war and peace, sovereignty, etc.

A good number of Manchu and Chinese officials felt ambivalent or downright hostile to Martin's translation. They were deeply suspicious of the unspoken intention of his work "as Trojans did the gifts of the Greeks." In response to such fear, Prince Gong memorialized the throne on August 30, 1864, arguing:

We your ministers, find that this book of foreign laws does not entirely agree with our own laws, but there are in it occasional passages which are useful. For example, in connection with the case of Danish ships captured by Prussia outside of Tientsin, we used some sentences from the book, without expressly saying so, as arguments. The Prussian minister acknowledged his mistake without saying a word. This seems a good proof. He [Martin] says that this book should be read by all countries having treaty relations with others. In case of dispute it can be referred to. . . . . . We, your ministers, guarding against such frequent requests with books and possible attempts to make us follow them, have told him that China has her own laws and institutions and that it would be inconvenient to refer to foreign books. Martin, however, points out that although the Collected Statutes of the Great Qing Dynasty have been translated into foreign languages, China never attempted to force western countries to practice them. It cannot be that just because a foreign book has been translated into Chinese, China would be forced to practice it. Thus, he [Martin] pleaded repeatedly.

Prince Gong built his argument on the basis of practical application, not on the universal value of Western international law. The case of Danish ships in Tianjin, which occurred as a result of Bismarck's war with Denmark in Europe, provided a useful occasion for the Zongli yamen to test the effectiveness of legal provisions as outlined in Wheaton's book. When the new Prussian minister to China, von Rehfues, arrived in China in a man-of-war in the spring of 1864, he found three Danish merchant ships off the port of Taku. He immediately seized them as war prizes. The Zongli yamen used the concept of maritime territory and the treaty provisions between China and Prussia to protest the extension of European quarrels to China. Prince Gong refused to grant an interview to the new Prussian minister and condemned him for the way in which he began his ministerial duties. The case was successfully resolved when Von Rehfues relinquished the three Danish vessels, with a compensation of $ 1,500.

Prince Gong's memorial proved effective. Martin's manuscript received imperial sanction and was allowed to be printed and distributed. But aside from one or two isolated cases of effective uses of international law whereby China was able to assert its sovereignty, how does the memorial articulate the cultural implications of the ministers' endorsement of Martin's translation? It is interesting to note that Prince Gong appealed to a vague notion of reciprocity at the suggestion of Martin himself. According to Martin, China has never attempted to force western countries to practice its laws any more than the West intends to force its own laws on China. He does not, however, spell out the ground of such imagined reciprocity. As we know, the earlier translation of the Daqing lüli (Collected statutes of the great Qing dynasty) by George Staunton following Macartney's mission had occurred under conditions where there was absolutely no question of China forcing the West to adopt its own laws. The British man undertook the task in order to provide his own government with useful information about China. By the mid-nineteenth century when Martin undertook the translation of international law, however, the Western powers had already forced many of its demands and treaties on the Manchu government in the name of international law. So the alleged ground of reciprocity did not exist between the Daqing lüli and Wanguo gongfa to support Martin's argument of cultural relativism. Rather, as I argue in the next section, Martin's universalist agenda lies elsewhere. The fact that he pursued the translation at all may suggest bona fide assumption of reciprocity and commensurability between English and Chinese. But reciprocity and commensurability are in every sense a product of deictic encounters between the two languages and not the other way around. This conception of reciprocity and commensurability opens up a hermeneutic space in which the significance of Martin's translation can be fruitfully grasped.

Insofar as Klecskowsky's insistence on "our European international law"affirms the brute instrumentality of that law, the French diplomat seems to flatly deny universal status to the same. Likewise, Martin's cultural relativism, even if it were just a pretense, suggests a very much circumscribed sense of how far international law can go to make universal claims outside the West. If international law was thus circumscribed and contested by the Mancus, Chinese, and Westerners, none of whom knew for sure who interest this book would best serve, how do we go about identifying and analyzing a historical process that did seem to gesture toward granting universal recognition to international law in the years to come? This is the question the next section will try to answer.

Producing Universal Knowledge

The opening pages of Wanguo gongfa greeted its targeted audience, the Manchu-Chinese officials, with a loud and clear message about the place and placing of China on the new "scientific" map of the world. (See Figure 2-3) This map represents the two hemispheres printed back to back with brief geographic narratives set in the margins with names of the continents and oceans given in Chinese transliteration. The cartographic representation, which was not uncommon at the time, seeks to introduce a new order of universal knowledge and global consciousness to the Chinese elite so this ancient civilization would be persuaded to join the family of nations.

Figure 2. Title page of Wanguo gongfa, the Chinese translation of Elements of International Law, 1864.

Figure 3: The maps of the eastern and western hemispheres printed in Wanguo gongfa.

But the spread of universal knowledge also means overcoming the resistance of local languages at the textual level. Resistance was particularly strong in the mid nineteenth century when hypothetical equivalence between English and Chinese had not yet been set in place and when there was a great deal of latitude as to what a word in one language might be taken to mean in the other. When Martin's manuscript was first presented to Prince Gong, the latter complained: "Examining this book, I found it generally deals with alliances, laws of war, and other things. Particularly it has laws on the outbreak of war and the check and balance between states. Its words and sentences are confused and disorderly; we cannot clearly understand it unless it is explained in person." (My italics) Prince Gong's reaction was, at best, ambivalent. He saw the usefulness of the book but thought it was poorly written. Although his criticism was directed at the level of words and sentences, it should not be taken as merely a commentary on literary style, but a reaction to the relative absence of hypothetical equivalence between English and Chinese.

Martin's translations often employed neologisms at the expense of intelligibility. Some of the vocabulary seemed obscure at that time but have since grown self-evident as time went by. This is because they have been gradually assimilated into the language as modern Chinese itself underwent massive changes through increased exposure to translations of European texts in the past century. This process suggests that translatability and intelligibility emerged during the first encounter of the languages but the significance of this happening tended to escape the immediate historical context only to achieve some level of clarity later in the language of future generations. It is one of those historical happenings that cannot be tied down to its immediate sociological origins or be explained by naive recourse to contemporary events and individual biographies.

One of the key concepts to emerge in the political discourse of modern China can be traced back to the neologisms invented by Martin and the Chinese translators of Elements of International Law. The concept I have in mind is quanli or "right" which, like zhuquan "sovereignty" and many other nineteenth-century coinages, no longer strikes us as strange or un-Chinese, because it has been naturalized in the history of Chinese (and Japanese) political discourse and through repeated usage for the past hundred thirty-five years. The situation was perceived differently, however, by those who lived around the mid-nineteenth century. This was duly documented by the translators themselves fourteen years after the fact because they continued to feel a need to defend their "unwieldy" coinage. In a headnote to the 1878 translation of Theodore Dwight Woolsey's Introduction to the Study of International Law known in Chinese as Gongfa bianlan, Martin and his Chinese collaborators describe how they had coined the neologism quanli to render the meaning of "right." Their tone was clearly apologetic. Below I translate the Translator's Headnote:

International law is a separate field of knowledge and requires special terminology. There were times when we could not find a proper Chinese term to render the original expression, so our choice of words would seem less than satisfactory. Take the character quan for example. In this book the word means not only the kind of power one has over others, but something every ordinary person is entitled to. Occasionally, we would add a word li [to form a compound] as, for example, in the expression quanli meaning the born "rights" of the plebeian, etc. At first encounter, these words and expressions may seem odd and unwieldy, but after seeing them repeatedly, you will come to realize that the translators have really made the best of necessity.

This is hardly surprising because, in the beginning of the nineteenth century when Robert Morrison first arrived in China, English and Chinese were still behaving like strangers to each other. Although Bible translations and religious tracts made some headway in the first half of the century, makeshift translations were the norm rather than the exception in political and philosophical discourse. It took a great deal of work for the first generation of translators, missionaries and their Chinese colleagues, to turn Chinese and English into each other's interlocutor at the expense of tolerable comprehensibility.

The Chinese noun quan thus underwent a drastic process of transvaluation through translation to be purged of some of its negative connotations often associated with quanshi (power / domination); likewise, the compound quanli took the word li (interest/calculation) out of its usual commercial context to be rendered pliable to suggest something positive within the context of international law. This positive meaning emerged entirely through the encounter with the English concept and introduced a very new concept into Chinese political discourse. Some years later, the concept would take on a life of its own and garner increased respect, especially after the Sino-Japanese War when liberal political thinkers of the West began to the translated and popularized through Yan Fu's writings (1853-1921) and through Japanese translations.

Still, it seems extraordinary that Martin should have been persuaded by his Chinese colleagues to pick two loaded (negative) characters to coin an equivalent compound for the English word "right." We must keep in mind that the word quanli possessed more ambiguity in the 1860s than it does now precisely because it was totally unfamiliar and hovered somewhere between Chinese and English. The "excess" meanings are entirely capable of reflecting back on the original English word "right" and glossing its meaning according to a different mode of association.

This translingual process may be glimpsed with some hindsight from an interesting glossary of Chinese-English bilingual terminology of international law called "Terms and Phrases" prepared by Martin and his Chinese colleagues many years after Wanguo gongfa had been issued. The text appeared as an appendix to their new translation of Gongfa xinbian (W. E. Hall's Treatise on International Law) published in 1903. In this authoritative glossary, the word quanli is rendered back into English as "rights and privileges" which I take to be a significant reverse translation of the Chinese neologism. The convoluted translation has the effect of reinterpreting the English word "right" with a bit of translingual echoes of the original Chinese character quan suggesting "power," "privilege," and "domination." The original English word "right," once put into circulation, cannot but be reinterpreted in light of other possible meanings and other possible associations that always come with the translation. At issue is not a matter of right or wrong, good or bad translations. The situation, I believe, is much more interesting and subtle than a simple judgment of that kind, because it poses the question of whether a translation could actually jeopardize the transparency and self-evidence of the original concept.

Let us belabor this point a little further. We know that (human) rights discourse in Europe has figured prominently in the language of international relations and has been an inseparable part of international law since the Enlightenment. Kant, for example, called for a cosmopolitan order that would abolish war on the basis of moral practical reason, leading to the legal form of a federation of nations. In "Toward Perpetual Peace," Kant envisions a process by which all the peoples of the earth would enter into a universal community to the extent that "a violation of rights in one part of the world is felt everywhere; This means that the idea of cosmopolitan law is no longer a fantastical or overly exaggerated idea. It is a necessary complement to civil and international law, transforming it into public law of humanity." Habermas marvels at Kant's miraculous foresight in a recent interpretation of this eighteenth-century dream of a family of nations and makes a point of glossing the notion of "public law of humanity" to mean Menschenrechte or human rights. This meaning of "rights," as Habermas so acutely understands, places the discourse of "human rights" so squarely in the historical unfolding of international law itself.

As I have argued throughout this chapter, the historical unfolding of international law cannot but also include the multiple translations and circulations of international law in the other languages. Habermas takes on a subject that has already been glossed over and over again in Latin, English, French, Italian, Chinese, Japanese and many other languages in the past two centuries. Unaware of this always already translated history, he is doing to Kant's notion of "perpetual peace" what Wanguo gongfa did to Henry Wheaton's Elements of International Law AND what Henry Wheaton had done to Heffter, the author of Das europäische Völkerrecht, in the nineteenth century, and so on ad infinitum. Namely, they all gloss the meaning of "law," "rights," and "human rights" with a specific historical and linguistic understanding of the stakes involved in each situated interpretation.

Henry Wheaton, writing in English, refers the concept of "human rights" to the work of the famous German public law theorist Heffter who has introduced it to distinguish between two distinct branches of Völkerrecht. These are (1) human rights in general, and those private relations which sovereign States recognize in respect to individuals not subject to their authority; (2) the direct relations existing between those states themselves. Wheaton goes on to cite Heffter to elaborate on these distinctions:

In the modern world, this latter branch has exclusively received the denomination of law of nations, Völkerrecht, Droit des Gens, Jus Gentium. It may more properly be called external public law, to distinguish it from the internal public law of a particular state. The first part of the ancient jus gentium has become confounded with the municipal law of each particular nation, without at the same time losing its original and essential character. This part of the science concerns, exclusively, certain rights of men in general, and those private relations which are considered as being under the protection of nations. It has been usually treated of under the denomination of private international law.

This provides a useful historical perspective for our understanding of human rights discourse in the past and the present. The concept of "human rights" is specifically glossed by Heffter as one branch of Völkerrecht, a commonly used German translation of the Latin jus gentium like the French equivalent droit de gens or the English "law of nations" of the time. In this context, "human rights" has everything to do with an earlier understanding of private international law and public law for that matter. This is what I meant by the always already translated reading of Menschenrechte in Habermas's recent writing about Kant. In Martin et al's translation of the above passage, the word "human rights" is rendered as shiren ziran zhi quan or literally "human natural rights." The clumsy phrase was the very first occurrence of the Chinese rendering of "human rights" which was later replaced by the neologism renquan. Not surprisingly, this concept was first introduced as a term of international law and still plays a vital role in world politics today.

As I suggested above, the noun quan commands a broad spectrum of negative meanings associated with "power," "privilege," and "domination" in the Chinese usage much like the word li that brings to mind "interest," "profit," and "calculation." Lurking behind the renderings of "rights" and "human rights," these banished meanings can always come back and haunt the English translation and unwittingly contaminate the word "right" and "human rights" with the suppressed "other" meanings. The subtext of "excess" signification thus glosses the self-evident meaning of the English word "right" with something more than what it ostensibly says. This is not to say that the translators were incapable of comprehending the true meaning of "right." On the contrary, the "excess" signification seems to heed the historical message of "rights" discourse in the practice of international law only too well, because it registers the fact that the law had been brought into China by the nineteenth-century representatives of European international law who had asserted their "trade rights" and the "right" to invade, plunder, and attack the country. Their language of "rights" cannot but convey a loud message of threat, violence, and military aggression to the Manchu government at the negotiation table and to the Chinese population at large.

Negotiating Commensurability

Martin and his Chinese colleagues undertook to create a preliminary level of hypothetical equivalence or make-shift translatability between the political discourses of two very different languages and intellectual traditions. They did so by negotiating a ground of commensurability between Chinese and Christian values and that ground was where the intended readers were expected to get at the meaning of their translation. In the English preface to Wanguo gongfa, Martin argues for cultural commensurability on the basis of natural law, explaining why the Chinese are capable of comprehending the principles of Western international law:

To its fundamental principle, the Chinese mind is prepared to yield a ready assent. In their state ritual as well as their canonical books, they acknowledge a supreme arbiter of human destiny, to whom kings and princes are responsible for their exercise of delegated power; and in theory, no people are more ready to admit that His law is inscribed on the human heart. The relations of nations, considered as moral persons, and their reciprocal obligations as deduced from this maxim, they are thoroughly able to comprehend.

Martin's understanding of commensurability between Chinese and Christian cultures carries strong connotations of natural law insofar as natural law is understood as the other side of the argument about positive law in Western theological/legal discourse. In the main text, Martin and his Chinese collaborators render "natural law" as xingfa and occasionally as ziran zhi fa. In contrast, "positive law" is rendered as gongfa (the same compound used to render "law of nations" and "public international law") and occasionally as lüfa.

This is significant because they are essentially calling on the key Neo-Confucian notions xing and gong (glossed by the translators as "natural" and "positive" or "public" respectively) to create a philosophical ground of commensurability between two very different intellectual traditions. This move is strongly reminiscent of the seventeenth century Jesuit strategies when the Roman Catholic missionaries attempted to introduce a ground of reconciliation between Confucianism and Christianity.

However, Martin and his collaborators did not stretch the idea of natural law in order to make the moral principles of international law sound like the Confucian ethics of reciprocity. After all, they were trying to introduce new knowledge from the West. If one reads xing or gong with Neo-Confucian philosophy in the back of one's mind as Martin's readers would, the Chinese word certainly changes the meaning of "natural law;" but it is also true that the meanings of the Chinese words are simultaneously transformed by a process of translation that engages them in a deictic manner with the English concept "natural law" or "positive law" in Elements of International Law.

What happens is that neither Chinese nor English can lay exclusive claim to the meanings of the translated terms because those meanings reside somewhere in-between, like the neologism quanli (right) discussed above. Just as the neologistic use of xingfa and gongfa plucks the Neo-Confucian concept xing and gong out of their familiar philosophical context, so do the same translations take the idea of "natural law" and "public law" out of Wheaton's local engagement with Western legal discourses to create a broader and more "universal" basis for the global claims of international law than either tradition could have accomplished on its own.

The seventeenth-century Dutch theologian Hugo Grotius (1583-1645) whose work De jure belli ac pacis (On the rights of war and peace) lay the foundation for international law made a crucial distinction between jus naturale (natural law) and jus gentium (the law of nations). Jus naturale was based on theological arguments about the rules of human conduct prescribed by God to his rational creatures and revealed by the light of reason or the sacred Scriptures. Jus gentium or the law of nations referred to the general or universal consent of nations to observe certain rules of conduct in their reciprocal relations. Those who endorsed natural law viewed nations and states as enlarged versions of moral beings (conveniently adapted by Martin to Confucian ethics) and thus treated international law as an extension of civil law.

In Persian Letters, for example, Montesquieu makes one of his fictional characters, Usbek, express this view in a letter to another character named Rhedi: "You would almost think, Rhedi, that there were two entirely different types of justice: one, regulating the affairs of private individuals, rules civil law; the other, regulating the differences that arise between nations, tyrannizes over international law; as if international law itself were not a kind of civil law, not indeed the law of a particular country, but of the world." If Montesquieu puts the words of contemporary theory in the mouth of his fictional characters in Persian Letters, he gives a straightforward treatment of international law on the basis of natural law in The Spirit of the Laws, thus joining the rank of prominent international law theorists including Leibnitz (1646-1716), Vattel and the others.

"Natural law" and the "law of nations" represented two very different but related conceptualizations of the nature of human society and its ability to manage disputes and war among the nations. Grotius himself had defined the "law of nations" in terms of a binding consent among all nations to observe certain rules of conduct in their reciprocal relations, and this term was used interchangeably with "international law" by most European theorists. After Bentham raised the objection that the law of nations sounded more like it referred to internal jurisprudence than laws governing states, "international law" gradually replaced the "law of nations" as an umbrella term for the science, but the running theological debate about natural law and the law of nations continued unabated in the language of natural law and positive law (which partly explains why Martin and his collaborators considered the Chinese compound gongfa appropriate for rendering all three terms: "the law of nations," "positive law," and "public international law" in Wanguo gongfa). As the Western powers sought to increase its colonies and conquer th rest of the world in the nineteenth century, the emphasis shifted more and more toward universal consent, treaties, balance of power, and international tribunals and less toward commonly shared humanity or moral vision among the different nations. Thus, Henry W. Hallek, a well-known authority of international law of the nineteenth century, was able to give a supremely realistic picture of international law. He called it "the rules of conduct regulating the intercourse of states."

However, the endorsement of a "natural law" position need not contradict such "realism" in the early nineteenth century. One of Martin's contemporaries and certainly a better known Protestant missionary of the time was a Prussian I mentioned earlier named Karl Gützlaff. Twenty years before Martin, Gützlaff had served as the official interpreter for the British government during the Opium War and helped negotiate the colonizing of Hong Kong and the opening of the five treaty ports. As early as 1838, Gützlaff had argued that, when the British demanded the right to free intercourse among all nations, it was not merely seeking material benefits, for Britain was acting in accord with "international law." Chinese resistance to international trade amounted to defiance of God, who had decreed the brotherhood of all men. Those who denied their people access to truth and to the manufactures of the West were infringing on an inherent human right.

The crude analogy Gützlaff makes between natural law and international trade puts a definitive historical spin on nineteenth-century discussions of natural law. Gützlaff's logic would sound familiar to his nineteenth-century European readers and not nearly as crude as it may seem now. He effectively exploited that logic with all its moral and religious implications to help justify the global expansion of the British empire. As a missionary, diplomat, and translator, Gützlaff wrote and published the above views at the height of Chinese resistance to British opium traffic and only a year before Lin Zexu's famous visit to Parker's clinic requesting a translation of Vattel. Lin, as I discussed earlier, had only those portions of Vattel translated which touched on the "positive" implication of Vattel's discussion of war, hostile measures, blockades, embargoes, etc. The interesting contrast between Gützlaff's endorsement of "natural law" and Lin Zexu's "positive" use of international law in the opium dispute in 1839 is significant and reflexive of the changing situation of universalism in the nineteenth century.

Henry Wheaton, an early nineteenth century theorist of international law, tried to tackle natural law in a critical review of earlier European theorists of international law in Elements of International Law. He did so with a view to adopting a more positive conceptualizing of modern states relations. As a legal syncretist, Wheaton does not completely abandon natural law but attempts to imbue his notion of positive law with a vague notion of natural law. Thus, he defines international law among civilized nations (China commonly viewed as semi-civilized) as "consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definition and modifications as may be established by general consent." Note that the emphasis here is not the moral being or reciprocal obligation so much as a positive understanding of "general consent."

Wheaton calls international law (with Savigny) an imperfect positive law. It is imperfect "both on account of the indeterminateness of its precepts, and because it lacks that solid basis on which rests the positive law of every particular nation, the political power of the State and a judicial authority competent to enforce the law." He adds, however, "the progress of civilization, founded on Christianity, has gradually conducted us to observe a law analogous to this in our intercourse with all the nations of the globe, whatever may be their religious faith, and without reciprocity on their part." Wheaton's argument about progress and universalism is very different from a universalist argument about international law that takes cultural commensurability as its chief point of departure.

Where Wheaton simply equates Christianity with the universal and refuses to consider reciprocity, Martin, his translator, talks about reciprocal obligations and the communicability of universal laws across cultures and languages. Is Martin trying to manipulate Wheaton's complex arguments to suit his own evangelical purposes? It seems to me that the situation is more complex than the translator's intentional use or misuse of the original text. For no translator can afford to do away with a certain assumption of linguistic or cultural commensurability between the languages he or she works with. Doing so would be tantamount to contradicting the act of translation itself.

Instead, Martin and his collaborators made a choice that most translators would have made under the circumstance; namely, they turned the desired commensurability between English and Chinese into a condition of universality. Neo-Confucian overtones notwithstanding, xingfa and gongfa were taken to signify "natural law" and "positive law," etc. These neologistic compounds borrowed the universalism of Neo-Confucian thinking to promote the translatability of international law. In that sense, the interjection of a notion of reciprocity and commensurability into Wheaton's argument by Martin and his collaborators did not help the cause of Confucianism so much as it did the universalist agenda of international law.

Both Wheaton and Martin lived in a period of time when the meaning of the universal in international affairs was undergoing fundamental changes. In his own way, Wheaton was very much in keeping with the global events that were shaping the modern world with unprecedented speed and that in turn informed his own explication of the principles of earlier and contemporary theories of international law. His reference to the "progress of civilization" as "founded on Christianity" in the above quote is by no means a simple statement of the author's religious faith but a reworking of natural law principles in response to the unfolding of world events. Thus, we are told:

the more recent intercourse between the Christian nations in Europe and America and the Mohammedan and Pagan nations of Asia and Africa indicates a disposition, on the part of the latter, to renounce their peculiar international usages and adopt those of Christendom. The rights of legation have been recognized by, and reciprocally extended to, Turkey, Persia, Egypt, and the States of Barbary. The independence and integrity of the Ottoman Empire have been long regarded as forming essential elements in the European balance of power, and, as such, have recently become the objects of conventional stipulations between the Christian States of Europe and that Empire, which may be considered as bringing it within the pale of the public law of the former.

The same remark may be applied to the recent diplomatic transactions between the Chinese Empire and the Christian nations of Europe and America, in which the former has been compelled to abandon its inveterate anti-commercial and anti-social principles, and to acknowledge the independence and equality of other nations in the mutual intercourse of war and peace.

Interestingly, the reference to China did not exist in the first edition of Elements of International Law published in 1836, but found its way into the later revised and more definitive third edition that appeared in 1846 (the same edition used by Martin in Wanguo gongfa) two years before the author's death. In this quote from the revised edition, Wheaton is clearly referring to the Opium War and the subsequent treaties and settlements that opened China to foreign trade, marking the beginning of what some have called semi-colonial history in China. This is intensely ironic in view of what had happened to Lin Zexu and his tragic use of Vattel. Whatever might have brought the Chinese government to the negotiation table following the Opium War, this fact is used by Wheaton as evidence of the triumph of the principles of Christian nations' "particular" international law.

The evidence that Wheaton enlists to prove the universal principles of European international law can be read as doing something else in the context of the later editions of his book. What I mean is that the so-called evidence has been the outcome of what it is supposed to prove. The post-1836 editions of Wheaton's book found themselves undergoing constant revisions to be able to accommodate the vast number of new treaties and tribunal cases as the Western nations, armed with gunboats and international law, went and conquered more territories and more people. Like foreign language translations, these cumulative editions of international law in the original language represent repeated deictic engagements (one speaking to the other or vice versa) with other cultures and civilizations, thought by no means on equal terms.

Of all the editions of Wheaton's book after the author's death, the 1866 edition edited by Richard Henry Dana was considered the most authoritative and subsequently adopted for Wilson's centennial edition I mentioned at the outset of this chapter. Wheaton's main text and Dana's copius notes were both frequently used as a legal ground for many of the important decisions concerning international disputes in the nineteenth-century. For our purpose, this edition contains an interesting reference to Martin's 1864 Chinese translation. In an appended note, Dana calls special attention to the meaning of Martin's work:

The most remarkable proof of the advance of Western civilization in the East, is the adoption of this work of Mr. Wheaton, by the Chinese government, as a text-book for its officials, in International Law, and its translation into that language, in 1864, under imperial auspices. The translation was made by the Rev. W. A. P. Martin, D. D., an American missionary, assisted by a commission of Chinese scholars appointed by Prince Gong, Minister of Foreign Affairs, at the suggestion of Mr. Burlingame, the United States Minister, to whom the translation is dedicated. Already this work has been quoted and relied upon by the Chinese Government, in its diplomatic correspondence with ministers of Western Powers resident at Peking."

Dana's footnote captures a uniquely circular situation. Namely, Wheaton's original text calls for translation because it possesses an inherent universal value but it takes the existence of foreign translations to substantiate its universal claim. To aspire to the condition of the universal, the text demands universal recognition and demands being translated.

I would like to close my chapter with Li Hongzhang's comment on the negativity of the universal in international law. Li was a prominent Qing official who signed the unequal treaties and handled numerous crises during the Taiping Rebellion, the Sino-Japanese War, and the Boxer Uprising. A controversial figure of his own time and today, Li's official career spanned most of the tumultuous years of Sino-Western relations. In 1901, at the age of seventy, Martin was preparing a new text for publication whereby he approached Li Hongzhang to write a preface for his translation of W. E. Hall's Treatise on International Law. Li complied and wrote the following:

Dr. W. A. P. Martin has been in China for fifty years. He has successively filled the Chair of President in the Tung Wên College and in the Imperial University. Last summer he was exposed to the dangers of the [Boxer] siege; but on escaping with his life, he at once resumed and completed the task of translating this book. In his preface, he states the causes of the siege but without a trace of resentment. In a note to the first chapter he speaks of the war with France; and adds that China's protection of French residents contrasted favorably with the way in which the French had treated the Germans. Proof that China had previously (to 1900) observed International Law in the spirit of peace. If this book could be hung up at our city gates and obeyed by nations beyond the seas there would be an end of strife, and all the world would be at peace; a state of things which I agree with Dr. Martin in hoping for. (my emphasis)

Li's tongue-in-cheek endorsement of Martin's labor articulates the negative condition of international law in theory and practice. Perhaps, the desire for an alternative universal could only assert itself through the negativity of this situation: Can international law rise above its brute realism and submit to the higher ideal of peace, not war?