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University of Miami International and Comparative Law Review

Abstract

Over the last centuries, the view on the death penalty in Qing China has been distorted, presenting a picture of abusive brutality and excessive cruelty, and thus was used as the critical pretext to establish immune extraterritorial jurisdictions. Nevertheless, the existing comments are more literary embellishments without empirical evidence, and few comparative and historical perspectives have been utilized to clarify the truth. In this study, we mined annual death sentence numerical data for the period 1744 to 1840 from official archives and literatures, deciphering the capital crimes in detail and ascertaining the longitudinal trend with population statistics. To reassess the profile of capital law and justice, we carefully reviewed the previous literatures and conducted a comparative analysis of key aspects in Qing China and in England and Wales. Using multiple analytical strategies, the study revealed the following in Qing China: (a) about 20% of death sentence cases resulted in execution and 80% in suspended or nominal sentences; (b) on average, 3183.78 cases were death sentences in a country with a population of about 400 million; (c) the death sentence rate steadily decreased from 1.20 to 0.73 per 100,000 population; and (d) the majority of capital crimes concerned homicides and killings in fights, while only about 10% involved robbery. During the same period, England and Wales were bloody codeless countries with death sentence and execution rates that were at least three to nine times higher than in Qing China, and capital crimes mainly involved property crimes. This study’s conclusion, therefore, is that Qing China was very lenient in terms of codification and capital justice in comparison with England and Wales. Flowing with “anti anti-orientalism”, we argue that the erroneous picture should be discarded and appeal for historical China’s contribution to the heritage of global law and justice to be recognized.

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