Please join us in welcoming wonderful Austenesque author Lona Manning to the blog. Lona discovered a fascinating bit of Old Bailey courtroom drama and requested sharing the case with our fabulous Austen Authors readers. Thanks so much, Lona!
This is Lona’s fourth time as a guest, the links to her previous three blogs listed below.
Lona’s bio, publications, and relevant links are at the end of this post. Take it away, Lona!
“You Are Quite Sure That Is the Way of Taking an Oath in China?” by Lona Manning
Every courtroom drama includes the part where the witness solemnly swears with their hand on the Bible to tell the truth, the whole truth, and nothing but the truth. The custom of oath-taking before giving testimony in court is an integral part of the Western legal tradition.
However, not everyone who testified at the Old Bailey during the Regency period was English, or could give their oath on the Bible. Scholar Yu Po-Ching estimates that there were about 100 Chinese seamen living in London in the first decade of the 19th century. They passed the winter in London and returned to Canton (Guangzhou) in the spring. The cold London weather, as Yu observes, must have been a shock to natives of Southern China, to say nothing of the culture shock. In general, sailors who arrived at busy ports after long sea voyages were prone to resorting to bawdy-houses and gambling dens, and a sailor known to history as Erpune was no exception. Unfortunately, he was fleeced of all his money.
The East India Company paid Chinese sailors in Spanish dollars, which explains why Erpune told the police he was robbed of “nineteen dollars,” not pounds. Erpune was left destitute in a foreign country where he couldn’t speak the language.
The Shadwell police tracked down the girl who robbed him, and Erpune filed charges against her and the owner of the bawdy house. The evidence against the thieves looked convincing. But the prosecuting lawyer, John Gurney, had a problem. How could he convince an Old Bailey jury to believe the testimony of a Chinese sailor?
As scholar Karen A. MacFarlane explains, “Englishmen and women remained suspicious of non-English witnesses, especially if they were non-Christian.” Sometimes defendants or their lawyers even asked the jury not to take the word of a foreigner or a heathen or a Jew over their own.
Fortunately, Erpune had a resourceful interpreter, John Anthony. Anthony, (whose real name is lost to history) was also Chinese. Anthony had lived mostly in England since he was a child and he had an English wife. He had a contract with the East India Company to run a boarding house for the Chinese sailors. Anthony accompanied Erpune to the trial at the Old Bailey in December 1804.
The first question put to Anthony was, “You have been educated in the Christian religion, and are a Christian?” This was intended to bring home to the jury that, as a Christian, Mr. Anthony believed that he would burn in hell if he lied in court and therefore he would translate Erpune’s testimony accurately.
Anthony answered that he had “been christened in the Church of England.” But while Anthony could swear on the Bible, this would not do for Erpune, who was a heathen.
What happened next was obviously prearranged between Erpune, Anthony, and the court. Judge Graham asked Anthony some careful questions, or, as The Times put it, “he was exceedingly minute in his interrogatories on this point”:
“What do you know, of your own knowledge, of an oath in China – did you ever see an oath administered in a Court of Justice there?” the judge asked.
“Yes,” Anthony answered.
“You have been at China since you were a man?” the judge persisted. “You are well acquainted then with the mode of taking an oath in the Courts of Justice there?”
“To whom do they make an appeal?”
“To the God they worship in that country they break a saucer, and then they are told, your body will be cracked as that saucer is cracked, if you do not tell the truth.”
“You are quite sure that is the way of taking an oath in China?” the judge asked again.
Yes, Anthony assured him. The Times reported, “Erpune then took the saucer, which Anthony gave him, in his right hand, struck it thrice against the hand-rail of the evidence-box, and broke it in pieces.”
As Judge Graham explained to the jurors, “it was quite sufficient to the laws of this country, that a witness gave his testimony under the same solemnities as usual in his country, and for the truth of which he felt himself answerable to the Supreme Being, whom he worships.” What mattered is that the witness believed in a Supreme Being who he believed could punish him for lying.
Fortunately for Erpune, the British legal system was willing to take a multicultural approach to oath-taking.
In the decades that followed, the British Empire spread to Hong Kong and elsewhere in the Far East, and as the Empire grew, so did these adaptations of British court procedure for a multicultural situation. However, when British officials and scholars acquired more knowledge of China and the Chinese, they found no evidence that they routinely smashed plates in their own courtrooms. Sixty years after the Erpune case, Thomas Chisholm Anstey, attorney-general of Hong Kong, wrote: “Our whole system of heathen judicial oaths is founded upon the assumption that judicial oaths are in ordinary use among the heathen in their own countries and courts. It is an entire mistake. Amongst the four hundred millions of the race of Han, who form what we call the people of China, judicial oaths – in our sense of the term… are utterly unknown…”
Because oath-taking was central to the British legal system, the British assumed that it was the same for everybody’s legal system. Since the British wanted oath-taking rituals, the Chinese obliged them. Chinese people living in British colonial territories in the 19th century gave their oaths by blowing out matches, burning yellow paper, smashing plates, and even cutting the heads off chickens, to satisfy British requirements for a solemn oath-taking ritual.
Historian Paul R. Katz says “it is not at all clear why (these rituals) gained currency in Western courts.” He speculates that it was pragmatism on the part of the Chinese, who “managed to convince Westerners that these rites represented authentic Chinese religious traditions.”
Sometimes the ritual wasn’t so solemn. As J. W. Norton-Kyshe wrote in 1898, when the special red or yellow paper “was given to the Chinese witness… and he was told to burn it with a lighted candle… [he] invariably laughed as he did it, for the Chinese have a strong sense of the ludicrous…”
Norton-Kyshe, a Hong Kong barrister and legal scholar, pointed to the Erpune case as the earliest known example of saucer-smashing in a British court, so John Anthony’s testimony may well have been the reason why the ritual was taken up in courtrooms all over the Commonwealth.
At any rate, back at the Old Bailey in 1804, Erpune was sworn, the trial proceeded, the jury believed his testimony and the testimony of his witnesses, and the thieves were found guilty.
John Anthony prospered in England and was granted British citizenship by an act of Parliament, the first Chinese person to become officially British. Anthony appeared at the Old Bailey in prior cases, both as an interpreter and as a victim of two men “burglariously stealing” some clothes. In that case in 1800, a Chinese man named Awing was sworn and there was no mention made of a special swearing-in procedure; it could be that Awing declared himself to be a Christian and no special accommodation was made, or that the court reporter made no note of it. Awing was an employee of Mr. Anthony and helped manage the boarding house, so perhaps he was a regular resident and not a transient sailor. A pawnbroker who received the stolen goods, Solomon Jacobs, was also sworn without any special notes made in the transcript, although Mr. Jacobs’ name suggests that he was Jewish and his swearing in as well would have been according to a different procedure. The same year, Mr. Anthony translated for a Chinese man named Peter Francis, and no special oath was mentioned in the transcript. Just like Erpune, he’d been robbed of his money which he kept tied up in a handkerchief. One of the three accused girls testified that Francis had gone to a fortune-teller to find out who stole his money and “then he came to me the next morning and said the fortune teller told him it was me.” The girls were found not guilty, and it might have been because of the claim that Francis had gone to a fortune teller. However, it’s hard to tell with the scanty trial transcript.
The Chinese burn a special paper, known as Joss paper, as part of their mourning rituals, but this does not have to do with oath-taking.
LONA MANNING is the author of the Mansfield Trilogy, a variation on Mansfield Park. Her upcoming publication is titled Shelley and the Unknown Lady and will be released on Kindle on October 5. The novella is a revised and expanded excerpt from her Mansfield Trilogy. Shelley and the Unknown Lady is a carefully researched imagining of a mystery in the life of the romantic poet Percy Bysshe Shelley.
Lona lives in the Okanagan Valley in British Columbia, Canada. For more information about Lona, visit her website and other social media platforms.