Canton is Not Boston: The Invention of American Imperial Sovereignty

Abstract

Although the United States began its international legal career in 1776 as an outlaw, a rebel against the European legal order, it soon established itself as a juridical equal among the so-called Family of Nations, consisting of “civilized” European states. Yet it is a remarkable historical fact that when the British launched the Opium War in 1839 to coerce China to participate in free trade (freedom of trade not including the right not to buy opium), most Americans sided with the Chinese, against the British. With confiscated British opium being flushed into the Canton harbor, the events echoed the still not-so-distant Boston Tea Party — two heroic acts of struggle against British imperial interventions in trade, in China and America, respectively. However, after China was indeed successfully opened for “free trade” at the end of the Opium War, in 1844 President Tyler sent the first American minister to China to negotiate a trade treaty that would create a framework for American participation in the that trade as well as the basis of the United States’ political and legal relations with China until 1943. Tyler’s plenipotentiary Caleb Cushing — a New England lawyer as well as future U.S. Attorney General — ended up exceeding his instructions and (with the backing of gunboats), negotiating an extraordinary Treaty of Peace, Trade, and Amity which ultimately placed China in a semi-colonial relationship vis-à-vis the United States. Most notably, the Treaty of Wanghia of 1844 gave Americans the privilege of extraterritoriality: even while on sovereign Chinese territory, American citizens would not be subject to “despotic” Chinese law, until such time that the Chinese had created a “civilized” (i.e., modern liberal) legal regime. This article tells the little-known story of the beginnings of Sino-American legal relations and of the foundation it laid for the emergence of an extraterritorial empire of U.S. law in the Asia Pacific, ultimately ranging from China to Japan, Korea to Siam, Borneo to Tonga, and beyond. Long before the United States came to practice European-style territorial imperialism at the conclusion of the Spanish-American War 1898, the United States became a global leader in the institutionalization of a kind of legal imperialism in the Orient. In addition to analyzing the history of U.S. extraterritorial jurisdiction in Asia, this article outlines the changing global claims to sovereignty among Europe, the United States, and China over the course of the nineteenth century.

Keywords: Extraterritorial jurisdiction, extraterritorial imperialism, legal imperialism, China, United States, international law, 1492, Columbus, Chinese Exclusion Laws, immigration law, Unequal Treaties, Treaty of Wanghia, Caleb Cushing, Opium War, Boston Tea Party