II. Legal History
There is a largely forgotten story to be told of U.S. legal imperialism in China, despite China’s location far outside of America’s territorial borders. The story’s protagonist is a rather arcane sounding legal doctrine, extraterritorial jurisdiction. Exclusive territorial jurisdiction is one of the defining features of the sovereignty of the modern nation-state. With limited exceptions, it is where a person is that determines what law applies to him or her. However, when a state asserts extraterritorial jurisdiction, it claims the right to apply its laws beyond the borders of its territory.
To anticipate the story, the extraordinary treaty that laid the foundation for American extraterritoriality was negotiated by Caleb Cushing, the first American minister to China as well as a Massachusetts congressman, a lawyer, and a future attorney general of the United States. Cushing was charged by President John Tyler with the pre-textual mission of going to Peking to inquire after the emperor’s health and to carry out the president’s wishes for his longevity. Backed by his own little armada as well as the presence of the U.S. naval forces in the Pacific, Cushing persuaded the Qing Empire to enter into a Treaty of Peace, Amity, and Commerce with the United States. The treaty was signed on July 3, 1844, in the village of Wanghia in Macao. Under its terms, China was obligated to allow Americans to trade freely in Canton as well as in four other previously closed ports. Moreover, Americans obtained the right of extraterritorial jurisdiction in China. From 1844 until 1943, U.S. citizens in China were formally subject only to the laws of the United States. Stated differently, when Americans entered China, American law traveled with them, effectively attaching to their very bodies.
How did the relatively recently emancipated world’s leading anti-colonial power reconcile its extraterritorial jurisdiction in China with Chief Justice Marshall’s ringing statement in 1812, “The jurisdiction of a nation within its territory is necessarily exclusive and absolute…being alike the attribute of every sovereign and incapable of conferring extraterritorial power”? It turns out that the forgotten century of American extraterritorial jurisdiction in China is a story not only about China and the United States but also of international law. This essay is thus also a story about law’s operation transnationally, and a case study of how law dynamically both constitutes and deconstitutes sovereigns at both national and international levels.
1. Which one of the following is extraterritorial jurisdiction according to the author?
2.Which description about Caleb Cushing is NOT true according to the second paragraph?
3.What is NOT included in the 1844 Sino-America bilateral treaty?
4.The contradiction between the American extraterritoriality and Justice Marshall’s statement in 1812 can be reconciled when ___.
问题1选项
A.Country A imposes fine to its own citizen who violates traffic rules in Country A
B.Country A imposes fine to a citizen of Country B who violates traffic rules in Country A
C.Country A charges crime responsibility to a citizen of Country A who commits a crime in Country B
D.Country B charges crime responsibility to a citizen of Country A who commits a crime in Country B
问题2选项
A.He was a Massachusetts congressman.
B.He was the first American envoy to China.
C.He was a lawyer.
D.He was the attorney general of the United States before visited China.
问题3选项
A.When Americans entered China, they all carried US laws.
B.Americans were allowed to trade freely in Canton.
C.Americans were allowed to trade freely in four other previously closed ports.
D.US citizens in China were not subject to Chinese laws.
问题4选项
A.the century of American extraterritorial jurisdiction is forgotten
B.one looks at the issue from international level
C.every sovereign is incapable of conferring extraterritorial power
D.law dynamically constitutes and deconstitutes sovereigns
1.推理判断题。根据题干定位到第二段末尾Moreover, Americans obtained the right of extraterritorial jurisdiction in China. From 1844 until 1943, U.S. citizens in China were formally subject only to the laws of the United States. Stated differently, when Americans entered China, American law traveled with them, effectively attaching to their very bodies.（此外，美国人在中国获得了治外法权。从1844年到1943年，在中国的美国公民在形式上只受美国法律的约束。换言之，当美国人进入中国，美国法律与他们同行，有效地依附于他们的身体）可知在中国的美国人只需要遵守美国的法律，可选C选项“A国对在B国犯罪的A国公民追究犯罪责任”；A选项“A国对违反A国交通规则的本国公民处以罚款”，B选项“A国对B国违反A国交通规则的公民处以罚款”以及D选项“B国对在B国犯罪的A国公民追究犯罪责任”都不符合治外法权的定义。因此C选项正确。
2.事实细节题。根据题干关键词 Caleb Cushing定位到第二段To anticipate the story, the extraordinary treaty that laid the foundation for American extraterritoriality was negotiated by Caleb Cushing, the first American minister to China as well as a Massachusetts congressman, a lawyer, and a future attorney general of the United States.（为了预测这个故事，美国首任驻华大使卡莱布•库欣谈判达成了为美国治外法权奠定基础的特别条约。卡莱布•库欣曾是马萨诸塞州的国会议员、律师，后来还担任过美国司法部长）可知D选项“他在访问中国之前曾担任美国司法部长”和原文不符，原文并没有说他是在访问中国之前担任美国司法部长；A选项“他是马萨诸塞州的国会议员”，B选项“他是第一位美国驻华使节”以及C选项“他是律师”都符合原文。因此D选项符合题意。
3.事实细节题。根据题干定位到第二段Under its terms, China was obligated to allow Americans to trade freely in Canton as well as in four other previously closed ports. Moreover, Americans obtained the right of extraterritorial jurisdiction in China. From 1844 until 1943, U.S. citizens in China were formally subject only to the laws of the United States. Stated differently, when Americans entered China, American law traveled with them, effectively attaching to their very bodies.（根据其条款，中国有义务允许美国人在广州以及其他四个以前关闭的港口自由贸易。此外，美国人在中国获得了治外法权。从1844年到1943年，美国在华公民正式只受美国法律的约束。换言之，当美国人进入中国，美国法律与他们同行，有效地依附于他们的身体）可知B选项“美国人被允许在广东自由贸易”，C选项“美国人被允许在其他四个以前关闭的港口自由贸易”以及D选项“在中国的美国公民不受中国法律的约束”在原文提及；A选项“当美国人进入中国时，他们都带着美国的法律”并不是中美双边条约中的内容，只是原文的比喻。因此A选项符合题意。
4.推理判断题。根据原文最后一段末尾It turns out that the forgotten century of American extraterritorial jurisdiction in China is a story not only about China and the United States but also of international law. This essay is thus also a story about law’s operation transnationally, and a case study of how law dynamically both constitutes and deconstitutes sovereigns at both national and international levels.（事实证明，被遗忘的美国在华治外法权世纪，不仅是一个关于中美两国的故事，也是一个关于国际法的故事。因此，本文也是一个关于法律跨国运作的故事，也是一个关于法律如何在国家和国际层面上动态地构成和解构主权的案例研究）可知美国的治外法权与马歇尔1812年的声明之间的矛盾可以在从国际层面看问题时得到调和，选B选项“从国际层面看问题”；A选项“美国治外法权的世纪被遗忘了”，C选项“每一个主权国家都没有能力授予域外权力”，D选项“法律动态地构成和构成主权”并不符合题意。因此B选项符合题意。
