Page 458 - Merchants and Mandarins China Trade Era

444.

impracticable or highly defective," and refused to accept

them. Consequently, the two envoys, having agreed on the basic

outline of rights for American residents, left the details to
89
Peter Parker and Huang En-t'ung to negotiate.

Next Cushing and Ch'i-ying discussed the one remaining

issue of Cushing's treaty abstract--legal jurisdiction. In pre­

paring for negotiations with the Chinese, Cushing had devoted

much thought to this question. His background as a lawyer pre­

cluded an arbitrary stand on his part. But he did believe the

Chinese system of law and justice should not govern Westerners,

whose own legal system was more sophisticated and "civilized" in

Cushing's opinion. The American envoy built his beliefs on the

contemporary assumption that Western civilization, grounded in

the tenets of Christianity, towered above all other societies.

International law, on which Western states based their relations,
likewise emanated from Christianity. Since the Chinese had an

entirely different form of society, the Celestial Empire could

not fall under the aegis of international law. Western states,

therefore, had to deal with China on a different basis. Cushing

argued that the concept of extraterritoriality should replace

international law in reference to the residence of Westerners in

China. He pointed to the precedent of relations between

European and Mohammedan (Arabian) states. On the journey to

China in 1843, Cushing had observed that Western residents in

these states lived under the jurisdiction of their own govern-

89
r-wu-shih-mo: Tao-kuang, LXXII, 3-18, and Swisher,
Management of American Barbarians, pp. 161-62. Diplomatic Des-
patches: China, C. Cushing, Jul. 8, 1844.