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Chapter 12

This webpage reproduces a chapter of
The Old China Trade

by
Foster Rhea Dulles


published by
The Riverside Press
Cambridge, Massachusetts
1930

The text is in the public domain.

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and I believe it to be free of errors.
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This site is not affiliated with the US Naval Academy.

 p193  Chapter XIII
The Treaty of Wanghia

The voyage of the American mission to China was made under rather different circumstances from those which attended the voyage of the Empress of China. Samuel Shaw sailed to a part of the world strange and unknown to Americans; Caleb Cushing, to seas and ports which the countless voyages of his countrymen had made almost as familiar as their own coastline. And whereas in 1784 the young republic was making a first experiment in 'the adventurous pursuit of commerce,' in 1843 it was seeking a trade agreement with China as a nation which had become one of the world's commercial powers.

This contrast is still further emphasized in the fact that Cushing sailed on a steam frigate, but in this he was really anticipating the day when steam was to conquer sails. In 1843 the clipper ship was still to come into its glory and it was to be many years before steam vessels could really compete with sailing vessels. The former were regarded with much skepticism and it is probable that the members of the American mission to China fully shared this feeling. For the frigate Missouri had proceeded no farther on its eastward course than Gibraltar when it met disaster.

The members of the mission and the ship's officers were dining on shore when they were suddenly roused by cries in the streets of '¡El vapor del frigate Americano es del fuego!' Rushing to the harbor, they found that the Missouri had caught on fire while taking on coal and that the flames were already as high as her maintop. Putting out to the doomed vessel, Cushing managed to save his papers and his letters to the Chinese Emperor, but that special uniform designed  p194 to dazzle the mandarins of Canton was lost. The American envoy would not be able to appear at the council table in the full regalia of a major-general, 'with some slight additions in the way of embroideries.'

With the loss of the steam frigate, Cushing now decided to take the overland route to the East and get passage to India on a British steamer from Suez, leaving his mission to follow him on the Brandywine by way of the Cape of Good Hope. The two parties were then to join at Bombay. This plan worked out successfully, and after some months, during which Cushing sent home thirty voluminous reports on conditions in the various countries through which he passed, the reunited mission sailed from Bombay to China. The Brandywine reached Macao on February 24, 1844, and there Cushing set up 'his miniature court in the house of a former Portuguese Governor, creating a profound sensation by the novelty and magnitude of his Mission.'

Conditions in China were now calm and peaceful. The trade of both England and the United States was proceeding satisfactorily and the Chinese had informed the American merchants that they were entitled to share all the privileges which had been granted the British and that the new customs duties were to be applied to all foreigners. It was something of a question just what Cushing could hope to accomplish. The Chinese did not welcome the idea of another foreign mission and saw no need of an American treaty. The English were openly scornful and considered Cushing's embassy an idle and ridiculous ostentation. Many of the Americans even thought it a futile gesture. Their attitude was still based upon the cautious principle of letting well enough alone and doing nothing to offend the Chinese.

'When at Macao,' wrote one Canton merchant in a letter  p195 appearing in 'Niles' Register,' 'I had thorough of seeing much of His Excellency (Cushing) who had spurs on his heels, and mustachios and imperial, very flourishing! Although I like the man, I most heartily wish he were anywhere else but here, and am, as well as every other American merchant here, in great fear. As Americans we are now on the very best terms possible with the Chinese; and as the only connection we want with China is a commercial one, I cannot see what Mr. Cushing expects to do. He cannot make us better off — and a very few of his important airs will make us hated by the Chinese, and then we will lose all the advantages we now have over the English.'

Circumstances may have been inauspicious and the Chinese officials inhospitable, although forewarned by the American Consul that the mission was coming, but nevertheless Cushing was not dismayed. He knew just what he wanted to do and had planned out a careful campaign to negotiate a treaty which would guarantee for the Americans as a matter of right the privilege of trading on terms similar to those enjoyed by the British. His first act was to send to Ching, acting Governor of Canton — for the Imperial Commissioner Kiying had found it good policy to be away from Canton when the American mission arrived — a diplomatic letter inquiring for the Emperor's health and casually stating that in pursuance of his instructions he was on his way to Peking to present his credentials at the imperial court.

He did not have long to wait for a reply. The Chinese official wrote urbanely of the 'respectful obedience, and politeness exceedingly to be praised,' of the American Envoy, but he became quite agitated over the possibility of the mission proceeding to Peking. This was out of the question. 'The August Emperor, in his compassion to  p196 people from afar,' Ching dutifully informed Cushing, 'cannot bear that the Plenipotentiary, having passed the ocean, should again have the toil and trouble of traveling by land and water.'

His instructions, the Chinese official continued, were to wait the arrival of the American Envoy 'and then soothe him and stop him.' There was absolutely no need for him to seek a treaty, since one had been signed with Great Britain and 'already has your nation been bedewed with its advantages.' That was all there was to it, and Ching haughtily concluded by informing Cushing that it was 'useless with lofty, polished, and empty words to alter these unlimited advantages.'

The American knew that there was little chance of his being able to persuade the Chinese to let him proceed north, since even the English had not sent an envoy to Peking upon the signing of the Treaty of Nanking, but his instructions were to attempt to do so if it proved to be practicable. Furthermore, he clearly saw that the threat of his going despite Chinese objections might prove a useful lever to persuade the Chinese of the necessity of concluding a treaty. So he stuck to his guns. Ching was told that the question of a treaty was a matter which he could take up only with an imperial commissioner, and that in the mean time his instructions from his Government were to seek an audience with the Emperor.

The tactics of the Chinese official in this emergency were delay and procrastination. Ching now promised to memorialize the Emperor as to the proposed visit to Peking and urged Cushing to wait his answer. When the American Envoy learned that such a reply would take at least three months, he refused. He hinted quite openly that his reception in China was hardly proving to be as friendly and  p197 courteous as he had a right to expect, and ceremoniously took leave of the Chinese official.

Ching thereupon hurriedly dispatched a more conciliatory note. It would take only fifty, not ninety, days, to get a reply from Peking. But Cushing was still impatient and even suggested that refusal to receive a foreign embassy might be interpreted as inviting war with other Western nations besides England. Ching unbent still further. He now declared in a letter, dwelling upon the friendliness between the United States and China, that Kiying would soon be in Canton and that he would probably be empowered by the Emperor to discuss the question of a treaty. He begged Cushing to stay until his arrival. To this the American partially assented in a final note, which again expressed his regret at Chinese inhospitality and declared that he was risking the disapprobation of his Government by submitting to any further delay.

This exchange of letters had taken almost three months, and it was not until May 8 that Cushing received a copy of an imperial edict which appointed Kiying an imperial commissioner for the negotiation of a treaty with the United States and enjoined the American mission to wait quietly at Macao 'and by no means to esteem it a light matter to agitate disorder, which is an important concern.' The long duel between the Chinese official and the American Envoy had had no apparent result other than keeping the mission in the south and forestalling the visit to Peking.

But had the victory really gone to the suave Chinese so jealously guarding his country's frontiers? In his reports to the Secretary of State, Cushing upheld the course he had followed in these preliminary negotiations in the face of severe criticism from the Americans at Canton. In the first place, he was bound by his instructions to sound out the  p198 practicality of going to Peking; in the second, his insistence upon such a course of action had enabled him to force the Chinese to appreciate the necessity of negotiating a treaty. If he had finally relinquished his right to go north, it was a sacrifice more than compensated through the attainment of the primary objective of his mission.

Furthermore, as he reported to Washington, the dilatory and futile correspondence with Ching had really cleared the way for his subsequent negotiations. It had enabled him 'to say all the harsh things which needed to be said, and to speak to the Chinese Government with extreme plainness and frankness, in a degree which would have been inconvenient, if not inadmissible, in immediate correspondence with Kiying.' When the specially appointed Commissioner took up the correspondence where Ching had left it and wrote Cushing that 'in a few days we shall take each other by the hand, and converse, and rejoice together with indescribable delight,' the American Envoy could report with good reason that the tone of this communication was the 'best possible augury for the success of the mission.'

In the midst of these first negotiations and again on the very eve of those over the proposed treaty itself, two incidents occurred which might have gravely prejudiced the incipient relations between China and the United States. The first of these was concerned with nothing more important than the weather-vane on the flagstaff in front of the American Consulate at Canton. This flagstaff had been brought out by the Brandywine, and its vane, in the shape of a large arrow, had been proudly set in place soon after Cushing's arrival. To the Cantonese, deeply superstitious and bitterly anti-foreign, there was something sinister about the whole affair. The city was placarded with signs declaring that the swinging arrow shot in all directions,  p199 'thereby causing serious impediment to the felicity and good fortunes of the land.' To its mysterious influence was ascribed the serious drought which Canton was then experiencing. The resulting excitement caused a riot near the American Consulate when a Chinese mob attempted to tear the flagstaff down, and the peaceful course of Sino-American relations was saved only by the removal of the charmed arrow.

The second incident was more important and its results more significant. In another of those recurrent riots which had been the expression of the increased hostility of the Cantonese toward the foreigners ever since the conclusion of the war with the British, a Chinese named Hsü A‑man had been killed by an American. Governor Ching promptly demanded his surrender to the Chinese authorities.

Cushing then put into practice the most important principle which he was to embody in his treaty, that of extraterritoriality. He instructed the Consul that Americans were never to be given up to Chinese justice, and that henceforth they were to be subject to American and not to Chinese laws. Consul Forbes thereupon appointed a committee of six Americans to try the man charged with Hsü A‑man's death. It considered the evidence and unanimously determined that the killing of the Chinese had been under the circumstances a justifiable act of self-defense. This decision was reported to the Chinese, and after some correspondence with Kiying, who had by then reached Canton, it was accepted as equitable and just.

In the mean time the treaty negotiations had commenced. Kiying arrived at the little Chinese village of Wanghia, just outside Macao, on June 16.1 After an exchange of  p200 courtesies, Cushing presented the Chinese Commissioner with a draft of the treaty he had in mind.

'In drawing up these minutes,' the American Envoy declared in an accompanying letter, 'I have not looked to the side of the United States alone. I felt that it would not be honorable, in dealing with Your Excellency, to take a partial view of the subject. I have inserted a multitude of provisions in the interest and for the benefit of China.'

This statement was not unwarranted, and apparently Kiying found it justified. A few modifications to the Cushing draft were mutually agreed upon, and on July 3 the treaty was signed. After the long preliminaries over whether or not there was to be a treaty, the immediate question as to its form had been settled with dispatch and address in two weeks.

On the night the treaty was signed, a banquet was held commemorative of the important event. It was a typical Chinese feast, with such delicacies as birds'-nest soup, sea‑snails, seaweed, and much native wine. Cushing admitted a feeling of 'slight languor' the next day. Perhaps Kiying was not quite himself. For on receiving a copy of the famous letter for the Emperor from President Tyler, he told Cushing that he was so affected by its superlative beauty that he 'could not restrain his spirit from delight and his heart from dilating with joy.'

The relations between the two negotiators had been so friendly that the foreign community at Canton was startled some months later by the publication of what purported to be Kiying's report to the Emperor, in which the Chinese official spoke of America's 'foolish demands' and the envoy's 'stupid ignorance.' The authenticity of this document was subsequently denied by Kiying, and Cushing was later to refer to the Chinese Commissioner as 'a Manchu of high  p201 qualities of head and heart, and of perfect accomplishment.' Certainly his friendliness and understanding of the foreigners had made the course of Cushing's negotiations far smoother than he had had any right to expect. It was perhaps inevitable that Kiying should later suffer the fate of every Chinese official who had dealings with the foreigner at this period.2 He was degraded for 'unpatriotic and pusillanimous conduct' by an edict which stated that 'at Canton he seemed only anxious to make our people serve the interest of foreigners.' Eventually he received from the Emperor a symbolic silken scarf, and duly committed suicide.

The Treaty of Wanghia not only secured for the United States all those rights and privileges which Great Britain had won in the Treaty of Nanking, with the single exception that there was no counterpart to the cession of Hongkong. It also established certain new principles for the governance of China's relations with Western world. In subsequent years, when treaties were signed in the Far East, it was not the Treaty of Nanking which was taken as a model; it was the treaty so shrewdly negotiated by a Newburyport lawyer totally without experience in the wiles of Eastern diplomacy. Needless to say, Cushing would have faced a far different situation if the British war had not broken down the barriers of China's resistance to any political relationship with the West, or if he had not had the Treaty of Nanking on which to base his demands for American trading privileges. Nevertheless, he did not merely follow supinely in England's footsteps.

 p202  The two treaties differed in many important particulars. The American instrument definitely fixed the subject of contraband goods, specifically declared that the United States would offer no protection to smugglers, made all customs duties payable in cash, and left to the Chinese authorities the responsibility of protecting American citizens in China.

Article XXXIII declared:

Citizens of the United States who shall attempt to trade clandestinely with such of the ports of China as are not open to foreign commerce, or who shall trade in opium or any other contraband articles of merchandise, shall be subject to be dealt with by the Chinese Government without being entitled to any countenance or protection from that of the United States; and the United States will take measures to prevent their flag from being abused by the subjects of other nations as a cover for the violation of the laws of the Empire.

The effect of these measures was to throw upon China the entire responsibility of enforcing its own customs regulations, while the British treaty had left the collection of customs duties in the hands of British consuls and had omitted all reference to the critical question of opium. In his discussion of the British and American treaties, Tyler Dennett has stated that in this divergence of policy, the English treaties, aside from the opium question, were more beneficent to China than the Treaty of Wanghia, although the latter may have been more benevolent. He has also said that in regard to smuggling the treaties had in practice the same effect. Both these statements are justified by the way things worked out in the course of the next few years, but at the time the treaties were signed, their full effect could not have been foreseen. The fundamental difference in 1844 on these points was that Great Britain was following  p203 her traditional policy in the East of providing for British protection of all British interests, while the United States was treating China more as an equal and asserting a Chinese obligation to handle all relations with foreigners and to guard their interests.

The American treaty also had several provisions which were in effect an extension of the privileges which the English had secured and Great Britain was to take advantage of these as quickly as the United States had taken advantage of the provisions of the British treaty. They included the right to enjoy all proper accommodation in hiring sites from the inhabitants, not only for the construction of houses and places of business, but also for hospitals, churches, and cemeteries; the privilege of employing scholars to teach Chinese and of purchasing all manner of books; the right of merchant ships to remain in port forty-eight hours without paying duties, or, if they had paid duties, to reëxport their cargo without further charges and visit other ports; and, finally, a stipulation for the revision of the treaty after twelve years.

The most important articles in the Treaty of Wanghia, however, are still to be mentioned. It was Caleb Cushing who definitely established the principle of extraterritoriality in the relations between China and the West and asserted in specific terms the independence of American citizens from China's legal jurisdiction.

The British had for long recognized the need of extraterritoriality because of the peculiar nature of Chinese criminal law, and there is no question but that China's concession of this privilege was one of the fruits of the Anglo-Chinese War. But in Hongkong the British had secured a means to exercise territorial jurisdiction of their own which made it unnecessary for them to insist upon a concise acknowledgment  p204 of their rights in either of their treaties. The Americans, however, had no equivalent for Hongkong, and Cushing felt it absolutely necessary to secure from the Chinese a precise definition of the status of American citizens in relation to Chinese law which would give permanence to the principle he had already practiced in his refusal to hand over to Chinese justice the American charged with the death of Hsü A‑man.

This he did in the following two articles of his treaty, which were subsequently adopted in substance by all other Western nations having treaty relations with China:

Article XXI. Subjects of China who may be guilty of any criminal act towards the citizens of the United States shall be arrested and punished by the Chinese authorities according to the laws of China; and citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the Consul, or other public functionary of the United States, thereto authorized, according to the laws of the United States. . . .

Article XXV. All questions in regard to rights, whether of property or person, arising between citizens of the United States in China, shall be subject to the jurisdiction of, and regulated by the authorities of their own Government. And all controversies occurring in China between the citizens of the United States and the subjects of any other Government shall be regulated by the treaties existing between the United States and such Governments, respectively, without interference on the part of China.

Cushing made his attainment of absolute and unqualified extraterritoriality the subject of a long and ably argued dispatch to Secretary of State John C. Calhoun. The precedent on which he sought this right was found in the special privileges exercised by foreign consuls in such non‑Christian countries as the Barbary States and Turkey. He argued that China, for all its civilization, was in the same category  p205 as these States, since it was not within the Christian family of nations and neither understood nor accepted those principles of international law which governed the relations of the countries of the West.

He recognized that the concession of extraterritoriality might be unwise for the states of Asia and Africa, but declared that it would be 'time enough for them to claim jurisdiction over Christian foreigners, when these last can visit Mecca, Damascus, Fez, or Peking, as safely as they do Rome and Paris, and when submission to the local jurisdiction becomes reciprocal.' It was not his idea to attack Chinese sovereignty, but to provide a means to avoid the disputes which would inevitably arise, as in the Terranova case, if the Americans were subject to Chinese jurisdiction, while the English could avoid it by recourse to their own courts in Hongkong.

In 1844, extraterritoriality was virtually necessary for the friendly development of foreign trade in China, and the Chinese authorities seem to have recognized this as clearly as the foreigners once their original haughty disregard of all foreign rights had become modified. It was the only solution of the difficult problem offered by the divergent ideas of the East and the West in all matters of law and justice. If only at the time of its incorporation into the foreign treaties some provision had been inserted declaring that extraterritoriality was a temporary expedient to meet an existing emergency, and that the privileges it conferred would be surrendered when Chinese law was brought more in harmony with Western law, much subsequent friction and Chinese hostility might have been avoided.

In all events the Treaty of Wanghia represented a fair and equitable adjustment of the problems inherent in Sino-American relations of that period. In relation to the  p206 treaties already signed by Great Britain, it was as much to the advantage of the Chinese in protecting them from any undue British influence, as it was to the advantage of the United States in preventing its trade rivals from securing a most-favored-nation position in the Far East.

Its prompt ratification by the Emperor, who declared that its terms were 'all perspicuous, and entirely and perfectly judicious, and forever worthy of adherence,' and its unanimous approval by the United States Senate offer striking evidence of the light in which it was officially viewed in China and America. As for the opinion of the British on what Cushing had accomplished, R. Montgomery Martin, an authoritative writer on things Chinese, declared that 'the United States Government in their treaty with China, and in vigilant protection of their subjects at Canton, have evinced far better diplomacy, and more attention to substantial interests, than we have done, although it has not cost them as many groats as we have spent guineas, while their position in China is really more advantageous than that of England, after our own sacrifices of blood and treasure.'

If the treaties first negotiated by England, then by the United States, and a little later by France, opened up China to the Western world and first asserted the principle of international equality in the relations between China and the foreign powers, they also meant one other thing. They spelled the end of an era. The period of those hazardous voyages which had opened up the China trade for the adventurous merchants and seamen of the United States had been drawing to a close with the development of a more substantial and regular commerce. The treaties marked the culmination of this gradual change.

For sixty years the American trade had prospered without  p207 benefit of diplomacy; now it was to be aided and protected by a treaty. The future held out tremendous possibilities. But among those remaining pioneers of the early days of the China trade there were some few who realized with regret that for all the benefits the treaties conferred they were 'the "knell, the shroud, the mattock, and the grave" of old Canton.'


The Author's Notes:

1 It is often asserted that Cushing negotiated his treaty without ever setting foot on Chinese soil. This is not true. Wanghia was outside of Portuguese jurisdiction and within Chinese territory.

[decorative delimiter]

2 The unreality with which the Chinese still continued to regard foreign relations is demonstrated by the Chinese historian of the war with England, who, in reference to the Cushing mission, wrote of the arrival of some ships from America with envoys begging to pay tribute 'and to be allowed to express their devotion at an interview.'


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