Thirty Years' View (Vol. II of 2)

"The sum proposed is the same that is in the act of 1790, upon which the bill is framed. That act appropriated $40,000: but for what? For one mission? one man? one agent? one by himself, one? No. Not at all. That appropriation of 1790 was for all the missions of the year – all of every kind – public as well as secret: the forty thousand dollars in this bill is for one man. The whole diplomatic appropriation in the time of Washington is now to be given to one man: and it is known pretty well who it is to be. Forty thousand dollars to enable one of our citizens to get to Peking, and to bump his head nineteen times on the ground, to get the privilege of standing up in the presence of his majesty of the celestial empire. And this is our work in the last night of this Congress. It is now midnight: and, like the midnight which preceded the departure of the elder Adams from the government, the whole time is spent in making and filling offices. Providing for favorites, and feeding out of the public crib, is the only work of those whose brief reign is drawing to a close, and who have been already compelled by public sentiment to undo a part of their work. The bankrupt act is repealed by the Congress that made it; the distribution act has shared the same fate; and if they had another session to sit, the mandamus act against the States, the habeas corpus against the States, this Chinese mission, and all the other acts, would be undone. It would be the true realization of the story of the queen who unravelled at night the web that she wove during the day. As it is, enough has been done, and undone, to characterize this Congress – to entitle it to the name of Ulysses' wife – not because (like the virtuous Penelope) it resisted seduction – but because, like her, its own hands unravelled its own work."

Mr. Archer replied that the ignominious prostrations heretofore required of foreign ministers in the Imperial Chinese presence, were all abolished by the treaty with Great Britain, and that the Chinese government had expressed a desire to extend to the United States all the benefits of that treaty, and this mission was to conclude the treaty which she wished to make. Mr. Benton replied, so much the less reason for sending this expensive mission. We now have the benefits of the British treaty, and we have traded for generations with China without a treaty, and without a quarrel, and can continue to do so. She extends to us and to all nations the benefits of the British treaty: the consul at Canton, Dr. Parker, or any respectable merchant there, can have that treaty copied, and sign it for the United States; and deem himself well paid to receive the fortieth part of this appropriation. Mr. Woodbury wished to see a limitation placed upon the amount of the annual compensation, and moved an amendment, that not more than nine thousand dollars, exclusive of outfit, be allowed to any one person for his annual compensation. Mr. Archer concurred in the limitation, and it was adopted. Mr. Benton then returned to one of his original objections – the design of the bill to cheat the Senate out of its constitutional control over the appointment. He said the language of the bill was studiously ambiguous. Whether the person was to be a minister, a chargé, or an agent, was not expressed. He now desired to know whether it was to be understood that the person intended for this mission was to be appointed by the President alone, without asking the advice and consent of the Senate? Mr. Archer replied that he had no information on the subject. Mr. Conrad of Louisiana, said that he would move an amendment that might obviate the difficulty; he would move that no agent be appointed without the consent of the Senate. This amendment was proposed, and adopted – 31 yeas; 9 nays. These amendments were agreed to by the House; and, thus limited and qualified, the bill became a law.

The expected name did not come. The Senate adjourned, and no appointment could be made until the next session. It was not a vacancy happening in the recess which the President could fill by a temporary appointment, to continue to the end of the next session. It was an original office created during the session, and must be filled at the session, or wait until the next one. The President did neither. There were two constitutional ways open to him – and he took neither. There was one unconstitutional way – and he took it. In brief, he made the appointment in the recess; and not only so made it, but sent off the appointee (Mr. Caleb Cushing) also in the recess. Scarcely had the Senate adjourned when it was known that Mr. Cushing was to go upon this mission as soon as the ships could be got ready to convey him: and in the month of May he departed. This was palpably to avoid the action of the Senate, where the nomination of Mr. Cushing would have been certain of rejection. He had already been three times rejected in one day upon a nomination for Secretary of the Treasury – receiving but two votes on the last trial. All the objections which applied to him for the Treasury appointment, were equally in force for the Chinese mission; and others besides. It was an original vacancy, and could not be filled during the recess by a temporary appointment. It was not a vacancy "happening" in the recess of the Senate, and therefore to be temporarily filled without the Senate's previous consent, lest the public interest in the meanwhile should suffer. It was an office created, and the emolument fixed, during the time that Mr. Cushing was a member of Congress: consequently he was constitutionally interdicted from receiving it during the continuance of that term. His term expired on the third of March: he was constitutionally ineligible up to the end of that day: and this upon the words of the constitution. Upon the reasons and motives of the constitution, he was ineligible for ever. The reason was, to prevent corrupt and subservient legislation – to prevent members of Congress from conniving or assisting at the enactment of laws for their own benefit, and to prevent Presidents from rewarding legislative subservience. Tested upon these reasons Mr. Cushing was ineligible after, as well as before, the expiration of his congressional term: and such had been the practice of all the previous Presidents. Even in the most innocent cases, and where no connivance could possibly be supposed of the member, would any previous President appoint a member to a place after his term expired, which he could not receive before it: as shown in Chapter XXX of the first volume of this View. In the case of Mr. Cushing all the reasons, founded in the motives of the constitutional prohibition, existed to forbid his appointment. He had deserted his party to join Mr. Tyler. He worked for him in and out of the House, and even deserted himself to support him – as in the two tariff bills of the current session; for both of which he voted, and then voted against them when vetoed: for which he was taunted by Mr. Granger, of New York.7 There was besides a special provision in the law under which he was appointed to prevent the appointment from being made without the concurrence of the Senate. (The notice of the proceedings in the Senate when the bill which ripened into that law, have shown the terms of that provision, and the reasons of its adoption.) It is no answer to that pregnant amendment to say that the nomination would be sent in at the next session. That session would not come until six months after Mr. Cushing had sailed! not until he had arrived at his post! not until he had placed the entire diameter of the terraqueous globe between himself and the Senate! and a still greater distance between the Treasury and the $40,000 which he had drawn out of it!

Two squadrons of ships-of-war were put in requisition to attend this minister. The Pacific squadron, then on the coast of South America, was directed to proceed to China, to meet him: a squadron was collected at Norfolk to convey him. This squadron consisted of the new steam frigate, Missouri – the frigate Brandywine, the sloop-of-war Saint Louis, and the brig Perry – carrying altogether near two hundred guns; a formidable accompaniment for a peace mission, seeking a commercial treaty. Mr. Cushing had a craving to embark at Washington, under a national salute, and the administration gratified him: the magnificent steam frigate, Missouri, was ordered up to receive him. Threading the narrow and crooked channel of the Potomac River, the noble ship ran on an oyster bank, and fifteen of her crew, with a promising young officer, were drowned in getting her off. The minister had a desire to sail down the Mediterranean, seeing its coasts, and landing in the ancient kingdom of the Pharaohs: the administration deferred to his wishes. The Missouri was ordered to proceed to the Mediterranean, which the ill-fated vessel was destined never to enter; for, arriving at Gibraltar, she took fire and burned up – baptizing the anomalous mission in fire and blood, as well as in enormous expense. The minister proceeded in a British steamer to Egypt, and then by British conveyance to Bombay, where the Norfolk squadron had been ordered to meet him. The Brandywine alone was there, but the minister entered her, and proceeded to the nearest port to Canton, where, reporting his arrival and object, a series of diplomatic contentions immediately commenced between himself and "Ching, of the celestial dynasty, Governor-general of that part of the Central Flowery Kingdom." Mr. Cushing informed this governor that he was on his way to Peking, to deliver a letter from the President of the United States to the Emperor, and to negotiate a treaty of commerce; and, in the mean time, to take the earliest opportunity to inquire after the health of the august Emperor. To this inquiry Ching answered readily that, "At the present moment the great Emperor is in the enjoyment of happy old age and quiet health, and is at peace with all, both far and near: " but with respect to the intended progress to Peking, he demurs, and informs the minister that the imperial permission must first be obtained. "I have examined," he says, "and find that every nation's envoy which has come to the Central Flowery Kingdom with a view of proceeding to Peking, there to be presented to the august Emperor, has ever been required to wait outside of the nearest port on the frontier till the chief magistrate of the province clearly memorialize the Emperor, and request the imperial will, pointing out whether the interview may be permitted." With respect to the treaty of friendship and commerce, the governor declares there is no necessity for it – that China and America have traded together two hundred years in peace and friendship without a treaty – that all nations now had the benefit of the treaty made with Great Britain, which treaty was necessary to establish relations after a war; and that the United States, having had no war with China, had no need for a treaty. He supposes that, having heard of the British treaty, the United States began to want one also, and admits the idea is excellent, but unnecessary, and urges against it:

"As to what is stated, of publicly deliberating upon the particulars of perpetual peace, inasmuch as it relates to discoursing of good faith, peace, and harmony, the idea is excellent; and it may seem right, because he has heard that England has settled all the particulars of a treaty with China, he may desire to do and manage in the same manner. But the circumstances of the two nations are not the same, for England had taken up arms against China for several years, and, in beginning to deliberate upon a treaty, these two nations could not avoid suspicion; therefore, they settled the details of a treaty, in order to confirm their good faith; but since your honorable nation, from the commencement of commercial intercourse with China, during a period of two hundred years, all the merchants who have come to Canton, on the one hand, have observed the laws of China without any disagreement, and on the other, there has been no failure of treating them with courtesy, so that there has not been the slightest room for discord; and, since the two nations are at peace, what is the necessity of negotiating a treaty? In the commencement, England was not at peace with China; and when afterwards these two nations began to revert to a state of peace, it was indispensable to establish and settle details of a treaty, in order to oppose a barrier to future difficulties. I have now discussed this subject, and desire the honorable plenipotentiary maturely to consider it. Your honorable nation, with France and England, are the three great foreign nations that come to the south of China to trade. But the trade of America and England with China is very great. Now, the law regulating the tariff has changed the old established duties, many of which have been essentially diminished, and the customary expenditures (exactions?) have been abolished. Your honorable nation is treated in the same manner as England; and, from the time of this change in the tariff, all kinds of merchandise have flowed through the channels of free trade, among the people, and already has your nation been bedewed with its advantages. The honorable plenipotentiary ought certainly to look at and consider that the Great Emperor, in his leniency to men from afar, has issued edicts commanding the merchants and people peaceably to trade, which cannot but be beneficial to the nations. It is useless, with lofty, polished, and empty words, to alter these unlimited advantages."

In all this alleged extension of the benefits of the British treaty to all nations, Ching was right in what he said. The Emperor had already done it, and the British government had so determined it from the beginning. It was a treaty for the commercial world as well as for themselves, and had been so declared by the young Queen Victoria in her speech communicating the treaty to Parliament. "Throughout the whole course of my negotiations with the government of China, I have uniformly disclaimed the wish for any exclusive advantages. It has been my desire that equal favor should be shown to the industry and commercial enterprise of all nations." There was really no necessity for a treaty, which as often begets dissensions as prevents them; and if one was desirable, it might have been had through Dr. Parker, long a resident of China, and now commissioner there, and who was Secretary of Legation and interpreter in Mr. Cushing's mission, and the medium of his communications with the Chinese; and actually the man of business who did the business in conducting the negotiations. But Mr. Cushing perseveres in his design to go to Peking, alleging that, "He deems himself bound by the instructions of his government to do so." Ching replies that he has received the imperial order "to stop and soothe him." Ching also informs him that the treaty with Great Britain was negotiated, not at Peking but at Canton, and also its duplicate with Portugal, and that a copy of it was in the hands of the American consul at Canton, for the information and benefit of American merchants. In his anxiety to prevent a foreign ship-of-war from approaching Peking, the Chinese governor intimated that, if a treaty was indispensable, a commissioner might come to Canton for that purpose; and on inquiry from Mr. Cushing how long it would take to send to Peking and get a return, Ching answered, three months – the distance being so great. Mr. Cushing objects to that delay – declares he cannot wait so long, as the season for favorable navigation to approach Peking may elapse; and announces his determination to proceed at once in the Brandywine, without waiting for any permission; and declares that a refusal to receive him would be a national insult, and a just cause of war. Here is the extract from his letter:

"Under these circumstances, inasmuch as your Excellency does not propose to open to me the inland road to Peking, in the event of my waiting here until the favorable monsoon for proceeding to the north by sea shall have passed away, and as I cannot, without disregard of the commands of my government, permit the season to elapse without pursuing the objects of my mission, I shall immediately leave Macao in the Brandywine. I feel the less hesitation in pursuing this course, in consideration of the tenor of the several communications which I have received from your Excellency. It is obvious, that if the court had entertained any very particular desire that I should remain here, it would have caused an imperial commissioner to be on the spot, ready to receive me on my arrival, or, at any rate, instructions would have been forwarded to your Excellency for the reception of the legation; since, in order that no proper act of courtesy towards the Chinese government should be left unobserved, notice was duly given last autumn, by the consul of the United States, that my government had appointed a minister to China. The omission of the court to take either of these steps seems to indicate expectation, on its part, that I should probably land at some port in the north."

That is to say, at some port in the Yellow Sea, or its river nearest to Peking. This must have been a mode of reasoning new to Governor Ching, that an omission to provide for Mr. Cushing at the port where foreigners were received, should imply a license for him to land where they were not, except on express, imperial permission. Much as Ching must have been astonished at this American logic, he must have been still more so at the penalty announced for disregarding it! nothing less than "national insult," and "just cause of war." For the letter continues:

"Besides which, your Excellency is well aware, that it is neither the custom in China, nor consistent with the high character of its Sovereign, to decline to receive the embassies of friendly states. To do so, indeed, would among Western States be considered an act of national insult, and a just cause of war."

This sentence, as all that relates to Mr. Cushing's Chinese mission, is copied from his own official despatches; so that, what would be incredible on the relation of others, becomes undeniable on his own. National insult and just cause of war, for not allowing him to go to Peking!

Mr. Cushing justifies his refusal to negotiate at Canton as the British envoy had done, and not being governed by the ceremony observed in his case, on the ground that the circumstances were not analogous – that Great Britain had chastised the Chinese, and taken possession of one of their islands – and that it would be necessary for the United States to do the same to bring him within the rules which were observed with Sir Henry Pottinger, the British minister. This intimation, as impertinent as unfeeling, and as offensive as unfounded, was thus expressed:

"In regard to the mode and place of deliberating upon all things relative to the perpetual peace and friendship of China and the United States, your Excellency refers to the precedent of the late negotiations with the plenipotentiary of Great Britain. The rules of politeness and ceremony observed by Sir Henry Pottinger, were doubtless just and proper in the particular circumstances of the case. But, to render them fully applicable to the United States, it would be necessary for my government, in the first instance, to subject the people of China to all the calamities of war, and especially to take possession of some island on the coast of China as a place of residence for its minister. I cannot suppose that the imperial government wishes the United States to do this. Certainly no such wish is entertained at present by the United States, which, animated with the most amicable sentiments towards China, feels assured of being met with corresponding deportment on the part of China."

The Brandywine during this time was still at Macao, the port outside of the harbor, where foreign men-of-war are only allowed to come; but Mr. Cushing, following up the course he had marked out for himself, directed that vessel to enter the inner port, and sail up to Whampoa; and also to require a salute of twenty-one guns to be fired. Against this entrance the Chinese government remonstrated, as being against the laws and customs of the empire, contrary to what the British had done when they negotiated their treaty, and contrary to an article in that treaty which only permitted that entrance to a small vessel with few men and one petty officer: and if the Brandywine had not entered, he forbids her to come; and if she had, requires her to depart: and as for the salute, he declares he has no means of firing it; and, besides, it was against their laws. The governor expressed himself with animation and feeling on this subject, at the indignity of violating their laws, and under the pretext of paying him a compliment – for that was the only alleged cause of the intrusive entrance of the Brandywine. He wrote:

"But it is highly necessary that I should also remark, concerning the man-of-war Brandywine coming up to Whampoa. The Bogue makes an outer portal of Kwang Tung, where an admiral is stationed to control and guard. Heretofore, the men-of-war of foreign nations have only been allowed to cast anchor in the seas without the mouth of the river, and have not been permitted to enter within. This is a settled law of the land, made a long time past. Whampoa is the place where merchant ships collect together, not one where men-of-war can anchor. Now, since the whole design of merchantmen is to trade, and men-of-war are prepared to fight, if they enter the river, fright and suspicion will easily arise among the populace, thus causing an obstacle in the way of trade. Furthermore, the two countries are just about deliberating upon peace and good will, and suddenly to have a man-of-war enter the river, while we are speaking of good faith and cultivating good feeling, has not a little the aspect of distrust. Among the articles of the commercial regulations it is provided, that an English government vessel shall be allowed to remain at anchor at Whampoa, and that a deputy shall be appointed to control the seamen. The design of this, it was evident, was to put an end to strife, and quell disputes. But this vessel is a small one, containing but few troops, and moreover brings a petty officer, so that it is a matter of but little consequence, one way or another. If your country's man-of-war Brandywine contains five hundred and more troops, she has also a proportionately large number of guns in her, and brings a commodore in her; she is in truth far different from the government vessel of the British, and it is inexpedient for her to enter the river; and there are, in the aspect of the affair, many things not agreeable."

Nevertheless Mr. Cushing required the ship to enter the inner port, to demand a return-salute of twenty-one guns, and permission to the American commodore to make his compliments in person to the Chinese governor. This governor then addressed a remonstrance to the American commodore, which runs thus:

"When your Excellency first arrived in the Central Flowery Land, you were unacquainted with her laws and prohibitions – that it was against the laws for men-of-war to enter the river. Having previously received the public officer's (Cushing's) communication, I, the acting governor, have fully and clearly stated to him that the ship should be detained outside. Your Excellency's present coming up to Blenheim reach is therefore, no doubt, because the despatch sent previously to his Excellency Cushing had not been made known to you – whence the mistake. Respecting the salute of twenty-one guns, as it is a salute among western nations, it does [not] tally with the customs of China. Your Excellency being now in China, and, moreover, entered the river, it is not the same as if you were in your own country; and, consequently, it will be inexpedient to have the salute performed here; also, China has no such salute as firing twenty-one guns; and how can we imitate your country's custom in the number, and make a corresponding ceremony in return? It will, indeed, not be easy to act according to it. When the English admirals Parker and Saltoun came up to Canton, they were both in a passage vessel, not in a man-of-war, when they entered the river; nor was there any salute. This is evidence plain on this matter.

"Concerning what is said regarding a personal visit to this officer to pay respects, it is certainly indicative of good intention; but the laws of the land direct that whenever officers from other countries arrive upon the frontier, the governor and other high officers, not having received his Majesty's commands, cannot hold any private intercourse with them; nor can a deputy, not having received a special commission from the superior officers, have any private intercourse with foreign functionaries. It will consequently be inexpedient that your Excellency (whose sentiments are so polite and cordial) and I, the acting governor, should have an interview; for it is against the settled laws of the land."