The American Consul: A History of the United States Consular Service 1776â1924. Revised Second Edition. Charles Stuart Kennedy
still in a legal limbo, went about their business in the thirteen states.
Thomas Jefferson replaced Franklin as minister to France in 1785 and, among other matters, waited for instructions from Congress for renegotiating the consular convention.17 Congress moved in its usual deliberate manner. It was not until the summer of 1788, the last year of the Confederation and ten years after the Treaty of Amity and Commerce with France, that Jefferson was able to negotiate a new convention. In opening the negotiations Jefferson wrote the French foreign minister, by then the Count de Montmorin:
We carry on commerce with good success, in all parts of the world, yet we have not a Consul in a single port, nor a complaint for the want of one, except from the persons who want to be consuls themselves. Though these considerations may not be strong enough to establish the absolute inutility of Consuls, they may make us less anxious to extend their privileges and jurisdictions, so as to render them objects of jealousy, and irritation in the places of their residence. The English allow to foreign Consuls scarcely any functions within their ports. This proceeds, in great measure, from the character of their laws, which eye with peculiar jealousy, every exemption from their control. Ours are the same in their general character, and rendered still more unpliant by our having thirteen parliaments to relax, instead of one.18
Jefferson was an excellent negotiator; his studied indifference to the need for consuls made it easier to wring some major concessions from the French in the reworked consular convention. By November 1788 he reported that he had signed a convention with France that met the objections Jay had raised in 1784. Jefferson took away most of the coercive powers that the French consuls exercised over their subjects and vessels in the United States. He also took away the right of consuls to have their testimony unchallenged in courts. The consular convention was ratified under the brand-new Constitution by the brand-new Senate in 1789. The final pact had a more “American cast” in refusing to give too much power to government officials, a reflection of the recent colonial experience.
During the Confederation period the French had their consuls well placed in the various states to deal with the local governments and maintained a minister in the capital, New York. After the peace treaty of 1783 the British accepted John Adams as the American minister in 1785, but they did not reciprocate. Instead, BritishAmerican relations were left in the hands of a consul general and his subordinates, similar to what was done in the Barbary states. The British foreign minister, when asked about the lack of a British diplomat in the United States, remarked that if he sent one representative, he would have to send thirteen.19 Despite the lack of a treaty between Great Britain and the United States regarding consuls, Congress accepted Consul General Sir John Temple in 1785, as it would “be proper for the United States, on this and every other occasion, to observe as great a degree of liberality as may consist with a due regard to their national honor and welfare”.20 A year later Britain sent a consul to deal with the mid-Atlantic states, while Temple stayed in New York.
The two major European powers, France and Great Britain, were making effective use of consuls within the United States, but Congress was not tempted to emulate them. The only American consul, Thomas Barclay, was diverted from France to negotiate a treaty with the emperor of Morocco, leaving Thomas Jefferson once again without consular help. John Adams, in London as minister, hoped that the acceptance of a British consul general to the United States would open the way for an American consul general in England with vice consuls in Scotland and Ireland. In writing to Jay, Adams noted, “Consuls and Vice Consuls are very useful to Ambassadors and Ministers in many ways that I need not explain to you. Consuls would explore new channels of commerce and new markets for our produce.”21 Adams, alas, was not to get any such assistance.
Jay had been asked by Congress in 1785 to report what his department considered the number of consuls necessary to give the United States adequate representation. He replied that it would be expedient to have consuls in Russia, Sweden, Denmark, Germany, the Netherlands, Britain, Ireland, France, Portugal, Spain, the Canaries, Madeira, and certain ports in the Mediterranean.22 Congress asked the question, had its answer, then pigeonholed Jay’s ideas and went on to other business.
The only exception to congressional indifference to a consular service was with China. Prior to the Revolution, American colonial trade had been directed toward the mother country, European ports, and the West Indies. British trade with China was in the hands of British trading companies, and colonials had little opportunity to expand their trade in that direction. Now, with independence, American traders were looking forward to new and lucrative markets in the Far East, important markets since trade with Great Britain and her remaining colonies had become difficult with American ships no longer part of the British system. With no commercial treaty to grant reciprocal privileges, the British could play the thirteen separate states against each other regarding trading rights. At a time when it was becoming clear to Yankee merchants and traders that British markets were not going to be as open as before the Revolution there was good news from the Far East. An American ship, the Empress of China, returned to New York in May 1785, after a successful trading voyage to Canton. As soon as the ship returned to port, the business agent of the ship, Samuel Shaw, wrote to John Jay. Shaw addressed the letter “for the information of the fathers of the country, an account of the reception their subjects have met with, and the respect with which their flag has been treated in that distant region.”23
Shaw described his voyage and meeting with a French squadron that welcomed the ship and escorted it to Macao. There the French consul gave friendly assistance and congratulations to the Yankee crew on America’s entering the China trade. In Canton Shaw found that Chinese merchants were quite receptive to the newcomers, but had some difficulty comprehending the distinction between Englishmen and Americans. The Chinese finally distinguished the Americans as the “new people.”
Chinese authorities carefully controlled trading with outsiders. Canton was the only port open to foreign ships, and the Western merchants were confined to compounds, called factories, along the river. There was a brief trading season of several months, then all foreign merchants had to leave until the next year’s season. The Chinese, fearing the spread of Western influence, kept tight control over the port and enforced their stern code of justice, including the dictum that “blood must answer for blood.”24
While in Canton Shaw became a participant in a drama demonstrating this rule of Chinese law. An English ship in harbor had fired a salute to honor some guests, accidentally killing a Chinese bystander. The port authorities demanded the gunner for retribution. When the English resisted turning him over to certain death the Chinese seized a ship’s officer who was in the city on business. The Europeans in the port armed themselves and demanded the return of the captive. The Chinese refused and brought up warships and troops. At this point the Chinese head magistrate asked for a deputation of all the trading nations except the English. Shaw joined the deputation as the representative from America, an act inaugurating the entry of the United States into Far Eastern affairs. In negotiations with the delegation the magistrate agreed that if the English turned over the gunner he would have an impartial trial, and if the killing were proved to be accidental, he would be released. The English saw no alternative and agreed. The seaman was eventually released.
Shaw noted in his letter that the English rather begrudgingly thanked the ex-colonial for his assistance in serving on the delegation. In contrast to the coolness of the British, there was harmony between the French and the Americans. This cordial relationship “was particularly noted by the English, who more than once observed, that it was a matter of astonishment to them that the descendants of Britons would so soon divest themselves of prejudices, which they had thought to be not only hereditary, but inherent in our nature.”25
Jay sent Shaw’s letter to Congress with the recommendation that a consul and vice consul be appointed to Canton, expressing his feeling that “such officers would have a degree of weight and respect which private adventurers cannot readily acquire, and which would enable them to render essential services to their countrymen.”26 Within ten days Samuel Shaw had a consular commission from Congress. Jay then asked that his friend Thomas Randall, another former artillery officer, be appointed vice consul for Canton, advising that his ship would be leaving shortly. The President and Congress responded with unaccustomed speed, and the new consul and vice consul sailed to Canton a week later. They were to serve