"He did not think it necessary to waste the time of the House in arguing the propriety of a mission to China. The message of the President was sufficient on that point.
"He then replied to the objections urged against the bill, on the ground that it placed too much confidence in the President, and that the appropriation was to be made without restriction. The motion which he had submitted, to strike out the restrictions of law, which were applicable to other diplomatic appropriations, was made after a consultation with the Secretary of State, who thought that to impose restrictions might embarrass the progress of the negotiations."
Mr. McKeon, of New York, opposed the whole scheme of the mission to China, believing it to be unnecessary, and to be conducted with too much pomp and expense, and to lay the foundation for a permanent mission. He said:
"There was nothing so very peculiar in the case of China, that Congress should depart from the usual restrictions of law, which applied to diplomatic appropriations generally. He thought it would be better to take the matter quietly, and go about it in a quiet business manner. Should the bill pass as reported by the committee, it would authorize a minister at a salary of $9,000 and $9,000 outfit. Pass it according to the amendment of the gentleman from Massachusetts [Mr. Adams], and $40,000 would thereby be placed at the disposal of the Executive—more than he (Mr. McK.) was willing to see placed in the hands of any President. He should be as liberal as any man in fixing the salaries of the minister and secretary. But the appropriation was only a beginning. The largest ship in this country (the Pennsylvania) would no doubt be selected to carry out whomsoever should be selected as minister, in order to give as much eclat as possible to our country. Then other vessels would have to be sent to accompany this ship, and to sail where her size would not allow her to go. These, and other paraphernalia, would have to be provided for the minister; and this $40,000 would be but a beginning of the expense. He concluded by expressing the hope that the motion to strike out the restrictions contained in the bill, and thereby place the whole appropriation at the disposal of the President, would not prevail."
Mr. Bronson, of Maine, expressed it as his conviction, that we should possess more information before such a measure as that of sending a minister plenipotentiary to China should be adopted. He should prefer having a commercial agent for the present. The question was then taken on Mr. Adams's proposed amendment, and resulted in its adoption—80 votes for it; 55 against it. The previous question being called, the bill was then passed without further debate or amendment—yeas 96: nays 59. The nays were:
"Messrs.—Thomas D. Arnold, Archibald H. Arrington, Charles G. Atherton, Benjamin A. Bidlack, John M. Botts, David Bronson, Milton Brown, Charles Brown, Edmund Burke, William O. Butler, Patrick C. Caldwell, William B. Campbell, Zadock Casey, John C. Clark, Nathan Clifford, Walter Coles, Benjamin S. Cowen, James H. Cravens, George W. Crawford, Garrett Davis, Andrew W. Doig, William P. Fessenden, Charles A. Floyd, A. Lawrence Foster, Roger L. Gamble, James Gerry, William L. Goggin, William O. Goode, Willis Green, William A. Harris, John Hastings, Samuel L. Hays, Jacob Houck, jr., Robert M. T. Hunter, John W. Jones, George M. Keim, Nathaniel S. Littlefield, Abraham McClellan, James J. McKay, John McKeon, Albert G. Marchand, Alfred Marshall, John Maynard, James A. Meriwether, John Moore, Bryan Y. Owsley, Kenneth Rayner, John R. Reding, John Reynolds, R. Barnwell Rhett, James Rogers, William Smith, John Snyder, James C. Sprigg, Edward Stanley, Lewis Steenrod, Charles C. Stratton, John T. Stuart, Samuel W. Trotti."
It was observed that Mr. Cushing, though a member of the committee which reported the bill, and a close friend to the administration, took no part in the proceedings upon this bill—neither speaking nor voting for or against it: a circumstance which strengthened the belief that he was to be the beneficiary of it.
It was midnight on the last day of the session when the bill was called up in the Senate. Mr. Wright of New York, desired to know the reason for so large an appropriation in this case. He was answered by Mr. Archer, the senatorial reporter of the bill, who said it was not intended that the salary of the minister, or agent, together with his outfit, should exceed $18,000 per annum—the amount usually appropriated for such missions. Supposing the mission to occupy two years, and the sum is not too much, and the remoteness of the country to be negotiated with, justifies the full appropriation in advance. Mr. Wright replied that the explanation was not at all satisfactory to him: the compensation to an agent in China could be voted annually, and applied annually, as conveniently as any other. Mr. Benton objected to any mission at all, and especially to such a one as the bill provided for. He argued that—
"There was no necessity for a treaty with China, was proved by the fact that our trade with that country had been going on well without one for a century or two, and was now growing and increasing constantly. It was a trade conducted on the simple and elementary principle of 'here is one,' and 'there is the other'—all ready-money, and hard money, or good products—no credit system, no paper money. For a long time this trade took nothing but silver dollars. At present it is taking some other articles, and especially a goodly quantity of Missouri lead. This has taken place without a treaty, and without an agent at $40,000 expense. All things are going on well between us and the Chinese. Our relations are purely commercial, conducted on the simplest principles of trade, and unconnected with political views. China has no political connection with us. She is not within the system, or circle, of American policy. She can have no designs upon us, or views in relation to us; and we have no need of a minister to watch and observe her conduct. Politically and commercially the mission is useless. By the Constitution, all the ministers are to be appointed by the Senate; but this minister to China is to be called an agent, and sent out by the President without the consent of the Senate; and thus, by imposing a false name upon the minister, defraud the Senate of their control over the appointment. The enormity of the sum shows that the mission is to be more expensive than any one ever sent from the United States; and that it is to be one of the first grade, or of a higher grade than any known in our country. Nine thousand dollars per annum, and the same for an outfit, is the highest compensation known to our service; yet this $40,000 mission may double that amount, and still the minister be only called an agent, for the purpose of cheating the Senate out of its control over the appointment. The bill is fraudulent in relation to the compensation to be given to this ambassadorial agent. No sum is fixed, but he is to take what he pleases for himself and his suite. He and they are to help themselves; and, from the amount allowed, they may help themselves liberally. In all other cases, salaries and compensations are fixed by law, and graduated by time; here there is no limit of either money or time. This mission goes by the job—$40,000 for the job—without regard to time or cost. A summer's work, or a year's work, it is all the same thing: it is a job, and is evidently intended to enable a gentleman, who loves to travel in Europe and Asia, to extend his travels to the Celestial Empire at the expense of the United States, and to write a book. The settlement of the accounts is a fraud upon the Treasury. In all cases of foreign missions, except where secret services are to be performed, and spies and informers to be dealt with, the accounts are settled at the Treasury Department, by the proper accounting officers; when secret services are to be covered, the fund out of which they are paid is then called the contingent foreign intercourse fund; and are settled at the State Department, upon a simple certificate from the President, that the money has been applied according to its intention. It was in this way that the notorious John Henry obtained his $50,000 during the late war; and that various other sums have been paid out to secret agents at different times. To this I do not object. Every government, in its foreign intercourse, must have recourse to agents, and have the benefit of some services, which would be defeated if made public; and which must, therefore, be veiled in secrecy, and paid for privately. This must happen in all governments; but not so in this case of the Chinese mission. Here, secrecy is intended for what our own minister, his secretary, and his whole suite, are to receive. Not only what they may give in bribes to Chinese, but what they may take in pay to themselves, is to be a secret. All is secret and irresponsible! And it will not do to assimilate this mission to the oldest government in the world, to the anomalous and anonymous missions to revolutionary countries. Such an analogy has been attempted in defence of this mission, and South American examples cited; but the cases are not analogous. Informal agencies, with secret objects, are proper to revolutionary governments; but here is to be a public mission, and an imposing one—the grandest ever sent out from the United States.—To attempt to assimilate such a mission to a John Henry case, or to a South American agency, is absurd and impudent; and is a fraud upon the system of accountability to which all our missions are subjected.
"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!