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MONDAY, APRIL 23RD.
Mr. Jay's report, stating objections against the motion of Mr. Madison for sending Mr. Jefferson to Madrid, was taken into consideration.
Mr. Madison observed, that Mr. Jay had not taken up the proposition in the point of view in which it had been penned; and explained what that was, to wit, that it was expedient to retract the step taken for ceding the Mississippi, and to do it in a manner as respectful and conciliating as possible to Spain, and which, at the same time,' would procrastinate the dilemma stated by Mr. Jay. He said he was not attached to the expedient he had brought forward, and was open to any other that might be less exceptionable.
Mr. Gorham avowed his opinion that the shutting the Mississippi would be advantageous to the Atlantic States, and wished to see it shut.
Mr. Madison animadverted on the illiberality of his doctrine, and contrasted it with the principles of the Revolution, and the language of American patriots.
Nothing was done in the case.
WEDNESDAY, APRIL 25TH. Mr. Madison, observing to Congress that he found a settled disinclination in some of the Delegations to concur in any conciliatory expedient for defending the Mississippi against the operation of the vote of seven States, and that it was hence become necessary
to attack directly the validity of that measure, to the end that the adversaries to it, and particularly the instructed Delegations, might at least discharge their duty in the case, made the following motion :
Whereas it appears by the Report of the Secretary for the Department of Foreign Affairs, made on the 11th instant, that in consequence of a vote entered into by seven States on the 29th day of August last, he has proceeded to adjust with Mr. Guardoqui an article for suspending the right of the United States to the common use of the river Mississippi below their southern boundary: And whereas it is considered that the said vote of seven States, having passed in a case in which the assent of nine States is required by the Articles of Confederation, is not valid for the purpose intended by it; and that any further negotiations in pursuance of the same may eventually expose the United States to great embarrassments with Spain, as well as excite great discontents and difficulties among themselves: Resolved, therefore, that the Secretary for the said Department be informed that it is the opinion of Congress, that the said vote of seven States ought not to be regarded as authorizing any suspension of the use of the river Mississippi by the United States, and that any expectations thereof, which may have been conceived on the part of Spain, ought to be repressed.
Mr. King reminded Congress that this motion was barred by the rule that no question should be revived, which had been set aside by the previous question, unless the same States, or an equal number, be present, as were present at the time of such previous question. This rule had been entered into in
consequence of a similar motion made shortly after the vote of seven States had passed. Mr. King contended, that this rule was a prudent one, and recommended by the practice of all deliberative assemblies, who never suffered questions once agitated and decided, to be repeated at the pleasure of the unsuccessful party.
Mr. Madison admitted that the rule, if insisted on, was a bar to his motion; but that he had not expected that it would be called up, being so evidently improper in itself, and the offspring of the intemperance which characterized the epoch of its birth. As it was called up, however, it was become necessary that a preliminary motion for its repeal should be made, and which he accordingly made. His objections against the rule were
First, that it was an attempt in one Congress to bind their successors, which was not only impracticable in itself, but highly unreasonable in the very instance which gave birth to the rule. Twelve States were on the floor at the time; seven were for the previous question, five against it. The casting number, therefore, was but two. Was it not unreasonable that eleven States, unanimously of a contrary opinion, should be controlled by this small majority when twelve were present; and yet such would be the operation of the rule, if eleven States only should at any time happen to be present, although they should be unanimous in the case.
Secondly, the operation of the vote in another respect was still more reprehensible. In the former case the eleven States, or even seven, could extricate themselves by a repeal of the rule. In case a
number less than seven should wish to justify themselves by any particular motion, they might be precluded by such a rule. Six States, instructed by their constituents to make a particular proposition, or to enter a particular protest, might be thus fettered by a stratagem of seven States. In the case actually depending, three States were instructed, and two, if not three, more ready to vote with them.
Thirdly, the practice of other assemblies did not reach this case, and if it did the reason of it would be inapplicable. The restriction in other assemblies related to the same assembly, and even to the same session. Here the restriction is perpetual. In legislative assemblies, no great inconvenience would happen from a suspension of a law for a limited time. In Executive councils, which are involved in the constitution of Congress, and particularly in military operations and negotiations, the vicissitude of events would often govern, and a measure improper on one day might become necessary the next.
Mr. CLARK and Mr. VARNUM contended that the rules of the Congress for the last year were not in force during the present, and supposed that a repeal was unnecessary.
In the course of this discussion, the question as to the validity of the vote of seven States, and the merits of the proposition of Mr. Madison, barred by the rule, incidentally came into view. The advocates of the latter did not maintain the validity, or rather studiously avoided giving an opinion on it. They urged only the impropriety of any exposition by Congress of their own powers, and of the validity of their own acts. They were answered, that the exposition must be somewhere, and more properly with Congress than with one of their Ministerial officers; that it was absurd to say that Congress, with information on their table that a treaty with a foreign nation was going on without a constitutional sanction, should forbear, out of such scruple, to assert it, and prevent the dilemma which would ensue, of either recognizing an unconstitutional proceeding, or of quarrelling with the King of Spain; that Congress had frequently asserted and expounded their own powers, and must frequently be obliged to do so. What was the late address to the States on the subject of the Treaty of Peace, but an exposition and vindication of their constitutional powers? That, in the vote itself, the entry, “so it was resolved in the affirmative," asserted it to be valid and constitutional; the vote of seven States when nine were required being otherwise to be entered, like a vote of six States, in the negative.
It appearing to be the inflexible predetermination of the advocates for the Spanish Treaty to hold fast every advantage they had got, the debate was shortened, and an adjournment took place without any question.
Note.—Mr. King, in conversation repeatedly, though not in public debate, maintained that the entry," so it was resolved in the affirmative," decided nothing as to the validity of the vote of seven States for yielding the Mississippi; and that they amounted to no more than a simple affirmation, or summary repetition, of the fact that the said seven States voted in the manner stated!!!