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an answer by repeating general expressions. Spain could make her own terms, he said, with Great Britain. He considered the commercial connection proposed as entirely in favor of the United States, and that in a little time the ports of Spain would be shut against fish. He was asked, whether against all fish, or only against fish from the United States? From all places not in treaty, he said, with Spain. Spain would act according to her own ideas. She would not be governed by other people's ideas of her interest.
He was very sorry for the instructions passed by Virginia; he foresaw bad consequences from them. He had written to soften the matter as well as he could, but that troops and stores would certainly reinforce New Orleans in consequence of the Resolutions.
He had not conferred at all with the Minister of Foreign Affairs since October, and did not expect to confer again. He did not expect to remain much longer in America. He wished he might not be a true prophet; but it would be found that we mistook our interest, and that Spain would make us feel the vulnerable side of our commerce by abridging it in her ports.
With an air of ostensible jocoseness, he hinted that the people of Kentucky would make good Spanish subjects, and that they would become such for the sake of the privilege annexed to that character.
He seemed to be disposed to make us believe that Spain and Britain understood one another; that he knew the views of Great Britain in holding the Western posts; and that Spain had it in her power
to make Great Britain bend to her views. He affected a mysterious air on this point, which only proved that he was at a loss what to say to the probability and tendency of a connection between Great Britain and the Western settlements, in case the Mississippi should be given up by Congress.
He intimated that Spain could not grant any inlet of the American trade by treaty; but that, in case of a treaty, trade through the Mississippi, as well as other channels, would be winked at.
In speaking of the Mississippi and the right of Spain, he alluded to the case of the Tagus, which Spain had never pretended to a right of navigating through Portugal. It was observed to him, that, in estimating the rights of nations in such cases, regard must be had to their respective proportions of territory on the river. Suppose Spain held only five acres on each side at the mouth of the Mississippi, would she pretend to an exclusive right in such case? He said that was not the case; Spain had a great proportion. How much? After some confusion and hesitation, he said, she claimed at least—as far as the Ohio. We smiled, and asked how far eastwardly from the Mississippi? He became still more at a loss for an answer, and turned it off by insinuating that he had conversed on that matter with the Secretary of Foreign Affairs.
He was reminded of the doctrine maintained by Spain in 1608, as to the Scheldt. He seemed not to have known the fact, and resolved it into some political consideration of the times.
He was asked, whether the partition of the British Empire could deprive this part of it of the rights VOL. I.-38
appertaining to the King of Great Britain as King of this country; and even whether the rupture of Great Britain and Spain could deprive, in justice, the United States of rights which they held under the Treaty of 1763, whilst they remained a part of the British Empire? Whether, in case no such rupture had happened, the Treaty between Spain and that part of the Empire would have been dissolved by the Revolution? &c., &c. He did not seem well to understand the principles into which such questions resolved themselves, and gave them the go-by, referring the claim of Spain principally to her conquests of the British possessions in North America.
He betrayed strongly the anxiety of Spain to retard the population of the Western country; observing that whenever sufficient force should arise therein, it would be impossible for it to be controlled; that any conciliating measures that might be taken now, would have little effect on their temper and views fifty or an hundred years hence, when they should be in force.
When we rose to take leave, he begged us to remember what he had said as to the inflexibility of Spain on the point of the Mississippi, and the consequences to America of her adherence to her present pretensions.130
Nothing noted till
TUESDAY, MARCH 20TH.
Mr. JAY's report on the Treaty of Peace taken up. Mr. YATES objected to the first resolution, which declares the Treaty to be a law of the land. He said the States, or at least his State, did not admit it to be such until clothed with legal sanction. At his request he was furnished with a copy of the resolution, for the purpose of consulting such as he might choose.
WEDNESDAY, MARCH 21ST.
The subject of yesterday resumed.
Mr. YATES was now satisfied with the resolutions as they stood. The words "constitutionally made," as applied to the Treaty, seemed to him, on consideration, to qualify sufficiently the doctrine on which the resolution was founded.
The second and third resolutions, urging on the States a repeal of all laws contravening the Treaty, (first, that they might not continue to operate as violations of it; secondly, that questions might be avoided touching their validity,) underwent some criticisms and discussions.
Mr. VARNUM and Mr. MITCHELL thought they did not consist with the first, which declared such laws
to be void, in which case they could not operate as violations.
Mr. MADISON observed, that a repeal of those contravening laws was expedient, and even necessary, to free the courts from the bias of their oaths, which bound the judges more strongly to the State than to the Federal authority. A distinction too, he said, might be started possibly between laws prior and laws subsequent to the Treaty; a repealing effect of the Treaty on the former not necessarily implying the nullity of the latter. Supposing the Treaty to have the validity of a law only, it would repeal all antecedent laws. To render succeeding laws void, it must have more than the mere authority of a law. In case these succeeding laws, contrary to the Treaty, should come into discussion before the courts, it would be necessary to examine the foundation of the Federal authority, and to determine whether it had the validity of a Constitution, paramount to the legislative authority in each State. This was a delicate question, and studiously to be avoided, as it was notorious that, although in some of the States the Confederation was incorporated with, and had the sanction of, their respective constitutions, yet in others it received a legislative ratification only, and rested on no other basis. He admitted, however, that the word "operate" might be changed for the better, and proposed, in its place, the words "be regarded," as violations of the Treaty,-which was agreed to without opposition.
Mr. KING, in the course of the business, observed, that a question had been raised in New York, whether stipulations, as they might affect citizens