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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!!!
THURSDAY, APRIL 26TH.
The question on the motion to repeal the rule was called for after some little conversation. Mr. Clark moved that it might be postponed, which was agreed to.
Nothing further was done in this business till Wednesday, May the second, when Mr. Madison left New York for the Convention to be held in Philadelphia.
It was considered, on the whole, that the project for shutting the Mississippi was at an end—a point deemed of great importance in reference to the approaching Convention for introducing a change in the Federal Government, and to the objection to an increase of its powers, foreseen from the jealousy which had been excited by that project.138