Debates in the Several State Conventions/Volume 5/Congress Apr. 1787
Monday, April 2.
Mr. PIERCE renewed his motion instructing the secretary of foreign affairs to lay before Congress the state of his negotiation with Mr. Guardoqui. which was agreed to without observation or dissent.
See Journals till
Tuesday, April 10.
Mr. KEARNEY moved that Congress adjourn, on the last Friday in April, to meet on the ——— day of May, in Philadelphia. Georgia, North Carolina, Virginia, Delaware, Pennsylvania, New Jersey, and Rhode Island, were for it. The merits of the proposition were not discussed. The friends to it seemed sensible that objections lay against the particular moment at which it was proposed; but, considering the greater centrality of Philadelphia, as rendering a removal proper in itself, and the uncertainty of finding seven states present and in the humor again, they waived the objections. The opinion of Mr. MADISON was, that the meeting of the ensuing Congress in Philadelphia ought to be fixed, leaving the existing Congress to remain throughout the federal year in New York. This arrangement would have been less irritating, and would have had less the aspect of precipitancy or passion, and would have repelled insinuations of personal considerations with the members. The question was agreed to lie over till to-morrow.
Wednesday, April 11.
Mr. VARNUM moved that the motion for removing to Philadelphia should be postponed generally. As the assent of Rhode Island was necessary to make seven states, no one chose to press a decision; the postponement was therefore agreed to nem. con., and the proceedings of yesterday involved the yeas and nays on some immaterial points struck from the Journal.
See the Journal till
Wednesday, April 18.
It having appeared, by the report of Mr. Jay on the instruction agreed to on Monday, the 2d instant, and on information referred to him concerning the discontents of the western people, that he had considered the act of seven states as authorizing him to suspend the use of the Mississippi, and that he had accordingly adjusted with Mr. Guardoqui an article to that effect; that he was also much embarrassed by the ferment excited in the western country by the rumored intention to cede the Mississippi, by which such cession was rendered inexpedient on one side, and, on the other side, by the disinclination in another part of the Union to support the use of the river by arms, if necessary; it was proposed by Mr. MADISON, as an expedient which, if. it should answer no other purpose, would at least gain time, that it should be resolved,
"That the present state of the negotiations with Spain, [meaning the step taken under the spurious authority of seven states,] and of the affairs of the United States, [meaning the temper and proceedings in the western country.] renders it expedient that the minister plenipotentiary at the court of France should proceed under a special commission to the court of Madrid, there to make such representations, and to urge such negotiations, as will be most likely to satisfy the said court of the friendly disposition of the United States, and to induce it to make such concessions relative to the southern limit of the said states and their right to navigate the River Mississippi, and to enter into such commercial stipulations with them, as may most effectually guard against a rupture of the subsisting harmony, and promote the mutual interest of the two nations; and that the secretary of foreign affairs prepare and report the instructions proper to be given to the said minister, with a proper commission and letters of credence; and that he also report the communications and explanations which it may be advisable to make to Mr. Guardoqui relative to this change in the mode of conducting the negotiation with his court."
Mr. KING said, that he did not know that he should be opposed to the proposition, as it seemed to be a plausible expedient, and as something seemed necessary to be done; but that he thought it proper that Congress should, before they agreed to it, give the secretary for foreign affairs an opportunity of stating his opinions on it, and accordingly moved that it should be referred to him.
Mr. CLARK and Mr. VARNUM opposed the reference, it being improper for Congress to submit a principle, for deciding which no further information was wanted, to the opinion of their minister. The reference being, however, at length acceded to by the other friends of the proposition, on the principle of accommodation, it had a vote of seven states.58
Thursday, April 19.
The instructions of Virginia against relinquishing the Mississippi were laid before Congress by the delegates of that state, with a motion that they should be referred to the department of foreign affairs, by way of information.
The reference was opposed by Mr. KING and Mr. BENSON, as unnecessary for that purpose, the instructions having been printed in the newspapers.
In answer to this, it was observed, that the memorial accompanying the instructions had never been printed; that if it had, no just objection could be thence drawn against an official communication; that if Congress would submit a measure, as they had done yesterday, to the opinion of their minister, they ought at least to supply him with every fact, in the most authentic manner, which could assist his judgment; and that they had actually referred to the same minister communications, relative to the western views, less interesting and authentic, and which he had made the basis of a report to Congress.
The motion was lost, Massachusetts and New York being against it, and Connecticut divided. Mr. MITCHELL, from the latter state, was displeased at the negatives, as indicating a want of candor and moderation on the subject.59
Monday, April 23.
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 25.
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 be 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 it 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 26.
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 2d, 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.60