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