Notes on Debates
MS (LC: Madison Papers). See Notes on Debates, 4 November 1782, ed. n. JM preceded the entry for Tuesday, 12 November, with the notation, “Saturday & Monday no Congress.”
The reappointment of Mr. Jefferson as Minister Plenipo: for negociating peace was agreed to unanimously and without a single adverse remark.1 The act took place in consequence of its being suggested that the death of Mrs. J. had probably2 changed the sentiments of Mr. J. with regard to public life, & that all the reasons which led to his original appointment3 still existed and indeed had acquired additional force from the improbability that Mr. Laurens would actually assist in the negociation.4
“A motion was made by Mr. Rutlidge declaring that when a matter was referred to any of the departments to take order, it was the sense & meaning of Congress that the same should be carried into execution.”5 On this motion some argued that such reference amounted to an absolute injunction. Others insisted that it gave authority, but did not absolutely exclude discretion in the Executive Departments. The explanation which was finally acquiesced in as most rational & conformable to practice, was that it not only gave authority, but expressed the sense of Congress that the measure ought to be executed; leaving it so far however in the discretion of the Executive Department, as that in case it differeed in opinion from Congress it might suspend execution & state the objections to Congress that their final direction might be given.6 In the course of debate it was observed by Mr. Madison7 that the practice of referring matters to take order, especially where money was to be issued, was extremely exceptionable inasmuch as no entry of such proceedings was made on the Journals, but only noted in a Memorandum book kept by the Secretary, and then sent to the Department with the reference to take order indorsed by the Secy. but not signed by him.8 So that the transaction even where public in its nature, never came before the public eye, & the Dept. was left with a precarious voucher for its justification.9 The motion was in the end withdrawn, the mover alledging that as he only aimed at rendering an uncertain point clear, & this had been brought about by a satisfactory explanation, he did not wish for any Resolution on the subject.10
1. See Motion To Renew Jefferson’s Appointment, 12 November 1782, and n. 1.
3. See Motion To Renew Jefferson’s Appointment, 12 November 1782, and n. 1.
5. John Rutledge wrote: “R. That, when a Matter is refer’d by Congress; to any of the executive Departments, to take order, it is the Sense & Intention of Congress, that the Measure refer’d to such Department be carried into Execution” (NA: PCC, No. 36, I, 433; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 722).
6. This final word of the sentence replaced a deleted “determined.” JM’s statement of what “was finally acquiesced in” does not agree with the following summary by Charles Thomson of the prevalent opinion elicited by the debate: “N.B it seemed to be the general Sense of the house that a reference to take order implied a discretionary power. But it was argued by Mr Madison that if the thing was not done the officer should report the reasons that prevented” (NA: PCC, No. 36, I, 433).
7. Judging from the handwriting, JM inserted “Mr. Madison” at a date later than when he originally wrote the notes.
8. Several of Charles Thomson’s record books support JM’s statement. Probably he had in mind the one now among the papers of the Continental Congress in the National Archives which is designated as “Committee Book 1781–1785.” In this register, for example, under date of 12 November 1782, an entry states that the “Superintendant of Finance” was directed by Congress “To take Order” upon “A representation of the case of Charles Morse for paying his widow a quarters Salary from 1 Octr 1782” (NA: PCC, No. 186, fol. 66). At the left of each entry in the register, Thomson placed a single bracket crossed by a short line in the center. Probably these marks signified to him that he had fulfilled the intention of Congress. See JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 723, and n. 1.
9. JM’s knowledge of fiscal procedures involving the secretary of Congress and the “Civil Departments” resulted from personal observation. He had himself taken the lead in having Congress provide for these “periodical and exact inquiries,” and he had drafted the report of the committee assigned to review the proceedings of the Department of Foreign Affairs. See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 335; 343–44; Report on Secretary for Foreign Affairs, 18 September 1782.
10. Charles Thomson’s docket on the manuscript of Rutledge’s motion reads: “Motion of Mr Rutledge to explain the meaning of the term To take order debated & withdrawn Novr 12 1782.” See also JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 722.