Notes on Debates
Mr. Madison observing to Congs. that he found a settled disinclination in some of the delegations to concur in any conciliatory expedient for defending the Missippi agst. 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,1 made the following motion:
“Whereas it appears by the Report of the Secretary for the department of For: Affrs. made on the instant;2 that in consequence of a vote entered into by seven States on the day of last,3 he has proceeded to adjust with Mr. Guardoqui an article for suspending the right of the U. S. 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;4 and that any further negociations in pursuance of the same, may eventually expose the U. S. to great embarrassments with Spain as well as excite great discontents and difficulties among themselves: Resolved that the Secy. 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 authorising any suspension of the use of the River Mississippi by the U. S; and that any expectation 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.5 Mr. King contended that this rule was a prudent one & recommended by the practice of all deliberative assemblies, who never suffered questions once agitated & 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 shd. be made, and which he accordingly made. His objections agst. the rule were 1. that it was an attempt in one Congs. to bind their successors which was not only impracticable in itself, but highly unreasonable in the very instance which gave birth to the rule. 12 States were on the floor at the time. 7 were for the previous question. 5 agst. it. The casting number therefore was but two. Was it not unreasonable that 11 States unanimously of a contrary opinion should be controuled by this small majority when 12 were present; & yet such would be the operation of the rule, if 11 States only should at any time happen to be present, altho’ they should be unanimous in the case.
2. The operation of the rule in another respect was still far more reprehensible. In the former case the 11 States, or even 7. could extricate themselves by a repeal of the rule. In case a number less than 7 should wish to justify themselves by any particular motion, they might be precluded by such a rule: 6 States instructed by their constituents to make a particular proposition, or to enter a particular protest, might be thus fettered by a stratagem of 7 States. In the case actually depending 3 States were instructed, and two if not 3 more ready to vote with them.
3. The practice of other Assemblies did not reach this case; and if it did, the reason of it wd. be inapplicable. The restriction in other assemblies related to the same assembly & even to the same Session. Here the restriction is perpetual—In Legislative assemblies, no great inconvenience could happen from a suspension of a law for a limited time. In Executive Councils, which are involved in the Constitution of Congs. and particularly in military operations, & negociations, the vicicutude of events would often govern, and a measure improper on one day might become necessary the next.
Mr. Clarke & Mr. Varnum contended that the rules of the Congs. 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 7 States and the merits of the proposition of Mr. Madison barred by the rule, incidentally came into view. The adversaries to the latter did not maintain the validity, or rather declined studiously giving an opinion on it. They urged only the impropriety of any exposition by Congs. of their own powers & of the validity of their own acts. They were answered that the exposition must lie somewhere, and more properly with Congs. than with one of their Ministerial officers—that it was absurd to say that Congs. 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 arrest it, and prevent the dilemma which wd. ensue, of either recognising an unconstitutional proceeding, or of quarrelling with the King of Spain, that Congs. had frequently asserted & 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 & vindication of their constitutional powers:6 that in the vote itself; the entry “so it was resolved in the affirmative,” asserted it to be valid & constitutional; the vote of 7 States when 9 were reqd. being otherwise to be entered like a vote of 6 States in the negative.7 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.
Mr. K. 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 7 States for yielding the Missippi—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.8
1. New Jersey and North Carolina, as well as Virginia, had instructed their delegates in Congress to maintain the right of the U.S. to the navigation of the Mississippi (JM to James Madison, Sr., 1 Apr. 1787 and n. 3).
2. Jay’s report on the state of negotiations, dated 11 Apr., was read in Congress on 12 Apr. (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXII, 184–89).
3. On 29 Aug. 1786 the clause in Jay’s instructions stipulating the right of the U.S. to the navigation of the Mississippi was repealed (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXI, 595–96).
4. By Article IX. “The United States in Congress assembled shall never … enter into any treaties or alliances,… unless nine States assent to the same.”
5. King had proposed this rule on 31 Aug. 1786 to prevent the southern states from renewing their attempts to reinstate the restrictive clause on the Mississippi in Jay’s instructions (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXI, 609, 621; Monroe to JM, 1 Sept. 1786 and n. 3).
6. After his report on infractions of the peace treaty with Great Britain was taken up by Congress on 20 and 21 Mar. 1787, Jay drafted a letter to the states, which Congress approved on 13 Apr. The letter urged each state to pass an act repealing all laws repugnant to the treaty and contained a forceful statement of congressional sovereignty in the area of foreign affairs (Notes on Debates, 20 and 21 Mar. 1787; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXII, 124–25, 177–84).
7. The words beginning with “the vote of 7 States” to this point appear to have been added by JM at some later time.
8. At a later time someone added several exclamation points at the close of this sentence.