# Debates in the Several State Conventions/Volume 5/Congress Mar. 1787

Layout 4
Philadelphia: Lippincott, pages 97–102
​Nothing noted till
Tuesday, March 13.
Colonel GRAYSON and Mr. CLARK having lately moved to have the military stores at Springfield, in Massachusetts, removed to some place of greater security, the motion was referred to the secretary at war, who this day reported against the same, as his report will show. No opposition was made to the report, and it seemed to be the general sense of Congress that his reasons were satisfactory. The movers of the proposition, however, might suppose the thinness of Congress (eight states only being present) to bar any hope of successful opposition.
Memorandum.—Called with Mr. Bingham to-day on Mr. Guardoqui, and had a long conversation touching the western country, the navigation of the Mississippi, and commerce, as these objects relate to Spain and the United States. Mr. Bingham opened the conversation with intimating, that there was reason to believe the western people were exceedingly alarmed at the idea of the projected treaty which was to shut up the Mississippi, and were forming committees of correspondence, &c., for uniting their councils and interests. Mr. Guardoqui, with some perturbation, replied, that, as a friend to the United States, he was sorry for it, for they mistook their interest; but that, as the minister of Spain, he had no reason to be so. The result of what fell in the course of the conversation from Mr. Madison and Mr. Bingham was, that it was the interest of the two nations to live in harmony; that if Congress were disposed to treat with Spain on the ground of a cession of the Mississippi, it would be out of their power to enforce the treaty; that an attempt would be the means of populating the western country with additional rapidity; that the British had their eye upon that field, would countenance the separation of the western from the eastern part of North America, promote the settlement of it, and hereafter be able to turn the force springing up in that quarter against Spanish America, in cooperation with their naval armaments; that Spain offered nothing in fact to the United States in the commercial scale which she did not grant to all the other nations from motives of interest.
Mr. Guardoqui would not listen to the idea of a right to the navigation of the Mississippi by the United States, contending, that the possession of the two banks at the mouth shut the door against any such pretension. Spain never would give up this point. He lamented that he had been here so long without effecting any thing, and foresaw that the consequences would be very disagreeable.
What would those consequences be? He evaded an answer by repeating general expressions. Spain could make her own terms, he said, with Great Britain. He considered the commercial connection proposed as entirely in favor of the United States, and that in a little time the ports of Spain would be shut against fish. He was asked, whether against all fish, or only against fish from the United States. From all places not in treaty, he said, with Spain. Spain would act according to her own ideas. She would not be governed by other people's ideas of her interest.
He was very sorry for the instructions passed by Virginia; he foresaw bad consequences from them. He had written to soften the matter as well as he could, but that troops and stores would certainly reinforce New Orleans in consequence of the resolutions.
He had not conferred at all with the minister of foreign affairs since October, and did not expect to confer again. He did not expect to remain much longer in America. He wished he might not be a true prophet; but it would be found that we mistook our interest, and that Spain would make us feel the vulnerable side of our commerce by abridging it in her ports.
With an air of ostensible jocoseness, he hinted that the people of Kentucky would ​make good Spanish subjects, and that they would become such for the sake of the privilege annexed to that character.
He seemed to be disposed to make us believe that Spain and Britain understood one another; that he knew the views of Great Britain in holding the western posts; and that Spain had it in her power to make Great Britain bend to her views. He affected a mysterious air on this point, which only proved that he was at a loss what to say to the probability and tendency of a connection between Great Britain and the western settlements, in case the Mississippi should be given up by Congress.
He intimated that Spain could not grant any inlet of the American trade by treaty; but that, in case of a treaty, trade through the Mississippi, as well as other channels, would be winked at.
In speaking of the Mississippi and the right of Spain, he alluded to the case of the Tagus, which Spain had never pretended to a right of navigating through Portugal. It was observed to him, that, in estimating the rights of nations in such cases, regard must be had to their respective proportions of territory on the river. Suppose Spain held only five acres on each side at the mouth of the Mississippi; would she pretend to an exclusive right in such case? He said, that was not the case: Spain had a great proportion. How much? After some confusion and hesitation, he said, she claimed at least—as far as the Ohio. We smiled, and asked how far eastwardly from the Mississippi? He became still more at a loss for an answer, and turned it off by insinuating that he had conversed on that matter with the secretary of foreign affairs.
He was reminded of the doctrine maintained by Spain, in 1608, as to the Scheldt. He seemed not to have known the fact, and resolved it into some political consideration of the times.
He was asked, whether the partition of the British empire could deprive this part of it of the rights appertaining to the king of Great Britain as king of this country; and even whether the rupture of Great Britain and Spain could deprive, in justice, the United States of rights which they held under the treaty of 1763, whilst they remained a part of the British empire; whether, in case no such rupture had happened, the treaty between Spain and that part of the empire would have been dissolved by the revolution; &c. &c. He did not seem well to understand the principles into which such questions resolved themselves, and gave them the go-by referring the claim of Spain principally to her conquests of the British possessions in North America.
He betrayed strongly the anxiety of Spain to retard the population of the western country; observing, that whenever sufficient force should arise therein, it would be impossible for it to be controlled; that any conciliating measures that might be taken now would have little effect on their temper and views fifty or a hundred years hence, when they should be in force.
When we rose to take leave, he begged us to remember what he had said as to the inflexibility of Spain on the point of the Mississippi, and the consequences to America of her adherence to her present pretensions.
Nothing noted till
Tuesday, March 20.
Mr. Jay's report on the treaty of peace taken up.
Mr. YATES objected to the first resolution, which declares the treaty to be a law of the land. He said the states, or at least his state, did not admit it to be such until clothed with legal sanction. At his request he was furnished with a copy of the resolution, for the purpose of consulting such as he might choose.
Wednesday, March 21.
The subject of yesterday resumed.
Mr. YATES was now satisfied with the resolutions as they stood. The words "constitutionally made," as applied to the treaty, seemed to him, on consideration, to qualify sufficiently the doctrine on which the resolution was founded.
The second and third resolutions, urging on the states a repeal of all laws contravening the treaty, (first, that they might not continue to operate as violations of it, secondly, that questions might be avoided touching their validity,) underwent some criticisms and discussions.
Mr. VARNUM and Mr. MITCHELL thought they did not consist with the first, ​which declared such laws to be void, in which case they could not operate as violations.
Mr. MADISON observed, that a repeal of those contravening laws was expedient, and even necessary, to free the courts from the bias of their oaths, which bound the judges more strongly to the state than to the federal authority. A distinction too, he said, might be started possibly between laws prior and laws subsequent to the treaty; a repealing effect of the treaty on the former not necessarily implying the nullity of the latter. Supposing the treaty to have the validity of a law only, it would repeal all antecedent laws. To render succeeding laws void, it must have more than the mere authority of a law. In case these succeeding laws, contrary to the treaty, should come into discussion before the courts, it would be necessary to examine the foundation of the federal authority, and to determine whether it had the validity of a constitution paramount to the legislative authority in each state. This was a delicate question, and studiously to be avoided, as it was notorious that, although in some of the states the Confederation was incorporated with, and had the sanction of, their respective constitutions, yet in others it received a legislative ratification only, and rested on no other basis. He admitted, however, that the word "operate" might be changed for the better, and proposed, in its place, the words "be regarded," as violations of the treaty,—which was agreed to without opposition.
Mr. KING, in the course of the business, observed, that a question had been raised in New York whether stipulations, as they might affect citizens only, and not foreigners, could restrain the states from legislating with respect to the former; and supposed that such stipulations could not.
The resolutions passed unanimously.
Nothing till
Friday, March 23.
The report for reducing salaries agreed to, as amended, unanimously. The proposition for reducing the salary of the secretary of foreign affairs to $3000 was opposed by Mr. KING and Mr. MADISON, who entered into the peculiar duties and qualifications required in that office, and its peculiar importance. Mr. MITCHELL and Mr. VARNUM contended, that it stood on a level with the secretaryship to Congress. The yeas and nays were called on the question, and it was lost. A motion was then made to reduce the salary of $4000 to $3500. Mr. CLARK, who had been an opponent to any reduction, acceded to this compromise. Mr. King suffered his colleague to vote in the affirmative. There being six states for reducing lo $3500, and Mr. CARRINGTON being on the same side, in opposition to Mr. GRAYSON, Mr. MADISON gave up his opinion to so great a majority, and the resolution for $3500 passed. The preceding yeas and nays on the motions for reducing to $3000 were then withdrawn, and no entry made of them. It seemed to be the general opinion that the salary of the secretary at war was disproportionately low, and ought to be raised. The committee would have reported an augmentation, but conceived themselves restrained by their commission, which was to reduce, not to revise, the civil list.
Nothing of consequence till
Wednesday, March 28.
Mr. KING reminded Congress of the motion on the 19th of February for discontinuing the enlistments, and intimated that the state of things in Massachusetts was at present such that no opposition would now be made by the delegation of that state. A committee was appointed, in general, to consider the military establishment, and particularly to report a proper resolution for stopping the enlistments.
The Virginia delegates laid before Congress sundry papers from the executive of that state relating to the seizure of Spanish property by General Clark, and the incendiary efforts on foot in the western country against the Spaniards, &c. No comment was made on them, nor any vote taken.
Thursday, March 29.
The committee appointed to confer with the treasury board on the great business of a fiscal settlement of the accounts of the United States reported that they be discharged, and the board instructed to report an ordinance. Mr. KING, in ​explanation said, that it was the sense of the committee and of the treasury board both, that commissioners should be appointed with full and final powers to decide on the claims of the states against the Union, &c. The report was agreed to nem. con.
Sundry papers from the Illinois, complaining of the grievances of that country, which had arrived by a special express, were laid before Congress by the president, and committed.
Mr. MITCHELL, from Connecticut, observed, that the papers from Virginia communicated yesterday were of a very serious nature, and showed that we were in danger of being precipitated into disputes with Spain, which ought to be avoided if possible; and moved that these papers might be referred to the committee on the Illinois papers, which was done without opposition; Mr. KING only observing, that they contained mere information, and did not in his view need any step to be taken on them.
The Virginia delegates communicated to Mr. Guardoqui the proceedings of the executive relative to Clark's seizure of Spanish property, at which he expressed much regret as a friend to the United States, though, as a Spanish minister, he had little reason to dread the tendency of such outrages. The communication was followed by a free conversation on the western territory and the Mississippi. The observations of the delegates tended to impress him—first, with the unfriendly temper which would be produced in the western people, both against Spain and the United States, by a concerted occlusion of that river; secondly, with the probability of throwing them into the arms of Great Britain; thirdly, of accelerating the population of that country, after the example of Vermont; fourthly, the danger of such numbers under British influence, as well to Spanish America as to the Atlantic States; fifthly, the universal opinion of right in the United States to the free use of the river; sixthly, the disappointment of the people of America at an attempt in Spain to make their condition worse, as citizens of an independent state, in amity and lately engaged in a common cause, than as subjects of a formidable and unfriendly power; seventhly, the inefficiency of an attempt in Congress to fulfil a treaty for shutting the Mississippi, and the folly of their entering into such a stipulation; eighthly, that it would be wise in Spain to foresee" and provide for events that could not be controlled, rather than to make fruitless efforts to prevent or procrastinate them.
Mr. Guardoqui reiterated his assertion that Spain would never accede to the claim of the United States to navigate the river; secondly, urged that the result of what was said was, that Congress could enter into no treaty at all; thirdly, that the trade of Spain was of great importance, and would certainly be shut against the United States,—affecting to disregard the remark that, if Spain continued to use fish, flour, &c., her interest would restrain her from shutting her ports against the American competition; fourthly, he signified that he had observed the weakness of the Union, and foreseen its probable breach; that he lamented the danger of it, as he wished to see it preserved and strengthened, which was more than France or any other nation in Europe did. No reply was made to this remark. The sincerity of his declaration as to his own wishes was not free from suspicion. Fifthly, he laid much stress on the service Spain had rendered the United States during the struggle for their independence, considering it as laying them under great obligations. The reality of the service was not denied; but he was reminded of the interest Spain had in dividing a power which had given the law to the house of Bourbon, and compelled Spain to relinquish, as he said, the exclusive use of the Mississippi. Sixthly, in answer to the remark that Spain was for putting the United States on a worse footing than they stood on as British subjects, he not only mentioned the necessity which had dictated the treaty of 1763, but contended that the recovery of West Florida made a distinction in the case. It was observed to him that, as the navigable channel of the Mississippi ran between the island and the western shore Spain had the same pretext for holding both shores when Florida was a British colony as since. He would neither accede to the inference nor deny the fact. Seventhly, he intimated, with a jocular air, the possibility of the western people becoming Spanish subjects; and, with a serious one, that such an idea had been ​brought forward to the king of Spain by some person connected with the western country, but that his majesty's dignity and character could never countenance it. It was replied, that that consideration was no doubt a sufficient obstacle, but it was presumed, that such subjects would not be very convenient to Spain. It would be much more for the interest of Spam that they should be friendly neighbors than refractory subjects. It did not appear that he viewed the matter in a different light. Eighthly, he disclaimed his having ever assented to, or approved of, any limited occlusion of the Mississippi, though in a manner that did not speak a real inflexibility on that point. Ninthly, it appeared clearly that the check to the western settlements was a favorite object, and that the occlusion of the Mississippi was considered as having that tendency. Tenthly, the futility of many of his arguments and answers satisfied the delegates that they could not appear convincing to himself, and that he was of course pursuing rather the ideas of his court than his own.
Friday, March 30.
Mr. Jay's report in favor of the admission of Phineas Bond as British consul for the Middle States, was called for by Mr. CADWALADER. Mr. MADISON said, he was far from being satisfied of the propriety of the measure; he was a friend in general to a liberal policy, and admitted that the United States were more in the wrong, in the violation of the treaty of peace, than Great Britain; but still the latter was not blameless. He thought, however, the question turned on different considerations: first, the facility of the United States in granting privileges to Great Britain without a treaty of commerce, instead of begetting a disposition to conclude such a treaty, had been found, on trial, to be made a reason against it; secondly, the indignity of Great Britain in neglecting to send a public minister to the United States, notwithstanding the lapse of time since Mr. Adams's arrival there, gave them no title to favors in that line; and self-respect seemed to require that the United States should at least proceed with distrust and reserve.
Mr. GRAYSON thought, as the secretary had done, that it would be good policy to admit Mr. Bond, and that it could not be decently, and without offence, refused after the admission of Mr. Temple.
Mr. CLARK said, he was at first puzzled how to vote, as he did not like the admission proposed, on one hand, and, on the other, thought it not decent to refuse it after the admission of Mr. Temple. On reflecting, however, that Mr. Temple was admitted at a time when hopes were entertained of a commercial treaty, which had since vanished, and that the question might be postponed generally without being negatived, he should accede to the idea of doing nothing on the subject.
Mr. VARNUM animadverted on the obnoxious character of Mr. Bond, and conceived that alone a sufficient reason for not admitting him. The postponement was agreed to without any overt dissent except that of Mr. Grayson.
The delegates from North Carolina communicated to Congress sundry papers conspiring with the other proofs of discontent in the western country at the supposed surrender of the Mississippi, and of hostile machinations against the Spaniards.
It was ordered that they should be referred to the secretary of foreign affairs for his information. It was then moved that the papers relative to the same subjects from Virginia, yesterday referred to a committee, should, after discharging the committee, be referred to the office of foreign affairs. Mr. CLARK proposed to add "to report." This was objected to by Mr. KING, and brought on some general observations on the proceedings of Congress in the affair of the Mississippi. It was at length agreed that the reference be made without an instruction to report. Mr. PIERCE then observed, that it had been hinted by Mr. Madison, as proper, to instruct the secretary of foreign affairs to lay before Congress the state of his negotiation with Mr. Guardoqui, and made a motion to that effect, which was seconded by several at once.
Mr. KING hoped Congress would not be hurried into a decision on that point, observing that it was a very delicate one. But he did not altogether like it; and yet it was of such a nature that it might appear strange to negative it. He desired that it might at least lie over till Monday.
Mr. MADISON concurred in wishing the same, being persuaded that the propriety of the motion was so clear, that nothing could produce dissent, unless it were forcing members into an unwilling decision.
​The motion was withdrawn, with notice that it would be renewed on Monday next.