In Convention, Richmond, Friday, June 13, 1788
Mr. NICHOLAS urged that the Convention should either proceed according to the original determination, clause by clause, or rescind that order, and go into the Constitution at large.
Mr. HENRY opposed the motion as to taking up the subject clause by clause. He thought it ought to be considered at large. He observed that, among a great variety of subjects, the business of the Mississippi had taken up a great deal of time. He wished, before they should take leave of that subject, that the transactions of Congress relative to the navigation of that river should be communicated to the Convention, in order that they might draw their conclusions from the best source. For this purpose, he hoped that those gentlemen who had been then in Congress, and the present members of Congress who were in Convention, would communicate what they knew on the subject. He declared that he did not wish to hurt the feelings of the gentlemen who had been in Congress, or to reflect on any private character; but that, for the information of the Convention, he was desirous of having the most authentic and faithful account of facts.
Mr. NICHOLAS had no objection to Mr. Henry’s proposal.
Mr. MADISON then declared that, if the honorable gentleman thought that he had given an incorrect account of the transactions relative to the Mississippi, he would, on a thorough and complete investigation, find himself mistaken; that he had his information from his own knowledge, and from a perusal of the documents and papers which related to those transactions; that it had always been his opinion that the policy which had for its object the relinquishment of that river was unwise, and the mode of conducting it was still more exceptionable. He added, that he had no objection to have every light on the subject that could tend to elucidate it.
Mr. NICHOLAS hoped that, after the information should be given respecting that river, they would confine themselves to the order of the house.
The Convention then resolved itself into a committee of the whole Convention, to take into further consideration the proposed Constitution, and more particularly for the purpose of receiving information concerning the transactions of Congress relative to the Mississippi.Mr. WYTHE in the chair.
On motion, the acts and resolutions of Assembly relative to the Mississippi were read.
Mr. LEE (of Westmoreland) then, in a short speech, related several congressional transactions respecting that fiver, and strongly asserted that it was the inflexible and determined resolution of Congress never to give it up; that the secretary of foreign affairs, who was authorized to form a treaty with Gardoqui, the Spanish ambassador, had positive directions not to assent to give up that navigation, and that it never had been their intention or wish to relinquish it; that, on the contrary, they earnestly wished to adopt the best plan of securing it.
After some desultory conversation, Mr. MONROE spoke as follows: Mr. Chairman, my conduct respecting the transactions of Congress, upon this interesting subject, since my return to the state, has been well known to many worthy gentlemen here. I have often been called upon before this, in a public line, and particularly in the last Assembly, whilst I was present, for information of these transactions; but have heretofore declined it, and for reasons that were held satisfactory. Being amenable, upon the principles of the federal compact, to the legislature for my conduct in Congress, it cannot be doubted, if required, it was my duty to obey their directions; but that honorable body thought it best to dispense with such demand. The right in this assembly is unquestionably more complete, having powers paramount to that; but even here I could wish it had not been exerted, as I understand it to be, by going into committee for that purpose. Before, however, I enter into this subject, I cannot but observe it has given me pain to hear it debated, by honorable gentlemen, in a manner that has appeared not altogether free from exception. For they have not gone into it fully, and given a proper view of the transactions in every part, but of those only which preceded and were subsequent to that which has been the particular object of inquirya conduct that has Seemed so much calculated to make an impression favorable to their wishes in the present instance. But, in making this observation, I owe it to those gentlemen to declare that it is my opinion such omission has proceeded not from intention, but their having forgotten facts, or from some cause not obvious to me, and which I make no doubt they will readily explain.
The policy of this state respecting this river has always been the same. It has contemplated but one objectthe opening it for the use of the inhabitants whose interest depended on it; and in this she has, in my opinion, shown her wisdom and magnanimity. I may, I believe, with propriety say that all the measures that have at any time been taken by Congress for that purpose were adopted at the instance of this state. There was a time, it is true, sir, when even this state in some measure abandoned the object, by authorizing this cession to the court of Spain. But let us take all circumstances rate view, as they were at that time, and I am persuaded it will by no means show a departure from this liberal and enlightened system of policy, although it may manifest an accommodation to the exigencies which pressed on us at the time. The Southern States were overrun, and in possession of the enemy. The governments of South Carolina and Georgia were prostrate, and opposition there an end. North Carolina made but a feeble resistance; and Virginia herself was greatly harassed by the enemy in force at that time in the heart of the country, and by impressments for her own and the defence of the Southern States. In addition to this, the finances of the United States were in a deplorable condition, if not totally exhausted; and France, our ally, seemed anxious for peace; and, as the means of bringing the war to a more happy and speedy conclusion, the object of. this cession was the hopes of uniting Spain in it, with all her forces, If I recollect aright, me, at this moment the minister of the United States at the court of Madrid, informed Congress of the difficulty he found in prevailing upon that court to acknowledge our independence, or take any measure in our favor: and suggested the jealousy with which it viewed our settlements in the western country, and the probability of better success provided we would cede the navigation of this river, as the consideration. The latter circumstances were made known to the legislature, and they had their weight. All inferior objects must yield to the safety of society itself. A resolution passed to that effect. An act of Congress likewise passed, and the minister of the United States had full authority to relinquish this valuable right to that court, upon the condition above stated. But what was the issue of this proposition? Was any treaty made with Spain that obtained an acknowledgment of our independence, although at war with Great Britain, and such acknowledgment would have cost her nothing? Was a loan of money accomplished? In short does it appear that even Spain herself thought it an object of any importance? So soon as the war ended, this resolution was rescinded. The power to make such a treaty was revoked. So that this system of policy was departed from, only for a short time, for the most important object that can be conceived, and resumed again as soon as it possibly could be.
After the peace, it became the business of Congress to investigate the relation of these states to the different powers of the earth; in a more extensive view than they had hitherto done, and particularly in the commercial line, and to make arrangements for entering into treaties with them on such terms as might be mutually beneficial for each party. As the result of the deliberations of that day, it was resolved, “That commercial treaties be formed, if possible, with said powers, (those of Europe in particular, Spain included,) upon similar principles, and three commissioners, Mr. Adams, Mr. Franklin, and Mr. Jefferson, be appointed for that purpose.” So that an arrangement for a treaty of commerce with Spain had already been taken, Whilst these powers were in force, a representative from Spain arrived, authorized to treat with the United States on the interfering claims of the two nations respecting the Mississippi, and the boundaries, and other concerns wherein they were respectively interested. A similar commission was given to the honorable the secretary of foreign affairs, on the part of the United States, with these ultimata: “That he enter into no treaty, compact, or convention whatever, with the said representative of Spain, which did not stipulate our right to the navigation of the Mississippi, and the boundaries as established in our treaty with Great Britain.” And thus the late negotiation commenced, and under auspices, as I supposed, very favorable to the wishes of the United States; for Spain had become sensible of the propriety of cultivating the friendship of the states. Knowing our claim to the navigation of this river, she had sent a minister hither principally to treat on that point; and the time would not be remote when, under the increasing population of that country, the inhabitants would be able to open it without our assistance or her consent. These circumstances being considered, was it not presumable she intended to make a merit of her concession to our wishes, and to agree to an accommodation upon that subject, that would not only be satisfactory, but highly pleasing to the United States?
But what was the issue of this negotiation? How was it terminated? Has it forwarded the particular object in view, or otherwise promoted the interest and the harmony of the states, or any of them? Eight or ten months elapsed without any communications of its progress to Congress. At length a letter was received from the secretary, stating that difficulties had arisen in his negotiation with the representative of Spain, which, in his opinion, should be so managed, as that even their existence should remain a secret for the present; and proposing that a committee be appointed, with full power to direct and instruct him in every case relative to the proposed treaty. As the only ultimata in his instructions respected the Mississippi and the boundaries, it readily occurred that these occasioned the difficulties alluded to, and were those he wished to remove. And for many reasons this appeared, at least to me, an extraordinary proposition. By the Articles of Confederation, nine states are necessary, to enter into treaties. The instruction is the foundation of the treaty; for, if it is formed agreeably thereto, good faith requires that it be ratified. The practice of Congress hath also been always, I believe, in conformity to this idea. The instructions under which our commercial treaties have been made were carried by nine states. Those under which the secretary now acted were passed by.nine states. The proposition then would be, that the powers which, under the Constitution, nine states only were competent to, should be transferred to a committee, and the object, thereby to disengage himself from the ultimata already mentioned in his existing instructions. In this light the subject was taken up, and on these principles discussed. The secretary, Mr. Jay, being at length called before Congress to explain the difficulties mentioned in his letter, presented to their view the project of a treaty of commerce, containing, as he supposed, advantageous stipulations in our favor, in that line; in consideration for which, we were to contract to forbear the use of the navigation of the River Mississippi for the term of twenty-five or thirty years; and he earnestly advised our adopting it.
The subject now took a decided form: there was no further ambiguity in it; and we were surprised, for reasons that have been already given, that he had taken up the subject of commerce at all. We were greatly surprised that it should, form the, principal object of the project, and that partial or temporary sacrifice of that interest, for the advancement of which the negotiation was set on foot, shouldbe the consideration proposed to be given for it. But the honorable secretary urged that it was necessary to stand well with Spain; that the commercial project was a beneficial one, and should not be neglected; that a stipulation to forbear the use contained an acknowledgment, on her part, of the right in the United States; that we were in no condition to take the river, and therefore gave nothing for it; with other reasons, which, perhaps, I have forgotten; for the subject in detail has nearly escaped my memory. We differed with the honorable secretary almost in every respect. We admitted, indeed, the propriety of standing well with Spain, but supposed we might accomplish that end at least on equal terms. We considered the stipulation to forbear the use as a species of barter that should never be countenanced in the Councils of the American states, since it might tend to the destruction of society itself; for a forbearance of the use of one river might lead to more extensive consequencesto the Chesapeake, the Potomac, or any other of the rivers that emptied into it. In short, that the councils of the confederacy should be conducted with more magnanimity and candorthey should contemplate the benefit of all parts upon common principles, and not the sacrifice of one part for that of another. There appeared to us a material difference between stipulating by treaty to forbear the use, and not being able to open the river: the former would be considered by the inhabitants of the western country as an act of hostility; the latter might be justified by our inability. And with respect to the commercial part of the project, we really thought it an ill-advised one, on its own merits solely.
Thus was this project brought before Congress, and, so far as I recollect, in this form, and upon these principles. It was subject of tedious and lengthy discussion in that honorable body. Every distinct measure that was taken I do not remember, nor do I suppose it of consequence. I have shown the outlines of the transaction, which is, if I apprehend rightly, all that the committee wish to possess. The communications of the secretary were referred to a committee of the whole house. The delegates of the seven easternmost states voted that the ultimatum in the secretary’s instructions be repealed; which was reported to the house, and entered on the journal, by the secretary of Congress, that the question was Carried. Upon this entry, a constitutional question arose to this effect: “Nine states belong necessary, by the federal Constitution, to give an instruction, and seven having repealed a part of an instruction so given, for the formation of a treaty with a foreign power, so as to alter its import, and authorize, under the remaining part thereof, the formation of a treaty, on principles altogether different from what the said instruction originally contemplated,can such remaining part be considered as in force, and constitutionally obligatory?” We pressed on Congress for a decision on this point often, but without effect.
Notwithstanding this, I understood it was the intention of the secretary to proceed, and conclude a treaty, in conformity to his project, with the minister of Spain. In this situation I left Congress. What I have since heard belongs not to me to discover. Other gentlemen have more complete information of this business, in the course it has taken, than I can possibly have been able to obtain; for having done my duty whilst there, I left it for others who succeeded me to perform theirs, and I have made but little further inquiry respecting it. The animated pursuit that was made of this object, required, and, I believe, received, as firm an opposition. The Southern States were on their guard, and warmly opposed it. For my part, I thought it my duty to use every effort in Congress for the interest of the Southern States. But so far as depended on me, with my official character it ceased. With many of those gentlemen, to whom I always considered it as my particular misfortune to be opposed, I am now in habits of correspondence and friendship, and I am concerned for the necessity which has given birth to this relation.
Whether the delegates of those states spoke the language of their constituentswhether it may be considered as the permanent interest of such states to depress the growth and increasing population of the western countryare points which I cannot pretend to determine. I must observe, however, that I always supposed k would, for a variety of reasons, prove injurious to every part of the confederacy. These are well understood, and need not be dilated on here. If, however, such should be the interest of seven states, let gentlemen contemplate the consequences in the operation of the government, as it applies to this subject. I have always been of opinion, sir, that the American states, as to all national objects, had, in every respect, a common interest, Few persons would be willing to bind them together by a stronger or more indissoluble bond, or give the national government more powers, than myself. I only wish to prevent it from doing harm, either to states or individuals; and the rights and interests of both, in a variety of instances in which they are now left unprotected, might, in my opinion, be better guarded. If I have mistaken any facts, honorable gentlemen will correct me. If I have omitted any, as it has not been intentional, so I shall be happy with their assistance to supply the defect.
Mr. Monroe added several other observations, the purport of which was, that the interest of the western country would not be as secure, under the proposed Constitution, as under the Confederation; because, under the latter system, the Mississippi could not be relinquished without the consent of nine stateswhereas, by the former, he said, a majority, or Seven states, could yield it. His own opinion was, that it would be given up by a majority of the senators present in the Senate, with the President, which would put it in the power of less than seven states to surrender it; that the Northern States were inclined to yield it; that it was their interest to prevent an augmentation of the southern influence and power; and that, as mankind in general, and states in particular, were governed by interest, the Northern States would not fail of availing themselves of the opportunity, given them by the Constitution, of relinquishing that river, in order to depress the western country, and prevent the southern interest from preponderating.
Mr. GRAYSON. Mr. Chairman, the honorable gentleman was mistaken when he supposed that I said seven states had absolutely voted to surrender the navigation of the Mississippi. I only spoke of the general disposition of the states, which I alleged to be actuated by interest; that consequently the Carrying states were necessarily inclined against the extension of the interest and influence of the productive states; and that, therefore, they would not favor any measure to extend the settlements to the westward.
I wished not to enter into this discussion, for the reasons mentioned by my honorable friend. Secrecy was required on this subject. I told Congress that imposing secrecy, on such a great occasion, was unwarrantable. However, as it was not given up, I conceived myself tinder some restraint. But since it has come before the committee, and they desire to develop the subject, I shall stand excused for mentioning what I know of it. My honorable friend gave a very just account of it, when he said that the Southern States were on their guard, and opposed every measure tending to relinquish or waive that valuable right. They would not agree to negotiate, but on condition that no proposition whatever should be made to surrender that great right. There was a dispute between this country and Spain, who claimed one half of Georgia, and one half of Kentucky, or, if not that proportion, a very considerable part, as well as the absolute and exclusive navigation of the Mississippi. The Southern States thought that the navigation of the Mississippi should not be trusted to any hands but those in which the Confederation had placed the right of making treaties. That system required the consent of nine states for that purpose. The secretary for foreign affairs was empowered to adjust the interfering claims of Spain and the United States with the Spanish minister; but, as my honorable friend said, with an express prohibition of entering into any negotiation that would lead to the surrender of that river. Affairs continued in this state for some time. At length a proposition was made to Congress, not directly, but by a side wind. The first proposal was, to take off the fetters of the secretary. When the whole came out, it was found to be a proposal to cede the Mississippi to Spain for twenty-five or thirty years, (for it was in the disjunctive,) in consideration of certain commercial stipulations. In support of this proposal, it was urged that the right was in him who surrendered; and that their acceptance of a temporary relinquishment was an acknowledgment of our right, (which would revert to us at the expiration of that period,) that we could not take by war: that the thing was useless to us, and that it would be wise and politic to give it up, as we were to receive a beneficial compensation for that temporary cession. Congress, after a great deal of animosity, came to a resolution which, in my opinion, violated the Confederation. It was resolved, by seven states, that the prohibition in the secretary’s instruction should be repealed; whereby the unrepealed part of his instructions authorized him to make a treaty, yielding that inestimable navigation, although, by the Confederation, nine states were necessary to concur in the formation of a treaty! How, then, could seven states constitutionally adopt any measure, to which, by the Constitution, nine states alone were competent? It was entered on the journals and transmitted to the secretary of foreign affairs, for his direction in his negotiation with the Spanish minister.
If I recollect rightly, by the law of nations, if a negotiator makes a treaty, in consequence of a power received from a sovereign authority, non-compliance with his stipulations is a just cause of war. The opposition suggested (whether wrong or not let this house determine) that this was the case; that the proceedings were repugnant to the principles and express letter of the Constitution; and that, if the compact which the secretary might form with the Spanish minister should not he complied with, it would be giving Spain a just cause of quarrel; so that we should be reduced to the dilemma of either violating the Constitution by a compliance, or involving us in a war by a non-compliance. The opposition remonstrated against these transactions, (and their remonstrance was entered on the journal,) and took every step for securing this great national right. In the course of the debates in Congress on this subject, which were warm and animated, it was urged that Congress, by the law of nations, had no right, even with the consent of nine states, to dismember the empire, or relinquish any part of the territory, appertaining to the aggregate society, to any foreign power. Territorial dismemberment, or the relinquishment of any other privilege, is the highest act of a sovereign power. The right of territory has ever been considered as most sacred, and ought to be guarded in the most particular and cautious manner. Whether that navigation be secure on this principle, by the new Constitution, I will not pretend to determine. I will, however, say one thing. It is not well guarded under the old system. A majority of seven states are disposed to yield it. I speak not of any particular characters. I have the charity to suppose that all mankind act on the best motives. Suffice it for me to tell direct and plain facts, and leave the conclusion with this honorable house.
It has been urged, by my honorable friend on the other side, (Mr. Madison,) that the Eastern States were averse to surrender it during the war, and that the Southern States proposed it themselves, and wished to yield it. My honorable friend last up has well accounted for this disgraceful offer, and I will account for the refusal of the Eastern States to surrender it.
Mr. Chairman, it is no new thing to you to discover these reasons. It is well known that the Newfoundland fisheries and the Mississippi are balances for one another; that the possession of one tends to the preservation of the other. This accounts for the eastern policy. They thought that, if the Mississippi was given up, the Southern States would give up the right of the fishery, on which their existence depends. It is not extraordinary, therefore, while these great rights of the fishery depend on such a variety of circumstances,the issue of war, the success of negotiations, and numerous other causes,that they should wish to preserve this great counterbalance. What has been their conduct since the peace? When relieved from the apprehensions of losing that great advantage, they are solicitous of securing a superiority of influence in the national councils. They look at the true interest of nations. Their language has been, “Let us prevent any new states from rising in the western world, or they will outvote uswe shall lose our importance, and become as nothing in the scale of nations. If we do not prevent it, our countrymen will remove to those places, instead of going to sea, and we shall receive no particular tribute or advantage from them.”
This, sir, has been the language and spirit of their policy, and I suppose ever will be. The Mississippi is not secured under the old Confederation; but it is better secured by that system than by the new Constitution. By the existing system, nine states are necessary to yield it. A few states can give it away by the paper on your table. But I hope it will never be put in the power of a less number than nine states. Jersey, we are told, changed her temper on that great occasion. I believe that that mutability depended on characters. But we have lost another stateMaryland. For, from fortuitous circumstances, those states deviated from their natural characterJersey in not giving up the right of the Mississippi, and Maryland in giving it up. Whatever be their object, each departed from her natural disposition. It is with great reluctance I have said any thing on the subject, and it I have misrepresented facts, l wish to be corrected.
Mr. HENRY then arose, and requested that the honorable gentleman (Mr. Monroe) would discover the rest of the project, and what Spain was to do, on her part, as an equivalentfor the cession of the Mississippi.
Mr. MONROE. Mr. Chairman, I do not thoroughly recollect every circumstance relative to this project. But there was to be a commercial intercourse between the United States and Spain. We are to be allowed to carry our produce to the ports of Spain, and the Spaniards to have an equal right of trading hither. It was stipulated that there should be a reciprocity of commercial intercourse and benefits between the subjects of Spain and the citizens of the United States. The manufactures of Spain were to be freely imported and rended in this country, and our manufactures to be carried to Spain, &c., without obstruction; and both parties were to have mutual privileges in point of commercial intercourse and connection. This, sir, is the amount of the project of Spain, which was looked upon as advantageous to us. I thought myself that it was not. I considered Spain as being without manufacturesas the most slow in the progress of arts, and the most unwise with respect to commerce, of all nations under the sun, (in which respect I thought Great Britain the wisest.) Their gentlemen and nobles look on commerce with contempt. No man of character among them will undertake it. They make little discrimination with any nation. Their character is to shut out all nations, and exclude every intercourse with them; and this would be the case with respect to us. Nothing is given to us, by this project, but what is given to all other nations. It is bad policy, and unjustifiable, on such terms to yield that valuable right. Their merchants have great stocks in trade. It is not so with our merchants. Our people require encouragement. Mariners must be encouraged. On a review of these circumstances, I thought the project unwise and impolitic.
Mr. MADISON. Mr. Chairman, it is extremely disagreeable to me to enter into this discussion, as it is foreign to the object of our deliberations here, and may, in the opinion of some, tend to sully the reputation of our public councils. As far as my memory will enable me, I will develop the subject. We shall not differ, from one another with respect to facts: perhaps we may differ with respect to principles. I will take the liberty to observe that I was led, before, to make some observations which had no relation to the subject under consideration, as relative to the western country, to obviate suggestions of gentlemen which seemed to me to be groundless. I stated that there was a period when the Southern States were advocates for the alienation, or suspension, of the right to the Mississippi, (I will not say which,) and the Eastern States were against both. I mention this to show that there was no disposition in that part to surrender that right, or dispose of that country. I do suppose that the fishery had its influence on those states. No doubt it was the case.
For that and other reasons, they still continue against the alienation; for it might lessen the security of retaining the fishery. From the best information, it never was the sense of the people at large, or the prevailing character of the Eastern States, to approve of the measure. If interest, sir, should continue to operate on them, I humbly conceive that they will derive more advantage from holding the Mississippi than even the Southern States; for, if the carrying business be their natural province, how can it be so much extended and advanced as by giving encouragement to agriculture in the western country, and having the emolument of carrying their produce to market? The carrying trade must depend on agriculture, for its support, in a great measure. In what place is agriculture so capable of improvement and great extension as in the western country? But whatever considerations may prevail in that quarter, or any other, respecting their interest, I think we may fairly suppose that the consideration which the honorable member mentioned, and which has been repeated,I mean the emigrations which are going on to the westward,must produce the same effect as to them which it may produce with respect to us. Emigrations are now going on from that quarter, as well as from this state.
I readily confess that neither the old Confederation nor the new Constitution involves a right to give up the navigation of the Mississippi. It is repugnant to the taw of nations. I have always thought and said so. Although the right be denied, there may be emergencies which will make it necessary to make a sacrifice. But there is a material difference between emergencies of safety in time of war, and those which may relate to mere commercial regulations. You might, one solid grounds, deny, in peace, what you give up in war. I do not conceive, however, that there is that extreme aversion, in the minds of the people of the Eastern States, to emigrate to the westward, which was insinuated by my honorable friend. Particular citizens, it cannot be doubted, may be averse to it; but it is the sense of the people at large which will direct the public measures. We find, from late arrangements made between Massachusetts and New York, that a very considerable country to the westward of New York was disposed of to Massachusetts, and by Massachusetts to some individuals, to conduct emigrants to that country.
There were seven states who thought it right to give up the navigation of the Mississippi, for twenty-five years, for several reasons which have been mentioned. As far as I can recollect, it was nearly as my honorable friend said. But they had no idea of absolutely alienating it. I think one material consideration which governed them was, that there were grounds of serious negotiation between Great Britain and Spain, which might bring on a coalition between those nations, which might enable them to bind us on different sides, permanently withhold that navigation from us, and injure us in other respects materially. The temporary cession, it was supposed, would fix the permanent right in our favor, and prevent that dangerous coalition. It is but justice to myself to say that, however plausible the reasons urged for its temporary cession may have been, they never convinced me of its utility. I have uniformly disapproved of it, and do now.
With respect to the secretary of foreign affairs, I am intimately connected with him. I shall say nothing of his abilities, and attachment to his country. His character is established in both respects. He has given a train of reasoning which governed him in his project. If he was mistaken, his integrity and probity more than compensate for the error. I am led to think there is no settled disposition in seven states to give up that object, because New Jersey, on a further consideration of the subject, actually gave instructions to her delegates to oppose it. And what was the ground of this? I do not know the extent and particular reasons of her instructions. But I recollect that a material consideration was, that the cession of that river would diminish the value of the western country, (which was a common fund for the United States,) and would, consequently, tend to impoverish their public treasury. These, sir, were rational grounds.
Give me leave, sir,as I am upon this subject, and as the honorable gentleman has raised a question whether it be not more secure under the old than the new Constitution,to differ from him. I shall enter into the reasoning which, in my mind, renders it more secure under the new system. Two thirds of the senators present, (which will be nine states, if all attend to their duty,) and the President, must concur in every treaty which can be made. Here are two distinct and independent branches, which must agree to every treaty. Under the existing system, two thirds of the states must concur to form a treaty. But it is but one body. Gentlemen may reason and conclude differently on this subject. I own that, as far as I have any rights, which are but trivial, I would rather trust them to the new than the old government. Besides, let me observe that the House of Representatives will have a material influence on the government, and will be additional security in this respect. But there is one thing which he mentioned which merits attention. If commercial policy be a source of great danger, it will have less influence in the new system than in the old; for, in the House of Representatives, it will have little or no influence. They are drawn from the landed interest, taken from the states at large, and many of them from the western country; whereas the present members of Congress have been taken from the Atlantic side of the continent. When we calculate the dangers that may arise in any case, we judge from the rules of proportion and chances of numbers. The people at large choose those who elect the President. The weight of population will be to the southward, if we include the western country. There will then be a majority of the people in favor of this right. As the President must be influenced by the sense and interest of his electors, as far as it depends on him, (and his agency in making treaties is equal to that of the Senate,) he will oppose the cession of that navigation. As far as the influence of the representatives goes, it will also operate in favor of this right. The power of treaties is not lodged in the senators of particular states. Every state has an equal weight. If ten senators can make a treaty, ten senators can prevent one from being made. It is from a supposition that all the southern delegates will be absent, that ten senators, or two thirds of a majority, can give up this river. The possibility of absence operates equally as much against the Northern States. If one fifth of the members present think the measure erroneous, the votes of the states are to be taken upon it, and entered on the journals. Every gentleman here ought to recollect that this is some security, as the people will thereby know those who advocate iniquitous measures. If we consider the number of changes in the members of the government, we shall find it another security. But, after all, sir, what will this policy signify, which tends to surrender the navigation of the Mississippi? Resolutions of Congress to retain it may be repeated, and reechoed from every part of the United States. It is not resolutions of this sort which the people of this country wish for. They want an actual possession of the right, and protection in its enjoyment. Similar resolutions have been taken, under the existing system, on many occasions. But they have been heretofore, and will be hereafter, in my opinion, nugatory and fruitless, unless a change takes place which will give energy to the acts of the government.
I will take the liberty to touch once more on the several considerations which produced the question, because perhaps the committee may not yet thoroughly comprehend it. In justice to those gentlemen who concluded in favor of the temporary cession, I mention their reasons, although I think the measure wrong. The reasons for so doing under the old system will be done away by the new system. We could not, without national dishonor, assert our right to the Mississippi, and suffer any other nation to deprive us of it. This consideration, with others before mentioned, influenced them. I admit it was wrong. But it is sufficient to prove that they acted on principles, of integrity. Will they not be bound by honor and conscience, when we are able to enjoy and retain our right, not to give it up, or suffer it to be interrupted? A weak system produced this project. A strong system will remove the inducement. For may we not suppose it will be reversed by a change of system? I was called up to say what was its present situation. There are some circumstances within my knowledge which I am not at liberty to communicate to this house. I will not go farther than to answer the objections of gentlemen. I wish to conceal no circumstance which I can relate consistently with my duty. As to matters of fact, I have advanced nothing which I presume will be contradicted. On matters of opinion we may differ. Were I at liberty, I could develop some circumstances which would convince this house that this project will never be revived in Congress, and that, therefore, no danger is to be apprehended.
Mr. GRAYSON. Mr. Chairman, the honorable gentleman last up concluded by leaving impressions that there were some circumstances which, were he at liberty to communicate, would induce this house to believe that the matter would never be revived. Were we to exclude from facts and opinions, or were we to appeal to the resolutions of Congress, a very different conclusion would result. When I was in Congress last, there was a resolution to apologize to his Catholic Majesty for not making the treaty, and intimating that, when the situation of things was altered, it might be done. Had it not been for one particular circumstance, it would have been concluded on the terms my honorable friend mentioned. When I was last in Congress, the project was not given over. Its friends thought it would be renewed.
With respect to the Mississippi and back lands, the Eastern States are willing to relinquish that great and essential right; for they consider the consequences of governing the Union as of more importance than those considerations which he mentioned should induce them to favor it.
But, says the honorable gentleman, there is a great difference between actually giving it up altogether, and a temporary cession. If the right was given up for twenty-five years, would this country be able to avail herself of her right, and resume it at the expiration of that period? If ever the house of Bourbon should be at war with all Europe, then would be the golden opportunity of regaining it. Without this, we never could wrest it from the house of Bourbon, the branches of which always support each other.
If things continue as they are now, emigrations will continue to that country. The hope that this great national right will be retained, will induce them to go thither. But take away that hope, by giving up the Mississippi for twenty-five years, and the emigrations will cease. As interest actuates mankind, will they go thither when they know they cannot enjoy the privilege of navigating that river, or find a ready market for their produce? There is a majority of states which look forward with anxiety to the benefits of the commercial project with Spain. In the course of the Spanish negotiation, our delegation thought of a project which would be accommodated to their particular interest. It was proposed, by way of compromise, as being suitable to the interest of all the states, that the Spanish crown should make New Orleans a general depository, and that the growth of the American states should be sent down for the use of the Spanish troops; Spain being obliged to foreign nations for provisions. This was throwing out a lure to the Eastern States to carry the produce of that whole country. But this temptation did not succeed. It was thought no object in their view, when greater objects presented themselves.
It was alleged that the emigration from the Eastern States will have the same effect as emigration from this country. I know every step will be taken to prevent emigration from thence, as it will be transferring their population to the Southern States. They will coincide in no measure that will tend to increase the weight or influence of the Southern States. There is, therefore, a wide line of distinction between migrations from thence and from hence.
But we are told, in order to make that paper acceptable to the Kentucky people, that this high act of authority cannot, by the law of nations, be warrantable, and that this great right cannot be given up. I think so also. But how will the doctrine apply to America? After it is actually given away, can it be reclaimed? If nine states give it away, what will the Kentucky people do? Will Grotius and Puffendorf relieve them? If we reason what was doneif seven states attempted to do what nine states ought to have doneyou may judge of the attention which will be paid to the law of nations. Should Congress make a treaty to yield the Mississippi, that people will find no redress in the law of nations.
But, says he, Massachusetts is willing to protect emigration. When the act of Congress passed respecting the settlement of the western country, and establishing a state there, it passed in a lucky moment. I was told that that state was extremely uneasy about it; and that, in order to retain her inhabitants, lands in the province of Maine were lowered to the price of one dollar per acre. As to the tract of country conveyed by New York to Massachusetts, neither of them had a right to it. Perhaps that great line of policy, of keeping the population on that side of the continent, in contradistinction to the emigration to the westward of us, actuated Massachusetts in that transaction. There is no communication between that country and the Mississippi. The two great northern communications are by the North Rivers and by the River St. Lawrence, to the Mississippi. But there is no communication between that country, where the people of Massachusetts emigrate, and the Mississippi; nor do I believe that there ever will be one traveller from it thither.
I have a great regard for the secretary of foreign affairs. In my opinion, all America is under great obligations to him. But I differed in opinion with him.
But the Mississippi is said to be more secure under the new than the old government. It is infinitely more secure under the latter than the former, How is the fact? Seven states wished to pass an affirmative act ceding it, They repealed part of the instructions given the secretary, to enable him to conclude a compact for its cession, and wished to get nine states to agree to it. Nine states, by the Confederation, must concur in the formation of treaties. This saved it. Only seven states were willing to yield it. But, by this Constitution, two thirds of the senators present, with the President, can make any treaty. A quorum is fourteen, two thirds of which are ten. We find, then, that ten members can, at any time, surrender that great and valuable right. As seven states are willing to yield it now, how the gentleman can reason in the manner he does, I cannot conceive.
Mr. HENRY. Mr. Chairman: I hope, sir, as the honorable gentleman on my left set the example of debating the merits, that whatever may result as consequences of that example, it may not be attributed to me. I hope that I shall be indulged in offering a few words in addition to what has been said. Gentlemen may do what they will. Their reflections will have no influence on me. It is said that we are scuffling for Kentucky votes, and attending to local circumstances. But if you consider the interests of this country, you will find that the interests of Virginia and Kentucky are most intimately and vitally connected. When I see the great rights of the community in real danger, the ideal dangers which gentlemen speak of dissipate. A union with our western brethren is highly desirable, almost on any terms; a union with them, alone, can lessen or annihilate the dangers arising from that species of population of which we have been reminded in the catalogue of dangers which were dwelt upon. They are at present but few in number, but may be very numerous hereafter. If that fatal policy shall take place, you throw them into the arms of Spain. If Congress should, for abase purpose, give away this dearest right of the people, your western brethren will be ruined. We ought to secure to them that navigation which is necessary to their very existence. If we do not, they will look upon us as betrayers of their interest. Shall we appear to care less for their interest than for that of distant people? When gentlemen tell us that the change of system will render our western brethren more secure, and that this system will not betray them, they ought to prove it. When a matter which respects the great national interests of America is concerned, we expect the most decided proofs. Have they given any? Unless you keep open the Mississippi, you never can increase in number. Although your population should go on to an infinite degree, you will be in the minority in Congress; and although you should have a right to be the majority, yet so unhappily is this system of politics constituted, that you will ever be a contemptible minority. To preserve the balance of American power, it is essentially necessary that the right of the Mississippi should be secured.
But, said the honorable gentleman, the Eastern States will wish to secure their fishery, and will, therefore, favor this right. How does he draw the inference? Is it possible that they can act on that principle? The principle which led the Southern States to admit of the cession, was to avoid the most dreadful perils of war. But their difficulties are now ended by peace. Is there any thing like this that can influence the minds of the people of the north? Since the peace, those states have discovered a determined resolution to give it away. There was no similar danger to compel them to yield it. No, sir, they wished to relinquish it. Without any kind of necessity, they acted in conformity to their natural disposition, with respect to emigrations going on in that quarter. This, thought improbable, may be so. But to say that, because some settlements are going on in New York, Massachusetts will form a connection with the Mississippi, is, to my mind, most wonderful indeed. The great balance will be in the southern parts of America. There is the most extensive and fertile territory. There is the happiest geographical position, situated contiguously to that valuable and inestimable river. But the settlement of that country will not be warranted by the new Constitution, if it will not be forbidden by it.
No constitution under heaven, founded on principles of justice, can warrant the relinquishment of the most sacred rights of society, to promote the interest of one part of it. Do you not see the danger into which you are going, to throw away one of your dearest and most valuable rights? The people of that country now receive great and valuable emoluments from that right being protected by the existing government. But they must now abandon them. For is there any actual security? Show me any clause in that paper which secures that great right. What was the calculation which told you that it would be safer under the new than under the old government? In my mind, it was erroneous. The honorable gentleman told you that there were two bodies, or branches, which must concur to make a treaty. Sir, the President, as distinguished from the Senate, is nothing. They will combine, and be as one. My honorable friend said that ten men, the senators of five states, could give it up. The present system requires the consent of nine states. Consequently, its security will be much diminished. The people of Kentucky, though weak now, will not let the President and Senate take away this right. Look right, and see this abominable policyconsider seriously its fatal and pernicious tendency! Have we not that right guarantied to us by the most respectable power in Europe? France has guarantied to us our sovereignty and all its appendages. What are its appendages? Are not the rivers and waters, that wash the shores of the country, appendages inseparable from our right of sovereignty? France has guarantied this fight to us in the most full and extensive manner. What would have been the consequences had this project with Spain been completed and agreed to? France would have told you, “You have given it up yourselves; you have put it on a different footing; and if your bad policy has done this, it is your own folly. You have drawn it on your own heads; and, as you have bartered away this valuable right, neither policy nor justice will dell on me to guaranty what you gave up yourselves.” This language would satisfy the most sanguine American.
Is there an opinion that any future projects will better secure you? If this strong government contended for be adopted, seven states will give it up forever; for a temporary cession is, in my opinion, perfectly the same thing. The thing is so obviously big with danger, that the blind man himself might see it.
As to the American secretary, the goodness of his private character is not doubted. It is public conduct which we are to inspect. The public conduct of this secretary goes against the express authority of nine states. Although he may be endowed with the most brilliant talents, I have a right to consider his politics as abandoned. Yet his private virtues may merit applause. You see many attempts made, which, when brought into actual experiment, are found to result from abandoned principles. The states are geographically situated so and so. Their circumstances are well known. It is suggested, this expedient was only to temporize till a more favorable opportunity. Will any gentleman tell me that the business was taken up hastily, when that vote was taken in Congress? When you consider the ability of the gentlemen who voted in Congress on that question, you must be persuaded that they knew what they were about. American interest was fully understood. New Jersey called her delegates from Congress for having voted against this right. Delegates may be called and instructed under the present system, but not by the new Constitution. The measure of the Jersey delegates was adverse to the interest of that state, and they were recalled for their conduct.
The honorable gentleman has said that the House of Representatives would give some curb to this business of treaties respecting the Mississippi. This is to me incomprehensible. He will excuse me if I tell him he is exercising his imagination and ingenuity. Will the honorable gentleman say that the House of Representatives will break through their balances and checks, and break into the business of treaties? He is obliged to support this opinion of his, by supposing that the checks and balances of this Constitution are to be an impenetrable wall for some purposes, and a mere cobweb for some other purposes. What kind of Constitution, then, can this be? I leave gentlemen to draw the inference. I may have misunderstood the gentleman, but my notes tell me that he said the House of Representatives might interfere, and prevent the Mississippi from being given away. They have no power to do this by the Constitution. There will be a majority against it there also. Can you find on the journals the names of those who sacrifice your interest? Will they act so imprudently as to discover their own nefarious project? At present you may appeal to the voice of the people, and send men to Congress positively instructed to obey your instructions. You can recall them if their system of policy be ruinous. But can you in this government recall your senators? Or can you instruct them? You cannot recall them. You may instruct them, and offer your opinions; but if they think them improper, they may disregard them. If they give away or sacrifice your most valuable rights, can you impeach or punish them? If you should see the Spanish ambassador bribing one of your senators with gold, can you punish him? Yes, you can impeach him before the Senate. A majority of the Senate may be sharers in the bribe. Will they pronounce him guilty who is in the same predicament with themselves? Where, then, is the security? I ask not this out of triumph, but anxiously to know if there be any real security.
The gentleman here observed, what I would not give a single pin for. The doctrine of chances, it seems, will operate in our favor. This ideal, figurative doctrine will satisfy no rational people. I have said enough to answer the gentleman as to retaining the navigation.
Give me leave to tell you that, when the great branch of the house of Bourbon has guarantied to us this right, I wish not to lean on American strength, which may be employed to sacrifice it. This present despised system alone has reserved it. It rests on strong groundson the arms of France. The honorable member then told us that he thought the project would not be revived. Here, again, the doctrine of chances is introduced. I will admit that the honorable gentleman can calculate as to future events. But it is too much for him to say that it will not be taken up again. The same disposition may again revive that nefarious project. I can inform him of thisthat the American ambassador advises to let it rest for the present, which insinuates that it will be resumed at a more favorable opportunity. If this be the language or spirit which causes its suspension, this nefarious, abominable project will be again introduced the first favorable opportunity. We cannot fortify the Atlantic Ocean. The utmost we can do, is to become formidable to the westward. This will be prevented, if this abominable project be adopted. Mr. Henry then added, that, in treating the subject at large, he followed the example of other gentlemen, and that he trusted he should be permitted to consider it generally again.
Mr. MADISON arose, and observed, that the particular ground, on which the abandonment of that project was founded, was, that it was repugnant to the wishes of a great part of America. This reason, says he, becomes stronger and stronger every day, and the sense of America will be more and more known, and more and more understood. The project, therefore, will, in all probability, never be revived. [He added some other observations, which could not be heard.]
Mr. NICHOLAS. Mr. Chairman, the arguments used to-day, on this occasion, astonish me exceedingly. The most valuable right of a part of the community has been invaded. By whom? By Congress, under the existing systemthe worthy members favorite Confederation. Is this an argument to continue that Confederation? Does it not prove that that Confederation is not sufficient for the purposes for which it was instituted? It was doubted what proportion had a right, on that occasion, to repeal the prohibitory part of the secretary’s instructions. The Confederation, which makes it a doubt whether they had a right to sacrifice this right,whether seven states, and not nine, had aright to make the temporary cession,is the system which merits censure. Yet, by an ingenious and subtile deviation, this instance is brought against this Constitution. We have been alarmed about the loss of the Mississippi, in and out of doors. What does it all amount to? It amounts to an attempt, under the present Confederation, to yield it up. Why have we been told of the great importance of this valuable right? Every man knows it. No man has a greater regard for it than I have. But what is the question which the honorable gentleman ought to ask himself? Is this right better secured under the present Confederation than the new government? This is the sole question. I beg leave to draw the attention of the committee to this subject. It is objected, by my friend to my left, that two thirds of the Senate present may advise the President to give up this right by a treaty, by which five states may relinquish it. It is provided, in the first article, that a majority of each house shall constitute a quorum to do business; and then, in the second article, that the President, by and with the advice and consent of the Senate, shall have power to make treaties. What part of the Senate? It adds, “Provided two thirds of the senators concur.” What is the inference? That there must be a quorum, and two thirds of the whole must agree. I shall be told, perhaps, that this construction is not natural, not the positive construction of the clause. If the right construction be, that two thirds of a quorum, or ten senators, may, with the President, make a treaty,to justify the conclusion, that the Mississippi may be given away by five states, two most improbable things must concur: first, that, on the important occasion of treaties; ten senators will neglect to attend; and in the next place, that the senators whose states are most interested in being fully represented, will be those who will fail to attend. I mean those from the Southern States. How natural this supposition is, I refer to the candor of the committee. But we are told that we have every thing to fear from the Northern States, because they will prevent an accession of states to the south. The policy of states will sometimes change. This is the case with those states, if, indeed, they were enemies to the right; and therefore, as I am informed by very good authority, Congress has admitted Kentucky, as a state, into the Union. Then the law of nations will secure it to them, as the deprivation of territorial rights is obviously repugnant to that law.
But we are told that we may not trust them, because self-interest will govern them. To that interest I will appeal. You have been told that there was a difference between the statesthat they were naturally divided into carrying and non-carrying states. It is not reasonable to presume that the advancement of population and agriculture, in the western country, will mostly operate in favor of those states, who, from their situation, are best calculated to carry the produce of America to foreign markets. Besides, as members of the Union, they will be materially affected by the sale of the back lands, which will be greatly diminished in case of the relinquishment of that right. The same reason which induced them to erect states there, will also actuate them on every future occasion.
But Congress has violated the Confederation. Shall we continue, then, under a government which warrants, or cannot prevent violations? Shall we hesitate to embrace a government which will check them? But, says the honorable gentleman over the way, (Mr. Grayson,) the Eastern States were interested, during the war, in retaining the Mississippi. But now they have nothing to fear. Will war not return? A great part of his argument turns upon that supposition:We shall always have peace, and need make no provision against wars. Is not this deceiving ourselves? Is it not fallacious? Did there ever exist a nation which, at some period or other, was not exposed to war? As there is no security against future wars, the New England States will be as much interested in the possession of the Mississippi hereafter, as they were during the war. But, says he, the Confederation affords greater security to the western country than the new government. Consider it maturely, and you will find the contrary to be a fact. The security arising from the Confederation is said to be this, that nine states must concur in the formation of a treaty. If, then, hereafter thirty states should come into the Union, yet nine states will still be able to make a treaty. Where, then, is your boasted security, if nine states can make a treaty, although ever so many states should come into the Union? On the other hand, how is this guarded under the new Constitution? No certain limited number of states is required to form a treaty. As the number of states will be increasing in the Union, the security will be increased. Every new state will bring an accession of security, because two thirds of the senators must concur. Let the number of states increase ever so much, two thirds of the senators must concur. According to the present system, nine states may make a treaty. It will therefore take five states to prevent a treaty from being made. If five states oppose a treaty, it cannot be made. Let us see how it is in the new Constitution. Two thirds of the senators must agree. Kentucky, added to the other states, will make fourteen states. Twenty-eight senators will be the representation of the states, two thirds of which will be nineteen; and if nine members concur in opposition, the Senate can do no act. Five states, you are told, have concurred in opposing the relinquishment of that right. Kentucky has come into the Union. She will oppose it naturally. It may be naturally concluded, then, that there will be at least twelve members in the Senate against it; so that there will be several persons in the Senate more than will be sufficient to prevent the alienation or suspension of that river. From this true representation, it will at least be as secure under the new as under the old government.
But, says he, the concurrence of the President to the formation of treaties will be no security. Why so? Will he not injure himself, if he injures the states, by concurring in an injudicious treaty? How is he elected? Where will the majority of the people be? He told you that the great weight of population will be in the southern part of the United States. Their numbers will weigh in choosing the President, as he is elected by electors chosen by the people in proportion to their numbers. If the Southern States be interested in having the Mississippi, and have weight in choosing the President, will he not be a great check in favor of this right? Another thing is treated with great contempt. The House of Representatives, it seems, can have no influence in making treaties. What is the House of Representatives? Where, says he, are your checks and balances, your rope-dancers, &c.? How is this business done in his favorite government? The king of Great Britain can make what treaties he pleases. But, sir, do not the House of Commons influence them? Will he make a treaty manifestly repugnant to their interest? Will they not tell him he is mistaken in that respect, as in many others? Will they not bring the minister who advises a bad treaty to punishment? This gives them such influence that they can dictate in what manner they shall be made. But the worthy member says that this strong government is such a one as Kentucky ought to dread. Is this just, Mr. Chairman? Is it just by general assertions, without arguments or proofs, to cast aspersions on it?
What is the situation of that country? If she has a right, and is in possession of the river, I ask the gentleman why she does not enjoy the fruits of her right. I wish, if she has the river, she would give the people passports to navigate it. What do they want? They want a government which will force from Spain the navigation of that river. I trust, sir, that, let the situation, government, and politics, of America be what they may, I shall live to see the time when the inhabitants of that country will wrest from that nation that right which she is so justly entitled to. If we have that government which we ought to have, they will have ability to enforce their right. But he treats with ridicule the situation of the territory settled by Massachusetts. They can have no connection with the Mississippi. Sir, they are materially affected by the navigation of that river. The facility of disposing of their produce, and intercourse with other people, are essential interests.
But, sir, we have the guaranty of France under the existing system. What avails this guaranty? If dependence be put upon it, why did they not put us in possession, and enable us to derive benefits from it? Our possession of it is such that we dare not use it. But the opinion and characters of private men ought to have nothing to do in our discussion. I wish the gentleman had always thought so. If he had, these debates would not have been thus lengthened. But we are not to calculate any thing on New Jersey. You are told she gave instructions to her delegates to vote against the cession of that right. Will not the same principles continue to operate on the minds of the people of that state?
We cannot recall our senators. We can give them instructions; and if they manifestly neglect our interest, we have sufficient security against them. The dread of being recalled would impair their independence and firmness.
I think that Kentucky has nothing to expect from any one state alone in America. She can expect support and succor alone from a strong, efficient government, which can command the resources of the Union when necessary. She can receive no support from the old Confederation. Consider the present state of that country. Declared independent of Virginia, to whom is she to look up for succor? No sister state can help her. She may call on the present general government; but, whatever may be the wish of Congress, they can give them no relief. That country contains all my wishes and prospects. There is my property, and there I intend to reside. I should be averse to the establishment of any system which would be injurious to it. I flatter myself that this government will secure their happiness and liberty.
Gov. RANDOLPH. Since I have seen so many attempts made, and so many wrong inducements offered, to influence the delegation from Kentucky, I must, from a regard to justice and truth, give my opinion on the subject. If I have no interest in that country, I hope they will consider what I have to say as proceeding from an impartial mind.That the people of Kentucky have an unequivocal right to the navigation of the Mississippi, by the law of nature and nations, is clear and undoubted; though, to my own knowledge, a question has arisen, whether the former connection of America with Great Britain has not taken it away from them. There was a dispute respecting the right of Great Britain to that river, and the United States have only the same right which the original possessor had, from whom it was transferred. I am willing to declare that the right is complete; but where is the danger of losing it by the operation of the new government? The honorable gentleman tells us that France has guarantied to us the possession of that river. We need not trouble ourselves about it. France, he supposes, will do every thing for us. Does this pretended security enable us to make use of it? Is there any reasonable motive to induce the government to give it up? If it be not given up, if the guaranty of France be any security now, it will be so then. I wish an honorable gentleman over the way had known certain facts. If he had, they must have operated on his mind to refrain from making such observations. [Here his excellency read the treaty of peace with Great Britain, defining the boundaries of the United States.]
He then declared, that, from the most liberal interpretation, it would never give the inhabitants a fight to pass through the middle of New Orleans. I appeal to what the French ambassador said, in 1781, in Congressthat America had no right to the Mississippi. If the opinion of the ambassador of his Most Christian Majesty, and the treaty, have any influence, why are we told such things? There is not a greater or less degree of power, given by this Constitution, than is necessary to be given; but whether the power of treaties be improper to he given, or not, to the general government, I only now ask whether there be any real danger of losing this right. How many senators are there? Twenty-six, supposing the United States remain as they are. We are told that there never were more than seven states willing to give it up; so that there were six states against it. There can be little danger, then, of the loss of that navigation. Pennsylvania is interested to maintain the Mississippi. Her interest will stimulate her to do it. She has settlements near Fort Pitt, on the Ohio, which must be affected greatly by that cession. If his own arguments be credited, New Jersey is against it. There is no danger of her voting the alienation of that right, as she instructed her delegates to oppose it. The Southern States are naturally opposed to it. There will, therefore, be a majority in favor of the Mississippia majority that does not depend on the doctrine of chances. There will be fourteen senators against twelve, admitting the states to remain as they are. It will, moreover, be contrary to the law of nations to relinquish territorial rights. To make a treaty to alienate any part of the United States, will amount to a declaration of war against the inhabitants of the alienated part, and a general absolution from allegiance. They will never abandon this great right. Are not the states interested in the back lands, as has been repeatedly observed? Will not the connection between the emigrants and those they leave behind them, serve to strengthen opposition to it? The gentleman wishes us to show him a clause which shall preclude Congress from giving away this right. It is first incumbent upon him to show where the right is given up. There is a prohibition naturally resulting from the nature of things, it being contradictory and repugnant to reason, and the law of nature and nations, to yield the most valuable right of a community, for the exclusive benefit of one particular part of it.
But there is an expression which clearly precludes, the general government from ceding the navigation of this river. In the 2d clause of the 3d section of the 4th article, Congress is empowered “to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States.” But it goes on, and provides that “nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or any particular state.” Is this a claim of the particular state of Virginia? If it be, there is no authority in the Constitution to prejudice it. If it be not, then we need not be told of it. This is a sufficient limitation and restraint. But it has been said that there is no restriction with respect to making treaties. The various contingencies which may form the object of treaties, are, in the nature of things, incapable of definition. The government ought to have power to provide for every contingency. The territorial rights of the states are sufficiently guarded by the provisions just recited. If you say that, notwithstanding the most express restriction, they may sacrifice the rights of the states, then you establish another doctrinethat the creature can destroy the creator, which is the most absurd and ridiculous of all doctrines.
The honorable gentleman has warned us from taking rash measures that may endanger the rights of that country. Sir, if this navigation be given up, the Country adjacent will also be given up to Spain; for the possession of the one must be inseparable from that of the other. Will not this be a sufficient check on the general government? This you will admit to be true, unless you carry your suspicion to such an unlimited length as to imagine that they will, among their iniquitous acts, destroy and dismember the Union. As to the objection of my friend over the way, (Mr. Monroe,) that so few states could by treaty yield that navigation, it has been sufficiently answered, and its futility fully detected, by the gentleman who spoke last.
Another mistake, which my friend over the way has committed, is, that the temporary forbearance of the use of the Mississippi might lead to the absolute cession of the Chesapeake. The gentleman has a mind to make up his climax of imaginary objections, or he never would have suffered such an idea to obtrude on his mind. Were the Mississippi, as he says, in danger of being ceded,which I deny,yet it could not be a precedent for the relinquishment of the Chesapeake. It never can be put in such a jeopardy. All the Atlantic states will oppose a measure of this sort, lest it should destroy their commerce.
The consanguinity between the western people and the inhabitants of the other states would alone have a powerful operation to prevent any measures injurious to them from being adopted.
Let me, in a few words, endeavor to obviate the strong observations made to the gentlemen from that country. I contend that there is no power given to the general government to surrender that navigation. There is a positive prohibition, in the words I have already mentioned, against it. I consider that the policy of the states, and disposition of the people, make it impossible; and I conclude that their safety is at least as great under the new as under the old government. Let me entreat those gentlemen, whose votes will be scuffled for, to consider in what character they are here. For what have they come hither? To deliberate on a Constitution, which some have said will secure the liberty and happiness of America, and which others represent as not calculated for that purpose. They are to decide on a Constitution for the collective society of the United States. Will they, as honest men, not disdain all applications made to them from local interests? Have they not far more valuable rights to secure? The present general government has much higher powers than that which has been so long contested. We allow them to make war and requisitions without any limitation. That paper contains much higher powers. Let it not be said that we have been actuated from local interests. I wish it may not be said that partial considerations governed any gentleman here, when we are investigating a system for the general utility and happiness of America. I know such narrow views will not influence the gentlemen from that country, because I know their characters. I hope this subject is sufficiently discussed, and that we shall proceed regularly.
Mr. CORBIN. Mr. Chairman, all attempts made to bias the opinion of any gentleman on this great occasion, are, in my opinion, very reprehensible. No member of this committee can be a more zealous supporter of the right of navigating the Mississippi, and the other rights of the aggregate community, than I am. But that right, sir, is in no danger. This has been proven with much ability by my friend to the left, and other gentlemen. We are told that five states may make a treaty. I say that five states can prevent a treaty from being made.
Will not, my argument be of equal force with theirs? How can five states make a treaty? This presupposes that the members from every other state will be absent when the important subject of treaties will be on the carpet. Is this plausible, or does it not amount to an impossibility? He says that the House of Representatives can have no influence in the formation of treaties. I say, they can. Treaties are generally of a commercial nature, being a regulation of commercial intercourse between different nations. In all commercial treaties, it will be necessary to obtain the consent of the representatives.[Here a storm arose, which was so violent as to compel Mr. Corbin to desist, and the committee to rise.]