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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --WEDNESDAY, AUGUST 30, 1786.
Congress assembled. Present as before.
The committee, consisting of Mr. [Nathaniel] Ramsay, Mr. [Charles] Pinckney and Mr. [Henry] Lee, to whom was referred a memorial of John O'Donnell, praying that Congress would be pleased to grant him Sea letters for the ship Chesapeake, having reported, "That the ship Chesapeake and her Cargo are the property of Citizens of the United States, and that the ship is principally navigated by citizens of the United States, and bound on a voyage to India:"
Resolved, That a Sea letter be granted for the ship Chesapeake, John O'Donnell, master, in the form of that granted to the Ship Canton, mutatis mutandis.
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In Congress,
August 30, 1786.
Congress proceeded in the consideration of the report of the Committee of the whole; and the Second resolution1 reported by the Committee being read, a motion was made by Mr. [Rufus] King, seconded by Mr. [Melancton] Smith, to amend the resolution by striking out the last clause from "Provided farther that the said Secretary for foreign affairs do and hereby is directed," inclusive, to the end, and in lieu thereof to insert "provided farther, that the said Secretary for foreign Affairs do and hereby is directed, to insist on the territorial limits or boundaries of the U. S. as fixed in the definitive treaty of peace and friendship between the U.S. of America and his Britannic Majesty; and he is farther instructed, not to form any treaty with the said Encargado de Negocios unless the said limits or boundaries are thereby acknowledged and secured."
[Note 1: 1 See ante, August 28.]
A motion was made by Mr. [Charles] Pinckney, seconded by Mr. [James] Monroe, to postpone the further consideration of the Resolution and amendment, in order to take up the following proposition:
Whereas under the 9th of the Articles of the Confederation it is declared "The United States in Congress assembled shall not enter into treaties or alliances, unless Nine States assent to the same:" And whereas by Resolutions of the 20 July and 25 day of August, 1785, the honble. John Jay, Secretary for foreign Affairs, was authorised with the assent of the United States to negotiate with Don Diego de Gardoqui, Encargado de Negocios of his Catholic Majesty, under certain Instructions, the last clause of which was in these words, "and that the
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following be substituted; that the Secretary to the United States for the department of foreign affairs be and hereby is instructed, in his plan of a treaty with the Encargado de Negocios of his Catholic Majesty, particuIarly to stipulate the right of the United States to their territorial bounds, and the free navigation of the Mississippi from the source to the Ocean, established in their treaties with Great Britain; and that he neither conclude nor sign any treaty, compact or convention with the said encargado de negocios, until he hath previously. communicated it to Congress, and received their approbation;" And whereas a motion is made to repeal the said recited clause of Mr. Jay's instructions leaving the other part of the same in full effect and enabling him to negotiate without any respect to the right of navigating the Mississippi, and to conclude a treaty without first conclude a treaty without from which qualifications and restrictions the said John Jay could not depart without a violation of his instructions: And as the repeal by seven States of the said recited last clause has the effect of enlarging the powers of the said negotiator, and granting him an authority he did not possess under the former instructions, to which the assent of nine States is alone constitutionally competent under the confederation, as the removal of a positive restraint confers a positive Authority, and as a delegate cannot exceed the authority delegated to him, nor delegate to another a greater power than he himself possesses, it follows, that the right of entering into treaties being delegated by the Confederation to the concurrent assent of nine States in Congress assembled, this power cannot be delegated to others, nor any alterations made in instructions upon this subject, but by a similar concurrence of nine States. The right of entering into treaties comprehends an absolute
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and exclusive right of admitting or rejecting every article of such treaty, as well as the whole collectively. This right cannot be exercised by seven States, consequently it cannot be delegated by them to any other person or description of persons, without an absolute violation of the principles of the confederation. If a treaty entered into in pursuance of instructions be not ratified, by the law of nations it is causa belli. If only seven States repeal the said last recited clause of Mr. Jay's instructions, and he thereupon proceeds to enter into a treaty upon different principles than those under which he was formerly authorised by nine States, the said treaty cannot be considered as formed under instructions constitutionally sanctioned by the Authority required under the Confederation; nor are the United States, under the laws or usage of Nations, bound to ratify and confirm the same: Therefore,
Resolved, That the Secretary for foreign Affairs be informed, that as the said recited clause of his instructions, restraining him from entering into any treaty or Compact with the Encargado de Negocios of his Catholic Majesty, which did not fix the territorial limits of the U. S. agreeable to the definitive treaty with G. B., and the right of the U.S. to the free navigation of the Mississippi from its source to the Ocean, was repealed by the assent of seven States, when nine were alone competent to such alteration and enlargement of his powers, the U.S. in Congress assembled do not consider him as authorised to negotiate upon different principles than those under which he was formerly instructed by the said resolutions of the 20 July and 25 August, 1785; nor, should he proceed to enter into a treaty upon other principles, do they conceive the U. S. bound under the
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law of Nations to rarity and confirm a compact formed under powers thus unconstitutional and incompetent."1
[Note 1: 1 This motion, in the writing of Charles Pinckney, is in the Papers of the Continental Congress, No. 81, II folio 285. It is indorsed by Thomson: "Previous question by New Hampshire Pensylva. Yeas and nays. Del. Virg."]
On the question to postpone for the purpose abovementioned, the yeas and nays being required by Mr. [Timothy] Bloodworth--
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So it passed in the negative.
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On the question to agree to the amendment, the yeas and nays being required by Mr. [Melancton] Smith--
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So it was resolved in the affirmative.
A motion was then made by Mr. [Arthur] St. Clair, seconded by Mr. [Rufus] King, further to amend the resolution reported by the committee of the whole, and after the word "instructed," in the second line, to insert, "to propose, and if possible obtain the following stipulations, viz. That the Citizens of the United States shall not be interrupted in transporting the bona fide productions of the U.S. upon the Mississippi river from 31° N. L. to the city of New Orleans, where they shall be allowed to land the same, and permission be granted to occupy storehouses and other necessary buildings for the reception thereof. That the boats or other vessels, on board
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of which the said productions shall have been transported to N. Orleans, shall have free leave to return up the Mississippi river to any place within the territory of the United States; provided that so far as they navigate below 31° N. L. they shall not load any species of goods, wares or merchandize whatsoever, but by permission of the Spanish government in florida. That American merchants or factors shall have free leave to reside at N. Orleans, for the purpose of receiving such American productions as may be brought down the said river Mississippi, and for exporting the same from thence in American or Spanish bottoms, under the regulations of the respective countries. That a duty ofper cent. ad valorem shall be paid to the Crown of Spain upon all American produce shipped from the said city of N. O. in American bottoms within 6 months after such exportation, for which good and sufficient bonds shall be given previous to the departure of any vessel on board of which such produce shall be laden. That Am. vessels may freely navigate up the said river M., from the mouth to the said city of N. O.; but shall not carry any species of goods, wares or merchandize whatever contrary to the regulations of the crown of Sp. under pain of seizure and confiscation."1
[Note 1: 1 This motion, in the writing of Arthur St. Clair, is in the Papers of the Continental Congress, No. 81, II, folio 305.]
A motion was made by Mr. [James] Monroe, seconded by Mr. [William] Grayson, to amend the amendment by striking out the words "if possible obtain," and inserting "that he enter into no treaty, compact or convention, which shall not include;" and on the question to agree to the Amendment to the Amendment, the yeas and nays being required by Mr. [James] Monroe--
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So it passed in the negative.
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On the question to agree to the amendment, the yeas and nays being required by Mr. [Charles] Pinckney--
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So it was resolved in the affirmative.
The resolution being further amended to read as follows: That the Secretary to the United States for the department of foreign Affairs be and hereby is instructed, to propose, and if possible obtain the following stipulations, viz. That the citizens of the United States shah not be interrupted in transporting the bona fide productions of the United States upon the Mississippi river, from thirty one degrees north latitude to the city of New Orleans, where they shall be allowed to land the same, and permission be granted them to occupy storehouses and other necessary buildings for the reception thereof. That the boats or other vessels, on board of which the said productions shah have been transported
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to New Orleans, shall have free leave to return up the Mississippi river to any place within the territory of the United States; provided that so far as they navigate below 31° N. latitude, they shall not load any species of goods, wares or merchandise whatsoever, but by permission of the Spanish government in Florida. That American merchants or factors shall have free leave to reside at New Orleans for the purpose of receiving such American productions as may be brought down the said river Mississippi, and for exporting the same from thence in American or Spanish bottoms under the regulations of the respective countries. That a1 duty not exceeding 2½ per cent. ad valorem shall be paid to the Crown of Spain, upon all american produce shipped from the same city of New Orleans, in American bottoms, within six months after such exportation, for which good and sufficient bonds shall be given previous to the departure of any vessel on board of which such produce shall be laden. That American vessels may freely navigate up the said river Mississippi, from the mouth to the said city of New Orleans, but shall not carry any species of goods, wares or merchandize whatever, contrary to the regulations of the crown of Spain, under pain of seizure and confiscation. That if in the course of his negotiation with the Encargado de Negocios of his Catholic Majesty, it shall be found indispensable for the conclusion of the same, that the United States and their citizens, for a limited time, should forbear to use so much of the river Mississippi as is south of the southern boundary of the United States, the said Secretary be and hereby is authorised and directed, on behalf of the United States, to consent to an Article or Articles stipulating on their part and that of their citizens, a forbearance of the use of
[Note 1: 1 At this point Roger Alden takes up the entry.]
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the said river Mississippi for a period not exceeding twenty years, from the point where the southern boundary of the United States intersects the said river to its mouth or the ocean; provided, that such stipulation of a forbearance of the use of the said river for a limited time, as aforesaid, shah not be construed to extinguish the right of the United States, independent of such stipulation, to use and navigate the said river from its source to the ocean; provided further, that the Secretary for foreign Affairs shall not stipulate, on behalf of the United States, in favour of the exclusive navigation and use of the said river by his Catholic Majesty and his subjects, below its intersection of the southern boundary of the United States, unless it shah be agreed and stipulated in the same treaty, that the navigation and use of the said river, from the intersection aforesaid to its head or source, be and continue common to the United States and his Catholic Majesty, and to their respective citizens and subjects; provided farther, that the said Secretary of foreign Affairs do and hereby is directed to insist on the territorial limits or boundaries of the United States as fixed in the definitive treaty of peace and friendship between the United States of America and his Britannic Majesty; and he is further instructed, not to form any treaty with the said Encargado de Negocios, unless the said limits or boundaries are thereby acknowledged and secured.
1On the question to agree to the resolution as amended, the yeas and nays being required by Mr. [Charles] Pinckney--
[Note 1: 1 At this point Thomson resumes the entry.]
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{table}
So the question was lost.1
[Note 1: 1 These proceedings are entered in Secret Journal, Foreign, No. 5, and in Secret Journal, No. 6.
August 30: The following committee was appointed: Mr. [John Bubenheim] Bayard, Mr. [Timothy] Bloodworth and Mr. [John] Bull, on the petition of John Paul Schott. A report was rendered September 4.
The petition is in No. 42, VII, folio 259.
The petition of Levi Walker "for repayment of expences paid for his son when sick" was referred to the Commissioner of Hospital Accounts to report and a report rendered September 1. The petition, dated July 26, is in No. 42, VIII, folio 361; according to indorsement it was read August 30.
Committee Book No. 190.]
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