Journal of the Federal Convention August 17th 1787

Article VII Section 1 Clauses 9-14. Enumerated Powers. Inferior Tribunals. Piracy and Punishments. Rebellions. Militia. War.

Art VII. Sect. 1. [FN1], [FN2] resumed. on the clause "to appoint [FN3] Treasurer by ballot."

Mr. GHORUM moved to insert "joint" before ballot, as more convenient as well as reasonable, than to require the separate concurrence of the Senate.

Mr. PINKNEY 2ds. the motion. Mr. SHERMAN opposed it as favoring the larger States.

Mr. READ moved to strike out the clause, leaving the appointment of the Treasurer as of other officers to the Executive. The Legislature was an improper body for appointments. Those of the State legislatures were a proof of it. The Executive being responsible would make a good choice.

On the motion for inserting the word "joint" before ballot N. H. ay. Mas. ay. Ct. no. N. J. no. Pa. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN4]

Col. MASON in opposition to Mr. Reads motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it.

On striking out the clause as amended by inserting "Joint" N. H. no. Mas. no. Ct. no. Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. no. [FN5]

"To make rules as to captures on land & water"-do. d [FN9] [FN6] "To declare the law and punishment of piracies and felonies &c" &c [FN10] considered.

Mr. MASON doubts the safety of it, considering the strict rule of construction in criminal cases. He doubted also the propriety of taking the power in all these cases wholly from the States.

Mr. GOVERNR. MORRIS thought it would be necessary to extend the authority farther, so as to provide for the punishment of counterfeiting in general. Bills of exchange for example might be forged in one State and carried into another: It was suggested by some other member that foreign paper might be counterfeited by Citizens; and that it might be politic to provide by national authority for the punishment of it.

Mr. RANDOLPH did not conceive that expunging "the punishment" would be a constructive exclusion of the power. He doubted only the efficacy of the word "declare."

Mr. WILSON was in favor of the motion. Strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them.

N. H. no. Mas. ay. Ct. no. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN13]

Mr. Govr. MORRIS moved to strike out "declare the law" and insert "punish" before "piracies." and on the question N. H. ay. Mas. ay. Ct. no. Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. ay. [FN14]

Mr. MADISON. felony at common law is vague. It is also defective. One defect is supplied by Stat: of Anne as to running away with vessels which at common law was a breach of trust only. Besides no foreign law should be a standard farther than [FN15] is expressly adopted-If the laws of the States were to prevail on this subject, the citizens of different States would be subject to different punishments for the same offence at sea. There would be neither uniformity nor stability in the law-The proper remedy for all these difficulties was to vest the power proposed by the term "define" in the Natl. legislature.

Mr. Govr. MORRIS would prefer designate to define, the latter being as he conceived, limited to the preexisting meaning.- It was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies & of piracies. The motion of Mr. M. & Mr. R was agreed to.

Mr. ELSEWORTH enlarged the motion so as to read "to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the U. States, and offences agst. the law of Nations" which was agreed to nem. con.

[FN16] "To subdue a rebellion in any State, on the application of its legislature." [FN17]

Mr. L. MARTIN opposed it as giving a dangerous & unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.

Mr. Govr. MORRIS. The Executive may possibly be at the head of the Rebellion. The Genl. Govt. should enforce obedience in all cases where it may be necessary.

Mr. ELSEWORTH. In many cases The Genl. Govt. ought not to be able to interpose, unless called upon. He was willing to vary his motion so as to read, "or without it when the legislature cannot meet."

Mr. GERRY was agst. letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best Judges in such cases. More blood would have been spilt in Massts. in the late insurrection, if the Genl. authority had intermeddled.

Mr. LANGDON was for striking out as moved by Mr. Pinkney. The apprehension of the national force, will have a salutary effect in preventing insurrections.

Mr. RANDOLPH. If the Natl. Legislature is to judge whether the State legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of Mr. Pinkney.

Mr. Govr. MORRIS. We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him, The legislature may surely be trusted with such a power to preserve the public tranquility.

On the motion to add "or without it [application] when the legislature cannot meet" [FN18]

N. H. ay. Mas. no. Ct. ay. Pa. divd. Del. no. Md. no. Va. ay. N. C. divd. S. C. ay. Geo. ay. [FN19] So agreed to- [FN20]

Mr. MADISON and Mr. DICKENSON moved to insert as explanatory, after "State"- "against the Government thereof" There might be a rebellion agst. the U. States-which [FN21] was Agreed to nem. con.

On the clause as amended N. H. ay. Mas [FN22] abst. Ct. ay. Pen. abst. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Georg. ay-so it was lost. [FN23]

Mr. PINKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It wd. meet but once a year. The Hs. of Reps. would be too numerous for such deliberations. The Senate would be the best depositary, being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in [FN25] Senate, so as to give no advantage to [FN25] large States, the power will notwithstanding be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.

Mr. BUTLER. The objections agst. the Legislature lie in [FN26] great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it. Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr. SHARMAN thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" [FN27] better than "declare" the latter narrowing the power too much.

Mr. GERRY never expected to hear in a republic a motion to empower the Executive alone to declare war.

Mr. ELSWORTH. there is a material difference between the cases of making war and making peace. It shd. be more easy to get out of war, than into it. War also is a simple and overt declaration. peace attended with intricate & secret negociations.

Mr. MASON was agst. giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."

On the motion to insert declare-in place of make, it was agreed to. N. H. no. Mas. abst. Cont. no. [FN29] Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN31]

Mr. PINKNEY'S motion to strike out [FN32] whole clause, [FN33] disagd. to without call of States.

Mr. BUTLER moved to give the Legislature [FN32] power of peace, as they were to have that of war.

Mr. GERRY 2ds. him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.

On the motion for adding "and peace" after "war" [FN34] N. H. no. Mas. no. Ct. no. Pa. no. Del. no. Md. no. Va. no. N. C. no S. C. no. Geo. no. [FN35]

FN4 In the transcript the vote reads: "New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye-7; Connecticut, New Jersey, Maryland, no-3."

FN5 In the transcript the vote reads: "Pennsylvania, Delaware, Maryland, South Carolina, aye-4; New Hampshire, Massachusetts, Connecticut, Virginia, North Carolina, Georgia, no-6."

FN11 In the transcript the following phrase is here added: "after the words, ' To declare the law."'

FN13 In the transcript the vote reads: "Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye-7; New Hampshire, Connecticut, Maryland, no-3."

FN14 In the transcript the vote reads: "New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, aye-7; Connecticut, Virginia, North Carolina, no-3."

FN19 In the transcript the vote reads: "New Hampshire, Connecticut, Virginia, South Carolina, Georgia, aye-5; Massachusetts, Delaware, Maryland, no-3; Pennsylvania, North Carolina, divided."

FN23 In the transcript the vote reads: "New Hampshire, Connecticut, Virginia, Georgia, aye-4; Delaware, Maryland, North Carolina, South Carolina, no-4; Massachusetts, [FN22] Pennsylvania, absent. So it was lost."

FN28 The transcript here inserts the following: "Connecticut voted in the negative; but."

FN29 On the remark by Mr. King that "make" war might be understood to "conduct" it which was an Executive function, Mr. Elseworth gave up his objection, and the vote of Cont. [FN30] was changed to-ay.

FN31 In the transcript the vote reads: "Connecticut, [FN29] Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye-8; New Hampshire, no-1; Massachusetts, absent."

Article VII Section 1 Clause 9, “To Appoint a Treasurer by ballot,” was the next enumerated power under consideration.

Nathaniel Gorham (MA) moved, and Charles Pinckney (SC) seconded to insert “joint” before “ballot,” for convenience.

Roger Sherman (CN) opposed it as favoring the large States.

Judge George Read (DE) moved and John Mercer (MD) seconded to strike the clause; leave such appointments to the Executive. The State Legislatures proved they were poor sources for appointments.

On the motion to insert the word “joint” before the word “ballot” in the 9th Clause of the 1st Section of Article VII, it passed 7-3.

George Mason (VA) responded to Mr. Read’s motion. The people’s reps should have a hand in appointing the governor of the people’s money.

On striking out the amended Clause 9, it failed 6-4.

The 10th Clause of Section 1 of Article VII, “To constitute tribunals inferior to the Supreme Court,” passed without opposition.

Next for consideration, Clauses 11 & 12 of Section 1 of Article VII, “To make rules concerning captures on land and water”; and “To declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offenses against the law of nations.

James Madison (VA) motioned to change the first clause of the 12th clause to read, “To declare the law of piracies and felonies committed on the high seas,” (This is likely another example of what was lost without a professional court recorder. Mr. Madison certainly had explanatory comments.)

George Mason (VA) was not entirely comfortable taking the power entirely away from the states.

Governeur Morris (PA) would expand the sphere of counterfeit offenses to bills of exchange, and foreign paper.

Governor Edmund Randolph did not see removal of “the punishment” as constructive. He also doubted the effectiveness of the word, “declare.”

James Wilson (PA) favored the motion. He drew a distinction between Constitutional and statutory law.

On Mr. Madison’s motion to change the first clause of the 12th Clause to read, “To declare the law of piracies and felonies committed on the high seas,” it passed 7-3.

Governeur Morris (PA) moved to change the first clause to read, “To punish piracies and felonies committed on the high seas.” It passed 7-3.

(Remember how the commerce clause sailed through with no debate and compare it to the extensive wordsmithing of so many other clauses. Our Framers were precise grammarians. There was no question as to what the commerce clause meant.)

James Madison (VA), James Wilson (PA), John Dickinson (DE), and John Mercer (MD) discussed Mr. Madison’s motion to insert “define &” before “punish.”

James Madison (VA) sought uniformity and stability in the law, which could only be had if the National Legislature superseded the various State laws for crimes on the high seas.

Governeur Morris (PA) preferred “designate,” to “define.”

Mr. Madison’s motion carried.

Judge Oliver Ellsworth (CN) motioned the clause to read, "to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the U. States, and offences agst. the law of Nations" which was agreed to without opposition.

(Whew!)

The 13th Clause of Section 1 of Article VII, "To subdue a rebellion in any State, on the application of its legislature," was next.

Charles Pinckney (SC) motioned and Governeur Morris (PA) seconded, to strike, “on the application of its legislature.” (Why would a slave State delegate remove this?)

Luther Martin (MD) (Welcome back) opposed Mr. Pinckney’s deletion as unnecessary and dangerous.

John Mercer (MD) agreed with Mr. Martin.

Judge Oliver Ellsworth (CN) motioned to add “or Executive,” after “legislature.”

Governeur Morris (PA) said the State Executive may be at the head of the rebellion. Give the National Government power to enforce obedience in all cases necessary.

Judge Oliver Ellsworth (CN) believed the National Government should not be able to interpose in many cases. He varied his motion to read, "or without it [authority] when the legislature cannot meet."

Elbridge Gerry (MA) opposed loosing “myrmidons” (Ouch!) of the US on States without their permission. More blood would have been shed (in Shays Rebellion only a few months prior) in MA if the National Government had intervened.

John Langdon (NH) supported Mr. Pinckney’s motion to strike “on the application of its legislature.” The threat of a national force will serve to suppress insurrections. (There was no shortage of delegates who mistrusted the States)

Governor Edmund Randolph questioned both Mr. Ellsworth’s and Mr. Pinckney’s motions as objectionable.

Governeur Morris (PA) reiterated his support for Congressional decision making alone to suppress rebellions.

On the motion to add "or without it [application] when the legislature cannot meet," it passed 5-3-2.

James Madison (VA) and John Dickinson (DE) motioned to add, “against the government thereof” after “State.” It was agreed to without opposition.

The amended 13th Clause to the 1st Section of the VII Article, “To subdue a rebellion in any State against the government thereof on the application of it’s Legislature, or without when the Legislature cannot meet,” failed 5-4.”

(This defeated Clause would reappear in modified forms in both Articles I & IV of the Constitution)

Next up was Clause 14 of Section 1 of Article VII, “To make war.”

Charles Pinckney (SC) thought the Legislature, since it would meet but once a year, could not possibly act quick enough in a national emergency. He would limit it to the smaller and more deliberative Senate.

Pierce Butler (SC) thought the power should be with the Executive, who will make war only when the nation supported it.

James Madison (VA) and Elbridge Gerry (MA) moved to strike “make” and insert “declare,” which would leave the power to repel sudden attacks with the President.

Roger Sherman (CN) thought the clause was fine as it was; the President could repel but not commence war. He thought “declare” too restrictive.

Elbridge Gerry (MA) understood it would grant declaration of war powers to the President. “He never expected to hear in a republic a motion to empower the Executive alone to declare war.”

Judge Oliver Ellsworth (CN) muddied the debate when he introduced the flip side, peace.

George Mason (VA) preferred to use “declare.” He opposed giving the power of war to the President. The Senate was too small a body to decide. (Leave it to Congress as it stood.)

(I doubt the debate on so important an issue was as truncated as Mr. Madison’s notes would imply. Delegate James McHenry (MD) also kept brief notes of the day. He wrote, “Debated the difference between a power to declare war, and to make war — amended by substituting declare — adjourned without a question on the clause.” Still, it appears to me that absent an attack, only Congress can get us into hostilities.)

The motion to substitute “declare” for “make,” passed 7-2.

Charles Pinckney (SC)’s motion to strike the clause entirely went nowhere.

Pierce Butler (SC) moved to give Congress the power of peace.

Elbridge Gerry (MA) seconded. He did not trust a mere eight Senators with the power to possibly give away a portion of the US. (The treaty power was and is with the Senate. Mr. Gerry reflects the mistrust just below the surface of the Convention.)

Mr. Pierce’s motion failed 10-0.

Adjourned.

Constitutional Convention Ping!

Today was the start of several days worth of debate over related issues of rebellions, militias, standing armies, pirates, and war making powers. “Declare War” entered the Constitutional lexicon.

Despite our seeming isolation from always-at-war Europe, the US presented an inviting morsel to their land hungry rulers. Within the past twenty five years we fought the French and British, the latter of whom still controlled frontier forts in the Northwest Territory. The Spanish had been established almost three hundred years along the Gulf coast and recently closed the Mississippi and New Orleans to American shipping. An American general named James Wilkinson was in their employ to convince settlers in the old southwest of TN, AL, MS to swing their allegiance to the Spanish King. IIRC, Savannah GA was attacked in late 1787 by a Spanish led force of Creek Indians. Speaking of Indians, and also in 1787, they attacked and burned settlements within thirty miles of Philadelphia.

As for internal enemies, there were 600,000 miserable black slaves. I can’t envision myself owning another human being, but if I did, I doubt I would be able to sleep very well knowing that cutting my throat would be their first step toward freedom. Slave rebellions were a fact of life and had to be dealt with. Second were beaten down white farmers and ex-soldiers. Shays rebellion figured among the first and the officers of the Newburgh Crisis figured among the latter, although the two were not always distinguishable.

Given these matters, and the general poor performance of State Militias during the war, it logically followed our Framers would support a professional standing army. No chance. Despite the dangers, standing armies were associated with Kings who quickly turned an army supposedly designed for external defense, inward on the people. So, the question to answer was, “How to provide for national defense without endangering the republic?”

From today’s debate, is there any doubt (aside from actual or impending attack) Congress shall declare and fund the wars that the President executes? What of our “kinetic” military actions in Libya?

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