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.
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?