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Charles Pinckney (SC) and Governeur Morris (PA) submitted a list of amendments. They were passed to the Committee of Detail without debate.

We recognize many of them as further limitations on the National Government. The Council of Revision was not yet dead. Habeas Corpus, press freedom, quartering of soldiers, religious tests, “privileges and immunities” were addressed.

Governeur Morris (PA)’ proposed a Council of State to assist the President.

Elbridge Gerry (MA) asked the Committee of Detail to consider Presidential qualifications and impeachment of Judges.

Rather than pick up where the laborious proceedings on the Militia left off the day prior, debate was postponed in order for the Committee of Detail to consider it.

George Mason (VA) motioned Congressional power to enact Sumptuary Laws. (They were not uncommon, though on the way out by this time. Google them for interesting reading.) He referenced Natural Law, the first I recall of it during the Convention.

Judge Oliver Ellsworth (CN), in perhaps a bit of sarcasm, said the best way to secure moral behavior was to enforce taxes and debts.

Governeur Morris (PA), a strong supporter of Aristocracy, said Sumptuary Laws promoted it.

Elbridge Gerry (MA) said “The law of necessity is the best Sumptuary Law.”

Mr. Mason’s Sumptuary Law motion failed 8-3.

Next up was the last Clause of Section 1 to Article VII of the Committee of Detail Report of 6 August, "And to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the Government of the U. S. or any department or officer thereof."

James Madison (VA) and Charles Pinckney (SC) motioned to insert “and establish all offices” between “laws” and “necessary.”

Governeur Morris (PA), James Wilson (PA), John Rutlidge (SC), Judge Oliver Ellsworth (CN) opposed the amendment. The motion failed 9-2.

The Necessary and Proper Clause passed without opposition.

(The Commerce and Necessary and Proper clauses sailed through the Convention with little contention, question, debate, or wordsmithing to more precisely frame their meanings. Compare to the extensive debate in the next section on Treason.)

Article VII Sect. 2 was next, “Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted.”

James Madison (VA) and George Mason (VA) thought the definition too narrow and would give Congress more discretion. Both referred to a Statute of Edward III. (There is a world of internet info on this.)

Governeur Morris (PA) supported a Union wide definition.

Governor Edmund Randolph thought the words, “in adhering” the only defects. He cited the British Statute, “giving them aid and comfort” as clearer.

Judge Oliver Ellsworth (CN) considered the terms to be equivalent.

Governeur Morris (PA) said “adhering” does not go as far as “aid and comfort.” (I’m not sure what he meant saying the statute is not pursued. Does it mean no one will ever be brought up on charges of treason?)

James Wilson (PA) thought “aid and comfort” explanatory, not operative, and would omit them.

John Dickinson (DE) thought “aid and comfort” neither necessary nor proper, and vague. Did testimony refer to one or multiple overt acts?

Dr. William Samuel Johnson (CN) agreed that “aid and comfort” was explanatory. He wished for a definition of overt acts.

James Madison (VA) added some more wordsmithing. The definition that emerged would apply to treason against the US. States were free to otherwise define it against them.

It was motioned to commit the Clause, which failed on a 5-5-1 vote.

James Wilson (PA) and Dr. William Samuel Johnson (CN) motioned to remove “or any of them,” after “United States” in order to remove the embarrassment, which passed without opposition. (I do not understand this use of the word, embarrassment.)

James Madison (VA) (More on “embarrassment”) said one act of treason may be dual violations, one against the US and one against a State.

Judge Oliver Ellsworth (CN) saw no danger to the National Government from this.

Dr. William Samuel Johnson (CN) still maintained no possibility of treason against a State.

George Mason (VA) used Bacon’s Rebellion as an example of treason against a State and not against the larger nation.

Rufus King (MA) (made a great point) reminded the Legislature could punish capitally for crimes that fall short of whatever definition of treason emerges.

Governeur Morris (PA) and Governor Edmund Randolph proposed (what appeared to me quite clear and reasonable) a definition of treason that went down to defeat 8-2.

It was moved and seconded to strike “against the United States,” after “Treason.” This presumably defined the term throughout the US precluded the offense against the States. It passed 8-2.

Dr. Benjamin Franklin (PA) motioned to insert “to the same overt act” after “two witnesses.” He said prosecutions for treason were generally virulent and perjury was too common.

James Wilson (PA) saw reason on both sides. Treason could be extremely difficult to prove.

The motion to add, “to the same overt act,” passed 7-3.

Rufus King (MA) sought to clarify by adding “sole” before “power,” which removed the States from the definition. Jacob Broome (DE) seconded.

James Wilson (PA) did not trust his present judgment of the issue.

Rufus King (MA) said States could still punish offenses as high misdemeanors.

The motion to insert “sole” was rejected 6-5.

James Wilson (PA) said the clause was now ambiguous.

Rufus King (MA) viewed treason against a State as treason against the US.

Rufus King (MA), Roger Sherman (CN), Judge Oliver Ellsworth (CN) discussed the line between treason against a State and the US.

John Dickinson (DE) agreed that treason against a State was likewise treason against the US, but a clear definition was required.

James Wilson (PA) and Judge Oliver Ellsworth (CN) moved to reinstate “against the United States,” which passed 6-5. (Who would have the thought the final clause would be so difficult to arrive at?)

James Madison (VA) so much as said, and Governeur Morris (PA) agreed, the clause as written was a mess.

It was motioned and seconded to modify the sentence to read, "Treason agst. the U. S. shall consist only in levying war against them, or in adhering to their enemies" which was agreed to.

George Mason (VA) motioned, and the Convention accepted, “giving them aid and comfort.”

Luther Martin (MD) moved to insert “or on confession in open court,” which was rejected as superfluous.

Article VII Section 2 as amended, was agreed to without opposition.

Article VII Sect. 3. “The proportions of direct taxation shall be regulated by the whole number of white and other free citizens and inhabitants of every age, sex and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, (except Indians not paying taxes) which number shall, within six years after the first meeting of the Legislature, and within the term of every ten years afterwards, be taken in such manner as the said Legislature shall direct,” was next.

“White and other” were immediately struck out.

Judge Oliver Ellsworth (CN) motioned to require a census within three years rather than six. On the question, it passed 9-2.

Rufus King (MA) asked for a precise definition of direct taxation. Crickets. (I’ve long wondered this myself. It would be a point of contention at the State Ratifying Conventions.)

Elbridge Gerry (MA) motioned to add, "That from the first meeting, of the Legislature of the U. S. until a Census shall be taken all monies for supplying the public Treasury by direct taxation shall be raised from the several States according to the number of their Representatives respectively in the first branch." (It would appear Mr. Gerry found no difficulty using an undefined term, “direct taxation.” He also resorted to the failed system of tax requisitions as under the Articles of Confederation.)

John Langdon (NH) opposed direct, proportional taxation.

Daniel Carroll (MD) also opposed. Taxation by proportion of representatives was too rough of an estimate.

The Convention abruptly adjourned. (By recent rule, the President promptly adjourned at 4 pm.)

1 posted on 08/20/2011 5:47:03 AM PDT by Jacquerie
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To: Lady Jag; Ev Reeman; familyof5; NewMediaJournal; pallis; Kartographer; SuperLuminal; unixfox; ...
Constitutional Convention Ping!

Treason in 1787 was not an historical footnote. To most Americans, treason was synonymous with Tory, a/k/a Loyalist, those who were loyal to Great Britain. To the victor of the revolution went the spoils, and the sovereign States ruthlessly confiscated Tory property. Nine states went so far as to exile their Loyalists and five disfranchised them. Mandatory oaths of allegiance to States under penalty of loss of citizenship were common.

Who cared what the States did in this regard? Well, it had nation implications. The 1783 Treaty of Peace with Great Britain specified that no future confiscations could be made, nor any prosecutions could take place by virtue of any part a Loyalist played in the war. Repayment of prewar debt owed by Americans to British merchants was also required. In VA, future Governor Edmund Randolph declared that not even the resurrection of the prophets would convince Americans who owed money to English merchants that a mere treaty could force them to do so. Generally, the states responded they were not party to the Treaty and their judges could not enforce anything that was not State law.

Britain’s response was to retain control of the frontier forts they were supposed to surrender to the US. They fomented Indian attacks from these outposts along the Mississippi and Great Lakes against American settlers. Our weak government was getting Americans killed.

With this immediate background in mind, and knowledge of how treason could be used to silence political opponents as was occasionally done throughout English history, the Framers had to carefully craft the crime of Treason. In the space of an afternoon, they came up with the familiar language in Article III.

By defining treason, taking it and punishment for it away from the States, combined with the Supremacy of Treaties in Article VI, the US Constitution nullified relevant State laws. English merchants could sue for debt in state courts; British soldiers relinquished the frontier forts, and Americans began their westward settlement.

2 posted on 08/20/2011 5:50:42 AM PDT by Jacquerie (Allowed to continue, the Living Constitution will be the bloody death of our republic.)
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