Debates in the Federal Convention of 1787
by James Madison
Saturday, August 18
In Convention, — Mr. MADISON submitted, in order to be referred to the Committee of Detail, the following powers, as proper to be added to those of the General Legislature:
“To dispose of the unappropriated lands of the United States.
“To institute temporary governments for new States arising therein.
“To regulate affairs with the Indians, as well within as without the limits of the United States.
“To exercise exclusively legislative authority at the seat of the General Government, and over a district around the same not exceeding — square miles; the consent of the Legislature of the State or States, comprising the same, being first obtained.
“To grant charters of corporation in cases where the public good may require them, and the authority of a single State may be incompetent.
“To secure to literary authors their copyrights for a limited time.
“To establish a university.
“To encourage by premiums and provisions the advancement of useful knowledge and discoveries.
“To authorize the Executive to procure, and hold for the use of the United States, landed property for the erection of forts, magazines, and other necessary buildings.”
These propositions were referred to the Committee of Detail which had prepared the Report; and at the same time the following, which were moved by Mr. PINCKNEY, — in both cases unanimously:
“To fix and permanently establish the seat of government of the United States, in which they shall possess the exclusive right of soil and jurisdiction.
“To establish seminaries for the promotion of literature and the arts and sciences.
“To grant charters of incorporation.
“To grant patents for useful inventions.
“To secure to authors exclusive rights for a certain time.
“To establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures.
“That funds which shall be appropriated for the payment of public creditors, shall not during the time of such appropriation, be diverted or applied to any other purpose, and that the Committee prepare a clause or clauses for restraining the Legislature of the United States from establishing a perpetual revenue.
“To secure the payment of the public debt.
“To secure all creditors under the new Constitution from a violation of the public faith when pledged by the authority of the Legislature.
“To grant letters of marque and reprisal.
“To regulate stages on the post-roads.”
Mr. MASON introduced the subject of regulating the militia. He thought such a power necessary to be given to the General Government. He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The militia ought, therefore, to be the more effectually prepared for the public defence. Thirteen States will never concur in any one system, if the disciplining of the militia be left in their hands. If they will not give up the power over the whole, they probably will over a part as a select militia. He moved, as an addition to the propositions just referred to the Committee of Detail, and to be referred in like manner, “a power to regulate the militia.”
Mr. GERRY remarked, that some provision ought to be made in favor of public securities, and something inserted concerning letters of marque, which he thought not included in the power of war. He proposed that these subjects should also go to a Committee.
Mr. RUTLEDGE moved to refer a clause, “that funds appropriated to public creditors should not be diverted to other purposes.”
Mr. MASON was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. He suggested the necessity of preventing the danger of perpetual revenue, which must of necessity subvert the liberty of any country. If it be objected to on the principle of Mr. RUTLEDGE’S motion, that public credit may require perpetual provisions, that case might be excepted; it being declared that in other cases no taxes should be laid for a longer term than — years. He considered the caution observed in Great Britain on this point, as the palladium of public liberty.
Mr. RUTLEDGE’S motion was referred. He then moved that a Grand Committee be appointed to consider the necessity and expediency of the United States assuming all the State debts. A regular settlement between the Union and the several States would never take place. The assumption would be just, as the State debts were contracted in the common defence. It was necessary, as the taxes on imports, the only sure source of revenue, were to be given up to the Union. It was politic, as by disburdening the people of the State debts, it would conciliate them to the plan.
Colonel MASON interposed a motion, that the Committee prepare a clause for restraining perpetual revenue, which was agreed to, nem. con.
Mr. SHERMAN thought it would be better to authorize the Legislature to assume the State debts, than to say positively it should be done. He considered the measure as just, and that it would have a good effect to say something about the matter.
Mr. PINCKNEY observed, that a great part of the State debts were of such a nature that, although in point of policy and true equity they ought to be, yet would they not be, viewed in the light of Federal expenditures.
Mr. KING thought the matter of more consequence than Mr. ELLSWORTH seemed to do; and that it was well worthy of commitment. Besides the considerations of justice and policy which had been mentioned, it might be remarked, that the State creditors, an active and formidable party, would otherwise be opposed to a plan which transferred to the Union the best resources of the States, without transferring the state debts at the same time. The State creditors had generally been the strongest foes to the impost plan. The State debts probably were of greater amount, than the Federal. He would not say that it was practicable to consolidate the debts, but he thought it would be prudent to have the subject considered by a Committee.
On Mr. RUTLEDGE’S motion, that a committee be appointed to consider of the assumption, &c., it was agreed to, — Massachusetts, Connecticut, Virginia, North Carolina, South Carolina, Georgia, aye, — 6; New Hampshire, New Jersey, Delaware, Maryland, no, — 4; Pennsylvania, divided.
Mr. GERRY’S motion to provide for public securities, for stages on post-roads, and for letters of marque and reprisal, was committed, nem. con.
A Grand Committee was appointed, consisting of Mr. LANGDON, Mr. KING, Mr. SHERMAN, Mr. LIVINGSTON, Mr. CLYMER, Mr. DICKINSON, Mr. McHENRY, Mr. MASON, Mr. WILLIAMSON, Mr. C. C. PINCKNEY, and Mr. BALDWIN.
Mr. RUTLEDGE remarked on the length of the session, the probable impatience of the public, and the extreme anxiety of many members of the Convention to bring the business to an end; concluding with a motion that the Convention meet henceforward, precisely at ten o’clock, A. M.; and that, precisely at four o’clock, P. M., the President adjourn the House without motion for the purpose; and that no motion to adjourn sooner be allowed.
On this question, — New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; Pennsylvania, Maryland, no, — 2.
Mr. ELLSWORTH observed, that a Council had not yet been provided for the President. He conceived there ought to be one. His proposition was, that it should be composed of the President of the Senate, the Chief Justice, and the Ministers as they might be established for the departments of foreign and domestic affairs, war, finance, and marine; who should advise but not conclude the President.
Mr. PINCKNEY wished the proposition to lie over, as notice had been given for a like purpose by Mr. GOUVERNEUR MORRIS, who was not then on the floor. His own idea was, that the President should be authorized to call for advice or not, as he might choose. Give him an able Council, and it will thwart him; a weak one, and he will shelter himself under their sanction.
Mr. GERRY was against letting the heads of the Departments, particularly of finance, have any thing to do in business connected with legislation. He mentioned the Chief Justice also, as particularly exceptionable. These men will also be so taken up with other matters, as to neglect their own proper duties.
Mr. DICKINSON urged, that the great appointments should be made by the Legislature, in which case they might properly be consulted by the Executive, but not if made by the Executive himself.
This subject, by general consent lay over, and the House proceeded to the clause, “to raise armies.”
Mr. GORHAM moved to add, “and support,” after “raise.” Agreed to, nem. con.; and then the clause was agreed to, nem. con., as amended.
Mr. GERRY took notice that there was no check here against standing armies in time of peace. The existing Congress is so constructed that it cannot of itself maintain an army. This would not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission. He suspected that preparations of force were now making against it. [He seemed to allude to the activity of the Governor of New York at this crisis in disciplining the militia of that State.] He thought an army dangerous in time of peace, and could never consent to a power to keep up an indefinite number. He proposed that there should not be kept up in time of peace more than — thousand troops. His idea was, that the blank should be filled with two or three thousand.
Instead of “to build and equip fleets,” “to provide and maintain a Navy,” was agreed to, nem. con., as a more convenient definition of the power.
A clause, “to make rules for the government and regulation of the land and naval forces,” was added from the existing Articles of Confederation.
General PINCKNEY asked, whether no troops were ever to be raised until an attack should be made on us?
Mr. GERRY. If there be no restriction, a few States may establish a military government.
Mr. DAYTON. Preparations for war are generally made in time of peace; and a standing force of some sort may, for aught we know, become unavoidable. He should object to no restrictions consistent with these ideas.
Mr. MASON moved, as an additional power, “to make laws for the regulation and discipline of the militia of the several States, reserving to the States the appointment of the officers.” He considered uniformity as necessary in the regulation of the militia, throughout the Union.
General PINCKNEY mentioned a case, during the war, in which a dissimilarity in the militia of different States had produced the most serious mischiefs. Uniformity was essential. The States would never keep up a proper discipline of the militia.
Mr. ELLSWORTH was for going as far, in submitting the militia to the General Government, as might be necessary: but thought the motion of Mr. MASON went too far. He moved, “that the militia should have the same arms and exercise, and be under rules established by the General Government when in actual service of the United States; and when States neglect to provide regulations for militia, it should be regulated and established by the legislature of the United States.” The whole authority over the militia ought by no means to be taken away from the States, whose consequence would pine away to nothing after such a sacrifice of power. He thought the general authority could not sufficiently pervade the Union for such a purpose, nor could it accommodate itself to the local genius of the people. It must be vain to ask the States to give the militia out of their hands.
Mr. SHERMAN seconds the motion.
Mr. DICKINSON. We are come now to a most important matter, — that of the sword. His opinion was, that the States never would, nor ought to, give up all authority over the militia. He proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole militia.
Mr. BUTLER urged the necessity of submitting the whole militia to the general authority, which had the care of the general defence.
Mr. MASON had suggested the idea of a select militia. He was led to think that would be, in fact, as much as the General Government could advantageously be charged with. He was afraid of creating insuperable objections to the plan. He withdrew his original motion, and moved a power “to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the States.”
Gen. PINCKNEY renewed Mr. MASON’S original motion. For a part to be under the General and a part under the State Governments, would be an incurable evil. He saw no room for such distrust of the General Government.
Mr. LANGDON seconds General PINCKNEY’S renewal. He saw no more reason to be afraid of the General Government than of the State Governments. He was more apprehensive of the confusion of the different authorities on this subject, than of either.
Mr. MADISON thought the regulation of the militia naturally appertaining to the authority charged with the public defence. It did not seem, in its nature, to be divisible between two distinct authorities. If the States would trust the General Government with a power over the public treasure, they would, from the same consideration of necessity, grant it the direction of the public force. Those who had a full view of the public situation would, from a sense of the danger, guard against it. The States would not be separately impressed with the general situation, nor have the due confidence in the concurrent exertions of each other.
Mr. ELLSWORTH considered the idea of a select militia as impracticable; and if it were not, it would be followed by a ruinous declension of the great body of the militia. The States would never submit to the same militia laws. Three or four shillings as a penalty will enforce obedience better in New England, than forty lashes in some other places.
Mr. PINCKNEY thought the power such an one as could not be abused, and that the States would see the necessity of surrendering it. He had, however, but a scanty faith in militia. There must be also a real military force. This alone can effectually answer the purpose. The United States had been making an experiment without it, and we see the consequence in their rapid approaches toward anarchy.1
Mr. SHERMAN took notice that the States might want their militia for defence against invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point. In giving up that of taxation, they retain a concurrent power of raising money for their own use.
Mr. GERRY thought this the last point remaining to be surrendered. If it be agreed to by the Convention, the plan will have as black a mark as was set on Cain. He had no such confidence in the General Government as some gentlemen possessed, and believed it would be found that the States have not.
Mr. READ doubted the propriety of leaving the appointment of the militia officers to the States. In some States they are elected by the Legislatures; in others, by the people themselves. He thought at least an appointment by the State Executives ought to be insisted on.
New Hampshire, Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye, — 8; Connecticut, New Jersey, no, — 2; Maryland, divided.
1 This had reference to the disorders, particularly, that had occurred in Massachusetts, which had called for the interposition of the Federal troops. Return to text