Debates in the Federal Convention of 1787
by James Madison
Monday, August 20
In Convention, — Mr. PINCKNEY submitted to the House, in order to be referred to the Committee of Detail, the following propositions:
“Each House shall be the judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same, or who, in the place where the Legislature may be sitting, and during the time of its session, shall threaten any of its members for any thing said or done in the House; or who shall assault any of them therefor; or who shall assault or arrest any witness or other person ordered to attend either of the Houses, in his way going or returning; or who shall rescue any person arrested by their order.
“Each branch of the Legislature, as well as the Supreme Executive, shall have authority to require the opinions of the Supreme Judicial Court upon important questions of law, and upon solemn occasions.
“The privileges and benefit of the writ of Habeas Corpus shall be enjoyed in this Government in the most expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding — months.
“The liberty of the press shall be inviolably preserved.
“No troops shall be kept up in time of peace, but by consent of the Legislature.
“The military shall always be subordinate to the civil power; and no grants of money shall be made by the Legislature for supporting military land forces, for more than one year at a time.
“No soldier shall be quartered in any house, in time of peace, without consent of the owner.
“No person holding the office of President of the United States, a Judge of their Supreme Court, Secretary for the department of Foreign Affairs, of Finance, of Marine, of War, or of —, shall be capable of holding, at the same time any other office of trust or emolument, under the United States, or an individual State.
“No religious test or qualification shall ever be annexed to any oath of office, under the authority of the United States.
“The United States shall be for ever considered as one body corporate and politic in law, and entitled to all the rights, privileges, and immunities, which to bodies corporate do or ought to appertain.
“The Legislature of the United States shall have the power of making the Great Seal, which shall be kept by the President of the United States, or in his absence by the President of the Senate, to be used by them as the occasion may require. It shall be called the Great Seal of the United States, and shall be affixed to all laws.
“All commissions and writs shall run in the name of the United States.
“The jurisdiction of the Supreme Court shall be extended to all controversies between the United States and an individual State, or the United States and the citizens of an individual State.”
These propositions were referred to the Committee of Detail, without debate or consideration of them by the House.
“To assist the President in conducting the public affairs, there shall be a Council of State composed of the following officers:
“1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the United States, as may in his opinion be necessary to the due administration of justice; and such as may promote useful learning and inculcate sound morality throughout the Union. He shall be President of the Council, in the absence of the President.
“2. The Secretary of Domestic Affairs, who shall be appointed by the President, and hold his office during pleasure. It shall be his duty to attend to matters of general police, the state of agriculture and manufactures, the opening of roads and navigations, and the facilitating communications through the United States; and he shall from time to time recommend such measures and establishments as may tend to promote those objects.
“3. The Secretary of Commerce and Finance, who shall also be appointed by the President during pleasure. It shall be his duty to superintend all matters relating to the public finances, to prepare and report plans of revenue and for the regulation of expenditures, and also to recommend such things as may, in his judgment, promote the commercial interests of the United States.
“4. The Secretary of Foreign Affairs, who shall also be appointed by the President during pleasure. It shall be his duty to correspond with all foreign ministers, prepare plans of treaties, and consider such as may be transmitted from abroad; and generally to attend to the interests of the United States in their connexions with foreign powers.
“5. The Secretary of War, who shall also be appointed by the President during pleasure. It shall be his duty to superintend every thing relating to the War department, such as the raising and equipping of troops, the care of military stores, public fortifications, arsenals, and the like; also in time of war to prepare and recommend plans of offence and defence.
“6. The Secretary of the Marine, who shall also be appointed during pleasure. It shall be his duty to superintend every thing relating to the Marine department, the public ships, dock-yards, naval stores, and arsenals; also in the time of war to prepare and recommend plans of offence and defence.
“The President shall also appoint a Secretary of State, to hold his office during pleasure; who shall be Secretary to the Council of State, and also public Secretary to the President. It shall be his duty to prepare all public despatches from the President, which he shall countersign. The President may from time to time submit any matter to the discussion of the Council of State, and he may require the written opinions of any one or more of the members. But he shall in all cases exercise his own judgment, and either conform to such opinions, or not, as he may think proper; and every officer above mentioned shall be responsible for his opinion, on the affairs relating to his particular department.
“Each of the officers above mentioned shall be liable to impeachment and removal from office, for neglect of duty, malversation, or corruption.”
Mr. GERRY moved, “that the Committee be instructed to report proper qualifications for the President, and a mode of trying the Supreme Judges in cases of impeachment.”
The clause, “to call forth the aid of the militia, &c.,” was postponed till report should be made as to the power over the militia, referred yesterday to the Grand Committee of eleven.
Mr. MASON moved to enable Congress “to enact sumptuary laws.” No government can be maintained unless the manners be made consonant to it. Such a discretionary power may do good, and can do no harm. A proper regulation of excises and of trade, may do a great deal; but it is best to have an express provision. It was objected to sumptuary laws, that they are contrary to nature. This was a vulgar error. The love of distinction, it is true, is natural; but the object of sumptuary laws is not to extinguish this principle, but to give it a proper direction.
Mr. ELLSWORTH. The best remedy is to enforce taxes and debts. As far as the regulation of eating and drinking can be reasonable, it is provided for in the power of taxation.
Mr. GOUVERNEUR MORRIS argued that sumptuary laws tended to create a landed nobility, by fixing in the great landholders, and their posterity, their present possessions.
Mr. GERRY. The law of necessity is the best sumptuary law.
On the motion of Mr. MASON as to “sumptuary laws,” —
Delaware, Maryland, Georgia, aye, — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, no, — 8.
On the clause “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 United States, or any department or officer thereof,” —
On the motion for inserting, “and establish all offices,” –
Massachusetts, Maryland, aye, — 2; New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, no, — 9.
The clause as reported was then agreed to, nem. con.
Article 7, Sect. 2, concerning treason, was then taken up.
Mr. MADISON thought the definition too narrow. It did not appear to go as far as the statute of Edward the Third. He did not see why more latitude might not be left to the Legislature. It would be as safe as in the hands of State Legislatures; and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused.
Mr. MASON was for pursuing the statute of Edward the Third.
Mr. GOUVERNEUR MORRIS was for giving to the Union an exclusive right to declare what should be treason. In case of a contest between the United States and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority.
Mr. RANDOLPH thought the clause defective in adopting the words, “in adhering,” only. The British statute adds, “giving them aid and comfort,” which had a more extensive meaning.
Mr. ELLSWORTH considered the definition as the same in fact with that of the statute.
Mr. GOUVERNEUR MORRIS. “Adhering” does not go so far as “giving aid and comfort,” or the latter words may be restrictive of “adhering.” In either case the statute is not pursued.
Mr. WILSON held “giving aid and comfort,” to be explanatory, not operative words; and that it was better to omit them.
Mr. DICKINSON thought the addition of “giving aid and comfort” unnecessary and improper; being too vague and extending too far. He wished to know what was meant by the “testimony of two witnesses;” whether they were to be witnesses to the same overt act, or to different overt acts. He thought also, that proof of an overt act ought to be expressed as essential in the case.
Doctor JOHNSON considered “giving aid and comfort” as explanatory of “adhering,” and that something should be inserted in the definition concerning overt acts. He contended that treason could not be both against the United States, and individual States; being an offence against the sovereignty which can be but one in the same community.
Mr. MADISON remarked, that “and,” before “in adhering,” should be changed into “or;” otherwise both offences, viz., of “levying war,” and of “adhering to the enemy,” might be necessary to constitute treason. He added, that, as the definition here was of treason against the United States, it would seem that the individual States would be left in possession of a concurrent power, so far as to define and punish treason particularly against themselves, which might involve double punishment.
It was moved that the whole clause be recommitted, which was lost, the votes being equally divided, —
New Jersey, Pennsylvania, Maryland, Virginia, Georgia, aye, — 5; New Hampshire, Massachusetts, Connecticut, Delaware, South Carolina, no, — 5; North Carolina, divided.
Mr. MADISON. This has not removed the embarrassment. The same act might be treason against the United States, as here defined; and against a particular state, according to its laws.
Mr. ELLSWORTH. There can be no danger to the general authority from this; as the laws of the United States are to be paramount.
Doctor JOHNSON was still of opinion there could be no treason against a particular State. It could not, even at present, as the Confederation now stands; the sovereignty being in the Union; much less can it be under the proposed system.
Colonel MASON. The United States will have a qualified sovereignty only. The individual States will retain a part of the sovereignty. An act may be treason against a particular State, which is not so against the United States. He cited the rebellion of Bacon, in Virginia as an illustration of the doctrine.
Doctor JOHNSON. That case would amount to treason against the sovereign, the supreme sovereign, the United States.
Mr. KING observed, that the controversy relating to treason, might be of less magnitude than was supposed; as the Legislature might punish capitally under other names than treason.
Mr. GOUVERNEUR MORRIS and Mr. RANDOLPH wished to substitute the words of the British statute, and moved to postpone Article 7, Section 2, in order to consider the following substitute: “Whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of treason, it is therefore ordained, declared, and established, that if a man do levy war against the United States within their territories, or be adherent to the enemies of the United States within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed, by the people of his condition, he shall be adjudged guilty of treason.”
On this question, —
New Jersey, Virginia, aye, — 2; Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, no, — 8.
It was then moved to strike out “against the United States” after “treason,” so as to define treason generally; and on this question, —
Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, aye, — 8; Virginia, North Carolina, no, — 2.
It was then moved to insert after “two witnesses,” the words, “to the same overt act.”
Doctor FRANKLIN wished this amendment to take place. Prosecutions for treason were generally virulent; and perjury too easily made use of against innocence.
Mr. WILSON. Much may be said on both sides. Treason may sometimes be practised in such a manner as to render proof extremely difficult, — as in a traitorous correspondence with an enemy.
On the question, as to “same overt act,” — New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, aye, — 8; New Jersey, Virginia, North Carolina, no, — 3.
Mr. KING moved to insert, before the word “power,” the word, “sole,” giving the United States the exclusive right to declare the punishment of treason.
Mr. BROOM seconds the motion.
Mr. WILSON. In cases of a general nature, treason can only be against the United States; and in such they should have the sole right to declare the punishment; yet in many cases it may be otherwise. The subject was, however, intricate, and he distrusted his present judgment on it.
Mr. KING. This amendment results from the vote defining treason generally, by striking out, “against the United States,” which excludes any treason against particular States. These may, however, punish offences, as high misdemeanors.
On the question for inserting the word “sole,” it passed in the negative, — New Hampshire, Massachusetts, Pennsylvania, Delaware, South Carolina, aye, — 5; Connecticut, New Jersey, Maryland, Virginia, North Carolina, Georgia, no, — 6.
Mr. WILSON. The clause is ambiguous now. “Sole” ought either to have been inserted, or “against the United States,” to be reinstated.
Mr. KING. No line can be drawn between levying war and adhering to the enemy against the United States, and against an individual State. Treason against the latter must be so against the former.
Mr. SHERMAN. Resistance against the laws of the United States, as distinguished from resistance against the laws of a particular State, forms the line.
Mr. ELLSWORTH. The United States are sovereign on one side of the line, dividing the jurisdictions, — the States on the other. Each ought to have power to defend their respective sovereignties.
Mr. DICKINSON. War or insurrection against a member of the Union must be so against the whole body; but the Constitution should be made clear on this point.
The clause was reconsidered, nem. con.; and then Mr. WILSON and Mr. ELLSWORTH moved to reinstate, “against the United States,” after “treason”; on which question, — Connecticut, New Jersey, Maryland, Virginia, North Carolina, Georgia, aye, — 6; New Hampshire, Massachusetts, Pennsylvania, Delaware, South Carolina, no, — 5.
Mr. MADISON was not satisfied with the footing on which the clause now stood. As treason against the United States involves treason against particular States, and vice versa, the same act may be twice tried, and punished by the different authorities.
Mr. GOUVERNEUR MORRIS viewed the matter in the same light.
It was moved and seconded to amend the sentence to read: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies”; which was agreed to.
Colonel MASON moved to insert the words, “giving them aid and comfort,” as restrictive of “adhering to their enemies,” &c. The latter, he thought, would be otherwise too indefinite. This motion was agreed to, — Connecticut, Delaware, and Georgia only being in the negative.
Mr. L. MARTIN moved to insert after conviction, &c., “or on confession in open court”; and on the question (the negative States thinking the words superfluous), it was agreed to, — New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye, — 7; Massachusetts, South Carolina, Georgia, no, — 3; North Carolina, divided.
Article 7, Sect. 2, as amended, was then agreed to, nem. con.
Article 7, Sect. 3, was taken up. The words, “white and others,” were struck out, nem. con., as superfluous.
Mr. ELLSWORTH moved to require the first census to be taken within “three,” instead of “six,” years, from the first meeting of the Legislature; and on the question, — New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye, — 9; South Carolina, Georgia, no, — 2.
Mr. KING asked what was the precise meaning of direct taxation? No one answered.
Mr. GERRY moved to add to Article 7, Sect. 3, the following clause: “That from the first meeting of the Legislature of the United States until a census shall be taken, all moneys 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.”
Mr. LANGDON. This would bear unreasonably hard on New Hampshire, and he must be against it.
Mr. CARROLL opposed it. The number of Representatives did not admit of a proportion exact enough for a rule of taxation.
Before any question, the House