Debates in the Federal Convention of 1787
by James Madison
Thursday, August 23
The Report of the Committee of eleven, made the twenty-first of August, being taken up, and the following clause being under consideration, to wit: “To make laws for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States; reserving to the States, respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed,” —
Mr. Sherman moved to strike out the last member, “and authority of training,” &c. He thought it unnecessary. The States will have this authority of course, if not given up.
Mr. Ellsworth doubted the propriety of striking out the sentence. The reason assigned applies as well to the other reservation, of the appointment to offices. He remarked, at the same time, that the term discipline was of vast extent, and might be so expounded as to include all power on the subject.
Mr. King, by way of explanation, said that by organizing, the Committee meant, proportioning the officers and men, — by arming, specifying the kind, size, and calibre of arms, — and by disciplining, prescribing the manual exercise, evolutions, &c.
Mr. Sherman withdrew his motion.
Mr. Gerry. This power in the United States, as explained, is making the States drill-sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the command from the States, and subject them to the General Legislature. It would be regarded as a system of despotism.
Mr. Madison observed, that “arming,” as explained, did not extend to furnishing arms; nor the term “disciplining,” to penalties, and courts martial for enforcing them.
Mr. King added to his former explanation, that arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury; that laws for disciplining must involve penalties, and every thing necessary for enforcing penalties.
Mr. Dayton moved to postpone the paragraph, in order to take up the following proposition: “To establish an uniform and general system of discipline for the militia of these States, and to make laws for organizing, arming, disciplining, and governing such part of them as may be employed in the service of the United States; reserving to the States, respectively, the appointment of the officers, and all authority over the militia not herein given to the General Government.”
On the question to postpone, in favor of this proposition, it passed in the negative, — New Jersey, Maryland, Georgia, aye, — 3; New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, no, — 8.
Mr. Ellsworth and Mr. Sherman moved to postpone the second clause, in favor of the following: “To establish an uniformity of arms, exercise, and organization for the militia, and to provide for the government of them when called into the service of the United States.”
The object of this proposition was to refer the plan for the militia to the General Government, but to leave the execution of it to the State Governments.
Mr. Langdon said he could not understand the jealousy expressed by some gentlemen. The General and State Governments were not enemies to each other, but different institutions for the good of the people of America. As one of the people, he could say, The National Government is mine, the State Government is mine. In transferring power from one to the other, I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used.
Mr. Gerry thought it was rather taking out of the right hand and putting it into the left. Will any man say that liberty will be as safe in the hands of eighty or an hundred men taken from the whole continent, as in the hands of two or three hundred taken from a single State?
Mr. Dayton was against so absolute a uniformity. In some States there ought to be a greater proportion of cavalry than in others. In some places rifles would be most proper, in others muskets, &c.
General Pinckney preferred the clause reported by the Committee, extending the meaning of it to the case of fines, &c.
Mr. Madison. The primary object is to secure an effectual discipline of the militia. This will no more be done, if left to the States separately, than the requisitions have been hitherto paid by them. The States neglect their militia now, and the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety, and the less prepare its militia for that purpose; in like manner as the militia of a State would have been still more neglected than it has been, if each county had been independently charged with the care of its militia. The discipline of the militia is evidently a national concern, and ought to be provided for in the national Constitution.
Mr. L. Martin was confident that the States would never give up the power over the militia; and that, if they were to do so, the militia would be less attended to by the General than by the State Governments.
Mr. Randolph asked, what danger there could be, that the militia could be brought into the field, and made to commit suicide on themselves. This is a power that cannot, from its nature, be abused; unless, indeed, the whole mass should be corrupted. He was for trammelling the General Government whenever there was danger, but here there could be none. He urged this as an essential point; observing that the militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline. Leaving the appointment of officers to the States protects the people against every apprehension that could produce murmur.
On the question on Mr. Ellsworth’s motion, — Connecticut, aye; the other ten States, no.
A motion was then made to recommit the second clause; which was negatived.
On the question to agree to the first part of the clause, namely, “To make laws for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States,” —
New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; Connecticut, Maryland, no, — 2.
Mr. Madison moved to amend the next part of the clause so as to read, “reserving to the States, respectively, the appointment of the officers, under the rank of general officers.”
Mr. Sherman considered this as absolutely inadmissible. He said that if the people should be so far asleep as to allow the most influential officers of the militia to be appointed by the General Government, every man of discernment would rouse them by sounding the alarm to them.
Mr. Gerry. Let us at once destroy the State Governments, have an Executive for life or hereditary, and a proper Senate; and then there would be some consistency in giving full powers to the General Government: but as the States are not to be abolished, he wondered at the attempts that were made to give powers inconsistent with their existence. He warned the Convention against pushing the experiment too far. Some people will support a plan of vigorous government at every risk. Others, of a more democratic cast, will oppose it with equal determination; and a civil war may be produced by the conflict.
Mr. Madison. As the greatest danger is that of disunion of the States, it is necessary to guard against it by sufficient powers to the common government; and as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia.
On the question to agree to Mr. Madison’s motion, — New Hampshire, South Carolina, Georgia,1 aye, — 3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no, — 8.
On the question to agree to the “reserving to the states the appointment of the officers,” — it was agreed to, nem. con.
On the question on the clause, “and the authority of training the militia according to the discipline prescribed by the United States,” —
New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, North Carolina, aye, — 7; Delaware, Virginia, South Carolina, Georgia, no, — 4.
On the question to agree to Article 7, Section 7, as reported, it passed, nem. con.
Mr. Pinckney urged the necessity of preserving foreign ministers, and other officers of the United States, independent of external influence; and moved to insert after Article 7, Section 7, the clause following: “No person holding any office of trust or profit under the United States shall, without the consent of the Legislature, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State;” which passed, nem. con.
Mr. Rutledge moved to amend Article 8; to read as follows: “This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States shall be the supreme law of the several States and of their citizens and inhabitants; and the judges of the several states shall be bound thereby in their decisions, any thing in the Constitutions or laws of the several States to the contrary notwithstanding;” which was agreed to, nem. con.
Article 9, being next for consideration, —
Mr. Gouverneur Morris argued against the appointment of officers by the Senate. He considered the body as too numerous for that purpose; as subject to cabal; and as devoid of responsibility. If Judges were to be tried by the Senate, according to a late Report of a Committee, it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.
Mr. Wilson was of the same opinion, and for like reasons.
Article 9, being waived, and Article 7, Section 1, being resumed, —
Mr. Gouverneur Morris moved to strike the following words out of the eighteenth clause, “enforce treaties,” as being superfluous, since treaties were to be “laws,” — which was agreed to, nem. con.
Mr. Gouverneur Morris moved to alter the first part of the eighteenth clause, so as to read, “to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, — which was agreed to, nem. con.
On the question then to agree to the eighteenth clause of Article 7, Sect. 1, as amended, it passed in the affirmative, nem. con.
Mr. Charles Pinckney moved to add, as an additional power to be vested in the Legislature of the United States; “to negative all laws passed by the several States interfering, in the opinion of the Legislature, with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same.” This principle, he observed, had formerly been agreed to. He considered the precaution as essentially necessary. The objection drawn from the predominance of the large States had been removed by the equality established in the Senate.
Mr. Broom seconded the proposition.
Mr. Sherman thought it unnecessary; the laws of the General Government being supreme and paramount to the State laws, according to the plan as it now stands.
Mr. Madison proposed that it should be committed. He had been from the beginning a friend to the principle; but thought the modification might be made better.
Mr. Mason wished to know how the power was to be exercised. Are all laws whatever to be brought up? Is no road nor bridge to be established without the sanction of the General Legislature? Is this to sit constantly in order to receive and revise the State laws? He did not mean, by these remarks, to condemn the expedient; but he was apprehensive that great objections would lie against it.
Mr. Williamson thought it unnecessary; and having been already decided, a revival of the question was a waste of time.
Mr. Wilson considered this as the key-stone wanted to complete the wide arch of government we are raising. The power of self-defence had been urged as necessary for the State Governments. It was equally necessary for the General Government. The firmness of Judges is not of itself sufficient. Something further is requisite. It will be better to prevent the passage of an improper law, than to declare it void when passed.
Mr. Rutledge. If nothing else, this alone would damn and ought to damn, the Constitution. Will any State ever agree to be bound hand and foot in this manner? It is worse than making mere corporations of them, whose by-laws would not be subject to this shackle.
Mr. Ellsworth observed, that the power contended for would require, either that all laws of the State Legislature should, previously to their taking effect, be transmitted to the General Legislature, or be repealable by the latter; or that the State Executives should be appointed by the General Government, and have a control over the State laws. If the last was meditated, let it be declared.
Mr. Pinckney declared, that he thought the State Executives ought to be so appointed, with such a control; and that it would be so provided if another Convention should take place.
Mr. Langdon was in favor of the proposition. He considered it as resolvable into the question, whether the extent of the National Constitution was to be judged of by the General or the State Governments.
On the question for commitment, it passed in the negative, —
New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, aye, — 5; Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, Georgia, no, — 6.
Mr. Pinckney then withdrew his proposition.
The first clause of Article 7, Sect. 1, being so amended as to read, “The Legislature shall fulfil the engagements and discharge the debts of the United States; and shall have the power to lay and collect taxes, duties, imposts, and excises,” was agreed to.
Mr. Butler expressed his dissatisfaction, lest it should compel payment, as well to the blood-suckers who had speculated on the distresses of others, as to those who had fought and bled for their country. He would be ready, he said, to-morrow, to vote for a discrimination between those classes of people; and gave notice that he would move for a reconsideration.
Article 9, Sect. 1, being resumed, to wit: “The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court,” —
Mr. Madison observed, that the Senate represented the States alone; and that for this as well as other obvious reasons, it was proper that the President should be an agent in treaties.
Mr. Gouverneur Morris did not know that he should agree to refer the making of treaties to the Senate at all, but for the present would move to add, as an amendment to the section, after “treaties,” the following: “but no treaty shall be binding on the United States which is not ratified by law.”
Mr. Madison suggested the inconvenience of requiring a legal ratification of treaties of alliance, for the purposes of war, &c. &c. &c.
Mr. Gorham. Many other disadvantages must be experienced, if treaties of peace and all negotiations are to be previously ratified; and if not previously, the ministers would be at a loss how to proceed. What would be the case in Great Britain, if the King were to proceed in this manner? American ministers must go abroad not instructed by the same authority (as will be the case with other ministers) which is to ratify their proceedings.
Mr. Gouverneur Morris. As to treaties of alliance, they will oblige foreign powers to send their ministers here, the very thing we should wish for. Such treaties could not be otherwise made, if his amendment should succeed. In general he was not solicitous to multiply and facilitate treaties. He wished none to be made with Great Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty in making treaties, the more value will be set on them.
Mr. Wilson. In the most important treaties, the King of Great Britain, being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of Mr. Morris will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause without the amendment, the Senate alone can make a treaty requiring all the rice of South Carolina to be sent to some one particular port.
Mr. Dickinson concurred in the amendment, as most safe and proper, though he was sensible it was unfavorable to the little States, which would otherwise have an equal share in making treaties.
Doctor Johnson thought there was something of solecism in saying that the acts of a minister with plenipotentiary powers from one body should depend for ratification on another body. The example of the King of Great Britain was not parallel. Full and complete power was vested in him. If the Parliament should fail to provide the necessary means of execution, the treaty would be violated.
Mr. Gorham, in answer to Mr. Gouverneur Morris, said, that negotiations on the spot were not to be desired by us; especially if the whole Legislature is to have any thing to do with treaties. It will be generally influenced by two or three men, who will be corrupted by the ambassadors here. In such a government as ours, it is necessary to guard against the Government itself being seduced.
Mr. Randolph, observing that almost every speaker had made objections to the clause as it stood, moved, in order to a further consideration of the subject, that the motion of Mr. Gouverneur Morris should be postponed; and on this question, it was lost, the States being equally divided, —
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye, — 5; Massachusetts, Connecticut, North Carolina, South Carolina, Georgia, no, — 5.
On Mr. Gouverneur Morris’s motion, —
Pennsylvania, aye, — 1; Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, South Carolina, Georgia, no, — 8; North Carolina, divided.
The several clauses of Article 9, Sect. 1, were then separately postponed, after inserting, “and other public ministers,” next after “ambassadors.”
Mr. Madison hinted for consideration whether a distinction might not be made between different sorts of treaties; allowing the President and Senate to make treaties eventual, and of alliance for limited terms, and requiring the concurrence of the whole Legislature in other treaties.
The first Section of Article 9, was finally referred, nem. con., to the Committee of five, and the House then
1 In the printed Journal, Georgia, no. Return to text