by James Madison

In Convention, — Article 7, Sect. 1, was resumed.

On the clause, “to appoint a Treasurer by ballot,” —

Mr. GORHAM moved to insert “joint” before ballot, as more convenient, as well as reasonable, than to require the separate concurrence of the Senate.

Mr. PINCKNEY seconds the motion.

Mr. SHERMAN opposed it, as favoring the larger States.

Mr. READ moved to strike out the clause, leaving the appointment of a Treasurer, as of other officers, to the Executive. The Legislature was an improper body for appointments. Those of the State Legislatures were a proof of it. The Executive being responsible, would make a good choice.

Mr. MERCER seconds the motion of Mr. READ.

On the motion for inserting the word “joint” before “ballot,” — New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye, — 7; Connecticut, New Jersey, Maryland, no, — 3.

Colonel MASON in opposition to Mr. READ’S motion, desired it might be considered, to whom the money would belong; if to the people, the Legislature, representing the people, ought to appoint the keepers of it.

On striking out the clause, as amended, by inserting “joint,” — Pennsylvania, Delaware, Maryland, South Carolina, aye, — 4; New Hampshire, Massachusetts, Connecticut, Virginia, North Carolina, Georgia no, — 6.

The clause, “to constitute inferior tribunals,” was agreed to, nem. con.; as also the clause, “to make rules as to captures on land and water.”

The clause, “to declare the law and punishment of piracies and felonies, &c. &c.” being considered, —

Mr. MADISON moved to strike out, “and punishment, &c.” after the words, “to declare the law.”

Mr. MASON doubts the safety of it, considering the strict rule of construction in criminal cases. He doubted also the propriety of taking the power in all these cases, wholly from the States.

Mr. GOUVERNEUR MORRIS thought it would be necessary to extend the authority further, so as to provide for the punishment of counterfeiting in general. Bills of exchange, for example, might be forged in one State, and carried into another.

It was suggested by some other member, that foreign paper might be counterfeited by citizens; and that it might be politic to provide by national authority for the punishment of it.

Mr. RANDOLPH did not conceive that expunging “the punishment” would be a constructive exclusion of the power. He doubted only the efficacy of the word “declare.”

Mr. WILSON was in favor of the motion. Strictness was not necessary in giving authority to enact penal laws, though necessary in enacting and expounding them.

On the question for striking out “and punishment,” as moved by Mr. MADISON, — Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye, — 7; New Hampshire, Connecticut, Maryland, no, — 3.

Mr. GOUVERNEUR MORRIS moved to strike out “declare the law,” and insert “punish,” before “piracies;” and on the question, — New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, aye, — 7; Connecticut, Virginia, North Carolina, no, — 3.

Mr. MADISON and Mr. RANDOLPH moved to insert “define and,” before “punish.”

Mr. WILSON thought “felonies” sufficiently defined by common law.

Mr. DICKINSON concurred with Mr. WILSON.

Mr. MERCER was in favor of the amendment.

Mr. MADISON. Felony at common law is vague. It is also defective. One defect is supplied by Statute of Anne, as to running away with vessels, which at common law was a breach of trust only. Besides, no foreign law should be a standard, further than it is expressly adopted. If the laws of the States were to prevail on this subject, the citizens of different States would be subject to different punishments for the same offence at sea. There would be neither uniformity nor stability in the law. The proper remedy for all these difficulties was, to vest the power proposed by the term “define,” in the National Legislature.

Mr. GOUVERNEUR MORRIS would prefer designate to define, the latter being, as he conceived, limited to the preëxisting meaning.

It was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies and piracies.

The motion of Mr. MADISON and Mr. RANDOLPH was agreed to.

Mr. ELLSWORTH enlarged the motion, so as to read, “to define and punish piracies and felonies committed on the high seas, counterfeiting the securities and current coin of the United States, and offences against the laws of nations;” which was agreed to, nem. con.

The clause, “to subdue a rebellion in any State, on the application of its Legislature,” was next considered.

Mr. PINCKNEY moved to strike out, “on the application of its Legislature.”

Mr. GOUVERNEUR MORRIS seconds.

Mr. L. MARTIN opposed it, as giving a dangerous and unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.

Mr. MERCER supported the opposition of Mr. MARTIN.

Mr. ELLSWORTH proposed to add, after “legislature,” “or Executive.”

Mr. GOUVERNEUR MORRIS. The Executive may possibly be at the head of the rebellion. The General Government should enforce obedience in all cases where it may be necessary.

Mr. ELLSWORTH. In many cases the General Government ought not to be able to interpose, unless called upon. He was willing to vary his motion, so as to read, “or without it, when the Legislature cannot meet.”

Mr. GERRY was against letting loose the myrmidons of the United States on a State, without its own consent. The States will be the best judges in such cases. More blood would have been spilt in Massachusetts, in the late insurrection, if the general authority had intermeddled.

Mr. LANGDON was for striking out, as moved by Mr. PINCKNEY. The apprehension of the National force will have a salutary effect, in preventing insurrections.

Mr. RANDOLPH. If the National Legislature is to judge whether the State Legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of Mr. PINCKNEY.

Mr. GOUVERNEUR MORRIS. We are acting a very strange part. We first form a strong man to protect us, and at the same time wish to tie his hands behind him. The Legislature may surely be trusted with such a power to preserve the public tranquillity.

On the motion to add, “or without it [application] when the Legislature cannot meet,” it was agreed to, —

New Hampshire, Connecticut, Virginia, South Carolina, Georgia, aye, — 5; Massachusetts, Delaware, Maryland, no, — 3; Pennsylvania, North Carolina, divided.

Mr. MADISON and Mr. DICKINSON moved to insert, as explanatory, after “State,” “against the Government thereof.” There might be a rebellion against the United States. The motion was agreed to, nem. con.

On the clause, as amended, —

New Hampshire, Connecticut, Virginia, Georgia, aye, — 4; Delaware, Maryland, North Carolina, South Carolina, no, — 4; Massachusetts,¹  Pennsylvania, absent. So it was lost.

On the clause, “to make war,” —

Mr. PINCKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It would meet but once a year. The House of Representatives would be too numerous for such deliberations. The Senate would be the best depository being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in the Senate, so as to give no advantage to the large States, the power will, notwithstanding, be safe, as the small have their all at stake in such cases as well as the large States. It would be singular for one authority to make war, and another peace.

Mr. BUTLER. The objections against the Legislature lie in a great degree against the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it.

Mr. MADISON and Mr. GERRY moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.

Mr. SHERMAN thought it stood very well. The Executive should be able to repel, and not to commence, war. “Make” is better than declare, the latter narrowing the power too much.

Mr. GERRY never expected to hear, in a republic, a motion to empower the Executive alone to declare war.

Mr. ELLSWORTH. There is a material difference between the cases of making war and making peace. It should be more easy to get out of war than into it. War also is a simple and overt declaration, peace attended with intricate and secret negotiations.

Mr. MASON was against giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging, rather than facilitating war; but for facilitating peace. He preferred “declare” to “make.”

On the motion to insert “declare” in place of “make” it was agreed to, —

Connecticut,²  Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 8; New Hampshire, no, — 1; Massachusetts, absent.

Mr. PINCKNEY’S motion to strike out the whole clause, was disagreed to, without call of States.

Mr. BUTLER moved to give the Legislature the power of peace, as they were to have that of war.

Mr. GERRY seconds him. Eight Senators may possibly exercise the power, if vested in that body; and fourteen, if all should be present; and may consequently give up part of the United States. The Senate are more liable to be corrupted by an enemy than the whole Legislature.

On the motion for adding “and peace,” after “war,” — it was unanimously negatived.

Adjourned.

¹ In the printed Journal, Massachusetts, no. 

² Connecticut voted in the negative; but on the remark by Mr. King, that “make” war might be understood to “conduct” it, which was an Executive function, Mr. Ellsworth gave up his objection, and the vote was changed to aye.