|Notes on the Debates in the Federal Convention
By James Madison
August 17, 1787
Friday, August 17, 1787
Article VII, Section 1 resumed. On the clause "to appoint Treasurer by ballot."
Mr. GHORUM moved to insert "joint" before ballot, as more convenient as well as reasonable, than to require the separate
concurrence of the Senate.
Mr. PINKNEY 2nds. the motion. Mr. SHERMAN opposed it as favoring the larger States.
Mr. READ moved to strike out the clause, leaving the appointment of the 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 2nds the motion of Mr. Read.
On the motion for inserting the word "joint" before ballot:
New Hampshire, aye; Massachusetts, aye; Connecticut, no; New Jersey. No; Pennsylvania, aye; Maryland, no; Virginia, aye;
North Carolina, aye; South Carolina, aye; Georgia, aye.
Col. MASON in opposition to Mr. Reads 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" New Hampshire, no; Massachusetts, no; Connecticut, no;
Pennsylvania, aye; Delaware, aye; Maryland, aye; Virginia, no; North Carolina, no; South Carolina, aye; Georgia, no.
"To constitute inferior tribunals" agreed to nem con.
"To make rules as to captures on land & water"-likewise.
"To declare the law and punishment of piracies and felonies etc.," etc., considered.
Mr. MADISON moved to strike out "and punishment" etc.
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. GOVERNR. MORRIS thought it would be necessary to extend the authority farther, 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 motion for striking out "and punishment" as moved by Mr. Madison
New Hampshire, no; Massachusetts, aye; Connecticut, no; Pennsylvania, aye; Delaware, aye; Maryland, no; Virginia, aye;
North Carolina, aye; South Carolina, aye; Georgia, aye;
Mr. Govr. MORRIS moved to strike out "declare the law" and insert "punish" before "piracies." and on the question:
New Hampshire, aye; Massachusetts, aye; Connecticut, no; Pennsylvania, aye; Delaware, aye; Maryland, aye; Virginia, no;
North Carolina, no; South Carolina, aye; Georgia, aye.
Mr. MADISON, and Mr. RANDOLPH moved to insert, "define and," before "punish."
Mr. WILSON, thought "felonies" sufficiently defined by common law.
Mr. DICKENSON 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 farther
than 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. Govr. MORRIS would prefer designate to define, the latter being as he conceived, limited to the preexisting meaning.- It
was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies and of
piracies. The motion of Mr. Morris and Mr. Randolph was agreed to.
Mr. ELSEWORTH 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 law of Nations" which was agreed
to nem con.
"To subdue a rebellion in any State, on the application of its legislature."
Mr. PINKNEY moved to strike out "on the application of its legislature"
Mr. Govr. MORRIS 2nds.
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. ELSEWORTH proposed to add after "legislature" "or Executive."
Mr. Govr. 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. ELSEWORTH. 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. Pinkney. 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. Pinkney.
Mr. Govr. 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 tranquility.
On the motion to add "or without it [application] when the legislature cannot meet"
New Hampshire, aye; Massachusetts, no; Connecticut, aye; Pennsylvania, divided; Delaware, no; Maryland, no; Virginia, aye;
North Carolina, divided; South Carolina, aye; Georgia, aye; So agreed to-
Mr. MADISON and Mr. DICKENSON moved to insert as explanatory, after "State"- "against the Government thereof"
There might be a rebellion against the United States-which was Agreed to nem con.
On the clause as amended:
New Hampshire, aye; Massachusetts, absent; Connecticut, aye; Pennsylvania, absent; Delaware, no; Maryland, no; Virginia,
aye; North Carolina, no; South Carolina, no; Georgia, aye. -so it was lost.
"To make war"
Mr. PINKNEY 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 depositary,
being more acquainted with foreign affairs, and most capable of proper resolutions. If the States are equally represented in
Senate, so as to give no advantage to 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 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
Mr. SHARMAN thought it stood very well. The Executive should be able to repel and not to commence war. "Make" 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. ELSWORTH 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.
New Hampshire, no; Massachusetts, absent; Connecticut, no; Pennsylvania, aye; Delaware, aye; Maryland, aye; Virginia, aye;
North Carolina, aye: South Carolina, aye; Georgia, aye.
Mr. PINKNEY'S motion to strike out whole clause, disagreed to without call of States.
Mr. BUTLER moved to give the Legislature power of peace, as they were to have that of war.
Mr. GERRY 2nds. him. Eight Senators may possibly exercise the power if vested in that body, and 14 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":
New Hampshire, no; Massachusetts, no; Connecticut, no; Pennsylvania, no; Delaware, no; Maryland, no; Virginia, no; North
Carolina, no; South Carolina, no; Georgia, no.
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