The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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Friday August 17th. in Convention |
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 | The writings of James Madison, |  |
Friday August 17th. in Convention
Art. VII. Sect. 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 2ds. 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 2ds. the motion of Mr. Read.
On the motion for inserting the word "joint" before
ballot
N. H. ay. Mass. ay. Ct. no. N. J. no. Pa. ay.
Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
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
of it.
On striking out the clause as amended by inserting
"Joint"
N. H. no. Mass. no. Ct. no. Pa. ay. Del. ay.
Md. ay. Va. no. N. C. no. S. C. ay. Geo. no.
"To constitute inferior tribunals" agreed to nem.
con.
"To make rules as to captures on land & water"
d°. d°.
"To declare the law and punishment of piracies
and felonies &c &c" considered.
Mr. Madison moved to strike out "and punishment
&c."
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 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 & expounding
them.
On motion for striking out "and punishment" as
moved by Mr. Madison
N. H. no. Mass. ay. Ct. no. Pa. ay. Del. ay.
Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. Govr. Morris moved to strike out "declare the
law" and insert "punish" before "piracies," and on
the question
N. H. ay. Mass. ay. Ct. no. Pa. ay. Del. ay.
Md. ay. Va. no. N. C. no. S. C. ay. Geo. ay.
Mr. Madison & Mr. Randolph moved to insert "define
&," 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 Stat: of
Anne as to running away with vessels which at
com̃on 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 Natl. 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 & of piracies. The motion of Mr. M. & Mr.
R 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 U. States, and offences agst.
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 2ds.
Mr. L. Martin opposed it as giving a dangerous &
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 Genl. Govt. should
enforce obedience in all cases where it may be
necessary.
Mr. Elseworth. In many cases The Genl. Govt.
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 agst. letting loose the myrmidons of
the U. 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 Massts. in the
late insurrection, if the Genl. 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 Natl. 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 tranquillity.
On the motion to add, "or without it (application)
when the legislature cannot meet"
N. H. ay. Mass. no. Ct. ay. Pa. divd. Del. no.
Md. no. Va. ay. N. C. divd. S. C. ay. Geo. ay. So
agreed to.
Mr. Madison and Mr. Dickenson moved to insert as
explanatory, after "State"—"against the Government
thereof" There might be a rebellion agst. the
U. States—which was agreed to nem. con.
On the clause as amended
N. H. ay. Mass.[32]
abst. Ct. ay. Pen. abst. Del.
no. Md. no. Va. ay. N. C. no. S. C. no. Georg.
ay—so it was lost
"To make war"
Mr. Pinkney opposed the vesting this power in the
Legislature. Its proceedings were too slow. It wd.
meet but once a year. the Hs. of Reps. 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 agst. the Legislature lie
in a great degree agst. 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. Sharman thought it stood very well. The
Executive shd. 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. Elsworth. There is a material difference between
the cases of making war and making peace.
It shd. be more easy to get out of war, than into it.
War also is a simple and overt declaration, peace attended
with intricate & secret negociations.
Mr. Mason was agst. 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.
N. H. no. Mass. abst. Cont. no.[33]
Pa. ay. Del.
ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. Pinkney's motion to strike out whole clause,
disagd. 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 2ds. him. 8 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 U. 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,"
N. H. no. Mas. no. Ct. no. Pa. no. Del. no. Md.
no. Va. no. N. C. no. S. C. no. Geo. no.
Adjourned
| The writings of James Madison, | |