University of Virginia Library

Thursday in Convention Aug: 23, 1787

The Report of the Committee of Eleven made
Aug: 21. being taken up, and the following clause
being under consideration to wit "To make laws for
organizing, arming & disciplining the Militia, and
for governing such parts of them as may be employed

in the service of the U. S. 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. Elseworth 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 & men—by arming, specifying the kind size
& caliber of arms—& by disciplining, prescribing the
manual exercise evolutions &c.

Mr. Sherman withdrew his motion.

Mr. Gerry. This power in the U. S. 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 Genl. 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 & 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 & general system of
discipline for the Militia of these States, and to make
laws for organizing, arming, disciplining & governing
such part of them as may be employed in the service of
the U. S., 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

N. H. no. Mas. no. Ct. no. N. J. ay. P. no.
Del. no. Maryd. ay. Va. no. N. C. no. S. C. no.
Geo. ay.

Mr. Elseworth & Mr. Sherman moved to postpone
the 2d. clause in favor of the following

"To establish an uniformity of arms, exercise &
organization for the militia, and to provide for the
Government of them when called into the service of
the U. States "

The object of this proposition was to refer the
plan for the Militia to the General Govt. but to leave
execution of it to the State Govts.

Mr. Langdon said he could not understand the
jealousy expressed by some Gentlemen. The General
& State Govts. 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 Govt. is mine, the State Govt. 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 & putting it into the left. Will any man
say that liberty will be as safe in the hands of eighty
or a 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.

Genl. Pinkney 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 &
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 Genl. 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 Genl. Govt. 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 agst. every apprehension that could produce
murmur.

On Question on Mr. Elsworth's Motion

N. H. no. Mass. no. Ct. ay. N. J. no. Pa. no.
Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo.
no.

A motion was then made to recommit the 2d.
clause which was negatived.

On the question to agree to the 1st. part of the
clause, namely

"To make laws for organizing arming & disciplining
the Militia, and for governing such part of them
as may be employed in the service of the U. S."

N. H. ay. Mas. ay. Ct. no. N. J. ay. Pa. ay.
Del. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo.
ay.

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 Genl. Government,
every man of discernment would rouse them by
sounding the alarm to them.

Mr. Gerry. Let us at once destroy the State Govts.
have an Executive for life or hereditary, and a
proper Senate, and then there would be some consistency
in giving full powers to the Genl. Govt. 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
agst. 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 agst. it
by sufficient powers to the Common govt. 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

N. H. ay. Mas. no. Ct. no. N. J. no. Pa. no.
Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo.
ay[40] .

On the question to agree to the "reserving to the
States the appointment of the officers." It was
agreed to nem: contrad:

On the question on the clause "and the authority
of training the Militia according to the discipline
prescribed by the U. S."—

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay.
Del. no. Md. ay. Va. no. N. C. ay. S. C. no. Geo.
no.

On the question to agree to Art. VII. Sect. 7. as
reported it passed nem: contrad:

Mr. Pinkney urged the necessity of preserving
foreign Ministers & other officers of the U. S. independent
of external influence and moved to insert,
after Art. VII Sect 7. the clause following—"No
person holding any office of profit or trust under the
U. S. 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: contrad:

Mr. Rutlidge moved to amend Art: VIII to read as
follows,

"This Constitution & the laws of the U. S. made
in pursuance thereof, and all the Treaties made under
the authority of the U. S. shall be the supreme law
of the several States and of their citizens and inhabitants;
and the Judges in 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: contrad:

Art: IX being next for consideration,

Mr. Govr. Morris argued agst. the appointment of
officers by the Senate. He considered the body as
too numerous for the 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 & for like
reasons.

The art IX. being waved, and Art VII. Sect. 1.
resumed,

Mr. Govr. Morris moved to strike the following
words out of the 18 clause "enforce treaties" as
being superfluous, since treaties were to be "laws"
—which was agreed to nem: contrad:

Mr. Govr. Morris moved to alter 1st. part, of 18.
clause Sect. 1. art VII 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: contrad:

On the question then to agree to the 18 clause of
Sect. 1. Art: 7. as amended it passed in the affirmative
nem: contrad

Mr. C. Pinkney moved to add as an additional power
to be vested in the Legislature of the U. S. "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.[41]

Mr. Broome 2ded. the proposition.

Mr. Sherman thought it unnecessary; the laws of
the General Government being supreme & 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 & revise the State
Laws?—He did not mean by these remarks to condemn
the expedient, but he was apprehensive that
great objections would lie agst. it.

Mr. Williamson thought it unnecessary, having
been already decided, a revival of the question was
a waste of time.

Mr. Wilson considered this as the key-stone wanted
to compleat 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. Rutlidge. If nothing else, this alone would
damn and ought to damn the Constitution. Will
any State ever agree to be bound hand & foot in this
manner. It is worse than making mere corporations
of them whose bye laws would not be subject to this
shackle.

Mr. Elseworth observed that the power contended
for wd. require either that all laws of the State Legislatures
should previously to their taking effect be

transmitted to the Genl. Legislature, or be repealable
by the Latter; or that the State Executives should
be appointed by the Genl. Government, and have a
controul over the State laws. If the last was meditated
let it be declared.

Mr. Pinkney declared that he thought the State
Executives ought to be so appointed with such a
controul, & that it would be so provided if another
Convention should take place.

Mr. Governr. Morris did not see the utility or practicability
of the proposition of Mr. Pinkney, but
wished it to be referred to the consideration of a
Committee.

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 Genl. or the State Governments.

On the question for commitment, it passed in the
negative.

N. H. ay. Massts. no. Cont. no. N. J. no. Pa. ay.
Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo.
no.

Mr. Pinkney then withdrew his proposition.

The 1st. sect. of Art: VII being so amended as to
read "The Legislature shall fulfil the engagements
and discharge the debts of the U. S. & shall have the
power to lay & collect taxes duties imposts & 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 & 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 should move for a reconsideration.

Art IX Sect. 1. being resumed, to wit "The
Senate of the U. S. 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. Govr. Morris did not know that he should agree
to refer the making of Treaties to the Senate at all,
but for the present wd. move to add, as an amendment
to the section after "Treaties"—"but no
Treaty shall be binding on the U. S. which is not
ratified by a law."

Mr. Madison suggested the inconvenience of requiring
a legal ratification of treaties of alliance for the
purposes of war &c &c "

Mr. Ghorum. Many other disadvantages must be
experienced if treaties of peace & 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 G. 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. Govr. 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 shd.
succeed. In general he was not solicitious to multiply
& facilitate Treaties. He wished none to be
made with G. 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 G. 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 Legisature to lay duties on exports. Under
the clause without the amendment, the Senate alone
can make a Treaty, requiring all the Rice of S. Carolina
to be sent to some one particular port.

Mr. Dickinson concurred in the amendment, as
most safe and proper, tho' he was sensible it was unfavorable
to the little States, wch. would otherwise
have an equal share in making Treaties.

Docr. 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 G. B. was not parallel. Full &
compleat power was vested in him. If the Parliament
should fail to provide the necessary means of
execution, the Treaty would be violated.

Mr. Ghorum in answer to Mr. Govr. 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. Govr. Morris should be postponed,
and on this question It was lost the States
being equally divided.

Massts. no. Cont. no. N. J. ay. Pena. ay. Del.
ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no.

On Mr. Govr. Morris motion

Massts. no. Cont. no. N. J. no. Pa. ay. Del. no.
Md. no. Va. no. N. C. divd. S. C. no. Geo. no.

The several clauses of Sect: 1. Art IX, 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 & Senate
to make Treaties eventual and of alliance for limited
terms—and requiring the concurrence of the whole
Legislature in other Treaties.

The 1st. Sect Art IX. was finally referred nem: con:
to the committee of Five, and the House then

Adjourned.