University of Virginia Library

Monday August 20. in Convention

Mr. Pinkney submitted to the House, in order to be
referred to the Committee of detail, the following
propositions—" Each House shall be the judge of its
own privileges, and shall have authority to punish
by imprisonment every person violating the same,
or who, in the place where the Legislature may be
sitting and during the time of its Session, shall
threaten any of its members for any thing said or
done in the House; or who shall assault any of them
therefor—or who shall assault or arrest any witness
or other person ordered to attend either of the
Houses in his way going or returning; or who shall
rescue any person arrested by their order."

"Each branch of the Legislature, as well as the
supreme Executive shall have authority to require

the opinions of the supreme Judicial Court upon important
questions of law, and upon solemn occasions"

"The privileges and benefit of the Writ of Habeas
corpus shall be enjoyed in this Government in the
most expeditious and ample manner; and shall not
be suspended by the Legislature except upon the
most urgent and pressing occasions, and for a limited
time not exceeding—months."

"The liberty of the Press, shall be inviolably preserved"

"No troops shall be kept up in time of peace, but
by consent of the Legislature"

"The military shall always be subordinate to the
Civil power, and no grants of money shall be made
by the Legislature for supporting military Land
forces, for more than one year at a time"

"No soldier shall be quartered in any house in
time of peace without consent of the owner."

"No person holding the office of President of the
U. S. a Judge of their supreme Court, Secretary for
the department of Foreign Affairs, of Finance, of
Marine, of War, or of—, shall be capable of holding
at the same time any other office of Trust or
emolument under the U. S. or an individual State."

"No religious test or qualification shall ever be
annexed to any oath of office under the authority of
the U. S."

"The U. S. shall be forever considered as one
Body corporate and politic in law, and entitled to all
the rights privileges and immunities, which to Bodies
corporate ought to or do appertain"

"The Legislature of the U. S. shall have the power
of making the Great Seal which shall be kept by the
President of the U. S. or in his absence by the President
of the Senate, to be used by them as the
occasion may require.—It shall be called the Great
Seal of the U. S. and shall be affixed to all laws."

"All commissions and writs shall run in the name
of the U. S."

"The Jurisdiction of the Supreme Court shall be
extended to all controversies between the U. S. and
an individual State, or the U. S. and the Citizens
of an individual State"

These propositions were referred to the Committee
of detail without debate or consideration of them by
the House.

Mr. Govr. Morris 2ded. by Mr. Pinkney, submitted the
following propositions which were in like manner referred
to the Committee of Detail.

"To assist the President in conducting the Public
affairs there shall be a Council of State composed of the
following officers—

1.

• The Chief Justice of the Supreme
  Court, who shall from time to time recommend
  such alterations of and additions to the laws of the
  U. S. as may in his opinion be necessary to the due
  administration of Justice, and such as may promote
  useful learning and inculcate sound morality throughout
  the Union: He shall be President of the Council
  in the absence of the President.

2.

• The Secretary of Domestic affairs who shall be
  appointed by the President and hold his office during
  pleasure. It shall be his duty to attend to matters
  

  ---

  243

  
  
  
  of general police, the State of Agriculture and manufactures,
  the opening of roads and navigations, and
  the facilitating communications thro' the U. States;
  and he shall from time to time recommend such
  measures and establishments as may tend to promote
  those objects.

3.

• The Secretary of Commerce and Finance who
  shall also be appointed by the President during
  pleasure. It shall be his duty to superintend all
  matters relating to the public finances, to prepare
  & report plans of revenue and for the regulation of
  expenditures, and also to recommend such things
  as may in his Judgment promote the commercial
  interests of the U. S.

4.

• The Secretary of foreign affairs who shall also
  be appointed by the President during pleasure. It
  shall be his duty to correspond with all foreign
  Ministers, prepare plans of Treaties, & consider such
  as may be transmitted from abroad, and generally
  to attend to the interests of the U. S. in their connections
  with foreign powers.

5.

• The Secretary of War who shall also be appointed
  by the President during pleasure. It shall
  be his duty to superintend every thing relating to the
  war Department, such as the raising and equipping
  of troops, the care of military stores, public fortifications,
  arsenals & the like—also in time of war to prepare
  & recommend plans of offence and Defence.

6.

• The Secretary of the Marine who shall also
  be appointed during pleasure—It shall be his duty
  to superintend every thing relating to the Marine
  

  ---

  244

  
  
  
  Department, the public ships, Dock Yards, naval
  Stores & arsenals—also in the time of war to prepare
  and recommend plans of offence and defence.

The President shall also appoint a Secretary of
State to hold his office during pleasure; who shall
be Secretary to the Council of State, and also public
Secretary to the President. It shall be his duty to
prepare all Public dispatches from the President
which he shall countersign

The President may from time to time submit any
matter to the discussion of the Council of State, and
he may require the written opinions of any one or
more of the members: But he shall in all cases exercise
his own judgment, and either Conform to such
opinions or not as he may think proper; and every
officer above mentioned shall be responsible for
his opinion on the affairs relating to his particular
Department.

Each of the officers above mentioned shall be
liable to impeachment & removal from office for
neglect of duty malversation or corruption"

Mr. Gerry moved "that the Committee be instructed
to report proper qualifications for the President,
and a mode of trying the Supreme Judges in
cases of impeachment.

The clause "to call forth the aid of the Militia
&c. was postponed till report should be made as to
the power over the Militia referred yesterday to the
Grand Committee of eleven.

Mr. Mason moved to enable Congress "to enact
sumptuary laws." No Government can be maintained

unless the manners be made consonant to it.
Such a discretionary power may do good and can do
no harm. A proper regulation of excises & of trade
may do a great deal but it is best to have an express
provision. It was objected to sumptuary laws that
they were contrary to nature. This was a vulgar
error. The love of distinction it is true is natural;
but the object of sumptuary laws is not to extinguish
this principle but to give it a proper direction.

Mr. Elseworth. The best remedy is to enforce
taxes & debts. As far as the regulation of eating &
drinking can be reasonable, it is provided for in the
power of taxation.

Mr. Govr. Morris argued that sumptuary laws
tended to create a landed nobility, by fixing in the
great-landholders and their posterity their present
possessions.

Mr. Gerry, the law of necessity is the best sumptuary
law.

On Motion of Mr. Mason "as to sumptuary laws"

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

"And to make all laws necessary and proper for
carrying into execution the foregoing powers, and all
other powers vested, by this Constitution, in the
Government of the U. S. or any department or officer
thereof."

Mr. Madison and Mr. Pinkney moved to insert between
"laws" and "necessary" "and establish all
offices," it appearing to them liable to cavil that the
latter was not included in the former.

Mr. Govr. Morris, Mr. Wilson, Mr. Rutlidge and Mr.
Elseworth urged that the amendment could not be
necessary.

On the motion for inserting "and establish all
office"

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

The clause as reported was then agreed to nem.
con.

Art: VII Sect. 2. concerning Treason which see.

Mr. Madison, thought the definition too narrow. It
did not appear to go as far as the Stat. of Edwd. III.
He did not see why more latitude might not be left
to the Legislature. It wd. be as safe as in the hands of
State legislatures. And it was inconvenient to bar
a discretion which experience might enlighten, and
which might be applied to good purposes as well as
be abused.

Mr. Mason was for pursuing the Stat: of Edwd. III.

Mr. Govr. Morris was for giving to the Union an exclusive
right to declare what shd. be treason. In case
of a contest between the U. S. and a particular State,
the people of the latter must under the disjunctive
terms of the clause, be traitors to one or other authority.

Mr. Randolph thought the clause defective in
adopting the words, "in adhering" only. The British
Stat: adds, "giving them aid and comfort" which
had a more extensive meaning.

Mr. Elseworth considered the definition as the same
in fact with that of the Statute.

Mr. Govr. Morris "adhering" does not go so far as
"giving aid and comfort" or the latter words may
be restrictive of "adhering," in either case the
Statute is not pursued.

Mr. Wilson held "giving aid and comfort" to be
explanatory, not operative words; and that it was
better to omit them.

Mr. Dickenson, thought the addition of "giving aid
and comfort" unnecessary & improper; being too
vague and extending too far. He wished to know
what was meant by the "testimony of two witnesses"
whether they were to be witnesses to the same overt
act or to different overt acts. He thought also that
proof of an overt act ought to be expressed as essential
in the case.

Docr. Johnson considered "giving aid & comfort"
as explanatory of "adhering" & that something
should be inserted in the definition concerning overt
acts. He contended that Treason could not be both
agst. the U. States—and individual States; being an
offence agst. the Sovereignty which can be but one in
the same community.

Mr. Madison remarked that "and" before "in adhering"
should be changed into "or" otherwise both
offences viz. of "levying war," & of adhering to the
Enemy might be necessary to constitute Treason.
He added that, as the definition here was of treason
against the U. S. it would seem that the individual
States wd. be left in possession of a concurrent power
so far as to define & punish treason particularly agst.
themselves; which might involve double punishmt.

It was moved that the whole clause be recommitted
which was lost, the votes being equally divided.

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

Mr. Wilson & Docr. Johnson moved, that "or any
of them," after "United States" be struck out in
order to remove the embarrassment; which was
agreed to nem. con.

Mr. Madison. This has not removed the embarrassment.
The same Act might be treason agst. the
United States as here defined—and agst. a particular
State according to its laws.

Mr. Elseworth. There can be no danger to the genl.
authority from this; as the laws of the U. States are
to be paramount.

Docr. Johnson was still of opinion there could be no
Treason agst. a particular State. It could not even
at present, as the Confederation now stands, the
Sovereignty being in the Union; much less can it be
under the proposed system.

Col. Mason. The United States will have a qualified
sovereignty only. The individual States will
retain a part of the Sovereignty. An Act may be
treason agst. a particular State which is not so agst. the
U. States. He cited the Rebellion of Bacon in Virginia
as an illustration of the doctrine.

Docr. Johnson: That case would amount to
Treason agst. the Sovereign, the Supreme Sovereign,
the United States.

Mr. King observed that the controversy relating to

Treason might be of less magnitude than was supposed;
as the Legislature might punish capitally
under other names than Treason.

Mr. Govr. Morris and Mr. Randolph wished to substitute
the words of the British Statute and moved
to postpone Sect 2. art VII in order to consider the
following substitute—"Whereas it is essential to
the preservation of liberty to define precisely and
exclusively what shall constitute the crime of
Treason, it is therefore ordained, declared & established,
that if a man do levy war agst. the U. S.
within their territories, or be adherent to the enemies
of the U. S. within the said territories, giving them
aid and comfort within their territories or elsewhere,
and thereof be provably attainted of open deed by
the people of his condition, he shall be adjudged
guilty of Treason."

On this question

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

It was then moved to strike out "agst. United
States" after "treason" so as to define treason, generally,
and on this question

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

It was then moved to insert after "two witnesses"
the words "to the same overt act."

Docr. Franklin wished this amendment to take place.
prosecutions for treason were generally virulent; and
perjury too easily made use of against innocence.

Mr. Wilson. much may be said on both sides.
Treason may sometimes be practised in such a manner,
as to render proof extremely difficult—as in a
traitorous correspondence with an Enemy.

On the question—as to some overt act

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

Mr. King moved to insert before the word "power"
the word "sole," giving the U. States the exclusive
right to declare the punishment of Treason.

Mr. Broom 2ds. the motion.

Mr. Wilson in cases of a general nature, treason
can only be agst. the U—States, and in such they
shd. have the sole right to declare the punishment—
yet in many cases it may be otherwise. The subject
was however intricate and he distrusted his present
judgment on it.

Mr. King this amendment results from the vote
defining treason generally by striking out agst. the
U. States, which excludes any treason agst. particular
States. These may however punish offences as high
misdemesnors.

On inserting the word "sole." It passed in the
negative

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

Mr. Wilson, the clause is ambiguous now. "Sole"
ought either to have been inserted, or "against the
U. S," to be re-instated.

Mr. King no line can be drawn between levying
war and adhering to enemy agst. the U. States and
agst. an individual State—Treason agst. the latter
must be so agst. the former.

Mr. Sherman, resistance agst. the laws of the U.
States as distinguished from resistance agst. the laws
of a particular State, forms the line.

Mr. Elseworth, the U. S. are sovereign on one side
of the line dividing the jurisdictions—the States on
the other—each ought to have power to defend
their respective Sovereignties.

Mr. Dickenson, war or insurrection agst. a member
of the Union must be so agst. the whole body; but
the constitution should be made clear on this point.

The clause was reconsidered nem. con—& then Mr.
Wilson & Mr. Elseworth moved to reinstate "agst. the
U. S." after "Treason—" on which question

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

Mr. Madison was not satisfied with the footing on
which the clause now stood. As Treason agst. the U.
States involves treason agst. particular States, and
vice versa, the same act may be twice tried & punished
by the different authorities. Mr. Govr. Morris
viewed the matter in the same light—

It was moved & 2ded. to amend the sentence to read
—"Treason agst. the U. S. shall consist only in levying
war against them, or in adhering to their enemies"
which was agreed to.

Col. Mason moved to insert the words "giving

them aid and comfort," as restrictive of "adhering
to their Enemies &c." the latter he thought would
be otherwise too indefinite—This motion was agreed
to: Cont.: Del: & Georgia only being in the Negative.

Mr. L. Martin moved to insert after conviction &c
—"or on confession in open court"—and on the
question (the negative States thinking the words
superfluous) it was agreed to

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

Art: VII. Sect. 2, as amended was then agreed to
nem. con.

Sect. 3. taken up. "white & other" struck out
nem. con. as superfluous.

Mr. Elseworth moved to require the first census to
be taken within "three" instead of "six" years from
the first meeting of the Legislature—and on question

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

Mr. King asked what was the precise meaning of
direct taxation? No one answd.

Mr. Gerry moved to add to the 3d. Sect. Art: VII.
the following clause "That from the first meeting of
the Legislature of the U. S. until a Census shall be
taken all monies for supplying the public Treasury
by direct taxation shall be raised from the several
States according to the number of their Representatives
respectively in the first branch"

Mr. Langdon. This would bear unreasonably hard
on N. H. and he must be agst. it.

Mr. Carrol opposed it. The number of Reps. did
not admit of a proportion exact enough for a rule of
taxation.

Before any question the House

Adjourned.