FRIDAY, August 17.

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 con currence 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, ay, 7; Connecticut, New Jersey, Maryland, no, 3.

Col. 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, ay, 4; New Hampshire, Massachusetts, Connecticut, Virginia, North Carolina, Georgia, no, 6. 213

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 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 the question for striking out "and punishment," as moved by Mr. Madison,—

Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina Georgia, ay, 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, ay, 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, ay, 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, ay, 4; Delaware, Maryland, North Carolina, South Carolina, no, 4; Massachusetts, (in the printed Journal, Massachusetts, no,) Pennsylvania, absent.

So it was lost.214

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, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 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. 215

Adjourned.

In Convention.

SATURDAY, August 18.

Mr. MADISON submitted, in order to be referred to the committee of detail, the following powers, as proper to be added to those of the general legislature:

"To dispose of the unappropriated lands of the United States.
"To institute temporary governments for new states arising therein.

"To regulate affairs with the Indians, as well within as without the limits of the United States.

"To exercise, exclusively, legislative authority at the seat of the general government, and over a district around the same not exceeding square miles, the consent of the legislature of the state or states, comprising the same, being first obtained.

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 func. tion, Mr. Ellsworth gave up his objection, and the vote was changed to ay.

"To grant charters of corporation, in cases where the public good may require them, and the authority of a single state may be incompetent.

"To secure to literary authors their copyrights for a limited time.

"To establish a university.

"To encourage, by premiums and provisions, the advancement of useful knowledge and discoveries.

"To authorize the executive to procure, and hold, for the use of the United States, landed property, for the erection of forts, magazines, and other necessary buildings.”

These propositions were referred to the committee of detail which had prepared the report, and, at the same time, the following, which were moved by Mr. PINCKNEY-in both cases unanimously:

"To fix, and permanently establish, the seat of government of the United States, in which they shall possess the exclusive right of soil and jurisdiction. "To establish seminaries for the promotion of literature, and the arts and sci

ences.

"To grant charters of incorporation.

"To grant patents for useful inventions.

"To secure to authors exclusive rights for a certain time.

"To establish public institutions, rewards, and immunities, for the promotion of agriculture, commerce, trades, and manufactures.

"That funds, which shall be appropriated for the payment of public creditors, shall not, during the time of such appropriation, be diverted or applied to any other purpose, and that the committee prepare a clause or clauses for restraining the legislature of the United States from establishing a perpetual revenue.

"To secure the payment of the public debt.

"To secure all creditors, under the new Constitution, from a violation of the public faith, when pledged by the authority of the legislature. "To grant letters of marque and reprisal.

"To regulate stages on the post-roads."

Mr. MASON introduced the subject of regulating the militia. He thought such a power necessary to be given to the general government. He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The militia ought, therefore, to be the more effectually prepared for the public defence. Thirteen states will never concur in any one system, if the disciplining of the militia be left in their hands. If they will not give up the power over the whole, they probably will over a part, as a select militia. He moved, as an addition to the propositions just referred to the committee of detail, and to be referred in like manner, a power to regulate the militia."

Mr. GERRY remarked, that some provision ought to be made in favor of public securities, and something inserted concerning letters of marque, which he thought not included in the power of war. proposed that these subjects should also go to a committee.

He

Mr. RUTLEDGE moved to refer a clause, " that funds appropriated to public creditors should not be diverted to other purposes."

Mr. MASON was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. He suggested the necessity of preventing the danger of perpetual revenue, which must, of necessity, subvert the liberty of any country. If it be objected to, on the principle of Mr. Rutledge's motion, that public credit may require perpetual provisions, that case might be excepted, it being declared that, in other cases, no taxes should be laid for a longer term