Madison’s Notes: The Federal Convention of 1787: 20 August

Liberty Letters, 20 August 1787, James Madison

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Editor’s Summary: Pinckney and Morris introduced quite a number of new motions, all of which were sent to committee without discussion, some of them seeming quite contradictory, ranging from items that would belong in a Bill of Rights, to items that had all the appearances of expanding federal power, to giving the Supreme Court powerful oversite of Congress’s lawmaking powers, to giving the House full police and judicial powers to try and imprison its members (and that no other outside force may interfere).

The first debate of the session came over a proposal by George Mason for Congress to have the power to “enact sumptuary laws” (laws that attempt to regulate consumption of food and drink – as was debated in this case – or of clothing). Gerry in opposition said, “the law of necessity is the best sumptuary law.” The motion was rejected 8-3.

As to the clause: “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 United States or any department or officer thereof.” Madison and Pinckney 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. Morris, Wilson, Rutledge, and Ellsworth urged that the amendment was not necessary. Rejected 9-2. The clause as presented then was approved without dissent.

The definition of “treason” was debated next. Madison thought the definition too narrow. Morris was for giving to the Union an exclusive right to declare what should be treason. In case of a contest between the United States and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority. Randolph thought the clause defective in adopting the words “in adhering” only. The British Statute (which Madison gave as an example to emulate, adds, “giving them aid and comfort” which had a more extensive meaning. Dickenson thought the addition of “giving aid and comfort” unnecessary and 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. The debate went on for some time on various aspects of treason, including whether or not treason could be committed against as a state or simultaneously against a state and the Union.

It was then moved to insert after “two witnesses” the words “to the same overt act.” Doctor Franklin wished this amendment to take place — prosecutions for treason were generally virulent; and perjury too easily made use of against innocence. Motion passed 8-3.

This particular treason clause was negotiated via a series of votes until it reads as it does now: Treason against the United States , shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort No person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on confession in open Court. Agreed upon without dissent.

Of note the word “them” after “against” would by the common understanding of this debate would not refer to the idea that these were totally separate sovereigns as some have arrived at by error or deceit, but that an act of war on one state was an act of war on the entire Union or the Supreme Sovereign, and so would be an act of treason. Nevertheless, it was acknowledged in this debate and in the several sentences that followed in the final Constitution, that consistent with the principle of duel sovereignty (that is of a federal supreme sovereign Union on the one hand, but of areas of or a distinct line of sovereign authority remaining in the states on other areas not delegated to the federal) that their might be cases where treason against a single state was merely treason against that single state on issues they uniquely proclaimed as treasonable under their state Constitution, but not under the U.S. Constitution. Some feared that this would lead to the possibility of a man being tried twice for treason, once on the Federal level, and again on the state level, but so it stood.

Steve Farrell

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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 on 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 for ever considered as one Body corporate and politic in law, and entitled to all the rights privileges and immunities, which to Bodies corporate do or ought to 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 of general police, the State of Agriculture and manufactures, the opening of roads and navigations, and the facilitating communications through the United 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 — Department, the public Ships, Dock-Yards, Naval-Stores & arsenals — also in 1 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 despatches 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 and 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 2 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 and 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 and debts. As far as the regulation of eating and 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 1 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. 3

4 “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 United States 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 offices”

N. H. no. Mas. ay. Ct. no. N. J. no. Pa. no. Del. no. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. 5

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

Art: VII sect. 2 6 concerning Treason which see. 7

Mr. MADISON, thought the definition too narrow. It did not appear to go as far as the Statute of Edward III. He did not see why more latitude might not be left to the Legislature. It would 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 Statute of Edward III

Mr. GOVr. MORRIS was for giving to the Union an exclusive right to declare what should be treason. In case of a contest between the United States 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 and 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 and comfort” as explanatory of “adhering” and that something should be inserted in the definition concerning overt-acts. He contended that Treason could not be both against the United States — and individual States; being an offense against 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 offenses viz of levying war, and of adhering to the Enemy might be necessary to constitute Treason. He added that as the definition here was of treason against the United States it would seem that the individual States would be left in possession of a concurrent power so far as to define and punish treason particularly against themselves; which might involve double punishment.

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. — 8

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 had 9 not removed the embarrassment. The same Act might be treason against the United States as here defined — and against a particular State according to its laws.

Mr. ELSEWORTH. There can be no danger to the general authority from this; as the laws of the United States are to be paramount.

DOCr. JOHNSON was still of opinion there could be no Treason against 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 against a particular State which is not so against the United States. He cited the Rebellion of Bacon in Virginia as an illustration of the doctrine.

DOCr. JOHNSON: That case would amount to Treason against 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 and established, that if a man do levy war against the United States, within their territories, or be adherent to the enemies of the United States 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. 10

It was 11 moved to strike out “agst. 12 United States” after “treason” so as to define treason generally, and on this question

Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. ay. 13

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 same overt act

N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. ay. 14

Mr. KING moved to insert before the word “power” the word “sole,” giving the United 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 against the United States. and in such they should 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 against the United States; which excludes any treason against particular States. These may however punish offenses as high misdemeanors.

On 15 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. — 16

Mr. WILSON. the clause is ambiguous now. “Sole” ought either to have been inserted — or “against the United States” to be re-instated.

Mr. KING no line can be drawn between levying war and adhering to 17 enemy — against the United States and against an individual State-Treason against the latter must be so against the former.

Mr. SHERMAN, resistance against the laws of the United States as distinguished from resistance against the laws of a particular State, forms the line.

Mr. ELSEWORTH. the United States are sovereign on their 18 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 against a member of the Union must be so against 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 “against the United States” after “Treason” — on which question

N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. no. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. 19

Mr. MADISON was not satisfied with the footing on which the clause now stood. As Treason against the United States involves treason against particular States, and vice versa, the same act may be twice tried and 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 against the United States 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 20 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. Mas. no. Ct. ay. N. J. ay. P. ay. Del. ay. Md. ay. Va. ay. N. C. divd. S. C. no. Geo. no. 21

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

22 Sect. 3 23 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 24 question

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. no. 25

Mr. KING asked what was the precise meaning of direct taxation? No one answered.

Mr. GERRY moved to add to the 26 3d. Sect. art. VII, the following clause “That from the first meeting, of the Legislature of the United States 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 New Hampshire and he must be against it.

Mr. CARROL. opposed it. The number of Representatives did not admit of a proportion exact enough for a rule of taxation. Before any question the House

Adjourned

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1. The word “the” is here inserted in the transcript.

2. The word “a” is here inserted in the transcript.

3. In the transcript the vote reads: “Delaware, Maryland, Georgia, aye — 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, no — 8.”

4. The words “On the clause” are here inserted in the transcript.

5. In the transcript the vote reads: “Massachusetts, Maryland, aye — 2; New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Georgia, no — 9.”

6. See ante.

7. In the transcript the words “which see” are crossed out and the phrase “was then taken up” is written above them.

8. In the transcript the vote reads: “New Jersey, Pennsylvania, Maryland, Virginia, Georgia, aye — 5 New Hampshire, Massachusetts, Connecticut, Delaware, South Carolina, no — 5; North Carolina, divided.”

9. The word “has” is substituted in the transcript for “had.”

10. In the transcript the vote reads: “New Jersey, Virginia, aye — 2; Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, no — 8.”

11. The word “then” is here inserted in the transcript.

12. The word “the” is here inserted in the transcript.

13. In the transcript the vote reads: “Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georiga, aye — 8; Virginia, North Carolina, no — 2.”

14. In the transcript the vote reads: “New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, aye — 8; New Jersey, Virginia, North Carolina, no — 3.”

15. The words “the question for” are here inserted in the transcript.

16. In the transcript the vote reads: “New Hampshire, Massachusetts, Pennsylvania, Dealaware, South Carolina, aye — 5; Connecticut, New Jersey, Maryland, Virginia, North Carolina, Georgia no — 6.”

17. The word “the” is here inserted in the transcript.

18. The word “one” is substituted in the transcript for “their.”

19. In the transcript the vote reads: “Connecticut, New Jersey, Maryland, Virginia, North Carolina, Georgia, aye — 6; New Hampshire, Massachusetts, Pennsylvania, Delaware, South Carolina, no — 5.”

20. The word “and” is here inserted in the transcript.

21. In the transcript the vote reads: “New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye — 7; Massachusetts, South Carolina, Georgia, no — 3; North Carolina, Divided.”

22. In the transcript this sentence reads as follows: “Article 7, Sect. 3 was taken up. The words ‘white and others,’ were Struck out” …

23. See ante.

24. The word “the” is here inserted in the transcript.

25. In the transcript the vote reads: “New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye — 9; Carolina, Georgia, no — 2.”

26. The word “the” is omitted in the transcript.

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This version of Madison’s Notes to the Federal Convention of 1787, August 20 1787, including the “editor’s summary,” spelling modernizations, and shorthand removal: Copyright © 2010 Steve Farrell and The Moral Liberal.