The Journal of the Debates in the Convention which framed the Constitution of USA Volume II Part 23

"To const.i.tute inferior tribunals" agreed to nem. con.

"To make rules as to captures on land & water" d^o d^o.

"To declare the law and punishment of piracies and felonies &c &c."

considered.

M^r Madison moved to strike out "and punishment &c."

M^r 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.

M^r Govern^r 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.

M^r 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."

M^r 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 M^r Madison

N.H. no. Ma.s.s. ay. C^t no. P^a ay. Del. ay. M^d no. V^a ay.

N.C. ay. S.C. ay. Geo. ay.

M^r Gov^r Morris moved to strike out "declare the law" and insert "punish" before "piracies," and on the question.

N.H. ay. Ma.s.s. ay. C^t no. P^a ay. Del. ay. M^d ay. V^a no.

N.C. no. S.C. ay. Geo. ay.

M^r Madison & M^r Randolph moved to insert "define &," before "punish."

M^r Wilson thought "felonies" sufficiently defined by common law.

M^r d.i.c.kenson concurred with M^r Wilson.

M^r Mercer was in favor of the amendment.

M^r 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 co[~m]on 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 Nat^l legislature.

M^r Gov^r 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 M^r M. & M^r R. was agreed to.

M^r 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 ag^{st} the law of Nations" which was agreed to nem. con.

"To subdue a rebellion in any State, on the application of its legislature"

M^r Pinkney moved to strike out, "on the application of its legislature".

M^r Gov^r Morris 2^{ds}.

M^r 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.

M^r Mercer supported the opposition of M^r Martin.

M^r Elseworth proposed to add after "legislature," "or Executive."

M^r Gov^r Morris. The Executive may possibly be at the head of the Rebellion. The Gen^l Gov^t should enforce obedience in all cases where it may be necessary.

M^r Elseworth. In many cases The Gen^l Gov^t 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."

M^r Gerry was ag^{st} 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 Ma.s.s^{ts} in the late insurrection, if the Gen^l Authority had intermeddled.

M^r Langdon was for striking out as moved by M^r Pinkney. The apprehension of the national force, will have a salutary effect in preventing insurrections.

M^r Randolph. If the Nat^l Legislature is to judge whether the State legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of M^r Pinkney.

M^r Gov^r 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. Ma.s.s. no. C^t ay. P^a div^d. Del. no. M^d no. V^a ay.

N.C. div^d. S. C. ay. Geo. ay. So agreed to.

M^r Madison and M^r d.i.c.kenson moved to insert as explanatory, after "State"--"against the Government thereof". There might be a rebellion ag^{st} the U. States--which was agreed to nem. con.

On the clause as amended

N.H. ay. Ma.s.s.[32] abs^t. C^t ay. Pen. abs^t. Del. no. M^d no.

V^a ay. N.C. no. S.C. no. Georg. ay.--so it was lost.

[32] In the printed Journal, Mas. no.--Madison's Note.

"To make war"

M^r Pinkney opposed the vesting this power in the Legislature. Its proceedings were too slow. It w^d meet but once a year, the H^s of Rep^s 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.

M^r Butler. The Objections ag^{st} the Legislature lie in a great degree ag^{st} 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.

M^r Madison and M^r Gerry moved to insert "_declare_," striking out "_make_" war; leaving to the Executive the power to repel sudden attacks.

M^r Sherman thought it stood very well. The Executive sh^d be able to repel and not to commence war. "Make" is better than "declare" the latter narrowing the power too much.

M^r Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.

M^r Elsworth. There is a material difference between the cases of making _war_ and making _peace_. It sh^d 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.

M^r Mason was ag^{st} 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 ent.i.tled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "_declare_"

to "_make_."