CHAPTER VIII. THE CONSTITUTION IN DETAIL. THE POWERS OF CONGRESS, CONTINUED. FROM THE MIDDLE TO THE END OF August 1787. On the eighteenth of August, Rutledge insisted that it was necessary and expedient for the United States to assume "all the state debts." A committee of eleven, to whom the subject was referred, on the twenty-first reported a grant of power to the United States to assume "the debts of the several states incurred during the late war for the common defence and general welfare." But the states which had done the most toward discharging their obligations were unwilling to share equally the burdens of those which had done the least; and the convention, adopting on the twenty-fifth the language of Randolph, affirmed no more than that the engagements of the confederation should be equally valid against the United States under this constitution.* The convention, on the seventeenth, agreed with its committee in giving jurisdiction to the United States over the crime of counterfeiting their coins and over crimes committed on the high seas, or against the law of nations.† The report of the committee of detail gave power to congress "to subdue a rebellion in any state on the application of its legislature." Martin, on the seventeenth, approved the limitation to which Charles Pinckney, Gouverneur Morris, and Langdon objected. Ellsworth moved to dispense with the application of the legislature of the rebellious state when that body could not meet. "Gerry was against letting loose the * Gilpin, 1426; Elliot, 476. Gilpin, 1349; Elliot, 437. 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." The motion of Ellsworth was adopted; but it weighed down the measure itself, which obtained only four votes against four.* We come to a regulation where the spirit of republicanism exercised its humanest influence. The world had been retarded in civilization, impoverished and laid waste by wars of the personal ambition of its kings. The committee of detail and the convention, in the interest of peace, intrusted the power to declare war, not to the executive, but to the deliberate decision of the two branches of the legislature,† each of them having a negative on the other; and the executive retaining his negative on them both. On the eighteenth Madison offered a series of propositions, granting powers to dispose of the lands of the United States; to institute temporary governments for new states; to regulate affairs with the Indians; to exercise exclusively legislative authority at the seat of general government; to grant charters of incorporation where the public good might require them and the authority of a single state might be incompetent; to secure to authors their copyrights for a limited time; to establish a university; to encourage discoveries and the advancement of useful knowledge. In that and the next sitting Charles Pinckney proposed, among other cessions, to grant immunities for the promotion of agriculture, commerce, trades, and manufactures. They were all unanimously referred to the committee of detail. Gerry would have an army of two or three thousand # at the most; a number in proportion to population greater than the present army of the United States. The power to raise and support armies was, however, accepted unanimously, with no "fetter on" it, except the suggestion then made by Mason and soon formally adopted, that "no appropriation for that use should be for a longer term than two years." *Gilpin, 1350, 1351; Elliot, 437, 438. Gilpin, 1351; Elliot, 438. Elliot, i., 247. Gilpin, 1353, 1354, 1355; Elliot, 439, 440. # Gilpin, 1360; Elliot, 443. The idea of a navy was welcome to the country. Jefferson thought a small one a necessity.* The convention accepted unanimously the clause giving power "to build and equip fleets;" or, as the power was more fitly defined, "to provide and maintain a navy." + The report gave to the general government only power to call forth the aid of the militia. Mason moved to grant the further power of its regulation and discipline, for "thirteen states would never concur in any one system"; # but he reserved "to the states the appointment of the officers." In the opinion of Ellsworth, the motion went too far. "The militia should be under rules established by the general government when in actual service of the United States. The whole authority over it ought by no means to be taken from the states. Their consequence would pine away to nothing after such a sacrifice of power. The general authority could not sufficiently pervade the union for the purpose, nor accommodate itself to the local genius of the people." Sherman supported him. "My opinion is," said Dickinson, "that the states never ought to give up all authority over the militia, and never will." I A Swayed by Dickinson, Mason modified his original motion, which Cotesworth Pinckney instantly renewed. A grand committee of eleven, to which this among other subjects was referred, on the twenty-first reported that the legislature should have power "to make laws for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." Ellsworth and Sherman, on the twenty-third, accepted the latter part of the clause, but resisted the former. "The discipline of the militia," answered Madison, "is evidently a national concern, and ought to be provided for in the national constitution." And the clause was adopted by nine states against Connecticut and Maryland. ◊ * Notes on Virginia, end of the answer to query 22; Jefferson, i., 592, 606; ii., 211, 218; Madison, i., 196. Gilpin, 1360; Elliot, 443. Gilpin, 1233; Elliot, 379. # Gilpin, 1355; Elliot, 440. Gilpin, 1361, 1362; Elliot, 443, 444. A Gilpin, 1378; Elliot, 451. ◊ Gilpin, 1406, 1407; Elliot, 466. Madison always wished to reserve to the United States the appointment of general officers in the militia. This Sherman pronounced absolutely inadmissible. "As the states are not to be abolished," said Gerry, "I wonder at the attempts to give powers inconsistent with their existence. A civil war may be produced by the conflict between people who will support a plan of vigorous government at every risk and others of a more democratic cast." "The greatest danger," said Madi"is disunion of the states; it is necessary to guard against it by sufficient powers to the common government; the greatest danger to liberty is from large standing armies; it is best to prevent them by an effectual provision for a good militia." Madison gained for his motion only New Hampshire, South Carolina, and Georgia. The appointment of officers by the states was then agreed to; and the states were to train the militia, but according to the discipline prescribed by the United States.* son, The power "to make all laws necessary and proper for carrying into execution the powers vested by this constitution in the government of the United States, or in any department or office thereof," was so clearly necessary that, without cavil or remark, it was unanimously agreed to.t The definition of treason against the United States, though made in language like that of the English law, took notice of the federal character of the American government by defining it as levying war against the United States or any one of them; thus reserving to the United States the power to punish treason, whether by war against the United States or by war against a state. Johnson was of opinion that there could be no treason against a particular state even under the confederation, much less under the proposed system. Mason answered: "The United States will have a qualified sovereignty only; the individual states will retain a part of the sovereignty." "A rebellion in a state," said Johnson, "would amount to treason against the supreme sovereign, the United States." "Treason against a state," said King, "must be treason against the United States." Sherman differed from him, saying: "Resistance against the laws of the United States is distin*Gilpin, 1407, 1408; Elliot, 466, 467. Gilpin, 1370; Elliot, 447. guished from resistance against the laws of a particular state." Ellsworth added: "The United States 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." "War or insurrection against a member of the union," said Dickinson, "must be so against the whole body." The clause as amended, evading the question, spoke only of treason by levying war against the United States or adhering to their enemies, giving them aid or comfort. No note was taken of the falsification of election returns, or the dangers peculiar to elective governments. Martin relates that he wished an amendment excepting citizens of any state from the penalty of treason, when they acted expressly in obedience to the authority of their own state; but seeing that a motion to that effect would meet with no favor, he at the time shut up the thought within his own breast.† The members of the convention long held in "recollection the pain and difficulty which the subject of slavery caused in that body," and which "had well-nigh led southern states to break it up without coming to any determination." The members from South Carolina and Georgia were moved by the extreme desire of preserving the union and obtaining an efficient government; but as their constituents could not be reconciled to the immediate prohibition of the slave-trade by the act of the United States, they demanded that their states should retain on that subject the liberty of choice which all then possessed under the confederation. Unwilling to break the union into fragments, the committee of detail proposed limitations of the power of congress to regulate commerce. No tax might be laid on exports, nor on the importation of slaves. As to the slave-trade, each state was to remain, as under the articles of confederation, free to import such persons as it "should think proper to admit." The states might, one by * Gilpin, 1375; Elliot, 450. Elliot, i., 382, 383. I think Martin did not make the motion, as it is found neither in the journal nor in Madison. His narrative is, perhaps, equivocal. His words are: "I wished to have obtained"; and again: "But this provision was not adopted." Here is no assertion that he made the motion. Baldwin's Speech in the House, 12 February 1790. |