The Debates in the
Federal Convention of 1787
IN CONVENTION THURSDAY
AUG: 23, 1787 1
The Report of the Committee of Eleven made Aug: 21. 2
being taken up, and the following clause being under consideration to wit "To
make laws for organizing, arming & disciplining the Militia, and for
governing such part 3 of them as may be
employed in the service of the U. S. reserving to the States respectively, the
appointment of the officers, and authority of training the militia according to
the discipline prescribed — "
Mr. SHERMAN moved to strike out the last
member — "and authority of training &c. He thought it unnecessary.
The States will have this authority of course if not given up.
Mr. ELSWORTH doubted the propriety of
striking out the sentence. The reason assigned applies as well to the other
reservation of the appointment to offices. He remarked at the same time that the
term discipline was of vast extent and might be so expounded as to include all
power on the subject.
Mr. KING, by way of explanation, said
that by organizing, the Committee meant, proportioning the officers &
men — by arming, specifying the kind size & caliber of arms —
disciplining prescribing the manual exercise evolutions &c.
Mr. SHERMAN withdrew his motion
Mr. GERRY. This power in the U. S. as
explained is making the States drill-sergeants. He had as lief let the Citizens
of Massachussets be disarmed, as to take the command from the States, and
subject them to the Genl. Legislature. It would be regarded as a system of
Mr. MADISON observed that "arming"
as explained did not did not extend to furnishing arms; nor the term "disciplining"
to penalties & Courts Martial for enforcing them.
Mr. KING added, to his former
explanation that arming meant not only to provide for uniformity of
arms, but included 4 authority to regulate
the modes of furnishing, either by the Militia themselves, the State
Governments, or the National Treasury: that laws for disciplining, must
involve penalties and every thing necessary for enforcing penalties.
Mr. DAYTON moved to postpone the
paragraph, in order to take up the following proposition
"To establish an uniform & general system of discipline for the
Militia of these States, and to make laws for organizing, arming, disciplining &
governing such part of them as may be employed in the service of the U. S.,
reserving to the States respectively the appointment of the officers, and all
authority over the Militia not herein given to the General Government"
On the question to postpone in favor of this proposition: it passed in the
N. H. no. Mas no. Ct. no. N. J. ay. P. no. Del. no. Maryd. ay. Va. no. N. C.
no. S. C. no. Geo. ay. 5
Mr. ELSWORTH & Mr. SHERMAN moved to postpone the 2d. clause in favor of the
following "To establish an uniformity of arms, exercise & organization
for the Militia, and to provide for the Government of them when called into the
service of the U. States" The object of this proposition was to refer the
plan for the Militia to the General Govt. but 6
leave the execution of it to the State Govts.
Mr. LANGDON said He could not understand
the jealousy expressed by some Gentleman. 7
The General & State Govts. were not enemies to each other, but different
institutions for the good of the people of America. As one of the people he
could say, the National Govt. is mine, the State Govt. is mine. In transferring
power from one to the other, I only take out of my left hand what it can not so
well use, and put it into my right hand where it can be better used.
Mr. GERRY thought it was rather taking
out of the right hand & putting it into the left. Will any man say that
liberty will be as safe in the hands of eighty or a hundred men taken from the
whole continent, as in the hands of two or three hundred taken from a single
Mr. DAYTON was against so absolute a
uniformity. In some States there ought to be a greater proportion of cavalry
than in others. In some places rifles would be most proper, in others muskets &c.
Genl. PINKNEY preferred the clause
reported by the Committee, extending the meaning of it to the case of fines &c.
Mr. MADISON. The primary object is to
secure an effectual discipline of the Militia. This will no more be done if left
to the States separately than the requisitions have been hitherto paid by them.
The States neglect their Militia now, and the more they are consolidated into
one nation, the less each will rely on its own interior provisions for its
safety & the less prepare its Militia for that purpose; in like manner as
the militia of a State would have been still more neglected than it has been if
each County had been independently charged with the care of its Militia. The
Discipline of the Militia is evidently a National concern, and ought to
be provided for in the National Constitution.
Mr. L. MARTIN was confident that the
States would never give up the power over the Militia; and that, if they were to
do so the militia would be less attended to by the Genl. than by the State
Mr. RANDOLPH asked what danger there
could be that the Militia could be brought into the field and made to commit
suicide on themselves. This is a power that can not from its nature be abused,
unless indeed the whole mass should be corrupted. He was for trammelling the
Genl. Govt. wherever there was danger, but here there could be none. He urged
this as an essential point; observing that the Militia were every where
neglected by the State Legislatures, the members of which courted popularity too
much to enforce a proper discipline. Leaving the appointment of officers to the
States protects the people agst. every apprehension that could produce murmur.
On 8 Question on Mr. Elsworth's Motion
N. H. no. Mas. no. Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C.
no. S. C. no. Geo. no. 9
A motion was then made to recommit the 2d. clause which was negatived.
On the question to agree to the 1st. part of the clause, namely
"To make laws for organizing arming & disciplining the Militia, and
for governing such part of them as may be employed in the service of the U. S."
N. H ay. Mas. ay. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C.
ay. S. C. ay. Geo. ay. 10
Mr. MADISON moved to amend the next part
of the clause so as to read "reserving to the States respectively, the
appointment of the officers, under the rank of General officers"
Mr. SHERMAN considered this as
absolutely inadmissible. He said that if the people should be so far asleep as
to allow the most influential officers of the militia to be appointed by the
Genl. Government, every man of discernment would rouse them by sounding the
alarm to them.
Mr. GERRY. Let us at once destroy the
State Govts. have an Executive for life or hereditary, and a proper Senate, and
then there would be some consistency in giving full powers to the Genl. Govt.
but as the States are not to be abolished, he wondered at the attempts that were
made to give powers inconsistent with their existence. He warned the Convention
agst. pushing the experiment too far. Some people will support a plan of
vigorous Government at every risk. Others of a more democratic cast will oppose
it with equal determination, and a Civil war may be produced by the conflict.
Mr. MADISON. As the greatest danger is
that of disunion of the States, it is necessary to guard agat. it by sufficient
powers to the Common Govt. and as the greatest danger to liberty is from large
standing armies, it is best to prevent them, by an effectual provision for a
On the Question to agree to Mr. Madison's motion
N. H. ay. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C.
no. S. C. ay. Geo. 11 ay. 12
On the question to agree to the "reserving to the States the
appointment of the officers." It was agreed to nem: contrad: On the
question on the clause "and the authority of training the Militia according
to the discipline prescribed by the U. S. — "
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. no. N. C.
ay. S. C. no. Geo. no. 13
On the question to agree to Art. VII. Sect. 7. 14
as reported It passed nem. contrad:
Mr. PINKNEY urged the necessity of
preserving foreign Ministers & other officers of the U. S. independent of
external influence and moved to insert, after Art VII Sect 7. the clause
following — "No person holding any office of profit or trust
15 under the U. S. shall without the
consent of the Legislature, accept of any present, emolument, office or title of
any kind whatever, from any King, Prince or foreign State which passed nem:
Mr. RUTLIDGE moved to amend Art: VIII
14 to read as follows,
"This Constitution & the laws of the U. S. made in pursuance
thereof, and all Treaties made under the authority of the U. S. shall be the
supreme law of the several States and of their citizens and inhabitants; and the
Judges in the several States shall be bound thereby in their decisions, any
thing in the Constitutions or laws of the several States, to the contrary
notwithstanding." which was agreed to nem: contrad:
Art: IX 14 being next for
Mr. GOVr. MORRIS
argued agst. the appointment of officers by the Senate. He considered the body
as too numerous for the 16 purpose; as
subject to cabal; and as devoid of responsibility. If Judges were to be tried by
the Senate according to a late report of a Committee it was particularly wrong
to let the Senate have the filling of vacancies which its own decrees were to
Mr. WILSON was of the same opinion &
for like reasons.
The 17 art IX being waived and art
VII. sect 1.
Mr. GOVr. MORRIS
moved to strike the following words out of the 18 clause "enforce treaties"
as being superfluous, since treaties were to be "laws" — which
was agreed to nem: contrad:
Mr. GOVr. MORRIS
moved to alter 19 1st. part. of
19 18. clause sect. 1. to execute the
laws of the Union, suppress insurrections and repel invasions."
art. VII 20 so as to read "to
provide for calling forth the Militia
which was agreed to nem: contrad
On the question then to agree to the 18 clause of Sect. 1. art: 7. as
amended it passed in the affirmative nem: contradicente.
Mr. C- PINKNEY moved to add as an
additional power to be vested in the Legislature of the U. S. "To negative
all laws passed by the several States interfering in the opinion of the
Legislature with the general interests and harmony of the Union; provided that
two thirds of the members of each House assent to the same"
This principle he observed had formerly been agreed to. He considered the
precaution as essentially necessary: The objection drawn from the predominance
of the large States had been removed by the equality established in the Senate.
Mr. BROOME 2ded. the proposition.
Mr. SHERMAN thought it unnecessary; the
laws of the General Government being Supreme & paramount to the State laws
according to the plan, as it now stands.
Mr. MADISON proposed that it should be
committed. He had been from the beginning a friend to the principle; but thought
the modification might be made better.
Mr. MASON wished to know how the power
was to be exercised. Are all laws whatever to be brought up? Is no road nor
bridge to be established without the Sanction of the General Legislature? Is
this to sit constantly in order to receive & revise the State Laws? He did
not mean by these remarks to condemn the expedient, but he was apprehensive that
great objections would lie agst. it.
Mr. WILLIAMSON thought it unnecessary, &
having been already decided, a revival of the question was a waste of time.
Mr. WILSON considered this as the
key-stone wanted to compleat the wide arch of Government, we are raising. The
power of self-defence had been urged as necessary for the State Governments. It
was equally necessary for the General Government. The firmness of Judges is not
of itself sufficient. Something further is requisite. It will be better to
prevent the passage of an improper law, than to declare it void when passed.
Mr. RUTLIDGE. If nothing else, this
alone would damn and ought to damn the Constitution. Will any State ever agree
to be bound hand & foot in this manner. It is worse than making mere
corporations of them whose bye laws would not be subject to this shackle.
Mr. ELSEWORTH observed that the power
contended for wd. require either that all laws of the State Legislatures should
previously to their taking effect be transmitted to the Genl. Legislature, or be
repealable by the Latter; or that the State Executives should be appointed by
the Genl. Government, and have a controul over the State laws. If the last was
medit. ated let it be declared.
Mr. PINKNEY declared that he thought the
State Executives ought to be so appointed with such a controul, & that it
would be so provided if another Convention should take place.
Mr. GOVERNr. MORRIS did not see the utility or practicability of the
proposition of Mr. Pinkney, but wished it to be referred to the consideration of
Mr. LANGDON was in favor of the
proposition. He considered it as resolvable into the question whether the extent
of the National Constitution was to be judged of by the Genl. or the State
On the question for commitment, it passed in the negative.
N. H. ay. Masts. no. Cont. no. N. J. no. Pa. ay. Del: ay. Md. ay. Va. ay. N.
C. no. S. C. no. Geo. no. 21
Mr. PINKNEY then withdrew his
The 1st. sect. of art: VII 22 being
so amended as to read "The Legislature shall fulfil the engagements
and discharge the debts of the U. S. & shall have the power to lay &
collect taxes duties imposts & excises," was agreed to.
Mr. BUTLER expressed his dissatisfaction
lest it should compel payment as well to the Blood-suckers who had speculated on
the distresses of others, as to those who had fought & bled for their
country. He would be ready he said tomorrow to vote for a discrimination between
those classes of people, and gave notice that he should 23
move for a reconsideration.
Art IX. sect. 1. 24 being resumed, to
wit "The Senate of the U. S. shall have power to make treaties, and to
appoint Ambassadors, and Judges of the Supreme Court."
Mr. MADISON observed that the Senate
represented the States alone, and that for this as well as other obvious reasons
it was proper that the President should be an agent in Treaties.
Mr. GOVr. MORRIS
did not know that he should agree to refer the making of Treaties to the Senate
at all, but for the present wd. move to add, as an amendment to the section
after "Treaties" — 25 "but
no Treaty shall be binding on the U. S. which is not ratified by a law."
Mr. MADISON suggested the inconvenience
of requiring a legal ratification of treaties of alliance for the
purposes of war &c &c
Mr. GHORUM. Many other disadvantages
must be experienced if treaties of peace & all negociations are to be
previously ratified — and if not previously, the Ministers would be at a
loss how to proceed. What would be the case in G. Britain if the King were to
proceed in this manner. American Ministers must go abroad not instructed by the
same Authority (as will be the case with other Ministers) which is to ratify
Mr. GOVr. MORRIS.
As to treaties of alliance, they will oblige foreign powers to send their
Ministers here, the very thing we should wish for. Such treaties could not be
otherwise made, if his amendment shd. succeed. In general he was not solicitous
to multiply & facilitate Treaties. He wished none to be made with G.
Britain, till she should be at war. Then a good bargain might be made with her.
So with other foreign powers. The more difficulty in making treaties, the more
value will be set on them.
Mr. WILSON. In the most important
Treaties, the King of G.
Britain being obliged to resort to Parliament for the execution of them, is
under the same fetters as the amendment of Mr. Morris will impose on the Senate.
It was refused yesterday to permit even the Legislature to lay duties on
exports. Under the clause, without the amendment, the Senate alone can make a
Treaty, requiring all the Rice of S. Carolina to be sent to some one particular
Mr. DICKINSON concurred in the
amendment, as most safe and proper, tho' he was sensible it was unfavorable to
the little States; wch. would otherwise have an equal share in making
thought there was something of solecism in saying that the acts of a Minister
with plenipotentiary powers from one Body, should depend for ratification on
another Body. The Example of the King of G. B. was not parallel. Full &
compleat power was vested in him. If the Parliament should fail to provide the
necessary means of execution, the Treaty would be violated.
Mr. GHORUM in answer to Mr.
GOVr. MORRIS, said
that negociations on the spot were not to be desired by us, especially if the
whole Legislature is to have any thing to do with Treaties. It will be generally
influenced by two or three men, who will be corrupted by the Ambassadors here.
In such a Government as ours, it is necessary to guard against the Government
itself being seduced.
Mr. RANDOLPH observing that almost every
Speaker had made objections to the clause as it stood, moved in order to a
further consideration of the subject, that the Motion of Mr. Govr. Morris should
be postponed, and on this question It was lost the States being equally divided.
Massts. no. Cont. no. N. J. ay. Pena. ay. Del. ay. Md. ay. Va. ay. N. C. no.
S. C. no. Geo. no. 26
On Mr. Govr. Morris Motion
Masts. no. Cont. no. N. J. no. Pa. ay. Del. no. Md. no. Va. no. N. C. divd.
S. C. no. Geo. no. 27
The several clauses of Sect: 1. Art IX, were then separately postponed after
inserting "and other public Ministers" next after "Ambassadors."
Mr. MADISON hinted for consideration,
whether a distinction might not be made between different sorts of Treaties —
Allowing the President & Senate to make Treaties eventual and of Alliance
for limited terms — and requiring the concurrence of the whole Legislature
in other Treaties.
The 1st. Sect art IX. was finally referred nem: con: to the committee of
Five, and the House then
1. The year "1787" is omitted in
2. The words "the twenty-first of
August" are substituted in the transcript for "Aug: 21."
3. The transcript uses the word "part"
in the plural.
4. The word "the" is here
inserted in the transcript.
5. In the transcript the vote reads: "New
Jersey, Maryland, Georgia, aye — 3; New Hampshire, Massachusetts,
Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina,
no — 8."
6. The word "to" is here
inserted in the transcript.
7. The word "gentleman" is used
in the plural in the transcript.
8. The word "the" is here
inserted in the transcript.
9. In the transcript the vote reads: "Connecticut,
aye; the other ten States, no."
10. In the transcript the vote reads: "New
Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Virginia, North
Carolina, South Carolina, Georgia, aye — 9; Connecticut, Maryland, no —
11. In the printed Journal, Geo: no.
12. In the transcript the vote reads: "New
Hampshire, South Carolina, Georgia, 11
aye — 3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, North Carolina, no — 8."
13. In the transcript the vote reads: "New
Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, North
Carolina, aye — 7; Delaware, Virginia, South Carolina, Georgia, no —
14. See ante.
15. The words "profit or trust"
are transposed to read "trust or profit" in the transcript.
16. The word "that" is
substituted in the transcript for "the."
17. The word "the" is crossed
out in the transcript.
18. See ante.
19. The word "the" is here
inserted in the transcript.
20. The transcript omits "sect. 1.
21. In the transcript the vote reads: "New
Hampshire, Pennsylvania, Delaware, Maryland, Virginia, aye — 5;
Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, Georgia,
no — 6."
22. The phrase "The first clause of
article 7. section 1" is substituted in the transcript for "The 1st
sect of art: VII."
23. The word "would" is
substituted in the transcript for "should."
24. See p. — .
25. The words "the following"
are here inserted in the transcript.
26. In the transcript the vote reads: "New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye — 5; Massachusetts,
Connecticut, North Carolina, South Carolina, Georgia, no — 5."
27. In the transcript the vote reads: "Pennsylvania,
aye — 1; Massachusetts, Connecticut, New Jersey, Delaware, Maryland,
Virginia, South Carolina, Georgia, no — 8."