August 17, 1787: Rebellion and War

Terracotta bust of Gouverneur Morris, from a life mask taken June 6, 1792, by Jean-Antoine Houdon in Paris

"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."

--Gouverneur Morris

Friday, August 17, 1787: The Convention Today

Debate on the powers to be given Congress continued. “To appoint a Treasurer by ballot” was approved, although Read (DE) and Mercer (MD) moved to let the President appoint the Treasurer, as was the case with other executive offices. In response to the failed motion, Mason (VA) snipped, “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.” An amendment did pass making the vote on the treasurer a joint ballot of both houses of Congress, as opposed to requiring approval from each house individually. (This was supposed to be “more convenient,” but would have the practical effect of giving large states more power in the appointment, since the House of Representatives, which they dominated, had more members than the Senate.)

The powers to constitute inferior courts and to make rules as to captures on land and water sailed through. There was some haggling over the wording of a clause giving Congress the power to punish pirates, counterfeiters, and “offences against the laws of nations.”

The next clause let Congress “subdue a rebellion in any State, on the application of its Legislature.” Charles Pinckney (SC) moved, second by Gouverneur Morris (PA), to strike out “on the application of its Legislature.” Luther Martin (MD) opposed this “dangerous and unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.” Ellsworth (CT) suggested adding “or Executive” after “Legislature,” but G. Morris noted that the executive of a state could be the head of the hypothetical rebellion.

Ellsworth then proposed adding “or without it, when the Legislature cannot meet.” Gerry (MA) opposed any US intervention in rebellions unless requested by the states: “The States will be the best judges in such cases.” He believed that if an outside army had responded to the recent, failed Shay’s Rebellion in his home state, “More blood would have been spilt.”

Ellsworth’s proposal to let the federal government crush rebellions without having to wait for an unassembled state legislature to request assistance passed 5–3–2, with Massachusetts, Delaware, and Maryland opposed and Pennsylvania and North Carolina divided.

Madison (VA) and Dickinson (DE) moved to insert the phrase “against the government thereof,” to make the clause read: “subdue a rebellion in any State against the government thereof.” This was to make it clear that this authorization for use of force applied to rebellions against the state governments, implying that for rebellions against the federal government, the federal government would not need authorization from the state legislature to militarily intervene. The motion passed unanimously.

A vote was taken on the whole clause, which now read “subdue a rebellion in any State, against the government thereof, on the application of its Legislature, or without it, when the Legislature cannot meet.” This vote narrowly failed, and the delegates moved onto the next Congressional power: “to make war.”

C. Pinckney and Butler (SC) both thought the whole Congress would not be reactive enough to have this power. C. Pinckney thought it would be best if it were solely up to the Senate. Butler preferred the President.

Madison and Gerry moved to change the wording to “declare war” instead of “make war.” This distinction would give the President clear authority “to repel sudden attacks.” The motion passed with strong support.

C. Pinckney moved for the clause to be struck. No one seconded.

Butler moved for “and peace” to be added after “to declare war,” wanting the power to end wars to reside with the body that declared them. Gerry seconded him. Since treaty making power resided in the Senate alone, he worried that the smaller legislative body would be more susceptible to corruption from a foreign enemy. This motion was unanimously negatived.

Synopsis

• The Convention decided a joint ballot of both houses of Congress would appoint the Treasure of the United States.
• After many motions and much argument, the Convention could not come to an agreement on the clause giving Congress the power to intervene in rebellions against state governments.
• The clause giving Congress the power “to make war” was changed, by a motion that was unanimously supported, to “to declare war.” This left the President with the authority “to repel sudden attacks” (in Madison’s words) without waiting for Congressional authorization.

Delegates Today

• Johnson (CT) dined with William and Ann Bingham at their mansion on South Third Street, and paid daily expenses of 6 shillings.
• Washington (VA) dined and drank tea with Samuel and Elizabeth Powel. Ann Bingham was Mrs. Powel’s niece, and their homes stood side by side on Third Street below Walnut.
• Gerry (MA) wrote his wife Ann. He had been at City Tavern yesterday evening when King (MA) arrived with her letter and the four other letters enclosed with it. He expressed sympathy for Mrs. Knox (whose youngest child had recently died) and warned his wife “to guard against the coolness and dampness of mornings and evenings, and also of the house when washed...” Before moving on to discuss social events, he noted that “Some members of the Convention are very impatient but I do not think it will rise before three weeks.”

Philadelphia Today

• After a cool and cloudy morning, rain set in.