Mr. MERCER was in favor of the amendment. Mr. MADISON. Felony at common law is vague. It is also defective. One defect is supplied by Statute of Anne, as to running away with vessels, which at common law was a breach of trust only. Besides, no foreign law should be a standard, further than it 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 National Legislature.

Mr. GOUVERNEUR MORRIS would prefer designate to define, the latter being, as he conceived, limited to the pre-existing meaning.

It was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies and piracies.

The motion of Mr. MADISON and Mr. RANDOLPH was agreed to.

Mr. ELLSWORTH 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 United States, and offences against the laws of nations;" which was agreed to,

nem. con.

The clause, "to subdue a rebellion in any State, on the application of its Legislature," was next considered.

Mr. PINCKNEY moved to strike out, "on the application of its Legislature."

Mr. GOUVERNEUR MORRIS seconds.

Mr. L. MARTIN opposed it, as giving a dangerous and unnecessary power. The consent of the State ought to precede the introduction of any extraneous force whatever.

Mr. MERCER Supported the opposition of Mr. MARTIN.

Mr. ELLSWORTH proposed to add, after "legislature," "or Executive."

Mr. GOUVERNEUR MORRIS. The Executive may possibly be at the head of the rebellion. The General Government should enforce obedience in all cases where it may be necessary.

Mr. ELLSWORTH, In many cases the General Government 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."

Mr. GERRY was against letting loose the 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.

Mr. LANGDON was for striking out, as moved by Mr. PINCKNEY. The apprehension of the National force will have a salutary effect, in preventing in

surrections.

Mr. RANDOLPH. If the National Legislature is to judge whether the State Legislature can or cannot meet, that amendment would make the clause as objectionable as the motion of Mr. PINCKNEY.

Mr. GOUVERNEUR 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," it was agreed to,

New Hampshire, Connecticut, Virginia, South Carolina, Georgia, aye-5; Massachusetts, Delaware, Maryland, no-3; Pennsylvania, North Carolina, divided.

Mr. MADISON and Mr. DICKINSON moved to insert, as explanatory, after "State," "against the Government thereof." There might be a rebellion against the United States. The motion was agreed to,

nem. con.

On the clause, as amended,

New Hampshire, Connecticut, Virginia, Georgia, aye-4; Delaware, Maryland, North Carolina, South Carolina, no-4; Massachusetts,* Pennsylvania, absent. So it was lost. 314

On the clause, "to make war,"

Mr. PINCKNEY opposed the vesting this power in the Legislature. Its proceedings were too slow. It would meet but once a year. The House of Representatives 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, not

* In the printed Journal, Massachusetts, no.

withstanding, 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.

Mr. BUTLER. The objections against the Legislature lie in a great degree against 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.

Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr. SHERMAN thought it stood very well. The Executive should be able to repel, and not to commence, war. "Make" is better than declare, the latter narrowing the power too much.

Mr. GERRY never expected to hear, in a republic, a motion to empower the Executive alone to declare

war.

Mr. ELLSWORTH. There is a material difference between the cases of making war and making peace. It should be more easy to get out of war, than into it. War also is a simple and overt declaration, peace attended with intricate and secret negociaations.

Mr. MASON was against 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 entitled to it. He was for clogging, rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."

On the motion to insert "declare" in place of "make" it was agreed to,

Connecticut,* Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye-8; New Hampshire, no-1; Massachusetts, absent.

Mr. PINCKNEY's motion to strike out the whole clause, was disagreed to, without call of States.

Mr. BUTLER moved to give the Legislature the power of peace, as they were to have that of war.

Mr. GERRY Seconds him. Eight Senators may possibly exercise the power, if vested in that body; and fourteen, if all should be present; and may consequently give up part of the United States. The Senate are more liable to be corrupted by an enemy, than the whole Legislature.

On the motion for adding "and peace," after war,”—it was unanimously negatived. 315 Adjourned.

SATURDAY, AUgust 18th.

In Convention,-Mr. MADISON submitted, in order to be referred to the Committee of Detail, the following powers, as proper to be added to those of the General Legislature:

"To dispose of the unappropriated lands of the United States.

"To institute temporary governments for new States arising therein.

* Connecticut voted in the negative; but on the remark by Mr. King, that "make" war might be understood to "conduct" it, which was an Executive function, Mr. Ellsworth gave up his objection, and the vote was changed to aye.

VOL. I.-85*