JFC2017 – Page 6 – Warren Throckmorton

The 1787 Constitutional Convention – Religion Unrelated to Slavery

August 21, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates discussed taxation and slavery. The topics were related because direct taxation was tied to the population of whites and 2/3 of “other persons.” The delegates also discussed the slave trade with no resolution during this session.

Influences on the Delegates

Britain was again an example, this time a negative one:

Mr. GERRY was strenuously opposed to the power over exports. It might be made use of to compel the States to comply with the will of the General Government, and to grant it any new powers which might be demanded. We have given it more power already than we know how will be exercised. It will enable the General Government to oppress the States, as much as Ireland is oppressed by Great Britain.
Mr. FITZSIMONS would be against a tax on exports to be laid immediately; but was for giving a power of laying the tax when a proper time may call for it. This would certainly be the case when America should become a manufacturing country. He illustrated his argument by the duties in Great Britain on wool, &c.

Slavery opponents again tried to limit the slave trade. South Carolina’s Pinckney said there would be no approval from SC if the slave trade was limited.

Mr. L. MARTIN proposed to vary Article 7, Section 4, so as to allow a prohibition or tax on the importation of slaves. In the first place, as five slaves are to be counted as three freemen, in the apportionment of Representatives, such a clause would leave an encouragement to this traffic. In the second place, slaves weakened one part of the Union, which the other parts were bound to protect; the privilege of importing them was therefore unreasonable. And in the third place, it was inconsistent with the principles of the Revolution, and dishonorable to the American character, to have such a feature in the Constitution.

Mr. RUTLEDGE did not see how the importation of slaves could be encouraged by this section. He was not apprehensive of insurrections, and would readily exempt the other States from the obligation to protect the Southern against them. Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of slaves, which will increase the commodities of which they will become the carriers.

Mr. ELLSWORTH was for leaving the clause as it stands. Let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole, and the States are the best judges of their particular interest. The old Confederation had not meddled with this point; and he did not see any greater necessity for bringing it within the policy of the new one.

Mr. PINCKNEY. South Carolina can never receive the plan if it prohibits the slave-trade. In every proposed extension of the powers of Congress, that State has expressly and watchfully excepted that of meddling with the importation of negroes. If the States be all left at liberty on this subject, South Carolina may perhaps, by degrees do of herself what is wished, as Virginia and Maryland already have done.

This is a remarkable account of the discussion on slavery. Luther Martin who was a slave holder believed the slave trade was “dishonorable to the American character” and should not be allowed by the Constitution. Then South Carolina’s Rutledge and Pinckney dropped the threat of withdrawal. They were joined by Ellsworth of Connecticut who said the states could decide what was moral.

This is a devastating passage for those who want us to believe that the delegates were crafting a Christian biblically based Constitution. Not only did these delegates deny the role of religion, they took a terrible stance regarding human bondage. Some of the delegates had qualms about it (Morris was quite articulate on the subject) but they were not willing to risk the union over the matter.

In this exchange, it seems very clear that the delegates were not using Christianity or the Bible as a guide. They didn’t look to revelation for the principles of government we now live by. While they held true to Republican principles because rationally they seemed to be fair and respectful of natural rights, they didn’t self-consciously appeal to Christianity for the content of those principles.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here. In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
Constitutional Convention Series (click the link)
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The 1787 Constitutional Convention – No Religious Test Proposed, Treason Debated

August 20, 1787 (click to read Madison’s notes)

Summary

South Carolina’s Charles Pinckney introduced a bill of rights. These came from the proposal he introduced on the first day of business. A presidential cabinet was discussed as well as more powers for Congress. Treason and how to define it was also discussed.

Influences on the Delegates

Of special note for this blog series is this proposal by Pinckney:

No religious test or qualification shall ever be annexed to any oath of office, under the authority of the United States.

This and many other proposals were referred to the Committee of Detail without debate.
Treason and how to define it was a focus with Madison raising British definitions as a touchstone. Even though some believe the Bible may have been inspirational for the requirement to have two witnesses, there is no indication from this debate of that influence. Instead, the delegates spoke much about English law. Treason was defined in Article VII, Section 2 as ordered in the August 6, 1787 report from the Committee of Detail:

Sect. 2. Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attained.

Several delegates liked the idea to take the same language as the British statute which originally came from common law.

Mr. GOUVERNEUR MORRIS and Mr. RANDOLPH wished to substitute the words of the British statute, and moved to postpone Article 7, Section 2, in order to consider the following substitute: “Whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of treason, it is therefore ordained, declared, and established, that if a man do levy war against the United States within their territories, or be adherent to the enemies of the United States within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed, by the people of his condition, he shall be adjudged guilty of treason.”

Eventually, the words “aid and comfort” requiring two witnesses were added. Giving aid and comfort to the enemy was part of the definition of high treason in British law.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – More Congressional Powers Suggested

August 18, 1787 (Click to read Madison’s notes)

Summary

The delegates continued to discuss the enumeration of powers of Congress and formed a committee to make recommendations about new powers to include.

Influences on the Delegates

Although some founders wanted a very limited national government, Madison and Pinckney wanted an expansion of federal powers. Look at what they wanted Congress to oversee.

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.
“To regulate affairs with the Indians, as well within as without the limits of the United States.
“To exercise exclusively legislative authority at the seat of the General Government, and over a district around the same not exceeding — square miles; the consent of the Legislature of the State or States, comprising the same, being first obtained.
“To grant charters of corporation in cases where the public good may require them, and the authority of a single State may be incompetent.
“To secure to literary authors their copyrights for a limited time.
“To establish a university.
“To encourage by premiums and provisions the advancement of useful knowledge and discoveries.
“To authorize the Executive to procure, and hold for the use of the United States, landed property for the erection of forts, magazines, and other necessary buildings.”
These propositions were referred to the Committee of Detail which had prepared the Report; and at the same time the following, which were moved by Mr. PINCKNEY, — in both cases unanimously:
“To fix and permanently establish the seat of government of the United States, in which they shall possess the exclusive right of soil and jurisdiction.
“To establish seminaries for the promotion of literature and the arts and sciences.
“To grant charters of incorporation.
“To grant patents for useful inventions.
“To secure to authors exclusive rights for a certain time.
“To establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures.
“That funds which shall be appropriated for the payment of public creditors, shall not during the time of such appropriation, be diverted or applied to any other purpose, and that the Committee prepare a clause or clauses for restraining the Legislature of the United States from establishing a perpetual revenue.
“To secure the payment of the public debt.
“To secure all creditors under the new Constitution from a violation of the public faith when pledged by the authority of the Legislature.
“To grant letters of marque and reprisal.
“To regulate stages on the post-roads.”

Great Britain was a positive influence for Mason:

Mr. MASON was much attached to the principle, but was afraid such a fetter might be dangerous in time of war. He suggested the necessity of preventing the danger of perpetual revenue, which must of necessity subvert the liberty of any country. If it be objected to on the principle of Mr. RUTLEDGE’S motion, that public credit may require perpetual provisions, that case might be excepted; it being declared that in other cases no taxes should be laid for a longer term than — years. He considered the caution observed in Great Britain on this point, as the palladium of public liberty.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – National Power to Curb Rebellions

August 17, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates debated many details relating to the enumeration of Congressional powers.

Influences on the Delegates

Madison again referred to the example of Great Britain as instructive for the Constitution. The Statute of Anne was the first British law to establish copyright protection.

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.

Relevant to discussions now about the Civil War and the permission of the national government to intervene in state matters, the delegates seemed divided on the matter even as they voted to include this power in the Constitution.

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 insurrections.
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.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – The Powers of Congress

August 16, 1787 (Click to read Madison’s notes)

Summary

The delegates took up debate on the powers of Congress. They easily agreed that Congress should have power to lay and collect taxes, regulate international and interstate commerce, coin money, regulate foreign coin, fix standards of weights and measures, and to establish post roads and post offices. They voted down a clause allowing Congress to print paper money (“emit bills”).

Influences on the Delegates

The one biblical reference in today’s proceedings was to the book of Revelation. Delaware’s George Read said:

Mr. READ thought the words, if not struck out, would be as alarming as the mark of the Beast in Revelation.

Read made these comments at the end of a debate on the power of Congress to “emit bills on the credit of the United States.” Gouverneur Morris moved to strike that clause followed by strenuous discussion. Bills of credit or paper money had become a problem in some states and was in great disfavor. The delegates voted to remove the clause, 9 in favor, 2 opposed. Read’s comment was followed by New Hampshire’s Langdon who said:

Mr. LANGDON had rather reject the whole plan, than retain the three words, “and emit bills.”

The matter was of great importance to the delegates as indicated by the strong words and lopsided vote. Thus, Read’s comment was rhetorical and not indicative of using the Bible in a policy making manner.
As is obvious, things have surely changed. If paper money was hated, can you imagine their bewilderment and distrust of digital transactions. This discussion of paper money is a reminder that visiting the past through these journals is like visiting another world. They lived in an entirely different environment with difference conditions. What the founders did can’t always or perhaps even frequently be our guide.