August 20, 1787: Necessary and Proper

Benjamin Franklin by Joseph Siffred Duplessis, 1785

National Portrait Gallery, Smithsonian Institution

"Prosecutions for treason were generally virulent; and perjury too easily made use of against innocence."

--Benjamin Franklin

Monday, August 20, 1787: The Convention Today

The day began with Charles Pinckney (SC) submitting a miscellany of thirteen prospective clauses for the Constitution. He wanted his proposals to go to the Committee of Detail. Among his ideas were:

• “Each branch of the Legislature, as well as the Supreme Executive, shall have authority to require the opinions of the Supreme Judicial Court upon important questions of law.”
• The writ of habeas corpus (the right to challenge unlawful detentions)
• “The liberty of the press shall be inviolably preserved.”
• “The military shall always be subordinate to the civil power; and no grants of money shall be made by the Legislature for supporting military land forces, for more than one year at a time.”
• “No soldier shall be quartered in any house, in time of peace, without consent of the owner.”
• “No religious test or qualification shall ever be annexed to any oath of office.”
• “The jurisdiction of the Supreme Court shall be extended to all controversies between the United States and an individual State, or the United States and the citizens of an individual State.”

Gouverneur Morris (PA), seconded by C. Pinckney, submitted to the Committee of Detail a proposal for a “Council of State” that would assist the President. The Council would be composed of the Supreme Court Chief Justice and the Secretaries of Domestic Affairs, Commerce and Finance, Foreign Affairs, War, Marine [Navy], and State. The secretary positions were also defined in his proposal.

Mason moved for Congress to be given the power to enact sumptuary laws (laws banning the purchase of luxury goods). His motion failed 3–8, with Delaware, Maryland, and Georgia in support.

The Convention then considered one of the most key clauses of the Constitution: Congress had the power “to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the Government of the United States.” This expansive clause would give Congress authority to pass laws not explicitly mentioned in the Constitution if those laws met Constitutional ends.

Madison (VA) and C. Pinckney, wanting this power to be even more explicitly expansive, moved to insert the words ““and establish all offices” in between “laws” and “necessary.” Multiple delegates thought this addition was unneeded, and the motion failed, 2–9. Without further debate the “necessary and proper” clause was then unanimously approved.

The section dealing with treason was then taken up. In what was likely a tedious argument, half the day was spent trying to define treason. The starting point was “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.”

Debate concerned how broad the definition should be and whether treason against individual states should be included. The delegates showed a thorough knowledge of British statute law on the subject. After several motions and amendments (including two where words were removed from the section, only to be added back in upon reconsideration), the new wording agreed to was “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

The section as amended also said that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court,” which was a higher evidentiary standard than the original wording. Wilson (PA) fretted that “Treason may sometimes be practiced in such a manner as to render proof extremely difficult.”

The Convention took up the section prescribing how direct taxation would work. Madison’s notes record that “King [MA] asked what was the precise meaning of direct taxation? No one answered.”

Gerry (MA) moved that, until the census was taken, direct taxes should be apportioned to the number of representatives each state received. Langdon (NH) and Carroll (MD) opposed, the former because it was “unreasonably hard on New Hampshire,” and the latter because “the number of Representatives did not admit of a proportion exact enough for a rule of taxation.” At that point, 4 pm, the Convention adjourned for the day.

Synopsis

• Charles Pinckney (SC) submitted a series of proposed clauses to the Committee of Detail, some of which resembled a bill of rights.
• Gouverneur Morris (PA) submitted to the Committee of Detail a proposal for a “Council of State” for the President of the United States.
• The clause giving Congress authority to make “necessary and proper” laws passed unanimously with almost no debate.
• After a long argument, the Convention settled on a definition and an evidentiary standard for treason.

Delegates Today

• Blount (NC) wrote from Philadelphia to North Carolina Governor Richard Caswell to report that he would join him when the Convention forwarded its proposals to Congress. He assured Caswell that “it will be such a Form of Government as I believe will be readily adopted by the several states.”
• Hamilton (NY), back in New York, wrote to King (MA) at the Convention. He informed King that he had written the other New York delegates, Lansing and Yates (whom he had profound disagreement with), and offered to return to the Convention if either of them would go, sarcastically adding “So much for the sake of propriety and public opinion.” (Apparently, neither Yates nor Lansing responded.) He asked King to write if substantial changes were made to the plan and to notify him when the Convention was about to end.
• Hamilton also wrote Jeremiah Wadsworth in Connecticut, asking him to track down the source of a fraudulent letter claiming the Convention had invited the second son of King George III to become king of the United States.
• Important French nobleman Louis Alexandre de La Rochefoucauld d'Enville wrote his friend Franklin (PA), celebrating him and Washington (VA) for lending their prestige to the Convention. “I eagerly await the outcome of this important Assembly.”

Philadelphia Today

• It rained hard all day.
• The Independent Gazette reported the disappearance of John Liddy, an apprentice of John Peters. The boy was about five feet tall, with pock marks and freckles, “very talkative and much given to swearing,” and spoke with a slight Irish accent. Liddy disappeared while on an errand. A nine-pence reward was offered to whoever who found him. A special warning went out to “masters of vessels” and others forbidding them to unlawfully hold the boy.