act which was treason against the United States might not be treason against a particular State. In proof he cited the rebellion of Bacon in Virginia. This case, Johnson said, would amount to treason against the supreme sovereign, which would be the United States.1 The clause as reported by the Committee defined treason against the United States only, and in order to make the definition. of treason general, these words were struck out.2 At Franklin's suggestion it was agreed that no person should be convicted of treason unless on the testimony of two witnesses to the same overt act.

King and Broom wished to modify the clause so that the sole power of punishment for the crime would belong to the United States but this change was rejected, though only by a single vote.3

This left the clause, Wilson thought, still ambiguous. Either it ought to confer the sole power upon the United States, or the words "against the United States" ought

1 At this point in the discussion Morris and Randolph moved a substitute for the committee's clause which is of interest as containing the ordaining phrase in the preamble; it was a close copy of the British statute: "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 its said territories, giving them aid or 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." Documentary History, III, 571; Elliot, V, 449. On this question New Jersey and Virginia, aye; Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina and Georgia, no.

2 Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina and Georgia, aye; Virginia and North Carolina, no.

3 New Hampshire, Massachusetts, Pennsylvania, Delaware, South Carolina, aye; Connecticut, New Jersey, Maryland, Virginia, North Carolina and Georgia, no.

to be restored. He could draw no line between treason against a State and against the general government. Sherman could detect the line in resistance against the laws of the United States as distinguished from resistance against the laws of a particular State. On the one side of the line dividing the jurisdictions, remarked Ellsworth, the United States were sovereign; on the other side the States, and each ought to have power to defend its own sovereignty. The last vote on the subject was then reversed and the rejected words "against the United States" were put back into the clause.1 But Madison was still dissatisfied with the basis on which the amended clause rested.

As treason against the United States so involved treason against a particular State, and the reverse would also be true, the same act, he said, might be twice tried, and be punished by two different authorities; an opinion with which Morris also agreed. The clause was then amended so as to provide that treason against the United States should consist only in levying war against them or in adhering to their enemies, to which as being too indefinite, on Martin's suggestion, were added the words "giving them aid or comfort." On Martin's motion the clause was further amended by providing that no person should be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court, in which form it passed unanimously. At Ellsworth's suggestion three years were substituted for six, as the time after the first meeting of Congress when the first census should be taken. As events proved this brought the first census in the year 1790.

1 Connecticut, New Jersey, Maryland, Virginia, North Carolina and Georgia, aye; New Hampshire, Massachusetts, Pennsylvania, Delaware and South Carolina, no.

The Committee of Eleven to whom had been referred the matter of the assumption of the debts of the States and the control over the militia, reported two clauses, through Livingston, its chairman.1 The national legislature should have power to fulfill the engagements which had been entered into by Congress, and to discharge both the debts of the United States and the debts incurred by the several States during the war, for the common defense and the general welfare.2 It should also make laws for organizing, arming and disciplining the militia, and for governing such part of them as might be employed in the service of the United States; reserving to the States, respectively, the appointment of all officers and the authority of training the militia according to the rules prescribed by the United States.3 Gerry criticised the first part of the report, because it did not make the assumption of the debts obligatory on Congress, a defect which would destroy the security already enjoyed by the public creditors, and so change their situation as to excite them against the plan. Moreover, if the States, which had paid a great portion of their debts, were to be saddled with a share of the debts of other States, which had done nothing to meet them, antagonism to the new plan would be further sharpened.

4

Sherman too, criticised the report because it left the whole matter just where it was left by the Articles of Confederation. Ellsworth thought the Committee's provision unnecessary, because the United States, through their agent, Congress, had already entered into engagements which their new agents under the Constitution would

1 August 21.

2 Compare Constitution, Article VI, Clause 1.

3 Compare Constitution, Article I, Section 8, Clause 16.

4 On motion of Ellsworth this report was tabled, but it was taken up for consideration on the 22nd.

THE PUBLIC CREDITORS.

531

be bound to fulfill; but Randolph thought the new Congress would have no authority in the case, unless it was explicitly conferred. Madison coincided with him that by giving this authority, misconstruction would be prevented. It was therefore unanimously agreed that the discharge of the debts and the fulfillment of the engagements of the United States should be made obligatory upon the new government.1 The Committee had duly reported the clause, as requested, making the fulfillment of the engagements and the discharge of the debts obligatory, but Butler at once objected to it because the government would thus be compelled to pay those who had speculated in the public funds as fully as those who had fought and bled and made the original sacrifice.2

Mason took the same view. There was great distinction, he said, between the original creditors and those who had profited by a fraudulent purchase of the claims against the government, held by the ignorant and distressed. The line between deserving and undeserving holders of the claimants, he confessed, was difficult to draw. Even fair purchasers, at four or eight for one, did not stand on the same footing with the first holders, supposing them not to be blamable. The interest they received, even in paper, was equal to their purchase money. He did not wish to extend the obligation of the government to all the old continental paper. Langdon wished if possible so to word the provision as to give neither party the advantage in an assumption of the public debts. Gerry

1 Compare the Constitution, Article VI, Clause 1. The language was taken from Morris's motion that the legislature shall discharge the debts and fulfill the engagements of the United States. Elliot, V, 464.

2 August 23.

3 August 25.

was convinced that the frauds on the soldiers ought to have been foreseen. They had been compelled by necessity to part with their securities. The States had not an equal interest in the assumption, for their shares of the debt were not proportional; therefore, the idea had sprung up of scaling the debt. The stock-jobbers kept up the value of the paper in expectation of assumption, otherwise there would be no market for it.

Randolph suggested, as a substitute for the clause reported by the Committee, that all debts contracted and engagements entered into by the authority of Congress should be as valid against the United States under the Constitution as under the Confederation.1 Johnson, approving Randolph's provision, said the debt belonged to the United States as a whole and that a change in the government could not change the public obligation. Randolph's substitute thus compromised many difficulties and was adopted, Pennsylvania alone voting against it. The authority of Congress over the militia presented greater difficulties and was settled less easily. To reserve to the States the authority of training the militia according to the system prescribed by Congress, as the Committee suggested, seemed to Sherman, a superfluous provision, but not more superfluous, thought Ellsworth, than the reservation of the appointment of the officers.

King then explained the meaning which the Committee attached to the language it had employed: by "organizing the militia," was meant the proportioning of the officers and men; by "arming" it, the kind, size and caliber of arms was to be specified; by "disciplining," was meant the manual exercise and evolutions. "Arming" also included the provision for uniformity of arms and the authority to

1 See Constitution, Article VI, Clause 1, which consists of Randolph's substitute.