As the Convention devotes considerable time considering paragraph-by-paragraph and line-by-line the report of the Committee of Detail, events outside the State House are taking place. Yesterday, George Washington and his close friend and confidante Samuel Powel rode up to White Marsh. For the first time since the Convention convened in May, Washington’s daily journal contained a trace of solemn emotion. “We traversed my old encampment,” he wrote, “and contemplated on the dangers which threatened the American Army at that place.”
The Battle of Whitemarsh was actually a series of skirmishes over several days in early December 1777. Sir William Howe, commander-in-chief of British forces in America, had launched a last attempt to destroy Washington and the Continental Army before the winter set in. Howe called off the attack without a decisive engagement and returned to Philadelphia while Washington and his men dug in at Valley Forge. Washington’s contemplation of those events remains his own, but the irony of the contraction of our victory over a British monarch and the current rumblings of a move to establish a monarchy in the United States could not have escaped his attention.
Enough members of the Convention were sufficiently concerned about the August 15 article in The Pennsylvania Gazette reporting on a plan to invite the second son of George III to be king in the United States, that they issued the following statement:
We are well informed, that many letters have been written to the members of the federal convention from different quarters, respecting the reports idly circulating, that it is intended to establish a monarchical government, to send for the Bishop of Osnaburgh, &c. &c, - to which it has been uniformly answered, tho’ we cannot, affirmatively, tell you what we are doing; we can, negatively, tell you what we are not doing – we never once thought of a king.
North Carolina’s Alexander Martin used exactly the same language in a letter to Governor Caswell, reassuring him that “they are not about to create a King as hath been represented unfavorably in some of the eastern States.” Alexander Hamilton, having himself been accused of harboring monarchical tendencies, wants to get to the bottom of the rumors. Today he wrote to Jeremiah Wadsworth, a Connecticut businessman recently elected to the Continental Congress, “suspicious that it has been fabricated to excite jealousy against the Convention with a view to an opposition of their recommendations.” He enclosed a copy of the circulating letter in question and asked Wadsworth “to trace its source,”
When the Convention convened for today’s session, Charles Pinckney added to his list of proposed powers for the national legislature, but also inserted some prohibitions. After being read, without debate or consideration, they were referred to the Committee of Detail. Among its provisions are protection of the right of habeas corpus; inviolability of liberty of the press; prohibition of quartering soldiers in any house in time peace without consent of the owner; and the requirement that “no religious test or qualification shall ever be annexed to any oath of office under the authority of the United States.” Gouverneur Morris submitted a new proposition of his own, consisting of a thorough description of a Council of State “to assist the President in the conduct of public affairs.” Like Pinckney’s proposals, these were read and referred to the Committee of Detail.
The Convention then turned its attention to the last clause of Article VII, Sect. 1, empowering Congress to “make all laws necessary and proper for carrying into execution of the foregoing powers and all other powers vested, by this Constitution, in the government of the United States or any department or officer thereof.” During meetings of the Committee of Detail, Edmund Randolph had proposed empowering Congress to “organize the government.” James Wilson inserted the “necessary and proper” clause as a substitute. The words in a legal context are not unfamiliar, but how “necessary” and “proper” are to be defined, and by whom, was not addressed. With virtually no debate, the section was approved nem. con., bequeathing to Congress potentially sweeping authority.
The next section of Article VII concerns treason. The delegates spent the remainder of the day defining treason, determining what punishments should be appropriate for persons convicted of treason, and whether treason should be against the United States, individual States, or both. The entire matter is complicated by how treason had been applied in the aftermath of the Revolutionary War. Gouverneur Morris believes the national government should have exclusive jurisdiction over defining treason, while George Mason complicated the matter by noting that sovereignty will be divided between the national government and the States. “An act may be treason against a particular State which is not so against the United States,” he argued, pointing to Bacon’s Rebellion in Virginia in 1676. William Johnson disagreed. There could be no such thing as treason against a State, he argued. In fact, “it could not even at present, as the Confederation now stands.”
The delegates also disagreed over the meaning of “giving aid and comfort,” and they had to decide if “two witnesses” required to bring charges of treason means two witnesses testifying to the same overt act or to different overt acts. After no less than seven amendments and an extended debate, it was agreed nem. con. that “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 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.” It also defines punishment for treason. Irony intended or unintended, John Dickinson objected to including the words “giving aid and comfort,” thinking them “unnecessary and proper.”