Article 1, Section 8, Clause 10

[Volume 3, Page 69]

Document 3

Records of the Federal Convention

[2:315, Madison, 17 Aug.]

"To declare the law and punishment of piracies and felonies &c" &c considered.

Mr. Madison moved to strike out "and punishment" &c-

Mr. Mason doubts the safety of it, considering the strict rule of construction in criminal cases. He doubted also the propriety of taking the power in all these cases wholly from the States.

Mr Governr Morris thought it would be necessary to extend the authority farther, so as to provide for the punishment of counterfeiting in general. Bills of exchange for example might be forged in one State and carried into another:

It was suggested by some other member that foreign paper might be counterfeited by Citizens; and that it might be politic to provide by national authority for the punishment of it.

Mr Randolph did not conceive the expunging "the punishment" would be a constructive exclusion of the power. He doubted only the efficacy of the word "declare".

Mr Wilson was in favor of the motion-- Strictness was not necessary in giving authority to enact penal laws; though necessary in enacting & expounding them.

On motion for striking out "and punishment" as moved by Mr Madison

N. H. no. Mas. ay. Ct no. Pa ay. Del. ay-- Md no. Va. ay. N-- C-- ay. S-- C. ay-- Geo. ay. [Ayes--7; noes--3.]

Mr Govr Morris moved to strike out "declare the law" and insert "punish" before "piracies". and on the question

N-- H-- ay. Mas-- ay. Ct. no. Pa. ay. Del. ay. Md ay. Va. no. N. C-- no. S. C-- ay. Geo-- ay. [Ayes--7; noes--3.]

Mr. Madison, and Mr. Randolph moved to insert, "define &." before "punish".

Mr. Wilson thought "felonies" sufficiently defined by Common law.

Mr. Dickenson concurred with Mr Wilson

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 Stat: 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 farther than 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 Natl. legislature.

Mr Govr. Morris would prefer designate to define, the latter being as he conceived, limited to the preexisting meaning. ------ It was said by others to be applicable to the creating of offences also, and therefore suited the case both of felonies & of piracies. The motion of Mr. M. & Mr. R was agreed to.

Mr. Elseworth 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 U. States, and offences agst. the law of Nations" which was agreed to, nem con.

[2:614; Madison, 14 Sept.]

To define & punish piracies and felonies on the high seas, and "punish" offences against the law of nations.

Mr. Govr. Morris moved to strike out "punish" before the words "offences agst. the law of nations." so as to let these be definable as well as punishable, by virtue of the preceding member of the sentence.

Mr. Wilson hoped the alteration would by no means be made. To pretend to define the law of nations which depended on the authority of all the Civilized Nations of the World, would have a look of arrogance. that would make us ridiculous.

Mr. Govr The word define is proper when applied to offences in this case; the law of nations being often too vague and deficient to be a rule.

On the question to strike out the word "punish" it passed in the affirmative

N-- H. ay. Mas-- no. Ct. ay. N-- J. ay. Pa. no. Del. ay Md. no. Va. no. N. C-- ay--S-- C-- ay. Geo-- no. [Ayes--6; noes--5.]

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 10, Document 3
The University of Chicago Press

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.

© 1987 by The University of Chicago
All rights reserved. Published 2000