prohibition on the States was to prevent the issue and circulation of paper money; the object of the proposed grant of power to the United States was to enable the government to employ a paper currency, when it should have occasion to do so. But the records of the discussions that have come down to us do not disclose the reasons which may have led to the supposition that a paper currency could be used by the United States with any more propriety or safety than by a State. One of the principal causes which had led to the experiment of making a national government with power to prevent such abuses, had been the frauds and injustice perpetrated by the States in their issues of paper money; and there was at this very time a loud and general outcry against the conduct of the people of Rhode Island, who had kept themselves aloof from the national Convention, for the express purpose, among others, of retaining to themselves the power to issue such a currency. It is possible that the phrase "emit bills on the credit of the United States" might have been left in the Constitution, without any other danger than the hazards of a doubtful construction, which would have confined its meaning to the issuing of certificates of debt under the power to "borrow money." But this was not the sense in which the term "bills of credit" was generally received throughout the country, nor the sense intended to be given to it in the clause which contained the prohibition on the States. The well-understood meaning of the term had reference to paper issues, intended to circulate as currency, and bearing the public promise to pay a sum of money at a future time, whether made or not made a legal tender in payment of debts. It would have been of no avail, therefore, to have added a prohibition against making such bills a legal tender. If a power to issue them should once be seen in the Constitution, or should be suspected by the people to be there, wrapt in the power of borrowing money, the instrument would array against itself a formidable and probably a fatal opposition. It was deemed wiser, therefore, even if unforeseen emergencies might in some cases make the exercise of such a power useful, to withhold it altogether. It was accordingly stricken out, by a vote of nine States against two, and the authority of Congress was thus confined to borrowing money on the credit of the United States, which appears to have been intended to include the issuing of government notes not transferable as currency.1 The clauses which authorize Congress to constitute tribunals inferior to the Supreme Court,2 and to make rules as to captures on land and water,3 the latter comprehending the grant of the entire prize jurisdiction, were assented to without discussion. Then came the consideration of the criminal jurisdiction in admiralty, and that over offences 1 See the debate, and Mr. Madison's explanation of his vote, Elliot, V. 434, 435, and the note on the latter page. g. 2 Constitution, Art. I. § 8, clause 3 Ibid., clause 11. 4 Elliot, V. 436. ... against the law of nations. The committee of detail had authorized Congress "to declare the law and punishment of piracies and felonies committed on the high seas,. . . . . and of offences against the law of nations." The expression to "declare the law," &c. was changed to the words "define and punish," for the following reason. Piracy is an offence defined by the law of nations, and also by the common law of England. But in those codes a single crime only is designated by that term.' It was necessary that Congress should have the power to declare whether this definition was to be adopted, and also to determine whether any other crimes should constitute piracy. In the same way, the term "felony has a particular meaning in the common law, and it had in the laws of the different States of the Union a somewhat various meaning. It was necessary that Congress should have the power to adopt any definition of this term, and also to determine what other crimes should be deemed felonies. So also there were various offences known to the law of nations, and generally regarded as such by civilized States. But before Congress could have power to punish for any of those offences, it would be necessary that they, as the legislative organ of the nation, should determine and make known what acts were to be regarded as offences against the law of nations; and that the power to do this should include both the power to adopt from the 1 That is to say, it is the same crime, committed on the high seas, that is denominated robbery when committed on the land. code of public law offences already defined by that code, and to extend the definition to other acts. The term "declare" was therefore adopted expressly with a view to the ascertaining and creating of offences, which were to be treated as piracies and felonies committed on the high seas, and as offences against the law of nations. The same necessity for an authority to prescribe a previous definition of the crime of counterfeiting the securities and current coin of the United States would seem to have been felt; and it was probably intended to be given by the terms "to provide for the punishment of" such counterfeiting." The power to "declare" war had been reported by the committee as a power to "make" war. There was a very general acquiescence in the propriety of vesting the war power in the legislature rather than the executive; but the former expression was substituted in place of the latter, in order, as it would seem, to signify that the legislature alone were to determine formally the state of war, but that the executive might be able to repel sudden attacks.3 The clause which enables Congress to grant "letters of marque and reprisal" was added to the war power, at a subsequent period, on the recommendation of a committee to whom were re 1 Madison, Elliot, V. 436, 437. 2 In the clause as it passed the Convention, the offence of counterfeiting was placed with the other crimes which Congress was to "define" and "punish "; but, on the revision of the Constitution, coun- ferred sundry propositions introduced by Charles Pinckney, of which this was one.1 In addition to the war power, which would seem to involve of itself the authority to raise all the necessary forces required by the exigencies of a war, the committee of detail had given the separate power "to raise armies," which the Convention enlarged by adding the term to " support." 2 This embraced standing armies in time of peace, and, as the clause thus amended would obviously allow, such armies might be enlarged to any extent and continued for any time. The nature of the government, and the liberties and the very prejudices of the people, required that some check should be introduced, to prevent an abuse of this power. A limitation of the number of troops that Congress might keep up in time of peace was proposed, but it was rejected by all the States as inexpedient and impracticable. Another check, capable of being adapted to the proper exercise of the power itself, was to be found in an idea suggested by Mr. Mason, of preventing a perpetual revenue. The application of this principle to the power of raising and supporting armies would furnish a salutary limitation, by requiring the appropriations for this purpose to pass frequently under the review of the representatives of the people, without embarrassing the exercise of the power itself. Accordingly, the clause now in the Constitution, which restricts the appropriation of 3 1 Elliot, V. 440, 510, 511. 2 Ibid. 442. 3 Ibid. 443. 4 Ibid. 440. |