August 20, 1787: Necessary and Proper

Part of the National Park Service's day-by-day account of the Constitutional Convention in Philadelphia, August 16 to 31, 1787.

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

In the Convention: Monday, August 20, 1787

Proposals for the Committee of Detail

• Charles Pinckney (South Carolina) submitted thirteen proposed clauses — several of them like a bill of rights: that each house and the president could ask the Supreme Court's opinion on important questions of law; habeas corpus; that "the liberty of the press shall be inviolably preserved"; that the military be subordinate to civil power, with army funding granted for no more than a year at a time; no quartering of soldiers in peacetime without the owner's consent; no religious test for office; and Supreme Court jurisdiction over disputes between the United States and a state or its citizens.
• Gouverneur Morris (Pennsylvania), seconded by Pinckney, proposed a Council of State to assist the president: the chief justice and secretaries of domestic affairs, commerce and finance, foreign affairs, war, marine (navy) and state.

Luxury laws. Mason (Virginia) moved to let Congress pass sumptuary laws banning luxury purchases. It failed 3–8 (Delaware, Maryland and Georgia for).

"Necessary and proper"

Next came one of the Constitution's most important clauses: Congress's 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" — which would let Congress pass laws not spelled out in the Constitution if they served its ends. Madison (Virginia) and Pinckney tried to make it broader still by adding "and establish all offices"; many thought that unnecessary, and it failed 2–9. The clause then passed unanimously, without further debate.

Defining treason

Half the day went on treason, starting from "levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them." The delegates, showing a thorough knowledge of British law, argued over how broad it should be and whether treason against individual states belonged. After several motions — two removing words that were later put back — they agreed: "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 also required two witnesses to the same overt act, or a confession in open court, for a conviction — a higher bar than before. Wilson (Pennsylvania) worried that treason might be committed in ways that made proof extremely hard.

Direct taxes

On direct taxation, Madison recorded: "King [MA] asked what was the precise meaning of direct taxation? No one answered." Gerry (Massachusetts) moved that until a census, direct taxes follow each state's number of representatives. Langdon (New Hampshire) called that unreasonably hard on his state, and Carroll (Maryland) said representation was not exact enough to apportion taxes. At 4 p.m. the Convention adjourned.

In short

• Pinckney's proposals, some resembling a bill of rights, and Morris's Council of State went to the Committee of Detail.
• The "necessary and proper" clause passed unanimously with almost no debate.
• After long argument, the Convention settled the definition of treason and the proof needed to convict.

The delegates' day

• Blount (North Carolina) told Governor Richard Caswell he would join him when the Convention sent its plan to Congress, predicting a form of government the states would readily adopt.
• Hamilton (New York), back home, wrote to King that he had offered to return if either of New York's other delegates, Lansing and Yates — with whom he deeply disagreed — would too ("So much for the sake of propriety and public opinion"); apparently neither replied. He asked King to tell him of major changes and of the Convention's end. He also asked Jeremiah Wadsworth in Connecticut to trace a forged letter claiming the Convention had invited King George III's second son to be king of the United States.
• The French nobleman Louis Alexandre de La Rochefoucauld d'Enville wrote to Franklin, praising him and Washington 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, apprentice to John Peters: about five feet tall, pockmarked and freckled, "very talkative and much given to swearing," with a slight Irish accent. The reward was ninepence, and ships' masters were warned not to hold him.

Sources

• National Park Service, Independence National Historical Park, "August 20, 1787: Necessary and Proper," from The Constitutional Convention: A Day by Day Account for August 16 to 31, 1787. https://www.nps.gov/articles/000/constitutionalconvention-august20.htm
• Quotations are from the records and letters of 1787; the rest is rewritten in hubnx's own words.