H. OF R.] Amendments to the Constitution. [AUGUST, 1789. necessarily follows. I think the representative, men and public measures, whose voice, if we notwithstanding the insertion of these words, would descend to listen to it, would give us would be at liberty to act as he pleased; if he de-knowledge superior to what could be acquired clined to pursue such measures as he was directed amidst the cares and bustles of a public life; let to attain, the people would have a right to refuse us then adopt the amendment, and encourage him their suffrages at a future election. the diffident to enrich our stock of knowledge Now, though I do not believe the amendment with the treasure of their remarks and obser would bind the representatives to obey the in-vations. structions, yet I think the people have a right both to instruct and bind them. Do gentlemen conceive that on any occasion instructions would be so general as to proceed from all our constituents? If they do, it is the sovereign will; for gentlemen will not contend that the sovereign will presides in the Legislature. The friends and patrons of this Constitution have always declared that the sovereignty resides in the people, and that they do not part with it on any occasion; to say the sovereignty vests in the people, and that they have not a right to instruct and control their representatives, is absurd to the last degree. They must either give up their principle, or grant that the people have a right to exercise their sovereignty to control the whole Government, as well as this branch of it. But the amendment does not carry the principle to such an extent, it only declares the right of the people to send instructions; the representative will, if he thinks proper, communicate his instructions to the House, but how far they shall operate on his conduct, he will judge for himself. Mr. MADISON.-I think the committee acted prudently in omitting to insert these words in the report they have brought forward; if, unfortu nately, the attempt of proposing amendments should prove abortive, it will not arise from the want of a disposition in the friends of the Constitution to do what is right with respect to securing the rights and privileges of the people of America, but from the difficulties arising from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty. Amendments of a doubtful nature will have a tendency to prejudice the whole system; the proposition now suggested partakes highly of this nature. It is doubted by many gentlemen here; it has been objected to in intelligent publications throughout the Union; it is doubted by many members of the State Legislatures. In one sense this declaration is true, in many others it is cer tainly not true; in the sense in which it is true. The honorable gentleman from Georgia (Mr. we have asserted the right sufficiently in what JACKSON) supposes that instructions will tend to we have done; if we mean nothing more than generate factions in this House; but he did not this, that the people have a right to express and see how it could have that effect, any more than communicate their sentiments and wishes, we the freedom of debate had. If the representative have provided for it already. The right of freeentertains the same opinion with his constituents, dom of speech is secured; the liberty of the press he will decide with them in favor of the measure; is expressly declared to be beyond the reach of if other gentlemen, who are not instructed on this this Government; the people may therefore pub point, are convinced by argument that the mea-licly address their representatives, may privately sure is proper, they will also vote with them; consequently, the influence of debate and of in struction is the same. advise them, or declare their sentiments by pettion to the whole body; in all these ways they may communicate their will. If gentlemen mean The gentleman says further, that the people to go further, and to say that the people have a have the right of instructing their representatives; right to instruct their representatives in such a if so, why not declare it? Does he mean that it sense as that the delegates are obliged to conform shall lie dormant and never be exercised? If so, to those instructions, the declaration is not true. it will be a right of no utility. But much good Suppose they instruct a representative, by his may result from a declaration in the Constitution vote, to violate the Constitntion; is he at liberty that they possess this privilege; the people will to obey such instructions? Suppose he is in be encouraged to come forward with their in-structed to patronise certain measures, and from structions, which will form a fund of useful in- circumstances known to him, but not to his con formation for the Legislature. We cannot, I ap- stituents, he is convinced that they will endange prehend, be too well informed of the true state, the public good; is he obliged to sacrifice his ow condition, and sentiment of our constituents, and judgment to them? Is he absolutely bound to perhaps this is the best mode in our power of ob-perform what he is instructed to do? Suppose taining information. I hope we shall never shut refuses, will his vote be the less valid, or the co our ears against that information which is to be munity be disengaged from that obedience which derived from the petitions and instructions of our is due to the laws of the Union? If his vote mus constituents. I hope we shall never presume to inevitably have the same effect, what sort of a think that all the wisdom of this country is con- right is this in the Constitution, to instruct a centred within the walls of this House. Men. presentative who has a right to disregard unambitious of distinctions from their fellow-citi-order, if he pleases? In this sense the right does zens, remain within their own domestic walk, un- not exist, in the other sense it does exist, and is heard of and unseen, possessing all the advantages provided largely for. resulting from a watchful observance of public he the The honorable gentleman from Massachusetts AUGUST, 1789.] Amendments to the Constitution. asks if the sovereignty is not with the people at large. Does he infer that the people can, in detached bodies, contravene an act established by the whole people? My idea of the sovereignty of the people is, that the people can change the Constitution if they please; but while the Constitution exists, they must conform themselves to its dictates. But I do not believe that the inhabitants of any district can speak the voice of the people; so far from it, their ideas may contradict the sense of the whole people; hence the consequence that instructions are binding on the representative is of a doubtful, if not a dangerous nature. I do not conceive, therefore, that it is necessary to agree to the proposition now made; so far as any real good is to arise from it, so far that real good is provided for; so far as it is of a doubtful nature, so far it obliges us to run the risk of losing the whole system. Mr. SMITH, of South Carolina.-I am opposed to this motion, because I conceive it will operate as a partial inconvenience to the more distant States. If every member is to be bound by instructions how to vote, what are gentlemen from the extremities of the continent to do? Members from the neighboring States can obtain their instructions earlier than those from the Southern ones, and I presume that particular instructions will be necessary for particular measures; of consequence, we vote perhaps against instructions on their way to us, or we must decline voting at all. But what is the necessity of having a numerous representation? One member from a State can receive the instructions, and by his vote answer all the purposes of many, provided his vote is allowed to count for the proportion the State ought to send; in this way the business might be done at a less expense than having one or two hundred members in the House, which had been strongly contended for yesterday. Mr. STONE. I think the clause would change the Government entirely; instead of being a Government founded upon representation, it would be a democracy of singular properties. I differ from the gentleman from Virginia, (Mr. MADISON,) if he thinks this clause would not bind the representative; in my opinion, it would bind him effectually, and I venture to assert, without diffidence, that any law passed by the Legislature would be of no force, if a majority of the members of this House were instructed to the contrary, provided the amendment became part of the Constitution. What would follow from this? Instead of looking in the code of laws passed by Congress, your Judiciary would have to collect and examine the instructions from the various parts of the Union. It follows very clearly from hence, that the Government would be altered from a representative one to a democracy, wherein all laws are made immediately by the voice of the people. This is a power not to be found in any part of the earth except among the Swiss cantons; there the body of the people vote upon the laws, and give instructions to their delegates. But here we have a different form of Government; the people [H. OF R. at large are not authorized under it to vote upon the law, nor did I ever hear that any man required it. Why, then, are we called upon to propose amendments subversive of the principles of the Constitution, which were never desired? Several members now called for the question, and the Chairman being about to put the same: Mr. GERRY.-Gentlemen seem in a great hurry to get this business through. I think, Mr. Chairman, it requires a further discussion; for my part, I had rather do less business and do it well, than precipitate measures before they are fully understood. The honorable gentleman from Virginia, (Mr. MADISON) stated, that if the proposed amendments are defeated, it will be by the delay attending the discussion of doubtful propositions; and he declares this to partake of that quality. It is natural, sir, for us to be fond of our own work. We do not like to see it disfigured by other hands. That honorable gentleman brought forward a string of propositions; among them was the clause now proposed to be amended: he is no doubt ready for the question, and determined not to admit what we think an improvement. The gentlemen who were on the committee, and brought in the report, have considered the subject, and are also ripe for a decision. But other gentlemen may crave a like indulgence. Is not the report before us for deliberation and discussion, and to obtain the sense of the House upon it; and will not gentlemen allow us a day or two for these purposes, after they have forced us to proceed upon them at this time? I appeal to their candor and good sense on the occasion, and am sure not to be refused; and I must inform them now, that they may not be surprised hereafter, that I wish all the amendments proposed by the respective States to be considered. Gentlemen say it is necessary to finish the subject, in order to reconcile a number of our fellow-citizens to the Government. If this is their principle, they ought to consider the wishes and intentions which the convention has expressed for them; if they do this, they will find that they expect and wish for the declaration proposed by the honorable gentleman over the way, (Mr. TUCKER,) and, of consequence, they ought to agree to it; and why it, with others recommended in the same way, were not reported, I cannot pretend to say; the committee know this best themselves. The honorable gentleman near me (Mr. STONE) says, that the laws passed contrary to instruction will be nugatory. And other gentlemen ask, if their constituents instruct them to violate the Constitution, whether they must do it. Sir, does not the Constitution declare that all laws passed by Congress are paramount to the laws and constitutions of the several States. If our decrees are of such force as to set aside the State laws and constitutions, certainly they may be repugnant to any instructions whatever, without being injured thereby. But can we conceive that our constituents would be so absurd as to instruct us to violate our oath, and act directly contrary to the principles of a Government ordained by themselves? We must look upon them to be abso H. OF R.] Amendments to the Constitution. lutely abandoned and false to their own interests, to suppose them capable of giving such instruc tions. [AUGUST, 1789. or seven time on a question? I wish, sir, this subject discussed coolly and dispassionately, but hope we shall have no more reiterations or tedious discussions; let gentlemen try to expedite public business, and their arguments will be conducted in a laconic and consistent manner. As to the busi If this amendment is introduced into the Constitution, I do not think we shall be much troubled with instructions; a knowledge of the right will operate to check a spirit that would render in-ness of instruction, I look upon it as inconsistent struction necessary. with the general good. Suppose our constituents were to instruct us to make paper money; no gentleman pretends to say it would be unconsti tutional, yet every honest mind must shudder at the thought. How can we then assert that instructions ought to bind us in all cases not contrary to the Constitution? The honorable gentleman from Virginia asked, will not the affirmative of a member who votes repugnant to his instructions bind the community as much as the votes of those who conform? There is no doubt, sir, but it will; but does this tend to show that the constituent has no right to instruct? Surely not. I admit, sir, that instruc- Mr. LIVERMORE was not very anxious whether tions contrary to the Constitution ought not to the words were inserted or not, but he had a great bind, though the sovereignty resides in the people. deal of doubt on the meaning of this whole amendThe honorable gentleman acknowledges that the ment; it provides that the people may meet and sovereignty vests there; if so, it may exercise its consult for the common good. Does this mean a will in any case not inconsistent with a previous part of the people in a township or district, or does contract. The same gentleman asks if we are to it mean the representatives in the State Legis give the power to the people in detached bodies latures? If it means the latter, there is no occato contravene the Government while it exists.sion for a provision that the Legislature may inCertainly not; nor does the proposed proposition struct the members of this body. extend to that point; it is only intended to open In some States the representatives are chosen for them a convenient mode in which they may by districts. In such case, perhaps, the instruc convey their sense to their agents. The gentle- tions may be considered as coming from the disman therefore takes for granted what is inadmis-trict; but in other States, each representative is sible, that Congress will always be doing illegal things, and make it necessary for the sovereign to declare its pleasure. He says the people have a right to alter the Constitution, but they have no right to oppose the Government. If, while the Government exists, they have no right to control it, it appears they have divested themselves of the sovereignty over the Constitution. Therefore, our language, with our principles, must change, and we ought to say that the sovereignty existed in the people previous to the establishment of this Government. This will be ground for alarm indeed, if it is true; but I trust, sir, too much to the good sense of my fellow-citizens ever to believe that the doctrine will generally obtain in this country of freedom. Mr. VINING.—If, Mr. Chairman, there appears on one side too great an urgency to despatch this business, there appears on the other an unnecessary delay and procrastination equally improper and unpardonable. I think this business has been already well considered by the House, and every gentleman in it; however, I am not for an unseemly expedition. The gentleman last up has insinuated a reflection upon the committee for not reporting all the amendments proposed by some of the State conventions. I can assign a reason for this. The committee conceived some of them superfluous or dangerous, and found many of them so contradictory that it was impossible to make any thing of them; aud this is a circumstance the gentleman cannot pretend ignorance of. Is it not inconsistent in that honorable member to complain of hurry, when he comes day after day reiterating the same train of arguments, and demanding the attention of this body by rising six chosen by the whole people. In New Hampshire it is the case; the instructions of any particular place would have but little weight, but a Legisla tive instruction would have considerable influence upon each representative. If, therefore, the words mean that the Legislature may instruct, he presumed it would have considerable effect, though he did not believe it binding. Indeed, he was inclined to pay a deference to any information he might receive from any number of gentlemen, even by a private letter; but as for full binding force, no instructions contained that quality. They could not, and ought not to have it, because different parties pursue different measures; and it might be expedient, nay, absolutely necessary, to sacrifice them in mutual concessions. The doctrine of instructions would hold better in England than here, because the boroughs and corporations might have an interest to pursue totally immaterial to the rest of the Kingdom; in that case, it would be prudent to instruct their members in Parliament. Mr. GERRY wished the Constitution amended without his having any hand in it; but if he must interfere, he would do his duty. The honorable gentleman from Delaware had given him an example of moderation and laconic and consistent debate that he meant to follow; and would just observe to the worthy gentleman last up, that sev eral States had proposed the amendment, and among the rest New Hampshire. There was one remark which escaped him, when he was up before. The gentleman from Maryland (Mr. STONE) had said that the amend ment would change the nature of the Govern ment, and make it a democracy. Now he had always heard that it was a democracy; but per haps he was misled, and the honorable gentleman " AUGUST, 1789.] Amendments to the Constitution. [H. OF R. was right in distinguishing it by some other ap- I was an absolute necessity for adopting the amendpellation; perhaps an aristocracy was a term bet-ment. It was strictly compatible with the spirit ter adapted to it. and the nature of the Government; all power vests Mr. SEDGWICK opposed the idea of the gentle- in the people of the United States; it is, therefore, man from New Hampshire, that the State Legis-a Government of the people, a democracy. If it lature had the power of instructing the members were consistent with the peace and tranquilliof this House; he looked upon it as a subornationty of the inhabitants, every freeman would have a of the rights of the people to admit such an au- right to come and give his vote upon the law; but, thority. We stand not here, said he, the repre- inasmuch as this cannot be done by reason of sentatives of the State Legislatures, as under the the extent of territory, and some other causes, the former Congress, but as the representatives of the people have agreed that their representatives shall great body of the people. The sovereignty, the exercise a part of their authority. To pretend to independence, and the rights of the States are in- refuse them the power of instructing their agents, tended to be guarded by the Senate; if we are to appears to me to deny them a right. One gentlebe viewed in any other light, the greatest security man asks how the instructions are to be collected. the people have for their rights and privileges is Many parts of this country have been in the pracdestroyed. tice of instructing their representatives; they found no difficulty in communicating their sense. Another gentleman asks if they were to instruct us to make paper money, what we would do. I would tell them, said he, it was unconstitutional; alter that, and we will consider on the point. Unless laws are made satisfactory to the people, they will lose their support, they will be abused or done away; this tends to destroy the efficiency of the Government. But with respect to instructions, it is well worthy of consideration how they are to be procured. It is not the opinion of an individual that is to control my conduct; I consider myself as the representative of the whole Union. An individual may give me information, but his sentiments may be in opposition to the sense of the majority of the people. If instructions are to be of any efficacy, they must speak the sense of the majority of the people, at least of a State. In a State so large as Massachusetts it will behoove gentlemen to consider how the sense of the majority of the freemen is to be obtained and communicated. Let us take care to avoid the insertion of crude and undigested propositions, more likely to produce acrimony than that spirit of harmony which we ought to cultivate. Mr. LIVERMORE said that he did not understand the honorable gentleman, or was not understood by him; he did not presume peremptorily to say what degree of influence the Legislative instructions would have on a representative. He knew it was not the thing in contemplation here; and what he had said respected only the influence it would have on his private judgment. It is the sense of several of the conventions that this amendment should take place; I think it my duty to support it, and fear it will spread an alarm among our constituents if we decline to do it. Mr. WADSWORTH.-Instructions have frequently been given to the representatives of the United States; but the people did not claim as a right that they should have any obligation upon the representatives; it is not right that they should. În troublesome times, designing men have drawn the people to instruct the representatives to their harm; the representatives have, on such occasions, refused to comply with their instructions. I have known, myself, that they have been disobeyed, and yet the representative was not brought to acMr. AMES said there would be a very great in-count for it; on the contrary, he was caressed and convenience attending the establishment of the doctrine contended for by his colleague. Those States which had selected their members by districts would have no right to give them instructions, consequently the members ought to withdraw; in which case the House might be reduced below a majority, and not be able, according to the Constitution, to do any business at all. According to the doctrine of the gentleman from New Hampshire, one part of the Government would be annihilated; for of what avail is it that the people have the appointment of a representative, if he is to pay obedience to the dictates of another body? Several members now rose and called for the question. Mr. PAGE was sorry to see gentlemen so impatient; the more so, as he saw there was very little attention paid to any thing that was said; but he would express his sentiments if he was only heard by the Chair. He discovered clearly, notwithstanding what had been observed by the most ingenious supporters of the opposition, that there re-elected, while those who have obeyed them, contrary to their private sentiments, have ever after been despised for it. Now, if people considered it an inherent right in them to instruct their representatives, they would have undoubtedly punished the violation of them. I have no idea of instructions, unless they are obeyed; a discretional power is incompatible with them. The honorable gentleman who was up last says, if he were instructed to make paper money, he would tell his constituents it was unconstitutional. I believe that is not the case, for this body would have a right to make paper money; but if my constituents were to instruct me to vote for such a measure, I would disobey them, let the consequence be what it would. Mr. SUMTER. The honorable gentlemen who are opposed to the motion of my colleague, do not treat it fairly. They suppose that it is meant to bind the representative to conform to his instructions. The mover of this question, I presume to say, has no such thing in idea. That they shall notice them and obey them, as far as is consistent H. OF R.] Amendments to the Constitution. [AUGUST, 1789. and proper, may be very just; perhaps they ought pursued in bringing them forward. There was a to produce them to the House, and let them have committee of eleven appointed; and out of the as much influence as they deserve; nothing fur-number I think there were five who were memther, I believe, is contended for. I rose on this occasion, not so much to make any observations upon the point immediately under consideration, as to beg the committee to consider the consequences that may result from an undue precipitancy and hurry. Nothing can distress me more than to be obliged to notice what I conceive to be somewhat improper in the conduct of so respectable a body. Gentlemen will reflect how difficult it is to remove error when once the passions are engaged in the discussion; temper and coolness are necessary to complete what must be the work of time. It cannot be denied but that the present Constitution is imperfect; we must, therefore, take time to improve it. If gentlemen are pressed for want of time, and are disposed to adjourn the session of Congress at a very early period, we had better drop the subject of amendments, and leave it until we have more leisure to consider and do the business effectually. For my part, I would rather sit till this day twelvemonth, than have this all-important subject inconsiderately passed over. The people have already complained that the adoption of the Constitution was done in too hasty a manner; what will they say of us if we press the amendments with so much haste? bers of the convention that formed the Constitution. Such gentlemen, having already given their opinion with respect to the perfection of the work, may be thought improper agents to bring forward amendments. Upon the whole, I think it will be found that we have done nothing but lose our time, and that it will be better to drop the subject now, and proceed to the organization of the Government. Mr. SINNICKSON inquired of Mr. Chairman what was the question before the committee, for really the debate had become so desultory, as to induce him to think it was lost sight of altogether. Mr. LAWRENCE was averse to entering on the business at first; but since they had proceeded so far, he hoped they would finish it." He said, if gentlemen would confine themselves to the ques tion when they were speaking, that the business might be done in a more agreeable manner. He was against the amendment proposed by the gentleman from South Carolina, (Mr. TUCKER,) because every member on this floor ought to con sider himself the representative of the whole Union, and not of the particular district which had chosen him; as their decisions were to bind every individual of the confederated States, it was wrong to be guided by the voice of a single dis Mr. BURKE. It has been asserted, Mr. Chair-trict, whose interests might happen to clash with man, that the people of America do not require those of the general good; and unless instructions this right. I beg leave to ask the gentleman from were to be considered as binding, they were altoMassachusetts, whether the Constitution of that gether superfluous. State does not recognise that right, and the gentleman from Maryland, whether their declaration of rights does not expressly secure it to the inhabitants of that State? These circumstances, added to what has been proposed by the State conventions as amendments to this Constitution, pretty plainly declare the sense of the people to be in favor of securing to themselves and to their posterity a right of this nature. Mr. SENEY said that the declaration of rights prefixed to the Constitution of Maryland secured to every man a right of petitioning the Legislature for a redress of grievances, in a peaceable and orderly manner. Mr. BURKE.-I am not positive with respect to the particular expression in the declaration of rights of the people of Maryland, but the Constitutions of Massachusetts, Pennsylvania, and North Carolina, all of them recognise, in express terms, the right of the people to give instruction to their representatives. I do not mean to insist particularly upon this amendment; but I am very well satisfied that those that are reported and likely to be adopted by this House are very far from giving those solid and substantial amendments which the people expect; they are little better than whipsyllabub, frothy and full of wind, formed only to please the palate; or they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage. In my judgment, the people will not be gratified by the mode we have satisfaction to our constituents; they are not Mr. MADISON was unwilling to take up any more of the time of the committee; but, on the other hand, he was not willing to be silent after the charges that had been brought against the committee, and the gentleman who introduced the amendments, by the honorable members on each side of him, (Messrs. SUMTER and BURKE.) Those gentlemen say that we are precipitating the business, and insinuate that we are not acting with candor. I appeal to the gentlemen who have heard the voice of their country, to those who have attended the debates of the State conventions, whether the amendments now proposed are not those most strenuously required by the opponents of the Constitution? It was wishe ed that some security should be given for those great and essential rights which they have been taught to believe were in danger. I concurred. in the convention of Virginia, with those gentle men, so far as to agree to a declaration of those rights which corresponded with my own judg ment, and the other alterations which I had the honor to bring forward before the present Co gress. I appeal to the gentlemen on this floor who with what are desirous of amending the Constitution, whe are required by our constituents? Have not the people been told that the rights of conscience, the freedom of speech, the liberty of the press, and trial by jury, were in jeopardy? that they ought not to adopt the Constitution until those import ant rights were secured to them? a I |