AUGUST, 1789.] Amendments to the Constitution. [H. OF R. refer the subject to a select committee, lest an open and full examination should lay bare the muscles and sinews of the Constitution. He had succeeded on that occasion, and the business was put into the hands of a select committee. He now proposed to curtail the debate, because gentlemen will not swallow the propositions as they stand, when their judgment and their duty require to have them improved. Will this House, said he, agree that an important subject like this shall have less consideration than the most trifling business yet come before us? I hope they will not. If they are tired of it, let it be postponed until another session, when it can be attended to with leisure and good temper. Gentlemen now feel the weather warm, and the subject is warm; no wonder it produces some degree of heat. Perhaps, as our next will be a winter session, we may go through more coolly and dispassionately. But while I approve of these amendments, I should oppose the consideration at this time of such as are likely to change the principles of the Government, or that are of a doubtful nature; because I apprehend there is little prospect of obtaining the consent of two-thirds of both Houses of Congress, and three-fourths of the State Legislatures, to ratify propositions of this kind; therefore, as a friend to what is attainable, I would limit it to the plain, simple, and important security that has been required. If I were inclined to make no alteration in the Constitution, I would bring forward such amendments as were of a dubious cast, in order to have the whole rejected. Mr. BURKE never entertained an idea of charging gentlemen with the want of candor; but he would appeal to any man of sense and candor, whether the amendments contained in the report were any thing like the amendments required by the States of New York, Virginia, New Hampshire, and Carolina; and having these amendments in his hand, he turned to them to show the difference, concluding that all the important amendments were omitted in the re-posed to offer motions, and dwell long upon them report. Mr. SMITH, of South Carolina, understood his colleague, who had just sat down, to have asserted that the amendment under consideration was contained in the Constitution of the State of South Carolina: this was not the fact. Mr. BURKE said he mentioned the State of North Carolina, and there it was inserted in express terms. The question was now called for from several parts of the House; but a desultory conversation took place before the question was put. At length the call becoming general, it was stated from the Chair, and determined in the negative, 10 rising in favor of it, and 41 against it. The question was now taken on the second clause of the fourth proposition, as originally reported, and agreed to. Mr. SEDGWICK seconded Mr. AMES's motion, thinking there was little probability of getting through with the business, if gentlemen were dis in committee, when there was no likelihood they would meet the approbation of two-thirds of both Houses, and three-fourths of the State Legislatures. Mr. GERRY moved to call the yeas and nays on the motion. Mr. PAGE begged gentlemen to consider that the motion tended to deprive the members of that freedom of debate which they had heretofore been indulged in, and prevented the Speaker from giving his sentiments. He was sorry to see this hurry, and hoped the subject would be fairly treated, otherwise the people might think they were unjustly dealt by. They would have a right to suppose, with the honorable gentleman from Carolina, (Mr. BURKE,) that we meant nothing more than to throw out a tub to the whale. Mr. BURKE would oppose the motion, and join Mr. AMES moved the committee to rise and re-in calling the yeas and nays, because its object port progress; which being agreed to, must be to preclude debate. He was certain the Mr. SPEAKER having resumed the Chair, subject was so variegated, and at the same time Mr. AMES moved to discharge the committee so important, that it could not be thoroughly disfrom any further proceeding. He was led to cussed in any other manner than in a Committee make the motion from two considerations: first, of the Whole; and unless it was discussed in a that as the committee were not restrained in their satisfactory manner, he apprehended it would ocdiscussions, a great deal of time was consumed in casion a great deal of mischief. He said the peounnecessary debate; and, second, that as the Con-ple knew, and were sensible, that in ratifying the stitution required two-thirds of the House to ac- present Constitution, they parted with their libquiesce in amendments, the decisions of the com-erties; but it was under a hope that they would mittee, by a simple majority, might be set aside for the want of the Constitutional number to support them in the House. He further observed, that it might have an evil influence if alterations agreed to in committee were not adopted by the House. Mr. SMITH, of South Carolina, was in favor of the motion. Mr. GERRY thought that the object of the motion was to prevent such a thorough discussion of the business as the nature of it demanded. He called upon gentlemen to recollect the consistency of his honorable colleague, who had proposed to get them back again. Whether this was to be the case or not, he left it to time to discover, but the spirit which now seemed to prevail in the House was no favorable omen. He begged gentlemen to treat the subject with fairness and candor, and not depart from their usual mode of doing business. Mr. SMITH, of South Carolina, had said he would support the motion, under an impression that it was useless to carry a measure through the committee, with a small majority, which was unlikely to meet the approbation of two-thirds of the House; but as gentlemen appeared so desirous H. OF R.] Amendments to the Constitution. of pursuing the common routine of doing business, he would withdraw his support. Mr. TUCKER was in hopes the honorable mover would have seen the impropriety of his motion, and have withdrawn it; but as he had not, he would presume to ask him upon what principle it was founded? Is it to precipitate the business, and prevent an investigation? or is it because the committee have spent some time on it, and made no progress? He thought the latter was not the case, because the committee had proceeded as far in it as could reasonably be expected for the time. The gentleman says he is apprehensive it may do harm to have propositions agreed to in committee, and rejected by the House. Certainly there is no foundation for this apprehension, or the clause in the Constitution requiring the consent of two-thirds of the Legislature to amendments is formed on wrong principles. If the propositions are reasonable in themselves, they ought to be admitted; but if they are improper, they ought to be rejected. We would not presume to prevent our constituents from contemplating the subject in their own mind.. Is this haste produced by a desire to adjourn? He was as desirous of adjourning as any member, but he would not sacrifice the duty he owed the public to his own private convenience. Mr. LIVERMORE hoped the gentleman would withdraw his motion, because it would have a disagreeable aspect to leave the business in the unfinished state it now stood. He thought it had better been altogether let alone. Mr. AMES withdrew his motion, and laid another on the table, requiring two-thirds of the committee to carry a question; and, after some desultory conversation, The House adjourned. MONDAY, August 17. AMENDMENTS TO THE CONSTITUTION. The House again resolved itself into a committee, Mr. BOUDINOT in the Chair, on the proposed amendments to the Constitution. The third clause of the fourth proposition in the report was taken into consideration, being as follows: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms." Mr. GERRY.-This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the [August, 1789. bane of liberty. Now, it must be evident, that under this provision, together with their othe powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to in vade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actu ally done by Great Britain at the commencement of the late Revolution. They used every means in their power to prevent the establishment of an effective militia to the Eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia; but they were always defeated by the influence of the Crown. Mr. SENEY wished to know what question there was before the committee, in order to ascertain the point upon which the gentleman was speaking. Mr. GERRY replied that he meant to make a motion, as he disapproved of the words as they stood. He then proceeded. No attempts that they made were successful, until they engaged in the struggle which emancipated them at once from their thraldom. Now, if we give a discretionary power to exclude those from militia duty { who have religious scruples, we may as well make no provision on this head. For this reason, he wished the words to be altered so as to be confined to persons belonging to a religious sect scrupulous of bearing arms. Mr. JACKSON did not expect that all the people of the United States would turn Quakers or Moravians; consequently one part would have to defend the other in case of invasion. Now, this in his opinion, was unjust, unless the Constitution secured an equivalent: for this reason, he moved to amend the clause, by inserting at the end of it upon paying an equivalent, to be established by law." Mr. SMITH, of South Carolina, inquired what were the words used by the conventions respecting this amendment. If the gentleman would conform to what was proposed by Virginia and Carolina, he would second him. He thought they were to be excused provided they found 2 substitute. Mr. JACKSON was willing to accommodate. He thought the expression was, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service, in person, upon paying an equivalent.” Mr. SHERMAN conceived it difficult to modify the clause and make it better. It is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other; but he did not see an absolute necessity for a clause of this kind. We do not live under an arbitrary Government, said he, and the States, respectively, will have the government of the militia, unless when called into actual service; besides, it would AUGUST, 1789.] Amendments to the Constitution. not do to alter it so as to exclude the whole of any sect, because there are men amongst the Quakers who will turn out, notwithstanding the religious principles of the society, and defend the cause of their country. Certainly it will be improper to prevent the exercise of such favorable dispositions, at least whilst it is the practice of nations to determine their contests by the slaughter of their citizens and subjects. Mr. VINING hoped the clause would be suffered to remain as it stood, because he saw no use in it if it was amended so as to compel a man to find a substitute, which, with respect to the Government, was the same as if the person himself turned out to fight. Mr.STONE inquired what the words "religiously scrupulous" had reference to: was it of bearing arms? If it was, it ought so to be expressed. Mr. BENSON moved to have the words "but no person religiously scrupulous shall be compelled to bear arms," struck out. He would always leave it to the benevolence of the Legislature, for, modify it as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government. If this stands part of the Constitution, it will be a question before the Judiciary on every regulation you make with respect to the organization of the militia, whether it comports with this declaration or not. It is extremely injudicious to intermix matters of doubt with fundamentals. I have no reason to believe but the Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion. The motion for striking out the whole clause being seconded, was put, and decided in the negative-22 members voting for it, and 24 Lagainst it. It Mr. GERRY objected to the first part of the clause, on account of the uncertainty with which it is expressed. A well regulated militia being the best security of a free State, admitted an idea that a standing army was a secondary one. ought to read, "a well regulated militia, trained to arms;" in which case it would become the duty of the Government to provide this security, and furnish a greater certainty of its being done. Mr. GERRY'S motion not being seconded, the question was put on the clause as reported, which being adopted, Mr. BURKE proposed to add to the clause just agreed to, an amendment to the following effect: "A standing army of regular troops in time of peace is dangerous to public liberty, and such shall not be raised or kept up in time of peace, but from necessity, and for the security of the people, nor then without the consent of twothirds of the members present of both Houses; and in all cases the military shall be subordinate to the civil authority." This being seconded, Mr. VINING asked whether this was to be con [H. OF R. sidered as an addition to the last clause, or an amendment by itself. If the former, he would remind the gentleman the clause was decided; if the latter, it was improper to introduce new matter, as the House had referred the report specially to the Committee of the Whole. Mr. BURKE feared that, what with being trammelled in rules, and the apparent disposition of the committee, he should not be able to get them to consider any amendment; he submitted to such proceeding because he could not help himself. Mr. HARTLEY thought the amendment in order, and was ready to give his opinion on it. He hoped the people of America would always be satisfied with having a majority to govern. He never wished to see two-thirds or three-fourths required, because it might put it in the power of a small minority to govern the whole Union. The question on Mr. BURKE's motion was put, and lost by a majority of thirteen. The fourth clause of the fourth proposition was taken up as follows: "No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." Mr. SUMTER hoped soldiers would never be quartered on the inhabitants, either in time of peace or war, without the consent of the owner. It was a burden, and very oppressive, even in cases where the owner gave his consent; but where this was wanting, it would be a hardship indeed! Their property would lie at the mercy of men irritated by a refusal, and well disposed to destroy the peace of the family. He moved to strike out all the words from the clause but "no soldier shall be quartered in any house without the consent of the owner." Mr. SHERMAN observed that it was absolutely necessary that marching troops should have quarters, whether in time of peace or war, and that it ought not to be put in the power of an individual to obstruct the public service; if quarters were not to be obtained in public barracks, they must be procured elsewhere. In England, where they paid considerable attention to private rights, they billeted the troops upon the keepers of public houses, and upon private houses also, with the consent of the magistracy. Mr. SUMTER'S motion being put, was lost by a majority of sixteen. Mr. GERRY moved to insert between "but" and "in a manner," the words, "by a civil magistrate." observing that there was no part of the Union but where they could have access to such authority. Mr. HARTLEY said those things ought to be entrusted to the Legislature; that cases might arise where the public safety would be endangered by putting it in the power of one person to keep a division of troops standing in the inclemency of the weather for many hours; therefore he was against inserting the words. Mr. GERRY said either his amendment was essential, or the whole clause was unnecessary. On putting the question, thirteen rose in favor of the motion, thirty-five against it; and then the clause was carried as reported. H. OF R.] Amendments to the Constitution. The fifth clause of the fourth proposition was taken up, viz: "No person shall be subject, in cases of impeachment, to more than one trial or one punishment for the same offence, nor shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." [AUGUST, 1789. words, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Mr. SMITH, of South Carolina, objected to the words "nor cruel and unusual punishments;" the import of them being too indefinite. Mr. LIVERMORE.-The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have Mr. BENSON thought the committee could not no meaning in it, I do not think it necessary. agree to the amendment in the manner it stood, What is meant by the terms excessive bail? Who because its meaning appeared rather doubtful. It are to be the judges? What is understood by exsays that no person shall be tried more than once cessive fines? It lies with the court to determine. for the, same offence. This is contrary to the No cruel and unusual punishment is to be inright heretofore established; he presumed it was flicted; it is sometimes necessary to hang a man, intended to express what was secured by our villains often deserve whipping, and perhaps former Constitution, that no man's life should be having their ears cut off; but are we in future to more than once put in jeopardy for the same be prevented from inflicting these punishments offence; yet it was well known, that they were because they are cruel? If a more lenient mode entitled to more than one trial. The humane in- of correcting vice and deterring others from the tention of the clause was to prevent more than one commission of it could be invented, it would punishment; for which reason he would move to be very prudent in the Legislature to adopt it; amend it by striking out the words "one trial or." but until we have some security that this will Mr. SHERMAN approved of the motion. He be done, we ought not to be restrained from said, that as the clause now stood, a person found making necessary laws by any declaration of this guilty could not arrest the judgment, and obtain kind. a second trial in his own favor. He thought that the courts of justice would never think of trying and punishing twice for the same offence. If the person was acquitted on the first trial, he ought not to be tried a second time; but if he was convicted on the first, and any thing should appear to set the judgment aside, he was entitled to a second, which was certainly favorable to him. Now the clause as it stands would deprive him of that advantage. Mr. LIVERMORE thought the clause very essential; it was declaratory of the law as it now stood; striking out the words would seem as if they meant to change the law by implication, and expose a man to the danger of more than one trial. Many persons may be brought to trial for crimes they are guilty of, but for want of evidence may be acquitted; in such cases, it is the universal practice in Great Britain, and in this country, that persons shall not be brought to a second trial for the same offence; therefore the clause is proper as it stands. Mr. SEDGWICK thought, instead of securing the liberty of the subject, it would be abridging the privileges of those who were prosecuted. The question on Mr. BENSON's motion being put, was lost by a considerable majority. Mr. PARTRIDGE moved to insert after "same offence," the words "by any law of the United States." This amendment was lost also. Mr. LAWRENCE said this clause contained a general declaration, in some degree contrary to laws passed. He alluded to that part where a person shall not be compelled to give evidence against himself. He thought it ought to be confined to criminal cases, and moved an amendment for that purpose; which amendment being adopted, the clause as amended was unanimously agreed to by the committee, who then proceeded to the sixth clause of the fourth proposition, in these The question was put on the clause, and it was agreed to by a considerable majority. The committee went on to the consideration of the seventh clause of the fourth proposition, being as follows: "The right of the people to be secured in their persons, houses, papers, and effects, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and not particularly describing the place to be searched and the persons or things to be seized." take in the wording of this clause; it ought to Mr. GERRY said he presumed there was a misbe "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches," and therefore moved that amendment. This was adopted by the committee. Mr. BENSON objected to the words "by warrants issuing." This declaratory provision was good as far as it went, but he thought it was not sufficient; he therefore proposed to alter it so as to read "and no warrant shall issue." The question was put on this motion, and lost by a considerable majority. Mr. LIVERMORE objected to the words "and not" between "affirmation" and particularly." He moved to strike them out, in order to make it an affirmative proposition. But the motion passed in the negative. The clause as amended being now agreed to, The eighth clause of the fourth proposition was taken up, which was "The enumeration in this Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." Mr. GERRY said, it ought to be "deny or impair," for the word "disparage" was not of plain import; he therefore moved to make that alteration, but not being seconded, the question was AUGUST, 1789.] Amendments to the Constitution. taken on the clause, and it passed in the affirmative. The committee then proceeded to the fifth proposition: Article 1, section 10, between the first and second paragraph, insert "no State shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.' [H. OF R. Mr. LIVERMORE thought the clause was objectionable, because it comprehended nothing more than the value. Mr. SEDGWICK moved to insert three thousand dollars instead of one thousand; but on the question, this motion was rejected, and the proposition accepted in its original form. The committee then proceeded to consider the seventh proposition, in the words following: Mr. TUCKER.-This is offered, I presume, as an Article 3, section 2. Strike out the whole of amendment to the Constitution of the United the third paragraph, and insert, "In all criminal States, but it goes only to the alteration of the prosecutions the accused shall enjoy the right to constitutions of particular States. It will be a speedy and public trial, to be informed of the much better, I apprehend, to leave the State Gov-nature and cause of the accusation, to be conernments to themselves, and not to interfere with fronted with the witnesses against him, to have them more than we already do; and that is compulsory process for obtaining witnesses in his thought by many to be rather too much. I there- favor, and to have the assistance of counsel for fore move, sir, to strike out these words. his defence." Mr. BURKE moved to amend this proposition in such a manner as to leave it in the power of the accused to put off the trial to the next session, provided he made it appear to the court that the evidence of the witnesses, for whom process was granted but not served, was material to his defence. Mr. MADISON conceived this to be the most valuable amendment in the whole list. If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments. He thought that if they provided against the one, it was as necessary to provide against the other, Mr. HARTLEY said, that in securing him the and was satisfied that it would be equally grate-right of compulsory process, the Government did ful to the people. all it could; the remainder must lie in the discretion of the court. Mr. LIVERMORE had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; "the equal_rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State." This transposition being agreed to, and Mr. TUCKER'S motion being rejected, the clause was adopted. The sixth proposition, article 3, section 2, add to the second paragraph, "But no appeal to such court shall be allowed, where the value in controversy shall not amount to one thousand dollars; nor shall any fact, triable by a jury according to the course of the common law, be otherwise reexaminable than according to the rules of the common law." Mr. BENSON moved to strike out the first part of the paragraph respecting the limitation of appeals, because the question in controversy might be an important one, though the action was not to the amount of a thousand dollars. Mr. MADISON.-If the gentleman will propose any restriction to answer his purpose, and for avoiding the inconvenience he apprehends, I am willing to agree to it; but it will be improper to strike out the clause without a substitute. There is little danger that any court in the United States will admit an appeal where the matter in dispute does not amount to a thousand dollars; but as the possibility of such an event has excited in the minds of many citizens the greatest apprehension that persons of opulence would carry a cause from the extremities of the Union to the Supreme Court, and thereby prevent the due administration of justice, it ought to be guarded against. 1st CoN.-25 Mr. SMITH, of South Carolina, thought the regulation would come properly in, as part of the Judicial system. The question on Mr. BURKE's motion was taken and lost; ayes 9, noes 41. Mr. LIVERMORE moved to alter the clause, so as to secure to the criminal the right of being tried in the State where the offence was committed. Mr. STONE observed that full provision was made on the subject in the subsequent clause. On the question, Mr. LIVERMORE's motion was adopted. Mr. BURKE said, he was not so much discouraged by the fate of his former motions, but that he would venture upon another. He therefore proposed to add to the clause, " that no criminal prosecution should be had by way of information." Mr. HARTLEY only requested the gentleman to look to the clause, and he would see the impropriety of inserting it in this place. A desultory conversation arose, respecting the foregoing motion, and after some time, Mr. BURKE withdrew it for the present. The committee then rose and reported progress, after which the House adjourned. TUESDAY, August 18. NEW JERSEY ELECTIONS. Mr. CLYMER, from the Committee of Elections, reported that the committee, pursuant to the instructions to them contained in the resolution of the twenty-fifth of May, relative to the petition of a number of the citizens of the State of New Jersey, complaining of the illegality of the election |