H. OF R.J Amendments to the Constitution. [AUGUST, 1789. of the members of this House, as elected within to bring them forward. If the House should dethat State, do ascertain the following facts, as aris-cline taking them into consideration, it might tend ing from the proofs, to wit: to destroy that harmony which had hitherto ex1st. That the election for members of this House, isted, and which did great honor to their proceedheld within that State, in consequence of an act of the ings; it might affect all their future measures, Legislature thereof, entitled “An act for carrying into and promote such feuds as might embarrass the effect, on the part of the State of New Jersey, the Government exceedingly. The States who had Constitution of the United States, assented to, ratified, proposed these amendments would feel some deand confirmed by this State, on the 18th day of Decem- gree of chagrin at having misplaced their confiber, 1787," passed the 20th November, 1781, were dence in the General Government. Five imporclosed in the several counties of Bergen, Morris, Mon- tant States have pretty plainly expressed their mouth, Hunterdon, Somerset, Middlesex, Sussex, Sa-apprehensions of the danger to which the rights of lem, Cape May, Cumberland, Burlington, and Glou- their citizens are exposed. Finding these cannot cester, and the lists of the several persons voted for, be secured in the mode they had wished, they will and the number of votes taken for each, were received naturally recur to the alternative, and endeavor by the Governor at the respective times appearing from to obtain a Federal Convention; the consequence the said lists, and the endorsements thereon, which of this may be disagreeable to the Union; party lists accompany this report. destructive of tranquillity. States that exert spirit may be revived, and animosities rekindled themselves to obtain a Federal Convention, and oppose the measure, may feel so strongly the spirit of discord, as to sever the Union 2d. That the election in the county of Essex, the remaining county in the State, closed on the 27th of April, and the list was received by the Governor on the 3d of May. 3d. That in consequence of the summons from the Governor, (a copy whereof accompanies this report,) dated the 27th of February, to four of the members of the council, a privy council, consisting of the Governor and the four members so summoned, did assemble at Elizabethtown on the 3d of March, and, being so assembled, Mr. Haring, another member of the council, received a note from the Governor, (a copy whereof accompanies this report,) in consequence whereof Mr. Haring did also attend the privy council as a member thereof. 4th. That the Governor then appointed another meeting of the privy council, to be held on the 18th of March, on which day the Governor and eleven members of the council did assemble, and did then determine, from the lists of the twelve counties specified in the first fact above stated, the four members now holding seats in this House, the four persons elected members of this House within that State; against which determination of the council, three of the members then present did protest; and a protest (a copy of which accompanies this report) was, with the consent of the council, delivered into the council in form, on the subsequent day. 5th. That there was no determination of the Governor and privy council in the premises, until the eighteenth of March. those that asunder. If in this conflict the advocates for a federal convention should prove successful, the consequences may be alarming; we may lose many of the valuable principles now established in the present Constitution. If, on the other hand, a convention should not be obtained, the consequences resulting are equally to be dreaded; it would render the administration of this system of government weak, if not impracticable; for no Government can be administered with energy, however energetic its system, unless it obtains the confidence and support of the people. Which of the two evils is the greatest would be difficult to ascertain. It is essential to our deliberations that the har mony of the House be preserved; by it alone we shall be enabled to perfect the organization of the Government-a Government but in embryo, or at best but in its infancy. My idea relative to this Constitution, whilst it was dependent upon the assent of the several States, was, that it required amendment, and that the proper time for amendment was previous to the ratification. My reasons were, that I con6th. That the Governor did, on the nineteenth of ceived it difficult, if not impossible, to obtain esMarch, issue a proclamation, (a copy whereof accompa-sential amendments by the way pointed out in the nies this report.) Constitution; nor have I been mistaken in this Ordered, That the said report do lie on the suspicion. It will be found, I fear, still more diftable. AMENDMENTS TO THE CONSTITUTION. "That such of the amendments to the Constitution proposed by the several States, as are not in substance comprised in the report of the select committee appointed to consider amendments, be referred to a Committee of the whole House; and that all amendments which shall be agreed to by the committee last mentioned be included in one report." Mr. TUCKER remarked, that many citizens expected that the amendments proposed by the conventions would be attended to by the House, and that several members conceived it to be their duty The Legis ficult than I apprehended; for, perhaps, these AUGUST, 1789.] Amendments to the Constitution. [H. of R. sirous of them, if this House shall take them up, peachment, and in cases arising in the land and and consider them with that degree of candor and naval forces, or in the militia when in actual serattention they have hitherto displayed on the vice in the time of war, or public danger,) shall subjects that have come before them; consider be by an impartial jury of freeholders of the vithe amendments separately, and, after fair delibe- cinage, with the requisite of unanimity for conration, either approve or disapprove of them.viction, the right of challenge, and other accusBy such conduct, we answer in some degree the tomed requisites; and no person shall be held to expectations of those citizens in the several States answer for a capital, or otherwise infamous crime, who have shown so great a tenacity to the pre- unless on a presentment, or indictment, by a grand servation of those rights and liberties they secured jury; but if a crime be committed in a place in to themselves by an arduous, persevering, and the possession of an enemy, or in which an insursuccessful conflict. rection may prevail, the indictment and trial may by law be authorized in some other place within the same State; and if it be committed in a place not within a State, the indictment and trial may be at such place or places as the law may have directed." I have hopes that the States will be reconciled to this disappointment, in consequence of such procedure. A great variety of arguments might be urged in favor of the motion; but I shall rest it here, and not trespass any further upon the patience of the House. Mr. MADISON was just going to move to refer these amendments, in order that they might be considered in the fullest manner; but it would be very inconvenient to have them made up into one report, or all of them discussed at the pre sent time. Mr. VINING had no objection to the bringing them forward in the fullest point of view; but his objection arose from the informality attending the introduction of the business. The order of the House was to refer the report of the Committee of Eleven to a Committee of the Whole, and therefore it was improper to propose any thing additional. A desultory conversation arose on this motion, when Mr. VINING moved the previous question, in which, being supported by five members, it was put, and the question was, Shall the main question, to agree to the motion, be now put? The yeas and nays being demanded by one-fifth of the members present, on this last motion, they were taken as follows: YEAS-Messrs. Burke, Coles, Floyd, Gerry, Griffin, Grout, Hathorn, Livermore, Page, Parker, Van Rensselaer, Sherman, Stone, Sturgis, Sumter, and Tucker16. NAYS-Messrs. Ames, Baldwin, Benson, Boudinot, Brown, Cadwalader, Carroll, Clymer, Fitzsimons, Foster, Gilman, Goodhue, Hartley, Heister, Huntington, Lawrence, Lee, Madison, Moore, Muhlenburg, Partridge, Schureman, Scott, Sedgwick, Seney, Sylvester, Sinnickson, Smith of Maryland, Smith of South Carolina, Thatcher, Trumbull, Vining, Wadsworth, and Wynkoop-34. So the motion was lost. A message from the Senate informed the House that the Senate had passed the bill providing for expenses which may attend negotiations or treaties with the Indian tribes, and the appointment of commissioners for managing the same, with an amendment, to which they desire the concurrence of the House. The House again resolved itself into a Committee of the Whole on the subject of amendments, and took into consideration the 2d clause of the 7th proposition, in the words following, "The trial of all crimes (except in cases of im-I Mr. BURKE moved to change the word "vicinage" into "district or county in which the offence has been committed." He said this was conformable to the practice of the State of South Carolina, and he believed to most of the States in the Union; it would have a tendency also to quiet the alarm entertained by the good citizens of many of the States for their personal security; they would no longer fear being dragged from one extremity of the State to the other for trial, at the distance of three or four hundred miles. Mr. LEE thought the word "vicinage," was more applicable than that of "district or county," it being a term well understood by every gentleman of legal knowledge. The question on Mr. BURKE's motion being put was negatived. Mr. BURKE then revived his motion for preventing prosecutions upon information, but on the question this was also lost. The clause was now adopted without amendment. The 3d clause of the 7th proposition, as follows, "In suits at common law, the right of trial by jury shall be preserved," was considered and adopted. The 8th proposition in the words following following to be inserted as article 7:" was considered," Immediately after article 6, the the Government of the United States, shall be "The powers delegated by this Constitution to exercised as therein appropriated, so that the Legislative shall not exercise the powers vested in the Executive or Judicial; nor the Executive the power vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive." Mr. SHERMAN conceived this amendment to be altogether unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate department. Mr. MADISON supposed the people would be gratified with the amendment, as it was admitted that the powers ought to be separate and distinct; it might also tend to an explanation of some doubts that might arise respecting the construction of the Constitution. Mr. LIVERMORE, thinking the clause subversive H. OF R.] Amendments to the Constitution. of the Constitution, was opposed to it, and hoped it might be disagreed to. On the motion being put, the proposition was carried. The 9th proposition, in the words following, was considered, "The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively." Mr. TUCKER proposed to amend the proposition, by prefixing to it "all powers being derived from the people." He thought this a better place to make this assertion than the introductory clause of the Constitution, where a similar sentiment was proposed by the committee. He extended his motion also, to add the word "expressly," so as to read "the powers not expressly delegated by this Constitution." Mr. MADISON objected to this amendment, because it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiæ. He remembered the word "expressly," had been moved in the convention of Virginia, by the opponents to the ratification, and, after full and fair discussion, was given up by them, and the system allowed to retain its present form. Mr. SHERMAN coincided with Mr. MADISON in opinion, observing that corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed. Mr. TUCKER did not view the word "expressly" in the same light with the gentleman who opposed him; he thought every power to be expressly given that could be clearly comprehended within any accurate definition of the general power. Mr. TUCKER'S motion being negatived, Mr. CARROLL proposed to add to the end of the proposition, "or to the people;" this was agreed to. The 10th proposition, "Article 7 to be made Article 8," agreed to. [AUGUST, 1789. the qualification of its own members: a majority of each House shall constitute," &c. Clause 2. Strike out these words, "And with the concurrence of two-thirds expel a member," and insert the word "and" after the word "proceedings.” Sec. 6. Clause 2. Amend to read thus: "No person having been elected, and having taken his seat as a Senator or Representative, shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, and no petson," &c. Art. 1. Sec. 8. Clause 1. At the end, add these words: "No direct tax shall be laid, unless any State shall have neglected to furnish, in due time, its propor tion of a previous requisition; in which case Congress may proceed to levy, by direct taxation, within any State so neglecting, its proportion of such requisition, together with interest at the rate of six per cent. per annum, from the time it ought to have been furnished, and the charges of levying the same.” Clause 9. Strike out the words "tribunals inferior to the Supreme Court," and insert the words "courts of admiralty." Clause 17. At the end, add these words: "Provided that the Congress shall not have authority to make any law to prevent the laws of the States, respectively, in which such district or places may be, from extending to such district or places in all civil and criminal matters, in which any person without the limits of such district or places shall be a party aggrieved." Sec. 9. Clause 7. Strike out the words "Without the consent of the Congress," and amend to read thus: office or title of any kind whatever, from any king, "Shall accept of any present or emolument, or hold any prince, or foreign State; provided that this clause shall not be construed to affect the rights of those persons (during their own lives) who are now citizens of the United States, and hold foreign titles." Sec. 10. Clause 2. Amend the first sentence to read thus: "No State shall lay any duties on imports or exports, or any duty of tonnage, except such as shall uniform in their operation on all foreign nations, and consistent with existing treaties, and also uniform in their operation on the citizens of all the several States in the Union." The committee then rose, and reported the amendments as amended by the committee. Art. 2. Sec. 1. Clause. 5. At the end, add these Mr. TUCKER then moved that the following pro-words: "Nor shall any person be capable of holding positions of amendment to the Constitution of the the office of President of the United States more than United States, be referred to a Committee of the eight years in any term of twelve years." whole House, to wit: Art. 1. Sec. 2. Clause 2. At the end add these words "Nor shall any person be capable of serving as a Representative more than six years in any term of eight years." Clause 3. At the end, add these words, "From and after the commencement of the year 1795, the election of Senators for each State shall be annual, and no person shall be capable of serving as a Senator more than five years in any term of six years." Sec. 4. Clause 1. Strike out the words, "But the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators." Sec. 2. Clause 1. Strike out the words "be c mander-in-chief," and insert, "have power to direct (agreeably to law) the operations." Clause 3. At the end, add these words: "He shall also have power to suspend from his office, for a time shall have reason to think unfit to be entrusted with not exceeding twelve months, any officer whom he the duties thereof; and Congress may, by law, provide for the absolute removal of officers found to be unfit fr the trust reposed in them." Art. 3. Sec. 1. From each sentence strike out the words "inferior courts," and insert the words "courts of admiralty." 66 Sec. 2. Clause 1. Strike out the words "between & State and citizens of another State, &c. to the end, and Sec. 5. Clause 1. Amend the first part to read thus, amend to read thus: between a State and foreg "Each State shall be the judge (according to its own States, and between citizens of the United States clam laws) of the election of its Senators and Representa-ing the same lands under grants of different States tives to sit in Congress, and shall furnish them with Art. 6. Clause 3. Between the word "no" and the sufficient credentials; but each House shall judge of word "religious," insert the word "other." AUGUST, 1789.] Indian Treaties. On the question, "Shall the said propositions of amendments be referred to the consideration of a Committee of the whole House?" it was determined in the negative. WEDNESDAY, August 19. INDIAN TREATIES. [H. OF R. without having a previous estimate, appeared to him totally incomprehensible; that they should vote so large a sum of money at this period of the Government, and when the situation of our finances is so much embarrassed as to render it impossible to make any provision for the public creditors, would appear to be a most extraordinary appropriation. It very seldom occurs that a Gov The House took up the amendment of the Sen-ernment errs on the side of economy; the sum ate to the bill providing for the expense of Indian treaties. The alteration proposed by them was to insert twenty thousand dollars instead of forty thousand. Mr. BALDWIN.-Whether the treaty with the Wabash nation is to be included in the provision as reduced by the Senate, or not, is a matter as yet undetermined. If it is, according to the account given by the Governor of the Western Territory, of the actual expenses attending treaties at which he had been present, I conceive the sum to be considerably short of what will be absolutely requisite to ensure the object which the House appears to have had in contemplation. I therefore move to amend the amendment by adopting these words: "for holding treaties with the Indians south of the Ohio." Mr. SHERMAN.—I have been informed that the late Congress granted forty thousand dollars for the purpose of holding treaties with the Indians, and that sum has not yet been expended; and I conjecture that it has been information of a similar kind which has induced the Senate to propose this amendment. Mr. HARTLEY thought it would be proper that the President should have a discretionary power on this occasion. If the forty thousand dollars spoken of remain yet unemployed, perhaps it may be sufficient, when added to what is granted by the present bill; but it would be prudeat to ascertain the fact before the House decided. Mr. FITZSIMONS observed that it was but last week the House had voted the forty thousand dollars. He should be glad to know upon what principle it was done; if they were wrong, they should at least be convinced of their error before they rescinded their former determination. He presumed that the appropriation spoken of was not founded upon official communications, he therefore was at liberty to doubt its accuracy. He did not doubt that the former Congress had made demands upon particular States for that sum; but he questioned if they had been complied with, and very little reliance was to be had upon new advances from those quarters. However, be this as it might, he should be glad to know upon what ground the amendment stood; if he found it to be proper, he should cheerfully agree to it. He moved to let the bill lie on the table till to morrow. Mr. SEDGWICK said, that when this business was before under consideration, he was surprised to find the majority of the House in favor of the sum then moved for. It appeared to him that the President, in his message, had in contemplation a treaty with the Creek Indians only; and that they should exceed the sum necessary for that purpose, proposed in the amendment, he thought, would be amply sufficient; and if the largest sum was to be voted, they might be justifiable in supposing that the business would be protracted until the whole sum was expended. He therefore hoped the House would concur with the Senate. Mr. SUMTER thought twenty thousand dollars fully competent to answer the present purpose. Mr. MADISON controverted the sentiment of the honorable member from Massachusetts, (Mr. SEDGWICK,) as it respected the errors of economy; he doubted the assertion that Government might not exceed in the practice of it; and he was not certain that it would not eventually appear in the present instance, that by too great caution not to exceed in the grant, they incurred an unnecessary additional expense. He seconded Mr. FITZSIMONS' motion to defer the decision until to-morrow. Mr. BOUDINOT opposed the motion. He entertained an opinion from which he did not mean to deviate, that in all appropriations we ought to have a special regard to the state of our Treasury. Can any estimate be produced to demonsirate that so large a sum as forty thousand dollars is necessary for this business? I presume not. The number of Indians to be provided for exceeds greatly what would be sufficient to give the treaties all possible validity. He was fully convinced by the gentleman from South Carolina, (Mr. SUMTER,) in a former discussion on the same subject, that so large a sum was quite unnecessary upon the present occasion; we ought to consider that such large grants may influence future appropriations. Should the sum mentioned in the amendment be found insufficient, the President will give us notice accordingly, and the deficiency may be supplied. But should we appropriate a sum more than sufficient in the present state of our treasury, we shall find that we subject ourselves to very great embarrassments, and cannot justify such a step. He was of opinion that twenty thousand dollars would be found fully sufficient, with what was now on hand, and he hoped the motion for postponing would not be agreed to. The time fixed for holding the treaty is fast approaching. Should the warriors appear on the ground, without finding our commissioners, they would return home, and then what would be the consequence? The loss of a single day might be attended with fatal effects. Mr. LAWRENCE was in favor of postponing the motion; he wished to obtain accurate information respecting several circumstances that had been mentioned; time must be allowed for this; and the House by to-morrow may be in the possession of such facts as will enable them to act more clearly on the business. I trust, sir, said he H. OF R.] Amendments to the Constitution. [AUGUST, 1789. that I am as averse as any member in this Housenity; that we will treat with them upon generous to the making use of the public money, either and reciprocal terms; that while we protect them profusely or unnecessarily. But this is an impor- from any depredations from our frontiers, they tant subject; and the making of such provisions as may fully answer the object in the first instance is the most likely mode to ensure a satisfactory fulfilment. On the motion being put for postponement of the bill, it was negatived. Mr. BALDWIN moved to insert the words "south of the Ohio." shall strictly adhere to the stipulations on their part. Some trifling presents, I grant, may be necessary; it is an ancient custom; but I am opposed to extravagant or profuse ones, because they are unnecessary. I think the sum of twenty thousand dollars will be fully sufficient. The motion of Mr. BALDWIN being put, was negatived; after which the amendment of the Senate was agreed to. AMENDMENTS TO THE CONSTITUTION. The House then took into consideration the amendments to the Constitution, as reported by the Committee of the Whole. Mr. SCOTT.-It may, perhaps, be thought something odd, Mr. Chairman, that living upon the frontiers, and being supposed to know something of Indian affairs, I should be silent on this occasion; the reason is, sir, that I have no opinion of Indian treaties, as Indian treaties are usually conMr. SHERMAN renewed his motion for adding ducted; and I fear, if any sum is voted more than sufficient to support the commissioners, and feed the amendments to the Constitution by way of the Indians while the treaty lasts, that it will be supplement. Hereupon ensued a debate similar to what took embezzled; for I conceive it to be the worst kind of policy to spend a large sum of money in mak-place in the Committee of the Whole, (see page ing presents to the savages; it never was produc-707;) but, on the question, Mr. SHERMAN'S motive of any solid advantage, but frequently the tion was carried by two-thirds of the House; in reverse. The Indians have reduced war and consequence it was agreed to. treaties to a system of commerce and traffic. By giving them presents, we strengthen and enable them to fall upon our defenceless frontiers. It has often been the case that the arms and ammunition, which they have received at a treaty of peace, have been made use of against the donors. I conceive the sum of twenty thousand dollars to be quite sufficient, and hope we shall concur with the Senate therein. Mr. MOORE acquiesced with Mr. SCOTT. The system which had been adhered to of making presents to the Indians he highly reprobated. Mr. BALDWIN observed, that the observations of the honorable gentleman (Mr. SCOTT) are of a general nature; a statement had been made by the Superintendent of Indian Affairs, and by the Secretary of War, and was supposed to be upon the best information they could obtain; if this should prove defective, or if it be too much, let the particulars be pointed out in which the excess lies. He states, in his estimate, that twenty-five thousand dollars are requisite for holding treaties with the Southern tribes. If it is intended by this provision that the expenses of holding treaties with both Northern and Southern tribes should be defrayed, it plainly appears that we shall fail for want of means to effect our object on both. Mr. SUMTER. The number of Indians on which the estimate is founded arose merely from misinformation; so large a number does not appear to be necessary; such a quantity will not be assembled; there cannot be provision made for them; they would run the risk of suffering exceedingly. I do not entertain a doubt, sir, but the business may be properly conducted without assembling such a number, and I dare assert it will be well done if we do not make too large a provision. We shall, I hope, support the dignity of the United States, and let those Indians know that treaties in future shall not be violated by them with impu The first proposition of amendment (see page 707) was rejected, because two-thirds of the members present did not support it. Mr. AMES then brought forward his motion respecting the representation suggested, (see page 728.) A desultory conversation took place, and several amendments of the motion were attempted; but the House adjourned without coming to any determination. THURSDAY, August 20. A message from the Senate informed the House that they agree to the resolution of this House of the 10th instant, for executing the survey directed by an act of the late Congress, of June 6, 1788. AMENDMENTS TO THE CONSTITUTION. The House resumed the consideration of the report of the Committee of the Whole on the subject of amendment to the Constitution. Mr. AMES's proposition was taken up. Five or six other members introduced propositions on the same point, and the whole were, by mutual consent, laid on the table. After which, the House proceeded to the third amendment, and agreed to the same. On motion of Mr. AMES, the fourth amendment was altered so as to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." This being adopted, The first proposition was agreed to. Mr. ScoTT objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He observed that if this becomes part of the Constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded; it is also attended with still further difficulties, for a militia can never be depended upon. This would lead to the violation of another article in the Con |