Debates over the Bill of Rights in the First Congress
August 18, 1789
AMENDMENTS TO THE CONSTITUTION
Mr. GERRY moved, “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 to bring them forward. If the House should decline taking them into consideration, it might tend to destroy that harmony which had hitherto existed, and which did great honor to their proceedings; it might affect all their future measures, and promote such feuds as might embarrass the Government exceedingly. The States who had proposed these amendments would feel some degree of chagrin at having misplaced their confidence in the General Government. Five important States have pretty plainly expressed their apprehensions of the danger to which the rights of their citizens are exposed. Finding these cannot be secured in the mode they had wished, they will naturally recur to the alternative, and endeavor to obtain a federal convention; the consequence of this may be disagreeable to the Union; party spirit may be revived, and animosities rekindled destructive of tranquility. States that exert themselves to obtain a federal convention, and those that oppose the measure, may feel so strongly the spirit of discord, as to sever the Union 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 harmony 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 conceived it difficult, if not impossible, to obtain essential amendments by the way pointed out in the constitution; nor have I been mistaken in this suspicion. It will be found, I fear, still more difficult than I apprehended; for perhaps these amendments, should they be agreed to by two-thirds of both Houses of Congress, will be submitted for ratification to the Legislatures of the several States, instead of State conventions, in which case the chance is still worse. The Legislatures of almost all the States consist of two independent, distinct bodies; the amendments must be adopted by three-fourths of such Legislatures; that is to say, they must meet the approbation of the majority of each of eighteen deliberative assemblies. But, notwithstanding all these objections to obtaining amendments after the ratification of the constitution, it will tend to give a great degree of satisfaction to those who are desirous of them, if this House shall take them up, and consider them with that degree of candor and attention they have hitherto displayed on the subjects that have come before them; consider the amendments separately, and, after fair deliberation, either approve or disapprove of them. By such conduct, we answer in some degree the expectations of those citizens in the several States who have shown so great a tenacity to the preservation of those rights and liberties they secured to themselves by an arduous, persevering, and successful conflict.
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 present 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 TUCKER.–16.
NAYS.–Messrs. AMES, BALDWIN, BENSON, BOUDINOT, BROWN, CADWALADER, CARROLL, CLYMER, FITZSIMMONS, FOSTER, GILMAN, GOODHUE, HARTLEY, HEISTER, HUNTINGTON, LAWRENCE, LEE, MADISON, MOORE, MUHLENBERG, 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 look into consideration the 2d clause of the 7th proposition, in the words following, “The trial of all crimes (except in cases of impeachment, and in cases arising in the land and naval forces, or in the militia when in actual service in the time of war, or public danger,) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment, or indictment, by a grand jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection 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.”
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, was considered, “Immediately after art. 6, the following to be inserted as art. 7:”
“The powers delegated by this constitution to the Government of the United States, shall be 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 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 minutia. 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, “Art. 7 to be made Art. 8,” agreed to.
The committee then rose, and reported the amendments as amended by the committee.
Mr. TUCKER then moved that the following propositions of amendment to the constitution of the United States, be referred to a Committee of the whole House, to wit:
Art. 1. sect. 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.”
Sect. 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.”
Sect. 5. clause 1. amend the first part to read thus, “Each State shall be the judge (according to its own laws) of the election of its Senators and Representatives to sit in Congress, and shall furnish them with sufficient credentials; but each House shall judge of 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.”
Sect. 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 person,” &c.
Art. 1. sect. 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 proportion 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 percent 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.”
Sect. 9. clause 7. Strike out the words “without the consent of the Congress,” and amend to read thus, “Shall accept of any present or emolument, or hold any office or title of any kind whatever from any king, 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.”
Sect. 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 be 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.”
Art. 2. sect. 1. clause 5. at the end, add these words, “Nor shall any person be capable of holding the office of President of the United States more than eight years in any term of twelve years.”
Sect. 2. clause 1. Strike out the words “be commander in chief,” and insert, “have power to direct (agreeable 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 not exceeding twelve months, any officer whom he shall have reason to think unfit to be entrusted with the duties thereof; and Congress may, by law, provide for the absolute removal of officers found to be unfit for the trust reposed in them.”
Art. 3. sect. 1. from each sentence strike out the words “inferior courts” and insert the words “courts of admiralty.”
Sect. 2. clause 1. strike out the words “Between a State and citizens of another State,” &c. to the end, and amend to read thus, “between a State and foreign States, and between citizens of the United States claiming the same lands under grants of different States.”
Article 6. clause 3. Between the word “no” and the word “religious,” insert the word “other.”
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.