Introduction

New York followed Virginia’s example of distinguishing between amendments that went to the heart of the proposed Constitution on the one hand, and on the other, a bill of rights that would be a “civic education” reminder to the people concerning what was at stake, as well as a constraint on the abuse of power by elected or appointed officials.

The delegates made their way through the Constitution from start to finish. Next came the big question. Should the Constitution be ratified “conditionally” on the adoption of proposals for amendments and a bill of rights or with “full confidence” that the First Congress would actively pursue the adoption of amendments and a bill of rights? John Lansing and Abraham Yates—New York delegates who attended and left the Philadelphia Convention halfway through—and Governor George Clinton supported conditional ratification, going so far as to suggest that if these conditions were not met in the First Congress, then New York should consider seceding from the union. They were particularly interested in the adoption of the thirty-one amendment proposals that directly confronted the work of the Framers. Alexander Hamilton, and the prominent Antifederalist politician and writer Melancton Smith, supported the “full confidence” approach with particular emphasis on the adoption of a bill of rights. Going into the Convention, John Lansing and Robert Yates had the votes to reject the Constitution: 46–19. The Constitution was adopted however, without conditions, on July 25 by a vote of 30–27. Smith, who may have had a hand in the Federal Farmer essays, as well as authoring the Brutus essays, persuaded more than ten Antifederalists to vote in favor of adopting the Constitution with the expectation that the First Congress would revisit the issue of Amendments and a Bill of Rights. Besides, argued Smith, the Constitution had already been adopted by ten states. Wasn’t it better to accept adoption and seek relief in the First Congress than make a petulant statement? Eight delegates, including Governor Clinton, the presumed author of the Antifederalist Cato essays, abstained.


Source: The Debates in the several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, 2d ed., with considerable additions. Collected and rev. from contemporary publications, by Jonathan Elliot. Published under the sanction of Congress. (1836), 5 vols.; https://goo.gl/yRg4Q7.


Bill of Rights

We the delegates of the people of the State of New York, duly elected and met in convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty-seven, by the Convention then assembled at Philadelphia in the Commonwealth of Pennsylvania (a copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, do declare and make known.

That all power is originally vested in and consequently derived from the people, and that government is instituted by them for their common Interest protection and security.

That the enjoyment of life, liberty and the pursuit of happiness are essential rights which every government ought to respect and preserve.

That the powers of government may be reassumed by the people, when so ever it shall become necessary to their happiness; that every power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments to whom they may have granted the same. And that those clauses in the said Constitution, which declare, that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.

That the people have an equal, natural and unalienable right, freely and peaceably to exercise their religion according to the dictates of conscience, and that no religious sect or society ought to be favored or established by law in preference of others.

That the people have a right to keep and bear arms; that a well regulated militia, including the body of the people capable of bearing arms is the proper, natural and safe defense of a free state.

That the militia should not be subject to martial law except in time of war, rebellion or insurrection.

That standing armies in time of peace are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times, the military should be under strict subordination to the civil power.

That in time of peace no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrate in such manner as the laws may direct.

That no person ought to be taken imprisoned or disseized[1] of his freehold, or be exiled or deprived of his privileges, franchises, life, liberty or property but by due process of law.

That no person ought to be put twice in jeopardy of life or limb for one and the same offence, nor, unless in case of impeachment, be punished more than once for the same offence.

That every person restrained of his liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of public danger the congress shall suspend the privilege of the writ of habeas corpus.

That excessive bail ought not to be required; nor excessive fines imposed; nor cruel or unusual punishments inflicted.

That (except in the government of the land and naval forces, and of the militia when in actual service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States, and such trial should be speedy, public, and by an impartial jury of the county where the crime was committed; and that no person can be found guilty without the unanimous consent of such jury. But in cases of crimes not committed within any county of any of the United States, and in cases of crimes committed within any county in which a general Insurrection may prevail, or which may be in the possession of a foreign enemy, the enquiry and trial may be in such county as the Congress shall by law direct; which county in the two cases last mentioned should be as near as conveniently may be to that county in which the crime may have been committed.

And that in all criminal prosecutions, the accused ought to be informed of the cause and nature of his accusation, to be confronted with his accusers and the witnesses against him, to have the means of producing his witnesses, and the assistance of counsel for his defense, and should not be compelled to give evidence against himself.

That the trial by jury in the extent that it obtains by the common law of England is one of the greatest securities to the rights of a free people, and ought to remain inviolate.

That every freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all warrants to search suspected places or seize any freeman his papers or property, without information upon oath or affirmation of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.

That the people have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to petition or apply to the legislature for redress of grievances.

That the freedom of the press ought not to be violated or restrained.

That there should be once in four years an election of the President and Vice President, so that no officer who may be appointed by the Congress to act as President in case of the removal, death, resignation or inability of the President and Vice President can in any case continue to act beyond the termination of the period for which the last President and Vice President were elected.

That nothing contained in the said Constitution is to be construed to prevent the legislature of any state from passing laws at its discretion from time to time to divide such state into convenient districts, and to apportion its Representatives to and amongst such districts.

That the prohibition contained in the said Constitution against ex post facto laws, extends only to laws concerning crimes.

That all appeals in causes determinable according to the course of the common law, ought to be by writ of error[2] and not otherwise.

That the judicial power of the United States in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.

That the judicial power of the United States as to controversies between citizens of the same state claiming lands under grants of different states is not to be construed to extend to any other controversies between them except those which relate to such lands, so claimed under grants of different states.

That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased enlarged or extended by any fiction, collusion, or mere suggestion. And that no treaty is to be construed so to operate as to alter the constitution of any state.

Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration: We the said delegates, in the name and in the behalf of the people of the State of New York do by these presents assent to and ratify the said Constitution. In full confidence nevertheless that until a convention shall be called and convened for proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks without the consent of the legislature thereof; that the Congress will not make or alter any regulation in this state respecting the times places and manner of holding elections for Senators or Representatives unless the legislature of this state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same, and that in those cases such power will only be exercised until the legislature of this state shall make provision in the premises; that no excise[3] will be imposed on any article of the growth, production, or manufacture of the United States, or any of them within this state, ardent spirits excepted; and that the Congress will not lay direct taxes[4] within this state, but when the monies arising from the impost[5] and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this state to assess levy and pay the amount of such requisition made agreeably to the census fixed in the said Constitution in such way and manner as the legislature of this state shall judge best, but that in such case, if the state shall neglect or refuse to pay its proportion pursuant to such requisition, then the Congress may assess and levy this state’s proportion together with interest at the rate of six per centum per annum from the time at which the same was required to be paid.

Done in convention at Poughkeepsie in the County of Dutchess in the State of New York the twenty sixth day of July in the year of our Lord one thousand seven hundred and eighty-eight.

By Order of the Convention.

Geo: Clinton president

Attested

John McKesson

Abm. B. Bancker

Secretaries

Amendments

AND the Convention do in the name and behalf of the people of the State of New York enjoin it upon their Representatives in the Congress, to exert all their Influence, and use all reasonable means to obtain a ratification of the following amendments to the said Constitution in the manner prescribed therein; and in all laws to be passed by the Congress in the meantime to conform to the spirit of the said amendments as far as the Constitution will admit.

That there shall be one Representative for every thirty thousand Inhabitants, according to the enumeration or census mentioned in the Constitution, until the whole number of Representatives amounts to two hundred; after which that number shall be continued or increased but not diminished, as Congress shall direct, and according to such ratio as the Congress shall fix, in conformity to the rule prescribed for the apportionment of Representatives and direct taxes.

That the Congress do not impose any excise on any article (except ardent spirits) of the growth, production, or manufacture of the United States, or any of them.

That Congress do not lay direct taxes but when the monies arising from the impost and excise shall be insufficient for the public exigencies, nor then until Congress shall first have made a requisition upon the states to assess levy and pay their respective proportions of such requisition, agreeably to the census fixed in the said Constitution, in such way and manner as the legislatures of the respective states shall judge best; and in such case, if any state shall neglect or refuse to pay its proportion pursuant to such requisition, then Congress may assess and levy such states proportion, together with interest at the rate of six per centum per annum, from the time of payment prescribed in such requisition.

That the Congress shall not make or alter any regulation in any state respecting the times places and manner of holding elections for Senators or Representatives, unless the legislature of such state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and then only until the legislature of such state shall make provision in the premises; provided that Congress may prescribe the time for the election of Representatives.

That no persons except natural born citizens, or such as were citizens on or before the fourth day of July one thousand seven hundred and seventy-six, or such as held commissions under the United States during the war, and have at any time since the fourth day of July one thousand seven hundred and seventy six become citizens of one or other of the United States, and who shall be freeholders, shall be eligible to the places of President, Vice President, or members of either House of the Congress of the United States.

That the Congress do not grant monopolies or erect any company with exclusive advantages of commerce.

That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two-thirds of the Senators and Representatives present, in each House.

That no money be borrowed on the credit of the United States without the assent of two-thirds of the Senators and Representatives present in each House.

That the Congress shall not declare war without the concurrence of two-thirds of the Senators and Representatives present in each House.

That the privilege of the habeas corpus shall not by any law be suspended for a longer term than six months, or until twenty days after the meeting of the Congress next following the passing of the act for such suspension.

That the right of the Congress to exercise exclusive legislation over such district, not exceeding ten miles square, as may by cession of a particular state, and the acceptance of Congress, become the seat of the government of the United States, shall not be so exercised, as to exempt the inhabitants of such district from paying the like taxes, imposts, duties,[6] and excises, as shall be imposed on the other inhabitants of the state in which such district may be; and that no person shall be privileged within the said district from arrest for crimes committed or debts contracted out of the said district.

That the right of exclusive legislation with respect to such places as may be purchased for the erection of forts, magazines, arsenals, dockyards and other needful buildings shall not authorize the Congress to make any law to prevent the laws of the states respectively in which they may be from extending to such places in all civil and criminal matters except as to such persons as shall be in the service of the United States; nor to them with respect to crimes committed without such places.

That the compensation for the Senators and Representatives be ascertained by standing laws; and that no alteration of the existing rate of compensation shall operate for the benefit of the Representatives, until after a subsequent election shall have been had.

That the journals of the Congress shall be published at least once a year, with the exception of such parts relating to treaties or military operations, as in the judgment of either House shall require secrecy; and that both Houses of Congress shall always keep their doors open during their sessions, unless the business may in their opinion require secrecy. That the yeas & nays shall be entered on the journals whenever two members in either House may require it.

That no capitation tax[7] shall ever be laid by the Congress.

That no person be eligible as a Senator for more than six years in any term of twelve years; and that the legislatures of the respective states may recall their Senators or either of them, and elect others in their stead, to serve the remainder of the time for which the Senators so recalled were appointed.

That no Senator or Representative shall during the time for which he was elected be appointed to any office under the authority of the United States.

That the authority given to the Executives of the States to fill the vacancies of Senators be abolished, and that such vacancies be filled by the respective legislatures.

That the power of Congress to pass uniform laws concerning bankruptcy shall only extend to merchants and other traders; and that the states respectively may pass laws for the relief of other insolvent debtors.

That no person shall be eligible to the office of President of the United States a third time.

That the Executive shall not grant pardons for treason, unless with the consent of the Congress; but may at his discretion grant reprieves[8] to persons convicted of treason, until their cases, can be laid before the Congress.

That the President or person exercising his powers for the time being, shall not command an army in the field in person, without the previous desire of the Congress.

That all letters patent,[9] commissions, pardons, writs,[10] and process of the United States, shall run in the name of the people of the United States, and be tested in the name of the President of the United States, or the person exercising his powers for the time being, or the first judge of the court out of which the same shall issue, as the case may be.

That the Congress shall not constitute ordain or establish any tribunals or inferior courts, with any other than appellate jurisdiction, except such as may be necessary for the trial of causes of admiralty and maritime jurisdiction, and for the trial of piracies and felonies committed on the high seas; and in all other cases to which the judicial power of the United States extends, and in which the Supreme Court of the United States has not original jurisdiction, the causes shall be heard, tried, and determined in some one of the State courts, with the right of appeal to the Supreme Court of the United States, or other proper tribunal to be established for that purpose by the Congress, with such exceptions, and under such regulations as the Congress shall make.

That the court for the trial of impeachments shall consist of the Senate, the judges of the Supreme Court of the United States, and the first or senior judge for the time being, of the highest court of general and ordinary common law jurisdiction in each State; that the Congress shall by standing laws designate the courts in the respective states answering this description, and in states having no courts exactly answering this description, shall designate some other court, preferring such if any there be, whose judge or judges may hold their places during good behavior.

Provided that no more than one judge, other than judges of the Supreme Court of the United States, shall come from one state. That the Congress be authorized to pass laws for compensating the said judges for such services and for compelling their attendance and that a majority at least of the said judges shall be requisite to constitute the said court. That no person impeached shall sit as a member thereof. That each member shall previous to the entering upon any trial take an oath or affirmation, honestly and impartially to hear and determine the cause and that a majority of the members present shall be necessary to a conviction.

That persons aggrieved by any judgment, sentence or decree of the Supreme Court of the United States, in any cause in which that court has original jurisdiction, with such exceptions, and under such regulations, as the Congress shall make concerning the same, shall, upon application, have a commission to be issued by the President of the United States, to such men learned in the law as he shall nominate, and by and with the advice and consent of the Senate appoint, not less than seven, authorizing such commissioners, or any seven or more of them, to correct the errors in such judgment or to review such sentence and decree, as the case may be, and to do justice to the parties in the premises.

That no judge of the Supreme Court of the United States shall hold any other office under the United States, or any of them.

That the judicial power of the United States shall extend to no controversies respecting land, unless it relate to claims of territory or jurisdiction between states, or to claims of land between individuals, or between states and individuals under the grants of different states.

That the militia of any state shall not be compelled to serve without the limits of the state for a longer term than six weeks, without the consent of the legislature thereof.

That the words “without the consent of the Congress” in the seventh clause of the ninth section of the first article of the Constitution, be expunged.[11]

That the Senators and Representatives and all executive and judicial officers of the United States shall be bound by oath or affirmation not to infringe or violate the Constitutions or rights of the respective states.

That the legislatures of the respective states may make provision by law, that the electors of the election districts to be by them appointed shall choose a citizen of the United States who shall have been an inhabitant of such district for the term of one year immediately preceding the time of his election, for one of the Representatives of such State.

Done in convention at Poughkeepsie in the county of Dutchess in the State of New York the twenty-sixth day of July in the year of our Lord one thousand seven hundred and eighty-eight.

Study Questions

A. What is the difference between the adoption of the Constitution with previous or conditional amendments and adoption with subsequent or recommended amendments? What are the differences between the content of the twenty-five items in the Bill of Rights proposed at the New York convention and the thirty-one items in the proposed amendments?

B. How do the amendment and bill of rights proposals compare and contrast with those listed in the Virginia ratifying document? How many of the amendment proposals and the Bill of Rights proposals make their way into the Bill of Rights adopted in 1791?

Footnotes

  1. deprived
  2. A writ from a Court of Appeals to the court that heard the case under appeal requiring that the court send the trial record to the Court of Appeals.
  3. a tax on goods bought or sold within a country
  4.  a tax on individuals
  5. a tax on items imported
  6. a tax on imported goods
  7.  a tax on an individual at a fixed rate
  8. cancel or delay punishment
  9. a patent or legal monopoly over an invention
  10. written order issued by a court
  11. An apparent reference to the Article I, section 9 clause “No title of nobility shall be granted by the United States: And no person holding any office of profit and trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”