Debates over the Bill of Rights in the First Congress

August 17, 1789


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 bane of liberty. Now, it must be evident, that under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade 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 actually 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 the 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 a 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 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 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 against 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. It 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 two-thirds 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 considered 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 trammeled 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 burthen, 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.

The fifth clause of the fourth proposition was taken up, viz: “No person shall be subject, in case of impeachment, to more than one trial or one punishment for the same offense, 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.”

Mr. BENSON thought the committee could not agree to the amendment in the manner it stood, because its meaning appeared rather doubtful. It says that no person shall be tried more than once for the same offense. This is contrary to the right heretofore established; he presumed it was intended to express what was secured by our former constitution, that no man’s life should be more than once put in jeopardy for the same offense; yet it was well known, that they were entitled to more than one trial. The humane intention of the clause was to prevent more than one punishment; for which reason he would move to amend it by striking out the words “one trial or.”

Mr. SHERMAN approved of the motion. He said, that as the clause now stood, a person found guilty could not arrest the judgment, and obtain 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 offense. 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 anything 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 offense; 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 offense,” 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 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 no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring other from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.

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.”

Mr. GERRY said he presumed there was a mistake in the wording of this clause; it ought to be “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 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.”

Mr. TUCKER.–This is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of the constitutions of particular States. It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, sir, to strike out these words.

Mr. MADISON conceived this to be the most valuable amendment in the whole list. If there was 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, and was satisfied that it would be equally grateful to the people.

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 re-examinable 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.

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:

Article 3, section 2. Strike out the whole of the third paragraph, and insert, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for 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. HARTLEY said, that in securing him the right of compulsory process, the Government did all it could; the remainder must lie in the discretion of the court.

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 offense 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.)