248

AMENDMENT DIFFICULT.

ernment can be administered with energy, however energetic its system, unless it obtains the confidence and support of the people. He considered it difficult, if not impossible, to obtain essential amendments by the way pointed out in the Constitution. It would be found, he feared, the more difficult because these amendments, should they be agreed to by two-thirds of both Houses of Congress, might be submitted for ratification to the legislatures of the several States, instead of State conventions, in which case the chance was still worse. The legislatures of almost all the States consisted of two independent distinct bodies; the amendments must be adopted by threefourths of such legislatures; that is to say, they must meet the approbation of the majority of each of eighteen deliberative assemblies. But even in the face of such difficulties, the House could diminish them by taking up with candor and attention all the amendments proposed by the States, and thus meet the expectations of the people.1 Madison remarked that he was just about to refer these amendments, but they could not be conveniently taken up with the report of the Committee of Eleven. However, as a matter of parliamentary procedure, quite as much as one of expediency, the House rejected Gerry's motion, and then resumed its discussion of the remaining amendments, in Committee of the Whole.

The second and third clauses of the seventh amendment on criminal prosecutions and the trial of crimes, were adopted without change.2 The eighth, on the separation of the powers of government, almost a transcript of the provision in the constitution of Massachusetts, was pro

1 Annals, 787.

2 See text on p. 209.

3 See p. 50. It was taken from Constitution of Massachusetts, 1780, Bill of Rights, XXX.

RESERVATION OF POWERS.

249

nounced by Sherman "altogether unnecessary," as "the Constitution assigned the business of each branch of the government to a separate department. Madison thought it would gratify the people and perhaps explain some doubts that might arise over the construction of the Constitution. Livermore agreed with Sherman, but the proposition was carried.

The ninth amendment, Tucker proposed, should be modified by prefixing the statement, that "All powers being derived from the people, the powers not 'expressly' delegated by the Constitution, nor prohibited by it to the States are reserved to the States respectively." Madison objected to Tucker's amendment "because it is impossible to confine a government to the exercise of express powers; powers must necessarily be admitted by implication, unless the constitution descends to recount every minutia." He remembered the word "expressly" had been moved in the Virginia convention by the opponents to ratification, and, after full and fair discussion, given up by them, and the system allowed to retain its present form." With these ideas of Madison Sherman agreed, observing that "Corporate bodies are supposed to possess all powers incident to a corporate capacity, without being absolutely expressed." Tucker understood the word "expressly" in a different light. Every power that could be clearly comprehended within any accurate definition of the general power, he thought to be expressly given.1 But the Committee rejected his motion. Carroll then proposed that, at the end of the proposition there should be added, that these powers were reserved "to the States respectively, or to the people," which was agreed to. That the seventh article of the original Constitution be numbered eight, was the tenth amendment proposed and was agreed to

1 Annals, 790.

250

REVISION OF THE AMENDMENTS.

without debate, and the entire list was now gone through with.

On the nineteenth, the House took up the report of the Committee of the Whole, which was the amendments as they had passed. Sherman again moved to add them by way of supplement to the Constitution, instead of incorporating them into the instrument, as had been agreed on. After a debate, like that already heard on the subject, Sherman's motion was now carried by a two-thirds vote. Nor did the reversal of former proceedings stop here. The first amendment was thrown out, and Ames attempted to carry through his motion, for one representative to every thirty thousand inhabitants, at the first census, and one for every forty at the second; but the House broke up without reaching any decision. Next morning the matter was resumed; several other propositions on the same point were introduced, all of which were laid on the table; the House then took up the third amendment and passed it.

On motion of Ames, the phraseology of part of the fourth amendment was changed 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." Scott, of Pennsylvania, objected to the clause of the fourth amendment agreed on, that "No person, religiously scrupulous, shall be compelled to bear arms.' If this became part of the Constitution, such persons could neither be called upon for their services, nor could an equivalent be demanded. Moreover, a militia could never be depended upon. The objectionable clause, was, moreover, likely to lead to a conflict with another part of the instrument, which secured to the people the right of

1 Id., 795.

TRIALS FOR CRIME.

251

keeping arms, and in this case, recourse must be had to a standing army. The whole matter was one of legislative right. There were many sects religiously scrupulous about bearing arms, and they should not be deprived of any indulgence the law allowed; but the State must be guarded against those who had no religion. If the time ever came when religion should be discarded, the generality of persons would have pretexts to get excused from bearing arms. Finally it was agreed to change it so as to read, "no person, religiously scrupulous, should be compelled to bear arms 'in person,' at the end of the clause, after which it was adopted; as were the remaining amendments down to the eighth.1

On the twentieth, discussion of the report of the Committee of the Whole was resumed at the clause of the seventh amendment, regulating the trial of crimes. The last part beginning with the words, "but if a crime be committed in a place in the possession of an enemy," and so on to the end, was struck out, and the preceding part adopted. The next clause, securing trial by jury, and the eighth amendment, on the separation of powers, were agreed to without debate. Gerry revived Tucker's motion, respecting the ninth amendment, that the word, "expressly" be inserted, so that it read that, "The powers not expressly delegated by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people." The yeas and nays were called for, and the test was made; but Gerry's change was rejected by a vote of nearly two to one. Sherman then moved to alter the clause, making it read, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States,

1 Annals, 796.

252

CONGRESS AND ELECTIONS.

respectively, or to the people," which was adopted without debate.1

Burke now moved another amendment that, "Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections of Senators, or Representatives, except when any State shall refuse, or neglect, or be unable, by invasion or rebellion, to make such election." This great question, destined to remain unsettled, provoked a lively discussion.2 Ames, with characteristic, comprehensive view of matters, declared that this was one of the most justifiable of all the powers of Congress. It was essential to a body, representing the whole community, that it should have power to regulate its own elections, in order to secure a representation from every part, and to prevent any improper regulations calculated to answer party purposes only. "It is a solecism in politics to let others judge for them, and is a departure from the principles upon which the Constitution was founded." Livermore agreed with Ames as to the importance of the amendment. It had caused more debate in the Convention of New Hampshire than any other whatever. Ames had said it was a solecism in politics, but Livermore promptly cited the case of the election of Smith, of South Carolina, and asked whether State laws had not decided his qualification as a member of the Federal Legislature.3 "It was not supposed by the people of South Carolina that the House would question a right derived by their representative from their authority."

Madison, as the leader of the House, in charge of the amendments, objected to including with them this now submitted by Burke, principally on the ground that the

1 Id., 797.

2 Annals, 797-802.

3 For an account of this disputed election, see Annals, 1789, Vol. I, 413.