REPORT OF THE COMMITTEE.

227

than one hundred and seventy-five. Appeals to the Supreme Court were not to be allowed, unless the value in controversy should amount to one thousand dollars. These particulars filled the blanks in Madison's amendments. The ten clauses to his fourth amendment were reduced to eight and the general style of the whole was improved. Madison wished to get the clauses through with as little debate as possible.1 The House, on Boudinot's motion,

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.

(3) In suits at common law, the right of trial by jury shall be preserved.

(House Journal, 86, 121; Senate Journal, 72, 77).

VIII. (Amending Art. VI by inserting as Art. VII:) 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. IX. The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively. X. (Amend by making Art. VII Art. VIII.)

1 Madison believed in adding amendments to the Constitution as "Measures which will conciliate the well-meaning of all parties and put our affairs into an auspicious train." And he speaks of Congress as "containing a majority of friends to the Federal Constitution" who would be the means of "securing it against the hazardous experiment of a second Convention."

Madison to Jefferson, December 12, 1788.
Works, I, 446.

The amendments thought necessary by Madison were to secure the rights of conscience; freedom of the press; trial by jury; security against general warrants; periodical increase of repre

228

CHARACTER OF THE AMENDMENTS.

went into Committee of the Whole, and the discussion of the amendments began. Sherman objected to the introduction which Madison proposed to make to the Preamble, because it interwove disconnected matter with the original. Had Congress the right to introduce new matter? The Constitution was the work of the people and ought to remain entire. The amendments would be the act of the State governments. All authority possessed by Congress came from the Constitution and to change it was to remove the foundations on which Congress rested. Sherman objected to the insertion of amendments in the body

sentatives; and to make vexatious appeals to the Federal judiciary impossible. The reasons why Congress and not a Convention should propose them were because the Congressional means was most expeditious, certain and safe. A Convention would alarm the country, as parties stood.

Madison to George Eve, January 2, 1789.

Works, I, 447-8.

On the method of amending the Constitution, Madison wrote: "They will be attempted in no other way than through Congress. Many of the warmest of the opponents of the Government disavow the mode contended for by Virginia."

Letter to Edmund Randolph, April 12, 1789.
Works, I, 463.

Of the character of the amendments, Madison wrote: "They are restrained to points on which least difficulty was apprehended. Nothing of a controvertible nature ought to be hazarded by those who are sincere in wishing for the approbation of two-thirds of each House and three-fourths of the State Legislatures."

Letter to Edmund Pendleton, June 21, 1789.

Works, I, 479. See also letter to Jefferson, June 30, 1889. Ib. 485.

Writing to his father, Madison hopes that the amendments "will satisfy moderate opponents."

Letter to Col. Joseph Madison, July 5, 1789.
Works, I, 486.

"Absolutely necessary to abbreviate debate and exclude every proposition of a doubtful or unimportant nature."

Madison to Edmund Randolph, August 21, 1789.
Works, I, 490.

WHERE SHALL THEY BE INSERTED?

229

of the instrument, because he believed that they should come, in a supplementary form, as a body of changes at the close. Madison thought it neater and more proper to incorporate the amendments in their proper places, as this would make their meaning plainer. Smith, of South Carolina, citing the practice of this State when revising its code, supported Madison. Livermore supported Sherman, and referred the House to the practice of the British Parliament, and of the States in amending their constitutions.

Clymer, mindful of the labor of the Federal Convention, urged that its work be left intact and that the amendments be added, at its close. "The world would discover the perfection of the orginal and the superfluity of the amendments." He did not consider any of them essential, but aquiesced in them because they were asked for by others. "If the amendments are incorporated in the body of the work," remarked Stone, of Maryland, "it will appear, unless we refer to the archives of Congress, that George Washington, and other worthy characters, who composed the Convention, signed an instrument which they never had in contemplation. The one to which he affixed his signature purports to be adopted by the unanimous consent of the delegates from every State there assembled. Now, if we incorporate these amendments, we must undoubtedly go further, and say, that the Constitution, so formed, was defective, and had need of alteration; we therefore repeal the old and substitute a new one in its place. This, perhaps, is not the last amendment the Constitution may receive; we ought therefore to be careful how we set a precedent which, in dangerous and turbulent times, may unhinge the whole," and he concluded by saying that by the terms of the Constitution, Congress had a right to propose amendments, which, when duly

230

GERRY'S OPINIONS.

ratified, would become a part of the instrument; but it had no power to repeal the whole Constitution.1

Gerry, who had a genius for pointing out difficulties to the Federalists, whatever they might propose, was clearly of opinion that Madison's plan of incorporation was the one intended by the Constitution itself; for its words were, that amendments should be valid to all intents and purposes as part of the Constitution. What though the names affixed to the Constitution were lost? They were worthy of high respect; but everybody knew that it was not these names, but the ratification by the States, which gave the act validity. To do as Sherman suggested would give to the first amendment the title of "a supplement to the Constitution of the United States; to the next, a supplement to the supplement, and so on, until we have supplements annexed five times in five years, wrapping up the Constitution in a maze of perplexity." "2 Benson, at this point, explained, that the matter had been agitated in the Select Committee and decided in favor of the form reported, because it conformed to the recommendations of the State conventions. If the amendments were ratified, Congress could order a new edition of the Constitution printed, with the alterations inserted, and the work would stand perfect and entire. No one had hinted at changing the original in the archives of the government. "That will remain there with the names of those who formed it, while the Government has a being." But he thought it convenient and proper to complete the work in the way provided by the instrument itself. The records. of Congress, and of the States, would show the progress

1 Annals, 738.

2 Id., 739.

3 Annals, 740.

OBJECTION TO INCORPORATION.

231

of the business, and nothing would appear done, that had not been actually performed.

Hartley, of Pennsylvania, could not agree with Benson, Madison or the majority of the committee. Incorporation of the amendments, he said, would perplex the business. If left simple and entire, they would go to the legislatures on their merits and every man would know on what ground he rested his political welfare. It was finally decided to sustain the report of the committee and to incorporate the amendments in their places. To a later generation, accustomed to look upon the Constitution with veneration, it is somewhat startling to discover that so many of its contemporaries considered it of little more importance than an act of Congress.

Jackson compared the Constitution, as the committee now proposed to amend it, to Joseph's coat of many colors. Why prefix political dogmas to the Preamble? The words, "We the People" spoke as much as it is possible to speak, and were a practical recognition far more expressive than any other mere paper declaration of the right of the people to ordain and establish governments. Sherman, following the same thought, remarked that the words "We the People" could not be used, if Congress amended the Constitution.1

The Constitution replied Gerry, was proposed by a Convention at Philadelphia, but with all its importance, it did not possess as high authority as the President, Senate and House of Representatives of the Union. For that Convention was not called in consequence of any express will of the people, but of an implied one, through their representatives in the State legislatures. The Constitution derived no authority from the first Convention;

1 Annals, 742.