242

NATION VS. CONFEDERACY.

description of the Union during the first eighty-five years of its existence. Not until after the inauguration of Lincoln and the battle of Gettysburg did it become usual for men, even in public life, to speak of the United States as a Nation, and to drop the words confederate and confederacy, as descriptive of the Union. This use of Confederacy, instead of Nation, is repeatedly illustrated during the debates on the proposed amendment of 1861, and the use of Nation, instead of Confederacy, first became common in the debates in Congress on the enactment of the thirteenth, fourteenth and fifteeth amendments, in 1865-1868.

Burke at this point read from the amendments recommended by New York, Virginia, New Hampshire and North Carolina and complained that the committee had omitted the essential requests of these States. North Carolina, it was true, had made express mention of its wish for the guarantee now under discussion, but this general attack on the report provoked a general call for the question and the amendment as reported by the committee was adopted. On the seventeenth, the next clause, on the militia, was taken up. Gerry objected to its phraseology and wished the latter part of it changed so that the exemption from military service would be limited to persons belonging to religious sects, scrupulous of bearing arms. All the people of the United States would not turn Quakers or Moravians, was Jackson's comment; "one part would have to defend the other in case of invasion; therefore those scrupulous about figthing should in some way contribute to the common defense," and he moved, as a further change in the clause, that exemption be allowed "upon paying an equivalent, to be established by law," thus bringing the amendment into line with some of the State constitutions. Smith, of South Carolina, thought

RIGHT TO BEAR ARMS.

243

the language of the Virginia and North Carolina amendments best,-that those excused must find a substitute, and Jackson changed the wording of his amendment, that "no one religiously scrupulous of bearing arms, shall be compelled to render military service, in person, upon paying an equivalent." Sherman, who found little he liked in the amendments, preferred the original language of this one. "It is well known," said he, "that those who are religiously scrupulous of bearing arms are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other. We do not live under an arbitrary Government; the States, respectively, will have the government of the militia, unless when called into actual service; besides it will 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.' Benson wished the words, "but no person religiously scrupulous shall be compelled to bear arms," struck out,— leaving this matter to the benevolence of the legislature, but a motion to strike out the whole clause was lost by two

votes.

Gerry made one more effort to modify the phraseology, so as to make the clause read, "a well regulated militia trained to arms," but he was not supported, and the clause was adopted as reported. Edanus Burke, seemingly mindful of the provision common to the State constitutions, that the military be subordinate to the civil authority, now moved to amend the clause by adding such a provision, making it also unconstitutional to raise or keep up a standing army in time of peace without the consent of two-thirds of the members present in both Houses; but 1 Annals, 779.

244

QUARTERING TROOPS.

QUARTER

being new matter, and awakening little interest, his motion was lost by a majority of thirteen.

Perhaps the old complaint, made by Jefferson, in the Declaration of Independence, that the King had quartered troops upon the people of America without their consent, was in the mind of Madison when he wrote the next amendment. Sumpter wished the clause abbreviated so as to read, "No soldier shall be quartered in any house without the consent of the owner," which materially changed the amendment.1 Sherman at once observed, that the quartering of troops, while marching, whether in peace or war, was necessary, and that it ought not to be put in the power of an individual to obstruct the public service. A majority of sixteen rejected Sumpter's amendment. Gerry proposed to change the clause so as to read at the close, that the quartering of troops should not be permitted, "but by a civil magistrate, in a manner to be prescribed by law;" remarking that either his amendment was essential, or the whole clause was unnecessary. But his ideas found little support and the original clause was adopted.

This brought the matter to the sixth clause of the fourth amendment.2 It provided that no person should be tried more than once for the same offense, but this was contrary to the right already established. Benson thought the language obscure. Probably the clause was intended to express what was secured by the former law of America, -the British constitution, that no man's life should be more than once put in jeopardy for the same offense, yet it was well known that a man was entitled to more than one trial. The humane intention of the clause was to prevent more than one punishment, and it should be

1 Annals, 781.

2 For the text of it, see p. 206.

EXCESSIVE FINES.

245

amended by striking out the words "one trial or," with which idea Sherman agreed; but the House voted it down. Lawrence pointed out that the clause conflicted with laws already passed, in that the exemption of being compelled to give evidence against one's self should be confined to criminal cases; an amendment which was at once unanimously agreed to, and the amended clause was then adopted.1

The English Bill of Rights of 1689 was the ancient precedent for the next clause, respecting excessive bail, and fines and cruel and unusual punishments. It was found in most of the State constitutions. Smith, of South Carolina, thought the language too indefinite, and Livermore wished it struck out, as having no meaning, but it was agreed to, in its ancient form. Gerry detected a fault in the phraseology of the next, the seventh clause, and suggested that it read: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches,"-which was adopted. Benson objected to the words "by warrants issuing" and wished them changed to the simpler form, "no warrant shall issue," but was not successful; the committee of the whole finally adopting the clause with Gerry's amendment of its language. The last clause of the fourth amendment was also adopted, and without change, though Gerry proposed a substitute for the word "disparage.'

3

2

The amendments, down to this point, had been directed to the operations of the national government; the next one, the fifth, was a limitation of the power of the States. Tucker at once remarked that as it went to the alteration of the State constitutions, it better be left to the State

1 Annals, 782.

2 Annals, 783.

3 For the text see p. 208.

246

LIMITATIONS IN APPEALS.

governments. His idea was not to interfere with them more than had already been done, and that was thought by many "to be rather too much;" and he moved to strike out the amendment. But Madison, who also had respect for the rights of the States, immediately replied that he considered this the most important amendment in the whole list. If there was any reason for restraining the government of the United States from infringing upon these essential rights, it was equally necessary that these should be secured against the State governments. Livermore then moved that the proposition be re-arranged and made affirmative, that "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," and Tucker's motion being rejected, the amendment was adopted in the form Livermore had proposed.

The next amendment2 in limiting the value, in cases of appeal, to one thousand dollars, seemed faulty to Benson, because an important question, involving less than that amount, might arise. Madison quickly explained that any restriction which would answer the purpose might be substituted. "There is little danger," said he, "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." At this, Sedgwick suggested three thousand dollars instead of one; but the 1 Annals, 784.

2 The sixth; see p. 209.