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have chosen a representative," said Sherman, "it is his duty to meet others from the different parts of the Union and consult and agree with them to such acts as are for the general benefit of the whole community. If they were to be guided by instructions, there would be no use in deliberation; all that a man would have to do would be to produce his instructions, lay them on the table and let them speak for him. From hence I think it may be fairly inferred that the right of the people to consult for the common good can go no further than to petition the legislature, or apply for a redress of grievances. It is the duty of a good representative to inquire what measures are most likely to promote the general welfare, and after he has discovered them, to give them his support. Should his instructions therefore coincide with his ideas on any measure, they would be unnecessary; if they were contrary to the conviction of his own mind, he must be bound by every principle of justice to disregard them."

Jackson, pursuing the argument further, affirmed that, if the doctrine of instruction was established, it would necessarily drive the House into a number of factions, as there might be different instructions from every State. "To say that sovereignty vests in the people, and that they have not a right to instruct and control their representatives," said Gerry, "is absurd to the last degree." But he understood the amendment only as recognizing the right of instruction, not as compelling the representative to be bound by his instructions. With this last opinion, Madison agreed, for the people might instruct their representative to violate the Constitution, in which case he could not be expected to obey. Smith, of South Carolina, opposed the provision because it put the more distant States to a disadvantage, as the nearer ones could more easily communicate their instructions to their members.

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The southern States would thus be seriously injured. Stone remarked that the only precedent was that of the Swiss cantons, where the people instructed their representatives, and also voted directly on the laws; but no such form of government had been advocated for America. Vining touched the great issue of the times by asking, what the members would do were their constituents to instruct them to make paper money; surely, such directions, contrary to the Constitutions, would be disobeyed. Livermore thought that instructions voted by State Legislature would have much force, though he did not believe them binding. Sedgwick wishing to set Livermore right, replied, that members of the House stood, not as representatives of the State Legislatures, as under the old Congress, but as representatives of the great body of the people. "The sovereignty, the independence and the rights of the States are intended to be guarded by the Senate." If the House was to be viewed in any other light, "the greatest security the people have for their rights and privileges is destroyed."

Page feared that unless the amendment was adopted, many constituencies would be alarmed, as they had asked for it. Lawrence, with a comprehension rare even among the Fathers, remarked that he objected to the amendment, "because every member ought to consider himself the representative of the whole Union, and not of the particular district which had chosen him," but lest the prevalence of this national spirit be over-estimated, by the readers of to-day, it is well to consider the concluding words of Lawrence: "The decisions of Congress," said he, "were to bind every individual of the confederated States, and it was wrong to be guided by the voice of a single district whose interests might happen to clash with those of the general good." The phrase "confederated States" was the usual

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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

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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.

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QUARTERING TROOPS.

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. 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.