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.

it was.

REGULATION OF ELECTIONS.

253

Constitution, on the point in question, stood very well as Gerry, Stone and Smith, of South Carolina, favored the amendment, Smith asserting that eight States had expressed a wish that the general government relinquish its control over elections. He cited New Hampshire, Massachusetts, New York, Pennsylvania, Maryland, Virginia and the Carolinas, but Carroll denied that Maryland was among the number, and he was supported by Stone who said that nothing of the kind was on the journals of the Maryland convention. Fitzsimons corrected him as to Pennsylvania, but Smith cited the amendment proposed on the subject by the Harrisburg minority. Sedgwick thought that Congress should be given power to alter the times, manner and places of holding elections, provided the States made improper ones. Sherman reminded the House that the Federal Convention was very unanimous in passing the provision in the Constitution on the subject, as it was of great importance. "If it was resigned, it would tend to subvert the government." Madison was convinced that Burke's amendment would tend to destroy the principles and the efficacy of the Constitution; therefore he was opposed to it. Smith, of South Carolina, here observed that the States had the sole regulation of the election of the President. Why were they indulged in this and prohibited to regulate the election of Senators and Representatives? Burke's amendment admitted the right of the general Government to interfere, whenever the State Legislature refused, or neglected to secure elections. It might be that the matter would be neglected by a State with no design to injure the general government. The two branches of the State legislature might not agree, as had happened in New York, when that State failed, recently, to choose Senators.1

1 New York was not represented in the Senate at this time.

254

THE UNITED STATES AND THE STATES.

Tucker objected to Sedgwick's amendment, because it would defeat the one offered by Burke. The general government would be the judge of inadequate, or improper regulations. Consequently it might interfere in any, or every election law which the State might pass. The State legislatures should be left to themselves to perform everything they were competent to, without the guidance of Congress. They knew best how to pursue their own good. It seemed to Tucker that there was a strong tendency in the general government to take upon itself the guidance of the State governments, which fact implied a doubt of their capacity to govern themselves. On the contrary, these could take care of themselves and deserved the more to be trusted because the rights of the citizens were more secure under them. Some States thought that election by districts was the best mode of choosing members of Congress; others preferred a general ticket. Might not Congress set aside their regulations? Virginia was divided into eleven districts and many of its citizens thought themselves abridged of nine-tenths of their privilege by being restrained to the choice of one man instead of ten, the number of representatives of the State in Congress. The mode of electing Senators was fixed. Every State, save New York, had established a precedent and New York suffered from her own act.

Goodhue, alarmed at the havoc that Burke's amendment would make, now declared that rather than it should take effect, he would vote against all that had been agreed to. His gravest apprehension was that, "the State governments would oppose and thwart the general one to such a degree as finally to overturn it." To guard against this evil, the federal government should possess every power necessary to its existence. But both amendments were lost; Burke's, however, only by a majority of five. The