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House then resumed Ames's proposition about the apportionment and the basis of representation and the amendment on the subject was changed to read: "After the first enumeration, required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred. After which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than one representative for fifty thousand persons.

On the twenty-second, Tucker offered a new amendment, forbidding Congress to lay direct taxes, except when the income from the indirect was insufficient, and not then, till a requisition had been made on the States.1 In case a State failed to respond, Congress should levy the tax, with six per cent additional from the time of payment. Livermore pronounced this the most important amendment yet proposed. He and most of his colleagues had vague notions of the taxing powers of the government. The Confederation had collapsed for lack of these powers. State quotas had failed, yet many still had confidence that the quota system was the best for the country and had failed only because it had been mismanaged. Of that vast and complicated system of taxation which now goes under the name of a tariff act, Livermore and the supporters of Tucker's motions had no conception. The six per cent penalty was, they thought, a shrewd device likely to keep delinquent States in order.

1 Annals, 803.

But Livermore and his friends in Congress partook of a fear common at the time, that direct taxation by both the States and the United States would cripple the country. He cited several State amendments on this point. The only thing that would deter the general government from laying direct taxes would be the difficulty of managing the matter. "The modes of levying and collecting taxes pursued by the several States are so various, that it is an insuperable obstacle to an attempt by the general government." Sumpter, of North Carolina, went further: "If the power was not relinquished by the general government, the State governments would be annihilated." Gerry continued in the same strain. The fault with the Constitution was that every power of taxation was relinquished to the general government. The States should be left capable of supporting themselves. Now they were divested of every power. If they discovered a new source of revenue, the rapacity of the general government could take it from them. Sedgwick pointed out that a government entrusted with the very existence of a people ought surely to possess, in a most ample degree, the means of support, and therefore he opposed Tucker's amendment.1 His relief and that of the Federalists was speedy, for the proposed amendment was rejected by a majority of thirty. Gerry, doubtless thinking of one of Jefferson's suggestions about amendments, now offered one forbidding monopolies, and another, forbidding any one in the national service to accept any title of nobility or office from a foreign State, or any King or Prince; but his suggestions were rejected and the amendments lately adopted, together with a form of submission to the States, were

1 See Washington's letter to Jefferson, on this point, August 31, 1788.

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handed over to a special committee, consisting of Benson, Sherman and Sedgwick, with instructions to arrange and report them.1

Their report reached the Senate on the twenty-fifth

1 Annals, 808.

REPORT OF THE SPECIAL COMMITTEE OF THREE, AUGUST 24, 1789.

Third Draft of the Amendments. Senate Journal for August 25, 1789.

Art. I. After the first enumeration, required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by Congress that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress that there shall not be less than two hundred representatives nor less than one for every fifty thousand persons.

Art. II. No law varying the compensation to the members of Congress shall take effect until an election of representatives shall have intervened.

Art. III. Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed.

Art. IV. The freedom of speech and of the press and of the right of the people peaceably to assemble and to apply to the government for redress of grievances, shall not be infringed.

Art. V. A well-regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

Art. VI. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

Art. VII. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation and partic

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ularly describing the place to be searched and the persons or things to be seized.

Art. VIII. No person shall be subject except in case of impeachment to more than one trial, or one punishment for the same offence, nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.

Art. IX. In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; and to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Art. X. The trial of all crimes (except in cases of impeachment, and in all cases arising in the land and naval forces, or in the militia when in actual service, in time of war, or public danger) shall be by an impartial jury of the vicinage, with the requisites of unanimity for conviction, the right of challenge, and other accustomed requisitions; and no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment of 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.

Art. XI. No appeal to the Supreme Court of the United States shall be allowed when the value in controversy shall not amount to one thousand dollars; nor shall any fact, triable by a jury according to the course of the common law, be otherwise reexaminable than according to the rules of common law.

Art. XII. In suits at common law, the right of trial by jury shall be preserved.

Art. XIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Art. XIV. No State shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech or of the press.

Art. XV. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Art. XVI. The powers delegated by the Constitution to the Government of the United States shall be exercised as therein appropriated, so that the Legislative shall never exercise the

THE REPORT IN CONFERENCE.

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of August, and consisted of seventeen articles.1 Of their reception and treatment by the Senate we have slight knowledge. Maclay, the republican Senator from Pennsylvania, records that on the day of their arrival, “they were treated contemptuously by Izard, Langdon and Mr. Morris. Izard moved that they should be postponed till next session. Langdon seconded and Mr. Morris got up and spoke angrily, but not well. They, however, lost their motion, and Monday was assigned for taking them up. I could not help observing the six-year class (of Senators) hung together on this business, or the most of them." 2

That the Senate strongly dissented from many of the articles; that it modified and amended them; that they went back to the House; that the House refused to recede; that the amendments were sent to a Committee of Conferences and that, on the twenty-fourth of September, the House receded from its disagreement, provided the Senate would acquiesce in alterations in two articles, and

powers vested in the Executive or Judicial; nor the Executive exercise the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

Art. XVII. The powers not delegated by the Constitution prohibited by it to the States are reserved to the States, respectively, or to the people.

1 Senate Journal, August 25, 1789.

2 Maclay's Journal, 134.

3 Annals, 948.

THE AMENDMENTS OF 1789 AS THEY PASSED CONGRESS SEPTEMBER 25.

(Fourth Draft). Senate Journal, 1789, Appendix.

Art. I. After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by Congress that there shall be not less than one hundred representatives nor less than one representative for every forty thousand persons until the number of representatives shall amount to two hundred, after