I am sorry to be accessary to the loss of a single moment of time
by the house. If I had been indulged in my motion, and we had gone
into a committee of the whole, I think we might have rose, and resumed
the consideration of other business before this time; that is, so far
as it depended on what I proposed to bring forward. As that mode seems
not to give satisfaction, I will withdraw the motion, and move you,
sir, that a select committee be appointed to consider and report such
amendments as are proper for Congress to propose to the legislatures of
the several States, conformably to the 5th article of the constitution.
I will state my reasons why I think it proper to propose amendments;
and state the amendments themselves, so far as I think they ought to be
proposed. If I thought I could fulfil the duty which I owe to myself
and my constituents, to let the subject pass over in silence, I most
certainly should not trespass upon the indulgence of this house. But I
cannot do this; and am therefore compelled to beg a patient hearing to
what I have to lay before you. And I do most sincerely believe that if
congress will devote but one day to this subjects, so far as to satisfy
the public that we do not disregard their wishes, it will have a
salutary influence on the public councils, and prepare the way for a
favorable reception of our future measures.
It appears to me that this house is bound by every motive of prudence,
not to let the first session pass over without proposing to the state
legislatures some things to be incorporated into the constitution, as
will render it as acceptable to the whole people of the United States,
as it has been found acceptable to a majority of them. I wish, among
other reasons why something should be done, that those who have been
friendly to the adoption of this constitution, may have the opportunity
of proving to those who were opposed to it, that they were as sincerely
devoted to liberty and a republican government, as those who charged
them with wishing the adoption of this constitution in order to lay the
foundation of an aristocracy or depotism. It will be a desirable thing
to extinguish from the bosom of every member of the community any
apprehensions, that there are those among his countrymen who wish to
deprive them of the liberty for which they valiantly fought and
honorably bled. And if there are amendments desired, of such a nature
as will not injure the constitution, and they can be ingrafted so as to
give satisfaction to the doubting part of our fellow citizens; the
friends of the federal government will evince that spirit of deference
and concession for which they have hitherto been distinguished.
It cannot be a secret to the gentlemen in this house, that,
notwithstanding the ratification of this system of government by eleven
of the thirteen United States, in some cases unanimously, in others by
large majorities; yet still there is a great number of our constituents
who are dissatisfied with it; among whom are many respectable for their
talents, their patriotism, and respectable for the jealousy they have
for their liberty, which, though mistaken in its object, is laudable in
its motive. There is a great body of the people falling under this
description, who as present feel much inclined to join their support to
the cause of federalism, if they were satisfied in this one point: We
ought not to disregard their inclination, but, on principles of amity
and moderation, conform to their wishes, and expressly declare the
great rights of mankind secured under this constitution. The
acquiescence which our fellow citizens shew under the government, calls
upon us for a like return of moderation. But perhaps there is a
stronger motive than this for our going into a consideration of the
subject; it is to provide those securities for liberty which are
required by a part of the community. I allude in a particular manner
to those two states who have not thought fit to throw themselves into
the bosom of the confederacy: it is a desirable thing, on our part as
well as theirs, that a re-union should take place as soon as possible.
I have no doubt, if we proceed to take those steps which would be
prudent and requisite at this juncture, that in a short time we should
see that disposition prevailing in those states that are not come in,
that we have seen prevailing [in] those states which are.
But I will candidly acknowledge, that, over and above all these
considerations, I do conceive that the constitution may be amended;
that is to say, if all power is subject to abuse, that then it is
possible the abuse of the powers of the general government may be
guarded against in a more secure manner than is now done, while no one
advantage, arising from the exercise of that power, shall be damaged or
endangered by it. We have in this way something to gain, and, if we
proceed with caution, nothing to lose; and in this case it is necessary
to proceed with caution; for while we feel all these inducements to go
into a revisal of the constitution, we must feel for the constitution
itself, and make that revisal a moderate one. I should be unwilling to
see a door opened for a re-consideration of the whole structure of the
government, for a re-consideration of the principles and the substance
of the powers given; because I doubt, if such a door was opened, if we
should be very likely to stop at that point which would be safe to the
government itself: But I do wish to see a door opened to consider, so
far as to incorporate those provisions for the security of rights,
against which I believe no serious objection has been made by any class
of our constituents, such as would be likely to meet with the
concurrence of two-thirds of both houses, and the approbation of
three-fourths of the state legislatures. I will not propose a single
alteration which I do not wish to see take place, as intrinsically
proper in itself, or proper because it is wished for by a respectable
number of my fellow citizens; and therefore I shall not propose a
single alteration but is likely to meet the concurrence required by the
constitution.
There have been objections of various kinds made against the
constitution: Some were levelled gainst its structure, because the
president was without a council; because the senate, which is a
legislative body, had judicial powers in trials on impeachments; and
because the powers of that body were compounded in other respects, in a
manner that did not correspond with a particular theory; because it
grants more power than is supposed to be necessary for every good
purpose; and controuls the ordinary powers of the state governments. I
know some respectable characters who opposed this government on these
grounds; but I believe that the great mass of the people who opposed
it, disliked it because it did not contain effectual provison against
encroachments on particular rights, and those safeguards which they
have been long accustomed to have interposed between them and the
magistrate who exercised the sovereign power: nor ought we to consider
them safe, while a great number of our fellow citizens think these
securities necessary.
It has been a fortunate thing that the objection to the government
has been made on the gound I stated; because it will be practicable on
that ground to obviate the objection, so far as to satisfy the public
mind that their liberties will be perpetual, and this without
endangering any part of the constitution, which is considered as
essential to the existence of the government by those who promoted its
adoption.
The amendments which have occurred to me, proper to be recommended
by congress to the state legislatures are these:
First. That there be prefixed to the constitution a declaration--That
all power is orginally vested in, and consequently derived from the
people.
That government is instituted, and ought to be exercised for the
benefit of the people; which consists in the enjoyment of life and
liberty, with the right of acquiring and using property, and generally
of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible
right to reform or change their government, whenever it be found
adverse or inadequate to the purposes of its institution.
Secondly. That in article 2st. section 2, clause 3, these words be
struck out, to wit, "The number of representatives shall not exceed one
for every thirty thousand, but each state shall have at least one
representative, and until such enumeration shall be made." And that in
place thereof be inserted these words, to wit, "After the first actual
enumeration, there shall be one representative for every thirty
thousand, until the number amount to after which the proportion
shall be so regulated by congress, that the number shall never be less
than nor more than but each state shall after the first
enumeration, have at least two representatives; and prior thereto."
Thirdly. That in article 2st, section 6, clause 1, there be added
to the end of the first sentence, these words, to wit, "But no law
varying the compensation last ascertained shall operate before the next
ensuing election of representatives."
Fourthly. That in article 2st, section9, between clauses 3 and 4,
be inserted these clauses, to wit, The civil rights of none shall be
abridged on account of religious belief or worship, nor shall any
national religion be established, nor shall the full and equal rights
of conscience by in any manner, or on any pretext infringed.
The people shall not be deprived or abridged of their right to speak,
to write, or to publish their sentiments; and the freedom of the press,
as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and
consulting for their common good, nor from applying to the legislature
by petitions, or remonstrances for redress of their grievances.
The right of the people to keep and bear arms shall not be infringed;
a well armed, and well regulated militia being the best security of a
free country: but no person religiously scrupulous of bearing arms,
shall be compelled to render military service in person.
No soldier shall in time of peace be quartered in any house without
the consent of the owner; nor at any time, but in a manner warranted by
law.
No person shall be subject, except in cases of impeachment, to more
than one punishment, or one trial for the same office; nor shall be
compelled to be a witness against himself; nor be deprived of life,
liberty, or property without due process of law; nor be obliged to
relinquish his property, where it may be necessary for public use,
without a just compensation.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
The rights of the people to be secured in their persons, their houses,
their papers, and their other property from all unreasonable searches
and seizures, shall not be violated by warrants issued without probable
cause, supported by oath or affirmation, or not particularly describing
the places to be searched, or the persons or things to be seized.
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, to be informed of the cause and nature of
the accusation, to be confronted with his accusers, and the witnesses
against him; to have a compulsory process for obtaining witnesses in
his favor; and to have the assistance of counsel for his defense.
The exceptions here or elsewhere in the constitution, made in favor
of particular rights, shall not be so construed as to diminish the just
importance of other rights retained by the people; or as to enlarge the
powers delegated by the constitution; but either as actual limitations
of such powers, or as inserted merely for greater caution.
Fifthly. That in article 2st, section 10, between clauses 1 and 2,
be inserted this clause, to wit:
No state shall violate the equal rights of conscience, or the freedom
of the press, or the trial by jury in criminal cases.
Sixthly. That article 3d, section 2, be annexed to the end of clause
2d, these words to wit: but no appeal to such court shall be allowed
where the value in controversy shall not amount to___dollars: nor
shall any fact triable by jury, according to the course of common law,
be otherwise re-examinable than may consist with the principles of
common law.
Seventhly. That in article 3d, section 2, the third clause be struck
out, and in its place be inserted the classes following, to wit:
The trial of all crimes (except in cases of impeachments, and cases
arising in the land or naval forces, or the militia when on actual
service in time of war or public danger) shall be by an impartial jury
of freeholders of the vicinage, with the requisite of unanimity for
conviction, of the right of challenge, and other accustomed requisites;
and in all crimes punishable with loss of life or member, presentment
or indictment by a grand jury, shall be an essential preliminary,
provided that in cases of crimes committed within any county which may
be in possession of an enemy, or in which a general insurrection may
prevail, the trial may by law be authorised in some other county of the
same state, as near as may be to the seat of the offence.
In cases of crimes committed not within any county, the trial may by
law be in such county as the laws shall have prescribed. In suits at
common law, between man and man, the trial by jury, as one of the best
securities to the rights of the people, ought to remain inviolate.
Eighthly. That immediately after article 6th, be inserted, as article
7th, the clauses following, to wit:
The powers delegated by this constitution, are appropriated to the
departments to which they are respectively distributed: so that the
legislative department shall never exercise the powers vested in the
executive or judicial; nor the executive exercise the powers vested in
the legislative or judicial; nor the judicial exercise the powers
vested in the legislative or executive departments.
The powers not delegated by this constitution, nor prohibited by it
to the states, are reserved to the States respectively.
Ninthly. That article 7th, be numbered as article 8th.
The first of these amendments, relates to what may be called a bill
of rights; I will own that I never considered this provision so
essential to the federal constitution, as to make it improper to ratify
it, until such an amendment was added; at the same time, I always
conceived, that in a certain form and to a certain extent, such a
provision was neither improper nor altogether useless. I am aware,
that a great number of the most respectable friends to the government
and champions for republican liberty, have thought such a provision,
not only unnecessary, but even improper, nay, I believe some have gone
so far as to think it even dangerous. Some policy has been made use of
perhaps by gentlemen on both sides of the question: I acknowledge the
ingenuity of those arguments which were drawn against the constitution,
by a comparison with the policy of Great-Britain, in establishing a
declaration of rights; but there is too great a difference in the case
to warrant the comparison: therefore the arguments drawn from that
source, were in a great measure inapplicable. In the declaration of
rights which that country has established, the truth is, they have gone
no farther, than to raise a barrier against the power of the crown; the
power of the legislature is left altogether indefinite. Altho' I know
whenever the great rights, the trial by jury, freedom of the press, or
liberty of conscience, came in question in that body, the invasion of
them is resisted by able advocates, yet their Magna Charta does not
contain any one provision for the security of those rights, respecting
which, the people of America are most alarmed. The freedom of the
press and rights of conscience, those choicest privileges of the
people, are unguarded in the British constitution.
But altho' the case may be widely different, and it may not be thought
necessary to provide limits for the legislative power in that country,
yet a different opinion prevails in the United States. The people of
many states, have thought it necessary to raise barriers against power
in all forms and departments of government, and I am inclined to
believe, if once bills of rights are established in all the states as
well as the federal constitution, we shall find the altho' some of them
are rather unimportant, yet, upon the whole, they will have a salutary
tendency.
It may be said, in some instances they do no more than state the
perfect equality of mankind; this to be sure is an absolute truth, yet
it is not absolutely necessary to be inserted at the head of a
constitution.
In some instances they assert those rights which are exercised by the
people in forming and establishing a plan of government. In other
instances, they specify those rights which are retained when particular
powers are given up to be exercised by the legislature. In other
instances, they specify positive rights, which may seem to result from
the nature of the compact. Trial by jury cannot be considered as a
natural right, but a right resulting from the social compact which
regulates the action of the community, but is as essential to secure
the liberty of the people as any one of the pre-existent rights of
nature. In other instances they lay down dogmatic maxims with respect
to the construction of the government; declaring, that the legislative,
executive, and judicial branches shall be kept separate and distinct:
Perchaps the best way of securing this in practice is to provide such
checks, as will prevent the encroachment of the one upon the other.
But whatever may be [the] form which the several states have adopted
in making declarations in favor of particular rights, the great object
in view is to limit and qualify the powers of government, by excepting
out of the grant of power those cases in which the government ought not
to act, or to act only in a particular mode. They point these
exceptions sometimes against the abuse of the executive power,
sometimes against the legislative, and, in some cases, against the
community itself; or, in other words, against the majority in favor of
the minority.
In our government it is, perhaps, less necessary to guard against the
abuse in the executive department than any other; because it is not the
stronger branch of the system, but the weaker: It therefore must be
levelled against the legislative, for it is the most powerful, and most
likely to be abused, because it is under the least controul; hence, so
far as a declaration of rights can tend to prevent the exercise of
undue power, it cannot be doubted but such declaration is proper. But
I confess that I do conceive, that in a government modified like this
of the United States, the great danger lies rather in the abuse of the
community than in the legislative body. The prescriptions in favor of
liberty, ought to be levelled against that quarter where the greatest
danger lies, namely, that which possesses the highest prerogative of
power: But this [is] not found in either the executive or legislative
departments of government, but in the body of the people, operating by
the majority against the minority.
It may be thought all paper barriers against the power of the
community are too weak to be worthy of attention. I am sensible they
are not so strong as to satisfy gentlemen of every description who have
seen and examined thoroughly the texture of such a defence; yet, as
they have a tendency to impress some degree of respect for them, to
establish the public opinion in their favor, and rouse the attention of
the whole community, it may be one mean to controul the majority from
those acts to which they might be otherwise inclined.
It has been said by way of objection to a bill of rights, by many
respectable gentlemen out of doors, and I find opposition on the same
principles likely to be made by gentlemen on this floor, that they are
unnecessary articles of a republican government, upon the presumption
that the people have those rights in their own hands, and that is the
proper place for them to rest. It would be a sufficient answer to say
that this objection lies against such provisons under the state
governments as well as under the general government; and there are, I
believe, but few gentlemen who are inclined to push their theory so far
as to say that a declaration of rights in those cases is either
ineffectual or improper.
It has been said that in the federal government they are unnecessary,
because the powers are enumerated, and it follows that all that are not
granted by the constitution are retained: that the constitution is a
bill of powers, the great residuum being the rights of the people; and
therefore a bill of rights cannot be so necessary as if the residuum
was thrown into the hands of the government. I admit that these
arguments are not entirely without foundation; but they are not
conclusive to the extent which has been supposed. It is true the
powers of the general government are circumscribed; they are directed
to particular objects; but even if government keeps within those
limits, it has certain discretionary powers with respect to the means,
which may admit of abuse to a certain extent, in the same manner as the
powers of the state governments under their constitutions may to an
indefinite extent; because in the constitution of the United States
there is a clause granting to Congress the power to make all laws which
shall be necessary and proper for carrying into execution all the
powers vested in the government of the United States, or in any
department or officer thereof; this enables them to fulfil every
purpose for which the government was established. Now, may not laws be
considered necessary and proper by Congress, for it is them who are to
judge of the necessity and propriety to accomplish those special
purposes which they may have in contemplation, which laws in themselves
are neither necessary or proper; as well as improper laws could be
enacted by the state legislatures, for fulfilling the more extended
objects of those governments. I will state an instance which I think
in point, and proves that this might be the case. The general
government has a right to pass all laws which shall be necessary to
collect its revenue; the means for enforcing the collection are within
the direction of the legislature: may not general warrants be
considered necessary for this purpose, as well as for some purposes
which it was supposed at the framing of their constitutions the state
governments had in view. If there was reason for restraining the state
governments from exercising this power, there is like reason for
restraining the federal government.
It may be said, because it has been said, that a bill of rights is
not necessary, because the establishment of this government has not
repealed those declarations of rights which are added to the several
state constitutions: that those rights of the people, which had been
established by the most solemn act, could not be annihilated by a
subsequent act of the people, who meant, and declared at the head of
the instrument, that they ordained and established a new system, for
the express purpose of securing to themselves and posterity the
liberties they had gained by an arduous conflict.
I admit the force of this observation, but I do not look upon it to
be conclusive. In the first place, it is too uncertain ground to leave
this provision upon, if a provision is at all necessary to secure
rights so important as many of those I have mentioned are conceived to
be, by the public in general, as well as those in particular who
opposed the adoption of this constitution. Beside some states have no
bills of rights, there are others provided with very defective ones,
and there are others whose bills of rights are not only defective, but
absolutely improper; instead of securing some in the full extent which
republican principles would require, they limit them too much to agree
with the common ideas of liberty.
It has been objected also against a bill of rights, that, by
enumerating particular exceptions to the grant of power, it would
disparage those rights which were not placed in that enumeration, and
it might follow by implication, that those rights which were not
singled out, were intended to be assigned into the hands of the general
government, and were consequently insecure. This is one of the most
plausible arguments I have ever heard urged against the admission of a
bill of rights into this system; but, I conceive, that may be guarded
against. I have attempted it, as gentlemen may see by turning to the
last clause of the 4th resolution.
It has been said, that it is necessary to load the constitution with
this provision, because it was not found effectual in the constitution
of the particular states. It is true, there are a few particular
states in which some of the most valuable articles have not, at one
time or other, been violated; but does it not follow but they may have,
to a certain degree, a salutary effect against the abuse of power. If
they are incorporated into the constitution, independent tribunals of
justice will consider themselves in a peculiar manner the guardians of
those rights; they will be an impenetrable bulwark against every
assumption of power in the legislative or executive; they will be
naturally led to resist every encroachment upon rights expressly
stipulated for in the constitution by the declaration of rights.
Beside this security, there is a great probability that such a
declaration in the federal system would be enforced; because the state
legislatures will jealously and closely watch the operation of this
government, and be able to resist with more effect every assumption of
power than any other power on earth can do; and the greatest opponents
to a federal government admit the state legislatures to be sure
guardians of the people's liberty. I conclude from this view of the
subject, that it will be proper in itself, and highly politic, for the
tranquility of the public mind, and the stability of the government,
that we should offer something, in the form I have proposed, to be
incorporated in the system of government, as a declaration of the
rights of the people.
In the next place I wish to see that part of the constitution revised
which declares, that the number of representatives shall not exceed the
proportion of one for every thirty thousand persons, and allows one
representative to every state which rates below that proportion. If we
attend to the discussion of this subject, which has taken place in the
state conventions, and even in the opinion of the friends to the
constitution, an alteration here is proper. It is the sense of the
people of America, that the number of representatives ought to be
increased, but particularly that it should not be left in the
discretion of the government to diminish them, below that proportion
which certainly is in the power of the legislature as the constitution
now stands; and they may, as the population of the country increases,
increase the house of representatives to a very unwieldy degree. I
confess I always thought this part of the constitution defective,
though not dangerous; and that it ought to be particularly attended to
whenever congress should go into the consideration of amendments.
There are several lesser cases enumerated in my proposition, in which
I wish also to see some alteration take place. That article which
leaves it in the power of the legislature to ascertain its own
emolument is one to which I allude. I do not believe this is a power
which, in the ordinary course of government, is likely to be abused,
perhaps of all the powers granted, it is least likely to abuse; but
there is a seeming impropriety in leaving any set of men without
controul to put their hand into the public coffers, to take out money
to put in their pockets; there is a seeming indecorum in such power,
which leads me to propose a change. We have a guide to this alteration
in several of the amendments which the different conventions have
proposed. I have gone therefore so far as to fix it, that no law,
varying the compensation, shall operate until there is a change in the
legislature; in which case it cannot be for the particular benefit of
those who are concerned in determining the value of the service.
I wish also, in revising the constitution, we may throw into that
section, which interdicts the abuse of certain powers in the state
legislatures, some other provisions of equal if not greater importance
than those already made. The words, "No state shall pass any bill of
attainder, ex post facto law, &c." were wise and proper restrictions in
the constitution. I think there is more danger of those powers being
abused by the state governments than by the government of the United
States. The same may be said of other powers which they possess, if
not controuled by the general principle, that laws are unconstitutional
which infringe the rights of the community. I should therefore wish to
extend this interdiction, and add, as I have stated in the 5th
resolution, that no state shall violate the equal right of conscience,
freedom of the press, or trial by jury in criminal cases; because it is
proper that every government should be disarmed of powers which trench
upon those particular rights. I know in some of the state
constitutions the power of the government is controuled by such a
declaration, but others are not. I cannot see any reason against
obtaining even a double security on those points; and nothing can give
a more sincere proof of the attachment of those who opposed this
constitution to these great and important rights, than to see them join
in obtaining the security I have now proposed; because it must be
admitted, on all hands, that the state governments are as liable to
attack these invaluable privileges as the general government is, and
therefore ought to be as cautiously guarded against.
I think it will be proper, with respect to the judiciary powers, to
satisfy the public mind on those points which I have mentioned. Great
inconvenience has been apprehended to suitors from the distance they
would be dragged to obtain justice in the supreme court of the United
States, upon an appeal on an action for a small debt. To remedy this,
declare, that no appeal shall be made unless the matter in controvers
amounts to a particular sum: This, with the regulations respecting
jury trials in criminal cases, and suits at common law, it is to be
hoped will quiet and reconcile the minds of the people to that part of
the constitution.
I find, from looking into the amendments proposed by the state
conventions, that several are particularly anxious that it should be
declared in the constitution, that the powers not therein delegated,
should be reserved to the several states. Perhaps words which may
define this more precisely, than the whole of the instrument now does,
may be considered as superfluous. I admit they may be deemed
unnecessary; but there can be no harm in making such a declaration, if
gentlemen will allow that the fact is as stated. I am sure I
understand it so, and do therefore propose it.
These are the points on which I wish to see a revision of the
constitution take place. How far they will accord with the sense of
this body, I cannot take upon me absolutely to determine; but I believe
every gentlemen will readily admit that nothing is in contemplation, so
far as I have mentioned, that can endanger the beauty of the government
in any one important feature, even in the eyes of its most sanguine
admirers. I have proposed nothing that does not appear to me as proper
in itself, or eligible as patronised by a respectable number of our
fellow citizens; and if we can make the constitution better in the
opinion of those who are opposed to it, without weakening its frame, or
abridging its usefulness, in the judgment of those who are attached to
it, we act the part of wise and liberal men to make such alterations as
shall produce that effect.
Having done what I conceived was my duty, in bringing before this
house the subject of amendments, and also stated such as wish for and
approve, and offered the reasons which occurred to me in their support;
I shall content myself for the present with moving, that a committee be
appointed to consider of and report such amendments as ought to be
proposed by congress to the legislatures of the states, to become, if
ratified by three-fourths thereof, part of the constitution of the
United States. By agreeing to this motion, the subject may be going on
in the committee, while other important business is proceeding to a
conclusion in the house. I should advocate greater dispatch in the
business of amendments, if I was not convinced of the absolute
necessity there is of pursuing the organization of the government;
because I think we should obtain the confidence of our fellow citizens,
in proportion as we fortify the rights of the people against the
encroachments of the government.