University of Virginia Library

JUNE 8. AMENDMENTS TO THE CONSTITUTION.

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 upon
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 fifth 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 subject,
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, that 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 had 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 despotism. 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 and
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 at present feel much inclined to
join their support to the cause of Federalism, if they were
satisfied on 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 show 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 that 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 which have not come in, that we have seen prevailing
in those States which have embraced the Constitution.

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 reconsideration
of the whole structure the Government—for a re-consideration
of the principles and the substance of the powers
given; because I doubt, if such a door were opened, 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 against 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 controls 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 provisions against
the encroachments on particular rights, and those safeguards
which they have been long accustomed to have interposed
between them and the magistrate who exercises the sovereign,
power; nor ought we to consider them safe, while a great
number of our fellow-citizens think these securities necessary.

It is a fortunate thing that the objection to the Government
has been made on the ground 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 originally 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 1st, 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 amounts 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 1st, 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 1st, section 9, 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 be 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 soldiers 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 offence;
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 defence.

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 1st, 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, in 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 clauses 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 authorized
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. Although I know whenever the great rights, the
trial by jury, freedom of the press, or liberty of conscience,
come 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 although 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, that, although 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 a 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. Perhaps 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 control. 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 that 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 means to control 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 provisions 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 for them 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 nor 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, indeed 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 that
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. Besides, 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 it may

be guarded against, I have attempted it, as gentlemen may
see by turning to the last clause of the fourth resolution.

It has been said that it is unnecessary 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 it
does 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. Besides 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 operations 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 tranquillity 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 minor 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 control
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 controlled 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 controlled 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 controversy
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 other words may define this more precisely than the
whole of the instrument now does. 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 gentleman 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 I 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 despatch in the business of amendments, if
I were 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.[118]