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Military vs Militia
 

MONDAY, June 16, 1788.[1] [Elliot misprinted this as Monday, June 14, 1788.]

The Convention,according to the order of the day, again resolved itself into a committeeof the whole Convention, to take into further consideration the proposedplan of government. Mr. WYTHE in the chair.

[The 8th section still under consideration. See page 378.]

Mr. HENRY thought it necessaryand proper that they should take a collective view of this whole section,and revert again to the first clause. He adverted to the clause which givesCongress the power of raising armies, and proceeded as follows: To me thisappears a very alarming power, when unlimited. They are not only to raise, but to support, armies; and this support is to go to the utmost abilities of the United States. If Congress shall say that the general welfare requires it, they may keep armies continually on foot. There is no control on Congress in raising or stationing them. They may billet them on the people at pleasure. This unlimited authority is a most dangerous power: its principles are despotic.If it be unbounded, it must lead to despotism; for the power of a peoplein a free government is supposed to be "paramount" to the existing power.

We shall be told that,in England, the king, lords, and commons, have this power; that armies canbe raised by the prince alone, without the "consent" of the people. How does this apply here? Is this government to place us in the situation of the English?Should we suppose this government to resemble king, lords, and commons, weof this state {411} should be like an English county. An English county Cannotcontrol the government. Virginia cannot control the government of Congressany more than the county of Kent can control that of England. Advert to thepower thoroughly. One of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasonsfor dissolving the connection with Great Britain. Here we may have troopsin time of peace. They may be billeted in any manner to tyrannize, oppress,and crush us.

We are told, we are afraid to trust ourselves; that our own representatives Congress will not exercise their powers oppressively; that we shall not enslave ourselves; that the militia cannot enslave themselves, &c. Who has enslaved France, Spain, Germany, Turkey, and other countries which groan under tyranny? They have been enslaved by the hands of their own people. If it will be so in America, it will be only as it has been every where else. I am still persuaded that the power of calling forth the militia, to execute the laws of the Union, is dangerous. We requested the gentleman to show the cases where the militia would be wanting to execute the laws. Have we received a satisfactory answer? When we consider this part, and compare it to other parts, which declare that Congress may declare war, and that the President shall command the regular troops, militia, and navy, we shall find great danger. Under the order of Congress, they shall suppress insurrections. Under the order of Congress, they shall be called to execute the "laws". It will result, of course, that this is to be a government of force. Look at the part which speaks of excises, and you will recollect that those who are to collect excises and duties are to be aided by military force.They have power to call them out, and to provide for arming, organizing,disciplining, them. Consequently, they are to make militia laws for thisstate.

The honorable gentleman said that the militia should be called forth to quell riots. Have we not seen this business go on very well to-day withoutmilitary force? It is a long-established principle of the common law of England,that civil force is sufficient to quell riots. Towhat length may it not be carried? A law may be made that, if twelve menassemble, if they do not disperse, they may be fired upon. {412} I think it is so in England. Does not this part of the paper bear a strong aspect?The honorable gentleman, from his knowledge, was called upon to show theinstances, and he told us the militia may be called out to quell riots. Theymay make the militia travel, and act under a colonel, or perhaps under aconstable. Who are to determine whether it be a riot or not? Those who are to execute the laws of the Union? If they have power to execute their laws in this manner, in what situation are we placed!Your men who go to Congress are not restrained by a bill of rights. Theyare not restrained from inflicting unusual and severe punishments, thoughthe bill of rights of Virginia forbids it. What will be the consequence?They may inflict the most cruel and ignominious punishments on the militia,and they will tell you that it is necessary for their discipline.

Give me leave to ask another thing.Suppose an exciseman will demand leave to enter your cellar, or house, byvirtue of his office; perhaps he may call on the militia to enable him togo. If Congress be informed of it, will they give you redress? Theywill tell you that he is executing the laws under the authority of the continentat large, which must be obeyed, for that the government cannot be carriedon without exercising severity. It, without any reservation of rights or control, "you" are contented to give up "your" rights, "I am not".There is no principle to guide the legislature to restrain them from inflictingthe utmost severity of punishment. Will gentlemen voluntarilygive up their liberty? With respect to calling the militia to enforce everyexecution indiscriminately, it is unprecedented. Have we ever seen it donein any free country? Was it ever so in the mother country? It never was soin any well-regulated country. It is a government of force, and the genius of despotism expressly. It is not proved that this power is necessary, and if it be unnecessary, shall we give it up?

Mr. MADISON. Mr. Chairman,I will endeavor to follow the rule of the house, but must pay due attentionto the observations which fell from the gentleman. I should conclude, fromabstracted reasoning, that they were ill founded I should think that, ifthere were any object which the general government ought to command, it wouldbe the direction of the national forces. And as the force which lies in militia is most safe, the direction of that part ought to be {413} submitted to, in order to render another force unnecessary. The power objected to is necessary, because it is to be employed for national purposes.It is necessary to be given to every government. This is not opinion, butfact. The highest authority may be given, that the want of such authorityin the government protracted the late war, and prolonged its calamities.

He says that one groundof complaint, at the beginning of the revolution, was, that a standing armywas quartered upon us. This was not the whole complaint. We complained because it was done without the >>>local<<< authority of this country without the consent of the people of America.As to the exclusion of standing armies in the bill of rights of the states,we shall find that though, in one or two of them, there is something likea prohibition, yet, in most of them, it is only provided that no armies shallbe kept without the legislative authority; that is, without the consent of the community itself. Where is the impropriety of saying that we shall have all army, if necessary?Does not the notoriety of this constitute security? If inimical nations wereto fall upon us when defenceless, what would be the consequence? Would itbe wise to say, that we should have no defence? Give me leave to say, thatthe only possible way to provide against standing armies is to make them unnecessary.

The way to do this is to organize and discipline our militia,so as to render them capable of defending the country against external invasionsand internal insurrections. But it is urged that abuses may happen. How isit possible to answer objections against the possibility of abuses? It muststrike every logical reasoner, that these cannot be entirely provided against.I really thought that the objection in the militia was at an end. Was there ever a constitution, in which if authority was vested, it must not have been executed by force, if resisted?Was it not in the contemplation of this state, when contemptuous proceedingswere expected, to recur to something of this kind? How is it possible tohave a more proper resource than this? That the laws of every country oughtto be executed, cannot be denied. That force must be used if necessary, cannotbe denied. Can any government be established, that will answer any put, posewhatever, unless force be provided for executing its {414} laws? The Constitution does not say that a standing army shall be called out to execute the laws. Is not this a more proper way? The militia ought to be called forth to suppress smugglers. Will this be denied?The case actually happened at Alexandria. There were a number of smugglers,who were too formidable for the civil power to overcome. The military quelledthe sailors, who otherwise would have perpetrated their intentions. Shoulda number of smugglers have a number of ships, the militia ought to be called forth to quell them.We do not know but what there may be a combination of smugglers in Virginiahereafter. We all know the use made of the Isle of Man. It was a generaldepository of contraband goods. The Parliament found the evil so great, as to render it necessary to wrest it out of the hands of its possessor.

The honorable gentleman says that it is a government of force. If he means military force, the clause under consideration proves the contrary. There never was a government without force. What is the meaning of government? An institution to make people do their duty (APP warning noteof how this founder perceived government - note the differences of the twoPatrick Henery presents government only by consent, James Madison, an institutiononce established to make people do their "duty"... defined by who?). A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government (APP note,which in the end we have in the Constitution and Bill of Rights as the divisionof powers are defined, and both fears even the following are resolved forthe greater part from the debates),or rather no government at all. The ingenuity of the gentleman is remarkablein introducing the riot act of Great Britain. That act has no connection,or analogy, to any regulation of the militia; nor is there any thing in the Constitution to warrant the general government to make such an act. Itnever was a complaint, in Great Britain, that the militia could be calledforth. If riots should happen, the militia are proper to quell it, to preventa resort to another mode. As to the infliction of ignominious punishments,we have no ground of alarm, if we consider the circumstances of the peopleat large. There will be no punishments so ignominious as have been inflictedalready. The militia law of every state to the north of Maryland is lessrigorous than the particular law of this state. If a change be necessaryto be made by the general government, it will be in our favor. I think thatthe people of those states would not agree to be subjected to a more harshpunishment than their own militia laws inflict. An observation fell from a gentleman, on the same side with myself, which deserves to be attended to.***If we be dissatisfied with the national government, if we "should chooseto renounce {415} it", "this is an additional safeguard to our defence". I conceive that we are peculiarly interested in giving the general government as extensive means as possible to protect us.If there be a particular discrimination between places in America, the SouthernStates are, from their situation and circumstances, most interested in givingthe national government the power of protecting its members.

[Here Mr. Madison made some other observations, but spoke so very low, that his meaning could not be comprehended.]



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APP Study Note on Madison's statement: "What is the meaning of government? An institution to make people do their duty".

This illustrates one of the major differences between federalism by a federalist, and true freedom as defined.

Madison on "this point" is wholly incorrectin regards to the Absolute Rights of the Colonists 1772, (however correctin all tyrannical governments) and is proven by long standing documents regardinglaws on freedom and liberty. The closing statement on this page shows thedismay regarding these past rights by Mr. NICHOLAS in that such Rights "had been frequently violated with impunity." Acondition that had been the aim of correcting by the Declaration of Independence,and the purpose of defending the retainment of such protections by the AntiFederalists when debating the Constitution - resulting in the Bill of Rights,which in fact made us a new species of government, as spoke of byMadison, that now protects freedoms throughout the world because those Rightsare not violated with impunity; and such care needs be taken to make surethat they are never treated in such a way.

1.) The Absolute Rights of the Colonists:

"The Legislative has no right to absolute arbitrary power over the lives and fortunes of the people"

 "The Legislative cannot Justly assume to itself a power to rule by extempore arbitrary decrees; but it is bound to see that Justice is dispensed, and that the rights of the subjects be decided, by promulgated, standing and known laws, and authorized independent Judges;" that is independent as far as possible of Prince or People.

2.) Declaration of Independence:

Thatall men are created equal; that they are endowed by their Creator with certaininalienable rights; that among these are life, liberty, and the pursuit ofhappiness.

That, to secure these rights, governments are institutedamong men, deriving their just powers from the consent of the governed;

3.) The Constitution:

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendment XIII:
Section 1. Neither slavery nor involuntary servitude, "except" as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

4.) Declaration of Independence:

that,whenever any form of government becomes destructive of these ends, it isthe right of the people to alter or to abolish it, and to institute a newgovernment, laying its foundation on such principles, and organizing itspowers in such form, as to them shall seem most likely to effect their safety and happiness.

Prudence,indeed, will dictate that governments long established should not be changedfor light and transient causes; and accordingly all experience hath shownthat mankind are more disposed to suffer, while evils are sufferable, thanto right themselves by abolishing the forms to which they are accustomed.

Butwhen a long train of abuses and usurpations, pursuing invariably the sameobject, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.

APP: Here we have the purpose of a Free government is: (numbers corresponding)

1.) Not to make anyone do anything, but only to see that "Justice" is dispenced. "Justice" keeps one from doing something to another, or punishes one when he does do something to another, without his consent.

Note: Do not confuse this "duty" mentioned here of arbitrary state or federal law to force service to the country, with enforcing laws on persons who infringe against just and necessary civil law; This is a separate issue in the second  part, when one is found taking "inalienable" rights, property and liberty from another, as this has to do with crime; In the first part, forcing someone to do their duty at the beck and call of the state is a crime, as clearly defined in the second part..

Justice has nothing to do with making someone do something, or do something to someone else, without their consent. That type of action is defined as "Tyranny".

2.)If you can be made to do anything, you have no liberty and without the abilityto consent you have no freedom. And I guarantee if someone is "made" or forcedto do "their duty" by any government, they will not be pursuing happiness....Which is an inalienable right.

3.) Any Type of slavery (voluntaryor involuntary); or Involuntary Servitude is strictly prohibited. i.e. theDraft or other forced service.

4.) There is the "Duty", and it is absolutely opposite of Madison's statement.It is the duty of any free man or free state to throw out any governmentthat attempts to "make" someone "do" anything without their "consent".Forcing someone to do something that he does not want to do, only seems reasonableor of great reason to the one that is doing the forcing, (whether a governmentor person); And by his (anyone's) actions he defines himself as a Tyrant.


Afew years later James Madison had to defend an attack on his great optimisms,when he came to realize the dangers spoke of by Patrick Henry and GeorgeMason were quite real; To his credit, Madison left the federalists to joinThomas Jefferson not long after the Constitution was ratified; This was towrite with Jefferson the Virginia and Kentucky Resolutions(which see) in response and opposition to the Alien and Sedition Act. Theseresolutions clarified the powers of the states over the federal government,and the very limited delegated power of the federal government.

(end APP)

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Madison continues:

Anact passed, a few years ago, in this state, to enable the government to callforth the militia to enforce the laws when a powerful combination shouldtake place to oppose them. This is the same power which the Constitutionis to have. There is a great deal of difference between calling forth themilitia, when a combination is formed to prevent the execution of the laws,and the sheriff or constable carrying with him a body of militia to executethem in the first instance; which is a construction not warranted by the clause.There is an act, also, in this state, empowering the officers of the customsto summon any persons to assist them when they meet with obstruction in executingtheir duty. This shows the necessity of giving the government power to callforth the militia when the laws are resisted. It is a power vested in everylegislature in the Union, and which is necessary to every government. Hethen moved that the clerk should read those acts which were accordingly read.

Mr. GEORGE MASON asked to what purpose the laws were read. The objection was, that toomuch power was given to Congress power that would finally destroy the stategovernments more effectually by insidious, underhanded means, than such ascould be openly practised. This, said he, is the opinion of many worthy men, not only in this Convention, but in all parts of America.These laws could only show that the legislature of this state could passsuch acts. He thought they militated against the cession of this power toCongress, because the state governments could call forth the militia whennecessary, so as to compel a submission to the laws; and as they were competentto it, Congress ought not to have the power. The meeting of three or four persons might be called an insurrection, and the militia might be called out to disperse them. He was not satisfied with {416} the explanation of the word "organization" by the gentleman in the military line, (Mr. Lee.)

He thought they were notconfined to the technical explanation, but that Congress could inflict severeand ignominious punishments on the militia, as a necessary incidentto the power of organizing and disciplining them. The gentleman had saidthere was no danger, because the laws respecting the militia were less rigidin the other states than this. This was no conclusive argument. His fears, as he had before expressed, were, that grievous punishments would be inflicted, in order to render the service disagreeable to the militia themselves, and induce them to wish its abolition, which would afford a pretence for establishing a standing army. (APP Note: This has already happened) He was convinced the state governments ought to have the control of the militia, except when they were absolutely necessary for general purposes. The gentleman had said that they would be only subject to martial law when in actual service. He demanded what was to hinder Congress from inflicting it always, and making a general law for the purpose.If so, said he, it must finally produce, most infallibly, the annihilationof the state governments. These were his apprehensions; but he prayed God they might be groundless.

Mr. MADISON replied, that the obvious explanation was, that the states were to appoint the officers, and govern all the militia except that part which was called into the actual service of the United States. He asked, if power were given to the general government, if we must not give it executive power to use it. The vice of the old system was, that Congress could not execute the powers nominally vested in them. If the contested clause were expunged, this system would have nearly the same defect.

Mr. HENRY wished to know what authority the state governments had over the militia.

Mr. MADISON answered, that thestate governments might do what they thought proper with the militia, whenthey were not in the actual service of the United States. They might make use of them to suppress insurrections, quell riots, and call on the general government for the militia of any other state, to aid them, if necessary.

Mr. HENRY replied that,as the clause expressly vested the general government with power to callthem out to suppress {417} insurrections, it appeared to him, most decidedly,that the power of suppressing insurrections was exclusively given to Congress.If it remained in the states, it was by implication.

Mr. CORBIN, after a shortaddress to the chair, in which he expressed extreme reluctance to get up,said, that all contentions on this subject might be ended, by adverting tothe 4th section of the 4th article, which provides, "that theUnited States shall guaranty to every state in the Union a republican formof government, and shall protect each of them against invasion, and, on applicationof the legislature, or of the executive, (when the legislature cannot beconvened,) against domestic violence. "He thought this section gave the states power to use their own militia, and call on Congress for the militia of other states.He observed that our representatives were to return every second year tomingle with their fellow-citizens. He asked, then, how, in the name of God,they would make laws to destroy themselves. The gentleman had told us that nothing could be more humiliating than that the state governmentscould not control the general government. He thought the gentleman mightas well have complained that one county could not control the state at large. Mr. Corbin then said that all confederate governments had the care of the national defence,and that Congress ought to have it. Animadverting on Mr. Henry's observations,that the French had been the instruments of their own slavery, that the Germanshad enslaved the Germans, and the Spaniards the Spaniards, &c., he askedif those nations knew any thing of representation. The want of "this knowledge" was the "principal" cause of their bondage. He concluded by observing that the general government had no power but such as the state government had, and that arguments against the one held against the other.

Mr. GRAYSON, in reply to Mr. Corbin, said hewas mistaken when he produced the 4th section of the 4th article, to provethat the state governments had a right to intermeddle with the militia. He was of opinion that a previous application must be made to the federal head, by the legislature when in session, or otherwiseby the executive of any state, before they could interfere with the militia.In his opinion, no instance could be adduced where the states could employthe militia; for, in all the cases wherein they could be {418} employed,Congress had the exclusive direction and control of them. Disputes, heobserved, had happened in many countries, where this power should be lodged.In England, there was a dispute between the Parliament and King Charles whoshould have power over the militia. Were this government well organized,he would not object to giving it power over the militia. But as it appeared to him to be without checks, and to tend to the formation of an aristocratic body, he could not agree to it. Thus organized, his imagination did not reach so far as to know where this power should be lodged. He conceived the state governments to be at the mercy of the generality. He wished to be open to conviction, but he could see no case where the states could command the militia. Hedid not believe that it corresponded with the intentions of those who formedit, and it was altogether without an equilibrium.He humbly apprehended that the power of providing for organizing and discipliningthe militia, enabled the government to make laws for regulating them, andinflicting punishments for disobedience, neglect, &c. Whether it wouldbe the spirit of the generality to lay unusual punishments, he knew not;but he thought they had the power, if they thought proper to exercise it.He thought that, if there was a constructive implied power left in the states, yet, as the line was not clearly marked between the two governments, it would create differences. Hecomplained of the uncertainty of the expression, and wished it to be so clearlyexpressed that the people might see where the states could interfere.

As the exclusive power of arming, organizing,  was given to Congress, they might entirely neglect them; or they might be armed in one part of the Union, and totally neglected in another. This he apprehended to be a probable circumstance. In this he might be thought suspicious; but he was justified by what bad happened in other countries. 

He wished to know what attention had been paid to the militia of Scotlandand Ireland since the union, and what laws had been made to regulate them.There is, says Mr. Grayson, an excellent militia law in England, and suchas I wish to be established by the general government. They have thirty thousandselect militia in England. But the militia of Scotland and Ireland are neglected.I see the necessity of the concentration of the forces of the Union. {419}I acknowledge that militia are the best means of quelling insurrections,and that we have an advantage over the English government, for their regularforces answer the purpose. But I object to the want of checks, and a line of discrimination between the state governments and the generality.

Mr. JOHN MARSHALL askedif gentlemen were serious when they asserted that, if the state governmentshad power to interfere with the militia, it was by implication. If they were,he asked the committee whether the least attention would not show that theywere mistaken. Thestate governments did not derive their powers from the general government;but each government derived its powers from the people, and each was to actaccording to the powers given it. Would any gentleman deny this? He demanded ifpowers not given were retained by implication. Could any man say so? Couldany man say that this power was not retained by the states, as they had not given it away? For, says he, does not a power remain till it is given away? The state legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away.

For Continental purposes Congress may call forth the militia, as to suppress insurrections and repel invasions. But the power given to the states by the people is "not taken away"; for the Constitution does not say so. In the Confederation Congress had this power; but the state legislatures had it "also". The power of legislating given them within the ten miles square is exclusive of the states, because it is expressed to be exclusive.The truth is, that when power is given to the general legislature, if itwas in the state legislature before, both shall exercise it; unless therebe an incompatibility in the exercise by one to that by the other, or negativewords precluding the state governments from it. But there are no negative words here. It rests, therefore, with the states. To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption.Gentlemen have said that the states cannot defend themselves without an applicationto Congress, because Congress can interpose! Does not every man feel a refutation of the argument in his own breast? I will show {420} that there could not be a combination, between those who formed the Constitution, to take away this power. Allthe restraints intended to be laid on the state governments (besides wherean exclusive power is expressly given to Congress) are contained in the 10thsection of the 1st article. This power is not included in the restrictionsin that section. But what excludes every possibility of doubt, is the lastpart of it that "no state shall engage in war, unless actually invaded, orin such imminent danger as will not admit of delay." When invaded, they "can" engage in war, as also when in "imminent danger". This clearly proves that the states can use the militia when they find it necessary. The worthy member last up objects to the Continental government's possessing the power of disciplining the militia, because, though all its branches be derived from the people, he says they will form an aristocratic government, unsafe and unfit to be trusted.

Mr. GRAYSON answered, that he only said it was so constructed as to form a great aristocratic body.

Mr. MARSHALL replied, thathe was not certain whether he understood him; but he thought he had saidso. He conceived that, as the government was drawn from the people, the feelings and interests of the people would be attended to,and that we should be safe in granting them power to regulate the militia.When the government is drawn from the people, continued Mr. Marshall, anddepending on the people for its continuance, oppressive measures will not be attempted, as they will certainly draw on their authors the resentment of those on whom they depend. On this government, thus depending on ourselves for its existence, I will rest my safety, notwithstanding the danger depicted by the honorable gentleman.I cannot help being surprised that the worthy member thought this power sodangerous. What government is able to protect you in time of war? Will anystate depend on its own exertions? The consequence of such dependence, andwithholding this power from Congress, will be, that state will fall afterstate, and be a sacrifice to the want of power in the general government.United we are strong, divided we fall. Will you prevent the generalgovernment from drawing the militia of one state to another, when the consequencewould be, that every state must depend on itself? The enemy, possessing {421}the water, can quickly go from one state to another. No state will spareto another its militia, which it conceives necessary for itself. It requiresa Superintending power, in order to call forth the resources of all to protectall. If this be not done, each state will fall a sacrifice. This system meritsthe highest applause in this respect. The honorable gentlemansaid that a general regulation may be made to inflict punishments. Does heimagine that a militia law is to be ingrafted on the scheme of government,so as to render it incapable of being changed? The idea of the worthy membersupposes that men renounce their own interests. This would produce generalinconveniences throughout the Union, and would be equally opposed by allthe states. But the worthy member fears, that in one part of the Union theywill be regulated and disciplined, and in another neglected. This dangeris enhanced by leaving this power to each state; for some states may attendto their militia, and others may neglect them. If Congress neglect our militia, "we can arm them ourselves".>>>>CannotVirginia "import arms?<<<<  >>>>Cannot she putthem into the hands of >>> "her"<<< >>> militia-men?<<<

He then concluded by observing, that the power of governing the militia was not vested in the states by implication, because, being >>>possessed of it<<<  antecedent to the adoption of the government, and >>>not being divested of it<<< by any grant or restriction in the Constitution, they must necessarily be as >>>fully possessed of it as ever they had been.<<< Andit could not be said that the states derived any powers from that system,>>>but retained them,<<< >>>though not acknowledgedin any part of it<<<.

Mr. GRAYSON acknowledged that all power was drawn from the people. Buthe could see none of those checks which ought to characterize a free government.It had not such checks as even the British government had. He thought it so organized as to form an aristocratic body.If we looked at the democratic branch, and the great extent of country, hesaid, it must be considered, in a great degree, to be an aristocratic representation.As they were elected with craving appetites, and wishing for emoluments,they might unite with the other two branches. They might give reciprocallygood offices to one another, and mutually protect each other; for he consideredthem all as united in interest, and as but one branch. There was nocheck to prevent such {422} a combination; nor, in cases of concurrent powers,was there a line drawn to prevent interference between the state governmentsand the generality.

Mr. HENRY still retained his opinion, that the states had no right to call forth the militia to suppress insurrections, (APP note: This statement is in reference to the document)But the right interpretation (and such as the nations of the earth had putupon the concession of power) was that, when power was given, it was givenexclusively. He appealed to the committee, if power was not confined in thehands of a few in almost all countries of the world. He referred to their candor,if the construction of conceded power was not an exclusive concession, innineteen twentieth parts of the world. The nations which retained their libertywere comparatively few. America would add to the number of the oppressed nations, if she depended on constructive rights and argumentative implication. That the powers given to Congress were exclusively given, was very obvious to him. The rights which the states had must be founded on the restrictions on Congress. He asked, if the doctrine which had been so often circulated, that rights not given were retained, was true, why there were negative clauses to restrain Congress. He told gentlemen thatthese clauses were sufficient to shake all their implication; for, says he,if Congress had no power but that given to them, why restrict them by negativewords? Is not the clear implication this that, if these restrictions were not inserted, they could have performed what they prohibit?

The worthy member had saidthat Congress ought to have power to protect all, and had given this systemthe highest encomium. But he insisted that the power over the militia wasconcurrent. To obviate the futility of this doctrine, Mr. Henry alleged that it was not reducible to practice.Examine it, says he; reduce it to practice. Suppose an insurrection in Virginia,and suppose there be danger apprehended of an insurrection in another state,from the exercise of the government; or suppose a national war, and therebe discontents among the people of this state, that produce, or threaten,an insurrection; suppose Congress, in either case, demands a number of militia,will they not be obliged to go? Where are your reserved rights, when your militia go to a neighboring state? Which call is to be obeyed, the congressional call, or the call of the state legislature? The call of Congress must be obeyed. I need not remind this {423} committee that the sweeping clause will cause their demands to be submitted to. This clause enables them "tomake all laws which shall be necessary and proper to carry into executionall the powers vested by this Constitution in the government of the UnitedStates, or in any department or officer thereof." Mr. Chairman, I will turn to another clause, which relates to the same subject, and tends to show the fallacy of their argument.

The 10th section of the 1st article, to which reference was made by the worthy member, militates against himself.It says, that "no state shall engage in war, unless actually invaded." Ifyou give this clause a fair construction, what is the true meaning of it?What does this relate to? Not domestic insurrections, but war. If the country be invaded, a state may go to war,but cannot suppress insurrections. If there should happen an insurrectionof slaves, the country cannot be said to be invaded. They cannot, therefore,suppress it without the interposition of Congress. The 4th section of the4th article expressly directs that, in case of domestic violence, Congressshall protect the states on application of the legislature or executive;and the 8th section of the 1st article gives Congress power to call forththe militia to quell insurrections: there cannot, therefore, be a concurrentpower. The "state" legislatures ought to have power to call forth the efforts of the militia, when necessary.Occasions for calling them out may be urgent, pressing, and instantaneous.The states cannot now call them, let an insurrection be ever so perilous,without an application to Congress. So long a delay may be fatal.

There are three clauses which prove, beyond the possibility of doubt, that Congress, and Congress only, can call forth the militia. (APP Note: Speaking of the document) The clause giving Congress power to call them out to suppress insurrections,that which restrains a state from engaging in war except when actually invaded;and that which requires Congress to protect the states against domestic violence,render it impossible that a state can have power to intermeddle with them. Will not Congress find refuge for their actions in these clauses? With respect to the concurrent jurisdiction, it is a political monster of absurdity. Wehave passed that clause which gives Congress an unlimited authority overthe national wealth; and here is an unbounded control over the national strength. Notwithstanding {424} thisclear, unequivocal relinquishment of the power of controlling the militia,you say the states retain it, for the very purposes given to congress.Is it fair to say that you give the power of arming the militia, and at thesame time to say you reserve it? This great national government ought not to be left in this condition. If it be, it will terminate in the destruction of our liberties.

Mr. MADISON. Mr. Chairman,let me ask this committee, and the honorable member last up, what we areto understand from this reasoning. The power must be vested in Congress,or in the state governments; or there must be a division or concurrence.He is against division. It is a political monster. He will not give it toCongress for fear of oppression. Is it to be vested in the state governments?If so, where is the provision for general defence? If ever America shouldbe attacked, the states would fall successively. It will prevent them fromgiving aid to their sister states; for, as each state will expect to be attacked,and wish to guard against it, each will retain its own militia for its owndefence. Where is this power to be deposited, then, unless in the generalgovernment, if it be dangerous to the public safety to give it exclusivelyto the states? If it must be divided, let him show a better manner of doingit than that which is in the Constitution. I cannot agree with the otherhonorable gentleman, that there is no check. There is a powerful check inthat paper. The state governments are to govern the militia when not called forth for general national purposes; and Congress is to govern such part only as may be in the actual service of the Union. Nothing can be more certain and positive than this. It expressly empowers Congress to govern them when in the service of the United States. It is, then, "clear" that the states govern them "when they are not".

(APP Note: The danger that presents itself now, is that the state "militias" once controlled by the state and it's Governor when not in foreign service have been simulated into the standing army as a "National Guard" so that all military men are "always in the service of the United States"- where are our independent state militias? Where is our checks to powerclearly intended by the founders to protect each independent state, and ifnecessary, against the generality? Gone; but not prohibited to reform and reinstitute by the states themselves should they choose, as clearly indicated by these intents being a right of the state to arm, import arms, and discipline its own militias "outside" the federal government. >>> See again John Marshall's statements above, George Nicholas and Mr. Pendleton's Statements below)

"With respect to suppressing insurrections, I say that those clauses which were mentioned by the honorable gentleman are compatible with a concurrence of the power. By the first, Congress is to call them forth to suppress insurrections, and repel invasions of "foreign powers".A concurrence in the former case is necessary, because a whole state maybe in insurrection against the Union. What has passed may perhaps justifythis apprehension. The safety of the Union and particular states requiresthat the general government should have power to {425} repel "foreign" invasions. The 4th section of the 4th article is perfectly consistent with the exercise of the power by the states. The words are, "TheUnited States shall guaranty to every state in this Union a republican formof government, and shall protect each of them against invasion, and, on applicationof the legislature, or of the executive, (when the legislature cannot beconvened,) against domestic violence." The word invasion here, after power had been given in the former clause to repel invasions, may be thought tautologous, but it has a different meaning from the other. This clause speaks of a particular state. It means that it shall be protected from invasion by "other states". A republican government is to be guarantied to each state, and they are to be protected from invasion from "other states", as well as from foreign powers;and, on application by the legislature or executive, as the case may be,the militia of the other states are to be called to suppress domestic insurrections. Does this bar the states from calling forth their own militia? >>> "No" <<<; but it gives them a supplementary security to suppress insurrections and domestic violence.

The other clause runs in these words: "No state shall,without the consent of Congress, lay any duty on tonnage, keep troops orships of war in time of peace, enter into any agreement or compact with anotherstate, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." They are restrained from making war, unless invaded, or in imminent danger. When in such danger, they are "not restrained". I can perceive no competition in these clauses.They cannot be said to be repugnant to a concurrence of the power. If weobject to the Constitution in this manner, and consume our time in verbalcriticism, we shall never put an end to the business.

Mr. GEORGE MASON. Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, by our representation? I ask, Who are the militia? They consist now of the "whole people", except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and {426} rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.If we should ever see that day, the most ignominious punishments and heavyfines may be expected. Under the present government, all ranks of peopleare subject to militia duty. Under such a full and equal representation asours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government.If there were a more particular definition of their powers, and a clauseexempting the militia from martial law except when in actual service, andfrom fines and punishments of an unusual nature, then we might expect thatthe militia would be what they are. But, if this be not the case,we cannot say how long all classes of people will be included in the militia.There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.

Mr. GEORGE NICHOLAS. Mr.Chairman, I feel apprehensions lest the subject of our debates should bemisunderstood. Every one wishes to know the true meaning of the system; butI fear those who hear us will think we are captiously quibbling on words.We have been told, in the course of this business, that the government willoperate like a screw. Give me leave to say that the exertions of the oppositionare like that instrument. They catch at every thing, and take it into theirvortex. The worthy member says that this government is defective, becauseit comes from the people. Its greatest recommendation, with me, is puttingthe power in the hands of the people. He disapproves of it because it doesnot say in what particular instances the militia shall be called out to executethe laws. This is a power of the Constitution, and particular instances mustbe defined by the legislature. But, says the worthy member, those laws whichhave been read are arguments against the Constitution, because they showthat the states are now in possession of the power, and competent to itsexecution. {427} Would you leave this power in the states, and by that meansdeprive the general government of a power which will be necessary for itsexistence? If the state governments find this power necessary, ought notthe general government to have a similar power? But, sir, there is no statecheck in this business. The gentleman near me has shown that there is a very important check.

Another worthy member saysthere is no power in the states to quell an insurrection of slaves. Havethey it now? If they have, does the Constitution take it away? If it does,it must be in one of the three clauses which have been mentioned by the worthymember. The first clause gives the general government power to call themout when necessary. Does this take it away from the states? >>> No <<<. But it gives an additional security; for, besides the power in the state governments to >>> use their "own" militia <<<, it will be the duty of the general government to aid them with the strength of the Union when called for. >>> No part <<< of this Constitution can show that this power is taken away.

But an argument is drawnfrom that clause which says "that no state shall engage in war unless actuallyinvaded, or in such imminent danger as will not admit of delay." What doesthis prohibition amount to? It must be a war with a foreign enemy that thestates are prohibited from making; for the exception to the restriction provesit. The restriction includes only offensive hostility, as they are at libertyto engage in war when invaded, or in imminent danger. They are, therefore, not restrained from quelling domestic insurrections, which are totally different from making war with a foreign power.But the great thing to be dreaded is that, during an insurrection, the militiawill be called out from the state. This is his kind of argument. Is it possible that, at such a time, the general government would order the militia to be called?It is a groundless objection, to work on gentlemen's apprehensions withinthese walls. As to the 4th article, it was introduced wholly for the particularaid of the states. A republican form of government is guarantied, and protectionis secured against invasion and domestic violence on application. Is notthis a guard as strong as possible? Does it not exclude the unnecessary interference of Congress in business of this sort?

The gentleman over theway cannot tell who will be the {428} militia at a future day, and enumeratesdangers of select militia. Let me attend to the nature of gentlemen's objections.One objects because there will be select militia; another objects becausethere will be no select militia; and yet both oppose it on these contradictoryprinciples. If you deny the general government the power of calling out themilitia, there must be a recurrence to a standing army. If you are reallyjealous of your liberties, confide in Congress.

Mr. MASON rose, and said that he was totally misunderstood. The contrast between his friend's objection and his was improper.His friend had mentioned the propriety of having select militia, like thoseof Great Britain, who should be more thoroughly exercised than the militiaat large could possibly be. But he, himself, had not spoken of a selectionof militia, but of the exemption of the highest classes of the peoplefrom militia service; which would justify apprehensions of severe and ignominiouspunishments.

Mr. NICHOLAS wished toknow whether the representatives of the people would consent to such exemptions,as every man who had twenty-five acres of land could vote for a federal representative.

Mr. GRAYSON. Mr. Chairman,I conceive that the power of providing and maintaining a navy is at presentdangerous, however warmly it may be urged by gentlemen that America oughtto become a maritime power. If we once give such power, we put it in thehands of men whose interest it will be to oppress us. It will also irritatethe nations of Europe against us. Let us consider the situation of the maritimepowers of Europe: they are separated from us by the Atlantic Ocean. The richesof all those countries come by sea. Commerce and navigation are the principalsources of their wealth. If we become a maritime power, we shall be ableto participate in their most beneficial business. Will they suffer us toput ourselves in a condition to rival them? I believe the first step of anyconsequence, which will be made towards it, will bring war upon us. Theirambition and avarice most powerfully impel them to prevent our becoming anaval nation. We should, on this occasion, consult our ability. Is thereany gentleman here who can say that America can support a navy? The richesof America are not sufficient to bear the enormous expense it must certainlyoccasion. I may be supposed to exaggerate, {429} but I leave it to the committeeto judge whether my information be right or not.

It is said that shipwrightscan be had on better terms in America than in Europe; but necessary materialsare so much dearer in America than in Europe, that the aggregate sum wouldbe greater. A seventy-four gun ship will cost you ninety-eight thousand pounds,including guns, tackle, &c. According to the usual calculation in England,it will cost you the further sum of forty-eight thousand pounds to mail it,furnish provisions, and pay officers and men. You must pay men more herethan in Europe, because, their governments being arbitrary, they can commandthe services of their subjects without an adequate compensation; so that,in all, the expenses of such a vessel would be one hundred and forty thousandpounds in one year. Let gentlemen consider, then, the extreme difficultyof supporting a navy, and they will concur with me, that America cannot doit. I have no objection to such a navy as will not excite the jealousy ofthe European countries. But I would have the Constitution to say, that nogreater number of ships should be had than would be sufficient to protectour trade. Such a fleet would not, probably, offend the Europeans. I am notof a jealous disposition; but when I consider that the welfare and happinessof my country are in danger, I beg to be excused for expressing my apprehensions.Let us consider how this navy shall be raised. What would be the consequenceunder those general words, "to provide and maintain a navy"? All the vesselsof the intended fleet would be built and equipped in the Northern States,where they have every necessary material and convenience for the purpose.Will any gentleman say that any ship of war can be raised to the south ofCape Charles? The consequence will be that the Southern States will be inthe power of the Northern States.

We should be called uponfor our share of the expenses, without having equal emoluments. Can it besupposed, when this question comes to be agitated in Congress, that the NorthernStates will not take such measures as will throw as much circulating moneyamong them as possible, without any consideration as to the other states?If I know the nature of man, (and I believe I do,) they will have no considerationfor us. But, supposing it were not so, America {430} has nothing at all todo with a fleet. Let us remain for some time in obscurity, and rise by degrees.Let us not precipitately provoke the resentment of the maritime powers ofEurope. A well-regulated militia ought to be the defence of this country.In some of our constitutions it is said so. This Constitution should haveinculcated the principle, Congress ought to be under some restraint in thisrespect. Mr. Grayson then added, that the Northern States would be principallybenefited by having a fleet; that a majority of the states could vote theraising a great navy, or enter into any commercial regulation very detrimentalto the other states. In the United Netherlands there was much greater security,as the commercial interest of no state could be sacrificed without its ownconsent. The raising a fleet was the daily and favorite subject of conversationin the Northern States. He apprehended that, if attempted, it would drawus into a war with Great Britain or France. As the American fleet would notbe competent to the defence of all the states, the Southern States would be most exposed.He referred to the experience of the late war, as a proof of what he said.At the period the Southern States were most distressed, the Northern States, he said, were most happy. They had privateers in abundance,whereas we had but few. Upon the whole, he thought we should depend on ourtroops on shore, and that it was very impolitic to give this power to Congresswithout any limitation.

Mr. NICHOLAS remarked thatthe gentleman last up had made two observations the one, that we ought notto give Congress power to raise a navy; and the other, that we had not themeans of supporting it. Mr. Nicholas thought it a false doctrine. Congress,says he, has a discretionary power to do it when necessary. They are nothound to do it in five or ten years, or at any particular time. It is presumable,therefore, that they will postpone it until it be proper.

Mr. GRAYSON had no objectionto giving Congress the power of raising such a fleet as suited the circumstancesof the country. But he could not agree to give that unlimited power whichwas delineated in that paper.

Adverting to the clauseinvesting Congress with the power of exclusive legislation in a districtnot exceeding ten miles square, he said he had before expressed his doubtsthat this {431} district would be the favorite of the generality, and thatit would be possible for them to give exclusive privileges of commerce tothose residing within it. He had illustrated what he said by European examples.It might be said to be impracticable to exercise this power in this manner.Among the various laws and customs which pervaded Europe, there were exclusiveprivileges and immunities enjoyed in many places. He thought that this oughtto be guarded against; for should such exclusive privileges be granted tomerchants residing within the ten miles square, it would be highly injuriousto the inhabitants of other places.

Mr. GEORGE MASON thought that there were few clauses in the Constitution so dangerous as that which gave Congress exclusive power of legislation within ten miles square.Implication, he observed, was capable of any extension, and would probablybe extended to augment the congressional powers. But here there was no needof implication. This clause gave them an unlimited authority, in every possiblecase, within that district. This ten miles square, says Mr. Mason, may setat defiance the laws of the surrounding states, and may, like the customof the superstitious days of our ancestors, become the sanctuary of the blackestcrimes. Here the federal courts are to sit. We have heard a good deal said of justice.

It has been doubted whetherjury trial be secured in civil eases. But I will suppose that we shall havejuries in civil cases. What sort of a jury shall we have within the ten milessquare? The immediate creatures of the government. What chance will poormen get, where Congress have the power of legislating in all cases whatever,and where judges and juries may be under their influence, and bound to supporttheir operations? Even with juries the chance of justice may here be verysmall, as Congress have unlimited authority, legislative, executive, andjudicial. Lest this power should not be sufficient, they have it in everycase. Now, sir, if an attempt should be made to establish tyranny overthe people, here are ten miles square where the greatest offender may meetprotection. If any of their officers, or creatures, should attemptto oppress the people, or should actually perpetrate the blackest deed, hehas nothing to do but get into the ten miles square. Why was this dangerouspower given? Felons may receive an asylum there and in {432} their strongholds.Gentlemen have said that it was dangerous to argue against possible abuse,because there could be no power delegated but might be abused. It is an incontrovertible axiom, that, when the dangers that may arise from the abuse are greater than the benefits that may result from the use, the power ought to be withheld. I do not conceive that this power is at all necessary, though capable of being greatly abused.

We are told by the honorablegentleman that Holland has its Hague. I confess I am at a loss to know whatinference he could draw from that observation. This is the place where thedeputies of the United Provinces meet to transact the public business. ButI do not recollect that they have any exclusive jurisdiction whatever inthat place, but are subject to the laws of the province in which the Hague is. To what purpose the gentleman mentioned that Holland has its Hague, I cannot see.

Mr. MASON then observed that he would willingly give them exclusive power, as far as respected the police and good government of the place; but he would give them no more, because he thought it unnecessary. He was very willing to give them, in this as well as in all other cases, those powers which he thought indispensably necessary.

Mr. MADISON. Mr. Chairman:I did conceive, sir, that the clause under consideration was one of thoseparts which would speak its own praise. It is hardly necessary to say anything concerning it. Strike it out of the system, and let me ask whetherthere would not be much larger scope for those dangers. I cannot comprehend that the power of legislating over a small district, which cannot exceed ten miles square, and may not be more than one mile, will involve the dangers which he apprehends. Ifthere be any knowledge in my mind of the nature of man, I should think itwould be the last thing that would enter into the mind of any man to grant exclusive advantages, in a very circumscribed district, to the prejudice of the community at large. We make suppositions, and afterwards deduce conclusions from them, as if they were established axioms.But, after all, bring home this question to ourselves. Is it probable thatthe members from Georgia, New Hampshire, will concur to sacrifice the privilegesof their friends? I believe that, whatever state may become the seat of thegeneral {433} government, it will become the object of the jealousy and envyof the other states. Let me remark, if not already remarked, that there mustbe a cession, by particular states, of the district to Congress, and thatthe states may settle the terms of the cession. The states may make what stipulation they please in it, and, if they apprehend any danger, they may refuse it altogether.How could the general government be guarded from the undue influence of particularstates, or from insults, without such exclusive power? If it were at thepleasure of a particular state to control the session and deliberations ofCongress, would they be secure from insults, or the influence of such state?If this commonwealth depended, for the freedom of deliberation, on the lawsof any state where it might be necessary to sit, would it not be liable toattacks of that nature (and with more indignity) which have been alreadyoffered to Congress? With respect to the government of Holland, I believethe States General have no jurisdiction over the Hague; but I have heardthat mentioned as a circumstance which gave undue influence to Holland overthe rest. We must limit our apprehensions to certain degrees of probability.The evils which they urge must result from this clause are extremely improbable; nay, almost impossible.

Mr. GRAYSON. Mr. Chairman, one answer which has been given is, the improbability of the evil that it will never be attempted, and that it is almost impossible. This will not satisfy us, when we consider the great attachments men have to a great and "magnificent capital".It would be the interest of the citizens of that district to aggrandize themselvesby every possible means in their power, to the great injury of the otherstates. If we travel all over the world, we shall find that people have aggrandizedtheir own capitals. Look at Russia and Prussia. Every step has been takento aggrandize their capitals. In what light are we to consider the ten miles square?It is not to be a fourteenth state. The inhabitants will in no respect whateverbe amenable to the laws of any state. A clause in the 4th article, highlyextolled for its wisdom, will be rendered nugatory by this exclusive legislation.This clause runs thus: "No person held to service or labor in one state,under the laws thereof, escaping into another, shall, in consequence of anylaw or regulation therein, be discharged from such {434} service or labor,but shall be delivered up on the claim of the party to whom such labor orservice may be due." Unless you consider the ten miles square as a state,persons bound to labor, who shall escape thither, will not be given up; forthey are only to be delivered up after they shall have escaped into a state.As my honorable friend mentioned, felons, who shall have fled from justiceto the ten miles square, cannot be apprehended. The executive of a stateIs to apply to that of another for the delivery of a felon. He cannot applyto the ten miles square. It was often in contemplation of Congress to havepower of regulating the police of the seat of government; but they never had an idea of exclusive legislation in all cases.The power of regulating the police and good government of it will secureCongress against insults. What originated the idea of the exclusive legislationwas, some insurrection in Pennsylvania, whereby Congress was insulted, onaccount of which, it is supposed, they left the state.

It is answered that theconsent of the state must be required, or else they cannot have such a district,or places for the erecting of forts, &c. But how much is already giventhem! Look at the great country to the north-west of the Ohio, extendingto and commanding the lakes.

Look at the other end ofthe Ohio, towards South Carolina, extending to the Mississippi. See whatthese, in process of time, may amount to. They may grant exclusive privileges to any particular part of which they have the possession. But it may be observed that those extensive countries will be formed into independent states, and that their consent will be necessary. To this I answer, that they may still grant such privileges as, in that country, are already granted to Congress by the states. The grants of Virginia, South Carolina, and other states, will be subservient to Congress in this respect. Of course, it results from the whole, that requiring the consent of the states will be no guard against this abuse of power.

[A desultory conversation ensued.]

Mr. NICHOLAS insisted thatas the state, within which the ten miles square might be, could prescribethe terms on which Congress should hold it, no danger could arise, as nostate would consent to injure itself: there was the same {435} security withrespect to the places purchased for the erection of forts, magazines, &c.;and as to the territory of the United States, the power of Congress onlyextended to make needful rules and regulations concerning it, without prejudicingthe claim of any particular state, theright of territory not being given up; that the grant of those lands to theUnited States was for the general benefit of all the states, and >>>not to be perverted to their prejudice<<<;that, consequently, whether that country were formed into new states or not,the danger apprehended could not take place; that the seat of governmentwas to be still a part of the state, and, as to general regulations, was to be considered as such.

Mr. GRAYSON, on the otherhand, contended that the ten miles square could not be viewed as a state;that the state within which it might be would have no power of legislatingover it; that, consequently, persons bound to labor, and felons, might receiveprotection there; that exclusive emoluments might he granted to those residingwithin it; that the territory of the United States, being a part of no stateor states, might be appropriated to what use Congress pleased, without theconsent of any state or states; and that, consequently, such exclusive privilegesand exemptions might be granted, and such protection afforded to fugitives,within such places, as Congress should think proper; that, after mature consideration,he could not find that the ten miles square was to be looked upon even asa part of a state, but to be totally independent of all, and subject to theexclusive legislation of Congress.

Mr. LEE strongly expatiated on the impossibility of securing any human institution from possible abuse. He thought the powers conceded in the paper on the table not so liable to be abused as the powers of the state governments.Gentlemen had suggested that the seat of government would become a sanctuaryfor state villains, and that, in a short time, ten miles square would subjugatea country of eight hundred miles square. This appeared to him a most improbablepossibility; nay, he might call it impossibility. Were the place crowdedwith rogues, he asked if it would be an agreeable place of residence for,the members of the general government, who were freely chosen by the peopleand the state governments. Would the people be so lost to honor and virtue,as to select men who would willingly {436} associate with the most abandonedcharacters? He thought the honorable gentleman's objections against remotepossibility of abuse went to prove that government of no sort was eligible,but that a state of nature was preferable to a state of civilization. Heapprehended no danger; and thought that persons bound to labor, and felons,could not take refuge in the ten miles square, or other places exclusivelygoverned by Congress, because it would be contrary to the Constitution, anda palpable usurpation, to protect them.

Mr. HENRY entertainedstrong suspicions that great dangers must result from the clause under consideration.They were not removed, but rather confirmed, by the remarks of the honorablegentleman, in saying that it was extremely improbable that the members fromNew Hampshire and Georgia would go and legislate exclusively for the tenmiles square. If it was so improbable, why ask the power? Why demand a power which was not to be exercised?Compare this power, says he, with the next clause, which gives them powerto make all laws which shall be necessary to carry their laws into execution. By this they have a right to pass any law that may facilitate the execution of their acts.They have a right, by this clause, to make a law that such a district shallbe set apart for any purpose they please, and that any man who shall actcontrary to their commands, within certain tell miles square, or any placethey may select, and strongholds, shall be hanged without benefit of clergy.If they think any law necessary for their personal safety, after perpetratingthe most tyrannical and oppressive deeds, cannot they make it by this sweeping clause?If it be necessary to provide, not only for this, but for any departmentor officer of Congress, does not this clause enable them to make a law forthe purpose? And will not these laws, made for those purposes, be paramount to the laws of the states? Willnot this clause give them a right to keep a powerful army continually onfoot, if they think it necessary to aid the execution of their laws? Is there any act, however atrocious, which they cannot do by virtue of this clause? Look at the use which has been made, in all parts of the world, of that human thing called power. Look at the predominant thirst of dominion which has invariably and uniformly prompted rulers to abuse their powers.Can you say that you will be safe when you give such unlimited powers, {437}without any real responsibility? Will you be safe when you trust men at Philadelphiawith power to make any law that will enable them to carry their acts intoexecution? Willnot the members of Congress have the same passions which other rulers havehad? They will not be superior to the frailties of human nature. Howevercautious you may be in the selection of your representatives, it will bedangerous to trust them with such unbounded powers. Shall we be told, whenabout to grant such illimitable authority, that it will never be exercised!

I conjure you once more to remember the admonition of that sage man who told you that, when you give power,  you know not what you give. I know the absolute necessity of an energetic government. Butis it consistent with any principle of prudence or good policy to grant unlimited,unbounded authority, which is so totally unnecessary that gentlemen say itwill never be exercised? But gentlemen say that we must make experiments. A wonderful and unheard-of experiment it will be, to give unlimited power unnecessarily!I admit my inferiority in point of historical knowledge; but I believe noman can produce an instance of an unnecessary and unlimited power, givento a body independent of the legislature, within a particular district. Letany man in this Convention show me an instance of such separate and differentpowers of legislation in the same country show me an instance where a partof the community was independent of the whole.

Thepeople within that place, and the strongholds, may be excused from all theburdens imposed on the rest of the society, and may enjoy exclusive emoluments,to the great injury of the rest of the people. But gentlemen say that the power will not he abused. They ought to show that it is necessary. All their powers may be fully carried into execution, without this exclusive authority in the ten miles square. The sweeping clause will fully enable them to do what they please. What could the most extravagant and boundless imagination ask, but power to do every thing? I have reason to suspect ambitious grasps at power. The experience of the world teaches me the jeopardy of giving enormous power. Strikethis clause out of the form of the government, and how will it stand? Congresswill still have power, by the sweeping clause, to make laws within that {438}place and the strongholds, independently of the local authority of the state. I ask you, if this clause be struck out, whether the sweeping clause will not enable them to protect themselves from insult. If you grant them these powers, you destroy every degree of responsibility. Theywill fully screen them from justice, and preclude the possibility of punishingthem. No instance can be given of such a wanton grasp of power as an exclusivelegislation in all cases whatever.

Mr. MADISON. Mr. Chairman,I am astonished that the honorable member should launch out into such strongdescriptions without any occasion. Was there ever a legislature in existencethat held their sessions at a place where they had not jurisdiction? I donot mean such a legislature as they have in Holland; for it deserves notthe name. Their powers are such as Congress have now, which we find not reducibleto practice. If you be satisfied with the shadow and form, instead of thesubstance, you will render them dependent on the local authority. Supposethe legislature of this country should sit in Richmond, while the exclusivejurisdiction of the place was in some particular county; would this countrythink it safe that the general good should be subject to the paramount authorityof a part of the community?

The honorable member asks,Why ask for this power, and if the subsequent clause be not fully competentfor the same purpose. If so, what new terrors can arise from this particularclause? It is only a superfluity. If that latitude of construction which he contends for were to take place with respect to the sweeping clause, there would be room for those horrors. But it gives no supplementary power. It only enables them to execute the delegated powers. If the "delegation" of their powers be "safe", no possible inconvenience can arise from this clause.It is at most "but" explanatory. For when any power is given, its delegationnecessarily involves authority to make laws to execute it. Were it possibleto delineate on paper all those particular cases and circumstances in whichlegislation by the general legislature would be necessary, and leave to thestates all the other powers, I imagine no gentleman would object to it.But this is not within the limits of human capacity. The particular powerswhich are found necessary to be given {439} are therefore delegated "generally",and particular and minute specification is left to the legislature.

[Here Mr. Madison spoke of the distinction between regulation of police and legislation, but so low he could not be heard.]

When the honorable memberobjects to giving the general government jurisdiction over the place of theirsession, does he mean that it should be under the control of any particularstate, that might, at a critical moment, seize it? I should have thoughtthat this clause would have met with the most cordial approbation. As theconsent of the state in which it may be must be obtained, and as it may stipulatethe terms of the grant, should they violate the particular stipulations itwould be an usurpation; so that, if the members of Congress were to be guidedby the laws of their country, none of those dangers could arise.

[Mr. Madison made several other remarks, which could not be heard]

Mr. HENRY replied that, ifCongress were vested with supreme power of legislation, paramount to theconstitution and laws of the states, the dangers he had described might happen;for that Congress would not be confined to the enumerated powers. This construction was warranted, in his opinion, by the addition of the word department, at the end of the clause, and that they could make any laws which they might think necessary to execute the powers of any department or officer of the government.

Mr. PENDLETON. Mr. Chairman, this clause does not give Congress power to impede the operation of any part of the Constitution, or to make any regulation that may affect the interests of the citizens of the Union at large. But it gives them power over the local police of the place, so as to be secured from any interruption in their proceedings.Notwithstanding the violent attack upon it, I believe, sir, this is the fairconstruction of the clause. It gives them power of exclusive legislationin any case within that district. What is the meaning of this? Whatis it opposed to? Is it opposed to the general powers of the federal legislature,or to those of the state legislatures? I understand it as opposed to the legislative power of that state where it shall be. What, then, is the power? It is, that Congress shall exclusively legislate there, in order to preserve {440} serve the police of the place and their own personal independence, that they may not be overawed or insulted, and of course to preserve them in opposition to any attempt by the state where it shall be this is the fair construction.Can we suppose that, in order to effect these salutary ends, Congress willmake it an asylum for villains and the vilest characters from all parts ofthe world? Will it not degrade their own dignity to make it a sanctuary forvillains? I hope that no man that will ever "compose" that Congress will associate with the most profligate characters. (APP: If this was not such a sad statement, it would be funny)

Why oppose this power?Suppose it was contrary to the sense of their constituents to grant exclusiveprivileges to citizens residing within that place; the effect would be directly in opposition to what he says.It could have no operation without the limits of that district. Were Congressto make a law granting them an exclusive privilege of trading to the EastIndies, it could have no effect the moment it would go without that place;for their exclusive power is confined to that district. Were they to passsuch a law, it would be nugatory; and every member of the community at largecould trade to the East Indies as well as the citizens of that district.This exclusive power is limited to that place solely, for their own preservation, which all gentlemen allow to be necessary.

Will you pardon me when I observe that their construction of the preceding clause does not appear to me to be natural, or warranted by the words.

They say that the stategovernments have no power at all over the militia. The power of the generalgovernment to provide for arming and organizing the militia is to introducea uniform system of discipline to pervade the United States of America. Butthe power of governing the militia, so far as it is in Congress, extends only to such parts of them as may be employed in the service of the United States. When not in their service, Congress has no power to govern them. The states then have the "sole" government of them; and though Congress "may" provide for arming them, and prescribe the "mode" of discipline, yet the states have the authority of training them, according to the uniform discipline prescribed by Congress. But there is nothing to preclude them from arming and disciplining them, should Congress neglect to, do it.As to calling the militia to execute the laws of the {441} Union, I thinkthe fair construction is directly opposite to what the honorable member says.The 4th section of the 4th article contains nothing to warrant the suppositionthat the states cannot call them forth to suppress domestic insurrections.[Here he read the section.] All the restraint here contained is, that Congress may, at their pleasure, on application of the state legislature, or "(in vacation)" of the executive, protect each of the states against domestic violence. This is a restraint on the general government not to interpose. Thestate is in "full possession of the power of using its own militia" to protectitself against domestic violence; and the power in the general government"cannot be exercised, or interposed", "without the "application of the state itself". This appears to me to be the obvious and fair construction.

With respect to the necessityof the ten miles square being superseded by the subsequent clause, whichgives them power to make all laws which shall be necessary and proper forcarrying into execution the foregoing powers, and all other powers vestedby this Constitution in the government of the United States, or in any departmentor officer thereof, I understand that clause as not going a single step beyondthe delegated powers. What can it act upon? Some power given by this Constitution. If they should be about to pass a law in consequence of this clause, they must pursue some of the delegated powers, but can by "no means" depart from them, or arrogate "any new" powers; for the plain language of the clause is, to give them power to pass laws in order to give "effect" to the "delegated powers".

Mr. GEORGE MASON. Mr. Chairman, gentlemen say there is no new power given by this clause. Is there any thing in this Constitution which secures to the states the powers which are said to be retained?Will powers remain to the states which are not expressly guarded and reserved?I will suppose a case. Gentlemen may call it an impossible case, and "suppose" that Congress will act with wisdom and integrity.Among the enumerated powers, Congress are to lay and collect taxes, duties,imposts, and excises, and to pay the debts, and to provide for the generalwelfare and common defence; and by that clause (so often called the sweeping clause) they are to make all laws necessary to execute those laws. Now, suppose oppressions {442} should arise under "this" government, and any writer should dare to stand forth, and expose to the community at large the abuses of "those" powers; could not Congress, under the "idea" of providing for the general welfare, and under their "own" construction, say that this was destroying the "general peace", encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this,lay a dangerous restriction On the press? Might they not even bring the trialof this restriction within the ten miles square, when there is no prohibition against it? Might they not thus destroy the trial by jury? Would they not extend their implication? It appears to me that they may and "will". And shall the support of our rights depend on the bounty of men "whose interest it may be to oppress us"? That Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise, the power of providing for the general welfare may be perverted to its destruction.

Many gentlemen, whom I respect, take different sides of this question. We wish this amendment to be introduced, to remove our apprehensions.There was a clause in the Confederation reserving to the states respectivelyevery power, jurisdiction, and right, not expressly delegated to the UnitedStates. This clause has never been complained of, but approved by all Whynot, then, have a similar clause in this Constitution,in which it is the more indispensably necessary than in the Confederation,because of the great augmentation of power vested in the former? In my humbleapprehension, unless there be some such clear and finite expression, thisclause now under consideration will go to any thing our rulers may thinkproper. Unlessthere be some express declaration that every thing not given is retained,it will be carried to any power Congress may please.

Mr. HENRY moved to read from the 8th to the 13th article of the declaration of rights; which was done.

Mr. GEORGE NICHOLAS, inreply to the gentlemen opposed to the clause under debate, went over thesame grounds, and developed the same principles, which Mr. Pendleton andMr. Madison had done. The opposers of the {443} clause, which gave the powerof providing for the general welfare, supposed its dangers to result fromits connection with, and extension of, the powers granted in the other clauses.He endeavored to show the committee that it only empowered Congress to makesuch laws as would be necessary to enable them to pay the public debts andprovide for the common defence; >>> that this "general welfare" was united, "not" to "the general power of legislation", but to the >>>particular power<<< of laying and collecting taxes, imposts, and excises, for the purpose of paying the debts and providing for the "common defence",that is, that they could raise as much money as would pay the debts and providefor the common defence, in consequence of this power. The clause which was affectedly called the sweeping clause contained "no new grant of power".To illustrate this position, he observed that, if it had been added at theend of every one of the enumerated powers, instead of being inserted at theend of all, it would be obvious to any one that it was "no" augmentation of power. If,for instance, at the end of the clause granting power to lay and collecttaxes, it had been added that they should have power to make necessary andproper laws to lay and collect taxes, who could suspect it to be an additionof power? As it would grant no new power if inserted at the end of each clause, it could not when subjoined to the whole.

He then proceeded thus: But, says he, who is to determine the extent of such powers? I say, the same power which, in all well-regulated communities, determines the "extent" of "legislative" powers. If they exceed these powers, the judiciary will declare it void, or else "the people" will have a "right to declare it void".Is this depending on any man? But, says the gentleman, it may go to any thing.It may destroy the trial by jury; and they may say it is necessary for providingfor the general defence. The power of providing for the general defence onlyextends to raise any sum of money they may think necessary, by taxes, imposts,But, says he, our only defence against oppressive laws consists in the virtueof our representatives. This was misrepresented. If I understand it right,no "new" power can be exercised. As to those which are actually granted, we trust to the fellow-feelings of our representatives; and if we are deceived, we then "trust to altering our {444} government". It appears to me, however, that we can confide in their discharging their powers rightly,from the peculiarity of their situation, and connection with us. If, sir,the powers of the former Congress were very inconsiderable, that body did not deserve to have great powers.

It was so constructed that it would be dangerous to invest it with such. But why were the articles of the bill of rights read? Let him show us that those rights are given up by the Constitution. Let him prove them to be violated.He tells us that the most worthy characters of the country differ as to thenecessity of a bill of rights. It is a simple and plain proposition. It isagreed upon by all that the people have all power. If they part with any of it, is it necessary to declare that they retain the rest?Liken it to any similar case. If I have one thousand acres of land, and Igrant five hundred acres of it, must I declare that I retain the other fivehundred? Do I grant the whole thousand acres, when I grant five hundred,unless I declare that the five hundred I do not give belong to me still? It is so in this case. After granting some powers, the rest must "remain with the people".

Gov. RANDOLPH observedthat he had some objections to the clause. He was persuaded that the constructionput upon it by the gentlemen, on both sides, was erroneous; but he thoughtany construction better than going into anarchy.

Mr. GEORGE MASON  stillthought that there ought to be some express declaration in the Constitution,asserting that rights not given to the general government were retained bythe states. He apprehended that, unless this was done, many valuable and important rights would be concluded to be given up by implication.All governments were drawn from the people, though many were perverted totheir oppression. The government of Virginia, he remarked, was drawn fromthe people; yet there were certain great and important rights, which thepeople, by their bill of rights, declared to be paramount to the power of the legislature.He asked, Why should it not be so in this Constitution? Was it because wewere more substantially represented in it than in the state government? If,in the state government, where the people were substantially and fully represented,it was necessary that the great rights of human nature should {445} be securefrom the encroachments of the legislature, he asked if it was not more necessary in this government, where they were but inadequately represented? He declared that "artful sophistry and evasionscould not satisfy him". He could see no clear distinction between rightsrelinquished by a positive grant, and lost by implication. Unless there werea bill of rights, implication might "swallow up all our rights".

Mr. HENRY. Mr. Chairman, the "necessity of a bill of rights" appears to me to be "greater" in this government "than ever it was in any government before. "Ihave observed already, that the sense of the European nations, and particularlyGreat Britain, is against the construction of rights being retained whichare not expressly relinquished. I repeat, that all nations have adopted this construction that all rights not expressly and unequivocally reserved to the people are "impliedly and incidentally relinquished to rulers",as necessarily inseparable from the delegated powers. It is so in Great Britain;for every possible right, which is not reserved to the people by some expressprovision or compact, is within the king's prerogative.It is so in that country which is said to be in such full possession of freedom.It is so in Spain, Germany, and other parts of the world. Let us considerthe sentiments which have been entertained by the people of America on thissubject. Atthe revolution, it must be admitted that it was their sense to set down thosegreat rights which ought, in all countries, to be held inviolable and sacred.Virginia did so, we all remember. She made a compact to reserve, expressly,certain rights.

When fortified with full, adequate, and abundant representation, was she satisfied with that representation? No. Shemost cautiously and guardedly reserved and secured those invaluable, inestimablerights and privileges, which no people, inspired with the least glow of patrioticliberty, ever did, or ever can, abandon. Sheis called upon now to abandon them, and dissolve that compact which securedthem to her. She is called upon to accede to another compact, which mostinfallibly supersedes and annihilates her present one. Will she do it? Thisis the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to {446} reserve them, they will be supposed to be given up.How were the congressional rights defined when the people of America unitedby a confederacy to defend their liberties and rights against the tyrannicalattempts of Great Britain? The states were not then contented with impliedreservation. No,Mr. Chairman. It was expressly declared in our Confederation that every rightwas retained by the states, respectively, which was not given up to the governmentof the United States. But there is no such thing here. You, therefore, by a natural and unavoidable implication, give up your rights to the general government.

Your own example furnishes an argument against it. If you give up these powers, without a bill of rights,you will exhibit the most absurd thing to mankind that ever the world sawgovernment that has abandoned all its powers the powers of direct taxation,the sword, and the purse. You have disposed of them to Congress, withouta bill of rights without check, limitation, or control. And still you havechecks and guards; still you keep barriers pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend "you" against the state government, which is "bereaved of all power", and yet you have "none" against Congress, though in fill and exclusive possession of all power! Youarm yourselves against the weak and defenceless, and expose yourselves nakedto the armed and powerful. Is not this a conduct of unexampled absurdity?What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defence is given up. This is a real, actual defect. It must strike the mind of every gentleman. When our government was first instituted in Virginia, we declared the "common law" of England to be "in force".

That system of law which has been admired, and "has protected us and our ancestors", is excluded by that system. Added to this, we adopted a bill of rights. By this Constitution, some of the best barriers of human rights are "thrown away".Is there not an additional reason to have a bill of rights? By the ancientcommon law, the trial of all facts is decided by a jury of impartial menfrom the immediate vicinage. This paper speaks of different juries from thecommon law in criminal cases; and in civil controversies {447} excludes trialby jury altogether. There is, therefore, more occasion for the supplementarycheck of a bill of rights now than then. Congress, from their general, powers,may fully go into business of human legislation. They may legislate, in criminalcases, from treason to the lowest offence petty larceny. They may definecrimes and prescribe punishments. In the definition of crimes, I trust theywill be directed by what wise representatives ought to be governed by. Butwhen we come to punishments, no latitude ought to be left, nor dependenceput on the virtue of representatives. What says our bill of rights? "that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."Are you not, therefore, now calling on those gentlemen who are to composeCongress, to prescribe trials and define punishments without this control?Will they find sentiments there similar to this bill of rights? You let them loose; you do more you depart from the genius of your country.That paper tells you that the trial of crimes shall be by jury, and heldin the state where the crime shall have been committed. Under this extensiveprovision, they may proceed in a manner extremely dangerous to liberty: aperson accused may be carried from one extremity of the state to another,and be tried, not by an impartial jury of the vicinage, acquainted with hischaracter and the circumstances of the fact, but by a jury unacquainted withboth, and who may be biased against him. Is not this sufficient to alarmmen? How different is this from the immemorial practice of your British ancestors,and your own! I need not tell you that, by the common law, a number of hundredswere required on a jury, and that afterwards it was sufficient if the jurorscame from the same county. With less than this the people of England havenever been satisfied. That paper ought to have declared the common law inforce.

In this business of legislation,your members of Congress will loose the restriction of not imposing excessivefines, demanding excessive bail, and inflicting cruel and unusual punishments.These are prohibited by your declaration of rights. What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment.But Congress may introduce the practice of the civil law, in preference tothat of the common law. They may {448} introduce the practice of France,Spain, and Germany of torturing, to extort a confession of the crime. Theywill say that they might as well draw examples from those countries as fromGreat Britain, and they will tell you that there is such a necessity of strengtheningthe arm of government, that they must have a criminal equity, and extortconfession by torture, in order to punish with still more relentless severity. We are then lost and undone.And can any man think it troublesome, when we can, by a small interference,prevent our rights from being lost? If you will, like the Virginian government,give them knowledge of the extent of the rights retained by the people, andthe powers of themselves, they will, if they be honest men, thank you forit. Will they not wish to go on sure grounds? Butif you leave them otherwise, they will not know how to proceed; and, beingin a state of uncertainty, they will assume rather than give up powers byimplication.

Abill of rights may be summed up in a few words. What do they tell us? Thatour rights are reserved. Why not say so? Is it because it will consume toomuch paper? Gentlemen'sreasoning against a "bill of rights" does not satisfy me. Without sayingwhich has the right side, it remains doubtful. A bill of rights is a favoritething with the Virginians and the people of the other states likewise. Itmay be their prejudice, but the government ought to suit their geniuses;otherwise, its operation will be unhappy. A bill of rights, even if its necessitybe doubtful, will exclude the possibility of dispute; and, with great submission,I think the best way is to "have no dispute". In the presentConstitution, they are restrained from issuing general warrants to searchsuspected places, or seize persons not named, without evidence of the commissionof a fact, &c. There was certainly some celestial influence governingthose who deliberated on that Constitution; for they have, with the mostcautious and enlightened circumspection, guarded those indefeasible rightswhich ought ever to be held sacred! The officers of Congress may come uponyou now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, gointo your cellars and rooms, and search, ransack, and {449} measure, everything you eat, drink, and wear. They ought to be restrained Within properbounds. With respect to the freedom of the press, I need say nothing; for it is hoped that the gentlemen who shall compose Congress will take care to infringe as "little as possible" the rights of human nature. This will result from their ""integrity". They should, from prudence, abstain from violating the rights of their constituents. They are not, however, "expressly" restrained.  But whether they will intermeddle with that palladium of our liberties or not, I leave you to determine.

Mr. GRAYSON thought itquestionable whether rights not given up were reserved. A majority of thestates, he observed, had expressly reserved certain important rights by billsof rights, andthat in the Confederation there was a clause declaring expressly that everypower and right not given up was retained by the states. It was the general sense of America that such a clause was necessary; other, wise, why did they introduce a clause which was totally unnecessary?It had been insisted, he said, in many parts of America, that a bill of rightswas only necessary between a prince and people, and not in such a governmentas this, which was a compact between the people themselves. This did notsatisfy his mind; for so extensive was the power of legislation, in his estimation,that he doubted whether, when it was once given up, any thing wasretained. He further remarked, that there were some negative clauses in theConstitution, which refuted the doctrine contended for by the other side.For instance; the 2d clause of the 9th section of the 1st article providedthat "the privilege of the writ of habeas corpus shall not be suspended,unless when, in cases of rebellion or invasion, the public safety may requireit." And, by the last clause of the same section, "no title of nobility shallbe granted by the United States." Now, if these restrictions had not beenhere inserted, he asked whether Congress would not most clearly have hada right to suspend that great and valuable right, and to grant titles ofnobility. When, in addition to these considerations, he saw they hadan indefinite power to provide for the general welfare, he thought therewere great reasons to apprehend great dangers. He thought, therefore, that there ought to be a bill of rights.

Mr. GEORGE NICHOLAS, inanswer to the two gentlemen {450} last up, observed that, though there wasa declaration of rights in the government of Virginia, it was no conclusivereason that there should be one in this Constitution; for, if it was unnecessaryin the former, its omission in the latter could be no defect. They ought,therefore, to prove that it was essentially necessary to be inserted in theConstitution of Virginia. There were five or six states in the Union whichhad no bill of rights, separately and distinctly as such; but they annexedthe substance of a bill of rights to their respective constitutions. Thesestates, he further observed, were as free as this state, and their libertiesas secure as ours. If so, gentlemen's arguments from the precedent were notgood. In Virginia, all powers were given to the government without any exception.It was different in the general government, to which certain special powerswere delegated for certain purposes. He asked which was the more safe. Wasit safer to grant general powers than certain limited powers? This much asto the theory, continued he. What is the practice of this invaluable government?Have your citizens been bound by it? They have not, sir. You have violatedthat maxim, "that no man shall be condemned without a fair trial." That manwho was killed, not secundum artem, was deprived of his life withoutthe benefit of law, and in express violation of this declaration of rights,which they confide in so much. But, sir, this bill of rights was no security.It is but a paper check. It has been violated in many other instances. Therefore,from theory and practice, it may be concluded that this government, withspecial powers, without any express exceptions, is better than a governmentwith general powers and special exceptions. But the practice of England isagainst us. The rights there reserved to the people are to limit and checkthe king's prerogative. It is easier to enumerate the exceptions to his prerogative,than to mention all the cases to which it extends. Besides, these reservations,being only formed in acts of the legislature, may be altered by the representativesof the people when they think proper. No comparison can be made of this withthe other governments he mentioned. There is no stipulation between the kingand people. The former is possessed of absolute, unlimited authority.

But, sir, this Constitutionis defective because the common {451} law is not declared to be in force!What would have been the consequence if it had? It would be immutable. Butnow it can be changed or modified as the legislative body may find necessaryfor the community. But the "common law" is "not excluded". There is "nothing" in that paper (APP note: referring to the US Constitution being considered)  to warrant the assertion.As to the exclusion of a jury from the vicinage, he has mistaken the fact.The legislature may direct a jury to come from the vicinage. But the gentlemansays that, by this Constitution, they have power to make laws to define crimesand prescribe punishments; and that, consequently, we are not free from torture.Treason against the United States is defined in the Constitution, and theforfeiture limited to the life of the person attainted. Congress have powerto define and punish piracies and felonies committed on the high seas, andoffences against the laws of nations; but they cannot define or prescribethe punishment of any other crime whatever, without violating the Constitution.If we had no security against torture but our declaration of rights, we mightbe tortured to-morrow; for it has been repeatedly infringed and disregarded.A bill of rights is only an acknowledgment of the preëxisting claim to rights in the people. They belong to us as much as if they had been inserted in the Constitution.But it is said that, if it be doubtful, the possibility of dispute oughtto be precluded. Admitting it was proper for the Convention to have inserteda bill of rights, it is not proper here to propose it as the condition ofour accession to the Union. Would you reject this government for its omission,dissolve the Union, and bring miseries on yourselves and posterity? I hopethe gentleman does not oppose it on this ground solely. Is there anotherreason? He said that it is not only the general wish of this state, but allthe states, to have a bill of rights. If it be so, where is the difficultyof having this done by way of subsequent amendment? We shall find the otherstates willing to accord with their own favorite wish. The gentleman lastup says that the power of legislation includes every thing. A general powerof legislation does. But this is a special power of legislation. Therefore,it does not contain that plenitude of power which he imagines. They cannotlegislate in any case but those particularly enumerated. No gentleman, whois a friend to the government, ought to withhold his assent from it for thisreason.

{452} Mr. GEORGE MASONreplied that the worthy gentleman was mistaken in his assertion that thebill of rights did not prohibit torture; for that one clause expressly providedthat no man can give evidence against himself; and that theworthy gentleman must know that, in those countries where torture is used,evidence was extorted from the criminal himself. Another clause of the billof rights provided that no cruel and unusual punishments shall be inflicted;therefore, torture was included in the prohibition.

Mr. NICHOLAS acknowledgedthe bill of rights to contain that prohibition, and that the gentleman wasright with respect to the practice of extorting confession from the criminalin those countries where torture is used; but still he saw no security arisingfrom the bill of rights as separate from the Constitution, for that it had been frequently violated with impunity.

 [Elliot misprinted this as Monday, June 14, 1788.]

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