Committee of the whole on the subject of amendments.
Mr. Boudinot in the chair.
The committee took up the fifteenth amendment, which is
"The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a grand jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place within the same state; and if it be committed in a place not within a state, the indictment and trial may be at such a place or places as the law may have directed."
Mr. BURKE moved to strike out "vicinage," and to insert "county or district in which the offence has been committed." The gentleman enforced this motion by a variety of observations; and among others said that it was agreeable to the practice of the state he represented, and would give the constitution a more easy operation; that it was a matter of serious alarm to the good citizens of many of the States, the idea that they might be dragged from one part of the State perhaps 2 or 300 miles to the other for trial.
Mr. GERRY objected to the word "district" as too indefinite.
Mr. SEDGWICK said, that he conceived that the proposed amendment is not so adequate to the gentleman's object as the word "vicinage"-the latter part of the clause is sufficient for the gentleman's purpose.
The motion was negatived.
Mr. BURKE then proposed to add a clause to prevent prosecutions upon informations: This was objected to, as the object of the clause was to provide that high crimes, &c. should be by presentment of a grand jury; but that other things should take the course heretofore practised. This motion was lost.
And then the paragraph was adopted.
17th amendment: Immediately after art. 6, the following to be inserted as art. 7. "The powers delegated by this Constitution to the government of the United States shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or the Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the judicial the powers vested in the Legislative or Executive."
Mr. SHERMAN objected to this: He said it is unnecessary.
Mr. MADISON observed, that its adoption will satisfy the people: This separation of the powers is expected: It will serve to explain many cases that may arise under the Constitution, and can do no harm.
Mr. LIVERMORE said, that he objected to the clause altogether as in its operation it is subversive of the Constitution.
Mr. SEDGWICK, Mr. BENSON, and Mr. GERRY were in favor of this amendment, which was finally carried.
18th Amendment: "The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively."
Mr. TUCKER proposed an introductory clause to this amendment, viz. all power being derived from the people.
Mr. MADISON objected to this, as confining the government within such limits as to admit of no implied powers, and I believe, said he, that no government ever existed which was not necessarily obliged to exercise powers by implication.7
This question was agitated in the Convention of Virginia; it was brought forward by those who were opposed to the Constitution, and was finally given up by them.
Mr. SHERMAN observed, that all corporations are supposed to possess all the powers incidental to their corporate capacity: It is not in human wisdom to provide for every possible contingency.
This motion was negatived.
Mr. GERRY then proposed to add, after the word "States," and people thereof.
Mr. CARROLL objected to the addition, as it tended to create a distinction between the people and their legislatures.
The motion was negatived, and the amendment agreed to.