ment, and in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger) shall be an impartial jury of freeholders of the vicinage, with the requisite unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held for a capital, or other infamous crime, unless on a presentment or indictment by a grand jury; but, if a crime be committed in a place in possession of an enemy, or in which an insurrection may prevail, the trial and indictment may by law be authorized in some other place not within the State; and, if it be committed within a place not within a State, the indictment and trial may be in such place or places as the law may have directed.

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

"Immediately after article 6, the following be inserted as article 7:

"The powers delegated by this Constitution to the government of the United States shall be exercised as therein appropriated, so that the legislature shall not exercise the power vested in the executive and the judicial, nor the executive the powers vested in the legislative or the judicial, nor the judicial the powers vested in the legislative or executive.

"The powers not delegated by this Constitution, nor prohibited by the States, are reserved to the States respectively.'

"Article 7 to be made article 8."

On the 14th of August, 1789, "The amendments, as reported by the committee, were taken up to be acted upon." The first amendment being read,

"Mr. Gerry objected to its phraseology, as it might

imply that all governments were established on this principle, and therefore, in point of fact, it was not true: the most of the governments of ancient and modern times were calculated on different principles. They had chiefly originated in fraud and force, and were designed for the purpose of oppression and personal ambition. He wished to have nothing go out from this body as a maxim which was false in fact, or which was not clear in its construction. He moved to alter the clause by in

serting the words ' of right.'

"This motion was negatived.

"Mr. Tucker objected to any amendments being made to the preamble to the Constitution, and the object was only to amend the Constitution. The preamble was no more the subject of amendment than the letter of the president annexed to the Constitution.

"Mr. Smith, (S. C.) in answer to Mr. Tucker, showed that this amendment had been recommended by three States, and that it was proper it should be made.

"Mr. Tucker replied, he was not opposed to the principle, but thought this was an improper place to express it it could be inserted with propriety in a bill of rights, one should be agreed on.

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"Others objected to the whole clause, as it was unnecessary, since the words we the people' contained within itself the principle of the amendment fully.

"Mr. Sherman observed, that, if the Constitution had been a grant from another power, it would be proper to express this principle; but, as the right expressed in the amendment was natural and inherent in the people, it is unnecessary to give any ground on which they made their Constitution. It was the act of their own sovereign will. It was also said it would injure the preamble.”

Here the representatives acknowledge the in

alienable rights of mankind, and the very form of the expression made use of, it appears, was designed to make that acknowledgment, and to prevent congress from ever becoming, like foreign governments, an engine for power and oppression; that is, this government should not interfere with any man's inalienable rights, and that they should in no case prevent the freedom of speech, of the press, of conscience, of the right of petition, or of peaceably assembling together for discussion, &c. and that any laws which they should at any time see fit to pass taking away these rights, such laws (if they could be called such) would be null and void, and of no binding force on any one. It being presumed the "general welfare," and the liberty of the country, or of the individual, could not be gained in any instance by violating these rights, or that these benefits should not be attempted to be gained by violating individual liberty, or that they should not be guilty of an evil act, that a good might be derived, consequently all acts of our southern legislatures, preventing the colored people peaceably assembling to discuss their grievances, must be null and void. But to return:

He saw

"Mr. Madison contended for the amendment. no difficulty in the amendment with the preamble without. injuring the propriety or sense of the paragraph. Though it was indisputable that the principle was on all hands acknowledged, and could of itself derive no force from expressing it, yet he thought it prudent to insert it, as it had been recommended by three respectable States. "The amendment was adopted."

Second amendment referred to the number of representatives. Mr. Ames wanted one for every 40,000.

"Article 1, section 9, between paragraphs two and three, 'No religion shall be established by law, nor shall the equal rights of conscience be infringed.""

Mr. Livermore moved to strike out this clause, and to substitute one to the following effect: "The congress shall make no law touching religion or the rights of conscience." He observed, though the sense of both provisions was the same, yet the former might seem to wear an ill face, and was subject to misconstruction.

The question on this motion was carried.

It would appear Mr. Livermore would not admit congress held any power to establish any religious sect; that, from the very nature of the thing, they did not; and, as the form of the expression, as reported by the committee, might imply they had that power, he moved it be altered; and, under that impression, it was accordingly altered. It will be observed the understanding among the members of this congress was, that man possessed certain inalienable rights, and the great care manifested that it should not be in the power of congress, in making laws for the government of the country, to take away these rights; and, lest it might be thought at times they could so do, these amendments were proposed to prevent them. The assumption was, man in this country was and should be free; and, if in his freedom he violated the rights of no one else, he should be protected in his freedom. Let it be borne in mind the peo

ple of the country are talking, not the people of the States; and, if the country protects the rights of the individual, certainly the States cannot take them away, much less can individuals: the lesser power cannot be greater than the whole.

“Fifth amendment: The freedom of speech and of the press, and of the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.'

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Mr. Tucker moved to insert between the words "common good" "and to," in this paragraph, the words, "to instruct their representatives."

"On this motion a long debate ensued. Messrs. Hartly, Clymer, Sherman, Gerry, Madison, Smith, (S. C.) Stone, and others, spoke on the subject. All spoke against it, saving Mr. Gerry: the motion was negatived by a large majority. Mr. Sherman said he was there to consult the common good of the whole, and was the servant of the people at large.

"Mr. Stone said instead of being a representative government it would be a singular kind of democracy.

"Mr. Madison said it had been observed that the people are sovereign. True; but who are the people? Is every small district the people? And do the inhabitants of this district express the voice of the people when they may not be the thousandth part, and although their instructions may contradict the sense of the whole people besides ?

"The 6th and 7th amendments were agreed to.

"In the 8th, on motion of Mr. Lawrence, after the words nor shall' ' these words were inserted: in any criminal cases.'