Amendments V and VI
House of Representatives, Amendments to the Constitution17--18 Aug. 1789Annals 1:753, 756, 759--60
The fifth clause of the fourth proposition was taken up, viz: "No person shall be subject, in case of impeachment, to more than one trial or one punishment for the same offence, nor shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."
Mr. Benson thought the committee could not agree to the amendment in the manner it stood, because its meaning appeared rather doubtful. It says that no person shall be tried more than once for the same offence. This is contrary to the right heretofore established; he presumed it was intended to express what was secured by our former Constitution, that no man's life should be more than once put in jeopardy for the same offence; yet it was well known, that they were entitled to more than one trial. The humane intention of the clause was to prevent more than one punishment; for which reason he would move to amend it by striking out the words "one trial or."
Mr. Sherman approved of the motion. He said, that as the clause now stood, a person found guilty could not arrest the judgment, and obtain a second trial in his own favor. He thought that the courts of justice would never think of trying and punishing twice for the same offence. If the person was acquitted on the first trial, he ought not to be tried a second time; but if he was convicted on the first, and any thing should appear to set the judgment aside, he was entitled to a second, which was certainly favorable to him. Now the clause as it stands would deprive him of that advantage.
Mr. Livermore thought the clause very essential; it was declaratory of the law as it now stood; striking out the words, would seem as if they meant to change the law by implication, and expose a man to the danger of more than one trial. Many persons may be brought to trial for crimes they are guilty of, but for want of evidence may be acquitted; in such cases, it is the universal practice in Great Britain, and in this country, that persons shall not be brought to a second trial for the same offence; therefore the clause is proper as it stands.
Mr. Sedgwick thought, instead of securing the liberty of the subject, it would be abridging the privileges of those who were prosecuted.
The question on Mr. Benson's motion being put, was lost by a considerable majority.
Mr. Partridge moved to insert after "same offence," the words "by any law of the United States." This amendment was lost also.
Mr. Lawrence said this clause contained a general declaration, in some degree contrary to laws passed. He alluded to that part where a person shall not be compelled to give evidence against himself. He thought it ought to be confined to criminal cases, and moved an amendment for that purpose; which amendment being adopted, the clause as amended was unanimously agreed to by the committee. . . .
. . . . .
The committee then proceeded to consider the seventh proposition, in the words following:
Article 3, section 2. Strike out the whole of the third paragraph, and insert, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence."
Mr. Burke moved to amend this proposition in such a manner as to leave it in the power of the accused to put off the trial to the next session, provided he made it appear to the court that the evidence of the witnesses, for whom process was granted but not served, was material to his defence.
Mr. Hartley said, that in securing him the right of compulsory process, the Government did all it could; the remainder must lie in the discretion of the court.
Mr. Smith, of South Carolina, thought the regulation would come properly in, as part of the judicial system.
The question on Mr. Burke's motion was taken and lost; ayes 9, noes 41.
Mr. Livermore moved to alter the clause, so as to secure to the criminal the right of being tried in the State where the offence was committed.
Mr. Stone observed that full provision was made on the subject in the subsequent clause.
On the question, Mr. Livermore's motion was adopted.
Mr. Burke said, he was not so much discouraged by the fate of his former motions, but that he would venture upon another. He therefore proposed to add to the clause, "that no criminal prosecution should be had by way of information."
The House again resolved itself into a Committee of the Whole on the subject of amendments, and took into consideration the 2d clause of the 7th proposition, in the [Volume 5, Page 263] words following, "The trial of all crimes (except in cases of impeachment, and in cases arising in the land and naval forces, or in the militia when in actual service in the 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 place or places as the law may have directed."
Mr. Burke moved to change the word "vicinage" into "district or county in which the offence has been committed." He said this was conformable to the practice of the State of South Carolina, and he believed to most of the States in the Union; it would have a tendency also to quiet the alarm entertained by the good citizens of many of the States for their personal security; they would no longer fear being dragged from one extremity of the State to the other for trial, at the distance of three or four hundred miles.
Mr. Lee thought the word "vicinage" was more applicable than that of "district, or county," it being a term well understood by every gentleman of legal knowledge.
The question on Mr. Burke's motion being put was negatived.
Mr. Burke then revived his motion for preventing prosecutions upon information, but on the question this was also lost.
The clause was now adopted without amendment.
The Founders' Constitution
Volume 5, Amendments V and VI, Document 24
The University of Chicago Press
Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.