Free Madison's Music by Burt Neuborne

but left witnesses . Presumably, they believed the two categories were interchangeable, but who knows for sure? Madison’s catchall jury trial clause that eventually fragmented into parts of the Fifth, Sixth, and Seventh Amendments was substantially edited for the better. Madison’s June 8 draft included a guaranty of grand jury indictment “in all crimes punishable by loss of life or member.” The editors provided:
    no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment by a Grand Jury.
    Madison originally included a rambling provision on the location of criminal trials. The editors provided that trial should take place where the crime occurs, but that if a crime occurs in a place in possession of an enemy or where an insurrection was taking place, a trial could be moved to a new location. Madison’s June 8 civil-jury-trial language provided:
    In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.
    This was shortened by the editors and placed in a separate clause to read:
    In suits at common law the right of trial by jury shall be preserved.
    Finally the editors tinkered slightly with Madison’s proposed closing clause, designed to preserve separation of powers and federalism. Madison had written:
    The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so thatthe Legislative Department shall never exercise powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise powers vested in the Legislative or Executive Departments.
    . . .
    The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.
    The committee cleaned up the text, providing:
    The powers delegated by this Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise powers vested in the Legislative or Executive Departments.
    . . .
    The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.
    In the end, the first round of editing by the Committee of Eleven made few substantive changes to Madison’s June 8 draft but did carry out some useful reorganization. It also occasionally condensed Madison’s discursive language into sharper prose. Given the committee’s makeup, I suspect that the minor structural reorganizations came from Roger Sherman, but I’ll bet that the felicitous line editing was Madison editing himself.
    On July 28, when John Vining sought to present the report of the Committee of Eleven recommending adoption of seventeen clauses, he was met by the House’s usual unwillingness to take time from important matters to discuss something as abstract as a declaration of rights. The report was promptly tabled for future consideration. It wasn’t until August 3 that Madison could get the floor. The best he could do was to obtain a commitment by the House to consider the report as a committee of the whole as soon as timewas available. On August 13, the House, sitting as a committee of the whole, finally began debate on the report of the Committee of Eleven.
    The discussion began with the by now ritual grumblings about taking time away from more important matters. In fairness, the House was simultaneously debating the structure of the judicial department and voting on what became the Judiciary Act of 1789. John Vining didn’t make matters easier by apologizing profusely for interfering with the scheduled debate over a bill to appoint land agents