amendment had been adopted,' and this misconception was perpetuated for over a third of a century in editions of the Constitution and school histories."

100. DUELING.

3

Another attempt to regulate the behavior of American citizens by constitutional amendment arose out of the growth of public sentiment inimical to the practice of dueling; the first was presented in 1828, by Mr. Long of North Carolina, and was intended to prevent the practice of duelling. Ten years later two other resolutions were introduced. The reason for their presentation at this time is apparent. On the 24th of February, 1838, Jonathan Cilley, a member of Congress from Maine, was killed in a duel with William J. Graves of Kentucky, also a member of Congress. On the 5th of March, Mr. Morgan of Virginia introduced the first of these resolutions, restricting all who should be connected with a duel, even including the seconds or the bearer of the challenge, from holding office. The attempt to expel Graves from the House took place in the following December. Mr. Cushman of New Hampshire, a Northern man, offered a similar amendment. This was the last attempt to amend the Constitution in this particular.

101. POOR RELIEF.

The disposition to make the Constitution a code of laws reached the fullest expression in an amendment to invest the central Government with the power and duty of legislating for the care of the poor. This suggested a radical departure from the system then in use and since followed. This amendment was proposed by the convention which ratified the Constitution in Rhode Island in 1790. It provided "that Congress should have power to establish a uniform rule of inhabitancy and settlement of the poor of the different States throughout the United States.""

Illustration, see Niles' Register, Vol. xx. pp. 191, 255.

? Illustrative of this, the following: "A History of the United States," by B. J. Olney, A. M.. New Haven, 1836. "Constitution of the United States of America." Printed by Francis Hart & Co., 63 Cortland street, New York. (No date.) "A History of the

United States," by John Frost, Philadelphia, 1843. In

History of the United States,

by Emma Willard, New York, 1829, it appears as the XV amendment. The first twelve sent out by the First Congress all being given as if ratified.

102. MARRIAGE AND DIVORCE.

Less sweeping is a proposition affecting personal rights and duties which arise out of the confusion caused by the different laws regulating marriage and divorce in the various States. At present a marriage in one State may be void in another; and serious complications arise as to inheritance and other questions. A national law for marriage and divorce is plainly unauthorized by the Constitution. In order to remove this difficulty, there have been five amendments proposed since 1884 to give Congress power to pass uniform laws on these subjects. The proposition of Senator Dolph, in 1887, led to an interesting debate, but nothing was accomplished. In 1871 there was an amendment presented by Mr. King of Missouri, which prohibited the intermarriage of persons of the white and colored races. From the preamble of this resolution it is evident that its author supposed that the States were deprived by the fourteenth amendment of the power to prohibit such marriages. The courts in general have not so held, and in several States mixed marriages are prohibited.3

103. HABEAS CORPUS, FREEDOM OF SPEECH AND OF THE PRESS.

The proposed amendments of the last half century have, however, been directed rather to the increase and protection of personal rights and privileges than to their abridgment. Since the adoption of the Bill of Rights there have been but two attempts to add to the Constitution further guarantee in regard to the rights of the press and of free speech and of the right of the people to assemble and to be protected against the military power.1

An effort to incorporate into the Constitution such a provision was made by Senator Saulsbury of Delaware, April 8, 1864, when he presented a long series of amendments as a substitute for the thirteenth amendment, then under discussion. The larger portion of the amendments of this series related to slavery, but the first few were more properly general guaranties

App., Nos. 1605, 1609, 1656, 1688, 1736. Such an amendment reported adversely in Fiftysecond Congress, first session. Strong minority report. H. Rep., vol. 4, No. 1290. App., No. 1339. See post, par. 172.

Cooley, Const. Law, p. 240, note 1; Hitchcock, Am. State Const., pp. 26-27. Twelve States by statute, two in the constitution.

4 The New York convention proposed an amendment prohibiting the suspension of the habeas corpus for a longer time than six months or until twenty days after the meeting of the Congress next following the passing of the act for such suspension. App., No. 55.

of the rights of the individual. The first declared the right of the people peaceably to assemble and worship God according to the dictates of their conscience. In this connection it is interesting to recall that this is the only amendment regularly introduced which proposed to insert the word God into the Constitution, although numerous petitions have been presented from various religious societies for some acknowledgment of God in the Constitution. The second of these amendments, while declaring that the use of the public press shall not be obstructed, provided that "criminal publication made in one State against the lawful institution of another State shall not be allowed." In reality, therefore, this amendment offered no further guarantee of the freedom of the press, but, on the other hand, proposed placing restrictions upon the utterances against the institution of slavery. The remaining propositions declared that the right of free speech should not be denied; that access of citizens to the ballot box should not be obstructed either by civil or military force; that the military shall always be subordinate to the existing judicial authority over citizens; that the privilege of the writ of habeas corpus shall never be suspended in the presence of judicial authority, and that the militia of a. State or of the United States shall not be em ployed to invade the lawful rights of the people of any of the several States.

2

A very similar but even longer series of amendments was proposed by Senator Davis of Kentucky, an Old Line Whig, in December of this same year. He submitted these as the basis of all existing difficulties, and desired that they should be considered by a convention of the States which he proposed should be assembled "for the purpose of bringing about the restoration of peace and union and the vindication of the Constitution." The resolution contained a series of detailed guaranties to the people not only of all the rights mentioned in the first ten amendments, but also of several other inherent rights and liberties of the people which had been and were being infringed by such acts as the suspension of the writ of habeas corpus, by the proclamation of the President and its subsequent approval by Congress, and the trial of citizens by military tribunals even in States distant from the seat of war, and certain other acts incidental to the exercise of the wai

App.. Nos. 999–1002.

2 See post, par. 177.

power.1 It forbade all such invasion of the rights of the people, and declared that "the infraction of any of these rights and privileges shall be held to be both a grievous private wrong and a public crime, and all persons who may commit it to become infamous and to be further punished by law without pardon or commutation."

These two series of amendments were evidently presented not with the expectation of their adoption, but rather as an arraignment of the President and the party in power and as a protest against the acts already mentioned.

104. PROTECTION OF PERSONAL LIBERTY.

Most of the propositions dealing with questions of personal relations up to the civil war were assertions of constitutional principles. At the close of the war another very important group commands our attention. These, for the most part, concerned the method by which the principle of individual liberty might be secured from assault. The thirteenth amendment, conferring freedom upon all the slaves, will naturally be treated under the head of amendments affecting slavery. It was supplemented by the fourteenth amendment, although the provisions contained in the first section of this article, as interpreted by the courts, are not confined in their application to any one class of persons, yet inasmuch as it was simply intended to protect the freedmen, it will be considered under the same head as the thirteenth amendment. It seems convenient to mention in this connection the only amendment which has been proposed dealing expressly with the Indian. The legislature of Georgia included in the call issued by her in 1833 for a convention to amend the Constitution a clause calling for an amendment definitely settling the rights of the Indian.3 The need of such

1 1 App., No. 1039b. See ante, par. 83. It guaranteed "the absolute right at all times and under all conditions of the people to the writ of habeas corpus and to trial by jury;" the exemption of all persons, except those in the Army and Navy, from arrest and immunity from trial and examination by military tribunals; that the military power was never to be brought into conflict with the civil authority, but should be employed to uphold the law and the courts. It guaranteed to the people at their elections the right to vote for those whom they prefer without constraint or intimidation; to freely discuss and pronounce their opinion on all public measures and the conduct of public officers; to their right to all sources of information by the purchase and transmission of books, news papers, etc., without any obstruction, and to free trade and commerce with their fellowcitizens; to protection in their private property, which was not to be taken except to subserve some operation of the Federal Government, and then to receive full compensation or indemnity, as well as for all damages sustained by reason of the orders of the military officers of the United States. See Bryce, 1, pp. 54, 55.

2 Post, par. 123.

3 App., No. 625.

an amendment had been suggested by Georgia's almost continuous struggle with the United States courts over the rights of the Creek and the Cherokee nation.

105. SLAVERY PROPOSITIONS BEFORE 1860.

Considering the long and violent legislative struggle over slavery, which lasted through a quarter of a century, it is remarkable that there were but few propositions to amend the Constitution in this respect before 1860. In addition to the amendment with regard to abolishing the representation for the slave population, introduced just previous to 1808 and again in 1815, and the resolution of Massachusetts, presented in 1844, all of which have been dealt with elsewhere,' there were a few others aimed either at the protection or abolition of slavery.

As early as 1818 Mr. Livermore of New Hampshire introduced a resolution prohibiting slavery, which failed to receive the consideration of the House.2

Again, in 1839, J. Q. Adams tried to introduce a series of amendments abolishing hereditary slavery after 1842, forbidding the admission of slave States after 1845, and prohibiting slavery or the slave trade at the seat of government. Shortly after the compromise of 1850 an unsuccessful attempt was made still further to protect the interests of the slavocracy by the proposition of Mr. Daniel of North Carolina, that no amendment should be made abolishing or affecting slavery in any State without the concurrence of the slave States. In the same year Mr. Disney of Ohio tried twice in vain to secure the consideration by the House of an amendment to the Constitution which asserted the rights of local government. This was evidently prompted by a desire to insure the security of slavery, for it declared "that the people of every community have an inherent right to form their own domestic laws and to establish their own local government when they do not conflict with the Constitution," and, further, "that the will of the people of the District of Columbia ought at all times to govern the action of Congress in relation to the existence of slavery within its limits."6

1 Ante, par. 22.

2 App., No. 474.

Sketch of the History of Slavery, by Cooley; Story, II, Chap. XLVI.

App., Nos. 697, 698, 699.

4 App., No. 764.

Cadwalader of Pennsylvania, on December 15, 1856, gave notice of his intention to introduce a similar amendment. H. J., Thirty-fourth Congress, third ses

sion, p. 114.

App., No. 758.

6 For amendments before 1860 in regard to aiding the colonization of freedmen, see post,