President, in such such manner as Congress may by law prescribe, that such violence exists in such State." This amendment was prompted by a desire to give Congress constitutional authority for using force in the Southern States to put down the Kluklux Klan and other similar organizations which were terrorizing the negro, knowing full well that the State governments, as provided in the Constitution, would not call on the National Government for assistance, as the party in power in the most of these was politically opposed to the negro.2

86. ACKNOWLEDGMENT OF SECESSION.

Remembering the frequently repeated argument of 1860-61, that the case of the rebellion of a State had not been foreseen by the framers of the Constitution, it is interesting to observe an amendment proposed by the ratifying convention of North Carolina; it provided that "Congress should not declare any State to be in rebellion without the consent of at least twothirds of all the members present in both Houses."3 Not until the period just previous to the civil war were any further amendments relative to the secession of a State introduced in Congress, but among the numerous propositions presented during the second session of the Thirty-sixth Congress were several upon the subject which was then uppermost in the public mind. December 17, 1860, three days before the ordinance of secession was passed by the South Carolina convention, Mr. Sickles of New York presented a resolution to amend the Constitution, providing that "Whenever a convention of delegates, chosen in any State by the people thereof under the recommendation of its legislature, shall rescind and annul its ratification of the Constitution, the President shall nominate and, by and with the advice of the Senate, shall appoint commissioners, not exceeding three, to confer with the duly appointed agents of such State, and to agree upon the disposition of the public property of the United States lying within such State, and upon the proportion of the public debt to be assumed and paid by such State; and upon the approval of the settlement agreed upon by the President and its ratifi

'App., No. 1328.

* The resolution was referred to the Committee on the Judiciary, who subsequently reported it adversely.

3 App., No. 89. For sketch of secession movements, see Foster, Com. on the Const., secs. 31, 36.

cation by two-thirds of the Senate present, the President shall forthwith issue his proclamation declaring the assent of the United States to the withdrawal of such State from the Union." In the following February, Mr. Vallandigham of Ohio, in connection with his well-known proposition for the division of the Union into four sections, by which division the slave States practically formed one section, proposed au article forbidding the secession of a State without the consent of the legislatures of all the States of the section to which the State proposing to secede belongs, and empowering the President "to adjust with seceding States all questions arising because of their secession; but the terms of adjustment shall be submitted to the Congress for their approval before the same shall be valid.”2

87. LIMITATION ON SECESSION.

The above amendments were manifestly intended to facilitate the peaceful secession of the Southern States. In the same session three other amendments were presented either to restrict or to absolutely prohibit such action. The one introduced by Mr. Florence of Pennsylvania, January 28, 1861, as one of his series of compromise amendments, provided that "No State, or the people thereof, shall retire from the Union without the consent of three-fourths of the States."3 This was referred to the Select Committee on the Condition of the Country. Two weeks later Mr. Ferry of Connecticut proposed a resolution instructing the Committee on the Judiciary "to inquire into the expediency of so amending the Constitution as expressly to forbid the withdrawal of any State from the Union without the consent of two-thirds of both Houses of Congress, the approval of the President, and the consent of all the States." Objection was made to the resolution, so it was not received.*

In the closing days of this session, after seven States had already withdrawn and several others were preparing to take similar action, Senator Doolittle of Wisconsin, who subse

1 App., No. 824. Referred to the Select Committee on the Condition of the Country.

2 App., No. 904. It would seem that the same proposition was reintroduced by him in 1862. Riddle, Recollection of War Times, pp. 165-166. See also App., No. 977; ante, par. 48.

App., No. 891. 4 App., No. 910.

quently opposed the passage of the reconstruction amendments, submitted an amendment absolutely prohibiting the secession of a State.1

This was the last amendment of this character for the time being, but in 1864, Mr. Saulsbury of Delaware included in the series of compromise propositions, offered by him as a substitute for the thirteenth amendment, a provision prohibiting the withdrawal of a State "without the consent of threefourths of all the States, expressed by an amendment proposed and ratified in the manner provided for in the Constitution." In the three following years amendments were introduced, two of which declared the perpetuity of the Union under the Constitution, and prohibited any State from passing any ordinance of secession. One proposed placing an article in the Constitution defining the status of a State in rebellion. This amendment was based upon the principles of the so-called "State suicide theory." By its provisions a State in rebellion was to be considered "as having forfeited all its rights and privileges as a State," and as having reverted to the condition of a Territory, "subject, like all other Territories, to the disposition of Congress."4 These amendments were either tabled or indefinitely postponed, as Congress doubtless felt that the result of the war guaranteed better than any amendment could do the perpetuity of the Union unimpaired.5

App., No. 952, to be added to the peace convention amendments. It was in these words: "No State, or any part thereof, heretofore admitted or hereafter to be admitted into the Union, shall have power to withdraw from the jurisdiction of the United States, and this Constitution and all the laws passed in pursuance of its delegated power shall be the supreme law of the land therein, anything contained in any constitution, act, or ordinance of any State legislature or convention to the contrary notwithstanding." 2 App., No. 1016.

3 App., Nos. 1063, 1199. No. 1065 declared that "Paramount sovereignty shall reside in the United States, and every citizen thereof, or of any State or Territory therein, shall owe faith, loyalty, and allegiance to the United States." In 1880 an amendment guaran. teeing both the integrity of the Union and that of the States was presented. App., No. 1509; see ante, par. 85.

4 App., No. 1106.

5 The constitutions of several of the States, adopted in the years immediately succeeding the civil war, and most of them States which had been in rebellion, contain various declarations, as follows: (1) The constitutions of eight States declare the Constitution of the United States the supreme law of the land. (2) Five declare that the State shall always remain a member of the American Union. (3) Six, that no law shall be passed in derogation of the paramount allegiance of the citizens of the State to the United States Government. (4) Five, that there is no right on the part of the State to secede or dissolve its connection with the Union. (5) Six, that all attempts at secession ought to be resisted by the State (Virginia, North Carolina, Florida, and South Carolina); by the Federal Government (Nevada). Stimson, Am. Statute Law, 1, p. 39, pars. 190-192.

88. LIMITATIONS ON THE STATES BY THE "RECONSTRUCTION AMENDMENTS."

The effort of the Southern States to throw off the authority of the General Government resulted in the only amendments which have ever passed limiting the powers of the States.' First, by the thirteenth amendment the establishment or perpetuation of slavery is forbidden. Second, by the fourteenth amendment any discrimination against citizens is forbidden, that article declaring that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protections of the laws." Third, by the fifteenth amendment the requirement of certain qualifications for the suffrage is forbidden.

Already the individual was amply protected from the tyranny of the central power, now the sphere of individual liberty was extended by the imposition of restrictions upon State aggression. Except for the power of enforcement, no additional power is given to the United States by the "reconstruction amendments." They are in terms a subtraction from the powers of the States and the United States, but in effect "the position of the United States is changed from that of a passive noninfringer of individual liberty to that of an active defender of the same against the State." 2

89. TERRITORIAL POWERS.

Few subjects occupy so many pages of the statute books, the documents of Congress, and the reports of the Supreme Court as those relating to the territory of the United States, and the questions growing out of it. Few subjects have led to such passionate political debates as the disposition of public lands and the erection of Territories. Upon few important subjects have there been so small a number of amendments proposed. Notwithstanding the fact that the Constitution is silent as to the annexation of territory, and very vague as to the regulation and government of it, the only subject upon which numerous attempts have been made to secure modifications of the

In the First Congress the House passed an amendment protecting the individual against a State infringing the right of trial by jury, the right of conscience, freedom of speech and the press. App., No. 228. See post, par. 97.

2 Burgess, Political Science and Const. Law, 1, p. 185.

Constitution, is the establishment of slavery in the Territories, and that phase of the subject will be taken up later.'

The one portion of the territory over which the United States has the clearest power of government-the District of Columbia-has given rise to more numerous propositions.

90. THE EXCLUSIVE POWERS OF CONGRESS OVER THE SEAT OF GOVERNMENT AND OTHER SITES.

The provision of the Constitution which vested in Congress the exclusive power of legislation over the Federal town and other Federal territory within the States seemed to some of the State conventions to be too broad, and calculated to cause conflict of jurisdiction. Hence, the conventions in Virginia and North Carolina proposed an amendment restricting the power of legislation, giving to Congress authority only over such regulations as respect the police and good government of such territory. The proposal made in the Senate during the first session of Congress, to add such an amendment to the series to be submitted to the States, failed.3

The New York ratifying convention also recommended two amendments on this subject. The first of these provided that the inhabitants of the district in which the seat of government should be situated should not be exempt from paying the like taxes, etc., as shall be imposed on the other inhabitants of the State in which such district may be, neither should any person be privileged within the district from arrest for crimes committed or debts contracted without the district. In this connection it is interesting to recall that the location of the seat of government had not yet been fixed, and that New York had strong reason to hope that it might be located within her boundaries.

The other proposal of the New York convention had reference to the same right of Congress to legislate over Federal territory situated within the States. It provided, as did a similar amendment presented by Mr. Tucker in the First Congress, that Congress should not make any law to prevent the laws of the States respectively, in which the places may be, from extending to such places in all civil and criminal matters, except to such persons as are in the service of the United States, nor to them with respect to crimes committed without such places.

Post., pars. 109-112. 2 App., Nos. 37, 90.

3 App., No. 283.

5 App., No. 57.

4 App., No. 56.

6 App., No. 202.