railroads and speculators, that any further amendments upon this subject were suggested. In 1871 Mr. Coghlan of California proposed an amendment prohibiting the disposal of the public lands except to actual settlers.' The motion to suspend the rules and pass the resolution was lost. The following year Mr. Coghlan tendered the same resolution. The only other proposition to amend the Constitution in this particular was offered in this same year. The time is now passed when such an amendment would be productive of good, and it seems unlikely that the power of Congress "to dispose of the territory and other property of the United States" will be abridged.

part of the

96. RELATION OF THE UNITED STATES WITH INDIVIDUALS. Under the head of personal relation, are without doubt the most important class of proposed constitutional amendments. As proof of this statement, it is only necessary to recall that all but two of the fifteen amendments that now form Constitution relate to the rights and duties of persons. First in point of time came that series of amendments which were added to the Constitution so soon after the organization of the Government "as to justify the statement that they were practically contemporaneous with the adoption of the original." These were dictated by the jealousy of the States, as "further express limitations upon possible powers of the Federal Government."

Down to 1860, a period of over sixty years, but few amendments were offered touching the relations of the General Government with individuals, although during the greater part of this period a contest was going on over the institution of African slavery, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation. It was only upon rare occasions and at infrequent intervals that either side tried to accomplish their end through an amendment. Doubtless all recognized the futility of such an attempt.

It was therefore not until 1860 that any general movement was made still further to define the relation of the General

App., No. 1340.

"App., No. 1357.

3 App., No. 1350. Similar to Mr. Coghlan's, save that grants of land might also be made for common school education of the people of the respective States and Territories. 4Slaughterhouse Cases, 16 Wall., 125.

Then it was that an ava

Government with the individual. lanche of propositions fell upon Congress, urged on by a desire of preserving the Union, and with some hope that the country might possibly in such a crisis ratify an amendment.

With the outbreak of the rebellion these proposals for the moment ceased, but the exigencies and results of the war soon gave rise to a new order of amendments. The provisions of some of these were incorporated in the thirteenth, fourteenth, and fifteenth amendments. "These reconstruction amendments," says Mr. Justice Swayne in his dissenting opinion in the Slaughterhouse cases, "are a new departure and mark an important epoch in the constitutional history of the country. They trench directly upon the power of the States and deeply affect those bodies besides. They are in this respect at the opposite pole from the first series." In the years since, amendments have been frequently presented still further to increase the power of the General Government in this sphere, in order to secure the better protection of the individual in the exercise of his civil and political rights.

97. THE FIRST TEN AMENDMENTS.

In many of the States opposition to the ratification of the Constitution was based upon the absence of specific reservation of the rights of the people. The precedent of the great English declaratory statutes had been followed in the elaborate Bill of Rights which prefaced most of the State constitutions.2 In vain did the friends of the Constitution urge that the General Government was in its nature limited, and that all rights not expressly granted must be retained. The people did not feel secure in the enjoyment of life, liberty, and property without a written guaranty to protect them from encroachments of the General Government. To this end one hundred and twenty-four articles of amendment were proposed by the seven conventions which suggested additions to the Constitution.3 In this numerous series, in addition to the miscellaneous sug

1 Slaughterhouse Cases, 16 Wall, 125.

2 Stevens, Sources of the Constitution of the United States, pp. 211-213.

3 Massachusetts, 9 amendments; South Carolina, 4; New Hampshire, 12; Virginia, 20; New York, 32; North Carolina, 26; Rhode Island, 21. The Rhode Island series was not passed until 1790, and hence only the 103 propositions passed by the other six conventions were before Congress at the time they drew up the 12 they sent out to the States. For admirable treatment of the origin of our Bill of Rights see Stevens, Chap. VIII, also Story, 1, pp. 211-213. App., Nos. 1-124.

gestions treated elsewhere,' were included many specific guaranties of individual rights.

In response to this general demand, Mr. Madison, early in June, introduced in the first session of the First Congress a series of amendments embracing the most important of the propositions recommended by the different State conventions.2 The special committee of one from each State to whom the series was referred, reported them back in a modified form.3 After a long debate in the Committee of the Whole, during which many changes were proposed, and not a few effected, seventeen amendments finally passed the House of Representatives by the necessary two thirds majority. Two of these were rejected by the Senate, one affording protection to the individual against a State infringing the rights of trial by jury, the right of conscience, freedom of speech and of the press, and the other in regard to the distribution of power among the departments.

6

The fact that an amendment protecting the individual from State encroachment was included in the series of amendments passed by the House would seem to indicate that the members of the First Congress considered the first ten amendments as binding only against the General Government. The question as to the extent of their application has frequently come before the United States Supreme Court, and that body has repeatedly declared that the first ten amendments do not guarantee the individual against the State."

10

The remaining fifteen were by compression and modification in the Senate reduced to twelve. After a committee of conference had still further modified some of the articles, the series of twelve received the approval of two-thirds of both Houses of Congress, and went out to the States for their ratification. Subsequently the series, except the two in regard to

1 Ante, pars. 9, 12, 13, 16, 18, 22, 28, 29, 30, 31, 56, 62, 63, 70, 73, 75, 77, 80, 86, 90. Post, pars. 99. 101, 103, 116, 137, 138, 152, 157, 158, 161, 162, 163, 164, 181.

App., Nos. 126-146. Story, 1, p. 211, note 3.

App., Nos. 147, 148, 149, 154, 155, 158, 160, 165, 166, 169, 173, 177, 179, 181, 183, 188, 190, 193. 4 App., Nos. 147-214, also 231, 232, 234–240.

App., Nos. 215-230, 233.

App., No. 228.

App., No. 230; see ante, par. 7.

"As in the decision given in Barron v. Baltimore, 7 Peters, 243, and United States v. Cruckshank, 92 U. S., 542.

"App., Nos. 220, 221, 227, 229, 242, 243, 254, 266, 288, 291, 292, 293.

10 App., Nos. 295, 296, 297.

the apportionment and compensation of members of Congress,' were ratified by a sufficient number of the States, and the first ten amendments, or, as they are sometimes termed, the American Bill of Rights, became part of the Constitution."

98. DOCTRINAIRE PROPOSITIONS ON THE RIGHTS OF MAN.

3

Of the various amendments proposed during the consideration by Congress of this series of propositions, the greater part involved only slight change, and more often merely verbal. Several, however, are worthy of notice as showing the political philosophy of the day. Mr. Madison placed as the first amendment in the series presented by him an article defining the basis of power. It provided "that there be prefixed to the Constitution a declaration that all power is origi nally vested in, and consequently derived from, the people. That government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, inalienable, and indefeasible right to reform or change their Government, whenever it may be found adverse or inadequate to the purposes of its institution."

The committee reported a much briefer preamble, declaring that the government was derived from the people. After being adopted in Committee of the Whole it was stricken out by the House.

1 App., Nos. 243, 295. Sce ante pars. 13, 22.

2 App., No. 297, for list of States ratifying. All the States except Massachusetts, Connecticut, and Georgia acted favorably. In Massachusetts and Connecticut the influence of the Federalist leaders who had foolishly opposed the amendments in Congress predominated. The Massachusetts legislature on a concurrent resolution, rejected the first, second, and twelfth amendments, and agreed to the others, and ordered the appointment of a committee to bring in a bill or resolve declaring their adoption. The committee does not seem to have reported, and finally action was not taken. Senate Journal, Massachusetts, vol. 10, p. 192; Journals of the House of Representatives, Massachusetts, vol. 10, pp. 168, 169, 209, 217, 218. At the same time a concurrent resolution was passed appointing a joint committee "to consider what further amendments are necessary to be added to the Federal Constitution and report." The committee reported a series of twelve proposi tions, inasmuch as they were "convinced that the people of this State, when they adopted the Constitution of the United States, wished for and expected other and further amendments than those which have been recommended, and that they are now anxious to have their liberties more explicitly secured to them." For reprint of the report, see the American Historical Review, Vol. II, No. 1, pp. 99-105. "This group of ten amendments may, therefore, be regarded as a supplement or postscript to the original, and should not be regarded in the same category with the subsequent independent amendments." Report of New York State Bar Association, Vol. XIII, p. 139.

App., No. 127.

App., No. 147.

Subsequently there were three attempts, when the amendments were being considered in the Senate, to add an additional paragraph containing sentiments similar to the preamble quoted from Mr. Madison, all of which, however, proved unsuccessful. That the social-compact theory was popular in that day is shown by one of these resolutions,' which opens with the declaration that "there are certain natural rights, of which men, when they form a social compact, can not deprive or divest their posterity, among which are the enjoyment of life and liberty," etc. Another declares that magistrates are the trustees and agents of the people, and are therefore "at all times amenable to them." 2 The third asserts that the Government ought to be instituted for the common benefit and protection and security of the people, and that "the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind." 3

Two further attempts were made in the Senate to add a further guaranty of individual liberty. One of these proposed amendments declared that "every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied or delayed." The other proposition was similar, only still more explicit. Both were rejected.

99. TITLES OF NOBILITY.

The provisions of the Constitution forbidding any person holding office under the United States Government, without the consent of Congress, from accepting any present or title from any king, prince, or foreign State did not seem sufficiently stringent to some of the State conventions. The ratifying conventions of Massachusetts, New Hampshire, New York, and, later, Rhode Island, proposed amendments either forbidding Congress from ever granting its consent, or for the accomplishment of the same end proposed eliminating the clause "without the consent of Congress." A similar change was proposed in the Senate and twice in the House of the First Congress, during the discussion of the subject of amending the Constitution, but failed to meet the approval of either