was agreed to, to meet the objection of the slave States.' The second limitation was suggested by Mr. Sherman, just before the close of the Convention, after the failure of his motion already referred to. It provided that "No State shall without its consent be affected in its internal police or deprived of its equal suffrage in the Senate." This was opposed by Madison on the ground that its adoption would be but the signal for the application for special provisions from every State. The measure only received the support of the three small States represented in the Convention, namely Connecticut, New Jersey, and Delaware. Having failed to secure the guaranty he thought necessary, Mr. Sherman, determined to guard the interests of the small States, moved to strike out the entire article in regard to amendment, but this did not even command the support of all the small States. At this critical moment Gouverneur Morris moved to add the provision guaranteeing to each State its equal representation in the Senate. "This motion," says Madison in his notes, "being dictated by the circulating murmurs of the small States, was agreed to without debate or opposition."3 Such, in brief, is the history of the origin of the amending power as embodied in the Constitution of the United States.

The results of the deliberations of the Convention appear in Article V of the Constitution, which reads as follows:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

2. PURPOSE AND SCOPE OF THE MONOGRAPH: DIVISION OF THE PROPOSED AMENDMENTS INTO PERIODS.

Defects in the Constitution have revealed themselves from time to time, and the amending power has often been invoked,

1 Elliot, Vol. v., p. 531. See Rutledge's remarks. * Ibid., 531.

H. Doc. 353, pt 2—2

3 Ibid., pp. 551–552.

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in a few instances successfully, as the fifteen amendments show. There have been voluminous treatises by eminent jurists and publicists, devoted to the discussion and interpretation of these fifteen amendments which have been incorporated into the Constitution, but very little has been written in regard to the manuer of securing amendments. In fact, no attention has been paid, with rare exception, to the amendments which have failed, or to that numerous class of propositions which never went beyond the preliminary stages.

1

It is the purpose of this monograph to investigate this uncultivated field, and to endeavor to show, by means of a systematic examination of the records, what deficiencies have been felt and what remedies have been proposed. The material upon which this work is based has all been compiled from the records of Congress. In this study of the proposed amendments only those have been selected which were actually brought to the official notice of Congress, either by its members, the State legislatures, or the Presidents, from the time. of the adoption of the Constitution by the conventions in the different States to the end of the Fiftieth Congress, March 4, 1889.2

It is difficult to avoid the conclusion that it was the expectation of the members of the Federal Convention that a frequent use of the amending power would be made. They doubtless thought that the plan adopted would secure the desired end whenever the popular will would justify a change. The action of the State conventions and the early amendment of the Constitution seemed to indicate that this view was correct. It will be of interest, therefore, to see to what degree their expectation has been realized, by an examination of the proposed amendments, and of the movements to secure their adoption. Before, however, passing to the consideration of particular amendments, it seems desirable to introduce a preliminary chapter which shall present a general view of the attempts to amend the Constitution, in order that the reader may have a comprehensive idea of this phase of the constitutional history of our country.

Including an examination of the original bills, where text is not given in the Congressional Record, and circular letters of the governors of the States.

2 No notice has been taken of petitions.

See Hamilton's remarks in Federal Convention, Elliot, Vol. v, p. 530; also, the Federalist, No. 43, Hamilton's ed., p. 346.

It is the writer's purpose in this chapter to treat the proposed amendments chronologically by periods, aiming to give the general characteristics of each period, and in the subse. quent chapters to consider the same topically.

Upward of 1,300 distinct resolutions, containing over 1,800 o propositions to amend the Constitution, have been offered in the National Legislature during the first century of our history under the Constitution. These naturally fall into four distinct periods: The first period embracing the years 1789-1803, and aiming at the perfection of details; the second period, including the years 1803–1860, and covering general alterations; the third period, comprising the years 1860-1870, and relating to slavery and reconstruction; and the fourth period, extending from 1870 to 1889, and proposing general emendations.

3. THE FIRST PERIOD: 1789-1803.

This period, which covers the early years of our history, is characterized by the passage of the first ten amendments, known as the Bill of Rights, in response to the spirit of dissatisfaction expressed by the series of 124 amendments proposed by seven of the States at the time of their ratification of the Constitution, and the general demand of the country for further limitations upon the powers of the Federal Government."

The period is further marked by a number of amendments intended to correct the minor defects which had become apparent in the working of the Constitution. The provisions of some of these became crystallized in the eleventh and twelfth amendments.3

Of the one hundred amendments which have been suggested affecting the status of the judiciary, only one has been discovered which would nullify the provisions of the eleventh amendment. Although the twelfth amendment remedied the fault discovered in the electoral system, yet the system itself has given rise to more dissatisfaction than any other feature of our Constitution, as is shown by the fact that more amendments have been proposed on this subject than upon any other.

4. THE SECOND PERIOD: 1804-1860.

In this period, extending over a longer term of years than the other three together, were introduced upward of four hundred

'Down to the close of the Fiftieth Congress in March, 1889.

2 Appendix, Nos. 1-124.

App., Nos. 321, 358.

amendments covering a wide field of subjects.' Propositions contemplating changes in the election, term, removal, compensation, and duties of members of the legislative, executive, and judicial departments were the most numerous.

This being the period of conflict between the broad and strict constructionists, it is characterized by many attempts to confirm or prohibit, by amendment, practices established by custom. Of this nature were the amendments granting appropriations for internal improvements, and prohibiting or authorizing the establishment of a national bank; they were introduced periodically during the years 1813 to 1832, as the Congressional discussion or Presidential message or veto suggested. A closer examination of the scattered propositions shows that they are indices of the political struggles of the time; thus, it is evident that the trial of Judge Chase suggested the several propositions introduced during the years 1805 to 1809 in regard to the term and removal of judges. The resolutions proposing the apportionment of Representatives and direct taxes to the free inhabitants, and prohibiting the importation of slaves, introduced previous to 1808, were called out by the approach of that year when the agreement prohibiting amendments on these questions would terminate. As a result of the war of 1812 the members from Connecticut and Massachusets, acting upon the instruction of their respective State legislatures, introduced a set of interesting amendments, the work of the Hartford convention. In 1833 Georgia offered a petition for the call of a convention to consider a series of thirteen amendments, the greater number of which were doubtless suggested by the recent nullification by South Carolina, and her own contest with the Federal judiciary, arising out of the Indian land question.3 President Jackson's numerous vetoes, those of the national-bank and internal-improvement bills being especially obnoxious, gave rise to resolutions providing that a bill might be passed over the veto by a majority vote. The presence of a surplus caused Mr. Calhoun in 1835 and in 1836 to present a proposition providing for its distribution among the States. The crisis of 1837 led to the introduction of amendments prohibiting the issue of State bank notes. President Tyler's erratic course led to another flood of resolutions proposing amendments restricting the éligibility of the President to a

App., Nos. 363-777.

2 App., Nos. 424-431. 432-439, 440–447.

3 App., Nos. 613-625.

single term, and enabling bills to be passed over the veto by a majority vote, as well as to amendments preventing a pocket veto.

The proofs are many of a widespread dissatisfaction on the part of the country with both the existing method of electing the President and the length of the Presidential term. At four different times, between the years 1813 and 1822, an amendment proposing that the electors should be chosen by districts was passed by one House of Congress. During this period forty-four amendments of a somewhat similar character were offered in Congress. The failure of the electors in 1824 to choose a President, and the subsequent defeat of Jackson by the House of Representatives, gave rise to a very large number of propositions upon the choice of the Executive, so many in fact, that one gentleman introduced a resolution that amendments should only be proposed decennially. Some of these stipulate that in no case shall the election devolve upon the House of Representatives, and others, prompted by the alleged bargain between Clay and Adams, provide that in case the election should fall to the House, no member of Congress should be eligible to the Cabinet. Various plans for the election of the President without the intervention of electors were suggested. Some of these proposed a direct vote by the States, more by districts, and twenty-two declared for a popular vote. Among so large a number of propositions there were naturally some of a novel character. The most striking of these were two suggesting the choice of President by lot. The first, introduced by Senator Hillhouse of Connecticut, in 1808, provided that the Senators should hold office for three years, and one-third retire annually, from the retiring Senators one should be chosen by lot as President for the ensuing year. The other, brought forward by Mr. Vinton of Ohio, in 1844 and again in 1846, arranged that each State should by popular vote elect from its citizens a candidate for the Presidency; from these candidates one was to be chosen by lot. The amusing details of this suggestion were, that as many balls as there are Senators and Representatives from each State, inscribed with the name of the State, shall be placed in a box. One ball shall be drawn from the box and the candidate elected by the State the name of which is upon the ball drawn out shall be President.

1 App., Nos. 359, 409, 485, 489.

3 2App., No. 571. App., No. 392. 4 App., Nos. 740, 744.