PREFACE.

This work is based upon the results of a careful search for proposed amendments in the Government documents covering the first century of the history of the Constitution. In many instances, especially during the last quarter of the century, the text of the proposed amendment is not given in either the journals or the Congressional Globe or Record, and in some cases the subject of the amendment is not even stated. In nearly all these cases it was possible to secure the text by consulting the file of the original printed drafts of resolutions and bills, which are to be found in the Senate document room in Washington.

It is probable that some amendments proposed by the various State legislatures have not been found, owing to the fact that some of these proposed amendments were not presented to Congress, and hence were not included in the Government records. Some cases of this kind have been found through an examination of the circular letters from the governors of the States proposing them directed to the governor of Massachusetts, which are on file in the Massachusetts archives in the State house at Boston. A complete list of such propositions would necessitate an examination of the journals of the legis lative bodies in all the States, most of which are still in manuscript form only, but it is believed that the most important propositions of this class have been found. It is scarcely possible that all the proposed amendments presented to Congress have been included, although care has been taken to reduce the omissions to a minimum.

Acknowledgments are due to Mr. Amzi Smith, superintendent of the Senate document room, Washington; to Mr. Andrew H. Allen, Chief of the Bureau of Rolls and Library, Department of State, Washington; to Mr. S. M. Hamilton, of the same Department, and to Mr. L. B. Proctor, secretary of the New York State Bar Association. All of these gentlemen courteously extended to me every facility for the examination of documents placed in their charge.

Above all I desire to express my indebtedness to Prof. Albert Bushnell Hart, of Harvard University, at whose suggestion the investigation of this subject was first undertaken, and to whose aid and encouragement its completion is in large measure due.

PHILADELPHIA, PA., October 7, 1897.

THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES DURING THE FIRST CENTURY OF ITS HISTORY.

By HERMAN V. AMES, Ph. D.

CHAPTER I.

A GENERAL SURVEY OF THE ATTEMPTS TO SECURE AMENDMENTS.

1. ORIGIN OF THE AMENDING POWER IN THE CONSTITUTION OF THE UNITED STATES: PROCEEDINGS OF THE FEDERAL CONVENTION.

The "fathers" of the Constitution were not sanguine enough to suppose that the organic law which they had framed was so perfect that it would never need to be altered.' The experience of the Government under the "Articles of Confederation" had produced the conviction that there was need of a system of amendment by which the Constitution could be made to conform to the requirements of future times.

The specific provisions of Article V, which defines the manner of securing amendments to the Constitution, were not so much the result of institutional growth-as is true of so many of the provisions of the Constitution-as of mature delibera tion and the spirit of compromise which characterized the work of the Convention. An examination of English and colonial precedents and of the State constitutions in force in 1787, as well as of the debates in the Federal Convention, proves the truth of this statement.2 The framers were here entering

'See Mr. Iredell's speech in North Carolina convention. Elliot's Debates, IV, 177. Report of New York State Bar Association, vol. XIII, p. 138.

2 However, the idea that provision should be made in the instrument of government itself for the method of its amendment is peculiarly American. Provision for the regular and orderly amendment of an instrument of government first appears in The Pennsyl vania Frame of Government of 1683. A similar provision reappears in the Act of Settlement of 1683, The Pennsylvania Frame of 1696, and The Pennsylvania Charter of Privileges of 1701. Each of these documents provides that it shall not be altered, changed, or diminished "without the consent of the governor" and six parts of seven of the assembly." No other colonial charter contained any provision for amendment. For text of above charter see Poore, Charters and Constitutions, II.

upon a comparatively new field. The colonists, although familiar with the English system, which enabled Parliament to effect fundamental changes in the constitution in the same way as in the statute law, were not inclined to follow this precedent. "Their constitutions, purporting to define the power of the several branches of the government, in no case permitted definitive amendments by the legislature." With few exceptions the State constitutions first framed contained no provison for their future amendment. By 1787, however, eight of the State constitutions contained such a provision. Three gave the amending power to the legislature, "but under restrictions which reduced it far below the power so familiar to our fathers in the Parliament." Five, under various restrictions, reserved the power for conventions. Not one made provision for amendment through the agency of either a convention or the legislative body. It was reserved for the Federal Convention to embody both methods in the draft it sent out to the States for adoption.

The desirability of some provision for amendment was admitted early in the session of the Federal Convention. Dif ference of opinion, however, developed later in regard to the method to be employed. Should the National Legislature or a convention called on application of the States propose amendments? Should a general convention, or conventions in the States, or the legislatures thereof, ratify the same? Further, what majority should be necessary to secure the adoption of an amendment? The matter first came before the Convention, May 29, 1787, through one of the articles of the Randolph plan, which read as follows: "Resolved, that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto." Pinckney plan, which was presented the same day, contained the first detailed suggestion of the procedure to be followed.

The

'It is true the legislatures had assumed power to declare their independence of Great Britain.

2Jameson, Const. Convention, p. 547. Story II, p. 576.

3 Maryland, 1776; Delaware, 1776; Pennsylvania, 1776 Georgia, 1777; Vermont, 1777. Jameson, p. 550, note 1.

Maryland, 1776; Delaware, 1776; South Carolina, 1778.

Pennsylvania, 1776; Vermont, 1777, 1787; Georgia, 1777; Massachusetts, 1780; New Hampshire, 1784. Only in Massachusetts and New Hampshire during this early period were the constitutions submitted to the people for ratification. See Davis Am. Const., Johns Hopkins Univ. Studies, vol. III, p. 472. Schouler, Const'al Studies, pp. 47-50. Elliot, Vol. v., pp. 123, 190.