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

1 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.

6

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.

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

3 App., No. 283.
4 App., No. 56.

5 App., No. 57.
"App., No. 202.

In subsequent years, after the seat of government had been located in the District of Columbia, and the population of the District had increased, the fact became more noticeable that its inhabitants-contrary to the general principles of our system of government-were deprived of the privilege of voting in Federal elections, and even had no voice in making their own local regulations. President Monroe, in 1818, in his annual message, called the attention of Congress to the anomaly existing in our system, and recommended to their consideration the problem whether an arrangement better adapted to the principles of our Government could not be devised, which will never infringe the Constitution nor affect the object which the provision in question was intended to secure.1

In 1844 a proposition was made to so amend the Constitution that Congress should retain the power of exclusive legislation over the Government buildings and grounds in the District of Columbia and in Federal territory situated in other States; but all rights of legislation over other parts of the District of Columbia should be retroceded to the States of Maryland and Virginia whenever the legislatures of these States should signify a willingness to accept the same. This amendment was probably suggested by the slavery question, as were several other propositions which will be considered in connection with the slavery amendments."

91. ABRIDGING TERRITORY.

The peace of 1783 left several perplexing boundary controversies affecting territory normally within the area of the United States. The British continued to occupy posts within the northwestern frontier; the Spaniards retained their hold in west Florida, above the parallel of 31°. In the southwest also, Georgia stubbornly laid claim to a large area of territory then occupied by Indians.

It is therefore easy to account for the presentation in 1794 of an amendment dealing with both these problems. This proposed amendment declared that the powers of the Government should not extend to curtail or abridge the limits of the United States as defined by the Treaty of Paris in 1783, nor should the

1 App., No. 480. Const., Art. 1, sec. 8, cl. 17.

2 App., No. 736.

3 Post, par. 112.

H. Doc. 353, pt 2—12

State rights of preemption to Indian hunting grounds within its limits, after a fair treaty and sale, be questioned.'

The Jay treaty of 1794 and the Spanish treaty of 1795 put an end to the exterior boundary disputes; and in 1802 a settlement of the Georgian land claims was reached. When, in 1826, and again in 1842, the negotiations with England threatened to deprive Maine of a part of the territory to which she asserted title, no attempts to secure an amendment is recorded.

92. ANNEXATION OF TERRITORY.

The next year after the Georgia controversy was laid at rest, the annexation of Louisiana brought on a new controversy with the New England States. No formal attempt was made to introduce an amendment in Congress relative to the annexation of Louisiana. It seems necessary, however, to consider certain amendments drawn up by President Jef ferson.2

In July, 1803, news arrived of the treaty concluded at Paris, April 30, between the United States and the French Republic, for the purchase of Louisiana. President Jefferson considered that there was no constitutional authority for the annexation of foreign territory by treaty, and prepared the following draft of an amendment which was to be submitted to the States: "The province of Louisiana is incorporated with the United States, and made part thereof, the rights of occupancy in the soil and of self-government all confirmed to the Indian inhabitants as they now exist." Then, after creating a special constitution for the territory north of the thirty-second parallel, reserving it for the Indians until a new amendment to the Constitution should give authority for white ownership, the draft provided for erecting the portion south of latitude 320 into a territorial government, and vesting the inhabitants with the rights of other territorial citizens.3

This draft he sent to his Cabinet, but none of them considered an amendment necessary. Jefferson was not ready to yield his views at once, and in August he proposed a new and briefer draft. "His first," Mr. Adams says, was "almost a

1 App., No. 326.

2See Henry Adams's History of the U. S. for extended accouat, Vol. II, Chap. IV, V, VI; Story, Vol. II, p. 168, note 1; Vol. 1, p. 373, note 2; Jefferson's Works, Vol. IV, pp. 500, 504, 505. For Federal opposition, see Fisher Ames's Works. Vol. 1, p. 323; Foster, Com. on Const., I, sec. 31, pp. 116-118.

3 Henry Adams, Hist. U. S., Vol. 11, pp. 86, 87.

constitution in itself." It read as follows: "Article XIII. Louisiana, as ceded by France to the United States, is made a part of the United States; its white inhabitants shall be citizens and shall stand as to their rights and obligations on the same footing with other citizens of the United States in analogous situations, save only that as to the portion thereof lying north of an east and west line drawn through the mouth of Arkansas River, no new State shall be established nor any grant of land made, other than to Indians in exchange for equivalent portions of land occupied by them, until an amendment to the Constitution shall be made for these purposes. Florida, also, whensoever it may be rightfully obtained, shall become a part of the United States; its white inhabitants shall thereupon be citizens, and shall stand as to their rights and obligations on the same footing with other citizens of the United States in analogous situations."1

Jefferson's party friends and advisers considered that the introduction of an amendment would be inexpedient, and tried to dissuade him from urging such a change. Finally their efforts met with success. In a letter to Senator Nicholas of Virginia, Jefferson writes: "I confess I think it important in the present case to set an example against broad construction by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction, confiding that the good sense of our country will correct the evil of construction when it shall produce ill effects."2

Nothing further was heard of amendments from the Presi dent, but Senator John Quincy Adams of Massachusetts, adhering to the views first set forth by Jefferson, after waiting in vain for some move from the Executive, finally, on the 25th of November, 1803, moved that a committee be appointed to inquire whether any, and if any, what further measures may be necessary for carrying into effect the treaty whereby Louisiana was ceded to the United States."3 His motion failed to be recorded, and the Senate unanimously laid it on the table.

505.

Lalor, 1, p. 609. Letter to Levi Lincoln of August 30, 1803. Works, Vol. IV, p. 504,

2 Adams, II. p. 91. See comments of Judge T. M. Cooley on Jefferson's attitude, in pamphlet entitled Louisiana, p. 16.

3 Annals of Congress, Eighth Congress, first session, p. 106. Adams said the annexation was "an assumption of implied powers greater in its consequences than all the assumption of implied power in the twelve years of Washington's and Adams's adminis trations put together." Cooley, Louisiana.