93. ADMISSION OF NEW STATES.

Only two other amendments have been offered relative to the admission of new States, except those presented in connection with the slavery question, which are treated under that subject. The first of these was drawn up by the Hartford convention, and brought to the attention of Congress at the same time as the other amendments proposed by this assembly in 1815. This amendment stipulated that no new State should be admitted without the concurrence of twothirds of both Houses of Congress.2

The New England States doubtless believed that such an amendment was necessary for their protection, in view of the fact that by means of the votes of the members from the new States measures inimical to their interests could be pushed through Congress. This had been the case in 1812, when war had been declared contrary to the desire of a large majority of the people of New England.3 This series of resolutions, as introduced by Massachusetts and Connecticut members in obedience to the instructions of their respective legislatures, called out resolutions of disapproval from the legislatures of several of the other States.1

The second proposition was not presented until over half a century later, in 1871, and was designed to prevent the too early admission of new States. It provided that hereafter no Territory or District should be admitted as a State that did not contain a population that would entitle it to at least one Representative according to the ratio of representation at the time of its application for admission."

1 Post, par. 110. Even in the Constitutional Convention hostility was shown by some of the members to new States, and an attempt was made to restrict their representation in the National Legislature. Mr. Gerry gave formal expression to this hostility in his motion of July 14: "That in order to secure the liberties of the States already confederated, the number of representatives in the first branch of the States, which shall hereafter be established shall never exceed in number the representation from such of the States as shall accede to this confederation." Elliot, v, p. 310. Four States favored it, five opposed it, and one, Pennsylvania, was divided.

2 App., Nos. 426, 434, 442. Story, 11, p. 169, note 2.

3 For address of the Congressional minority, see Niles' Register, 11, pp. 309-315.

4 Ante, par. 22, p. 45. The house of representatives of Massachusetts, in 1844-1845, passed strong State rights resolutions against the admission of Texas. H. J., February 28, 1845, p. 509. Foster, Com. on Const., I, p. 118.

5 App., No. 1341. In 1871, besides Delaware there were of the new States Nebraska, Nevada, and Oregon which did not have a population equal to the representative ratio. According to the census of 1890, the population of Delaware, Idaho, Montana, Nevada, and Wyoming, respectively, did not equal the ratio of representation now in force, which is one for every 173,901 inhabitants of a State.

94. REPRESENTATION OF THE TERRITORIES AND THE DISTRICT OF COLUMBIA IN CONGRESS.

Each Territory has long been entitled to send a Delegate to the House of Representatives, but he has no vote. In recent years, Delegates from the Territories have presented four distinct proposals in Congress to give them voting members in the House of Representatives. No important action has been taken relative to any one of them.'

The District of Columbia, although the seat of the Federal Government and more populous than some States, has under the Constitution no share in the Presidential and Congressional elections, and has not by law received even the privilege of sending a Delegate to Congress. One of the above-mentioned resolutions included the District of Columbia in its provisions.2 As recently as 1888 Senator Blair introduced an amendment to give to the District representation in the two Houses of Congress and votes in the electoral college. Since the admis sion of six new States, in 1889 and 1890, the question of changing the peculiar status of an inhabitant of the Territories is not now as urgent as formerly, but the problem in regard to the District of Columbia still confronts the nation.

4

95. DISPOSITION OF THE PUBLIC LANDS.

It is somewhat remarkable that during the periods when the questions relating to the public lands were prominent in the deliberations of Congress, only one proposal was made to amend the Constitution relative to their disposal.

When the legislature of Georgia, in 1833, petitioned Congress to call a convention to amend the Constitution, they included as one of the questions they desired to have considered, an amendment which should settle the "right to and disposition of the public lands of the United States." 5

It was not, however, until the early seventies, after large tracts of the Government land had come into the possession of

1 App., Nos. 1348, 1394, 1454, 1510. No. 1394 also provided that each Territory should be entitled to choose one elector for President and Vice-President.

2 App., No. 1454.

3 App., No. 1726. The District should have as many electors for President and VicePresident as it has members in Congress, but their representatives in Congress were not to participate in joint convention of the two Houses, nor in proceedings touching the choice of President and Vice-President, nor in the organization of either House of Congress. 4 Utah admitted in 1896.

5 App., No. 622. See letter of Governor Troup of Georgia to the Secretary of War, of June 3, 1825. Niles' Register, Vol. XXVIII, p. 240; also, Von Holst, U. S. Hist., Vol. 1, pp. 438-439. See post, par. 146.

railroads and speculators, that any further amendments upon this subject were suggested. In 1871 Mr. Coghlan of Califor nia 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.

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 a part of the 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.

2 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.

Government with the individual. Then it was that an avalanche 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.

1

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." 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.5 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."

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.

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,10 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

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.

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

3 App., Nos. 147, 148, 149, 154, 155, 158, 160, 165, 166, 169, 173, 177, 179, 181, 183, 188, 190, 193. 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.