102. MARRIAGE AND DIVORCE.

Less sweeping is a proposition affecting personal rights and duties which arise out of the confusion caused by the different laws regulating marriage and divorce in the various States. At present a marriage in one State may be void in another; and serious complications arise as to inheritance and other questions. A national law for marriage and divorce is plainly unauthorized by the Constitution. In order to remove this difficulty, there have been five amendments proposed since 1884 to give Congress power to pass uniform laws on these subjects. The proposition of Senator Dolph, in 1887, led to an interesting debate, but nothing was accomplished. In 1871 there was an amendment presented by Mr. King of Missouri, which prohibited the intermarriage of persons of the white and colored races. From the preamble of this resolution it is evident that its author supposed that the States were deprived by the fourteenth amendment of the power to prohibit such marriages. The courts in general have not so held, and in several States mixed marriages are prohibited.3

103. HABEAS CORPUS, FREEDOM OF SPEECH AND OF THE PRESS.

The proposed amendments of the last half century have, however, been directed rather to the increase and protection of personal rights and privileges than to their abridgment. Since the adoption of the Bill of Rights there have been but two attempts to add to the Constitution further guarantee in regard to the rights of the press and of free speech and of the right of the people to assemble and to be protected against the military power.*

An effort to incorporate into the Constitution such a provision was made by Senator Saulsbury of Delaware, April 8, 1864, when he presented a long series of amendments as a substitute for the thirteenth amendment, then under discussion. The larger portion of the amendments of this series related to slavery, but the first few were more properly general guaranties

1 App., Nos. 1605, 1609, 1656, 1688, 1736. Such an amendment reported adversely in Fiftysecond Congress, first session. Strong minority report. H. Rep., vol. 4, No. 1290. 2 App., No. 1339. See post, par. 172.

3 Cooley, Const. Law, p. 240, note 1; Hitchcock. Am. State Const., pp. 26-27. Twelve States by statute, two in the constitution.

4 The New York convention proposed an amendment prohibiting the suspension of the habeas corpus for a longer time than six months or until twenty days after the meeting of the Congress next following the passing of the act for such suspension. App., No. 55.

of the rights of the individual. The first declared the right of the people peaceably to assemble and worship God according to the dictates of their conscience. In this connection it is interesting to recall that this is the only amendment regularly introduced which proposed to insert the word God into the Constitution, although numerous petitions have been presented from various religious societies for some acknowledgment of God in the Constitution. The second of these amendments, while declaring that the use of the public press shall not be obstructed, provided that "criminal publication made in one State against the lawful institution of another State shall not be allowed." In reality, therefore, this amendment offered no further guarantee of the freedom of the press, but, on the other hand, proposed placing restrictions upon the utterances against the institution of slavery. The remaining propositions declared that the right of free speech should not be denied; that access of citizens to the ballot box should not be obstructed either by civil or military force; that the military shall always be subordinate to the existing judicial authority over citizens; that the privilege of the writ of habeas corpus shall never be suspended in the presence of judicial authority, and that the militia of a State or of the United States shall not be employed to invade the lawful rights of the people of any of the several States.

A very similar but even longer series of amendments was proposed by Senator Davis of Kentucky, an Old Line Whig, in December of this same year. He submitted these as the basis of all existing difficulties, and desired that they should be considered by a convention of the States which he proposed should be assembled "for the purpose of bringing about the restoration of peace and union and the vindication of the Constitution." 2 The resolution contained a series of detailed guaranties to the people not only of all the rights mentioned in the first ten amendments, but also of several other inherent rights and liberties of the people which had been and were being infringed by such acts as the suspension of the writ of habeas corpus, by the proclamation of the President and its subsequent approval by Congress, and the trial of citizens by military tribunals even in States distant from the seat of war, and certain other acts incidental to the exercise of the wa

1App., Nos. 999-1002.

2 See post, par. 177.

power.1 It forbade all such invasion of the rights of the people, and declared that "the infraction of any of these rights and privileges shall be held to be both a grievous private wrong and a public crime, and all persons who may commit it to become infamous and to be further punished by law without pardon or commutation."

These two series of amendments were evidently presented not with the expectation of their adoption, but rather as an arraignment of the President and the party in power and as a protest against the acts already mentioned.

104. PROTECTION OF PERSONAL LIBERTY.

Most of the propositions dealing with questions of personal relations up to the civil war were assertions of constitutional principles. At the close of the war another very important group commands our attention. These, for the most part, concerned the method by which the principle of individual liberty might be secured from assault. The thirteenth amendment, conferring freedom upon all the slaves, will naturally be treated under the head of amendments affecting slavery. It was supplemented by the fourteenth amendment, although the provisions contained in the first section of this article, as interpreted by the courts, are not confined in their application to any one class of persons, yet inasmuch as it was simply intended to protect the freedmen, it will be considered under the same head as the thirteenth amendment. It seems convenient to mention in this connection the only amendment which has been proposed dealing expressly with the Indian. The legislature of Georgia included in the call issued by her in 1833 for a convention to amend the Constitution a clause calling for an amendment definitely settling the rights of the Indian.3 The need of such

App., No. 1039b. See ante, par. 83. It guaranteed "the absolute right at all times and under all conditions of the people to the writ of habeas corpus and to trial by jury;" the exemption of all persons, except those in the Army and Navy, from arrest and immunity from trial and examination by military tribunals; that the military power was never to be brought into conflict with the civil authority, but should be employed to uphold the law and the courts. It guaranteed to the people at their elections the right to vote for those whom they prefer without constraint or intimidation; to freely discuss and pronounce their opinion on all public measures and the conduct of public officers; to their right to all sources of information by the purchase and transmission of books, news papers, etc., without any obstruction, and to free trade and commerce with their fellowcitizens; to protection in their private property, which was not to be taken except to subserve some operation of the Federal Government, and then to receive full compensation or indemnity, as well as for all damages sustained by reason of the orders of the military officers of the United States. See Bryce, 1, pp. 54, 55.

2 Post, par. 123.

3 App., No. 625.

an amendment had been suggested by Georgia's almost continuous struggle with the United States courts over the rights of the Creek and the Cherokee nation.

105. SLAVERY PROPOSITIONS BEFORE 1860.

Considering the long and violent legislative struggle over slavery, which lasted through a quarter of a century, it is remarkable that there were but few propositions to amend the Constitution in this respect before 1860. In addition to the amendment with regard to abolishing the representation for the slave population, introduced just previous to 1808 and again in 1815, and the resolution of Massachusetts, presented in 1844, all of which have been dealt with elsewhere,' there were a few others aimed either at the protection or abolition of slavery.

As early as 1818 Mr. Livermore of New Hampshire introduced a resolution prohibiting slavery, which failed to receive the consideration of the House.2

Again, in 1839, J. Q. Adams tried to introduce a series of amendments abolishing hereditary slavery after 1842, forbidding the admission of slave States after 1845, and prohibiting slavery or the slave trade at the seat of government.3 Shortly after the compromise of 1850 an unsuccessful attempt was made still further to protect the interests of the slavocracy by the proposition of Mr. Daniel of North Carolina, that no amendment should be made abolishing or affecting slavery in any State without the concurrence of the slave States. In the same year Mr. Disney of Ohio tried twice in vain to secure the consideration by the House of an amendment to the Constitution which asserted the rights of local government. This was evidently prompted by a desire to insure the security of slavery, for it declared "that the people of every community have an inherent right to form their own domestic laws and to establish their own local government when they do not conflict with the Constitution," and, further, "that the will of the people of the District of Columbia ought at all times to govern the action of Congress' in relation to the existence of slavery within its limits."6

1 Ante, par. 22. 2 App., No. 474.

Sketch of the History of Slavery, by Cooley; Story, II, Chap. XLVI.

3 App., Nos. 697,

698, 699.

4 App., No. 764. Cadwalader of Pennsylvania, on December 15, 1856, gave notice of his intention to introduce a similar amendment. H. J., Thirty-fourth Congress, third ses

sion, p. 114.

App., No. 758.

For amendments before 1860 in regard to aiding the colonization of freedmen, see post, par. 115.

H. Doc. 353, pt 2-13

106. SLAVERY PROPOSITIONS IN 1860-61.

By the time of the opening of the second session of the Thirty-sixth Congress, in December of 1860, the condition of affairs was changed, and now amendments were freely offered, upward of two hundred being presented to Congress during this session. These multifarious propositions will be treated according to their subject-matter; their chronological history may be briefly disposed of.1 At the opening of the session. President Buchanan recommended in his annual message three explanatory amendments to the Constitution on the subject of slavery. The first of these was an express recognition of the right of property in slaves; the second declared the duty of protecting this right in the Territories, and the last, recognized the validity of the fugitive slave law.

Nearly every prominent member of the Democratic party, especially from the Northern and border States, suggested amendments. No less than fifty-seven distinct resolutions were presented during this session of 1860-61. Some of them, in the effort to find some common ground for compromise and conciliation, contained a long list of propositions dealing with almost every conceivable phase of the slavery question.

The amendments introduced in the early part of the session varied from the propositions advanced by Jefferson Davis, for the express recognition and protection of property in slaves,3 to those advocated by Senators Crittenden and Douglas, which, although conceding great rights to the slave States, were more in the nature of a compromise. Several propositions went to the length of insisting on a radical change in the form of government, to the end that the slaveholders might feel more security in the Union.5 After the secession of South Carolina and some of her sister States, propositions for the amendment of the Constitution were even more numerous; that advocated by Senator Crittenden seemed the most likely to succeed, but it failed to receive the Republican vote and the South preferred to secede rather than to consider anything

1 An excellent résumé of the history of this Congress may be found in Rhodes, U. S., Vol. III, pp. 140-181; 253-271; 287-291; 305-308; 313-314. For a synopsis of various bills and resolutions, see, also, McPherson's History of the Rebellion, pp. 48–90. 2App., Nos. 778, 780.

3 App., No. 851.

4 App., Nos. 827-833 and 836-850; 852a-h, 869a-m. See Foster, Com. on Const., 1, pp. 169

5 Ante, pars. 34, 48.