The prospect of almost certain failure does not seem to have diminished the number of amendments offered. In recent years there has been a gradual increase in the number presented. During the fourth period there were over four hundred distinct propositions introduced, and in the Fiftieth Congress forty-eight resolutions, proposing amendments on twenty different subjects, were presented.

The detailed examination of the proposed amendments which follows shows that the importance of these propositions does not lie in their influence in effecting actual changes within the Constitution merely, but that they are indices of the movements to effect a change, and to a large degree show the waves of popular feeling and reflect the political theories of the time. It is believed that a study of the efforts to amend the Constitution will contribute to a fuller and clearer understanding of our history, both constitutional and political.

"An examination of these reveals both the ingenuity and variety of the minds conceiving them, and the present futility of any ill-considered attempt to follow in their footsteps. Report of the committee of the New York State Bar Association, 1890. Reports of the Association, Vol. XIII, p. 142.

CHAPTER II.

PROPOSED AMENDMENTS AFFECTING THE FORM OF GOVERNMENT: LEGISLATIVE.

7. DISTRIBUTION OF POWERS AMONG THE THREE BRANCHES OF THE GOVERNMENT.

There seemed to be some apprehension among the members of the First Congress that the powers delegated respectively to each of the three branches of the Government might be usurped by one of the other departments; one department thus trenching upon the rights of another might disarrange the harmonious working of a system the success of which was supposed to be dependent upon the complete separation of the three branches of the Government. Accordingly an attempt was persistently made in the first session of Congress to reaffirm the doctrine in a formal manner. Mr. Madison included in the series of amendments presented by him early in this session a proposition,' which, as reported in a slightly different form and passed by the House, read: "The powers delegated by the Constitution to the Government of the United States shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive." The Senate, however, either did not share in the apprehensions of the House or failed to see how this amendment could further insure the integrity of each department, and struck out the resolution. The next day, however, a motion was made in the Senate to add the following to the proposed amendments: "That the legislative, executive, and judiciary powers of the Government should be separate and distinct." Then follows a few phrases of political moralizing, to the effect "that the members of the two first may be restrained from oppression by feeling and participating

App., No. 144. Very similar to famous clause in the constitution of Massachusetts (1780), Part 1, art. 30, and doubtless suggested by it. See also constitution of Kentucky (1792), art. 1.

2 App., No. 230.

in the public burthens, they should at fixed periods be reduced to a private station, returning into the mass of the people, and the vacancies be supplied by certain and regular elections," etc. This resolution shared the fate of that proposed by the House, and was the last upon this subject which has ever been suggested.

Experience has shown few cases of conflict between the legislative and the judiciary, or between the judiciary and the executive, but between the legislative and the executive there have been several well-known instances of the attempt by one department to encroach upon the prerogatives of the other. The Executive has usually found his veto power an effective weapon in protecting his powers from any encroachment of the legislature. The power of Congress over appropriation bills has been supposed to protect it against aggression.

8. THE LEGISLATIVE DEPARTMENT: CLASSIFICATION OF AMENDMENTS.

The system of two Houses in the National Legislature was to a large degree experimental. The Continental Congress and the Congress of the Confederation had each contained one House only. It is not surprising, therefore, that even in the earlier years various amendments were proposed aiming either to correct the imperfections which had become evident in the working of the legislative department, or to introduce what their authors considered desirable innovations; from time to time in subsequent years various other propositions to change the organization or powers of the legislative body have been made. The class of amendments dealing with the organization of this department will be considered in the present chapter.5 They may be conveniently divided into three groups; those relating alike to both branches of Congress and those referring distinctively either to the House of Representatives or to the Senate.

App., No. 271.

The judiciary act of 1802 was not so much an attack upon the judiciary as on the Federal party.

The decision in Marbury v. Madison (1 Cranch, 137) aroused Jefferson's hostility against the court. Jackson also refused to enforce the decrees of the court against Georgia. See post, par. 77. See also Foster, Com. on Const., I, pp. 303-305.

4 Mason, Veto Power, par. 17-36. Davis, Am. Consts. Johns Hopkins Univ. Studies, 3d series, p. 465. Foster, Com. on Const., I, pp. 238 et seq.

5 Those in regard to the powers of Congress in Chapter v.

We pass directly to the consideration of the first group. First in importance among the various attempts made in the early years to alter the Constitution, were those directed against the provisions relative to the regulation of elections, and the qualification and compensation of members of both branches of Congress. Other proposals were intended to prevent members accepting any other civil office, and still others to prohibit members from participating in such pursuits as would tend to prejudice their action and unfit them for service in Congress. In more recent years very few amendments which can be classed under this head have been presented, the only movement of importance has been the one directed toward a change in the time of the sessions of Congress.

9. REGULATION OF ELECTION TO CONGRESS

By the Constitution Congress may at any time by law make or alter the regulations prescribed by the legislature of the State for the time, place, and manner of holding elections for Senators and Representatives (except as to the place for choosing Senator)'. This clause created much dissatisfaction in some portions of the country; conventions in four of the Northern and three of the Southern States, at the time of their ratification of the Constitution, recommended substantially the same amendment to the Constitution, namely, that Congress shall not exercise this right "except when the legislature of any State shall neglect, refuse, or be disabled by invasion or rebellion to prescribe the same." The South Carolina convention prefaced their proposition with the strong declaration "that the right of prescribing the manner, time, and place of holding elections to the Federal Legislature should be forever inseparably annexed to the sovereignty of the several States." The New York convention was willing to permit Congress to exercise the power of prescribing the time for the election of Representatives.

In the First Congress, in deference to this expression of opinion, several attempts were made to add to the series about to be recommended to the States an amendment on this subject, similar to those suggested by the State conventions. One was proposed by Mr. Sedgwick, giving Congress power to make regulations for elections, provided the States made improper

1 Art. 1, sec. 4, par. 1.

2 App. Nos. 3, 10, 16, 41, 49, 94, 105.

ones. Mr. Tucker suggested that the clause in the Constitution should be struck out, but all these attempts to amend failed. It is quite possible that the result might have been different had the Senators and Representatives from North Carolina and Rhode Island been present, for the conventions in those States recommended this change. 1

10. REGULATIONS FOR PROVING ELECTIONS.

Only one attempt has been made to amend the provision of the Constitution in regard to the proving of elections. This was one of the series of amendments introduced by Mr. Tucker of South Carolina during the discussion of the so-called "Bill of Rights" in the First Congress. It proposed that this clause should be amended so that instead of each House judging of the election of its members, "each State should be the judge, according to its own laws, of the election of its Senators and Representatives to sit in Congress."3 The resolution failed to be referred, showing that in this case the House was unwilling to have the prerogatives of the Federal Government curtailed. In more recent years the tendency has been to assert the regulative power of Congress, and to supersede the system of regulation.

11. QUALIFICATIONS OF MEMBERS OF CONGRESS.

One of the subjects which has greatly exercised the ingenuity of amendment framers is that of the qualification of members of Congress. Two groups of these propositions may be distinguished-those introduced between 1788 and 1815, and those introduced as a result of the civil war and applying to the disability of secessionists. One of the classes which were to be excluded by some of the various propositions of the first group was that of debtors of the United States. Such a restriction was proposed during the general discussion of amendments in the First Congress.

The opposition to the national bank during the Third Congress took the form of a prolonged discussion of an amendment proposing to exclude officers and stockholders of the

See post par. 24, for propositions affecting Representatives.

2 Art. 1, sec. 5, cl. 1.

App., No. 197.

4 See post par. 24.

In the 52d and 53d Congresses there was a reaction against Federal

control and certain laws were repealed.

5 These are considered in par. 128.

* App., No. 264. Rejected September 7, 1789.