328 THE AMENDMENT BEFORE THE PEOPLE. the twelfth of December, the Senate concurred and the joint resolution went to the States for ratification.1 Its progress through the State legislatures was rapid. On the twenty-fifth of September, James Madison, the Secretary of State, formally proclaimed that the amendment had been ratified by three-fourths of the States and it became a part of the Constitution.2 Its adoption may be said to have completed the Constitution as a piece of eighteenth century work. When the first ten amendments were adopted by Congress, all the framers of the Constitution, save one, were living. Eleven of them were then members of the Senate and eight were members of the House. One of the framers was President of the United States, and his signature was affixed to the joint resolution for twelve amendments that went out to the States, on the twenty-fifth of September, 1789. The eleventh amendment was adopted by Congress on the fifth of March, 1794. During its discussion, nine of the framers were members of the Senate, and five, of the House, among whom was James Madison. During the six years in which the twelfth amendment was under consideration, seven of the framers were Senators, and four were members of the House." 1 Annals, Id., 214. 2 For the ratification of the Twelfth Amendment by the States, see Documentary History of the Constitution, II, 411-451. It was rejected by Connecticut. See Id., 437. Also, Journals of House and Senate, 1803-4, in loco. 3 Langdon, Strong, W. S. Johnson, Ellsworth, R. Morris, Few, Patterson, Bassett, Reed, Butler, King. 4 Gerry, Gilman, Sherman, Madison, Clymer, Carroll, Fitzsimons, Baldwin. · Langdon, Strong, Ellsworth, Sherman, King, Read, Butler, Few, Bassett. • Gilman, Gerry, Fitzsimons, Madison, Baldwin. 7 Senators: Dayton, G. Morris, C. Pinckney, Langdon, A. Martin, Baldwin, Butler; Representatives: Gilman, Dayton, Madison, Baldwin. ATTITUDE TOWARD THE AMENDMENTS. 329 At the time of its adoption by the Eighth Congress, Jonathan Dayton, Pierce Butler and Abraham Baldwin were in the Senate. None of the framers belonged to the House, but thirty-four were still living. The individual vote of Senators on the first ten amendments is not recorded, but it is known that some of the Federalist members thought little of them. The six framers who were members of the House and voted on the first ten amendments, supported them, and the eleventh was supported, in the Senate, by Ellsworth, Butler, King, Langdon, Martin and Strong; and in the House, by Baldwin, Gilman and Madison. Fitzsimons in the House, voted against it. In 1803, in the Senate, Baldwin voted for, and Butler against the twelfth amendment. Thus the record shows that only two of the framers, among the twenty-three who were members of Congress at some time during the period the first twelve amendments were under discussion and who had an opportunity to record their opinions, voted against them. The attitude of John Quincy Adams to the twelfth amendment, in the form in which it passed the Senate, and his vote against it, chiefly because it limited the House to a choice from three instead of from five candidates, are of interest in the light of his later history. The second disputed election occurred in 1824, when the electoral vote was divided among four candidates, Jackson, Adams, Crawford and Clay. By the twelfth amendment, the House could not vote for Clay, because he was the fourth on the list. Had Adams's wishes prevailed, in 1803, and the number remained five, as in the original Constitution, and as the House amendment provided, undoubtedly Henry Clay would have been chosen over Jackson, Adams or Crawford. The decision of Congress, in 1803, proved, in the case of Adams, that it is an ill wind that 330 SOURCES OF THE AMENDMENTS. does not blow somebody some good. Made so soon after the original instrument, these twelve amendments have long seemed, in the popular mind, of equal antiquity. Turning to their sources, the first ten, are clearly, as Jefferson declared they ought to be, a Declaration of Rights, and each may be said to have emanated from a common source, the State constitutions, or the "ancient and undoubted rights" of Englishmen. Some of them, as we have seen, go back to the Great Charter; others, to the Petition of Right; and one, to the famous Bill of Rights enacted in the time of William and Mary.1 At least eight went back to the Declaration of Independence, and three, to the older Declaration of 1765. But the two immediate sources were the State Constitutions and the amendments sent up by the ratifying conventions. Here was the quarry out of which nearly all were hewn. The eleventh and twelfth amendments, being eventually administrative in character, could not have any such origin as the first ten. They were devices; opportunist measures, originating in party policy and carried through as party measures. Posterity will hardly agree with Gouverneur Morris, that, these amendments are "generally speaking, mere verbiage." 2 They have so long been a part of the Supreme Law, their amendatory character long since disappeared. They seem to be the work of Franklin and Washington and Wilson and Madison and 1 See the note, p. 206. 2 "How far have the amendments to the Constitution altered its spirit? These amendments are, generally speaking, mere verbiage. It has been said that our Constitution is remarkable for the perspicuity of its language and if so, there was some hazard in attempting to clothe any of its provisions by the (so-called) amendments in different times." Gouverneur Morris, Diary and Letters, II, 529. This comment was written in 1811. REJECTED AMENDMENTS. 331 their colleagues, as much as does the original instrument itself.1 More than sixty years passed before the Constitution was again amended. 1 THE REJECTED AMENDMENT OF 1810. On the 18th of January, 1810, Philip Reed, of Maryland, introduced a joint resolution, in the Senate that "If any citizen of the United States shall accept of any title of nobility from any King, Prince, or foreign State, such citizens shall thenceforth be incapable of holding any office of honor or profit under the United States." 1 The charter to Lord Baltimore, granted in 1632, empowered him to confer titles of nobility, but none in use in England, and the Fundamental Constitutions of Carolina allowed its proprietors to issue patents for titles which were supposed to avoid a too numerous democracy and found hereditary privileges peculiarly adapted to America. Under these charters, commissions were granted and a few remain among the heirlooms of North Carolina and Maryland families. But when the chief doctrine of the Revolution-the equality of man-was enthroned, the States took care to forbid their legislatures to grant titles of nobility. Only one State went further than to forbid the grant: Georgia, by its constitution of 1777-in force twelve years-excluded from office and from the right to vote, any person who claimed or held any title of nobility.2 The Federal Convention seems to have been keenly alive to the importance of forbidding titles, for it forbade the States and the United States to grant them, and forbade persons in the service of the United States to receive them without the consent of Congress.3 The ratifying conventions of the States did not wholly omit the subject: New Hampshire and Massachusetts demanding that Congress should never consent to the acceptance of a title by any person in the service of the United States, and Virginia and North Carolina demanding a provision declaring against hereditary privileges. Reed's resolution had, therefore, but one precedent,-the clause in the shortlived constitution of Georgia of 1777. On the 24th of January, his resolution was referred to a select committee of three, himself, Leib, of Pennsylvania, and William 1 Annals, 530, (Eleventh Congress, Part I.) 2 Art. XI. 3 U. S. Constitution, I, 9, 8; X, 1. See Elliot, V, 130, 131, 381, 561. 4 See note on Precedents, infra. 332 REJECTED AMENDMENTS. H. Crawford, of Georgia. Five days later, Reed reported the resolution, as amended, which carried the exclusion from voting and from office to all who accepted a title, or who held one by descent or who intermarried "with any descendant of any emperor, king, or prince, or with any person of the blood royal." On the 15th of February, he reported a further amendment by which all titled persons, as his previous resolution described them, were also excluded from voting or holding office under the United States, "or either of them." On the 20th, a new select committee, on the subject was named, with Crawford as chairman, and Giles, of Virginia, Reed, Pickering, of Massachusetts, and Bayard, of Delaware. Crawford reported a slight amendment on March thirtieth, the resolution, in its modified form being debated, and considered again on the 26th of April, when by a vote of twenty-six to one, the resolution passed in the following form: "If any citizen of the United States shall accept, claim, receive or retain, any title of nobility, or honor, or shall, without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever, from any Emperor, King; Prince, or foreign Power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them." 5 Among those who voted for the resolution were Crawford and Henry Clay, and Nicholas Gilman, of New Hampshire, the only member of the Eleventh Congress who was a member of the Federal Convention. On the 27th the joint resolution was reported in the House, was read twice on the next day and referred to the committee of the whole, and on the first of May, the last day of the session, was passed by a vote of eighty-seven to three. The heavy vote in its favor in both Houses would lead one to expect a long and animated debate on the resolution. On the contrary, not one word of the discussion is reported. The amendment was ratified by eleven States; was rejected by three, and was not acted upon by three.s 5 Annals, 675. • Annals, 1997. 7 Annals, 2050. (Eleventh Congress, Part II.) 8 Ratified by Md., Ky., Ohio, Del., Pa., N. J., Vt., Tenn., Ga., N. C., N. H. Rejected by N. Y., R. I., Conn. Not acted on by S. C., Va., Mass. See Documentary History of the Constitution, III, 452-515, for the official acts of the States. |