pense for furnitvu-e was possibly SIOO.OO, and the secretary's contingent bill was
S26.25 (Scharf, op. cit., I. 536). The rent of the dining hall and two rooms in
Bennett's Hotel was S30.00 a week or about $165.00 for the thirty-eight days.
(Journal, pp. 4f. The two rooms were probably used by the convention as com-
mittee rooms.) This makes a total expense of $8,791.25, which, we believe, is
a close approximation.
" It does not, however, include the expense incident to the election of the
delegates.
'i Laws of Mo. 1820, 1st G. A., 1st sess., chap. 17, pp. 34f. ; chap. 45, pp. 82f.
In piu-suing this study of Missovu-i's first constitutional convention and while
examining to some extent the other constitutional conventions and constitutions
176 Missouri Struggle for Statehood.
This concludes our consideration of the administrative
and miscellaneous acts of the convention. The few that have
not been discussed are either of slight interest and importance,
or their purpose is not clear .^^
We shall now consider the legislative work of the con-
vention. This work consisted of drafting and adopting two
organic laws — an ordinance accepting the five propositions
and the two provisions that were set forth in the sixth section
of Missouri's Enabling Act, and a constitution, which governed
the people of this state for nearly forty-five years. Both
became binding on the people of Missouri through the mandate
of the convention; neither was ever submitted to a popular
vote. Contrary to current opinion, however, and even to the
statements of some scholars, there is, we believe, no obvious
naturalness or necessary conformity to the spirit of the times
of this and other states, we have frequently been confronted with questions that
involved comparisons of constitutional law and ordinary or session law, and of
constitutional conventions and ordinary legislative bodies. First necessity and
finally interest have directed our attention to this phase of our subject, and we
hope to be pardoned for the following extraneous remarks: Are constitutions more
easily framed than ordinary laws? If so, is this owing to the abler men in con-
stitutional conventions; to the absence of veto and constitutional limitations,
except those in the United States constitution; to the single house plan of organ-
ization; or to the smaller membership? If not, why does it take less time to draft
constitutions than session laws, for it is a fact that Missouri's first constitutional
convention was in session only thirty-eight days of which only thirty-two were
working days; that this State's second convention, 1845-1846, met fifty-eight days,
of which not more than forty-eight were working days; and that the last con-
vention, 1875, met eighty-nine days, of which only seventy-six were working
days? Is not this celerity In drafting constitutions due to the same factors that
serve to explain the simplicity and ease of framing constitutions?
"On .June 19, McFerron submitted a resolution providing for the appoint-
ment of a committee to draft a memorial to Congress in behalf of certain persons
claiming preemption rights. This was supported by Thomas and Buckner;
and opposed by Bates and Evans on the ground that it did not fall within the powe s
and duties of the convention. It was negatived. {Journal, p. 11; Mo. Inlell.,
July 1, 1820.)
On Juno 27, Jones, Talbot and Chouteau, were appointed on a committee
to obtain from the Territorial Auditor a statement of the taxes assessed on and
paid by th(! counties of Missouri 'i'erritory into the Territorial Treasury for 1817,
1818, and 181«). {Journal, p. 14.) This coniinlttee r(M)ort(>(l mi .luly 1. I)ut it is
not known what this report contained. {Ibid., p. 1«>.) The purpose of the con-
vention was undoubtedly to ol)tain a knowletlge of the state's revenue in order,
tliereby, to estimate accordingly the salaries of the new state oftlcials.
On July 5, a committee was appointed, compostnl of Jones, Rector and
Wallace, to ascertain the tpiantity of Missouri land sold by tiie United States.
This committee reported on the 8th instant, but its report is not given. {Ibid.,
pp. 25, 2*).)
Labors of the Convention. \11
in the refusal of Missouri's first constitutional convention to
submit the fruits of its labors to the people.
Of the twenty-four state constitutions in force in 1820,
six had been submitted, and one of these was in the south.^'*
From 1775 to 1820 inclusive, there had assembled forty-two
conventions, state and national, that had either framed or
amended constitutions. Of this forty-two conventions, fifteen
had submitted their work to the people or to their representa-
tives, twenty-seven had not. If the purely revolutionary
bodies of 1775 and 1776 are eliminated, the number of sub-
mitting conventions remains fifteen but the number of non-
submitting conventions is reduced to seventeen.^^ Moreover,
of all the constitutions and constitutional revisions made be-
tween 1820 and 1830 inclusive, Missouri's was the only one that
was not submitted to the people.^^ From these generalizations
alone, it seems logical to conclude that the principle of sub-
mitting constitutions to the people or their representatives,
was firmly established in the United States from the very in-
ception of our government. Although down to 1820 the non-
submitting convention was slightly the stronger of the two in
the total number of precedents, not one of these non-submitting
conventions was as influential, as an historical example, as the
submitting convention of 1787 that framed the Federal Con-
stitution. Moreover, during the decade from 1820 to 1830, the
relation of the number of submitting conventions to the number
of non-submitting ones, was as five to one. Why, then, did
the Missouri convention of 1820 follow the non-submitting
"Conn. (1818); Me. (1819); Mass. (1780); Miss. (1817); N. H. (1791); and
Vt. (1792, 1820). See Jameson, Const. Convs., pp. 496ff., and Appendix B, pp.
643flf.
"These submitting conventions were: Continental Congress (1775-81);
Federal Convention (1787); Ga. (1788); Me. (1819); Mass. (1778, 1779, 1780.
1820); Miss. (1817); N. H. (1778, 1781, 1791); Vt. (1785, 1792. 1820).
The non-submitting conventions were: Ala. (1819); Del. (1792); Del..
Ga., Md., N. J., N. Y., N. C, Pa., and Va. (1776); Ga. (1795. 1798); lU. (1818);
Ind. (1816); Ky. (1792, 1799); La. (1811); Mo. (1820); N. H. (1775); N. Y. (1801);
O. (1802); Pa. (1789); S. C. (1775. 1778, 1790); Tenn. (1796); Vt. (1777).
The failure of the revolutionary conventions of 1775 and 1776 to submit
their labors to a popular vote, was probably due to the lack of time and to a fear
of a large adverse vote from the Tories in many of the colonies.
«Mo. (1820); Mass. (1820); N. Y. (1821); R. I. (1824); Va. (1829); Vt.
(1820, 1827). Ibid.
M S — 12
178 Missouri Struggle for Statehood.
class, if the principal of submission had been so firmly estab-
lished in our political system? We believe that there was a
number of influences operating in Missouri against submission:
there was no demand on the part of the people for such a refer-
endum or adoption; the people of Missouri Territory wanted an
immediate state government without further delay; the dele-
gates possessed the confidence of their constituents; the con-
stitution was generally acceptable; submitting conventions
were then the exception in the south; and finally, the convention
itself was undoubtedly opposed to such a course. Again it is
probable that had the constitution and the ordinance of ac-
ceptance been submitted to a popular vote, both would have
been adopted by overwhelming majorities. The former would
have had little opposition: the latter by its very nature would
have received the support of all. It may not be altogether
superfluous to add that the Enabling Act by not requiring the
submission of these two laws to the people and by not even
implying such submission, was possibly an influence in itself
against such a course.
The ordinance of acceptance is based almost wholly on the
sixth section of the Missouri enabling act of March 6, 1820.
As this act has been considered ,^^ we will not again analyze it.
It will be recalled that section six of this act set forth five
propositions or five proposed United States donations to the
new State, for the free acceptance or rejection by the convention.
If accepted, these propositions were to be binding upon the
national government, but they were conditioned upon two
provisos: the convention was to provide by an ordinance,
irrevocable without the consent of the United States, (1) that
all public lands sold in Missouri by the United States after
January 1, 1821, were to be free for five years after date of sale
from all state, county and township taxes; and (2) that bounty
lands, granted for military services during the war of 1812,
were to be similarly exempt from taxes for three years from
date of the patents providing these lands were held by the
patentees or by their heirs.
" See supra, chap. II. For a copy of the ordinance, see Appendix IV.
Labors of the Convention. 179
On the third day of the session of the convention, a com-
mittee was appointed to consider the expediency of accepting
or rejecting these five propositions and two provisos.^* Two
days later, this committee made its report, which was favorable
tow^ards accepting the propositions and provisos of Congress,
and submitted the draft of an ordinance relating to these sub-
jects. Both the report and the ordinance were unanimously
accepted by the convention, and on June 17th the ordinance,
after a second reading, was committed to a committee of the
whole house.^^ While before this committee the ordinance
received considerable attention .^° Scott at once introduced a
substitute ordinance, in which were recited all the conditions
contained in the act of Congress and declaring the assent of the
convention thereto. This substitute included everything that
was contained in the original ordinance, i. e., those provisions
that composed the sixth section of the Enabling Act, and also
enumerated and assented to those conditions that were set
forth in the second and the fourth sections of the act of Con-
gress. Scott's contention was that this ordinance should
assent not only to the five propositions and to the two con-
ditions in the sixth section but also to those conditions in the
second and fourth sections. Heath, chairman of the committee
that framed the original ordinance, favored the substitute so
far as it was based on the sixth section, but opposed those
clauses that were founded on the conditions in the second and
fourth sections of the enabling act. Heath objected to including
in the ordinance anything relating to the free and common
navigation of rivers or to the equal taxation of the lands of
non-residents and residents. Buckner also took this position,
and declared that the point of taxation was one which involved
Missouri's sovereignty and over which Congress had no power
to dictate. In a very able speech Scott defended the two
»8 Journal, pp. 7f. Heath, Ray and Buckner were appointed on this com-
mittee.
»» Ibid., pp, 9fr. The ordinance reported by this committee is practically
the same as that part of the one finally adopted which begins with the words,
"Now, this convention, for and in behalf of the people" etc., and which closes
with the words "from and after the date of the patents respectively."
*<> Mo. Intel!., July 1, 1820. The ordinance was discussed all Monday after-
noon, June 19th.
180 Missouri Struggle for Statehood.
points objected to by Heath and Buckner. He appealed to
the convention's sense of justice on the taxation proviso, de-
fending this proviso with many precedents drawn from Ameri-
can state history, and urged its inclusion in the ordinance from
the standpoint of policy. Bates, in a speech of considerable
length, opposed the additional provisos in Scott's substitute
and especially the one that related to taxation. He said that
he regarded Scott's historical examples as being inapplicable
in this case, that he would never consent to purchase Missouri's
admission into the Union at the price of her relinquishing so
important an attribute of state sovereignty, and that he not
only favored placing this power in the hands of the Missouri
legislature but thought that it might be well for that body to
actually impose a higher tax on non-resident than on resident
land-holders. Bates concluded by offering the following amend-
ment to the first section of the substitute, which section, we
believe, contained the provisos relating to the free and common
navigation of Missouri rivers:'*^ ''provided that Congress be
requested so to modify the third proposition as to allow the
whole of the sum of five per cent to be appropriated within the
state to the construction of roads and canals, and promotion
of education, under the direction of the legislature thereof."
This amendment having been agreed to, the committee of the
whole took up the consideration of the second section of the
substitute ordinance. Green delivered two speeches in an
attempt to slightly amend this section, which related to the
equal taxation of non-resident and resident land-holders.
Emmons, Scott, Cook of Ste. Genevieve, and Barton opposed
and finally defeated Green's amendment. Barton and Thomas
then opposed the entire section and succeeded in having it struck
out. The substitute ordinance as amended by Bates was re-
ported to the convention, concurred in, and ordered to be en-
grossed. On July 14th the convention agreed to the engrossed
ordinance on its third reading,''- and three days later, after an
attempt, made by McFerron, to defeat it had failed, it was
«' It is not dear what was the first section of Scott's substitute.
♦' Journal, p. 44.
Labors of the Convention. 181
again carried in the affirmative.''^ After having been correctly
enrolled, the final draft of the ordinance was signed by Barton
and Pettus on the last day of the session of the convention."*^
We have treated this subject at greater length than is
customary; but to us such treatment appears clearly war-
ranted. This ordinance is one of the few organic laws that have
applied to Missouri; and further, it is today the second oldest
fundamental law that is in force in this state. The acts of
Congress passed between 1804 and 1820 that applied to the
government of upper Louisiana and Missouri Territory, were
superceded by the Missouri constitution of 1820; the latter by
the constitution of 1865; and this in turn by the present con-
stitution of 1875. But, the ordinance of July 19, 1820, passed
by the convention of that date, was "irrevocable except on the
consent of Congress." Finally, this ordinance although not a
requisite for the admission of Missouri was necessary if that
state expected to receive national land grants and money aid
for internal improvements, education and a seat of government.
Its authors in the convention were Heath, Scott, and Bates.
Its passage in the convention reveals several interesting side
lights on that body. The delegates favored the strictest and
most limited interpretation of those conditions or provisos im-
posed on Missouri by Congress that were to be included in the
ordinance; and, on the contrary, though quite naturally, they
requested Congress to broaden the scope of her donations.
The convention refused to declare by an irrevocable law that
Missouri would never impose a higher tax on non-resident
land-holders than on resident land-holders,^^ but at the same
time that body was practically a unit in placing in that ordinance
a plea for Congress to grant more money for roads and canals
in Missouri. We do not believe that the convention willfully
" Ibid., p. 46.
** Ibid., p. 46flf.
" This prohibition and the proviso relating to navigable rivers were placed
on the general assembly of Missouri in Article X of the constitution of 1820.
That article, however, contained no clause which exempted it from being subject
to amendment the same as the other provision of the constitution; nor is such a
proviso clause contained in that article which provided the manner of amending
the constitution.
182 Missouri Struggle for Statehood.
tried to antagonize Congress on the taxation question, it seems
to us that the proviso of Congress on this point was inherently
an unpopular one to the delegates and their constituents. The
non-resident holder of Missouri land escaped at least one
arduous, dangerous, and not inexpensive duty: He was free
from militia service in this state. Furthermore, he was as a
rule not only an unprogressive factor in the state but frequently
a serious drawback to its development. The curse of land
speculation was a serious problem in those pioneer days. The
messages of the first governor of Wisconsin Territory are full
of this subject.'*^ This mania of legalized gambling had pos-
sessed Missouri from the very inception of American rule.
Disastrous as were its evils when confined to resident land-
holders, these evils never aroused that wave of popular disfavor
and positive hatred that was directed against the absentee
landlords. The former at least shared the burdens and dangers
of a frontier life; the latter were regarded, justly or unjustly,
as profitting by the pioneers' industry without contributing
anything to the development of the state. Even such a con-
servative and temperate minded man as Bates apparently
thought that equal taxation under such circumstances was
unjust. With Bates stood Barton, Heath, Buckner, and
Thomas, and the convention itself, while only two. Green and
Scott, spoke in favor of this proviso. The least that the con-
vention could do and still comply with the demands of Con-
gress, was exactly what it did: The taxation and navigation
provisos were inserted in the constitution, but nowhere in that
document were these provisos or any other provisos exempt
from the ordinary process of amendment.
In framing the constitution the committee method was
adopted by the convention. The advantages of this method
over the assembly method are so well known that a detailed
exposition of it is hardly necessary. The former manner of
working is almost imperative in any large deliberative body
and lends itself very conveniently to tlie needs and wishes of
a small assembly. By a division of labors and by a specializa-
tion of work the committee system enables such a body to
"See Shambaugh. Messages of the Governors of Iowa, I.
Labors of the Convention. 183
progress with greater dispatch, to handle more questions
within a Hmited time, and to perform a higher quaUty of work.
This system does not necessarily carry with it the elimination
of deliberation on the part of the body that appoints or adopts
it; the opposite is generally the rule. The assembly plan of
procedure does eliminate the committee, but the committee
plan is essentially a complement to, and not an absorber of,
the assembly.
The first resolution submitted to the convention on this
subject was proposed by Bates. He favored the appointment
of a single committee to draft a constitution."*^ The convention
refused, however, to adopt this measure."*^ On the same day,
June 13th, a resolution was proposed by Thomas, and carried,
that four committees, each consisting of three members, be
appointed by the president of the convention to do the following
work: one committee was to draft the legislative department,
on it were appointed Jones, Emmons and Clark; one, the ex-
ecutive, composed of Rector, Cook of Madison and Evans; one
the judiciary, composed of Thomas, Cook of Ste. Genevieve
and Bates; and one, the bill of rights and other parts not before
mentioned, composed of Ramsay, Hammond and Green. "^^ We
do not hesitate to say that, including Barton, who undoubtedly
exercised a great influence over the members of all the com-
mittees by virtue of both his ability and his power of appoint-
ment, most of the influential men of the convention were placed
«' Journal, p. 5.
<8 Bates left blank the number of committee places. There are, we believe,
only two advantages in Bates' plan over the assembly plan: the constitution if
framed by one committee would probably have been more unified in both subject
matter and style, and would probably have been framed in less time. There is
also this possible item in its favor, that if the committee was composed of the
ablest men of the convention, the constitution so framed might have been a
stronger document. We do not, however, regard this last as a necessary con-
clusion even if the committee had been composed of only one member and he, a
Bates, a Barton, a Benton, or a Jones. On the other hand. Bates' plan carries
with it some definite objections: if the committee is small, too few men are in-
vested with too much power, and, further, it cannot be representative of the state
at large in those great fields of legislation set forth in a constitution; if the com-
mittee is large, then it either loses that celerity of action and power of specializa-
tion which are the foundations of the committee system, or it divides itself into
several sub-committees. The convention was doubtless aware of these ob-
jections and voted accordingly.
<9 Journal, pp. 5, 7.
184 Missouri Struggle for Statehood.
on these four committees.^^ Although ten of the fifteen coun-
ties of the territory were represented on these four committees,
only three of the counties were north of the Missouri River.^^
And of the twelve committee places only four were held by the
delegates who represented that half of Missouri's population
that lay north of the River and in the county of Cooper. Fur-
ther, only one chairmanship of these four was given to this
section. This unfairness was partly offset, however, by the
fact that although the northern and extreme western counties
were allowed only four representatives on these committees,
these four controlled two committees.^^ But on the other two
committees these counties had no representatives whatever to
voice their wishes.
The four committees appointed on Tuesday, June 13th,
reported to the convention on Friday, June 16th, the several
parts of the constitution that they had drafted.^^ Cook of
Madison then made a motion that the several reports be com-
mitted to a select committee composed of one member from
each of the four committees, for the purpose of forming these
reports into one consistent whole. Thomas asked for the
reading of these reports, that the convention might see the
necessity of the commitment. This request very singularly,
we think, appears to have aroused much discussion among the
delegates. Remarks were make by such eminent men as
Thomas, Heath, Green, Cook of Madison, Cook of Ste. Gene-
vieve, Buckner, Emmons and Bates. An entire day was spent
considering this very commonplace request, which in itself if
•• Scott had not then taken his seat, the appointment of Rector and Bates
from St. Louis naturally excluded McNair and Pratte, since tlie appointment
of more than two members from one county would probably have aroused criii-
cism.
•' Of the twelve committee places on these four committees, eight were held
by delegates from Washington, St. Charles, Cooper, Madison. Ste. Genevieve.
Montgomery, Jefferson, and Howard; two, from St. Louis; and two, from Cape
Girardeau. It is singular that New Madrid was the only county having two or
more delegates that was not represented on these committees. No county's
delegates constituted a majority of any committee. See supra, Chap. V. on tlie
occupations represented on tiies(^ four commit teivs.
"These two committees were the legislative an(i hill of rights committee.
*' Journal, p. 10. Tlie cliairman of tliese committees iJrcsnUt-d tlu'ir reports
severally except in the case of the executive committee, wlio.se work was reported
by Cook of Madison and not by Hector. Mo. IntclL, June 24, 1820.
Labors of the Convention. 185
granted would probably not have taken over an hour's time.
We can see no sensible reason for any of the delegates opposing
Thomas' motion unless it was either a sincere desire on the part
of some to facilitate business and not to get involved in debate
so early in the session, or the fear of others that the convention
would be too thoroughly enlightened, either favorably or un-
favorably, regarding certain parts of the constitution before
these parts could be successfully opposed or defended by some
leaders of that body. The opponents of Thomas' motion were