of any slave for the purpose of speculation or as an article of
trade or merchandise; to prohibit the introduction of a slave,
or a slave's offspring, that had been illegally imported into the
United States; and to permit slave-owners to emancipate their
slaves, saving the rights of creditors, provided the emancipators
gave security that the emancipated slaves would not become
public chargcs.*^^ These provisions relating to slavery legisla-
tion, except the free negro and mulatto clause, were probably
copied from the constitution of Alabama. The free negro
clause was unique among constitutional provisions of that day,
«» Shoemaker, pp. 45, 70.
** Mo. Const.. III. 25.
•» Shoemaker, p. 48. The four states were Alabama, Delaware, Kentucky,
and MisslsKippI. Tennessee limited this ri^ht of bringing suits against tlio state
to the citizens of Tennessee.
•• Mo. Const., 111. 20.
•' Ibid.
Origin and Content of the Constitution. 225
it was also remarkable for the great discord it later caused in
Congress during the winter of 1820-1821.'^^ Power was given
the general assembly to change the tenure of the sheriff and
coroner.^^ About half the states followed the elective tenure
principle for these local officers, and half the appointive tenure. '°
The duties of the attorney general were placed under the regula-
tion of the legislature. This was the rule in a majority of the
states. '^^
The delegated legislative powers of the general assembly
over the judiciary of the State were important. These powers
were purely legislative and did not involve judicial powers.
One of the most important of this class of powers was that of
regulating, under certain constitutional restrictions, the juris-
diction of the courts. This principle of judicial regulation by
the legislature was followed by a number of the states. The
form in which it was incorporated in the Missouri constitution
shows the influence of the constitutions of Alabama, Delaware
and Kentucky. '''2 Another important class of legislative powers
over the judiciary was that of districting the State and of
determining the place and time, for sessions of the courts.
These last powers were subject to few restrictions. They seem
to have been copied from the constitutions of Alabama, Delaware
and Louisiana. '^^ The general assembly was also empowered
to establish inferior courts. No restriction was placed on this
power. In practically all the states the legislature was ex-
pressly given this power. ^^
The delegated legislative powers of the general assembly
also included important provisions relating to education, in-
ternal improvement, banks, the permanent seat of government,
and the mode of amending the constitution. Each of these
commanded a separate article.
The general assembly was given practically unlimited
control over the education of the State. Schools were to be
6« Shoemaker, p. 50.
«9 Mo. Const., IV. 23.
'"> Shoemaker, p. 80.
" Mo. Const., V. 18; Shoemaker, p. 99.
'* Mo. Const., V. 2. 6, 10, 11, 17; Shoemaker, pp. 87ff, 91flf, 98f.
''Mo. Const., Y. 5, 6, 7, 9, 17; Shoemaker, pp. SSff., 91, 98f.
'< Mo. Const., V. 1; Shoemaker, p. 86.
M S— 15
226 Missouri Struggle for Statehood.
encouraged and the national public school lands in each township
were to be preserved for their use. One public school or more
was to be established in each township as soon as practicable,
where education was to be free to the poor. A state university
was to be established and supported from the proceeds of a fund
derived principally from the seminary lands granted by the United
States. The purpose of this university was for the promotion
of literature, and of the arts and science. Both the lands and
the funds and endowments of the university were under the
control of the general assembly and were to be safeguarded for
the use and benefit of that institution. These educational
provisions were related to those in other constitutions. A ma-
jority of the states had some constitutional provisions relating
to education. These provisions differed greatly. The older
states naturally said nothing of United States school lands and
few said anything regarding a state university. In many of
the newly created states such provisions were not placed in
the constitutions but in the enabling act of Congress or in the
state's acceptance of same. The state constitutions that seem
to have been the most influential in the framing of the Missouri
educational provisions, were those of Alabama and Indiana —
both being practically identical with the Missouri constitution.^^
Internal improvements were to be encouraged by the state
government. The power of the general assembly in this field
was practically unlimited. One of its duties was to ascertain
the most proper objects of both road and water improvements.
The general assembly was also directed to make an economic
and systematic application of the funds appropriated for these
purposes. The constitution of Alabama contained provisions
practically identical with these. '^^
The delegated power of the general assembly over the es-
tablishing of a state bank was restricted. A conservative state
banking policy was adopted. The constitution of only two
states, Alabama and Indiana, had similar provisions on this
subject and neither so safeguarded the state's finances as did
'» A/o. Const.. VI.; Shoemaker, pp. I03(r.
''* Mo. Const., VII.; Shoemaker, p. 100.
Origin and Content of the Constitution. 227
Missouri. '^^ The general assembly of Missouri was given power
to incorporate only one banking company to be in operation
at the same time. The general assembly could establish not
exceeding five branches for this state bank and only one branch
could be established at any one session of the general assembly.
The capital stock of the state bank was not to exceed five mil-
lions of dollars, at least one-half of which was to be reserved
for the use of the State. '^^
A certain amount of delegated legislative power relating
to the militia was granted the general assembly. It was given
power to change the tenure of those officers of the militia, ex-
cepting the officers of the staff, who were not appointed by the
governor. The nearest approach to such a provision was a
section in the constitutions of Tennessee and Indiana. ^^ Most
of the states, however, had similar provisions on this subject.
The authority of the general assembly over the permanent
seat of government was set forth in a separate article, con-
sisting of four sections. The general assembly, at its first ses-
sion, was authorized to appoint five commissioners, one from
each extreme part of the State and one from the center, for the
purpose of selecting a place for the permanent seat of govern-
ment. The duty of these commissioners was to select four
sections of the land of the United States that had not been ex-
posed to public sale. If the commissioners decided that the
four sections of United States land so selected were not suitable,
they were empowered to select such other place as they did re-
gard would be proper, and they were to report on the second loca-
tion at the time of their report on the first. No place was to be
selected, however, that was not situated on the Missouri River
and was not within forty miles of the mouth of the Osage River.
The concurrence of at least three of the commissioners was neces-
sary for all decisions made by them. To the general assembly
was given the power of making final decision. If the latter
body accepted the first location the commissioners were author-
ized to lay out a town thereon under the direction of the general
assembly; if the general assembly accepted the second location,
" Shoemaker, pp. 107flf.
â– 1^ Mo. Const., VIII.
'» Shoemaker, p. llO; Mo. Const. IX.
228 Missouri Struggle for Statehood.
the general assembly was empowered to authorize the commis-
sioners to purchase any quantity of land, not exceeding six
hundred and forty acres, for this purpose. The place selected was
to be the permanent seat of government of Missouri from and
after October 1, 1826. The constitution of no other state con-
tained similar provisions on this subject. The constitutions of
Alabama, Kentucky and Louisiana did, however, expressly
provide that the seat of government could be changed by the
legislature. The bitter fight in the Missouri convention over
this question was probably the main reason for these detailed
clauses in the constitution.^^
The great legislative power of proposing and adopting
amendments to the constitution was also expressly delegated
to the general assembly. That body, on a two-thirds vote of
each house, could propose amendments without restriction.
Such proposed amendments were then to be published three
different times in Missouri, at least twelve months before the
next general election. At the first session of the general as-
sembly after such general election, that body, on a two-thirds
aye and nay vote of each house, was given power to adopt any
proposed amendments or to reject them. It was provided that
both in proposing and ratifying amendments they should be
read on three several days in each house. Of the twenty-three
state constitutions of that day all except five. New Jersey,
New York, North Carolina, Pennsylvania and Virginia, pro-
vided some method of amendment. In fourteen of these the
legislature on its own initiative proposed the question of amend-
ment. The vote required differed from a majority of one house,
as in Connecticut, to a two-thirds vote of both houses. No
general rule governed the manner of ratification. Four states,
Delaware, Georgia, Maryland and South Carolina, confided
this power in the legislature alone after an intervening election
had taken place; two, Alabama and Connecticut, in that body
together with a popular vote. The larger number, Illinois
Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, Ohio,
and Tennessee, provided for the people voting on a convention,
which body had all powers of amending and revising the con-
*" Mo. Const., XI.; Shoemaker, pp. 113ff.
Origin and Content of the Constitution. 229
stitution. One state, New Hampshire, provided for a convention
and for ratification by the people; another, Maine, ratification
by a popular vote; and one, Vermont, left ratification to the
legislature whose members were to be instructed. Some states
provided so difficult a process as to render amendment im-
probable, and in fact some state constitutions of that time were
never altered but were replaced with new ones. Maryland
alone provided in her constitution an easier amendment clause
than Missouri. ^^
The executive power of the general assembly was broad if
interpreted in connection with its legislative powers, and
limited if considered strictly from the specific executive powers
granted. Even from the latter viewpoint, however, these
powers were greater and wider in scope than those retained
today by the legislature. The constitution set forth the general
rules that the appointment of all officers, not otherwise directed
by it, should be made in such manner as might be prescribed
by law. ^2 This by implication placed a great general executive
power in the hands of the general assembly and, in a less degree,
the governor, that in many states was expressly given to the
governor alone. This general rule obtained in the constitu-
tions of nine states, Kentucky, Louisiana, Massachusetts, New
Hampshire, Pennsylvania, Tennessee, Indiana, Mississippi and
Ohio. In the other states either such power of appointment
was given to the governor or no express mention was made
regarding it.^^ The constitution, by way of regulation, pro-
vided that when any officer should have been appointed by the
joint vote of both houses, or by the separate vote of either house,
the votes should be publicly given viva voce, and entered on the
journals; the whole list of members should be called; and the
names of absentees should be noted and published with the
journal. The constitutions of only three states, Alabama,
Kentucky and Pennsylvania, contained provisions similar to
these. ^"* In the general assembly was vested the power of
»^ Mo. Const., XII.; Shoemaker, pp. 117f.
"Mo. Const., III. 32.
«' Shoemaker, pp. 54f.
»* Mo. Const., III. 22; Shoemaker, p. 22.
230 Missouri Struggle for Statehood.
appointing, by a joint vote of both houses, the state treasurer.
This was the general rule in nearly all the states. ^^ These
executive powers were vested jointly in the senate and the
governor. The appointment of the state auditor, attorney
general, and the secretary of state was placed in the hands of
the governor acting "by and with the advice and consent of
the senate." In the three states that provided for an auditor,
his tenure was under the power of the general assembly ; in those
states that provided for an attorney general, of which Alabama,
Kentucky and Mississippi were the models for Missouri, the
general rule was the appointive tenure; and in the eighteen
states that provided for a secretary of state, seven — Delaware,
Illinois, Kentucky, Mississippi, Louisiana, Pennsylvania and
Tennessee — made his tenure appointive by the governor, and
the remaining states made it appointive by the general as-
sembly or elective by the people. ^^
The judicial power of the general assembly extended to
three subjects — impeachments, addresses for the removal of
certain officials, and two classes of contested elections. The
constitution provided that all state officials and judges should
be liable to impeachment for any misdemeanor in office; but
that judgment in such case should not extend farther than
removal from office and disqualification to hold any state office.
The party impeached, whether convicted or acquitted, was
liable to be indicted, tried and punished according to law. The
house of representatives was given the sole power of impeach-
ment. All impeachments were to be tried by the senate, and
when sitting for that purpose, the senators were to be on oath to
do justice according to law and evidence. When the gove^-nor
was tried, the presiding judge of the supreme court was to pre-
side. No person was to be convicted without the concurrence
of two-thirds of all the senators present. The majority of
state constitutions had similar provisions on this subject. The
constitution of the United States or of Connecticut was probably
the pattern followed by Missouri.^^ The general assembly was
**Mo. Const., III. 31; Shoemaker, p. 54.
** Mo. Const., IV. 12, 21; V. 18; Shoemaker, pp. 71, 77f, 99.
"Mo. Const., III. 29, 30; Shoemaker, pp. 52f.
Origin a?id Content of the Constitution. 231
given power to remove supreme and circuit court judges and
the chancellor from office on the address of two-thirds of each
house to the governor for that purpose. Each house was to
state in its journal the cause of the removal and give notice of
same to the accused. The judge or chancellor whose removal
was requested was given the right to be heard in his defense
according to law, but no judicial officer was to be removed in
this manner if he might have been impeached. A majority of
the states provided for removal of judges in this manner. The
constitution of Illinois was the model followed by Missouri.®^
Finally the judicial power of the general assembly extended to
deciding, by a joint vote of both houses, contested elections of
governor and lieutenant governor. This principle was followed
by ten states, of which Illinois was the model for Missouri. ^^
The general assembly by a joint vote of both houses, was also
given power to decide between those candidates for governor
that had polled the highest votes, who should be governor in case
two or more persons had received an equal number of votes
and a higher number than any other person. ^^
The limitations placed on the general assembly fall naturally
into two classes — expressed and implied. The latter included
all those grants of power made to the executive or judicial
departments and those powers and regulations that pertained
in a specific or restrictive sense to the legislative department.
Powers granted to the first two departments were by implication
restrictions on the legislature, since by virtue of the state legis-
lature's residuary powers such executive or judicial powers
would otherwise have been under the control of the legislature-
Further, those powers of the legislature that were granted in a
specific manner and those regulating provisions governing the
organization and procedure of the legislature, were by implica-
tion limitations or probibitions on that body from exercising
such powers or following such provisions in different manner.
Since all these implied limitations on the general assembly
naturally make their appearance in considering the three de-
»» Mo. Const., V. 16; Shoemaker, pp. 97f.
»* Mo. Const., IV. 20; Shoemaker, pp. 76f.
»o Mo. Const., IV. 3.
232 Missouri Struggle for Statehood.
partments, they need not be enumerated in a separate dis-
cussion.^^
The expressed limitations on the general assembly included
a variety of subjects. Most of these were set forth in a separate
article called "Declaration of Rights," the majority of the
others were placed in the article on the legislative power. The
latter will be considered first.
One of the most important class of limitations on the
general assembly related to slaves. Certain implied, perhaps
expressed limitations were set forth in those slavery provisions
that made it commandatory on the legislature to pass certain
slave laws. Since these have been considered under the legis-
lative powers of the general assembly they will not receive
double treatment. Some other slavery limitations were, how-
ever, set forth that were without a doubt, expressed ones.
The general assembly was prohibited from passing laws
for the emancipation of slaves without the consent of their
owners, or without paying them, before such emancipation,
a full equivalent for such slaves. It was prohibited from pass-
ing laws to prevent bona fide immigrants to Missouri, or actual
settlers therein, from bringing from any of the states or ter-
ritories, such persons as were there deemed slaves, so long as
such persons were regarded slaves in this State. The con-
stitutions of Alabama, Kentucky and Mississippi had similar
limitations regarding slavery legislation. ^^ Other slavery limi-
tations that were binding on the legislature and also on the other
two departments of government were these: in criminal prose-
cutions, slaves were guaranteed trial by jury; in capital offenses,
a convicted slave was to suffer the same punishment as would
apply to white persons under the same circumstances; counsel
was to be assigned for the defense of slaves in the courts; any
person who should maliciously deprive of life or dismember a
slave, was to suffer such punishment as would be inflicted for a
like offense if committed on a free white person. No other
state constitution went so far in protecting the rights of the
"It was not thought necessary in a work of this character to consider those
implied limitations on the legislature that arise from judicial interpretation.
"Mo. Const.. III. 26; Shoemaker, pp. 49f.
Origin and Content of the Constitution. 233
slave as this one. In only three states, Alabama, Kentucky,
and Mississippi, did the constitution expressly give protection
to a slave when prosecuted for crime. These three states and
Georgia also regarded high crimes against slaves in the same
light as though against free whites.^^
The general assembly was limited in its power to establish
new counties. No county then established was to be reduced,
by the establishment of new counties, to less than twenty miles
square, nor was any new county to be formed that contained
less than four hundred square miles. The constitution of Ohio
alone contained an identical provision; a similar provision was,
however, included in the constitutions of Alabama, Indiana,
Mississippi and Tennessee. ^"^
A limitation was placed on the general assembly under a
power granted it regarding the revision of the laws. It was
provided that a complete revision of all the laws of the state
was to be made within five years after the adoption of the
constitution and subsequent revisions at the end of every ten
years. The constitution of only one state, Alabama, contained
a similar provision. ^^
The general assembly was prohibited from interfering with
the primary disposal of United States soil or with any regulation
of Congress for securing the title in such soil to the bona fide
purchasers. It was further prohibited from imposing a tax on
lands the property of the United States or from placing a higher
tax on lands in Missouri owned by non-residents than on lands
owned by residents. And the constitution, accepting and com-
plying with the Enabling Act, declared the State had concurrent
jurisdiction on the Mississippi River or any other river as far
as such river or rivers formed part of its boundary and pro-
hibited the general assembly from levying any tax, duty, impost
or toll, on such stream.s or on other navigable streams tributary
to the Mississippi River. No state constitution contained
provisions identical with these. The nearest approach was in
the constitution of Tennessee. However, in most of the en-
s' Mo. Const., III. 27, 28; Shoemaker, pp. 50f.
»< Afo. Const., III. 34; Shoemaker, pp. 56f.
»^ Mo. Const., III. 35; Shoemaker, pp. 57f.
234 Missouri Struggle for Statehood.
abling acts of the western states, similar provisions were set
forth. Their incorporation in these acts probably accounts
for their omission in the state constitutions.^^
The limitations on the general assembly that were included
in the "Declaration of Rights" were also limitations or implied
prohibitions on the other two departments. They were, how-
ever, of special force with reference to the general assembly
since they dealt largely with subjects that were intended to be
protected from legislative alteration. The "Declaration of
Rights" included those provisions that guarded the rights and
privileges of individuals. It dealt w4th those fundamental
principles of individual liberty and political rights, many of
which had their inception, or were supposed to have had, in
the Magna Charta. Originally purposed to guard the individual
against executive encroachments, their scope was broadened
to act as a safeguard against all governmental impositions and
especially against legislative action. Having a common origin
in English history and a similar development in American, the
provisions of the various "Bills of Rights," "Declaration of
Rights" and "General Provisions," of the different states,
presented in 1820 and still present today a remarkable uni-
formity of purpose and wording. All the states in 1820, except
New Jersey and New York, provided for a bill of rights in their
constitutions. In nine states it was called a "Declaration of
Rights," in two "Bill of Rights," in one "General Provisions,"
and in the others had no name but was placed under a separate
article in the constitution.
The Missouri "Declaration of Rights" consisted of a short
preamble and twenty-two sections. Since these sections were
as concisely and as clearly stated as possible in the constitution,
an exposition of all of them is unnecessary. The general prin-
ciples enunciated were these: that all political power was vested
in and derived from the people; that the power of regulating the
government and of altering the constitution belonged to the
people; that the people had a right to assemble and petition the
government for redress of grievances; that they also had the
right to bear arms in defense of themselves and of their State ; that
** Mo. Const., X.; Shoemaker, pp. 11 if.
Origin and Content of the Constitution. 235
religious equality and freedom of concience were not to be dis-
turbed; no religious corporation was to be established; that all
elections were to be free and equal ; that the courts should be open
to all; that private property ought not to be taken for public use
without just compensation; that the right of trial by jury and
the ordinary process of legal procedure should remain inviolate ;
that the privilege of the writ of habeas corpus should not be
suspended except in cases of rebellion or invasion ; that excessive
bail should not be required, or excessive fines imposed, or cruel
punishments inflicted; that unreasonable searches and seizures