of person or property were prohibited; that no person could be
attainted of treason or felony by the general assembly; that no
conviction should work corruption of blood or forfeiture of estate ;
that the freedom of speech and the press should not be infringed ;
that no ex post facto \2LW should be passed; that no debtor should
be imprisoned for his debts if he had surrendered his property
according to law; that no priest or preacher should be forced
to bear arms; that all property subject to taxation should be
taxed according to its value; that no title of nobility should be
granted; that emigration from the State should not be pro-
hibited; that the military was subordinate to the civil power;
that no soldier should in times of peace be quartered in any house
without the consent of the owner; and that no appropriation
for the army should be made for a longer period than two years.
The only provision of the foregoing that was not included in
at least half a dozen other state constitutions was the one
relating to taxation. The constitutions of only three other
states, Alabama, lUinois and Maryland, had a similar provision."
The executive department, provided for in the Missouri
constitution of 1820, was composed of the governor, lieutenant-
governor, adjutant general, auditor, secretary of state, and
treasurer. These officers and all other state officers, both
civil and military, were required, before entering on their
duties, to take an oath to support the State and National con-
stitutions and to demean themselves faithfully in office. The
constitutions of Alabama, Connecticut, Illinois, Maine, Indiana,
Mississippi and Ohio contained similar provisions. All of these
«^ Mo. Const., XIII.; Shoemaker, pp. 119-132.
236 Missouri Struggle for Statehood.
constitutions were of the nineteenth century. No constitution
of the eighteenth century required a state officer to take an
oath to support the United States constitution but practically
all required an oath to support the state constitution. Ohio
was the first state to start this and with the single exception of
Louisiana, it was followed by all the other states that framed
constitutions between 1802 and 1820.^^
The supreme executive power was vested in a chief magis-
trate styled "The Governor of the state of Missouri." In
providing for a single head form of a chief executive Missouri
followed the general rule that obtained among the states. ^^
The tenure of the governor was elective by a plurality
vote of the qualified electors. The manner and time of his
election were the same as obtained for representatives. When
two or more persons received an equal number of votes, and a
higher number than any other person, the election was to be
decided between them by a joint vote of both houses of the gen-
eral assembly at their next session. Eleven state constitutions
contained similar provisions. Five other states, Maine, Mas-
sachusetts, New Hampshire, Vermont and Connecticut, pro-
vided for an election by an absolute majority; while six other
states, Georgia, Maryland, New Jersey, North Carolina, South
Carolina and Virginia, still retained the old method of appoint-
ment by the legislature; and one, Louisiana, combined the elec-
tion method by the people with appointment by the legislature.^®*'
The term of the governor was four years and he was in-
eligible for the next four years after the end of his term of
service. The first state to provide a similar term was Kentucky,
which was probably influenced by the United States constitu-
tion. This was followed by Louisiana, Illinois and Missouri.
Ten states still held to the early rule of a one year term, six to
a two year term, and four to a three year term.^^^
The qualifications of the governor embraced age, citizen-
ship, and residence requisites. He was required to be at least
*» Mo. Const.. III. 32; Shoemaker, pp. 54f.
** Mo. Const., IV. 1; Shoemaker, p. 61.
»»»A/o. Const., IV. 3; Shoemaker, pp. 63f.
>«' Mo. Const., IV. 3; Shoemaker, pp. 63f.
Origin and Content of the Constitution. 237
thirty-five years of age. This was a high age quahfication. At
that time the constitutions of Kentucky, Louisiana and the
United States alone provided for the same. A majority of the
states placed the age minimum at thirty years; two states,
Maryland and Tennessee, at twenty-five years; and six states,
Massachusetts, New Jersey, New York, Rhode Island, Virginia
and Vermont, had no provision on this point. It was further
required that the governor be a natural born citizen of the
United States, or a citizen at the adoption of the United States
constitution, or "an inhabitant of that part of Louisiana included
in the state of Missouri at the time of the session thereof from
France to the United States." This was also a high qualifi-
cation. Besides the United States constitution, from which
this provision was obviously patterned, the constitutions of
Alabama, Illinois and Maine alone made natural or native
citizenship of the United States a necessary requisite. Only
seven other states, Delaware, Georgia, Indiana, Kentucky,
Louisiana, Mississippi and Ohio, made any kind of United
States citizenship a requisite. Finally the governor must have
resided in the State for at least four years next before his election.
Eighteen of the states required a state residence qualification,
varying from ten years in South Carolina to two years in Illinois.
Four states, Alabama, Ohio, Tennessee and Vermont, provided
a four year state residence. ^^^
The compensation of the governor w^as under the control
of the general assembly with two restrictions on this control,
the salary of the governor was not to be increased or diminished
during the governor's continuance in office and it was not to
be less than two thousand dollars a year. Eighteen states
made some mention in their constitutions of the compensation
of the governor. In no state constitution, however, was a
minimum amount mentioned. In fact one state, Tennessee,
placed the maximum salary at only seven hundred and fifty
dollars. In no state was there such a liberal provision in the
constitution relating to the salary of the governor.^'^'^
^'^^ Mo. Const., IV. 2; Shoemaker, pp. 61ff.
>»»Afo, Const., IV. 13; Shoemaker, pp. 7lf.
238 Missouri Struggle for Statehood.
The succession to the office of governor was set forth in
detail. When the office became vacant by death, resignation,
absence from the State, removal from office, refusal to qualify,
impeachment or otherwise, the lieutenant governor, or, in case
of like disability on his part, the president pro tempore of the
senate, or, if there was no president pro tempore of the senate,
the speaker of the house of representatives, was authorized to
possess all the powers and receive the same compensation as the
governor, until such vacancy was filled by a new or the old
governor. When the office of governor became permanently
vacant, the person temporarily filling that office was commanded
to cause an election to be held to fill such vacancy, giving three
months notice thereof. The person elected was not rendered
ineligible to succeed himself. If, however, the vacancy happened
within eighteen months of the end of the term, no election was
to be held. The succession to the governorship was similarly
provided for in most of the states. But only two states, Alabama
and Illinois, had provisions in their constitutions similar to the
foregoing provision calling for a separate election to fill such
vacancy. ^^^
The powers and duties of the governor fall naturally into
four classes — executive and civil administrative functions,
military, legislative and judicial. These powers and duties
were specifically set forth and were not, as in some of the cases
of the general assembly, possessed through residuary juris-
diction.
The executive and civil administrative functions of the
governor were few but important. He was directed to dis-
tribute the laws and to see that they were faithfully executed.
He was further empowered to be a conservator of the peace
throughout the State. These general executive powers of the
governor were granted him in a majority of the states. ^^^ He
was given power to fill by appointment vacancies in offices,
and persons so appointed were to continue in office until a suc-
cessor had been duly appointed, or elected, and qualified ac-
cording to law. Most of the states had a similar provision in
•o* Afo. Const., IV. 10, 17; Shoemaker, pp. 74f.
•o'Afo. Const., IV. 8; Shoemaker, p. 68.
Origin and Content of the Constitution. 239
their constitutions.^"^ The governor was commanded to issue
writs of election to fill vacancies in the general assembly. A
number of the states placed this duty on the governor. ^'^^ The
governor was given the power of appointing, by and with the
advice and consent of the senate, the auditor, attorney general,
secretary of state, and all state judges. This was a greater
power than was possessed by the governor in most of the states. ^''^
The military powers of the governor made him the com-
mander in chief of the militia and navy of the state, except
when they were called into the service of the United States.
He was not required to command in person unless advised to
do so by a resolution of the general assembly. He was also
given power to appoint the adjutant general, and all other
militia officers, whose appointments were not otherwise pro-
vided for in the constitution. Similar provisions were set
forth in the constitutions of practically all states. ^"^^
The legislative functions of the governor embraced his
veto power on both bills and joint resolutions, his power to
convene the general assembly in special session, and his power
to send messages to that body. Only the last power has not
been considered. The constitution provided that from time
to time the governor should give to the general assembly infor-
mation relative to the state of the government and should
recommend to their consideration such measures as he deemed
necessary and expedient. This legislative power was possessed
by the chief executive in fifteen states. ^^°
The expressed judicial functions of the governor were
confined to his power to remit fines and forfeitures, and, except
in cases of impeachment, to grant reprieves and pardons.
These powers were possessed by the governor in nearly all the
states."^
The lieutenant governor was elected at the same time, in
the same manner, for the same term, and was required to pos-
^'^^ Mo. Const., IV. 9; Shoemaker, p. 68.
»<" Mo. Const., III. 9; Shoemaker, p. 34.
^o<> Mo. Const., IV. 12, V. 18, IV. 21, V. 13; Shoemaker, pp. 71. 99, 77f. 95f.
^"^ Mo. Const.. IV. 5, IX. 3; Shoemaker, pp. 66. 110.
110 Mo. Const.. TV. 7: Shoemaker, v. 67.
ii« Mo. Const., IV. 7; Shoemaker, p. 67
111 Mo. Const., IV. 6; Shoemaker, 66.
240 Missouri Struggle for Statehood.
sess the same qualifications as the governor. He was president
of the senate by virtue of his office. In committee of the
whole senate he was privileged to debate on all questions and
on an equal division he was given the casting vote, both in the
senate and in joint votes of both houses. The constitutions
of ten states provided for a lieutenant governor: his duties were
similar in all these. Illinois and Kentucky were probably the
models followed by Missouri in framing these provisions. ^^-
The adjutant general was appointed by the governor.
Neither his term nor his duties were prescribed. In practice
he was the actual head of the militia and his term depended
on the good will and the term of the governor.^^^
The auditor of public accounts was appointed for four
years by the governor and senate. His duties were to be pre-
scribed by law and his office was to be kept at the seat of govern-
ment. Only three states provided for an "auditor," and in
each his tenure was appointive by the legislature. The functions
of auditor were, however, exercised by a separate officer in many
of the other states. His term in these states varied from one
to three years. ^^^
The attorney general was appointed for four years by the
governor and senate. His duties were to be prescribed by
law. The constitution patterned this provision after the con-
stitutions of Alabama, Kentucky and Mississippi. The ap-
pointive tenure was the general rule followed by most of the
states that provided for such an office. His term was three
years in some and during good behavior in others."^
The secretary of state was the most important executive
officer after the governor. He was appointed for four years
by the governor and senate, and it was expressly stated that
he was subject to removal by impeachment processes, rlis
duties were largely enumerated. He was to keep a register of
all the official acts of the governor and when necessary attest
them; he was commanded to lay same, together with all papers
relative thereto, before either house of the general assembly,
"»Mo. Const., IV. 14. 15; Shoemaker, pp. 72f.
^i» Mo. Const., IX. 3; Shoemaker, p. 110.
^^* Mo. Const., IV. 12; Shoemaker, pp. 71f.
*'* Mo. Const., V. 18; Shoemaker, p. 99.
Origin and Content of the Constitution. 241
whenever requested; and he was to perform such other duties
as might be enjoined on him by law. He was further charged
with procuring a seal of state, with such emblems as should be
directed by law. This seal, called the "Great Seal of the State
of Missouri," was under the custodianship of the secretary of
state. All official acts of the governor, his approbation of the
laws excepted, were to be thereby authenticated. Finally,
the returns of all elections of governor and lieutenant governor
were to be made to the secretary of state. Eighteen states
made provision in their constitutions for a secretary of state.
Three of these, Kentucky, Louisiana and Tennessee, were
identical with the Missouri constitution. Four other states,
Delaware, Illinois, Mississippi and Pennsylvania, made his
tenure appointive by the governor. The remaining states either
made his tenure appointive by the legislature or elective by the
people, which latter obtained in Connecticut and Maine. Be-
sides the first three states, only two others made his term four
years, Indiana and South Carolina. With the exception of
Virginia, which made his term during good behavior, the re-
maining states were equally divided in providing a term of
one, two, or three years. His duties were similar in most of
the states. All the states made some provision in their con-
stitutions for a seal of state. It went by difTerent names. In
the majority of the states the custodian was the governor; in
Georgia and Connecticut it was the secretary of state. ^^^
The state treasurer was appointed biennially by joint vote
of the two houses of the general assembly. His office was at
the seat of government. No money was to be drawn from the
treasury but in consequence of lawful appropriations. He was
required to keep an accurate account of the receipts and ex-
penditures of the public money, which account was to be pub-
lished annually. The constitutions of only Georgia, Illinois
and Tennessee provided a two year term for the treasurer.
The appointive tenure by the legislature was the general rule
in nearly all the states. The financial duties and regulations
prescribed were also the same in most of the states. ^^*^
>"A/o. Const., IV. 19, 21, 22; Shoemaker, pp. 77ff.
11' Mo. Const., III. 31; Shoemaker, pp. 53f.
M S— 16
242 Missouri Struggle for Statehood.
The judicial powers were vested in a supreme court, in a
chancellor or a court of chancery, in circuit courts, in such
inferior tribunals as the general assembly might establish, and
in local justices of the peace. "^ The system of organization
was hierarchical both in form and in character of jurisdiction.
Only the first three bodies, which were essentially state courts,
received any considerable attention in the constitution, the
others, which were local courts, being subject to the control of
the general assembly. Not one, however, was free from a con-
siderable degree of control on the part of the legislature. The
only constitutional provisions that seemingly applied to all
five courts related to clerks and writs. The courts were em-
powered to appoint their clerks, who were to hold ofhce during
good behavior. For any misdemeanor in ofifice they were liable
to be tried and removed by the supreme court as should be
directed by law. Nearly half of the state constitutions had
similar provisions. ^^^ The Missouri constitution provided that
all writs and processes should run, and all prosecutions should
be conducted, in the name of the ''State of Missouri;" and that
all writs should be tested by the clerk of the court from which
they should issue, and all indictments should conclude, "against
the peace and dignity of the state." A majority of the state
constitutions set forth similar rules. Some used the word,
"People," some "Commonwealth," but most used "State." ^^^
The judges of the supreme court and the circuit courts,
and the chancellor, were all subject to the same constitutional
provisions regarding their tenure, term, compensation, qualifi-
cation and removal. Their tenure was appointive by the
governor and the senate. All the states except Georgia, and
in part Indiana, provided for an appointive tenure for the
judges: about half confided this power in the legislature and
half in the governor and senate or council. ^-^ The tenure was
during good behavior. All of the states except Georgia, In-
diana, Ohio and Connecticut, made the same provision. ^-^ The
»>« Mo. Const., v. 1, 12, 17.
^i» Mo. Const., V. 15; Shoemaker, p. 97.
""Mo. Const., V, 19; Shoemaker, pp. 99f.
"* Mo. Const., V. 13; Shoemaker, pp. 94f.
"> Ibid.
Origin and Content of the Constitution. 243
salary was not to be lower than two thousand dollars a year
and was not to be diminished during the holding of office.
Practically all the states provided that either the salary was
to be adequate or was not to be diminished during office. Mis-
souri followed the general rule that obtained in all of these
cases except that she stated definitely what the minimum salary
was. Illinois was the only other state that did this, and Louis-
iana was the only state that placed the salary at a definite
figure. ^2^ The only qualification that applied to these judges
related to age. The minimum age qualification was thirty
years; the maximum was sixty-five years, over which no judge
was to exercise the duties of his office. No other state consti-
tution contained a minimum age qualification for judges and
only five, Alabama, Connecticut, Maine, Mississippi and New
Hampshire, provided for a maximum one. The actual qualifi-
cations of the judges during the early state period were uniformly
high but this was due either to statutory provisions or to cus-
tom. ^^"^ The removal of the judges was provided for either by
impeachment proceedings by the house of representatives and
by the senate, or by address of the general assembly to the
governor. Both of these functions have been considered under
the judicial powers of the legislature. ^^^
Besides these general rules applying to the organization
of the three higher courts, the constitution also set forth specific
provisions regarding both the organization and the jurisdiction
of each court.
The supreme court was composed of three judges, any two
of whom constituted a quorum. These judges were to be con-
servators of the peace throughout the State. A majority of
the states provided for a supreme court of some kind although
under various names. No rules obtained in the states regarding
the composition of this court. The number of judges varied
from three to eight. In all cases either two or a majority of
the judges constituted a quorum, and in many states they were
1" Ibid.
^^* Mo. Const., V. 14; Shoemaker, p. 96.
"» See supra.
244 Missouri Struggle for Statehood.
expressly made conservators of the peace. The constitution
of Indiana was probably the model followed by Missouri.^^^
The general jurisdiction of the supreme court, except in cases
otherwise directed by the constitution, was appellate and was
co-extensive with the State. The constitution gave the court
general superintending control over all inferior courts. It
was also given the power to issue writs of habeas" corpus, man-
damus, quo warranto, certiorari and other remedial writs, and
to hear and determine the same. The constitutions of Alabama,
Georgia and Tennessee gave the same jurisdiction to their
supreme courts. The Indiana constitution contained a similar
provision but did not expressly give the supreme court power
to issue remedial writs. ^^^ The place and time of sessions were
largely under the control of the general assembly. It was
provided that the state should be divided into convenient
districts, not to exceed four, in each of which the supreme court
was to hold two sessions annually, at such place as the general
assembly should appoint; and when sitting in either district,
that court should exercise jurisdiction over causes originating
in that district only. It was further provided, however, that
the general assembly might, at any time, direct by law that
the supreme court hold its sessions at one place only. Few
state constitutions made mention of these subjects. The
constitution of Louisiana bore the nearest resemblance to Mis-
souri's in this respect. ^^^
The composition of the court of chancery was a chancellor.
The jurisdiction of this court was co-extensive with the State.
The times and places of holding its sessions were to be regulated
in the same manner as those of the supreme court. It was to
have possessed original and appellate jurisdiction in all matters
of equity, and a general control over executors, administrators,
guardians and minors, subject to appeal, in all cases, to the
supreme court, as should be provided by law. Only seven
states, Alabama, Delaware, New Jersey, Vermont, Maryland,
Pennsylvania and Mississippi, made any express provision in
^^'^ Mo. Const., V. 4; Shoemaker, p. 88.
i^-i Mo. Const., v. 3; Shoemaker, p. 87.
^** Mo. Const., V. 5; Shoemaker, pp. 88f.
Origin and Content of the Constitution. 245
their constitutions for a chancellor or a court of chancery.
Regarding both the extent and kind of jurisdiction of this court,
Missouri followed the Delaware constitution. ^^o
The circuit courts were modeled on those of the territorial
period. Each was composed of one circuit judge. The State
was to be divided into convenient circuits, for each of which a
judge was to be appointed. Each circuit judge was required
to reside in his circuit and was to be a conservator of the peace
in that circuit. The name "circuit court" appeared only in the
constitutions of Illinois, Indiana and Alabama. The functions
of this court were, however, exercised in other states by like
courts that differed in name only.^^*^ The reason the number
of circuits were not fixed in the constitution was probably due
to the obvious necessity that would arise of making changes.
The jurisdiction of this court extended to both criminal and
civil cases. It was given jurisdiction over all criminal cases
that should not be otherwise provided for by law, and exclusive
original jurisdiction in all civil cases not cognizable before
justices of the peace, until otherwise directed by the general
assembly. The circuit court was further authorized to exercise
a superintending control over all inferior tribunals that might
be established and over justice of the peace in each county in
its respective circuit. The time of sessions was impliedly left
to the regulation of the general assembly. The place of session
was expressly under the selection of that body with the limitation
that one place was to be selected in each county. The pro-
visions regarding the jurisdiction of the circuit court were prob-
ably copied from the constitution of Alabama; those regarding
the control of this court over inferior tribunals were patterned
after the Ohio and Pennsylvania courts. ^^^ The circuit court
was also given jurisdiction in matters of equity. Its decision
in such matters was not final, being subject to appeal to the
court of chancery. This equity jurisdiction was, further, not
vested permanently in the circuit court, but only until the
general assembly should establish inferior courts of chancery.
i^> Mo. Const., V. 9, 10; Shoemaker, pp. 86, 90f,
^i" Mo. Const., V. 7; Shoemaker, pp. 86, 90.