"The first eleven amendments to the Constitution were intended to limit the powers of the government which it created, and to protect the people of the States. Though earnestly sustained by the friends of the Constitution, they originated in the hostile feelings with which it was regarded by a large portion of the people, and were shaped by the jealous policy which those feelings inspired. The enemies of the Constitution saw many perils of evil in the center, but none elsewhere. They feared tyranny in the head, not anarchy in the members, and they took their measures accordingly. The friends of the Constitution desired to obviate all just grounds of apprehension, and to give repose to the public mind. It was important to unite, as far as possible, the entire people in support of the new system which had been adopted. They felt the necessity of doing all in their

"On the question relating to involuntary submissions of the States to the tribunal of the Supreme Court, the court seems not to have adverted at all to the expository language when the Constitution was adopted, nor to that of the Eleventh Amendment, which may as well import that it was declaratory as that it was restrictive of the meaning of the original text. It seems to be a strange reasoning, also, that would imply that a State, in controversies with its own citizens, might have less of sovereignty than in controversies with foreign individuals, by which the national relations might be affected. Nor is it less to be wondered at that it should have appeared to the court that the dignity of a State was not more compromitted by being made a party against a private person than against a co-ordinate party.

"The judicial power of the United States over cases arising under the Constitution must be admitted to be a vital part of the system. But that there are limitations and exceptions to its efficient character, is among the admissions of the court itself. The Eleventh Amendment introduces exceptions, if there were none before. A liberal and steady course of practice can alone reconcile the several provisions of the Constitution literally at variance with each other, of which there is an example in the treaty power and the legislative power on subjects, to which both are extended by the words of the Constitution. It is particularly incumbent, in taking cognizance of cases arising under the Constitution, and in which the laws and rights of the States may be involved, to let the proceedings touch individuals only. Prudence enjoins this, if there were no other motive, in consideration of the impracticability of applying coercion to States." Writings of Madison, vol. 3, 221, 222.

It will be observed that the amendment as finally passed only differs from the original amendment by adding the words "be construed to." This change was made in the Senate on January 2, 1794. 3d Congress Annals, 25.

power to remove every obstacle in the way of its success. The most momentous consequences for good or evil to the country were to follow in the results of the experiment. Hence the spirit of concession which animated the Convention, and hence the adoption of these amendments after the work of the Convention was done and had been approved by the people."

Mr. Tucker in calling attention to this change says, "As part of the history of this clause the original proposition did not contain the words 'be construed to.' Had it been adopted in its original form, it would have been a future limitation to the use of the judicial power. With the insertion of the words 'be construed to' it had retroactive effect by condemning the construction which had been given the original Constitution by the decision in Chisholm v. Georgia, when the amendment was called to the attention of the Supreme Court. A number of cases were dismissed from the docket because, by virtue of the amendment, the jurisdiction which had been assumed was taken away.” Tucker on the Constitution, Vol. 2, 786.

CHAPTER LVIII.

TWELFTH AMENDMENT.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors

appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The provision which this amendment superseded was in force from the adoption of the Constitution till September 25, 1804, a period of fifteen years, and was as follows:

"The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President." (Article 2, Section 1, Clause 3.)

The provision of the original Constitution concerning the manner of electing the President and Vice-President was not satisfactory.

The principal opposition to it arose because the electors were required to vote indiscriminately for two persons. The one who received the highest number of votes was to be President, and the one who received the next highest number to be Vice-President, but no elector could designate the person he wished for President or Vice-President. Several amendments were introduced in Congress for the purpose of changing this method and it was while one of these was pending before that body that Madison wrote Jefferson the following letter on the subject, three years before the above amendment was adopted:

"March 15, 1800.

"It is not to be denied that the Constitution might have been properly more full in prescribing the election of President and Vice-President; but the remedy is an amendment to the Constitution, and not a legislative interference. It is evident that this interference ought to be, and was meant to be, as little permitted as possible; it being a principle of the Constitution that the two departments should be independent of each other, and dependent on their constituents only. Should the spirit of the bill be followed up, it is impossible to say how far the choice of the Executive may be drawn out of the constitutional hands and subjected to the management of the Legislature. The danger is the greater, as the Chief Magistrate for the time being may be bribed into the usurpations by so shaping them as to favor his re-election. If this licentiousness in constructive perversions of the Constitution continue to increase we shall soon have to look into our code of laws, and not the charter of the people, for the form, as well as the powers, of our government. Indeed, such an unbridled spirit of construction as has gone forth in sundry instances would bid defiance to any possible parchment securities against usurpation."

This amendment was proposed in 1803 during the first session of the Eighth Congress. It was the contest be

1 Writings of Madison, vol. 2, 157.