Missouri Real Estate Lawyer

July 19, 2020, marks the bicentennial of the ratification of Missouri’s first state constitution. Before Missouri was a state, it was a territory[1] of the United States. In 1818, the legislature of the Missouri territory sent a petition[2] to the United States Congress seeking the authority to “form a constitution and establish a state government”.[3] However, Congress’ approval of this request was delayed for more than a year as Congress, and the nation, became embroiled in a debate about whether Missouri should be admitted into the Union as a slave state or as a free state.[4] Finally, by an act dated March 3, 1820,[5] the United States Congress authorized the inhabitants of the Missouri territory residing within the boundary lines described in the act, which more or less conform to the present-day boundary lines, to “form for themselves a constitution and state government, and to assume such name as they shall deem proper”.

The act[6] further provided that free white males, at least 21 years of age, “and all other persons qualified to vote for representatives to the general assembly of the…[Missouri] territory”, may be elected as, and may vote to elect, “representatives to form a convention”. The members elected to the convention were authorized by the act[7] to meet and to “form a constitution and state government” that shall be “republican, and not repugnant to the constitution of the United States”. Section 8 of the act put into effect the famous “Missouri Compromise”, which prohibited “slavery and involuntary servitude” in all of the land ceded to the United States pursuant to the Louisiana Purchase situated “north of thirty-six degrees and thirty minutes north latitude,[[8]] not included within the limits of the state”.[9] Finally, the act[10] provided that if the representatives form a constitution and state government, then a copy of the constitution shall “be transmitted to Congress.” Wasting no time, qualified inhabitants residing within the boundaries described in the act elected representatives to a state constitutional convention convened in St. Louis on June 12, 1820.[11] Thirty-eight days later, on July 19, 1820, the delegates ratified the state’s first constitution.[12]

Missouri’s first constitution contained thirteen articles. Article II mandated that the power of the state government be distributed among three “departments”: a general assembly, an executive, and a judiciary. Article III created the general assembly, comprised of a senate and a separate house of representatives. Sections 3 and 4 of Article III provided that membership in the house of representatives was to be restricted to “free white male citizen[s] of the United States”, who shall have inhabited the state for at least two years, and for at least one year in the county from which he is elected. The number of representatives of each county, serving two year terms, were to be apportioned according to the number of free white male inhabitants in each county. Senators, serving four year terms, were restricted to free white males of at least thirty years of age, who had inhabited the state for at least four years and the district where elected for at least one year. As with the house of representatives, senate seats were to be apportioned according to the number of free white male inhabitants.[13] Voting for elected officials was restricted to white males of at least twenty-one years of age, who had resided in the state for at least one year prior to the election.[14]

Article IV provided for the power of the chief executive of the state, who was to be given the title of governor. Unlike members of the general assembly, the governor and lieutenant governor needed to only be at least thirty-five years of age, a natural born citizen of the United States, or an inhabitant of upper Louisiana[15] when it was transferred to the United States,[16] and have resided in this state for at least four years prior to his[17] election as governor or lieutenant governor.[18] The governor was to serve a four year term and was precluded from being elected to consecutive terms.[19] Alexander McNair was the first governor of the state, serving from September 18, 1820 to November 15, 1824.[20] Missouri’s first constitution also appointed the governor as commander in chief of the militia and navy of the state,[21] a role Governor, Lilburn W. Boggs, assumed during the bloodless “Honey War” of 1839, when the states of Missouri and Iowa nearly came to blows over the location of their common boundary line.[22] Section 21 of Article IV mandated an office of a secretary of state, whom the governor was to appoint with the advice and consent of the senate. The primary function of the secretary was to maintain a record of the official acts of the governor. Section 23 of Article IV required the election of a sheriff and a coroner in each county.

Section 1 of Article V provided that “matters of law and equity, shall be vested in a ‘supreme court,’ in a ‘chancellor,’ in ‘circuit courts,’ and in such inferior tribunals as the general assembly may…establish.” The supreme court was to consist of three judges appointed by the governor, with the advice and consent of the senate.[23] The first three judges so appointed were Matthias McGirk, John D. Cook, and John Rice Jones.[24] Matthias McGirk served as the chief justice of the Missouri supreme court for its first twenty-one years, from 1820 to 1841.[25] He was an enormous influence on the development of Missouri law, not only as the chief justice of the supreme court, but also as a territorial senator. In his latter capacity he authored the authoritative territorial act entitled, “An Act Declaring What Laws Shall be in Force in This Territory”, which declared that the Missouri territory shall be governed by English common law, when not in conflict with the United States constitution or the laws of the territory.[26] In crafting Missouri state law as a justice of the Missouri State Supreme Court, Chief Justice McGirk employed an expansive analysis of such laws, along with the laws of other states of the United States and of other nations, including the ancient laws of Greece and Rome.[27]

Article V of Missouri’s first constitution further provided that the “state shall be divided into convenient cir-cuits (sic), for each of which a judge shall be appointed”.[28] Sections 6 and 8 of Article V granted to the circuit courts original jurisdiction in all civil cases “not cognizable before justices of the peace” and “superintending control” over inferior tribunals and the justices of the peace. Section 10 of Article V formed a court of chancery to decide equitable matters. All supreme court justices, circuit court judges, and chancellors were required to be at least thirty years of age, were to be appointed by the governor with the advice and consent of the senate, and could serve until the age of sixty-five, but only upon “good behavior”, or unless impeached or removed by the general assembly.[29] Section 18 of Article V required the governor to appoint an attorney general, who was to serve for four years and who was to “perform such duties as shall be required of him by law.”

Article XIII, entitled “Declaration of Rights”, provided in part that: all political power is derived from the people; the people have the right to assemble and to bear arms to defend themselves…which right “cannot be questioned”; justice ought to be administered without delay, and no private property ought to be taken without just compensation; the right to trial by jury shall be inviolate; the people ought to be secure in their “persons, papers, houses, and effects, from unreasonable search and seizures”; the “free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty”; and at all times, the military shall be “in strict subordination to the civil power”.

Thus ratified, Missouri’s first constitution was submitted to the United States Congress for approval. However, some members of Congress found section 26 of Article III repugnant to the privileges and immunities clause of the United States Constitution. The offending clause mandated the Missouri legislature to pass laws “as may be necessary…[t]o prevent free negroes and mulattoes from coming to and settling in this State, under any pretext whatsoever”. On March 2, 1821, in response to this clause, Congress passed a resolution[30] providing that Missouri shall be admitted into the Union “upon the fundamental condition, that the fourth clause[31] of the twenty-sixth section of the third article of the constitution submitted…shall never be construed to authorize the passage of any law…by which any citizen…[of] this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States”.[32] “Privileges and immunities” is found in Section 2, Article IV of the United States Constitution, which provides that “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Although the meaning and scope of the “privileges and immunities” clause has been the subject much debate,[33] it is generally understood to prohibit any state from restricting the free travel of any citizen[34] of the United States. As such, the March 2, 1821, resolution required the Missouri state legislature, “by a solemn public act”, to declare that it agreed with the foregoing condition to admission as a state and to “transmit to the President of the United States…an authentic copy of the said act”. The Congressional resolution concludes by providing that the president, upon receipt of such solemn act agreeing to the condition, shall “announce the fact” of his receipt of same, “whereupon…the admission of the State into the Union shall be considered complete.”

On June 26, 1821, in accordance with the requirements of the Congressional resolution, the Missouri State General Assembly declared that “the fourth clause of the twenty-sixth section of the third article of the constitution of this state, shall never be construed to authorise (sic) the passage of any law…by which any citizen of the United States shall be excluded from the enjoyment of any of the privileges and immunities to which such citizens are entitled under the constitution of the United States.” On August 10, 1821, President James Monroe, having received said solemn act of the Missouri legislature, issued a proclamation declaring that the State of Missouri assented to the condition contained in the Congressional resolution of March 2, 1821 and that the admission of the State of Missouri into the Union was complete.[35] Accordingly, on August 10, 1821, Missouri became the twenty-fourth state admitted into the Union.[36]

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END NOTES:

[1] In 1804, the 8^th Congress of the United States passed an act (Act of March 26, 1804, ch. 38, stat. 1) dividing the Louisiana province, which consisted of all the land acquired by the United States pursuant to the Louisiana Purchase, into the territory of New Orleans and the district of Louisiana, the latter including the land comprising present-day Missouri. In 1805, the 8^th Congress of the United States passed an act (Act of March 3, 1805, ch. 31, stat. 2) changing the district of Louisiana to the territory of Louisiana. Finally, in 1812, the 12^th Congress of the United States passed an act (Act of June 4, 1812, ch. 95, stat. 1) renaming the territory of Louisiana the territory of Missouri and establishing therein the framework for a representative general assembly consisting of a legislative counsel and a house of representatives.

[2] Denominated as a “memorial”.

[3] The petition is reproduced by the State Historical Society of Missouri at https://digital.shsmo.org/digital/api/collection/GovColl/id/20777/page/0/inline/GovColl_20777_0

[4] The Miscellaneous Documents of the Senate of the United States for the Second Session of the Fifty-Third Congress, 1893-1894, Washington Government Printing Office, 1895. P. 255-264. https://books.google.com/books?id=IC42AQAAIAAJ&pg=PA255&lpg=PA255&dq=december+18,+1818+bill+united+states+house+of+representatives+authorizing+missouri+to+form+a+state&source=bl&ots=S827jkj1vz&sig=ACfU3U0pNs1MNPqopdJt0kIEbKTXzd40ow&hl=en&sa=X&ved=2ahUKEwiX4Ozn27_oAhXLVc0KHbg0AJ0Q6AEwCnoECAgQAQ#v=onepage&q=december%2018%2C%201818%20bill%20united%20states%20house%20of%20representatives%20authorizing%20missouri%20to%20form%20a%20state&f=false

[5] Act of March 3, 1820, ch. 22, stat. 1, session I; signed by President, James Monroe, March 6, 1820.

[6] Id., section 3.

[7] Id., section 4.

[8] Except for the bootheel, the current southern boundary line of the state of Missouri is situated at 36 degrees, 30 minutes north latitude.

[9] Thereby ending the debate by admitting Missouri as a slave state.

[10] Section 7 of Act of March 6, 1820, ch. 22, stat. 1, session I.

[11] Preamble of the Missouri State Constitution of 1820, http://librarytrekker.x10host.com/MOConstitution/1820Page1.html

[12] Signature page of the Missouri State Constitution of 1820. Id. The delegates additionally passed an ordinance on this same date, accepting the terms of the Congressional act of March 3, 1820. See page 5: https://www.sos.mo.gov/cmsimages/publications/missouriconstitution_05.13.2015.pdf

[13] Sections 5 and 6 of Article III.

[14] Section 10 of Article III.

[15] All the land acquired by the United States pursuant to the Louisiana Purchase, excepting the land generally comprising the present-day state of Louisiana. Encyclopedia of the History of St. Louis, The Southern History Company, 1899, Page 1306. https://books.google.com/books?id=sy1IAQAAMAAJ&pg=PA1306&lpg=PA1306&dq=dividing+line+between+upper+louisiana+and+lower+louisiana&source=bl&ots=-v-sMJCyqT&sig=ACfU3U27ZqGbmB5A24XsQdCq7y-rQSJDqg&hl=en&sa=X&ved=2ahUKEwj94oO7jYjnAhWPK80KHQlIB5kQ6AEwFnoECAYQAQ#v=onepage&q=dividing%20line%20between%20upper%20louisiana%20and%20lower%20louisiana&f=false

[16] The transfer occurred in St. Louis on March 10, 1804. Id., page 1308.

[17] Absent from the constitution was any requirement as to the race or gender of the governor or lieutenant governor.

[18] Sections 2 and 3 of Article IV.

[19] Sections 3-4, Article IV.

[20] Website of the Missouri secretary of state, Missouri history, governors, https://www.sos.mo.gov/archives/history/historicallistings/governors

[21] Section 5 of Article IV.

[22] Eriksson, Erik M. “The Honey War.” The Palimpsest 5 (1924), 339-350. Available at: https://ir.uiowa.edu/palimpsest/vol5/iss9/4

[23] Sections 4 and 13 of Article V.

[24] Missouri secretary of State, Missouri Supreme Court Historical Database, https://www.sos.mo.gov/archives/judiciary/supremecourt/history.asp

[25] Courts.mo.gov: https://www.courts.mo.gov/page.jsp?id=120760

[26] Id.

[27] See as an example, Gentry and Wife v. Fry, 4 Mo. 120 (1835).

[28] Section 7 of Article V.

[29] Sections 13, 14, and 16 of Article 5.

[30] Proceedings and Debates of the Senate of the United States at the second session of the sixteenth congress, page 1830, https://memory.loc.gov/cgi-bin/ampage

[31] Said fourth clause appears to actually be the third clause.

[32] Italics added.

[33] A writing published by Cornell Law School regarding the meaning of the privileges and immunities clause: https://www.law.cornell.edu/wex/privileges_and_immunities_clause

[34] Whether blacks were citizens of the United States was also a subject of much controversy during this period and for many decades thereafter. https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/700

[35] A Proclamation of the President of the United States, Pages 8-9, https://www.sos.mo.gov/cmsimages/publications/missouriconstitution_05.13.2015.pdf

[36] Missouri Secretary of State Digital Heritage website, https://www.sos.mo.gov/archives/history/timeline/timeline3;  Missouri has ratified three new constitutions since 1820: 1865, 1875, and most recently in 1945, which itself has been amended on numerous occasions. Missouri Secretary of State, Missouri Digital Heritage web page, http://mdh.contentdm.oclc.org/cdm/landingpage/collection/p16795coll1