Indiana Law Journal Indiana Law Journal

Volume 5 Issue 5 Article 3

2-1930

In Re: Proposed Constitutional Convention In Re: Proposed Constitutional Convention

James W. Noel Noel, Hickman, Boyd & Armstrong

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Recommended Citation Recommended Citation Noel, James W. (1930) "In Re: Proposed Constitutional Convention," Indiana Law Journal: Vol. 5 : Iss. 5 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol5/iss5/3

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IN RE: PROPOSED CONSTITUTIONALCONVENTION

JAMES W. NoEL*

A constitution, in its political sense, is the fundamental ororganic law or principle of government, of a nation, state, so-ciety or other organized body of men, embodied in written docu-ments or implied in institutions or customs of the country. Thisis the best authorative definition of a constitution sanctioned byjurists and statesmen. The British Constitution belongs to theclass of customary or unwritten constitutions susceptible tomodification by act of the Parliament. The Constitution of theUnited States and of the States of the Union are known as rigidconstitutions and cannot be modified in their express terms, ex-cept by process ordained by the constitution itself. Both cus-tomary and written constitutions yield to gradual and essentiallyunconscious changes through the development of the law by thejudiciary. The British Constitution retains, as an essential part,the ancient Bill of Rights, first formulated as principles, thenafterward enacted into written law by the British Parliament.The reform act of 1832, enacted by the British Parliament isalso considered an essential part of the British Constitution.Other than by these two outstanding enactments, the BritishConstitution has been maintained through the centuries withall the rigidity, and even more, that has characterized any writ-ten constitution, not even excepting the Constitution of theUnited States. Mr. Gladstone characterized it as "a subtle or-ganism which has proceeded from progressive history." Onceformulated, the principles erected as the guaranty of Britishliberty have stood unchanged by wars, revolutions and changesof dynasty. Abuse and disregard of the most sacred of thoseprinciples have at times been violent, but they have been onlytemporary. The same principles of government and guarantyof rights have not always been exercised toward the colonies ofthe Empire, but the essential rights of Englishmen have beenincorporated and maintained in that body of principles hereto-fore and now called the British Constitution. Judicial construc-

* See p. 396 for biographical note.1 An address delivered before the Indiana State Bar Association, Jan-

uary 16, 1930.

373

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tion has not impaired them. So jealously have these rights beenguarded, so dominant have been those great principles once es-tablished, that the very integrity of the British character haskept them unimpaired as a component part of the life of the na-tion itself. Once secured and formulated as essential ingredientsof English liberty, the Anglo-Saxon character has regardedit as superfluous and unnecessary to reduce the system to a writ-ten instrument and the British Constitution itself has sufferedless of change, as it existed at the time of the American Revolu-tion than has the written constitution of the United States orof any of the States, excepting possibly a few of the originalthirteen States. It has been supported and maintained by apopulation whose racial mixture has been little changed sinceMagna Charter. The British character has not yielded to theinfluence of foreign immigration or the advent of Latin orother foreign populations. From such influences its Nationalthought, its inherent conception of freedom and its traditionaljealousy of individual rights have not suffered. Unwritten con-stitutions can be no more stable than the National character.The British National character has been inflexible.

British reform legislation and reform movements have takenplace within the narrow limits of this unwritten constitutionwithout apparently abandoning any of its historic principles.We are often cited to modern treatment of crime in England.We know that crime is there more certainly detected and morespeedily and efficiently punished than in the United States andin the popular mind it is believed that this has been accom-plished by dispensing with so called technical defenses resortedto in this country, based upon the Bill of Rights which is a partof every State Constitution. This is a popular fallacy. In everycourt in England the accused is given the benefit of every guar-anty of liberty enumerated in the ancient Bill of Rights. Ifinefficient counsel does not assert them in favor of the defendant,the justice upon the bench does so zealously. No accused personin a British court can be required to testify against himself.The charges against him must be definite and certain. He isentitled to a Jury trial by an impartial tribunal. His failure totestify cannot be urged against him. The accusatorial method oftrial has, in no sense, been superseded by the inquisitorialme-thod of the Latin countries toward which there is so muchthoughtless editorial appeal in the United States. And it is well

IN RE: CONSTITUTIONAL CONVENTION

known that Scotland Yard does not employ "the third degree"with persons under suspicion, a practice tolerated in the UnitedStates, but entirely abhorrent to the traditional conception ofAnglo-Saxon liberty.

The States of the Union, as colonies denied the protection ofthe British Constitution, invoked the written constitution as adefinite compact and guaranty assuring their liberties againstencroachment of arbitrary power. The United States Constitu-tion being a grant of power was necessarily a written instru-ment because of the nature of the compact, but the States them-selves deemed it obligatory to require a written definite declara-tion of principles and division of the powers of Government withthe statement in no uncertain terms of restrictions upon suchpowers. So jealous were the people of the new States that thereshould be no failure of explicit definition of the rights of freemen, that the State of Virginia refused to ratify the Constitu-tion of the United States, excepting upon agreement that thefirst ten amendments constituting the Bill of Rights should bespeedily adopted as amendments to the Federal 'Constitution.Some of the State constitutions were engrafted upon and copiedin part after the grants to the colonies from the British Govern-ment. Others were formulated as new instruments in virilelanguage made certain, specific and powerful by great men onfire with the passion for perpetual liberty, self government andorder on this continent. The men who formulated these earlyconstitutions were deeply versed in the philosophy and historyof government. Prior to the Revolution, General Gage wroteback to the Prime Minister in London that more copies ofBlackstone's Commentaries had been sold in the colonies thanin all the remainder of British Dominion; that every man wasa lawyer and familiar with the principles underlying govern-ment. The Declaration of Independence itself was the greatestdeclaration, as well as definition, of liberty and the rights ofmen then formulated. Ever since its adoption the statesmenand philosophers of the world have agreed that the Constitutionof the United States was "the most wonderful work ever strickenoff at a given time by the brain and purpose of man". Thesewere all fresh in the minds of the people, together with all thediscussion involving them. The Federalist papers written byHamilton, Madison and Jay, had almost universal circulation inthe new States and were then the greatest and soundest dis-

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quisitions upon constitutional government that had ever been

read at a Nation's fireside. In 1787 John Adams, while minister

to England, wrote and published those three unanswerable vol-

umes, "Defense of the American Constitutions" in which he re-

viewed for America, as well as for English readers, all the ex-periments in democratic government in recorded history. Inthese he so well answered and satisfied both foreign and domes-tic criticism of the character of our constitutions that no oneof magnitude has ever had the temerity to propose an improve-ment upon the plan, the character, the assertion of rights, thedistribution of powers and the constitutional restrictions whichcharacterize not only the constitution of the United States, butthe flock of new constitutions then being formulated by the newStates. At this day it is necessary to make a search to securethose precious volumes outside of well established libraries. Inthe early days of our country, those volumes were familiar tothe educated portion of the people of the United States.

The rigid constitution, besides being a safeguard against ar-bitrary encroachment and a direct result of the desire to per-petuate in explicit, definite form the principles for which thecountry had sacrificed so much in blood and effort, was neces-sary as a protection against the mighty influences foreseen bythose wise men, soon to pervade American life. No immigrationof different blood, traditions, customs or concepts of libertycould impair the power of that great statement of principlesknown as the British Constitution, but from the beginningAmerica had become the asylum of the oppressed people of theEuropean nations; the population even of the colonies was be-coming influenced by immigration from the Latin countries andfrom other countries whose national and political ideals weredifferent from those of Great Britian and of the original popu-lation of these colonies. Jefferson foresaw, in 1803, a tremen-dous migration that would march across the continent and pur-chased the Louisiana territory; and a few adventurous and ideal-istic spirits foresaw the march of Empire from the Atlantic tothe Pacific between the 44th degree latitude and the Gulf ofMexico. It is apparent therefore, and goes without argumentthat a country such as the United States, with a heterogeneouspopulation, excluding none but the Mongolians, must forsee thatthe ideals resulting from amalgamation of races may vary fromtime to time from the essential concepts of Anglo-Saxon liberty.

IN RE: CONSTITUTIONAL CONVENTION

It could not be conceived that people coming from so manysources, combining themselves into a new race, could in thefuture, with any safety, be left free to expand or contract anunwritten constitution, as differing local, racial, commercial orreligious influences might suggest, and yet make the experimentof democratic government successful and permanent. It wasnecessary that the States of the Union formulate rigid writtenconstitutions to conform to the great ideals of the founders andto comport with the original notions of Anglo-Saxon liberty. So

were the constitutions of the States made definite and certain.They were ordained as organic law, as a statement of funda-mental principles of government for the States. Only upon suchrigid definition and statement of rights, correct distribution ofthe powers of government, careful provision of -checks and bal-ances, loyal recognition of judicial authority and of the author-ity of the constitution as the Supreme law and by its terms madedifficult of amendment could we depend for the success of thisgreatest experiment of all time in self government. (Note-Marbwry v. Madison, had been decided in 1801.)

So, when the constitution of Indiana was formulated in 1816,it was written and adopted in nineteen days by a body of fiftydelegates inspired by great ideals, influenced by the then newand modern philosophy expounded by the founders of our insti-tutions. The leaders of those times who had adventured in theterritory of Indiana were for the most part educated men. Theywere scholars in the history and philosophy of government. Theirpersonal memory reached back into the atmosphere of the Revo-lution and of the great contests in our own country when theprinciples of constitutional government were first formulated inthe Federal Constitution and the earlier State Constitutions.

Through the one hundred fourteen years elapsed since then, wehave devoted ourselves to the development of a great country in

the firm belief that our liberties were established, that all wehave to do is govern ourselves and become rich and powerful,forgetting that except for these great bulwarks of liberty, un-consciously enjoyed, every man must carry a sword and be sur-rounded by a band of armed retainers. Those great men werescarcely removed from the sound of battle and sight of blood outof which these great principles had been preserved to them. Itwas recognized that no government of a people given to tem-porary and transient tendencies could endure without a rigid

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written constitution with such provisions for amendment aswould require deliberation and difficulty in changing the organiclaw, the result of centuries of development.

It will be noted that the constitution of 1816 was copied al-most entirely from the constitutions of Ohio and Kentucky, thenrecently adopted and nearly identical. The statement of rightsand the distribution of powers were so well formulated and sowell known that it only required nineteen days to formulate thisconstitution under which we lived without any amendment what-soever until 1851.

So much for background. The late Lucius B. Swift's book,"How We Got our Liberties" should be read by every American,and particularly by every delegate to a Constitutional Conven-tion. Ignorance of history begets lack of reverence for sacredthings.

The makers of the Constitution of 1816 were the direct repre-sentatives of the people of Indiana, and were clothed with ple-nary powers subject to the limitations that the new Constitu-tion should be republican in form, should not be repugnant tothe Constitution of the United States and the principles of theDeclaration of Independence and that the Convention shouldaccept all the terms of the Enabling Act. The work was welldone and responded to the spirit of the times. The instrumentprovided for the submission to the people on every twelfth yearof the question as to the calling of a constitutional convention.No such convention was held until the year 1850. Notwith-standing frequent agitations for amendment, no amendments tothis Constitution were made until the general revision made inthe convention held in 1850.

It was well suited to the needs of an American state. Thechief abuse under it was the passage of special and local legisla-tion, of which there were more than 600 instances in the legis-lative session of 1847. Indeed, special legislation for a long timeengaged fully three-fourths of the time of the General Assem-bly, and lobbyists for special acts largely controlled generallegislation by trading and "log rolling". Most vigorous demandsfor amendment began in 1846, when citizens, newspapers andpublic meetings proposed more than fifty amendments, manyof them afterwards ignored. Among the principal propositionsseriously considered were the following:

A proposal for biennial sessions of the legislature; abolition

IN RE: CONSTITUTIONAL CONVENTION

of associate judgeships; appointment of associate judges andjustices of the peace; remodeling of the judiciary with ade-quate compensation for judges; the creation of probate courts;the delegation of local legislation to local authorities; abolition oflocal or special legislation; prohibiting legislative divorces; fix-ing the membership of the House and Senate at different num-bers; fixing the age of representatives and senators; fixing leg-islative sessions at six weeks and the compensation of membersat $2.00 per day; different proposals as to the Governor's termof office; providing that all fines should be applied to the sup-port of common schools instead of county seminaries; prohibit-ing the creation of any state debt except in case of war or in-vasion and subject to other various limitations; prohibiting therenewal or creation of any charter for banks; abolition of thepoll tax; election of all judges and state officers; establishmentof a system of free common schools; the restriction of suffrageto white males Who were actual residents; the abolition of li-censes for trades and professions; prohibiting imprisonment fordebt in any form; fixing the amount of exemption from execu-tion; prohibiting the passage of all relief laws; guaranteeing tofemales the absolute control of their own property; changingthe time of general elections from August to October; placingrestraints upon the growth of monied monopolies, and numerousother suggestions.

Notwithstanding the numerous suggestions as to the changeof a then very scientific and satisfactory organic law, GovernorWhitcomb, in recommending a convention, stressed only thegreat evil of local or special legislation, recommending the pro-hibition of legislation of a local and private character andmaking it the duty of the legislature to confer the requisitepowers upon local boards or functionaries. He further recom-mended that sessions of the legislature be held biennially, ratherthan annually; also that there be prohibited the creation of anypublic debt except under restrictions as to amount and object.

It would appear that except for the dominant sentimentagainst local and special legislation, the Constitution of 1816might have gone many additional years without revision oramendment. The great majority of the people seemed well sat-isfied with their organic law. There was the constantly ex-pressed fear that general revision might result in evils greaterthan any then endured. There was the constantly expressedquestion, "Where is the security against extremes ?"

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Some of the merits of that Constitution are outstanding. Thelegislature retained the sovereign power of taxation without anyembarrassing restrictions; there was a short ballot; the Su-preme Court and other important judges were appointive, andotherwise the departments of the sovereign government sufferedless from restriction than at present. But following the electionof President Jackson, a new political slogan had been adoptedby both parties, and public offices became classed as spoils.Therefore, elective public offices ought to be increased and as apolitical measure favored by both parties, under the guise ofan inducement to immigration, the franchise was offered toaliens who had been here for one year and had declared inten-tions. There were editorial expressions, certainly applicablein the forties, as to "the lamentable state of public mind" as-serted against both those favoring and those objecting to a con-stitutional convention.

The convention was called in October of 1850 and adjournedin February of 1851, after 127 days of labor. Contrast this withthe 19 days of labor required for the production of the firstconstitution. The business of restriction and amendment becamea craze, with astounding proposals and contentions expressedby newspapers, individuals, organized societies and politicians.There seemed to be chaos of thought and expression upon thesubject. Innumerable requests were made for changes, and al-together 333 resolutions were proposed to the convention bydelegates and were acted upon. If adopted, they were submittedto the appropriate committees. These resolutions all proposedchanges in or additions to the then existing constitution. Theresolutions were with respect to a large variety of subjects:-As to rights and privileges of citizens, 42; as to suffrage, tenureof office and removal, 50; as to administration of justice and thejudiciary, 47; as to corporations, banking institutions and fi-nance, 40; as to the executive department, 11; as to the legisla-tive department, 49; as to schools and education, 18; as to ne-groes, 7; as to methods of amending the Constitution, 4; as tointoxicating liquors, 3; as to the militia, 3; and a large numberof miscellaneous and nondescript provisions. Fifty-two peti-tions by the people, mostly with respect to slavery, the prohibi-tion or regulation of intoxicating liquors, the poll tax, bankingand the rights of married women were referred to committeesby the convention. The convention which the leaders had sup-

IN RE: CONSTITUTIONAL CONVENTION

posed was called to correct a few major evils, was immediatelyassaulted, petitioned and abused with respect to a myriad ofproposed changes emanating from the people.

The convention of 1850-51 fortunately included in its mem-bership a large number of learned men who were conspicuousfor their knowledge of constitutional law, of our own institutionsand of social science and who possessed a wide range of learn-ing. Except for the outstanding character of the leaders in thatconvention, our present Constitution might have been a mon-strosity of strange proportions.

Notable among those leaders were Judge Pettit, Robert DaleOwen, Thomas A. Hendricks, Judge Biddle, William S. Holman,David Wallace, Schuyler Colfax, Alvin P. Hovey and Bright,Badger and George Whitfield Carr, who was President of theconvention. William H. English, himself a scholar and histor-ian, was Secretary. We quote from Governor Ralston's mes-sage to the legislature of 1917:

"An Indiana historian has said that 'No more importantbody of men ever assembled in the State of Indiana than thatwhich met in the hall of representatives in the old state capitolin Indianapolis, October 7, 1850, to revise the constitution ofthe state.' The statement might have gone further without tran-scending the truth and have declared that no abler body of menthan these ever assembled in this state. Their work lives afterthem and will long be recognized as a memorial to their superiorwisdom."

Upon the major points of prohibition of special and locallegislation, of restriction upon bonded debt and provision forthe common school system, the new instrument was an im-provement, but in other respects it was far from an improve-ment, and it is out of these errors there comes now an insistentdemand for revision or amendment. First, a short ballot waschanged into a long ballot, for a greater number of constitu-tional offices were created and made elective. Second, the suf-frage was extended to aliens by a measure satisfactory to spoils-men. Third, the judiciary was made entirely elective, whereasthe Supreme Court and the presiding judges of the circuitswere theretofore appointive. Fourth, the sovereign power oftaxation which was unlimited in the first Constitution, was re-stricted by the so-called uniform provision for assessment andtaxation in our present Constitution, which practically all thecitizens of Indiana agree should be changed. In these respects,however, the delegates yielded to a then loud demand for re-

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vision. Upon these points we now have a popular demand forrevision and for a restoration of substantially the original pro-visions of the 1816 Constitution.

The Constitution was submitted to the people and ratified bya large majority; the negro colonization provisions were alsosubmitted separately and approved by the people. The new Con-stitution also delegated to political subdivisions and to munici-pal corporations a proper degree of self government. Underseventy-eight years of that Constitution Indiana has progressedand developed to its present status. The increase in electiveoffices has contributed to make the state a hot-bed of politicalactivity, the candidates for all elective offices constituting in agreater or less degree the nucleus of political organizations orso-called "machines." The Bill of Rights, however, has beenmaintained, respected and enforced, although lack of good ad-ministration and the over-zealousness of attorneys for defend-ants have sometimes prostituted those sacred rights to thedisadvantage of society, By legislative enactment under theConstitution, property has been made secure, vested rights pro-tected and corporate activity more or less encouraged until bythe- Act of 1929 the General Corporation Act provided a modellaw with proper restrictions and safeguards which will inviteto the State of Indiana much capital which will add to its wealthand industrial, commercial and agricultural development.

This Constitution has been subjected to much agitation buthas been but little amended. After twenty-six years, the Wa-bash and Erie Canal amendment was adopted. In 1881, sevenamendments were adopted, conforming the Constitution to thenew status of the negro race, changing the general election fromOctober to November, providing that official salaries might begraded according to population and service, providing a consti-tutional two per cent debt limit, and striking out the word"inferior" as applied to courts other than the Supreme Court;and in 1921 there was adopted the Women's Suffrage amend-ment.

So now, the organic law of the state known as our Constitu-tion, constitutes a very proper declaration of principles, an en-tirely correct apportionment of powers to the three departmentsof government and contains orderly provisions placing restric-tions upon and checks and balances against the exercise of suchpowers, which for seventy-eight years have received such wealth

IN RE: CONSTITUTIONAL CONVENTION

of judicial construction as have given them a definite, certainand well understood meaning to lawyers and citizens alike. In-deed, this Constitution, notwithstanding its defects, has been sosatisfactory to the citizens of the State that they have been in-different, except in the aforementioned cases, to proposed amend-ments to the organic law and have failed to interest themselvesin amendments heretofore proposed which seemed of vital im-portance to the proponents thereof.

Particularly within the first fifteen years of the present cen-tury, there were insistent proposals for change. On the part ofcertain organized groups there existed much radicalism andmany proposals were made with respect to labor, and capital,monopolies, the control of railroads and public utilities, restraintupon the power of injunction, the initiative and referendum, therecall, and charges in the provision respecting taxation. Par-ticularly, from the years 1905 to 1915, there was insistent agita-tion upon those subjects for constitutional change.

Going back to 1880, and the years following, even Governorsrecommended the calling of a convention, sometimes the retiringgovernor favoring and the incoming governor opposing a con-vention in messages delivered in the first week of the same ses-sion. Many of these proposals required, and have since beensolved by, legislation enacted within the general power residingin the legislature. The complaints as to the necessity for changein our system of taxation, with respect to the substitution of ashort ballot for our long ballot, and with respect to the organiza-tion of the judiciary, have not and can not be met by legislationwithin the terms of the present Constitution. But the history ofthe period from 1880 to the present has demonstrated thatmost of the relief sought by amendment was possible throughlegislation, without constitutional change, and such has beenaccomplished.

The writer will give one illustration of the futility of intro-ducing into the organic law provisions which are purely legisla-tive and which arise only from transient conditions and a tem-porary state of public mind. In 1907 the new State of Oklahomaadopted a constitution of nearly four times the length of thepresent Indiana Constitution and nearly eight times the lengthof our Constitution of 1816. This Constitution was adopted in anew state which had drawn upon the best blood and best edu-cated forces of the remainder of the Nation. Oklahoma was

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young but not primitive. Its lawyers were men of learning andexperience. Justice Day once, commenting upon the ability ofwestern lawyers, said that if the Supreme Court of the UnitedStates were not previously to acquaint themselves with thevenue from which an appeal proceeded, they would not be ableto tell from the ability, character and forcefulness of the lawyersthere making argument whether the advocates were from Okla-homa or from Massachusetts. In 1907 the atmosphere was fullof theories and vagaries with respect to the control of monop-olies, restraint upon corporations, limitations upon injunctiverelief from the courts, and with respect to socialistic propo-ganda then new and some of it seriously considered by even theconservative portion of the American people. That conventioncommitted the error of enacting into constitutional provisionsmuch that was in its nature purely legislative. Instead of limit-ing the Constitution to a declaration of principles, it devotedmore than half its pages to pure legislation. (1) It made a con-stitutional provision in detail for the initiative and referendumwith respect to all legislation, going so far as to provide for theenactment of laws and amendments to the Constitution withoutconsulting the legislature at all. It further made the primarypermanent and mandatory in all elections. (2) It provided thatthe legislature might repeal corporate charters and thus destroyvested rights, and that no corporation then doing business inOklahoma could claim the benefit of any future legislation with-out accepting that provision of the Constitution. (3) It en-acted the Federal Clayton Act in almost identical words as apart of its organic law. The Economic changes and commer-cial necessities of the nation have rendered its predecessor, theSherman Law, obsolete-and further economic development hasminimized the value of the Clayton Act, but it is a part of theorganic law of Oklahoma which cannot be easily changed. (4)It provided in great detail for a Railroad and Public ServiceCommission covering the entire ground of the Indiana legisla-tion oir these subjects. (5) It defined the jurisdiction of theinferior courts with such great particularity that changes inthe volume of business of that growing state and the allocationof great populations to different points, render the constitu-tional provision often inapplicable and inoperative, to the greatembarrassment of the administration of justice. It containedmany other provisions of a purely legislative character, concern-

IN RE: CONSTITUTIONAL CONVENTION

ing which the public mind was then at white heat, which areeither now obsolete or embarrassing and of great detriment tothe state, the public mind having changed after a period ofdelirium.

Instead of shortening the ballot, it provided for the electionas constitutional officers of a commissioner of labor, of an insur-ance commissioner, of a chief mine inspector, of a commissionerof charities and correction, and other unimportant officers, inaddition to the usual state offices.

The state of Oklahoma was no exception. The constitutionof California, revised within the same period, contains muchthat is purely legislative, necessarily transient in character andmust be revised out of the organic law of California before therespective powers of government may be exercised as sovereignpowers within their legitimate spheres. The state of Ohio hasdone little better, carrying into its new and recent constitutionmuch of a purely legislative character and abrogating to com-munities and to cities many powers that logically inhere in thestate itself. There is no time for further illustration of theevil committed by practically every constitutional convention inthis new century in enacting into permanent form as a part ofthe organic law, where it does not belong, much transiens legis-lation with no place in any proper declaration of principles ordistribution of the powers of government.

During all this recent period of ferment, the state of Indianahas resisted any attempts at amendment excepting that withrespect to suffrage. Notwithstanding the futile agitation forsuch constitutional amendments, the state of Indiana has pro-vided by legislation all of the means for regulation of railroadsand public utilities that ought to be provided in order to meeteven extreme views upon that subject. Through legislation, itsregulation of banking is modern and satisfactory. Its restric-tions upon domestic and foreign corporations have been morethan sufficient to satisfy even those prejudiced against thatform of industrial and commercial activity. Its Criminal Codeis modern and complete, and the legislature has the power tomake any changes in procedure that may expedite justice with-out trespassing upon the inalienable rights of men as guaran-teed by the Bill of Rights. The legislature and courts togetherhave entire power to revise criminal procedure, trial and appel-late, so as to dispense justice with all the alacrity and efficiency

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practiced in England, within the terms of that sacred declara-tion of rights; and the property rights of married women, madethe subject of a great contest by Robert Dale Owen in our lastconvention, were settled to his satisfaction by act of the legis-lature introduced by himself.

The process of securing amendments is slow and difficult. Itought to be slow and difficult. The underlying principles of ourgovernment have developed through centuries. Our theories asto the distribution of powers in a republican form of govern-ment were not new when our constitutions were adopted. Theyhave received the approval of civilized men. The checks, bal-ances and restraints imposed by our present constitution uponthe exercise of executive, legislative and judicial power havebeen so well construed by the courts that their meaning is welland certainly established, and all men may know the law inthose respects.

The Decalogue is more than 4,000 years old, yet what changeshave been seriously proposed through all the centuries of theo-logical discussion? It stands as the expression of great prin-ciples and as an announcement of fundamental rules of conductwhich all men accept.

Statutes and not constitutions should yield by quick andeasy change to the demands of temporary states of mind, whichby experience are transient with a few years or a few decadesat most in their application to problems that arise with changein population, change in racial ideals and characteristics, changein economic situations and in the superficial thought and dis-cussion of a people now given more to superficial discussionthan to erudite learning. It is argued that seventy-eight yearsof experience and growth have qualified us to make intelligentchanges in our organic law. Even centuries do not changeeternal principles. Our period of statehood has seen no changein the theory or character of republican government as estab-lished on this continent. The inalienable rights of men, intheory at least, have not been diminished. The great advancesin invention, in commerce and in industry have neither changedthe principles of philosophy nor the inherent aspirations andqualities of men. It is therefore beside the point to urge thatbecause of the elapse of 78 years a body of delegates, who cannot possibly measure up in philosophical learning to thefounders of our republic and of our original constitutions,

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should attempt to revise the instrument as a whole, runningthe risk of the misstatement of important principles, of disturb-ing settled judicial construction by ill-considered changes inverbiage and of disturbing the political organization of thestate as now organized and operated.

It has been said recently by those advancing the demand forrevision that the Bill of Rights is so imbedded in the publicmind and heart that it will not be disturbed. On the contrary,we have insistent demand that the accused be required eitherto testify at his trial or have his failure to do so taken againsthim, an outrageous trespass upon the principle many centuriesold that under the Anglo-Saxon system of accusatorial ratherthan inquisitorial trials, he shall not be required to testifyagainst himself. There is insistent editorial demand in generalterms that the so-called technicalities asserted in the defenseof the accused shall be dispensed with by constitutional or legis-lative enactment. There is insistent demand that the searchand seizure section be modified in violation of all of our sacredtraditions and charters. They know not what they do. Thereis insistent demand, editorial and otherwise, that trial by juryas known to the common law, be impaired and changed, in vio-lation of historic precedent. Those advocating a revision of theconstitution in convention in order to accomplish three or fourchanges much to be desired, should beware that an effort atgeneral revision does not result in a constitution so obnoxiousthat they will be obliged to vote against it if it is submitted tothe people.

It must be remembered that it is the office of statutes torespond to a transient state of the public mind. A constitutioncan never respond to transient demands and remain properlythe organic law. The insistent demands since 1851 for soundlegislation, truly legislative in character, have been met. Therestriction upon the sovereign power of taxation, which shouldhave been left to the legislature without restriction, providesnow the greatest moving cause for amendment. The lessonshould be obvious.

Who now desires the initiative and referendum, the recall,the mandatory primary, provisions against monopolies, or re-quirements for arbitration of labor disputes carried into theconstitution as rigid, permanent parts of the organic law? Yetin 1914 the proponents of a constitutional convention dissemi-

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nated much literature in favor of such proposals. Such litera-ture demanded a provision in the constitution against relief byinjunction in labor disputes, seeking to cripple the arm of thecourt of equity, which through all time has been the resort ofthe weak and oppressed. New provisions were demanded re-specting "labor and social justice." A budget system, now sowell accomplished through legislation, was demanded as a con-stitutional requirement. Especial provision was demanded inthe organic law for the commission or city manager plan ofcity government, perfectly feasible through legislation. Therewas a considerable demand for an amendment providing homerule for cities. It was demanded that the constitution prohibitdifferent taxing districts occupying the same territory, so as toput an absolute limit of two per dent upon all bonded indebted-ness. The abolition of capital punishment was urged. Thethings demanded were largely legislative in character and thepassion for most of them has passed. In 1914 a large part ofthe population, irrespective of political party, was demandedand requiring a constitutional provision making the primary apermanent institution. An insistent demand was made that theconstitution provide for the recall of officials. There was de-mand of some magnitude for regulation of the coal industrywithin the constitution itself. Such regulation has been upheldas a proper exercise of the police power, but the wrongs haveyielded to economic law and such regulation was not properlythe subject either of constitutional provision or even of legis-lation excepting in case of great temporary emergency. Butwhile many vagaries have evaporated, new ones are in mistyformulation.

In 1916 the legislature proposed, and ratified in 1918, anamendment providing that the legislature should have power toclassify property for the purpose of taxation, and further shouldhave power to collect an income tax. These proposed amend-ments were debated in this body similarly to the present debate.The amendment proposing to classify property for the purposeof taxation was opposed by a lawyer, who announced that thepower of taxation should not be left to red legislatures withoutthe present restriction requiring uniformity. Manufacturers'associations, merchants' associations and industrialists gener-ally, frightened and enraged by a vision of the red flag ofanarchy, opposed and defeated this provision which is now the

IN RE: CONSTITUTIONAL CONVENTION

subject of almost universal demand in Indiana. How transientand unstable is the American mind! There can be no betterargument for rigid permanency in our organic law and for thepresent provisions for amendment, which require that amend-ment be slow, deliberate and well considered.

If the demand for an amendment is not sufficiently strong towithstand four or five years of consideration; if such demand isnot persistent enough to make itself felt during two consecutivesessions of the legislature and to keep itself alive for the refer-endum to the people, then such change or amendment to theorganic law ought not be made. The very feebleness and lackof power displayed in the numerous and unsuccessful attemptsto amend the present constitution argue that it is not sorelyin need of amendment. If the large majority of the people aresatisfied with their organic law as it now is, then it should notbe revised at the instigation of enthusiasts; individuals withnoble or ignoble theories, political inventors of plans of doubtfuland untried value should not be permitted to gather together ina constitutional convention to revise a fundamental law of whichthey know little, for the sole purpose of planting permanentlyin our body politic a few strange organisms which may prop-erly be the subject of legislative experiment, but never the sub-ject of constitutional experiment. I do not discount the nobleaspirations and admirable ambition of devoted men who seekthe public good, many of them unselfish and actuated by pur-poses beyond criticism. I may, and do, doubt their judgmentand urge with all my power that the field of experimentation beconfined to legislative hall and to the Hustings. The best con-sidered judgment of Indiana lawyers and citizens is that ourpresent constitution ought to be amended in a few importantparticulars. So thought Governor Whitcomb when he made hisrecommendations in 1848. However, the call for the conventionwas followed by a maelstrom of intelligent and unintelligentdemand for change in the organic law.

When our Legislature provided for the referendum in 1914with respect to the calling of a convention, it was deemed by theLegislature that the constitution ought to be amended in a fewimportant particulars. The Citizens' League of Indiana andnumerous other organizations prepared and compiled literatureproposing so many radical and desperately necessary changesthat a stranger who had not read our present constitution would

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easily have come to the conclusion that we had no constitutionat all. It is quite possible that the people of Indiana entertainedwholesome fear of such proposed radical changes and that suchfears were the motive which, in the public mind, defeated theconvention proposed in 1914.

Let us learn from the past-from the remote, as well as theimmediate past. The soundest exponents of a constitutionalrevision by convention admit that half a dozen organic changeswould satisfy the requirements of business, the progress of in-dustry and the necessity for better protection of society againstcrime. It may be safe to prophesy that immediately upon thedetermination of the people to call a convention, proposedchanges and amendments will appear by the thousand. Theywill cover a wide range of subjects. The enthusiastic pro-ponents of them will organize with others of like purpose toelect delegates to the convention who will be active advocates ofunsound theories. The session would necessarily be a long ses-sion. It would require leadership and learning of the highestorder to lead the state through a maelstrom of discussion andproposal, relating, for the most part, to matters of purely legis-lative character but in a large part to changes in our organiclaw utterly abhorrent to our established institutions. In theelection of delegates there would be campaigning and organiza-tion on the part of political leaders and organizations in bothparties to defeat the short ballot. County officers' organizations,trustees' societies, public utility groups, labor unions and farm-ers' organizations would provide hot contests for the election ofrepresentatives to their convention. If delegates half way com-parable in character, dignity and learning to those of the con-vention of 1850 should be selected, it would be nothing short ofa miracle. Such miracle will not happen. It is with much re-gret that I say that the bar of the present day, while much moreefficient in their special lines than the bar of 1850, and particu-larly in comparison with the bar of Indiana in 1894 when thewriter came to the bar, has abandoned the ambition for learningand for scholastic attainment. The graceful accomplishmentsand fine learning which ornamented and dignified the bar of the"nineties" is a thing of the past. The present bar has adapteditself proficiently to the demands of industry, finance, corporateorganization and management, and in those respects is morelearned than ever before in the history of the world, but the

IN RE: CONSTITUTIONAL CONVENTION

bar has forgotten the fundamentals underlying liberty andvested rights. It has devoted more time to the study of the lawof Delaware corporations than it has to the reading of theFederalist, of Benjamin Franklin's great treatises upon govern-ment and John Adams' great discussions of our constitutions.A lawyer who should now before our Supreme Court deliversuch orations upon liberty and the fundamentals underlying selfgovernment as were given before the Supreme Court of theUnited States in the early days by William Wirt, John Randolphand Daniel Webster would find his audience leaving him withdisgust, would face a court half asleep and uninterested andwould find that in the decision of his cause his great pronounce-ments had been uninfluential.

So, if a constitution be decided upon, we may expect dele-gates of entirely different character from those who enacted ourformer constitutions with a view to perpetuating American lib-erty and guaranteeing forever an unadulterated form of repub-lican government.

Let us consider the soundest suggestions from authoritativesources as to proposed changes:

First. The court should be the judge of law in criminal trials.This change is theoretically sound. The members of this barand the judges here present know better than any other groupof men to what extent the present requirement really influencesverdicts. It is my experience and observation that the only valuein such change would be to give more liberty to the court inthe way of peremptory instruction.

Second. Lawyers should have other qualifications than goodmoral character. To this proposed change the electorate ofIndiana has been indifferent. It is theoretically important tothe bar itself. Its practical importance would not seem sogreat. The lawyers of our bar compare well in ability, dignityand character with the bar of those states making rigid require-ments for admission.

Third. The judicial system should be reorganized andchanged so as to provide longer tenure of office and to makejudicial officers largely, if not entirely, appointive. In the pres-ent state of the public mind it would seem that this could beaccomplished by one well drawn amendment.

Fourth. The Legislature should be free to exercise the sov-ereign power of taxation without the present constitutional re-

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strictions, and possibly should be given explicit power to provideand collect an income tax. There seems to be an almost uni-versal sentiment on the part of our people that such changeshould be made, a complete reversal of the attitude of businessand the electorate as expressed in 1918. This can be accom-plished by one very simple amendment.

Fifth. Changes should be made which would result in a shortballot instead of the present long ballot, thus increasing the re-sponsibilities and appointive power of the executive and at thesame time simplifying elections. This could be accomplishedby a small number of simple amendments.

The last change suggested I prophesy will be futile as toattainment. A short ballot would be secured only in the faceof the most vigorous opposition from political organizations andother influences dependent very largely upon mutual obligationsand support derived from a large number of candidates andresulting patronage from a large number of elected officers, andthere would be most vigorous opposition from present incum-bents.

Sixth. The proposed change as to classification for the regis-tration of voters might be convenient, but is not at all essential.The registration law recently repealed worked an inconvenienceand caused expense, but the inconvenience and expense were notat all in proportion to the great benefits realized, and suchamendment is not highly necessary to a reliable registration.

Seventh. It is proposed that the township be abolished. Thiswould indeed constitute a fundamental change, not to be madelightly. The beginnings of self-government were in the townmeetings. From thence came the highest expressions of liberty.The township evolved as the local unit, not only interested inlocal self government, but it constituted the local contact firstwith the colonial government and afterwards with the state andnation. By legislation, township government and township con-trol can be so limited so as to avoid many objections as to dupli-cations and uselessness, but the township should by all meansbe retained as the local unit for self expression of the com-munity as well as for control of its intimate local interests. Thisone landmark should be preserved in the great movement forcentralization.

Eighth. Identical county and city government for large citiesmay be highly desirable. If sufficiently so it can be accom-plished by one amendment to the constitution.

IN RE: CONSTITUTIONAL CONVENTION

Ninth. The insistent demand for home rule for the largercities ought possibly to be submitted by way of a proposedamendment. However, there are grave objections to such pro-posed change. If the population of the state were and shouldcontinue to be truly Anglo-Saxon it might be safe to accordhome rule to cities. It would be fraught with danger to oursettled theories of government, to our established concepts ofthe proper local regulation of society to accord home rule in thestate of Indiana to a city which might in the future containmore of foreign population than might be found in the metropo-lis of the foreign country from which they came. Those whofavor home rule for cities should ponder long upon such possi-bility, for constitutions are made for centuries and not fordecades.

Tenth. Thoughtless men are urging that amendment of or-ganic law be made more easy and quick. Thoughtful men willsee serious danger in quick response in the organic law to thewhita heat of temporary political or social delirium.

To conclude, the few changes which are important to thecommonwealth may be made by a series of brief amendmentswith less expense and in practically the same length of time assuch changes might be made by way of revision and withoutthe serious evils certain to result from wholesale revision. Thiscan be accomplished if the people wholeheartedly want amend-ments. They can be submitted at a special election which wouldomit from calculation those who are indifferent or so well satis-fied with our present organic law as not to attend the polls. Ifthere is not wholehearted support for such changes on the partof the people of Indiana sufficient for the adoption of the amend-ments, they should not be adopted at all.

By submission separately, the people may decide which theydesire and which they oppose. If objectionable changes aresubmitted in a proposed constitution as one unit, then the wholemust fail or serious error be endured.

Present and potential candidates for delegates to such con-vention, private interests, enthusiasts who advocate proposalsand agitators for change may bring about a convention. In suchcase this bar should prepare to exert itself not only in favor ofthe election of qualified delegates, but to help crystalize thenumerous proposals and formulate them into sound statement,consistent with a place in the organic law, and present a solid

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front against encroachment upon our Bill of Rights and thesacred traditions of our people. Then, as never before in ourgeneration, will a solemn duty devolve upon the members of thisbar. Such service will be as highly patriotic and as vitally im-portant as the service of those who have borne arms and en-dured battle in support of our present institutions.

I would stress the value of settled construction of an instru-ment 78 years old. I would urge its value to personal rights andto property rights. It expedites the settlement of disputes andmakes more easy and more speedy the administration of justice.Settled construction of fundamental law is necessary to officialsrequired to construe the law in order to perform their dutiesefficiently. It is necessary in order to properly finance the ac-tivities of the state and to obtain credit necessary for refundingpresent debts and providing funds for progress. It avoids thenecessity for friendly suits or contested suits necessary to becarried to the courts of highest resort in order to construe newverbiage and new provisions. We cannot overestimate the dis-turbance and inconvenience which would arise to the state ofIndiana in case of wholesale revision of our organic law, evenif we should by vigilance protect ourselves against vital lossof inherent right, dignity and the best traditions of the race.

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OFFICERS AND BOARD OF DIRECTORS OF THE INDIANASTATE BAR ASSOCIATION

JAMES M. OGDEN, President ---------------------------- IndianapolisW IV MILLER, Viee-Pr3icdent --------------------------------- GaryJOEL A. BAKIER, Secretary-Treasurer ----------------------- Indianapolis

MRABV

R

T.4

1st District 8th DistHenry B. Walker, Evansville Alonzo L. Nichols

2nd District 9th DistWin. H. Hill, Vincennes Franklin D. Davidsoi

3rd District 10th DisWin. H. Brooks, Bedford Addison K. Sill

4th DistrictFrank N. Richman, Columbus 11th Dis

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Faaulty Board of EditorsPAUL V. McNuTT, Chairman

[ilo J. Bowman James J. Robinson4bert C. Brown Paul L. Sayre.lfred Evensernard C. Gavit Walter B. Treanor'incent F Harper Hugh E. Willis

Student Board of EditorsTHEODORE R. DANN, Chairman

ohn A. Barr Russell C. Hannaobert R. David Joseph V Heffernanarold N. Fields Joseph K. Mileshoi-as H. Finn James W Suttonohn S. Grimes Charles W. White

Albert W Ewbank

,ricts, Winchesterrict1, Crawfordsvilletricts, Lafayette

trictr, Huntington

strictr, Fort Wayne

trictor, Elkhart

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