Address to the Electors of the State (February 8, 1851)
On January 21, 1851, Mr. Owen introduced a resolution in the Convention providing "that a committee of one from each congressional district be appointed by the Chair, to prepare an address to the electors of the State, embodying a brief statement of the changes proposed in the amended Constitution, and such other matters in connection therewith, as may aid in securing its adoption." This resolution was adopted by the Convention.
On January 25 the President announced the following committee:
1st District -- Mr. Owen;
2d District -- Mr. Carr;
3d District -- Mr. Berry;
4th District -- Mr. Smiley;
5th District -- Mr. Maguire;
6th District -- Mr. Helmer;
7th District -- Mr. Davis of Vermillion;
8th District -- Mr. Bryant;
9th District -- Mr. Colfax;
10th District -- Mr. Bascom.
On February 8, the select committee unanimously reported the following address which was concurred in by the Convention.
[Convention Journal, 964.]
TO THE PEOPLE OF INDIANA.
Chosen by the electors of the State of Indiana for the purpose of considering the present Constitution, and of proposing for adoption or rejection by the people, an amended Constitution, embodying such changes as we might deem proper, we have completed the task assigned us; and now lay before you the results of our labors.
The chief amendments which we have thought it useful to make are, briefly stated, as follows:
IN THE BILL OF RIGHTS.
In addition to the guarantees which find a place in the old Constitution, to secure the rights of conscience and prevent the imposition, on the citizen, of any tax to support any ministry or mode of worship against his consent, it is provided, that no person shall be rendered incompetent as a witness, in consequence of his opinions in matters of religion; and that no money shall be drawn from the treasury for the benefit of any religious or theological institution. Both these provisions are found in the Constitutions of Michigan, Wisconsin, and others of recent date.
In the old Constitution the provision as to the taking of private property for public use, is that it shall not be taken "without just compensation being made therefor;" but it is not declared, whether or not this property shall be assessed and be paid for, before it is taken. The provision in the new Constitution is, that when property is taken (except in the case of the State) compensation shall be "first assessed and tendered." This is an important change. As the law now stands, an incorporated company, constructing a railroad or other public improvement, may take a man's property first, and pay for it afterwards. The change proposed requires, that, before taking any property, a tender should first be made of its assessed value. If that tender be rejected by the owner, and he seek his remedy by appeal, the property may be taken; so that one man may not be able, by unreasonable obstinacy, to arrest for months or years, a work of public importance.
The principle of exempting a reasonable amount of the property of the debtor from seizure or sale, is asserted; but without specifying any amount. There is no provision of this kind in the old Constitution; though the present law, usually called the "hundred and twenty-five dollar law," is based upon the principle thus proposed to be permanently established.
The legislature is authorized to continue, modify or abolish, the grand jury system. Under the old Constitution, the provision for retaining it was imperative.
The right of trial by jury is secured in all cases, civil and criminal. By the old Constitution, where the amount in controversy was less than twenty dollars, and also in prosecutions for petit misdemeanors, this right was not secured.
It is provided that "the General Assembly shall not grant to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." This important provision is new.
AS TO SUFFRAGE AND ELECTION.
By the old Constitution, citizens of the United States only were entitled to vote. Under the new, foreigners who have been in the United States one year, and in this State six months immediately before any election, and who shall have declared under oath, their intention to become citizens, have the right of voting. This liberal provision will undoubtedly tend to increase the wealth and population or our State, by attracting emigrants towards it.
Postmasters, if their annual compensation be ninety dollars or less but not otherwise, may be elected members of the legislature. In counties with less than a thousand polls, but in no others, the offices of clerk, recorder, and auditor, may be conferred on the same person. Both of these are new provisions.
No one who give or accepts a challenge, or carries to another a challenge to fight a duel, shall be eligible to any office of trust or profit. This also is new.
IN THE LEGISLATIVE DEPARTMENT.
The provision in regard to the number of senators and representatives remains unchanged. It is not to exceed a hundred in the House, and fifty in the Senate; but that number may be at any time reduced by law.
The regular sessions of the legislature are to be held once only in two years; but the Governor, if he think the public welfare requires it, may call special sessions. No regular session is to be longer than sixty-one days; nor any special session longer than forty days.
As the entire expense of the sessions of our General Assembly, including printing of laws and journals, has averaged, for the last ten years, upwards of forty thousand dollars annually, the saving, by the change to biennial sessions, may be set down at twenty thousand dollars a year. Thus, if no special session be called during five years, the saving in that period, by this provision alone, will overpay the entire expenses of the Convention. Thus will also be afforded some opportunity to become acquainted with the laws of one session before these are followed by the amendments of the next.
The following provisions, tending to check and regulate the Legislative branch of government, are not found in the old Constitution:
First. Every bill is to be read throughout on three several days, unless two-thirds, under the ayes and noes, suspend the rule.
Second. On the final passage of a bill, it is forbidden, under any circumstances, to dispense with its reading by sections.
Third. A majority of all the members elected to either branch shall be necessary to pass a law. The present Constitution permits a majority of those present (which may be a bare majority of a quorum) to pass a law.
Fourth. No law is permitted to be revised or amended by mere reference to its title; but the law so revised or amended must be set forth at full length. Great abuses have arisen for lack of such a provision. Amendments have been made, of which the House which enacted them knew the character only be some brief verbal statement from a member interested in their passage.
Fifth. No law is to embrace more than one subject and matters properly connected therewith; and the subject is to be expressed in the title. The tendency of this rule is to prevent what is familiarly termed "log-rolling." Two provisions, having no proper connection with each other, may, under the present Constitution, be embraced in the same bill, and be carried by a combination of their respective friends, though neither, in itself, has merit or strength enough to obtain the vote of a majority, and would fail, as it ought if voted upon singly.
Sixth. No law is allowed to pass except under the ayes and noes, entered on the journals. This is one of the most effectual safeguards against hasty and inconsiderate legislation, and secures, under all circumstances, the responsibility of members of the legislature to their constitutents [sic].
Seventh. All elections by the General Assembly are by a viva voce vote, recorded on the journals.
Eighth. The most important restriction imposed on the legislative branch, is that which provides that in a variety of enumerated cases (as the jurisdiction of justices of the peace, the mode of doing county and township business, the fees of county and township officers, road laws, common school laws, and so forth), and in all other cases where a general law can be made applicable no special law shall be passed. It is an estimate much within the truth, that more than two-thirds of all the law enacted in this State since he admission into the Union, have been of the character here forbidden. More than two-thirds of our legislation, therefore--and the most confusing and most mischievous portion of it--is cut off by this single provision. Independently of the intrinsic benefits of such a change, the saving thereby effected of expense, both as regards the time of the legislature and the cost of printing our laws, will be great.
Ninth. By general law, provision may be made for sueing the State, but no special act authorizing suit to be brought against the State, or allowing damages against the State, is permitted. This will remove to Courts of justice, where they properly belong, numerous claims which cannot be urged through a legislative body without temptation to demoralizing influences.
Tenth. The legislature is prohibited from granting divorces.
Eleventh. Representatives hold their offices two years, serving one regular session. Senators hold their offices four years, serving two regular sessions.
Twelfth. The general elections, instead of being held as now, on the first Monday in August, are to be held on the second Tuesday in October of each year. This latter period is one of much greater leisure to farmers than the former.
IN THE EXECUTIVE DEPARTMENT.
The changes in this department are unimportant, being chiefly these:
The Governor and Lieutenant Governor are elected for four, instead of three years, to correspond to the biennial sessions of the legislature.
Neither of these officers is eligible more than four years in any period of eight years, nor to any other office during the term for which he has been elected. These provisions are not in the old Constitution.
There is a slight change in regard to the veto power. If a bill be presented to the Governor within three days of the close of the session and he fail to return it, it shall be a law, unless he file the bill, together with his objections, in the office of the Secretary of State within five days after the adjournment. By the old Constitution he might hold it over until the next session, and then return it, with his objections.
AS TO THE STATE AND COUNTY OFFICERS.
The Secretary of State, Auditor of State, and Treasurer of State, who were elected under the old Constitution by the legislature, are now elective by the people. The Secretary held his office for four years, and the Auditor and Treasurer theirs for three years; now, the term of office for all these officers is two years only; and they are not eligible more than four years in any period of six years.
In the counties the term of service of the clerk, auditor, and recorder is put, in the new Constitution, at four years; and they are not eligible more than eight years in any period of twelve years. The sheriff and treasurer hold their offices for two years, and are not eligible more than four years in any term of six years.
IN THE JUDICIAL DEPARTMENT.
The Supreme and Circuit Judges, heretofore chosen, the former by appointment of the Governor, confirmed by the Senate, and the latter by joint vote of both Houses, are, by the new Constitution, made elective by the people. There are to be not less than three nor more than five Supreme Judges, each to reside in and be elected from his own district; but all to be chosen by the votes of the people at large. Each Circuit Judge is chosen by the vote of the electors of the circuit.
A Judge is rendered ineligible, during the term for which he may have been elected, to any other than a judicial office. This provision is new.
There is to be elected, by the people, a Prosecuting Attorney for each Judicial Circuit.
Every person of good moral character, who is a voter, is entitled to admission to practice law in any of the Courts of the State.
AS TO LAW REFORM.
The General Assembly is required, at its first session, to appoint three commissioners, whose duty it shall be to revise and simplify the practice and forms of the courts. They are to abolish the separate forms of action now in use; and to provide for a uniform mode of pleading, without distinction between law and equity. The legislature may also cause these commissioners to reduce into a systematic code, the general statute law of the State.
These reforms are of an important character; calculated to diminish the cost and to correct the delay of law proceedings. As the law now is, a man may prosecute a perfectly just claim, but if he commence suit on what an arbitrary rule calls the wrong side of the court, he cannot recover. So, also, a man may have various demands for money against a neighbor, all of which could naturally and conveniently be set forth in the same declaration; but ancient practice has declared that there are some ten or twelve different forms of action; and he may have to bring a separate suit, with its separate expenses, for each demand though varying very slightly in their character. A remarkable example is this: If a man holds two promissory notes against another, payable in current bank paper, the one being sealed and the other not sealed, he must bring a separate suit upon each. No reason but a purely arbitrary one, founded on antiquated usage, can be given for such vexatious and cost-increasing distinctions.
The legislature is authorized to establish courts of conciliation, for the speedy decision of cases that may be voluntarily submitted to them, without the tedious and expensive process of law.
EDUCATION AND STATE INSTITUTIONS.
The principal change in this department, is the abolition of county seminaries, and the application of the funds to common schools. It is also provided that the legislature shall establish a uniform system of common schools, wherein tuition shall be free. The swamp lands recently granted by Congress, and which, it is supposed, may be worth half a million dollars, are added to the common school fund.
A Superintendent of Public Instruction is to be elected by the people, his term of office being two years. The large amount of the school fund scattered all over the State, and the important interests involved, demand the undivided attention of a competent officer.
The counties are made responsible for such portions of the common school fund as may be entrusted to them. This incorporates in the constitution, a provision for the security of that fund, which has long been the statute law of the State.
The institutions which the benevolence of Indiana has reared for the blind, the deaf and dumb, and the insane, are perpetuated by constitutional provision.
The legislature is instructed to establish houses of refuge for the correction and reformation of juvenile offenders.
The legislature is prohibited from incurring any debt except to meet casual deficits in the revenue, to pay the interest on the present State debt; or to repel invasion or suppress insurrection.
Had this provision, brief and simple as it is, been inserted in the Constitution of 1816, it would have saved the State from a loss of six millions of dollars. Upon that sum we are now paying, without any return, some three hundred thousand dollars of interest annually; that is, about eight hundred thousand dollars a day; more than enough to maintain in perpetual session, year after year, with all its expenses of reporting and printing, such a Convention as that which has been engaged, for the last four months, in framing a constitution, which shuts out for the future, all possibilities of similar folly.
No county is allowed to subscribe stock to any incorporated company unless the same be paid at the time of subscription. The State is prohibited from assuming the debt of any town or county.
AS TO BANKING AND CORPORATIONS.The legislature may, or may not, establish banks in this State. If they establish banks, it is to be under the following restrictions:
No bank shall be created, otherwise than by general law, except one bank with branches.
If the legislature decide to enact a general banking law, all banks thereby created, are to give ample collateral security, such as may be readily converted into money, for the redemption of all their notes in gold and silver; and this security is to be lodged in the hands of some officer of State. No such security has heretofore been demanded of banks in this State.
If the legislature decide to charter a bank with branches, the branches are to be mutually responsible, as the branches of our State bank now are.
The State is not hereafter to be a stockholder in any bank or other corporation.
All banks are required to redeem their notes, at all times, in gold and silver; and the legislature is prohibited from ever authorizing a suspension of specie payments.
The stockholders in all banks are to be held individually responsible to an amount, over and above their stock, equal to the amount of their stock.
In case of insolvency, holders of bank notes are to have preference of payment over all other creditors.
No bank is to receive a higher rate of interest than is allowed to individuals loaning money.
Every bank is to cease banking operations within twenty years from the time it is organized, and promptly thereafter to close up its business.
These restrictions on banking, not imposed by the former constitution, though stringent in their character, will not, it is believed, prohibit banking under a safe system, by responsible associations. The restrictions on baking under a general law, are similar to those of the New York system, as amended according to the provisions of the new Constitution of that State. Under that amended system, not a dollar has been lost to the bill-holders. As to the principle of making the branches of a bank, if established with branches, responsible for each other's liabilities, it has worked so well, in the charter of our present State bank, that it is believed a large majority of the people approve it.
In addition to the above restrictions, applying specially to banks, it is provided, as to corporations generally, that they shall not be created by special act, but may be formed under general laws.
NEGROES AND MULATTOES.
The article in regard to negroes and mulattoes is to be submitted separately to the people. It provides,
First--That no negro or mulatto shall come into, or settle, in this State, after the adoption of the new Constitution.
Second-- That all contracts made with Negroes and mulattoes who may come into this State, contrary to the foregoing provision, shall be void, and all persons who shall employ any such negro or mulatto, shall be fined in any sum not less than ten, nor more than five hundred dollars.
Third-- That all fines collected for any breach of this article shall be applied to the colonization of so many of the negroes and mulattoes, now in the State, as may desire to emigrate.
As to any further provision for colonization, it is left to future legislation. A majority of the Convention were of opinion, that the true interests alike of the white citizens of this State and of its colored inhabitants, demanded the ultimate separation of the races; and that, as the negro cannot obtain among us, equal social and political rights, it is greatly to be desired that he should find a free home in other lands, where public opinion imposes upon color neither social disabilities nor political disfranchisement.
No additional disability, not found in the old constitution, is imposed by the new, on negroes or mulattoes or their descendents, who may be in the State at the time of the adoption of the amended Constitution.
MODE OF AMENDING THE CONSTITUTION.
Amendments to the Constitution may be proposed in the Senate or House of Representatives. If passed by a majority of all the members elected to either branch, they are referred to the next regular session of the legislature, to be held two years thereafter. If passed by them a second time, they are then, at the next general election, to be submitted to the people; and if they pass the final ordeal, they become a part of the Constitution.
In this way there will always occur a general election of members of the legislature, during the canvass for which, the amendments that may have been proposed at the previous session, can be brought in issue; and nearly three years must intervene, from the time an amendment is first proposed, before it can be finally adopted.
There was provided, in the old Constitution, no mode of submitting to the people separate amendments. The advantage of the provision is, that without the expense of a Convention, the new Constitution, if found faulty or deficient in any of its parts, may be amended and perfected.
With this brief explanatory statement of the more important alterations embodied in the new Constitution, we place our work in the hands of our constituents, who alone can give it vitality.
Those who desire to examine arguments for or against the various changes that have been made, will find them, spread at large, throughout the Debates of the Convention; officially reported, in accordance with the law which provided for the call of a Convention, by a corps of stenographers. Of the two volumes in which these debates are embraced, three copies will be deposited in the Clerk's office of each county throughout the State.
It was our expectation, when we first engaged in the task of revision, to be able to complete it at an earlier day. But the deliberations of a numerous body necessarily proceed slowly; and it would have been a culpable violation of duty, for the sake of ephemeral popularity, hastily, or without the fullest and most deliberate consideration, to pass upon great questions involving the dearest rights and most vital interests, not of the present generation alone but of others that are to succeed.