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of Indiana, calling a convention for the purpose of amending or altering the Constitution of the State at any other time than once in every twelve years."2 Although this resolution was promptly rejected, it reveals the latent doubt in the minds of the legislators. At the August election of 1846 the question of calling a constitutional convention was submitted to the electors for the fourth time; 32,521 votes were cast in favor and 27,485 votes against calling a convention; this was less than one-half of the voters who attended the polls and voted on other questions. Although the question of the legality of the act submitting the call for a convention had been raised during the campaign and had not only perturbed the minds of conscientious electors but had actually kept some persons from voting altogether, it was not presented in a concrete form until the official election returns disclosed the fact that a majority of the electors who had voted on the question were in favor of calling a convention. And although the question was complicated with others of equal or greater consequence, it precipitated the most animated and by far the ablest discussion in the General Assembly which it had aroused since the adoption of the Constitution. Within a fortnight after the election, the discussion was instituted by the party journals and it continued with unabated vigor until it culminated in a parliamentary contest. during the 31st Session of 1846-47. The Indiana Sentinel, the leading Democratic journal of the State, and one of the ablest advocates of a convention, after consulting able lawyers on the question, set forth its doctrines in a lengthy editorial on August 29. Stripped of unnecessary verbiage and redundancy with which the discussion is encumbered, their leading postulate was that Article 8 "does not confer, enlarge or restrict any right of the people to assemble in convention, by delegates, for the purpose of altering or amending the form of government. It is merely directory, as a mode of proceeding and a matter of convenience." In this contention they were ably sustained by a lucid and convincing dissertation in the Brookville Democrat. The theory which was skillfully advanced by the Democrat was that the 12year amending section "contains an obligation, declaring what shall be done; but at the same time it does not prohibit the holding of elections oftener than once in twelve years for the same purpose." In defense of this position, they quoted Article I, Section 2, of the Constitution which provided that the people

2. House Journal, 28th Session, 110.

3.

Governor Whitcomb's Message, House Journal, 31st Session, 22.

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"have, at all times, an inalienable and indefeasible right to alter or reform their government in such manner as they may think proper. "'4 The Weekly State Journal, the leading Whig organ of the State, was silent on this question until December 30, when the discussion of certain proposed measures in the General Assembly had gained full momentum. Actuated either by deliberate logical convictions or motives of political expediency, they appeared in the somewhat anomalous role of champion and journalistic advocate of the strict construction theory of the Constitution. The 12-year provision, they contended, should be faithfully and strictly observed. "It is contended that, inasmuch as the article does not, in so many words, interdict any other mode, the legislature may, at any time, direct a poll to be opened This they held to be "a forced inference not warranted by a fair construction of that instrument." The question of completing the constitutional process already set in motion, by proceeding to the convocation of a convention and the election of delegates, on the authority of a somewhat dubious plebiscite, had, in fact, become a divisive party issue, and, with a few notable exceptions, the casuistry and logical ingenuity of the dialectitians was wholly ancillary to the stronger ties of party allegiance. The question of calling a convention had been submitted to the people by a General Assembly which was predominantly Democratic. It had therefore become identified with the Democratic platform pledges and was regarded as a Democratic measure. The General Assembly which convened in December, 1846, was slightly Whig in both Chambers, and the Whigs declined to mature a measure which had been enacted by their political opponents. The Brookville Democrat alleged that the Whig editors generally were standing stanchly by the strict construction of the 12-year amending provision.5 Senator Read, a Democrat, assured his colleagues that in his district the question of calling a constitutional convention had not been made a party issue, but that it was voted for by Whigs and Democrats alike." In the General Assembly, however, the party alignment was fully acknowledged. In the Senate, Mr. Stewart, and in the House, Mr. Secrist, both Whigs, held that a Convention could be called legally, but they both admitted that in that attitude they differed from their political friends.

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A bill providing for the election of delegates to a convention, the passage of which would have constituted an acknowledgement of the legality of all prior proceedings, was introduced in each Chamber. The House bill was introduced by a Whig and the Senate bill by a Democrat. In the House, the bill was submitted to the consideration of a select committee consisting of 6 Democrats and 6 Whigs. This committee, after mature deliberation, presented a divided report. The majority report, recommending passage, was signed by one Whig, the author, and by five Democrats. Of the two minority reports, one, recommending indefinite postponement, was signed by five Whigs, and the other, defending the legality of calling a convention, was signed by one Democrat. The five members who presented the first minority report differed among themselves as to the constitutional power of the General Assembly to call a convention oftener than once in twelve years They assured the House that they could cite numerous instances" where "gentlemen of high legal acquirements' and jurists "learned in the law" not only doubted "if such a convention can be called oftener than once in twelve years," but had actually refused to vote at the election "either for or against a convention" on the conviction that "the clause of their constitution providing for such vote every twelfth year was not only declaratory of the imperative duty of the General Assembly to do so, at the periods stated, but that it also operated as a limitation of the power of the legislature to do so, at any other period, during the intervening time." There was, moreover, a "very large class" of citizens who "honestly entertained these views" and had therefore declined to vote "under what they believed to be an unconstitutional act." A second minority report, signed by one member, set forth the opposite theory that the intention of the framers of the Constitution was "to make it obligatory upon the authorities of the State on every twelfth year . to give the citizens. an opportunity of expressing their satisfaction with, or disapprobation of the fundamental law of the State guage is imperative.

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The lanand the construction must be forced indeed, which can torture this command to the authorities of the State, to open a poll at certain stated times, into a prohibition of the exercise of such a right at any other time. ''8

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The vote on the motion to indefinitely postpone the bill was 48 Whigs and 13 Democrats in favor of indefinite postponement and 31 Democrats and 4 Whigs opposed. The senate bill was submitted to a select committee of 7 Whigs and 5 Democrats who returned a unanimous report in favor of passage. The vote on final passage of the bill was 21 Democrats and 3 Whigs in favor and 21 Whigs and 1 Democrat opposed.

The proposed measures providing for the election of delegates to a constitutional convention called forth the ablest talent in both Houses in defense and in contravention of the 12-year amending clause. Senator Read maintained that the people had an undoubted right to amend their constitution at any time; Senator Stewart, with a rather exquisite refinement of logic, contended that the General Assembly had no constitutional authority to call a convention at any time except at the 12-year periods, but he maintained that the people were not similarly bound and could call a convention at any time, but, unfortunately, he failed to designate the manner or the agency by which a convention was to be summoned. The most elaborate arguments were advanced by the contestants in the House, and these arguments were sustained by an imposing array of citations. Mr. Secrist held that the 12year clause, if strictly construed, was a nullity and he advanced the argument, formerly set forth by the Brookville Democrat, that "the people, by no constitutional provision, could take from themselves, or restrain or limit, their right to alter or amend their constitution." Mr. Yaryan adhered tenaciously to the 12-year provision and considered the whole proceeding illegal. Mr. Porter contended that the 12-year provision was not binding, but for expediency's sake he thought it ought to be complied with.

The complete failure of the attempt to provide for the election of delegates to a constitutional convention has already been anticipated. In the Senate, the Democrats, by the accession of 3 Whig votes and the deflection of only 1 Democratic vote, succeeding in passing their bill by a majority of 2. In the House, the Whigs, by the accession of 13 Democratic votes and the loss of only 4 of their own partisans, compassed the defeat of the House bill by a majority of 26. At the 33d Session of 1848, a bill was introduced in the House providing for the submission of the question of calling a constitutional convention. While this bill was under consideration, an unsuccessful attempt was made to amend it by providing that the question of calling a constitutional con

vention should be submitted "at the time provided by the first section of the 8th Article of the Constitution. 779

The neatest statement of the interpretation of this Article which ultimately prevailed and which was acted upon in the calling of the Convention of 1851, and which disposed finally of all argument on this question, is contained in the biennial message of Governor James Whitcomb, delivered to the two Houses of the General Assembly on December 6, 1848. After strongly recommending the summoning of a convention and enumerating the amendments which should be made in the Constitution, the Governor set forth the following exposition of Article VIII.

"The opinion has been expressed that by the eighth article of the present constitution, the people have no right to vote upon this question, except in every twelfth year thereafter. But it seems now to be generally admitted that that article is directory and not permissive.

"In framing the constitution, it was doubtless borne in mind that the future condition of the State might require corresponding modifications of that instrument. But by securing to the people the privilege of voting upon the question every twelfth year, their power to exercise that right in any other year for which their representatives should make suitable provision, was not taken away. If it was taken away, it was competent, by lengthening the interval for the vote to any imaginable extent, to virtually bind posterity in all future time and prevent any amendment whatever.''10

The influence of economic and other motives in distorting the logic of the dialectitians who expended their ingenuity in interpreting the 12-year provision of the Constitution, was most apparent in 1823 when this question was submitted to a referendum vote for the first time. At that time the slavery question was surreptitiously injected into the campaign and was one of the submerged but ill-concealed motives for calling a convention. The proslavery advocates of a convention, who had previously interpreted the 12-year provision according to the tenets of the strict constructionists, abandoned their quondam position without explanation or compunction, and the anti-slavery opponents of a convention, who had habitually construed Article VIII liberally, then insisted that the provision was mandatory and prohibitive.

9. House Journal, 33d Session, 35.

10. Ibid., 23.

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