The Constitutional

Referendum of 1823.-The question of calling a constitutional convention was submitted to the people for the first time at the August election of 1823, seven years after the adoption of the Constitution, and five years before the expiration of the first full 12-year period. The measure authorizing the submission of this question to a referendum vote was first introduced at the 4th Session of 1819-1820 but was indefinitely postponed on first reading by a vote of 8-2.11 At the 6th Session of 1821, the measure was again introduced. It was at this session that the question of changing the method of voting was under consideration. On December 27th, the day on which the Senate resolution disapproving a change in the method of voting, as proposed by the House bill then rapidly approaching maturity,12 was adopted a bill was introduced providing for the submission of the question of calling a constitutional convention. The connection of these two events leads to the conjecture that this attempt was designed to place the responsibility of determining the method of voting, and possibly the location of the seat of government, which had already been vigorously agitated, on a convention. The bill passed the Senate by a vote of 9-6. The House was still in bad humor over the practical rejection of its measure substituting voting viva voce for voting by ballot and they promptly rejected the bill by a vote of 13-23.13 At the 7th Session of 1822, the Senate adopted a resolution on December 12th providing for the appointment of a select committee of five "to inquire into the expediency of a law to authorize the qualified voters throughout the State, at the next August election, to vote for or against calling a convention for the revision of the State constitution Convinced, apparently, of the expediency of this proposition, the committee reported a bill on December 23rd; this measure passed the Senate on December 29th, and the House on January 1, 1823, and was approved by the Governor on January 6.14

11. Senate Journal, 4th Session, 129 and 135. This bill, as well as the similar bills introduced in 1821 and 1823, was introduced by Elisha Harrison of Spencer and Perry counties.

12. 13.

See p. xxvii.

Senate Journal, 6th Session, 138, 221, 227 and 231.

14. The vote on final passage is not given. Senate Journal, 7th Session, 69, 123, 126, 131, 150, 159, 172, 212 and 227. House Journal, 207, 218, 224, 235 and 256. Laws, 7th Session, 121. An attempt was made on first reading in the House to indefinitely postpone the bill, but the attempt was lost by a vote of 26-15. Electors were required to indicate their approval or disapproval of the proposal to call a convention at the bottom of the ticket, containing the names of the candidates for senator and representative. Apparently, the words "convention" or "no convention" were written by

In this connection, three questions naturally arise: (1) What were the motives, real and alleged, of the General Assembly in submitting the question of calling a constitutional convention in the year 1823? (2) Was there a general popular demand for a convention? (3) Was the Constitution so unworkable, its defects so palpable and its operation so uneconomical as to inspire an unequivocal demand for reform?

None of the reasons for submitting the question of calling a convention to a referendum vote are indicated either directly or indirectly in the official literature, but they emerged with great clearness during the course of the campaign. The amendments demanded by the advocates of constitutional reform were the following: (1) The discontinuance of annual sessions and the substitution therefor of biennial or triennial sessions of the General Assembly; (2) Authorizing the Governor to call special or extraordinary sessions in cases of emergency or grave public necessity; (3) The abolition of the office of associate judge; (4) The removal of local officers by the circuit courts; (5) The abolition of the notorious divorce evil by conferring the authority to grant divorces on the circuit courts; (6) The reconstruction of the Supreme Court so as to bring it nearer to the people; and (7) Conferring on the General Assembly the authority to fix the time of its own meeting to suit the general convenience when required by public interest.

Aside from the editorial comment of the press, and the anonymous communications contributed to and disseminated by the weekly journals, the outstanding arguments which supplied the favorable and adverse propaganda of the campaign were an address by James B. Ray,15 the senator from Franklin county; a brief but comprehensive dissertation contributed to the Indiana Gazette by a citizen who signed himself "Junius"; a sprightly Dialogue published in the Indiana Gazette and setting forth the arguments of the anti-conventionists with dramatic emphasis; a series of questions propounded to the candidates for the General Assembly from Knox county by an interested voter; and the suspicious interest displayed by the pro-slavery journals of Kentucky.

the voter. Clerks of the circuit courts were required, when preparing the poll books, to rule two separate columns to tally the vote cast on the Convention proposition. The vote was counted by the inspectors and judges and certified to the clerk of the circuit court; the clerk was required to certify the result to the Secretary of State on or before the first Monday in December, 1823; and the Secretary of State was required to lay the result before the General Assembly on the second Monday of December, 1823. Any clerk who failed or neglected to certify the returns was subject to a fine of $100. 15. James B. Ray was elected Governor in 1825 and served till 1831.

The campaign in favor of calling a constitutional convention was opened by James B. Ray at Brookville on February 12th by a speech to his constituents. In the course of this address, Ray explained the provisions of the act authorizing the electors to vote for or against the calling of a constitutional convention, and set forth with considerable particularity the "fatal defects" of the Constitution. In his judgment, the Constitution contained "a great number of defects, highly unsuitable to the meridian of Indiana, and the prosperity of her people; which if not expunged, must continue to oppress her citizens with enormous taxation, and keep her Treasury poor." Ten thousand dollars was spent annually in fruitless legislation" and not infrequently on subjects that could be heard and remedied before the Judiciary at small cost.16 The Constitution should be so amended as to provide for biennial sessions of the General Assembly, unless called in cases of emergency by the Governor. Impeachment trials conducted before the General Assembly had cost the State in some instances $200 per day. This was an extravagant practice and "an unpardonable misconception of policy." The constitution of the judiciary was badly calculated to administer equal justice." The Supreme Court was "too remote from the people,' an arrangement which places in the hands of the rich a predominating power

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16. Ray probably refers to the practice of granting divorces by the General Assembly, a practice which prevailed under the Constitution of 1816 and consumed the time of the legislature on strictly judicial questions. The Constitution contained no provision relative to the granting of divorces and the question whether they were competent to act was frequently discussed. On January 26, 1818, at the 2d Session, an act was passed authorizing circuit courts to decree divorces (p. 226) and this act was amended in detail at the 6th Session (p. 96). Since the General Assembly continued to grant divorces, there must have been two agencies clothed with this function. The number of divorces granted by the General Assembly during the first 7 sessions was as follows: 1st session, 3; 2nd session, 0; 3d session, 1; 4th session, 1; 5th session, 2; 6th session, 5; 7th session, 1.

17. This estimate is somewhat exaggerated. According to the specific sums actually appropriated for the expenses of witness in attending impeachment trials during the first seven sessions, the expenditure of only $335.80 was actually authorized. Impeachment trials involving any expenditure of public funds were as follows: 4th session, $10 appropriated to each of 5 witnesses, and $6 to one witness for attending the impeachment trial of Basil Prather, clerk of the circuit court of Washington county. $56.00; 5th session, $8 appropriated to each of 6 witnesses for attending the trial of Jacob Brookhart, a justice of the peace, $48.00: 6th session, $33 appropriated for one witness and $17.20 to each of 4 witnesses and $100 in a lump sum for expenses of the trial of Curtis Gilbert, clerk of the circuit court of Vigo county, $201.80; 7th session, $10 appropriated to each of three persons for professional services at the trial of John Tresenriter a justice of the peace, $30.00. Total, $335.80.

18. The Supreme Court consisted of 3 judges, having appellate jurisdiction only, except in capital cases (Const., Art. V, Sec. 1). The court was held twice each year at In 1819, the the seat of government (Laws, 1st Session, 3; Laws, 2d Session, 3). Supreme Court was given original jurisdiction in certain cases (Laws, 3d Session, 45).

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over the poor. Senator Ray's fundamental arguments, of which his concrete examples serve as illustrations, are, that by the amendments which he proposes, extensive savings would be effected in the public revenue, and that the administration of justice would be rendered more economical and democratic. So far as the writer is aware, the only comment which this address evoked was contained in an editorial of the Indiana Gazette of April 9. The Gazette not only opposed the call of a constitutional convention, but commented adversely on the amendments which Senator Ray proposed. The Gazette assumed that Senator Ray desired to institute a Supreme Court system like the one in operation in Ohio, whereby a session of the court would be held in every county of the State, twice each year; they thought that this scheme would be more expensive than the one which it was designed to replace, but they admitted that it might "produce some good berths for some attorneys, as additional judges, and for their friends, as clerks of the courts

The most incisive argument in favor of calling a constitutional convention and the one which inspired the widest comment was set forth in an article published in the Indiana Gazette early in March by a citizen who signed himself "Junius." This article advanced the arguments that the annual expense of the General Assembly was $9,000;20 that much of the time of a session was taken up in repealing acts of the previous session; that if the General Assembly met biennially, the laws would be as wholesome, more permanent, and the expense would be materially reduced. "Junius" also pointed out that according to the provisions of the Constitution each circuit court consisted of a president and two associate judges; as there were 49 counties in the State, there were, therefore, 98 associate judges whose compensation exceeded $4,000 annually. These associate judges were supernumerary, unprofitable, darkeners of counsel, and a clog of justice and ought to be dispensed with. Besides, the Constitution provided that all civil officers were subject to removal by impeachment by the General Assembly, and there was no other way to remove a dishonest or delinquent official; the accused and the witnesses were obliged,

19. 20. The annual expense of the General Assembly for the period between 1816 and 1823, so far as can be determined, is as follows: November, 1816 to November, 1817, $7,325.12; November, 1817 to November, 1818, $9,753.45; December, 1819 to November, 1820, $7,918.33; November, 1820 to November, 1821, $9,180.45; November, 1821 to November, 1822, $8,558.41.

Indiana Gazette (Corydon). February 26, 1823.

in some cases, to travel 150 or 200 miles; weeks of time were consumed in the trial of these cases and the probable cost was upwards of $1,000 per session; whereas these cases could as well be investigated and disposed of by some local authority. "Junius" calculated that if the Constitution were amended in these three particulars it would save a needless expense to the State of $10,000 or $12,000 annually and would permanently improve the government. He concludes by imploring the press to institute a propaganda in behalf of a constitutional convention: "Ye indirect rulers of the people (I mean Editors of newspapers), what say ye to these considerations." The Western Sun, in an editorial comment of the same date, in responding to the query propounded in the "Junius" article said, "for ourselves, we are in favor of calling a convention Moreover, they promised to print the act providing for the call of a convention as soon as it was received, and assured the public that their columns would be open for the discussion of the issue.21 On April 23, both the act providing for a vote on the question of calling a convention and the 12-year clause of the Constitution were published with a comment by the Indiana Gazette to the effect that "our reasons for voting against a convention, if we vote at all, will be given hereafter."

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The formal response of the Gazette to the challenge with which "Junius" had terminated his appeal was published on April 2. The Gazette was in favor of the retention of annual sessions, and on this point they cited the examples of the United States and of the the other States. If the General Assembly met biennially and sat twice as long no economy would be effected. They suggested two remedies, however: To reduce the members to one-half their present number and maintain their salaries at the present level, and to curtail the session to one-half the time now employed. If the associate judges were abolished, there would be no one to attend to the probate business; if this duty were conferred on the circuit judges, the same expense would be involved as under the present arrangement. Although it was unsatisfactory in some respects, they considered the method of impeachment as satisfactory as any which might be devised.22

On July 12, Mr. B. V. Beckes of Vincennes, submitted a

21.

Western Sun, March 8, 1823. Indiana Gazette, March 19, 1823.

22. Since the organization of the government, according to the Gazette, only 4 cases of impeachment had been tried-2 clerks of circuit courts and 2 justices of the peace.