f cus on Local History

Number 14 © Historical Bureau Indiana Division, State Library. Originally published as a part of Indiana History Bulletin Volume 68, Number 2 June 1997

State House, Corydon, the first capital of the state of Indiana. Indiana’s Constitutional Past Remarks by Justice Brent E. Dickson, commemorating Indiana’s 180th anniversary of statehood at the Indiana State Library and Historical Building auditorium December 8, 1996—sponsored by the Indiana Historical Society and the Indiana Historical Bureau. .

Justice Brent E. Dickson received his law degree from Indiana University. Dickson practiced law in Lafayette before being nominated by Governor Robert Orr as the 100th Justice of the Indiana Supreme Court. Dickson has taught Indiana Constitutional Law as an adjunct professor at Indiana University School of Law since 1992. He has a strong interest in history and received his bachelor’s degree in American history. He served as president of the Tippecanoe County Historical Association from 1974 to 1975 and on the Board of Governors from 1970-1975.

i The State of Indiana has a remarkable and Here are some of those rights and liberties fascinating constitutional history! The way we live, guaranteed by the Northwest Ordinance—see if they the way we prosper, the way we govern ourselves— might have a familiar ring: our lives have been profoundly influenced by each of Article 1. “No person demeaning himself in a the legal documents that served as a “constitution” peaceable and orderly manner shall ever be molested for our state. And as we’ve progressed from one to on account of his mode of worship or religious the next, we’ve drawn from the former ones, so that sentiments in the said territory.” even today, almost 210 years after the first written document governing the lives of early Hoosier Article 2. assured the inhabitants of the settlers, we still find a strong presence and influence territory that “. . . the benefits of the writ of habeas of each of these governing documents. Before going corpus,” trial by jury, proportionate representation in further, let’s identify each of the principal the legislature, due course of law, right to bail constitutional documents that we’ll be discussing: (except capital offenses), all fines moderate, no cruel 1. Northwest Ordinance (Ordinance of 1787) and unusual punishment, no taking of property or 2. Indiana Constitution of 1816 services without compensation and due process, and 3. Indiana Constitution of 1851 forbidding laws to interfere with existing private contracts. Actually, the general principles of the American colonial system were provided by the federal Article 3. “Religion, Morality and knowledge Ordinance of April 23, 1784, originally drafted by being necessary to good government and the . It applied to all the territory not happiness of mankind, Schools and the means of included in the original thirteen states, but it failed education shall forever be encouraged.” Also, to provide any detail for an administrative structure, requires “utmost good faith” toward the Indians, and it was never really implemented. prohibiting the taking of Indian property, and encouraging laws “for preventing wrongs being done It was the Ordinance of 1787 that established in to them, and for preserving peace and friendship place a system of limited government and protection with them.” of individual liberties for the early residents of the Northwest Territory, which included what is now Article 6. “There shall be neither Slavery nor Indiana. Passed by the federal Congress under the involuntary Servitude in the said territory.” Articles of Confederation and two months before the What is truly amazing is that here in pioneer federal Constitution was adopted on September 17, Indiana, in 1787, the settler’s individual liberties 1787, the Ordinance of 1787 dealt with westward were expressly recognized and protected in an official expansion. It was a compromise between those who written document of law—four years before the wanted to grant immediate statehood and those who rights and liberties of citizens of the wished to keep the territories as perpetual colonies. living in the original thirteen states were protected The primary impetus for its adoption came from a by the federal Bill of Rights, which wasn’t enacted group of land speculators who wished to establish until 1791! colonies in the Ohio country. The structural part of the Northwest Ordinance There were two main parts of the Northwest called for three steps to statehood. First, the area Ordinance. The first part, about sixty per cent, was governed by a territorial government, which was provided details about how the territory was to be not elected but was instead governed by a territorial governed and how districts in the territory could governor and other officials all appointed by the become states. The final forty per cent is the most national government; the governor then appointed enduring because it recognized and protected certain some of the other officials, including those who sat rights and liberties for the people of the territory. In on the trial courts. Second, upon reaching a fact, the Ordinance itself proclaimed that its purpose population threshold of five thousand free male was “for extending the fundamental principles of residents of age, they could nominate delegates to a Civil and religious liberty, which form the basis territorial legislature, but it was still the governor whereon these Republics, their laws and who was authorized to name the legislators from constitutions are erected.” those nominated, and the governor held an absolute veto power over their decisions. Third, upon reaching a population of over 60,000 adult males in any of the

ii three districts, they could apply for statehood and The movement to statehood did not come form their own constitution and government. unopposed. There was a faction of people who did not feel that the territory could support the The current boundaries of the state were necessary government financially, as federal money encompassed in the Northwest Territory which was would be withdrawn upon statehood and they felt governed by the first governor, Arthur St. Clair. that taxes were already too high. In fact, the new Some people soon grew to resent St. Clair, as they territorial governor, Thomas Posey, appointed in viewed his rule as despotic and tyrannical and even 1813 to replace Harrison who had left in 1812 to compared him to King George III. When the fight Indians and the British, wrote a letter to Northwest Territory proceeded to the second stage in Secretary of State James Monroe saying that two 1798, St. Clair vetoed several pieces of legislation thirds of the people in Indiana were too poor to passed by the interim territorial legislature. The support the government, and that there were not finally rid itself of St. Clair when, in enough educated or talented men to run the 1800, Congress divided the territory into two parts government. He concluded by saying, “We have and appointed William Henry Harrison, at the age of numbers sufficient, & that is all we can boast of.” twenty-seven, as the governor of the new Indiana Territory. In 1815, the representatives of the then Indiana Territory, met in Corydon and enacted a formal When the territory divided, the new governor, petition to be admitted to statehood. Then, on April Harrison, did not fare much better. Although he 19, 1816, the Congress of the United States passed might have been viewed as more moderate, the the Enabling Act. Among the provisions of the people’s yearning for freedom still would not be Enabling Act was one which authorized the people of mollified with anything less than complete the Indiana Territory to form a constitution and state independence and statehood. Harrison faced government but required that it be “not repugnant” opposition from the Indians in the territory, but still to the Northwest Ordinance. The people of the another kind of opposition from the white Indiana Territory then elected delegates to a inhabitants of the territory. Although the new constitutional convention, which convened June 10, territory passed on to the second stage in 1805 and 1816 and completed work on the adoption of a state gained its few advantages, the people were still Constitution on June 29, 1816. It was immediately opposed to the fact that the legislature met at the transmitted to Congress and to the President, and governor’s whim, that their representative in finally, on December 11, 1816, Congress adopted Congress was appointed by the legislature instead of and President James Madison approved a resolution popularly elected, and that the representative had no “That the state shall be, and is hereby declared to be, vote in Washington. Despite Congress granting the one of the United States of America, and admitted people the right to elect their representative, the people still generally felt that the current system had too many trappings of an aristocracy. There were other factors adding to the populace’s discontent. In addition to the people’s general Indiana State Archives. dislike of the territorial government process, the territory had rapidly increased in population, the people believed that many of the officials were corrupt, there was a belief that the territory’s interests were neglected because of the low political weight of the territory, and the people disliked the alleged ambitions of some of the current officials. The beginning of the Ordinance of 1816 adopted by the Indiana Constitutional Convention as part of the statehood process.

iii into the Union on an equal footing with the original constitution shall ever take place so as to introduce States in all respects whatever.” slavery or involuntary servitude in this State, otherwise than for the punishment of crimes.” There were no official records kept of the 1816 debates or convention and none of the papers of the Just as the Northwest Ordinance emphasized day carried any word of them. In fact, the first education, so did the 1816 Constitution. Our first newspaper to carry the results of the convention was Constitution said, “Knowledge and learning generally from Louisville. The Journal of the Convention was a diffused . . . being essential to the preservation of a mere sixty-nine pages and only recorded the free Government . . . it shall be the duty of the formalities of the proceedings. None of the debates General Assembly to provide lands for seminaries were written down, and thus there is no direct and public schools.” Further, “The General Assembly history. Most of our information must then come shall from, time to time, pass such laws as shall be from the text of the Constitution itself, or from calculated to encourage intellectual, Scientifical, and secondary sources. agricultural improvement . . . and to countenance and encourage the principles of humanity, honesty, Indiana’s first Constitution continued many of industry, and morality.” Interestingly, our first the Northwest Ordinance’s principal themes Constitution required the General Assembly “to protecting freedom and liberty, but some of the new provide, by law, for a general system of education, Constitution’s provisions were a reaction against the ascending in a regular gradation, from township structure of the unpopular territorial government. It schools to a state university, wherein tuition shall be is also generally recognized that the 1816 convention gratis, and equally open to all.” borrowed extensively from other states’ constitutions, notably Ohio and Kentucky. Apart from the portion of the 1816 Constitution dealing with individual rights and education, however, its provisions regarding the structure of government seem to be a reaction to the powerful, centralized territorial government set up by the Northwest Ordinance. For example, the Constitution required a strict separation of powers between the legislative, executive, and judicial branches of government, and declared that no person in one department shall exercise any power properly

Indiana Division, State Library. attached to one of the others; it stated that no person shall hold more than one lucrative office at the same time; and it provided that the governor’s veto of legislation could be overridden by a simple The Constitution Elm in 1938 in Corydon. Said to be majority, unlike the territorial governor with his where the convention delegates met to escape the heat. absolute veto, or unlike the federal government, where Congress must have a two-thirds majority vote But clearly, we see the unmistakable imprint of to override a presidential veto. One particularly the Northwest Ordinance in Indiana’s first interesting feature of the 1816 Constitution is a Constitution in 1816, particularly in the areas of provision which required a referendum every twelve religious freedom; the right to trial by jury in civil years to determine whether the voters wished to have and criminal cases; the requirement that courts be a new constitutional convention, which would then open for redress of injury to person, property, or be convened “to revise, amend, or change the reputation; the prohibition against excessive fines constitution.” and cruel or unusual punishment; the freedom of contract; and prohibitions against slavery, When the Indiana Constitutional Convention of involuntary servitude, and government taking of 1850-1851 was held in Indianapolis, the mood of the property without compensation. In fact, the 1816 citizens was much different from the spirit in 1816 Constitution is extremely forceful in its antislavery when the Hoosier thirst for statehood was the main provision, declaring that “as the holding any part of objective. The debates of the 1850-1851 Convention the human Creation in slavery . . . can only originate were officially reported, and we also know much in usurpation and tyranny, no alteration of the about them from the vigorous newspapers of the day.

iv The convention that drafted the 1851 amendments from time to time. These include the Constitution convened in the House chambers of the change to gender neutral language, and various old Capitol building in Indianapolis on October 7, other amendments through the years, including two 1850, and then later moved to the Masonic Hall in passed at our last general election. Indianapolis at the start of 1851. We are told that Reflecting the philosophical underpinnings of its the delegates consisted of sixty-two farmers, sixteen predecessor 1816 Constitution and the Northwest physicians, eleven merchants and traders, two Ordinance, our 1851 Constitution begins (Article 1, teachers, two manufacturers, two surveyors, one Section 1, Bill of Rights) with a declaration of tanner, one carpenter, one millwright, one county “natural rights” that seems to come right from the recorder, one accountant, one miller, one baker, one Declaration of Independence: editor, and over fifty men who were attorneys, had studied law, or were or would become judges. Three WE DECLARE That all men are created equal; that of the delegates later would serve as judges on the they are endowed by their CREATOR with certain Indiana Supreme Court. In addition, there were inalienable rights; that among these are life, liberty twelve others at the convention who sat as judges on and the pursuit of happiness . . . . [and that] For the lower state courts. The list of attorneys who had advancement of these ends, the PEOPLE have, at all distinguished themselves, or would do so in the times, an indefeasible right to alter and reform their future, is substantial. It includes a United States government. vice-president, Thomas Hendricks; two United States What is significant about this is that there is no senators, Hendricks and ; two Indiana comparable provision in the United States governors, Hendricks and Alvin Hovey; an Indiana Constitution. The language of the Declaration of lieutenant governor, Samuel Hall; a United States Independence was not included in our federal judge advocate general, William McKee Dunn; a Constitution, which does not expressly acknowledge reporter of the Indiana Supreme Court, Horace that people have the inalienable rights of life, liberty, Carter; two ministers to foreign countries, Hovey and and the pursuit of happiness. James Borden; a Civil War general, Hovey; and finally, a number of United States congressmen and Our present state Constitution is clearly the members of the Indiana General Assembly. A non- result of a robust citizenry very apprehensive about attorney, George W. Carr from Lawrence County, the excesses of government power and very was elected president. protective of individual liberties. The 1851 Constitution reflects this populism and a prevailing The Constitution drafted at the 1850-1851 sympathy for Jacksonian democracy. convention, and thereafter easily ratified by Indiana voters, continues to be the Constitution of our state Article 1, named the “Bill of Rights,” contains to the present day, although there have been various thirty-seven individual sections, providing

Detail from a broadside. Indiana Division, Indiana State Library

v considerable detail and emphasis to assure the Aside from its fervent protection of religious and protection of individual liberties. As an example, the other individual liberties, the 1851 Constitution, like federal Bill of Rights deals with religious freedom in the 1816 Constitution, departed from the Northwest only one section, the First Amendment, to state Ordinance as to the structure and organization of “Congress shall make no law respecting an government. By the mid-1800s, Hoosier citizens were establishment of religion, or prohibiting the free extremely troubled by government insolvency, by exercise thereof.” But our Hoosier forefathers in special government grants to commercial ventures 1851 declined to use the federal language and with such as canal building and state banks, and by an much more specific detail enacted seven separate unequal system of taxation; and people were sections to assure the protection of religious generally very suspicious of government power. So it liberties. is not surprising that the 1851 Constitution contained many new provisions relating to term Thus our Constitution expressly recognizes the limits; popular election of state office holders; the right to worship according to the dictates of our own right of any person of sound moral character to consciences; and it prohibits laws which control the practice law; limiting the state from going into debt; free exercise or enjoyment of religious opinions or requiring the assessment and taxation to be uniform interfere with right of conscience; prohibits laws and equal; prohibiting special laws that benefit which give any preference to any creed, religious individuals or particular classes of people; and society, or mode of worship; prohibits laws which prohibiting the grant of special privileges or compel any person to attend, erect, or support, any immunities. place of worship or to maintain any ministry against his consent; prohibits laws that require any religious test as a qualification for testimony or for office of All this discussion and focus upon our state trust or profit; and prohibits money from the public Constitution and its predecessors is not a purely treasury being spent “for the benefit of any religious intellectual pastime. In recent years, more and more or theological institution.” state courts across the country are taking a renewed In the area of individual rights such as freedom look at their own state constitutions. In the past of religion, freedom of speech and press, jury trial, twenty years, there has been a definite movement due course of law, freedom of contract, and fairness away from relying solely on the federal Constitution. in criminal cases with protection of the rights of The fact is, each state is free to structure its own people accused of crime, our present Constitution government system and to provide protection for can easily be traced back to its 1816 predecessor individual freedoms and liberties in addition to that and to the 1787 Northwest Ordinance. Likewise, the found in the federal Constitution. Upon taking office, 1851 Constitution also harkens back to its ancestor each Indiana judge—actually, each state documents with regard to the role of government in officeholder—takes an oath to uphold both the public education. This is another major difference United States Constitution and the Indiana where Indiana has chosen to preserve values and Constitution. So it is not unusual to see court institutions that are not in our federal Constitution. decisions looking to our state constitutional history The 1851 Constitution did not retain the language to help interpret and construe the words of our 1851 requiring a free education through college, but it did Constitution. The Northwest Ordinance, as a part of expressly emphasize the duty of government to that history, has been used in a number of opinions, provide for education: either as controlling law, or in interpreting the Indiana Constitution. Since 1933, there have been at Knowledge and learning, generally diffused least nine different cases citing the Northwest throughout a community, being essential to the Ordinance. preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable Several of those cases have traced the origin or means, moral, intellectual, scientific, and agricultural source of certain laws or authority back to the improvement; and to provide, by law, for a general Ordinance, including questions regarding the grant and uniform system of Common Schools, wherein of title of navigable waters; the right of the legislature tuition shall be without charge, and equally open to to control jurisdiction of the courts over divorce and all. to provide for a widow’s interest in the estate; and

vi the power of the government to grant land to lawyers and courts turn ever greater attention to the establish educational institutions. interpretation of our state Constitution and its underpinnings, we are developing a deeper The Northwest Ordinance has more recently appreciation for and reliance upon the wonderful also been discussed in court opinions interpreting work of the Indiana Historical Bureau, the Indiana our 1851 Constitution: for example, in cases Historical Society, and the many other individuals interpreting the meaning of the term “involuntary and organizations whose mission is and has been servitude” and “particular services” being taken the preservation, discovery, and perpetuation of without just compensation, in 1988; and in Indiana history. interpreting the residency requirement for governors, in 1991. As lawyers and judges “rediscover” our The Indiana citizens who settled the Indiana Indiana Constitution, it is the focus of consideration Territory under the protections of the Northwest with growing frequency. We now often find court Ordinance, those who crafted the 1816 Constitution decisions expressly enforcing language and to obtain statehood, those who enacted a new provisions in the Indiana Constitution which are Constitution in 1851, and those who have since then different from the federal Constitution. Some been continuously involved in amending that examples are recent cases interpreting Indiana’s document as changes are needed—to these Hoosiers unique “face to face” language in our provision you and I are deeply indebted for a wonderful assuring the right to confront witnesses; our state’s constitutional legacy. It is altogether fitting that on particular free speech clause which protects the right this day when we celebrate the 180th anniversary of to speak or write freely “on any subject whatever” Indiana’s statehood, our attention is drawn to the but simultaneously requires responsibility “for crucial and still vibrant role of the documents of abuse” thereof; the meaning of “reasonable” search Indiana’s constitutional past. and seizure in Indiana; the right of an accused person to testify on his own behalf—a right not expressly found in the federal Constitution; the requirement that all criminal penalties be proportioned to the offense; and various provisions requiring the Indiana General Assembly to enact certain laws or provide certain laws or certain services. The renewed interest in Indiana’s constitutional past is reflected throughout our judicial system. In more and more cases, lawyers are making persuasive arguments based on Indiana’s Constitutions of 1851 and 1816 and the Northwest Ordinance. Our law schools, bar associations, and other entities are Corydon Capitol State Historic Site. presenting major conferences and seminars regarding the Indiana Constitution and its history. In fact, three of the four law schools located in Indiana now offer a course in state constitutional law. And, unlike most states, Indiana’s bar examination requires students to be tested about their knowledge of Indiana constitutional law. Evidence of this renewed interest can also be seen in law journal articles published in recent years, among which are Chief Justice Randall Shepard’s article, “Second Wind for the Indiana Bill of Rights” in 1989, and Indiana University law professor Patrick Baude’s 1987 article, “Is There An Indiana state historic marker at the Corydon capitol, Independent Life in the Indiana Constitution?” As which is pictured on page i.

vii Suggested Reading

• Boswell, Jessie P. (compiler) Index to the Journal • Hawkins, Hubert H. Indiana’s Road to Statehood. and Debates of the Indiana Constitutional Indianapolis: Indiana Historical Bureau, 19xx. Convention, 1850-1851. Indianapolis: Indiana • Journal of the Convention of the People of the Historical Bureau, 1938. State of Indiana to Amend the Constitution. Out- • Buley, R. Carlyle. The Old Northwest: Pioneer of-print. Period, 1815-1840 (Two volumes) Bloomington, • Patrick, John J. Lessons on the Northwest IN: Indiana University Press, reprint 1983. Ordinance of 1787: Learning Materials for • Constitution Making in Indiana is the definitive Secondary School Courses in American History. treatment of how Indiana’s constitutional Bloomington, IN: Indiana Historical Bureau, government has evolved. Volume 1 contains the et.al., 1987. text of both the 1816 and 1851 constitutions as • Philbrick, Francis S. (ed.) The Laws of Indiana well as a 241-page introduction explaining the Territory, 1801-1809. Springfield, IL: process of forming these documents. Volumes 2- ______4 contain the legislative processes from 1851- 1960 to amend the present constitution. Charles ______Kettleborough compiled the first three volumes; • Report of the Debates and Proceedings of the John A. Bremer, Indiana Legislative Services Convention for the Revision of the Constitution of Agency, compiled Volume 4. the State of Indiana, 1850. Vol. 1 (Limited •Volume 1, 1780-1851 quantity) and Vol. 2 (out-of-print). •Volume 2, 1851-1916 •Volume 3, 1916-1930 •Volume 4, 1930-1960 • Ewbank, Louis B. and Dorothy L. Riker (ed.) The Laws of Indiana Territory, 1809-1816. Out-of- print.

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