AFTERNOON SESSION.
The LIEUTENANT GOVERNOR took the chair and announced the special order to be the consideration of the resolution and reports from the Judiciary Committee [see pages 49, 76, 98 and 105 of the Brevier Reports] by the Senate as in Committee of the Whole.
Thereupon the Senate resolved itself into a Committee of the Whole [Mr. Henry in the chair] the question being on th emotion to adopt the majority report.
Mr. RISTINE contended that the enrolled resolution is the best evidence of what was done by the last General Assembly, and being such, furnishes all, and more than an entry on the journals could supply. In 1872 the Legislature found an amendment to the Constitution in the same condition as the present, except there was no political bias or prejudice to warp the judgment, and under such circumstances the amendment was passed by the vote of every member of each House, save one. The action then taken upon this legal question when it was new in this State, and when it received close attention, was the same as that adopted by the Supreme Court of Kansas and in accord with the long list of authorities which have been cited. That amendment was ratified by the people and is to-day a part of our Constitution, and by no one has it ever been called into question. What higher authority can there be than this?-the method which has heretofore obtained in amending the Constitution.
Mr. MARVIN should vote for the minority report for the reason if the joint resolution No. 7 is not before the Senate properly, it ought to be. He knew that two years ago it was reported from the House to the Senate; that it passed this Senate by 26 votes, and that it is now upon the statute books. He should not, by his vote, allow the neglect of employes of the Senate, ignorantly or intentionally, to deprive his constituency of that which they want. He should vote for the minority report for the reason that 3,000 or 4,000 voters of his District have petitioned for an amendment to the Constitution that shall prohibit the manufacture or sale of ardent spirits as a beverage. The place of a representative of the people is a very sacred trust. This is a representative Government, and representing 12,000 votes he held it makes no difference what his ideas or his desires of a law or proposition are, if his people desired a law it is his duty to vote for it. He is a Democrat and believes in the great Democratic principle that the representative should vote the will of his constituency for those measure which bring the greatest good to the greatest number, and that is another reason why he should vote for this amendment and if an opportunity offers he would vote to submit to the people for ratification at the next general election.
Mr. McCLURE was very sorry that these proposed amendments are not found correctly spread upon the journals of the two Houses according to the requirements of the Constitution. Though standing to-day as he did two years ago in the other branch of the General Assembly, opposed to these Constitutional amendments, he had listened with interested to the arguments of Senators, and had been greatly edified by the legal disquisitions. The question upon which the decision of this subject hinges is on the rendition or definition of the word "shall" in the Constitution. In our simplicity in the use of the English language, when we who have heretofore engaged in legislation, employed or used the word "shall" in the laws, we consider that term imperative, obligatory, etc., etc. Endeavoring to sit as a Juror, having a part in the decision of this question, his present convictions are that giving a true construction to the Constitution, these amendments are not properly before the Legislature, and though open to conviction even to the last words said on this subject, he expected to support the majority report of the Judiciary Committee.
Mr. HENRY'S excuse for saying anything upon this question was its importance, attracting as it does most earnest attention from all parts of the State, a question fraught with great interest not only upon the immediate point involved, but upon the effect it will have hereafter in this State, upon what shall constitute a sufficient transaction as to the mode and manner of submitting Constitutional amendments. He intended to give his views in a few words. The Constitutional provision of Article 15, Sections 1 and 2 is directory and not mandatory. The only other provision of the kind in the Constitution is where it requires when a bill is vetoed that the objections of the Governor shall be entered at large upon the journals. There is not much of a difference between the two, but the difference is significant. The same question being discussed now was presented to the Legislature in 1872. That was no fool Legislature. An examination of the journals and the Brevier Reports will show the question was fully, fairly and candidly discussed and decided according to law: and it is scarcely worth while to discuss that proposition much longer. From all over the State of Indiana there have come up petitions from over 42,900 voters asking that these amendments be submitted to a vote of the people, and not only that but that they shall be submitted at a special election.
Mr. McINTOSH said at the time he was nominated to represent the Counties of Greene and Davies in the Senate he promised, at the request of Democratic friends, that he would vote to agree to the Constitutional amendments. He repelled the insinuation that an effort has been made by Democratic Senators, either in or out of caucus, to control the Democratic vote in the Senate. As far as the legal question is concerned, the lawyers on both sides of the Senate stand as they do upon the main question-a singular commentary upon the judgment and conscience of Senators. Every Senator who believes this amendment is not legally before this Legislature didn't want the amendment passed, and every Senator who says, by supporting the minority report, that he believes this proposition is before the Legislature is in favor of the passage of the Constitutional amendments. He proposed to give the doubt in favor of the people upon this proposition. He read from the Brevier Reports, volume 20, what his able and honorable predecessor said upon this very proposition two years ago, and he should follow him.
Mr. BELL said: There is a plain duty before us to be performed. How shall we do it? The Constitution of the State of Indiana defines our power-it defines our duty. By virtue of that instrument we are here, and by virtue of that instrument alone. We have neither a legal nor moral right to disregard its plain provisions. I want to say in the outset that I am glad I belong to that portion of the people and to that school of politicians who believe in a strict construction of all Constitutional provisions. In this sort of construction and in this position alone is safety. By page: 122[View Page 122] following this path, in my humble judgment, alone can we preserve and perpetuate the rights and liberties of the people. I am not here to dispute but that the people have the right as well as the power, to shape and mould and form their organic law almost as they please. They have with reference to all matters that rightfully concern Government. When they meet in a Constitutional Convention they provide in terms for its own amendment-the manner in which that Constitution might and should be amended. And whenever we step aside from the plain path thus marked out, and moment we begin to infringe on the rights of the people, which they have reserved to themselves. Let me read again this Constitutional provision, although familiar to all of you. Let us consider whether there be any room for construction. If there be no ambiguity, then construction has no duty to perform. Let us see. [Mr. B reads from the Constitution.] If I am able to understand the English language there is no ambiguity about this. The language is plain and easily understood. It is related of Benjamin Franklin that when on a visit to Paris he was invited to attend a meeting of the Academy of Sciences, when there was learned discussion going on among the savans-why, when you take a pail of water and put in a live fish the weight of the pail of water with the fish in it was no wise increased. It occurred to Franklin it might be well to weigh the pail of water both before and after the fish was put in. He did so and found the weight was increased just what the fish would weigh. So we had better apply in this case a plain rule first, before we go any further.
There have been some strange positions taken here by lawyers-startling positions to me because destructive of all those principles which underlie Constitutional government I regard all Constitutional provisions in the nature of all limitations and restrictions, limiting and not conferring enlarged powers. I submit to lawyers if that be not the correct rule; if that is not the theory of the Constitutional government? Then I have said if there be no room for construction there is no office for construction to perform. Will you allow me to call attention to authority on that subject. Authorities in this line seem strangely to have escaped the command of my brethren on the other side. An author, known and revered wherever the common law system is enforced and whereever the English language is spoken or read, a profound jurist, a learned lawyer and a pure man, one whose words have great weight in every tribunal where they are quoted; a life-long Republican, though not a partisan; one whose views and judgment can not be said to be warped by politics or prejudice. I refer to Judge Cooley, of Michigan, at whose feet I have sat and drank from the never-failing fountain of learning that flowed from his lips and mind. I read from Cooley' Constitutional Limitations, page 68. And I want to call especial attention of some of my Democratic brethren to this, who seem to think that because of pledges given when this question was not before them and their constituency, they may disregard some questions as important (?) as the Constitution itself. [Mr. B. read from page 68]
Now, what does our Constitution say? It says proposed amendments shall be entered on the journals of the two Houses, and the yeas and nays shall be entered, and they shall be referred to a succeeding General Assembly. Is there room for construction here? Can there be any? Let me read from another eminent writer on Constitutional law. I read from Segwick on Constitutions, 377. Also first Peters, 46, 64 Reports of the Supreme Court of the United States. As I have said Constitutional provisions are restricting and limiting. We must regard a Constitution as having been framed in careful and measured terms and guarded words. I am going to talk after awhile about statutes mandatory and the rules that govern their construction, but I will show that such a rule will not apply to the construction of a Constitution. The reason is apparent. Statutes are enacted carelessly and without a close regard to the language that is used in them. Let me read from what Cooley says on the subject. [Mr. B. read] Now, it is not for us to inquire what one of the provisions in the Constitution is essential or what one is important, or what is more essential or more important than another. It is enough for us to know that power which was above, behind and beyond us introduced a provision in the Constitution. We have no power to say whether it be for the best or the worst, it is for us to obey. Our Constitution says amendments proposed to it shall be entered with the yeas and nays upon the journals, and shall be referred to the next General Assembly. These are conditions precedent. It is true the Senator from Madison [Mr. Henry] says this is not true-that they are not conditions precedent, but I want to say no lawyer will stake his reputation unmixed with politics on such a statement as this; and no lawyer ought to make it mixed with politics without having his cheek mantled with the blush of shame. I have no right to charge the Senator with insincerity, but I don't think he meant what he said himself-he is too good a lawyer for that. The whole thing in a nut-shell is whether we have authority to pass upon these amendments. Before we act upon them at all the precedent steps must be taken; and the question is: Have they been taken? I heard the Senator from Henry [Mr. Bundy] say that this provision of the Constitution was merely directory and not mandatory. But what sort of authority did he back it up with? The Senator found, where a Court held somewhere, upon a statute which provided a Commissioner "shall" do certain acts, that that word was directory and not mandatory.
Mr. BUNDY (interposing): I found that three of the States of this Union having a Constitution prescribing that all laws "shall" be in a certain form, the word was held to be directory.
Mr. BELL (resuming): I am coming to that in a moment, but I want to show how the Senator attempted to throw dust in the eyes of those attempting to consider these things. What lawyer does not know that with construction of statutes of a remedial nature and character the Courts sometimes, in order to give effect to an act already done under that statute, will hold the word "shall" to be directory, and not mandatory; but I want to say, as a lawyer, that when I have made this statement I have stated the only case in which a Court was ever justified in doing that thing, and even Courts that have done that, have been severely criticized by Courts of the highest standing in the country. But some Courts in construing statutes have gone as far, when an act is already past, as to hold that the word "shall" is directory and not mandatory, and in no other case where either a Court or Legislature was ever justified in holding that the word "shall," when used in reference to acts done under the Constitution, should or could be held to be directory merely. Even in statutes where the public are interested, the word "may" is invariable construed as "shall" by the Courts. The rules is, "may" may be construed as synonymous with shall, etc. [Mr. B reads.] This is the rule, and yet Senators-grave and reverend Senators, learned Senators in the law-get up and have us apply a construction of a provision of the organic law, with the same sort of rules and reasonings that are applied in the construction of remedial statutes about road viewers, and such trivial cases. Lawyers influenced by politics smarting under the party lash, eager to get some party advantage, will come and make such statements as page: 123[View Page 123]this. It is astonishing. It goes far to cause me to lose confidence, not only in the members of my profession, but in some degree in the profession itself. In support of my proposition that a different rule applies 10 the construction of Constitutional provisions from that of statutes I read from Cooley on Constitutional law, pp 94 and 95-a sort; of legal point which I recommend to my brethren on the other side of the Senate. [Mr. B. reads.] So. I say, when the people in their Constitution undertake to say they will obligate a portion of their power to amend the Constitution and undertake to point out a method to proceed to do that thing, they put in that Constitution what they regard as essential nothing more nothing less; and it is not for us to determine which w <s essential and which was not. [Mr. B. reads.] Now I don't know what more could be added to that view that is the view that is in accord with the theory of Constitutional government, and in accord with the dictates of common sense. No exercise of common sense will lead to any other conclusion than when the Constitution reads "shall" it means "shall," it does not mean "may " When it lays down a method by which amendments shall be proposed and adopted, it means that is the only method. It ought not to need a man learned in the law to construe it-it is so plain that he who runs should be able to read it.
We are asked to solve the doubt in favor of the proposition that these amendments are now before us, and that this provision was directory and not mandatory; and I heard a strange statement fall from the lips of the learned Senator from Wayne (Mr. Foulke) when he said it was the province of a wise Judge to extend his jurisdiction. It has always been the province of a tyrant to extend his jurisdiction, and it has always been a fight of the people to prevent that son of thing from the days of Runnymede down to this time; and for a man, I know to be familiar with the legal as well as with the general history of the country, It was somewhat shocking; to my mind. And I heard the Senator from Henry [Mr. Bundy] say if there was a doubt we ought to solve the doubt in favor of the proposed amendments and the regularity of the proceedings. These gentlemen have read the books too much not to know that is not the rule to apply here. That is a rule to apply to Courts when it comes to construe statutes, And where if the statute is not clearly unconstitutional the Court will not hold it unconstitutional. Why is that? But when we come to pass upon these amendments, whether or not the Constitution has been complied with, we are bound by legal rules to solve the doubt the other way, and if there be any doubt about the regularity of the proceedings, the rule is we should solve the doubt against it. I am not making the bare statement as other Senators did, without authority, I will read again from Cooley, page 66 The Senator from Delaware [Mr. Smith] said let us throw aside our convictions a little while, and solve the doubt that way. I will not be found throwing aside my convictions. [Mr. B. reads.] It is the duty of every Senator, if he has the least doubt, to solve it as against the proceeding and favor those who uphold the Constitution which he has sworn to support. It has become common to sneer at some of the gravest things-Constitutional things. During and since the War they were swept out of the way with a sneer by the Republicans, and under the guise of the law of necessity, many Constitutional provisions; laws were violated, and we have learned to disregard those solemn Constitutional limitations, i by the enforcement of which only ' can human liberty and Constitutional freedom too be preserved.! I haven't much patience with it. Let me call your attention to what this author says about the danger of this kind of construction. I will devote myself a little while to some legal propositions and then attempt to pay my respects to some other positions taken by gentlemen on the other side. [Mr. B. Reads] I commend these words of sound sense to members of the Committee. The Senator from Wayne, [Mr. Foulke] gave us several illustrations I which to my mind are just as fallacious. He said I we Constitution provides in an amendment recently adopted that the Legislature shall enact a law providing for registration. Had he looked into the authorities he would see that the language used is directory. That it should not be disregarded is patent and plain.
The Senator from Henry [Mr. Bundy] and the Senator from Wayne [Mr. Foulke] said it was sufficient if the essential requirements of the Constitution had been complied with. Who is to determine that? The Constitution says these amendments shall be entered-spread upon the journals-with the yeas and nays thereon. Is it for the Senator from Wayne or Henry or Madison to say what is essential or what is not? Why can't you dispense spreading the yeas and nays on the journals? By what authority does the Senator from Wayne say, one is essential and the other is not? He says if is more important, the Legislature shall agree to the amendments than that they shall nave been entered on the journals. I don't know upon what meat he feeds that he can stand up here and say what is more or less important in a Constitutional requirement. I know no rule by which I am to determine whether the one is more or less important than the other. It is enough for me to know that I find the provision there. The Senator from Wayne says you can take the journals and the enrolled resolution and find the proposed amendment was and is; and he went so far as to say you might resort to secondary evidence. I must differ with the Senator there. He said that if a leaf had bee a torn from the journals you could resort to secondary evidence. That may be true; but let us suppose the primary evidence was gone-that it never had been entered there. It does not follow you can go to secondary evidence If that be true, you can call some man in who kepi tally with its pencil and marked who voted for and against the measure, is the logic of the argument of the Senator from Wayne. I say you can do no such thing. The Constitution has provided the kind of evidence that will establish the fact that an amendment was proposed in the preceding Legislature, If it can not be found in the journals, you have no right to go elsewhere. If you go elsewhere, you may introduce parole evidence; you can't determine where to stop if you leave the moorings of the Constitution. Let us look at the reason for requiring these things to be entered on the journals. Attention has been called very fully to that feature, that the amendments to the Constitution need not be proposed even by joint resolutions. As a matter of fact, two that are said to be pending now were proposed by concurrent resolution. There is no method of authenticating concurrent resolution, unless it be entered upon the journals. There has some stress been laid upon the fact that joint, resolutions are authenticated by the signatures of the presiding officers of the two Houses. Only one of them I believe, is a joint resolution. The other two are concurrent, and there can be no doubt but that the framers of the Constitution intended that these proposed amendments should be spread at length upon the journals, in order that they might be thus preserved: not only that the succeeding General Assembly might know just what had passed, but that the people themselves might know the exact tones of the proposed amendments. The law provided before the passage of the present Constitution, as it provides now, tor the publication of the journals and the deposit of a certain number of them in each County, so that such amendments as were entered on the journals could be brought to the notice of page: 124[View Page 124] the people themselves. It was not intended that the people should resort to the office of the Secretary of State to ascertain what was contained in proposed amendments. A list of authorities were noted on the other side in a vain attempt to answer the argument of the Senator from Marion [Mr Van Vorhis.] Three classes have been introduced-one class relating to The question of construction merely; another class relating to the distinction in the provision of the Constitution relative to titles of acts. The title is no part of an act. And another class relating to the authentication of bills. Our Constitution provides that bills are to be authenticated by the signatures of the presiding officers; and that alone our Courts might well hold is sufficient. That is as far as the Courts should or would go to look as to whether a bill is genuine or not. The ayes and nays in the passage of a bill are not required to be spread upon the journals. They are required to by called in certain cases, but not to be spread at length upon the journals. In Kansas it should be observed there were two methods of identification provided for by the the Kansas Constitution. The Court might well hold there is one method had been pursued that was sufficient; the other need not be. In our Constitution we have no method prescribed except the one under discussion; namely; that the Amendments shall be spread upon the records of each House. The people must authenticate it themselves. Senators say a mere clerk of the Legislature might defeat the will of the people. No, sir. Can the stream rise above the fountain? Whose journal is it? Is it the Clerk's journal or the journal of the Assembly? It is our journal. It is unfair to attempt to throw this responsibility upon our clerks. For us to say that a clerk can defeat our will or the will of the people by failing to make up a journal correctly, is to say that it is not our Journal but the Clerk's journal. We are contending for the application of a rule which will place it out of the power of a clerk to defeat the will of the people. We do not read our record every morning. We ought to have it read in our hearing every morning, or else the Committee, to which has been delegated that authority, ought to learn what is in it and see that it records all that takes place.
The changing of a word might change the whole meaning of a Constitutional amendment, therefore the framers of the Constitution provided that these proposed amendments should be entered on the journals of the two Houses-I believe at large. We all know a mere concurrent resolution might be substituted-another one for the one that passed. I submit to the Senator from Clinton [Mr. Marvin] that if the Constitution requires proposed amendments thereto shall be entered upon the journals of the two Houses and it has not been done since the Constitutional provision has not been complied with I want, him to say to me how he can, in view of these facts, vote for the minority report.
Mr. MARVIN: I am not a lawyer. The Constitution does not use the word "spread," it is the word "entered." Now the number of the House resolution, No. 7, with the yeas and nays on its passage are entered on the Journals. I know I voted on the resolution, but, by neglect, careless or intentional of the clerks of the Senate, it is not there, but I don't intend that shall deprive me and my constituents of the right to vote on those amendments.
Mr. BELL: Then the Senator is going to take the bit in his mouth?
Mr. MARVIN: Yes. sir, I am. [Laughter ]
Mr. BELL: That may be satisfactory to the Senator, but not to me.
Mr. MARVIN: It is between my conscience, my God and myself.
Mr. BELL (resuming): Then my friend wants this amendment to pass this way improperly passed. Everyone honestly desiring such amendments in the Constitution ought to want to have it done so regularly and so properly that there can be no mistake about if. I want to make a prediction. I predict if this thing goes on in its present shape, be agreed to by the General Assembly, be submitted and be ratified by a majority of the people, then the Senator will find it will be overturned by any honest Court which comes to pass upon it. Then we will be without any amendments or any law at all regulating the liquor traffic. I ask the Senator to make a mark there.
Mr. MARVIN (interposing): Then I want the responsibility to lie where it should.
Mr. BELL; (resuming): That won't answer. I don't see how the Senator can justify his conscience and his reputation for sincerity that way. That will be a poor excuse. It will hardly compensate for the injury that will follow. If the Senator wanes to engraft a prohibitory amendment upon the Constitution he ought to do it regularity. One or two years should not be of much consequence, if he is in earnest.
Much has been said about the right of the people to vote upon this question-about submission. I have heard some the other side some talk about the right of the people to have this thing submitted. They might as well resolve mat they are in favor of having four and four added together to make eight. Everybody is in favor of submission. Everybody has to be. The Constitution provides for submission, but it provides that certain things shall first be done before submission. Of course any one who is loyal to the Constitution after an amendment shall be properly presented, properly agreed to, properly entered on the records and properly referred to the next General Assembly, and by that body agreed to and submitted to the people for their ratification or rejection, then it follows as night follows day that there shall be submission. I want to know of some of our Democratic friends who have been contemplating voting for submission, if the don"t have to agree to amendments first. How can they justify their consciences? Agreement comes first. It is our duty to submit amendments after they are agreed to; but unless agreed to there can be no such thing as submission.
A good deal has been said about what is Democratic upon this subject. I want to call attention of Democrats briefly to the history of this subject. Let us go back more than a quarter of a century in political history and see the position the Democratic party held then. [Mr. B. read from the Democratic platforms adopted in 1856, 1866, 1868, 1870, 1874, 1876, and 1882] That is what the Democratic doctrine has been and what Democratic doctrine is.
I forgot to mention one thing-the position the Senator from Wayne took, that if any of these amendments were joint resolutions they were properly before us, but if concurrent resolutions they are not. Oh, most lame and impotent conclusion! One is a joint resolution-all the rest are concurrent.
There is another matter that escaped my memory. That is, when the present amendment proposition clause was offered in the Constitutional Convention originally, it provided that all proposed amendments to the Constitution should be published for a given length of time in the newspapers of the State, and this provision proposed by Robert Dale Owen substituted the entering upon the journals of the two Houses in lieu of the pending provision for publication in the newspapers, showing conclusively that by the substitution of the one for the other that it was the purpose and intent of the framers of the Constitution, by causing these propositions to amend the Constitution to be entered on the journals-to be spread upon the journals-to thereby provide a means of publication to the people to inform them of the nature and character of the pending amendments. That is another light which will aid us in the construction of this clause.
page: 125[View Page 125]We have witnessed some strange sights in the discussion f this question. The Senator from Rush [Mr. Spann] made a dangerous argument in support of the view that these amendments are now pending, and especially the position in which the Senator put himself He could not be provoked into saying upon the floor of the Senate what, opinion he entertained upon this subject.
The Senator from Wabash [Mr. Sayre] is honest, but he don't understand the tricky of the heathen Chinee. [Laughter], I say to him that his own party will help to vote these amendments down. The Senator from Delaware [Mr. Smith] won't dare, I think, get up and say that he favors prohibition. If he did say it I know enough about his constituency to venture the assertion that there are not two Republicans out of ten of them who favor prohibition as a matter of principle.
I am a true temperance man, and I am not ashamed of any of my positions upon the subject; but for one, in some respects, I am ashamed of my own political organization upon this question. In my humble judgment had the Democratic party taken a position in accordance with its teachings and traditions at the beginning of the campaign, which it finally took before the election, in my judgment the party would have Carried Indiana by over 25,000 majority. There is no need of this political cowardice. It finds no place in my composition-I don't like it amongst my friends or foes. The Democratic party, grand as it is, true as it is and has been to the principles of liberty and human rights has occasionally been led away from its mooring to worship false gods, aid every time its curses have returned to damn us. We will not retain the fruits of our success unless we cut from principle boldly and without cowardice. I would like to read what Cooley says about allowing popular influence to control.
I am opposed to this amendment in all its stages. I am opposed to it, as I am opposed to all sumptuary legislation. I don't believe it is within the province of a government to to regulate what a man shall eat, what he shall drink or wherewithal he shall be clothed. I don't believe men can be made good by legislation. If they could I would draft a bill this way: Be it enacted by the General Assembly of the State or Indiana, That all men shall be good, true and virtuous, and we would have done with all law. But you can't make people good by legislation. No law can be enforced that is not backed up and indorsed by public opinion. We have now a temperance law fifty years in advance of us, and it was passed by a Democratic General Assembly. The Democratic party is the only party which has ever put on the statute books enactments which were really in advance on the temperance question. They have all come from and through the Democratic party. And if you will enforce our present law upon the subject of the liquor traffic you will have taken a step fifty years in advance in the way of temperance. There will be no drunkenness if the present law is enforced. It prohibits the selling of intoxicating liquors to an intoxicated person or to a person in the habit of becoming intoxicated. It prohibits the selling to minors. But it is not enforced. Our temperance law is not enforced anywhere in this country. And why is it not enforced? Because public sentiment has not backed it up and enforced it. Enforce the law you have and you will take a long step in advance. And these temperance politicians want to put in the Constitution one that will have still less popular indorsement. It would make frauds of our people-they will simply evade the law. All human experience has taught this. I don't mean that I am not in favor of astringent law in reference to intoxicating liquors I think drunkenness is a crime that ought to be punished. I think we must take humanity as we find it. The Senator from Jackson [Mr. Brown] the other day described what would be the method of obtaining drinks under this proposed prohibitory amendment. I was amused at bis recital, but wondered that the Senator did not refer to the number of Government saloon keepers this amendment would provide for. You would find it would be more profitable to be a Government saloon keeper than to be the owner of a National Bank. This amendment would not prohibit, it would put the liquor traffic into the hands of a favored few. This thing is a mere sentiment. If the people want to prohibit this is not the kind of an amendment that will do it.
These are a few of my reasons for opposing this scheme. I am sincere in this, and the great body of my party, I believe, are sincere. Some of them have been led away by this fallacy and fraud. It is cheating ourselves to talk about submission in the abstract, because it comes after agreement; it must come after agreement and in no other way. I am in favor of killing this thing at the start. Killing it not scotching it. I am opposed to it in all its shapes and forms. Our Republican friends would like to see this matter defeated by us. They would like, if it is not defeated, to have the proposition for submission at a general election defeated, and then not have the amendments come before the people at all. Why, the Senator from Rush [Mr. Spann] I believe he would consent to most anything.
Mr. SPANN (interrupting): I am in favor of anything to beat the Democratic party. [Laughter ]
Mr. BELL (resuming): That's it. That is the size of it. It is simply a ruse-an attempt to get political advantage. They know it is a fraud, a delusion and a snare. And if my friend thought there was any danger of the prohibition amendment passing there is no man who would work harder to defeat it than he. I venture the assertion there are not six Republican Senators who will rise and say they are in favor of prohibition as an abstract proposition. I doubt if there are three. They don't favor it as a party or as a principle. They want to mislead somebody. It is not everything the people have a right to have submitted to them, they haven't said so in the Constitution. They have said certain propositions receiving the agreement of two succeeding General Assemblies shall be submitted for their ratification or rejection, I don't think everything should be submitted. Suppose I were to propose an amendment that some bright morning all property should be divided up equally. I think that would be popular. I believe I would be in favor of that proposition, for I would come out ahead. I think that amendment would be carried. But who would say such an amendment should be submitted? Or that we would have the right to submit ii? That is an extreme case, but putting an extreme case illustrates a principle. So I say about this amendment. It involves a principle that is odious and repugnant to our form of government, and to all the teachings of the Democratic party. I was opposed to it two years ago, and I am opposed to it now; I am opposed to it in all its stages. And the people now are opposed to it. You mark that now. The party that couples itself with this amendment is going to defeat as it ought to.
The Senator from Madison [ Mr. Henry] says we want the Dutch vote. If he means the German liberal vote, I want to say, yes, we do want it. We want the vote of every man who believe in individual freedom and justice, and I don't care whether he be German, Irish, Swede, or of what nationality, we need him in the ranks of the Democratic party, and expect to so conduct ourselves as to keep him there.
Coming back to the discussion of the amendment before us, I submit that the Constitution has provided all the means and the only means by which it can be amended. Those means have not been complied with in this case, and until they are we have no jurisdiction over this page: 126[View Page 126] question. There are many phases of this question I have not spoken of. But we have no jurisdiction of this question; whatever it is not properly before us, and the right thing to do is to say so in so many words Whatever my opinion might be I think, as a legal proposition, if we undertake to exercise jurisdiction in this case we shall do violence to the Constitution and the oaths we have taken to support it. If this question were divested of politics there would be no two opinions among lawyers or honest men. The English language is plain. It has been used in the Constitutional provision. It means amendments proposed to the Constitution shall be adopted in a certain way or not at all. There is no use to attempt to deceive ourselves or be trying to get around it. I hope the majority report will be adopted.
The majority report was concurred in upon a division-affirmative 23: negative, 21.
On motion by Mr. BELL the Committee rose and through its Chairman reported this action to the Senate.
Mr. BROWN moved that the Senate concur in the report of the Committee of the Whole.
The motion was agreed to by yeas, 25; nays, 23, as follows:
Ayes-Messrs. Bell, Benz, Bichowski, Brown, Compton, Davidson, Duncan, Faulkner, Fletcher, Hill, Hilligas, Howard. Hutchinson, Johnson of Dearborn, Johnson of Tippecanoe, May, McClure, McCullough, Null, Rahm, Richardson, Smith of Jay, Van Vorhis, Voyles and Youche-25.
Nays Messrs. Adkison, Bundy, Campbell, Ernest, Fleming, Foulke, Graham. Henry, Hoover, Keiser, Lockridge, Lindley, Macartney, Magee, Marvin. McIntosh, Overstreet, Ristine, Sayre. Smith of Delaware, Spann, White and Yancey-23.
Mr. WILLARD, when his name was called, said: Upon this question I am paired with the Senator from Noble [Mr. Hostetter.] I don't know how he would vote upon this purely legal question, but judging from his request I suppose it is my duty to refrain from voting, which I do.
The vote was then announced as above recorded. So the Senate concurred in the report of the majority of the Judiciary Committee.
Mr. BELL moved to reconsider the vote just taken, and lay that motion on the table.
The latter motion was agreed to.
Then the Senate adjourned till 10 to-morrow.
