be made to prohibit by constitutional change the so-called "third degree". It is questionable, however, whether any constitutional provision would effect any actual change in the method of dealing with prisoners by police and other authorities. The privilege of commenting upon the failure of the accused to testify in his own behalf is oftentimes urged as a means of reducing the incentive of officials to obtain confessions from an accused person by unlawful means.

Capital punishment. The effort to abolish capital punishment will almost certainly come before the constitutional convention. The matter of capital punishment is one as to which legislative power is now sufficient, and bills for the abolition of capital punishment have been before the Illinois general assembly for a number of years, and have failed of enactment. A bill was passed by the two houses of the general assembly in 1917 to remove the death penalty upon conviction of the crime of murder, and to repeal the sections of the statute prescribing the manner of inflicting the death penalty. This bill was vetoed by the governor. The veto was based partly upon the ground that a life convict guilty of murder would, if the bill were enacted, be subject to no penalty, and also that the period of war was an undesirable one for the enactment of such legislation.3

Oregon, in 1914, adopted a constitutional amendment abolishing capital punishment, but in the other states in which capital punishment has been abolished, this action has been taken by legislative enactment. A proposal for the abolition of capital punishment was made in the Massachusetts constitutional convention, and a discussion of this subject will be found in the debates of that convention, Volume 1, pages 439-449.4

Libel. Section 4 of Article II provides that "in all trials for libel, civil and criminal, the truth when published with good motives and for justifiable ends, shall be a sufficient defense". This clause has been applied in a recent important decision of the supreme court. (Ogren v. Rockford Star Printing Co. 288 Ill. 405, 1919), and this decision has been discussed in recent issues of the Illinois Law Review (October, December, 1919, Vol. XIV, pp. 226, 378). An effort may be made to alter the constitutional rule which makes the truth a defense only "when published with good motives and for justifiable ends".

Constitutional provisions duplicating those of the federal constitution. Section 2 of the bill of rights duplicates a similar limitation upon the states in the Fourteenth amendment of the Constitution of the United States, and Section 14 duplicates the prohibitions of the

3 Governor's Veto Messages of Senate and House Bills, Fiftieth general assembly, 1917. page 3.

See also Massachusetts Constitutional Convention Bulletin No. 5. The abolition of capital punishment.

federal constitution against the state enactment of ex post facto laws or laws impairing the obligation of contracts. There has been some discussion in this country of the desirability of having but one set of broad constitutional limitations upon the states. If there was but one set of broad limitations such as that in the due process of law clause, the federal limitation would then receive uniform construction for the whole country. Some difficulty has been occasioned in Illinois and other states by virtue of the fact that legislation may be held by the United States courts not to be in conflict with the due process of law clause of the federal constitution, but may be held by the state court to be in conflict with the identical clause of the state constitution. In such case the decision of the state supreme court is final, because it is a decision construing the language of the state constitution, and so construing such language as not to raise a federal constitutional question. A full discussion of the problem here suggested will be found in a chapter on legislative powers in Bulletin No. 8 of this series, and it is sufficient here merely to raise the question. If the policy were adopted of omitting from the state constitution guarantees which duplicate those in the constitution of the United States, attention should at the same time be called to the fact that Article 4, Section 22, of the constitution of Illinois has received a construction equally as broad as the due process of law clause, insofar as that section prohibits special or local laws granting special privileges, immunities or franchises.

Proposed clause guaranteeing individual initiative. The constitution of Illinois contains two guarantees which have been construed broadly so as to prohibit legislation which the court may regard as unduly restrictive of individual rights. As has just been indicated, these clauses are the due process of law clause and the clause prohibiting special legislation conferring special privileges, immunities and franchises. These broad clauses probably meet all the requirements that can be met by broad constitutional guarantees. As has been indicated in the discussion under legislative powers in Bulletin No. 8, these broad guarantees have not been defined by the courts, and are probably incapable of judicial definition. The things forbidden by the guarantees change with changing economic and social conditions, and the courts may because of such changes hold a legislative enactment proper at one time, even though the same or a similar enactment has been held improper in an earlier period. Thus the courts apply these broad guarantees (although they have never so indicated) to meet conditions as they present themselves, varying to some extent the actual content of the guarantees with changing conditions.

The suggestion has been made that there be embodied in the bill of rights a statement that every individual should be permitted to use his capacities to the furthest possible extent, independently of legislative prohibition. Such a principle, if announced in the constitution, would probably do no harm, but would also probably accomplish little good. Statements of broad principles in the constitution have usually had little effect, unless such principles were capable of fairly definite

judicial application, and it is probable that the matter here dealt with would not be capable of such judicial application. Not only this, but such a proposal, if embodied in the constitution may be capable of a double interpretation. It may if applied by the courts be held to inhibit legislative action in numerous cases, although it probably would not lead to the annulment of legislation, which might be held proper under the due process of law clause. On the other hand, such a provision might be held to justify legislative action intended to give an equal opportunity to each citizen in the acquisition of education or facilities. for the use of such capacities as he might possess; and might, therefore, be employed as a means of aiding the socialistic ideal.

III. EDUCATION.

The matter of religion in the schools has been dealt with in an earlier part of this bulletin. Some other matters. are likely to come before the convention with respect to the article of the constitution dealing with education.

There will undoubtedly be some discussion of the proposal for a constitutional recognition of the University of Illinois, or of both the university and the normal schools. The University of Illinois is now controlled entirely by statutory enactments, although an incidental reference to the university is contained in Article VIII, Section 2, with respect to lands, moneys or other property donated, granted or received for school, college, seminary or university purposes. The university is now subject to the management and control of a board of trustees, composed of the governor, the superintendent of public instruction, and nine other trustees, of whom three are elected every two years, to serve for a six year term. The elective trustees are voted for by the voters of the state at the biennial general elections upon the same ballots with the state officers to be chosen at such elections.

In 1911 provision was made for the levy of a one mill state tax for the support of the University of Illinois, this tax being based upon the principle of taxing property at one-third of its value. In 1919, when the basis of taxation was raised to one-half of full value, this tax was proportionately reduced to two-thirds of one mill. In the report of the Efficiency and Economy Committee1 will be found a full statement regarding the organization of boards for the control of state universities. The more common practice is to have appointive boards. However, a number of states have constitutional provisions regarding the state university. Perhaps the most important university controlled by an elective board is that of Michigan, whose constitution provides that "there shall be a board of regents of the university, consisting of eight members, who shall hold the office for eight years. There shall be elected at each regular biennial spring election two members of such board. When a vacancy shall occur in the office of regent, it shall be filled by appointment of the governor." Boards of regents or of trustees for state universities are also made elective by constitutional provisions in Colorado and Nebraska.

With respect to the county superintendent of schools, the constitution speaks of election, but provides that the manner of election shall be prescribed by law. The issue has never presented itself, but the use of the word "election", united with the uniform practice of electing that officer by popular vote under the constitution of 1870, may make

1 Report of Efficiency and Economy Committee, 1915, pages 439-440.

it doubtful as to whether the county superintendent could be made appointive if this were desired. With respect to any proposal for consolidation of city and county functions, either within the city of Chicago or within other areas of the state, attention should also be called to the fact that the constitutional provision regarding a county superintendent would in case of such consolidation make it necessary to continue a county school officer in addition to a city school superintendent.

In discussing constitutional provisions regarding education it should be noted that the state superintendent of public instruction is provided for by article V, section 1, of the constitution.

Article VIII, Section 4, provides that no teacher, state, county, township or district school officer shall be interested in the sale, proceeds or profits of any book, apparatus or furniture used or to be used in any school in this state, with which such officer or teacher may be connected, under such penalties as may be provided by the general assembly. Some effort may be made to change this constitutional provision, inasmuch as it substantially prohibits the use in Illinois of text books prepared by any school officer within this state. It may be possible to prevent the abuses aimed at without unduly restricting the preparation of text books within the limits of the state. In any case, it will be desirable to coordinate with this section the provisions of Article IV, Section 15, and Article IV, Section 25. The provisions regarding interest in contracts now do not cover the whole subject, and may be found in three parts of the constitution.

Efforts will probably be made to add specific constitutional provisions regarding kindergartens, vocational education or other types of educational methods. In connection with this matter, it should probably be said that Article VIII, Section 1, of the constitution lays down as broadly as is possible the duty of the general assembly to provide "a thorough and efficient system of free schools". (Powell v. Board of Education, 97 Ill. 375. 1881). Details as to elements constituting such a system of free schools may lead to judicial implications limiting the present full power conferred upon the general assembly. Here, as elsewhere in a constitution, details are dangerous from the standpoint of judicial construction, and it is usually true that details as to an educational system are likely to be quickly outgrown if placed in a constitution. The changing of such details then becomes à difficult matter.

In connection with the problem of education, attention should be called to Section 18 of the schedule by which "all laws of the State of Illinois and all official writings and the executive, legislative and judicial proceedings shall be conducted, preserved and published in no other than the English language". It seems unnecessary that anything should be added to this language, for the whole matter can now be adequately dealt with by statute, although attention should be called to the possibility of a proposal of amendment being made requiring that all instruction in schools be in the English language. Proposals of this character, in connection with the so-called Americanization movement, led in 1919 to the enactment of a statutory provision which reads as follows: